Vous êtes sur la page 1sur 76

ADHERENCE TO THE PRINCIPLES OF ADMINISTRATIVE

JUSTICE
BY
ADMINISTRATIVE BODIES IN NAMIBIA
A dissertation submitted in partial fulfillment of the requirements of the degree
of

BACHELOR OF LAW (HONOURS)


of
the

UNIVERSITY OF NAMIBIA
By

FILLEMON WISE IMMANUEL


(200308041)

NOVEMBER 2013

SUPERVISED BY: MR. JOHN NAKUTA


0

Table of Contents
ABSTRACT................................................................................................................... 5
DEDICATION................................................................................................................ 7
ACKNOWLEDGEMENTS............................................................................................... 8
DECLARATION........................................................................................................... 10
CHAPTER 1............................................................................................................... 11
1.1 INTRODUCTION............................................................................................... 11
1.2 RESEARCH PROBLEMS/STATEMENT.................................................................12
1.3 RESEARCH QUESTION...................................................................................... 14
1.3.1 Main Research Question............................................................................14
1.3.2 Subsidiary Research Question...................................................................14
1.4 METHODOLOGY............................................................................................... 14
1.5 CONCLUSION................................................................................................... 14
CHAPTER 2: LITERATURE REVIEW............................................................................. 16
2.1 INTRODUCTION............................................................................................... 16
2.2 DEFINITION...................................................................................................... 17
2.3 RULE OF LAW AS IT RELATES TO ADMINISTRATIVE JUSTICE.............................18
2.4 GROUNDS FOR CHALLENGES TO ADMINISTRATIVE ACTIONS...........................20
2.5 DISCRETIONARY POWERS IN EXERCISING ADMINISTRATIVE ACTIONS.............22
2.6 INTERFACE OF ADMINISTRATIVE JUSTICE AND GOVERNANCE..........................28
2.8 CONCLUSION................................................................................................... 29
CHAPTER 3: LEGAL FRAMEWORK..............................................................................30
3.1 INTRODUCTION............................................................................................... 30
3.2 LEGAL INSTRUMENTS...................................................................................... 30
3.2.1 Available at International Level.................................................................31
Universal Declaration of Human Rights..............................................................31
International Covenant on Civil and Political Rights...........................................31
The Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment, 1988:.....................................................................32
The Declaration on the Protection of All Persons from Enforced Disappearance,
1992:.................................................................................................................. 32
The Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions, 1989:.........................................................33
3.2.2 Available at Regional Level...........................................................................33
1

The African Charter on Human and Peoples Rights, 1981.................................33


The American Convention on Human Rights, 1969............................................34
The European Convention on Human Rights, 1950............................................34
3.2.3 Available at National Level........................................................................35
3.3 CONCLUSION................................................................................................... 35
CHAPTER 4: FINDINGS: CASE -STUDIES....................................................................37
4.1 INTRODUCTION............................................................................................... 37
4.2 TRANSNAMIB................................................................................................... 37
4.2.1 Summary of Facts...................................................................................... 37
4.2.2 Applicable Law to TransNamib...................................................................38
4.2.3 Legal Issues............................................................................................... 38
4.3. ROAD CONSTRUCTION COMPANY...................................................................38
4.3.1 Summary of Facts...................................................................................... 38
4.3.2 Applicable Law to RCC............................................................................... 39
4.3.3 Legal Issues............................................................................................... 39
4.4 ROAD FUND ADMINISTRATION.........................................................................40
4.4.1 Summary of Facts...................................................................................... 40
4.4.2 Applicable Law to RFA............................................................................... 41
4.4.3 Legal Issues............................................................................................... 41
4.5 SOCIAL SECURITY COMMISSION......................................................................41
4.5.1 Summary of Facts...................................................................................... 41
4.2 Applicable Law to SSC.................................................................................. 42
4.3 Legal Issues.................................................................................................. 42
CHAPTER 5: EVALUATION OF THE FINDINGS.............................................................43
5.1 INTRODUCTION............................................................................................... 43
5.2 TransNamib..................................................................................................... 43
Whether the Board Acted within its Powers to suspend the Chief Executive
Officer................................................................................................................ 43
Whether appointment of least deserving candidates by the Chief Executive
Officer constitute biasness.................................................................................43
Whether the Chief Executive Officer acted ultra vires by awarding himself a
study loan.......................................................................................................... 44
Would the allegations for political interferences stand the test of validity?.......44
5.3 Road Construction Company...........................................................................45
2

Whether the Board acted lawful by suspending the Chief Executive Officer
without reasons for his suspension?...................................................................45
Whether the report requested from the suspended Chief Executive Officer
during the preliminary investigations would constitute making a sufficient
representation?.................................................................................................. 48
Whether the Board acted lawful by refusing suspended Chief Executive Officer
to access documentation and right to legal representation?.............................49
5.4 Road Fund Administration.............................................................................500
Whether it was within the powers of the CEO to inflate his salaries?.................50
Whether it was within the powers of the Board to suspend the CEO and others?
........................................................................................................................... 51
Whether it was within the powers of the Government, Cabinet and Minister of
Finance to intervene in the functions of the Board of Directors?........................51
5.5 Social Security Commission.............................................................................52
Was the Chief Executive Officer acting within his powers in refusing to buy IPads for Commissioners?................................................................................... 52
Was the Board of Commissioners acting within its powers in suspending the
CEO?.................................................................................................................. 52
What was the legality of the suspension without pre-suspension hearing and
information on charges?..................................................................................... 54
Was the Deputy Minister and/or Minister acting within his/her powers by
intervening in the matter and by request the freezing of the suspension until
certain condition is met?.................................................................................... 54
Was the suspended CEO tried within a reasonable time?..................................56
Was the Minister acting within her powers by removing/dissolve the Board
Members from office?......................................................................................... 58
Did the Removal/Dissolution of the Board of Commissioners by the line Minister
comply with the Audio Alteram Partem Rule?....................................................59
CHAPTER 6: CONCLUSION, RECOMMENDATION AND REFERENCES..........................61
INTRODUCTION..................................................................................................... 61
6.2 CONCLUSION................................................................................................... 61
RECOMMENDATIONS............................................................................................. 64
6.4 REFERENCES/BIBLIOGRAPHY...........................................................................66
BOOKS................................................................................................................ 66
STATUTES........................................................................................................... 67
CASES................................................................................................................ 67
3

TREATIES............................................................................................................ 69
PUBLICATIONS OR ARTICLES..............................................................................70
NEWSPAPERS..................................................................................................... 70
WEBSITES........................................................................................................... 70

ABSTRACT
Namibia became independent on the 21 March 1990, following the end of the apartheid regime,
an era that was mainly characterized by the existence of discriminatory laws, inhumane
treatments, undermining of human rights and social exclusion along racial lines. As result of the
then practices, majority of Namibian people were denied access to basic and fundamental
rights, if they even knew about them. Alternatively put, Namibians had endured the harshness
and hardship of a system that lacked commitment to the principle of legality. It knew no equality
before the law, it knew no non-discriminatory principle, it knew no respect human dignity, it knew
no enforcement of freedom of expression, it decline people right to culture and political
association, it restricted peoples access to fair trial, it did not uphold right to privacy and family
and above all it did not protect right to life in a staunch and uncompromised fashion.
On the eve of independence the new government adopted a new constitutional order that
intended to set off the past imbalances, while moving the nation toward a common legal
position, where every Namibian would feel a sense of equality and protection. This good
collective intention was well recorded through the formulation and incorporation of the Bill of
Rights into the new constitution, which would be called the Namibian Constitution. It suffices to
say that, todays Namibian Constitution stand to provide for the fundamental rights, including but
not limited the following; right to life (Article 6), to liberty (Article 7), to human dignity (Article 8),
to equality (Article 10), to fair trial (Article 12), to privacy (Article 13), to find a family (Article 14),
to associate politically (Article 17) and to Administrative Justice (Article 18). Indisputably, the
above evidence is indicative that Namibia as a state exists on the basis of constitutional
supremacy and this enjoin the government enjoins the government and its agencies to the
obligation of protecting those fundamental rights.
This study concerns itself with the concept of Administrative Justice which is provided for in
terms of Article 18. As a central theme, the study investigates the state of Adherence to the
Principles of Administrative Justice by Administrative Bodies in Namibia. The need to investigate
the stated practice was identified following the ongoing trend of suspending and/or firing Chief
Executive Officers for Administrative Bodies or State Owned Enterprises in Namibia. Essentially,
in attempting to answering the research question, the study will discuss some of the following
aspects; namely Definition of what constitute Administrative Justice/Administrative Law, Rule of

Law as it relates to Administrative Law, Grounds for Challenges to Administrative Actions,


Discretionary Powers in Exercising Administrative Actions, Interface of Administrative Justice
and Governance. Furthermore, the study will look at legal instruments providing for the Right to
Administrative Justice, specific scenarios of administrative nature from selected Administrative
Bodies and their evaluation thereof, before forming a conclusion and constituting
recommendations. In the final analysis, the study will indicate whether the trend that has be
going on complies with the Principles of Administrative Justice or not and how either position
would reconcile with principle of good administration or spirit of corporate governance. Whether
Namibia needs to promulgate an Administrative Justice Enforcement Act, accompanied by the
establishment of an Administrative Tribunal, would depend on what the findings will be.

DEDICATION
This dissertation is specifically dedicated to my late mother, Adelheid Neliwa, who departed from
this world when I was barely twelve years old and as such could not live to see the fruits of her
forwarding looking and uncompromising upbringing approach. She was a strict lady, who
appreciated the value and relevance of education as a truest liberator. Dearest mother wherever
you are, please know that I am thankful for all you have done overall for me and in respect of
my education. A year before you departed, you had said the following to me, Wise do not think
and feel that I hate you, when I punish you by giving you a hide for wrong doing or insisting that
you take your school seriously, for I am not bringing you up for myself, but for the world as a
whole and as such the world demands that you be disciplined and educated. Nothing of the
above made sense then, only now and I shall continue to embrace this principle, thank you very
much mummy.

ACKNOWLEDGEMENTS
Logic is dictating and precedence is directing that for anybody to overcome an insurmountable
task, supports by others is relatively required and crucial. As such it is just fair and symbolically
human that in the end, appreciations in favour of those who played defining roles in the
accomplishment of an assignment is recorded, never mind the measures or extents of their
contribution, for a wise African man once said, whoever gave you little is worthy honouring than
who never did. It is on the basis of the above proverbial expression, that I shall now proceed to
record my gratitude to some named individuals, among others, whose contributions,
assistances and supports have aided me in sailing through the demanding compilation of this
research and ultimately the overall completion of third (3rd) academic degree.
Before naming, I must admit by way of indication that it will not be possible to mention
everybody who had helped me in one way or the other, in fanalising this research work or the
course as a whole. However, having earlier published academic pieces in respect of the
preceding qualifications makes it easy for me under this one, for I am only going to thank those
that I did not thank previously and they line as follows:
Firstly, I would to thank my beloved God for his ever continuing free blessings and divine
guidance.
Secondly, I would like to thank my supervisor, Mr. John Nakuta for his superior academic
coaching and for always availing time when I needed him. Other lecturers are equally thanked
for their dedications to the education sector.
Thirdly, I would like to thank my father, Immanuel Simeon for his truest fatherly staunch and
continuous support towards my educational dreams, despite the demand of attention by other
eighteen siblings. Father, you the most humble and notable man I have ever met and thank you
for all you have been and continue to be.
Thirdly, I would like to specifically thank my grandmothers, both maternal (Hendrina Pangeiko
Haufiku) and paternal (Peindje Kondjeni) who are ageing, both at 97 for their continuing and
consistent education on the importance of academic development, appreciation of humanity
(Ubuntu), maintenance of discipline, hardwork and love and respect for others. Grandmum,
8

Hendrina your coaching on sexual matters have also not gone onto deaf ears. May the two of
you live longer and God bless.
Fifthly, I would like to thank Madam Cabinet (Wanwa) for her support, love and care during the
carrying out of research work relating to this dissertation and beyond. Nghelo, you are indeed
the chosen one, may the good Lord bless you.
Lastly, I would like to distinctively thank my family, with my aunt, Maano Neliwa topping the list,
for her motherly love and role that she performed without failing since the passing of my
biological mother. Other darling family members are: Fanuel, Elise, Aune, Frieda, Kandali,
Ndina, Freddy, Frans, Kaxumba, Max, Hilya, Fessy, Mellissa and others too many to mention.
Much thanks guys for all the supports and for being there when I needed you.

DECLARATION
This is Dissertation is compiled in partial fulfilment of the requirements for the degree of
Bachelor (Honours) of Law at the University of Namibia (UNAM) in Windhoek, Namibia. The
author is declaring that this dissertation is his own original work and where someone elses work
has been used, it has been duly acknowledged as such. Furthermore, the author declares that
this work has never been submitted to or at any other university or elsewhere for a degree
purpose. Therefore, the views and opinions expressed hereunder are that of the author and not
necessarily those of the University of Namibia.
As such, no reproduction of this dissertation in part or whole shall be permissible, save where
the necessary authority has been granted by the University of Namibia and/or the author.

Enquiries: Signature..Date

University of Namibia
P/Bag 13301
Mandume Ndemufayo Avenue
Pioneerspark
Windhoek
Namibia

10

CHAPTER 1
1.1 INTRODUCTION
The right to administrative Justice is one of the fundamental and inalienable rights firmly
entrenched and protected under the bill of rights in a number of states, including Namibia. In
countries whose Bill of Rights entrench the rights to administrative justice as is widely known
and generally accepted, such right belongs, without presumption or privileged exceptions to all
citizens and residents never mind the modalities of enforcement which vary depending on the
jurisdictions of individual states. In Namibia some of the obstacles oftenly encountered in the
process of adhering to the Principles of Administrative Justice have been identified as
bureaucracy in the systems entrusted with the administration of justice, prolonged proceedings,
high costs associated with adherence or pursuit for adherence, complexity of technical rules,
locus standi, and illiteracy.
This study therefore, seeks to explore the prospects of improving or inducing the improvement
of adherence to the principles of Administrative justice among the Administrative Bodies or
institutions in Namibia. The study will further give a full, but yet comprehensive analysis or
evaluation of the current trend of practice among Administrative Bodies, with special emphasis
on State Owned Enterprises (SOE). Because the list of SOE is endless, the study will only
confine itself to a selected few State Owned Enterprises, namely TransNamib, Road
Construction Company (RCC), Road Fund Administration (RFA) and Social Security
Commission (SCC). The legal common denominator that the above Administrative Bodies have
between them is the fact that they are all creatures of statutes and each had faced legal
challenge(s) as to the validity of an administrative decision(s) it had taken at one point or the
other in the past.

