Graham v Master of High Court (HC-MD-CIV-MOT-REV 415 of 2020) [2020] NAHCMD 547 (27 November 2020)

Key Facts

Issues

• The Master and respondents raised non-joinder of the Board of BIPA (responsible for reviewing Master's decisions) and Bank Windhoek (major creditor). The court upheld these objections, ruling that all parties with a direct legal interest—particularly those who would be prejudiced by the applicants' requested orders—must be joined before proceeding.
• The applicants challenged the legality of the Master of the High Court's administrative practice of appointing provisional liquidators based solely on the order in which security bonds were lodged, arguing it conflicts with sections 375 of the Companies Act 28 of 2004 and section 56 of the Insolvency Act 24 of 1936. The Master defended the practice as administrative and subject to judicial review, while respondents raised concerns about the impact on all liquidators in Namibia.
• The Master and respondents contested the urgency of the application, asserting the applicants failed to demonstrate an immediate need for interim relief. The court deferred detailed scrutiny of the urgency to after addressing the non-joinder issue, noting procedural irregularities in the applicants' approach.

Holdings

• The current matter is not one of the cases where the Master should be precluded from fully participating in the proceedings as the matter touches on her administrative functions, which are subject to judicial review.
• Where the issues in contention touch upon judicial and quasi-judicial issues, the Master's office should generally desist from grappling with the issues on the merits and thus uphold the independence and impartiality of the office in that particular scenario.
• The Master's contention that BIPA has a direct and substantial interest in the proceedings cannot be upheld.
• Where there has been a change in instructions or approach previously indicated to the court and placed on record, the court and the other parties are entitled to be informed and notified officially of the change and in good time.
• The question of non-joinder, as alleged by both respondents, should be dealt with anterior, even before the question of urgency is entertained.
• The point of non-joinder of Bank Windhoek Limited and other liquidators in Namibia, taken by the 2nd and 3rd respondents, is meritorious and is thus upheld.
• The Master's office would be expected to fully participate in litigation and the extent to which that would be necessary, should depend on the nature of the power the Master exercises in relation to issues giving rise to litigation in question.

Remedies

• The applicants are ordered to pay the costs associated with the employment of one instructing and two instructed counsel, as per the court's ruling.
• Bank Windhoek and all joined liquidators must file their Notice to Oppose by 20 January 2021.
• The court noted that the Master of the High Court did not provide the record of proceedings as required by the Notice of Motion.
• All joined parties must submit their Answering Affidavit by 29 January 2021.
• Applicants may file replying affidavits by 17 February 2021 if advised, with respondents allowed to supplement their affidavits as necessary.
• The applicants are required to, with the assistance of the Registrar of the High Court, join Bank Windhoek Limited and all liquidators in Namibia to the case via the E-Justice system on or before 11 December 2020.
• The Master of the High Court is required to furnish the applicants with a comprehensive list of all liquidators in Namibia on or before 2 December 2020.
• The applicants must serve all pleadings and court orders on Bank Windhoek and the joined liquidators by 15 January 2021.
• The applicants are granted leave to publish the Notice of Motion and Court Order in The Namibian and Republikein by 2 December 2020 to notify unjoined liquidators to request joining the case by 9 December 2020.
• The Master is required to submit a condonation application by 14 December 2020, adhering to Rules 32(9) and (10) of the court's procedures.
• The matter is postponed to a status hearing on 25 February 2021 at 8:30 AM, pending further developments.

Legal Principles

• The court applied judicial review principles to assess the legality of the Master's administrative practice of appointing provisional liquidators based on 'first come first served' security bonds. This practice was challenged as inconsistent with the Companies Act 28 of 2004, particularly section 375, which governs liquidator appointments. The court emphasized that administrative decisions by the Master are subject to judicial review under Article 18 of the Namibian Constitution.
• The court distinguished between the Master's administrative and judicial functions, determining that administrative decisions (like liquidator appointments) allow full participation in litigation to explain actions. This contrasts with judicial or quasi-judicial functions, where the Master's involvement might compromise impartiality. The ruling clarified the scope of the Master's authority under the Administration of Estates Act and the need for procedural compliance in administrative decisions.

Precedent Name

• Esau v The Director–General: Anti Corruption Commission
• Ondonga Traditional Authority v Oukwanyama Traditional Authority
• Southline Retail Centre CC v BP Namibia (Pty) Ltd
• Tjirare v Chairperson of the Electoral Commission of Namibia

Cited Statute

• Companies Act 28 of 2004
• Insolvency Act 24 of 1936

Judge Name

Passage Text

• I would therefor subscribe to the view that the Master should, where the issues in contention touch upon judicial and quasi-judicial issues, generally desist from grappling with the issues on the merits and thus uphold the independence and impartiality of the office in that particular scenario.
• In the premises, I am of the considered opinion that the point of non-joinder taken by the 2nd and 3rd respondents, is meritorious. The parties referred to do have a direct and substantial interest in the relief sought. To proceed and grant the relief unbeknown to them, would be tantamount to visiting an injustice upon them and their interests that the court should not countenance.
• The point of law in limine raised by the Respondents regarding the non-joinder of Bank Windhoek Limited and other Liquidators in Namibia is upheld.