CASE NOS.:
I 1603/2008
I 3518/2008
I 3007/2008
I 2692/2008
I 3519/2008
I 3517/2008
HN
JS
LM
MI
NH
PARKER J
2009 December 16
_______________________________________________________________________________
2
Statute- Section 33 of the Public Service Act, 1995 (Act No. 13 of 1995)
Having done so, Court holding that the phrase ‘anything done
Statute - Public Service Act – Long title of – Court finding that the long
the case with the long title of any other legislation – Court
finding the purpose and scope of the Public Service Act is the
Statute - The Public Service Act – Various Regulations and Staff Rules
the Act, the Act includes the Regulations and Staff Rules.
Held, that the function of the long title of a statute like the Public Service Act is
to use the long title for the purpose of ascertaining the purpose of the Act
Held, further that the phrase ‘anything done in terms of the Act’ means any
terms of the Act’ means any failure or refusal to exercise power given by a
Held, further that codes under the Code of Conduct prescribed in the various
Regulations and Staff Rules made under the Public Service Act are for
but a breach of a code does not of itself give rise to criminal or civil
liability.
4
REPORTABLE
CASE NOS.:
I 1603/2008
I 3518/2008
I 3007/2008
I 2692/2008
I 3519/2008
I 3517/2008
HN 1st Plaintiff
JS 2nd Plaintiff
HM 3rd Plaintiff
LM 4th Plaintiff
MI 5th Plaintiff
NH 6th Plaintiff
and
CORAM: PARKER J
_______________________________________________________________________________
5
JUDGMENT:
PARKER J.:
consolidated into two cases. It is the determination of the special plea, raised by
the defendants, which is the burden of the Court in the present proceedings,
and the special plea is raised in five of the six cases; no special plea is raised in
[2] Mr. Corbett represents the defendant and Mr. Smuts SC represents the
them for their industry. I have considered the authorities counsel referred to
me, but I do not think I should pepper this judgment with leafy extracts from
those authorities, seeing that in these proceedings the case falls within
[3] The pleadings in all the six cases are along the same lines, except personal
details and dates, as Mr. Corbett submitted, and so, the particulars of claim in
Case No. I 1603/2008 are used as an example of the claims made by the
against the defendant for damages arising (1) from the allegedly unlawful
employed by the State at State hospitals, on the basis that the medical
6
practitioners breached the duty of care the practitioners owed to the plaintiffs
(Claim 1) and (2) from the plaintiffs’ allegations that the aforementioned
against the plaintiffs on the basis of their HIV status, in breach of the plaintiffs’
[4] Mr. Corbett submitted that the claims are delictual claims; and Mr. Smuts
agrees. Moreover, it is not disputed that the defendant is being sued in the
actions on the basis of the defendant’s vicarious liability because the defendant
practitioners carried out the acts complained of, as aforesaid, in the course and
[5] The one single issue that I must determine is as follows. In raising the
special plea, the defendant contends that the alleged delictual acts, particularly
terms of this Act (i.e. the Public Service Act, 1995 (Act No. 13 of 1995) (‘the
[6] Thus, according to Mr. Corbett if I accept the defendant’s position that s.
be brought have expired and so therefore the action has prescribed because the
instant actions were instituted after the expiration of the statutorily prescribed
time limit of 12 months. Mr. Smuts on the other hand urged the Court to find
that s. 33 does not apply to the aforementioned acts of the medical practitioners
simply because the acts in question do not constitute ‘anything done or omitted
[7] It is my view that in determining the special plea I must keep firmly in my
the only efficacious key for unlocking the door of the issue raised by the special
plea.
[8] In Namibia, every staff member (see s. 1 of the PSA) is subject to the PSA
(s. 36 of the PSA). For that reason I may characterize the PSA as an Act of
general application in virtue of the fact that the PSA governs every staff member,
irrespective of (1) the power the staff member exercises under any applicable
8
legislation, (2) the functions the staff member performs under any applicable
legislation, (3) the grade the staff member holds in the structure of the Public
Service (see s. 1 of the PSA), (4) the Office, Ministry or Agency the staff member
is employed in (see s. 1 of the PSA), (5) whether the staff member is employed
s.34(1)(a), of the PSA), or (6) the profession, vocation or trade that the staff
[9] Thus, for example, the Chief Presidential jet pilot and an aircraft engineer
of the jet and a cleaner – all of whom are employed in the Ministry of Works and
Transport – are all governed by the PSA. The PSA governs the Surveyor-General
example that is nearer home is this: the Chief Registrar and the assistant
registrars and the clerks and the cleaners employed in the Directorate: High
Court and Supreme Court are all subject to the PSA in virtue of the fact that
they are all staff members. Yet again, an example that is nearer home to the
records clerk and a cleaner, employed in the Ministry of Health and Social
Act [t]o provide for the establishment, management and efficiency of the Public
Service, the regulation of the employment, conditions of service, discipline,
retirement and discharge of staff members in the Public Service, and other
incidental matters.
