ADMINISTRATIVE ACTION

Section 1 of the Promotion of Administrative Justice Act defines administrative action as any decision
taken, or any failure to take a decision by an organ of state when exercising a power in terms of the
Constitution or exercising a public power or performing a public function in terms of any legislation which
adversely affects the rights of any person and which has a direct legal effect. The determination of
whether or not Article 18 can be invoked by the applicants who are aggrieved depends on whether the
action of the administrative body or official can be regarded as an administrative action. This is because
in terms of Article 18, only administrative bodies and officials are subjected to judicial review. The same
provision also subjects administrative action to judicial review. Factors which must be considered in order
to determine whether or not a particular decision amounts to administrative action were outlined In the
Open Learning Grouping of Namibia Finance cc v Permanent Secretary of the minister of Finance
and others case, by Damaseb JP as follows, “

(1) The nature of the power being exercised. Decisions need to be of an administrative nature, meaning
that they need to relate to the day-to-day business of implementing and administering policy. Decisions at
the highest level by the executive, the legislature and the judiciary do not constitute administrative action.

(2) The source of the power. The decision must be taken in terms of an empowering provision. The
exercise of public power or the performance of a public function must have an authoritative foundation of
some kind. In other words, the decision must be permitted by law.

(3) The subject matter. The reason of the power is put into question and what it aims to achieve.

(4) Whether it involves the exercise of a public duty. It will qualify as administrative action when the ADM
exercises power in terms of the Constitution or a provincial constitution, or when they exercise public
powers or perform public functions in terms of legislation. Administrative action can also be carried out by
persons other than the constitutionally defined organs of state. However, these actions will qualify only as
administrative action when these persons exercise public power or perform a public function in terms of
an empowering provision.

(5) How closely related it is to the implementation of legislation. How closely related it is to implementation
to formulate of policy – closer it is does not amount to administrative action. Closer it is then it amounts to
Administrative action

In the leading South African case of President of Republic of South Africa v South African Rugby
Union, the Constitutional court propounded a purely institutional test that would be implemented on a
case by case basis to determine whether the action was truly an administrative act or not, held that “what
matters most is not so much the functionary as the function. The question was whether the task itself is
administrative or not…the focus of the enquiry as to whether conduct is administrative action is not on the
arm of government to which the relevant actor belongs, but on the nature of the power he or she was
exercising. In the Kahuure & others v Mbanderu Traditional Authority & others case, the Mbanderu
Traditional Community had adopted a constitution which the respondents sought to review and set aside
in terms of rule 53. The court held that the adoption of a constitution by a community does not constitute
administrative action for the purposes of review proceedings. Further held that is was important to
distinguish between administrative acts, on the one hand, and legislative acts, on the other hand.
Administrative acts normally deal with implementation of policy, while legislative acts concentrate more on
policy formulation. In making this distinction, the court will look at the functions which have been
performed, rather than at the body which has performed the functions.

ADMISSIBILITY/JURISDICTION

Locus Standi

Legal Standing/ Locus Standi refers to the capacity to bring a legal action before the court. Namibia
follows a common law rule of standing, in which the applicant must be able to show a direct and
substantial interest. A direct and substantial interest is an interest in the right which is the subject matter
of the litigation and not only a financial interest which is only an indirect interest in such litigation. In
addition, an applicant’s interest must be “current” and “actual”; standing cannot be based on an interest
that is abstract, academic, hypothetical, or remote. Under the common law, an applicant has standing
only to protect his or her own interests; individuals cannot bring actions on behalf of other people. The
aggrieved person must have a substantial interest in the case at hand. The applicant must have an
interest in the right which is the subject matter of the litigation, there must therefore be a legal interest in
the case e.g. A person’s right to liberty or property. In the Trustco Insurance Legal Shield Namibia and
another v Deed Registries Regulation Board case, the Supreme Court found that the first appallent’s
freedom of contract was impared by the challenged tarrifs and it therefore had a legal interest in the
outcome of the proceedings and therefore had legal standing. In Kerry McNamara Architects Inc v
Minister of Works, Transport, the court held that a party who has a derivative right and no direct interest
in a matter has no locus standi to institute application proceedings. Moreover, a party cannot rely on the
provisions of art 18 and come before the Court as an 'aggrieved person'. This cannot give a party locus
standi where it would not otherwise have had such locus standi. A direct interest is deemed as
synonymous to personal interest. Directness aims to ensure a personal nexus between the complainant
and the act being complained of. Therefore it follows that the applicant has legal standing to come to
court only to protect his/her interest and not the interest of another person.
Mootness

Under the doctrine of mootness, the case will be rendered “moot” when there is no longer an actual
controversy between the parties to a Court case and any ruling by the court would have no actual,
practical impact. Mootness can result from changed circumstances for example, the legislation in
question being repealed or the disputed issue being resolved before the matter is heard in the court. In
Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and others 2011 (2) NR 469
(SC), the first respondent applied for the permit to drill boreholes in the Khan River for uranium mining
activities. Subsequently, the second respondent granted the rights to use the boreholes and the water to
the first respondent allegedly in the exercise of its powers provided under the Water Act of 1954. The
appellant’s case against the respondents was that the wildlife on its farm depended on the naturally
occurring underground water to support natural habitats. Overusing the water from the rare sources in the
area would, therefore, disturb the ecosystem. At the High Court level, the issue was to determine whether
under the act the second respondent had the powers to grant such rights. The High Court held that the
powers to grant such rights were limited to subterranean waters. Moreover, the court held that since
under the act sections 27, 28 and 30, the president proclaims the underground waters. The president had
never declared the areas allocated to the first respondent as such the permits were a nullity. As a result,
there was nothing to be determined by the court in favour of the appellant.

Ripeness

Unlike mootness, ripeness bars the applicant to approach the court too early or prematurely. The idea
behind ripeness is that the complainant should not go to the court before his or her right was affected, or
ripe for adjudication. It is pointless to waste court’s time with decisions which are not final, whose shape
may yet change or decisions that have not yet been made.

Judicial Review

Judicial review is the process whereby the courts review the regularity of an administrative action. It is
another form of controlling administrative actions. Judicial review is an essential tool in administrative law
because it constitutes the indispensable moderating tool for avoiding and minimizing administrative
justice. Furthermore, judicial review also facilitates the principles of checks and balances which is
essential in the doctrine of separation of powers. It ensures that the executive does not usurp its powers
and also safe guards the rights of citizens to administrative justice granted in the bill of rights. Its
requirements are Lawfulness, Fairness or reasonableness.
LAWFULNESS

Authorization/Authority

In the case of Fedsure Life Assurance Ltd v Greater Johannesburg Transitional Metropolitan
Council, it was stated that the Legislature and Executive in every sphere are constrained by the principle
that they exercise no power or perform any function beyond that conferred upon them by law”. It is
axiomatic that administrators must be properly appointed, properly qualified, and properly constituted
when they take administrative action and Decisions. (1) The administrator as person or entity should be
authorized to make the decision by an empowering law or legislation. (2) The authorization must be
granted for the area where the decision will apply; it must be applied within the applicable jurisdiction. (3)
The act or decision itself must be authorized.

