UNREPORTED HIGH COURT CIVIL JUDGMENT INDEX 2015
COMPILED BY: MS. LOTTA AMBUNDAJUDICIAL RESEARCH ASSISTANTDIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
CIVIL INDEX TO HIGH COURT JUDGMENTS DELIVERED DURING 2013
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THE HIGH COURT JUDGMENT INDEX 2015
THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2015. THE INDEX IS COMPILED TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT AUTHORITIES.
THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.
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Table of Contents
SUBJECT INDEX...............................................................................................................................8
ABSOLUTION FROM THE INSTANCE..........................................................................................8
ADMINISTRATIVE LAW...................................................................................................................9
ADMINISTRATION OF ESTATES.................................................................................................10
AMENDMENTS OF PLEADINGS..................................................................................................10
APPLICATIONS/ MOTION PROCEEDINGS...............................................................................11
APPLICATION FOR EJECTMENT/EVICTION............................................................................14
APPLICATION FOR RECUSAL.....................................................................................................15
APPLICATIONS UNDER POCA....................................................................................................16
CASE MANAGEMENT RULES......................................................................................................17
CIVIL APPEALS...............................................................................................................................19
COMPANY LAW...............................................................................................................................20
CONDONATION...............................................................................................................................21
CONSOLIDATED PRACTICE DIRECTIVE..................................................................................22
CONSTITUTIONAL LAW................................................................................................................22
CONTEMPT OF COURT................................................................................................................22
CONTRACT......................................................................................................................................22
COSTS...............................................................................................................................................25
CUSTOMARY LAW.........................................................................................................................26
DEFAMATION..................................................................................................................................28
DEFAULT JUDGMENT...................................................................................................................28
DISCOVERY.....................................................................................................................................29
FAMILY LAW....................................................................................................................................30
EXCEPTION.....................................................................................................................................31
IRREGULAR PROCEEDINGS.......................................................................................................32
INTERPRETATION OF STATUTES..............................................................................................33
INQUEST...........................................................................................................................................34
INTERDICT.......................................................................................................................................34
INTERLOCUTORIES.......................................................................................................................35
INTERPLEADER..............................................................................................................................36
JOINDER...........................................................................................................................................37
JURISDICTION OF THE HIGH COURT.......................................................................................38
LAW ON AGENCY...........................................................................................................................38
LAW OF DELICT..............................................................................................................................38
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LAW ON DURESS...........................................................................................................................41
LAW OF EVIDENCE........................................................................................................................41
LAW OF INSOLVENCY...................................................................................................................42
LAW OF PROPERTY......................................................................................................................43
LEGAL ETHICS................................................................................................................................43
LOCUS STANDI...............................................................................................................................44
MATRIMONIAL.................................................................................................................................44
POSTPONEMENT...........................................................................................................................45
PLEADINGS......................................................................................................................................45
PRESCRIPTION...............................................................................................................................46
REQUEST FOR FURTHER PARTICULARS...............................................................................46
RESCISSION....................................................................................................................................46
RES JUDICATA................................................................................................................................47
REVIEWS..........................................................................................................................................47
SECURITY FOR COSTS................................................................................................................49
SPOLIATION....................................................................................................................................49
SUMMARY JUDGMENT.................................................................................................................50
URGENT APPLICATIONS..............................................................................................................51
VINDICATION...................................................................................................................................55
CASE SUMMARIES........................................................................................................................56
Alexander Forbes Namibia Group (Pty) Ltd v Andrew Nangombe (I 2452-2014) [2015] NAHCMD 167 (24 July 2015)............................................................................................................56
Auto Tech Truck and Coach CC v Fannys Motor Repairs and Investment CC (I 2483-2013) [2015] NAHCMD 236 (6 October 2015)................................................................................56
Baker v The Messenger of Court for the District of Walvis Bay (A 309-2015) [2015] NAHCMD 286 (23 November 2015).................................................................................................56
Bampton v Von Wielligh (CA 44-2015) [2015] NAHCMD 293 (3 December 2015).............57
Blaauws Transport (Pty) Limited v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 125 (4 June 2015).............................................................................................................57
Blaauws Transport (Pty) Ltd v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 268 (12 November 2015)....................................................................................................................57
BV Investments 264 CC v FNB Namibia Holdings Limited (I 362/2010) [2015] NAHCMD 6 (29 January 2015)...............................................................................................................................58
Chantal Visagie v Josias Alexander Visagie (I 1956/2014) [2015] NAHCMD 117 (26 May 2015).....................................................................................................................................................58
Demenkov and Another // Minister of Home Affairs and Immigration and Another (A 263/2015) [2015] NAHCMD 267 (09 November 2015)..................................................................59
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Enkali v Ondangwa Town Council (A 15-2012) [2015] NAHCNLD 52 (12 November 2015)................................................................................................................................................................60
Epic Transport (Pty) Ltd v MLN Junior Trucking CC (I 244-2015) [2015] NAHCMD 198 (25 August 2015)........................................................................................................................................60
First National Bank of Namibia Limited v Louw (I 1467-2014) [2015] NAHCMD 139 (12 June 2015)............................................................................................................................................60
First National Bank of Namibia Limited v SSS Motor Spares CC (I 4071-2014) [2015] NAHCMD 163 (22 July 2015)............................................................................................................61
Fuller v Shigwele (A 336/2014) [2015] NAHCMD 15 (5 February 2015)...............................61
Futeni collections (Pty) Ltd v De Duine (I 3044/2014) [2015] NAHCMD 119 (27 May 2015)................................................................................................................................................................61
Gurirab v Minister of Home Affairs and Immigration (A 323-2014) [2015] NAHCMD 262 (5 November 2016)..................................................................................................................................62
Hoveka v Minister of Regional and Local Housing and Rural Development (A 356/2013) [2015] NAHCMD 63 (10 February 2015)..........................................................................................62
Hinananye Nehoya v Shafooli (I 09/2013) [2015] NAHCNLD 04 (27 January 2015)..........64
Intamba v Tjapaka (A57-2015) [2015] NAHCMD 218 (16 September 2015)........................64
Inter-Africa Security Services CC v Transnamib Holdings Limited (A 236-2015) [2015] NAHCMD 276 (17 November 2015).................................................................................................65
Jacobs v The Minister of Safety and Security (I 3772/2013) [2015] NAHCMD 27 (19 February 2015)....................................................................................................................................66
Jacobs v Van Zyl (A 106/2015) [2015] NAHCMD 254 (29 October 2015)............................66
Josea v Ahrens (I 3821-2013) [2015] NAHCMD 157 (2 July 2015).......................................67
