trustco insurance t-a legal shield-o vs the deeds registries regulation board-others

8/9/2019 Trustco Insurance T-A Legal Shield-O vs the Deeds Registries Regulation Board-Others

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REPORTABLE

SUMMARY

Case No.: A 150/2008

IN THE HIGH COURT OF NAMIBIAIn the matter between:

TRUSTCO INSURANCE LIMITED t/a LEGAL SHIELD NAMIBIA AND ANOTHER

v THE DEEDS REGISTRIES REGULATION BOARD AND OTHERS

PARKER J etNDAUENDAPO J

2010 June 4

_________________________________________________________________________

Constitutional Law - LegislationDeeds Registries Act, 1937 (Act No. 47 of

1937; made applicable to Namibia on 1 June 1972 by

the Deeds Registries Amendment Act, 1972 (Act No. 3

of 1972)), as amended Subordinate legislation made

in terms of s 10 (1) (c) thereof The subordinate

legislation in the form of Regulation 65 in Government

Notice No. 180 of 1996 of 1 July 1996 (as amended)

and Schedules I and II annexed thereto (as amended)

Regulation prescribing fees for conveyancing and

notarialwork and annexed Schedule I containing the

Fees of Office and Schedule II containing the Tariff of

Conveyancing and Notarial Fees1st applicant and 2nd

applicant challenging validity of Regulation 65 (as

amended) and the annexed Schedules I and II (as

amended) based on Article 21 (1) (j) and Article 18 of

the Namibian Constitution Locus standi of 1st

applicant raised as preliminary objection Court


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finding that the Regulations and the Schedules

concern conveyancers and 1st applicant is not a

conveyancer but carries on business of short-term

insurance and 1st applicant does not allege that its

right to carry on business of short-term insurance has

been infringed Court finding further that at best 1st

applicant has only an indirect financial interest in

outcome of the matter Consequently, Court finding

that the 1st applicant is not an aggrieved person

within the meaning of Article 25 (2) of the Namibian

Constitution and therefore not having locus standi

Accordingly, Court upholding the point in limine andholding that 1st applicant has no locus standi in the

proceedings Court dismissing with costs the

application as respects 1st applicant after upholding

the preliminary objection on standing.

Constitutional Law - Basic human rights contained in Chapter III of the

Namibian Constitution Court confirming that those

basic human rights are justiciable because Article 25

(2) says soCourt finding that the nature, content and

extent of each of those basic human rights are

categorically expressed in clear and plenitudinal terms

Consequently, courts have no justification to add to,

modify or vary any one of those basic human rights

without stultifying the justiciability of the particular

basic human right protected by the Constitution

Court observing that the decision of the Supreme

Court in African Personnel Services (Pty) Ltd v

Government of the Republic of Namibia and OthersCase

No. SA 51/2008 (Unreported) must not be seen as

creating any basic human right additional to those

basic human rights contained in Article 21 (1) (j)

Court finding that there is no basic human right called

the right to compete on price guaranteed by theNamibian Constitution in terms of Article 21 (1) (j) and

protected in terms of Article 25 (2)Accordingly, Court

concluding that on the papers the 2nd applicant has


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failed to establish that his right to practise his

profession of conveyancer has been infringed in virtue

of the making of Regulation 65 (as amended) and the

annexed Schedules (as amended) Consequently, the

Court dismissing the 2nd applicants application with

costs.

Constitutional Law - Article 21 (1) (j) of the Namibian Constitution Court

finding that Article 21 (1) (j) contains two distinct and

separable rights, namely, (i) the right to practise any

profession or (ii) the right to carry on any occupation,

trade or business Court finding further that the

authority emerging in the Supreme Court decision in

African Personnel Services (Pty) Ltd v Government of the

Republic of Namibia and OthersCase No. SA 51/2008

(Unreported) concerns the right to carry on any

occupation, trade or business only.

Constitutional Law - Basic human right to administrative justice in terms of

Article 18 of the Namibian Constitution The 2nd

applicant attacking validity of Regulation 65 (as

amended) and the annexed Schedules (as amended) on

the basis of Article 18 Article 18 requirements

enumerated Court noting that in instant case 2nd

applicant relying on failure by 1st and 2nd respondent

to act reasonablyCourt laying down what burden the

applicant must discharge in order to succeed in

challenging validity of an act by an administrative

official or basis that they acted unreasonably On the

papers Court concluding that the 2nd applicant has


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failed to establish that in making Regulation 65 (as

amended) and the annexed Schedules (as amended)

the 1st respondent did act unreasonably and in

approving the Regulation and the Schedules the 3rd

respondent did act unreasonably Consequently, the

Court dismissing application with costs.

Statute - The Registries Act, 1937 (Act No. 47 of 1937), as

amended Section 10 (1) (c) thereof Court finding

that the chapeau of the section indicates that the

Board (1st respondent in casu) is given absolute

discretion to make regulations prescribing fees and

charges in connection with three distinct and separate

items Court concluding that it is not mandatory for

the Board to prescribe all the three items in a

Regulation that they may make Accordingly, Court

concluding that it cannot be argued that the 1 st

respondent acted unreasonably just because the 1st

respondent did not prescribe in Regulation 65 (as

amended) and the Schedules (as amended) taxation of

any such fees or charges, i.e. the third item.

Held, a person is not an aggrieved personwithin the meaning of Article 25 (2) of

the Namibian Constitution entitled to approach the Court for redress for himself

or herself unless such a person is able to establish that a right guaranteed to him

or her by the Constitution has been infringed or such infringement has been

threatened in relation to him or her.


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Held, further, that an indirect financial interest, as opposed to direct and

substantial interest in the outcome of a matter, cannot clothe a person with locus

standi to impugn, in terms of Article 25 (2) of the Constitution, the

constitutionality of a legislation or subordinate legislation made thereunder or an

act carried out under such subordinate legislation, as in the present case.