It is the manners in which those decisions were taken, the authority of

officials or bodies that have taken the decisions, the procedures that were followed to take the
decisions and the ways that the challenges were handled within an administrative context,
which this study will be concerned with.
Finally, the study will draw a conclusion on how the practice in relation to Adherence to the
Principles of Administrative Justice is like among the Administrative Bodies in Namibia.
Furthermore, study will clearly suggests that if mechanisms such as judicial reforms,
11

development of sound policies and establishment of alternative dispute resolution mechanisms


are encouraged and properly utilized, with less emphasis on technical rules, but without
promising the procedures, this will strengthen the pursuit for adherence to the Principles of
Administrative Justice. Enactment of supporting and complementing Acts to the provisions of
Article 18 of the Namibian Constitution may equally lead to effective, coherent and meaningful
adherence to the principles concerned herein.

1.2 RESEARCH PROBLEMS/STATEMENT


Namibia is one of the states that have classified the right to administrative justice amongst its
ius cogen or the kind of rights that enjoy the supremacy of the constitutional protection. The
outright entrenchment or incorporation of such a right into the Namibian Constitution is a clear
testimony of the case in issue. The Namibian Constitution in terms of Article 18 imposes an
obligation upon administrative functionaries (bodies and officials) to fairly and reasonably and in
accordance with the legal requirements as emanating from appropriate legislations and/ or
common Law position, when performing their respective official duties. Correspondingly, the
same Article renders meaningful right to any person feel aggrieved and /or violated by the deeds
of the administrative functionaries to seek redress from a competent Court and or Tribunal.
In keeping with the reading of aforementioned Article, it is evident that the test for validity of any
claim for redress is for the claimant/plaintiff to prove that the alleged administrative
action/decision was not fair and reasonable under the normal cause of events and after benchmarking the same with the existing and applicable statues and /or common law. Furthermore,
the claimant must prove that s/he suffered prejudice as a result of an irregular and unlawful
administrative decision by an administrative body or official.
However, despite this fundamental right being essentially guaranteed in the Namibian
Constitution, the adherence to the Principles of Administrative Justice among the Administrative
Bodies in Namibia remains wanting. Notably there are no sufficient literatures speaking on the
importance of the right to Administrative Justice and as to the reason why Administrative Bodies
should ensure the guaranteeing of such a right thereof. Also the Namibian Constitution is not
placing an extensive emphasis on what this kind of right entails and/or providing for a creation of
a complimenting Act on the general enforcement of the right to administrative justice, as it is the
case in South Africa and Zimbabwe. Presumably, due to the lack of the general enforcement
Act, any pursuit for administrative justice proves degrees of difficulty and costful end. It follows
12

therefore, that a proper study is needed in order to ascertain the exact contributing factors to
non-adherence to the Principles of Administrative Justice in Namibia. Notably, there is a number
of know substantive and procedural obstacles or impediments that do not only inhibit the actual
quest for administrative justice, but also prevent Administrative Bodies in ensuring the
necessary adherence on their parties. Alternatively, maybe there is a need to for an Act of
Parliament compelling Administrative Bodies to develop internal policies setting out to precision
how an individual associated with them can go about to get a complete and satisfactory
realization of the fundamental right relating to administrative justice. But let this piece not
assume too much, as possible solutions may be in stock towards the end of this study.
Thus, this study strives to explore, identify and ultimately analyze the main factors that may be
contributing to the non-adherence state in the Administrative Bodies to the Principles of
Administrative Justice. A further assessment of the impact of non-adherence to the Principles of
Administrative Justice on the governance of State Owned Enterprises (SOE) in Namibia will be
made with an intention of providing possible guidance on improvements. Indisputably, good
governance in State Owned Enterprises is only possible once governing boards of those
institutions attach fairness and reasonableness to their decision-making processes by
complying with the principles of corporate governance and the provisions of Article 18 of the
Namibian Constitution1 to say the least. Effectively, processes should not only end with the
observation of the provisions of Article 18, but should as well translate onto deliberate actions by
public institutions and administrative bodies availing facilities and avenues to make
administrative justice progressively realizable and accessible at all material times.
Evidently, corruption and maladministration have become the central problems facing most of
the African countries or the global village in general. Citizens of the world have suffered and
some continue to suffer at the hand of poor and weak governance. Therefore, by far extension
this study will analyse and evaluate the effectiveness of adherence to the Principles of
Administrative Justice and how this can be a vehicle towards good governance of Administrative
Bodies (State Owned Enterprises), as body corporates in Namibia. The study intends to
demonstrate how the abuse of administrative discretion and non-adherence to the guiding
principles of Administrative Justice in Administrative Bodies and their boards of directors give
birth to pathetic governance, maladministration, corruption and lack of accountability to say the
least.
1 Article 18 of the Namibian Constitution
13

1.3 RESEARCH QUESTION


1.3.1 Main Research Question
1.3.1.1 To what extent are the Administrative Bodies or State Owned Enterprises Adhering to
the Principles of Administrative Justice in Namibia?
1.3.2 Subsidiary Research Question

1.3.2.1 What national legal instruments are in place to ensure Adherence to the Principle of
Administrative Justice in Namibia?
1.3.2.2 What value will a General Enforcement Administrative Act add in compelling Adherence
to the Principles of Administrative Justice in Namibia?
1.3.2.3 How do State Owned Enterprises adhere to the Principles of Administrative Justice in
their decision-making?

1.4 METHODOLOGY
This study will drew its data and information from document review, such Textbooks, Articles
(Newspapers and Journals), Internet, et c, qualifying it as a quantitative research thereof.

1.5 CONCLUSION
It flows that this first chapter brings to the fore the introduction to the study, its research problem
and the question that ought to be answered while clearly outlining the methodology to be
employed in the collection of data. The chapter gives a full and compressive scope of the
objectives of the study, which as earlier mentioned, is to explore, identify and ultimately analyze
the major issues/factors that may be restricting all endeavours aiming at harnessing the
Adherence to the Principles of Administrative Justice and how the same impact of the state of
governance among the State Owned Enterprises in Namibia. In essence, the chapter looks at

14

the concept of Adherence to Administrative Justice as an element of governance and whether it


is of value addition to the process of administration of public affairs thereof.
In the subsequent chapters, a detailed literature review will be given (chapter 2), full scope of
Legal Frame (chapter 3), enlistment of Findings (chapter 4) while chapter 5 will contain Analysis
or evaluation of the Findings, Conclusion and Comprehensive Recommendations.

15

CHAPTER 2: LITERATURE REVIEW


2.1 INTRODUCTION
This dedicated section of the dissertation will bring forth the comparative analysis of various
studies by numerous proceeding authors and/or scholars on the same topic and/or related
subjects. The section intends to distinctively underscore the disparities as much as it would
outline the similarities that may exist between the studies concerned, reviewed and considered.
The review of the existing studies and researched materials on the topic carries a significant
importance to the jurisprudential market of administrative law as a specialized branch of public
law, in that it will help in identifying the vacuum or gap of reasoning that continues to exist within
this highly sought after branch of law. Furthermore, the review would serves as a guide to the
researcher in specifically focusing on the areas of administrative law that are practically deficient
of the researched materials and/or reasoned contents. Through literature review, the researcher
will be able to remain vigilantly attentive to be able to avoid repetition and academic
overlapping, in pursuit of yet to be discovered version of reasoning.
This study does not promise to provide a fit-all solution to the challenges facing the branch of
administrative law, nor is it without rough surface either, but if one thing, it will stir up the debate
onto a different direction as will be comprehensively contained in the recommendations towards
the end, in the bid to improve the operation of the aspect of Administrative Law in Namibia.
Writing on the importance of literature review, Nakuta, J & Chipepera, F, noted that divergent
views are necessary to provide an overview of the nexus where the rule of law intersects with
the administration of justice and with the protection and promotion of human rights in general,
and in particular of the rights of those most vulnerable within our society, such as women and
children2. By extension, the two scholars expressed that long-term sustainable economic and
social development is dependent on democratic governance and the rule of law, which provides

2 Nakuta, J & Chipepera, F.(2011). The Justice Sector and the Rule of Law in Namibia:
Management, Personnel and Access. Windhoek. Namibia Institute for Democracy,1.
16

the framework for effective regulation of the interactions and co-existence of citizens within a
democracy3.

2.2 DEFINITION

According to Brian Thompson administrative law is that law relating to public administration. It
concerns itself with the way government carries out the tasks given to it and this includes the
nature of powers and duties as well as the means by which they may be controlled 4. Numerous
other scholars have observed that administrative law is really a control of administration and the
protection of individual liberty; with due focus being the case law of judicial review of
administrative action5. This is sometime referred to as red-light theory of administrative law 6.
Essentially, people have interests not only in the lawful administration, equally in an effective
and efficient administration, thus on one hand administrative law does worry with enabling
administrators to conduct government affairs. This is called green-light theory 7. In keeping with
the above, it flows smoothly that for someone to fully understand what administrative law is, one
needs to appreciate what an administrator does.
On a different academic page, Neil Hawke and Neil Paroworth collectively

stated that

Administrative Law is that branch of law which deals with the legal control of government and
related administrative powers. Alternatively, the duo observed that the purpose of Administrative
Law is to provide a legal control in relation to the exercise of administrative agencies for all sort
of different purposes. It follows that a significant emphasis of the subject is the control exercised

3 Nakuta, J & Chipepera, F.(). The Justice Sector and the Rule of Law in Namibia Management,
Personnel and Access
4 Thompson, B. 1993. Textbook on Constitutional & Administrative Law. Hampshire: Gosport,
pp. 351.
5 Thompson et al. (1993:351).
6 Harlow & Rawlings.1984.
7 Harlow & Rawlings. Ibid.
17

by the High Court over the use of statutory powers by a wide of administrative agencies 8. In
supervising the fulfillment of governmental and related administrative functions by these
agencies, the sole concern of the High Court is to ensure that they exercise their functions
within the limits of the statutory powers, that is intra vires9. The above is often achieved through
the application of a common law doctrine called ultra vires.
Generally, if it is found that an administrative agency has acted outside or beyond its statutory
powers, any ensuing decision or other acts may be declared as ultra vires, hence null and avoid
ab initio, so that in law it has never existed. Accordingly the supervision and control of the
exercise of statutory powers by the High Court is rightly known as judicial review, which is an
important process of rule of law. Furthermore, Hawke, N and Papworth, N, submitted that
control is manifested both through the law, be it statute or common law and through extra-legal
devices such as budgetary control, although control in itself may be too restrictive 10. In operation
administrative law should be capable of facilitating action both on the part of administrative
agencies such as local authorities and on the part of the court or tribunal granting remedies to
the irregular and unlawful administrative action11.

2.3 RULE OF LAW AS IT RELATES TO ADMINISTRATIVE JUSTICE


The doctrine of rules of law, so as that of constitutionalism is closely related to the subject of
Administrative Law and its derivative concept of Administrative justice. Thus, the concept of
Administrative Justice cannot be discussed in isolation or on its own independent terms without
persuasive interrogation of the doctrine of rules of law. Both rules of law and constitutionalism
deal with the limits on the exercise of the power of government or alternatively, the doctrine of
rule of law deals with governance according to law, and not according to momentary whims and
caprices of government, and the protection of the fundamental rights of the individual 12. S. K.

8Hawke, N & Paroworth, N. 1996. Introduction to Administrative Law. Greta Britain: Bidles Ltd,
pp. 1.
9Hawke & Paroworth (1996:1).
10 Hawke & Paroworth. ibid.
11 Hawke & Paroworth. ibid.
18

Amooo, added that the doctrine may also underscores the need of the workable legal and
political system that guarantees the achievement of the objectives of same.
On the other hand, one of the globally celebrated academics and well-known proponents of the
Rule of Law, Dicey postulates that Rule of Law requires the recognition of the predominance of
the regular law (as opposed to arbitrary or wide discretionary powers), equality before the law
and that the British constitution is the product of the ordinary law. He further noted that Rule of
Law requires that there should be government according to law and an avoidance of arbitrary
action13. According to Dicey the doctrines of Rule of Law and Constitutionalism are related
concepts because they both deal with the limits on the exercise of the powers of government.
Diceys Rule of Law depends on the capacity of the court to control abuses of administrative
power. A. V. Dicey14 attributes three meanings to the concept of Rule of Law, with the first part of
his definition emphasizes the central feature of administrative law as a means of limiting the
scope of statutory powers through the doctrine of ultra vires15(this is to say that no man is
punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. In this sense the
rule of law is contrasted with every system of government based on the exercise by persons in
authority of wide, arbitrary or discretionary powers of constraint).
It is Diceys second definition of the Rule of Law that concerns the necessity of equality before
the law16(under this postulation, Rule of Law is regarded as a characteristic of the country, not
only that no man is above the law, but that every man, whatever his rank or condition, is subject
to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals). On
the third part of the definition, Dicey classified the Constitution as part of ordinary law. (The
above would later be qualified in the light of the view that the Constitution is pervaded by the
12 Amoo,S,K. 2008. An introduction to Namibian Law: Materials and Cases. Windhoek:
Macmillan, pp.323.
13 Dicey, A, V. 1885. The Law of the Constitution. Hawke, N & Paroworth, N. 1996. Introduction
to Administrative Law. Greta Britain: Bidles, 2.
14 Sikunda v Government of the Republic of Namibia 2001 (3) NR (HC) 182
15 Hawke & Paroworth (1996:2).
16Hawke & Paroworth (1996:3).
19

rule of law on the ground that the general principles of the Constitution (e.g the right to personal
liberty or right of public meeting) are result of judicial decisions determining the rights of private
persons in particular cases brought before the courts; whereas under many foreign Constitution
the security given to the rights of individuals results or appears to result, from the general
principles of the Constitution).
This last formulation emphasizes the importance of the courts role in protecting individual liberty
through their ability to interpret and apply the ordinary law. Put differently, where the law is not
being changed by Parliament, the courts are the final arbiters of individual rights. Such rights
are usually referred to as civil rights and very much the central concern of the Constitutional
Law, is the test to true ability of the law to control government powers. Administrative Law on the
other hand, burdens itself with the concern over the ability of the law to control and limit the
powers vested in the administrative bodies and officials and/or as the case may be. This, for all
intents speaks to the overlapping of the two separate branches of law.
Convincingly, Diceys exposition does and will always continue to serve as a departure point in
Namibia, as far as discourses on the concept of Rule of Law are concerned. His definition will
serve as a source of general principles, which are preconditions and prerequisites of fair trial
and punishment, equality before the law and the provision and enforcement of human rights 17.
Furthermore, by way of extension the

Neils expounded that although there is a supreme,

sovereign Parliament which is capable of legislating very extensive laws which may appear to
confer arbitrary or very wide discretionary powers on an administrative agency, the High Court,
ever mindful of the Rule of Law, will be reluctant to see some powers as being without limit18.