Kameya v The Chief of the Namibian Defence Force (A 66-2015) [2015] NAHCMD 92 (16 April 2015)............................................................................................................................................67
Kambazembi Guest Farm CC v The Minister of Lands and Resettlement (A 295/2013) [2015] NAHCMD 128 (05 June 2015)...............................................................................................68
Kanguatjivi v Kanguatjivi (I 309/2013) [2015] NAHCMD 106 (30 April 2015).......................68
Kaura v Kazenango (A 193-2015) [2015] NAHCMD 176 (29 July 2015)..............................68
Klein v Caremed Pharmaceuticals (Pty) Ltd (A 17-2014) [2015] NAHCMD 136 (11 June 2015).....................................................................................................................................................69
Kondjeni Nkandi Architects v The Namibian Airports Company Limited (I 3622-2014) [2015] NAHCMD 223 (11 September 2015)....................................................................................69
Korea v Angala (A 09-2015) [2015] NAHCNLD 42 (12 August 2015)...................................69
Kriel v Kantak (A 268-2015) [2015] NAHCMD 242 (7 October 2015)....................................70
Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (A 273-2014) [2015] NAHCMD 240 (8 October 2015)..........................................................................................................................70
Louw v Khomas Regional Council (A 164-2015) [2015] NACHMD 187 (10 August 2015).71
Manetti v Feris (A 277/2015) [2015] NAHCMD 255 (29 October 2015)................................71
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Maritima Consulting Services CC v Northgate Distribution Services Ltd (A 282-2014) [2015] NAHCMD 121 (29 May 2015)................................................................................................72
Martins v Medusalem (I 132-2013) [2015] NAHCNLD 19 (24 April 2015).............................73
Maswahu v Katima Mulilo Town Council (I1575-2015)[2015] NAHCMD 284 (18 November 2015).....................................................................................................................................................73
Mazila v The Government of the Islamic Republic of Iran (A 13/2015) [2015] NAHCMD 24 (13 February 2015)..............................................................................................................................73
Mbahuurua v Mbahuurua (A 31/2015) [2015] NAHCMD 230 (1 October 2015)..................74
McDonald v Moor (A 244-2015) [2015] NAHCMD 235 (21 September 2015)......................74
Mokomele v Katjiteo (I 3148-2013) [2015] NAHCMD 153 (26 June 2015)...........................75
Mpasi v Kudumo (A 235/2015) [2015] NAHCMD 252 (22 October 2015).............................76
Mpepo v Steckels Toyota CC (I 791-2013) [2015] NAHCMD 137 (11 June 2015)..............76
Moor v McDonald (A 244-2015) [2015] NAHCMD 253 (30 September 2015)......................77
Mukata v Appolus (I 3396/2014) [2015] NAHCMD 54 (12 March 2015)...............................77
Mukendwa v Minister of Safety and Security (I 490/2013) [2015] NAHCMD 109 (29 April 2015).....................................................................................................................................................78
Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services cc & Another ((T) I 982/2011) [2015] NAHCMD 291 (1 December 2015).....................................................................79
Mungunda v Wilhelmus (I 2354-2014) [2015] NAHCMD 149 (25 June 2015)......................79
Naanda v Edward (I 2097-2014) [2015] NAHCMD 239 (8 October 2015)............................80
Namibia National Students Organization v National Youth Council of Namibia (A 169-2015) [2015] NAHCMD 201 (7 August 2015)..................................................................................80
Namsov Fishing Enterprise (Pty) Ltd v Ministry of Fisheries and Marine Resources (A 59-2015) [2015] NACHMD 246 (15 October 2015)..............................................................................81
National Cold Storage v Namibia Poultry Industries (Pty) Ltd (A 286/2014) [2014] NAHCMD 40 (03 March 2014)...........................................................................................................82
Natural Namibia Meat Producers (Pty) Ltd v Prenn (I 304-2012) [2015] NAHCMD 96 (17 April 2015)............................................................................................................................................83
Ndabeni v Nandu (I 343/2013) [2015] NAHCMD 110 (11 May 2015)....................................84
Nepolo v Burgers Equipment and Spares Okahandja CC (I 2352/2012) [2015] NAHCMD 53 (12 March 2015).............................................................................................................................84
New African Methodist Episcopal Church in the Republic of Namibia v Kooper (A 293/2013) [2015] NAHCMD 105 (29 April 2015).............................................................................85
Purity Manganese (Pty) Ltd v Mineworkers Union of Namibia (I 4026-2014) [2015] NAHCMD 204 (3 September 2015)..................................................................................................85
O Behrens and Co (Pty) Ltd v Hora Property Investment One CC (I 545-2014) [2015) NAHCMD 174 (30 July 2015)............................................................................................................85
Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I 2359-2014) [2015] NAHCMD 152 (26 June 2015)...........................................................................................................86
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Rall v Professional Provident Society Insurance Company (Namibia) Ltd (I 1153-2015) [2015] NAHCMD 209 (9 September 2015)......................................................................................86
Scania Finance Southern Africa (Pty) Ltd v XXX Trucking CC (I 2166-2014) [2015] NAHCMD 173 (30 July 2015)............................................................................................................87
Schiffer v Schiffer (I 2985/2013) [2015] NAHCMD 93 (22 April 2015)...................................87
Seneviratne v The President of the Republic of Namibia (A 49/2013) [2015] NAHCMD 14 (5 February 2015)................................................................................................................................88
Shambo v Amukugo (I 3744-2014) [2015] NAHCMD 244 (9 October 2015)........................88
Sheefeni v The Council of the Municipality of Windhoek (I 2473-2013) [2015] NAHCMD 172 (30 July 2015)...............................................................................................................................89
Sinalumbu v Lewin (A 321/2015) [2015] NAHCMD 277 (18 November 2015).....................89
South African Poultry Associations v The Ministry of Trade and Industry (A 94-2014) [2015] NAHCMD 256 (28 October 2015)..........................................................................................89
Standard Bank Namibia Limited v Gertze (I 3614-2013) [2015] NAHCMD 144 (18 June 2015).....................................................................................................................................................90
Standic BV v Kessels (A 289-2012) [2015] NAHCMD 197 (24 August 2015)......................91
The Inspector General of the Namibian Police v Dausab-Tjiueza (A 191/2014 [2015] NAHCMD 25 (29 January 2015)........................................................................................................91
The Prosecutor General v Hategekimana (POCA 5-2014) [2015] NAHCMD 238 (8 October 2015).....................................................................................................................................................92
Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015).....................................................................................................................................................93
Tjipepa v Minister of Safety and Security (I 271-2013) [2014] NAHCMD 193 (7 August 2015).....................................................................................................................................................94
Tjiriange v Kambazembi (A 164-2015) [2015] NAHCMD 185 (10 August 2015).................95
Tona Trade Holdings CC v Mvula Properties CC (I 164-2014) [2015] NAHCNLD 41(12 August 2015)........................................................................................................................................96
Town Council of Rundu v Dinyando (A 417-2013) [2015] NAHCMD 237 (8 October 2015)................................................................................................................................................................96
Usakos Town Council v Jantze (A 222-2015) NAHCMD 225 (16 September 2015)...........97
Von Wielligh v Shaumbwako (I 2499/2014) [2015] NAHCMD 168 (22 July 2015)...............98
Workers Advice Centre v Conradie (I 4388-2013) [2015] NAHCMD 229 (24 August 2015)................................................................................................................................................................99
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SUBJECT INDEX
ABSOLUTION FROM THE INSTANCE
Practice and Procedure – Absolution from the instance – Test - Not whether the evidence led by the plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a court, applying its ‘mind reasonably’ to such evidence, could or might find for the plaintiff. If plaintiff had made out a case and defendant’s defence peculiarly within his/her knowledge, absolution not appropriate remedy - Court must, in adjudicating absolution application, guard against defendant who seek to avoid testifying under oath to explain uncomfortable questions. Dannecker v Leopard Tours Car & Camping Hire CC (I 2909/2006) [2015] NAHCMD 30 (20 February 2015).
Absolution from the instance – When to be granted - Partnership – what plaintiff must allege and establish. Behrenbeck v Voigts (I 746/2014) [2015) NAHCMD 72 (23 March 2015).
Practice - Trial - Absolution from the instance at close of plaintiff's case - Test to be applied - Test was whether evidence could or might lead a Court, applying its mind reasonably, to find for plaintiff - Evidence to be considered in relation to pleadings and law applicable to particular case. Four Winds Logistics CC v The Government of the Republic of Namibia [2015] NAHCMD 115 (27 May 2015).
Practice – Trial – Absolution from the instance at the close of the plaintiff case – When to be granted – Plaintiff must lead admissible evidence on which court, applying its mind reasonably to the evidence, could or might find for the plaintiff – It requires the court to consider the evidence not in vacuo but to consider the admissible evidence in relation to the pleadings and to the requirements of the law applicable to the particular case. Mpepo v Steckels Toyota CC (I 791-2013) [2015] NAHCMD 137 (11 June 2015).
Practice – Trial – Absolution from the instance at the close of plaintiff case – When to be granted – Plaintiff must lead admissible evidence on which a court, applying its mind reasonably to the evidence, could or might find for the plaintiff – It requires the court to consider the evidence not in vacuo but to consider the admissible evidence in relation to the pleadings and to the requirements of the law applicable to the particular case – Purpose of pleadings explained – Court concluded that in the instant case the occasion
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has arisen to grant an order of absolution form the instance. Mokomele v Katjiteo (I 3148-2013) [2015] NAHCMD 153 (26 June 2015).
Practice - A plaintiff who fails to attend a trial is deemed to be in default and upon application defendant is entitled to an absolution from the instance in terms of Rule 98 (2). A party whose court process is signed by any person other than himself or herself or his/her legal practitioner is invalid. Absolution from the instance is granted. Workers Advice Centre v Conradie (I 4388-2013) [2015] NAHCMD 229 (24 August 2015).
