trustco insurance t-a legal shield-o vs the deeds registries regulation board-others
TRANSCRIPT
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REPORTABLE
SUMMARY
Case No.: A 150/2008
IN THE HIGH COURT OF NAMIBIAIn the matter between:
TRUSTCO INSURANCE LIMITED t/a LEGAL SHIELD NAMIBIA AND ANOTHER
v THE DEEDS REGISTRIES REGULATION BOARD AND OTHERS
PARKER J etNDAUENDAPO J
2010 June 4
_________________________________________________________________________
Constitutional Law - LegislationDeeds Registries Act, 1937 (Act No. 47 of
1937; made applicable to Namibia on 1 June 1972 by
the Deeds Registries Amendment Act, 1972 (Act No. 3
of 1972)), as amended Subordinate legislation made
in terms of s 10 (1) (c) thereof The subordinate
legislation in the form of Regulation 65 in Government
Notice No. 180 of 1996 of 1 July 1996 (as amended)
and Schedules I and II annexed thereto (as amended)
Regulation prescribing fees for conveyancing and
notarialwork and annexed Schedule I containing the
Fees of Office and Schedule II containing the Tariff of
Conveyancing and Notarial Fees1st applicant and 2nd
applicant challenging validity of Regulation 65 (as
amended) and the annexed Schedules I and II (as
amended) based on Article 21 (1) (j) and Article 18 of
the Namibian Constitution Locus standi of 1st
applicant raised as preliminary objection Court
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finding that the Regulations and the Schedules
concern conveyancers and 1st applicant is not a
conveyancer but carries on business of short-term
insurance and 1st applicant does not allege that its
right to carry on business of short-term insurance has
been infringed Court finding further that at best 1st
applicant has only an indirect financial interest in
outcome of the matter Consequently, Court finding
that the 1st applicant is not an aggrieved person
within the meaning of Article 25 (2) of the Namibian
Constitution and therefore not having locus standi
Accordingly, Court upholding the point in limine andholding that 1st applicant has no locus standi in the
proceedings Court dismissing with costs the
application as respects 1st applicant after upholding
the preliminary objection on standing.
Constitutional Law - Basic human rights contained in Chapter III of the
Namibian Constitution Court confirming that those
basic human rights are justiciable because Article 25
(2) says soCourt finding that the nature, content and
extent of each of those basic human rights are
categorically expressed in clear and plenitudinal terms
Consequently, courts have no justification to add to,
modify or vary any one of those basic human rights
without stultifying the justiciability of the particular
basic human right protected by the Constitution
Court observing that the decision of the Supreme
Court in African Personnel Services (Pty) Ltd v
Government of the Republic of Namibia and OthersCase
No. SA 51/2008 (Unreported) must not be seen as
creating any basic human right additional to those
basic human rights contained in Article 21 (1) (j)
Court finding that there is no basic human right called
the right to compete on price guaranteed by theNamibian Constitution in terms of Article 21 (1) (j) and
protected in terms of Article 25 (2)Accordingly, Court
concluding that on the papers the 2nd applicant has
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failed to establish that his right to practise his
profession of conveyancer has been infringed in virtue
of the making of Regulation 65 (as amended) and the
annexed Schedules (as amended) Consequently, the
Court dismissing the 2nd applicants application with
costs.
Constitutional Law - Article 21 (1) (j) of the Namibian Constitution Court
finding that Article 21 (1) (j) contains two distinct and
separable rights, namely, (i) the right to practise any
profession or (ii) the right to carry on any occupation,
trade or business Court finding further that the
authority emerging in the Supreme Court decision in
African Personnel Services (Pty) Ltd v Government of the
Republic of Namibia and OthersCase No. SA 51/2008
(Unreported) concerns the right to carry on any
occupation, trade or business only.
Constitutional Law - Basic human right to administrative justice in terms of
Article 18 of the Namibian Constitution The 2nd
applicant attacking validity of Regulation 65 (as
amended) and the annexed Schedules (as amended) on
the basis of Article 18 Article 18 requirements
enumerated Court noting that in instant case 2nd
applicant relying on failure by 1st and 2nd respondent
to act reasonablyCourt laying down what burden the
applicant must discharge in order to succeed in
challenging validity of an act by an administrative
official or basis that they acted unreasonably On the
papers Court concluding that the 2nd applicant has
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failed to establish that in making Regulation 65 (as
amended) and the annexed Schedules (as amended)
the 1st respondent did act unreasonably and in
approving the Regulation and the Schedules the 3rd
respondent did act unreasonably Consequently, the
Court dismissing application with costs.
Statute - The Registries Act, 1937 (Act No. 47 of 1937), as
amended Section 10 (1) (c) thereof Court finding
that the chapeau of the section indicates that the
Board (1st respondent in casu) is given absolute
discretion to make regulations prescribing fees and
charges in connection with three distinct and separate
items Court concluding that it is not mandatory for
the Board to prescribe all the three items in a
Regulation that they may make Accordingly, Court
concluding that it cannot be argued that the 1 st
respondent acted unreasonably just because the 1st
respondent did not prescribe in Regulation 65 (as
amended) and the Schedules (as amended) taxation of
any such fees or charges, i.e. the third item.
Held, a person is not an aggrieved personwithin the meaning of Article 25 (2) of
the Namibian Constitution entitled to approach the Court for redress for himself
or herself unless such a person is able to establish that a right guaranteed to him
or her by the Constitution has been infringed or such infringement has been
threatened in relation to him or her.
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Held, further, that an indirect financial interest, as opposed to direct and
substantial interest in the outcome of a matter, cannot clothe a person with locus
standi to impugn, in terms of Article 25 (2) of the Constitution, the
constitutionality of a legislation or subordinate legislation made thereunder or an
act carried out under such subordinate legislation, as in the present case.
Held, further, that in order to maintain the justiciability of each of the basic
human rights contained in Chapter III of the Namibian Constitution, each such
basic human right is formulated in such a way that the nature, content or extent
of the particular basic human right are categorically expressed in clear and
plenitudinal terms; and so courts are not justified in adding to, varying or
modifying the rights expressly provided by the Constitution without stultifying the
justiciability of those basic human rights. Where, it is the intention of the framers
of the Constitution that the particular basic human right first mentioned shall
have supplementary or associated basic human right or rights included in the
first mentioned basic human right, the framers of the Constitution have made
such of their intention clearly known by using such peremptory words as shall
include, including, or includesin the formulation of the relevant provisions.