Held, further, that in order to maintain the justiciability of each of the basic

human rights contained in Chapter III of the Namibian Constitution, each such

basic human right is formulated in such a way that the nature, content or extent

of the particular basic human right are categorically expressed in clear and

plenitudinal terms; and so courts are not justified in adding to, varying or

modifying the rights expressly provided by the Constitution without stultifying the

justiciability of those basic human rights. Where, it is the intention of the framers

of the Constitution that the particular basic human right first mentioned shall

have supplementary or associated basic human right or rights included in the

first mentioned basic human right, the framers of the Constitution have made

such of their intention clearly known by using such peremptory words as shall

include, including, or includesin the formulation of the relevant provisions.

Held, further, that the requirement that an administrative body or an

administrative official must act reasonably in terms of Article 18 has to be

reconciled with no less important doctrine that the Court must not usurp the

discretion of the administrative body or administrative official which the

legislature in its wisdom and within its constitutional power appointed to act: the

Court may only intervene where in so acting the administrative body or

administrative official exceeded its or his or her power in terms of the legislation

the body or official is administering.


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Held, further, that the very concept of administrative discretion involves a right to

choose between more than one possible course of action upon which there is

room for reasonable people to hold differing opinions as to which is to be

preferred.


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Case No.: A 150/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TRUSTCO INSURANCE LIMITED t/aLEGAL SHIELD NAMIBIA 1st Applicant

KRGER, VAN VUUREN & CO LEGAL 2nd ApplicantPRACTITIONERS

and

THE DEEDS REGISTRIES REGULATION BOARD 1st Respondent

THE REGISTRAR OF DEEDS 2nd Respondent

THE MINISTER OF LANDS, RESETTLEMENT

AND REHABILITATION 3rd Respondent

THE ATTORNEY GENERAL OF THE GOVERNMENTOF THE REPUBLIC OF NAMIBIA 4th Respondent

THE LAW SOCIETY OF NAMIBIA 5th Respondent

THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA 6th Respondent

CORAM: PARKER J etNDAUENDAPO J

Heard on: 2010 March 23

Delivered on: 2010 June 4

JUDGMENT

PARKER J.:

[1] The applicants instituted an application on 11 June 2008 on notice

of motion. That notice of motion was replaced by an amended notice of


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motion filed with the Court on 11 September 2008, moving the Court to

grant an order in the following terms:

(1) That the fees prescribed by the first respondent and approved by the

third respondent as contained in Schedules I and II to annexure II of

Regulation 65 of Government Notice No. 180 of 1996 and published

in Government Gazette No. 1343 on 1 July 1996 and as amended by

Regulation 20 together with Schedules 1 and II thereto, as

published in Government Gazette Nr 3155, dated 17 February.

Schedules I and II in Regulation 20 of Notice No. 36 of 2004 and

published in Government Gazette No. 3155 of 17 February 2004

(hereinafter referred to as the amending Schedules) be declared

unconstitutional and null and void as being contrary to the

provisions of Article 21 (1) (j) and/or Article 18 read with Article 22

of the Constitution of the Republic of Namibia.

(2) That the prescribed fees by the first respondent and approved by the

third respondent as contained in Schedules I and II to annexure IV

of Government Gazette No 3824 dated 13 April 2007, promulgated

under section 40 of the Sectional Titles Act, 1971, be declared

unconstitutional and null and void as being contrary to the

provisions of Article 21 (1) (j) and/or Article 18 read with Article 22

of the Constitution of the Republic of Namibia.

(3) That those respondents opposing the application be ordered to pay

the costs of this application, jointly and severally, the one paying theothers(s) to be absolved.

(4) That the Court grants such further and/or alternative relief as the

Court deems fit.

[2] The founding affidavit that accompanied the original notice of motion

of 11 June 2008 is the founding affidavit of Christoffel Johannes Jansen

Van Vuuren deposed to on 4 June 2008. It seems to me clear that that

affidavit was filed on behalf of both applicants. The purpose of this


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observation will become apparent in due course. In any case, the same

founding affidavit is also used in support of the amended notice of motion

of 11 September 2008, too. Thus, in the founding affidavit, according to

the applicants, the purpose of the application

is to declare Schedules I and II in Annexure II to Regulation 65 of the

Deeds Registries Regulations 1996 (the Regulations) published in

Government Notice No. 180 of 1996, as amended by Regulation 20 together

with Schedules I and II thereto, as published in Government Gazette

number 2155, dated 17 February 2004, as well as Schedules I and II of

similar Regulations published in terms of the Sectional Titles Act, 1971,

referred to below, and particularly as being unconstitutional and in conflict

with Articles 21 (1) (j) and 18, read with the provisions of Article 22, of the

Namibian Constitution.

The Regulations mentioned in this quotation and in the notice of motion

are hereinafter referred to simply as the Regulations. The annexed

Schedules mentioned in this quotation and in the notice of motion concern

tariff of fees and charges of conveyancers in respect of conveyance and of

other legal practitioners who carry out preliminary work connected with

conveyance. The annexed Schedules are hereinafter referred to simply as

the Schedules.

[3] The all important point must be made at the outset that by the

founding affidavit, the applicants have come to court with a constitutional

challenge. The constitutional attack is based on the rights under Article 21

(1) (j) and the right to administrative justice in terms of Article 18 of the

Namibian Constitution; and in the hackneyed language of the Court, in

application proceedings the applicant must fall or stand by his or her


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founding affidavit. That is the manner in which I approach the

determination of this application.

[4] The 2nd, 3rd, 5th and 6th respondents have moved to reject the

application. An answering affidavit has been filed on behalf of the 2nd, 3rd

and 6th respondents by the 2nd respondent, who is also the chairman and

executive officer of the 1st respondent and another one has been filed on

behalf of the 5th respondent by its president.

[5] In its answering affidavit, the 5th respondent has raised a point in

limine, challenging, in the main, the locus standi of the 1st applicant. In

the nature of the instant application, which concerns a constitutional

challenge, it behoves the Court to deal with this critical preliminary

objection at the outset so as to determine whether the 1st applicant is an

aggrieved person entitled to approach this Court in terms of Article 25 (2),

read with Article 18 and Article 21(1) (j), of the Namibian Constitution.

Thus, in determining the preliminary objection concerning the question of

locus standi of the 1st applicant in these proceedings, we must perforce

look up to Article 25 (2) of the Namibian Constitution. It is therefore to the

interpretation and application of Article 25 (2) that I now direct my

enquiry. Article 25 (2) provides:

Aggrieved persons who claim that a fundamental right or freedom

guaranteed by the Constitution has been infringedor threatened shall be

entitled to approach a competent Court to enforce or protect such right orfreedom. (My emphasis)


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[6] In Jacob Alexander v The Minister of Justice and Others Case No.