ADMINISTRATIVE LAW
Administrative law - Administrative action – First respondent, the traditional leader of the Oukwanyama Traditional Authority dismissing the applicants, a traditional and two senior traditional councilors from their positions – Question arising whether such dismissals constituted an administrative act or the exercise of the traditional leaders executive powers - Distinction between administrative and executive acts for purposes of review - Issue to be decided on case by case basis – After considering the role of Traditional Authorities and traditional leaders in the context of local government – and with reference to the scheme and scope created by the Traditional Authorities Act 25 of 2000 in terms of which Traditional Authorities are established and operate - as well as upon the consideration of further factors such the source of the traditional leaders power, the nature of the power/function exercised, the impact of the decision on the public/community, whether there was a need for the decision to be exercised in the public interest and the fact that the powers were disciplinary powers, court concluding that the complained of decisions were administrative in nature, rendering them liable to review in terms of Article 18 of the Namibian Constitution. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015).
Administrative law – Review – Application to review act of administrative official – Such application must be brought in terms of rule 76 of the rules – Court held that failure to comply with rule 76 is fatal – Effect of such failure is that there is no application to review properly before the court – Court held that it would therefore be wrong and illogical for the court to grant interim interdict pending finalization of a review application where such application did not exist – Consequently, the court struck the application from the roll with costs. Kameya v The Chief of the Namibian Defence Force (A 66-2015) [2015] NAHCMD 92 (16 April 2015).
Administrative Law - Applicability of audi alteram partem principle – Voluntary Association temporarily suspended from National Youth Council in terms of s 9(g) of the
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National Youth Council Act, 2003 (Act No. 3 of 2009) –Applicant not given opportunity to make representations - When a statute empowers a public body or official to give a decision prejudicially affecting an individual in his liberty, property, existing rights or legitimate expectations, he has the right to be heard before the decision is taken unless the statute expressly or impliedly indicates the contrary. Namibia National Students Organization v National Youth Council of Namibia (A 169-2015) [2015] NAHCMD 201 (7 August 2015)
Administrative law – Exhaustion of internal or domestic remedies before approaching court – Court set out considerations that a court ought to take into account when deciding whether internal remedies should be exhausted before litigant approaches court – Paramount considerations are (1) whether remedies capable of providing effective redress in respect of complainant and (2) whether alleged unlawfulness has undermined the internal remedies themselves – In instant case internal remedy is provided by s 9(2) of the applicable Act being the Marriage Act 25 of 1961. Gurirab v Minister of Home Affairs and Immigration (A 323-2014) [2015] NAHCMD 262 (5 November 2016)
ADMINISTRATION OF ESTATES
AMENDMENTS OF PLEADINGS
Interlocutory – Amendment of particulars of claim brought late in the proceedings and during re-examination – Reasons advanced that amendment is necessary to bring in line particulars of claim with evidence adduced – Defendants prejudice cannot be cured with a costs order. CRVW Chartered Accountants and Auditors v Hamases (I 1151/2013) [2015] NAHCMD 81 (1 April 2015).
Application - Application to amend particulars of claim is a substantive application which should be by notice of motion and filing of Heads of Argument before a hearing in terms of the Rules of Court. Costs should not be awarded willy-nilly as they might scare litigants from seeking legal recourse through the courts. Applicant sought to amend his particulars of claim, but, chose not to make a formal application in terms of Rules 52 and 32 of the Rules of this court. Respondent argued that the application should have been by a substantial application as it sought to alter material terms of the contract. Respondent further argued that if a substantial application is not made, defendant will
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be prejudiced as the application seeks to materially alter the course of action. Application is dismissed. Martins v Medusalem (I 132-2013) [2015] NAHCNLD 28 (16 July 2015).
Amendments – Application to amend particulars of claim – courts will grant such application if it can be shown that the application was not mala fide and that such amendment does not prejudice respondents. Applicant must offer a reasonable explanation for its failure to have included all its particulars timeously. However courts should not be unnecessarily rigid as there is a need for the parties to present facts for the courts to ventilate all issues before them. A party making an application to amend should be prepared to bear the costs of such application unless it can be shown that respondent acted unreasonably by opposing the application. Hinananye Nehoya v Shafooli (I 09/2013) [2015] NAHCNLD 04 (27 January 2015).
APPLICATIONS/ MOTION PROCEEDINGS
Applications and motions – Application for declaratory order – Question to be answered by court is whether the applicant was recruited from his home country of New Zealand for the post of Special Adviser to the Director General of the National Planning Commission – Court found that applicant was ordinarily resident in Namibia when he was recruited for the post – Applicant had only left Namibia temporarily on sick leave and vacation leave in New Zealand – Principle in De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD 160 (22 May 2014) on test for ordinarily residence applied – Court concluded that applicant was locally recruited – Consequently, court held that applicant has not established a right which the court may protect by declaratory order – Application, accordingly, dismissed with costs. Seneviratne v The President of the Republic of Namibia (A 49/2013) [2015] NAHCMD 14 (5 February 2015).
Declarator - Practice – application for a declarator. Requirements to be met. Jurisdiction of the courts to deal with ecumenical matters, not involving determination of civil rights. Authority to bring application proceedings and applicable considerations. Disputes of fact and the court’s discretion in deciding whether to refer disputes to oral evidence, conversion to a trial or to dismiss same if foreseeable. New African Methodist Episcopal Church in the Republic of Namibia v Kooper (A 293/2013) [2015] NAHCMD 105 (29 April 2015).
Rule 32 - Practice – Applications and motions – Interlocutory application – Court held that rule 32 contemplates two types of proceedings ie (a) applications for directions in
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respect of interlocutory applications and (b) interlocutory application – Court held further that since an application for summary judgment is an interlocutory proceeding an applicant is bound by rule 32(9), (10) and (11) which are peremptory – Consequently where an applicant fails to comply with rule 32(9) and (10) his or her application falls to be dismissed. Mukata v Appolus (I 3396/2014) [2015] NAHCMD 54 (12 March 2015).
Practice – Applications and motions – Further affidavits – Court has discretion to allow filing of further affidavits – In instant case respondent choosing not to apply to strike out alleged new matter in applicant’s replying affidavit but rather choosing to apply for leave to file supplementary answering affidavit – Court considered such course not advisable as it did not conduce to structured litigation in application proceedings and tended to offend the overriding objectives of the rules of court – Court concluded that respondent has failed to establish that special circumstances exist for court to exercise its discretion in favour of permitting the filing of a supplementary answering affidavit – Consequently, court dismissed application with costs. Maritima Consulting Services CC v Northgate Distribution Services Ltd (A 282-2014) [2015] NAHCMD 121 (29 May 2015).
Applications and motions – Defendant failing to comply with order of court to file amended plea to particulars of claim in an action within a time limit – Defendant rather launching an application – Court found that applicant failed to comply with court order and concluded that he was accordingly barred – Court held that the principle in Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (2) NR 753 (SC) about pleadings filed by lay persons representing themselves not to be taken too far to cover situations where a rule of court or an order of the court has not been complied with at all – Relying on Kalenga Iyambo v S Case No. CA 165/2008 (Unreported) court held that lay litigants representing themselves are just as much under an obligation as those represented by counsel to comply with orders of court – Invoking the rules of court respecting consequences following upon non-compliance with the rules or orders of the court, defendant’s application was dismissed with costs. Standard Bank Namibia Limited v Gertze (I 3614-2013) [2015] NAHCMD 144 (18 June 2015).
Application – Declaratory order sought in stated case – Computation of sentences in terms of s 86 of the Prisons Act 17 of 1998 (1998 Prisons Act) and consecutive and concurrent sentences in terms of s 280 of the Criminal Procedure Act, 1977 (Act 51 of 1977)(CPA) – Whether sentences to run consecutively or concurrently in the absence of an express order from the trial court or sentencing court – Statutes interpretation: the two provisions aimed to enforce the same sentencing scheme and not repugnant to one another – Statutory scheme is that firstly, a sentence commences as soon as it is imposed. Secondly, it states that where there are sentences on multiple convictions, such sentences are served one after the other. Thirdly, it creates a statutory exception
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whereby a subsequent sentence in the wake of a prior sentence of life imprisonment or condemnation as habitual offender, is always concurrent to a term of life imprisonment or sentence following declaration as a habitual offender. Fourthly, the obligation to start serving a sentence is delayed where it is suspended under any law or the offender is released on bail pending appeal; in which case the sentence commences to be served only if the offender surrenders him or herself or is taken into custody. Fifthly, the scheme suspends the running of a sentence where a prisoner has escaped from lawful custody or was erroneously released – Ante-dating of sentences would lead to absurd results and such power is reserved only for an appeal or review court. Alugodhi v Ministry of Safety and Security (A 271-2013) [2015] NAHCMD 160 (14 July 2015).
