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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEKRULING ON EXCEPTION
CASE NO. I 3249/2015
In the matter between:
ELIZABETH JOHANNA BRINK NO. 1ST PLAINTIFFMADELENE COWLEY 2ND PLAINTIFF
and
ERONGO ALL SURE INSURANCE 1ST DEFENDANTTHE MINISTER OF LANDS, RESETTLEMENT AND REHABILITATION 2ND DEFENDANTTHE REGISTRAR OF DEEDS 3RD DEFENDANT
Neutral citation: Brink & Another v Erongo All Sure Insurance & Others (I 3249/2015)
[2016] NAHCMD 200 (8 July 2016)
CORAM: MASUKU J.,
Heard: 8 June 2016
Delivered: 8 July 2016
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Flynote: RULES OF COURT – Rule 57 in relation to an exception. Locus standi in
judicio - LAW OF CONTRACT- simulated transactions - illegal and unenforceable -
severability of agreements- ADMINISTRATION OF ESTATES- Role of Executrix in
dealing with estate property- COSTS- Application of Rule 32 (11).
Summary: The 1st defendant filed an exception on the basis that the Plaintiff’s
particulars of claim lack averments necessary to sustain an action against it. The
defendant also contested the 2nd plaintiff’s locus standi to sue in this case on the basis
that the executrix was appointed and is in charge and seized with all matters and affairs
of the estate at the present moment, until distribution.
Held - that only if no possible evidence led on the pleadings can disclose a cause of
action, will the particulars of claim be found to be excipiable.
Held further - where there is any property that is the subject of any action after the death
of the deceased, the party authorized to deal therewith, is the executor or executrix,
who in terms of the law takes charge of the administration and eventual distribution of
the assets and settling the debts of the estate.
Held further –that delving into the intricate and involved matters of severability and
illegality of the agreement at the stage of an exception would yield some injustice.
Therefore the defendant should file its plea and deal with these issues, which may
ultimately be the subject of determination at the trial.
Held further- that plaintiff’s failed to allege the basis upon which it could reasonably be
concluded that the agreement in question was simulated.
Held further- that these allegations would appear ex facie the particulars of claim and
not in the heads of argument.
Held further- that despite the limit on costs placed by rule 32 (11), Court should be
allowed the discretion to order in appropriate cases a departure from the provisions of
this subrule. Furthermore there must be a measure of flexibility allowed as matters differ
in terms of nature and complexity.
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ORDER
1. The 2nd defendant’s plea that the 2nd plaintiff does not have the locus standi in
judicio to institute these proceedings is upheld.
2. The plaintiff’s exception to the effect that the particulars of claim do not
contain averments necessary to sustain a cause of action is upheld.
3. The plaintiffs are granted leave within 15 days from that date of this order, to
amend their particulars of claim, and to which the defendants are ordered to
plead or file other suitable pleading within ten (10) days thereafter.
4. The plaintiffs are ordered to pay the 2nd defendant’s costs of one instructing
and instructed Counsel.
5. The matter is postponed to 7 September 2016 at 15:15 for a status hearing.
RULING
MASUKU J.,
Introduction
[1] This is an interlocutory application by the 1st defendant for the declaration of the
plaintiff’s particulars of claim excipiable. The exception is brought in terms of the
provisions of rule 57 on the allegation that the said particulars do not contain averments
that disclose a cause of action against the 2nd defendant.
The parties
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[2] The 1st plaintiff is the executrix duly appointed as such in the Estate of the Late
G.S. Neethling, who passed to the celestial jurisdiction on 15 March 2015. I shall refer
to him as ‘the deceased’. The 2nd plaintiff is a widow to the deceased and who resides
on a farm known as Cerena Number 259, Okahandja District. The 1st defendant is a
Close Corporation duly incorporated in terms of the corporation laws of Namibia and
has its offices in Windhoek. The 2nd defendant is the Minister of Land Resettlement and
Rehabilitation, cited in his official capacity as such. The 3rd defendant is the Registrar of
Deeds.
