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REPUBLIC OF NAMIBIA REPORTABLE

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

REVIEW JUDGMENT

CR No.: 4/2016

In the matter between:

FILLEMON MUTEKAPLAINTIFF

and

SAUL U LEOPOLD DEFENDANT

HIGH COURT NLD REVIEW CASE REF NO: 400/2015

Neutral citation: Muteka v Leopold(CR4-2016) [2015] NAHCNLD 63 (29 July 2016)

Coram: JANUARY J and CHEDA J

Delivered:29 July 2016

Flynote: Review ─ Appeal to Magistrates Court ─ Irregularity ─Proceedings null and void ─Set aside

Summary: This case was submitted by the magistrate of Ondangwa Magistrates Court for review. The covering letter indicates that the matter is an appeal to the abovementioned court from the Ondonga Traditional Court. During the appeal proceedings in the magistrates court, the magistrates discovered that only 1 assessor was appointed contrary to section 27(1)(a) of Act 10 of 2003, the Communities Courts Act.Proceedings set aside and matter remitted to the magistrate.

ORDER

  1. The appeal proceedings are set aside;
  2. The matter is remitted to the magistrate Ondangwa to hear the appeal afresh and comply with the provisions of Act 10 of 2003, the Communities Court Act.

JUDGMENT

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JANUARY J and CHEDA J

[1]This case was submitted by the magistrate of Ondangwa Magistrates Court for review. The covering letter indicates that the matter is an appeal to the abovementioned court from the Ondonga Traditional Court. We considered on what authority the matter was sent for review but decided to entertain it in the interest of justice and fairness to the parties. During the appeal proceedings in the magistrates court, the magistrate discovered that only 1 assessor was appointed whereas section 27(1)(a) of Act 10 of 2003, the Communities Courts Act, stipulates amongst others;

“27Hearing of appeals by magistrates' courts

(1) Notwithstanding the provisions of the Magistrates' Courts Act, 1944 (Act 32 of 1944), a magistrate's court shall have jurisdiction to hear and determine any appeal against any order or decision of a community court, and for the purposes of such appeal the magistrate presiding-

(a)shall appoint two assessors, each of whom shall be selected from amongst persons mentioned in the list approved in terms of section 7(3), to advise him or her with regard to the appeal;

(b)………..”

[2]The High Court derives jurisdiction by virtue of section 2 of theHigh Court Act, Act 16 of 1990 to hear and to determine all matters which may be conferred or imposed upon it by this Act or the Namibian Constitution or any other law. Section 20 of the said Act provides as follows:

“20Grounds of review of proceedings of lower court

(1) The grounds upon which the proceedings of any lower court may be brought under review before the High Court are-

(a)absence of jurisdiction on the part of the court;

(b)interest in the cause, bias, malice or corruption on the part of the presiding judicial officer;

(c)gross irregularity in the proceedings;

(d)the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.

(2) Nothing in this section contained shall effect the provisions of any other law relating to the review of proceedings in lower courts.”

[3]The grounds for review with reference to the provisions of section 24(1) of the Supreme Court Act, Act 59 of 1959 as amended by Act 15 of 1969 in South Africa are discussed by Herbstein and Van Winsen, The Civil Practice of the Superior courts in South Africa, Third Edition, 1979.[1] The mentioned Act 59 of 1959 as amended has the same provisions as section 20(1) of the Namibian High Court Act, Act 16 of 1990. Section 20(2) in the Namibian Act referred to above differs in wording from the South African Supreme Court Act. It however has the same meaning in our view. The South African Act reads: These provisions do not affect those of any other law relating to the review of proceedings in inferior courts.

[4]The learned Authors further state that “an ‘inferior court’ means ‘any court (other than the court of a division) which is required to keep a record of its proceedings and includes a magistrate or other officer holding a preparatory examination into an offence’; “but the decision or proceedings not only of an inferior court but also of any tribunal, board or officer performing judicial or administrative functions are reviewable in the manner laid down by the rules of court, save where any law otherwise provides.

[5]In terms of section 27(1)(a) of Act 10 0f 2003, the Communities Courts Act, it is compulsory that 2 (two) assessors must be appointed in an appeal to the magistrates court from a community court. The magistrate may only proceed with such an appeal when“an assessor dies or he or she for any other reason becomes incapable of taking his or her seat, the presiding magistrate may either adjourn the proceedings in order to invoke the assistance of another person as assessor or proceed with the hearing with the remaining assessor.”[2]This is not applicable in the instant matter. In this instance only 1 assessor was appointed when the appeal commenced in the magistrates court.

[6]In our view this court has jurisdiction to review this matter because in terms of the Namibian High Court Act, Act 16 of 1990, “the civil process of the High Court shall run throughout Namibia” other than in South Africa where a provincial division of the Supreme Court has the power to review the proceeding of all inferior courts within its area of jurisdiction whereas a local division does not have such jurisdiction.[3]

[7]In light of the above this court has a legal duty to intervene by virtue of its inherent review powers both under common law and statute laws. Consequently by way of remedy following therefrom the proceedings should be set aside, remitted to the same court to be heard de novo as this is the only logical and legal way of administering justice between the parties.

[8] There was a gross irregularity in the appeal proceedings and is in our view of such a nature that is calculated to prejudice.[4] The appeal is not yet finalized but since the irregularity per se renders it null and void already at this stage, it stands to be set aside.

[9]In the result;

  1. The appeal proceedingsare set aside;
  2. The matter is remitted to the magistrate Ondangwa to hear the appeal afresh and comply with the provisions of Act10 of 2003, the Communities Court Act.

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H C JANUARY

JUDGE

M CHEDA

JUDGE

[1]At p748 and following

[2]Section 27(2) of Act 10 of 2003

[3]Section 19(1)(a) of Act 59 of 1959 and section 19(2) of the said Act

[4]See Herbstein and Van Winsen, Third Edition (Supra) at p753; D. Prejudice