SUMMARY REPORTABLE

CASE NOS.:

I 1603/2008

I 3518/2008

I 3007/2008

I 2692/2008

I 3519/2008

I 3517/2008

IN THE HIGH COURT OF NAMIBIA

HN

JS

HM v THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA

LM

MI

NH

PARKER J

2009 December 16

_______________________________________________________________________________
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Statute- Section 33 of the Public Service Act, 1995 (Act No. 13 of 1995)

(the PSA) – Interpretation thereof – Court holding that the

plain and unambiguous words in the phrases ‘anything done

… in terms of this Act' and ‘anything …omitted in terms of

this Act’ must be given their literal meaning in context –

Having done so, Court holding that the phrase ‘anything done

in terms of this Act’ means any exercise of power given by a

provision of this Act (the PSA); and the phrase ‘anything

omitted in this Act’ means any failure or any refusal to

exercise power given by a provision of this Act (the PSA) –

Consequently, Court finding that in performing the medical

procedures complained of, the medical practitioners of the

defendant did not exercise power given by the PSA, and

therefore their alleged committing of the alleged delict as a

result of their conduct does not constitute any failure or any

refusal to exercise power given by the PSA – Therefore, Court

finding that ‘anything’ has not been ‘omitted in terms of this

Act (the PSA)’ within the meaning of s. 33 of the PSA – In the

result, Court finding s. 33 of the PSA does not apply to the

conduct of the medical practitioners – Having so found, the

Court deciding it was not necessary to consider whether s.33

is consistent with the Namibian Constitution as far as the

present proceedings are concerned.

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Statute - Public Service Act – Long title of – Court finding that the long

title thereof indicate the purpose and scope of the Act, as is

the case with the long title of any other legislation – Court

finding the purpose and scope of the Public Service Act is the

personnel management of staff members.

Statute - The Public Service Act – Various Regulations and Staff Rules

made thereunder – Court finding that, as provided in s.1 of

the Act, the Act includes the Regulations and Staff Rules.

Held, that the function of the long title of a statute like the Public Service Act is

to indicate the general purpose of the Act in question, and it is legitimate

to use the long title for the purpose of ascertaining the purpose of the Act

and its scope.

Held, further that the phrase ‘anything done in terms of the Act’ means any

exercise of power given by a provision of the Act; and ‘anything omitted in

terms of the Act’ means any failure or refusal to exercise power given by a

provision of the Act.

Held, further that codes under the Code of Conduct prescribed in the various

Regulations and Staff Rules made under the Public Service Act are for

guidance of staff members, and they may be admitted in other proceedings

but a breach of a code does not of itself give rise to criminal or civil

liability.
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REPORTABLE

CASE NOS.:

I 1603/2008

I 3518/2008

I 3007/2008

I 2692/2008

I 3519/2008

I 3517/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between

HN 1st Plaintiff

JS 2nd Plaintiff

HM 3rd Plaintiff

LM 4th Plaintiff

MI 5th Plaintiff

NH 6th Plaintiff

and

THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA Defendant

CORAM: PARKER J

Heard on: 2009 November 24

Delivered on: 2009 December 16

_______________________________________________________________________________
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JUDGMENT:

PARKER J.:

[1] In this matter actions (under Case Nos. I 1603/2008, I 3518/2008, I

3007/2008, I 1692/2008, I 3519/2008, and I 3517/2008) have been

consolidated into two cases. It is the determination of the special plea, raised by

the defendants, which is the burden of the Court in the present proceedings,

and the special plea is raised in five of the six cases; no special plea is raised in

respect of Case No. I 3518/2008.

[2] Mr. Corbett represents the defendant and Mr. Smuts SC represents the

plaintiffs. Both counsel have filed written submissions, and I am grateful to

them for their industry. I have considered the authorities counsel referred to

me, but I do not think I should pepper this judgment with leafy extracts from

those authorities, seeing that in these proceedings the case falls within

extremely short, narrow and simple compass.

