2

REPUBLIC OF NAMIBIA


HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 334/2012

In the matter between:

MICHAEL GAWESEB APPLICANT

and

HENRY PLATT NO 1ST RESPONDENT

HILMA SHIDONDOLA-MOTE NO 2ND RESPONDENT

MARIA THARACKY NAMUPALA NO 3RD RESPONDENT

ADEL HEIDE BEINHAUER NO 4TH RESPONDENT

PETER CUNNINGHAM NO 5TH RESPONDENT

JULIAN THOMAS FENNESSY NO 6TH RESPONDENT

ROSA NAMISES NO 7TH RESPONDENT

ELIZABETH LINDA BAUMANN NO 8TH RESPONDENT

CELIA KAUNATJIKE NO 9TH RESPONDENT

CASPER ERICHSEN NO 10TH RESPONDENT

PAULINE DEMPERS NO 11TH RESPONDENT

ANDREAS PELTZER NO 12TH RESPONDENT

SAMUEL HARASEB NO 13TH RESPONDENT

FRIEDA NAMBULI NO 14TH RESPONDENT

BOTHA BASSON 15TH RESPONDENT

PETRUS JOHANNES DEMPERS 16TH RESPONDENT

Neutral citation: Gaweseb v Platt NO ( A 334/2012) [2013] NAHCMD 298 (22 October 2013)

Coram: MILLER AJ

Heard: 27 September 2013

Delivered: 22 October 2013

Flynote: Administrative action – What amounts to administrative action.

Summary: Applicant was a trustee of the Nangof Trust. He was requested in writing by the majority of trustees to resign. Clause 6.9.6 of the Deed of Trust obliges a trustee to resign if so requested to resign in writing by the majority of trustees. Applicant contends that the decision amounted to administrative action which should be reviewed.

Held that the decision was a pure contractual right which did not amount to administrative action.

Application dismissed.

ORDER

Application dismissed with costs which will include the costs of one instructing and instructed counsel.

JUDGMENT

MILLER AJ :

[1] On 27 July 2007 a trust named the Namibia Non-Governmental Organizations Forum Trust was created by the execution of a written Deed of Trust.

[2] Its aim was to establish an organization to serve as a platform by which Namibian Non-Governmental organizations, community-based organizations and other civil society organizations could join forces to render them capable of more effectively pursuing their goals as well as engaging the Namibian Government, donors and organizations with similar objects.

[3] I will refer to this entity simply as the Trust.

[4] The applicant in these proceedings was among the first trustees appointed to administer the affairs of the Trust.

[5] The trust is registered with the Master of the High Court under registration number TR 274/07.

[6] The first to the fifteenth respondents were the trustees holding office as such when these proceedings were instituted on 24 January 2013. No relief is sought against the sixteenth respondent.

[7] On 21 November 2011 a letter signed by the sixteenth respondent acting on behalf of the then trustees was addressed to the applicant. It reads as follows:

‘

Mr. Michael Gaweseb

Executive Director

Namibia Consumer Trust

Namibia

Dear Mr Michael Gaweseb,

RE: VACATION OF OFFICE AS TRUSTEE OF THE NANGOF TRUST

Following the decision of the majority of NANGOF Trust’s Council of Trustees, which is attached to this letter, I am hereby mandated to communicate to you that the Trustees in terms of the Trust Deed, Section 6.9, Sub-Section 6.9.6, have decided to require you to resign with immediate effect from the NANGOF Trust Council. The Trustees have found your behavior as a Trustee unfit and your conduct not meeting the requirements of a Trustee. Some of the factors that have contributed to this decision of the Trustees are the following:

1.  You have on 21st July 2011 drafted a letter without any mandate from the Council requesting First National Bank of Namibia to freeze the NANGOF Trust’s bank account.

2.  You have failed to fulfill crucial responsibilities as Treasurer of the NANGOF Trust, e.g. you have successfully delayed the holding of the 2011 AGM by delaying without any reason the signing of the 2009 audited financial statements. The needed preparations for the upcoming AGM scheduled for the 25th November 2011 in terms of overseeing the finalization of the 2010 financial statements have not been done, thus once again threatening to holding the AGM as scheduled. Instead of focusing on these preparations to have chosen instead – without even notifying the NANGOF Trust Council – to venture on a foreign trip funded by the NANGOF Trust.

