1

EPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No:A325/2012

In the matter between:

BERTHOLDT PETER TJIUNDJE1STAPPLICANT

CLYDE TJIUNDJE 2NDAPPLICANT

and

ELDA KAAVARA 1STRESPONDENT

OMAHEKE COMMUNAL LAND BOARDAPPEALS TRIBUNAL2NDRESPONDENT

BAKGALAGADI TRADITIONAL AUTHORITY 3RDRESPONDENT

MINISTER OF LAND AND RESETTLEMENT4THRESPONDENT

Neutral citation:Tjiundjev Kaavara(A 325/2012) [2015] NAHCMD 122(27 March 2015)

Coram:GEIER J

Heard:27 March 2015

Delivered:27 March 2015

Released:02June 2015

Flynote:Review — Application for — Time within which proceedings to be instituted — Delay — Whether delay unreasonable — Question whether delay unreasonable a question of fact and not of law — Question to be determined objectively on particular facts and circumstances of each case — Determination of such question not entailing exercise of discretion — But it does imply the making of a value judgment.

Review — Delay in instituting review proceedings — Whether delay was unreasonable and should be condoned — Applicants launching review proceedings after some nine and a half monthsin respect of a decision taken by an Appeal Tribunal constituted in terms of Section 39 of the Communal Land Reform Act, No 5 of 2002— Despite question of delay having been raised in respondents' answering papers, applicants offering no explanation — Court upholding defence of unreasonable delay — Applicants’ failure to give an explanation and to seek condonation as well as the establishment of prejudice militating against the granting of condonation for the delay — Application accordingly dismissed with costs.

Summary: The facts appear from the judgment.

ORDER

  1. The application is dismissed with costs.
  1. The 1st and 2nd applicants are to be liable for such costs, jointly and severally, the one paying the other to be absolved.

JUDGMENT

GEIER J:

[1]The applicants seek to review and set aside the decision made by an Appeal Tribunal constituted in terms of Section 39 of the Communal Land Reform Act, No 5 of 2002, that is a decision made by the second respondent in respect of an appeal made to it by the first respondent against a decision of the Omaheke Communal Land Board.

[2]The first respondent had during September 2010 applied to the said board for the recognition and the registration of certain land rights, in respect of a piece of land, situate in Corridor 1, of the Aminus constituency. The application was unsuccessful, hence the first respondent’s appeal to the second respondent, which was initially met with success in that the second respondent overturned the decision by the Omaheke Communal Land Board.

[3]The Appeal Tribunal expressly reinstated theBakgalagadiTraditional Authorities’initial decision to approve the first respondent’s application for the recognition and registration of the first respondent’s application for land rights.

[4]The appeal decision, subsequently taken on review, was delivered on 28 March 2012.

[5]The review application, seeking to assail that decision, was lodged some nine and half months later, so much is common cause between the parties.

[6]It is the first and second applicant’s delay in bringing this review, which elicited the defence of unreasonable delay[1]by the firstrespondent in this review.

[7]The Supreme Court has now, in two recent decisions, laid down the proper approach to be followed for determining this defence.O’ReganAJAdid so as follows in Keya v Chief of Defence Force[2] from which I quote:

‘Proper approach to the question of unreasonable delay

[21] This court has held that the question of whether a litigant has delayed unreasonably in instituting proceedings involves two enquiries: the first is whether the time that it took the litigant to institute proceedings was unreasonable. If the court concludes that the delay was unreasonable, then the question arises whether the court should, in an exercise of its discretion, grant condonation for the unreasonable delay.In considering whether there has been unreasonable delay, the high court has held that each case must be judged on its own facts and circumstances[3] so what may be reasonable in one case may not be so in another. Moreover, that enquiry as to whether a delay is unreasonable or not does not involve the exercise of the court's discretion.[4]