Elements:

(1) What- What was authorized by the ADM has to correlate with the powers conferred to the ADM by an
empowering provision and has to furthermore provide a reason for that decision. The ADM should also
not fail to do his duties; he must not fail to act where he is authorized and required to act. Furthermore,
once a decision has been made, the ADM is functus officio; which means they cannot go back to their
decisions.

(2) Who- This questions whether the decision was taken by the right person and whether someone acted
out of his power. In the Anhui Foreign Economic Construction v Minister of Works and Transport
case, The president acted out of his power; court held that discretionary power vested in one official may
not be usurped by another, whether the former is a subordinate to the latter or not. If a person, in whom
the power is vested, does not exercise the power vested in him or her failure to exercise the power
constitutes unlawful abdication. The ADM may not, therefore, unlawfully delegate. In Alexander v
Minister of Justice and Others, the issue was whether the Magistrates Commission has power under
the Act to select particular magistrates to hold extradition enquiry proceedings in terms of s 12 of the
Extradition Act (Act No. 11 of 1996) – Court found that in terms of the Extradition Act, only the Minister of
Justice has the power to authorize magistrates to hold such enquiry proceedings – Court holding that the
Magistrates Commission acted ultra vires when it assigned Mr. Unengu, Chief: Lower Courts, to hold
extradition enquiry proceedings in respect of the applicant – Court reviewd and set aside Magistrates
Commission’s decision.

(3) How- This questions whether having the authorization to take the decision, prescribes the action to be
taken in that particular situation and whether the prescribed procedures were complied with upon taking
the decision.
Exceeding authority - The ADM may sometimes exceed his or her authority by going beyond his
powers, contravening certain provisions or acting without authority at all. In most instances ADM’s go
beyond their given powers when they usurp power beyond the scope of the enabling provisions. Such
acts are ultra vires, unlawful and as such invalid. In Sikunda v Government of the Republic of
Namibia, it was held that the Security Commission had not been properly constituted and that its decision
had been invalid also on that ground. In Titus v The National Housing Enterprise (A 9/2016), the court
held that Section 10 (4) provides that if the post of the chief executive office became vacant the board
shall appoint any suitable staff member to act as chief executive officer. The appoint appointing one of the
directors as acting chief executive officer. Held that NHE as a creature of the statute has no power other
than those powers vested upon it by its constitutive statute and the repository of public powers can
exercise no power and perform no functions beyond that conferred upon it by law - An administrative act
that has not been authorised by the law is invalid – Consequently the appointment of a director is
declared invalid.

Existence of authority elsewhere - If an ADM states the wrong enabling provision for his or her
decision, but another provision is applicable and gives authority for the decision taken by the ADM to be
taken, is the action then a valid administrative action or is it unlawful? On one hand one may argue, that
the decision is still lawful, as it is enabled by prescriptions of enabling legislation. However on the other
hand, an ADM subjectively usurping his power cannot be excused and thus his action is unlawful.

Delegation of authority- Generally, power given to one ADM cannot be exercised by another ADM.
Doing such bring into play issue of usurping of authority or abdication of power. Either of these is
unlawful. This may happen by way of: (1) Unlawful delegation of power; (2) Acting under dictation; or (3)
Unlawful referral or ‘passing the buck’.

Sub-delegation by administrators- Generally, delegated power must be exercised by the designated

administrator. It is often not practical in real life though. For this reason administrative law therefore
recognizes the need to sub-delegate. The administrator delegates to his/her subordinate. The rule
governing the sub-delegation of administrative powers is captured in the maxim ‘delegatus delegare non
potest’. This, in simple means: "no delegated powers can be further delegated". Sub-delegation is
authorized either expressly or tacitly.

i) Express authority to sub-delegate

An example of this is found in subsections 1 and 2 of section 4 of the Immigration Control Act (No. 7 of
1993). These subsections authorise the Minister and the Chief of Immigration to sub-delegate their
administrative powers. In terms of these subsections:

(ii) Implied authority to sub-delegate

There are instances in practice where the authority to sub-delegate is not expressly provided for in the
enabling legislation. In such case the question arises whether the power to sub-delegate can then be
implied into the legislation. How does one determine whether implied authorization for sub delegation is
granted? Factors determining whether delegation is tacitly authorized are (1) Nature of the power, (2)
Extent to which power is transferred, (3) The importance of the sub-delegatee, (4) Practical necessity. In
Centani investment cc v namibian ports authority & another, The court mentioned that the Namibia
Ports Authority is a juristic person established by section 2 of the Namibian Ports Authority Act, 1994. The
Authority invited tenders under Tender No 079/2011 for the ‘supply and delivery of a second hand or
existing new Tug for the Port of Walvis Bay. The unsuccessful tenderer (Centani) sought the review of the
decision to award the contract to its competitor (Damen Shipyards Cape Town (Pty) Ltd. The Court found
that the recommendation (to award the tender to the second respondent) to the executive committee and
to the board is not the recommendation of the tender committee but the recommendation of two
individuals (retired captain van der Meer and Mr van Rhyn) who are not provided for in the procurement
policy of the first respondent. The Court further argued that it should not be forgotten that the power and
authority to source goods and service are vested in the board. Section 10 of the Act empowers the board
to establish committees and to assign the performance of identified functions to those committees. The
board accepted a procurement policy and in terms of that policy established a tender committee to advice
it as regards the acquisition of goods and services. So the board can only act on the recommendations of
the tender committee and the executive committee.

Unlawful referral and dictation- There are at least two other ways in which administrative decision
makers may also abdicate their power or usurp that of another. These are unlawful referral, and unlawful
dictation. We at times refer to unlawful dictation as “taking directions” because it takes place when an
unauthorized ADM takes a decision on behalf of an authorized ADM who then merely rubber stamps that
decision as if it had been taken by him or her personally. You will find out that in most instances unlawful
dictation occurs between an unauthorized senior ADM and an authorized junior ADM. This is a classic
example of usurpation of power. Unlawful referral on the other hand is also known as “passing the buck”.
It occurs when an authorized ADM refers his or her decision to an unauthorized ADM who then makes
the decision on behalf of the authorized ADM. Unlawful referral is in itself a form of abdication of power.

These two forms of unlawful delegation do not necessarily mean that ADMs are prohibited from
consulting other interested parties. What matters is that the ADM must apply his/her mind to the matter in
front of him/her and takes the decision personally. In the case of President of the Republic of Namibia
and Others v Anhui Foreign Economic Construction Group Corporation Ltd and Another, the
Permanent Secretary in the Ministry of Works and Transport sent a letter to (Anhui) to inform him that it
had been allocated a tender. There had been reports on irregularities, bribery and corruption. Following
these reports, the President of Namibia issued a media release, stating that the award had been
terminated and that he would instruct the Minister of Works and Transport to direct the NAC to
discontinue all activities relating to the project. The court found that the Minister’s instruction was invalid
in several separate respects amounting to comprehensive non-compliance with the provisions of the
Airports Company Act invoked by both the President and the Minister. The general powers of the
President and Cabinet would not save the directive from invalidity. The default position is to set aside an
invalid act and refer the matter back to the functionary in question. The court found that no coherent
reasons were raised as to why the defective directive should not be set aside. The court found that the
High Court was correct in setting aside the Minister’s directive.

