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Luboya and Another v State
(2007) AHRLR 165 (NaSC 2007)
171
(the Director), according to Mr Windstaan’s explanation at the pretrial
hearing, thereupon made a decision denying the appellants legal
aid. He gave no reason for his decision, and Mr Windstaan said that
under the enabling statute the Director was not obliged to give any
reasons for his refusal to grant legal aid.
[22.] In the first place the Legal Aid Act does not contain any
provision stating, as Mr Windstaan erroneously stated, that the
Director is not obliged to give any reasons for refusing to grand legal
aid. In so asserting Mr Windstaan was relying on a figment of his own
imagination. Furthermore, this court has repeatedly stated that when
public officials and administrative bodies are charged with the
responsibility of making decisions which may adversely affect
members of the public, they are in the first place required to comply
with the audi alterem partem rule, thereby enabling the affected
member of the public to be heard on the matter before the decision
is made. See for example our unanimous judgment in the case of the
Minister of Health and Social Services v Eberhard Wolfgang Lisse,
appeal case SA 23/2004 (unreported). Our ratio decidendi is based on
the interpretation of article 18 of the Constitution which provides as
follows:
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.
[23.] The dictum of O’Linn, J, as he then was, in the case of Aonin
Fishing v Minister of Fishing and Marine Resources, 1998 NR 147 (HC)
150G was to the like effect. He said:
There can be no doubt that article 18 of the Constitution of Namibia
pertaining to administrative justice requires not only reasonable and
fair decisions based on reasonable grounds, but fair procedures which
are transparent.
[24.] In the present case the refusal to grant legal aid was made
without the appellants even knowing that their fate regarding access
to such aid was being considered to their detriment. Additionally no
reasons for the decision were disclosed to them. Such exercise of
public duty did not measure up to the requirement of the common
law and did not accord with the precept of transparency required by
article 18 of the Constitution. Transparency encapsulates the
application of the audi alterem partem rule.
[25.] It is my considered view that the Director failed to comply with
the requirements of article 18 of the Constitution. In particular, he
failed to abide by the requirement to hear the appellants before
deciding to deny them legal aid. Better still, and although he was not
obliged under the law to do so, he should have given reasons for not
granting them legal aid. Had he done so he might have forestalled the
speculation which was aired by the appellants' counsel that they were
denied legal aid because they were foreigners. We have seen that
Supreme Court, Namibia