Review of irregularity – deviation from normal order prescribed in court rules
(SCR 2-2023) [2024] NASC (18 March 2024)
Facts
Job Amupanda (first respondent) instituted an action in the High Court to remove the Veterinary Cordon Fence (the fence or the Red Line) which stretches across the country from east to west. This fence separates the country into two parts, namely: the area to the north of it, where historically and currently, agricultural activities are carried out on communal land and the area to the south of it where agricultural activities are carried out on communal areas and on individually owned land and where historically, European settlement occurred during the country’s colonisation. Amupanda contends that the use of the fence and the veterinary controls associated with it were not instituted in terms of any law; that the fence is unconstitutional and that any confiscation of red meat at the fence (coming from north of the fence) by officials is unlawful. Amupanda seeks an order that the fence be removed within 90 days.
The government maintains that the fence is still necessary to prevent animal diseases from spreading to the area south of the fence and to preserve lucrative overseas markets for animal products emanating from the area south of the fence until a practical mechanism or manner can be found to move the Red Line north partially or up to the border with Angola or to abolish it whilst also ensuring the animal health situation is such that the markets for animal products outside Namibia is not jeopardised.
At the end of August 2023, Amupanda launched an application for a protective costs order in terms of rule 20 of the Rules of the High Court. He averred that he ‘will not be able to proceed to trial in this matter seeing that the costs are likely to be astronomical and beyond his pockets’; that ‘the costs are likely to go into millions’ and that ‘if there is no protective costs order, my meagre estate will be completely wiped out’.
The minister of Agriculture, Water and Land Reform (the minister) filed an opposing affidavit on behalf of the government parties in opposition to this application. The minister took issue with the manner in which Amupanda dealt with his financial resources and the likely costs of the litigation (ie the itemised statement of account to establish the likely costs involved; not providing a full statement of his monthly income and expenditure supported by documentary evidence; an explanation as to why he could not obtain legal aid; for not providing a disclosure of resources of the Affirmative Repositioning Movement of which he is the driving force and the full disclosure of any contributions made by parties supporting him in his stance with regard to the removal of the Red Line). Similar issues are also raised on behalf of the Meat Board of Namibia (the Meat Board) in opposition to the application. The minister and the Meat
Board submitted that in view of the paucity (scarcity) of the information as to his financial position when he clearly had a lot more to disclose resulted in him not meeting the requirements set out in rule 20(1)(c) of the Rules of the High Court and that his application had to be dismissed on this basis alone.
In its findings, the High Court agreed with the Minister and the Meat Board’s contention that Mr Amupanda did not fully disclose his financial position and has not met the requirements set out in rule 20(1)(c). The court a quo further found that – because of the financial situation presented by Mr Amupanda – it was not in the position to arrive at a conclusion as to whether or not it is just and fair that a protective costs order be granted in favour of Mr Amupanda. That the conclusion the court has arrived at would ordinarily have one result which is the refusal and dismissal of the application for a protective costs order. However, considering the purpose of rule 20 – the court a quo found that a person who has an arguable case that involves a matter of public interest must not, for fear of an adverse costs order, be deterred from pursuing a claim.
Consequently, the court made an order granting Mr Amupanda leave to supplement his papers and to place a more detailed application before the court for it to properly assess his financial resources and the amount of costs that are likely to be involved in this matter.
‘[9] It is clear that the judge a quo views the order as a postponement of the matter to allow Mr Amupanda to rectify the defects identified by a certain time, if he so wishes. It follows from the judgment in which it was found that he complied with the other requisites spelled out in rule 20, that Mr Amupanda is advised to address the issues mentioned in prayer 1 of the order or face the dismissal of his application at the next status hearing referred to in para 4 of the order should he not supplement his application.’
It is this decision that the applicants (and the Meat Board) contend that the court a quo committed an irregularity when it made its order, and thus invoked the Supreme Court’s review jurisdiction to have the court a quo’s order reviewed and set aside.