This exposition had enjoyed support in the case of Customs and Excise Commissioners v Cure
and Deeley Ltd19, in which the concerned commissioner was empowered to make regulations
providing for any matter for which provision appears to them to be necessary for the purpose of
giving effect to the provisions of the Finance Act 2 of 1940 20. The presiding officer in the above
case, Sachs J rejected that the words necessarily make the authority can exercise such powers
17 Amoo,S,K. (2008:324).
18 Hawke & Paroworth (1996:3).
19 Customs and Excise Commissioners v Cure and Deeley Ltd 1961.
20

as it may have. Undoubtedly, this case represents an important page in the development of the
doctrine of ultra vires as a means of controlling the statutory powers of administrative bodies.
However, notwithstanding, the importance of such a case, Parliament continues to legislate a
number of very wide discretionary powers which and this poses a grave threat to Diceys view of
Rule of Law.

2.4 GROUNDS FOR CHALLENGES TO ADMINISTRATIVE ACTIONS

It is beyond doubt that various authors have developed a wide and intensive interest in the area
of administrative law and its derivative of right to administrative justice. One of such renown
academic is Prof, Sam Amoo, who explicated that under common law principles of
administrative law, the exercise of administrative discretion is subject to judicial review and
extra-judicial adjudication21. This principle enjoins administrative officials and bodies to comply
with certain legal rules in the exercise of administrative discretion granted by law 22. Under the
principles of judicial review of administrative actions, an individual aggrieved by the exercise of
administration discretion or administration action has the right to judicial redress. This makes
the right justiciable under the common law: the courts have the jurisdiction to review that
administrative decision or action and makes an appropriate order.
The above position is evident in the case of Sikunda v Government of the Republic of
Namibia23, in which the Court set aside the deportation order issued under the hand of the
Minister of Home Affairs on the ground that the Security Commission was not properly
constituted when it purported to consider the Ministers request and made its recommendation.
In Namibia, this common law right to judicial review and extra-judicial adjudication granted to the
individual has been elevated to a fundamental human right protected by the constitution in terms
of Article 1824.It is the constitutional provisions, coupled by common law principles that make it
20 British Finance Act 2 of 1940.
21 Amoo,S,K. (2008:318).
22(ibid.:318)
23 Sikunda v Government of the Republic of Namibia 2001 (3) NR (HC) 181.
24 Article 18 of the Namibian Constitution.
21

possible for any person aggrieved by the exercise of discretion to bring an action for the review
of the decision or administrative action for any of the remedies, certiorari, prohibition or interdict,
mandamus, habeas corpus and damages25.
The principal characteristic of most administrative powers is that they arise from and can be
used by virtue of legislation26. Generally courts deal with the legality of administrative actions
through and/or during the judicial review. Accordingly, administrative acts may be challenged on
the basis that there is no authority under the law. This limitation means that there can be no
judicial interference with the merits of administrative action, a suggestion that Diceys reliance
on judicial control as a cornerstone of the Rule of Law is an over-emphasis on what the courts
can achieve in examining administrative action27. The Court will only review and set aside an
administrative decision where the Administrative Body has failed to apply its mind properly
(Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another) 28. Where
an Administrative Body is found to have thoroughly applied its mind on the matter, before taking
an administrative decision, Court would not substitute its mind with that of the Administrative
organ having initially been presented with the matter, and so decided. Furthermore, not all
irregular administrative decisions will be set aside by the Court when approached to so (Centani
Investment CC v Namibian Ports Authority (NAMPORT) and Another)29.
The courts may however be amenable to some creativity encompassed within the concept of
public interest. This view has been strongly expressed in the case of R v Registrar General, ex
p Smith, where the Court of Appeal upheld the Registrar Generals refusal to produce a birth
certificate on the ground that it might be used to commit serious crime30.

25 Amoo,S,K. (2008:323).
26 Hawke & Paroworth (1996:97).
27 Hawke & Paroworth (1996:9).
28 1972 (3) SA 726 (A) at 735F G.
29 (A 247/2011) [2013] NAHCMD 235.
30 R v Registrar General, ex p Smith (1991).
22

On this score it warrants narrating the material differences between Appeal and Review as two
dominant methods used in seeking redresses against administrative mishappens. Under
appeal, the appellant is claiming that the decision so arrived at by the court a quo is wrong and
completely incorrect and the appellate jurisdiction should change decision. The appellate
authority if persuaded of the merits of the case, may allow the appeal and so it substitute its
views for that of the court of first instance 31. With review, the court does not concern itself with
the merit of the case (such as whether the decision was right or wrong), but whether it is lawful
or unlawful32. In the case of Immanuel v. Minister of Home affairs and others33 the court held that
judicial review has two main components, namely:

Firstly, its concerns itself with the discharging of statutory duties by decision makers and
if a functionary fails to carry out such duty imposed by law it can be compelled by the
High court to carry it out.

Secondly, it concerns itself with ensuring that an administrative decision is lawful and
that is when it is exercised within the parameters of well-defined limits.

2.5 DISCRETIONARY POWERS IN EXERCISING ADMINISTRATIVE ACTIONS

Article 1834 of the Namibian Constitution provides that administrative bodies and administrative
officials shall act fairly and reasonably and comply with the requirements imposed upon such
bodies and officials by common law and any relevant legislation. Persons aggrieved by the
exercise of such acts and decisions shall have the right to seek redress before a competent
court or tribunal. This article comes under the entrenched provision of the Bill of Rights and
therefore under the Namibian legal system, the jurisdiction of the courts to review administrative
discretion comes under the regime and protection of constitution. Judiciary review of
31Thompson et al. (1993:398).
32 (Ibid.:398)
33 Immanuel v. Minister of Home affairs and others 2006 (2) NR 687 (H.C) at par. 53
34 Article 18 of the Namibian Constitution
23

administrative action is therefore one of the constitutional mechanisms meant to protect the
rights of the individual and prevent the potential abuse of discretionary power.
The nature of present day public administration is such that a certain degree of administration
discretion is indispensable for the effective and expeditious day to day running of government 35.
It promotes flexibility by individualizing the treatments of problems and permits the adjustment of
public power to varying circumstances in order to avoid the undesirable restrain result from the
legit applications of general standards and requirements of bureaucracy of public administration.
An administrative body or official is said to have discretion in a matter when that official or body
has the power or liberty to choose between alternative courses of action and the correctness or
incorrectness of the decision cannot be demonstrated. Discretion so referred to in this context is
as defined by J M Evans, to be the power to make a choice between alternative courses of
action. If only one course can lawfully be adopted, the decision taken is not the exercise of
discretion but the performance of the duty. To say that somebody has discretion presupposes
that there is no uniquely right answer to his problem36.
Discretion maybe exercised in an administrative authority either by the constitution itself or a
statute and incase of the latter the, the discretionary power must be within constitutionally
permissible limits. There is no discretion vested by virtue of common law, but since it is the law
courts that are the ultimate interpreters of the statute, the scope of the discretionary power is
determined by the law courts. It is evident from the very nature of administrative discretion that it
is potentially susceptible to abuse. As a general principle however discretionary power is not
susceptible to external control because on the legislature has vested the necessary discretion
power in the administrator it has the little control over the misuse and abuse of same.
judicial control which is granted by Article 18

37

Even

is limited to the extent that an administrator may

act within discretionary power and in all essence judicial power is virtually non-existent.

35 Thompson et al. (1993:398)


36 Evans, J.M. 1980. De Smiths Judiciary Review of Administration Actions. London: Stevens
& Sons Ltd
37 Article 18 of the Namibian Constitution.
24

To this end an opposition to the exercise of discretion may be premised on grounds


contemplated under Article 1838. In widely published and referenced case of Chairperson of the
Immigration Selection Board v Frank & Others39, C. J, Strydom held the following in relation to
the powers given to the officials of the Ministry of Home Affairs to grant permanent residence
permits there is also no authority for the principle that a foreign national cannot claim
permanent residence as of rights and that the exclusive discretion as to whether it will allow
such nationals in its territory. However as far as Namibia is concerned this principle is subject to
provisions of Article 18 of the Constitution and as long as the board acts fairly and reasonably
and in accordance with a fair procedure there is no basis for interference by a court of law40..

In view of the above and on a further extended analysis, Collin Parker held that the applications
of provisions of Article 18 is limited to the acts by the administrative bodies and officials 41 who
have been exhaustively defined to include Executive, regional and local government, the public
service, the parastatals and employees42 thereof. The provisions of the article enjoin them, inter
alia, to act fairly and reasonably and comply with requirements imposed upon such bodies and
officials by common law. For the purpose of validity an administrative action needs to pass the
test of fairness and reasonableness. In the English case of Board of Education v Rice43 the
concept of fairness was interpreted to mean that the interpreter must comply with the principles
of the natural justice. However, with regard to procedural fairness specifically, it was held in the
case of Minister of Public Works & Others v Kyalami Ridge Environmental Association &

38 Namibian Constitution. Ibid.


39 Chairperson of the Immigration Selection Board v Frank & Others 2001 NR107 (SC)
40 Chairperson of the Immigration Selection Board. ibid
41 Parker, C Parker. 1991. The Administrative Justice Provision of the Constitution of the
Republic of Namibia: a Constitutional Protection of Judicial Review and Tribunal Adjudication
under Administrative Law. Comparative and International Law Journal of Southern Africa. 24.
42 Parker (1991).
43 Board of Education v Rice, 1911 AC. 179
25

Another44, that procedural fairness depends in each case upon the balancing of various relevant
factors, including the nature of the decision, the rights affected by it, the circumstances in
which it is made and the consequences resulting from it
In the Namibian case of chairperson of the Immigration Selection Board v Frank & Another45
The court held that the article does not draw a distinction between quasijudicial and
administrative acts and administrative justice whether quasi-judicial and administrative in nature
requires not only reasonable and fair decisions, based on reasonable grounds, but inherent in
that requirement are fair procedures which are transparent. The old common law rule that the
requirements of the principle of natural justice are to be applied where an administrator acts in
judicial or quasi-judicial capacity has been placed by this constitutional requirement which
enjoins administrators in the exercise of their discretion to apply the principles of natural
justice46. Chief Justice Strydom also alluded in his judgment to the requirement that the
principles of natural justice must be applied under the principle of legitimate expectation 47. It can
be inferred from his judgment that the concept is part of the common law of Namibia. The
concept of legitimate expectation, which was developed in order to mitigate the harsh effects of
the categorization of administrative acts, means that:
The rule of natural justice are extended to cases where the affected party has no vested right,
but does have a potential right or legitimate expectation that his application will succeed, and
has therefore gained a right to be heard by virtue of his expectation.48

44 Minister of Public Works & Others v Kyalami Ridge Environmental Association & Another
[2001] ZACC 19; 2001 (3) SA 1151 (CC) at 1184 D
45 Chairperson of the Immigration Selection Board v Frank & Another 2001 NR 107 (SC).
46 Amoo,S,K. 2008. An introduction to Namibian Law Materials and Cases. Windhoek:
Macmillan.
47 Immigration Selection Board case 2001 NR 107 (SC).
48 Hosten, W.J, Edwards, A.B, Bosman, F & Church, J. 1997. op.cit. p. 1062-3. See also
Administrator of Transvaal v Traub 1989 4 SA 731.
26

The common laws principles of natural justice evolve around the concept of audi alteram
partem and the nemo iudex causa rule respectively49. The former imposes on the administrator
the duty to grant a fair hearing in the exercise of administrative discretion, and accordingly this
was an issue of address in the frank case50, when Chief Justice held that case that the rule
embodies various principles, the application of which is flexible depending on the circumstances
of each case and the statutory requirements for the exercise of a particular discretion. For the
analysis of the Namibian jurisprudence, Strydom laid down the following requirements in Frank
case51 as some of the demands of the audi alteram partem rule52.
a)

The board or the administrator need not in each instance give an


application an oral hearing, but may give an applicant an opportunity to
deal with matter in writing.

b)

If a board or administrator acts on information they are privy to or


information given to them by the Chief of Immigration and if such
information is potentially prejudicial to an applicant, it must be
communicated to him or her in order to enable such person to deal
therewith and to rebut it if possible. However, where an applicant should
reasonably have foreseen that prejudicial information or facts would
reach the appellant (board or administrative official), he or she is duty
bound to disclose such information.

c)

It is implicit in the provisions of Art. 18 of the Constitution that an


administrative organs and officials to act fairly and reasonably. Whether
these requirements were complied with can, more often than not, only be