Practice – Purpose of affidavits in motion proceedings - Affidavits serve to both place evidence before the court and to define the issues between the parties. - Respondents claim that the applicant had not acquired her late husband’s consent in writing to purchase the farm - Insufficient facts averred to establish such lack of consent. Intamba v Tjapaka (A57-2015) [2015] NAHCMD 218 (16 September 2015).
Practice - Applications and Motions – Jurisdiction of High Court (sitting as High Court) raised in limine – Consequently, Court not competent to deal with issues of urgency and merits of application, unless jurisdiction challenge has first been determined. Usakos Town Council v Jantze (A 222-2015) NAHCMD 225 (16 September 2015)
Applications and motions – factual disputes – final relief granted on facts averred in applicant’s affidavits admitted by respondent together with facts alleged by the respondent unless denial raises fictitious disputes, or is so implausible as to justify rejection on the papers. Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015)
Practice – Application and motions – Application for hearing of oral evidence – Generally, court will exercise discretion in favour of hearing oral evidence only where genuine dispute of facts on the papers exists – Courts will not readily refer application for a provisional winding-up order to oral evidence – This will only be ordered in exceptional circumstances – It will not be ordered where material dispute of facts has not been clearly defined – It will also not be ordered where referral will not lead to a just and speedy determination of the matter as contemplated in rule 1(3) of the rules of court. Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (A 273-2014) [2015] NAHCMD 240 (8 October 2015).
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Affidavit – Hearsay - An applicant who in his founding affidavit refers to certain facts outside his personal knowledge must file a supporting affidavit as such evidence is hearsay. A point in limine objecting to such evidence is upheld. Applicant sued respondent for certain relief. Before the matter was heard, it applied for my recusal and filed a founding affidavit. In the said affidavit, the deponent referred to certain facts which were not personally known to it, but, by its Legal Practitioner of record. The Legal Practitioner failed to file a supporting affidavit verifying the said contents in the affidavit. Legal Practitioner admitted his error. No good grounds for such error were laid before the court. Evidence was, therefore, hearsay and as such was inadmissible. As it is, there was no application. Application was dismissed. Ondangwa Town Council v Andreas (I 253-2014) [2015] NAHCNLD 38 (04 August 2015).
Civil Procedure - Application for stay of proceedings – Requirements. RULES OF COURT - Rules of the Supreme Court on lodgment of the record– effect of non-compliance therewith – effect of the matter being struck off from the roll. The applicants applied to the High Court for the stay of proceedings for their eviction from certain premises on grounds that there were pending proceedings before the Supreme Court. Held (1) the matter was struck off the roll of the Supreme Court and there were no proceedings before the Supreme Court. Applications for condonation and reinstatement were preliminary in nature and did not have the effect affecting proceedings before the High Court. Requirements for applications for stay of proceedings revisited – that such applications are not lightly granted but only granted sparingly and in exceptional circumstances and upon exercising great caution. Held that the imperatives of the prejudice and convenience pointed inexorably in the refusal of the application as the applicants’ occupation prejudiced the respondent’s right to ownership in a manner that cannot be remedied by costs. Application for stay dismissed with costs and matter allocated trial date. Mouton v Gaoseb (I 4215-2011) [2015] NAHCMD 257 (28 October 2015).
Procedure – Applications and Motions – dispute of fact - Final interdict – Should only be granted under circumstances where the respondents’ allegations and facts admitted by applicant would justify granting such interdict, unless the denials are bald and unsubstantiated, alternatively not genuine or bona fide. Respondents’ denials were bare and far-fetched in the circumstances. Spoliation order granted. Sinalumbu v Kabula (A 359-2013) [2015] NAHCMD 298 (9 December 2015).
APPLICATION FOR EJECTMENT/EVICTION
Civil Practice – Eviction Order – Plaintiff seeking an Order from Court to evict the defendant from her farming and residential area at Otjijere Village in Epukiro. Defendant
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refusing to vacate the area claiming that he is entitled to occupy the area per the Ovaherero Customs – After trial court rejected the defendant’s version and granted the plaintiff the order prayed for in the notice of motion. Kanguatjivi v Kanguatjivi (I 309/2013) [2015] NAHCMD 106 (30 April 2015).
APPLICATION FOR RECUSAL
Application for recusal – One of the grounds on which the recusal was based was the fact that the applicants had lodged a complaint against the managing judge with the Judicial Service Commission which enabled them to argue that there was a dispute pending between the applicants and the presiding judge. The court considered this to be a good point - in principle - on the basis of which he would in the normal course of events not have hesitated to recuse himself - would it not have been that the content of the complaint, was so obviously misguided and meritless. As however a judge is duty bound not recuse him or herself when confronted with a meritless application and as it is wrong to yield to a tenuous or frivolous objection - and – as to do so would also send out the wrong message – judge refusing to recuse himself in this instance.
In any event such a situation should also not be allowed to develop as it is vital to the integrity of our courts and the independence of Judges and magistrates that ill-founded and misdirected challenges to the composition of a Bench be discouraged. Judge also for this reason refusing to recuse himself.
As it had to be concluded from the findings made in regard to the other facts raised in support of the application for recusal that there was absolutely no merit in the factual matrix underlying the applicants’ case, court holding that the applicants were unable to discharge their onus on the facts in such circumstances.
Also from an objective perspective – applying the ‘double unreasonableness requirement’ - the applicants could not succeed as, in the premises of the case, they were unable to show bias or that their apprehensions of bias were those of reasonable persons or that such purported apprehensions of bias were also based on reasonable grounds.
A reasonable, objective and informed person - versed in the manner in which the case management system operates and is applied in our courts on a daily basis - would not - on the real underlying facts of this case - have reasonably apprehend that the Managing
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Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.
It followed that the applicants failed to prove actual bias and also cannot show a reasonable apprehension of bias. The applicants’ challenge could thus not succeed.
In the result - and as the entire application for recusal – of which the complaint to the Judicial Service Commission was only a component - was not only ‘tenuous and frivolous’, but also ‘ill-founded and misdirected’, as well as being ‘scandalous, vexatious and contemptuous’ - it was dismissed with costs, on the attorney and own client scale. Beukes v The President of the Republic of Namibia (A 427/2013) [2015] NAHCMD 62 (17 March 2015).
APPLICATIONS UNDER POCA
Prevention of Organised Crime Act 29 of 2004 (POCA) — Provisional preservation of property order having been granted against respondent in terms of Section 51(2) — On return day, court reconsidering requirements for - Application had been brought ex parte and on an urgent basis.
Statute — Interpretation — Prevention of Organised Crime Act 29 of 2004 (POCA) -Section 51(2) — Section providing that ‘the High Court must make an order referred to in subsection (1) without requiring that notice of the application be given to any other person …’ — Regulation 7(b) made in terms POCA however requiring that ‘notice of at least 7 days must be given’ – Court holding that Section 51(2) should not be read in isolation but should be read with Sections 51(1), 1 and 100 and 91(1) and (2) and Regulation 7.
Statute — Interpretation — Prevention of Organised Crime Act 29 of 2004 (POCA) Section 51(2) – Section 51(2) seemingly conflicting with provisions of Regulation 7 made in terms of POCA – Court applying applicable canons of construction relating to the interpretation of conflicting provisions in the same statute in terms of which the courts endeavour to firstly reconcile the prima facie conflicting provisions of the same statute. To this end, ‘the language of every part of a statute should be construed as to be commensurate as far as possible with every other part of the statute’. It would appear that there should be a reluctance by the court to not readily come to the conclusion that there is an irreconcilable conflict and that the courts should rather use all the means at their disposal to attempt to effect a reconciliation. Thus, where there are two sections in an act which seem to clash, but which can be interpreted so as to
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give full force and effect to each of them, such an interpretation is to be adopted, rather than the one that will partly destroy the effect of one of them.
Statute — Interpretation — Prevention of Organised Crime Act 29 of 2004 (POCA) -Section 51(2) — on the application of the abovementioned canons of statutory construction - court finding that Section 51(2) could be reconciled with Sections 51(1), as read with Sections 1 and 100 and 91(1) and (2) and Regulation 7, which Sections should thus be read together with the Regulation.
