discretion to hear disputes, even in the area of Public Law, must however be ‘The exercised with caution…’. [9] The principle regarding the exercise of judicial discretion was formulated in the celebrated case of ES v AC (SA 57/2012) [2015] NASC 11 (24 June 2015) where the Supreme Court identified a range of factors to determine when the discretion should be exercised. They are that: the nature and extent of the practical effect that any possible order might have; the importance of the issue; the complexity of the issue; and the fullness or otherwise of the argument advanced. [10] This principle seems to have taken root not only in our jurisdiction, but, also in the SADC jurisprudence as was as recently stated in The President of the Republic of Botswana & 3 others v National Amalgamated Local Central Government and Parastatal Union & 6 others MAHGB 000635/15 (Botswana Appeal Court). In that court, Damaseb, AJA (as he then was) referred to S v Moitumelo Molefe 1968-1970 BLR 100 at 104 where Young CJ stated: this connection I may mention that the decisions of the South African courts, or ‘In those of any other foreign country (including the are not binding on the U.K.,…) courts in Botswana; but such decisions may have very substantial persuasive value, especially those of South Africa where the common law is also Roman-Dutch law and those of the United Kingdom, because of the very great influence of English law on all branches of law in this country.’ (my emphasis) [11] Damaseb AJA, clearly stated the extent South African authorities persuaded other jurisdictions, Namibia not excempted. The issue involved in this matter involves public interest and policy. There was, therefore, a need for a judicial discretion to be exercised which I did. [12] I therefore, directed that defendant appear in court in order to explain the circumstances surrounding this marriage which altogether appeared unusual.
‘The discretion to hear disputes, even in the area of Public Law, must however be exercised with caution…’. [9] The principle regarding the exercise of judicial discretion was formulated in the celebrated case of ES v AC (SA 57/2012) [2015] NASC 11 (24 June 2015) where the Supreme Court identified a range of factors to determine when the discretion should be exercised. They are that: the nature and extent of the practical effect that any possible order might have; the importance of the issue; the complexity of the issue; and the fullness or otherwise of the argument advanced. [10] This principle seems to have taken root not only in our jurisdiction, but, also in the SADC jurisprudence as was as recently stated in The President of the Republic of Botswana & 3 others v National Amalgamated Local Central Government and Parastatal Union & 6 others MAHGB 000635/15 (Botswana Appeal Court). In that court, Damaseb, AJA (as he then was) referred to S v Moitumelo Molefe 1968-1970 BLR 100 at 104 where Young CJ stated: ‘In this connection I may mention that the decisions of the South African courts, or those of any other foreign country (including the U.K.,…) are not binding on the courts in Botswana; but such decisions may have very substantial persuasive value, especially those of South Africa where the common law is also Roman-Dutch law and those of the United Kingdom, because of the very great influence of English law on all branches of law in this country.’ (my emphasis) [11] Damaseb AJA, clearly stated the extent South African authorities persuaded other jurisdictions, Namibia not excempted. The issue involved in this matter involves public interest and policy. There was, therefore, a need for a judicial discretion to be exercised which I did. [12] I therefore, directed that defendant appear in court in order to explain the circumstances surrounding this marriage which altogether appeared unusual.