49 Amoo et al. (2008:320)


50 Immigration Selection Board case 2001 NR 107 (SC).
51 Immigration Selection Board 2001 NR 107 (SC)
52 Amoo et al. (2008:321).
27

determined once reasons have been provided. This also bears relation to
the specific right accorded by Art. 18 to persons to seek redress before a
competent Court or Tribunal where they are aggrieved by the exercise of
such acts or decisions.
The second rule emanating from natural justice is known as nemo judex in causa sua and has
been interpreted to mean that a person cannot be a judge in his own cause. The rule has been
designed to guard against bias and prevent potential prejudice against parties so seeking
remedies. There are however restrictions on the application of the rule in relation to the exercise
of administrative power in the sense that53:
In modern public administration there are many instances where the administrative body or
administrative official may be both the decision-maker and the judge in the same matter. What
the natural justice rule against bias seeks to prevent is personal bias and not, it would appear,
ministerial or agency bias where the official is enforcing policies of his ministry, for instance.54
During judicial review, where the principle of nemo judex causa sua is at issue, for the Court to
set aside the decision of an administrator on grounds of bias, substantial or real bias must be
proven55. Pecuniary interests and other interests in the results of decision have been held to
constitute bias that will justify the nullification of the decision of an administrator on grounds of
bias56. The non-compliance with the principles of natural justice will for all intents justify the
intervention of the courts with the concerned administrative act by nullifying and setting aside
such a decision/act. However, when the court is nullifying and set aside the irregular decision, it
must bear in mind the holding of C. J. Strydom in Frank case 57 to the effect that as a general
principle courts are not permitted to substitute their decisions for the decision of the
administrator because the discretion is granted to the administrator and to do otherwise will
amount to usurpation of the power of the administrator and a breach of the principles of
53 Amoo et al. (2008:321).
54 Parker, C. (op cit).
55 Amoo et al. (2008:321)
56 Metropolitan Properties Co (FGC) Ltd v Lannon 1969 1 QB 577.
57 Immigration Selection Board case 2001 NR 107 (SC)
28

separation of powers. However, is was held in the case of W.C. Greyling & Erasmus (Pty) Ltd v
Johannesburg Local Road Transportation Board and Others that nothing preclude the court
from exercising its discretion where there are exceptional circumstances 58. Such instances
would occur where a court has exercised its jurisdiction not to refer a matter back and this may
include cases where there were long periods of delay, where the applicant would suffer
prejudice or where it would be grossly unfair59, to remit the matter back to administrative
platform.
By extension, Article 18 also requires that administrative bodies and officials act reasonably and
According to Parker, this requirement compared with the requirements of natural justice deals
with the substance of the decision itself as explained below60;
Natural justice and fairness are concerned with procedural constraints on administrative action.
But the requirement that an administrative body or an administrative official should act
reasonably, is concerned with the substance of the discretion or the act itself. That is to say, the
courts reviewing an administrative action should go beyond procedural requirements and
examine the nature of the decision or act even where the administrative authority purportedly
acted in pursuance of a discretionary power.
According to Prof, Sam Amoo, the purpose for the purpose of the above requirement is for the
courts to be vested with jurisdiction to ascertain whether the exercise of the discretion was
tainted with the abuse of power. Amoo further stated that the areas of abuse of power may
include bad faith, ulterior purpose, and failure on the part of repository of the discretion to apply
his mind to the question before him or to take into account extraneous considerations 61. The
doctrine of ultra vires was extensively addressed in the Zambian case of Chilufya v City Council of

58 W.C. Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road Transportation Board and
Others 1982 (4) SA 427.
59 See Greyling (ibid). Dawlaan Beleggengs (Edms) BPK. v Johannesburg Stock Exchange
(Edms) Bpk and Others 1983 (3) SA 344 (WLD) at 369G-H and Local Road Transportation
Board and Another v Durban City Council and Another 1965 (1) SA 586 (AD)at 598 d-599.
60 Parker, C. (op cit)
61 Amoo et al. (2008:318).
29

Kitwe62 where it was held that a city council which terminates a traders license to occupy a

market stall by resolution influenced by political considerations has acted unreasonably, unfairly
and contrary to the principles of natural justice and therefore, ultra vires.
The other requirement of Article 1863 is that administrative bodies and administrative officials
must comply with the requirements imposed by common law and any relevant legislation and
relates to the application of the principles of natural justice in the exercise of discretion as stated
along. The demands of the latter requirement accord with the general objectives of the doctrine
of constitutionalism that the powers of government should be controlled in order to prevent
abuse and arbitrariness, and even more so in the exercise of administrative discretion on
account of the very nature of discretion64. It is has thus, become a common and general practice
for the constitution or particular statute to impose limitations to the extent that non-compliance
will be a subject of judicial review and this can potentially lead to a declaration by the courts that
the decision in question is ultra vires, therefore null and void. The evoking of this exposition was
a center stage in the case of Sikunda v Government of Republic of Namibia65. In the case of the
Act of Parliament being the one granting discretionary power, such Act must be consistent with
the provisions of the Constitution, especially Chapter 3 thereof66. .

2.6 INTERFACE OF ADMINISTRATIVE JUSTICE AND GOVERNANCE


In a combined authored piece, Juwayriya Badamasiuy and Muhammad Bello had observed that
Administrative justice is generally seen as a component of good governance. They two
academic further expounded that while the former has developed through the Common Law, the
latter is a relatively just emerging67. They went further to propose the institutionalisation of
democratic values of checks and balance, oppenness, transperancy and accountability in

62 Chilufya v City of Kitwe 1967 ZR 115 at 116


63 Article 18 of the Namibian Constiution
64 Amoo et al. (2008:322).
65 Sikunda v Government of Republic of Namibi.2001 (3) NR (HC) 181
66 Amoo et al. (2008:323).
30

decision-taking such that official discretion may be reasonably constrained without jeopardising
administrative efficiency68.
If Administrative Justice is a component of good governance, the opposite is true such that
when there is non-adherence, there is poor administration and as a result good governance is
undermined.

2.8 CONCLUSION
This Chapter looked at what other authors around the world have written or said about the
subject of Administrative Justice. It has gone an extra mile, in identifying the case law that either
support or disagree with what various authors have written. The next Chapter will give an outline
of legal basis in Namibia providing for the Right to Administrative Justice, both at an
international, regional and national levels.

67 Juwayriya B, & Muhammad B.(2013). An Appraisal of Administrative Justice and


Good Governance in Nigeria. Journal of Politics and Law 6. No. 2(2013.): 1.
68 Juwayriya B, & Muhammad B.(2013:1).
31

CHAPTER 3: LEGAL FRAMEWORK


3.1 INTRODUCTION
A legal framework may be defined as a structure, foundation or a ground for supporting or
enclosing something else, especially a skeletal support used as a basis for something to be or
being constructed69. Alternatively, it denotes a legal doctrine, which constitutes a set of rules,
procedural steps, or test, often established through precedent in the common law, through
which judgments can be determined in a given legal case 70. A doctrine comes about when a
judge makes a ruling where a process is outlined and applied, and allows for it to be equally
applied to like cases or when enough judges make use of the process so that it becomes
established as the de facto method of deciding like situations71.
Generally, having a legal framework in place presents a sizeable benefit to the legal system or
jurisdiction, such as the provision of legal certainty coupled with ensurance of compliance.
Furthermore, it helps the claimants of specific legal rights concerned to become fully aware
when violations to such protected rights are taking place. It also it helps the claimants to
become knowledgeable on how to demand the enforcement following the violations thereof.
Thus, it is normally difficult for a specific legal right to be progressively realized or clearly be
69 MacMillan Dictionary
70 http://en.wikipedia.org/wiki/legal; last accessed on 14 [14 September 2013]
71 Ibid.
32

enforced the moment its source(s) is or are uncertain and/or wanting. It suffices therefore to
record that a realizable and enforceable legal right is the one that is soundly and validly defined,
making it free from ambiguity and absurdity of any kind. For the purpose of this study, a legal
framework should therefore be regarded as the source or foundation upon which the claim for
the Right of Administrative Justice can be made, based or ascertained.

3.2 LEGAL INSTRUMENTS


Hereunder, the study will explore the types of legal instruments available at international,
regional and national level that support the entitlement to the Right of Administrative Justice and
the protection thereto.

3.2.1 Available at International Level


This study is admitting from the onset, that it could not find specific international legal
instruments dealing with the Right to Administrative Justice in specific terms. However, there a
number of international legal instruments under whose clauses or provisions the Right to
Administrative Justice is implied. Some of these legal tools with their specific provisions are as
follow72:

Universal Declaration of Human Rights


Emphasizing that the Universal Declaration of Human Rights, which constitutes a common
standard of achievement for all peoples and all nations, is the source of inspiration and has
been the basis for the United Nations in making advances in standard setting as contained in
the existing international human rights instruments, in particular the International Covenant on
Civil and Political Rights and the International Covenant on Economic, Social and Cultural
Rights.

72 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Prosecutors and Lawyers
33

Article 7 of the Universal Declaration stipulates that: all are equal before the law and are
entitled without any discrimination to equal protection of the law. All are entitled to equal
protection against any discrimination in violation of this Declaration and against any incitement
to such discrimination73.

International Covenant on Civil and Political Rights

Article 4(1) of the International Covenant on Civil and Political Rights provides that In time of
public emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from
their obligations under the present Covenant to the extent strictly required by the exigencies of
the situation, provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of race, colour,
sex, language, religion or social origin74.
Article 9(1) of the same Covenant further provides that everyone has the right to liberty and
security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance with such procedure as are
established by law75.

Article 26 of the Covenant is the cornerstone of protection against discrimination under the
Covenant. It reads that:
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,

73 Article 7 of the Universal Declaration


74 Article 4(1) of the International Covenant on Civil and Political Rights
75 Article 9(1). Ibid.
34

colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status.76
The Body of Principles for the Protection of All Persons under any Form of Detention or
Imprisonment, 1988:
These principles apply for the protection of all persons under any form of detention or
imprisonment77. There are 39 Principles in total, which are all speaking to the doctrine of
Administrative Justice in different respect. Specifically Principle 12 deals with the element of
Administration of Justice78.

The Declaration on the Protection of All Persons from Enforced Disappearance, 1992:
Adopted by the General Assembly where by state members are mandated to make
investigations whenever there is reason to believe that an enforced disappearance has taken
place on a territory under their jurisdiction and, if allegations are confirmed, to prosecute its
perpetrators79. The Declaration, calls upon all States to take effective legislative, administrative,
judicial or other measures to prevent, terminate and punish acts of enforced disappearance 80.
Article is the one specifically containing the elements relating Administrative Justice81.

76 Article 26. Ibid.


77 A/RES/43/173 of the UN General Assembly
78 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Prosecutors and Lawyers. Chapter 5.
79 Programme of Action 62, adopted by the World Conference on Human Rights in
Vienna on 25 June 1993
80 Ibid.
81 Human Rights in the Administration of Justice: A Manual on Human Rights for
Judges, Prosecutors and Lawyers.Ibid
35

The Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and
Summary Executions, 1989:

Principle 6 of the Principles on the Effective Prevention and Investigation of Extra-legal,


Arbitrary and Summary Executions also contain similar requirements with regard, inter alia, to
the holding of detained people in officially recognized places of detention and the registration of
all relevant information concerning the person deprived of his liberty82.

3.2.2 Available at Regional Level

The African Charter on Human and Peoples Rights, 1981


Article 6 provides that every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and conditions previously
laid down by law. In particular, no one may be arbitrarily arrested or detained83.
Article 25 and 26 respectively; deal with call on the state members guarantee an independent
administration of justice at all time84.

The American Convention on Human Rights, 1969


Article 27(1) of the American Convention on Human Rights, providing that State party can only
resort to derogations in time of war, public danger, or other emergency that threatens the

82 The Principles on the Effective Prevention and Investigation of Extra-legal,


Arbitrary and Summary Executions, 1989
83 Article 6 of the African Charter on Human and Peoples Rights, 1981.
84 Article 25 & 26 of the African Charter on Human and Peoples Rights, 1981.
36

independence or security of a State Party, this is in order to prevent arbitrary administration of


justice85.

The European Convention on Human Rights, 1950


Article 7 of the American Convention on Human Rights provides, inter alia, for86:
(1) Right to personal liberty and security.
(2) Right not to be deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party concerned or by
a law established pursuant thereto.

Article 12 of the European Convention on Human Rights provides the following general
prohibition of discrimination87:
(1) The enjoyment of any right set forth by law shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political or other opinion,
national or social origin, association with a national minority, property, birth or other
status.

(2) No one shall be discriminated against by any public authority on any ground such as
those mentioned in paragraph.

3.2.3 Available at National Level

85 Article 27(1) of the African Charter; Human Rights in the Administration of Justice: A Manual
on Human Rights for Judges, Prosecutors and Lawyers.
86 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers.Chapter 5.

87 Article 12(1) & (2) of the European Convention on Human Rights


37

The Namibia Constitution in terms of Article 18 providing that Administrative bodies and
administrative officials shall act fairly and reasonably and comply with the requirements
imposed upon such bodies and officials by common law and any relevant legislation, and
persons aggrieved by the exercise of such acts and decisions shall have the right to seek
redress before a competent Court or Tribunal88.