A210/2007 (judgment on 2 July 2008) (Unreported) at p. 38, this Court

said the following thereanent the interpretation and application of Article

25 (2) of the Namibian Constitution:

in every application where an applicant relies on Article 25 (2) of the

Constitution, the threshold he or she must cross in order to persuade a

competent Court that he or she is entitled to approach the Court for

redress is that he or she must show that he or she is an aggrieved person

and that a human right guaranteed to him or her by the Constitution has

already been violated (infringed) or is likely to be violated or it is

immediately in dangerof being violated (threatened).

[7] Strydom AJA put it succinctly and straight to the point when the

matter went on an appeal in Jacob Alexander v The Minister of Justice and

OthersCase No. SA 32/2008 (Unreported) (Judgment delivered on 9 April

2010) at p.31 in this way:

The standing of a party to approach a Court to protect him/her against

unlawful interference with his/her rights is dependent on whether his or

her rights are infringed or there is a threat of such infringement.

[8] Article 21 of the Namibian Constitution provides:

(1) All persons shall have the right to:

(j) practise any profession, or carry on any occupation, trade or

business.

[9] Thus, in casu the 1st applicant must establish that in virtue of the

Regulations and the Schedules which deal with fees and other charges


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chargeable by conveyancers and other legal practitioners in respect of

conveyance done by conveyancers and such other legal practitioners in the

practice of their profession, the 1st applicants right to practise any

profession protected by Article 21 (1) (j) of the Constitution has been

infringed or there is a threat of such infringement in relation to the 1st

applicant. I emphasize the phrase in relation to the 1stapplicant in order

to reiterate the crucial point respecting constitutional challenge under the

Namibian Constitution, namely that it is not open to any busybody to

approach the Court for the Court to declare that a legislation or any act

carried out under a legislation is inconsistent with the Constitution. In the

scheme of the enforcement of fundamental rights and freedoms provisions

in Article 25 (2), an applicant must show that he or she is an aggrieved

person on the basis that a right guaranteed to him or her has been

infringed or that there is a threat of such infringement.

[10] It follows logically that the question that immediately arises for

decision in respect of the 1st applicant is this: Is the 1st applicant an

aggrieved person within the meaning of Article 25 (2) of the Namibian

Constitution; that is to say, on the papers, has a right guaranteed by

Article 21 (1) (j) of the Namibian Constitution been infringed in relation to

the 1st applicant in virtue of the Regulations and the Schedules, keeping in

firm view the fact that the Regulations and the Schedules which the 1st

applicant seeks to impugn deal with fees and other charges chargeable by

conveyancers and other legal practitioners in respect of conveyance done

by conveyancers and other legal practitioners, as aforesaid? The 1st

applicant contends that it is an aggrieved person because, according to the


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1st applicant, its right under Article 21 (1) (j) of the Namibian Constitution

has been infringed because of the tariff of fees prescribed in terms of the

Regulations and the Schedules. And why does the 1st applicant, who is

not a conveyancer or a legal practitioner but who carries on business of

short-term insurance, claim that the prescribed tariff of fees that concerns

conveyance, as I have said more than once, has infringed his right to carry

on its business of short-term insurance under Article 21 (1) (j) of the

Constitution? The 1stapplicants reasons, as I see them, are as follows.

The 1st applicant, who carries on business of short-term insurance, as

aforesaid, and the 2nd applicant, a partnership of legal practitioners,

entered into an oral agreement in terms of which, the 1st applicant and the

2nd applicant aver, the 2nd applicant agreed to perform conveyance for the

1stapplicants members at a price based on an hourly rate.

[11] It is common cause that the applicants are unable to carry out the

alleged agreement because the fees contained in the Schedules are

prescribed tariff of fees based on the value of the immovable property to be

transferred or mortgage bond to be registered (hereinafter referred to as ad

valorem-based rate of tariff of fees) as opposed to time spent on the

transaction (hereinafter referred to as hourly-based rate of tariff of fees).

The 1st applicant and the 2nd applicant, thus, seek the setting aside of the

fees contained in the Schedules to enable the 1st applicant and 2nd

applicant to implement the said agreement. The 1st applicant says that it

provides, among other things, insurance cover under which one of the

portfolios the 1st applicant offers to its insured is conveyance of private

residential property, excluding the payment of transfer duty and stamp


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duty. According to the 1st applicant and 2nd applicant, the implementation

of the aforementioned agreement would lead to massive saving in legal

fees and to more favourable rates at which the product under the said

portfolio could be offered to the 1stapplicants insured.

[12] The 5th respondent contends contrariwise that the 1st applicant has

no standing to bring the constitutional challenge as it has done in the

notice of motion. Mr. Gauntlett SC, counsel for the 5th respondent

(assisted by Mr. Janisch) submitted on behalf of the 5th respondent that

the 1st applicants interest in this matter is at best an indirect financial

interest which has in any event been self-created. And, according to Mr.

Gauntlett, that cannot amount to the 1st applicant having a direct and

substantial interest (as opposed to its indirect or purely financial interest)

in the outcome of the dispute, capable of establishing the 1stapplicants

locus standi in this matter. In support of his submission, Mr. Gauntlett

relied on Africa Personnel Services (Pty) Ltd v Government of the Republic of

Namibia Case No. SA 51/2008 (Unreported) (judgment on 14 December

2009) at para. [30]; Clear Channel Independent Advertising (Pty) Ltd v

TransNamib Holdings Ltd2006 (1) NR 121 (HC) at 138G-I.