[22] The reason for requiring applicants not to delay unreasonably in instituting judicial review can be succinctly stated. It is in the public interest that both citizens and government may act on the basis that administrative decisions are lawful and final in effect. [5] It undermines that public interest if a litigant is permitted to delay unreasonably in challenging an administrative decision upon which both government and other citizens may have acted. If a litigant delays unreasonably in challenging administrative action, that delay will often cause prejudice to the administrative official or agency concerned, and also to other members of the public. But it is not necessary to establish prejudice for a court to find the delay to be unreasonable, although of course the existence of prejudice will be material if established.[6]There may, of course, be circumstances when the public interest in finality and certainty should give weight to other countervailing considerations. That is why once a court has determined that there has been an unreasonable delay, it will decide whether the delay should nevertheless be condoned. In deciding to condone an unreasonable delay, the court will consider whether the public interest in the finality of administrative decisions is outweighed in a particular case by other considerations.’

[8]It confirmed this approach in the Chairperson Council of the Municipality of Windhoek v Roland referred to above at paragraph [39].

[9]In following the so decreed approach it thus becomes incumbent on this court to firstly determine whether the time, the applicants, in this case, took to institute this review, was unreasonable and then, if the court concludes, that the delay was unreasonable, to consider whether the court should, in the exercise of its discretion, grant condonation for the unreasonable delay.[7]

[10]In establishing whether there has been an unreasonable delay it has been held that each case must be judged on its own facts and circumstances.[8] This determination does not involve the exercise of the court’s discretion.[9]

[11]It is probably fitting at this juncture to refer to two of my previous decisions which I made in Ogbokor[10] and Simana[11], (also referred to in Mr Tjombe’s Heads of Argument), in which I cited with approval from a passage out of the judgment delivered by the court a quoin Keya[12].

[12]This is also reflected in the reported judgment of Samicor Diamond Mining (Pty) Ltd v Minister of Mines and Energy and Others[13],a further decision of this court, where Van Niekerk J found herself unable to agree with the views expressed by myself on the basis of the saidKeyajudgment, which, in turn, were based on what the court had said inKleynhans v Chairperson of the Council for the Municipality of Walvis Bay[14]for the reasons set out more particularly in her judgment as follows:

[23] Mr Tjombe referred me to the unreported judgment in Keya v Chief of Defence Force and Others (High Court case No A29/2007), where the case law applicable in these circumstances was restated. In para 16 of this judgment Judge President Damaseb states:

'It is settled that when unreasonable delay in bringing a review application is raised in the pleadings, the Court is required, firstly, to determine whether on the facts of the case the applicant's inaction since the cause of action arose, was unreasonable. That is a question of law and not of discretion.' [My emphasis.]

[24] The same view was expressed in Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011 (2) NR 437 (HC) at 450B – C where the court said:

'The first issue to consider is whether on the facts of the case the applicant's inaction was unreasonable: That is a question of law.' [My emphasis.]

This dictum was approved by Geier J in two other unreported cases which Mr Tjombe brought to my attention, namely Ogbokor v Immigration Selection Board (case No A 223/2011; [2012] NAHCMD 33 (17 October 2012)) at 8, para 15; and Simana v Commissioner General Correctional Services (case No A129/2011; [2012] NAHCMD 57 (9 November 2012)) para 65.

[25] I regrettably find myself unable to agree with the views expressed that the question whether the delay was unreasonable is a question of law. It is clearly a question of fact to be determined objectively based on the particular facts and circumstances of each case (Radebe, supra; Black Range Mining (Pty) Ltd v Minister of Mines and Energy and Another2009 (1) NR 140 (HC) at 144H – I).