Jurisdiction/Mistake

Administrators are required to remain within the bounds of their powers. They may also not misconstrue
their powers. Jurisdiction, as such, looks into the issue whether or not the ADM strayed beyond his/her/its
entitlement to act. The ADM may stray beyond his/her/its entitlement to act due to some mistake which
will render the administrative action unlawful. The ADM may make a mistake in either law or fact
pertaining to his/her/its authorization. With mistake we are not referring to the content of ADM’s decision.
In other words, the issue is not whether the ADM took a wrong administrative action. The focus is still on
lawfulness. In other words, on the authorization of the action, we distinguish between two kinds of
mistakes i.e. mistake in law or fact pertaining to his or her authorization.

Error of Law- Administrative law requires that the ADM take an administrative action based on the
correct interpretation of the empowering provision. When an ADM misinterprets a legislative provision it is
referred to as an error of law. When an action is materially influenced by an error of law, it becomes
subject to judicial review on the grounds that it leads to unlawfulness. The error must be material though.
An error is material when its affects the outcome. In order for us to determine the materiality of the action
taken, it is asked whether the same decision would have been reached had the ADM adopted the correct
interpretation of the applicable law. If yes, then the error is not material. In the case of De Wilde v
Minister of Home Affairs, there was faulty interpretation of law with regards to determining citizenship.
The applicant (and his wife) are on temporary employment permits – Applicant applied to the respondent
to issue a Full Birth Certificate (Namibian) to applicant’s son born during the time the applicant is on
employment permit status and therefore sojourning in Namibia temporarily. Judge held that the
interpretation and application of art 4(1)(d) is in tune with the natural and ordinary meaning of the words
‘ordinarily resident’ and it conduces to the intention of the framers of the Namibian Constitution, which
intention has been given real meaning capable of implementation by the Parliament in the Immigration
Control Act 7 of 1993. It follows that a person is not ordinarily resident in Namibia within the meaning of
art 4(1)(d) if that person resides in Namibia ‘with a view to temporary residence’ in Namibia and for which
he or she has been issued with an employment permit in terms of s 24(b), read with s 27, of the Act.
Mistake of Fact- An administrator must take all relevant considerations into account and ignore all
irrelevant considerations when taking administrative action. Administrative powers must be exercised
based on true facts. It thus follows, that ignorance of facts material to the actual situation is not
excusable. Decisions that are taken based on mistaken facts renders the decision unlawful. Once again,
the mistake of fact must be material before it will impact the lawfulness of the administrative action. In
Pepcor Retirement Fund and another v Financial services board and another, this appeal concerned
primarily the locus standi of a functionary to make a decision in the public interest and to have that
decision reviewed in the court of law and set aside and whether a material mistake of fact should be a
ground of review. The judge said that “In my view, a material mistake of fact should be a basis upon
which a court can review an administrative decision. If a functionary has been empowered to make a
decision, in the public interest, the decision should be made on the material facts which should have been
available for the decision to be properly made. And if a decision has been made in ignorance of facts
material to the decision, the decision should be reviewable at the suit of the functionary who made it. In
the end, the appeal was upheld.

Abuse of Discretion

An administrator decision-maker (ADM) may abuse his or her discretion in various ways. These may
include, ulterior motive, bad faith (mala fide), acting in fraudem legis, and failure to apply the mind which
includes; failure to decide, failure to act within reasonable time, irrelevant considerations, fettering,
arbitrary and capricious decision- making.

Ulterior motives - Administrative action may be reviewed if it was taken ‘for an ulterior purpose or
motive’. Powers conferred upon ADMs must be exercised in the public interest and not for the personal
advantage of the officials who wield them. Where an authority exercises its powers for an ulterior purpose
an abuse of power occurs or the authority is frustrating or obstructing the authentic purpose for which
power was conferred. Powers given to a public body for one purpose cannot be employed for an ulterior
purpose that was not contemplated by the legislature at the time when the powers were conferred. In the
Frank and another v Chairperson of the Immigration Selection Board, The first applicant, a German
national, had been resident in Namibia since 1990. It appeared from the papers that she had been having
a lesbian relationship with second applicant and that they, together with second applicant's son, were
living as a family. During 1997 first applicant had applied for a permanent residence permit which had
been refused by respondent. In its opposing papers respondent averred that it had based its refusal of
first applicant's permanent residence permit on the fact that several Namibians were qualifying in first
applicant's field and that it would be hard enough to find employment for them. These were the ulterior
motives practised by the ADM. Court held that respondent's allegations that there were several graduates
qualifying in first applicant's field of study were based on hearsay, generalities and not any definite facts:
there was no evidence that first applicant would be a threat to Namibians, since there were many letters
of recommendation from various institutions and that, in any event, much of first applicant's work was
voluntary: thus the provisions of s 26(3) (e) of the Immigration Control Act were not applicable. In the
case of Government of the Republic of Namibia v Getachew, judge held; I find that the immigration
officer, Aribeb, acting within the ambit of an instruction by Mushilenga, or on his own, arrested and
detained the plaintiff for a different purpose and acted as such with an ulterior motive namely to keep the
plaintiff in detention in order to extract information from him that could enhance his investigation into the
passport scam, the purpose for which he was brought to Windhoek. To do this, he kept the plaintiff in
inhuman circumstances and deprived him of his liberty. Aribeb ignored the provision of the plaintiff’s
marriage certificate. Even after obtaining his passport and had enough evidence to charge and prosecute
the plaintiff in terms of the Act, he did not do so, evidently because that was never his motive. Aribeb
acted in fraudem legis by using a statutory provision to obtain another purpose. Consequently, Aribeb
never had reasonable grounds to detain the plaintiff for the purpose he wanted the court to believe

Mala Fide (bad faith) - If an ADM takes an administrative decision in bad faith that decision is subject to
review. Bad faith refers to fraud or dishonesty. In the context of administrative law, it is the conscious or
knowing use of power by the ADM for ends that are prohibited by law. In the Mbanderu case, court
mentioned that Executive action will be reviewable inter alia if the functionary acts mala fide,
misconstrues the nature of its powers, or acts arbitrarily or irrationally

Failure to apply the mind

This means that either the ADM has failed to exercise the authority conferred upon the ADM at all or the
failure of an ADM to exercise such power properly. Many a time failure to apply the mind overlaps with
other grounds of review and as such there is not a precise meaning of failure to apply the mind.

(1) Failure to decide or consider

Under the common law, powers that have been conferred upon ADMs are inevitably accompanied by an
implied duty to exercise the power. It is the duty of an official who has the discretion to grant or refuse an
application to either grant or refuse such application. One cannot simply decline to act or decide. In
Tumas Granite Close Corporation v Minister of Mines and Energy and Another, there was an
application to compel the first respondent (Minister) to exercise his discretionary power under the
Minerals (Prospecting and Mining) Act 33 of 1992, s 59(1) by taking a decision on applicant’s application
for reconnaissance licence made to him. Court found that first respondent has refused or failed to
exercise his discretionary power under s 59(1) of that Act. Could held that Mandamus shall therefore
issue as redress to compel the first respondent to exercise his statutory discretionary power performing a
specific duty under s 59(1) of the Act.
(2) Failure to act within reasonable time

It has always been possible to obtain a mandamus forcing a slow or reluctant administrator to take action
or make a decision. For instance, in Cape Furniture Workers’ Union v McGregor, the court held: ‘where
a statute requires an official to give a decision within a reasonable time, and he fails to do so, this court
will order him to carry out his duties, even though there has been no direct refusal on his part to do so’.