Held, further, that the requirement that an administrative body or an
administrative official must act reasonably in terms of Article 18 has to be
reconciled with no less important doctrine that the Court must not usurp the
discretion of the administrative body or administrative official which the
legislature in its wisdom and within its constitutional power appointed to act: the
Court may only intervene where in so acting the administrative body or
administrative official exceeded its or his or her power in terms of the legislation
the body or official is administering.
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Held, further, that the very concept of administrative discretion involves a right to
choose between more than one possible course of action upon which there is
room for reasonable people to hold differing opinions as to which is to be
preferred.
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Case No.: A 150/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between:
TRUSTCO INSURANCE LIMITED t/aLEGAL SHIELD NAMIBIA 1st Applicant
KRGER, VAN VUUREN & CO LEGAL 2nd ApplicantPRACTITIONERS
and
THE DEEDS REGISTRIES REGULATION BOARD 1st Respondent
THE REGISTRAR OF DEEDS 2nd Respondent
THE MINISTER OF LANDS, RESETTLEMENT
AND REHABILITATION 3rd Respondent
THE ATTORNEY GENERAL OF THE GOVERNMENTOF THE REPUBLIC OF NAMIBIA 4th Respondent
THE LAW SOCIETY OF NAMIBIA 5th Respondent
THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA 6th Respondent
CORAM: PARKER J etNDAUENDAPO J
Heard on: 2010 March 23
Delivered on: 2010 June 4
JUDGMENT
PARKER J.:
[1] The applicants instituted an application on 11 June 2008 on notice
of motion. That notice of motion was replaced by an amended notice of
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motion filed with the Court on 11 September 2008, moving the Court to
grant an order in the following terms:
(1) That the fees prescribed by the first respondent and approved by the
third respondent as contained in Schedules I and II to annexure II of
Regulation 65 of Government Notice No. 180 of 1996 and published
in Government Gazette No. 1343 on 1 July 1996 and as amended by
Regulation 20 together with Schedules 1 and II thereto, as
published in Government Gazette Nr 3155, dated 17 February.
Schedules I and II in Regulation 20 of Notice No. 36 of 2004 and
published in Government Gazette No. 3155 of 17 February 2004
(hereinafter referred to as the amending Schedules) be declared
unconstitutional and null and void as being contrary to the
provisions of Article 21 (1) (j) and/or Article 18 read with Article 22
of the Constitution of the Republic of Namibia.
(2) That the prescribed fees by the first respondent and approved by the
third respondent as contained in Schedules I and II to annexure IV
of Government Gazette No 3824 dated 13 April 2007, promulgated
under section 40 of the Sectional Titles Act, 1971, be declared
unconstitutional and null and void as being contrary to the
provisions of Article 21 (1) (j) and/or Article 18 read with Article 22
of the Constitution of the Republic of Namibia.
(3) That those respondents opposing the application be ordered to pay
the costs of this application, jointly and severally, the one paying theothers(s) to be absolved.
(4) That the Court grants such further and/or alternative relief as the
Court deems fit.
[2] The founding affidavit that accompanied the original notice of motion
of 11 June 2008 is the founding affidavit of Christoffel Johannes Jansen
Van Vuuren deposed to on 4 June 2008. It seems to me clear that that
affidavit was filed on behalf of both applicants. The purpose of this
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observation will become apparent in due course. In any case, the same
founding affidavit is also used in support of the amended notice of motion
of 11 September 2008, too. Thus, in the founding affidavit, according to
the applicants, the purpose of the application
is to declare Schedules I and II in Annexure II to Regulation 65 of the
Deeds Registries Regulations 1996 (the Regulations) published in
Government Notice No. 180 of 1996, as amended by Regulation 20 together
with Schedules I and II thereto, as published in Government Gazette
number 2155, dated 17 February 2004, as well as Schedules I and II of
similar Regulations published in terms of the Sectional Titles Act, 1971,
referred to below, and particularly as being unconstitutional and in conflict
with Articles 21 (1) (j) and 18, read with the provisions of Article 22, of the
Namibian Constitution.
The Regulations mentioned in this quotation and in the notice of motion
are hereinafter referred to simply as the Regulations. The annexed
Schedules mentioned in this quotation and in the notice of motion concern
tariff of fees and charges of conveyancers in respect of conveyance and of
other legal practitioners who carry out preliminary work connected with
conveyance. The annexed Schedules are hereinafter referred to simply as
the Schedules.
[3] The all important point must be made at the outset that by the
founding affidavit, the applicants have come to court with a constitutional
challenge. The constitutional attack is based on the rights under Article 21
(1) (j) and the right to administrative justice in terms of Article 18 of the
Namibian Constitution; and in the hackneyed language of the Court, in
application proceedings the applicant must fall or stand by his or her
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founding affidavit. That is the manner in which I approach the
determination of this application.
[4] The 2nd, 3rd, 5th and 6th respondents have moved to reject the
application. An answering affidavit has been filed on behalf of the 2nd, 3rd
and 6th respondents by the 2nd respondent, who is also the chairman and
executive officer of the 1st respondent and another one has been filed on
behalf of the 5th respondent by its president.
[5] In its answering affidavit, the 5th respondent has raised a point in
limine, challenging, in the main, the locus standi of the 1st applicant. In
the nature of the instant application, which concerns a constitutional
challenge, it behoves the Court to deal with this critical preliminary
objection at the outset so as to determine whether the 1st applicant is an
aggrieved person entitled to approach this Court in terms of Article 25 (2),
read with Article 18 and Article 21(1) (j), of the Namibian Constitution.
