Ombudsman v The Station Commander



REPUBLIC OF NAMIBIA2228850-1905HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENTCASE NO: HC-MD-CIV-MOT-GEN-2017/00042In the matter between: THE OFFICE OF THE OMBUDSMAN OF THE REPUBLIC OF NAMIBIAAPPLICANT AndTHE STATION COMMANDER, KATUTURA POLICE STATION, WINDHOEK FIRST RESPONDENTTHE STATION COMMANDER, WANAHEDAPOLICE STATION, WINDHOEK SECOND RESPONDENTTHE STATION COMMANDER, SEEIS POLICE STATION THIRD RESPONDENTTHE STATION COMMANDER, WINDHOEKPOLICE STATIONFOURTH RESPONDENTMINISTER OF HOME AFFAIRS AND IMMIGRATION FIFTH RESPONDENT THE CHIEF OF IMMIGRATION OFFICERSIXTH RESPONDENTTHE IMMIGRATION TRIBUNALSEVENTH RESPONDENTTHE MINISTER OF SAFETY AND SECURITY EIGHTH RESPONDENTTHE INSPECTOR GENERAL OF THE NAMIBIANPOLICE FORCE NINETH RESPONDENTNeutral citation: Ombudsman v The Station Commander HC-MD-CIV-MOT-GEN-2017/00042 [2017] NAHCMD 366 (08 December 2017)Coram:UEITELE J Heard:13 February 2017, 15 February 2017 & 06 June 2017 Delivered:8 December 2017Reasons released 29 March 2018Flynote:Constitutional law — Constitution — Foundational values — Rule of law — Justice for all — Public officials enjoined by the Constitution to perform their functions fairly and reasonably — in compliance with the common law and statutory provisions.Costs — Public officer — Award of costs against a person acting in a representative capacity de bonis propiis — Mala fides on his part must be proved.Summary:On 10 February 2017 the Ombudsman of the Republic of Namibia, acting in terms of the powers vested in him by Article 91(e) of the Namibian Constitution, on urgent basis, approached this Court seeking an order compelling the Station Commanders of four police stations situated in Windhoek namely: the Katutura, Seeis, Wanaheda, and Windhoek Police Stations, to produce to this Court 47 persons who were detained by the Namibian Police at the mentioned police stations, for the purpose of enquiring into the lawfulness of the detention of those persons. The 47 persons were being detained by the Namibian Police at the mentioned police stations on the instructions of the Chief Immigration Officer.The application by the Ombudsman was prompted by an investigation which was conducted by his office, and which unraveled the unlawful detentions of persons who are considered prohibited immigrants. It was revealed during the said application that the concerned immigration official had no regard for the constitutionally guaranteed rights of the said detainees. Furthermore that there was no evidence that the detainees had ever been informed of their rights to legal representation.In the affidavit deposed to by the Ombudsman, it is alleged that the immigration officials failed to conduct the statutory investigations that are necessary to enable them to decide whether or not a person is in fact an illegal immigrant, alternatively and on the assumption that such investigations were conducted by the immigration officials, the investigations were not dealt with and disposed of within the period of 14 days as prescribed in the Act.This resulted in the Court on 13 February 2017 issuing a rule nisi calling upon the respondents to show cause on the 17 February 2017, why the Court must not order the 47 persons to be released by 17 February 2017. The government attorney anticipated the rule nisi conceding that the detention of the 47 persons was not in accordance with the Immigration Act, 1993 and the Constitution of Namibia. On 15 February 2017 the Court ordered the 47 persons to be released and also ordered the immigration officials who were involved with the arrests and detention of the 47 persons to show cause, by not later than 8 March 2017, why the immigration officials must not personally pay the costs of the litigation. Held that the general rule is that costs follow the course, but to justify an order for costs de bonis propriis some proof of malice on the part of the person acting in a representative capacity was necessary.Held further that, on the facts of this matter that it is the institutional incompetence of the Ministry of Home Affairs which lead to the disregard of constitutional obligations and infringement of peoples’ rights and that the respondents must, jointly and severally the one paying the others to be absolved, pay the applicant’s costs of this application the costs to include the costs of one instructing and one instructed counsel. ___________________________________________________________________ORDERThe respondents must, jointly and severally the one paying the others to be absolved, pay the applicant’s costs of this application the costs to include the costs of one instructing and one instructed counsel.2The Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must;with the assistance of other governmental departments particularly the Information Technology Department in the office of the Prime Minister, design programmes that are directed at addressing the short comings identified in the in the affidavit of the Chief Immigration Officer, Mr Elias Ernst; and with the assistance of other governmental departments particularly the office of the Attorney General (and if necessary the Faculty of Law in the University of Namibia), design a training programme and train all immigration officers and other persons in the Ministry of Home Affairs and Immigration who are tasked with the implementation of the Immigration Control Act, 1993 in the application of the Immigration Control Act, 1993 and other Constitutional provisions that are relevant to their functions.3The Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must design the programmes identified above in paragraph 23 of this judgment by not later than 30 September 2018 and report back, by not later than 15 October 2018, to this Court through the office of the Chief Registrar on the implementation of the