(3) Taking irrelevant factors into consideration

Often the enabling provision may give specific instructions to the ADM to carry out duties with the
consideration of only specified, relevant information. If the ADM then does carries out the duty without
considering the specified, relevant information, then the ADMs decision would have been taken without
taking into account relevant considerations and thus making it subject to review. We refer to such relevant
considerations as mandatory considerations as they are derived from enabling provisions either expressly
or impliedly. If the enabling provisions do not specify any considerations the ADM has to follow the courts
may decide on the relevant considerations. Irrelevant considerations on the other hand are matters which
are not only, ‘not mandatory’ but which are in fact prohibited from being considered in terms of the law. In
New Era Investment (Pty) Ltd v Roads Authority and Others, the applicant was seeking review of
decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer.
The court held that onus rests on the applicant for review to satisfy the court that good grounds exist to
review the conduct complained of. Good grounds are grounds that are cogent and relevant. The
applicant’s main complaint was that certain criteria and weights of importance and relevance put on those
criteria that did not favour it were applied by the public authority to its disadvantage. Consequently, for the
applicant, there was failure of fairness and reasonableness because the public authority did not apply its
mind and it took into account irrelevant and extraneous considerations in rejecting the applicant’s tender.
In CSC Neckartal Dam Joint Venture v Tender Board of Namibia and Other, the tender board failed to
properly apply its mind to all the relevant facts and took irrelevant facts into consideration when awarding
the tender to Salini. In Viljoen v Chairperson of the Immigration Selection Board and Another, Court
held that error of law by administrative bodies and officials is reviewable on the basis that by
misinterpreting a statutory provision the administrative body or official will not be complying with the
requirements of the relevant legislation in violation of art 18 of the Namibian Constitution – The result is
that the decision taken based on the misinterpretation of the relevant provisions of the legislation in
question is unlawful and invalid and should be set aside

(4) Fettering

When an ADM fetters his or her decision, he or she imposes limits on his or her own discretion by
adhering rigidly to policies or promising, in a contract or otherwise, that he or she will act in a certain way.
Fettering is similar to unlawful dictation. In the case of fettering, however, you will notice that it does not
involve an unauthorised ADM taking a decision on behalf of an authorised ADM. In this instance, the
authorised ADM bases his/her decision on the policy or views of others. Although an ADM may properly
be influenced by policy considerations and other factors, he or she must put his or her mind to the specific
circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant
factors. The ADM may also fetter his/her discretion through contract or one size fits all. In Namsov
Fishing Enterprise (Pty) Ltd v Ministry of Fisheries and Marine Resources, court held that it was no
more than an undertaking to discharge his administrative duties in regard to allocating the quotas in a
way which would satisfy the applicants’ needs. The court does not regard the Minister's 'agreement' as
anything more than a promise to meet their objection by exercising his discretionary administrative
powers in a particular way. This promise cannot fetter his right, if circumstances connected with his
administration require it, to exercise his discretion in some other way. It was held that the Minister must
only take into account factors prescribed in the Marine Resource Act, 2000 when considering the
allocation of quotas. The second reason why the first respondent’s decision (to allocate to the applicants
15 892 metric tons from the reserve quota) would be invalid is that, if he had allocated the quotas on the
basis of the grounds advanced by the applicants, the Minister would have allocated the quotas taking into
account irrelevant considerations, because s (39) of the Act stipulates that the Minister must have regard
to the matters set out in s 33(4) of the Act and to others that may be prescribed. Proportionate allocation
of the quotas and the needs of an applicant are not amongst the matters which the Minister must take into
account when he considers applications for the allocation of quotas. Thus, no valid decision was made by
the Minister to allocate quotas to applicants

(5) Arbitrary and capricious decision-making

When an ADM makes a decision without reasonable grounds or adequate consideration of the
circumstances, such action is subject to review. Arbitrary and capricious decision making can be defined
as: doing something according to one’s will or caprice and therefore conveying a notion of a tendency to
abuse the possession of power. When they take decisions ADMs must establish a rational connection
between the facts before them and the decision taken. In the absence thereof, their decision is would be
arbitrary and capricious. That would result in a clear error of judgment. An action not based upon
consideration of relevant factors and which is so arbitrary, capricious amounts to an abuse of discretion.
In the Mbanderu case, court mentioned that Executive action will be reviewable inter alia if the
functionary acts mala fide, misconstrues the nature of its powers, or acts arbitrarily or irrationally. Frank
and another v Chairperson of the Immigration Selection Board, The first applicant, a German
national, had been resident in Namibia since 1990. It appeared from the papers that she had been having
a lesbian relationship with second applicant and that they, together with second applicant's son, were
living as a family. During 1997 first applicant had applied for a permanent residence permit which had
been refused by respondent. In its opposing papers respondent averred that it had based its refusal of
first applicant's permanent residence permit on the fact that several Namibians were qualifying in first
applicant's field and that it would be hard enough to find employment for them. Court held that
respondent's allegations that there were several graduates qualifying in first applicant's field of study were
based on hearsay, generalities and not any definite facts: there was no evidence that first applicant would
be a threat to Namibians, since there were many letters of recommendation from various institutions and
that, in any event, much of first applicant's work was voluntary: thus the provisions of s 26(3) (e) of the
Immigration Control Act were not applicable.

(6) Fraudem Legis

When exercising power in fraudem legis, the ADM deliberately and intentionally evades the provisions of
the empowering statute. In Dadoo Limited v Krugersdorp Municipal Council 1920 AD 530, the court
described such exercise of power as follows: “…a transaction is in fraudem legis when it is designedly
disguised so as to escape the provisions of the law, but falls in truth within these provisions.” From this it
is clear that a decision is in fraudem legis when it is designed as if it is fulfilling the provisions of the law
yet it is being used to achieve a purpose other than the one intended by the law. In the case of
Government of the Republic of Namibia v Getachew, judge held; I find that the immigration officer,
Aribeb, acting within the ambit of an instruction by Mushilenga, or on his own, arrested and detained the
plaintiff for a different purpose and acted as such with an ulterior motive namely to keep the plaintiff in
detention in order to extract information from him that could enhance his investigation into the passport
scam, the purpose for which he was brought to Windhoek. To do this, he kept the plaintiff in inhuman
circumstances and deprived him of his liberty. Aribeb ignored the provision of the plaintiff’s marriage
certificate. Even after obtaining his passport and had enough evidence to charge and prosecute the
plaintiff in terms of the Act, he did not do so, evidently because that was never his motive. Aribeb acted in
fraudem legis by using a statutory provision to obtain another purpose. Consequently, Aribeb never had
reasonable grounds to detain the plaintiff for the purpose he wanted the court to believe