Thus, in determining the preliminary objection concerning the question of
locus standi of the 1st applicant in these proceedings, we must perforce
look up to Article 25 (2) of the Namibian Constitution. It is therefore to the
interpretation and application of Article 25 (2) that I now direct my
enquiry. Article 25 (2) provides:
Aggrieved persons who claim that a fundamental right or freedom
guaranteed by the Constitution has been infringedor threatened shall be
entitled to approach a competent Court to enforce or protect such right orfreedom. (My emphasis)
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[6] In Jacob Alexander v The Minister of Justice and Others Case No.
A210/2007 (judgment on 2 July 2008) (Unreported) at p. 38, this Court
said the following thereanent the interpretation and application of Article
25 (2) of the Namibian Constitution:
in every application where an applicant relies on Article 25 (2) of the
Constitution, the threshold he or she must cross in order to persuade a
competent Court that he or she is entitled to approach the Court for
redress is that he or she must show that he or she is an aggrieved person
and that a human right guaranteed to him or her by the Constitution has
already been violated (infringed) or is likely to be violated or it is
immediately in dangerof being violated (threatened).
[7] Strydom AJA put it succinctly and straight to the point when the
matter went on an appeal in Jacob Alexander v The Minister of Justice and
OthersCase No. SA 32/2008 (Unreported) (Judgment delivered on 9 April
2010) at p.31 in this way:
The standing of a party to approach a Court to protect him/her against
unlawful interference with his/her rights is dependent on whether his or
her rights are infringed or there is a threat of such infringement.
[8] Article 21 of the Namibian Constitution provides:
(1) All persons shall have the right to:
(j) practise any profession, or carry on any occupation, trade or
business.
[9] Thus, in casu the 1st applicant must establish that in virtue of the
Regulations and the Schedules which deal with fees and other charges
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chargeable by conveyancers and other legal practitioners in respect of
conveyance done by conveyancers and such other legal practitioners in the
practice of their profession, the 1st applicants right to practise any
profession protected by Article 21 (1) (j) of the Constitution has been
infringed or there is a threat of such infringement in relation to the 1st
applicant. I emphasize the phrase in relation to the 1stapplicant in order
to reiterate the crucial point respecting constitutional challenge under the
Namibian Constitution, namely that it is not open to any busybody to
approach the Court for the Court to declare that a legislation or any act
carried out under a legislation is inconsistent with the Constitution. In the
scheme of the enforcement of fundamental rights and freedoms provisions
in Article 25 (2), an applicant must show that he or she is an aggrieved
person on the basis that a right guaranteed to him or her has been
infringed or that there is a threat of such infringement.
[10] It follows logically that the question that immediately arises for
decision in respect of the 1st applicant is this: Is the 1st applicant an
aggrieved person within the meaning of Article 25 (2) of the Namibian
Constitution; that is to say, on the papers, has a right guaranteed by
Article 21 (1) (j) of the Namibian Constitution been infringed in relation to
the 1st applicant in virtue of the Regulations and the Schedules, keeping in
firm view the fact that the Regulations and the Schedules which the 1st
applicant seeks to impugn deal with fees and other charges chargeable by
conveyancers and other legal practitioners in respect of conveyance done
by conveyancers and other legal practitioners, as aforesaid? The 1st
applicant contends that it is an aggrieved person because, according to the
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1st applicant, its right under Article 21 (1) (j) of the Namibian Constitution
has been infringed because of the tariff of fees prescribed in terms of the
Regulations and the Schedules. And why does the 1st applicant, who is
not a conveyancer or a legal practitioner but who carries on business of
short-term insurance, claim that the prescribed tariff of fees that concerns
conveyance, as I have said more than once, has infringed his right to carry
on its business of short-term insurance under Article 21 (1) (j) of the
Constitution? The 1stapplicants reasons, as I see them, are as follows.
The 1st applicant, who carries on business of short-term insurance, as
aforesaid, and the 2nd applicant, a partnership of legal practitioners,
entered into an oral agreement in terms of which, the 1st applicant and the
2nd applicant aver, the 2nd applicant agreed to perform conveyance for the
1stapplicants members at a price based on an hourly rate.
[11] It is common cause that the applicants are unable to carry out the
alleged agreement because the fees contained in the Schedules are
prescribed tariff of fees based on the value of the immovable property to be
transferred or mortgage bond to be registered (hereinafter referred to as ad
valorem-based rate of tariff of fees) as opposed to time spent on the
transaction (hereinafter referred to as hourly-based rate of tariff of fees).
The 1st applicant and the 2nd applicant, thus, seek the setting aside of the
fees contained in the Schedules to enable the 1st applicant and 2nd
applicant to implement the said agreement. The 1st applicant says that it
provides, among other things, insurance cover under which one of the
portfolios the 1st applicant offers to its insured is conveyance of private
residential property, excluding the payment of transfer duty and stamp
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duty. According to the 1st applicant and 2nd applicant, the implementation
of the aforementioned agreement would lead to massive saving in legal
fees and to more favourable rates at which the product under the said
portfolio could be offered to the 1stapplicants insured.
[12] The 5th respondent contends contrariwise that the 1st applicant has
no standing to bring the constitutional challenge as it has done in the
notice of motion. Mr. Gauntlett SC, counsel for the 5th respondent
(assisted by Mr. Janisch) submitted on behalf of the 5th respondent that
the 1st applicants interest in this matter is at best an indirect financial
interest which has in any event been self-created. And, according to Mr.
Gauntlett, that cannot amount to the 1st applicant having a direct and
substantial interest (as opposed to its indirect or purely financial interest)
in the outcome of the dispute, capable of establishing the 1stapplicants
locus standi in this matter. In support of his submission, Mr. Gauntlett
relied on Africa Personnel Services (Pty) Ltd v Government of the Republic of
Namibia Case No. SA 51/2008 (Unreported) (judgment on 14 December
2009) at para. [30]; Clear Channel Independent Advertising (Pty) Ltd v
TransNamib Holdings Ltd2006 (1) NR 121 (HC) at 138G-I.
