Court rules in govt's favour

Namibian refugees
Namibian refugees

The Court of Appeal (CoA) has ruled in government’s favour in a case in which it was appealing the decision of the High Court to interdict government officials from repatriating 709 Caprivi refugees at Dukwi back to their homeland.

Government had appealed a decision by High Court judge, Justice Godfrey Nthomiwa stating that he had erred in granting an order interdicting the repatriation of the refugees who voluntarily wished to be repatriated and where none of the respondents had established a clear or any other requirements for an interdict. Nthomiwa had ordered that Botswana should not push the refugees without taking into account the security issues in Namibia.

However, on Friday CoA Justices Zibani Makhwade and Isaac Lesetedi led by Judge President Ian Kirby upheld the government’s appeal and set aside Judge Nthomiwa’s orders.

Handing down the judgement, Kirby said there was no clear evidence that the country breached any of its international obligations in relation to the cessation of the refugee status. Hence an interdict on its implementation was unfair.


He stated that the failure by the High Court to grant a relief on the review of the cessation declaration had the effect of a denial of the relief sought and the same relief could not be sought in a different subsequent litigation.

Kirby said the respondents had no clear right for the grant of a final interdict because their refugee status was dependent on whether the reasons for the fleeing of the refugees still existed.

“Under national law, the status of a refugee is subject to constant review by the Refugees Advisory Committee who then make recommendations. Justice Dube specifically found that the Minister had not broken any law in his cessation of the respondent’s refugee status under the Act. The relief stands to be considered on the same footing in that in the absence of any finding that the cessation of refugee status decision of any finding that the cessation of refugee status decision was invalid, an interdict on its implementation rooted on the very precondition upon which the cessation has to be granted, it is an attempt through the backdoor to challenge the cessation itself,” he said.    

As regards whether the respondents were entitled to an interdict staying the implementation of the repatriation process, Kirby said the court a quo erred in considering the matter on the basis of the requirements for an interim interdict but not those of a final one. He said in any event, the cessation could only be challenged by way of a review as it was an exercise of a public power by a state officials and such a challenge is time barred if brought four months after the decision is made or after conclusion of proceedings complained of.

Kirby further said it is clear that government was keen to move forward the repatriation process in a way which incorporates Go and See, Come and Tell Missions, however, it was the refugees through their leaders who were adamant that they did not want to deal with the Tripartite Commission in any way.

As such, he said in the absence of any clear evidence that the country breached any of its international obligations in relation to the refugees, in the present case, the Namibian refugees, government’s version ought to have been accepted and the matter determined on that.

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