The cause of action
[3] The plaintiffs approached the court seeking an order declaring an agreement
between the deceased and the 1st defendant illegal and unenforceable; an order that a
usufruct in favour of the 1st defendant over a farm described as Farm Kalkwerf, Portion
1 of Farm Florence Number 249, be cancelled by the 3 rd defendant; an order of
ejectment against the 1st defendant from Farm Florence and for costs of suit.
[4] The basis for seeking the aforesaid orders, as can be gleaned from the
particulars of claim is that the deceased, in around 2005 and at Okahandja, and the 1 st
defendant, duly represented by one Mr. Piet Louw, entered into an oral agreement in
terms of which the deceased caused a lifelong usufruct to be registered in favour of the
1st defendant over the farm; that the deceased would, in his last will and testament,
bequeath the said farm to the 1st defendant and that the 1st defendant would pay an
amount of N$ 1, 350.000. It is further averred that a 99 year usufruct was registered in
favour of the 1st defendant on 28 November 2005 and that the defendant paid the
deceased an amount of N$ 1, 350.000.
[5] It is further averred that the said transaction was a simulated transaction and
therefor unenforceable for the reason that it amounted to an unenforceable pacta
successoria and/or was a deliberate ploy by the contractants to circumvent the
provisions and requirements of the Agricultural (Commercial) Land Reform Act, ( the
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Act).1 It is thus claimed that the said contract was tainted with illegality and is for that
reason unenforceable. It is further averred that the conclusion of the contract was a
deliberate ploy to create an impression that the 1st defendant would become the holder
of a 99 year lease when in truth and fact, the contract was concluded for the purpose of
evading the provisions of s. 17 of the Act.
The exception
[6] In its exception, the 1st defendant attacks the particulars of claim on the principal
basis that same lack averments necessary to sustain an action against it. In the first
place, it is alleged that the 2nd plaintiff has no locus standi in judicio to institute the
proceedings. It is also alleged that a party to an illegal contract which has been partially
performed, can claim in an action sounding in delict, which it is alleged has not been
pleaded in the instant case.
[7] In another point of attack, it is further alleged that even if the said contract were
to be illegal, as alleged, it is however, severable and that for that reason, the
constitution and the registration of the usufruct were not in contravention of the
provision of the Act in question. It is further contended that if the court were to find that
the agreement, though illegal, has been performed in terms of the tenor of its
provisions, it will not be reversed by the courts. Lastly, it is alleged that the manner in
which the agreement is alleged to have been simulated have not been pleaded.
The approach to exceptions
[8] It would be prudent, at this stage, to consider the law applicable to exceptions as
recently set out authoritatively by the Supreme Court in the case of Alwyn Petrus Van
1 Act No. 6 of 1995.
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Straten N. O. and Another v Namibia Financial Institutions Supervisory Authority.2 The
court said the following:
‘Where an exception is taken on the grounds that no cause of action is disclosed or is
sustainable on the particulars of claim, two aspects are to be emphasized. Firstly, for the
purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as
correct. In the second place, it is incumbent upon an excipient to persuade this court that upon
every interpretation which the pleading can reasonably bear, no cause of action is disclosed.
Stated otherwise, only if no possible evidence led on the pleadings can disclose a cause of
action, will the particulars of claim be found to be excipiable.’
This is the legal compass that I shall, to the extent necessary, follow in dealing with the
exception raised in this case.
The 2 nd plaintiff’s locus standi
[9] Before I do so, however, there is an issue raised which is in the nature of a
special plea. The 1st defendant has taken issue with the locus standi in judicio of the 2nd
plaintiff to sue in this case. The principal objection, as I read the notice of exception, is
that since the executrix was appointed and is in charge and seized with all the matters
and affairs of the estate at the present moment, until distribution, the 2nd plaintiff has no
right to approach the court for the relief she seeks.
