Admin Law Study Guide Part 2 Notes Version 2019

Unit 8
Judicial Review
Introduction
In the previous unit we dealt with internal control of administrative action. In this study unit we are
going to discuss the next avenue or the last resort to administrative control which is judicial control.
We are also going to deal with the whole procedure to judicial review and various remedies that one
can ask the Court to rectify an administrative irregul.
The outline of this unit is as follows:
8.1. The nature and purpose of judicial control
8.2. Obstacles to judicial review.
8.2.1. Legal standing
8.2.2. Mootness
8.2.3. Ripeness
8.3. Remedies in the proceedings of judicial review.
8.3.1. Setting aside
8.3.2. Remitting the case back to the administrator
8.3.3. Substitution (correction)
8.3.4. Declaration of rights
8.3.5. Interdict
Upon completion of this unit you should be able to:
 Define the concept judicial control;

 Explain the importance of judicial control of administrative
action;
:
Outcomes  Identify obstacles to judicial control;
 Discuss the rules governing Namibian law on legal standing and

its exceptions;
 Identify various judicial remedies available to the applicant;
Identify when each of the judicial remedies is most appropriate.

Hoexter, C. (2012). Administrative Law in South Africa. Cape Town: Juta,
pages 107 – 170.
Prescribed reading
Quinot, G (Ed) et al. 2015. Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa, 1st
Edition pp.219-235.
Additional reading
Judicial control: The process whereby the court reviews the

regularity of an administrative action.
standing: The capacity to bring a legal action before the

Terminology court.
mootness: A situation whereby the court cannot review the

disputed issue because review will not have any
impact due to changed circumstances.
ripeness: A situation whereby the court will not review the

disputed issue because no legal right is yet
affected.
interdict: A decree whereby the administrative organ is

ordered to desist from an act or course of conduct
which is causing direct prejudice to the applicant
and constitutes an encroachment on his right.
spoliation: The wrongful deprivation of the right to

possession, whether with regard to movable or
immovable property.
remittal: A situation where the case is referring back to the

original decision-maker.
mandamus: A decree whereby the administrative organ is

ordered to perform a certain duty or remedy an
irregularity.

Judicial control is another form of controlling administrative action. But how is it achieved? And why
is it important?
Judicial control is achieved through judicial review. We have already looked at the common law
review jurisdiction of the Courts in Unit 1 of this study guide, in addition to that Article 18 and 25
(2) of the Constitution constitutionalised the common law position. More importantly, article 18 of
the Constitution gives a person aggrieved by an administrative decision the right to seek redress
before a competent Court thereby, giving the Court the power to control administrative
irregularities. In addition the right to administrative justice fall under Chapter 3 of the Bill of Rights,
therefore if violated an aggrieved party can also seek judicial remedies through Article 25 (2).
Judicial control (review) is an essential tool in administrative law. It is important because it

constitutes the indispensable moderating tool for avoiding and minimizing administrative injustices.
Furthermore, judicial review also facilitates the principle of checks and balances which is central in
the doctrine of separation of power, thereby ensuring that the Executive does not usurp its powers
and also safeguarding the right of the citizens to administrative justice granted in the Bill of Rights.
8.2. Obstacles to judicial review

It is not enough for an applicant to be able to show that the administrator have been acting contrary
to the Article 18 requirements. The complainant must first overcome some other obstacles, for
example he or she must have the capacity to sue or legal standing. There are other restrictions on
access to judicial review and Court based remedies apart from the capacity to sue. We are going to
discuss the following obstacles;
 Legal standing (locus standi)
 Ripeness
 Mootness
8.2.1. Legal standing

The rule is that the applicant must have legal standing before the court before it can review the
decision. Legal standing is a mandatory prerequisite to judicial review.
8.2.1.1. Defining legal standing
Legal standing refers to a capacity to bring a legal action before the court. In other words, standing
relates to the appropriateness of a party who seeks relief from the court. Therefore, the rules of
standing determine whether an individual can approach the courts to vindicate his or her right.
You should note that the question of legal standing is decided at the threshold of judicial
proceedings, i.e. in limine.
8.2.1.2. Current law on standing in Namibia

Namibia follows a narrow common law rules of standing, in which the applicant must be able to
show a “direct and substantial interest”. In Kerry McNamara Architects Inc and Others v Minister of
Works, Transport and Communication and Others, 2000 NR 1 (HC) the Court confirmed that a “direct
and substantial interest” is “an interest in the right which is the subject-matter of the litigation and
… not merely a financial interest which is only an indirect interest in such litigation” (at 7D-F.). It
follows that the concepts “substantial interest” and “direct interest” needs special attention
separately.
Substantial interest
We now turn to the question what constitute substantial interest? Our courts have insisted on an
interest in the right which is the subject matter of the litigation. The applicant must therefore have a
legal interest in the case, for example, person’s right to liberty or property. In Trustco Insurance t/a
Legal Shield Namibia and another v Deed Registries Regulation Board and others 2011 (2) NR 726
(SC) the Supreme Court found that the first appellant’s freedom to contract was impaired by the
challenged tariffs and it therefore had a legal interest in the outcome of the proceedings. Therefore
it had legal standing.
In an earlier case, Clear Channel Independent Advertising v Transnamib Holdings 2006 (1) NR 121
(HC), the court concluded that financial and commercial interests alone are insufficient to convey
standing. Rather, a party needs a legal interest – such as a lease to the property in question – to gain
standing. In this case, neither party had locus standi.
Direct interest
Hoexter (2012:498) deems direct interest as synonymous to personal interest. However, Baxter
(1984:654) states that directness aims to ‘ensure a personal nexus between the complainant and the
act complained of’. Therefore it follows that the applicant has legal standing to come to court only to
protect his or her interest and not the interests of another person.
In McNamara case cited above, the applicants in the ensuing court case were companies who had
agreed to make their professional services available to International Construction (IC); if IC had been
awarded the tender, the applicants would have provided their services to build the office complex
and would have been entitled to their professional fees. The applicants sought to challenge the
award of the tender to the fourth respondent rather than to IC. The Court concluded that the
applicants lacked standing to bring the application. After laying out the familiar direct and
substantial interest standard, the Court articulated the rule that a derivative interest is not a direct
and substantial interest that can support standing.
In Namibia, the rules of legal standing requires one to have direct and
substantial interest. Our law does not recognise standing on basis of a
citizen’s action to vindicate the public interest (Uffindell v Government of
Namibia 2009 (2) NR 670 (HC) at para 13).
8.3. Exceptions to the rules of standing

In an attempt to curb potential injustices, the rules of locus standi recognises some exceptions. Our
law recognizes the below listed as exceptions to the general rules of standing.
 Standing to sue to protect the liberty interests of another. One can protect the interest of
someone who cannot protect his or her own interests, for example the interests of a
prisoner under custody. (Wood and others v Ondangwa Tribal Authority 1975 (2) SA 294 (A),
also Uffindell case para 13)
 Standing to challenge the legislation designated to protect a particular group. That is to say,
a member of a group particularly protected by a statute may sue on the basis that the
statute has been violated without proving or alleging that he or she has suffered special
damage.
 Standing to curb the abuse of powers. In Uffindell, the High Court notes in dicta that the
Court has relaxed the common law criteria to establish standing when it is necessary by
reason of obligation to justice to curb an abuse of public power (para 13). Theref ore,
implicitly including this exception as part of Namibian law.
 Standing under particular statutes. For example, section 28(1) the Liquor Act 6 of 1998
permits parties other than those with a “direct and substantial interest” to lodge an
objection to the granting of a license.
 Standing of Government actors. Article 79(2) Constitution of Namibia authorises the

Supreme Court to “deal with matters referred to it for decision by the Attorney -General
under this Constitution”. Also, sections 5(1)(a)(ii)(dd) of the Ombudsman Act 7 of 1990
authorises the Ombudsman to approach “a Court of competent jurisdiction” for “an interdict
or some other suitable remedy” in respect of a complaint brought to it. Therefore, the
ordinary rules of standing does not apply to the Attorney-General and the Ombudsman
when performing official duties.
Get into a group of three and discuss the credibility of the following
statement;
“The common law rules of standing poses a problem to administrative

n justice”.
8.4. Mootness
Under the doctrine of mootness, the case will be rendered “moot” when there is no longer an actual
controversy between the parties to a Court case and any ruling by the court would have no actual,
practical impact. Mootness can result from changed circumstances for example, the legislation in
question being repealed or the disputed issue being resolved before the matter is heard in the court.
In Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd and others 2011 (2) NR 469
(SC), the court refused to look on the question of legal standing in environmental cases because all
the issues relating to the disputed permits (the legal issue) had become moot when the permits
were withdrawn. The court apparently found that the appellant was seeking to obtain an advisory
opinion from the court, therefore the court should avoid expressing opinion on abstract or academic
position of law.
However, you should note that mootness is not an absolute bar to judicial review. For example, in
Namunjepo v Commanding Officer, Windhoek Prison 1999 NR 271 (SC) the Parliament had enacted a
new legislation that superseded the disputed sections of the Prison Act and disputed prisoner’s
restraints were removed pending appeal. Although the case had become moot because the
challenged restraints have been removed, the Supreme Court allowed the litigation to proceed on
the ground that determining the constitutionality of the use of restraints and the relevant sections
of the Prisons Act would necessarily decide the question of liability in the pending civil case between
the same parties. So here, the constitutional question remained a disputed issue, although in a
different case.
8.5. Ripeness
Unlike mootness, ripeness bars the applicant to approach the court too early or prematurely. The
idea behind ripeness is that the complainant should not go to the court before his or her right was
affected, or ripe for adjudication. Hoexter (2012:585) pointed that it is pointless to waste court’s
time with decisions which are not final, whose shape may yet change or decisions that have not yet
been made.
Here is an example where a case is not yet ripe. Let’s say Fixers (Pty) Ltd (a construction company)
submitted a tender to city’s municipality for the removal of certain waste. But the municip ality must
first decide whether Fixers is suitable candidate. In March Fixers (Pty) Ltd learns that the
municipality will probably rejects its tender. The municipality will issue the final decision in April. Can
Fixers (Pty) Ltd sue the municipality in March?
The answer is probably no. The case is not yet ripe because the municipality have has not issued its
final decision. Fixers did not suffer any harm yet and it is only predicting that some home in the
future.
Can the following people’s complaints be reviewed by the Court?
a) Mr Hope a resident in Pioneers Park objected to the renaming of

the street in Katutura by the Municipality of Windhoek.
Activity 15.1
b) The Municipality demolished Samuel’s informal settlement.
David (Samuel’s friend) challenged the constitutionality of the
Municipality act on behalf of Samuel who is serving a prison
sentence.
c) The City Council reject Fixers (Pty) Ltd tender to remove certain
waste. Fixers apply to the Court for review. However pending
review the City Council realised that there was an irregularity in
the tender process. It therefore revoke its decision and give
Fixers (Pty) Ltd the tender. When the matter came to Court, the
tender have been already awarded to Fixers.
d) Martin heard that his application to be admitted in Medical

School at University of Namibia will probably be rejected by the
University come August. Martin approach the Court in May for
review.
8.6. Remedies in proceedings for judicial review
In absence of the obstacles to judicial review, what follows is what remedies can the complainant
ask from the Court to remedy an administrative illegality? There are various remedies at the exposal
of the complainant, however the Court have the discretion grant a just and equitable remedy.
8.6.1. Setting aside
Hoexter (2012:546) submitted that in administrative law, “setting aside” is an alternative way of
declaring the decision invalid, therefore the decision will no longer stand. It follows that the decision
will be void ab initio, meaning it is treated as if it never existed and therefore ceases to have any
effect. Usually setting aside comes together with declaration of invalidity. For example in President
of the Republic of Namibia and Others v Anhui Foreign Economic Construction Group Corporation Ltd
and Another 2017 (2) NR 340 (SC) the Court found that the Tender Board Act had not been followed
which was a valid procurement in capital projects involving the government. Therefore the award of
the tender by the Permanent Secretary in the Ministry of Water and Transport was “declared invalid
and set aside”.
An illegal administrative action is treated as legal regardless of being