[3] The pleadings in all the six cases are along the same lines, except personal

details and dates, as Mr. Corbett submitted, and so, the particulars of claim in

Case No. I 1603/2008 are used as an example of the claims made by the

plaintiffs in their individual pleadings. Briefly, the plaintiff instituted claims

against the defendant for damages arising (1) from the allegedly unlawful

sterilization of the plaintiffs without their consent by medical practitioners

employed by the State at State hospitals, on the basis that the medical
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practitioners breached the duty of care the practitioners owed to the plaintiffs

(Claim 1) and (2) from the plaintiffs’ allegations that the aforementioned

sterilization constituted a wrongful and unlawful practice of discrimination,

against the plaintiffs on the basis of their HIV status, in breach of the plaintiffs’

several basic rights guaranteed to them by the Namibian Constitution.

[4] Mr. Corbett submitted that the claims are delictual claims; and Mr. Smuts

agrees. Moreover, it is not disputed that the defendant is being sued in the

actions on the basis of the defendant’s vicarious liability because the defendant

is the employer of the medical practitioners in question, and the medical

practitioners carried out the acts complained of, as aforesaid, in the course and

scope of their employment.

[5] The one single issue that I must determine is as follows. In raising the

special plea, the defendant contends that the alleged delictual acts, particularly

the performance of the sterilization procedure, were ‘anything done or omitted in

terms of this Act (i.e. the Public Service Act, 1995 (Act No. 13 of 1995) (‘the

PSA’)).’ The said s. 33 of the PSA provides:

(1) No legal proceedings of whatever nature shall be brought in respect of

anything done or omitted in terms of this Act unless such proceedings are
brought within 12 calendar months from the date on which the claimant had
knowledge or might reasonably have been expected to have knowledge of that
which is alleged to have been done or omitted, whichever is the earlier date.
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(2) No such legal proceedings shall be commenced before the expiry of 30

days after written notice of intention to bring such proceedings, containing full
particulars as to that which is alleged to have been done or omitted, has been
served on the defendant.

[6] Thus, according to Mr. Corbett if I accept the defendant’s position that s.

33 applies to the aforementioned alleged delictual acts of the defendant’s

medical practitioners, then the period within which s. 33 allows proceedings to

be brought have expired and so therefore the action has prescribed because the

instant actions were instituted after the expiration of the statutorily prescribed

time limit of 12 months. Mr. Smuts on the other hand urged the Court to find

that s. 33 does not apply to the aforementioned acts of the medical practitioners

simply because the acts in question do not constitute ‘anything done or omitted

in terms of’ the PSA.

[7] It is my view that in determining the special plea I must keep firmly in my

mental spectacle the superlatively crucial considerations that are discussed in

the next paragraphs of this judgment. The considerations hold, in my opinion,

the only efficacious key for unlocking the door of the issue raised by the special

plea.

[8] In Namibia, every staff member (see s. 1 of the PSA) is subject to the PSA

(s. 36 of the PSA). For that reason I may characterize the PSA as an Act of

general application in virtue of the fact that the PSA governs every staff member,

irrespective of (1) the power the staff member exercises under any applicable
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legislation, (2) the functions the staff member performs under any applicable

legislation, (3) the grade the staff member holds in the structure of the Public

Service (see s. 1 of the PSA), (4) the Office, Ministry or Agency the staff member

is employed in (see s. 1 of the PSA), (5) whether the staff member is employed

permanently or temporarily on a full-time or part-time basis or under a special

contract or under any other contract of employment (see s. 4, read with

s.34(1)(a), of the PSA), or (6) the profession, vocation or trade that the staff

member practises in the Public Service (see s. 4 of the PSA).

[9] Thus, for example, the Chief Presidential jet pilot and an aircraft engineer

of the jet and a cleaner – all of whom are employed in the Ministry of Works and

Transport – are all governed by the PSA. The PSA governs the Surveyor-General

of Namibia and a clerk, employed in the Ministry of Lands and Resettlement. An

example that is nearer home is this: the Chief Registrar and the assistant

registrars and the clerks and the cleaners employed in the Directorate: High

Court and Supreme Court are all subject to the PSA in virtue of the fact that

they are all staff members. Yet again, an example that is nearer home to the

present proceedings is that the Permanent Secretary, the Director of Medical

Services, a Chief Medical Specialist, a general medical practitioner, a nurse, a

records clerk and a cleaner, employed in the Ministry of Health and Social

Services (MHSS), are all governed by the PSA.

