WINDHOEK – The bringing of review applications at the point where it is not final in nature is not in the interest of justice nor is it cost effective, a Windhoek High Court Judge said when he dismissed a review application by a disgruntled advisory and risk assurance leader against a decision by the Public Accountants’ and Auditors’ Board (PAAB) to charge him for misconduct.
Hans Frederich Hashagen brought the review application after the board received a complaint of misconduct lodge by former Chief Executive Officer of the Namibia Financial Institutions Supervisory Authority, Reiner Ritter who was unceremoniously axed after an investigation by Ernst & Young auditors.
After the PAAB informed Hashagen of the pending inquiry against him, he approached the High Court with an application to review and set aside the decision to charge him and costs in the matter.
The PAAB opposed the application and raised various objections including one that the relief sought is premature as well as that the applicant failed to exhaust the internal remedies available to him.
According to Judge Thomas Masuku, the question to be answered is whether any of the applicant’s rights are affected if he submits himself to a disciplinary hearing.
Further, the judge asked, can it be said that the decision to refer the applicant to the disciplinary hearing be said to affect the applicant’s rights in a manner that has a direct and external legal effect?
“To answer this question, I am of the considered view that it is imperative to consider the nature of the proceedings sought to be reviewed,” the judge said and continued: “In this regard, it appears unquestionably that from the record that the applicant was charged subsequent to a complaint by Mr Ritter and he was requested to place his defence or plea to the said charge. It was at that stage that the applicant then launched the application for review.
The judge went on to say that in this regard, the PAAB contends that the decision is incapable of review since it is not a final decision.
He further said that in his considered view, where a party in the position of the applicant, who is being requested to respond to allegations of misconduct, and the matter is at a stage where the parties are exchanging pleadings so to speak, the process might later found an application for review is still unfolding and should be allowed to reach what may be referred to as its full gestation period, without applying methods to prematurely deliver the final and reviewable result as it were.
According to Judge Masuku, the preferring of charges is a preparatory step that is followed by successive steps, including the filing of papers, the hearing itself, and ultimately, a decision.
It accordingly appears to me that in the ordinary development of the case, the decision that can be said to have a direct external effect on the applicant’s rights, and thus amenable to the court’s powers of review would be the final result, the judge stated.
“At this stage, it appears to me, there is no administrative decision that has a direct external effect on the applicant’s rights made by the respondent (PAAB) which can be classified as reviewable in nature,” he continued.
Judge Masuku is of the opinion that if courts were to entertain the present application in the present circumstances, it would set a dangerous precedent and administrative bodies may be impeded in the conduct of their work, as there would be intermittent stoppages.
“Not only would valuable time be lost and the proceedings dragging unnecessarily, but the parties would be indulged in costs order at every turn, which may be inimical to the parties’ interests and those of the administration of justice,” Judge Masuku stressed.
He went on to say that if such situations are allowed, disciplinary bodies and other boards similar circumstanced, may be vexed and frustrated by countless applications for review of steps within the process but which do not have a final and decisive effects on the rights of the subject.
For these and other reasons, the application must fail and is thus dismissed with costs for one instructing and two instructed counsel, Judge Masuku ruled.
Hashagen was represented by Advocate Raymond Heathcote SC assisted by Phumlani Ngcongo SC instructed by HD Bossau and Co. and the PAAB by Advocate Rafik Bhana SC assisted by Advocate Stuart Scott instructed by Kangueehi and Kavendji
Inc.