High Court ruling on the request for documents concerning the negotiations on the Joint Declaration
Summary by the High Court:
“This is an interlocutory application by the applicants ancillary to their pending review application (against the first respondent’s decision to note a joint declaration) calling on ‘the respondents’ to ‘discover’ the documents under the ten items in their notice of motion (the requested documents).
The applicants believe the requested documents are admittedly in the respondents’ possession and relevant to the decisions ’embodied in the review record’.
All the respondents opposed the application through one deponent. The respondents say some requested documents do not exist, and some could not be located despite a vigorous search, and thus, they do not have those documents.
Furthermore, they say some requested documents are still being drafted by representatives of the Namibian and German Governments, and the applicants are not entitled to those draft texts.
Lastly, they say some requested documents, in the form of drafts prepared by the Attorney General (the fifth respondent) for the respondents, cannot be provided because they are still being negotiated or the attorney-client privilege protects them.”
See: Word Document of the High Court ruling, page 3 (last checked in October 2024)
Editor’s note:
On 20 January 2023 OvaHerero and Nama filed a lawsuit against the Joint Declaration of the Governments of Namibia and Germany (see report of Allgemeine Zeitung and report of Deutsche Welle. The lawsuit is entitled “Swartbooi v The Speaker of the National Assembly”. Bernadus Swartbooi (LPM) is the first of 13 applicants, the speaker of the NA is the first of five respondents.
The High Court ruling of 7 October 2024 relates to the interlocutory application for disclosure of documents concerning the negotiations on the Joint Declaration and an addendum. This ruling contains two main aspects.
1. the application is dismissed.
2. the case management conference in the main matter scheduled for 16 October 2024 is postponed to 22 January 2025.
Further details of the ruling:
“HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING
Case number:
HC-MD-CIV-MOT-REV-2023/00023
INT-HC-COMP-2024/00503
In the matter between:
BERNADUS SWARTBOOI 1ST APPLICANT
OVAHERERO TRADITIONAL AUTHORITY 2ND APPLICANT
AFRIKANER TRADITIONAL AUTHORITY 3RD APPLICANT
!AMAN TRADITIONAL AUTHORITY 4TH APPLICANT
BLOUSES TRADITIONAL AUTHORITY 5TH APPLICANT
BONDELSWART TRADITIONAL AUTHORITY 6TH APPLICANT
KAI/KHAUN TRADITIONAL AUTHORITY 7TH APPLICANT
!KHARKHOE TRADITIONAL AUTHORITY 8TH APPLICANT
SWARTBOOI TRADITIONAL AUTHORITY 9TH APPLICANT
TOPNAAR TRADITIONAL AUTHORITY 10TH APPLICANT
WITBOOI TRADITIONAL AUTHORITY 11TH APPLICANT
/HAI-KHAU TRADITIONAL AUTHORITY 12TH APPLICANT
LANDLESS PEOPLES MOVEMENT 13TH APPLICANT
and
THE SPEAKER OF THE NATIONAL ASSEMBLY 1ST RESPONDENT
THE NATIONAL ASSEMBLY 2ND RESPONDENT
THE PRESIDENT 3RD RESPONDENT
THE CABINET 4TH RESPONDENT
THE ATTORNEY-GENERAL 5TH RESPONDENT
Neutral citation: Swartbooi v The Speaker of the National Assembly (HC-MD-CIV-MOT-REV-2023/00023) [2024] NAHCMD 592 (7 October 2024)
Coram: DE JAGER J
Heard: 16 September 2024
Delivered: 7 October 2024”
[…]
Conclusion
[45] In conclusion, it is ordered that:
1. The application under INT-HC-COMP-2024/00503 is dismissed.
2. The applicants must pay the respondents’ costs occasioned by the application under INT-HC-COMP-2024/00503 jointly and severally, the one paying the others to be absolved, including the costs of one instructing and one instructed legal practitioner, uncapped under rule 32(11).
3. The application under INT-HC-COMP-2024/00503 is finalised and removed from the roll.
4. The period provided for in rule 76(9) runs from the date of this order, followed by the periods provided for in rules 77(1)(b) and (2), read with rule 66(2).
5. The parties must deliver a joint case management report on or before 16 January 2025 instead of 10 October 2024 as ordered in paragraph 9 of the court order dated 15 July 2024.
6. The matter under HC-MD-CIV-ACT-CON-2023/03285 is postponed to 22 January 2025 at 08:30 for a case management conference, and the case management conference scheduled for 16 October 2024 under paragraph 10 of the court order dated 15 July 2024 is replaced accordingly.
7. If deadlines are not met or the matter stalls for any reason, the parties must forthwith request the managing judge to schedule a status hearing under rule 27(1) and simultaneously ensure that the request is brought to the managing judge’s attention and, in such event, the parties must, for the time being, take whatever steps required by law, failing which sanctions may be imposed against them, and they must further take steps to avoid the matter from stalling.
__________________
B DE JAGER
Judge”
- Full text (29 pages) of the High Court ruling as PDF document
- Original document (29 pages) of the High Court ruling as Word document. Source: Website of Namibia Superior Courts (last checked in October 2024)