[10] In support of the proposition, the court was referred to various authorities
including LAWSA,3 where the learned author says the following:
‘The interposition of the executor between the deceased and the beneficiaries has
profoundly altered the legal position of heirs and legatees. An heir no longer succeeds ipso
facto to the assets and the liabilities of the estate; he does not automatically acquire ownership
of his share of the residue; he does not become personally liable for the debts of the deceased;
and he is not charged with the administration of the estate. The heirs acquire a vested right as
against the executor for payment, delivery or transfer of the property comprising the inheritance. 2 Case No. SA 19/2014 at para 18.3 Vol. 31 para 116.
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The right is enforceable only when the executor has drawn his liquidation and distribution
account and when section 35 of the Administration of Estates Act has been complied with. The
heir, therefore, acquires the ownership (or other real right) in his share of the residue upon
payment of money, delivery of movable property or transfer of immovable property to him’.
[11] The 1st defendant, in addition to citing the above authority, also referred the court
to Corbett et al,4where the learned authors say the following at p.10 of their work on this
issue:
‘As a result of the change over from the Roman Dutch Law Systems of universal
succession to the English executorship system, the legal position of heirs and legatees has
undergone a profound change. The estate is no longer represented by the heir but by the
executor who is nobody’s agent but holds a special office, and is not obliged to take heirs’
orders.
The heir no longer succeeds automatically to the assets and liabilities of the estate. Though the
inheritance vests in him, he does not acquire dominium in individual assets, nor does he
become personally liable for the debts of the deceased. Instead, he acquires the right against
the executor to his share in the residue after the liquidation and distribution account has been
settled.’
[12] The learned author quoted immediately above proceeds to say the following at p
6-7:
‘The executor and not, as in the old law, the heir represents the estate. He is the proper
person to enforce rights of action and recover property which belongs to the estate.
An executor cannot in law be compelled to institute proceedings for the recovery of assets
belonging to the estate. If he fails or refuses to do so, two alternative remedies are, according to
Cumes v Estate Cumes, open to an heir or other party: he can move the court for the removal of
the executor on the ground of breach of duty, provided of course that in refusing to bring the
action the executor acts in breach of duty; or he can bring the action himself, citing the executor
as a nominal co-defendant. Meyerowitz doubts whether the second remedy (which is apparently
conceived on the analogy of a derivative shareholder’s action in company law forms part of our
law.’
4 The Law of Succession in South Africa.
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[13] It is clear from the foregoing authorities that the preponderance of legal opinion
seems to suggest that where there is any property that is the subject of any action after
the death of the deceased, the party authorized to deal therewith, including any
proceeding related thereto, is not the heir or legatee, even if they may have an interest
in that property. The proper person, to move any action or proceeding in relation to that
property, is the executor or executrix, who in terms of the law takes charge of the
administration and eventual distribution of the assets and settling the debts of the
estate.
[14] It is also suggested that if the executor or exectutrix refuses or neglects to take
whatever steps are necessary to deal with or to protect the property, the remedy that
ordinarily lies in the hands of the heirs and legatees of the estate, is to apply for an
order of court removing the said executor or executrix for that failure or neglect. It would
appear that the proposition that the heir or legatee can move an action in his or her
name and cite the executor or executrix as a co-defendant does not gain universal
acclaim and approval.
[15] It will become clear that in the instant case, the executrix is cited as the 1st
plaintiff. The question is whether the 2nd plaintiff should be non-suited as having no
locus standi even though the executrix has been cited. The plaintiffs claim that the
instant case is distinguishable from the position articulated in the preceding paragraphs
and the fact that the executrix is also cited in the proceedings, should disincline the
court from dismissing the right of the 2nd plaintiff to claim at this time, seeing that the
executrix has already taken the necessary steps to preserve the property in the instant
case, and to the possible eventual benefit of the 2nd plaintiff.
[16] In argument, it was contended on the plaintiffs’ behalf that the situation obtaining
in the present case is distinguishable from the cases referred to in the previous excerpts
quoted above. It was submitted and quite forcefully too, that the proceedings instituted
by the 2nd defendant were in fact authorized by and had the sanction of the executrix. It
was submitted further that not only did the 2nd plaintiff have the 1st plaintiff’s permission,
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but also joined the latter as a co-plaintiff. In this regard, the court was referred to
Stellmacher v Christians.5
[17] In that case, it would seem, there was estate property that was the subject of
court proceedings. A liquidator of the estate had been appointed by the court. A
declarator was sought regarding the rightful lessee of the landed property in question.