grossly illegal until such time it is declared invalid by the Court. As long
as it is not declared invalid it continues to operate because there is a
common law presumption that all administrative acts are regularly done
Note it! /
(omnia praesumuntur rite esse acta).
Warning
The remedy of setting aside is subject to the Court’s discretion. It therefore can be withheld in
certain circumstances if it may lead to adverse consequences. In Centani Investment CC v Namibian
Ports Authority (NAMPORT) & another (A 247/2011) [2013] NAHCMD 235 (05 August 2013) the
Court held that the award of the tender to the second respondent is unlawful and irregular but was
not set aside. The court found that the payment and delivery has been already made and if the
tender was to be set aside, rendering the contract between the first respondent and second
respondent void will spell catastrophes on the contractual parties including the innocent tenderer.
For the reason of avoiding adverse consequences the Court therefore refused to set aside the
decision.
8.6.2. Remitting the case back to the administrator
When the court declares a decision invalid and sets it aside, the courts generally refers the case back
to the decision-maker. In essence, remittal is a default remedy upon setting aside of the
administrative decision.
The rationale behind remitting the case back to the administrator is that the courts respects the
separation of power doctrine and therefore reluctant to usurp the decision making powers that have
been delegated to the administrator by the legislature. Another reason behind remittal being a
default remedy after setting aside is because in some cases the court lacks expertise or the
information necessary to make a decision. For example in CSC Neckartal Dam Joint Venture v Tender
Board of Namibia and Others 2014 (1) NR 135 (HC) the court stipulated the reason behind remittal
as (para 101);
Whilst it is clear to us that the court is not in a position to make its own award in respect of a tender
of this nature, particularly because of its technical nature, it would seem to us that the usual relief in
these instances should follow in the sense of the matter being referred back to the decision -maker,
being the tender board.
You should note that remittal can either be without any instructions or wi th instructions. Remittal
with instructions is when the court gives detailed directions, for example, directions on when the
decision will be made or which tenders are to be reconsidered (e.g. Free Namibia Caterers v
Chairperson of the Tender Board and others, para 9)
8.6..3. Substituting (correcting)
The remedy of substitution is only granted in exceptional cases. In Chairperson of the Immigration
Selection Board v Frank and Another 2001 NR 107 (SC) case, Chief Justice Strydom stated that as a
general principle the courts are not permitted to substitute their decision for the decision of the
administrator because the discretion is granted to the administrator and to do otherwise will lead to
usurpation of power of the administrator and breach of the principles of separation of power.
However, the Court would exercise its discretion to substitute the decision of the administrator in
exceptional cases. Circumstances in which the Court will be prepared to substitute the decision of
the administrator emerge from the minority judgement of Strydom CJ in the Frank case. These
include cases where there were long periods of delay, where the applicant would suffer prejudice
or where it would be grossly unfair (p176D-F). In addition to that, where the court is as well qualified
as the original authority to make the decision may substitute the administrator’s decision. For
example in De Wilde v Minister of Home Affairs Case NO: SA 48/2014, the court substituted the
Ministers decision based on wrong interpretation of law because it was the court’s area of expertise.
15.3.4. Declaration of Rights
A declaration of rights (also called a declaration order) is a common law remedy that enables the
court to declare the rights of the parties or to state the legal position. A remedy in the shape of
‘declaration of rights’ only pronounces on what is the legal position of an alleged illegal
administrative action.
Berker v Minister of Home Affairs is an example where the applicant seeks a declaratory order and
was granted. The court declared that the immigration officers acted unlawfully when they
confiscated a valid Namibian passport in possession of the applicant for the sole reason that she is
also in possession of a passport of another country.
15.3.5. Interdict
An interdict is a decree whereby the administrative organ is ordered to desist from an act or course
of conduct which is causing direct prejudice to the applicant and constitutes an encroachment on his
right (Wiechers 1985:267). It follows that an interdict seeks to protect the applicant from an
unlawful administrative act, by restraining the administrator from pursuing those actions.
The court will not grant a final interdict until it is satisfied that 3 conditions has been met (Hoexter
2012:560);
1. The applicant has a clear (definite) interest being infringed,
2. The interference with the right have actually taken place or reasonably apprehended,
3. There is no other satisfactory remedy available to the applicant.
You should note that the applicant can either seek a final or temporary (interim) interdict. A final
interdict is an order of permanent force alterable only on appeal. An interim interdict is directed at
preserving or restoring status quo pending judicial proceedings.
8..6. Mandamus
Mandamus is a remedy that forces the administrator to perform a statutory duty. This remedy is
often used in cases were the administrator acted unlawfully by omitting to act. In Tumas Granite CC
v Minister of Mines and Energy and Another, it was stressed out that mandamus lies to serve two
purposes; (a) to compel the performance of a specific duty and (b) to remedy the effects of an
unlawful action already taken.
In Tumas Granite case, the applicant applied to the Minister in terms of the relevant legislation for a
reconnaissance license in Namibia’s minerals. The Minister did not consider or take a decision on the
application of license in question, hence he did not respond to the applicant’s license application.
Mandamus was granted by the court and the Minister was compelled to take a decision before a
specific date.
8.7. Spoliation orders (mandament van spolie)
Spoliation order is also known as “mandament van spolie” in the common law. In Junias v The
Municipal Council of the Municipality of Windhoek (A 35/2014) [2014] NAHCMD 80 (12 March 2014),
mandament van spolie was defined as a possessory remedy to address spoliation which is the
wrongful deprivation of the right to possession, whether with regard to movable or immovable
property. Spoliation order therefore has the effect of restoring possession of a thing to an applicant
who has been dispossessed. It was also submitted in the same case that the underlining rationale for
the remedy is that no one should resort to self-help or take the law into their own hands to obtain or
regain possession.
The applicant has the onus to establish that;
 He or she has legal possession. Possessor must prove actual possession and not right to
possess (Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD
74 (19 February 2014)
 His or her possession was wrongfully deprived.
Spoliation order cannot be granted if there is an impossibility in restoring possession. In Junias case
cited above, the City Police demolished the shelter of the two applicants in the course of eviction
without court order. The applicants sought mandament van spolie. The court found that they did
had possession for the purposes of mandament remedy but however the court did not grant the
mandament van spolie because it was impossible to restore the structure in question.
Spoliation order is different from an interim interdict because spoliation
order is always final whereas an interim interdict is temporary.
Also note that, mandament van spolie is a remedy for restoration of

Note it! / possession and not a general remedy against unlawfulness, therefore
Warning the court will not concern itself with the merits of the case.
8.8. Compensation
Article 25(4) of the Namibian Constitution provides;
The power of the Court shall include the power to award monetary compensation in
respect of any damage suffered by the aggrieved persons in consequence of such unlawful
denial or violation of their fundamental rights and freedoms, where it considers such an
award to be appropriate in the circumstances of a particular cases.
In the wording of Article 25(4), it gives scope for the award of various sorts of damages. These
Constitutional damages can also be sought to vindicate the breach of Constitutional rights arising
from an unlawful administrative action since Article 18 falls within the fundamental rights and
freedoms in Chapter 3 of the Constitution which Article 25 seeks to protect. In Centani Investment
CC v Namibian Ports Authority (NAMPORT) & another the court was willing to grant compensation to
the applicant for damages it suffered as a result of irregular procedure followed in the tender
process. However the applicant did not lead evidence on damages that it suffered therefore it was
granted leave to institute an action for damages caused by NAMPORT’s breach of its right to a fair
administrative action envisaged in Article 18 of the
Attempt to answer the following questions
a) Outline judicial remedies at the exposal of the applicant in

judicial review proceedings.
Activity 15.2
b) Assuming that all the applicants in Activity 15.1 met the
prerequisites for judicial review, what do you think is the proper
judicial remedy in each case? Why?
Constitution.
This is a self-evaluation activity. Use the information in this study unit to guide you.
Unit summary
In this unit you learned that the courts regulates administrative action
through judicial review. However before review by the court, the
applicant must have legal standing, the issue being complained of must
be ripe and also it should not be moot unless in exceptional
Summary circumstances. The Court therefore have the discretion to grant an
appropriate remedy for irregular administrative conduct.
References
Baxter, L. (1984). Administrative Law. Durban: Butterworth.
Wiechers, M. (1985). Administrative Law. Durban: Butterworth.
References Hinson, Z and Hubbard, D. (2012). Locus standi: standing to bring a legal
action. Windhoek: Legal Assistance Centre.
Hoexter, C. (2012). Administrative Law in South Africa. Cape Town: Juta.
Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An Introduction. Cape Town:
Oxford University Press Southern Africa.
Unit 9
Standing
Introduction
In the previous unit we dealt with internal control of administrative action. In this study unit we are
going to discuss the next avenue or last resort to administrative control, namely, judicial control. In
this unit we are mainly going to look at the requirements for locus standi in applications for the
review of administrative action. We are also going to consider two other obstacles to judicial
redress, namely, mootness and ripeness.
The outline of this unit is as follows:
9.2. Obstacles to judicial review.
9.2.1 Legal standing in Namibia
9.2.2 Exceptions to the common law rules of standing
9.3 Mootness
9.4. Ripeness
 Define the concept judicial control;

 Explain the importance of judicial control of administrative
action;
Outcomes  Identify obstacles to judicial control;
 Critically discuss the rules governing legal standing in Namibia;
 Discuss the various judicial remedies and to indicate under

which circumstances each will be available to the applicant in
practice.
Hoexter, C(2012) Administrative Law in South Africa, 2nd Edition.
Chapter 9, pp. 487-513.
Prescribed reading
Quinot, G(Ed) et al (2015) Administrative Justice in South Africa, An

Introduction Chapter 9, pp.219-235.
Hinson, Z and Hubbard, D. (2012). Locus standi: standing to bring a legal

Additional reading action. Windhoek: Legal Assistance Centre.
Judicial control: The process whereby the court reviews the

regularity of an administrative action.
standing: The capacity to bring a legal action before the

Terminology court.
mootness: A situation whereby the court cannot review the

disputed issue because review will not have any
impact due to changed circumstances.
ripeness: A situation whereby the court will not review the

disputed issue because no legal right is yet
affected.

Judicial control is another form of controlling administrative action. But how is it achieved? And why
is it important?
Judicial control is achieved through judicial review. We already looked at the common law review
jurisdiction of the courts in Unit 1 of this study guide. Article 18 and 25 (2) of the Constitution
codifies the common law in this regard. Article 18, specifically, gives a person aggrieved by an
administrative decision the right to seek redress before a competent Court thereby, giving the Court
the power to control administrative irregularities. Moreso, the right to administrative justice forms
part of Chapter 3, the Bill of Rights. Therefore, if violated an aggrieved party can also seek judicial
remedies through Article 25 (2).
Judicial control (review) is an essential tool in administrative law. It is important because it
constitutes the indispensable moderating tool for avoiding and minimizing administrative injustices.
Furthermore, judicial review also facilitates the principle of checks and balances which is central in
the doctrine of separation of power. It also safeguards the right of the citizens to administrative
justice granted in the Bill of Rights.
9.2. Obstacles to judicial review

It is not enough for an applicant to be able to show that the administrator have been acting contrary
to the Article 18 requirements. The complainant must first overcome some other obstacles, for
example s/he must have the capacity to sue or legal standing. There are other restrictions on access
to judicial review and court- based remedies apart from the capacity to sue. We are going to discuss
the following obstacles:
 Legal standing (locus standi)
 Ripeness
 Mootness
9.2.1. Legal standing in Namibia
The rule is that the applicant must have legal standing before the court before it can review the
decision. Legal standing is a mandatory prerequisite to judicial review. Standing refers to a litigant’s
capacity to bring a legal action before the court. In other words, standing relates to the
appropriateness of a party who seeks relief from the court. The rules of standing thus determine
whether an individual can approach the courts to vindicate his or her right. The question of standing
is decided at the very beginning of judicial proceedings i.e. in limine. In other words before the
merits of the case are considered.
Thinking Point 1:
Read articles 18 and 25(2) of the Constitution. Who, in your opinion, are the ‘aggrieved persons’,
referred to in:
a) articles 18 and
b) article 25?
Namibia still follows the common law rules of standing. The common law requirements of standing
are very narrow and restrictive. At common law the applicant for review must be able to show a
sufficient, personal and direct interest in the case. Courts have recognised a few exceptions though
as indicated later below.
Consider the following real life scenario as reported in the Namibian
newspaper in 2007.
‘Tin town sold for a song’
A group of Uis residents are up in arms after it emerged that almost the
entire village has been sold to a private individual.
According to documents shown to ‘The Namibian’, the majority of the

town land now belongs to a certain Albert Weitz of Namib Base
Minerals, who bought the land for N$630 000 from the previous Village
Council - with the blessing of the Ministry of Regional and Local
Government and Housing - in 1996.
As a result, any developer, investor or even a resident of the mining

town 120 km west of Omaruru who wants to buy prime land must
bargain with Weitz and not the Council.
To add insult to injury, the Village Council had to buy back land from
Weitz to build their offices.
Source: By Christof Maletsky, The Namibian, 14.09.07
Answer the following questions based on the newspaper article. Fully

motivate your answers.
1. Was an administrative action taken in this scenario?
2. Does the Rate Payers Association of Uis has the necessary

locus standi to approach the High Court to challenge this
transaction?
3. Would the Unam Legal Aid Clinic has the necessary locus standi
to approach the court on behalf of residents of Uis?
4. What about the newly appointed minister who does not agree
with his predecessor’s decision?
5. Similarly, what about a leader of the AR movement residing in

Windhoek citing public interest?
Feedback
This is a self-study exercise. You are strongly advised to attempt it.
1. What are some of the reasons advanced for the restrictive
common law rules of standing?
2. Do you think this reasons are still valid? Substantiate yourself.
3. Do you think the common law rules of standing pose an

obstacle to administrative justice? Motivate your answer.
Read the Uffindell v Government of Namibia 2009 (2) NR 670 (HC) case.
Answer the following questions based on the case. Fully motivate your
answers.
1. What was the administrative action taken in this scenario?
2. What was the locus standi issue in this case?
3. How did the court decide the locus standi issue in this
matter?
4. Would you say this decision reflects a readiness by the

courts to liberalise the restrictive common law
requirements of standing in Namibia? Substantiate your
answer fully.
Feedback
This is a self-study exercise. We strongly advised you to attempt it.
Note it! Also read the Namibia Marine Phosphate (Proprietary) Limited v Minister of
Environment and Tourism (CA 119/2016) [2018] NAHCMD 122 (11 May 2018) case. Make it a point
to understand how the court addressed the locus standing issue in this matter.
In Kerry McNamara Architects Inc and Others v Minister of Works, Transport and Communication
and Others, 2000 NR 1 (HC) the Court confirmed that a “direct and substantial interest” is “an
interest in the right which is the subject-matter of the litigation and … not merely a financial interest
which is only an indirect interest in such litigation” (at 7D-F.). It follows that the concepts
“substantial interest” and “direct interest” deserve special attention separately.
i) Substantial interest
We now turn to the question what constitute substantial interest? Our courts have insisted on an
interest in the right which is the subject matter of the litigation. The applicant must therefore have a
legal interest in the case, for example, person’s right to liberty or property.
Read the Trustco Insurance t/a Legal Shield Namibia and another v
Deed Registries Regulation Board and others 2011 (2) NR 726 (SC) case.
Answer the following questions based on the case:
1. What was the administrative action taken in this case?
2. Compare the decisions of the High Court and the Supreme

Court in this matter.
3. Why was the Supreme Court prepared to find that the

aggrieved party had the necessary standing in this matter?
This is a self-study exercise. We strongly advised you to attempt it.
Read the Clear Channel Independent Advertising v Transnamib Holdings

