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Top African court sets aside own ruling in reinsurance scheme saga

07/06/19

The Supreme Court of Namibia has upheld an application to set aside its own prior ruling in the matter on the grounds of apprehended bias, and substituted it with an order granting leave to appeal a High Court order “staying” an Act of Parliament.

The High Court had been faced with an application by Namibia’s Treasury to enforce gazetted measures putting an end to capital outflows in the form of reinsurance premiums. The application was for an order pending a drawn-out constitutional challenge by multinational insureres to the enabling Act. Six insurance companies had entered into an agreement with government to apply the measures in the interim, but eight defied them. The Minister of Finance and a statutory domestic reinsurer, NamibRe, thereupon sought an order to enforce the meaures. The High Court made an order purporting to “stay” the Reinsurance Corporation Act (and allowing continued capital outflows of N$1 billion per year) and then refused leave to appeal to the Supreme Court.

A petition by the Minister and NamibRe to the Supreme Court for further leave to appeal was, unbeknown to them, allocated by the Chief Justice to an acting judge of appeal with a history of involvement in the insurance industry. As counsel he had argued a constitutional challenge to the Reinsurance Corporation Act (again in in issue in the pending challenge), served as a director of one the recalcitrant insurers in the past and was currently serving as the (remunerated) chairman of the holding company of another.

Applying a range of comparative decisions (including R v Bow Street Magistrate; Ex Parte Pinochet Ugarte (No 2) [1999] 1 All ER 577 (HL)), the Supreme Court held that the acting judge of appeal seized of the appeal should have recused himself. As a minimum, he should have disclosed his interests to the parties (and to the Chief Justice, who may have chosen then to reallocate it). His dismissal of the petition was accordingly a nullity, and the Supreme Court proceeded to address it.

Referring to Canadian, Indian and South African case law, the Supreme Court held that there were in its estimation, in determining whether leave should be granted, “more than reasonable prospects” that in an appeal it would be held that the High Court’s order had flouted the separation of powers, and was unsustainable on other grounds too.

The Supreme Court accordingly set aside the earlier ruling, and granted leave to appeal, with costs in respect of both applications.

The link to the judgment is here.

Jeremy Gauntlett SC QC led a team of Namibian counsel for the Minister of Finance and NamibRe.