On such statutory interpretation of Sections 51(1) and (2) as read with Sections 1 and 100 and 91(1) and (2) and Regulation 7 of POCA court concluding that there was no absolute entitlement to an ex parte hearing in terms of s 51(2) of Act –
As the applicant had not complied with the set requirements imposed by POCA when she initially sought, and was granted, the interim preservation order in this case, on 10 October 2014, she had failed to bring herself within the ambit of the statutory mechanisms prescribed for the granting of the relief as sought then – rule nisi, on an afresh reconsideration, as if the order was first applied for, thus discharged with costs. The Prosecutor-General v Taapopi (POCA 08-2014) [2015] NAHCMD 134 (22 May 2015).
Practice – Applications and motions – Prevention of Organized Crime Act 29 of 2004, s 61(1) – Forfeiture of property – In determination of application for an order of forfeiture of property the following constituent elements of the interpretation and application of s 61(1) of the Act are crucial: (a) The property which is presently subject to a preservation of property order granted by this Honourable Court under case number POCA 5/2014 on 16 May 2014, namely the Nissan Hardbody with Engine Number KA2401878639X and Vin Number ADNJ260000E015363 (‘the property’), be forfeited to the State in terms of section 61, read with section 64, of the Prevention of Organized Crime Act, Act 29 of 2004 (‘POCA’), (b) That Sergeant Emilia Nambadi, in whose control the property is in terms of the preservation of property order, is authorized to: (i) sell the property at a public auction for a value not less than the current market value; and (ii) pay the proceeds of the sale into the Asset Recovery Account, Ministry of Justice – POCA, Standard Bank Account Number 589 245 309, branch code 08237200, (c) That any person, other than the respondent and Corporate Development Consortium (CDC), whose interest in the properties concerned is affected by the forfeiture order, may within 20 days after he or she has acquired knowledge of such order, set the matter down for variation or rescission of this order by the Court, (d) Prayers (a) to (c) shall not take effect before the expiration of 30 days after the notice of this order was published in the Government Gazette or before an application in terms of section 65 of Act 29 of 2004 or
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an appeal has been disposed of. The Prosecutor General v Hategekimana (POCA 5-2014) [2015] NAHCMD 238 (8 October 2015).
CASE MANAGEMENT RULES
Case Management – legal practitioner’s conduct undermining case management process – legal practitioner’s conduct during the mediation phase delaying the further progress of the matter by some 4 months – such conduct unbecoming of a legal practitioner - as a mark of the court’s disapproval of the said legal practitioner’s actions, which run counter to the entire case management process, court compelling legal practitioner to represent his client free of charge during further mediation ordered by the court – court also awarding the wasted costs of the failed mediation de bonis propriis against the practitioner. Mwoombola v Mwoombola (I 1670/2014) [2015] NAHCMD 94 (03 March 2015).
Practice - Rules of court – rule 32 (9) and (10) – effect of non-compliance – implication of unauthenticated “opposing affidavit” on an application for summary judgment – Procedural requirements exemption lay litigants. Alexander Forbes Namibia Group (Pty) Ltd v Andrew Nangombe (I 2452-2014) [2015] NAHCMD 167 (24 July 2015).
PRACTICE – Rules of the High Court – compliance with rule 32 (9) and (10); Exception – law applicable to exceptions; CONTRACT – validity of contracts entered into in violation of statutory enactments – whether courts can give effect to such contracts. Kondjeni Nkandi Architects v The Namibian Airports Company Limited ( I 3622-2014) [2015] NAHCMD 223 (11 September 2015).
Rules of court - Rule 65(5) b) – Government being a respondent - time limit may not be less than 15 days to file notice of intention to oppose. Practice and procedure - application struck from unopposed motion court roll – effect of striking matter from the roll. Namsov Fishing Enterprise (Pty) Ltd v Ministry of Fisheries and Marine Resources (A 59-2015) [2015] NACHMD 246 (15 October 2015).
Practice – High Court Rule 108(1) and (2) – Interpretation thereof – Application by Mortgagee to declare an immovable property, placed under a mortgage bond specially executable, as of right together with the default judgment – Principles in Futeni Judgment restated – Rule 108 not changing the common law right of mortgagee to declared bonded property executable but merely stating the procedures to be followed –
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Rule 108 (1) and (2) in line with the common law position that execution must first be laid against movables and thereafter immovable - Such Mortgagee not in a better position than any other judgment creditor - Application struck from the roll. Standard Bank Namibia Ltd v Shipila (I 1791/2014)[2015] NAHCMD 281 (19 November 2015).
Practice - A litigant who without lawful cause fails to comply with the Rules of court in general and in particular where he is ordered to do so will have his/her claim or defence dismissed with costs as between legal practitioner and client scale. Plaintiff issued out summons against defendants for claim arising from an accident due to 2nd defendant‘s negligence while acting within the scope and authority of 1st defendant. Defendants entered an appearance to defend. The matter proceeded up to a stage where defendants’ legal practitioner withdrew from the matter. 2nd defendant was asked to engage another legal practitioner, but, failed to do so. He also failed to attend court despite the court order that he should. Mr. Greyling for the plaintiff applied for a final order in terms of Rule 53 in light of defendants’ conduct. The application was indeed meritorious and it was accordingly granted. Zhu v Multi Electronic Construction and Technology CC (I46-2015) [2015] NAHCNLD 51 (05 November 2015).
CIVIL APPEALS
Appeal – Leave to appeal against costs order – General rule is that costs should follow the event and court entitled to depart from general rule only where special circumstances exist – Court did not find special circumstances to be present when it applied the general rule and awarded costs to successful party, and counsel for unsuccessful party has not in the instant proceeding pointed to any special circumstances that were present – Consequently, court concluded that applicant has failed to clearly indicate reasonable prospects of success on appeal to the Supreme Court – Principles in S v Nowaseb 2007 (2) NR 640 (H) applied – Consequently, application dismissed with costs. Maritima Consulting Services CC v Northgate Distribution Services Ltd (A 282-2014) [2015] NAHCMD 121 (29 May 2015).
Execution of judgment pending appeal - Execution of judgment pending appeal should not be easily granted. The court should take into account the irreparable harm or injury and inconvenience to the parties. It should also consider what is just and equitable in the circumstances and the prospects of success of the appeal. There should be circumstances that are superior and outweighing the injury or damage that might result should the losing party secure a reversal of the judgment. Applicant, the owner of the property proceeded to evict respondent who admitted that he had no right to the property, except that he wanted to remain on the property pending applicant
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compensating him by allocating him land of his choice. Respondent filed an appeal and applicant applied for an order of execution pending appeal. No prospects of success of appeal were found to exist and the balance of convenience favoured applicant. Town Council of Oshakati v Kuutumbeni (A 22-2014) [2015] NAHCNLD 14 (17 March 2015).
Appeal – Leave to appeal – Test - It is common cause that the test in these types of applications is whether the applicant has reasonable prospects of success on appeal. Put it differently, whether another court (the Supreme Court) will come to a different conclusion on the conclusions of law involved – There is such a reasonable prospects of success on appeal that the court of appeal may take a different view from that I have arrived at. Leave to appeal granted. Kambazembi Guest Farm CC v The Minister of Lands and Resettlement (A 295-2013) [2015] NAHCMD 184 (05 August 2015).
Appeal – Late prosecuting of appeal – Appeal considered to have lapsed – There being no application to condone non-compliance with the rules of court there is no appeal properly before the court for the court to adjudicate on – Consequently, the appeal struck from the roll with costs. Bampton v Von Wielligh (CA 44-2015) [2015] NAHCMD 293 (3 December 2015).
Appeal – Leave to appeal - Against order directing the enrolment of the parties’ minor children in the hostel of a private school pendente lite – Held that such order was akin to a ruling and thus not appealable even with leave as it was not final in effect and was always susceptible to alteration by the court of first instance or the Children’s Court; such order also not definitive of the rights of the parties and did not have the effect of disposing of, at least, a substantial portion of the relief claimed in the main proceedings in the Children’s Court. Application for leave to appeal accordingly dismissed with costs. Moor v McDonald (A 244-2015) [2015] NAHCMD 261 (04 November 2015).
COMPANY LAW
Company – Winding-up – Application for – Applicant averring that company (respondent) has failed to pay its debts – Unpaid debt arising from costs order granted in previous proceeding – Applicant relying on the general rule of ex debito justitiae to support winding-up application – Respondent aggrieved by costs order and desirous of taking appropriate steps to appeal that costs order – Respondent’s request for reasons for the costs order has to date been ignored – Court held that the ex debito justitiae rule does not apply where unpaid debt is bona fide disputed by company (respondent) – Court found that in instant matter the unpaid debt is bona fide disputed – Besides, court
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found that the applicant’s demand for security for costs had been fully and duly satisfied by a bond of security – Court concluded therefore that in the circumstances and on the facts applicant has failed to prove to the satisfaction of the court that the respondent is unable to pay its debts within the meaning of s 349(f), read with s 350(1)(c), of the Companies Act 28 of 2004 – Consequently, application dismissed with costs. Klein v Caremed Pharmaceuticals (Pty) Ltd (A 17-2014) [2015] NAHCMD 136 (11 June 2015).