2006 (1) NR 121 (HC) case.
Answer the following questions based on the case:
1. What was the administrative action taken in this case?
2. Who were the aggrieved parties in this matter?
3. Why did the Court find that none of the parties the aggrieved
party had the necessary standing?
4. Do you agree with the judgment? Why? Why not?
ii) Direct interest
Hoexter (2012:498) deems direct interest as synonymous to personal interest. However, Baxter
(1984:654) states that directness aims to ‘ensure a personal nexus between the complainant and the
act complained of’. Therefore it follows that the applicant has legal standing to come to court only to
protect his or her interest and not the interests of another person.
Reread the McNamara case cited above. Make sure that you understand
the Court’s reasoning why the aggrieved party had no standing in this
case.
9.2.2. Exceptions to the common law rules of standing
The restrictive common law rules of standing present a formidable obstacle to access to courts. For
that reasons, these rules are waived in some exceptional circumstances.
Read the Wood and others v Ondangwa Tribal Authority 1975 (2) SA
294 (A) case.
Answer the following question based on the case.
1. What was the administrative decision taken in this case?
2. Who challenged the decision?
3. Why was the court prepared to restrictive circumvent the

common law requirements on standing in this matter?
The common law rules of standing are, generally, waived in the following instance:
 Standing to sue to protect the liberty interests of another. One can protect the interest of
someone who cannot protect his or her own interests, for example the interests of a
prisoner in custody. (Wood and others v Ondangwa Tribal Authority 1975 (2) SA 294 (A), also
Uffindell case para 13)
 Standing to challenge the legislation designated to protect a particular group. That is to say,
a member of a group particularly protected by a statute may sue on the basis that the
statute has been violated without proving or alleging that he or she has suffered special
damage.
 Standing to curb the abuse of powers. In Uffindell, the High Court notes in dicta that the
Court has relaxed the common law criteria to establish standing when it is necessary by
reason of obligation to justice to curb an abuse of public power (para 13). Therefore,
implicitly including this exception as part of Namibian law.
 Standing under particular statutes. For example, section 28(1) the Liquor Act 6 of 1998
permits parties other than those with a “direct and substantial interest” to lodge an
objection to the granting of a license.
 Standing of Government actors. Article 79(2) Constitution of Namibia authorises the
Supreme Court to “deal with matters referred to it for decision by the Attorney -General
under this Constitution”.
Also, sections 5(1)(a)(ii)(dd) of the Ombudsman Act 7 of 1990 authorises the Ombudsman to
approach “a Court of competent jurisdiction” for “an interdict or some other suitable remedy” in
respect of a complaint brought to it. Therefore, the ordinary rules of standing does not apply to the
Attorney-General and the Ombudsman when performing official duties.
9.3 Mootness
Under the doctrine of mootness, the case will be rendered “moot” when there is no longer an actual
controversy between the parties to a Court case and any ruling by the court would have no actual,
practical impact. Mootness can result from changed circumstances for example, the l egislation in
question being repealed or the disputed issue being resolved before the matter is heard in the court.
Read the case: Namib Plains Farming and Tourism CC v Valencia

Uranium (Pty) Ltd and others 2011 (2) NR 469 (SC). Answer the
following questions based on the case.
Activity
1. Was the administrative action taken in this case?
2. Did the aggrieved had standing in this matter? Substantiate

your answer.
3. Why the Court regard the matter/issue as moot.
4. Do you agree with the Court’s finding in this regard? Motivate

your answer.
Feedback
You should note that mootness is not an absolute bar to judicial review.
Note it!
Read the case: Namunjepo v Commanding Officer, Windhoek Prison
1999 NR 271 (SC).
1. Briefly summarise the facts of this case.

Activity
2. What was the issue that the Court had to decide?
3. Why did the Court decide to hear the matter despite the issue
been moot?
Feedback
9.4 Ripeness
Unlike mootness, ripeness bars the applicant to approach the court too early or prematurely. The
idea behind ripeness is that the complainant should not go to the court before his or her right was
affected, or ripe for adjudication. It is pointless, as noted by Hoexter, to waste court’s time with
decisions which are not final, whose shape may yet change or decisions that have not yet been
made.
Consider the following example to illustrate the point:
Fixers (Pty) Ltd, a construction company, submitted a tender to the City of Windhoek for the
removal of waste. The municipality, in terms of its guidelines and procedures must first decide
whether Fixers is suitable candidate.
In March Fixers (Pty) Ltd learns that the municipality will probably rejects its tender. The
municipality will issue the final decision in April.
The question remains: can Fixers (Pty) Ltd pre-emptively sue the municipality in March already?
The answer to the question above is probably no. The case is not yet ripe because the municipality
have has not issued its final decision. Fixers did not suffer any harm yet and it is only predicting that
it may suffer some future harm.
Homework
1. Critically discuss the prejudice requirements as prerequisite for

judicial review.
2. What does the ‘ripeness’ requirement entail? Explain with the

support of case law.
3. What does the ‘mootness’ prohibition entail? Explain with the

support of case law.
4. Can ouster clauses, limitation clauses, finality clauses, indemnity

and amnesty clauses and subjective phrase provisions hamper
access to judicial relief? Explain with reference to examples. Also
indicate whether you are of the opinion whether each of these
phenomena is constitutionally tenable.
Unit summary
In this unit you learned that the courts regulates administrative action
through judicial review. However, before review by the court can occur,
the applicant must proof that s/he has the necessary legal standing.
Furthermore, the issue being complained of must be ripe and also it
Summary
should not be moot.
Wiechers, M. (1985). Administrative Law. Durban: Butterworth.
References Hinson, Z and Hubbard, D. (2012). Locus standi: standing to bring a legal
action. Windhoek: Legal Assistance Centre.
Administrative Law in South Africa. Cape Town: Juta.
Unit 10
Lawfulness: Authority
Introduction
In this study guide we will look at the requirements for administrative action to be exercised validly
by administrative decision makers. To say that administrative action has been exercised validly
means that the action taken has been taken in accordance with the provisions of the relevant law.
Article 18 of the Namibian Constitution specifically requires that the decisions of administrative
bodies and administrative officials be consistent with the requirements of the common law and
relevant legislation. This, differently phrased, means that the administrative action must be lawfully.
What does lawful administration mean? Klaaren and Penfold (63:76)] explain lawfulness as follows:
“The right to lawful administrative action therefore constitutionalises the fundamental right of
administrative law that a decision-maker must act within his or her powers and must not act “ultra
vires”.
Lawfulness as a requirement of administrative validity is quite a bulky theme. It relates to authority,

jurisdiction and the abuse of discretion by the administrative decision-maker (ADM). To facilitate
better understanding each of these sub-themes is addressed in different study units. This study unit
will focus on authority as a ground of review for lawfulness.
Unit 11 will focus on jurisdiction, and study unit 12 will address the issue of abuse of
discretion/power. These three (3) units thus collectively explain lawfulness as a requirement for
valid administrative action as dictated by article 18.
 Discuss and apply the requirement that administrative action

must be authorised;
 Explain the consequences of unauthorised administrative action

Outcomes and apply this knowledge;
 Discuss and apply the requirements for valid delegation and sub-
delegation;
 Discuss the different forms of sub-delegation;

 Discuss and apply the concept of functus officio.
Hoexter, C (2012) Administrative Law in South Africa Second Edition

pp.256-278
Prescribed reading
Edition pp.119-140
Additional reading
Authority: The power to make decisions.
Delegation: The processes of entrusting authority to another

person.
Terminology
Abdicate: To relinquish your authority.
Usurp: To seize authority which you do not have a right

to do so.
Referral: To pass on authority to another person.
Dictation: To order another to exercise their authority.
Functus officio: The ability to vary or revoke a decision by an ADM
10.1 What is lawfulness?

Lawfulness as a requirement for administrative validity essentially ask: Is the administrative action
and the empowering provision aligned? This can be illustrated as follows:
Source: Administrative in South Africa, p.120.

An analysis of lawfulness in administrative law, as can be seen from the given diagram, involving
comparing the administrative action to the authorisation for that action in the relevant empowering
provision. The goal of the analysis is to determine whether the action and the empowering provision
overlap. It follows that any area of non-overlap points to a potential lawfulness problem.
10.2 Authority
The first requirement of lawfulness is authorisation. For every action that an administrator takes,
there must be a valid authorisation in an empowering provision. In the absence of such
authorisation the administrative action will be unlawful. This is taken from one of the first prin ciples
of administrative law that the exercise of power must be authorised by law. The basic notion is well
captured by the South African Constitution Court in the case of Fedsure Life Assurance Ltd v Greater
Johannesburg Transitional Metropolitan Council where it stated that:
“[…] the Legislature and Executive in every sphere are constrained by the principle that they exercise
no power or perform any function beyond that conferred upon them by law”
The same notion is differently phrased by Hoexter. Hoexter stresses the importance of lawfulness as
follows:
“[…] it is axiomatic that administrators must be properly appointed, properly qualified and properly
constituted when they take administrative action/decisions”- per Hoexter, 2012:256.
From the Hoexter statement it follows that:
1) The administrator as person or entity should be authorised to make the decision.
For example: If the Liquor Act stipulates that the Liquor Board must decide whether liquor licenses
are granted, an official may not make the decision.
2) The authorisation must be granted for the area where the decision will apply.
For example: The City Engineer in for Windhoek is not authorised to take administrative decisions
that will apply beyond the municipal district of Windhoek.
3) The act or decision itself must be authorised.
For example: Authorisation to issue permits does not always include authorisation to revoke
permits already granted.
Failure of in respect of any of the three (3) will result in the action being unlawful and as such
invalid!
A useful way, suggested by Quinot and others, to analyse the lawful authorisation of the
administrative action to ask the following questions:
1. What was authorised?
2. Who was authorised; and
3. How did the authorisation prescribe the action to be taken?
10.2.1 What was authorised?

This question seek to establish what is that the ADM can do under the relevant authorisation. In
other words, what was authorised? This is important because, if the ADM is authorised to A, s/he
must do A and not B. If s/he were to do B his/her action will be unlawful. There are a number of
ways in which the ADM may fall foul of this requirement. For instance, ADM may lack authority
because:
 s/he not be properly constituted or appointed; or
 exceed his/her or their authority by going beyond the powers conferred on them.
(a) Appointment and constitution of administrators
Almost all enabling legislation confers power on specific administrators. The empowering provision
usually refers to, for instance, ‘the Minister’, ‘the officer, ‘the tribunal’ or ‘the board’. Whatever the
designation, and be they individual or bodies the administrators, as noted earlier must be properly
appointed, properly qualified and properly constituted when they take administrative
action/decisions.
Read the following case and answer the questions that follow.
Alexander v Minister of Justice and Others (A 210/2007) [2008] NAHC

137 (05 June 2008
1. Identity the administrative decisions taken in this matter.
2. Why was authority of the ADM questioned in this case?
3. What was the court’s decision in this regard?
Joubert v The Minister of Home Affairs and Immigration (HC-MD-CI-
MOT-REV-2016-00327) [2018] NAHCMD 118 (03 May 2018)
1. Is there an administrative action present in this set of facts
2. What was the authority issue at hand?
3. What was the decision of the court on the administrative decision taken?
4. What was the reasoning behind its finding?
Also read Government of the Republic of Namibia v Sikunda 2002 NR

203 (SC) for better understanding.
(b) Exceeding authority

The ADM may sometimes exceed his or her authority by going beyond his powers, contravening
certain provisions or acting without authority at all. In most instances ADM’s go beyond their given
powers when they usurp power beyond the scope of the enabling provisions. Such acts are ultra
vires, unlawful and as such invalid.
Read the following cases and answer the questions for each.
Titus v The National Housing Enterprise (A 9/2016) [2016] NAHCMD 225

(24 October 2016).
Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015).
1. Explain the administrative actions taken in each of these cases?
2. Why were the lawfulness of these decisions taken questioned?
3. Fully explain the decisions of the court in each of these judgments.
The Village Hotel v Council for the Municipality of Swakopmund (SA

58/2011) [2015] NASC
1. Is there an administrative action present in this set of facts?
2. What was the lawfulness issue in this case?
3. How is the issue in this case different from instances where the ADM exceeds his/her/it’s
authority?
4. Fully explain the judgment handed down in this matter.
(c) Existence of authority elsewhere
If an ADM states the wrong enabling provision for his or her decision, but another provision is
applicable and gives authority for the decision taken by the ADM to be taken, is the action then a
valid administrative action or is it unlawful? On one hand one may argue, that the decision is still
lawful, as it is enabled by prescriptions of enabling legislation. However on the other hand, an ADM
subjectively usurping his power cannot be excused and thus his action is unlawf ul.
Mostert v Minister of Justice (SA3/02 ) [2003] NASC 4 (28 January 2003)
2. What was the lawfulness issue at hand?
3. How did the court reach its decision?
4. What was the reasoning behind its decision?

10.2.2 Delegation of authority
The second aspect of the authorisation analysis as part of the lawfulness inquiry relates to the ADM
that is authorised to act: the who question.
Generally, power given to one ADM cannot be exercised by another ADM. Doing such bring into play
issue of usurping of authority or abdication of power. Either of these is unlawful. This may happen by
way of:
1. Unlawful delegation of power;
2. Acting under dictation; or
3. Unlawful referral or ‘passing the buck’
(a) Delegation of power by the legislature
Parliament sometime delegates its legislative powers. This is, generally, referred to as delegation of
power. There are, however, constitutional limits to the delegation of power. For instance,
1. Parliament is prohibited from delegating too much of its law-making responsibility
For example: it can’t delegate to the President the power to amend an Act of Parliament. Why not?
2. Parliament must provide appropriate guidelines where it confers wide discretionary power
(however innocuous) to the ADM. What this mean? Why is this important?
(b) Sub-delegation by administrators
Generally, delegated power must be exercised by the designated administrator. It is often not
practical in real life though. For this reason administrative law therefore recognises the need to sub -
delegate.
Parliament delegates to the administrator whereas the administrator

sub-delegates to his/her sub-ordinate.
The rule governing the sub-delegation of administrative powers is captured in the maxim ‘delegatus
delegare non potest’. This, in simple means: "no delegated powers can be further delegated". Make
sure to understand meaning and application of this maxim. Sub-delegation is authorised either:
 Expressly or
 Tacitly/Implied
i) Express authority to sub-delegate

An example of this is found in subsections 1 and 2 of section 4 of the Immigration Control Act (No. 7
of 1993). These subsections authorise the Minister and the Chief of Immigration to sub -delegate
their administrative powers. In terms of these subsections:
Section 4
(1) The Minister may, subject to such conditions as he or she may deem necessary, delegate in
writing any power conferred on him or her by this Act, excluding a power conferred on him or her
by sections 25(3), 43, 46(1), 49 and 58( 1) and any such power which has to be exercised by notice in
the Gazette, to the Chief of Immigration or any other officer or employee in the service of the
Ministry, but shall not be divested of any power so delegated.
(2) The Chief of Immigration may, subject to such conditions as he or she may deem necessary,
delegate to an Immigration Officer or any other officer or employee in the Ministry any power
conferred on him or her by or under this Act, but shall not be divested of any power so delegated. -
Immigration Control Act (No. 7 of 1993)
Thinking Points:
 Refer to the Immigration Act to see which power i) may and ii) may not be sub-delegated by
the Minister;
 What is the meaning and implication of: “shall not be divested of any power so delegated”?
(ii) Implied authority to sub-delegate
There are instances in practice where the authority to sub-delegate is not expressly provided for in
the enabling legislation. In such case the question arises whether the power to sub -delegate can
then be implied into the legislation. How does one determine whether implied authorisation for sub
delegation is granted? Factors determining whether delegation is tacitly authorised are the
following:
1. Nature of the power
2. Extend to which power is transferred
3. The importance of the sub-delegatee
4 Practical necessity
Social Security Commission and Another v Coetzee (SA 43/2009) [2016]

NASC 1 (18 February 2016)
2. Who took the administrative action?
3. What was the lawfulness issue at hand?
4. How did the court reach its decision?