order set out in that paragraph. After 30 November 2018, a person who has not been trained or who is not conversant with the provisions of the Immigration Control Act, 1993 must not be permitted to exercise the powers set out in that Act. The Chief Registrar must provide a copy of this judgment for the personal attention of the Prime Minister, the Minister Responsible for Home Affairs and Immigration, the Attorney General, the Permanent Secretary in the Ministry of Home Affairs and Immigration and the Chief Immigration Officer.JUDGMENTUEITELE J:Introduction [1]On 10 February 2017 the Ombudsman of the Republic of Namibia, acting in terms of the powers vested in him by Article 91(e) of the Namibian Constitution, on urgent basis, approached this Court seeking an order compelling the Station Commanders of four police stations situated in Windhoek namely: Katutura, Seeis, Wanaheda, and Windhoek Police Stations, to produce to this Court 47 persons who were detained by the Namibian Police at the mentioned police stations for the purpose of enquiring into the lawfulness of the detention of those persons. The 47 persons were being detained by the Namibian Police at the mentioned police stations on the instructions of the Chief Immigration Officer.[2] The application by the Ombudsman was prompted by an investigation which was conducted by his office, and which unraveled the unlawful detentions of persons who are considered prohibited immigrants. In the affidavit in support of the application the Ombudsman amongst other matters, stated the following, I quote verbatim from the founding affidavit filed on behalf of the Ombudsmen:’41.It is a grave cause for concern that, within a few days into the investigation into this matter, the following is abundantly clear –Persons suspected to be illegal immigrants, are being detained in contravention of the Act and the Namibian Constitution, Articles 7 and 12;The concerned immigration official have no regard for the Constitutionally guaranteed rights of such detainees;There is no evidence that the detainees have ever been informed of their right to legal representation;The immigration officials fail to conduct the statutory investigations necessary that enable them to decide whether or not a person is in fact an illegal immigrant, alternatively and on the assumption that such investigations are being conducted by the immigration officials, it is not dealt with and disposed of within the period of 14 days as prescribed in the Act;Persons are being detained for longer than what is prescribed in the Act, and in any event, for longer than what is absolutely necessary;Detainees are not informed of the reasons for their detention;Detainees are kept without warrant for periods exceeding 14 days without their further detention being authorized, alternatively authorized only after they have been in detention for an extended period;Detainees are not brought before the Tribunal with a reasonable time, and I am informed by Mr. Alpheus Haufiku and Mr Sylvester Sibungo, who were previously employed at the Ministry of Home Affairs and Immigration as immigration officers, that the Tribunal only sits four times per annum, causing great delays and causing affected persons to be detained indefinitely and for undetermined periods of time this is not reasonable and such extended periods of detention is contrary to the provisions of the Act. I refer to their supporting affidavits filed herewith.I invite the respondents to place information before this Court as to what the prevailing situation is regarding detainees in respect of whom their deportation have already been approved by the Tribunal. I assume that they are also kept detained for undetermined periods of time, as it would appear that immigration officials are a law unto themselves.Upon a proper interpretation of the Act, the mandatory provisions contained therein are not complied with at all and as a result of the dereliction of the statutory mandate entrusted to the fourth and fifth respondents, fundamental rights are infringed upon.’[3]On the same date (i.e. on 10 February 2017) that the Ombudsman’s application was served on the respondents the office of the Government Attorney gave notice that the respondents will oppose the application, but the respondents had not, by 13 February 2017, filed their answering affidavits. I, on that date (i.e. 13 February 2017), issued an order directing the respondents to produce the 47 persons in question, to court on 17 February 2017. I furthermore issued a rule nisi calling upon the respondents to show cause on 17 February 2017, why I must not order the 47 persons to be released.[4]The Government Attorney anticipated the rule nisi which I issued on 13 February 2017, and I accordingly set the matter down for hearing on 15 February 2017. During the hearing on 15 February 2017, the Government Attorney, acting on behalf of all the respondents conceded that the arrests and the detention of the 47 persons was not in compliance with Immigration Control Act, 1993, or any the law. Based on the concession by the Government Attorney I issued an order in the following terms:‘1. The persons whose names appear in “Annexure A,” must be released from custody with immediate effect.2The persons whose names appear in “Annexure A” must be dealt with in accordance with the Immigration Control Act, 1993.3.As regards to the costs of this application the immigration officials or officers who were involved with these cases must file affidavits as to why they must not be ordered to, de bonis propiis (that is in their personal capacities) jointly and severally, the one paying the other to be absolved, pay the costs of this application, such costs to include the costs of one instructing and one instructed counsel, by not later than 08 March 2017.’