CONDONATION
Condonation Application - In an opposed application for condonation for late filing of a plea and discovery affidavit, the applicant alleged that the delay in filing the pleadings was caused by efforts to settle the matter out of court and attached letters exchanged between the parties setting out the negotiations. The court held that it was improper to include privileged information in such applications. Held further that the reasons given for the delay were reasonable and that the applicant acted with reasonable promptitude in applying for condonation. On the question of costs, the court held that an applicant for condonation requests an indulgence and should ordinarily pay the wasted costs occasioned by an application for condonation. The application for condonation was granted and the applicant was ordered to pay the wasted costs. The Town Council of Helao Nafidi v Northland Development Project Limited (I 2725/2014) [2015] NAHCMD 73 (27 March 2015).
Condonation – The applicant brought an application for condonation of the late filing of a plea and counterclaim. The court considered the requirements for success in such applications and held that an applicant must explain the delay on affidavit and also show that they have a bona fide defence to such claim. The court held that the delay of three months was in the circumstances unconscionable and had not in any event, been adequately explained. Further, the court found that there was no bona fide defence alleged or disclosed in the papers. The duties imposed by the rules on legal practitioners in relation to case management were revisited. The court further held that there is a limit beyond which a client can escape the lack of diligence of its attorney. The court also cautioned against attorneys arguing cases in which they are witnesses as it compromises their ethical duties to the court. The application was dismissed with costs. IA Bell Equipment Co Namibia (Pty) Ltd v ES Smith Concrete Industries CC (I 1860/2014) [2015] NAHCMD 68 (23 March 2015).
Practice – Automatic bar in terms of rule 54(3) – Applicant failing to file its plea to the respondent’s counterclaim – Test – Must satisfactorily explain the delay or non-compliance with the court order and that there is a bona fide defence to the claim – No evidence for the defence as the plea was not filed – Delay based on unavailability of
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counsel and ignorance of the rules of the High Court – Court exercising it discretion and dismissing the application for condonation with costs. Colia Louis Family Trust v Komsberg Faming (Pty) Ltd (In liquidation) (I 2551-2014) NAHCMD 175 (31 July 2015); Epic Transport (Pty) Ltd v MLN Junior Trucking CC (I 244-2015) [2015] NAHCMD 198 (25 August 2015).
Practice - Applications and motions - Application for condonation for late filing of answering affidavit - In an application for the condonation of a late filing of an answering affidavit the court has a wide discretion which it will exercise in accordance with the circumstances of each case. The tendency of the court is to grant such an application where - (a) the applicant has given a reasonable explanation of his delay; - (b) the application is bona fide and not made with the object of delaying the opposite party's claim; - (c) there has not been a reckless or intentional disregard of the Rules of Court; - (d) the applicant's action is clearly not ill-founded and (e) any prejudice caused to the opposite party could be compensated for by an appropriate order as to costs. - Factor of prospect of success by itself never conclusive. Standic BV v Kessels (A 289-2012) [2015] NAHCMD 197 (24 August 2015).
CONSOLIDATED PRACTICE DIRECTIVE
CONSTITUTIONAL LAW
CONTEMPT OF COURT
Court - Orders of Court - Compliance with - Applicant applying for leave to appeal a previous Court order and for other relief on an urgent basis - Applicant in contempt of such order - Court striking matter from roll - Court giving applicant leave to re-enroll application on proof that she had complied with the previous order. Moor v McDonald (A 244-2015) [2015] NAHCMD 253 (30 September 2015).
CONTRACT
Contract – Plaintiff claiming for payment of balance of contract price for services rendered and material supplied – Plaintiff failing to prove that it complied with its obligations in that it was proved that plaintiff failed to perform the services according to
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agreed specifications and in a proper and workmanlike manner – Judgment entered for defendant – Defendant’s counterclaim for negative interesse – No allegation or evidence that contract cancelled – Method of computing claim incorrect – At close of trial defendant moving instead for restitution of part of contract price paid as alternative relief – Relief refused as no such case made out in pleadings or in evidence – Absolution from the instance ordered in respect of counterclaim. Swakop Body Works CC v Stumpfe (I 2177-2010) [2015] NAHCMD 1 (20 January 2015).
Contract – Terms of the agreement including a non-variation clause – Written agreement constituting the whole agreement between the parties – Such terms not to be substituted by oral evidence – Application of parole evidence rule reinstated – Words to be given their grammatical meaning unless in exceptional circumstances where an absurdity may arise – Party failing to perform in terms of the agreement repudiates the contract – Contract validly terminated by the innocent party. Von Weidts v Goussard (I 1852/2007) [2015] NAHCMD 57 (16 March 2015).
Law of contract – Obligation to perform duty with the required skill and workmanship – Defendant performing substandard work – Breach of contract - Plaintiff employed a third party to do remedial work - Plaintiff entitled to set off against counterclaim and damages suffered being the difference between the claim and counterclaim. MTC Telecommunications Ltd v A-BAU Ltd (I 3798/2007) [2015] NAHCMD 29(20 February 2015).
Contract – Breach of contract – Misrepresentation – Plaintiff entered into contract of sale of backhoe loader – Defendant represented that the made-in-China loader was brand-new and of high quality and durable – Court held that a statement as to the quality and condition of goods sold in a contract of sale by a seller who is a dealer in the goods should be held to be a term of the contract and he or she warrants that the goods shall be merchantable – Defendant had repaired the loader and made modifications to certain parts of the loader in defendant’s workplace in order to cure serious overheating of engine of loader before delivering loader to plaintiff – Court found that loader had latent defect and was unmerchantable – Court concluded that there had been misrepresentation of aspects which go to the root of the contract and the loader was unmerchantable – Court found that the plaintiff was entitled to cancel the contract and sue for restitution. Nepolo v Burgers Equipment and Spares Okahandja CC (I 2352/2012) [2015] NAHCMD 53 (12 March 2015).
Contract — Formation of — Consensus — Tacit Agreement — Proof of — Contract — Specific performance - Discretion of Court to refuse - Discretion not confined to specific cases - Nor circumscribed by rigid rules - Each case to be judged in light of own
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circumstances. National Cold Storage v Namibia Poultry Industries (Pty) Ltd (A 286/2014) [2014] NAHCMD 40 (03 March 2014).
Breach of contract – Law of Evidence – failure to put the case to the opposing party in cross examination and the consequences thereof. A lay litigant is not exempted from putting his case to the opposite party. How the court should resolve factual disputes in trials. Ndabeni v Nandu (I 343/2013) [2015] NAHCMD 110 (11 May 2015).
Contract – Reality of consent – Duress (metus) – requirements – acknowledgement of debt - burden of proof on the party claiming such - fear to be reasonable enough. Alexander Forbes Namibia Group (Pty) Ltd v Andrew Nangombe (I 2452-2014) [2015] NAHCMD 167 (24 July 2015).
Contract – Formation of - Consensus ad idem – misrepresentation – party to – when concluding a redistribution agreement signatory was not aware what she was signing, nor was she aware at the time, that by signature, she relinquished her right to her half share in a joint estate comprising immovable property. Caveat subsciptor principle not applicable. Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015).
Contract – the allegations to be made in pleadings relating to special and general damages in contractual damages claims. Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I 2359-2014) [2015] NAHCMD 152 (26 June 2015).
Contract - Lien – In what cases – First respondent claiming creditor-debtor lien or, and in addition, salvage lien for salvage work done and not paid – Respondent relying on oral agreement – Court held that lien ex contractu being the offspring of contract can only arise in conformity with and not in contradiction to the contract – Court found that in instant case terms of the contract do not provide that respondent will have a lien over vehicles it removed after the collision of the applicant’s vehicles with other vehicles – Consequently, court found that respondent cannot retain vehicles on basis of a lien ex contractu – Court found respondent has rather a salvage lien over the vehicles – Court having discretion to deprive lien holder of possession of the thing and to substitute security for the lien – In exercise of such discretion court ought to have regard to what is equitable under all the circumstances. Blaauws Transport (Pty) Ltd v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 268 (12 November 2015).