3.3 CONCLUSION
It appears that that there are no specific legal instruments specifically promulgated to provide for
the Right to Administrative Justice and its protection thereof, at international, regional and
national level. Notwithstanding the lack of such legislations, there is however a number of
international covenants that speaks to the guaranteeing and protection of the Right to
Administrative Justice. These Treaties include but are not limited to those cited above. Other
instruments not cited, but play central roles in giving effect to the practical realization of the
Right to Administrative Justice on an international front include:

International Convention on the Elimination of All Forms of Racial Discrimination, 1965;


Convention on the Rights of the Child, 1989; Convention on the Elimination of All Forms

of Discrimination against Women, 1979;


Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based

on
Religion or Belief, 1981; Declaration on the Rights of Persons Belonging to National or

Ethnic, Religious and Linguistic Minorities, 1992;


Inter-American Convention on the Prevention, Punishment, and Eradication of Violence
against Women, 1994; European Social Charter, 1961, and European Social Charter
(revised), 1996;

Those not cited and discussed but are key in the inquiries into the concept of Administrative
Justice at a regional level includes:

African Charter on the Rights and Welfare of the Child, 1990;


Additional Protocol to the American Convention on Human Rights in the Area of
Economic,

88 Article 18 of the Namibian Constitution


38

Social and Cultural Rights, 1988; Framework Convention for the Protection of National
Minorities, 1994; The Prohibition of Discrimination and Public

At the national level, Namibia only relay on a single provisions of its Constitution, Article 18 as
well as principles of Common Law.
Evidently, it seems that most of the international and regional legal instruments have dealt with
the concept of Administrative Justice, either from the angel of personal liberty, freedom, fair trial,
right unlawful detention, derogation in emergency cases and discrimination among others. All of
them placed emphasis on the equality of persons in the legal eyes. This was of the approach by
A.V. Dicey when analysed the concept of Administrative Justice in the context of in the equality
before the law.
Accordingly, when a person is discriminated against and/or as the case may be, his or her
Right to Administrative Justice is violated along the way. The following chapter deals will with the
Findings of this study by looking at specific Case scenarios, regarding the adherence to the
Principles of Administrative Justice.

39

CHAPTER 4: FINDINGS: CASE -STUDIES


4.1 INTRODUCTION
Usually decisions taken by public bodies can have big effects on people socially and financially.
These effects are greater on people when such administrative decisions are arbitrary in nature.
Generally, societies rely on the Government and all its agencies, including parastatals to make
correct, quick and fair decisions in the provisions of services to the people and in overall
administration of institutional affairs. However, should the decision makers mislead themselves
when deciding, this does not only make their decision challengeable by way of complaining to
an ombudsman or appealing to a tribunal, but also comes with a great deal of cost to both the
government and the institution concerned. It suffices to say that all public institutions that make
administrative decisions are administrative bodies of the administrative justice system and if
they erred their decisions become subject to reviewability and if found wanting, may be nullified
and voided. This Chapter will investigate the circumstances that prevailed when TransNamib,
Road Construction Company (RCC), Road Fund Administration (RFA) and Social Security
(SSC) had suspended their Chief Executive Officers (CEOs) respectively. Further inquiry into
how these circumstances, relate to Administrative Justice.

4.2 TRANSNAMIB

Established by National Transport Services Holding Company Act, 28 of 1998, making it


a juristic person.
4.2.1 Summary of Facts
In August 2008, TransNamib through its Board of Directors suspended its Chief Executive
Officer, while insisted it was a special leave, to allows investigations into issues relating to
corporate governance of the company89. Some of the grounds Haimbili was suspended relate
allegations of irregular appointments and extension of employment contracts for some staff and
also for awarding a study loan to himself. Following the suspension some local commercial
banks withdrew their overdraft facilities to the company citing instability in its management,
89 Maletsky, C. 2008. TRANSNAMIB has suspended its Chief Executive Officer Titus Haimbili,
barely six months after he took up the position. The Namibian, 1.
40

company experienced a cash-flow problem and staff demonstrated against the suspension
alleging conflict of interest on the part of the Chairperson of the Board 90. However, the Board
stood by its decision that Chief Executive Officer was not "above the law" 91. Haimbili was
eventually convicted of the charges instituted against him.
4.2.2 Applicable Law to TransNamib
National Transport Services Holding Company Act, 28 of 1998
State Owned Enterprises Governance Act 2 of 2006
The Namibian Constitution
4.2.3 Legal Issues
The following are issues of legal relevance to Administrative Law in the TransNamib scenario:
a) Whether the Board acted within its Powers to suspend the Chief Executive Officer?
b) Whether the appointments of least deserving candidates by the Chief Executive Officer
constitute biasness?
c) Whether the Chief Executive Officer acted ultra vires by awarding himself a study loan?
d) Whether there was a conflict of interest on the part of the Chairperson of the Board?
e) Would the allegations for political interference stand the test of validity?

4.3. ROAD CONSTRUCTION COMPANY


Established by Road Construction Company Act 14 of 1999, making it a juristic person.
4.3.1 Summary of Facts

90 Maletsky (2008:1).
91 Maletsky (2008:1).
41

In 2006, the Road Construction Company (RCC) suspended its Chief Executive Officer, Kelly
Nghixulifwa without furnishment of reasons and grounds for charges. It was reported that
Nghixulifwa just overhead the accusations of improper behaviours against him, relating to a
purchase of a luxury car for his wife, use of RCC money to settle overdue bond payments for
another senior manager at RCC, mismanagement of the company order book and gross
professional negligence relating to a commitment of N$15 million to B-1 Motor City Project
without necessary security92. There was an internal investigation preceding the suspension
during which the CEO was ask to submit a report, which he did, but never heard anything until
the day of suspension.
Notably, RCC is no stranger to controversy, for Nghixulifwas predecessor, Farhad Nadimi, was
fired in same manner, 2002. The following year, two other senior managers John Manaviri and
Chris Mvungi from the same department - were also suspended, in same fasion.
4.3.2 Applicable Law to RCC
Road Construction Company Act 14 of 1999
State Owned Enterprises Governance Act 2 of 2006
Namibian Constitution

4.3.3 Legal Issues

The following are issues of legal relevance to Administrative Law in the RCC scenario:
a) Whether the Board acted lawful by suspending the Chief Executive Officer without
reasons for his suspension?
b) Whether the report requested from the suspended Chief Executive Officer during the
preliminary investigations would constitute making a sufficient representation?
c) Whether the Board acted lawful by refusing suspended Chief Executive Officer Access
to documentation and right to legal representation?

92 Grobler, J. 2006. Road Construction Company Suspended its Chief Executive Officer. The
Namibian,1.
42

4.4 ROAD FUND ADMINISTRATION


Established by Road Fund Administration Act 18 of 1999, making it a juristic person.
4.4.1 Summary of Facts
In 2011, the Road Fund Administration (RFA) suspended its Chief Executive Officer, Penda
Kiiyala along with other two senior officials over the allegations of irregularities and
malpractices, following a report of the inquiry by a firm of auditors Messrs Deloitte and Touche,
into the operations of RFA, which pointed to the possibility of irregularities, relating collection of
fees at the Noordoewer border post, salary increment of the CEO, transfers of funds,
procurement of legal practitioners among other, all of which did not carry the approval of RFAs
Board.
After the said suspension and the setting in motion the disciplinary proceeding against the
suspended officials, the Government, Cabinet and Minister of Finance intervened by issuing the
following orders and/or directives (Road Fund Administration v Government of the Republic of
Namibia and Others)93:
a) That the perceived irregularities should first be investigated by the Auditor-General;
b) That in order to save costs and expenditure no parallel investigation should be
conducted by any other entity;
c) That pending the findings of the Auditor-General the suspension of the CEO and other
two officials should not be given effect.

4.4.2 Applicable Law to RFA


93 Road Fund Administration v Government of the Republic of Namibia and Others A 165/2011)
[2011] NAHC 219
43

Road Fund Administration Act 18 of 1999


State Owned Enterprises Governance Act 2 of 2006
Namibian Constitution
4.4.3 Legal Issues
The following are issues of legal relevance to Administrative Law in the RFA scenario:
a) Whether it was within the powers of the CEO to inflate his salaries;
b) Whether it was within the powers of the Board to suspend the CEO and others within
consulting the Minister of Finance;
c) Whether it was within the powers of the Government, Cabinet and Minister of Finance to
interfere with the functions of the Board of Directors;

4.5 SOCIAL SECURITY COMMISSION


Established by Social Security Commission Act 34 of 1994, making it a juristic person.
4.5.1 Summary of Facts
In 2012, the Social Security Commission through its Board of Commissioners suspended its
Chief Executive Officer, Kapara Tjivikua indefinitely without pay on unspecified grounds for
charges, except citing serious misconduct which included insurbodination, disobedience and
other acts related to misconduct94. Despite the Internal Rules of SSC providing for a presuspension hearing, this was not complied with. The suspension without was later reversed by
court as unlawful. Board gave the then suspended CEO fourteen (14) days to furnish reasons to
why his should not be confirmed95.
The Board later formulated charges in the form of complaints against the CEO in the following
readings:
942013. Statement on the Removal of the Commissioners of the Social Security Board. The
Namibian,26.
95 The Namibian (2013:26).
44

a) That he delayed the implementation of the Boards resolutions to buy I-pads for the
Commissioners by claiming that items have not been budgeted for;
b) That he questioned the practicality of the Boards decision relating to the retracting of its
delegation of certain powers without consultation with the Management;
c) That he disrespect Commissioners and restricted their participation during a certain
workshop held at Daan Viljoen;
d) That he sidelined the Board in relation to the shareholding Minister and that he had
further accused the Board of nitpicking;
e) Further that the Boards meeting packs were once delivered late;
4.2 Applicable Law to SSC
Social Security Commission Act 34 of 1994
State Owned Enterprises Governance Act 2 of 2006
Namibian Constitution
4.3 Legal Issues
The following are issues of legal relevance to Administrative Law in the SSC scenario:
a) Was the Chief acting within his powers in refusing to buy I-Pads for Commissioners
b) Was the Board of Commissioners acting within its powers in suspending the CEO;
c) What was the legality of the suspension without pre-suspension hearing and information
on charges;
d) Was the Deputy Minister and/or Minister acting within his/her powers by intervening in
the matter and by request the freezing of the suspension until certain condition is met;
e) Was the suspended CEO tried within a reasonable time;

CHAPTER 5: EVALUATION OF THE FINDINGS

5.1 INTRODUCTION

45

Under this Chapter a comprehensive analysis and evaluation of the findings of the study as
recorded under the previous Chapter will be given.
5.2 TransNamib

Whether the Board had acted within its Powers to suspend the Chief Executive Officer
TransNamib Holdings Limited is a wholly-owned parastatal of the Government of the Republic of
Namibia, established in terms of the National Transport Services Holding Company Act 28 of
199896, making it a juristic person with body corporate status. As it is for any juristic person,
TransNamib responsibilities of governance are entrusted to its Board (Road Fund
Administration v Government of the Republic of Namibia and Others)97.
It is sufficient to say that TransNamib Board has the powers to discipline and/or suspend its staff
members, regardless. It follows that the Board of TransNamib had legitimate powers to
discipline or suspend of its CEO.
Whether appointment of least deserving candidates by the Chief Executive Officer
constitute biasness
It was reported that the then suspended Chief Executive Officer appointed the candidates that
were least ranked during interviews. This action did not only constitute biasness in terms of
Article 1898 of the Namibian Constitution, but was heavily discriminatory as it infringed upon
Article 10 of the same Constitution, which provides that99:
(1)

All persons shall be equal before the law.

(2)

No persons may be discriminated against on the grounds of sex, race, colour, ethnic

96 National Transport Services Holding Company Act 28 of 1998


97Road Fund Administration v Government of the Republic of Namibia and Others (A 165/2011)
[2011] NAHC 219 (12 July 2011)
98 Article 18 of the Namibian Constitution
99 Article 10 of the Namibian Constitution
46

origin, religion, creed or social or economic status.


Notwithstanding, whatever his reasons may have been, he (CEO) was convicted of nepotism,
as his action(s) constituted biasness and discriminatory attitude. Ordinarily, biasness exist the
moment people are treated differently, one in a favourable position than others.

Whether the Chief Executive Officer acted ultra vires by awarding himself
a study loan
It has been alleged that in terms of the delegation framework of TransNamib, the decision to
award study loans to any staff member, including the Chief Executive Officer is reserved for the
Board. This automatically made Haimbili to have acted ultra vires his powers by awarding
himself a study loan.
He was convicted on the charge of having acted outside the scope of his authority when he
granted himself an interest-free study loan of 4 240 British pounds (around N$65 000 at the
time) without submitting it to the board for approval100.
It followed therefore that the Disciplinary Hearing recommended for him to be dismissed and
this was accordingly endorsed by the Board of Directors.101.
Would the allegations for political interferences stand the test of validity

After the conviction of Haimbili and his suspension thereof, there were reports that an invisible
hand trying to maneuver for his reinstatement existed. Such reports were to the effect that the
line Minister had been instructed by the ruling Partys politburo to get the suspended Chief
Executive Officer reinstated102. The above allegations were however, denied by the Secretary
General of the SWAPO Party, as well as the Line Minister Helmut Angula 103. However, if the
allegations regarding political interferences were to be true, then such engagements would have
100 Maletsky (2008:1)
101 Maletsky (2008:1)
102 Maletsky. ibid.
47

no basis in our law, both in terms of the National Transport Services Holding Company Act 28 of
1998 as well as the Namibian Constitution. There only constitutional provisions that the line
Minister of Works and Transport could have invoked in trying to direct, supervise and control the
activities of a parastatal, is Article 40(a) of the Namibian Constitution 104 (also see Road Fund
Administration v Government of the Republic of Namibia and Others)105.
It suffices to say that anything outside the Act establishing TransNamib and beyond Article 40 of
the Namibian Constitution does not give the line Minister powers to interfere with the
governance of the parastatal(s), for as long as its Board of Directors is still functional and
effectively in place.

5.3 Road Construction Company

Whether the Board acted lawful by suspending the Chief Executive Officer without
reasons for his suspension?

Suspension without reasons is unlawful and a great infringement to the core of human rights in
as far as fairness is concerned. Giving of reasons for suspension helps the victim to author his
defence, a position impossible if no charges are given. Notification to the aggrieved party as to
the ground(s) of his or her suspension serves as a key for one to exercise his or her rights to be
heard either at the time of suspension or after the actual suspension. The Then CEO of RCC
was suspended without being informed of the nature of his charges 106 and this made the
process to substantially fall short of the element of fairness, both substantive and procedural. In
the case of Open Learning Group Namibian Finance CC v. Permanent Secretary of the Ministry

103 Iivula-Iithana, P. 2008. How whether there has been intervention by the Ruling Party
(SWAPO) to get Haimbili reinstated, The Namibian, 2.
104 Article 40(a)
105Road Fund Administration case (A 165/2011) [2011] NAHC 219
106 Grobler, J. 2006. RCC wants CEO out of way while probe conducted. The Namibian,1.
48

of Finance and three others)107 the action by the ministry to revoke the deduction code granted
to the Open Learning Group Namibian Finance CC, to deduct course fees for its students who
are government employees directly from their salaries, was nullified and declared invalid for
failure on the part of the ministry to give to give the applicant an opportunity to be heard.

