ARTICLE 18 OF NAMIBIAN CONSTITUTION: DOES IT APPLY TO VOLUNTARY ASSOCIATIONS? Dissertation in partial fulfillment for degree

Transcription

1 ARTICLE 18 OF NAMIBIAN CONSTITUTION: DOES IT APPLY TO VOLUNTARY ASSOCIATIONS? Dissertation in partial fulfillment for degree Professional Bachelors of Law By: Sheridan Simpson November 2008 Supervisor: Mr. John Nakuta Table of Contents 1

2 DECLARATION.....ii SUPERVISOR S CERTIFICATE..iii DEDICATION iv ACKNOWLEDGEMENT v TABLE OF CONTENTS.vi CHAPTER 1 INTRODUCTION....1 CHAPTER 2 NATURE AND SCOPE OF ADMINISTRATIVE LAW 6 1. What is Administrative Law.6 2. Administrative Law as part of Public Law The Administrative Law Relationship The Scope and Application of the right to administrative justice..8 CHAPTER 3 THE RECOGNITION AND APPLICATION OF THE COMMON LAW PRINCIPLES OF ADMINISTRATIVE LEGALITY NAMIBIA SOUTH AFRICA CANADA 25 CHAPTER 4 ARTICLE 18 OF THE NAMIBIAN CONSTITUTION: DOES IT APPLY TO VOLUNTARY ASSOCIATIONS CHAPTER 5 CONCLUSION..34 LIST OF REFERENCES...35 DECLARATION 2

3 I, the undersigned, hereby declare that the work contained in this dissertation for purposes of obtaining my degree of Bachelors of Law LLB is my own work and that I have not used any other sources than those listed in the bibliography and in the references.. Sheridan R. Simpson SUPERVISOR S CERTIFICATE 3

4 I, Mr. John Nakuta, hereby certify that the research and writing of this dissertation was carried out under my supervision... Mr. John Nakuta DEDICATION 4

5 I hereby dedicate this dissertation to my mother Zenovea Simpson and in the living memory of my father Rodney Simpson. ACKNOWLEDGEMENT 5

6 First of all I am grateful to our Heavenly Father for giving me the strength and wisdom in completing my dissertation without His love none of this would have been possible. I am grateful for the assistance rendered to me by my supervisor Mr. John Nakuta, who gave me valuable assistance in supervising my dissertation, without his assistance, it would have been impossible for me to complete it. My greatest thanks go out to my mother and my dear friend Eugene for their encouragement and support during this time. CHAPTER 1 INTRODUCTION 6

7 Administrative law, without a doubt plays a very essential role in any country. In Namibia particularly the government had the gigantic task after independence to bring economic development, housing infrastructure, better education and health care, and numerous other services to the vast majority of population who were victimized by apartheid laws and who subsist at third world levels. It also had to engage in land redistributive programs, such as land restitution and affirmative action. The aforementioned can only be done through executive branch administrative bodies empowered by statute. Strongly enforced principles of administrative law must provide appropriate administrative procedure and review by courts or tribunals. Administrative procedure must be, and must be seen to be, democratic in character, fully accountable, user friendly, responsive, participatory and transparent. South African administrative law under the apartheid regime did little to constrain executive abuse of power, in either Namibia or South Africa. 1 Before Namibia s independence and the Constitution, courts based their inherent power to review administrative action on the principles of common law. Thus the right to administrative justice was derived from common law. The difficulty inherent in that system of judicial review was parliament s power to exclude the courts common law power of review. The advent of the Namibian Constitution at independence and the inclusion of a constitutionally entrenched right to administrative justice have dramatically influenced the scope and content of administrative law. Most constitutions in the world contain a Bill of Rights that endeavor to safeguard, uphold and encourage respect for fundamental rights and freedoms. A Bill of Rights is a list of summary of human rights that are considered important and essential by a group of people. 2 It can also be described as a declaration of individual rights and freedoms, usually issued by a national government or as a list of fundamental rights included in each state s constitution. 3 The purpose of these bills is to protect those rights against infringement of people. Bill of rights requires proper enforcement and support in order to be effective and actually protect the rights 1 Corder H 1989 SAJHR Croubars and Cobwebs: Executive autocracy and Law in South Africa 2 Obtained from accessed on 6 April 2008 at 13h20 3 Obtained from accessed on 6 April 2008 at 13h20 7