The applicant took a legal point that 1st and the 4th respondents did not have the locus
standi to oppose the orders sought for the reason that the property in question was at
the time vested in the liquidator and who had been cited as a party. The basis for this
argument, it seems, was that the 1st and 4th respondents, who were heirs in the estate
had no rights to the estate assets but only a hope (spes) that ownership would pass
after the estate had been finally wound up.
[18] I find it appropriate at this juncture, to quote what I consider to be the main
finding of the court in this regard and which may be determinative of the correctness of
Mr. Heathcote’s forceful argument. At para 12, after referring to Nyati v Minister of
Bantu Administration and Others,6 the court reasoned as follows:
‘It is indeed trite law that “the executor, and he alone”, is legally recognized as the
person to represent the estate of the deceased. In reality, no legal proceedings can be
instituted against a deceased estate, or for the recovery of, or laying claim to, any assets
belonging to such estate, without joining the executor as a party to the suit.’
[19] Crucially, at para 13, the court made the following lapidary remarks:
‘There is, however, a distinction between an heir against whom proceedings have been
instituted as a respondent or a defendant in his or her personal capacity, and an heir who takes
legal action to vindicate the estate. With regard to the latter, as previously shown, it is not open
to a beneficiary to vindicate the assets of the estate since it is only the executor that can
legitimately do so. But it is permissible, in a suitable case, for such a beneficiary to sue on his
5 2008 (2) NR 587 (HC).6 1978 (3) SA 224 (E).
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own behalf in order to safeguard his right to inheritance where the right is infringed or
threatened to be infringed.’ (Emphasis added).
[20] After considering the matter, the learned Judge said the following in conclusion at
para [18]:
‘In any event, to argue that an heir (or anyone else) against whom proceedings have
been instituted (and an order is sought against him or her, a situation in which the first
respondent finds himself, and/or upon whom a judgment or such order would be binding) has no
locus standi to be heard in the matter defies logic and is untenable in law.’
[21] I am of the considered view that what is important is the underlined portion of the
excerpt a few paragraphs above. What is clear from that excerpt is that it is not open
ordinarily for an heir or legatee to seek to vindicate assets of the estate since the said
assets vest, albeit temporarily in the executor or executrix. The learned judge continued
to state that in a suitable case, an heir or legatee can sue on his or her own behalf to
protect the right to inheritance where it is infringed or threatened.
[22] It would therefore appear, in respect of the latter eventuality that it would be in
extremely unusual and compelling circumstances that an heir or legatee can be allowed
to sue as that right, as already stated, vests in the executor or executrix. I am of the
view that it would be incumbent upon the said heir or legatee to show that special and
unusual circumstances exist that would warrant that such a drastic step be adopted.
There are no such circumstances pleaded in this case and in fact, it is clear that the 1 st
defendant in this case, the only one authorized in terms of the law, did take the steps
necessary to vindicate the property in the instant case.
[23] I am accordingly of the view that there was no need for the 2 nd defendant to have
adopted this stance as it is clear that one set of legal practitioners represent both the
plaintiffs. It cannot therefore be attributed to a case of the left hand not knowing what
the right hand is doing. The executrix did take steps to set aside the sale which if
granted, would be an order enuring to the 2nd plaintiff’s benefit.
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[24] Mr. Heathcote referred the court to the following paragraphs of the Stellmacher
judgment at p. 590G:
‘The significance of this is that a declarator, once granted, affects only the rights of
persons who are parties to the proceedings to the extent that it becomes binding upon them in
the sense of res judicata . . . A further jurisdictional factor, where a declaration of rights is
sought, as in this case, is that there must be a right or obligation which becomes the object of
the enquiry. Such right or obligation may be existing, future or contingent, but it must be more
tangible than the mere hope of a right or mere anxiety about a possible obligation.’