Nghixulifwa sought a court interdict against the disciplinary proceedings on the following basis.

Non-compliances with RCC Code of Discipline and Grievance Procedures, in terms

of charges disposal (90 days) describing this as manifestly and grossly unfair 108.
Failure by RCC to fully reply to and/or allow the following request(s) by the uspended
CEO.

i)

To be given information on the nature of charges laid against him

ii)

To be given documentations from the Parastatal

iii)

To allow the applicant to be represented by a lawyer during Disciplinary Hearing


(Chairperson refused this representation)

The failure on the part of RCC Board to meet the above request, had prejudiced the then
suspended CEOs ability to present his case effectively, as a longer period had passed after the
commission of the alleged transgressions. He could not recall all incidents relating to the
charges, owing to faint memory109. Accordingly, an order halting the Disciplinary Hearing was
given by Judge Mavis Gibson, in favour of the applicant.
In a case of McLoughlin -v- Setanta Insurance Services110, the lawfulness and fairness of
suspension without reasons were extensively examined.

The employee in this case was

107 Open Learning Group Namibian Finance CC v. Permanent Secretary of the Ministry of
Finance and three others)Case No. (P) A 20/2005
108 Nghixulifwa, K. 2006. In his Affidavit to the High Court seeking an Interdict to halt the
disciplinary proceedings.
109 Kelly Nghixulifwa in his Affidavit to the High Court, December 2006.
110 McLoughlin -v- Setanta Insurance Services [2011] IEHC 410
49

suspended without notice while on certified leave and only heard of her employers intention to
suspend her through rumours. Through her solicitor, she wrote the company requesting
clarification of the matter. The employer responded with a letter stating that the employee is
suspended and an investigation in accordance with its Disciplinary Procedures will be carried
out. The only ground for suspension was the alleged role in the misrepresentation of the true
position of the defendants outstanding claims reserves and underwriting results for the
2009/2010 financial year end to the Board of the Maltese sister company, along with other
matters concerning the plaintiffs alleged breach of both the defendants policies and
procedures and of her fiduciary duties to the defendant. An interdict for the suspension not to
take effect was sought and was granted.

In determination, the court divided the request for an injunction into two categories:
1) Rescinding her suspension and; refused to grant this citing that the company reserves the
right to suspend in its Disciplinary Procedures. Furthermore that suspension is a holding one
and not a punitive one, as long as the process was concluded as reasonably practicable.
2) Intervention of the Court at the investigation stage - the Court decided to intervene on then
investigation and grant this injunction, because it was evident that the employer had already
formed a preconceived verdict reading from the expression of the employer to the effect that the
conduct of the plaintiff justified her dismissal.

The case of McLoughlin -v- Setanta Insurance Services, complimented by other scholarly work
have identified the following key principles relating procedures that need to be observed when
suspending an employee for potential gross misconduct111.

The employee must be made aware of the issues that are being investigated against
them

The investigation should be carried out only to establish the facts and ascertain if formal
disciplinary action should be taken; do not form a conclusion as to an employees guilt or
innocence prior to the disciplinary being held.

111McLoughlin [2011] IEHC 410


50

The employer should reserve the right to suspend in their handbook as otherwise a
suspension may be deemed unfair

The investigation and disciplinary procedure should be compliant with the guidelines laid
out in the Companys own Disciplinary Procedure. Carry out procedures in conjunction
with the processes laid out in Employee Handbook as much as possible

Suspensions cannot indefinite or for protracted periods of time and therefore the
investigation should be completed as soon as reasonably practicable.

This case became persuasive authority on how employers can avoid violating their employees
fundamental rights when taking administrative decisions to suspend them.
It follows therefore that the suspension of the then CEO of the Road Construction Company
without giving ground(s) for charges was grossly unfair and unlawful both in the context of the
RCCs own Disciplinary Procedures, Article 18 and 12 of the Namibian Constitution respectively.
Although Article 12 only applies to criminal offences, it can be referred in guest for fair trial.
Whether the report requested from the suspended Chief Executive Officer during the
preliminary investigations would constitute making a sufficient representation
Facts are indicative that an earlier investigation before the actual suspension of the then CEO
was carried out, during which the CEO was ask to submit a report. Since then nothing was
heard off, of either his report or the findings of the investigation until the day of suspension112.
An attempt is made hereunder, to ascertain whether the report requested from the then Chief
Executive Officer would constitute a sufficient representation in full and proper compliance with
the principle audio Alteram Partem. In the case of Samuel Chaune v Hubert Tidimalo
Ditshabue113, an applicant was elected as a traditional councillor of the Bakgalagadi Traditional
Authority on 25 August 2007. His appointment as traditional councillor was made known by
publication of that fact in the Government Gazette of 27 March 2008. However, on the 02
October 2009, Chief Hubert Tidimalo Ditshabue convened a meeting of the Bakgalagadi
Traditional Authority. That meeting was attended by members of the Bakgalagadi Traditional
Authority and at that meeting the removal of the applicant as traditional councillor was
112 Grobler (2006:2).
113 Chaune v Ditshabue and Others (A 5/2011) [2013] NAHCMD 111
51

discussed and decided upon. Recommendations were forward to the Minister of Regional, Local
Government and Housing to the effect that the applicant be dismissed as a traditional councillor.
The participants at the meeting were unaware that the meeting is intended to serve the purpose
of giving the applicant an opportunity to make representations why he should not be removed.
Accordingly, it was held that where a person has a right to be heard before a decision is taken it
is important that, whatever the form of the hearing or the subject-matter of the hearing the
opportunity to make representations must be made clear to the affected parties, in order for that
right to make representations to be effective. It was found that a mere invitation of the affected
party for a meeting does not constitute proper representation. Such decision was reviewed and
set aside.

It thus follows that the requested report from the then Chief Executive Officer before suspension
did not constitute a sufficient opportunity for him to make representations.

Whether the Board acted lawful by refusing suspended Chief Executive Officer to access
documentation and right to legal representation
The right to legal representation in criminal offences is provided for under Article 12 of the
Namibia Constitution, however in respect of civil cases accessibility and exercise of such right is
usually a subject to internal institutional policies. The case of Namibia Tourism Board v
Kauapirura-Angula114 , which enquired into the legality for the denial of legal representation at
disciplinary hearing of Namibia Tourism Board . The appellant argued that a denial of legal
representation rendered disciplinary hearing procedurally unfair. In determination the court ruled
as follows:

That employees have no absolute right (or an entitlement as of right) to legal


representation in fora other than courts of law.

That Proceedings at disciplinary hearings are proceedings at administrative tribunals


(which are not courts of law).

114 Namibia Tourism Board v Kauapirura-Angula (LCA 48/2007) [2009] NALC 3


52

The court further, held that as far as Article 18 115 of the Constitution of Namibia requires
administrative bodies and administrative officials to act fairly and reasonably these provisions
do not contain an entitlement to legal representation at administrative tribunals.
The ruling of Kauapirura-Angula case was equally the position in Hamata & Another v
Chairperson, Peninsula Technikon Internal Disciplinary Committee & Others, Supreme Court of
Appeal (in South Africa), rejected the notion that right representation is an absolute right or an
entitlement. Judge Marais AJ at 1536 A C emphasized this point as follows:
There has always been a marked and understandable reluctance on the part of both legislators
and the courts to embrace the proposition that the right to legal representation of ones choice is
always a sine qua non of procedurally fair administrative proceeding. However, it is equally true
that with the passage of the years there has been growing acceptance of the view that there will
be cases in which legal representation may be essential to a procedurally fair administrative
proceeding. In saying this, I use the words administrative proceeding in the most general
sense, i.e. to include, inter alia, quasi-judicial proceedings. Awareness of all this no doubt
accounts for the cautious and restrained manner in which the framers of the Constitution and
the Act have dealt with the subject of legal representation in the context of administrative action.
In short, there is no constitutional imperative regarding legal representation in administrative
proceedings discernible, other than flexibility to allow for legal representation but, even then,
only in cases where it is truly required in order attaining procedural fairness. Accordingly the
elements of procedural fairness were set in Gunther Kessel v Ministry of Lands and
Resettlement and Others116.
Further and on a proper construction the case of National Union of Mineworkers & Another v
Blinkpan Collieriers Ltd117, held that a proper representation does not mean mere physical but
impassive presence of another. A representative should at least be able to assist the alleged
offender in the preparation and presentation of his case. Further that justice is not done or seen
to be done if such representative does not at least address the tribunal on the merits and
115 Article 18 of the Namibian Constitution
116 Gunther Kessel v Ministry of Lands and Resettlement and Others Case No. (P) A 27/2006/
Case No (P) A 266/2006
117 National Union of Mineworkers & Another v Blinkpan Collieriers Ltd 1986) 7 ILJ 579)
53

punishment. The above principles, should however be read in accordance with the internal
disciplinary code for the concerned company.
So as to whether Nghixulifwa right to legal representation was violated by the refusal to have a
legal representation during disciplinary hearings, this depended on the terms of the Road
Construction Companys Disciplinary Code at the time, taking into account that such a right is
not absolute.

5.4 Road Fund Administration

Whether it was within the powers of the CEO to inflate his salaries
The summary of facts, indicates that the decision to increase salaries of the staff members of
the Road Fund Administration, including that of the CEO is exclusively reserved for the Board.
Accordingly, the Board only approved and gave salary increment for the non-members of
management for that year. However, the CEO, intentionally and negligently gave himself a
salary hike. The authority of the CEO could not be traced to any source or policy of the RFA
and/or the delegation of authority framework. So it follows that the Chief Executive Officer has
acted ultra vires the power vested in him (Road Fund Administration v Government of the
Republic of Namibia and Others)118.
Whether it was within the powers of the Board to suspend the CEO and
others
The Board of Directors of the Road Fund Administration is established in terms of Section 4 of
the Road Fund Administration Act 18 of 1999119. The functions, duties and powers of the Board
are set out in terms of Section 4(1) as follows:
There shall be a Board of Directors of the administration which shall subject to this Act be
responsible for the policy, control and management of the administration.

118 Road Fund Administration case (A 165/2011) [2011] NAHC 219


119 Road Fund Administration Act 18 of 1999
54

Accordingly, Section 2120 of the Road Fund Administration Act provides that the Fund once
established will be a juristic person and implies that it is a body corporate in some sense or
another of the word (Road Fund Administration case)121.
The Act further provide for the appointment of the Chief Executive Officer, who report to the
Board for the day-to-day affairs of the Fund. It thus fitting to submit that the decision to suspend
the then CE) of RCC is well within the powers of the Board of Directors, as the entity
empowered or vested with the powers of overall governance of the Fund.
Whether it was within the powers of the Government, Cabinet and
Minister of Finance to intervene in the functions of the Board of Directors
Government, Cabinet and Minister of Finance relied on the provisions of 40(a) and 41 of the
Namibian Constitution122 to justify their intervention in the functions of the Board. This however
was found to be a misplacement that came as a result of the misinterpretation of the provisions
concerned (Road Fund Administration). While provisions of Article 40(a) gives the Minister the
powers to direct, supervise and control the activities of the parastatal, directives given were
found to be amounting to executive decisions into the affairs of the Fund and were therefore
viewed as interference.
Accordingly, the interference was found not to be within the powers of the government, cabinet
and the Minister of Finance to take Executive Decisions for the parastatal that has a board
which is operational and effectively functioning.

5.5 Social Security Commission


Whether the Chief Executive Officer acting within his powers in refusing to
buy I-Pads for Commissioners

120 Section 2 of the Road Fund Administration Act 18 of 1999


121 Fund Administration. Ibid
122 Article 40 and 41 of the Namibia Constitution
55

In terms of Section 12(1) of the Social Security Commission Act, the Chief Executive Officer is
appointed for the performance of the functions of the Commission 123. Furthermore, in terms of
Section 18 of the same Act, the CEO is the accounting officer and is charged with the
responsibility of all the moneys received, the utilization thereof and the use and care for the
properties of the commission124.
According to Adv. Dr. Sacky Akweenda, the above exposition places the Chief Executive Officer
under the obligation, as part of his functions, to advise the Board on any issue affecting the
Commission without fear of being charge with misconduct125. The Advocate concluded that in his
opinion relying on the evidence presented at the enquiry, all issues that constituted the six
charges broadly described as gross insurbodination could have been resolved by the Board
and the CEO preferably with the assistance of a third party126.
Therefore the CEOs refusal to buy I-Pads for the Commissioners, exercised without prejudice
to individual commissioners, but only with due regard to the interests of the Commission and its
financial position, is rightly within the powers of the former. As such the charges brought against
the Chief Executive Officer in respect of this matter were proven to be unwarranted and as such
fell away.

Was the Board of Commissioners acting within its powers in suspending


the CEO?
The Board of Commissioners is constituted in terms of Section 4(1) of the Social Security
Commission Act127 and its powers, duties and functions are set out in terms of Section 9(1) of
123 Section 12(1) of the Social Security Commission Act 34 of 194
124 Section 18 of the Social Security Commission Act
125 Akweenda,S. 2013. In his Report as the Chairperson of the Disciplinary Hearing of the
suspended CEO of SSC
126 Akweenda (2013). ibid.
127 Section 4(1) of the Social Security Commission Act 34 of 1994
56

the same Act128. Furthermore, as far as the State Owned Enterprises Governance Act, Act 2 of
2006 is concerned; the provisions of Sections 15, 17 and 18 of the Act are relevant to the
existence and functioning of the Boards of State Owned Enterprises (National Transport
Services Holding Company Act 28 of 1998)129. Specifically Section 15130 provides for the
procedure for the appointment of board members and alternate board members of State owned
enterprises of which the Social Security is one. Section 17 131 provides for the conclusion of a
governance agreement with the board, which accordingly ought to have been entered into
between the Board and the Commission within one of being constituted. Section 18 of the
SOEG Act provides that the Minister must enter into a performance agreement with the
Directors or Commissioners of the Board appointed in terms of that Act132.
It is nowhere evident from the facts under consideration that the above mentioned agreements
have been entered into between parties concerned namely between the Commissioners and the
line minister.