8 enumerated in them. 4 This can only be done under a democratic government, i.e. chosen representatives who govern the country on behalf and in the interest of voters. The Bill of Rights in the Namibian Constitution articulates norms that depart from prior law. Since parliament derives its authority from the constitution, the exercise of legislative function of parliament is subject to the constitution. Therefore under the Namibian constitution legislative sovereignty is limited by the supremacy of the constitution. Indeed the inherent jurisdiction of the courts to interpret and review legislation and uphold the fundamental rights of the individual in jurisdictions where the concepts of constitutional supremacy operates is a recognized concept in constitutional and human rights law. 5 Courts may now examine the substantive correctness of legislation and administrative conduct, as well as the procedurally irregularity thereof. Judicial review of administrative action is but one of the constitutional mechanisms meant to protect the rights of the individual and prevent the potential abuse of discretionary power. The need to interpret and apply a Bill of Rights follows from the fact that it contains binding legal rules. Nearly all modern constitutions have a provision relating to the application of the Bill of Rights. This is sometimes referred to as the traditional or vertical approach to the application of the Bill of Rights. 6 Essentially Bills of Rights have been perceived as instruments constraining abuse of power generally. The perception is derived from the traditional notion that a Bill of Right is an instrument protecting an individual against abuse of state power. 7 Be that as it may, the tendency worldwide has been to recognize that power relations in modern societies are more complicated than this and that private individuals and private business enterprises are very often not equals in fact. 8 Indeed Bills of Rights have been invoked in recent years, with varying degrees of intensity, to curb the exertion of superior social power outside the traditional domain of state authority. In the premise of modern trend globally has been to acknowledge the need for the horizontal application of the Bill of Rights. 9 4 Kleyn, D. & Viljoen, F. (2002). Beginner s Guide for Law Students, 3 rd Edition, Landsdown, Juta Law, p The Common law precedent in the famous American case Marbury v Madison 5 U.S. 137, 2 LE 60 (1803), recognizing the jurisdiction of the court to review Acts of Congress has been given the constitutional fiat. 6 Davis, D et al (1997). Fundamental Rights in the Constitution: Commentary and Cases, Kenwyn, Juta & Co Ltd, p

9 Namibia s Bill of Rights is contained in chapter three (Article 5 to 25) of the Namibian Constitution. Article 5 to 25 deals with fundamental rights and freedoms, their protection and enforcement and the curtailments of such rights in exceptional circumstances. 10 In the Namibian context, the application clause is contained in Article 5, which provides that: The fundamental rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all organs of the Government and its agencies and, where applicable to them, by all natural and legal persons in Namibia, and shall be enforceable by the Courts in the manner hereinafter prescribed. Some legal writers admit that while Article 5 is indeed a progressive provision in that it prima facie provides for a vertical as well as a horizontal application of the Namibian Bill of Rights, it is however conceivable that certain difficulties of interpretation could occur. 11 According to Carpenter, one issue that may arise in the interpretation of Article 5 is whether enforcement of fundamental rights against private individuals will be restricted to matters of a public law nature, or if relationships of an exclusive private law character may be affected as well. 12 This issue was well illustrated in the case of Oppermann v President of the Professional Hunting Association of Namibia 13 where Council for both Appellant and Respondent produced their arguments. The council for Appellant relied on Article 18. Council for the Respondent, on the other hand contended that Associations and Clubs must in the first place be guided by their own rules. Council for Appellant further relied on Article 5 of the Namibian constitution for his submission that Article 18 is applicable. However, when council for Appellant was asked whether Article 18 is not restricted to Administrative bodies, or officials of government created by statute, and does not apply to Voluntary Association he admitted that to be the case. He also admits that if that is the case, the so-called vertical effect of Article 5 does not extend to private associations and clubs. In the present case it is therefore clear that the court restricted the enforcement of fundamental rights to matters of public law, and did not take into account the horizontal application of article p Carpenter, G (1995). Introduction to South African Constitutional Law, Durban, Butterworths, p NR 238 9

10 Be that as it may Article 5 explicitly states that The fundamental rights and freedoms enshrined in this chapter shall be respected and upheld where applicable to them, by all natural and legal persons in Namibia These words indicate that the Bill of Rights has some form of direct horizontal effect i.e. that the conduct of private individuals may be challenged for infringing the Bill of Rights. One can therefore deduce that the purpose of a constitution is inter alia, to constrain governmental powers and to protect the individual. 14 Article 5 of the Constitution of Namibia enjoins the Executive, Legislature and Judiciary and all organs and agencies of Government, as well as all natural and legal persons in Namibia to respect and uphold the fundamental rights and freedoms enshrined in the Bill of Rights. The recognition of the horizontal application of rights is of importance in protecting the rights of individuals against infringement; especially those in a private law relationship where there is a relationship based on authority, for example members to a voluntary association who find themselves in an unequal relationship in disciplinary proceedings. What protection does these individuals than have when their rights have been infringed? Judicial review of administrative action is but one of the constitutional mechanisms meant to protect the rights of the individual and prevent the potential abuse of discretionary power. Article 18 of the Namibian constitution provides for protection by requiring administrative officials to act fairly. Article 18 of the constitution provides that: Administrative bodies and administrative official shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts shall have the right to seek redress before a competent Court or Tribunal This constitutional provision guarantees the right to Administrative Justice, which is administrative action which is lawful, reasonable and procedurally fair. This provision has changed administrative law radically by setting the parameters with which the administration must function. The failure to comply with the requirements of this provision will generally render the administrative action subject to judicial review for administrative legality. The notion 14 Naldi, G. Constitutional Rights in Namibia: A Comparative analysis with international Human Rights Law, Kenwyn, Juta & Co Ltd 10