[13] Mr. Marcus, counsel for the 1st, 2nd, 3rd, 4th and 6th respondents
(hereinafter referred to as GRN respondents) submitted along materially
the same lines as Mr. Gauntlett. Mr. Marcus also submitted that the
business of the 1st applicant is that of short-term insurance (as aforesaid);
and the only interest that the 1st applicant has in the present matter is an
indirect financial interest. Mr. Marcus argued that the 1st applicant is not
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a conveyancer, and so the 1stapplicants right to carry on the business of
short-term insurance is not affected by the relief claimed in the instant
application. Consequently, so Mr. Marcus submitted, the 1st applicant
does not have a legal interest that could be prejudicially affected by the
judgment of this Court and accordingly (the 1st applicant) lacks the
requisite standing. In support of his submission, Mr. Marcus referred
these cases to the Court: United Watch Diamond Co (Pty) Ltd and others v
Disa Hotels Limited and another1992 (4) SA 409 (C) at 415F-H; Cabinet of
the Transitional Government of the Territory of South West Africa v Eins
1988 (3) SA 369 (A) at 388A-B.
[14] The indirect financial interest which Mr. Gauntlett and Mr. Marcus
advert to in their submissions is also what the 1st applicant relies on as
establishing its locus standi in these proceedings, as I mentioned
previously. In this regard, Mr. Smuts SC, counsel for the 1st applicant and
the 2nd applicant (assisted by Mr. Heathcote), submitted that the 1st
applicants locus standi is predicated on the 1st applicants right to have
the aforementioned agreement it had entered into with the 2nd respondent
(as aforesaid) implemented. As Mr. Marcus submittedcorrectly, in my
viewthe 1st applicant is not a conveyancer or a legal practitioner, and the
1st applicant does not claim that the 1st applicants right to carry on
business of short-term insurance has been infringed or that such
infringement is threatened in virtue of the making of the Regulations,
annexing the Schedules. In my view, what the 1st applicant has done in
this matter, with the greatest deference, is that the 1st applicant has hitch-
hiked a ride on the back of the 2nd applicant in the 1st applicants ill-
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[16] I pass to consider the application respecting the 2nd applicant. As I
have mentioned previously, the 2nd applicant is a legal practitioner and
practises also as a conveyancer, and he entered into the aforementioned
agreementto perform conveyance for the 1stapplicants insured at a price
based on hourly-based rate tariff of fees, as opposed to the ad valorem-
based rate of tariff of fees prescribed by the Regulations and the
Schedules.
[17] The talisman of the 2nd applicants case as I see it is the
aforementioned agreement. Connected to that agreement is the
submission of Mr. Smuts that the application is not about the right to
practise as a conveyancer only. It concerns, so Mr. Smuts submitted,
irrational regulation; that is to say, the aforementioned regulation 65, as
amended (i.e. the Regulations). And why does Mr. Smuts say that that
regulation is irrational? As I can gather from his submission, Mr. Smuts
says so for the following reasons: the 2ndapplicants right to compete on
price is infringed by regulation 65 because regulation 65 prohibits the 2nd
applicant from competing on price. And why, according to Mr. Smuts,
that is so? Counselsreason is that the right to compete in an occupation
or business is enshrined, as a corollary of the right guaranteed by Article
21 (1) (j) of the Namibian Constitution. With the greatest deference, I
cannot accept such a wide, overreaching proposition of law on a
constitutionally guaranteed and, therefore, justiciable basic human right.
[18] One must not lose sight of the fact that the basic human rights
contained in Chapter III of the Namibian Constitution are justiciable basic
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human rights because the Constitution says so in Article 25 (2). And in my
view, in order to underline and maintain the justiciability of each of those
basic human rights, each basic human right is formulated in such a way
that the nature, content and extent of the particular enshrined human
right are categorically expressed in clear and plenitudinal terms for all to
see. Doubtless, justiciability of the notion or tenet of a basic human right
calls for certainty of that notion or tenet. It would make utter nonsense of
the justiciability of a particular constitutionally entrenched basic human
right if Judges took it upon themselveswithout justificationto add to,
vary and modify such particular basic human right guaranteed by the
Constitution to suit their own views as to what they think the nature,
content and extent of such basic human right ought to be, and thereby
create an additional substantive basic human right in the process as an
offshoot (or a corollary, Mr Smuts calls it) of the particular basic human
right already expressly formulated in the Constitution. In my opinion, the
Court is not entitled to do that. Thus, in its plenitude, Article 21 (1) (j) of
the Namibian Constitution, for example, does not by any stretch of legal
imagination or otherwise say the right to practise any profession
shall include the right to compete on price: no amount of judicial activism
can justify the Court creating any such substantive basic human right in
Chapter III of the Namibian Constitution or can justify the Court creating
any corollary basic human right, which Mr. Smuts, with the greatest
deference, so intrepidly proclaims is enshrined in Article 21 (1) (j) of the
Namibian Constitution.
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[19] Where a particular basic human right enshrined in an instrument
(national or international) is meant to admit of a supplementary,
associated, i.e. corollary (The Concise Oxford Dictionary, 9th edn.), right,
the particular provision in which that basic human right is provided for
has been crafted in such a way as to make any such allowance expressly
and clearly stated in peremptory terms by the use of such words as shall
include, including, and includes. This is also done in order to make it
clear that the basic human right first mentioned in the formulation is not
exhaustive and that only an aspect of the human right is expressed and
that there are other basic human rights associated with it or supplemental
to it. In that event, the associated or supplementary or corollary basic
human rights are then expressly mentioned in the formulation. Thus,
where it is the intention of the framers of the Constitution that the
particular basic human right first mentioned shall have supplementary or
associated basic human right or rights included in the first mentioned
basic human right, the framers of the Constitution have made such of
their intention clearly known by using such peremptory words as shall
include, including, or includes in the formulation of the relevant
provisions. The following vindicates the point being made. Article 21 of the
Constitution, for example, provides:
(1)All persons shall have the right to:
(a) freedom of speech and expression, which shall include
freedom of the press and other media;
(b) freedom of thought, conscience and belief, which shall include
academic freedom in institutions of higher learning;
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(c)
(d)
(e) freedom of association, which shall include freedom to form
and join associations or unions, including trade unions and
political parties.
