Agricultural Bank of Namibia v Gaya (SA 38-2023) [2023] (28 July 2023) – QOURUM – CONSTITUTIONALITY OF DESIGNATING ONE JUDGE TO DETERMINE AN APPLICATION IN TERMS OF S 14(7)(a) OF THE SUPREME COURT ACT (INSTEAD OF THREE JUDGES IN TERMS OF ART 79(3))
Agribank (applicant/plaintiff) advanced the sums of N$238 000 and N$7 256 500 to the defendant/respondent in 2014 and in 2016, respectively. Agribank as plaintiff obtained judgement against the defendant on 25 September 2019 for N$359 950,72 and N$9 345 455,42 together with interest at specified rates and costs. Writs were issued and followed by nulla bona returns. Agribank applied under rule 108 of the Rules of the High Court to have the defendant’s immovable property and a farm declared executable. That application was personally served on the defendant. On 12 June 2020, the High Court declared both properties executable.
The applicant proceeded to take steps to execute the order in its favour by issuing a notice of sale in execution of the farm. It took place on 7 April 2022. The farm has not yet been transferred to the purchaser. Within a few weeks of the sale, the respondent on 28 April 2022 applied to the High Court for the rescission of the default judgement of 25 September 2019 and the one incorrectly referred to as on 20 January 2020, with apparent reference to the unopposed judgement granted under rule 108 of the High Court rules on 12 June 2020.
The High court per Christiaan AJ dismissed the rescission application with costs on 5 April 2023. The respondent filed a notice of appeal against the dismissal of the rescission application on 27 April 2023. This notice resulted in Agribank’s application under section 14(7), read with rule 6, seeking the summary dismissal of the respondent’s appeal. Agribank asserted that the appeal was without any prospects of success, frivolous and vexatious, and fell to be dismissed.
In opposition to the application, the respondent filed an answering affidavit,t in which she raised a preliminary point that section 14(7)(a) conflicts with Art 79(3) of the Constitution, and is invalid in that by seeking to authorise a single judge of this Court to determine this application, s 14(7)(a) conflicts with the provisions of Art 79(3), which sets the quorum of the Supreme Court at three judges when hearing appeals.
Given the constitutional question raised by the respondent, the Chief Justice directed this matter to be set down for hearing on 18 July 2023 for purposes of hearing argument on the respondent’s preliminary point concerning the constitutionality of section 14(7). Three justices of the Supreme Court considered the matter.
‘[20] … The preliminary point was raised in an application under section 14(7)(a) directed to the Chief Justice, and falls to be considered and determined by a court as constituted by the Chief Justice or a judge of this Court designated by him. By its nature, an application under section 14(7)(a) is not first made in the High Court, and is decided as of first instance in this Court.
[21] The preliminary point is thus considered without the benefit on argument of the issue by the party who invoked the impugned provision, a circumstance which is less than what would be expected of a party when invoking a legal remedy to secure debts due to it.’
Is section 14(7)(a) in conflict with the Constitution?
Having set out the proviso and the procedure for bringing applications under it in terms of rule 6, and having considered the provisions of Art 79 as a whole, the Supreme Court stated that:
‘[25] Article 79(3) requires that when this Court hears appeals and matters referred to it as contemplated under Art 79(2), three judges constitute a quorum of this Court.
“(2) The Supreme Court shall be presided over by the Chief Justice, and shall hear and adjudicate upon appeals emanating from the High Court, including appeals which involve the interpretation, implementation and upholding of this Constitution, and the fundamental rights and freedoms guaranteed thereunder. The Supreme Court shall also deal with matters referred to it for decision by the Attorney-General under this Constitution, and with such other matters as may be authorised by Act of Parliament.
(3) Three (3) Judges shall constitute a quorum of the Supreme Court when it hears appeals or deals with matters referred to it by the Attorney General under this Constitution: provided that provision may be made by Act of Parliament for a lesser quorum in circumstances in which a Judge seized of an appeal dies or becomes unable to act at any time prior to judgement.”
[26] In essence, s 14(7)(a) provides for the summary dismissal of an appeal by the Chief Justice or any judge designated for that purpose in the very confined circumstances set out in s 14(7)(a). This power is exercised upon application to this Court by a party on appeal upon notice to the other parties to that appeal in accordance with the procedure set out in rule 6.
[27] Section 14(7)(a) envisages an application directed to the court for the summary dismissal of an appeal on the grounds of being frivolous, vexatious or without merit. It thus entails an application directed for the very confined purpose of preventing an abuse of its process, which this Court has the inherent power to do.