11 of lawfulness encapsulates the philosophy of a rights based approach to administrative law since it may be argued that lawfulness is identical with the requirement of administrative legality. 15 The shift form a culture of authority to a culture of justification is rooted in Article 18 of the Namibian constitution. The rights base philosophy acts as a countermeasure to administrative abuse of power. However, the applicability of this rights based philosophy is premised on the requirement that the action in question qualifies as an administrative action. 16 In the chapters that follow I will look at whether the right to just administrative action also extends to protect relationships which are of an exclusive private law character. The meaning, scope and nature of Administrative law will be discussed in the next chapter. CHAPTER 2 NATURE AND SCOPE OF ADMINISTRATIVE LAW 15 Burns, Y (2006) Administrative Law under 1996 Constitution: Durban LexisNexis Butterworths 16 11

12 In order to do justice to the topic under research, it is best to start by looking at what administrative law is. This chapter will cover the nature and scope of administrative law as well as the right to administrative justice. One will only understand the meaning and content of a subject once such subject has been defined in its meaning, so as to enable the reader to understand its content. What is Administrative Law? Administrative law forms an integral part of the sphere of public law. At its very basic, public law is the law relating to the exercise of public power. 17 Baxter 18 defines administrative law as: the general principles of law which regulate the organization of administrative institutions and the fairness and efficiency of the administrative process, govern the validity of and liability for administrative action and inaction, and govern the administrative and judicial remedies relation to such action Inside this framework, administrative law enjoys its own unique identity. However the framework of constitutional law plays a major role in creating shaping and nourishing the principles of administrative law, particularly in the light of the enactment of the constitution. 19 As explained earlier, administrative law is an integral part of public law. The subject flows directly from intrinsic constitutional principles, embodied both in the rule of law and Bill of Rights. 20 Administrative law as part of public law According to Wiechers 21 it is generally stated that private law protects mainly private (individual) interest, while public law protects the interest of the general community. The distinction between public law and private law was described as follows in the case of Mustapha v Receiver of Revenue, Lichtenburg 22 For no reason or the worst reasons the private owner can exclude whom he wills form his property or eject anyone to whom he has merely given precarious permission to be there. But the Minister has no such free hand. He receives his powers from the statute alone, can only act within its limitations, express, and implied. If the exercise of powers is challenged 17 Grant, B. (1998) Administrative law through the cases: Kenwyn Juta & Co Ltd 18 Baxter, L. (1984) Administrative Law: Kenwyn Juta & Co Ltd p 3 19 Supra Grant Wiechers, M. (1985) Administrative Law: Durban Butterworths (3) SA 343 (A)

13 the Courts must interpret the provision, including its implications and any lawfully made regulations, in order to decide whether the powers have been duly exercised. Wiechers furthers that another important distinguished characteristic of the two branches of law is that status of the legal subject with the relationship created. In the public law, relationship there is always an organ of state that bears and exercises state authority. 23 The relationship is therefore one of inequality since the exercise of state authority places the state in a superior position and another individual in a subordinate position i.e. a vertical authoritative relationship. The public law relationship therefore governs relations between government organs and individual subjects or between government organs inter se. 24 The private law relationship, on the other hand is one of equality 25, although unequal relationships are also encountered in private law, for example members of voluntary associations who find themselve in an unequal relationship in disciplinary proceedings. The traditional difference between a private law relationship and a relationship involving state authority is well illustrated in the case of John Wilkinson and Partners (Pty)Ltd v Berea Nursing Home (Pty) Ltd. 26 The defendant (the Berea Park Nursing Home) instructed the plaintiff, an estate agent, to sell its property. Initially the Natal Provincial Administration wished to buy the property but later decided rather to expropriate it. The relationship of equality (the intended private-law sale of property) was replaced by a relationship of authority (expropriation) between the administration and the owner. The court found that since expropriation is not a private law transaction, an estate agent is not entitled to commission on the transaction. Had the property been sold to the administration, the plaintiff would have been entitled to commission. The Administrative Law relationship One can therefore imply from the above that one of the key issues in administrative law is the exercise of authority. According to Burns 27 authority refers to the public or authoritative power exercised by a person or body in authority where such power affects the rights or interest of another person Supra Wiechers P (1) SA 791 (N) 27 Burns, Y. (2006) Administrative Law under the 1996 Constitution: Durban LexisNexis Butterworths 28 13

