- December 13, 2022
- |Law Everyday
LESSONS FROM MWIYA v MINISTER OF SPORTS SETTLEMENT
The proverbial David v Goliath idiom often finds application in jurisprudence, in general, and, in the Administrative Law vis-à-vis Corporate Governance, and Labour Law space. In the general context, one party in litigation is often more powerful than the other. In the Administrative Law vis-à-vis Corporate Governance and Labour Law context, accounting officers of Public Entities often found themselves in legal battles with their Minister bosses, or managers against their Executive bosses.
Briefly, Administrative Law is that area of our law which determines the powers and duties of public administration authorities and regulates the exercise and performance of those powers. Corporate Governance law is that area of the law which deals with the regulation and management of corporate entities. Labour law
is that compendium of laws which deals with employer/employee relations. In respect of administrative law, Article 18 of the Namibian Constitution requires administrative bodies and administrative officials to act fairly and reasonably and comply with the requirements imposed upon them by common law and any relevant legislation. When such bodies fail to act accordingly, any person aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a competent Court or Tribunal. The case of Simataa Mwiya v Minister of Sports, Youth & National Service & Another presented a fresh precedent in the Administrative Law vis-à-vis Corporate Governance, and Labour Law space, one which deserves a closer look.
On 26 March 2022, Namibia Sports Commission (NSC) recommended to the Minister the re-appointment of the
incumbent Chief Administrator, Mr. Mwiya. On 29 March 2022, the Minister rejected the recommendation and directed that the position be advertised. On 25 May 2022, Mr. Mwiya approached the High Court with an urgent application seeking to review and set aside the decision(s) of the Minister. This urgent application was set down for hearing at 10h00 on 27 May 2022, but it was postponed to 30 May 2022 for hearing before another judge.
Meanwhile on 27 May 2022 at 11h59, the parties filed a Settlement Agreement in terms of which the Minister agreed that Mr. Mwiya remains as Chief Administrator, and in turn, Mr. Mwiya agreed to abandon his urgent application (Part A of the application). On 30 May 2022, the Minister filed a notice to oppose Part B of the
application. Part B is where Mr. Mwiya asserted his Article 18 right to seek redress as a person aggrieved by the exercise of administrative acts and decisions, in this case by the Minister. For all intents and purposes, the matter was set to become full-blown litigation, and this is evidenced by the fact that the parties exchanged documents to further their respective claims, which documents included the record of the impugned decision(s), status reports and case management reports. All seemed set for yet another showdown between an executive of a Public Entity and a Minister, but, as fate would have it, things started to change after the case management conference hearing of 9 August 2022 where the matter was postponed to 31 August 2022 for Status hearing, for reason that the parties were engaged in settlement negotiations.
On 30 August 2022 at 11h59, the parties filed a Settlement Agreement in respect of Part B of the application. The Minister effectively accepted that her decision of 29 March 2022 to reject the recommendation to reappoint Mr. Mwiya as Chief Administrator of NSC, and her direction that the position is advertised, was wrong.
The basis for this, in law, was that the decision(s) was against Article 18 of the Namibian Constitution which was highlighted above. The Minister also agreed to accept the earlier recommendations of the Board of Commissioners of 26 March 2022 and 16 May 2022, which were made in terms of the Namibia Sports Act, 13 of 2003, to re-appoint Mr. Mwiya. Effectively, by virtue of the settlement agreement, the Minister re-appointed Mr. Mwiya as the Chief Administrator of the NSC for a period of 5 years, from 1 September 2022 to 31 August 2027.
This is not something we see every day and the parties must be commended for it. I say that because this matter could have taken another route, the full-blown litigation route. As stated earlier, the parties exchanged documents to further their respective claims and I am sure they also prepared financially, and procurementwise for the Minister, to ensure that they are well represented on the day of the hearing. The matter could have taken longer to finalize had it taken that route. I am talking about legal costs because while the matter could have ended up in the Minster being ordered to do the same things she agreed to do, the same thing cannot be said about the costs the Government would have had to pay in future. The same would be the case for the applicant in respect of legal costs if he failed to prove his case. In terms of the settlement agreement, the
Minister agreed to pay the Applicant’s costs which include one instructing and one instructed counsel, subject to taxation. Thus, the costs were much lesser than they would be years later.
It is also worth observing that because the parties settled, the governance of the Namibia Sports Commission is preserved, which must have been the intention of the Commission when it recommended the re-appointment of Mr. Mwiya.
Fedden Mainga Mukwata – Legal Pundit