These excerpts, Mr. Heathcote strenuously argued, supported his point. I disagree with
that point of view and I will say why that is the case.
[25] A careful reading of the judgment reveals that the court considered the
proceedings that may be brought at two different levels. The first is where the heir or
legatee is a plaintiff or applicant as the case may be. The other, is where the heir or
legatee is a defendant or respondent, in which case they have been sued. The latter
position, it would seem, was the case in the Stellmacher matter. The reasoning was that
it would not make sense for a plaintiff or applicant to drag an heir or legatee to court as
a defendant or respondent in proceedings that would ordinarily have been properly
directed at the executor or executrix. When they oppose or defend same, it is suddenly
argued that they have no locus standi when all is said and done, not only have they
been dragged to court, they do, all things being equal, have an interest in the property in
question. It is for that reason, in my view, that the court made the valedictory remarks
quoted above in para [20] above. To allow that argument to obtain would be to license
the party instituting the proceedings to blow hot and cold at the same time, to approbate
and reprobate as it were, without consequence.
[26] I am of the considered view that the point regarding the lack of locus standi by
the 2nd defendant is well taken in the circumstances. There is no reason why the
executrix should not have instituted the proceedings without the participation and
‘assistance’ of the 2nd plaintiff. Sight should not be lost to the very authoritative decisions
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and writings referred to earlier. These must not be allowed to sink in oblivion and be
seen to be replaced by what I may have said in interpreting the Stellmacher judgment. If
I am correct on the interpretation to the Stellmacher judgment, I am of the considered
view that no special circumstances are in any event pleaded to warrant the 2nd
defendant joining in these proceedings as a plaintiff, neither has it been alleged that this
is a ‘suitable’ case as seen from the Stellmacher judgment.
The exception proper
No averrals of fact regarding the alleged simulated nature of the transaction
[27] I now turn to deal with the exception as raised in the notice. The nub of the 1 st
defendant’s complaint in respect of the particulars of claim, when stripped to the bare
bones is that the plaintiff seeks to claim a debt allegedly owing to the estate in respect
of what is alleged to be an illegal contract. A claim in this regard, it is averred, should be
brought by way of a delictual claim, which the plaintiff has not instituted. It is alleged that
even if the agreement was illegal as claimed, the said agreement is severable and that
the constitution and registration of the usufruct were not in contravention of the
provisions of the Act.
[28] Lastly, the 1st defendant claims that the plaintiff has simply regurgitated the
provisions of the oral agreement inter partes without in any way specifying the conduct
that would lead to a conclusion that the agreement is indeed illegal and amounts to a
simulated transaction in order to evade the provisions of the Act. For this, it is alleged,
the pleadings are excipiable.
[29] I intend to deal with the last issue first. In Strauss v Labuschagne,7 the Supreme
Court had occasion to deal with what it referred to as ‘simulated transactions’ and the
factors the court can take into account in coming to a conclusion whether or not an
agreement is simulated. At para [47], the Court, per O’Regan AJA stated the following:
7 2012 (2) NR 460 at 476.
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‘Determining whether the contractual scheme in this case is a disguised transaction will
require a consideration of whether the parties actually intended that the agreements they
entered into would have the legal effect as drafted, or whether, in fact, they intended their
agreement to have a different consequence which they could not express because it would be
in conflict with the provisions of the Land Reform Act.
[48] In determining as a matter of fact, whether, a particular contractual arrangement is
simulated or not, the courts have considered whether the arrangement has an “air of unreality”,
“accords with reality” or contains anomalies or is “startling”. Where an arrangement seems
anomalous or unreal, it is more likely that a court will conclude that it is a simulated transaction
disguising a different but tacit agreement.’
[30] The attack on this plane, is that the plaintiffs have not set out the material facts in
the particulars of claim from which it would be apparent, particularly when relevant
evidence is led, to convince the court that the agreement was indeed a simulated one.