14 Burns furthers that the characteristics of an Administrative law relationship are the following: - At least one of the legal subjects must be a person or body who exercise power. - More important, a person or body clothed with state authority must hold the position and who is able to exercise that authority. In short, the authoritative person uses the authority to force the other party to act in a specific way. Moreover, such exercise of power may affect the rights and interests of the person in the relationship leaving such persons in a subordinate position. 29 Therefor one can conclude that in administrative law there exists a verticle relationship between the parties, having one party in a subordinate position. A verticle relationship however can also be found in a private law relationship for example members in disciplinary proceedings in voluntary associations. The Scope and Application of the right to administrative justice Article 18 of the Constitution of the Republic of Namibian provides that everyone is entitled to administrative action that is lawful, reasonable and fair. The courts have clearly indicated that article 18 only applies to cases in which the action constitutes administrative action. Whether or not conduct constitutes administrative action depends on the nature of the power being exercised. 30 Other considerations that might be relevant are the source of the power, the subject matter, whether it involves the exercise of a public duty and how closely it is related to the implementation of legislation. 31 Administrative conduct is, therefore conduct of an administrative nature, exercised by organs of state in the implementation of legislation. 32 It is important to determine exactly what administrative action implies and whether administrative action is involved in a particular situation. 33 The main reason for this is the application of Administrative Justice as per Article 18 of the Namibian constitution. The right to administrative justice depends on whether administrative action has been performed by a person exercising public power President of the Republic of South v African Rugby and Football 2001 (1) SA Devenish G,E Administrative Law and Justice in South Africa 2001 Butterworths Durban 34 14

15 The concept administrative action is not defined in our constitution; at common law, the court interpreted the concept on a case-by-case basis with the result that no clear definition was forthcoming. 35 In many cases, the courts merely said what does not constitute administrative action. In others, certain actions were identified as administrative action without clearly defining the meaning of the term. 36 In the case of Premier, Province of Mpumulange v Executive Committee of the Association of Governing Bodies of State-Aided schools, Eastern Transvaal 37 the constitutional court examined whether the withdrawal of certain subsidies to state-aided schools in the province constituted administrative action. The subsidies were granted to parents of needy children to enable them to pay school fees, bus fares and hostel fees. The court held that the decision to withdraw the subsidies did indeed constitute administrative action. The Constitutional Court of South Africa s interpretation of administrative action is clearly set out in the case of President of the Republic of South Africa v South African Rugby and Football Union 38 In section 33 the adjective administrative not executive is used to qualify action. This suggests that the test for determining whether the conduct constitutes administrative action is not the question whether the action concerned is performed by a member of the executive arm of government. What matters is not so mush the functionary as the function. The question is whether the task itself is administrative or not. It may well be, as contemplated in Fedsure, that some acts of a legislature may constitute administrative action. Similarly, judicial officers may from time to time, carry out administrative tasks. The focus of the enquiry as to whether the conduct is administrative action is not the arm of government to which the relevant actor belongs, but on the nature of the power he or she is excising. This decision shifted the emphasis to the administrative function rather that the functionary as was customary under the common law. These two cases discussed above did not provide a clear definition of the term administrative action, but outlined what does not constitute administrative action Supra Burns p (2) BCLR 151 (CC), 1999 (2) SA 91 (CC) Para (10) BCLR 1059 (CC) at Para Supra Burns 15

16 In South Africa the promulgation of The Promotion of Administrative Justice Act 40 (PAJA) includes a fairly comprehensive definition of the term administrative action. Upon analysis of the Act it is apparent administrative action means the following: Any decision taken, or any failure to take a decision Of an administrative nature By an organ of state when exercising a power in terms of the Constitution; or exercising a public power or public function in terms of any legislation; or natural or juristic person other than an organ of state, when exercising a public power or performing a public power or performing a public function in terms of an empowering provision Which adversely affects the rights of any person And which has a direct, external, legal effect In Namibian however we don t have legislation like PAJA to determine and define what is meant by an administrative action, but we can however use the definition in PAJA as a guideline when determining what constitute administrative action, and also use the common law principles in this regard. The next question is whether a voluntary association, which generally has its own constitution, falls within the definition of an organ of state as defined in the Act, and whether the actions of such a body would constitute administrative action. In South Africa section 239 of the 1996 Constitution defines the term organ of state. However the application of the provision of Article 18 of the Namibian Constitution is limited to the acts by administrative bodies and officials (which is the same as an organ of state in the South African context). The Namibian Constitution does not delineate the concept administrative bodies and officials. 41 It only defines the word Official in Article 93, albeit the definition is restricted to the interpretation of the word used in Chapter 10 which deals with the Ombudsperson. However writers like Parker expresses the view that this interpretation of the term may throw some light on the interpretation of administrative official in Article Act 3 of See definition article in Constitution i.e. Article Parker C 24 CILSA (1991) 88 AT 92 The Administrative Justice Provision of the Constitution of the Republic of Namibian: a constitutional protection of judicial review and tribunal adjudication under administrative law. The author is currently a Judge of the High Court of Namibia. 16