[13] Mr. Marcus, counsel for the 1st, 2nd, 3rd, 4th and 6th respondents

(hereinafter referred to as GRN respondents) submitted along materially

the same lines as Mr. Gauntlett. Mr. Marcus also submitted that the

business of the 1st applicant is that of short-term insurance (as aforesaid);

and the only interest that the 1st applicant has in the present matter is an

indirect financial interest. Mr. Marcus argued that the 1st applicant is not


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a conveyancer, and so the 1stapplicants right to carry on the business of

short-term insurance is not affected by the relief claimed in the instant

application. Consequently, so Mr. Marcus submitted, the 1st applicant

does not have a legal interest that could be prejudicially affected by the

judgment of this Court and accordingly (the 1st applicant) lacks the

requisite standing. In support of his submission, Mr. Marcus referred

these cases to the Court: United Watch Diamond Co (Pty) Ltd and others v

Disa Hotels Limited and another1992 (4) SA 409 (C) at 415F-H; Cabinet of

the Transitional Government of the Territory of South West Africa v Eins

1988 (3) SA 369 (A) at 388A-B.

[14] The indirect financial interest which Mr. Gauntlett and Mr. Marcus

advert to in their submissions is also what the 1st applicant relies on as

establishing its locus standi in these proceedings, as I mentioned

previously. In this regard, Mr. Smuts SC, counsel for the 1st applicant and

the 2nd applicant (assisted by Mr. Heathcote), submitted that the 1st

applicants locus standi is predicated on the 1st applicants right to have

the aforementioned agreement it had entered into with the 2nd respondent

(as aforesaid) implemented. As Mr. Marcus submittedcorrectly, in my

viewthe 1st applicant is not a conveyancer or a legal practitioner, and the

1st applicant does not claim that the 1st applicants right to carry on

business of short-term insurance has been infringed or that such

infringement is threatened in virtue of the making of the Regulations,

annexing the Schedules. In my view, what the 1st applicant has done in

this matter, with the greatest deference, is that the 1st applicant has hitch-

hiked a ride on the back of the 2nd applicant in the 1st applicants ill-


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[16] I pass to consider the application respecting the 2nd applicant. As I

have mentioned previously, the 2nd applicant is a legal practitioner and

practises also as a conveyancer, and he entered into the aforementioned

agreementto perform conveyance for the 1stapplicants insured at a price

based on hourly-based rate tariff of fees, as opposed to the ad valorem-

based rate of tariff of fees prescribed by the Regulations and the

Schedules.

[17] The talisman of the 2nd applicants case as I see it is the

aforementioned agreement. Connected to that agreement is the

submission of Mr. Smuts that the application is not about the right to

practise as a conveyancer only. It concerns, so Mr. Smuts submitted,

irrational regulation; that is to say, the aforementioned regulation 65, as

amended (i.e. the Regulations). And why does Mr. Smuts say that that

regulation is irrational? As I can gather from his submission, Mr. Smuts

says so for the following reasons: the 2ndapplicants right to compete on

price is infringed by regulation 65 because regulation 65 prohibits the 2nd

applicant from competing on price. And why, according to Mr. Smuts,

that is so? Counselsreason is that the right to compete in an occupation

or business is enshrined, as a corollary of the right guaranteed by Article

21 (1) (j) of the Namibian Constitution. With the greatest deference, I

cannot accept such a wide, overreaching proposition of law on a

constitutionally guaranteed and, therefore, justiciable basic human right.

[18] One must not lose sight of the fact that the basic human rights

contained in Chapter III of the Namibian Constitution are justiciable basic


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human rights because the Constitution says so in Article 25 (2). And in my

view, in order to underline and maintain the justiciability of each of those

basic human rights, each basic human right is formulated in such a way

that the nature, content and extent of the particular enshrined human

right are categorically expressed in clear and plenitudinal terms for all to

see. Doubtless, justiciability of the notion or tenet of a basic human right

calls for certainty of that notion or tenet. It would make utter nonsense of

the justiciability of a particular constitutionally entrenched basic human

right if Judges took it upon themselveswithout justificationto add to,

vary and modify such particular basic human right guaranteed by the

Constitution to suit their own views as to what they think the nature,

content and extent of such basic human right ought to be, and thereby

create an additional substantive basic human right in the process as an

offshoot (or a corollary, Mr Smuts calls it) of the particular basic human

right already expressly formulated in the Constitution. In my opinion, the

Court is not entitled to do that. Thus, in its plenitude, Article 21 (1) (j) of

the Namibian Constitution, for example, does not by any stretch of legal

imagination or otherwise say the right to practise any profession

shall include the right to compete on price: no amount of judicial activism

can justify the Court creating any such substantive basic human right in

Chapter III of the Namibian Constitution or can justify the Court creating

any corollary basic human right, which Mr. Smuts, with the greatest

deference, so intrepidly proclaims is enshrined in Article 21 (1) (j) of the



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[19] Where a particular basic human right enshrined in an instrument

(national or international) is meant to admit of a supplementary,

associated, i.e. corollary (The Concise Oxford Dictionary, 9th edn.), right,

the particular provision in which that basic human right is provided for

has been crafted in such a way as to make any such allowance expressly

and clearly stated in peremptory terms by the use of such words as shall

include, including, and includes. This is also done in order to make it

clear that the basic human right first mentioned in the formulation is not

exhaustive and that only an aspect of the human right is expressed and

that there are other basic human rights associated with it or supplemental

to it. In that event, the associated or supplementary or corollary basic

human rights are then expressly mentioned in the formulation. Thus,

where it is the intention of the framers of the Constitution that the

particular basic human right first mentioned shall have supplementary or

associated basic human right or rights included in the first mentioned

basic human right, the framers of the Constitution have made such of

their intention clearly known by using such peremptory words as shall

include, including, or includes in the formulation of the relevant

provisions. The following vindicates the point being made. Article 21 of the

Constitution, for example, provides:

(1)All persons shall have the right to:

(a) freedom of speech and expression, which shall include

freedom of the press and other media;

(b) freedom of thought, conscience and belief, which shall include

academic freedom in institutions of higher learning;


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(c)

(d)

(e) freedom of association, which shall include freedom to form

and join associations or unions, including trade unions and

political parties.

(My emphasis)

[20] It is, therefore, not insignificant, neither is it aleatory, that the words

shall include, which in my view are purposeful, are found in the very

Article 21 (1) which contains the right to practise any profession now

under consideration in these proceedings. In this regard, see, for example,

the following national Bill of Rights and international Bill of Rights where

similar words shall include and derivative words includes and including

are used:

(I) The International Covenant on Economic, Social and CulturalRights

Article 6

(1) The States Parties to the present Covenant recognize the right

to work, which includes the right of everyone to gain his living by

work which he freely chooses or accepts, and will take appropriate

steps to safeguard this right.