In this regard, the court was referred to Buchner v Johannesburg Consolidated
Investment Co. Ltd,8 where the court stated the following:
‘The necessity to plead material facts does not have its origin in this Rule. It is
fundamental to the judicial process that the facts have to be established. The Court, on
established facts, then applies the rules of law and draws conclusions as regards the rights and
obligations of the parties and gives judgment. A summons which propounds the plaintiff’s own
conclusions and opinions instead of the material facts is defective. Such a summons does not
disclose a cause of action. It would be wrong if a Court were to endorse a plaintiff’s opinion by
elevating it to judgment without first scrutinising the facts upon which the opinion is based.’
Is there any merit in this criticism?
[31] A reading of the plaintiff’s particulars of claim shows that at para 11, it was
pleaded that the agreement was a simulated transaction because it amounted to an
unenforceable pacta successoria and it was a deliberate attempt by the parties to
circumvent the provisions of the Act. At para 12, it was averred that the purpose of the
simulated contract was to create an impression that the 1st defendant would become a
8 1995 (1) SA 215 (T) at 216.
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holder of a 99 year usufruct when in truth and in fact the agreement and the
enforcement thereof was an effort to evade the provisions of the Act.
[32] In their heads of argument, the plaintiffs say the following at para 8:
‘With respect, even at this stage and before cross-examination, the contractual scheme
has a number of startling anomalies:
a. Firstly, it will be permissible to lead evidence that the so-called purchase price of the
ususfruct was similar to what was the purchase price of the farm was at the time the
usufruct was sold to the defendant.
b. Secondly, a usufruct is a highly personal right, normally given to a family member of the
deceased’s wife, husband or children.
c. It is therefore quite startling that a usufruct be given to a corporate entity, as in general,
there is nothing highly personal about a company.
d. Fourthly, people die. Not companies or corporations.
e. Then fifthly, the usufruct is for 99 years. Such a long period, has been viewed by courts
as disposing of property.’
[33] I am of the considered view that the complaint of the defendant is in the
circumstances justified. I say so for the reason that what appears in the particulars of
claim are parochial legal conclusions of the plaintiff. The particular facts which are
necessary to be pleaded to enable one to make an informed legal conclusion, are not
supplied in the particulars of claim. Sensing the need to fulfil the criteria for determining
what a simulated transaction may entail according to the standards set out in the
Strauss judgment, the plaintiff chose to belatedly state these critical averrals in their
heads of argument, when these, strictly speaking belong in the particulars of claim and
nowhere else.
[34] In this regard, rule 45 (5) provides the following in part:
‘Every pleading must be divided into paragraphs, which must be consecutively
numbered and must contain a clear and concise statement of the material facts on which the
pleader relies for his or her claim, defence or answer to any pleading, with sufficient
particularity to enable the opposing party to reply. . .’ (Emphasis added).
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[35] I am of the opinion that the particulars of claim fail to set out all the material facts
clearly and concisely and in a manner that would enable the defendant to understand
the bases upon which it is sought to argue that the agreement is indeed a simulated
transaction within the meaning of the Strauss judgment. That the material particulars
from which it is alleged apparently in amplification that there is an ‘air of unreality’ or
something fishy, so to speak, about the transaction, should appear in the heads of
argument, in my view, shows indubitably that the particulars of claim were as bare as
can be regarding this particular aspect of the pleadings.
[36] It must be stated that the requirements of rule 45 (5) above are mandatory as will
be seen from the use of the word ‘must’ which appears and the other portions which are
highlighted above. Accordingly, failure to comply with the above provision should, in my
view, result in the particulars of claim being rendered excipiable as they do not disclose
a cause of action but what is a legal conclusion devoid of the facts necessary to enable
one to reach the said conclusion.
[37] The plaintiff argued that this, being an exception, is not the proper stage where
this issue should be decided because there is evidence that can be led to show that
there is something untoward about the transaction. I do not agree. The evidence to be
led, must follow and be in line with the material facts pleaded squarely and not vaguely
or obliquely, which establish in this case, that the transaction was indeed simulated. The
defendants should be able, in the plea, to respond to each and every allegation from
which the conclusion that it is indeed a contract made in fraudem legis can be made,
after evidence confirming same. The defendants should not be left surmising or be
harnessed into adopting a conjectural mode regarding what the basis or bases of the
conclusion of the tainted nature of the agreement could possibly be.
