Renthia Kaimbi
The High Court has set aside former minister of urban and rural development Erastus Uutoni’s refusal to approve Tiofilia Jentzsch’s appointment as chief executive officer of the municipality of Outjo.
The court then ordered his [Uutoni’s] successor, James Sankwasa, to reconsider the matter within 60 days.
On 18 February, High Court judge Andrew Corbett ruled that Uutoni’s decision made in March 2024 was not properly handled and did not follow the correct procedures. He said the decision was not reasonable, had no proper justification, and failed to meet the constitutional requirements for fair administrative action.
Jentzsch, who served as manager of finance, administration and information technology at the municipality, applied for the CEO position in November 2022. She went through all stages of the recruitment process, including a psychometric test and an oral interview, and emerged as the highest-scoring candidate.
The interview panel recommended her appointment. In May 2023, the Outjo Municipal Council resolved to accept the recommendation and forwarded it to the minister for approval in terms of section 27 of the Local Authorities Act.
Shortly after the interviews, then-mayor Johannes Bapello, who observed the process, informed Jentzsch that her performance had been inadequate, despite her having achieved the highest score. Bapello later wrote to the minister asking that the appointment be held back, citing complaints about the recruitment process. Another candidate, Mahne Kruger, also lodged formal complaints alleging irregularities.
After exchanges between the ministry and the council, Uutoni declined to approve the appointment in March 2024. In a brief letter to the council, he stated that he had “critically scrutinised all the documents” and directed that the process be cancelled and the position readvertised with clear and measurable requirements.
The letter did not provide detailed reasons or refer to specific legal provisions.
The council did not challenge the decision. Jentzsch approached the court in her personal capacity.
In court, the minister argued that there had been non-compliance with regulation 16(6) of the Recruitment and Selection Regulations for Local Authority Councils. The regulation states that candidates who do not meet advertised requirements may not be shortlisted or interviewed.
He argued that Jentzsch did not have five years’ experience at a senior management level in a local authority environment and that her role did not qualify as senior management.
Corbett found serious problems with both the substance of the decision and how it was communicated.
He noted that the decision letter of 18 March 2024 offered only a bare conclusion. It did not explain what factors were considered, did not refer to the legal basis for the decision and did not show that the minister had considered the council’s statement that Jentzsch met the five-year requirement.
The court stressed that Article 18 of the Namibian Constitution requires administrative decisions to be fair, reasonable and transparent. It requires meaningful reasons so affected parties can understand the basis of a decision and decide whether to challenge it.
The court found that the minister’s letter failed to meet this standard.
Even after reviewing the explanatory affidavit filed later in court, the judge found the justification inadequate. The minister relied on an opinion from the attorney general’s office, which concluded that, based on the municipality’s organisational structure, Jentzsch’s position was middle management rather than senior management.
However, the organisational structure was not attached to the opinion and was not placed before the court. There was no clear indication that the minister had adopted or properly considered the advice at the time he made his decision.
The court also pointed out that neither the Local Authorities Act nor the regulations define “senior management”.
In the absence of a definition, the minister’s conclusion could only rest on assumed facts or speculation.
The judgement referred to the communication that occurred between the minister’s office and the complainants. Although the minister said he had conducted a thorough enquiry and found serious irregularities in the shortlisting process, he did not explain in his letter or in court what those irregularities were or how they influenced his decision.
The court held that these factors showed a failure to properly apply the mind to the matter and that the decision lacked rational justification. It set the decision aside on review.
Instead of ordering a new recruitment process, the court directed that the council’s original recommendation remain in place and that the minister reconsider the matter in light of the issues raised in the judgement.
The court said Uutoni had to clarify the organisational structure of Outjo Municipality and determine whether Jentzsch’s application should be refused under Regulation 16(6). Any new decision must include clear reasons.
Uutoni was ordered to pay Jentzsch’s legal costs, including the costs of one instructing and one instructed legal practitioner.
The matter will be finalised once Sankwasa makes a fresh decision within 60 days.
