WINDHOEK – Supreme Court Acting Judge of Appeal Theo Frank was removed from any involvement in the pending appeal of Finance Minister Calle Schlettwein against a decision by the Windhoek High Court to stay the implementation of the provisions of the NamibRe Act, pending the outcome of a constitutional challenge against the provisions of the Act.

The minister and NamibRe petitioned the Supreme Court to appeal the stay order and Acting Judge of Appeal Theo Frank refused the petition in chambers.

The minister and NamibRe then brought an ex post facto (retrospective action) application for Judge Frank to recuse himself from the matter as well as for an order declaring the High Court decision a nullity so that a full bench of the High Court can consider it afresh.

Deputy Chief Justice with Judge of Appeal Elton Hoff and Acting Judge of Appeal Bess Nkabinde concurring found that Judge Frank, having been the lead counsel for the insurance industry, his remunerated association with Nedbank Namibia Holdings Limited and his previous directorship in Trustco Holdings, would warrant a reasonable lay person to, on the known facts, reasonably form the view that Judge Frank might not bring an impartial mind to bear in the petition and further that he should not have decided on the petition without disclosing such information.  

The Supreme Court however declined to consider the declaratory order as it was not part of the application to the Supreme Court.
In any case, the Supreme Court judges said, the stay order was never part of the original constitutional challenge or the urgent application by the minister and NamibRe to compel the insurance companies to adhere to the provisions and regulations of the NamibRe Act or face prison time. 

In fact, Deputy Chief Justice Damaseb, who wrote the unanimous judgement, said the order of stay was not part of the proceedings in the High Court and the presiding judge chose the lesser of two evils by ordering the stay pending the constitutional challenge.

He further said the issue whether the stay order is appealable is obvious since it is incompetent even if it is only interim and not final.

“Allowing an incompetent order to stand offends the rule of law and legality,” Judge Damaseb said and continued: “The debate about appealability concerns competent orders granted by the High Court.”

The judge further said having found that the order of stay is appealable, the test now is to consider whether the Supreme Court may come to a conclusion that the stay order is incompetent and cannot be allowed to stand.

He said it is common cause that the order of stay was not asked for in the pleadings of the insurance companies and was not an issue in the proceedings in the High Court and as was made clear by Judge Hoff in a judgement ‘that a court is only competent to grant orders which were asked for.’  

In the recent instance, Judge Damaseb said, the Supreme Court might therefore set aside the order of stay on appeal.      

Schlettwein and NamibRe dragged the eight companies, Hollard Insurance Company of Namibia Limited, Hollard Life Namibia Limited, Sanlam Namibia Limited, Santam Namibia Limited, Trustco Insurance Limited, Trustco Life Limited, Outsurance Insurance Company of Namibia Limited, Old Mutual Life Assurance Company Namibia Limited and their respective CEOs to court after they refused to re-insure a percentage of their insurance premiums with the state-owned company in defiance of the Act. 

The insurance companies launched an application of their own in the High Court to challenge the constitutionality of the Act and is refusing to re-invest with NamibRe pending the finalisation of their application.

Judge Thomas Masuku however made a ruling staying the implementation of the Act until the outcome of the constitutional challenge.