1
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: A 13/2015
In the matter between:
DERICK MAZILA1ST APPLICANT
PALOMA VAN HEERDEN2ND APPLICANT
SIMEON KIMWENI3RD APPLICANT
NANYANGA WILHELM4TH APPLICANT
RABIH AYOUB5TH APPLICANT
ENGELHARD GURIRAB6TH APPLICANT
and
THE GOVERNMENT OF THE ISLAMIC
REPUBLIC OF IRAN1ST RESPONDENT
HAMID REZA MUHAMMADIAN2ND RESPONDENT
MINISTER OF SAFETY AND SECURITY3RD RESPONDENT
INSPECTOR-GENERAL OF THE NAMIBIAN POLICE4TH RESPONDENT
COMMISSIONER SHILUNGA5TH RESPONDENT
Neutral citation:Mazila v The Government of the Islamic Republic of Iran (A 13/2015)[2015] NAHCMD 24 (13 February 2015)
Coram:UNENGU J
Heard:30 January 2015
Delivered:13 February 2015
Flynote:Practice – Applications and motions – Urgent application in terms of Rule 73(3) – Applicants seeking an order against the respondents to restore the peaceful and undisturbed possession of, alternatively the right of access to and use of property including Quba Mosque, situated at Erf 1655, Nelson Mandela Avenue, Corner of Burg street, Klein-Windhoek – Respondents raising points in limine in the form of points of law – Rule 66(1)(c) of the Rules of the High Court – claiming sovereign and diplomatic immunity by virtue of international law and the International Diplomatic Privileges Act, Act 71 of 1951 – Court upholds the points in limine and struck the application from the roll with costs
Summary:Practice – Applications and motions – Applicants have sought on an urgent basis in terms of Rule 73(3) of the High Court Rules, an order to be restored in the peaceful and undisturbed possession of, alternatively the right of access to and use of property, including Quba Mosque, situated at Erf 1655, Nelson Mandela Avenue, Corner of Burg street, Klein Windhoek – Respondents have raised points in limine in the form of points of law in terms of Rule 66(1)(c) of the Rules of the High Court, claiming sovereign and diplomatic immunity by virtue of international law and the International Diplomatic Privileges Act 51 of 1951 – Court found that first and second respondents are immune to the jurisdiction of this court, upheld the points in limine and struck the application from the roll with costs.
ORDER
(i)The points in limine raised by the respondents are upheld.
(ii)First and second respondents, being a government of a sovereign State, its property and an employee are immune to the jurisdiction of this court.
(iii)The application is therefore struck from the roll with costs.
JUDGMENT
UNENGU, AJ:
[1]By way of Notice of Motion, the applicants Derick Mazila, Paloma Van Heerden, Simeon Kimweni, Nanyanga Wilhelm, Rabih Ayoub and Engelhard Gurirab are seeking the relief against the respondents in the following terms:
‘1.Condoning the non-compliance with the forms and service provided for by the Rules of the above Honourable Court and hearing this application as one of urgency in terms of Rule 73(3).
2.That a rule nisi be issue, calling upon the respondents to show cause on a date and time to be determined by the Registrar of the above Honourable Court why an order in the following terms should not be made final:
2.1That the respondents be ordered to restore to the applicants the peaceful and undisturbed possession of, alternatively the right of access to and use of the property, including Quba Mosque, situated at Erf 1655, Nelson Mandela Avenue, Corner of Berg Street, Klein Windhoek; and
2.2Ordering the respondents to forthwith restore the First and Second Applicants peaceful and undisturbed possession ante omnia in and to the flat situated at Erf 1655 Nelson Mandela Avenue, Corner of Berg Street, Windhoek.
3.That prayers 2.1 and 2.2 above shall operate as an interim interdict with immediate effect pending the final decision of the above matter by the Honourable Court on the return date of this matter.
4.Ordering the respondents to pay the Applicants costs.
5.Further and/or Alternative relief.’
[2]The founding affidavit attached to the Notice of Motion was deposed to by the first applicant with the other respondents confirming.
[3]The first applicant describes himself in his affidavit as a major male person with full legal capacity residing at Erf 1655 Corner of Nelson Mandela and Burg Street, Klein Windhoek, Republic of Namibia, a member of the Cuba Mosque Windhoek Namibia and is employed in the position of Public Relations Officer by the Namibian Broadcasting Corporation, also the administrator of the Cuba Mosque in a voluntary capacity. Meanwhile, the other applicants are also described in the affidavit as members of the Mosque. The first and second applicants are husband and wife whose residential address is given as Erf 1655 Corner of Nelson Mandela and Burg Street in Klein Windhoek.