Centani Investment CC v Namibian Ports Authority (NAMPORT) &

another (A 247/2011) [2013] NAHCMD 235 (05 August 2013)
2. Who took the administrative action?
3. What was the delegation issue in this matter?
4. How and why did the Court decide this matter in the manner it did?
Make it point to know, understand, distinguish between and apply each

of the different forms of delegation (i.e. mandate, deconcentration and
decentralisation) in a given set of facts.
(c) Unlawful referral and dictation
There are at least two other ways in which administrative decision makers may also abdicate their
power or usurp that of another. These are:
 unlawful referral, and
 unlawful dictation.
These forms of unlawful delegation are more covert and difficult to prove at times.
We at times refer to unlawful dictation as “taking directions” because it takes place when an
unauthorised ADM takes a decision on behalf of an authorised ADM who then merely rubber stamps
that decision as if it had been taken by him or her personally. You will find out that in most instances
unlawful dictation occurs between an unauthorised senior ADM and an authorised junior ADM. This
is a classic example of usurpation of power.
Unlawful referral on the other hand is also known as “passing the buck”. It occurs when an
authorised ADM refers his or her decision to an unauthorised ADM who then makes the decision on
behalf of the authorised ADM. Unlawful referral is in itself a form of abdication of power.
These two forms of unlawful delegation do not necessarily mean that ADMs are prohibited from
consulting other interested parties. What matters is that the ADM must apply his/her mind to the
matter in front of him/her and takes the decision personally.
President of the Republic of Namibia and Others v Anhui Foreign

Economic Construction Group Corporation Ltd and Another (SA 59/2016)
[2017] NASC 7 (28 March 2017). Read the High Court ruling as well.
1. What were the various administrative actions taken in this case?

2. Extract from the facts, the matter related the sub-delegation of power.
3. What was the abdication or usurpation of administrative power issue relevant in this case?
4. How did the two Superior Courts expressed themselves on this matter i.e. abdication or
usurpation of power in this matter?
Geingob instructs city to reinstate Kahimise, Kanime
News - National | 2019-01-30Page no: 0
by Okeri Ngutjinazo
PRESIDENT Hage Geingob has instructed the Windhoek city council to

reinstate suspended City Police chief Abraham Kanime and to drop
disciplinary charges against municipal chief executive Robert Kahimise.
At a meeting on Wednesday at State House, Geingob told city councillors

that they will not resolve local issues if they are divided.
“I don't know the laws, I am talking now as president ... these

suspensions [should] be [lifted] and reinstate everybody,” he said.
Geingob said this was necessary so that the city leadership can move on
and deal with the problems that were discussed at Wednesday's
meeting around addressing the humanitarian crisis of informal
settlements.
Kanime, who was suspended in March last year on allegations of
misusing public funds, admitted that he used municipal funds to sue the
municipality because it had failed to support the City Police in carrying
out its work.
Kahimise was suspended in October 2018 over a N$170 000 study loan
he took without approval from the council's management committee.
1. Is this an administrative law issue? If so, why? If not, why not?
2. Assuming that it is indeed an administrative law issue, what is the lawfulness problem raised
by the President’s instruction? Fully motivate your answer.
10.3 Authority to vary, revoke a decision: the functus officio doctrine

We have mentioned that ADMs must make lawful decisions. But can they vary or revoke a decision?
If they can, then when? This, from an administrative justice point of view is very important because
individuals rely on the decisions of ADMs for various reasons.
The issue as to whether and when the administrator may repeal, revocate, amend, vary or rescind
his/her decision is determined with reference to the application of the functus officio doctrine.
Functus officio, essentially means that the ADM has discharged his/her duty. The ADM is thus no
longer legally qualified to decide upon the issue. The rationale behind this rule is to prevent ADM
from revoking, withdrawing or revisiting his/her decision at will or arbitrarily. It is thus for
considerations of certainty, fairness and legality. The functus officio rule only applies to final
decisions (i.e. publication, announced or conveyed decisions. The functus officio doctrine not
absolute though. The doctrine applies differently to depending on the type/class of administrative
action involved.
The given table illustrate the application of the functus officio doctrine.
Complete the table to ensure you know how this doctrine applies in a
given situation.
Legislative Adjudicative Administrative

administrative administrative acts
acts acts
Application General rule? General rule? Valid versus

of the FO Invalid
Exception? res iudicata?
doctrine administrative
Exception? action.
1. Invalid Aa
General rule?
Exception?
2. Valid Aa
i) Valid onerous
Aa
ii) Valid
beneficial Aa
Meaning? ?? ?? ??
Example? ?? ?? ??
Read the following case and attempt to answer the questions that follow
Van Rooyen v University of Namibia 2004 NR 150 (LC).
1. Identify the administrative action present taken in this matter?
2. Why were the applicant aggrieved in this matter?
3. Why and how was the functus officio issue relevant in this matter?
4. How did the Court apply the functus officio doctrine in this case?
5. Do you agree with the decision? Motivate your answer.

Unit summary
In this unit you introduced to the first requirement of administrative
validity, namely, lawfulness. You have learned that for the administrative
action to be lawful it must fully overlaps with the empowering provision.
Any form of non-overlap between the two creates a lawfulness problem.
Summary The three broad requirements for lawfulness are authority, jurisdiction
and abuse of discretion. In this unit we only looked at authority.
The shorthand inquiry for authority of the ADM is to ask the questions:
what was authorised? who was authorised? and how did the
authorisation prescribe the action to be taken?. Lastly you learned about
the functus officio doctrine which restricts the ADM from varying or
revoking its decision at random.
References
Quinot, G (Ed) et al. (2015). Administrative Justice in South Africa: An

Introduction. Cape Town: Oxford University Press Southern Africa.
Burns, Y & Beukes, M. (2006). Administrative law under the 1996

References Constitution (Third Edition). Durban: LexisNexis Butterworths.
Amoo, S.K. (2008). An Introduction to Namibia Namibian Law: Materials

and Cases. Windhoek: Macmillan Education Namibia Publishers
Beukes, M et al. 2010. Administrative Law Study Guide. Pretoria:

University of South Africa
Unit 11
Lawfulness: Jurisdiction
Introduction
The administrative decision maker (ADM) must at all time act within the bounds of his/her/its
powers. They must also not misconstrue their powers. These issues relates to jurisdiction, an
important arm of lawfulness. Administrative decision makers commit an error of law or mistake of
fact when they act outside the bounds or misconstrue the powers conferred upon them by
empowering provisions. Doing such would render their actions subject to judicial review on the basis
of him/her/it having acted outside of the jurisdiction outlined by the empowering provisions. Here
judicial review by the courts is concerned with ensuring that the administrative decision was made
within the true limits of the ADM’s power and not whether the decision was necessarily right or
wrong. In the case of jurisdiction, the non-overlap between the administrative action and the
empowering provision occur because of a material mistake made by the ADM. Thus, rendering the
decision unlawful.
• Discuss and apply the requirements to prove each of the

following grounds of review:
i) error of law;
Outcomes
ii) mistake of fact;
 apply the elements of lawful jurisdiction to day today scenarios.
Prescribed Reading
Hoexter, C (2012) Administrative Law in South Africa Second Edition pp.
281-302
Introduction. Cape Town: Oxford University Press Southern Africa, 1st Edition
pp.140-142
l
Terminology
Jurisdiction: The legal power to make a decision.
Misconstrue: To interpret the law wrongly when

exercising authority.
Terminol
Material: Having significance to the merits of the
authority exercised
Facts: Information acted upon by the ADM

when exercising authority
Substantive: The pre-existence of certain facts when

exercising authority
Procedural: The steps to be followed when

exercising authority
Error: A mistake
11.1 Jurisdiction
Administrators are required to remain within the bounds of their powers. They may also not
misconstrue their powers. Jurisdiction, as such, looks into the issue whether or not the ADM strayed
beyond his/her/its entitlement to act. The ADM may stray beyond his/her/its entitlement to act due
to some mistake which will render the administrative action unlawful.
The ADM may make a mistake in either law or fact pertaining to his/her/its authorisation. With
mistake we are not referring to the content of ADM’s decision. In other words, the issue is not
whether the ADM took a wrong administrative action. The focus is still on lawfulness. In other
words, on the authorisation of the action. We distinguish between two kinds of mistakes i.e. mistake
in law or fact pertaining to his or her authorisation.
11.1.1 Error of Law
Administrative law requires that the ADM take an administrative action based on the correct
interpretation of the empowering provision. When an ADM misinterprets a legislative provision it is
referred to as an error of law.
We keep noting the importance for lawfulness to render administrative action valid. So, when an
action is materially influenced by an error of law, it becomes subject to judicial review on the
grounds that it leads to unlawfulness. The error must be material though. An error is material when
its affects the outcome. In order for us to determine the materiality of the action taken the following
question is asked:
Would the same decision be reached if the ADM had adopted the correct interpretation of the
applicable law?
In answering the question the results in respect of lawfulness are two-fold. Firstly, if the answer to
the question is yes then the error of law is not material. This therefore means that there is no
lawfulness problem. If the answer to the question is no, however, the error of law is material and
renders the decision taken unlawful.
Read the following cases and answer the questions that follow.
i) De Wilde v Minister of Home Affairs (A 147/2013) [2014]

NAHCMD 160 (22 May 2014);
ii) De Wilde v Minister of Home Affairs (SA 48/2014) [2016]

NASC 12 (23 June 2016)
6. Extract the administrative actions taken in the patterns of facts in this case?
7. What was the faulty interpretation all about in this case?
8. The two superior courts differed in their decisions regarding the impugned
provision. Explain the essence and significance of this difference in
interpretation.
9. Which of the two judgments, in your opinion, is preferable? Substantiate

your answer.
Wildlife Ranching Namibia v Minister of Environment and Tourism (A

86/2016) [2016] NAHCMD 110 (13 April 2016):
1. What was the faulty interpretation all about in this case?
2. Apply the question for determining the materiality of the action, referred to above, to the
given facts in this case. Having do so, now explain the court’s decision regarding the error of
law as it pertains to this case.
11.1.2 Mistake of fact
A more recent development in administrative law relates to mistake of fact. In common law these
types of mistake were, generally not considered to impact on the lawfulness of a particular
administrative action. Administrative powers must be exercised based on true facts. It thus follo ws,
that ignorance of facts material to the actual situation is not excusable. Mistaken fact presupposed
irrelevant considerations. Phrased differently, decision taken based on mistaken facts renders the
decision unlawful. One again, the mistake of fact must be material before it will impact the
lawfulness of the administrative action.
Thinking points:
• What is the difference between jurisdictional and non-jurisdictional facts?
• What are procedural jurisdictional facts and when will non-compliance lead to invalidity?
• What are substantive jurisdictional facts?
• When did non-compliance with substantive jurisdictional facts lead to invalidity at common
law?
• How is non-compliance with substantive jurisdictional facts dealt with in the constitutional
era?
• Under which circumstances will a non-jurisdictional mistake of fact be reviewable?
Read the following scenario and answer the questions based thereon.
Last year, the Windhoek Municipality awarded a tender to Fix-It (Pty) Ltd to fix certain potholes in the
Wanaheda area. Fix-It (Pty) Ltd fixes the potholes efficiently and quickly and the municipal manager is so
impressed that he tells the director of Fix-It (Pty) Ltd, Darren Smith, that the municipality is also looking
to repair potholes in Khomasdal and they would definitely award this tender to Fix -It (Pty) Ltd as he is
pleased with its standard of work.
This year, on 26 March 2019, the Windhoek Municipality calls for tenders to repair potholes in
Khomasdal. Fix-It (Pty) Ltd is one of several companies that apply for the tender.
The cash-strapped municipality, however, is under pressure to choose an applicant that submits the
most cost-effective tender. On this basis, the Municipality decides to award the tender to ABC (Pty) Ltd.
It appears that the cost of the work that ABC (Pty) Ltd submitted for its tender was N$70 000 whereas
the cost of the work for the tender submitted by Fix-It (Pty) Ltd was N$90 000.
When Darren asks the municipal manager for reasons for his decision, he is told that the tender that
they submitted was for R 90 000 and ‘did not meet the criterion upon which the municipality based its
decision’.
During the course of your consultation, Darren also informs you that cost for the work of the tender that
Fix-It (Pty) Ltd submitted was actually N$ 80 000 and not N$ 90 000. He requires advice on whether
there is any basis upon which he can challenge the decision not to award the tend er in light of the
mistake that the municipality made with regard to the tender amounts.
After full appraisal Daren gave you instructions to challenge the Municipality’s decision not to award the
tender to his company, Fix-It (Pty) Ltd.
1. Explain whether the decision of the Municipality in respect of tender award amounts to an
administrative action for purposes of article 18 of the Namibian Constitution.
2. Discuss in detail whether the High Court has jurisdiction to hear this matter at first instance?
3. Considering Fix-It (Pty) Ltd’s potential grounds of review, what arguments should Fix-It (Pty)
Ltd make to challenge the decision, and what are its prospects of success?
Unit Summary
In this unit you learned that it is important that ADMs act within the
bounds of their powers and they do not misconstrue their powers.
When ADMs exceed these bounds or misconstrue their powers they
either commit an error of law or mistake of fact. When an ADM
Summary misinterprets a legislative provision it is referred to as an error of law
and when an ADM fails to take the decision on the basis of true facts it is
referred to as mistake of facts.
You further learned that in order for us to determine the materiality of

the action taken the question is asked: Whether or not the ADM would
have arrived at the same decision if he or she had used the correct
interpretation of the empowering provisions? If yes then the action is
valid whereas if the answer is in the negative the action is invalid and
thus unlawful.