FAIRNESS

Audi Rule

Procedural fairness is a principle of good administration that requires sensitive, rather than heavy handed
applications. Natural justice dictates that the audi rule should apply, which is concerned with giving
aggrieved persons an opportunity to participate in the decisions that will affect them, and a chance to
influence the outcome of those decisions. Such participation signals respect and worth or participants and
is likely to improve the quality and rationality of administrative decision making thereby ensuring
procedural legitimacy. Listening fairly to both sides has aptly been described as a duty lying upon anyone
who decides anything. In the landmark case of Kessl V Minister of Land and Resettlement, the
respondents decided to expropriate agricultural land in terms of its constitutional right under article 16(2)
that gives the state the power to expropriate land. The decision to expropriate was rotten in that the
applicants were not given a chance to make representations in direct conflict with the common law audi
alteram partem rule. Court held that in terms of article 16(2) of the Namibian Constitution, the
Government was entitled to expropriate land. Furthermore, court held that the objective of the Act, namely
the Agricultural (commercial) land reform Act was to redress past injustices and bring about a fairer
distribution of land. However, the court also took into account the provisions of art 18 which guarantees
fair administrative justice. It was necessary that a fair procedure should be followed, and held that article
16(2) of the constitution should not be walled in or ring fenced to the effect that it excludes the principles
of the rules of natural justice. Therefore, the decision maker has to act fairly, reasonably and in
compliance with the statutory requirements, the requirements of the common law and of art 16 of the
Constitution. Court further held that article 18 cannot be disregarded during the expropriation process
mandated under article 16(2) of the Namibian Constitution. Further held that when the Minister
considered expropriating a particular farm, he must observe the principle of audi alteram partem, namely
he must afford the landowner the right to be heard on the issue, for instance this could be achieved by the
Minister inviting representations in writing from the affected landowner and such land owner responding
to the invitation, where clarification was needed, that had to be provided. In New Era Investment (Pty)
Ltd v Roads Authority and Others, court held that as a general rule fairness dictates that prejudicial
information should be disclosed to the subject of the information to enable him or her to contradict or
correct it. At common law the rules of natural justice are aimed at achieving a minimum standard for fair
administrative enquiries. They ensure that the administrative authority applies its mind to the matter by
adhering to certain procedural requirements, by acting fairly, by giving the individual an opportunity to be
heard. In Government of Namibia v Sikunda The fundamental question was whether the decision of the
Security Commission had complied with the rules of natural justice. The applicant's father had been
entitled to a hearing and on that ground alone the decision of the Security Commission was invalid.
Procedural fairness usually secures justice for the individual; the constitutional right is confined to
procedural rather than substantive fairness. The object of procedural fairness is to ensure a proper
hearing for aggrieved persons. The individual must be properly informed, must be given an opportunity to
put their side of the story, must be able to challenge adverse allegations by the administration and must
be provided with reasons, but to mention only a few.

Bias Rule

This rule implies that the administrative authority exercising discretion must be free from bias and
unprejudiced. As the saying goes, ‘not only must justice be done; it must also be seen to be done’. The
rule against bias prohibits both real and perceived bias. This rule may also be grouped under the
requirements ratione personae because it relates to the capacity of the administrative official, but
traditionally it fell under the rules of natural justice. The following elements of the rule should be
mentioned:

1. Actual bias:

The basis of this rule is that not only must justice be done; it must be seen to be done. The test which is
applied is an objective test and the administrative act will be declared invalid where it is found that a
person has a definite interest in the matter, whether it is, material, pecuniary or any other interest
resulting in bias, even if no injustice is proven. The test is whether a reasonable person in the shoes of
the aggrieved party will perceive bias in the circumstance.

Pecuniary Bias- Monetary value attached to the outcome.

Personal interest- In the matter of Liebenberg v Brakpan Liquor Licensing Board 1944 WLD 52 the
mayor of the town insisted on being present when liquor licence applications were being heard, despite
the fact that his brother was one of the applicants. When the licence was granted to the brother, and
despite the fact that the other members submitted affidavits to the effect that they had not being
influenced by the mayor’s presence, the court found that this relationship had led to bias and set the
decision aside.

Official or Institutional Bias- In such cases, it is argued that the decision maker is invariably biased as a
result of institutional factors, rather than individually biased by virtue of the particular circumstances or
personal characteristics. In Christian Hope Financial Services v Namibia Financial Institutions
Supervisory Authority, court held that the initial opportunity granted to the respondent to be heard
showed bias in favour of NAMFISA and that the failure to interpret Section 5 (2) of Act 3 of 2001
constituted a valid ground for recusal and that the mere presence of the presiding Judge in the court room
with respondent’s counsel vitiated the proceedings.

2. Apparent bias:

Where a person has been appointed to an administrative tribunal because of his/her professional capacity
or personal involvement, this involvement will generally not amount to bias. In such cases of authorised
“bias” the courts will enquire whether any real prejudice has resulted. Where the reasonable lay observer
would gain the impression that there is a real likelihood that the presiding officer is bias, he should recuse
himself/herself. The facts which gave rise to that impression must relate to the particular case and not
merely be based on vague conjecture.
Evidence Rule

Full disclosure: no trial by ambush, not mere speculation or suspicion and the decision must be based on
evidential material, logical proof and not speculation. In Frank and another v Chairperson of the
Immigration Selection Board, The first applicant, a German national, had been resident in Namibia
since 1990. It appeared from the papers that she had been having a lesbian relationship with second
applicant and that they, together with second applicant's son, were living as a family. During 1997 first
applicant had applied for a permanent residence permit which had been refused by respondent. The first
applicant had requested reasons for this decision but these were refused, respondent alleging that it was
not compelled to furnish reasons for its decisions. In its opposing papers respondent averred that it had
based its refusal of first applicant's permanent residence permit on the fact that several Namibians were
qualifying in first applicant's field and that it would be hard enough to find employment for them.
Moreover, volunteers from overseas were offering their services from time to time. Respondent also
averred that first applicant's lesbian relationship had not been a factor but stated that first and second
applicants' relationship was not recognized by law. The respondent also stated that there were no factors
which adversely affected its decision. Held, further, that respondent's allegations that there were several
graduates qualifying in first applicant's field of study were based on hearsay, generalities and not any
definite facts: there was no evidence that first applicant would be a threat to Namibians, since there were
many letters of recommendation from various institutions and that, in any event, much of first applicant's
work was voluntary: thus the provisions of s 26(3) (e) of the Immigration Control Act were not applicable.

Legitimate Expectation

The doctrine of legitimate expectations enquires whether the affected person has a legitimate expectation
of a certain outcome that will entitle him/her to a fair hearing in the circumstances. The particular person
has a right to be heard before a decision is taken, irrespective of whether the decision is beneficial or
adverse to the person. This right is based on the legitimate expectation that a benefit will be conferred
upon him/her, or that an existing benefit will not be taken away. Legitimate expectations might arise in at
least two circumstances:(a) From an express promise given by the authoritative body; and (b) A regular
practice, which the claimant of the legitimate expectation can reasonably expect to continue. In Everett v
Minister of the Interior 1981: The court held that a person who acquired a temporary residence permit
cannot expect to remain in the country for longer than the stipulated period. If that person is granted entry
and residence for a specific period and is instructed to leave before expiry of the stipulated period, he/she
acquired a “right” consisting of a legitimate expectation of being allowed to stay for a permitted time.