(My emphasis)
[20] It is, therefore, not insignificant, neither is it aleatory, that the words
shall include, which in my view are purposeful, are found in the very
Article 21 (1) which contains the right to practise any profession now
under consideration in these proceedings. In this regard, see, for example,
the following national Bill of Rights and international Bill of Rights where
similar words shall include and derivative words includes and including
are used:
(I) The International Covenant on Economic, Social and CulturalRights
Article 6
(1) The States Parties to the present Covenant recognize the right
to work, which includes the right of everyone to gain his living by
work which he freely chooses or accepts, and will take appropriate
steps to safeguard this right.
Article 19
(1) Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information
and ideas of all kinds
[My emphasis]
(II) Constitution Act, 1982Schedule B to Canada Act 1982 (U.K.)
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Canadian Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
(a)
(b) freedom of thought, belief, opinion, and expression,
including freedom of the press and other media of
communication;
(c)
(d)
[My emphasis]
[21] For the aforegoing, I conclude that I do not read the Supreme Court
decision in African Personnel Services (Pty) Ltd v Government of the Republic
of Namibia and Others Case No. SA 51/2008 (Unreported) as creating a
basic human right of any shape or hue in addition to those rights
contained in Article 21 (1) (j) of the Namibian Constitution; and neither
would the Supreme Court have been entitled to create any such basic
human right, if that Court had done that. Furthermore, it is equally
important to signalize the crucial point that Article 21 (1) (j) contains two
main disparate basic human rights, sc. (1) the right to practise any
profession and (2) the right to carry on (2a) any occupation, (2b) trade or
(2c) business; and, a fortiori, one right is not a subsidiary right to the
other; neither are the two main distinct and separable rights
interchangeable. Accordingly, one must not conflate right (1) on the one
hand and rights (2a), (2b), and (2c) on the other and then subject all of
them, without justification, to the purview of the authority of African
Personnel Services (Pty) Ltd v Government of the Republic of Namibiasupra,
as Mr. Smuts appears to do in these proceedings. To do so would be as
unjustifiably presumptuous and monumentally wrong as treating Mecca
and Jerusalem interchangeably just because both of them are major
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religious Holy Places. To illustrate the point further; X is occupied with the
regular buying of carcass of cow from MEATCO, with cutting the carcass
meat into small pieces, and with frying the pieces of meat and selling the
pieces of meat in the SOWETO Market daily. X may be carrying on an
occupation, or trade or business; but it cannot be seriously argued that X
is practising a profession. It is, thus, worth remembering that in African
Personnel Services (Pty) Ltd v Government of the Republic of Namibiasupra,
the Supreme Court was seized with the interpretation and application and
enforcement (see Paul Sieghart, The International Law of Human Rights,
Oxford, Clarendon Press (1995): p. 46) of only the right to carry on any
occupation, trade or business(i.e. right (2) in my illustration above); and
so any principle of law enunciated by the Supreme Court in the exercise of
that judicial function should be seen in only that light. In this connection,
it must be remembered that I have held previously that the 1st applicant
has no locus standing in these proceedings because I have found that the
1st applicant does not allege that his right to carry on its occupation, trade
or business of short-term insurance has been infringed or its infringement
has been threatened.
[22] And what is more; one must not confuse the authorized and,
therefore, intra vires interpretation and application and enforcement by a
competent Court of a basic human right (contained in Chapter III of the
Namibian Constitution) in terms of Article 25 (2) with any unauthorized
and, therefore, ultra virescreation by Judges of a substantive basic human
right in the Namibian Constitution. The obvious and intractable problem
indubitably attendant upon such unauthorized and, therefore, ultra vires
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creation of a basic human right in the Namibian Constitution is this: how
far will such creation go? In my opinion, as I have demonstrated above,
the nature, content and extent of each basic human right guaranteed by
Chapter III of the Namibian Constitution, including the right of a person to
practise his or her profession in Article 21 (1) (j), are plenitudinal and
exhaustive.
[23] Accordingly, pace Mr. Smuts, Article 21 (1) (j) does not contain or
enshrine a basic human right called the right to compete on price.
Therefore, I do not find the cases from South Africa and elsewhere referred
to me by counsel of any real assistance on the point under consideration
inasmuch as those cases are set up as authority for extending the right to
practise a profession in terms of Article 21 (1) (j) of the Namibian
Constitution to include the right to compete on price. Indeed, one must
not lose sight of the fact that what the Constitution seeks to protect is the
tenet of a persons right to practise a profession, not the making of a great
deal of money by a person when a person exercises his or her right to
practise a profession. (See e.g. Arthur Frederick Uffindel t/a Aloe Hunting
Safaris v Government of Namibia and Others Case No. (P) A 141/2000
(Unreported) (Order made on 5 March 2001; reasons given on 21 April
2009) at pp. 39-40.) Accordingly, I hold that there is no right to compete
on price, being a basic human right guaranteed by the Bill of Rights under
the Namibian Constitution which this Court may enforce in terms of
Article 25 (2) of the Constitution. I, therefore, accept Mr. Marcuss
submission that the Namibian Constitution does not guarantee a persons
right to compete on price. A fortiori, I do not know and none was
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referred to meof any such basic human right as the right to compete on
price in any national constitutional Bill of Rights or in international Bills
of Rights on which many national constitutional Bills of Rights, including
Namibias, are based. (See Human Rights: A Compilation of International
Instruments, Vol. I and Vol. II, United Nations, New York: 1994.)
[24] In view of the aforegoing, I come to the inevitable and reasonable
conclusion that I do not find the cornucopia of authorities on competition
law, or on the right to choose any occupation, trade or business, or on the
right to free economic activity referred to me by counsel of any real
assistance on the consideration of the right to practise any profession
under the Namibian Constitution. That is the right on which the 2nd
respondents constitutional attack is based (apart from his right under
Article 18, which is treated below). By a parity of reasoning, I find the
following cases referred to me by counsel to be in the same boat (of course,
in respect only of the particular point now under consideration): Affordable
Medicines Trust and Others v Minister of Health and Others2006 (3) SA 247
(CC); Directory Advertising Cost Cutters v Minister of Posts,
Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T);
Namibia Insurance Association v Government of the Republic of Namibia and
Others2001 NR 1 (HC); Minister of Health and Another NO v New Clicks
South Africa (Pty) Ltd and Another (Treatment Action Campaign and Another
as Amici Curiae2006 (2) SA 311 (CC); Union Wine Limited v E Snell and Co.