17 Article 93 provides in a nutshell that Official shall, unless the context indicates otherwise, include any elected or appointed official or employee of any organ of the central or local government, any official of a parastatal enterprise owned or managed by the state, or in which the state or the Government has substantial interest, or any officer of the defense force, the police force or the prison services, but shall not include a Judge of the Supreme Court or the High Court, or in so far as a complaint concerns the performance of a judicial function, any other judicial officer. It is therefore clear that in Namibia we have to look at the definition of an official as per Article 93 of the Constitution to determine whether an administrative action is involved. Currie and Klaaren say the following: It is submitted, following the Pharmaceutical Manufacturers decision, that administrative action for the purpose of the constitutional right does not, as a general rule, include the conduct of private, non-statutory bodies that have been subjected at common law to administrative law principles, such as voluntary associations exercising contractual disciplinary powers. It will, however apply to those persons where those persons are exercising public power or performing public functions. 43 In their view the rationale for the application of administrative justice cannot be the agreement of the parties nor the courts common-law powers of review and the question to be asked in each case is whether the power exercised or function performed if a public power of function. 44 If the question is answered in the affirmative the action may fall within the definition of administrative action. 45 I agree with Burns 46 when she states that this approach by Currie and Klaaren is too limited and legalistic and that there are occasions when the principles of administrative justice in general, and the application of the rules of procedural fairness in particular, can and must apply to the actions of domestic tribunals and voluntary associations. To follow this narrow approach of Currie and Klaaren would mean that members of volunary associations would be deprived from their right to natural justice, which is an inalienable right provided for by the Bill of Rights. 43 Currie and Klaaren The Promotion of Administrative Justice Act benchbook p Supra 17

18 The administrative law relationship is a relationship of inequality 47. It is characterized by the presence of state authority since one of the parties to the relationship is always in a position of authority over the other party who is in a subordinate position. 48 On the other hand, the relationship between the members of a voluntary association and its members is of private-law nature. For example, the relationship between the Namibian Rugby Union and its members is created contractually and founded on its own internal constitution. The voluntary nature of the relationship distinguishes the actions of domestic tribunals from those of public authorities or organs of state. 49 This voluntary nature has prompted some courts to interpret the agreement between the association and its members strictly, thereby denying judicial review, whereas other courts have adopted the approach that these disciplinary hearings are subject to procedural fairness and to the courts power of review. Some of these cases will be discussed in the chapter that follows. CHAPTER 3 THE RECOGNITION AND APPLICATION OF THE COMMON LAW PRINCIPLES OF ADMINISTRATIVE LEGALITY Article 18 of the Namibian Constitution as stated previously provides that administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed upon such bodies and officials by common law and any relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent court or tribunal. This article comes under the entrenched provisions of the 47 Hoexter C, The New Constitutional and Administrative Law Volume two Juta

19 Bill of Rights and therefore under the Namibian legal system, the jurisdiction of the courts to review administrative action and the justifiability of this right by any person aggrieved by the exercise of administrative discretion come under the regime and protection of the constitution. Judicial review of administrative action is therefore one of the constitutional mechanisms meant to protect the rights of the individual and prevent the potential abuse of discretionary power. Unlike the South African constitution, the Namibian constitution does not specifically provide for the right to procedurally fair administrative action 50, however it is commonly accepted that the fair requirement in Article 18 refers to procedural fairness. On the contrary, Article 18 enjoins administrative bodies and officials to comply with the common law. In public law, one of the most important common law principles is natural justice. These principles is without a doubt the basic and most important common law requirements that administrative bodies and officials should observe before they take any administrative action which affects an individual s freedom and rights, property, reputation, and indeed interest. 51 The principles of natural justice are certainly the bedrock of procedural ultra vires which forms one of the major basis of judicial review or control of administrative action. 52 Natural justice is a body of judge made rules of English common law origin but the universality of its application as a right has not been doubted. 53 Previously 54 the rules of natural justice applied only in the exercise of judicial or quasi-judicial administrative action which affected antecedent or existing rights privileges or freedoms. In the case of Chairperson of the Immigration Selection Board v Frank & Another 55 it was held that article 18 does not draw a distinction between quasi judicial or administrative in nature requires not only reasonable and fair decisions, based on reasonable grounds, but inherent in that requirement fair procedure which are transparent. The old common law rule that the requirements of the principles of natural justice are to be applied where an administrative acts in judicial or quasi judicial capacity has been replaced by this constitutional requirement which enjoins administrators in the exercise of their discretion to apply the principles of natural justice 56. Chief Justice Strydom 57 also alluded in his judgment to the requirement that the 50 See Section 33(1) of South African Constitution 51 See the celebrated English case of Ridge v Baldwin 1964 AC Joubert W.A. The Law of South Africa Volume Butterworths Durban 53 Wade W.H.R. Administrative Law, 5 th Edition 1975 p See for instance Loubser v Native Commissioner, Piet Retief 1958 (1) SA 546 (A) NR 107 (SC)