The requirements for such a legitimate expectation are: (a) The representation relied upon must be
clear, unambiguous and devoid of relevant qualification; (b) The expectation must be reasonable
(whether in public law the expectation is legitimate); (c) The representation must have been induced by
the decision-maker; and (d) The representation must be one which was competent and lawful for the
decision-maker, without which reliance cannot be legitimate. In WESTAIR AVIATION (Pty) Ltd AND
OTHERS v NAMIBIA AIRPORTS COMPANY LTD AND ANOTHER 2001: The first respondent was
incorporated in terms of s 2(1) of the Airports Company Act 25 of 1998 ('the Act'). Its object was inter alia
to manage aerodromes and to provide 'any relevant activity', which included handling of aircraft,
passengers and baggage. Among these aerodromes was airport where the three applicants provided
passenger and cargo services by aircraft. The applicants employed their own ground handling crews. By
letter dated 19 October 2000, the applicants were informed that the first respondent had appointed the
second respondent as exclusive ground handlers who would operate at certain fixed tariffs. The
applicants challenged this decision. Held that the applicants had a legitimate expectation that they would
be permitted to continue an established regular practice and as the first respondent's decision I made on
19 October 2000 under s 5(2) would prejudicially affect their position, there was an obligation on the first
respondent to act fairly. Held, further, that by failing to give them an opportunity to make representations
the first respondent had acted unfairly. Held, further, that the applicants had made out a case of legitimate
expectation and the first respondent's decision of 19 October 2000 was invalid by reason of its failure to
accord the applicants the opportunity to make representations. Held, accordingly, that on this ground
alone, the first respondent's decision of 19 October 2000 must be set aside.

Substantive legitimate expectation

Currently, the law governing legitimate expectation in Namibia grants a procedural benefit only. In other
words, if the aggrieved person meets the requirements for a legitimate expectation, as noted above, s/he
is entitled to a hearing only. Meaning, s/he is not entitled to a specific performance, also called
substantive legitimate expectation. A substantive legitimate expectation arise when an individual has an
expectation that a favorable decision will be made or an expectation of a substantive benefit. E.g. an
expectation that an employment contract will be extended or even that a permanent residence will be
granted. In essence this would mean that where a person has a legitimate expectation, the court should
be able to enforce the expectation itself as opposed to simply force the administrator to follow a particular
procedure if the expectation is to be disappointed. In Minister of Health and Social Services v Lisse,
the Court Held that the Minister did not afford Dr Lisse a proper hearing before decision was taken; she
failed to appreciate Dr Lisse right to his legitimate expectation to a fair procedure, therefore the decision
taken was unfair, unreasonable and in conflict with Article 18. The Courts further decided not to send the
application back to be reviewed by the Minister as the same decision would be anticipated and therefore
be unjust. The court ordered the Minister to issue the acquired authority to practice. So it is seen here
that the core of substantive legitimate expectation is then realised. The promise by the public authority
which is in source of the applicant’s procedural rights and in a sense protection can be seen as
substantive because the applicant being Dr Lisse receives what he was led to expect. It is through
implication that substantive legitimate expectation was applied, on the basis of the judgement granted. In
Van Rooyen v University of Namibia, Van Rooyen stated that if he is deprived of his Full Professor title
which he had been using and which the Dean Prof Du Pisanni his employee congratulated him about will
affect him financially. The court stated that the University’s decision to alter Van Rooyen status from full
professor to that of associate professor constitutes a unilateral alteration of the Van Rooyen conditions of
employment. The University is therefore ordered to restore the status quo ante with immediate effect. This
meant that the benefit which was constituted upon Van Rooyen which is a substantive legitimate
expectation as Van Rooyen showed that profession of such level from on tier to another upgrading tow
positions at once is a practice which has been taking form for a long period of time such as a lecture to
being promoted to Associate Professor.

REASONABLENESS

Reliance on what is argued that any unreasonable admin action is merely an indication (symptom) that
some other requirements for valid admin actions have not been met. In other words at common law,
unreasonableness was not in itself a reviewable defect, but is only relevant only in so far as it points to
some other defect in the decision/admin action. At common law closely related to unreasonableness is
the idea of “gross unreasonableness”. It has been held that judicial intervention is permitted only when
the degree of unreasonableness is so “gross” or glaring that something else could be inferred from it.
Therefore, unreasonableness must be so “gross” that it is incomprehensible except on ground such as
bad faith or ulterior motive or that it points to a failure on the part of the administrator to apply his or her
mind duly and properly to the matter before him or her. In National Transport Commission v Chetty
Motor Transport 1972: The court held that it will only intervene in cases where the administrative
decision is so grossly unreasonable as to warrant the inference that the authority had failed to apply its
mind to the matter.

Reasonableness alone as a ground can be reviewed on its own without inferring that the symptomatic
approach should be used. Article 18 enjoins administrative officials to act fairly, reasonably and comply
with the requirements imposed upon such bodies and officials by the common law and any relevant
legislation. Article 5 enjoins all organ of state to uphold and defend the fundamental rights enshrined in
chapter 3; importantly article 18 is part of chapter 3. In Katofa v Administrator General for South West
Africa & another: a pre-independence case that dealt with the right to be given reasons. The court had
to consider whether the administrator general could be compelled to give reasons for the arrest and
detention of Mr. Katofa. In terms of the applicable proclamation, the administrator general was expressly
obliged to give reasons to the detainee himself; however, the question was whether or not the
administrator general was obliged to divulge these reasons to the court to justify the detention. Held that
the giving of reasons would enable the detainee to ascertain whether there are grounds for his detention
and concluded that there was an obligation to give reasons to the detainee as well as to the court. These
formulated objects would be able to assist the aggrieved person as well as the court in its decision-
making. In Frank & another v Chairperson of Immigration Selection Board, Levy AJ, stated in the first
instance judgement of the High court that, an unfair or unreasonable decision entitles an aggrieved
person to seek redress before a competent court, and the court cannot judge what is reasonable or
unreasonable unless the administrative body gives reasons for arriving at its decision. Therefore, held
that the respondent was obliged to give reasons where such exist. Court held, that an administrative
organ exercising discretion is obliged to give reasons for its decision. In the Sikunda case, Court could
therefore not find any reasons for urgency in the matter, and thus held that the applicant’s father should
have been heard before the decision was taken. With regards to the right to be given reasons, held that
the security commission and the Minister were bound to communicate the allegations to the applicant’s
father, so as to enable him to deal with the allegations or rebut them where possible. As such the High
court ordered the release of the applicant’s father. Accordingly, where state security is involved, admin
bodies were still required to furnish some reasons for their decisions, the latest point to which reasons are
to be provided “in substance, is in the course of the judicial review.” Taking into account the violation of
this requirement amongst others, notably the audi rule, the Supreme Court dismissed the appeal.

Rationality- For a decision to be considered rational means that a decision must be supported by the
evidence and the information before the administrator as well as reasons given for it. In other words the
test will be; would a reasonable person would have arrived at the same decision as arrived by the
administrator based on the facts present. Furthermore, for a decision to be rational it must also be
objectively capable of furthering the purpose for which the power was given and for which the decision
was purportedly taken. In simpler terms there must be a rational connection between the means (the
evidence and all the necessary considerations) and the decision taken. In Uffindell t/a Aloe Hunting
Safaris v Government of Namibia and Others, the court held that the second respondent’s decision to
sell a concession to the fourth respondent by private treaty differentiated between the latter and other
professional hunters without there being a rational connection to a legitimate governmental purpose for
the differentiation.