Limited1990 (2) SA 189 (CC).
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[25] In view of the foregoing reasoning and conclusions, I hold that the
2nd applicant has not established that his right to practise a profession of
conveyance within the meaning of Article 21 (1) (j) has been infringed or
that the infringement of such right is threatened. The 2nd applicant is
therefore, as a matter of law and logic, not entitled in terms of Article 25
(2) of the Constitution to approach this Court to enforce or protect a right
which has not been infringed or whose infringement is not threatened in
relation to him. That being the case, in my judgment the interpretation
and application of Article 21 (2) and Article 22 of the Namibian
Constitution do not arise at all in these proceedings. It follows inevitably
that the 2ndapplicants constitutional challenge based on Article 21 (1) (j)
fails. But the matter does not rest here.
[26] The other constitutional ground upon which the 2nd applicant
attacks the Regulations and the Schedules is based on Article 18 of the
Namibian Constitution. I now proceed to consider that attack. Has the 2nd
applicants right to administrative justice under Article 18 of the Namibian
Constitution been infringed, as the 2nd applicant alleges? In other words,
has Article 18 of the Constitution been infringed in relation to the 2nd
applicant in virtue of the making, and approving, of the Regulations and
the Schedules? Article 18 provides:
Administrative bodies and administrative officials shall act (1) fairly
and (2) reasonably and (3) comply with the requirements imposed
upon such bodies and officials by (3a) common law and (3b) anyrelevant legislation, and persons aggrieved by the exercise of such
acts and decisions shall have the right to seek redress before a
competent Court or Tribunal.
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(Numbering of components are mine)
[27] As respects Article 18, in order for the 2nd applicant to succeed, the
2nd applicant must show that he has been aggrieved by an act of an
administrative body or an administrative official because of non-
compliance by the administrative body or administrative official with any of
the requirements expressed in Article 18, i.e. (1), (2), (3a) and (3b) (as
indicated in the above quotation for clarity). As I see it, (1), (2), (3a) and
(3b) are the Article 18 requirements which administrative bodies and
administrative officials must comply with when they actin order for such
of their act to be adjudged consistent with the Constitution. And I must
add; the aforementioned list of the Article 18 requirements is exhaustive.
It is not just enough for a person to approach the Court and allege simply
and in general termswithout morethat his or her right guaranteed to
him or her by Article 18 of the Constitution has been infringed. Such a
person bears the burden of establishing to the satisfaction of the Court as
to what particular requirement or requirements under Article 18 has or
have not been complied with by the act of a named administrative body or
administrative official and in which respect such act has infringed or
threatened an infringement of that persons Article 18 right (see Arthur
Frederick Uffindel t/a Aloe Hunting Safaris v Government of Namibia and
Others, supra at p.39). If the applicant fails to so establish the Article 18
requirement or requirements that has or have not been complied with in
relation to the applicant, the applicant shall be out of court. That is the
manner in which I approach the 2nd applicants constitutional attack on
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the making of the Regulations and the Schedules based on Article 18 of
the Namibian Constitution.
[28] It is not in dispute that the 1st respondent is an administrative body
and so it is subject to the application of Article 18; and so the only single
question that I must decide on the papers is this: In the founding
affidavit, which Article 18 requirement or requirements does the 2nd
applicant allege has not been complied with by the 1st respondent and the
3rd respondent in relation to him when the 1st respondent made the
Regulations, annexing the Schedules, and the 3rd respondent approved
them? Thus, the only issue that I must now determine is this: What
Article 18 requirement or requirements does the 2nd applicant allege has or
have not been complied with by the 1st respondent and the 3rd respondent
in relation to him and in which respect the aforementioned acts of the 1st
respondent and the 3rd respondent, respectively, have infringed the 1st
applicants right under Article 18? It appears to me that the 2nd applicant
alleges that in making the Regulations, annexing the Schedules, the 1st
respondent did not act reasonably (i.e. requirement (2) in my illustration
above). Accordingly, the question that arises for decision as respects the
constitutional challenge based on Article 18 is whether the 1st respondent,
in prescribing the ad valorem-based tariff of fees did act reasonably within
the meaning of Article 18 of the Namibian Constitution? That is the way in
which I approach the determination of the constitutional challenge based
on Article 18 because that is what the 2nd applicant relies on in the
applicants founding affidavit, apart from his attack based on Article 21 (1)
(j), which I have already decided to be without merit.
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[29] As I understand the 2ndapplicants contention in this regard, the 2nd
applicant says the 1st respondent and the 3rd respondent did not act
reasonably because the ad valorem-based tariff of fees is invariably
exorbitant, excessive and unreasonable, or grossly unreasonable and
excessive and indeed exorbitant to clients and end-users. It is worth
noting that the 2ndapplicants contention is put forth argumentatively that
because the absolute and compulsory ad valorem-based rate of tariff of
fees is invariably exorbitant, excessive and unreasonable or grossly
unreasonable and excessive and indeed exorbitant to clients and end-
users, ergo, the 1st respondent and the 3rd respondent must have acted
unreasonably. And why does the 2nd applicant say the ad valorem-based
rate of tariff of fees is unreasonable or grossly unreasonable? I do not
find much from either the founding affidavit or the written submission of
counsel in which respect the 2nd applicant really contends that the ad
valorem-based rate of tariff of fees is unreasonable or grossly
unreasonable. As Mr. Gauntlett submitted, the [A]pplicants attack
(based) on Article 18 , although relied upon in the founding papers, finds
little support in the heads of argument. The only reason that is prominent
to find on the 2nd
applicants papers is that, according to the 2nd
applicant,
between the ad valorem-based rate of tariff of fees and the hourly-based
rate of tariff of fees, the later is reasonable because it is related to actual
work done.
[30] Be that as it may, the GRN respondents content contrariwise. On
their behalf Mr. Marcus submitted that the 1st respondent did act
reasonably because its act (or decision) is not one that a reasonable
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decision-maker would not make, when regard is had to the factors
considered by the board (i.e. the 1st respondent) and, therefore, as I
understood Mr. Marcus, the 1st respondent exercised its discretion fairly
and properly. And on behalf of the 5th respondent, Mr. Gauntlett
submitted that the ad valorem-based rate of tariff of fees is in tune with
the rational link between the empowering statute and the imposition of
compulsory tariffs, and further that that tariff achieves further legitimate
government purposes.