3.  Although in the past you had never had any objections to previous AGM’s despite the fact that the 2009 financial statements had not been ready for the 2010 AGM (primarily the responsibility of a Treasurer), nor all voting Trustees had been paid-up (yourself included!), but now that the 2011 AGM has come where you must vacate your seat, you are seen to be conjuring up all kinds of objections which have not bothered you in the past.

4.  Your disruptive behaviour at almost every Council meeting has become unbearable and has affected the performance of the organization including the attendance of the Council members at meetings.

5.  You have written and published an illegal letter once again without any mandate from the Council to the Vice-Chairperson on the 17th November 2011.

These and other factors have thus left the Trustees with no other option but to exercise the duty of care as demanded by their responsibility as Trustees and to request you to relinquish your position as Trustee of the NANGOF Trust and consequently as Treasurer.

You are thus as from this hour onward not allowed to act on behalf of the NANGOF Trust nor make any statements in the name of the NANGOF Trust.

You are hereby referred to the stipulation contained in Section 6.9 of the NANGOF Trust Deed which states that ‘the office of a Trustee SHALL (my emphasis) be vacated’ under the listed circumstances, which include Sub-Section 6.9.6. This in effect leaves no option for a Trustee to stay on, once a letter as the one hereby presented to you has been signed by the majority of serving Trustees, but is in effect a dismissal without the option of appeal.

With Thanks,

Ronny Dempers

NANGOF Trust Council Chairperson’

[8] Following the receipt of this letter the applicant through his legal practitioners demanded his re-instatement. This was by way of a letter dated 15 December 2011. That demand was not met. He did resign however.

[9] Nothing further transpired until 16 April 2012 when the applicant launched motion proceedings. The relief claimed in those proceedings was wide ranging and to a large extent not sustainable. Not surprisingly the applicant received advice, following a notice in terms of Rule 30 being filed by the respondents, to abandon those proceedings. In the result the application was withdrawn on 26 June 2012.

[10] The present proceedings were launched on 24 January 2013.

[11] The applicant’s prayers are more concise and he claims the following relief:

‘

1.1  The decision taken by the Council of Trustees of the NANGOF Trust on 21 November 2011 and made known to the applicant on 21 November 2011 is declared null and void and set aside.

1.2  All action taken by the Council of Trustees of the NANGOF Trust relating to the demand for the resignation of the applicant as trustee, is set aside.

1.3  The applicant be and is hereby retrospectively re-instated as trustee of the NANGOF Trust from 21 November 2011.

1.4  Costs of suit, including the costs of one instructing and one instructed counsel.

1.5  Further and/or alternative relief.’

[12] Ms. Schneider who appeared for the applicant submits that the Council of Trustees is a tribunal which is required to act with procedural fairness and to apply the principles of natural justice, which it is said the Council of Trustees failed to do when they requested the applicant to resign. The decision making functions amount to administrative action which can consequently be reviewed by this Court.

[13] Reliance is placed on Article 18 of the Constitution and the Court’s common law power of review.

[14] It was further submitted that in any event, the Council did not comply with the contractual obligations created in the Deed of Trust.

[15] Ms. de Jager who appeared on behalf of the respondents argues that the relationship between the applicant on the one hand and the Trust and its trustees is a purely contractual relationship which is not reviewable. Ms. de Jager relies for this submission primarily on the judgment, written by Strydom AJA in Permanent Secretary of the Ministry of Finance and Others v Ward 2009 (1) NR 314 SC.

[16] Some debate centered on the issue of whether there was an unreasonable delay to launch the current proceedings. Because of the conclusion I have come to I do not deem it necessary to deal with that. I shall assume in favour of the applicant that the delay was not unreasonable. I need only add that during the course of the argument I posed the question to Ms. Schneider whether the Trust will not be prejudiced if the applicant must be re-instated after a lapse of some two years. Her response was that the applicant no longer seeks to be re-instated. Consequently the relief sought in Prayer 1.3 falls away.