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[10] Doubtless, the PSA is primarily a personnel management-based legislation

as evidenced by the long title of the PSA, namely, an –

Act [t]o provide for the establishment, management and efficiency of the Public
Service, the regulation of the employment, conditions of service, discipline,
retirement and discharge of staff members in the Public Service, and other
incidental matters.

[11] And it has been said of the long title of a statute by G C Thornton in his

authoritative work Legislative Drafting, London, Butterworths (1987): p. 150 that

Every Act begins with a long title the function of which is to indicate the general
purpose of the Act. The long title is part of the Act, being considered because it is
legitimate to use it for the purpose of interpreting the Act as a whole and
ascertaining its scope. (Vacher & Sons Ltd v London Society of Compositors [1913]
AC 107 at 128)

[12] Additionally – and this is important – a staff member, in virtue of his or

her profession or the power he or she is given to exercise under an applicable

statute, is governed not only by the PSA, as aforesaid, but is governed also by

the applicable legislation that prescribes statutory procedures, regulating the

manner in which such staff member exercises power under the legislation in

question. For example, a surveyor who is a staff member is governed by both the

PSA and the Land Survey Act, 1993 (Act No. 33 of 1993), among other suchlike

work-related statutes; and by a parity of reasoning, the Chief Registrar of the

High Court (and the Supreme Court) is governed by the PSA; she is also

governed by the High Court Act, 1990 (Act No. 16 of 1990); and a medical
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practitioner who is a staff member is governed by PSA and the Hospitals and

Health Facilities Act, 1994 (Act No. 36 of 1994) and other work-related statutes.

[13] Thus, in contradistinction to the PSA are such statutes as the Hospitals

and Health Facilities Act, 1994 and any regulations made thereunder, the High

Court Act, 1990 and Rules made thereunder, the Land Survey Act, 1993 and

any regulations made thereunder; just to mention a few to illustrate the point.

For example, the High Court Act governs the Chief Registrar, a staff member.

There are many suchlike legislation in the management and functioning of the

Public Service. While the PSA is a personnel management-based legislation, as

aforesaid, in the sense that its scope is personnel management of staff members,

such statutes as Act No. 36 of 1994, Act No. 16 of 1990, and Act No. 33 of 1993

are not personnel-management-based legislation; they are rather statutory-

power-based legislation.

[14] Accordingly, if the Chief Presidential jet pilot flew His Excellency the

President to a SADC Summit held in Kinshasa (the DRC), the Chief pilot has not

exercised power given by the PSA. But if the Chief Presidential Pilot

recommended to the Permanent Secretary: Ministry of Works and Transport that

a junior Presidential Pilot employed in the Department of Civil Aviation be

promoted, the Chief Presidential Pilot has exercised power given by the PSA. By

the same token, if the Chief Surgeon of the Oshakati State Hospital performed a

medical procedure to remove a tumour from a patient at the Oshakati State

Hospital, the Chief Surgeon has not exercised power given by the PSA; but if the
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Chief Surgeon posted an advertisement in the New Era calling for applications

from school leavers who wish to be appointed as record clerks in the Oshakati

State Hospital, the Chief Surgeon has exercised power given by the PSA. And yet

again, if the Chief Registrar of the High Court granted default judgment she has

not exercised power given by the PSA. However, if the Chief Registrar of the High

Court held a disciplinary hearing involving one of the clerks who is charged with

misconduct, or if the Chief Registrar recommended to the Permanent Secretary:

Justice that one of the clerks at the Seat of the Court be transferred to the

Courthouse in the High Court building in Oshakati, the Chief Registrar has

exercised power given by the PSA. By a parity of reasoning, if the Government

Attorney made submissions on behalf of the Government in proceedings in the

Court where the Government is a party to the case, she has not exercised power

given by the PSA. But if the Government Attorney approved leave of a legal

officer employed in the office of the Government Attorney, the Government

Attorney has exercised power given by the PSA. One final example; if the

Registrar of Deeds registered a deed involving immovable property, he has not

exercise power given by the PSA, but if he issued a final warning to a staff

member, employed in the Deeds Registry, for having committed misconduct, the

Registrar of Deeds has exercised power given by the PSA.