[31] In Re Solicitor [1945] 1 All ER 445 (Court of Appeal) at 446H, Scott
LJ stated, The word reasonable has in law the prima facie meaning of
reasonableness in regard to those existing circumstances of which the
actor called upon to act reasonably, knows or ought to know. And in his
authoritative work Administrative Law (1984): p. 496, Baxter writes that
when one is called upon to judge whether a decision is unreasonable, the
decision might be viewed from various perspectives. For convenience these
have been grouped into three categories that are not rigidly
compartmentalized: they run into each other and overlap markedly. The
first category is the basisof the decision; that is, if a decision is entirely
without foundation it is generally accepted to be one to which no
reasonable person could have come. The second category is thepurpose
of, and motivefor, the decision; that is, it is considered unacceptable for an
administrative body and an administrative official to use its or his or her
powers dishonestly. The third category is the effectof the decision; that is,
reasonable persons do not advocate decisions which would lead to harsh,
arbitrary, unjust or uncertain consequences. (See Baxter, ibid.)
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[32] I respectfully accept Baxters exposition on reasonableness (the
Baxter categories) as apropos to the enquiry presently being undertaken
and so I adopt his exposition; that is to say, in my opinion, Baxters
explanation of the term reasonable is a correct interpretation and
application of the requirement of act reasonably in Article 18 of the
Namibian Constitution.
[33] Having carefully considered the Baxter categories on
reasonableness and the meaning of reasonableness proposed by the
English Court of Appeal in Re Solicitorsupra against the backcloth of the
evidence presented on the papers, I come to the conclusion that the 2nd
applicant has failed to establish that the act of the 1st respondent and of
the 3rd respondent complained of is unreasonable within the meaning of
Article 18 of the Namibian Constitution. I have so concluded for the
following reasons.
[34] In the respondents papers it is clearly and extensively explained the
factors that the 1st respondent took into account when it made the
Regulations and the Schedules, prescribing the aforesaid tariff of fees and
charges under the applicable legislation referred to in the notice of motion.
I have no good reason to reject the 1strespondents evidence that they took
into account those factors before acting; and I do not find any credible
evidence on the papers tending to show that the 1st respondent did not act
in the manner averred. In this regard, I do not see the 1st respondents
statements on the factors they took into account when they made the
aforementioned regulations to be ex post facto explanations, as Mr.
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Smuts submitted. If an administrative body or an administrative official
carried out an act and it was alleged in a founding affidavit that that act
was unreasonable in terms of Article 18 of the Namibian Constitution, the
first opportunity open to such administrative body or administrative
official to contradict any such allegation is for that administrative body or
administrative official to explain in an answering affidavit the factors that
such official or such body took into account in carrying out the act. In
that case, it may be said that that administrative body or administrative
official was entitled to put forth such factors in an answering affidavit.
That is what the 2nd respondent, the chairman and executive officer of the
1st respondent, has done in these proceedings. And more important and
apropos the requirement of reasonableness, I do not findand neither has
the 2nd applicant claimedthat in taking into account those factors the 1st
respondent acted from improper motives or on irrelevant or extraneous
considerations (Frank and another v Chairperson of Immigration Selection
Board 1999 NR 257 at 266A-C; Mureinik, Administrative Law in South
Africa (1988) SALJ615 at p. 628).
[35] Furthermore, it is my view that those factors constituted the existing
circumstances that the 1st respondent knew or ought to have known
existed when they made the Regulations, annexing the Schedules (Re
Solicitorsupra ibid.). It cannot, therefore, be argued that the act of the 1st
respondent complained of has no foundation. Accordingly, I do not find
any evidence on the papers tending to prove that the 1st respondent used
their power under the relevant legislation dishonestly. Has it been shown
that the ad valorem-based rate of tariff of fees is harsh, arbitrary, and
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unjust or that it leads to uncertain consequences? I do not think so. In
this regard, the peg on which the 2nd applicant hangs his constitutional
challenge is this. According to the 2nd applicant the ad valorem-based rate
of tariff of fees has no correlation to the time spent on the work and is
invariably exorbitant and unreasonable and that the hourly-based rate of
tariff of fees, which the 2nd applicant prefers and is enamoured with, is
what the 1st respondent ought to have prescribed. The 2nd applicants
reason for so contending is that the hourly-based rate of tariff of fees can
be taxed but the ad valorem-based rate of tariff of fees cannot be taxed.
That being the case, so the 2nd applicant argues, the ad valorem-based rate
of tariff of fees is offensive of s. 10 (1) (c) of the Deeds Registries Act 1937,
under which the said regulation 65 was made, because while the hourly-
based rate can be subjected to taxation, the ad valorem-based rate cannot.
Section 10 provides:
(1) The board established under section nine may makeregulations prescribing -
(c) the fees and charges of conveyancers and notaries public
in connection with the preparation, passing and
registration of deeds or other documents registered or
filled or intended for registration or filling in a deeds
registry and the fees or charges of any other legal
practitioners in connection with the preliminary work
required for the purpose of any such deed or other
document and the fees and charges in connection with
the taxation of any such fees or charges;
[36] I do not read s. 10 (1) (c) to be providing inperemptorytermsI so
emphasize peremptory that any tariff of fees and charges that the 1st
respondent prescribes in a regulation mustbe subjected to taxation. I am
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fortified in my view by the following factorization and interpretation of the
provisions of s. 10 (1) (c). To start withand this is significant in the
chapeau of s. 10 (1), the 1st respondent is given absolute discretion to
make regulations prescribing fees and charges in connection with three
distinct and separable items, and the section does not say the 1st
respondent must without any allowance whatsoever prescribe all the three
items; that is to say
(1) preparation, passing and registration of deeds or other document
(by conveyancers and notaries public);
(2) the preliminary work required for the purposes of (by other legal
practitioners); and
(3) the taxation of any such fees or charges.