This leaves to a larger extent the relationship between the Board of

Commissioners and the line minister to be regulated not only by the Social Security Act, also by
the State Owned Enterprises Governance Act and no other arrangements outside the legal tools
mentioned would be of force.
In terms of Section of Section 3(2) Social Security Commission is a juristic person 133, making it
body corporate. These statutory arrangements leave the governance of affairs of the SSC in
the sole hands of its Board of Commissioners, with only limitations as may be legally justified.
It is not in dispute that it is within the powers of the Board of Commissioners of SSC to discipline
any staff member of the Commission, including the CEO. Under this issue I am only addressing
the question the legitimacy of powers to suspend or discipline and NOT THE LEGALITY of the
128 Section 9(1) of the Social Security Commission Act
129 National Transport Services Holding Company Act 28 of 1998
130 Section 15 of the State Owned Enterprises governance Act 2 of 2006
131 Section 17 of the State Owned Enterprises Act. Ibid.
132 Section 18 of the State Owned Enterprises Act. ibid
133 Section 3(2) of the Social Security Commission Act
57

manner in which such powers were exercised, as this will be dealt with the subsequent subtheme.
Therefore, the Board of Commissioners of the SSC, like any Board of any juristic person had
legitimate powers to suspend or discipline its CEO, never mind the manner in which it was
done, which was found to be inconsistent with the Principles of Administrative Justice during the
hearing.
What was the legality of the suspension without pre-suspension hearing
and information on charges
The SSCs internal rules require an affording of a pre-suspension hearing to a staff member
being disciplined by way of suspension134. During such pre-suspension hearing, the staff
member being disciplined should be briefed formally of the charges against him or her and be
given an opportunity to state his side of the story in preliminary form. These arrangements are
to ensure full and proper compliance with the doctrine of Audio Alteram Partem (also see the
Opening Learning Group case).
The failure by the Board of Commissioners to observed the set of internal rules relating to the
disciplinary procedures made its decision to suspend the CEO to fell subject to irregularity and
unlawfulness.
Was the Deputy Minister and/or Minister acting within his/her powers by
intervening in the matter and by request the freezing of the suspension
until certain condition is met
There seems to be no ground(s) in terms of the Social Security Commission Act which
authorizes the line minister to intervene with the decisions of the Board of Commissioners.
Notwithstanding the lack of certainty on whether the line minister has authority to give directive
to the Board and/or to freezes the Boards decision, there is no doubt in terms of Section 8(2)
that the line minister may request at any time, that the chairperson convene a special meeting of

134 2013. Statement on the Removal/Resignation of the Members of the Board of the Social
Security Commission. The Namibian,26. Par, 3.
58

the Commission135. It is expected that when such request has been registered, the chairperson
shall honour it.
Moreover, it is not clear from the above, whether the special meeting convened pursuant to the
request of the line minister shall be construed to include meetings between the Board of
Commissioners and the Minister herself as the those contemplated in the Statement of the
Ministry of Labour and Social Welfare on the Removal/Resignation of the members of the Board
of the Social Security Commission.
In the case of Road Fund Administration v Government of the Republic of Namibia and
Others136, the same question of whether the minister can give directive to the Board and its
members was extensively dealt with. The respondent(s) in this case relied on Article 40(a) and
41 of the Namibian Constitution to justify the intervention and/or giving of directives to a State
Owned Enterprise, Road Fund Administration that is.
Article 40 of the Constitution provides that the members of the Cabinet shall have the following
functions:
(a) to direct, co-ordinate and supervise the activities of Ministries and Government
departments including parastatal enterprises, and to review and advise the
President and the National Assembly on the desirability and wisdom of any
prevailing subordinate legislation, regulations or orders pertaining to such
parastatal enterprises, regard being had to the public interest;

Article 41 provides for Ministerial Accountability such that:


All Ministers shall be accountable individually for the administration of their own Ministries and
collectively for the administration of the work of the Cabinet, both to the President and to
Parliament.
The Court took issues with the reliance on the above Articles citing misplacement. Judge Miller,
AJ, interpreted Article 41 of the Constitution as only dealing with the accountability of Ministers
for the administration of their Ministries and does not deal at all with the powers and functions of
135 Section 8(2) of the Social Security Commission Act 34 of 1994.
136 Road Fund Administration v Government of the Republic of Namibia and Others (A
165/2011) [2011] NAHC 219
59

Ministers and duties of Ministers in relation to parastatal organisation (Road Fund


Administration case)137. Furthermore, in as far as the provisions of Article 40(a) of the
Constitution is concerned, Judge Miller interpreted it to as not giving the Cabinet the power to
make executive decisions in relation to the affairs of parastatals. Their duty is plainly to direct,
supervise and control. The making of executive decisions where Parliament had enacted
provisions for the establishment of an independent board is as far as the executive functions are
concerned first and foremost and exclusively, the functions of the board138.
It thus follows while being supported by the facts that the directives of Minister of the Labour
and Social Welfare through various letters to the Chairperson of the Board did not constitute
executive functions, but she was merely directing, supervising and controlling the activities of
the Commission within full and proper compliance with the provisions of Article 40(a) of the
Namibian Constitution. This was evident from one of the letters to the Board, in which the
Minister acknowledged and underscored the fact that it was the Boards prerogative to take
discipline whoever, but in so doing caution and diligence must be exercised against the danger
that may emanate from any prolongation of the disciplinary proceedings, which could hamper
the work of the Commission and its reputation and further that disciplinary proceedings are often
associated with unnecessary and exorbitant legal costs.

Was the suspended CEO tried within a reasonable time


The facts reveal that the Board afforded the suspended Chief Executive Officer 14 days to
provide reasons why the suspension should not be confirmed. This was ultimatum was given
despite the fact there were no charges given out to the Chief Executive Officer at the time of his
suspension. The non-disclosure of charges made it difficult for him to respond on the above
ultimatum, thus Lawyer insisted on his reinstatement139.

137 Road Fund Administration case (A 165/2011) [2011] NAHC 219


138 (A 165/2011) [2011] NAHC 219
139 2013. Statement on the Removal/Resignation of the Members of the Board of the Social
Security Commission. The Namibian,26. Par, 4.
60

The suspension took effect on the 12 December 2012 and was followed by the meeting aimed
at mediating the dispute held with the line Deputy Minister on the 19 December 2012. The
efforts of mediation from the first meeting did not bear fruit, so a subsequent meeting on the 19
January 2013 followed, during which the line minister advised the Board to do its best and take
necessary steps to finalise the disciplinary proceedings by end of March 2013140.
Instead of finding solution to the ongoing dispute, following numerous calls in favour of
mediation, the Board kept on postponing the hearing. The hearing was only concluded only in
October 2013, nearly 10 months after the suspension. Admittedly, a period of 10 months to
conclude a disciplinary hearing is unreasonably long, indicative of deliberate intention of the part
of the Board to attain justice in the maters, either by convicting the transgressor or exonerating
him.
Notably, an internal disciplinary hearing is in most circumstances relatively informal and
speedy, but the internal disciplinary against the Chief Executive Officer of the Social Security
Commission was conducted by the Board in a manner of civil litigation, with a member of the
Bar acting as an adjudicator, another lawyer prosecuting on behalf of SSC and a third acting on
behalf of the Chief Executive. Several preliminary meetings before the hearing chairperson and
10 days of hearings were held over a period of eight months141.
The expression above is on the basis of a proper construction in the case of Dabner v South
African Railways and Harbours142 as well as Cuppan v Cape Display Supply Chain Services143,
which both held that it is trite law that the proceedings at disciplinary hearings are proceedings
at administrative tribunals, which are not courts of law and should be treated as such.
It follows therefore that the disciplinary proceedings or mini-trial of Chief Executive Officer, was
unnecessarily prolonged, rendering it unfair and unreasonable, hence contravening the
140 Statement on the Removal/Resignation of the Members of the Board of the Social Security
Commission (2013:26)
141Statement on the Removal/Resignation of the Members of the Board of the Social Security
Commission (2013:26)
142 Dabner v South African Railways and Harbours 1920 AD 583
143 Cuppan v Cape Display Supply Chain Services 1995 (4) SA 175
61

provisions of Article 18 and Article 12 (Right to Fair Trial) of the Namibian Constitution. Article
12(1) provides that trial shall take place within a reasonable time, failing which the accused
shall be released144. Although the above article is most used in relation to criminal charges the
same principle, can apply in civil case. So the then suspended CEO was not tried within a
reasonable time.

Was the Minister acting within her powers by removing/dissolve the Board Members from
office
In terms of Section 6(2)(b) of the SSC Act, 34 of 1994, the line Minister is vested with the power
to remove a member of a Commission, if the Minister is satisfied that the member(s) concerned:
(b) is guilty of conduct which renders him or her unsuitable to continue to hold office as a
member145;
After the contemplated hearing it became apparent to the Minister that the Board had permitted
the important work of the Commission to be delayed and to suffer while pursuing the
suspension of the CEO and that frequent media reports on the matter had negatively affected
the Commissions reputation146.
The above exposition has equally been expressed by the Chairperson of the Hearing in his
report who stated that:

144 Article 12(1)(b) of the Namibian Constitution


145 Section 6(2)(b) of the Social Security Commission Act 34 0f 1994
146 Statement on the Removal/Resignation of the Members of the Board of the Social Security
Commission (2013:26)
62

It seems that the chairperson had only one idea in mind and that was to find the applicant guilty
and dismiss him. Throughout the minutes it is clear that a mediation approach would have been
far more beneficial to rescue the relationship and address the various issues147.
The above finding is indicative of the biasness on the part of the Board, which rendered the
hearing prejudicial to the charged CEO, hence making the process unfair and falling short of
meeting the Principles of Administrative Justice. The finding further amplifies the contravention
by the Board of a well-entrenched principle to the effect that all persons charged with an
offence shall be presumed innocent until proven guilty according to law, after having had the
opportunity of calling witnesses and cross-examining those called against them148.
It is the above summation of faults on the part of the Board, which result in a substantial
damage to the goodwill of the Commission and the great financial loss (nearly 3 million) on the
Commission pursuant to the initiation of a baseless, ill-conceived and irregular suspension that
the line Minister lost confidence in the Board of Commissioners, hence their removal. In
removing or dissolving the Board of Commissioner as she did the Minister has indeed acted
intra vires the powers vested in her in terms of Section 6(2)(b) of the Social Security
Commission Act149.

Did the Removal/Dissolution of the Board of Commissioners by the line Minister comply
with the Audio Alteram Partem Rule
Accordingly, the facts are telling us that post the hearings, the line Minister requested the
summary of the costs incurred in respect of the disciplinary hearings, which amounted to nearly
three (3) millions. Subsequent to having this knowledge, the Minister invited the Board of
Commissioners to her office on the 18 October 2013, and presented to the Commissioners her
loss of trust and confidence in them substantiated with reasons 150. This meeting succeeded a
series of meetings initially held between the Minister and the Board of Commissioners regarding
147 Akweenda,S. 2013. In his Report as the Chairperson of the Disciplinary Hearing of the suspended
CEO of SSCAdv. Dr. Sacky Akweenda.

148 Article 12(1)(d) of the Namibian Constitution


149 Section 6(2)(b) of the Social Security Act 34 of 1994
63

the running of activities of the Commission. During the meeting of the 8th, the Minister further to
requested the Commissioners to voluntarily resign or else wait for her notice for the termination
of their tenure. In the 28 October 2013, the Minister wrote formally to Commissioners in keeping
within the context of rule nisi, requesting them to provide reasons why each one of them should
not be removed as a commissioner in term of Section 6(2)(b) of the Social Security Commission
Act151.
Notwithstanding, the Ministers the notice to all the Commissioners on her intention to terminate
their tenure of office, only six reluctantly replied, while one submitted a letter of resignation. To
this end, the Ministers decision to remove the other remaining eight Commissioners followed
partly reading as follows:
When I sent you the Notice, I had hoped that you would demonstrate that you had acquired
insight into the problems afflicting the Commission and would provide me with a basis for
continuing you as
a member, notwithstanding all that has taken place in the past year. Regrettably, you have not
done so. Rather, it is apparent that you have ignored the negative impact of the Boards action
and of its exorbitant spending. You have equally ignored the shortcomings in the Boards
relationship with the Minister entrusted with oversight responsibilities over the Commission as
contemplated in both the Social Security Act 34 of 1994 and Article 40(a) of the Namibian
Constitution152.

150 Statement on the Removal/Resignation of the Members of the Board of the Social Security
Commission (2013:26)
151 Section 6(2)(b) of the Social Security Commission Act 34 of 1994.
152Statement on the Removal/Resignation of the Members of the Board of the Social Security
Commission (2013:26)
64

CHAPTER 6: CONCLUSION, RECOMMENDATIONS AND


REFERENCES
INTRODUCTION
This Final Chapter of the study will give an ascertainment as to whether the findings of the study
did address the research question and also meet or satisfy the objectives of the study. The
sought ascertainment will be given through a summarised, but yet comprehensive conclusion.
The Chapter will further enlist the recommendations on what need to be done in order to ensure
full compliance and proper adherence to the Principles of Administrative Justice, which in return
will bring good governance among the Administrative Bodies in Namibia. The final part of this
Chapter is the list of consulted sources.