Article 19

(1) Everyone shall have the right to freedom of expression; this

right shall include freedom to seek, receive and impart information

and ideas of all kinds

[My emphasis]

(II) Constitution Act, 1982Schedule B to Canada Act 1982 (U.K.)


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Canadian Charter of Rights and Freedoms

2. Everyone has the following fundamental freedoms:

(a)

(b) freedom of thought, belief, opinion, and expression,

including freedom of the press and other media of

communication;

(c)

(d)

[My emphasis]

[21] For the aforegoing, I conclude that I do not read the Supreme Court

decision in African Personnel Services (Pty) Ltd v Government of the Republic

of Namibia and Others Case No. SA 51/2008 (Unreported) as creating a

basic human right of any shape or hue in addition to those rights

contained in Article 21 (1) (j) of the Namibian Constitution; and neither

would the Supreme Court have been entitled to create any such basic

human right, if that Court had done that. Furthermore, it is equally

important to signalize the crucial point that Article 21 (1) (j) contains two

main disparate basic human rights, sc. (1) the right to practise any

profession and (2) the right to carry on (2a) any occupation, (2b) trade or

(2c) business; and, a fortiori, one right is not a subsidiary right to the

other; neither are the two main distinct and separable rights

interchangeable. Accordingly, one must not conflate right (1) on the one

hand and rights (2a), (2b), and (2c) on the other and then subject all of

them, without justification, to the purview of the authority of African

Personnel Services (Pty) Ltd v Government of the Republic of Namibiasupra,

as Mr. Smuts appears to do in these proceedings. To do so would be as

unjustifiably presumptuous and monumentally wrong as treating Mecca

and Jerusalem interchangeably just because both of them are major


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religious Holy Places. To illustrate the point further; X is occupied with the

regular buying of carcass of cow from MEATCO, with cutting the carcass

meat into small pieces, and with frying the pieces of meat and selling the

pieces of meat in the SOWETO Market daily. X may be carrying on an

occupation, or trade or business; but it cannot be seriously argued that X

is practising a profession. It is, thus, worth remembering that in African

Personnel Services (Pty) Ltd v Government of the Republic of Namibiasupra,

the Supreme Court was seized with the interpretation and application and

enforcement (see Paul Sieghart, The International Law of Human Rights,

Oxford, Clarendon Press (1995): p. 46) of only the right to carry on any

occupation, trade or business(i.e. right (2) in my illustration above); and

so any principle of law enunciated by the Supreme Court in the exercise of

that judicial function should be seen in only that light. In this connection,

it must be remembered that I have held previously that the 1st applicant

has no locus standing in these proceedings because I have found that the

1st applicant does not allege that his right to carry on its occupation, trade

or business of short-term insurance has been infringed or its infringement

has been threatened.

[22] And what is more; one must not confuse the authorized and,

therefore, intra vires interpretation and application and enforcement by a

competent Court of a basic human right (contained in Chapter III of the

Namibian Constitution) in terms of Article 25 (2) with any unauthorized

and, therefore, ultra virescreation by Judges of a substantive basic human

right in the Namibian Constitution. The obvious and intractable problem

indubitably attendant upon such unauthorized and, therefore, ultra vires


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creation of a basic human right in the Namibian Constitution is this: how

far will such creation go? In my opinion, as I have demonstrated above,

the nature, content and extent of each basic human right guaranteed by

Chapter III of the Namibian Constitution, including the right of a person to

practise his or her profession in Article 21 (1) (j), are plenitudinal and

exhaustive.

[23] Accordingly, pace Mr. Smuts, Article 21 (1) (j) does not contain or

enshrine a basic human right called the right to compete on price.

Therefore, I do not find the cases from South Africa and elsewhere referred

to me by counsel of any real assistance on the point under consideration

inasmuch as those cases are set up as authority for extending the right to

practise a profession in terms of Article 21 (1) (j) of the Namibian

Constitution to include the right to compete on price. Indeed, one must

not lose sight of the fact that what the Constitution seeks to protect is the

tenet of a persons right to practise a profession, not the making of a great

deal of money by a person when a person exercises his or her right to

practise a profession. (See e.g. Arthur Frederick Uffindel t/a Aloe Hunting

Safaris v Government of Namibia and Others Case No. (P) A 141/2000

(Unreported) (Order made on 5 March 2001; reasons given on 21 April

2009) at pp. 39-40.) Accordingly, I hold that there is no right to compete

on price, being a basic human right guaranteed by the Bill of Rights under

the Namibian Constitution which this Court may enforce in terms of

Article 25 (2) of the Constitution. I, therefore, accept Mr. Marcuss

submission that the Namibian Constitution does not guarantee a persons

right to compete on price. A fortiori, I do not know and none was


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referred to meof any such basic human right as the right to compete on

price in any national constitutional Bill of Rights or in international Bills

of Rights on which many national constitutional Bills of Rights, including

Namibias, are based. (See Human Rights: A Compilation of International

Instruments, Vol. I and Vol. II, United Nations, New York: 1994.)

[24] In view of the aforegoing, I come to the inevitable and reasonable

conclusion that I do not find the cornucopia of authorities on competition

law, or on the right to choose any occupation, trade or business, or on the

right to free economic activity referred to me by counsel of any real

assistance on the consideration of the right to practise any profession

under the Namibian Constitution. That is the right on which the 2nd

respondents constitutional attack is based (apart from his right under

Article 18, which is treated below). By a parity of reasoning, I find the

following cases referred to me by counsel to be in the same boat (of course,

in respect only of the particular point now under consideration): Affordable

Medicines Trust and Others v Minister of Health and Others2006 (3) SA 247

(CC); Directory Advertising Cost Cutters v Minister of Posts,

Telecommunications and Broadcasting and Others 1996 (3) SA 800 (T);

Namibia Insurance Association v Government of the Republic of Namibia and

Others2001 NR 1 (HC); Minister of Health and Another NO v New Clicks

South Africa (Pty) Ltd and Another (Treatment Action Campaign and Another

as Amici Curiae2006 (2) SA 311 (CC); Union Wine Limited v E Snell and Co.