[37] For the aforegoing interpretation and application of s. 10 (1) (c), as I
have said previously, and I accept Mr Gauntlets submission on the point, I
do not read the language of s. 10 (1) (c) as making it mandatory for the 1 st
respondent to prescribe all the three items (i.e. (1), (2) and (3) in my
illustration above) in any regulation they may make (may make is
italicized for emphasis). I cannot therefore, with respect, accept the
submission by Mr. Smuts that the aforementioned act of the 1st
respondent is ultra viress. 10 (1) (c) of the said Deeds Registries Act, 1937
(as amended) just because, according to him, the ad valorem-based rate
cannot be subjected to taxation. Besides, I do not find any credible
evidence on the papers that the ad valorem-based rate of tariff of fees leads
to harsh, arbitrary, unjust or uncertain consequences.
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[38] Another important point must be emphasized that the Court is not
entitled to hold that just because the 2nd applicant thinks that the hourly-
based rate of tariff of fees better serves his self-serving purposes than the
ad valorem-based rate of tariff of fees and so therefore in prescribing the
latter tariff the 1st respondent acted unreasonably. It is worth noting that
the Article 18 requirement that administrative bodies and administrative
officials must act reasonably has to be reconciled with no less important
doctrine that the Court must not usurp the discretion of the administrative
body or administrative official which the Legislature in its wisdom and
within its constitutional power appointed to act (See Wade, Administrative
Law, 5th edn. (1984): p. 362). As Mr. Gauntlett reminded the Court more
than once, in these proceedings the Court is not a court of appeal; it is
therefore not for this Court to substitute any decision in the place of that
of the 1st respondent but merely, upon the moving of the 2nd applicant, to
decide whether the Deeds Registries Act, 1937 (as amended), particularly
s. 10 (1) (c), has been administered reasonably. (See Seervai, Constitutional
Law of India: A Critical Commentary, 4th edn. (1999): p. 1520, fn. 30.) I will
say administered reasonably and fairly; for, as Levy AJ said in Frank &
Another v Chairperson of the Immigration Section Board1999 NR 257 (HC)
at 265E, an unreasonable decision would always be unfair; a priori, by a
parity of reasoning, a reasonable act would always be a fair act.
[39] Furthermore, in this regard, one must not lose sight of the fact that
the very concept of administrative discretion always involves a right to
choose between more than one possible course of action upon which there
is room for reasonable people to hold differing opinions as to which is to be
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preferred (Secretary of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014 (House of Lords) at 1064):
the true and overriding question must always be whether the statutory
power has been exceeded (Wade, Administrative Law, ibid.: p. 365); and I
have held above that in making the Regulations and the Schedules, the 1st
respondent did not exceed their statutory power; neither did the 3rd
respondent when the 3rd respondent approved the Regulations. Thus, it
cannot be argued that in making the Regulations and the Schedules the 1st
respondent did act unreasonably and unfairly merely because particular
Judges may think that the Regulations and the Schedules go further than
is prudent or necessary or convenient, or because it is not accompanied by
a qualification which some Judges may think ought to be there (Kruse v
Johnson(1898) 2 QB 91 at 99-100). Accordingly, I do not, with the greatest
deference, find the views expressed in Vaatz v Law Society of Namibia and
Others1996 NR 272 (HC) at 278H-I, referred to me by counsel, of any real
assistance on the point under consideration.Neither can it be argued that
in making the Regulations and the Schedules the 1st respondent did act
unreasonably and unfairly merely because the 2nd respondent thinks he
would not make a great deal of money as a conveyancer if the Regulations
and the Schedules are allowed to remain on the statute books.
[40] For the aforegoing, I come to the inevitable conclusion that the 2nd
applicant has failed to establish that in making the Regulations and the
Schedules, prescribing the said ad valorem-based rate of tariff of fees and
charges, and in approving them, the 1st respondent and the 3rd
respondent, respectively, did not act fairly and reasonably within the
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meaning of Article 18 of the Namibian Constitution. I, therefore, hold that
the 2nd applicant has failed to establish that Article 18 of the Namibian
Constitution has been infringed in relation to him in virtue of the making,
and approving, of the Regulations and the Schedules. Having so held, I
find that as respects the Article 18 challenge, too, the interpretation and
application of Article 21 (2) and Article 22 of the Constitution do not arise
in these proceedings.
[41] At this junction I must stress these crucial and critical
considerations. The determination of the present application turned solely
on the interpretation and application of the relevant provisions of the
Deeds Registries Act, 1937 (as amended) and the Regulations and the
Schedules within the contextual framework of the interpretation and
application of the right to practise any profession under Article 21 (1) (j)
and the right to administrative justice in terms of Article 18 of the
Namibian Constitution and the application of the conclusions reached
thereanent to the facts of the present case. By the founding affidavit, the
applicants came to court with a constitutional challenge based on
aforementioned provisions of the Namibian Constitution, as aforesaid, and
so the present application has been determined, as I have done, in relation
only to the constitutional challenge; and applicants have fallen by the
founding affidavit. And as to the striking out application; the relevant and
preponderant factors, including the law, that have been taken into account
in the determination of this application are unaffected by the matters
applied to be struck out in the striking out application.
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[42] Keeping the aforegoing reasoning and conclusions carefully in my
mental spectacle, I come to the inexorable conclusion that this application
must fail.
[43] In the result I make the following order:
(1) The application is dismissed with costs.(2) The applicants are ordered to pay the costs of this application
jointly and severally, the one paying, the other to be absolved;
such costs to include the costs of instructing counsel and two
instructed counsel as respects the costs of the 5th respondent.
________________________
PARKER J
________________________
NDAUENDAPO J
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COUNSEL ON BEHALF OF THE APPLICANTS: Adv D F Smuts SC
Adv R Heathcote SC
Instructed by: Van Der Merwe-Greef Inc.
COUNSEL ON BEHALF OF
THE 5TH RESPONDENT: Adv JJ Gauntlett SC
Adv MW Janisch
Instructed by: Lorentz Angula Inc.
COUNSEL ON BEHALF OFTHE 1ST - 4TH and 6TH RESPONDENTS: Mr N Marcus
Instructed by: The Government Attorney