[15] Such exercise of power given by the PSA and by an applicable legislation

other than the PSA by various staff members, occur in the day-to-day

management and functioning of the Public Service. When a staff member

exercises power given by a provision of an applicable Act, it means that staff

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member has done a thing; or ‘anything’, in the language of the PSA, in terms of

that Act. That is the meaning of ‘in terms of’. In this regard, to go back to the

examples above; if, in those examples the staff member concerned refused or

failed to exercise power given by the PSA, it means that staff member has

omitted to do a thing in terms of the PSA; or in the language of the PSA,

‘anything … (is) omitted in terms of’ the PSA.

[16] I will illustrate the last point further in this way. In terms of Rule 8.2 of

Chapter B.V of Staff Rules issued under Public Service Management Amendment

Notice No. 3 of 1997, made under the PSA, in order to confirm the appointment,

promotion or transfer of a staff member, the Permanent Secretary concerned

must complete a certificate of confirmation at the end of the probationary period

of the staff member in question and such staff member must be informed in

writing of such confirmation. If the Permanent Secretary completed the

certificate of confirmation and informed the staff member of such confirmation

accordingly, the Permanent Secretary has exercised power given by the PSA; that

is, the Permanent Secretary has done a thing; or in the language of the PSA,

‘anything (has been) done in terms of’ the PSA. If, on the other hand, the

Permanent Secretary failed or refused to complete the certificate of confirmation,

the Permanent Secretary has failed or refused to exercise power given by the

PSA; or in the language of the PSA, anything (is) omitted in terms of the PSA.

[17] To argue that just because the Chief Registrar, for instance, is a staff

member anything she does, in virtue of her employment, she does ‘in terms’ of
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the PSA, that is, it constitutes exercise of power given by the PSA is, with the

greatest deference, to misread s. 33 of the PSA. It is not different to argue, as

Mr. Corbett does, that just because a medical practitioner is a staff member,

governed by the PSA, when such medical practitioner performed a medical

procedure correctly (medically speaking) and without committing a delict, that

medical practitioner has done a thing, or ‘anything (has been) done in terms of

the PSA; and if in performing the medical procedure the medical practitioner did

perform the procedure incorrectly or wrongly and thereby committed a delict, a

thing is omitted; or in the language of the PSA, ‘anything (is) omitted in terms of

the PSA’. Such interpretation of s. 33 of the PSA can and will surely lead to real

and glaring absurd results, which offends the well known rule of construction

that when interpreting a statute there is a presumption against absurdity (Du

Toit v Office of the Prime Minister 1996 NR 52; S v Zemburuka (2) 2003 NR 200).

[18] In public service management and in the functioning of the Public Service,

a staff member may do a thing (‘anything’); that is, exercise power given by a

provision of the PSA or given by a provision of an applicable legislation,

unrelated to the PSA, or the staff member may refuse or fail to exercise power

given by a provision of the PSA or given by the applicable law, unrelated to the

PSA. In all this, it all depends upon the nature of the power that the staff

member has been given to exercise; and so, it may be any exercise of power

given by a provision of the PSA or a provision of any other Act.

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[19] As I have said more than once, the PSA is personnel management-based

legislation; its purpose and scope are the personnel management of staff

members. That much Mr. Corbett appears to agree. And I accept Mr. Corbett’s

submission – in any event, s.1 of the PSA says so – that the PSA includes the

Public Service Regulations (PSR), made under s. 34 of the PSA, and the Public

Service Staff Rules (PSSR), made under s. 35 of the PSA. In any case, I did not

hear Mr. Smuts to argue contrariwise. I note in parentheses that contrary to

what s. 1 of the PSA says, the PSR and the PSSR are not both made under s. 35

of the PSA, as I have indicated above.

[20] Mr. Corbett relied on a Public Service Regulation to support his

submission that the Regulation governs ‘the conduct of staff members, not only

in relation to internal discipline, but also in respect to their dealings with the

general public.’ With the greatest deference, this submission adds no weight.

