Government of the Republic of Namibia v Affirmative Repositioning Movement (SA 16-2021) [2023] NASC (26 July 2023)

This was an appeal against a judgment of the High Court dismissing an exception to the respondent’s (plaintiff a quo, being the AR movement) particulars of claim. In its action in the court a quo, the AR Movement sought an order directing the first appellant (first defendant a quo, being the GRN) to service 200 000 plots within a period of two years, in the alternative an order directing the first appellant to, within a period of two years, service 200 000 plots less the plots that the first appellant may have serviced since 24 July 2015. 

For its claim before the court a quo, the respondent relied on a partly oral and a partly written agreement concluded between itself, represented by Mr Job Shipululo Amupanda, and the first appellant represented by H.E. President Hage Geingob. The partly written agreement was marked as ‘Annexure “JSA1”’ and attached to the particulars of claim. In terms of the partly written agreement, it was resolved that in line with the War Declared on Poverty by the President during his inauguration and during the 2015 State of the Nation Address, a nationwide project was earmarked towards servicing of urban land and land allocation. In that regard, it was resolved that first appellant would immediately embark on a project to service 200 000 plots countrywide. Further, that this would start on a pilot project basis by servicing identified land in Windhoek, Walvis Bay, and Oshakati. In return, the respondent would not continue with its intended radical program of action to occupy land in urban areas. The respondent alleged compliance on its part and breach on the part of the first appellant. The terms of the alleged partly oral agreement featured nowhere in the particulars of claim.

The appellants excepted to the particulars of claim on the ground that (a) the alleged agreement was against public policy or the rule of law and was thus unenforceable, (b) there was no enforceable agreement that the court could enforce, (c) that when the second appellant acted as he did, he did so in his capacity as ‘State President’ and therefore his actions were executive in nature and were not enforceable in a court of law and (d) the resolutions set out in paras 2-7 of “Annexure JSA1” were policy matters of the Government of the Republic of Namibia and could not be enforced as terms of an agreement by a court of law.

The court a quo dismissed the exception and held that it could not be said that the agreement created no binding and reciprocal enforceable obligations between the parties. 

On appeal, the appellants contended that by conflating the four bases of the exception into one, the court a quo failed to interpret the terms of the agreement as alleged and thereby failed to consider the nature of the relationship of the parties to the alleged agreement. The wrong approach adopted by the court a quo in the determination of the appeal resulted in the wrong findings at paras 19, 24 to 31, and 36 of its judgment. The respondent did not participate in the appeal.

Held that:

The terms of the alleged partly oral agreement featured nowhere in the particulars of claim.

The resolutions lacked the binding nature of contracts. 

The land issue was a national issue, it was not of a commercial or business nature.

There was no animus contrahendi in the sense required to found a legally enforceable contract and therefore the alleged agreement was not binding in law. At most, its terms were binding in honour only.

The respondent’s basis for the contract was illegal in our law. Respondent could not occupy land in urban areas without the consent of the owners.

The resolutions were policy utterances and nothing more.

Consequently, the appeal was upheld.

President of the Republic of Namibia and Others v Namibia Employers Federation and Another (SA 53 of 2020) [2022] NASC 28 (2 September 2022)

After declaring a State of Emergency (SOE) in the wake of the outbreak of the Covid-19 pandemic, in terms of Article 26(1) of the Constitution, the President of Namibia proceeded to impose a nationwide lockdown restricting the movement of people, save those performing ‘essential services’. The President did so purporting to act in terms of Article 26(5)(b) of the Constitution. The lockdown effectively stopped all economic activity, and workers were required to stay at home with the likelihood they would lose income. To protect workers’ salaries, the President, purporting to act in terms of Article 26(5)(b) suspended certain provisions of the Labour Act 11 of 2007 (ss 12, 23, and 34) which could be relied upon by employers to mitigate their losses due to the outbreak of the pandemic and the imposition of the lockdown. These provisions, if not suspended, would allow employers to retrench workers, reduce their working hours at reduced remuneration, or compel them to take leave without pay.

The President also made certain Regulations 14 and 15 to delegate to ministers his
regulation–making power under Article 26(5)(b) of the Constitution.

Two employers’ organizations challenged Reg. 19, principally on the basis that it was aimed solely at protecting workers’ livelihoods and did not meet the constitutional threshold of being ‘reasonably justifiable’ to deal with the situation that has given rise to the SOE. The employers’ organizations also challenged the President’s delegation of directive-making power to ministers on the basis that it was ultra vires Article 26(5)(b), as only the President is authorized to make regulations.

