- April 11, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant proceeded and planned a public peaceful demonstration against the high unemployment rate in Namibia. They intended this march to take place on 21 March 2023, which is Namibia’s national Independence Day. On 10 March 2023, the applicant issued a notice to the first respondent to have a peaceful national protest against the high unemployment rate in Namibia. This decision was triggered by an event where more than 2400 persons applied for eight vacant positions at a local restaurant.
On 18 March 2023, Mr Amushelelo received a letter dated 17 March 2023 from the first respondent which directed that the proposed demonstration must be rescheduled to any other date. The first respondent explained that consideration is given to Article 118 of the Namibian Constitution which mandates the Namibian Police Force to ensure that the internal security of Namibia is thoroughly secured, and law and order are maintained without jeopardy. The Inspector-General further explained that taking into consideration the national security interests and the fact that the intended peaceful demonstration is scheduled to take place on 21 March 2023, he had reason to believe that the intended peaceful demonstration may cause feelings of hostility between different sections of the population or may compel any person to abstain from doing an act which such person is legally entitled to do. He then invoked the powers granted to him by section 3(1) of the Public Gatherings Proclamation, AG23 of 1989, and directed the demonstration to take place on any other date.
The applicants sought an order interdicting the first and second respondents not to proceed in any way with the implementation of the decision taken by the first respondent on the 17th of March 2023 and to, with immediate effect, allow the applicant to proceed with the peaceful protest earmarked for the 21st of March 2023 as if the above decision was not made on such conditions as may be imposed by the first respondent. The respondents opposed this application.
Interim relief
Rakow J:
‘[23] The requisites for interim relief are well settled and were neatly summarised in Hix Networking Technologies v System Publishers (Pty) Ltd as follows:
‘The legal principles governing interim interdicts in this country are well known. They can be briefly restated. The requisites are:
(a) a prima facie right,
(b) a well-grounded apprehension of irreparable harm if the relief is not granted,
(c) that the balance of convenience favours the granting of an interim interdict; and
(d) that the applicant has no other satisfactory remedy.’
[24] In Nakanyala v Inspector-General Namibia and Others in addition to the above principles, it was said that ‘(t)o these must be added the fact that the remedy is a discretionary remedy and that the court has a wide discretion.’ ‘
[25] When considering the legal principles governing interim interdicts, it is clear that the applicant has in fact to make out a prima facie right. This entails on its own averred or admitted facts that the applicant should obtain the final relief it seeks. In Ferreira v Levin No; Vryenhoek v Powell NO the court said the following:
‘It has, up to now, been accepted that in order to establish a prima facie right entitling an applicant to an interim interdict, an applicant has to make out a case that he is entitled to final relief. If on the facts alleged by the applicant and the undisputed facts alleged by the respondent, a Court would not be able to grant final relief, the applicant has not established a prima facie right and is not entitled to interim protection.’
[26] The applicants must therefore make out a prima facie right, not only to hold their demonstration but to hold it on 21 March 2023. From the reading of the Constitution and the interpretation of the right to assemble peaceably and without arms as provided for under Article 21(1)(d) of the Namibian Constitution. It further seems that such a right can be exercised on any day of the year and may only be subject to reasonable restriction in terms of a law which restriction is necessary for a democratic society and meet certain constitutional grounds.
[27] The second requisite is that there must be a well-grounded apprehension of irreparable harm if the relief is not granted. Some authors referred to this requirement as the injury requirement. In Herbstein & van Winsen, The Civil Practice of the High Courts of South Africa they understood injury as follows:
‘The word ‘injury’ must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights.’
[28] And further, in Herbstein & van Winsen, the writers said the following about the action: ‘When the cause of action giving rise to a claim for an interdict is in delict the plaintiff or applicant must allege and prove facts to show that the conduct of the defendant or respondent which is sought to interdict is wrongful. To decide whether conduct is wrongful in the delictual sense, the court applies the general criterion of reasonableness, which is determined according to the legal convictions of the community. The decision involves policy considerations, and the court has to evaluate and balance the conflicting interests of all concerned parties, with due regard to inter alia the social consequences of recognizing or denying the existence of liability in a given case.
[29] In the matter before the court, the Inspector-General explains that because of the date the applicant chose to do the demonstration, ‘the police force will not be able to render the required services to ensure maintenance of law and order during the intended peaceful demonstrations.’ As such the reason for the actions of the respondents has been stated and it is further essential to the convictions of the community at large to see that demonstrations are held peacefully and orderly with as little as possible damage caused to property and this is ensured by a strong police presence which will be able to stop any rioting even before it starts. The conduct of the respondents is also sanctioned by the duties assigned to the Inspector-General in the Public Gatherings Proclamation.
[30] The next element is that the balance of convenience favours the granting of an interim interdict. The discussion of this element is closely related to the discussion above and the court is of the view that the applicant did not make out a case that the balance of convenience favours the applicant.
[31] The applicant must further show that it has no other satisfactory remedy. The manner in which the current application is drawn up allows for alternative redress in due course. Part B of the current application seeks for the review and setting aside of the decision of 17 March 2023 of the Inspector-General and as such, should be seen as an alternative remedy available to the applicants.
[32] Courts have a wide discretion to allow this remedy but also a duty to make sure that any order is made in the interest of justice. The court takes cognisance of the constitutional duty which is assigned to the Inspector-General and the National Police Force in that they are responsible for law and order in the country and as such have certain duties which they need to perform in the event of a demonstration. The court, therefore, accepts that the Inspector-General is performing his duties under the Public Gatherings Proclamation and choose to give permission for the demonstration to proceed on any other day than 21 March 2023.’
As a result, the applicant’s non-compliance with the forms and service provided for by the Honourable Court was condoned and the matter is heard as one of urgency as contemplated by rule 73(3) of the rules. The applicant’s application under Part A was dismissed. The applicant is to pay the respondents’ costs, including the costs of one instructed and one instructing counsel.