[4]According to the first applicant, on 23 January 2015 around 17h00 to 18h00 whilst busy preparing to have their prayer session in the Quba Mosque, the y were disrupted by the first respondent (sic) who covered up their scriptures with a piece of cloth. Regrettably the first respondent is not a natural person therefore, could not have covered the scriptures with a piece of cloth. Nevertheless, first applicant further declares that when they went out of the building after the prayer session, they fund members of the Namibian Police, heavily armed under the command of the fourth respondent standing with the first respondent (sic). According to him, the Iranian Ambassador Mr Kromars Fotouhi Magaddam, his deputy, Mr Dirk Conradie (the legal representative of second respondent) and others were also present. The same day, after coming back from the police station where they registered a criminal case, they were evicted from the Mosque without a court order.
[5]As a result of their eviction without an order from a court of law, the applicants are now requesting the court to grant them the relief prayed for in paragraphs 1, 2, 3 and 4 of the Notice of Motion.
[6]In paragraph 9 of his founding affidavit, the first applicant concedes that the property at Erf 1655, Corner of Nelson Mandela Avenue and Berg street, in Klein Windhoek, the property wherefrom the applicants have been evicted, the first respondent is the registered owner thereof while the second respondent is in charge of the building situated on the property. There are eleven other buildings on the same property.
[7]Apart from alleging that he is a member of the Quba Mosque and the administrator of the Mosque in a voluntary capacity, the first applicants does not state in his affidavit how he and his family came to resideon the property and for what period are they allowed to stay there. In the result, and as the result of the applicants’ eviction from the Mosque and the propertythe applicants had come to court on an urgent basis requesting the court to grant them an order to be restored in the position they have been before the eviction.
[8]On their part, the respondents are opposing the relief sought by the applicants and gave notice of their intention to raise points in law following the provisions of Rule 66(1)(c) of the Rules of the High Court.
[9]Indeed, the points of law were raised in the form of points in limine as follows:
‘FIRST RESPONDENT
(1)Lack of jurisdiction.
The first respondent is alleging that section 16 of the High Court Act[1] empowers the High Court to have jurisdiction over persons residing or being in and to causes arising and all offences within Namibia and all other matters of which it may according to law take cognisance, and in addition, shall have power to hear and determine appeals from all lower courts in Namibia and to review the proceedings of all such courts.’ (Emphasis added).
[10]On behalf of the first respondent, a point was taken that the Government of the Islamic Republic of Iran is not one of the persons prescribed in s 16 of the High Court Act, because, first respondent is a government of a Sovereign State, which cannot be a subject of this Court; and that the applicants did not provide the basis upon which this court would exercise its jurisdiction over the first respondent.
[11]A further point in liminetaken is that the property in respect of which a mandament van spolie is sought against, is a property of a sovereign government which enjoys diplomatic immunity under s 2 of the International Law Diplomatic Privileges Act[2] which was made applicable in Namibia by Proclamation No. 63 of 1989.
[12]In his submission, Mr Makando, counsel for the first respondent submitted amongst others that the legal process sued out by the applicants against the first respondent and its property is a nullity ab initio in terms of s 2 of the Act.
[13]Mr Conradie, counsel for the second respondent, echoed Mr Makando’s submission in respect of the first respondent and the Mosque. In addition, Mr Conradie argued that only the first applicant was before court, thus does not have authority to sue on behalf of the other applicants also. According to Mr Conradie, the applicants are members of an Association, which is a legal entity on its own but was not joined as a party to the application.
[14]On his side Mr Nkiwane, representing the third, fourth and fifth respondent informed the court that he was in association with submissions of Mr Makando. He said further that the application arises ex turpi causa as it does violence to s 11 of the Diplomatic Privileges Act which attracks criminal sanctions. He argued further that the third, fourth and fifth respondent cannot be compelled to restore possession as the first and second respondents enjoy diplomatic immunity.
[15]Mr Narib, counsel for the respondents countered that the second respondent does not allege diplomatic immunity, that even his passport of which a copy thereof was attached to the answering affidavit does not say so, the second respondent is not an employee of the first respondent, therefore, does not enjoy diplomatic immunity. He referred the court to the case of Kaffraria Property Co (Pty) Ltd v Government of the Republic of Zambia[3], to support his argument.
[16]It is further the contention of Mr Narib that the acts complaining of are not acts of State but acts of private in nature. According to him, the ambassador lives far away from the building in question, a place bought for the purpose of worshipping. Therefore, the place does not enjoy diplomatic immunity, he submitted.