[17] The respondents also contend that the letter dated 02 November 2011 was written in error because the applicant was no longer a trustee in any event of that time.

[18] I turn to consider whether the decision to ask the applicant to resign amounted to administrative action.

[19] In Mbanderu Traditional Authority and Another v Kahuure and Others 2008 (1) NR 55 (SC) the Namibian Supreme Court cited with approval the following passage from the judgment by the South African Constitutional Courts in President of the Republic of South Africa and Others v SARFU 2000 (1) SA 1 CC:

“While the subject matter of a power is not relevant to determine whether constitutional review is appropriate, it is relevant to determine whether the exercise of the power constituted administrative action for the purposes of Section 33. Difficult boundaries may have to be drawn in deciding what should and should not be characterized as administrative action for the purposes of Section 33.

These need to be drawn carefully in the light of the provisions of the Constitution and overall constitutional purpose of an efficient, equitable and ethical public administration. This can best be done on a case by case basis.”

[20] It must also be born in mind that administrative action is not confined solely to decisions made or steps taken by government officials and state functionaries or bodies. There are several decisions in our jurisprudence whether the Courts reviewed decisions taken by other bodies where for instance where they act in the public interest. See Dawnlaan Beleggings (Edms) Bpk v Johannesburg Stock Exchange and Others 1983 (3) SA 344 (W).

[21] In other instances decisions reached by tribunals of private clubs or the synod of a church were reviewed. In the latter instance see Theron and Others v Ring van Wellington van die NG Sendingkerk in Suid Afrika en Andere 1976 (2) SA, AD.

[22] In that case it was held that in general an act of a judicial nature of a contractual tribunal of a voluntary association can be interfered with .

[23] One would think that the provisions of Article 18 of the Constitution strengthens that proposition.

[24] With that in mind I turn to consider the powers granted to the trustees in the Deed of Trust and how that powers can be exercised: Clause 6.9 deals with the vacation of office by trustees of the Trust. Clause 6.9.6 states that a trustee shall vacate his office “if the majority of the trustees in writing require a trustee to resign.”

[25] Ms. Schneider argues that this clause entails that the trustees should meet, and hear the affected trustee before a decision can be taken.

[26] I cannot agree. There are elaborate provisions elsewhere in the Deed of Trust which relate to the holding of meetings, the quorum for such meetings and the like. If Clause 6.9.6 envisaged a meeting the wording thereof would no doubt have been different.

[27] Ms. de Jager referred me to the judgment in Sea Plant Products Ltd and Others v Watt 2000 (4) SA 711 (C) where the following passage appears:

‘As pointed out by Levinsohn J in the recent case of Ally v Mohamed and Others NNO [1998] JOL 3393 (D) at 10:

A trust deed must be construed in accordance with the well known and time honoured rules regarding the interpretation of written contracts (see Worman v Hughes and Others 1948 (3) SA 495 (A) at 505; Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A) at 453)…Applied particularly to a trust deed, the exercise in interpretation involves determining the intention of the settlers of the trust as expressed by them in the trust deed…where there is an ambiguity in the document, an interpretation favouring the basic purpose of the trust deed must be preferred…The trust deed speaks from the time of its execution. This is in accordance with the dicta of Caney J in Moosa and Another v Jhavery 1958 (4) SA 165 (d) AT 169:

“In my opinion the trust speaks from the time of its execution and must be interpreted as at that time. It is the settlor’s intention at that time which must be ascertained from the language he used in the circumstances. Subsequent events (and in these are included statutes) cannot, I consider, be used to alter that intention.”’

As with the interpretation of a written contract, the point of departure in interpreting a trust deed is therefore the grammatical or ordinary meaning of the words used, read within the context of the trust deed as a whole (See, for example, van der Merwe at al Contract: General Principles (1993) at 219 – 21 and Christie The Law of Contract in South Africa 3rd ed (1996) at H 227 – 33).