Constitution (Third Edition). Durban: LexisNexis Butterworths.
References
Unit 12
Lawfulness: Abuse of discretion
Introduction
In study unit 2 we highlighted some of the key functions of administrative law. One such function is
to minimise the bureaucratic abuse of power. The law imposes constraints on the exercise of
discretionary powers in the name of lawfulness. The last aspect of lawfulness relates to the abuse of
discretion. This study unit focuses on abuse his or her discretion
An administrator decision-maker (ADM) may abuse his or her discretion in various ways. These may
include, ulterior motive, bad faith (mala fides), failure to apply the mind, failure to decide, failure to
act within reasonable time, irrelevant considerations, fettering, arbitrary and capricious decision-
making, and acting in fraudem legis.
identify the different forms of abuse of discretion;
apply the different forms of abuse of discretion to a given situation;
Outcomes
Hoexter, C (2012) Administrative Law in South Africa Second Edition

pp.307-325
Prescribed reading
Terminology
Abuse: Action that is regarded by the courts as misuse of

given authority
Power: The authority to act in a given manner
Ulterior motive: Hidden or concealed intention
Fetter: Self-restraint by the ADM to act fully
Fraudem legis: To act in fraud of the law
Mala fide: To act in bad faith

Arbitrary: Not supported by fair, solid, and substantial
cause, and without reason given
Capricious: Sudden and unaccountable change of decisions
Mr Nambahu is a teacher at a local school and is known to be ill -

disciplined and unruly. The school’s management tried dealing with him
unsuccessfully in the past. The school’s management and the education
Case Study / directorate decide to transfer him to a far-flung remote school in a
Example different region, away from his family. He did not ask to be transferred
as he did not want to leave the town.
2. If so by who?
3. Is there, in your view, a lawfulness issue at stake in this

scenario? Motivate your answer.
Ulterior purpose or motive

Administrative action may be reviewed if it was taken ‘for an ulterior purpose or motive’. Powers
conferred upon ADMs must be exercised in the public interest and not for the personal advantage of
the officials who wield them. Where an authority exercises its powers for an ulterior purpose an
abuse of power occurs or the authority is frustrating or obstructing the authentic purpose for which
power was conferred. Powers given to a public body for one purpose cannot be employed for an
ulterior purpose that was not contemplated by the legislature at the time when the powers were
conferred (Devenish).
Source: https://www.namibian.com.na/index.php?id=1670&page=archive-read
Hailulu v The Director of the Anti-Corruption Commission and Others (A

383/2008) [2013] NAHCMD 205 (19 July 2013).
1. What was decisions taken by the ACC in this set of facts?
2. Does a decision by the Director of the ACC amount to an administrative action? Ex plain
yourself fully.
3. Assuming that a decision of the ACC Director does not amount to an administrative action,
how then did the court go about to review his decision?
4. What were the reasons why the court set aside the decision of the ACC Director?
12.2 Bad faith (mala fides)

If an ADM takes an administrative decision in bad faith that decision is subject to review. Bad faith
refers to fraud or dishonesty. In the context of administrative law, the conscious or knowing use of
power by the ADM for ends that are prohibited by law.
Thinking Point:
1. What does this ground of review entail? Explain with reference to case law.
Kamuhanga NO v The Master of the High Court of Namibia and Others (A

70/2012 ) [2012] NAHC 248 (27 September 2012
2. What was the abuse of power at issue before the court?
3. What was the decision of the court?
4. What was the reasoning behind this finding?
Hailulu v The Prosecutor-General (A52-2010) [2014] NAHCMD 151 (30

April 2014)
4. What was the reasoning behind its findings?
Thinking Point:
1. Compare the views of the different scholars on dishonesty being

a ground of review.
n
2. In your own opinion, should dishonesty be considered as a
separate ground of review? Motivate your answer.
12.3 Failure to apply the mind

When we say that the ADM has failed to apply his or her mind it means that either the ADM has
failed to exercise the authority conferred upon the ADM at all or the failure of an ADM to exercise
such power properly. Many a time failure to apply the mind overlaps with other grounds of review
and as such there is not a precise meaning of failure to apply the mind. In Viljoen v Chairperson of
the Immigration Selection Board and Another (A 149/2015) [2017] NAHCMD 13 (26 January 2017)
the court made reference to the South African case of Johannesburg Stock Exchange v
Witwatersrand Nigel the learned judge Corbett found:
“….that in order to establish the grounds of review you must show that the administrative official
failed to apply his mind to the relevant issues in accordance with the behests of the statute and the
tenets of natural justice.”
Failure to apply the mind is a broad umbrella ground of review which adds a few other “failures” to
it. We will discuss these “failures” now.
12.3.1Failure to decide or consider

ADMs are have powers to act conferred upon them by enabling provisions. But what happens if they
do not act upon such powers? Under the common law, powers that have been conferred upon
ADMs are inevitably accompanied by an implied duty to exercise the power. It is the duty of an
official who has the discretion to grant or refuse an application to either grant or refuse such
application. One cannot simply decline to act or decide.
Tumas Granite Close Corporation v Minister of Mines and Energy and

Another (A 257/2011) [2012] NAHC 330 (06 December 2012);
1. What was the administrative law issue at stake in this matter?
To further understand our law on failure to decide by an ADM read the

following case:
The Municipal Council of Gobabis v Smith (A 36/2014) [2014] NAHCMD

361 (27 November 2014).
12.3.2 Failure to act within reasonable time

You have already noted that, the failure to take action or make a decision is itself a ground of review.
It has always been possible to obtain a mandamus forcing a slow or reluctant administrator to take
action or make a decision. For instance, in Cape Furniture Workers’ Union v McGregor NO 1930 TPD
682, 686 the court held:
‘where a statute requires an official to give a decision within a reasonable time, and he fails to do so,
this court will order him to carry out his duties, even though there has been no direct refusal on his
part to do so’.
Read the following case and attempt to answer the questions that
follow:
Gawanas v Government of the Republic of Namibia (SA 27/2009) [2012]

NASC 1 (03 April 2012);
1. What was the administrative law issue at stake in this matter?
2. Why and how does an ADM’s conduct in such instances amount to abuse of discretion?
3. What was the decision of the court in this matter?
Read Centani Investment CC v Namibian Ports Authority (NAMPORT) &

Another (A 247/2011) [2013] NAHCMD 235 (05 August 2013), to
supplement and deepen your understanding for this ground of review.
12.3.3 Taking irrelevant factors into consideration

We noted that ADMs must exercise the power that is conferred upon them and that they must at
least consider matters brought before them. A question thus arises what should the ADM consider
so as to make a decision?
Often when ADMs are given wide discretionary powers the enabling legislation may contain
guidelines to be followed by the ADM. We can refer to these guidelines as relevant considerations
and failure by the ADM to consider such considerations is in itself a ground of review.
Often the enabling provision may say “…..before X does A he or she must establish if any of 1, 2, 3 or
4 have been established.” If the ADM then does A without considering if 1, 2, 3 or 4 are present then
the ADMs decision would have been taken without taking into account relevant considerations and
thus making it subject to review. We refer to such relevant considerations as mandatory
considerations as they are derived from enabling provisions either expressly or impliedly. If the
enabling provisions do not specify any considerations the ADM has to follow the courts may decide
on the relevant considerations.
Irrelevant considerations on the other hand are matters which are not only ‘not mandatory’ but
which are in fact prohibited from being considered in terms of the law.
Permissible considerations- are an often wide range of matters which lie between mandatory and
prohibited considerations – that is, factors ‘which the decision-maker may weigh or disregard
without committing an error of law.
Read the following cases and attempt to answer the questions that
follow
New Era Investment (Pty) Ltd v Roads Authority and Others ( A 05/2014)
[2014] NAHCMD 56 (20 February 2014)
New Era Investment (PTY) LTD v Roads Authority and Others (SA 8/2014)
[2017] NASC 36 (08 September 2017)
1. What was the issue in dispute in this matter?
2. Briefly discuss irrelevant considerations as a ground of review and show how this was
relevant in this case.
3. How did the two courts approach the issue of irrelevant considerations in this matter?
Research Namibian jurisprudence dealing with irrelevant considerations.
12.3.4.Fettering
A discretion may not be unduly limited or ‘fettered’ by its holder. When an ADM fetters his or her
decision he or she imposes limits on his or her own discretion by adhering rigidly to policies or
promising, in a contract or otherwise, that he or she will act in a certain way. In study unit 10 we
learned that unlawful dictation prevents the full exercise of discretionary powers by the ADM.
Fettering is similar to unlawful dictation. In the case of fettering, however, you will notice that it
does not involve an unauthorised ADM taking a decision on behalf of an authorised ADM. In this
instance, the authorised ADM bases his/her decision on the policy or views of others.
Although an ADM may properly be influenced by policy considerations and other factors, he or she
must put his or her mind to the specific circumstances of the case and not focus blindly on a
particular policy to the exclusion of other relevant factors. The ADM may also fetter his/her
discretion through contract or one size fits all.
Municipality of Walvis Bay and Another v Respondents set out in

annexure A (SA 20-2006) [2007] NASC 4 (19 November 2007)
1. Briefly summarise the fact of this case?
2. Briefly discuss fettering as a ground of review and show how this was relevant in this case.
3. What type of fettering, if at all, was present in this case?

4. How did the Supreme Court decide the issue of fettering in this matter?
5. What was the reasoning behind the court’s finding?

For further understanding read the following cases on fettering:
Erongo Regional Council and Others v Wlotzkasbaken Home Owners

Association and Another (SA 6/2008) [2009] NASC 2 (17 March 2009);
Chico/Octagon Joint Venture Africa v Roads Authority (HC-MD-CIV-MOT-

GEN-2016/00210) [2016] NAHCMD 385 (8 December 2016);
Chico - Octagon Joint Venture v Roads Authority (SA 81 - 2016)[2017]

NASC (21 August 2017).
12.3.5 Arbitrary and capricious decision-making

It must be clear by now that the ADM cannot exercise power in whatever manner s/he deems fit.
What then happens when an ADM makes a decision without reasonable grounds or adequate
consideration of the circumstances? Such action is said to be arbitrary and capricious and is subject
to review. Arbitrary and capricious decision making can be defined as: doing something according to
one’s will or caprice and therefore conveying a notion of a tendency to abuse the possession of
power.
When they take decisions ADMs must establish a rational connection between the facts before them
and the decision taken. In the absence thereof, their decision is would be arbitrary and capricious.
That would result in a clear error of judgment. An action not based upon considerati on of relevant
factors and which is so arbitrary, capricious amounts to an abuse of discretion.
A stated by Hoexter “at common law, action is said to be arbitrary or capricious when it is irrational
or senseless, without foundation or apparent purpose”. It worth noting that that this ground of
review (failure to apply one’s mind) overlaps with several others such as ulterior purpose, bad faith
and irrationality. Thus, arbitrariness itself, seldom appears as the sole or even the most obvious
ground for setting aside an administrative decision.
Read the following case and attempt to answer the questions that
follow
The Medical Association of Namibia v The Minister of Health and Social

Services (A 217/2012) [2013] NAHCMD 362 (27 November 2013).
1. What was the administrative decision taken in this case?
2. Explain in detail why and how arbitrary and capricious decision-making was at issue in this
case.
3. What was the finding and order of the court in this matter?
4. Why did the court come to this conclusion?
5. On the basis of this judgment, survey Namibian jurisprudence for instances (examples)
where the court set aside an administrative decision using this hybrid ground of review.
12.3.6 Fraudem Legis

Read the following real life scenario extracted from a research report on
sex work in Namibia done by the Legal Assistance Centre. The report is
titled, Whose Body Is It.
Case Study / Sex Workers Searching for Legal Safety
Example
“We are suffering!” This is the first thing Dorina says when I ask her
about her life as a sex worker.
She has been working as a sex worker since she was sixteen years old.
She was being raised by her grandmother in Katutura but when her
grandmother died of AIDS, she felt that she had no where to turn but
to the streets. Dorina is now twenty-one and the harsh life she leads is
beginning to show on her face. She looks old and tired but she is eager
to tell her story so that “people will understand how hard it is for us”.
She complains that it is dangerous to work on the streets of Windhoek
because of the police, violent clients, and HIV.
The police are a constant concern. Dorina has been harassed and
beaten by them, and on more than one occasion, she has been forced
to have sex with the police for free in order avoid being arrested. She
has been arrested three times. Once she was held for several hours
and then let go without explanation. Another time, she had to pay a
“fine” before being released.
Source: Legal Assistance Centre
1. What was the administrative decision taken in this scenario?
2. How would you describe the exercise of power in this

scenario?
3. How, in your opinion, does this form of abuse of power

differ from the other forms discussed earlier?
In the given scenario it is clear that the police officers are abusing their power. This form of abuse of
power is known as acting in fraudem legis. This roughly translated means “to defeat the law”. When
exercising power in fraudem legis the ADM deliberately and intentionally evades the provisions of
the empowering statute. In Dadoo Limited v Krugersdorp Municipal Council 1920 AD 530 the court
described such exercise of power as follows:
“An examination of the authorities therefore leads me to the conclusion that a transaction is in
fraudem legis when it is designedly disguised [emphasis added] so as to escape the provisions of the
law, but falls in truth within these provisions.” – par. 547.
From this it is clear that a decision is in fraudem legis when it is designed as if it is fulfilling the
provisions of the law yet it is being used to achieve a purpose other than the one intended by the
law.
Read the following cases and attempt to answer the questions that
follow:
i) Government of the Republic of Namibia v Getachew (SA

21/2006) [2008] NASC 4 (15 April 2008).
ii) Free Press Of Namibia (PTY) LTD v Cabinet for the Interim Gover
nment of South West Africa [1987] 4 All SA 63 (SWA).
Questions:
1. What were the administrative decision taken in each of these

cases?
2. Explain in detail how and why exercising power in fraudem legis

was at issue in each of these cases.
3. What were the findings and orders of the court in these

matters?
4. Why did the court come to these conclusions?
Unit summary
In this study unit you learned that the ADM may abuse his or her power
in various ways. We highlighted the requirement for the ADM to
exercise his/her power in good faith – at all times. Administrative justice
demands that where a power is exercised for an ulterior motive or
purpose, in mala fide, fraudulently, or taking irrelevant factors into
consideration such a decision will be regarded as unlawfulness. Such a
decision will be inconsistent with article 18 of the Constitution and will
be declared null and void by a court of law upon review.
This study unit concludes our discussion on the right to lawful

administrative action as covered over study units (10, 11 and 12). In the
next study unit we will examine the right to fair administrative action.
References

Amoo, S.K. (2008). An Introduction to Namibia Namibian Law: Materials

and Cases. Windhoek: Macmillan Education Namibia Publishers
References
Devenish GE, K Govender& D Hulme. 2001. Administrative Law & Justice
In South Africa. Butterworths: Durban
Unit 13
The Right to Fair Administrative Action
13.1 Introduction
Article 18 of the Constitutions guarantees to everyone the right to fair administrative action. This
right requires administrative decision-makers (ADMs) to act fairly. What does a right to fair
administrative action entail and why is it so important? You will see that this right is embedded in
the common law principles or rules of natural justice. This right is, traditionally, associated with
procedural fairness. For instance, a strict application of the procedural fairness doctrine does not
extend issues of fairness to ruling-making. However, the idea of restricting notions of fairness to
procedures only is currently challenged. We will, however, not address that debate in this study unit
though.
In the previous units we saw that the right to lawful administrative action, essentially, seeks to
establish to what extent the administrative action taken overlaps with the empowering provision. In
the case of procedural fairness, the focus is on whether or not the ADM followed a fair procedure in
arriving at the said decision. But, what do we mean when we refer to a fair procedure entail? This,
and other related questions are answered in this study unit.
 Discuss the meaning and elements of the audi alteram partem

requirement in terms of the common law;
 Discuss the meaning and elements the nemo iudex

Outcomes requirement in terms of the common law;
 Discuss the meaning and elements the evidence-rule in terms

of the common law;
 Distinguish between reasons, findings and information and to
describe the nature of each;
 Indicate whether any duty to supply reasons existed at
common law;
 Explain how the courts developed the common law in respect
of the granting of reasons for administrative action;
 Critically discuss the application of the legitimate expectation
doctrine in Namibian administrative law
Hoexter, C (2012) Administrative Law in South Africa Second Edition pp.