20 principles of natural justice must be applied under the principle of legitimate expectation. The concept of legitimate expectation, which was developed in order to mitigate the harsh effects of the categorization of administrative acts, means that: The rules of natural justice are extended to cases where the affected party has no vested right but does have a potential right or legitimate expectation that his application will succeed, and has therefore gained a right to be heard by virtue of his expectation. 58 In the Namibian case of Westair Aviation (Pty) Ltd and Others v Namibia Airports Company 59 the Supreme Court of Namibia confirmed the applicability of legitimate expectation in the Namibian context. In a recent Namibian case of Erastus Tijiundikua Kahuure & 10 Others v Mbanderu Traditional Authority & others 60 Parker J explains the concept of judicial review in terms of Article 18 of the Namibian Constitution to mean: All that Article18 is saying is this: when administrative bodies and administrative officials act (i.e. take decisions and actions), they must do so fairly and reasonably and comply with the requirements imposed upon them by common law and any relevant legislation, so long as such actions and decisions affect the rights, interest and legitimate expectation of persons. 61 The principles of natural justice aim at realizing procedural fairness at administrative hearings. Their importance has been recognized by legal writers. Baxter, for instance, equates the common law rules of natural justice with the duty to act fairly. 62 According to the learned author, these rules, inter alia facilitate accurate and informed decision-making and also ensure that decisions are made in the public interest. 63 Parker argues the reverse and expresses the view that the duty to act fairly primarily implies acting in compliance with the rules of natural justice. 64 Wiechers on the other hand believes that the rules of natural justice encompass more than mere rules of procedure in that they represent not only a formal code of administrative conduct, but are in essence representing or primeval justice as well-by guaranteeing simple 58 Administrator Transvaal v Traub 1989 (4) SA 731 (A) NR Erastus Tjiundikua Kahuure & 10 Others v Mbanderu Unreported judgement (HC) No: (P) A 114/ at p Supra Baxter footnote Supra Parker footnote 42 20

21 justice between legal subjects. 65 I concur with Wiechers that natural justice not only apply to formal code of administrative conduct, but also as to guarantee justice between legal subjects. The question which therefore comes to mind is: whether rules of natural justice are only applicable in public law? What about non statutory bodies which are not created by statute and do not possess state authoritative power, but nevertheless have an internal hierarchy and also have a relationship based on authority, for example a member of a voluntary association who appear before a disciplinary tribunal that find themselves in a subordinate position. Will the rules of natural justice apply in these circumstances? As I have stated above Article 18 enjoins administrative bodies and officials to comply with the common law. In public law, one of the most important common law principles is natural justice. Article 18 comes under the entrenched provisions of the Bill of Rights. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state. 66 It is generally accepted that article five of the Namibian constitution makes provisions for the horizontal application of the Bill of Rights i.e. that the conduct of private individuals may be challenged for infringing the Bill of Rights. The applicability of the Bill of Rights empowers the courts, when applying a provision of the Bill of Rights to a natural or juristic person, to apply or if necessary develop the common law in cases where legislation does not give effect to the right. 67 The purpose of procedural fairness is to ensure that individuals are afforded a proper hearing before action is taken which affects their rights and freedoms. 68 Procedural fairness incorporates a number of sub rules such as proper notice of intended action, reasonable and timeous attendance, personal attendance, legal representation and the right to lead and convert evidence as well as the rule against bias. 69 In recent years a number of cases have emerged that have considered the application of Natural Justice Rules to the decision of voluntary organizations. In the case of Meyer v Law Society, Transvaal 70 Nicholas J stated the following: 65 Supra Wiechers footnote Article 5 of Namibian Constitution 67 Supra Joubert footnote (2) SA 209 (T) 21

