WINDHOEK - Windhoek High Court Judge Thomas Masuku says he will deliver his judgment in the urgent application Finance Minister, Calle Schlettwein and the Namibia National Reinsurance Corporation (NamibRe) launched to compel eight insurance companies to re-insure with NamibRe according to the NamibRe Act 22 of 1998 on September 20 after listening to two days of arguments.
Judge Masuke listened to arguments from the two parties late last week.
Schlettwein and NamibRe dragged the eight companies, Hollard Insurance Company of Namibia Limited, Hollard Life Namibia Limited, Sanlam Namibia Limited, Santam Namibia Limited, Trustco Insurance Limited, Trustco Life Limited, Outsurance Insurance Company of Namibia Limited, Old Mutual Life Assurance Company Namibia Limited and their respective CEO’s to court after they refused to re-insure a percentage of their insurance premiums with the State-owned company in defiance of the Act.
The insurance companies launched an application of their own in the High Court to challenge the constitutionality of the Act and is refusing to re-invest with NamibRe pending the finalisation of their application.
The minister and NamibRe wants the High Court to order that pending the outcome of the review application, the companies is obliged to comply with the provisions of the Act, the Notices and the Regulations with immediate effect. They further ask the High Court to authorise them, failing the order by any of the respondents, to apply to the High Court forthwith on the same papers, duly amplified is required, for an order of committal for contempt in respect of any such breach of the court order, or such respondent’s Chief Executive Officer.
In short, they are asking the Court to authorise them to institute criminal proceedings against any of the respondents’ CEOs should they be successful in their application and the CEOs do not comply.
They also asked for costs on the scale of one instructing and three instructed counsels.
The respondents fired back by saying that they cannot be compelled to adhere to an Act they feel is unconstitutional and which they challenged. According to them, the relief seeked by the applicants is unprecedented and that anything that goes against the Constitution is invalid.
The companies said it is inconceivable for the minister to expect from them to re-insure what they choose not to re-insure, as it will negatively impact on their various business models. “The minister cannot expect from our clients to bankroll the balance sheet of NamibRe,” the lawyers representing the insurance companies argued. With regards to the threat of imprisonment for the CEOs of the insurance companies should they fail to reinsure with NamibRe if the court find in the applicant’s (minister) favour, the lawyers argued that no court has ever said, and in a democratic constitutional dispensation may ever say, that, where an aggrieved party has already lodged constitutional attacks against impugned provisions, such party shall be liable to go to jail in the interim - until the court has finally determined the constitutionality of the impugned provisions. According to them, the minister did not make out a case that the constitutional challenge will not succeed which if it did will cause more chaos should NamibRe then have to refund the insurance companies as the impugned provisions will not be declared unconstitutional from the outset. According to the insurance companies, the minister and NamibRe has failed to state what their case is actually about. Is it to compel the companies to adhere to the provisions or to pave the way to imprisonment for the
They said the interim relief claimed by the applicants is deliberately framed in a manner to coerce the insurance companies to comply with legislation they are challenging or face jail time.
“In effect, the applicants call upon this Court to create a new coercive remedy based on the extraordinary proposition that the Courts must blindly enforce compliance with potentially unconstitutional legislation in the face of constitutional challenges to that legislation, and independent of the irreparable harm that will be caused by enforcing such compliance,” they said and continued: That is not a remedy that any Court will entertain in a constitutional state where Government is bound by the rule of law and any laws inconsistent with constitution is invalid. They went on to say that to allow this would essentially allow the State to pre-empt any judicial determination on impugned legislation by demanding blind compliance with that impugned legislation while the Courts were already seized with a case challenging its constitutional validity.
Caption (Pic: Judge Masuku): Judge Thomas Masuku is expected to deliver judgment on September 20.