362 – 378; and pp.443 – 459.
d reading
Edition pp.145-168
Additional reading
Audi rule: Let the other side be heard as well.
Nemo iudex rule: No-one should be a judge in his/her own case.
Bias: An inclination or prejudice for or against one

Terminology
person or group, especially in a way considered to
be unfair.
Adversarial: Involving two people or two sides who oppose

each other.
Pecuniary: Relating to or consisting of money.
Mr. Simaata, a music teacher at the Havana Secondary School (HSS) is

suspected from stealing from the school. HSS is considered amongst the
best performing state schools.
Case Study / Mrs. Bigmouth, the principal of the school summons Mr. Simaata to her
Example office and hands a letter of suspension. The suspension letter informs
Mr. Simaata that a disciplinary committee will sit in two weeks to
determine whether he should continue be a teacher at the school. The
committee comprises Mrs. Bigmouth, the Permanent Secretary of the
Ministry of Education and a retired teacher of the school.
At the hearing Mr. Simaata hears the charges against him for the first
time. He asked for an adjournment but that is refused. The hearing
continues. His requests to call witnesses and to cross-examine the
school’s witnesses were refused. One month later the school finds the
charges substantiated and his employment is terminated.
Mr. Simaata subsequently finds out that, first, one of the committee
members, the retired teacher, is the husband of the teacher at the
school who had accused him of the theft; and, secondly, Mrs. Bigmouth
wants his post vacant to offer the job to her close friend.
1. List some of the issues in the scenario which, in your opinion, you would consider as
irregular?
2. Why?
3. If you were to be the ADM how would you handle such a situation?
4. Why?
13.2 Procedural fairness: some central themes
Article 18, as noted earlier stipulates fairness as a prerequisites for administrative validity. Fairness,
in this context, has come to be accepted as procedural fairness. Procedural fairness refers to the
procedures followed by ADM in arriving at his/her decision. It does not refer to the actual outcome
reached.
Fairness not static. It is contextual. The right to procedurally fair administrative action is embodied
in the rules of natural justice. The rules of natural justice is a collective term denoting the common
law provisions applicable to administrative inquiries and hearings.
The content of the rules natural justice or procedural fairness embodied in the following sub -rules:
1. The hearing (audi)-rule ;
2. The bias (nemo iudex) -rule; and
3. The evidence-rule.
Source: Fikameni Mathias, Limba Mupetami, The Namibian, 2014.

13.2.1 The audi-rule
The hearing-rule is commonly known by the Latin maxim ‘audi alteram partem’ rule. Literally
translated, audi alteram partem means ‘to hear the other side’. The content of this rule, essentially,
dictates that the person to be affected by a decision must, at the very least, be:
 given timely and proper notice of intended administrative action;
 notified of all facts and considerations against him/her;
 given an opportunity to present his/her case (i.e. legal representation, personal appearance,
calling witnesses, cross-examining persons, and to adduce evidence in support of his/her
case)
Make it a point to understand the elements of the audi alteram partem

requirement in terms of the common law and that you can apply these
to practical situations.
Reread the scenario given at the beginning of this study unit.
1. What is the administrative action taken in the scenario?
2. Discuss, why in your opinion, the decision taken is

incompatible with the audi-rule/requirement in terms of the
common law.
Chaune v Ditshabue (A5/2011) [2013] NAHCMD 11 (22ND APRIL 2013)
1. Is there an administrative action present in this set of facts? Discuss fully.
2. What was the fairness issue before the court?
5. Based on this decision, do the requirements of procedural fairness apply to Traditional

Authorities? Explain.
To enhance your understanding of the application of the audi -rule you
strongly urged to read the following cases:
Skorpion Mining Company (Pty) Ltd v Road Fund Administration (I 2063-

2014) [2016] NAHCMD 201 (12 July 2016) ;
Pamo Trading Enterprises CC v Chairperson of the Tender Board of

Namibia (A 349/2014) [2017] NAHCMD 268 (18 September 2017).
13.2.2 The bias-rule

The hearing-rules is embodied in the Latin maxim nemo iudex in sua causa rule. This translates “no
one can be a judge in his own case”. This rule requires the ADM to exercise his/her powers in an
impartial or unbiased manner. As the saying goes, ‘not only must justice be done; it must also be
seen to be done’. The rule against bias prohibits both real and perceived bias. Make sure to know the
meaning and difference between the two. The types of biases, as explained by Hoexter, are:
 pecuniary bias
 personal bias (family, friend, enmity, etc.)
 bias as to subject matter
 “official” or “institutional” bias (bias at a structural level)
Once again, reread the scenario given at the beginning of this study
unit.
Discuss, why in your opinion, the decision taken is incompatible with

the hearing-rule/requirement in terms of the common law. In your
answer explain:
i) Whether this is a case of real and perceived bias?
ii) The type of bias present. Why?

Self-research Namibian jurisprudence on procedural fairness as it
relates to compliance or non-compliance with the hearing/bias rule. In
this regard, find cases involving each of the types of biases referred in
this study unit. In your summaries, also indicate whether the bias
complained of, was real or perceived. Also, who bears the onus for
proving bias? Lastly, make sure to include the case of Sheehama v
Mahali NO (A93-2006) [2013] NAHCMD 372 (19 December 2013) in
your research to enhance your understanding of the topic.
13.2.3 Evidence Rule

The evidence-rule, essentially requires that the decision by the ADM should be based on logical
proof or evidential material. In other words, not on mere speculation or suspicion. It also requires
full disclosure.
Refer again to the scenario given at the beginning of this study unit.
1. Discuss, why in your opinion, the decision taken is incompatible

with the evidence-rule/requirement in terms of the common
law.
2. How, in your opinion, is the evidence-rule related to the right

to access to information.

In Chairperson of the Tender Board of Namibia v Pamo Trading
Enterprises CC (SA 87-2014)[2016 NASC (17 November 2016) the
Supreme Court held at paragraph 56:
“Having found that the respondents did not establish a right to access
to the minutes under Art 18 because of the sketchy and unsupported
basis raised in the founding papers does not mean that Art 18 cannot
found a basis a claim for documentation relevant to administrative
action taken by a body or official where the refusal to provide
documentation infringes on the right to fair and reasonable
administrative action. It would depend upon the facts and
circumstances. It is not necessary for the purposes of this judgment to
attempt to delineate the circumstances under which such a claim can
validly be made.”
1. Explain how the court in this case answered the question whether
article 18 of the Namibian Constitution affords aggrieved persons a
right of access to documentation of administrative bodies?
2. What was the decision of the court in this regard?
4. What is the significance of this finding for the link between

administrative justice and access to information?
13.3 The right to be given reasons

Article 18, unlike its sister-article/section, in the South African Constitution does not provide for a
right to given reasons for an administrative decision. For instance, section 33 of the SA Constitution
states in term terms that:”Everyone whose rights have been adversely affected by administrative
action has the right to be given written reasons”. Does this mean that the administrative decision-
makers in Namibia are not obliged to give reasons for their decisions? Most definitely not! That
would fly in the face of the requirement of fairness as entrenched in article 18.
In the Immigration Selection Board v Frank & another 2001 NR 107 (SC) case, the Supreme Court, at
175 B-C, made it clear that article 18 is to be interpreted ‘broadly, liberally and purposively’. To this
end, this court found that implicit in article 18 is the obligation on the part of an administrative
organ to give reasons for its decision. For the avoidance of doubt the court forcefully stated:
“There can be little hope for transparency if an administrative organ is allowed to keep the reasons
for its decision secret.”
The granting of reasons for administrative decisions is also necessary for determining whether the
requirements of fairness and reasonableness as per article 18 have been complied with. Compliance
with these requirements (fairness and reasonableness),in the view of the court:
“can more often than not, only be determined once reasons have been provided” – paras. 174J-175A.
Thinking Points:
Describe each of the following concepts and then distinguish them:
a) Reasons
n
b) Findings, and
c) Information.
It is not enough for the administrator to simply furnish reasons for his decision. The reasons must be
adequate or proper. Inadequate reasons are not reasons at all. Is very important that you know and
can differentiate between these concepts.
Read the cases listed below, and write short notes on what the courts
said about adequacy of the reasons given by the administrative-
decisions maker (ADM) in each.
Cases:
Minister of Health and Social Services v Lisse ( SA23-04) [2005] NASC 8

(23 November 2005);
Kaulinge v Minister of Health and Social Services 2006 (1) NR 377 (HC).

13.4 Legitimate expectations
13.4.1 What is a legitimate expectation?
Consider the following:
“Good government depends in large measure on officials being believed by the governed. Little could
be more corrosive of the public’s fragile trust in government if it were clear that public authorities
could freely renege on their past undertakings or long-established practices.” - Søren Schønberg,
Legitimate Expectations in Administrative Law 118 (2003).
Read the following cases:
Administration of Transvaal and Others v Traub and Others 1989 4 All SA

924 (AD)
Westair Aviation (Pty) Ltd v Namibia Airports Co Ltd, 2001 NR 256 (HC);
Lisse v The Minister of Health and Social Services, 2004 NR 107 (HC).
Minister of Mines and Energy and Others v Petroneft International Ltd

and Others 2012 (2) NR 781 (SC).
Questions:
1. Give a briefly development of the doctrine of legitimate

expectation?
2. The doctrine of legitimate expectation essentially extents the

rules of natural justice. Discuss
3. From the three cases given, explain the following:
a) The instances which, generally, give rise to a legitimate

expectation; what was the instance in each of the cases
respectively?
b) What are the elements/requirements for a legitimate

expectation? Were these elements met in each of these
cases?
13.4.2 Substantive legitimate expectation
Currently, the law governing legitimate expectation in Namibia grants a procedural benefit only. In
other words, if the aggrieved person meets the requirements for a legitimate expectation, as noted
above, s/he is entitled to a hearing only. Meaning, s/he is not entitled to a specific performance, also
called substantive legitimate expectation.
A substantive legitimate expectation arise when an individual has an expectation that a favorable
decision will be made or an expectation of a substantive benefit. For example an expectation that an
employment contract will be extended, or even that a permanent residence will be granted. In
essence this would mean that where a person has a legitimate expectation, the court should be able
to enforce the expectation itself as opposed to simply force the administrator to follow a particular
procedure if the expectation is to be disappointed (Quinot 2015:153) .
In Namibia the possibility of the substantive protection of a legitimate expectation remains

somehow blurred.
Read the following cases and answer the questions related thereto:
Negonga and Another v Secretary to Cabinet and Others (LCA 58/2015)

[2016] NAHCMD 19 (06 June 2016);
Minister of Health and Social Services v Lisse ( SA23-04) [2005] NASC 8

(23 November 2005)
Van Rooyen v University of Namibia 2004 NR 150 LC.