Proportionality- Proportionality is associated with the saying: ‘one ought not to use a sledgehammer to
crack a nut’. The essential elements of proportionality are balance, necessity and suitability.

Suitability: The element of suitability requires that lawful and appropriate measure to be taken. It looks at
whether the measure in question suitable or effective to achieve the aim.

Necessity: Looks at whether the decision taken was indeed necessary or whether a less onerous
alternative could have been used.

Balance: Looks to see whether there has been a disproportional interference with the claimant’s rights.
The balance element requires that even though it may be suitable and necessary, administrative decision
taken must not place an excessive burden on the individual which is disproportionate in relation to the
public interest at stake.

REMEDIES

Statutory Appeal: an appeal is a rehearing of the matter which is restricted to the record of the
proceedings; it may examine the merit of the decision, asking whether the admin decision was right or
wrong. In Minister of Mines and Energy and Others v Petroneft International Ltd and Others, it was a
Supreme Court case that revolved around an agreement between the parties which was suddenly
terminated. The agreement demanded that the respondent to import oil resources on behalf of the
Government of Namibia. The arrangement proved to be failure as the cost of importing petroleum was
high against the market price. Consequently, the first appellant, acting in ministerial capacity decided to
end the agreement. The first respondent felt aggrieved and filed a suit in the High Court, asking it to
review the decision of the cabinet that terminated the said contract. The Supreme Court thus overturned
the decision of the High Court and accordingly upheld the appeal.

Setting aside: Setting aside is a logical consequence of declaring the decision invalid. This remedy is a
simple way to say the decision no longer stands or that is void. In Open Learning Group Namibia Finance
cc v Permanent Secretary, Ministry of Finance, court held that the decision by the first respondent,
revoking the deduction code facility enjoyed by the applicant on the payroll of the third respondent, is
hereby reviewed and set aside as being unlawful and unconstitutional. Viljoen v Chairperson of the
Immigration Selection Board and Another, Court held that error of law by administrative bodies and
officials is reviewable on the basis that by misinterpreting a statutory provision the administrative body or
official will not be complying with the requirements of the relevant legislation in violation of art 18 of the
Namibian Constitution. The result is that the decision taken based on the misinterpretation of the relevant
provisions of the legislation in question is unlawful and invalid and should be set aside. Consequently, the
decision was set aside.

Remitting the case back to the administrator: When the court declares a decision invalid and sets it
aside, the courts generally refers the case back to the decision-maker. In essence, remittal is a default
remedy upon setting aside of the administrative decision. The rationale behind remitting the case back to
the administrator is that the courts respect the separation of power doctrine and therefore reluctant to
usurp the decision making powers that has been delegated to the administrator by the legislature. A
remittal can either be without any instructions or with instructions. Remittal with instructions is when the
court gives detailed directions, for example, directions on when the decision will be made or which
tenders are to be reconsidered. In the CSC Neckertal Dam Joint Venture v Tender Board of Namibia and
Others case, the court remitted the decision back to the administrator because it was not in a position to
rule in respect of the tender due to its technical nature.
Interdict: If an applicant fears and can prove that an action or impeding action by the administrator will
affect his or her rights or prejudice him, he may apply for an interdict restraining the administrator from
carrying out its action. An interdict is aimed at preventing unlawful administrative action or threatened
unlawful admin action. An interdict may be interim or final; an interim interdict is a measure which
provisionally decides the rights of parties while legal proceedings are pending, and a final interdict may be
altered on appeal. An application for an interdict must be supported by the following: The applicant has a
clear legal interest (right) which is being threatened and there is no satisfactory remedy available. The
matter is so urgent that the applicant will suffer irreparable damage if the interdict is not granted. In
Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others, the applicant succeeded in
obtaining an order to show cause (rule nisi) and an interim interdict of the reliefs in their application to
prohibit the implementation of the concessions.

Mandamus: This remedy is aimed at compelling an administrator to perform some or other statutory duty.
However, a mandamus cannot stipulate how the power is to be exercised. It merely puts a stop to an
administrator “sitting on” a matter instead of dealing with it. In Tumas Granite cc v Minister of Mines and
Energy and Another, court held that in an application for a mandamus, the court is concerned with the
allegation that it or he or she has failed or refused to exercise a statutory power and the applicant has
been aggrieved by such failure or refusal. And a mandamus lies to serve two purposes: (a) to compel the
performance of a specific duty, and (b) to remedy the effects of unlawful action already taken. In Swart v
Minister of Home affairs, the applicant applied for citizenship through naturalization at the respondent
office, a mandamus was issued and the respondent was ordered to process the application.

Habeas Corpus: It is an order to release an aggrieved person unlawfully detained. In Djama v GRN of
Namibia & others, an urgent habeas corpus application, seeking the immediate release from detention on
the grounds that his detention had been arbitrary.

Declaratory order: A declaration of rights (also called a declaration order) is a common law remedy that
enables the court to declare the rights of the parties or to state the legal position. A remedy in the shape
of ‘declaration of rights’ only pronounces on what is the legal position of an alleged illegal administrative
action. In Mostert v Minister of Justice an order that magistrates were independent in terms of article 78 of
the Namibian Constitution.

Payment of compensation: Article 25(4) of the Namibian Constitution empowers courts: […] to award
monetary compensation in respect of any damage suffered by the aggrieved persons in consequence of
such unlawful denial or violation of their fundamental rights and freedoms, where it considers such an
award to be appropriate in the circumstances of a particular cases. This notwithstanding, the courts
hitherto demonstrated a cautious approach when asked to award delictual damages arising from an
invalid administrative action. Some of the reasons advance for this approach is that the aggrieved person,
usually, have alternative and even more effective remedies available to his/her disposal. Also, the
country’s scarce resources could be best spent by reducing the systematic causes of administrative
malpractices. Generally, the rule is that public policy considerations did not justify permitting delictual
claims for the out-of-pocket expenses of say, unsuccessful tenderers. However, where unsuccessful
tenderers suffered loss as a result of dishonest or fraudulent conduct by public officials courts have not
hesitated to award delictual damages. In the case of Lubilo and Others v Minister of Safety and Security,
The plaintiffs said they suffered physical assaults and other breaches of their constitutional rights such as
to be brought to court within 48 hours of their arrest or being arrested without being told the reason for the
arrests. They seeked compensation. The judge held that an arrested person must be brought before
court as a safeguard of their rights. It is before a judicial officer that they can demand to be given access
to a lawyer as early as possible and to bring to the court’s attention any untoward conduct from law
enforcement officials. It is a right the court must therefore enforce without fail, subject to the exceptions
that are contained in art 11(3) and s.50 of the CPA as referred to in the Mbahapa judgment. Kabotana is
therefore entitled to his damages for the period that he was unlawfully detained.