22 The principle of Natural Justice which has been recognized by the South African courts require a domestic tribunal to adopt a procedure which would afford the person charged a proper hearing by the tribunal, and a proper opportunity of producing his evidence and of stating this contentions, and of correcting or contradicting any prejudicial statements or allegations made against him; to listen fairly to both sides and to observe the principles of fair play; to discharge its duties honestly and impartially; and to act in good faith 71 The emergence of these cases is not surprising considering the ever increasing number of member based organizations across the country, ranging from social and sporting clubs, like The Namibian Rugby Union, Namibian Hockey Union and Professional Hunting Association of Namibia just to name a few. Invariably these organizations develop admission criteria, and some cases discipline rules and procedure in their by- laws, constitutions or policies. The rules that most significantly effect members are those relating to continued compliance with membership qualifications, discipline, expulsion and suspension. 72 I will now discuss how the Supreme Court in Namibia has applied the rules of public administrative law to voluntary associations. NAMIBIA Oppermann v President of the Professional Hunting Association of Namibia 73 Facts The appellant, Oppermann, was an extraordinary member of the Professional Hunting Association of Namibia known as NAPHA. The respondent is the President of the Professional Hunting Association of Namibia (NAPHA). NAPHA is a voluntary association registered with the Ministry of Environment and Tourism as the official body representing Namibia's hunting and safari operators and recognised as such. 71 at page Burke-Robertson, J Natural Justice, Members and the Not For Profit Organizations Canadian Bar Association/Ontario Bar Association National Symposium On Charity Law. 73 Oppermann v President of the Professional Hunting Association of Namibia 2000 NR

23 Oppermann had been suspended and subsequently expelled by the Executive Committee of NAPHA. He applied to the High Court to review and set aside the decision. His application succeeded to the extent that his expulsion was set aside, but the court a quo confirmed the suspension. Oppermann than ordered an appeal against part of the judgment to the full Bench of the High Court, but by the agreement between the parties the appeal was diverted to the Supreme Court. Issue Whether or not the Court a quo decision should be set aside as far as it hold that the decision to suspend the appellant was in order and that, the appellant had to pay the cost in this regard. Judgement The appeal succeeded and the Court set the decision by NAPHA to expel the appellant aside. It declared the decision null and void and of not force and effect. It also declared the decision to suspend the appellant null and void. The respondent was ordered to pay appellant s cost of both applications for review and appeal. Reason for Decision Council for both Appellant and Respondent produced their arguments. Coetzee council for Appellant relied on Article 18. Council for the Respondent, on the other hand contended that Associations and Clubs must in the first place be guided by their own rules. Coetzee further relied on Article 5 of the Namibian constitution for his submission that Article 18 is applicable. However, when Coetzee was asked whether Article 18 is not restricted to Administrative bodies, of officials of government created by statute, and does not apply to Voluntary Association he admitted that to be the case. He also admits that if that is the case, the so-called vertical effect of Article 5 does not extend to private associations and clubs. However, the court reasoned that it was not necessary in the present matter to decide whether Article 18 is a reference applicable to private voluntary associations and clubs. According to the court the matter can be decided without any reference to Article 18, by having recourse 23

24 to the Constitution or rules of the Association. The court scrutinizes the rules of NAPHA s constitution namely Clause 5(8), in terms of this provision: If the executive committee is of the opinion that a member is consciously violating the constitution, decisions or resolutions of the association, disciplinary proceedings may be initiated against such member. Taking into consideration all the evidence put before the Committee, the executive committee may discipline the accused by reprimanding or warning him, suspending his membership or expelling him from the Association (permanently or temporarily). According to the court, NAPHA did not observe all the requirements as per Clause 5(8). The appellant was never informed of the committee s opinion; neither did the committee inform appellant that he has violated their constitution. There was also never an indication of the initiation of disciplinary proceedings. Thus the court concluded that the committee failed to apply its mind to the provisions of NAPHA s constitution. In the courts view, the Executive Committee did not act in terms of rules (as per their own constitution). The procedure and decision were therefore ultra vires the rules. The decision in Oppermann took a sad turn and it would have been very helpful if the Supreme Court had laid down a precedent in casu regarding Voluntary Associations and the application of administrative principles to such institutions. O Linn who handed down judgment for the Supreme Court stated unequivocally: It is not necessary in this case to finally decide whether or not Article 18 is applicable to private voluntary association 74 In this view the matter can be decided without any reliance on Article 18, by simply having reference to the constitution and rules of the association or club. 75 It is true that a voluntary association or a club is not an administrative body as it is not created by way of statute and indeed does not exercise state authority. The basis of the relationship between a member and the association or club is private law. In various pre-independence decisions, the South African courts have found on various occasions that the rules of administrative law apply to the actions and decisions of voluntary associations because of the fact that these bodies also have their own internal hierarchy and may be seen as being in a relationship of authority towards its members. 76 O Linn clearly had an opportunity to remove the uncertainty with regard to this issue, but declined to explicate the 74 At page Carr v Jockey Club 1976 (2) SA 717 (W) and Middelburg Rugbyklub v Suid-Oos Transvaalse Rugby Unie 1978 (1) SA

