[16] Amongst all these defences the respondent also took issue with the fact that the applicant had approached the court on an in camera and ex parte basis. AD THE EX PARTE HEARING [17] At this juncture it should merely be mentioned and that the constitutionality of section 51(2) and with it the peremptory requirement that – preservation orders could permissibly be applied for - and be granted on an ex parte basis and thus without notice - was recently considered by this court in the as yet unreported judgment of Martin Shalli v The Attorney General and Others as delivered on 16 January 2013. [18] Although the court considered Section 51(2) as being ‘unfortunately formulated’, it nevertheless held, for the reasons set out in the judgment, that the provisions of section 51(2) do not violate the right to a fair protected by Article 12(1)(a) of the Namibian Constitution. [19] Before one trial however get to a fuller consideration of the ex parte point also with reference to the facts of this matter, the consideration and impact, if any, of the respondent’s further attack, directed against the applicant’s approach of the court behind closed doors, should conveniently occur in view of the fundamental issues that arise in the context of that point. AD THE IN CAMERA HEARNG : THE RESPONDENT’S ARGUMENTS [20] It was in the main contended that the applicant had brought the second POCA application and procured its hearing on an ex parte and on an in camera basis without making out a case in this regard. [21] It was submitted in the alternative that should it be found that the applicant had made out such a case on the papers that she did not make out a case for the matter to be heard in camera on the grounds as provided for in Article 12(1)(a) of the Namibian Constitution.
[16] Amongst all these defences the respondent also took issue with the fact that the applicant had approached the court on an in camera and ex parte basis. AD THE EX PARTE HEARING [17] At this juncture it should merely be mentioned and that the constitutionality of section 51(2) – and with it the peremptory requirement that preservation orders could permissibly be applied for - and be granted on an ex parte basis and thus without notice - was recently considered by this court in the as yet unreported judgment of Martin Shalli v The Attorney General and Others as delivered on 16 January 2013. [18] Although the court considered Section 51(2) as being ‘unfortunately formulated’, it nevertheless held, for the reasons set out in the judgment, that the provisions of section 51(2) do not violate the right to a fair protected by Article 12(1)(a) of the Namibian Constitution. [19] Before one however get to a fuller consideration of the ex parte point also with reference to the facts of this matter, the consideration and impact, if any, of the respondent’s further attack, directed against the applicant’s approach of the court behind closed doors, should conveniently occur in view of the fundamental issues that arise in the context of that point. AD THE IN CAMERA HEARNG : THE RESPONDENT’S ARGUMENTS [20] It was in the main contended that the applicant had brought the second POCA application and procured its hearing on an ex parte and on an in camera basis without making out a case in this regard. [21] It was submitted in the alternative that should it be found that the applicant had made out such a case on the papers that she did not make out a case for the matter to be heard in camera on the grounds as provided for in Article 12(1)(a) of the Namibian Constitution. trial