[38] I am accordingly of the opinion that the averrals appearing in the particulars of
claim do not contain facts from which a conclusion can reasonably be made that the
agreement in question was a simulated one and one entered into in fraudem legis.
Those material facts must appear ex facie the pleadings and should not be hidden in
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the locker or vault of the plaintiff’s heads of argument. This ground of exception
accordingly succeeds and is upheld.
Severability of the agreement and whether agreement was illegal and in fraudem legis
[39] It was also contended on the 2nd defendant’s behalf that the agreement in this
matter, if found to be illegal, is in any event severable. It was also argued that in terms
of the law, where a contract contains an invalid provision, then the party in whose favour
the provision would operate is entitled to regard the contract as severable even if the
other party does not. It was also argued, by reference to the judgment in Strauss that
the agreement is question is not illegal and was not a fraud on the relevant legislative
provisions because the intention of the parties to the agreement was not to transfer the
property within the meaning ascribed to the word in the Strauss judgment.
[40] These issues are, in my view interconnected and it would be precipitous to
decide them with a degree of finality at exception stage. I say so for the reason that they
may, for a proper analysis, require the adduction of oral evidence, for the one part, and
also extensive legal argument, possibly after evidence has been led, to determine
whether the circumstances of the case as shown by the admissible evidence led points
inexorably to the conclusion that the intention of the parties was not to transfer the
property and therefore the agreement, as alleged was not illegal and therefore not in
fraudem legis.
[41] It is my conclusion that delving into these intricate and involved matters at the
stage of an exception would yield some injustice. It is preferable that evidence be led on
these issues and the court may then be in a proper place to come to an informed
decision of the proper category into which the matter falls after adduction of evidence. In
this regard, I am of the view that the defendant should, if so advised, after the court has
made its order, file its plea and deal with these issues, which may ultimately be the
subject of determination at the trial.
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Costs
[42] It follows that the 2nd defendant has succeeded in its exception and special plea
and is therefore entitled to the costs of one instructing and instructed Counsel, since
there is no reason why the ordinary rule that costs should follow the event should not
apply.
[43] Mr. Heathcote, in his address, requested the court to say a word about the
provisions of rule 32 (11), which read as follows:
‘Despite anything to the contrary in these rules, whether or not instructing and instructed
legal practitioners are engaged in a cause or matter, the costs that may be awarded to a
successful party in any interlocutory proceeding may not exceed N$20 000.’
I have no doubt that there were laudable reasons for including this provision and on the
peremptory terms that were applied. One possible reason was to make litigation more
affordable and not to ‘out-litigate’ parties who may not be able have the financial power
and muscle by endlessly launching interlocutory applications to ‘kill’ the matter by drying
the pools of that party’s financial resources.
[44] I am of the view that though those were laudable intentions and which should
generally be adhered to, to make an absolute bar to costs beyond that figure and
without exception may in some instances be very harsh and an incomparable reward to
counsel for the hard work and assiduousness they have employed in performing their
unyielding duties the court.
[45] I am accordingly of the view that there must be a measure of flexibility allowed as
matters, even at the interlocutory stage, differ in terms of complexity and time
expended, both in preparation and argument. Others may be straightforward, requiring
very little research and there may be well beaten tracks on the correct legal positions.
Yet in others, there may be a need to chart new territories, thus requiring a lot of
research and application. I am of the view that the court should be allowed the
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discretion to order, in appropriate cases, a departure from the provisions of this subrule
on application in which the reasons will be advanced to the presiding judge’s
satisfaction.