[28] This Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) stressed that what amounts to an abuse of process is insusceptible to precise definition, stating:
‘While there can be no all-encompassing definition of the concept of “abuse of process”, that is not to say that the concept of abuse is without meaning. It has been said that “an attempt made to use for ulterior purposes machinery devised for the better administration of justice” would constitute an abuse of the process. In Beinash v Wixley, the Supreme Court of Appeal in South Africa held that “an abuse of process takes place where the procedures permitted by the Rules of the Court to facilitate the pursuit of the truth are used for a purpose extraneous to that objective”. In Price Waterhouse Coopers Inc and Others v National Potato Co-Operative Ltd, it was held that “[i]n general, legal process is used properly when it is invoked for the vindication of rights or the enforcement of just claims, and it is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end.”’
(Footnotes excluded.)
[29] As explained by Damaseb DCJ in Permanent Secretary of the Judiciary v Somaeb & another 2018 (3) NR 657 (SC):
‘[13] The court has an inherent jurisdiction to prevent an abuse of its process. As was recognised in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) para 21:
“Abuse connotes improper use, that is, use for ulterior motives. And the term “abuse of process” connotes that “the process is employed for some purpose other than the attainment of the claim in the action.”
[14] An appeal is liable to be summarily dismissed under s 14(7)(a) either if it is (a) frivolous, (b) vexatious or (c) without any prospect of success. There is no prospect of success where the litigant, objectively viewed, has no reasonable chance of success. It is conceivable that an appeal which qualifies as one of the three jurisdictional alternatives will also fall under one or both of the other two criteria. In my view, there is no fine dividing line to be drawn between the three categories. The common denominator between the three categories is that the appeal to which they relate is so unmeritorious that no court can grant a remedy for it under the law.
[15] To illustrate, if an appeal is frivolous, it would be vexatious for a party to pursue it. An appeal without any prospects of success is an exercise in futility, and therefore frivolous. Its only reason would be to annoy and, in that sense, is vexatious.’
[30] As to the meaning of vexatious, the Labour Court has held:
‘The question arises: what does it mean to say that a party has “acted frivolously or vexatiously”? In Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) Nicholas J, as he then was, while dealing with an application to stay proceedings which were alleged to be vexatious or an abuse of the process of the court, said this (at 1339F):
“In its legal sense, “vexatious” means
“frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant”
(Shorter Oxford English Dictionary). Vexatious proceedings would also no doubt include proceedings which, although properly instituted, are continued with the sole purpose of causing annoyance to the defendant; “abuse” connotes a mis-use, an improper use, a use mala fide, a use for an ulterior motive.’
[31] The purpose of applications under s 14(7)(a) is to prevent an abuse of this Court’s process. To this end, s 14(7)(a) envisages applications for summary dismissal on the very confined grounds referred to in order to avoid the abuse of this Court’s process. The confined question to be determined in such applications is whether an appeal is frivolous or vexatious, or without merit. It does not entail or amount to the hearing of an appeal. If the appeal does not amount to an abuse, then the appeal proceeds to be heard in accordance with the rules by a quorum of three judges.
[32] The provisions of Art 79(3) thus do not apply to applications under s 14(7)(a). There is thus no conflict between s 14(7) and Art 79(3). It follows that the preliminary point is to be dismissed.’
Therefore, it was held that:
Section 14(7) provides for the summary dismissal of an appeal by the Chief Justice, or any judge designated for that purpose. This power is exercised upon application to this Court by a party on appeal upon notice to the other parties to that appeal in accordance with the procedure set out in rule 6 of the rules of this Court. Where an appeal is not summarily dismissed, it then proceeds to be heard in accordance with the procedures of this Court, and a quorum of three judges would hear that appeal as provided for by Art 79.
Section 14(7)(a) in essence envisages an application directed to the court for the summary dismissal of an appeal on the grounds of being frivolous, vexatious and without merit. It entails an application directed for the confined purpose of preventing an abuse of its process, which this Court has the inherent power to do, and does not amount to the hearing of an appeal itself. The issue to be determined in the application is whether or not the noting of an appeal amounts to an abuse of process, and not determining the appeal itself. If the appeal does not amount to an abuse, then it proceeds to be heard in accordance with the rules.
It was thus held that the provisions of Art 79(3) do not apply to applications under s 14(7)(a). As there is no conflict between s 14(7) and Art 79(3), it follows that the preliminary point is to be dismissed.
As a result, the preliminary point directed at challenging the constitutionality of s 14(7)(a) of the Supreme Court Act 15 of 1990 and rule 6 of the rules of this Court was dismissed, with no costs, and the matter was referred to the judge of the Supreme Court designated to determine it in terms of section 14(7)(a).
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