[11] And it has been said of the long title of a statute by G C Thornton in his
Every Act begins with a long title the function of which is to indicate the general
purpose of the Act. The long title is part of the Act, being considered because it is
legitimate to use it for the purpose of interpreting the Act as a whole and
ascertaining its scope. (Vacher & Sons Ltd v London Society of Compositors [1913]
AC 107 at 128)
statute, is governed not only by the PSA, as aforesaid, but is governed also by
manner in which such staff member exercises power under the legislation in
question. For example, a surveyor who is a staff member is governed by both the
PSA and the Land Survey Act, 1993 (Act No. 33 of 1993), among other suchlike
High Court (and the Supreme Court) is governed by the PSA; she is also
governed by the High Court Act, 1990 (Act No. 16 of 1990); and a medical
10
practitioner who is a staff member is governed by PSA and the Hospitals and
Health Facilities Act, 1994 (Act No. 36 of 1994) and other work-related statutes.
[13] Thus, in contradistinction to the PSA are such statutes as the Hospitals
and Health Facilities Act, 1994 and any regulations made thereunder, the High
Court Act, 1990 and Rules made thereunder, the Land Survey Act, 1993 and
any regulations made thereunder; just to mention a few to illustrate the point.
For example, the High Court Act governs the Chief Registrar, a staff member.
There are many suchlike legislation in the management and functioning of the
aforesaid, in the sense that its scope is personnel management of staff members,
such statutes as Act No. 36 of 1994, Act No. 16 of 1990, and Act No. 33 of 1993
power-based legislation.
[14] Accordingly, if the Chief Presidential jet pilot flew His Excellency the
President to a SADC Summit held in Kinshasa (the DRC), the Chief pilot has not
exercised power given by the PSA. But if the Chief Presidential Pilot
promoted, the Chief Presidential Pilot has exercised power given by the PSA. By
the same token, if the Chief Surgeon of the Oshakati State Hospital performed a
Hospital, the Chief Surgeon has not exercised power given by the PSA; but if the
11
Chief Surgeon posted an advertisement in the New Era calling for applications
from school leavers who wish to be appointed as record clerks in the Oshakati
State Hospital, the Chief Surgeon has exercised power given by the PSA. And yet
again, if the Chief Registrar of the High Court granted default judgment she has
not exercised power given by the PSA. However, if the Chief Registrar of the High
Court held a disciplinary hearing involving one of the clerks who is charged with
Justice that one of the clerks at the Seat of the Court be transferred to the
Courthouse in the High Court building in Oshakati, the Chief Registrar has
Court where the Government is a party to the case, she has not exercised power
given by the PSA. But if the Government Attorney approved leave of a legal
Attorney has exercised power given by the PSA. One final example; if the
exercise power given by the PSA, but if he issued a final warning to a staff
member, employed in the Deeds Registry, for having committed misconduct, the
[15] Such exercise of power given by the PSA and by an applicable legislation
other than the PSA by various staff members, occur in the day-to-day
member has done a thing; or ‘anything’, in the language of the PSA, in terms of
that Act. That is the meaning of ‘in terms of’. In this regard, to go back to the
examples above; if, in those examples the staff member concerned refused or
failed to exercise power given by the PSA, it means that staff member has
[16] I will illustrate the last point further in this way. In terms of Rule 8.2 of
Chapter B.V of Staff Rules issued under Public Service Management Amendment
Notice No. 3 of 1997, made under the PSA, in order to confirm the appointment,
of the staff member in question and such staff member must be informed in
accordingly, the Permanent Secretary has exercised power given by the PSA; that
is, the Permanent Secretary has done a thing; or in the language of the PSA,
‘anything (has been) done in terms of’ the PSA. If, on the other hand, the
the Permanent Secretary has failed or refused to exercise power given by the
PSA; or in the language of the PSA, anything (is) omitted in terms of the PSA.