Law of contract – Contract in terms of lending and borrowing money from a financial institution; BANKING LAW – overdraft facilities and payment of interest. Plaintiff sued the defendant for payment of an amount owing as a result of an agreement between the parties to extend an overdraft facility to the defendant. Defendant denied the existence
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of the agreement between the parties. Held that the plaintiff proved the existence of the agreement in evidence and that the defendant admitted receiving the amount in his account and clearly failed to repay same. Held further that the plaintiff also admitted to have utilised the amount. Held further that it is normal banking practice for banks to levy interest on all overdrawn accounts. The plaintiff’s claim was thus upheld with interest claimed and costs. Standard Bank Namibia Limited v Swartz (I 3786-2014) [2015] NAHCMD 272 (13 November 2015).
Law of Contract – Repudiation; the exceptio non adimpleti contractus; CIVIL PROCEDURE – exceptions – failure to comply with 45 (9); failure to make necessary allegations to found a claim or defence. Pleading in the alternative in cases where the pleas are inconsistent and mutually destructive. Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services cc & Another ((T) I 982/2011) [2015] NAHCMD 291 (1 December 2015).
COSTS
Practice - Costs – Award of costs in favour of lay litigant, such costs limited to disbursements reasonably incurred – Costs not argued before award made – Lay litigant applying in terms of rule 44(1)(b) for order to be amended because of alleged ambiguity to word “disbursements” – Meaning of ‘costs’ and ‘disbursements’ discussed - No ambiguity found – Application on basis of rule 44(1)(b) misplaced – Although application brought under label of rule 44(1)(b) it is proper and just to consider application on basis that applicant an aggrieved lay litigant who had not previously been heard on costs – Other bases on which application brought discussed and rejected – Application dismissed. Kamwi v Standard Bank Namibia Ltd (A101-2011) [2015] NAHCMD 8 (30 January 2015).
Costs – Security for costs – Application of the Admiralty rules. Macute v The MV “FINO” her owners and all those interested in her (AC 6/2012)[2015] NAHCMD 36 (27 February 2015).
Costs - This is an application for payment of costs for management conferences attended by the defendant as a result of the plaintiff’s failure to comply with the court’s management order. The court held that the management hearings were as a result of the plaintiff not complying with a court order and there is no reason why the plaintiff should not be ordered to pay costs of the same on the ordinary scale. Olenga v Spranger (I 3826/2011) [2015] NAHCMD 87 (15 April 2015).
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Costs - The plaintiff issued action proceedings against the defendant claiming payment of N$ 68 000. The claim was defended and a plea was filed after which the plaintiff withdrew its action without making a tender for costs. The defendant approached the court for an order for costs in terms of rule 97 (3) pursuant to the withdrawal. Held: a plaintiff who withdraws a claim is as good as an unsuccessful litigant and should pay the costs occasioned by the withdrawal, together with the costs of the application. Windhoek Tattersall’s cc v Brian David Roos (I 1908/2011) [2015] NAHCMD 86 (15 April 2015)
Punitive Costs - Application for condonation where both parties are at fault but not prepared to indulge each other. Omission to diarise files by a legal practitioner is not excusable. In the circumstances it is only an engagement at the Supreme Court and indisposition which is excusable. Each party to pay its own costs. Martins v Medusalem (I 132-2013) [2015] NAHCNLD 19 (24 April 2015).
Costs – Offer and Acceptance – distinction between an offer of compromise and an unconditional tender, for purposes of prevention of liability for costs discussed. Costs – When granted in application for summary judgment – Defendant tendering a portion of the claim in affidavit resisting summary judgment – Plaintiff indicating in heads of argument that a triable issue made out on a portion of the plaintiff’s claim. Rall v Professional Provident Society Insurance Company (Namibia) Ltd (I 1153-2015) [2015] NAHCMD 209 (9 September 2015).
Wasted costs - A party who decides to withdraw his/her case against the defendant without good reason should pay the costs of such withdrawal - in terms of Rule 97 (1) – (3). Admissibility of hearsay evidence relaxed due to the urgency of the matter and the need to do justice between the parties, application succeeded. Korea v Angala (A 09-2015) [2015] NAHCNLD 42 (12 August 2015).
CUSTOMARY LAW
Customary law – Designation of Chief or Head of Traditional community – Traditional Community wishing to designate Head or Chief - Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the members of that community who are authorized thereto by the customary law of that community must apply on the prescribed form to the Minister for approval to make such designation, - Section 5 of the Traditional Authorities Act 25 of 2000 is mandatory – Non Compliance with s 5 (1) is fatal to any purported application.
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Hoveka v Minister of Regional and Local Housing and Rural Development (A 356/2013) [2015] NAHCMD 63 (10 February 2015).
Customary law – The removal from office of Traditional Councillors – in terms of Section 10(2) of the Traditional Authorities Act 2000 - regulated by the customary law of the traditional community in respect of which such councillor is appointed or elected - "customary law" by definition means the customary law, norms, rules of procedure, traditions and usages of a traditional community in so far as they do not conflict with the Namibian Constitution or with any other written law applicable in Namibia – Section 14 of the Act expressly limits the powers of traditional authorities, and by implication their customary law powers, in that it also provides that any custom, tradition, practice, or usage which is discriminatory or which detracts from or violates the rights of any person as guaranteed by the Namibian Constitution or any other statutory law, … , shall cease to apply - Through these provisions a traditional leader, by virtue of his or her membership of a traditional authority, becomes obliged to administer and execute the customary laws of that community in accordance with the Constitution and any other applicable written law. By that same token it appears that customary laws, which are discriminatory or which detract from or violate the rights of any person as guaranteed by the Namibian Constitution or any other statutory law, can no longer be administered or executed by a traditional authority, as they have ceased to apply.
Customary law – The removal from office of Traditional Councillors – in terms of Section 10(2) of the Traditional Authorities Act 2000 – by the head of a Traditional Authority - subject to the demands imposed by Article 18 of the Constitution - Article 18 requires administrative bodies and administrative officials to act fairly and reasonably and to comply with the requirements imposed on them by the common law and any relevant legislation - Article 18 of the Constitution of the Republic of Namibia, which requires administrative bodies and administrative officials to act fairly and reasonably, goes beyond the principles of natural justice, ie the audi alteram partem rule, and should be seen against the background of a long history of abuse of governmental power in Namibia by the apartheid South Africa. The temper of art 18 is to repudiate anything that might be unfair and unreasonable from any administrative body or official. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015)
Customary law – The removal from office of Traditional Councillors – in terms of Section 10(2) of the Traditional Authorities Act 2000 – by the head of a Traditional Authority – Court holding that the procedure followed in this instance by the first respondent did not measure up the required standards of procedural fairness and reasonableness as the rules of natural justice in regard to a fair disciplinary process were not satisfied when the applicants were not informed that they would be subjected to disciplinary proceedings and were not informed of the charges that would be
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preferred against them which could lead to their dismissal, allowing them to prepare adequately or at all for the presentation of their cases to enable them to meaningfully participate in the disciplinary proceedings. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015)
Customary law – The removal from office of Traditional Councillors – in terms of Section 10(2) of the Traditional Authorities Act 2000 – by the head of a Traditional Authority - when the applicants were then subjected to the disciplinary proceedings before an ‘interim special committee’ without warning and without any charges having been formulated against them, thereby not affording them adequate time or the opportunity for the preparation and presentation of their defences at the set hearing, such proceedings amounted to ‘disciplinary proceedings by ambush’, a situation which clearly offended not only against the principles of natural justice but also against the more stringent demands for fair administrative action imposed on the respondents by Article 18 of the Constitution.- first respondents decisions to dismiss the applicants accordingly reviewed and set aside. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015)
Customary law- Marriage conducted under the Ovaherero Customary law – Marriage annulled by the community court – Allegations of Universal partnership as a basis to equally share in the joint estate – Essentials of a partnership set out – Applicant not establishing that there is a tacit Universal Partnership – Constitutionality of customary law questioned – Applicant to be returned back to parents house after annulment of marriage – Such customary law not proven to be contrary to article 8,10 and 16 of the Namibian Constitution. Mbaisa v Mbaisa (A 22-2013) [2015] NAHCMD 181 (05 August 2015).
DEFAMATION
Defamation claim – Defences of truth and public interest, fair comment, qualified privilege and reasonable publication in public interest raised and discussed – Defences rejected – Damages of N$80 000 awarded. Nyandoro v Free Press of Namibia (Pty) Ltd (I 2572-2010) [2015] NAHCMD 116 (11 August 2015).