The first part of the submission is not entirely correct. The various PSR (there

are many of them, as they are issued from time to time), including the one

referred to me by Mr. Corbett and issued under GN 211 of 1 November 1995, are

not concerned only with internal discipline but other aspects of personnel

management (see Peter Blunt, Personnel Management in Africa, London,

Longmans (1985); W Fox, et al., Public Management, Cape Town, Juta (1991).

And the second part of Mr. Corbett’s submission is pleonastic. The entire

purpose of the Public Service is the rendering of service to the public. A fortiori,

the codes in the Code of Conduct issued under the said GN 211 of 1 November

1995 are for guidance of staff members, informing and instructing staff
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members how correctly, properly and efficiently staff members may conduct

themselves in any exercise of power given by one statute or another. Therefore,

the Code of Conduct Mr. Corbett referred to me does not detract from the

conclusion I have reached previously about the purpose and scope of the PSA.

[21] Indeed, as mentioned in the introduction of the aforementioned Code of

Conduct, the codes are for guidance of staff members, and the Code of Conduct

leaves no doubt as to the consequences arising from a breach of a code; that is,

a breach of a code may be taken as a form of misconduct under s. 25 of the PSA,

and the breach may lead to the staff member in question being charged with

misconduct and disciplinary action being visited upon him or her under Part III

of the PSA. Accordingly, a breach of a code of good conduct, made under the

PSA, like the one referred to me by Mr. Corbett, may be admissible in other

proceedings but the breach does not of itself give rise to criminal or civil liability.

(See G C Thornton, Legislative Drafting, 3rd edn. (1987): p 280.) This conclusion

is vindicated by the fact that, as Mr. Smuts submitted, the plaintiffs have seen it

fit to institute action against the defendants not for breaching the PSA or any

provision of the PSR; their individual action is based on delictual claim in terms

of the common law. That much both counsel agree.

[22] In Tinkham v Perry [1951] 1 All ER 249 at 250E, which Hannah J cited

with approval in Engels v Allied Chemical Manufacturers (Pty) Ltd and another

1992 NR 372 at 380F-G, Evershed MR stated: ‘Plainly, words should not be

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added by implication into the language of a statute unless it is necessary to do

so to give the paragraph sense and meaning in its context.’

[23] From all the aforegoing analysis, I conclude that, if the plain and

unambiguous words in the sub clause ‘in respect of anything done or omitted in

terms of this Act’ are given their ‘literal meaning in context’ (see G E Devenish,

Interpretation of Statutes, Cape Town, Juta (1992): p. 37), as they should in the

circumstances, it is clear that the sub clause ‘anything done …in terms of this

Act’ means any exercise of power given by a provision of this Act (the PSA); and

the sub clause ‘anything …omitted in terms of this Act’ means a failure or

refusal to exercise power given by a provision of this Act (the PSA). The key,

operative words in the sub clauses are ‘exercise of power’ and ‘failure or refusal

to exercise power’, and in the instant case, power given by the enabling Act, the

PSA, or given by a Regulation or Rule made thereunder; but it must be exercise

of power or refusal or failure to exercise power. It is, therefore, not necessary in

this case to add words to imply that ‘anything done’ or ‘omitted’ ‘in terms of this

Act (the PSA)’ includes obedience, or breach, of a code of good conduct. As I have

concluded previously, the Code of Conduct referred to me by Mr. Corbett is for

the guidance of staff members.

[24] From the aforegoing reasoning and conclusions, I find that the defendant’s

special plea is not well founded; it must, therefore, fail. Accordingly, I hold that

s. 33 of the PSA does not apply to the conduct of the staff members concerned in

these proceedings. Having so held, I need not bother myself with the
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constitutionality or otherwise of s. 33 of the PSA, as far as these proceedings are

concerned.

[25] In the result, I make the following order:

The special plea is dismissed with costs, such costs to include costs

consequent upon the employment of two instructed counsel.

______________

PARKER J
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ON BEHALF OF THE PLAINTIFFS: Adv. D. Smuts SC

Adv. E. Schimming-Chase

Instructed by: Legal Assistance Centre

ON BEHALF OF THE DEFENDANT: Adv. AW Corbett

Instructed by: The Government Attorney