[26] In the flynotes of the Ogbokor and Simana judgments I note the statement that the question whether the delay is unreasonable is within the court's discretion. It seems to me that this statement is not supported by the judgments themselves. Nevertheless, in case I am misinterpreting the judgments, I state for the sake of clarity that I respectfully disagreewith the statement. The applicable authorities are clear that the determination of the unreasonableness or otherwise of the delay does not entail the exercise of a discretion although it does imply the making of a value judgment. In Setsokosane Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie, en 'n Ander 1986 (2) SA 57 (A) it was held (I quote from the English headnote which accurately reflects the Afrikaans judgment) at 59H – J:

'The test which a Court has to apply to ascertain whether a common-law application for review in the absence of a specific time limit, was brought within a reasonable time, is of a dual nature. The Court namely has to ascertain (a) whether the proceedings were instituted after expiration of a reasonable time and (b) if so, whether the unreasonable delay should be condoned. As regards (b), the Court exercises a discretion but the enquiry as far as (a) is concerned does not involve the exercise of the Court's discretion; it involves a mere examination of the facts in order to determine whether the period that has elapsed was, in the light of all the circumstances, reasonable or unreasonable. Naturally, the finding of the Court in this regard does imply that the Court has made a value judgment in the sense of the Court's view of the reasonableness of the period that has elapsed in the light of all the circumstances. To equate such a value judgment with a discretion is, however, not justifiable legally or logically.'

See also the Wolgroeiers Afslaers case, supra at 42C – D; Schoultz v Voorsitter, Personeel-Advieskomitee van die Munisipale Raad van George, en 'n Ander 1983 (4) SA 689 (C) at 697 – 698.’

[13]I concede that I was wrong in this regard. It is clear, also given the recent pronouncements by our Supreme Court in Keya and Roland[15], that the question, whether or not a delay is reasonable or unreasonable, is not a question of law, as this determination is to be made on an examination of the facts, which are then also to be considered in the light of the prevailing circumstances of each case. It has been recognized that this process results in a value judgment.[16]

WAS THE DELAY IN THIS CASE REASONABLE?

[14]In this regard it is to be noted firstly that the applicants failed to address this issue altogether in their founding papers. The 1strespondent then, in her answer, raised this defence explicitly. She states:

‘A. POINT IN LIMINE:UNREASONABLE DELAY IN THE LAUNCHING OF THE REVIEW APPLICATION

  1. The Applicants launch this application (i.e. “the review application”) for the review of a decision made by the Second Respondent and several other ancillary relief on or about 12 December 2012.
  1. The decision of the Second Respondent, which is sought to be reviewed in terms of this application, was taken28 March 2012, (i.e. approximately 9½ months) to the date on which the application was issued by the Honourable Court’s Registrar.
  1. The delay of 9½ months is unreasonable and excessive in the circumstances, and I suffered and will continue to suffer irregular prejudice as a result of the delay in the launching of the review application by the Applicants. As demonstrated below, the Applicants have no prospects of success in this application and the application should therefore be dismissed with cost on this score alone.
  1. It is apparent from the application itself that the Applicants were unable to launch this application within a reasonable time. All the documents on which they relied are attached to the founding papers. The application is not a complicated application, with the founding affidavit consisting no more than 6 pages, with 4 more annexures attached to it.
  1. Applicants do not explain under oath why it was necessary to launch the application only after the passing of 9½ months, nor has an application for the condonation of the belated launching of the application been made. This is not the tardy conduct to be expected of a litigant apparently serious with the alleged violation of his rights.’

[15]As the applicants elected not to file any replying affidavits these allegations remained unanswered.

[16]Two relevant aspects emerged immediately from the 1strespondent’s answer namely:

THE FIRST ASPECT

a)The application is indeed self-contained. All the documents relied on were annexed to the founding papers.

b)It is a short application of some six pages –consisting of the founding papers, excluding the Notice of Motion–together with two simple confirmatory affidavits of some three paragraphs each. Then there are four annexures.

c)The drafting, collating and issuing of such a concise application couldsurely have been achieved in a few days, at the most.

THE SECOND ASPECT

d)There is simply is no explanation offered or reason advanced why it took the applicants some nine and half months to launch the review application;ie from 28 March 2012 to 12 December 2012.

e)I might add in this regard that the application was served even later on the 1st and 2ndrespondents, namely, respectively, on the 9th and 11th January 2013 only.