Costs in Proceedings

Courts do not generally make costs orders against administrative officials de bonis propiis. However,
where the conduct of an administrative official is irregular, the court will award costs against such official,
and so will the court order such costs where the administrative official’s decision is mala fide. In
Coetzeestrom Estate and GM Co v Registrar of Deeds, court held that with respect to costs, the court
should lay down a general rule in regard to all applications against the registrar arising on matters of
practice. To mulct that official in costs where his action or his attitude, though mistaken, was bona fide
would in my opinion be inequitable. In Frank and Another v Chairperson of the Immigration Selection
Board, Mr Light had asked for an award of costs. The principle, however, is that where a person or board
acting in his or its official capacity takes a decision which is wrong in law, unless such person acted mala
fide, such person should not be mulcted with costs. In Hoveka NO and Others v The Master and
Another, the Master of the High Court took upon herself without any colour of authority to decide that a
will placed before her by applicant for her consideration was not valid. What worried the court was that
applicant’s legal representatives drew the Master’s attention to her mistaken view of the law but that she
did absolutely nothing to correct it. The court described the Master’s conduct as obdurate and grossly
irregular. The applicant was successful in her application before the High Court. The court had to decide
whether the Master ought to be mulcted in costs de bonis propiis. The court held that it is inequitable to
mulct an administrative official with costs de bonis propiis where the official has not acted irregularly of
mala fide. In this case, however, the Court concluded that the conduct of the Master (first respondent)
was indeed grossly irregular; accordingly, the Court ordered first respondent to pay applicant’s costs of
the application.
Estoppel

In general, the term estoppel implies that one who by his deed or conduct has induced another to act in a
particular manner will not be permitted to adopt an inconsistent attitude or course of conduct and thereby
cause loss or injury to such other. This doctrine applies squarely to administrative acts where an
administrative decision has adversely affected a person who has relied on the representation made by an
administrative official. In Levi and Others v Zalrut Investments (Pty), van Zyl J stated: In any event, even
in the case of illegal or invalid acts, should there be no considerations of public policy which militate
against the recognition of estoppel, estoppel may still be raised.

Therefore there are four elements for estoppel to arise; (a) There must be a representation in some form
by the party to be estopped. (b) There must be reliance upon that representation by the party pleading
estoppel. (c) There must be an attempt by the party to be estopped to take an inconsistent position. (d)
There must be detriment, actual or threatened, to the party invoking the doctrine. The Namibian Supreme
Court had an opportunity to stress the application of estoppel under Namibian Law in the case of Likanyi
v The State. The court emphasized that the Issue estoppel is a rule of public policy and, as a rule of
public policy, it seeks to balance the public interest in the finality of litigation with the private interest in
achieving justice between litigants. Sometimes these two interests will be in conflict, or at least there will
be tension between them. In that case the Supreme Court emphasized further that the courts have
always exercised this discretion is apparent from the authorities. For example, courts have refused to
apply issue of estoppel in "special circumstances", which include a change in the law or the availability of
further relevant material. If the decision of a court on a point of law in an earlier proceeding is shown to be
wrong by a later judicial decision, issue estoppel will not prevent re-litigating that issue in subsequent
proceedings. It would be unfair to do otherwise. The law of estoppel is thus closely tied to the law the law
of damages because it seeks to avoid suffering from the misrepresentations or reversal of the true status
quo to the detriment of the other.

In the case of Free Namibia Caterers CC v The Chairperson of the Tender Board of Namibia and
Others, the court dealt with estoppel by conduct, whereby the court held that failure to stipulate the
period of the tender contract and subsequent failure to react to the companies who have submitted a
tender and their requests for further information on the issue. Which results in the invited company
assuming that the tender was awarded to it for however period creates a legitimate expectation that the
tender would run for how long the invited companies thought it would. And as such, the company
awarding the tender will be estopped from vindicating that the tender was to end by a different term. In
the end the Supreme Court dismissed the Appeal but noted that it becomes clear that the disruption of
catering services will be deleterious to the affected schools and learners. The appellant would cease with
the delivery of food stuffs to schools and thousands of innocent learners at those schools may be
deprived of food stuffs during the period of disruption.
In another case the High Court in Chico/Octagon Joint Venture Africa v Roads Authority stated that
when one wants to use the doctrine of estoppel to stop an administrative action one should ensure that
good grounds exist and must be grounded by common law and constitutional grounds for review of
administrative action of an administrative body or official. Similarly in the case of Witvlei Meat (Pty) Ltd
v The Cabinet of the Republic of Namibia basically outlined the difference between the doctrine of pre-
emption and estoppel in that the doctrine of pre-emption is different to estoppel, given its foundation in
principles relating to election, acquiescence, waiver and abandonment.

In the case of Katjaimo v Katjaimo, the doctrine of estoppel by representation comes into operation in
that an owner may be prevented from vindicating his thing in circumstances where the owner through
his/her own negligence or intentional conduct has created the appearance that another person is the
owner or is entitled to alienate the thing and a bona fide third party. In Junias and Another v Municipal
Council of the Municipality of Windhoek, the applicant, a senior lecturer at the respondent university,
had applied for a position as associate professor. He subsequently received a letter appointing him as full
professor. Some months later he received a further letter, informing him that the appointment as full
professor had been erroneous and revoking that appointment and substituting it with the position of
associate professor. The applicant challenged the validity of this latter decision in the present application.
It appeared that the Pro-Vice-chancellor (PVC) had written the applicant a letter informing him of his
appointment as full professor. Subsequently, the Vice-chancellor (VC) had written, revoking that decision.
The VC alleged in the papers before the Court that applicant's appointment as full professor had been a
'mistake.' Meanwhile, all H the UNAM documents, including the Year Book, had reflected applicant as full
professor. The legal basis for the application was that the respondent had made a representation to the
applicant, on which representation he had relied, and the respondent was estopped from denying that
applicant had been appointed as full professor. There was an internal Mistake and thus estoppel was
applied.

Administrative Justice

Administrative justice is defined as"…that part of public law which regulates the exercise of
administrative action, that is the exercise of public powers and the performance of public functions by
organs of state, which falls within the constitutional right to fair and reasonable administrative action laid
down in s18 of the Constitution of the Republic of Namibia.( CASE?)

Enlarging the above definition, I would say that the concept of administrative justice in its primary context,
means that everything must be done according to law. Thus, when applied to the powers of government,
this requires that every government authority which does some act which would otherwise be a wrong, or
which infringes a man’s liberty, must be able to justify its action as authorized by law – and in nearly every
case this will mean authorized by the Constitution and/ or the Act of Parliament. In effect, every act of
governmental power, i.e. every act which affects the legal rights, duties or liberties of any person, must be
shown to have a strict pedigree. The affected person may always resort to the courts of law, and if the
legal pedigree is not found to be perfectly in order, the court will most likely invalidate the act.
Furthermore the concept ensures that the citizens are not been stripped of much of the protection against
arbitrary government on which they had come to rely-mainly by the central government, partly by local
authorities exercising delegated powers, and partly by those public corporations which only differ from the
central government in being in some measure accountable to nobody for what they do or leave undone.

The “What’ aspect of administrative justice relates to the daily business of government, that is the
implementation or administering of enacted policy and the exercise of delegated powers to take action
including the making of policy within the framework allowed by the original legislation.

The ‘why’ relates to the need to restrict public authorities to such powers as lawfully authorized so as to
check arbitrariness in the exercise of such powers. In effect, the ‘why’ of administrative justice points to
the need to ensure that every administrative act is justified by reference to some lawful authority for the
act. Administrative justice is achieved through the instrumentality and application of the rule of law as
exemplified by the various laws conferring designated powers on public officials.