Limited1990 (2) SA 189 (CC).


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[25] In view of the foregoing reasoning and conclusions, I hold that the

2nd applicant has not established that his right to practise a profession of

conveyance within the meaning of Article 21 (1) (j) has been infringed or

that the infringement of such right is threatened. The 2nd applicant is

therefore, as a matter of law and logic, not entitled in terms of Article 25

(2) of the Constitution to approach this Court to enforce or protect a right

which has not been infringed or whose infringement is not threatened in

relation to him. That being the case, in my judgment the interpretation

and application of Article 21 (2) and Article 22 of the Namibian

Constitution do not arise at all in these proceedings. It follows inevitably

that the 2ndapplicants constitutional challenge based on Article 21 (1) (j)

fails. But the matter does not rest here.

[26] The other constitutional ground upon which the 2nd applicant

attacks the Regulations and the Schedules is based on Article 18 of the

Namibian Constitution. I now proceed to consider that attack. Has the 2nd

applicants right to administrative justice under Article 18 of the Namibian

Constitution been infringed, as the 2nd applicant alleges? In other words,

has Article 18 of the Constitution been infringed in relation to the 2nd

applicant in virtue of the making, and approving, of the Regulations and

the Schedules? Article 18 provides:

Administrative bodies and administrative officials shall act (1) fairly

and (2) reasonably and (3) comply with the requirements imposed

upon such bodies and officials by (3a) common law and (3b) anyrelevant legislation, and persons aggrieved by the exercise of such

acts and decisions shall have the right to seek redress before a

competent Court or Tribunal.


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(Numbering of components are mine)

[27] As respects Article 18, in order for the 2nd applicant to succeed, the

2nd applicant must show that he has been aggrieved by an act of an

administrative body or an administrative official because of non-

compliance by the administrative body or administrative official with any of

the requirements expressed in Article 18, i.e. (1), (2), (3a) and (3b) (as

indicated in the above quotation for clarity). As I see it, (1), (2), (3a) and

(3b) are the Article 18 requirements which administrative bodies and

administrative officials must comply with when they actin order for such

of their act to be adjudged consistent with the Constitution. And I must

add; the aforementioned list of the Article 18 requirements is exhaustive.

It is not just enough for a person to approach the Court and allege simply

and in general termswithout morethat his or her right guaranteed to

him or her by Article 18 of the Constitution has been infringed. Such a

person bears the burden of establishing to the satisfaction of the Court as

to what particular requirement or requirements under Article 18 has or

have not been complied with by the act of a named administrative body or

administrative official and in which respect such act has infringed or

threatened an infringement of that persons Article 18 right (see Arthur

Frederick Uffindel t/a Aloe Hunting Safaris v Government of Namibia and

Others, supra at p.39). If the applicant fails to so establish the Article 18

requirement or requirements that has or have not been complied with in

relation to the applicant, the applicant shall be out of court. That is the

manner in which I approach the 2nd applicants constitutional attack on


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the making of the Regulations and the Schedules based on Article 18 of

the Namibian Constitution.

[28] It is not in dispute that the 1st respondent is an administrative body

and so it is subject to the application of Article 18; and so the only single

question that I must decide on the papers is this: In the founding

affidavit, which Article 18 requirement or requirements does the 2nd

applicant allege has not been complied with by the 1st respondent and the

3rd respondent in relation to him when the 1st respondent made the

Regulations, annexing the Schedules, and the 3rd respondent approved

them? Thus, the only issue that I must now determine is this: What

Article 18 requirement or requirements does the 2nd applicant allege has or

have not been complied with by the 1st respondent and the 3rd respondent

in relation to him and in which respect the aforementioned acts of the 1st

respondent and the 3rd respondent, respectively, have infringed the 1st

applicants right under Article 18? It appears to me that the 2nd applicant

alleges that in making the Regulations, annexing the Schedules, the 1st

respondent did not act reasonably (i.e. requirement (2) in my illustration

above). Accordingly, the question that arises for decision as respects the

constitutional challenge based on Article 18 is whether the 1st respondent,

in prescribing the ad valorem-based tariff of fees did act reasonably within

the meaning of Article 18 of the Namibian Constitution? That is the way in

which I approach the determination of the constitutional challenge based

on Article 18 because that is what the 2nd applicant relies on in the

applicants founding affidavit, apart from his attack based on Article 21 (1)

(j), which I have already decided to be without merit.


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[29] As I understand the 2ndapplicants contention in this regard, the 2nd

applicant says the 1st respondent and the 3rd respondent did not act

reasonably because the ad valorem-based tariff of fees is invariably

exorbitant, excessive and unreasonable, or grossly unreasonable and

excessive and indeed exorbitant to clients and end-users. It is worth

noting that the 2ndapplicants contention is put forth argumentatively that

because the absolute and compulsory ad valorem-based rate of tariff of

fees is invariably exorbitant, excessive and unreasonable or grossly

unreasonable and excessive and indeed exorbitant to clients and end-

users, ergo, the 1st respondent and the 3rd respondent must have acted

unreasonably. And why does the 2nd applicant say the ad valorem-based

rate of tariff of fees is unreasonable or grossly unreasonable? I do not

find much from either the founding affidavit or the written submission of

counsel in which respect the 2nd applicant really contends that the ad

valorem-based rate of tariff of fees is unreasonable or grossly

unreasonable. As Mr. Gauntlett submitted, the [A]pplicants attack

(based) on Article 18 , although relied upon in the founding papers, finds

little support in the heads of argument. The only reason that is prominent

to find on the 2nd

applicants papers is that, according to the 2nd

applicant,

between the ad valorem-based rate of tariff of fees and the hourly-based

rate of tariff of fees, the later is reasonable because it is related to actual

work done.

[30] Be that as it may, the GRN respondents content contrariwise. On

their behalf Mr. Marcus submitted that the 1st respondent did act

reasonably because its act (or decision) is not one that a reasonable


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decision-maker would not make, when regard is had to the factors

considered by the board (i.e. the 1st respondent) and, therefore, as I

understood Mr. Marcus, the 1st respondent exercised its discretion fairly

and properly. And on behalf of the 5th respondent, Mr. Gauntlett

submitted that the ad valorem-based rate of tariff of fees is in tune with

the rational link between the empowering statute and the imposition of

compulsory tariffs, and further that that tariff achieves further legitimate

government purposes.