65

6.2 CONCLUSION
It follows that the findings of the study have shown that for one to get a proper assessment of
whether Administrative Bodies are adhering to the Principles of Administrative Justice, a holistic
approach would need to be employed. An approach of such a design would have to look at
various governance structures and the extent of their involvement with the actual governance of
the bodies concerned.
The study has shown that majority of Administrative Bodies (SOE), if not all in Namibia are
created by Acts of parliament making them juristic persons or body corporates. Given such
nature of formation, their governances are usually admissive of multiple players, coming from
different levels and with different interests, which may sometimes compete. Common to their
governance structures are: involvement of Line Ministers (who report and receive directives
from Cabinet), Boards of Directors and institutional managements. Ordinarily, and as it is in
terms of Article 40(a) of the Namibian Constitution Line Ministers are only to direct, supervise
and control the activities of parastatals (Administrative Bodies) and they are not enjoined to
take executive decisions pertaining the operations of parastatals falling under their respective
ministries, as this may be liken to political interference. Accordingly and as the study indicates,
for Administrative Bodies established by Acts of Parliament, their governances are vested d in
their Board of Directors (with overarching roles of policy development and approval) assisted by
Chief Executive Officers or institutional management (responsible for day-to day administration
of the bodies affairs).
It became evident therefore, that in most instances the above distinctive roles are mixed and
confused, resulting in institutional instability, arbitrariness and abuse of discretionary powers on
frequent occasions. In some instances, Ministers and/or Cabinet claim the exercise of powers
and authority on wrong premises, for example extending the application of the provisions of
Article 41 of the Namibia Constitution to include parastatals (see Road Fund Administration
case). Also in other instances, Boards of Directors, accuse Chief Executive Officers, for
insurbodination and gross misconducts, when they (latter) are insisting upon the compliance
with the principles of corporate governance (Social Security Commission scenario).
Notwithstanding, irregular fashions under which most of the Boards suspended their CEOs, the
findings of the study are indicative of the fact that there is a number of administrative decisions
performed ultra vires by most CEOs. Specific examples for such irregular decisions include inter
alia instances such as; CEO increasing their salaries on their own and without approvals of
66

Boards, CEOs awarding themselves study loans without Boards approvals, appointment of staff
on favouristism basis, allowing use of institutional funds in settlement of personal mortgage
bonds and high level professional negligence in the execution of their duties.
Within the context of the above evidence, I would argue that there is little Adherence with the
Principles of Administrative Justice by Administrative Bodies in Namibia. Further, not only is
there little or ineffective adherence to the Principles of Administrative Justice, but there is also
noncompliance or little compliance with the Principles of Corporate Governance in the
businesses or dealings of majority of the Administrative Bodies in Namibia. This state of affairs
is not only limited to the Administrative Bodies that were analysed under this study, as several
other SOEs have suspended their former Chief Executive. The following Chief Executive
Officers were each either suspended or fired unceremonially following questionable dealings or
deteriorated interpersonal relationship between themselves and their Boards of Directors.
Among them is Ben Biwa of Namibia Airports Company (NAC); Ben Kandetu of Namibia
Broadcasting Corporation (NBC); Sam Beukes of National Petrol Corporation (Namcor); Leake
Hangala of Nampower, Tobie Aupindi of Namibia Wildlife Resort (NWR) and Maria NangoloMukoro of Namibia Training Authorities (NTA). Other senior ranking officials, although not CEOs
that were also suspended and their suspensions became a subject of Administrative Law
include Ellison Hijarunguru, Former Air Namibia Chief of Corporate Communications as well as
Eugenia Tjaronda, the Company Secretary of TransNamib.
Given the above state of affairs, I am reluctant to believe that there is accessibility to fair,
reasonable, unbiased and lawful administrative decisions among the Administrative Bodies in
Namibia. As a result thereof, compliance to the principles of administrative justice is usually
limited and good governance is compromised most of the times. Evident as it is, most of
Administrative Decisions that had been taken either by institutional managements or Boards
were invalidated by the next upper levels of authorities or Court of Law or review bodies,
implying that they were either taken arbitrarily, biasedly, unprocedurally and irregularly qualifying
them as unlawful, thus null and void, ab initio. Majority of CEOs that had been suspended were
not given pre-suspension hearings in accordance with either their institutional policies or the
doctrine of Audio Alteram Partem, hence the challenges we saw to their suspensions seeking
the nullification of such administrative decisions.
From the study it also became clearer that the review of discretionary powers or decisions will
only be permissible by Court, if an administrative body did not duly and honestly applied itself

67

mind on the matter at hands (Johannesburg Stock Exchange and Another v Witwatersrand
Nigel Ltd and Another)153. Where an Administrative Body is found to have thoroughly applied its
mind on the matter, before taking an administrative decision, Court would not substitute its mind
with that of the Administrative organ having initially been presented with the matter, and so
decided. The above amounts to saying, not all irregular administrative decisions will be set
aside by the Court when approached to do so (Centani Investment CC v Namibian Ports
Authority (NAMPORT) and Another)154. Ultimately, procedural fairness in each case depends
upon the balancing of various relevant factors, including the nature of the decision, the rights
affected by it, the circumstances in which it is made and the consequences resulting from it
(Minister of Public Works & Others v Kyalami Ridge Environmental Association & Another)155.

Accordingly, I would like to argue further that Namibias reliance on the provisions of Article 18 of
Namibian Constitution and the Common Law as the only sources of Administrative Justice is not
sufficient and will therefore not cause or bring a full realization and adherence to the Principles
of Administrative Justice. Judge Parker, C. among others does support the idea of having an
alternative source, but like Anjo-ku-Ada, I would disagree with his position that reliance on the
Constitution and Common alone is sufficient. It follows that I am supporting having an
Administrative Justice Enforcement Act, bringing along an Administrative Tribunal. Such Act will
clearly defines what a Right to Administrative Justice entails, set grounds for its violations,
procedures for its enforcement and will compel Administrative Bodies to promulgate deliberate
policies guaranteeing and protecting such a fundamental right.
Once promulgated, an Administrative Enforcement Act, will not only be unique to Namibia as
other countries with civil and common law jurisdictions, among them Zimbabwe and South
Africa (Promotion of Administrative Justice Act (PAJA)) already have similar Acts. Furthermore,
if Administrative Tribunal is established will bring the element of justice affordability, as people
153 Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another) 1972
(3) SA 726
154 Centani Investment CC v Namibian Ports Authority (NAMPORT) and Another) (A
247/2011) [2013] NAHCMD 235
155Minister of Public Works & Others v Kyalami Ridge Environmental Association & Another
[2001] ZACC 19; 2001 (3) SA 1151 (CC)
68

with no money to challenge validity of administrative decisions in courts will now be able to
approach the tribunal which would require less or no payment. It will also remove the burden of
administrative cases from normal courts, leaving them to only deal with criminal cases in main,
and as a result expedited the finalization of case and timely delivery of justice.

RECOMMENDATIONS
The following are my recommendation on the way forward:
1. That Namibian Parliament should pass an Administrative Justice Enforcement Act.
2. That Administrative Bodies in Namibia should develop deliberate policies in accordance
with the spirit and letter of the provisions of Article 18 of the Namibian Constitution.
3. That Administrative Bodies in Namibia should be compelled as a matter of urgency to
adopt and implement recommendations contained in King IIIs Report on Corporate
Governance. This include, inter alia having performance agreements entered between
Line Ministers and Members of Boards as well between Boards and their respective
Chief Executive Officers.
4. That Boards of Administrative Bodies be compelled to submit their recommendations for
envisaged suspension of their respective Chief Executive Officers, to the Council of
State Owned Enterprises for scrutiny and/or endorsement before actual suspensions.
5. That Namibian Parliament considers amending the State Owned Enterprises
Governance Act, 2 of 2000, in order to incorporate recommendation number 4.
6. That Namibian Government considers establishing a Ministry of State Owned
Enterprises in order to place all the parastatals under one Ministry as opposed to each
falling under its line ministry. Such ministry will coordinate activities between
Administrative Bodies and Government or Line Ministries.

69

6.4 REFERENCES/BIBLIOGRAPHY
BOOKS

Amoo, S.K. 2008. An introduction to Namibian Law: Materials and Cases.


Windhoek: Macmillan.

Thompson, B. 1993. Textbook on Constitutional & Administrative Law. Hampshire:


Gosport.

Hawke, N & Papworth, N. 1996. Introduction to Administrative Law. Greta Britain:


Bidles Ltd.

70

Wade, W & Forsyth, F. 1994. Administrative Law. 7th Ed. Oxford: Clarendon press.

Scheb, J. M & Scheb, J. M. II. 2005. Law and Administrative Process. Clark Baxter:
USA.

Carpenter, G.1995. Administrative law: Introduction to South African Law and


Legal Theory. 2nd Ed. Durban.

Kerr, A.J. 2003. The Principles of the Law of contract in South Africa. Durban.
Butterworth.

Aronson, M & Dyer, B. 1996. Judicial Review of Administrative Action. LBC


Information Services.

Sharpe, R & Waddams, S. 1988. Remedies: Cases and Materials. Toronto: Emond
Montgomery Publications Limited.

Currie, L & Klaaren, J. 2001. The promotion of Administrative Justice Act


Benchbook. Cape Town: Siber Ink.

Devanish, G, E & Hulme, D, H. 2001. Administrative Law and Justice Act


Benchbook. Cape Town: Siber Ink.

Horn, N. & Bosl, A.2008. Judiciary. Windhoek, Namibia: Macmillan.

STATUTES

The Namibian Constitution

State Owned Enterprises Governance Act 2 of 2000

National Transport Services Holding Company Act, 28 of 1998

Road Construction Company Act 14 of 1999


Road Fund Administration Act 18 of 1999

Social Security Commission Act 34 0f 1994

South African Promotion of Administrative Justice Act 3 of 2000

British Finance Act 2 of 1940

71

CASES

Immanuel v. Minister Of Home Affairs and others 2006 (2) NR 687 (H.C)

Open Learning Group Namibian Finance CC v. Permanent Secretary of the


Ministry of Finance and three others Case No. (P) A 20/2005

Gunther Kessel v. Ministry of Lands and Resettlement and others Case no


(P) A 2006/case no (P) A 266/2006

Sikunda v Government of the Republic of Namibia 2001 (3) NR (HC) 182

Dabner v South African Railways and Harbours 1920 AD 583


R v Registrar General, ex p Smith (1991)
Cuppan v Cape Display Supply Chain Services 1995 (4) SA 175 D)

National Union of Mineworkers & Another v Blinkpan Collieriers Ltd, (1986)


7 ILJ 579)

Board of Education v Rice, 1911 AC. 179

Chairperson of the Immigration Selection Board v Frank & Others 2001 NR

107 (SC)
Namibia Tourism Board v Kauapirura-Angula (LCA 48/2007) [2009] NALC 3
Hamata & Another v Chairperson, Peninsula Technikon Internal

Disciplinary Committee & Others (2002) 23 ILJ 1531 (SCA)


McLoughlin -v- Setanta Insurance Services [2011] IEHC 410
Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and

Another 1972 (3) SA 726 (A)


Centani Investment CC v Namibian Ports Authority (NAMPORT) and
Another) (A 247/2011) [2013] NAHCMD 235

Customs and Excise Commissioners v Cure and Deeley Ltd 1961

Chaune v Ditshabue and Others (A 5/2011) [2013] NAHCMD 111

Minister of Public Works & Others v Kyalami Ridge Environmental


Association & Another [2001] ZACC 19; 2001 (3) SA 1151 (CC) at 1184 D

Metropolitan Properties Co (FGC) Ltd v Lannon 1969 1 QB 577.


72

W.C. Greyling & Erasmus (Pty) Ltd v Johannesburg Local Road


Transportation Board and Others 1982 (4) SA 427

Road Fund Administration v Government of the Republic of Namibia and


Others A 165/2011) [2011] NAHC 219

Dawlaan Beleggengs (Edms) BPK. v Johannesburg Stock Exchange


(Edms) Bpk and Others 1983 (3) SA 344 (WLD)

Local Road Transportation Board and Another v Durban City Council and
Another 1965 (1) SA 586 (AD)

Chilufya v City of Kitwe 1967 ZR 115 at 116

TREATIES

Universal Declaration on Human Rights 1948

International Convention on the Elimination of All Forms of Racial

Discrimination, 1965.
Convention on the Rights of the Child, 1989; Convention on the Elimination

of All Forms of Discrimination against Women, 1979.


Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief, 1981;


Declaration on the Rights of Persons Belonging to National or Ethnic,

Religious and Linguistic Minorities, 1992.


Inter-American Convention on the Prevention, Punishment, and Eradication
of Violence against Women, 1994; European Social Charter, 1961, and

European Social Charter (revised), 1996.


International Covenant on Civil and Political Rights 1966
The Body of Principles for the Protection of All Persons under any Form of

Detention or Imprisonment, 1988.


The Declaration on the Protection of All Persons from Enforced
Disappearance, 1992.
73

The Principles on the Effective Prevention and Investigation of Extra-legal,

Arbitrary and Summary Executions, 1989.


The African Charter on Human and Peoples Rights, 1981.
The American Convention on Human Rights, 1969.
The European Convention on Human Rights, 1950.
African Charter on the Rights and Welfare of the Child, 1990.
Additional Protocol to the American Convention on Human Rights in the

Area of Economic Social and Cultural Rights, 1988.


Framework Convention for the Protection of National Minorities, 1995.

PUBLICATIONS OR ARTICLES

Parker, C Parker. 1991. The Administrative Justice Provision of the Constitution


of the Republic of Namibia: a Constitutional Protection of Judicial Review and
Tribunal Adjudication under Administrative Law. Comparative and International
Law Journal of Southern Africa. 24 CILSA 88 Cases.

Juwayriya B, & Muhammad B.(2013). An Appraisal of Administrative Justice and


Good Governance in Nigeria. Journal of Politics and Law 6. No. 2(2013.): 1.

Nakuta, J & Chipepera, F.(2011). The Justice Sector and the Rule of Law in
Namibia: Management, Personnel and Access. Windhoek. Namibia Institute for

Democracy,1.
Corder. 1980. The Content of the Audi Alteram Partem in South African
Administrative Law. 43 THRHR 156.

NEWSPAPERS
The Namibian
New era
Informante
Windhoek Observer
WEBSITES

http://en.wikipedia.org/wiki/legal

74

75