[5]The basis on which I made the order set out in paragraph 3 of the order of 15 February 2017 is the allegations (particularly the allegation that ‘The concerned immigration official have no regard for the Constitutionally guaranteed rights of such detainees’) by the Ombudsman as I have quoted above in paragraph [2] of this judgment.[6]The immigration officials decided to file affidavits explaining why they must not personally pay the costs of the application. A certain Mr Mekatjavi U Kanguatjivi deposed to the affidavit on behalf of all the other immigration officers. In the introduction to his affidavit to show cause why the immigration officers must not personally pay the costs of the application, Kanguatjivi comments that ‘although they are not parties to the proceedings which are before court, the Court issued an order requesting him and his colleagues to explain why they must not be ordered to pay the costs personally.’[7]Mr Kanguatjivi then went on to set out the reasons why the immigration officers must not be ordered to pay the costs in their personal capacities. The crux of the explanation is however set out in the Chief Immigration Officer’s (a certain Elias Ernst) supporting affidavit of 22 March 2017 where he, Elias Ernst, states the following, I quote verbatim from his supporting affidavit:‘8As a result of lack of proper administration of the Directorate of Immigration and Boarder Control I believe that the Immigration Officer’s involved in this matter should not be held personally liable for their conducts.9I will set out hereunder the facts relating to the administration of the Directorate of Immigration and Control which I believe contributed to this situation.LACK OF PROPER RECORD KEEPING SYSTEM IN THE DIRECTORATE OF IMMIGRATION AND BOARDER CONTROL10It is impossible for an Immigration Officer to keep track of all the immigrants detained by them as the directorate of immigration and Border Control has no proper record keeping system.11.When an officer arrest an immigrant there is no system to record the names, date place where the person is detained and when the warrant should be extended if need be. As such the immigration officers rely on the police were the immigrants are detained to remind them of the detainees in their custody. This contributes highly to the extension warrants not being made on time.12.Furthermore, some officers in the Directorate require assistance of other officers in order to fill in the warrants. This leads to situations where a persons who has signed the detention warrant is not the person dealing with that particular immigrant. Hence it becomes difficult for the person who issue out the warrant to keep track whether it was extended or not.13More so, if an officer issues a warrant on behalf of another, the officer on behalf of whom the warrant is issued take it with him/her. This also makes it difficult for the person who issued the warrant on behalf of another to know if the warrant of detention was extended or not as there is no system where one can confirm it.LACK OF TRAINING FOR NEW EMPLOYEES14The directorate has employed new employees as of June 2016, however, these employees have not been trained with regard to their duties and obligations.15As a result of the failure of the Directorate to train its employees proper procedures which should have been followed were side stepped due to lack of awareness and understanding.16This became evident mostly during the festive season, when most experienced employee went on vacation leave and the new ones were left to deal with the high volume of immigrants detained during the festive season.’ (Underlined for emphasis)[9]It is against this explanation by the Chief Immigration Officer that I proceed to consider whether or not I must hold the immigration officers personally liable for the costs incurred by the Ombudsman in bringing this application.The invitation to the immigration officers.[10]I have taken note of Mr Kanguatjivi’s statement that the immigration officers are not party to the proceedings before court. If the possibility exist that the court may make an order that a public servant be personally responsible to pay the costs of litigation that is before court, common sense and fairness demands that even though the public officer is not a party to the proceedings he or she must be made aware of the risk and he or she must be given an opportunity to advance reasons why such an order must not be made.[11]One of the safest way to bring to the knowledge of a public officer or official the risks that he or she may be exposed to is to formally join him or her as a party to the proceedings, but that is not the only way. In this matter I granted the immigration officers an opportunity for them to state why they must not be mulcted with a costs order, the risk was thus brought to their knowledge and they were given an opportunity to address it. I therefore do not find anything irregular to request, the immigration officers, who were not parties, to the proceedings, to explain why they must not be ordered to pay the costs of the application personally.Personal Cost Orders[12] The general rule in our law is that a successful party is usually entitled to recover his or her costs from the unsuccessful party. Our courts have on occasions ordered persons acting in representative capacities to personally pay the costs of litigation pending before court where the persons have been found guilty of acting in bad faith.