Questions:
1. Was the concept of ‘substantive legitimate expectation’

expressly canvassed and/or referred to it in any of these cases?
2. Summarise the facts of each of these cases in your own words

and indicate what the expectation of a substantive benefit was
in each?
3. What was the decision of the court in each case?
4. What was the reasoning behind finding?
5. Is the Van Rooyen matter is case of substantive legitimate

expectation or one of estopple? What is the difference
between the two concepts?
13.5 Fairness and voluntary associations
This topic was dealt separately in study unit 6. Everything mentioned and explained in that unit
remains valid and will not be repeated here. It is enough to state that you must make sure that you
understand the link between administrative justice and voluntary associations. At the very minimum
you should be able to understand:
 When;
 Why; and
 How, our courts have are extending the principles of administrative justice to voluntary
associations.
Remember, a decision by a voluntary association to discipline, suspend,

expel and/or ex-communicate its member is not an administrative
action! As such, article 18 doesn’t apply to them.
13.6 Fairness and contract
This topic was dealt separately in study unit 7. Everything mentioned and explained in that unit
remains valid and will not be repeated here. It is enough to state that you must make sure that you
understand the link between administrative justice and government/public contracts. At the very
minimum you should be acquainted with the two dominant schools of thoughts which inform the
court’s approach when it comes to fairness and contract.
In sum, in terms of the public law approach the rules of natural justice can be made to apply to
government/public contracts. On the other hand, the private law approach views such contracts as a
private law matter and, accordingly, excludes the application of the rules of natural justice from such
contracts.
Thinking Point:
Do you agree with Hoexter’s criticisms regarding the two dominant

approaches followed in dealing with fairness and contract? Substantiate
n your answer.
Unit summary
In this unit you learned that we have a right to procedurally fair
administrative action. One way we discussed of attaining fairness is
through the rules of Natural Justice which encompass the audi rule and
the nemo iudex rule. You learned that the audi rule means that an
individual has a right to be heard and that this right includes proper
notice of intended action, reasonable and timely notice, personal
appearance, legal representation, evidence/cross examination and a
public hearing. Furthermore you learned of the nemo iudex rule or just
the rule against bias and that “justice is not only done, but seen to be
done” We discussed actual bias and apparent bias and the guidelines
established to determine the bias of an ADM. The guidelines being,
there must be suspicion that the judicial officer might be biased, the
suspicion must be that of a reasonable person in the position of the
accused or the litigant, the suspicion must be based on reasonable
grounds, the suspicion is something that the reasonable person would
have. If the suspicion is something the reasonable person “might” have
such suspicion will not suffice. Lastly you learned the four forms of bias
which are pecuniary/financial interest, personal interest, bias on the
subject matter and official or institutional bias.
References

References
Constitution (Third Edition). Durban: LexisNexis Butterworths.
Unit 14
Reasonableness
Introduction
Article 18, as you know by now, lists three requirements for administrative validity, namely,
compliance with the applicable legislation and the common law (lawfulness), fairness and
reasonableness. In the previous study units we dealt extensively with the requirements of lawfulness
and fairness.
This study unit deals with the third and last requirement for administrative validity i.e.
reasonableness. What is the meaning of reasonableness? Is reasonableness static or flexible? What
factors must be taken into consideration to determine whether an administrative action is
reasonable or unreasonable?
These and other questions are answered in this study unit. With the aid of case law, this study unit
seeks to clarify this vague but very important obligation administrative officials and administrative
bodies must comply with in terms of article 18. The administrative action could be found to be
unreasonable even though it was lawful and fair. The converse is not through though. Meaning, an
unlawful decision can never be reasonable. Similarly, an unfair decision can also never be
reasonable.
Discribe the concept “reasonableness”;
Reflect on the common law position of unreasonableness;
Discuss the position of unreasonableness as a ground of review in the

Outcomes
Constitutional era;
describe the court’s reading on the requirement of reasonable

administrative action;
Expand on the concepts “rationality” and “proportionality” in relation to

reasonable administrative action;
Outline and explain the factors influencing “reasonableness” review.
Hoexter, C. (2012). Administrative Law in South Africa. Cape Town: Juta
Trustco Ltd t/a Legal Shield Namibia and Another v Deeds Registries
Regulation Board and Others 2011 (2) NR 726 (SC).
Prescribed reading
reasonable: Sensible, rational, open to reason.

proportionality: Forming a relationship with other parts or quantit
ies; being in proportion.
Terminology
rationality: The quality of being based on or in accordance
with reason or logic.
symptomatic: Serving as a symptom or sign, especially of

something undesirable.
Vague: Not having a precise meaning.

Edition pp.169-192.
Additional reading
14.1. Setting the scene: ‘Wednesbury unreasonableness’
The City Council of Windhoek granted a license to Company ABC to open

a movie theatre in the city. The licence was granted subject to a
condition that:
Case Study / “No children under 15 years of age shall be admitted to any
Example entertainment on Sunday, whether accompanied by an adult or not.”
Thinking Points:
1. What do you think about the license condition? Fully explain yourself.
2. Do you regard the condition as reasonable or unreasonable? Why?

Discussion
3. Research on the meaning and content of the Wednesbury
unreasonableness test.
The facts in the scenario are from an old English case: Associated
Provincial Picture Houses Ltd. v. Wednesbury Corp.
Make it a point to read this case to better understand the concept of
Note it! ‘symptomatic unreasonable approach’.
14.2. Symptomatic unreasonableness
At common law, reasonableness on its own is not a ground to challenge an administrative action.
The common position on reasonableness is captured in the case of Kruse v Johnson [1898] QB 91 at
99-100 where it was held:
“Nowhere has it been held that unreasonableness is a sufficient ground for interference; emphasis is
always placed upon the necessity of unreasonableness beings so gross that something else can be
inferred from it, either that it is inexplicable except on the assumption of mala fide or ulterior
motive…or it mounts to prove that the person on whom the discretion is conferred has not applied
his/her mind to the matter.”
From this it can be seen that the common law approach to reasonableness is narrow. The court
would only interfere with the ADM’s decision if it was convinced that “no reasonable authority
[ADM] would have adopted such a decision”. In terms of the common law court are careful not to
interfere with the merits or substance of the decision. Interference is only allowed in extreme
circumstances. This is what is meant with the so-called ‘gross or symptomatic unreasonable
approach’. Presence of “gross unreasonableness” was indicative of issues such bad faith, ulterior
motives, failure to apply on the side of ADM.
Furthermore, the requirement for reasonableness was also complex. It was applied differently with
reference to the so-called classification of functions approach (remember the classification of
administrative acts in unit 4 of this study guide). In other words, the test for reasonableness would
differ depending on whether the administrative action was judicial, legislative or purely
administrative acts
For instance, in the case of legislative administrative action the position was explain as follows in
Kruse v Johnson:
“If, for instance, [by-laws] were found to be partial and unequal in their operation as between
different classes; if they were manifestly unjust; if they disclosed bad faith; if they involve such
oppressive or gratuitous interference with the right of those subjects to them as could find no
justification in the minds of reasonable men, the Court might well say, ‘Parliament never intended to
make authority to make such rules; they are unreasonable and ulta vires” -Kruse v Johnson [1898] QB
91 at 99-100.
In the case of judicial administrative action:
“The common law seems to support a rule that proceedings before an inferior court or an
administrative tribunal may be set aside if there is ‘no evidence’ to justify the tribunal’s findings” –
per Mpemvu v Nqasala [1909] 26 SC 531 at 533-4.
Lastly, in the case of administrative decisions (pure) administrative action, as noted above:
[…] emphasis is always placed upon the necessity of unreasonableness beings so gross that
something else can be inferred from it, either that it is inexplicable except on the assumption of mala
fide or ulterior motive…or it mounts to prove that the person on whom the discretion is conferred has
not applied his/her mind to the matter.” (Kruse v Johnson [1898] QB 91 at 99-100).
This question remains: did article 18 change the common law approach to reasonableness?
14.3. Reasonableness and the Constitution
Article 18 lists reasonableness an independent ground for administrative validity. There is no further
requirement attached to ‘reasonableness’. ‘Reasonableness’ is not qualified in any way. Article 18,
arguably, requires the ‘simple reasonableness test’ as opposed to the ‘Wednesbury
unreasonableness test’.
Thinking Point:
Do you think that the article 18 requirement of reasonableness is less

stringent than that of the common law? Fully explain your answer.
n
In Trustco Ltd t/a Legal Shield Namibia and Another v Deeds Registries Regulation Board and Others
(hereafter the Deeds Registries’ Tariff case) the Supreme court had an opportunity to provide clarity
on the reasonableness requirement of article 18. According to the Court:
“What will constitute reasonable administrative conduct for the purposes of art 18 will always be a
contextual enquiry and will depend on the circumstances of each case.” – at par. 31
The test for reasonableness, as explained by Quinot, is somewhat ci rcular in the sense that: a
decision is unreasonable if it is one that a reasonable decision-maker could not reach. In other
words, the unreasonableness of the decision depends on a decision as to the reasonableness of the
decision-maker in the circumstances (Quinot). At the end of the day, according to Justice O’Regan:
“[…] the question will be whether, in the light of a careful analysis of the context of the conduct, it is
the conduct of a reasonable decision-maker.” - at par. 31.
Despite the vagueness of the concept of reasonableness, the Deeds Registries’ Tariff case provides
some pointers indicating that the determination of a reasonable decision will depend on the
circumstances of each case. In this case the court list various factors which will be relevant in
determining whether a decision is reasonable or not. These factors, include:
 the nature of the administrative conduct;
 the identity of the decision-maker;
 the range of factors relevant to the decision;
 and the nature of any competing interests involved;
 as well as the impact of the relevant conduct on those affected.
Read paragraphs 32 to 35 of the Deeds Registries’ Tariff case.
Evaluate how to court went about to determine whether the fixed

sliding scale tariff for conveyancing fees amounted to unreasonable
administrative action in breach of article 18.
Reasonableness is further informed by two other issues worth stressing, namely, rationality and
proportionality.
14.4 Rationality
As Hoexter puts it, for a decision to be considered rational means that a decision must be supported
by the evidence and the information before the administrator as well as reasons given for it. In other
words the test will be, would a reasonable person would have arrived at the same decision as
arrived by the administrator based on the facts present. Furthermore, for a decision to be rational it
must also be objectively capable of furthering the purpose for which the power was given and for
which the decision was purportedly taken. In simpler terms there must be a rational connection
between the means (the evidence and all the necessary considerations) and the decision taken.
You should also note that the justification for the connection must be objectively rational and not
subjectively rational. The test is therefore that a reasonable observer must regard the connection as
rational, it is not sufficient if the decision-maker thinks the decision is rational.
The concept of rationality is illustrated in Uffindell t/a Aloe Hunting Safaris v Government of Namibia
and Others 2009 (2) NR 670 (HC).
Read the Uffindell case. Discuss why the Court in this case found that
the Minister's decision to sell the concession by private treaty was
rational and therefore reasonable under the circumstance.
Activity
Feedback
14.5 Proportionality
Proportionality is associated with the saying: ‘one ought not to use a sledgehammer to crack a nut’.
The essential elements of proportionality as explained by Hoexter are:
 balance;
 necessity; and
 suitability.
Suitability: The element of suitability requires that lawful and appropriate measure to be taken. It
looks at whether the measure in question suitable or effective to achieve the aim.
Necessity: Looks at whether the decision taken was indeed necessary or whether a less onerous
alternative could have been used.
Balance: Looks to see whether there has been a disproportional interference with the claimant’s
rights. The balance element requires that even though it may be suitable and necessary,
administrative decision taken must not place an excessive burden on the individual which is
disproportionate in relation to the public interest at stake.
Proportionality has been recognised sometimes expressly and sometimes implicitly in Namibian
administrative law jurisprudence.
Make a catalog of Namibian administrative law cases which explicitly

invoke proportionality as an element of reasonableness.
14.6 Reasonableness and respect
Reasonableness as a ground of review, as noted by Quinot, has often been distrusted on the basis
that it raises the prospect of judges unacceptably interfering in the sphere of the executive by
setting aside administrative decisions on this basis. Accordingly, reasonableness as a ground for
review was greatly circumscribed under the common law. This brought to the fore the notion of
judicial restraint or deference. Judicial restraint or deference was explained by the Supreme Court of
Appeal of South Africa as:
“[…] a judicial willingness to appreciate the legitimate and constitutionally-ordained province of

administrative agencies; to admit the expertise of those agencies in policy-laden or polycentric issues;
to accord their interpretation of fact and law due respect; and to be sensitive in general to the
interests legitimately pursued by administrative bodies and the practical and financial constraints
under which they operate. This type of deference is perfectly consistent with a concern for individual
rights and a refusal to tolerate corruption and maladministration. It ought to be shaped not by an
unwillingness to scrutinize administrative action, but by a careful weighing up of the need for – and
the consequences of – judicial intervention. Above all, it ought to be shaped by a conscious
determination not to usurp the functions of administrative agencies; not to cross over from review to
appeal.’ - Logbro Properties CC, 2003 (2) SA 460 (SCA).
It is important to note though, that deference not about judicial courtesy or etiquette. It emerges
from principle of the separation of power. Deference or respect is also not about courts throwing in
the towel when confronted with complex decisions. Similarly, deference or respect is also not an ‘all -
or-nothing matter’.
Make it a point to fully grasp the notion of deference or respect in the context of administrative
justice.
Case Study /
Example Elite capture or administrative injustice?
Mr. S applied for a land in June 2012 to the Rundu Town Council (RTC). The application shows that he
indicated that wanted to use the land for business purposes (to erect a block of flats). He now, however,
argues that it was erroneously done since he actually wants to use the piece of land to build a family
house. He further alleges that the piece of land in question previously belonged to his deceased father.
The RTC never replied to Mr. S’ application. In fact, by August 2015 Mr. S still did not receive any official
communication from the RTC regarding his application.
In terms of the local governance structure adhered to by the RTC each of the suburbs falling within the
boundaries of the town is having a Local Suburb Committee (LDC). The LDC, in terms of the rules and
protocols of the Town Planning Ordinance, serves as liaison between the Town Council and the residents
of each of the suburbs. The mandate of a LDC is to advice the Town Council on development issues s uch
as water provision, sanitation, roads infrastructure, etc. within their respective suburbs. The LDC has no
mandate to allocate land to local residents.
In March 2012, Mr. A, the chairperson of the LDC for Mr. S’ suburb, allocated the piece of land in
question to Mr. S. Mr. A reportedly went to physically point out the boundaries of the piece of land to
Mr. S. Immediately thereafter Mr. S allegedly erected a concrete fence around it to demarcate his
‘land’. It is after this very demarcation that Mr. S went on to officially apply (June 2012) for the land as
per the provision of the Local Authorities Act.
The RTC view this matter in a serious light. They aver that Mr. A had no authority to allocate land. In
their view, the correct procedures were not followed in this case. 1 In fact, the whole matter, so they
claim, was done in reverse order – occupation before application and approval. Moreso, the piece of
land in question falls within an unproclaimed and unserviced municipality area, outside the boundaries
of the suburb over which Mr. A is the chairperson. Once again, the procedure is that the municipality
would ordinarily first service the land and then put it up for lease or sale – not the other way around.
Most importantly, the piece of land in dispute falls within an area designated for future urban
agricultural development purposes according to the 2015-2040 Structural Development Plan for the
Rundu Town as approved by Council in January 2015.
Further to the reasons given above, the RTC sought and obtained an eviction and demolition order
against Mr. S. The order was served on him in February 2015. In terms of this court order Mr. S must
vacate the land and demolish all structures he erected thereon.
Mr. S has since refused to comply with the eviction and demolition order. In fact, he indicated his
willingness to vacate the land and demolish his structures on condition that the RTC provides him with
an alternative piece of land to buy. Mr. S is adamant that he, if need be, would approach President
Geingob to intervene in this matter should his attempts to get his rightful piece of land fails.
The RTC, on the other hands, rejects this because they argue it would set a precedent for land grabbing.
They also allege that the case of Mr. S is but one of many instances of politically-connected persons in
the town flouting town-planning rules and protocols to serve their own, narrow and self -enrichment
interests.
Answer the following questions based on the given scenario:
1 Ordinarily an application for land is

made to Council; Council then considers the application, makes a
recommendation to the Minister who ultimately approves or disapproves the appl ication in terms of the Local
Authorities Act.
1. Identify all the administrative actions taken in the given scenario. Motivate your answers.
2. Fully discuss standing in respect of each of the following:
2.1 Whether Mr. S has the necessary standing to challenge the decision of the RTC to evict him.
2.2 Will your answer be the same if the ‘dirty hands’ doctrine is applied to this matter? Explain
fully.
2.3 Whether the Affirmative Repositioning (AR) Movement will have the necessary standing to
challenge the decision to evict Mr. S as part of their objective to assist each Namibian to own his/her
piece of land.
3. Critically evaluate, with supporting case law, the lawfulness of each of the following:
3.1 Mr. A’s conduct to allocate the piece of land to Mr. S
3.2 The conduct of the President, assuming that he indeed intervened and instructed the RTC to
allocate the land in question to Mr. S .
3.3 Will Mr. S, in your opinion, succeed if he were to raise estoppel against the RTC? Explain
fully.
4. Mr. S claim that he had a legitimate expectation arising from Mr. A’s conduct. Do you agree?
Why? Why not?
5. Discuss, with reference to decided case law, the reasonableness of each of the following
conduct:
5.1 the RTC’s failure to answer Mr. S’ land application;
Unit Summary
In this unit you learned about reasonableness as an independent ground

of review for administrative validity. We looked at the common law’s
‘symptomatic unreasonableness’ approach compared to the ‘simple
reasonableness’ test. We stressed that article 18 embraced the latter.
Summary
We have seen that reasonableness, generally, is a vague concept. To this
end, the courts have laid down factors to assist in determining the
reasonableness of the administrative action taken. These factors
emphasised the fact that reasonableness is contextual. Other elements
of reasonable are rationality and proportionality.
References