[17] To argue that just because the Chief Registrar, for instance, is a staff
member anything she does, in virtue of her employment, she does ‘in terms’ of
13
the PSA, that is, it constitutes exercise of power given by the PSA is, with the
Mr. Corbett does, that just because a medical practitioner is a staff member,
medical practitioner has done a thing, or ‘anything (has been) done in terms of
the PSA; and if in performing the medical procedure the medical practitioner did
thing is omitted; or in the language of the PSA, ‘anything (is) omitted in terms of
the PSA’. Such interpretation of s. 33 of the PSA can and will surely lead to real
and glaring absurd results, which offends the well known rule of construction
Toit v Office of the Prime Minister 1996 NR 52; S v Zemburuka (2) 2003 NR 200).
[18] In public service management and in the functioning of the Public Service,
a staff member may do a thing (‘anything’); that is, exercise power given by a
unrelated to the PSA, or the staff member may refuse or fail to exercise power
given by a provision of the PSA or given by the applicable law, unrelated to the
PSA. In all this, it all depends upon the nature of the power that the staff
member has been given to exercise; and so, it may be any exercise of power
[19] As I have said more than once, the PSA is personnel management-based
legislation; its purpose and scope are the personnel management of staff
members. That much Mr. Corbett appears to agree. And I accept Mr. Corbett’s
submission – in any event, s.1 of the PSA says so – that the PSA includes the
Public Service Regulations (PSR), made under s. 34 of the PSA, and the Public
Service Staff Rules (PSSR), made under s. 35 of the PSA. In any case, I did not
what s. 1 of the PSA says, the PSR and the PSSR are not both made under s. 35
submission that the Regulation governs ‘the conduct of staff members, not only
in relation to internal discipline, but also in respect to their dealings with the
general public.’ With the greatest deference, this submission adds no weight.
The first part of the submission is not entirely correct. The various PSR (there
are many of them, as they are issued from time to time), including the one
referred to me by Mr. Corbett and issued under GN 211 of 1 November 1995, are
not concerned only with internal discipline but other aspects of personnel
Longmans (1985); W Fox, et al., Public Management, Cape Town, Juta (1991).
And the second part of Mr. Corbett’s submission is pleonastic. The entire
purpose of the Public Service is the rendering of service to the public. A fortiori,
the codes in the Code of Conduct issued under the said GN 211 of 1 November
1995 are for guidance of staff members, informing and instructing staff
15
members how correctly, properly and efficiently staff members may conduct
the Code of Conduct Mr. Corbett referred to me does not detract from the
conclusion I have reached previously about the purpose and scope of the PSA.
Conduct, the codes are for guidance of staff members, and the Code of Conduct
leaves no doubt as to the consequences arising from a breach of a code; that is,
and the breach may lead to the staff member in question being charged with
misconduct and disciplinary action being visited upon him or her under Part III
of the PSA. Accordingly, a breach of a code of good conduct, made under the
PSA, like the one referred to me by Mr. Corbett, may be admissible in other
proceedings but the breach does not of itself give rise to criminal or civil liability.
(See G C Thornton, Legislative Drafting, 3rd edn. (1987): p 280.) This conclusion
is vindicated by the fact that, as Mr. Smuts submitted, the plaintiffs have seen it
fit to institute action against the defendants not for breaching the PSA or any
provision of the PSR; their individual action is based on delictual claim in terms
[22] In Tinkham v Perry [1951] 1 All ER 249 at 250E, which Hannah J cited
with approval in Engels v Allied Chemical Manufacturers (Pty) Ltd and another
[23] From all the aforegoing analysis, I conclude that, if the plain and
unambiguous words in the sub clause ‘in respect of anything done or omitted in
terms of this Act’ are given their ‘literal meaning in context’ (see G E Devenish,
Interpretation of Statutes, Cape Town, Juta (1992): p. 37), as they should in the
circumstances, it is clear that the sub clause ‘anything done …in terms of this
Act’ means any exercise of power given by a provision of this Act (the PSA); and
the sub clause ‘anything …omitted in terms of this Act’ means a failure or
refusal to exercise power given by a provision of this Act (the PSA). The key,
operative words in the sub clauses are ‘exercise of power’ and ‘failure or refusal
to exercise power’, and in the instant case, power given by the enabling Act, the
this case to add words to imply that ‘anything done’ or ‘omitted’ ‘in terms of this
Act (the PSA)’ includes obedience, or breach, of a code of good conduct. As I have
[24] From the aforegoing reasoning and conclusions, I find that the defendant’s
special plea is not well founded; it must, therefore, fail. Accordingly, I hold that
s. 33 of the PSA does not apply to the conduct of the staff members concerned in
these proceedings. Having so held, I need not bother myself with the
17
concerned.
The special plea is dismissed with costs, such costs to include costs
______________
PARKER J
18
Adv. E. Schimming-Chase