‘[10] In the current application, issue is taken with the above decision of the court a quo on the basis that, it was never indicated by counsel acting on behalf of Mr Amupanda that he should be granted leave to file further affidavits in respect of the matters mentioned in the order despite the point of this lack of particularity being taken in the answering affidavits of the current applicants and argued at the hearing. This according to the submissions of the current applicants left the court a quo with no option but to refuse the application for a protective costs order with costs. According to the current applicants, the court a quo acted irregularly when it made its order, and the order must be reviewed and set aside. None of the parties concerned were forewarned of the possibility of such an order by the judge a quo so that they could make submissions in this regard.’
Issues for determination
The issue before the Supreme Court was whether the High Court acted irregularly when it made its order, and if so, what remedy should be granted to the current applicants.
Discussion
‘[16] Section 16 of the Supreme Court Act 15 of 1990 provides for reviews of proceedings in the High Court where an irregularity in the proceedings occur in that court. The question to determine thus is whether the order of the court a quo amounted to an irregularity in the proceedings.’
The nature of the review application is limited to the requirements stipulated in rule 20(1)(c) and the consequences of a failure to adhere to such stipulations. The judge a quo in his response to this review application stated that the orders he made ‘are rooted in the inherent powers which the High Court has to regulate the process’.
‘[25]I agree with counsel for the applicants and the Meat Board that the reliance by the judge a quo on the inherent jurisdiction of a court to deviate from the normal order that he should have made subsequent to his finding that Mr Amupanda did not comply with the requisites and without affording them the opportunity to address him on the order he contemplated making was irregular as the position he found himself in was covered by the rules of the High Court as I point out below.
Effect of the irregularity
[27] From the reading of the judgment and the resultant order, it is clear that the judge a quo did not want to close the door on Mr Amupanda when it came to a protective costs order which would have been the case had he done what counsel for the applicants and the Meat Board submit was the inevitable result of his finding. As pointed out by the judge a quo, he was given insufficient information with regard to the financial position to conclude ‘whether or not it is just and fair that I grant a protective costs order in his favour and what conditions I must impose’ should such order be granted. The provisions of rule 20(1)(c) were not met by Mr Amupanda. To enable Mr Amupanda to approach the court again for a protective costs order he would have to give an order that would effectively amount to an order for absolution from the instance on the papers placed before him.
[28] There was no need for the judge a quo to rely on any inherent jurisdiction of the court to determine its own process as the Rules of the High Court make express provision for such an order. When it was raised by this Court it became clear that none of the parties nor the judge a quo had regard to it. This rule was not referred to by any of the counsel involved nor by the judge a quo. Rule 67(2) reads as follows: ‘(2) After hearing an application the court may make no order, except an order for costs, if any, but may grant leave to the applicant to renew the application on the same papers, supplemented by such further affidavits as the case may require or allow.’
[39] The irregularity occurred because the judge a quo seemed to not have regard to rule 67(2) when he made his decision, but instead the inherent jurisdiction of the court to regulate its own process. As already indicated, this was an irregular use of such power and furthermore so was the omission to not allow the parties to make representations as to the proposed order the judge a quo intended making.
[41] It follows that an order in line with rule 67(2) would have been appropriate and the effect of the order given under the mistaken view that it could be granted pursuant to court’s inherent power to regulate that process was not necessarily prejudicial to the applicants. It seems that the only prejudice suffered is that there was no costs order given against Mr Amupanda.’
Findings Held that,
the consequence of omitting to satisfy the necessary requirements in respect of a relief sought normally leads to the dismissal of an application with a concomitant adverse costs order. The court a quo correctly recognised this in the judgment a quo.
Held that, the reliance by the judge a quo on the inherent jurisdiction of a court to deviate from the normal order that he should have made subsequent to his finding that Mr Amupanda did not comply with the requisites of rule 20(1)(c) was irregular and the order he made will therefore be set aside as it constitutes an irregularity in the proceedings.
Held that, it is clear that the judge a quo did not want to close the door of the court to Mr Amupanda, an order in line with rule 67(2) of the Rules of the High Court with an appropriate costs order would have been the correct course.
It thus follows that the order of the court a quo is reviewed and set aside.
Court order
The High Court order was set aside and replaced with an order in terms of which the applicant (Mr. Amupanda) was granted leave to renew his application for a protective order, on notice to the respondents, on the same papers supplemented by such further affidavits, with costs for opposing that application. No cost order was made in respect of the review application.
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