References
Unit 15
Remedies for invalid administrative action
Introduction
There is a dictum in common legal parlance which states: ‘where there is a right, there is a remedy' -
ubi jus ibi remedium. This phrase, as pointed out by Dinah Shelton, suggests that the very notion of
a right is inextricable from having an enforceable claim. In the previous units we have seen that
article 18 entitles everyone with administrative justice rights. These rights, for the avoidance of any
doubt are, the rights to lawful, fair and reasonable administrative action. Article 18, then goes
further to state, unambiguously, that:
“[…] persons aggrieved by the exercise of such [administrative] acts and decisions shall ha ve
the right to seek redress before a competent Court or Tribunal.”
In this study unit we are going to discuss remedies available to aggrieved persons in proceedings for
judicial reviewas provided for in article 18. To this end, we will discuss the main remedies on judicial
review, namely,
 setting aside the irregular administrative action;
 remittal to the administrative decision–maker (ADM) for a new decision to be taken;
 substitution of the correct decision by the court;
 a declaration of rights;
 interdicts; and
 the award of compensation to the affected party.
Discuss the remedies on review and to indicate under which

circumstances each type of order will be made in practice;
Discuss the problems relating to certain remedies;

s
Appraise the adequacy of certain grounds for judicial review.
Hoexter, C. (2012). Administrative Law in South Africa. Cape Town: Juta,

pages 545 – 579.
Prescribed reading

Edition pp.237-273.
Additional reading
Appropriate: Suitable or proper in the circumstances
15.
Compensation: Something, typically money, awarded to someone
Terminology
as a recompense for loss.
Something depending on the context.

Contextual:
Adequate to accomplish a purpose.
Able to change or be changed easily according to

Effective
the situation
Flexible
The act of setting right an unjust situation.
Redress:
Remedy: The way of solving a problem using a decision

made in a court of law.
Costs or expenses that require a cash payment in

Out-of-pocket
the current period or during a project
expenses:
Remedies in proceedings for judicial review
A breach of the right to administrative justice as guaranteed in article 18 entitles an aggrieved

person to seek redress before a competent court or tribunal. Redress in this context means an
‘effective remedy’. In Fose v Minister of Safety and Security 2 Justice Ackermann explained the need
and rational for an ‘effective remedy’ as follows:
“[…] without effective remedies for breach, the values underlying and the rights entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly in a country where so few have the
means to enforce their rights through the courts, it is essential that on those occasions when the
legal process does establish that an infringement of an entrenched right has occurred, it be
effectively vindicated. The courts have a particular responsibility in this regard and are obliged to
“forge new tools” and shape innovative remedies, if needs be, to achieve this goal.”
The purpose of judicial remedies is to ‘pre-empt or correct or reverse an improper administrative

function’, and ultimately to ‘afford the prejudiced party administrative justice, to advance efficient
and effective public administration compelled by constitutional precepts and at a broader level, to
entrench the rule of law’. 3 Importantly, the remedy for a breach of article 18, or any other right for
that matter:
2 1997 (3) SA 786 (CC) at par.69

3 Steenkamp NO v Provincial Tender Board of the Eastern Cape (CCT71/05) [2006] ZACC 16, paras 29-30.
“[…] must be fair to those affected by it and yet vindicate effectively the right violated. It must be just
and equitable in the light of the facts, the implicated constitutional principles, if any, and the
controlling law”. 4
Overall, in determining the appropriate remedy, the approach of the courts, as indicated by Quinot, is
flexible, context-sensitive and pragmatic. The main remedies on judicial review include:
 setting aside the irregular administrative action;
 remittal to the administrative decision–maker (ADM) for a new decision to be taken;
 a declaration of rights;
 the award of compensation to the affected party; and
 interdicts.
15.1 Declarations of constitutional invalidity
An improper administrative action, no matter how blatantly illegal it may appear, continues to have
effect until such time it is declared invalid by the court. This is based on the common law
presumption that all administrative acts are regularly done (presumption of regularity) - omnia
praesumuntur rite esse acta. Once an administrative act is declared invalid by the court it will be
invalid from the moment it (the administrative action) occurred. Such a decision ceases to have legal
effect and it is treated as if it never existed. Invalidity operates with retrospective effect.
1. Explain, and give examples from case law (Namibian) how the
court is going about to ensure that the consequences of
declarations of constitutional invalidity are fairly and
appropriately managed.
2. Discuss, and give examples from case law instances of

subsequent acts not affected by declarations of constitutional
invalidity.
3. Make summaries on the meaning, scope and content of the

doctrine of objective constitutional invalidity.
4 Ibid, par.29.
15.2 Setting aside
In administrative law “setting aside”, as explained by Hoexter, is a logical consequence of declaring

the decision invalid. This remedy, ‘is a simply way to say the decision no longer stands or that is void’
(per Hoexter).
Make your own summaries, with the aid of case law, on the ‘setting
aside’ remedy. In your summaries, highlight the following:
 the consequences of invalid administrative acts;
 instances when the courts will decline to set aside an invalid

15.2 Remitting the case back to the administrator
When the court declares a decision invalid and sets it aside, the courts generally refers the case back
to the decision-maker. In essence, remittal is a default remedy upon setting aside of the
administrative decision. The rationale behind remitting the case back to the administrator is that the
courts respects the separation of power doctrine and therefore reluctant to usurp the decision
making powers that have been delegated to the administrator by the legislature.
A remittal can either be without any instructions or with instructions. Remittal with instructions is
when the court gives detailed directions, for example, directions on when the decision will be made
or which tenders are to be reconsidered.
Make your own summaries, with the aid of case law, on the ‘remittal’
remedy.

15.3 Correcting or substituting
The remedy of substitution is only granted in exceptional cases. In Chairperson of the Immigration
Selection Board v Frank and Another 2001 NR 107 (SC) case, Chief Justice Strydom stated:
“[…] as a general principle the courts are not permitted to substitute their decision for the decision of
the administrator because the discretion is granted to the administrator and to do otherwise will lead
to usurpation of power of the administrator and breach of the principles of separation of power.”
This remedy is, accordingly, exercised sparingly and only when the courts is persuaded that a
decision to exercise a power should not be left the designated ADM.
When will a court correct an administrative decision rather than

remitting it back to the decision-maker? Indicate what the general
principle is and then summarise each of the considerations, also
include examples and case law (Namibian).
15.4 Declaration of Rights
A declaration of rights (also called a declaration order) is a common law remedy that enables the
court to declare the rights of the parties or to state the legal position. A remedy in the shape of
‘declaration of rights’ only pronounces on what is the legal position of an alleged illegal
Discuss, with the aid of case law, when will a declaratory order be
appropriate relief?
15.5 Interdict
An interdict is a decree whereby the administrative organ is ordered to desist from an act or course
of conduct which is causing direct prejudice to the applicant and constitutes an encroachment on his
right (Wiechers 1985:267). It follows that an interdict seeks to protect the applicant from an
unlawful administrative act, by restraining the administrator from pursuing those actions.
The court will not grant a final interdict until it is satisfied that 3 conditions has been met (Hoexter
2012:560);
4. The applicant has a clear (definite) interest being infringed,
5. The interference with the right have actually taken place or reasonably apprehended,
6. There is no other satisfactory remedy available to the applicant.
Explain the four different types of interdicts that may be granted upon
an application for review, as well as the circumstances under which
each would be the most appropriate relief.
Make sure to research Namibian case law for instances where the court
ordered a mandamus, habeas corpus, mandament van spolie, etc. as the
most appropriate relief.
15.8 Payment of compensation
Article 25(4) of the Namibian Constitution empowers courts:
[…] to award monetary compensation in respect of any damage suffered by the aggrieved persons in
consequence of such unlawful denial or violation of their fundamental rights and freedoms, where it
considers such an award to be appropriate in the circumstances of a particular cases.
This notwithstanding, the courts hitherto demonstrated a cautious approach when asked to award
delictual damages arising from an invalid administrative action. Some of the reasons advance for this
approach is that the aggrieved person, usually, have alternative and even more effective remedies
available to his/her disposal. Also, the country’s scarce resources could be best spent by reducing
the systematic causes of administrative malpractices. Generally, the rule is that public policy
considerations did not justify permitting delictual claims for the out-of-pocket expenses of say,
unsuccessful tenderers. However, where unsuccessful tenderers suffered loss as a result of
dishonest or fraudulent conduct by public officials courts have not hesitated to award delictual
damages.
Make your own summaries, with the aid of case law, on ‘compensation’
as a remedy for an invalid administrative action. In your summaries,
highlight the following:
Activity 2
 the general rule governing the awarding of compensation for
invalid an administrative decision;
 whether article 25(4) changed the general rule;
 the opposing views regarding the payment of compensation for

out-of-pocket expenses;
 examples from Namibia case law where the court rejected a

claim for delictual damages arising from an invalid
administrative action;
 examples from Namibia case law where the court awarded a

claim for delictual damages arising from an invalid
Make your own summaries, with examples from case law, on the
remedies of 1) cost orders and 2) contempt of court. In your summaries,
highlight the following:
n 1. the different types of cost orders and the instances when the
court would order each;
2. the importance of contempt of court as a remedy.
.
In this unit you learned that, consistent with the dictum: ‘where there is
a right, there is a remedy', administrative law provides for various
constitutional and common law remedies for breach of the
administrative justice rights guaranteed under article 18. You have
Summary learned that the most common remedies for aggrieved persons, in this
regard, include setting aside, remittal, substitution or correct, a
declaration of rights, interdicts and compensation.
References

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Unit 8

The outline of this unit is as follows:

8.1. The nature and purpose of judicial control

8.2. Obstacles to judicial review.

8.2.1. Legal standing

8.3. Remedies in the proceedings of judicial review.

8.3.1. Setting aside

8.3.2. Remitting the case back to the administrator

8.3.3. Substitution (correction)

8.3.4. Declaration of rights

Upon completion of this unit you should be able to:

 Define the concept judicial control;

 Discuss the rules governing Namibian law on legal standing and

 Identify various judicial remedies available to the applicant;

Identify when each of the judicial remedies is most appropriate.

Quinot, G (Ed) et al. 2015. Administrative Justice in South Africa: An

Judicial control: The process whereby the court reviews the

standing: The capacity to bring a legal action before the

mootness: A situation whereby the court cannot review the

ripeness: A situation whereby the court will not review the

interdict: A decree whereby the administrative organ is

spoliation: The wrongful deprivation of the right to

remittal: A situation where the case is referring back to the

mandamus: A decree whereby the administrative organ is

8.1. The nature and purpose of judicial control

Judicial control (review) is an essential tool in administrative law. It is important because it

8.2. Obstacles to judicial review

 Legal standing (locus standi)

8.2.1. Legal standing

8.2.1.1. Defining legal standing

8.2.1.2. Current law on standing in Namibia

8.3. Exceptions to the rules of standing

 Standing of Government actors. Article 79(2) Constitution of Namibia authorises the

“The common law rules of standing poses a problem to administrative

Can the following people’s complaints be reviewed by the Court?

a) Mr Hope a resident in Pioneers Park objected to the renaming of

d) Martin heard that his application to be admitted in Medical

8.6.1. Setting aside

An illegal administrative action is treated as legal regardless of being

8.6.2. Remitting the case back to the administrator

8.6..3. Substituting (correcting)

15.3.4. Declaration of Rights

3. There is no other satisfactory remedy available to the applicant.

8.7. Spoliation orders (mandament van spolie)

The applicant has the onus to establish that;

 His or her possession was wrongfully deprived.

Also note that, mandament van spolie is a remedy for restoration of

Article 25(4) of the Namibian Constitution provides;

Attempt to answer the following questions

a) Outline judicial remedies at the exposal of the applicant in

Baxter, L. (1984). Administrative Law. Durban: Butterworth.

Wiechers, M. (1985). Administrative Law. Durban: Butterworth.

Hoexter, C. (2012). Administrative Law in South Africa. Cape Town: Juta.

9.1. The nature and purpose of judicial control

9.2. Obstacles to judicial review.

9.2.1 Legal standing in Namibia

9.2.2 Exceptions to the common law rules of standing

Upon completion of this unit you should be able to:

 Define the concept judicial control;

Outcomes  Identify obstacles to judicial control;

 Critically discuss the rules governing legal standing in Namibia;

 Discuss the various judicial remedies and to indicate under

Quinot, G(Ed) et al (2015) Administrative Justice in South Africa, An