The High Court agreed with the employers’ organizations and struck down the suspension regulations and the President’s delegation of directive-making powers. The Government appealed to the Supreme Court, stating that the High Court failed to interpret Article 26(5)(b) ‘broadly and purposively’, and that Article 26(5)(b) must be read to contain an implied power for the President to make regulations to mitigate the consequences of measures he takes to deal with a SOE (the pandemic). As regards the striking down of the delegation regulations, the Government maintained that the challenge was premature as the President had not actually delegated any power to the ministers.

Held that:

Article 26(5)(b) must be read to include an implied power for the President to make regulations to deal with the situation that has given rise to the SOE, but such regulations must themselves be reasonably justifiable for the stated purpose; that farther removed such a regulation from the situation that has given rise to the SOE, the higher the burden of justification required; such regulations must also be reasonable and be rationally connected to the legitimate objective of arresting the spread of the pandemic.

Regulation 19 was both unreasonable and irrational and therefore the High Court’s’ order invalidating it is correct;

The challenge to the directive–making power was premature and the High Courts’ order declaring Regulations 14 and 15 must be set aside.

As a result, the appeal succeeded in part only.  

President of Republic of Namibia and Others v Anhui Foreign Economic Construction Group Corporation Ltd and Another (SA 59 of 2016) [2017] NASC 7 (28 March 2017)

On 3 December 2015, the permanent secretary of the Ministry of Works and Transport (the Ministry) sent a letter to the first respondent (Anhui) to inform the latter that it had been allocated a tender to upgrade and expand the Hosea Kutako International Airport (the airport) near Windhoek for a sum exceeding U$447 million. Within approximately a week, a series of news reports appeared in the print media alleging irregularities on the part of the Namibia Airports Company (NAC), as well as bribery and corrupt practices and alleging that more cost-effective bids had been ignored and generally questioning the scale of expenditure. Following these reports, the President of Namibia issued a media release on 22 December 2015, referring to these allegations and stating that the award had been terminated and that he would instruct the Minister of Works and Transport (the minister) to invoke s 9 of the Airports Company Act, 25 of 1998 (the Act) to direct the NAC to discontinue all activities relating to the project. 

Anhui urgently sought the review of the minister’s decision to act under s 9 and certain declarators. The application was opposed and the government respondents (the President and the Ministers of Finance and Works and Transport) brought a counter application to set aside the award as encapsulated in the Permanent Secretary’s letter of 3 December 2015.

The High Court set aside the minister’s decision to direct the discontinuation of all activities relating to the project but declined to grant the declarators sought by Anhui and also declined the Government’s counter application to set aside the award. 

The government respondents (the appellants) appealed against the judgment and orders of the High Court.

At issue in the appeal was whether the order setting aside the minister’s decision should have been granted and whether the High Court should have granted the counter application to set aside the award by the permanent secretary.

The Supreme Court found that the letter 3 December 2015 in its own terms amounted to an award of the project by the permanent secretary on behalf of the ministry to Anhui. The letter was to be understood and viewed in the context of a letter by the permanent secretary on the same date to the NAC, stating that the Government of Namibia had approved the project. As an implementer of capital construction projects financed by the Government, the ministry had been mandated to award the contract to the successful tenderer Anhui.

The court found that it was thus established that an award had been made in the letter of 3 December 2015. It was common cause that the Tender Board Act of 1996 had not been followed which was required for valid procurement in capital projects involving the Government. Nor had Treasury approval been granted under the State Finance Act. The failure to follow the procedures in the Tender Board Act meant that the award was invalid and had to be set aside.

The High Court should have granted the counter application and set aside the award. That court’s order was to be corrected to reflect that. Counsel for the appellants conceded that the Minister’s instruction to the NAC (to discontinue all activities in relation to an airport upgrade) made at the President’s behest was invalid but argued that the court should not set it aside.

The court found that the Minister’s instruction was invalid in several separate respects amounting to comprehensive non-compliance with the provisions of the Airports Company Act invoked by both the President and the minister. The general powers of the President and Cabinet would not save the directive from invalidity.

The default position is to set aside an invalid act and refer the matter back to the functionary in question. The court found that no coherent reasons were raised as to why the defective directive should not be set aside. On the contrary, its public interest setting – relating to public procurement of a large scale - required that statutory provisions be scrupulously complied with. Good governance and transparency required this. The court also referred to the compelling public interest in vindicating the Constitution and the rule of law by setting aside invalid administrative action. The court found that the High Court was correct in setting aside the minister’s directive.

It follows that the appeal succeeded in part (resulting in the setting aside of the award in the letter of 3 December 2015) and failed in part (with the appeal against setting aside the Minister’s directive being dismissed).

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