[31] In Re Solicitor [1945] 1 All ER 445 (Court of Appeal) at 446H, Scott

LJ stated, The word reasonable has in law the prima facie meaning of

reasonableness in regard to those existing circumstances of which the

actor called upon to act reasonably, knows or ought to know. And in his

authoritative work Administrative Law (1984): p. 496, Baxter writes that

when one is called upon to judge whether a decision is unreasonable, the

decision might be viewed from various perspectives. For convenience these

have been grouped into three categories that are not rigidly

compartmentalized: they run into each other and overlap markedly. The

first category is the basisof the decision; that is, if a decision is entirely

without foundation it is generally accepted to be one to which no

reasonable person could have come. The second category is thepurpose

of, and motivefor, the decision; that is, it is considered unacceptable for an

administrative body and an administrative official to use its or his or her

powers dishonestly. The third category is the effectof the decision; that is,

reasonable persons do not advocate decisions which would lead to harsh,

arbitrary, unjust or uncertain consequences. (See Baxter, ibid.)


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[32] I respectfully accept Baxters exposition on reasonableness (the

Baxter categories) as apropos to the enquiry presently being undertaken

and so I adopt his exposition; that is to say, in my opinion, Baxters

explanation of the term reasonable is a correct interpretation and

application of the requirement of act reasonably in Article 18 of the


[33] Having carefully considered the Baxter categories on

reasonableness and the meaning of reasonableness proposed by the

English Court of Appeal in Re Solicitorsupra against the backcloth of the

evidence presented on the papers, I come to the conclusion that the 2nd

applicant has failed to establish that the act of the 1st respondent and of

the 3rd respondent complained of is unreasonable within the meaning of

Article 18 of the Namibian Constitution. I have so concluded for the

following reasons.

[34] In the respondents papers it is clearly and extensively explained the

factors that the 1st respondent took into account when it made the

Regulations and the Schedules, prescribing the aforesaid tariff of fees and

charges under the applicable legislation referred to in the notice of motion.

I have no good reason to reject the 1strespondents evidence that they took

into account those factors before acting; and I do not find any credible

evidence on the papers tending to show that the 1st respondent did not act

in the manner averred. In this regard, I do not see the 1st respondents

statements on the factors they took into account when they made the

aforementioned regulations to be ex post facto explanations, as Mr.


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Smuts submitted. If an administrative body or an administrative official

carried out an act and it was alleged in a founding affidavit that that act

was unreasonable in terms of Article 18 of the Namibian Constitution, the

first opportunity open to such administrative body or administrative

official to contradict any such allegation is for that administrative body or

administrative official to explain in an answering affidavit the factors that

such official or such body took into account in carrying out the act. In

that case, it may be said that that administrative body or administrative

official was entitled to put forth such factors in an answering affidavit.

That is what the 2nd respondent, the chairman and executive officer of the

1st respondent, has done in these proceedings. And more important and

apropos the requirement of reasonableness, I do not findand neither has

the 2nd applicant claimedthat in taking into account those factors the 1st

respondent acted from improper motives or on irrelevant or extraneous

considerations (Frank and another v Chairperson of Immigration Selection

Board 1999 NR 257 at 266A-C; Mureinik, Administrative Law in South

Africa (1988) SALJ615 at p. 628).

[35] Furthermore, it is my view that those factors constituted the existing

circumstances that the 1st respondent knew or ought to have known

existed when they made the Regulations, annexing the Schedules (Re

Solicitorsupra ibid.). It cannot, therefore, be argued that the act of the 1st

respondent complained of has no foundation. Accordingly, I do not find

any evidence on the papers tending to prove that the 1st respondent used

their power under the relevant legislation dishonestly. Has it been shown

that the ad valorem-based rate of tariff of fees is harsh, arbitrary, and


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unjust or that it leads to uncertain consequences? I do not think so. In

this regard, the peg on which the 2nd applicant hangs his constitutional

challenge is this. According to the 2nd applicant the ad valorem-based rate

of tariff of fees has no correlation to the time spent on the work and is

invariably exorbitant and unreasonable and that the hourly-based rate of

tariff of fees, which the 2nd applicant prefers and is enamoured with, is

what the 1st respondent ought to have prescribed. The 2nd applicants

reason for so contending is that the hourly-based rate of tariff of fees can

be taxed but the ad valorem-based rate of tariff of fees cannot be taxed.

That being the case, so the 2nd applicant argues, the ad valorem-based rate

of tariff of fees is offensive of s. 10 (1) (c) of the Deeds Registries Act 1937,

under which the said regulation 65 was made, because while the hourly-

based rate can be subjected to taxation, the ad valorem-based rate cannot.

Section 10 provides:

(1) The board established under section nine may makeregulations prescribing -

(c) the fees and charges of conveyancers and notaries public

in connection with the preparation, passing and

registration of deeds or other documents registered or

filled or intended for registration or filling in a deeds

registry and the fees or charges of any other legal

practitioners in connection with the preliminary work

required for the purpose of any such deed or other

document and the fees and charges in connection with

the taxation of any such fees or charges;

[36] I do not read s. 10 (1) (c) to be providing inperemptorytermsI so

emphasize peremptory that any tariff of fees and charges that the 1st

respondent prescribes in a regulation mustbe subjected to taxation. I am


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fortified in my view by the following factorization and interpretation of the

provisions of s. 10 (1) (c). To start withand this is significant in the

chapeau of s. 10 (1), the 1st respondent is given absolute discretion to

make regulations prescribing fees and charges in connection with three

distinct and separable items, and the section does not say the 1st

respondent must without any allowance whatsoever prescribe all the three

items; that is to say

(1) preparation, passing and registration of deeds or other document

(by conveyancers and notaries public);

(2) the preliminary work required for the purposes of (by other legal

practitioners); and

(3) the taxation of any such fees or charges.