[46] It must follow though that is not an order that should be lightly granted and for
trivial or for trifling reasons. This should be particularly the case where the departure
advocated for may have the potential to ‘out-litigate’ a party out of the courtroom to the
periphery of the court’s fences, because of the costs implications. Each matter should,
in my view, be treated in the light of its own special circumstances. To allow this to
present prohibition to remain the Law of the Medes and the Persians as it is, may
hamper the interests of justice and fairness in some cases.
Conclusion
[47] In the circumstances, I am of the view that the following order should be granted:
1. The 2nd defendant’s plea that the 2nd plaintiff does not have the locus standi in
judicio to institute these proceedings is upheld.
2. The plaintiff’s exception to the effect that the particulars of claim do not
contain averments necessary to sustain a cause of action is upheld.
3. The plaintiffs are granted leave within 15 days from that date of this order, to
amend their particulars of claim, and to which the defendants are ordered to
plead or file other suitable pleading within ten (10) days thereafter.
4. The plaintiffs are ordered to pay the 2nd defendant’s costs of one instructing
and instructed Counsel.
5. The matter is postponed to 7 September 2016 at 15:15 for a status hearing.
___________
T.S. Masuku
Judge
19
20
JUDGMENT ON VARIATION OF ORDER
Delivered: 22 September 2016
MASUKU J.,
1. On 8 July 2016, I issued a ruling on an exception in this matter. The exception
had been moved by the 1st defendant against the plaintiffs’ particulars of claim.
2. Having considered the issues raised, I issued an order in the following terms:
1. ‘The 2nd defendant’s plea that the 2nd plaintiff does not have the locus standi in judicio to
institute these proceedings is upheld.
2. The plaintiff’s exception to the effect that the particulars of claim do not contain
averments necessary to sustain a cause of action is upheld.
3. The plaintiffs are granted leave within 15 days from that date of this order, to amend their
particulars of claim, and to which the defendants are ordered to plead or file other
suitable pleading within ten (10) days thereafter.
4. The plaintiffs are ordered to pay the 2nd defendant’s costs of one instructing and
instructed Counsel.
5. The matter is postponed to 7 September 2016 at 15:15 for a status hearing.’
3. It has since come to my attention that the order issued carries patent errors for the
reason that reference was made to the 2nd defendant is para 1 of the order although the
said defendant did not enter the fray. To that extent, para 1 of the order should properly
refer to the 1st defendant’s plea.
6. In para 2, reference was made to the plaintiff’s exception when in point of fact, it
was the 1st defendant who delivered the exception. To that extent, the said para should
make reference to the 1st defendant and not the plaintiff.
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5. In para 4, reference was made to the 2nd defendant, who, as stated above, did
not enter the fray. Accordingly, the proper reference should have been made to the 1 st
defendant.
6. In terms of rule 103 (1) (a), the court may of its own motion, rescind or vary any
order or judgment that is erroneously sought or erroneously granted and in which there
is a patent error.
7. As indicated above, there are some patent errors that were committed in the
drafting of the order as I have pointed out above. I am also of the considered view, in
the light of the foregoing, that no party can be prejudiced by the variation captured
above as contemplated by Rule 103 (3).
8. In the premises, the order dated 8 July 2016 is varied to read as follows:
6. The 1st defendant’s plea that the 2nd plaintiff does not have the locus standi in
judicio to institute these proceedings is upheld.
7. The 1st defendant’s exception to the effect that the particulars of claim do not
contain averments necessary to sustain a cause of action is upheld.
8. The plaintiffs are granted leave within 15 days from that date of this order, to
amend their particulars of claim, and to which the defendants are ordered to
plead or file other suitable pleading within ten (10) days thereafter.
9. The plaintiffs are ordered to pay the 1st defendant’s costs of one instructing
and instructed Counsel.
10.The matter is postponed to 7 September 2016 at 15:15 for a status hearing.
___________
T.S. Masuku
Judge
22
APPEARANCES
PLAINTIFFS: R. Heathcote SC (with him C. Van der Westhuizen
Instructed by Van der Merwe-Greeff Andima Inc.
1st DEFENDANT: T. Frank
Instructed by Dr Weder, Kauta & Hoveka Inc.