25 issue. At present, Namibia relies heavily on common law when it comes to interpretation of administrative rules and principles. Much of these rules and principles were shape in an era where there was no Bill of Rights and a Constitution. I will now compare how South Africa and Canada had dealt with cases of Voluntary associations similar to that of Oppermann. SOUTH AFRICA In the South African case of Cronje v United Cricket Board of South Africa 77 the South African cricket captain Hansie Cronje, was accused of involvement in corrupt activities and was replaced as captain and withdrawn from the national cricket team. When his contract expired, the board then passed a resolution banning the applicant for life from all activities of the board and its affiliates. Cronje challenged the decision of the United Cricket Board of South Africa averring that he had been entitled to a hearing before the resolution was taken and that his constitutional right to just administrative action (article 33) of the constitution had been violated. The court found that the respondent s power derived form its constitution, which is a contract between the respondent and its members. Furthermore, the court found that the United Cricket Board: is a voluntary association wholly unconnected to the state. It has its origins in contract and not in statute. Its powers are contractual and not statutory. Its functions are private and not public. It is privately and not publicly funded The conduct of private bodies such as the respondent is ordinarily governed by private law, and not public law. It does not exercise public power and its conduct is accordingly not subject to public law rules of natural justice. 78 In determining whether the principles of natural justice applied in this instance, Kirk-Cohen J found that these rules of natural justice are rules of public law. Private bodies are vested with public powers by statute only in exceptional cases, and in those cases public law rules apply. Private individuals and bodies may expressly or by necessary implication incorporate the rules of natural justice into their contracts and it is only where the constitution of voluntary associations incorporates the rules of natural justice that they then apply between the association and its members or those to whom it has privity of contract Cronje v United Cricket Board of South Africa 2001 (4) SA 131 (T) 78 at at

26 I agree with Burns et al 80 when they criticize the decision in Cronje, they argue that a convincing argument may be made out for the application of procedural fairness and indeed the full right to just administrative action in disciplinary hearings of voluntary associations. 81 One should emphasize that the purpose of this right is to promote accountability, transparence, openness and participation on the part of the administration and to protect the individual and it seems illogical to assume that these principles will not apply to the sphere of voluntary associations and similar bodies, in instances where the individual is in a similarly subordinate position. 82 Burns et al further argues than although voluntary associations are not created by statute and do not possess state authoritative power, they nevertheless have an internal hierarchy and also have a relationship based on authority. The member who appears before the disciplinary tribunal is in a subordinate position. It is under these circumstances that the rules of natural justice have been applied. According to Burns 83 the court in the Cronje case adopted a narrow approach to the application of the principles of procedural fairness, thereby depriving Cronje of assistance in a situation where he was placed in a vulnerably and subordinate position. She continues by saying that it is submitted that where there is a relationship of inequality, for example where a member of a club appears before a disciplinary committee appointed by the club, the principle of procedural fairness should apply. A generous approach to the application of the provisions of the Bill of Rights in the Cronje case could have led to a different finding. 84 As I have stated previously the recognition of the horizontal application of the Bill of Rights and the recognition of the importance of the common law in protecting the rights of the individual, not only against practical infringement of rights but the infringement of right by sporting bodies which often leave the individual in a helpless and unprotected state, would be more in line with the spirit, purport and objects of the present system of constitutional supremacy and the protection of individual rights. 80 Supra Burns at

27 In the case Embling v Headmaster, St Andrews College (Grahamstown) & another 85 concerned the dismissal on notice of a teacher at a private school. The applicant conceded that the school had complied with the provisions of the contract when it terminated his services, but complained that he has not been given a fair hearing before being fired. He claimed reinstatement on that ground. The application was dismissed. What attracts attention is the court s conclusion that there was no ground on which it could interfere with the respondent s decision, and that to do so would be contrary to established legal principles and cases which it regarded as binding. The essential facts however were as follows. After eight years service to the school, Mr. Embling proceeded to England on six months study leave. During his absence the council of the school decided to terminate his services, apparently on the ground of his alleged shortcomings as a teacher and his uncooperative attitude towards colleagues. 86 On resuming work at the beginning of the term following his leave and ignorant of the council s earlier decision, Mr. Embling was summoned by the headmaster, who told him that there had been numerous complaints about his teaching. The interview ended in an acrimonious exchange, after which the headmaster warned Mr. Embling that he should consider his job at risk. 87 The next day Mr. Embling received a letter form the headmaster which set out his alleged deficiencies and informed him that his contract has been terminated on a term s notice. Mr. Embling thereupon requested to be heard by the council, which assign this task to a subcommittee. The full council thereupon ratified the dismissal. The applicant launched review proceedings on the ground that the headmaster s decision and its subsequent confirmation by the council were invalid for non-compliance with the audi alteram partem rule. 88 This contention was based in part on the employment contract, and in part on the wider proposition that [t]he duty to afford a hearing must be respected by any domestic by any domestic tribunal charged with quasi judicial functions except to the extend that it is expressly excluded by the contract 89, and that the applicant had acquired a right, interest or legitimate expectation by virtue of eight years employment without an opportunity to respond to the allegations against him Embling v Heasmaster, St Andrews College (Grahamstown) & another 1991 (4) SA 458 (E) at A 89 at at