[17]Mr Narib argued strenuously at length against the issue of diplomatic immunity raised by the respondents, and relied also on the decision of Barker McCormac (PVT) Ltd v Government of Kenia[4].
[18]In both the matters of Kaffraria and Barker McCormac above, the facts are distinguishable from the facts of the instant matter. The respondent in the Kaffraria matter was not allowed by the court to raise immunity because it did not exercise sovereign powers but was engaged in actions of trade or commercial transactions. Similarly, the appellant in the Barker McCormac case dragged the Government of Kenia to court claiming damages for wrongful and unlawful repudiation of a lease. The appellant occupied part of the premises the Government of Kenia used as its High Commission in Zimbabwe under a lease agreement. When refused by the Kenia Government to allow the appellant to continue occupying the leased premises, it was forced to move to other premises at a high rental. So, and as a result, the appellant claimed from the Government of Kenia the difference over the period of the lease. These actions fell within the scope of trade or commercial transactions.
[19]In the instant matter, none of the applicants alleges or claims that he or she was renting the premises they were despoiled from at a rental fee of some sort to let their claim fall under the restrictive doctrine of sovereign immunity. Neither the first applicant, his wife, the second applicant who lived on the premises with him nor the other applicants rely on any agreement, (written or verbal) with the owner of the property to stay or to practise their faith on the property. Therefore, the decisions in the Kaffraria and the Barker McCormac cannot be of assistance to the applicants.
[20]In his answering affidavit (paragraph 10) the second respondent denies that the applicants were members of the Mosque. He submits that the applicants are at most, members of the Quba Mosque Foundation, a legal entity having a relationship with the first respondent, the owner of the Mosque to conduct religious activities in the Mosque. This Foundation is not a party to these proceedings, asMr Conradie argued.
[21]That being the case, it cannot be suggested that the applicants and the first and second respondents were engaged in trade or commercial transactions to vindicate the application of the restrictive doctrine of sovereign immunity.
[22]In his book, Private International Law at page 169, Foresyth states that at common law it was clear that, in principle, foreign sovereigns and their property were immune from suite in South Africa. He says that this flowed from the public international law of the equality of sovereign states. In the second half of the twentieth century sovereign States began to involve themselves in many commercial activities therefore,pressure grew to restrict this immunity to the acts of the sovereign that were properly sovereign (acts in iure imperii) but not to non-sovereign or commercial activities (acts iure gestiones). According Foresyth, coercive remedies against the State or its property are not generally available unless the State has consented thereto in writing, but property may be a subject of such coercive remedies where such property is being used for commercial purpose.
[23]There is nothing in the affidavit of the first applicant or in the confirmatory affidavits of the other applicants showing that the applicants and the first and second respondents were in a relationship of trade or commercial purpose. Nothing, in the founding or answering affidavit, can be found pointing out that the applicants and the first and second respondents have entered into a commercial transaction, that the Mosque was used for commercial purpose or that the first two respondents had waived their immunity. In addition, the applicants did not allege that the property is for purpose of commercial transactions.
[24]In view of the reasons set out above I have come to the conclusion that it is unnecessary to consider the issue of whether or not the application is a nullity. That comes by operation of law if the application is brought against the law, whether common or statutory law. In the present application both the common law and statutory law namely the International Law Diplomatic Privileges Act No. 71 of 1951, have been violated, which could render the application a nullity.
[25]In the result, therefore, there is no reason why the points in limine raised by the respondents in the form of points of law in terms of Rule 66(1)(c) of the High Court, cannot be upheld.
[26]Accordingly, the following orders are made:
(i)The points in limine raised by the respondents are upheld.
(ii)First and second respondents, being a government of a sovereign State, its property and an employee are immune to the jurisdiction of this court.
(iii)The application is thereforestruck from the roll with costs.
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P E UNENGU
Acting Judge
APPEARANCES
APPLICANTS:G Narib
Instructed by Murorua & Associates, Windhoek
1ST RESPONDENT:S S Makando
of Conradie & Damaseb, Windhoek
2ND RESPONDENT:D H Conradie
of Conradie & Damaseb, Windhoek
3RD– 5TH RESPONDENTS:S Nkiwane
Office of the Government-Attorney, Windhoek
[1] Act 16 of 1990.
[2] Act No. 71 of 1951.
[3] 1980 (2) SA 709 (E)
[4] 1983 (4) SA 817 (ZSC).