Swapo Four back in the fold

Delivering his judgment in the case in which expelled Swapo members Job Amupanda, Dimbulukeni Nauyoma, George Kambala and Elijah Ngurare dragged the ruling Swapo Party and its leaders to court following their expulsion, Acting High Court Judge Collins Parker found that there were three intertwined issues to be considered by the court.
The first was the competence of the court to intervene in the internal dispute of a political party, that is, an unincorporated voluntary association.
The second issue was the applicants’ rights under the Swapo constitution, as supplemented by the party’s code of conduct and disciplinary procedures; and the third was the performance of the applicants’ rights and appropriate remedy.

On the court’s jurisdiction
On the first issue of the court’s competence to intervene in the internal disputes of a political party, the applicants contended that the court was competent while the respondents argued that the court was not competent to entertain political battles.
Judge Parker found that Amupanda and others came to the court in order to pursue their contractual rights under the Swapo constitution. He found that the rules and procedures constituted a contract between Swapo and its members.
Parker accepted Swapo legal representative Vincent Maleka’s submission that the court was always competent to enforce a contract that was valid and for lawful purposes. He found that in this case, the political purposes were not only lawful, they were also given constitutional blessing by the Namibian Constitution. He found that Swapo’s constitution, as supplemented by its code of conduct, contained the contract between members and Swapo and was as much subject to jurisdiction of the courts as any other contract. Parker also said that in Namibia, issues concerning justice and fairness were not seen as “political matters”’.
“The applicants ... approached the seat of judgment of the court in order to enforce their contractual right on the basis of their entitlement to natural justice, including fairness and justice. There is nothing political about that,” Parker ruled.

The applicants’ rights
Parker said the ‘Swapo Four’ had rights provided by the rules and procedures and the party’s constitution and code conduct, and they were entitled to due implementation of those rules and procedures in relation to them.
“Any action taken against a member must be in accordance with the rules and procedures; and if they are aggrieved by any such action, they are entitled to approach the seat of judgment of the court for redress; and need I say, that it is what they have done. They are aggrieved by the ‘suspension’ and expulsion,” Parker said.
The judge said the issue was not whether the persons involved deserved to be expelled, or who had the power to expel them. “The issue is simply whether there was due process,” he said.
Swapo’s legal team had argued that the expelled four had committed serious transgressions. “The hearing the applicants were entitled to, and which they were denied, was precisely to determine whether the applicants were guilty of those transgressions,” Judge Parker said in response.
“Thus, ... the case against the applicants may look like an open-and-shut case but which somehow could have turned out to be not so, if they were heard; the transgressions may look unanswerable transgressions, but which could have been answered, if the applicants were heard; the conduct of the applicants could have been fully explained; if they were heard, and decisions made by the responsible authorities could have suffered a change, if the applicants were heard. How could the respondents fairly and justly find that the applicants have committed those transgressions without hearing their defence? It was on this simple and general ground that this court should uphold the applicants’ rights under contract,” he said.
He said Swapo had prejudged the merits of the case. “They have acted in breach of contract that binds the applicants in contractual relations with the first respondents (Swapo),” Judge Parker said. He also said that in his opinion, the Swapo leadership was wrongly advised on the true interpretation and proper application of the relevant provisions of the Swapo constitution and code of conduct.

The enforcement of applicants’ rights
Earlier, on behalf of Swapo, senior counsel Vas Soni suggested that even if the applicants were entitled to an order of specific performance in this case that would consist of an order that a disciplinary hearing be held in terms of the prescribed procedure.
Judge Parker however accepted Maleka’s submission that the court was not competent to grant such an order. “The court will not grant an order which the court does not think is a proper order to grant in virtue of the forgoing reasoning and conclusions,” the judge said.
Parker found that the unlawful acts of the respondents amounted to a breach of contract embodied in the Swapo constitution. He said they violated the applicants’ rights under contract; and so the court would grant a declaration that the decision to suspend and expel the applicants was unlawful.
Judge Parker granted an order for the party membership of the Swapo Four to be restored. With regard to being restored to their positions in the party, Parker said the applicants were expelled some eight months ago and that the likelihood that the positions held before their expulsions might have been filled cannot be lightly discounted. He also said no evidence was placed before the court to show that the positions are to date unoccupied. He also noted that the applicants did not hold positions by virtue of being members. He said it would be inequitable and unsafe and unreasonable for the court to go further and grant this second order. As such, Parker declined to grant an order to have the Swapo Four reinstated to any positions held.
With regard to cost, although the Swapo Four succeeded in the application for a number of orders sought, some of the orders applied for were unnecessary because of the way they were framed in the notice of motion, requiring the respondents to do more than what was necessary to resist the application, and thus, prolonging proceedings unnecessary.
Judge Parker also noted that the respondent was a big political party and the applicants individual persons and they had succeeded in being granted four out of seven orders sought. “Consequently, I think the applicants are entitled to the cost of this application, but to the extent of 60 percent only of the cost,” he said.

GORDON JOSEPH