[13]The common law rules for granting a personal cost order against persons who are acting in a representative capacity were stated in the matter of Vermaak’s Executor v Vermaak’s Heirs, where Innes CJ formulated the rule as follows;‘The only question to be dealt with in connection with this matter relates to the costs of the appeal. We were asked at the conclusion of our judgment to direct that they should be paid by the executor de bonis propriis, and as the point was one of some importance we reserved our decision upon it.The earlier Cape Decisions show that costs were at one time somewhat freely given against litigants who occupied a fiduciary capacity. But the tendency of the later cases was to protect such from personal liability for costs, save under special circumstances. No very comprehensive or general rule, however, appears to have been laid down. In Standard Bank v Jacobsohn’s Trustee (16 S.C 352) the trustee under a marriage settlement who had brought what in the opinion of the court was a hopeless action, without having any trust funds in his hands, was ordered personally to pay costs. In Lamb v Pieters (17 S.C p.427) a trustee in insolvency was similarly penalized for having unsuccessfully instructed legal proceedings, there being no sufficient funds in the estate to meet the costs, and the trustee having taken a guarantee from the interested creditor for his own costs, though not for the costs of the other side. The court intimated that to justify an order for costs of the de bonis propriis some proof of negligence on the part of the trustee was necessary; and upon the facts it came to the conclusion that such negligence was not entirely absent. The whole question was very carefully considered by this court in Potgieter’s case ( [1908] T.S 982), and a general rule was formulated to the effect that in order to justify a personal order for costs against a litigant occupying a fiduciary capacity his conduct in connection with litigation in question must have been mala fide, negligent or unreasonable.’[14]In the matter of Regional Magistrate Du Preez v Walker, the Appellate Division said:‘It is a well-recognised general rule that the Courts do not grant costs against a judicial officer in relation to the performance by him of such functions solely on the ground that he has acted incorrectly. To do otherwise could unduly, hamper him in the proper exercise of his judicial function … There are, however, exceptions to this rule. Thus if the judicial officer chooses to make himself a party to the merits of the proceedings instituted in order to correct his action and should his opposition to such proceedings fail, the Court may, in its discretion, grant an order for costs against him … It is also a recognised exception to the general rule that if it is established that the judicial officer's decision has been actuated by malice the Court setting aside or correcting such decision may grant costs against him even although he has not made himself a party to the merits of the proceedings.’[15]A similar approach was taken in the matter of Moeca v Addisionele Kommissaris, Bloemfontein, where, an administrative officer had approached and handled an enquiry entirely wrongly, and made an order which was totally inappropriate. The Court on review came to the conclusion that, in the totality of circumstances, a finding of mala fides had to be made. The Court accordingly ordered the administrative officer to pay the costs of the application for review de bonis propriis.[16]The Constitutional Court of South Africa, in the matter of Black Sash Trust v Minister of Social Development and Others (Freedom under Law Intervening), noted that the rules (relating to order a person to pay the costs de bonis propiis) are now buttressed by the Constitution. The Court said:‘Accountability and responsiveness are founding values of our democracy. All organs of state must provide effective and accountable government. The basic values and principles governing public administration include: the promotion and maintenance of a high standard of professional ethics; the promotion of efficient, economic and effective use of resources; public administration must be development-orientated; people’s needs must be responded to; public administration must be accountable; and transparency must be fostered by providing the public with timely, accessible and accurate information. Cabinet members are responsible for the powers and functions of the executive assigned to them by the President and they must act in accordance with the Constitution. All constitutional obligations must be performed diligently and without delay.’[17]The above statement holds equally true for Namibia. Article 1(1) states that Namibia is founded ‘upon the principles of democracy, the rule of law and justice for all’. Article 18 guarantees to the citizen of Namibia and all persons finding themselves in Namibia fair administrative actions. The Article enjoins administrative officials to act fairly and reasonably and comply with requirements imposed on them by common law and relevant legislation.Did the Immigration officers act mala fide?[18]The affidavits filed by Ms Mekatjavi Kanguatjivi and Mr Elias Ernst of the Immigration Department in the Ministry of Home Affairs and Immigration disclose that:(a)The Department of Immigration has no administrative system to track who is arrested when and for how long the person has been arrested;(b)The immigration officers who are tasked with the responsibility of implementing the Immigration Control Act, 1993 have no clue and understating of the piece of legislation they are required to implement.[19]The revelation by the immigration officials is a shocking exposure of the institutional incompetence of the Ministry of Home Affairs which incompetence leads to the disregard of constitutional obligations and infringement of peoples’ rights rather than malice by the immigration officers. Apart from the disregard of the constitutional obligation the institutional failures exposes the State and Government of Namibia not only to risks of civil claims and liabilities but also puts the national security of the Country at risk.