NO CONDONATION APPLIED FOR

[17]Through written heads of argument, Mr Phatela, then counsel for the applicants,attempted to remedy this issue by submitting:

‘ … there is legal proposition for the submission that in the circumstances of this case, this Honourable Court should dismiss the attack that there was unreasonable delay in bringing this application. There is ample authority for the proposition that an applicant seeking review was not expected to rush to court upon the cause of action arising. She was entitled to first ascertain the terms and effect of the decision sought to be impugned; to receive the reasons for the decision if not so of evident; to obtain the relevant documents and to seek legal and other expert advice where necessary; to endeavour to reach an amicable solution if that was possible; to consult with persons who maydepose to affidavits in support of the relief.

“Our Courts have held that the length of time that had passed between the cause of action arising and the launching of the review was not a decisive factor although no doubt important. the crucial consideration was the extent to which passage of time ̶ in view of the nature of relief and subject to which it related ̶ either weakened or had no or little bearing on, the efficacy of the relief sought;the less efficacious the relief sought or the more serious the prejudice it caused on account of the delay, the stronger the influence that the delay was unreasonable.”

[18]In view of the evidential position emanating from the affidavits filed of record in this case it emerges that Mr Phatela’s submissions were however made without basis. No evidence was placed before the court to the effect that applicants did not want to rush to court or that they first spent some time ascertaining the terms and effect of the decision they wished to impugn or that they ever requested any reasons for the decision which they, in any event, had in this instance because there was a reasoned appeal decision. It was also not explained what time was consumed in seeking legal advice or that the applicants ever attempted to obtain an amicable resolution of this dispute. It thus becomes clear that these submissions cannot be upheld in the absence of any established facts founding them.

[19]Mrs Visser, who represented the applicants at the hearing of this matter,had elected not to avail herself of the opportunity to file supplementary heads of argument. Nevertheless she submitted–and thus without notice - that the delay in this matter was not unreasonable given the background history leading up to the review in respect of which it had to be taken into account that the 1stapplicant had already gave notice, to 1strespondent, to vacate the area in question, as far back as 2006, and, where the 1strespondent only applied subsequently to the Omaheke Land Board for the recognition of her land rights during September 2010 which eventually resulted in the appeal decision complained of in March 2012. The remainder of her argument then focused on the issue of prejudice to which I will return.

[20]Mr Tjombe in his written heads of argument extensively addressed this issue as follows:

‘In the decision of Kleynhans v Chairperson of the Council for the Municipality of Walvis Bay and Others 2011 (2) NR 437 (HC) Justice Damaseb, JP conveniently sets out the applicable Namibian authorities in administrative delay cases:

[41] In Ebson Keya v Chief of Defence Forces and Three Others[17] the court had occasion to revisit the authorities on unreasonable delay and to extract from them the legal principles applied by the courts when the issue of unreasonable delay is raised in administrative law review cases. The following principles are discernable from the authorities examined:

(i)The review remedy is in the discretion of the court and it can be denied if there has been an unreasonable delay in seeking it: There is no prescribed time limit and each case will be determined on its facts. The discretion is necessary to ensure finality to administrative decisions to avoid prejudice and promote the public interest in certainty. The first issue to consider is whether on the facts of the case the applicant's inaction was unreasonable: That is a question of law.

(ii)If the delay was unreasonable, the court has discretion to condone it.

(iii)There must be some evidential basis for the exercise of the discretion: The court does not exercise the discretion on the basis of an abstract notion of equity and the need to do justice between the parties.

(iv)An applicant seeking review is not expected to rush to court upon the cause of action arising: She is entitled to first ascertain the terms and effect of the decision sought to be impugned; to receive the reasons for the decision if not self-evident; to obtain the relevant documents and to seek legal and other expert advice where necessary; to endeavour to reach an amicable solution if that is possible; to consult with persons who may depose to affidavits in support of the relief.