The matter in which Job Amupanda is asking the courts to remove the veterinary cordon fence, also known as the red line, suffered a setback in the Supreme Court.
Judges of Appeal Theo Frank, Dave Smuts, and Elton Hoff upheld an appeal by the Minister of Agriculture, Water, and Land Reform against a decision by High Court Judge Shafimana Ueitele to grant Amupanda a further opportunity to supplement his papers and place a more detailed application before the court to properly asses his financial resources and the amount of costs that would likely be involved in the matter. Aggrieved by this decision, the minister appealed the ruling in the Supreme Court. They argued that the High Court did not have the power to make such a ruling and should have in the wake of its conclusion that Amupanda failed to make out a case for a protective cost order dismissed the application.
Amupanda applied to the High Court to protect himself from costs should he fail in his challenge to have the red line removed. He claimed that since the matter involves public interest, he should not be punished for bringing such an important subject to the fore.
According to the leader of the Affirmative Action Movement (AR), Article 12 of the Namibian Constitution dictates that matters of public interest must be resolved efficiently and as cost effectively as possible and ensure that all parties are on an equal footing.
Judge Ueitele in his judgment, however, found that Amupanda did not provide sufficient evidence of his financial position before the court, and as such it was not able to conclude as to whether or not it is just or fair that a protective cost order be granted in Amupanda’s favour.
This should have been the end of it, the Supreme Court said.
However, Judge Ueitele found that the matter involved public interest, which allowed him to invoke the court’s inherent discretion to deviate from normal procedures.
The Supreme Court, however, found the judge acted irregularly when he deviated from the normal procedures.
According to the Supreme Court, the consequence of omitting to satisfy the necessary requirement for a protective cost order will automatically lead to the dismissal of the application with a concomitant costs order. Further, the judges stated, that the reliance of Judge Ueitele on the inherent jurisdiction of the High Court to deviate from the normal order he should have made subsequent to his finding that Amupanda did not comply with the requisites of the application was irregular and the order will be set aside as it constitutes an irregularity in the proceedings.
They further said that it is clear the High Court did not want to close the door to Amupanda, which would have been the correct order. As a result, they set aside the order of the High Court with costs of one instructing and two instructed counsel for the High Court matter. The Supreme Court, however, granted Amupanda the opportunity to renew the application on notice to the respondents on the same papers supplemented by such further affidavits as required.
Amupanda did not oppose the appeal and no cost order for the appeal was made.
The minister was represented by advocate Herman Steyn assisted by Marius Boonzaier instructed by the government attorney.