[20]If the Department of Immigration and Border Control in the Ministry of Home Affairs and Immigration does not have a proper administrative system or a proper record keeping system how does that department know who has come or left the country, how does the that Department even ensure that persons who have been convicted of criminal offences in Namibia or who are security risks to the country are not allowed back Namibia? I am thus satisfied that the unlawful detentions and disregard of the Constitutional and statutory provisions were not motivated by malice on the part of the immigration officers but were a result of institutional failures by the Ministry of Home Affairs.[21]The general rule that costs follow the course applies to this matter, however, it is the taxpayer who ultimately will meet those costs. The litigation that has been spawned by this administrative failure, with adverse implications for the public purse, is capable of being avoided. It is therefore time for courts to seriously consider holding officials who are entrusted with the running of public institutions and who fail in the execution of their functions as demonstrated by the facts of this case, to be personally liable for costs incurred by litigation occasioned by their failures.[22]I say so because I am of the view that it is simply not acceptable nor can be justified and neither should it be tolerated that the disregard of constitutional obligations and infringement of rights must be allowed to continue with the tax payer ultimately being forced to pay for the disregard of constitutional obligations and infringement of rights by inept public officials, particularly where there is a shortage of funds to pay for health care, for environmental protection, education and for a host of other areas of government where funds are needed.[23]In conclusion I am of the view that the Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must;with the assistance of other governmental departments particularly the Information Technology Department in the office of the Prime Minister, design programmes that are directed at addressing the short comings identified in the in the affidavit of the Chief Immigration Officer, Mr Elias Ernst; and with the assistance of other governmental departments particularly the office of the Attorney General (and if necessary the Faculty of Law in the University of Namibia), design a training programme and train all immigration officers and other persons in the Ministry of Home Affairs and Immigration who are tasked with the implementation of the Immigration Control Act, 1993 in the application of the Immigration Control Act, 1993 and other Constitutional provisions that are relevant to their functions.[24]The Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must design the programmes that I have identified above in paragraph 23 of this judgment by not later than 30 September 2018 and report back, by not later than 15 October 2018, to this Court through the office of the Chief Registrar on the implementation of the order set out in that paragraph. [25]I further direct that, after 30 November 2018, a person who has not been trained or who is not conversant with the provisions of the Immigration Control Act, 1993 must not be permitted to exercise the powers set out in that Act. I furthermore direct that Chief Registrar must provide a copy of this judgment for the personal attention of the Prime Minister, the Minister Responsible for Home Affairs and Immigration, the Attorney General, the Permanent Secretary in the Ministry of Home Affairs and Immigration and the Chief Immigration Officer.[25]In the result I make the following order:The respondents must, jointly and severally the one paying the others to be absolved, pay the applicant’s costs of this application the costs to include the costs of one instructing and one instructed counsel.2The Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must;with the assistance of other governmental departments particularly the Information Technology Department in the office of the Prime Minister, design programmes that are directed at addressing the short comings identified in the in the affidavit of the Chief Immigration Officer, Mr Elias Ernst; and with the assistance of other governmental departments particularly the office of the Attorney General (and if necessary the Faculty of Law in the University of Namibia), design a training programme and train all immigration officers and other persons in the Ministry of Home Affairs and Immigration who are tasked with the implementation of the Immigration Control Act, 1993 in the application of the Immigration Control Act, 1993 and other Constitutional provisions that are relevant to their functions.3The Chief Immigration Officer and the Permanent Secretary in the Ministry of Home Affairs must design the programmes identified above in paragraph 23 of this judgment by not later than 30 September 2018 and report back, by not later than 15 October 2018, to this Court through the office of the Chief Registrar on the implementation of the order set out in that paragraph. After 30 November 2018, a person who has not been trained or who is not conversant with the provisions of the Immigration Control Act, 1993 must not be permitted to exercise the powers set out in that Act. 5.The Chief Registrar must provide a copy of this judgment for the personal attention of the Prime Minister, the Minister Responsible for Home Affairs and Immigration, the Attorney General, the Permanent Secretary in the Ministry of Home Affairs and Immigration and the Chief Immigration Officer--------------------------------- SFI Ueitele JudgeAPPEARANCESAPPLICANT:Y CampbellInstructed by Tjombe Elago Inc, Windhoek FIRST, SECOND,THIRD, FOURTH, FIFTH,SIXTH, SEVENTH, EIGHTNINETH RESPONDENTS:S Kahengombeof the Office of the Government Attorney, Windhoek ................
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