[37] For the aforegoing interpretation and application of s. 10 (1) (c), as I

have said previously, and I accept Mr Gauntlets submission on the point, I

do not read the language of s. 10 (1) (c) as making it mandatory for the 1 st

respondent to prescribe all the three items (i.e. (1), (2) and (3) in my

illustration above) in any regulation they may make (may make is

italicized for emphasis). I cannot therefore, with respect, accept the

submission by Mr. Smuts that the aforementioned act of the 1st

respondent is ultra viress. 10 (1) (c) of the said Deeds Registries Act, 1937

(as amended) just because, according to him, the ad valorem-based rate

cannot be subjected to taxation. Besides, I do not find any credible

evidence on the papers that the ad valorem-based rate of tariff of fees leads

to harsh, arbitrary, unjust or uncertain consequences.


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[38] Another important point must be emphasized that the Court is not

entitled to hold that just because the 2nd applicant thinks that the hourly-

based rate of tariff of fees better serves his self-serving purposes than the

ad valorem-based rate of tariff of fees and so therefore in prescribing the

latter tariff the 1st respondent acted unreasonably. It is worth noting that

the Article 18 requirement that administrative bodies and administrative

officials must act reasonably has to be reconciled with no less important

doctrine that the Court must not usurp the discretion of the administrative

body or administrative official which the Legislature in its wisdom and

within its constitutional power appointed to act (See Wade, Administrative

Law, 5th edn. (1984): p. 362). As Mr. Gauntlett reminded the Court more

than once, in these proceedings the Court is not a court of appeal; it is

therefore not for this Court to substitute any decision in the place of that

of the 1st respondent but merely, upon the moving of the 2nd applicant, to

decide whether the Deeds Registries Act, 1937 (as amended), particularly

s. 10 (1) (c), has been administered reasonably. (See Seervai, Constitutional

Law of India: A Critical Commentary, 4th edn. (1999): p. 1520, fn. 30.) I will

say administered reasonably and fairly; for, as Levy AJ said in Frank &

Another v Chairperson of the Immigration Section Board1999 NR 257 (HC)

at 265E, an unreasonable decision would always be unfair; a priori, by a

parity of reasoning, a reasonable act would always be a fair act.

[39] Furthermore, in this regard, one must not lose sight of the fact that

the very concept of administrative discretion always involves a right to

choose between more than one possible course of action upon which there

is room for reasonable people to hold differing opinions as to which is to be


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preferred (Secretary of State for Education and Science v Tameside

Metropolitan Borough Council [1977] AC 1014 (House of Lords) at 1064):

the true and overriding question must always be whether the statutory

power has been exceeded (Wade, Administrative Law, ibid.: p. 365); and I

have held above that in making the Regulations and the Schedules, the 1st

respondent did not exceed their statutory power; neither did the 3rd

respondent when the 3rd respondent approved the Regulations. Thus, it

cannot be argued that in making the Regulations and the Schedules the 1st

respondent did act unreasonably and unfairly merely because particular

Judges may think that the Regulations and the Schedules go further than

is prudent or necessary or convenient, or because it is not accompanied by

a qualification which some Judges may think ought to be there (Kruse v

Johnson(1898) 2 QB 91 at 99-100). Accordingly, I do not, with the greatest

deference, find the views expressed in Vaatz v Law Society of Namibia and

Others1996 NR 272 (HC) at 278H-I, referred to me by counsel, of any real

assistance on the point under consideration.Neither can it be argued that

in making the Regulations and the Schedules the 1st respondent did act

unreasonably and unfairly merely because the 2nd respondent thinks he

would not make a great deal of money as a conveyancer if the Regulations

and the Schedules are allowed to remain on the statute books.

[40] For the aforegoing, I come to the inevitable conclusion that the 2nd

applicant has failed to establish that in making the Regulations and the

Schedules, prescribing the said ad valorem-based rate of tariff of fees and

charges, and in approving them, the 1st respondent and the 3rd

respondent, respectively, did not act fairly and reasonably within the


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meaning of Article 18 of the Namibian Constitution. I, therefore, hold that

the 2nd applicant has failed to establish that Article 18 of the Namibian

Constitution has been infringed in relation to him in virtue of the making,

and approving, of the Regulations and the Schedules. Having so held, I

find that as respects the Article 18 challenge, too, the interpretation and

application of Article 21 (2) and Article 22 of the Constitution do not arise

in these proceedings.

[41] At this junction I must stress these crucial and critical

considerations. The determination of the present application turned solely

on the interpretation and application of the relevant provisions of the

Deeds Registries Act, 1937 (as amended) and the Regulations and the

Schedules within the contextual framework of the interpretation and

application of the right to practise any profession under Article 21 (1) (j)

and the right to administrative justice in terms of Article 18 of the

Namibian Constitution and the application of the conclusions reached

thereanent to the facts of the present case. By the founding affidavit, the

applicants came to court with a constitutional challenge based on

aforementioned provisions of the Namibian Constitution, as aforesaid, and

so the present application has been determined, as I have done, in relation

only to the constitutional challenge; and applicants have fallen by the

founding affidavit. And as to the striking out application; the relevant and

preponderant factors, including the law, that have been taken into account

in the determination of this application are unaffected by the matters

applied to be struck out in the striking out application.


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[42] Keeping the aforegoing reasoning and conclusions carefully in my

mental spectacle, I come to the inexorable conclusion that this application

must fail.

[43] In the result I make the following order:

(1) The application is dismissed with costs.(2) The applicants are ordered to pay the costs of this application

jointly and severally, the one paying, the other to be absolved;

such costs to include the costs of instructing counsel and two

instructed counsel as respects the costs of the 5th respondent.

________________________

PARKER J

________________________

NDAUENDAPO J


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COUNSEL ON BEHALF OF THE APPLICANTS: Adv D F Smuts SC

Adv R Heathcote SC

Instructed by: Van Der Merwe-Greef Inc.

COUNSEL ON BEHALF OF

THE 5TH RESPONDENT: Adv JJ Gauntlett SC

Adv MW Janisch

Instructed by: Lorentz Angula Inc.

COUNSEL ON BEHALF OFTHE 1ST - 4TH and 6TH RESPONDENTS: Mr N Marcus

Instructed by: The Government Attorney

trustco insurance t-a legal shield-o vs the deeds registries regulation board-others

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