DEFAULT JUDGMENT
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Practice – Judgments and orders – Default judgment – Application for default judgment brought in relation to action which had long been dismissed – Court held that as a matter of law and logic where there is no action which the court may adjudicate one is not entitled to bring an application for judgment by default in relation to such non-existent action – Court held further that in the legal reality of our law and in terms of the principle of rule of law which is so enshrined in our law a decision of the court is binding and must be obeyed and implemented unless and until it has been set aside by a competent court. BV Investments 264 CC v FNB Namibia Holdings Limited (I 362/2010) [2015] NAHCMD 6 (29 January 2015); Namboer Auctioneers CC v Louw (I 1766-2014) [2015] NAHCMD 130 (26 May 2015);
Practice – Rules of Court - default judgment - circumstances under which same is granted; declarations of property executable under rule 108 –steps necessary to be taken before the sale of a ‘primary home’ of a debtor. Rectification – elements to be satisfied before the relief of rectification can be granted. Futeni collections (Pty) Ltd v De Duine (I 3044/2014) [2015] NAHCMD 119 (27 May 2015).
Practice – Service of process - Any party that has a direct and substantial interest in a matter should be served with court process. A default judgment that affects parties which were not served with court process or where there was no proper service is a nullity. As it is a nullity it follows that everything that flows from it is a nullity. The said judgement / order was set aside. Enkali v Ondangwa Town Council (A 15-2012) [2015] NAHCNLD 52 (12 November 2015).
DISCOVERY
General Discovery – The plaintiff sued the defendant and sought for him to account by producing vouchers and other documents livestock between June 1998 and debatement June 2003; of the accounts and ancillary relief. During the trial when the plaintiff’s first witness was on the witness stand, it transpired that the plaintiff had not discovered all the documents in its possession and an application was made to compel discovery of those documents. The court allowed the application and held that discovery was a serious procedure to be undertaken carefully and conscientiously. The court further held that in the circumstances, it was unnecessary to file a written application on notice as doing so might defeat the overriding objectives of the High Court Rules. The court further held parties ought to disclose documents which were but are no longer in their possession when they make discovery. The court further considered the proper procedure to be followed in the introduction of discovered documents to enable same to form part of the proceedings. The court further considered the issue of costs and held
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that although the general rule is that costs should be in cause, in the peculiar circumstances, the ought to pay the wasted costs occasioned as the plaintiff negligently failed to fully discover documents in its possession resulting in the postponement of the trial. Gamikaub (Pty) Ltd v Schweiger (I 3762/2013) [2015] NAHCMD 88 (15 April 2015).
Practice – Applications and motions – Discovery and inspection in motion proceedings – Application in terms of rule 70(3) – Rule applicable in only exceptional circumstances – Additionally applicant must establish that documents sought to be discovered and inspected are (a) relevant to the matter in question and (b) proportionate to the needs of the case – ‘Relevant to’ and ‘proportionate to’ explained – Where applicant has not established that (a) exceptional circumstances exist, (b) the documents are relevant to the matter in question and (c) the documents are proportionate to the needs of the case the application has failed to discharge onus cast on application must be refused – In the instant case applicant failed to discharge the onus cast on it – Consequently, application dismissed with costs. Telecom Namibia Ltd v Communications Regulatory Authority of Namibia (A 448/2013) [2015] NAHCMD 66 (19 March 2015).
Applications and motions – Discovery in motion proceedings – Discovery in terms of rule 28(1), read with rule 70(3), of the rules of court – Court held that in application proceedings rule 28(1), read with rule 70(3), of the rules are enabling provisions and not entitlements; and a fortiori, they are subject to the peremptory provisions of rule 66(1)(b) of the rules – Additionally, in motion proceedings discovery is very, very rare and only permitted in exceptional circumstances – Court found in instant proceeding that respondents have not complied with rule 66(1)(b) and they have not established any exceptional circumstances for the court to permit discovery of a multitude of documents – Consequently, court declined to direct that the respondents discover further documents. Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (A 273-2014) [2015] NAHCMD 240 (8 October 2015).
Applications and motions - Discovery and inspection in motion proceedings - Application in terms of High Court Rule 70 (1) & (3) read with Rule 28(1) - Rule only applicable in exceptional circumstances - Applications and motions - Discovery and inspection in motion proceedings - High Court Rule 28(1) - Rule only requires discovery, of documents, that are relevant to the matter in question and that are proportionate to the needs of the case - Meaning of relevant and proportionate. South African Poultry Associations v The Ministry of Trade and Industry (A 94-2014) [2015] NAHCMD 256 (28 October 2015)
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FAMILY LAW
Minor - Custody - Legal proceedings - Best interests of child - Court to consider all relevant facts - Not bound by procedural strictures or limitations of evidence presented - Nor should court be hampered by jurisdictional formalism - Court thus taking cognisance of report of educational psychologist concerning children possibly obtained in contravention of Section 17 of the Social Work and Psychology Act, No 6 of 2004 at the instance of applicant in spite of the respondent not wishing court to do so. McDonald v Moor (A 244-2015) [2015] NAHCMD 235 (21 September 2015).
Inheritance - The issue of land in Namibia is largely governed by the customs, norms and cultural practices. These should be acknowledged and respected in compliance with the constitution. Children whose fathers die intestate are entitled to inherit from their estate in equal shares. Application is dismissed with costs. Applicant is one of the surviving children of the late Henock Haufiku who died intestate. Applicant sought an order depriving other children from inheriting the estate. At the time of his death he was the owner of a certain piece of land under second respondent. Second respondent has now repossessed the said land against compensation to the applicant as heir to the estate. First respondent opposed such a decision and argued that all the children should receive compensation in equal shares as they are heirs of the late Henock Haufiku. At the hearing, applicant made a concession to the effect that all the surviving children should benefit. Application is dismissed with costs. Heita v Nuuyoma (A 07-2014) [2015] NAHCNLD 35 (28 July 2015).
EXCEPTION
Practice – Pleadings – Exception – On ground that pleading vague and embarrassing – Court held that ultimate test is whether pleading complies with the general rule laid down in rule 18(4) of the repealed rules (rule 45(5) of the current rules of court) – Court held further that exception involves two-fold consideration – First, whether pleading complained of lacks particularity to the extent that it is vague, and second whether the vagueness causes embarrassment of such nature that excipient is prejudiced – Where vagueness is not established the second consideration does not arise. Jacobs v The Minister of Safety and Security (I 3772/2013) [2015] NAHCMD 27 (19 February 2015).
Practice – Exception – On ground that pleading is vague and embarrassing – basic requirements restated - pleading is vague and embarrassing if either meaningless or capable of more than one meaning - It is embarrassing if it cannot be gathered therefrom what grounds are relied upon which results in an insufficiency in law to support the whole or part of the action or defence – Court held as far as the cheques
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are concerned they are part of the pleadings in support of the allegation that the commission agreed upon was 10 percent. I fail to understand on what basis the defendant is unable to plead to that allegation - Exception dismissed with costs. Namboer Group of Auctioneers CC v Kazondunge (I 2194-2013) [2015] NAHCMD 169 (22 July 2015); Zianga v Furtano and Others (I 1077/2014) NAHCMD 190 (14 August 2015).
Practice – Exceptions – Court held that exception cannot be taken where defendant’s interpretation of a provision of a legal instrument differs from that of the plaintiff – Exception may be taken where defect in a pleading appears ex facie the pleading – Pleading is vague if it is either meaningless or capable of more than one meaning – And pleading is embarrassing where it cannot be gathered from it what ground is relied on in the claim or defence – Court held further that exception that pleading is vague and embarrassing strikes at the formulation of the cause of action or defence and not its legal validity – Principles in July v Motor Vehicle Accident Fund 2010 (1) NR 368 also applied. Scania Finance Southern Africa (Pty) Ltd v XXX Trucking CC (I 2166-2014) [2015] NAHCMD 173 (30 July 2015).
Practice – Exceptions – Requirement of making proper averrals on which prayers sought in the body of the pleadings is predicated restated. REMEDIES – Interdict, apology and retraction in defamation suits. Purity Manganese (Pty) Ltd v Mineworkers Union of Namibia (I 4026-2014) [2015] NAHCMD 204 (3 September 2015).
Practice – Exception - Allegation that exception bad in law and does not disclose a cause of action - Implications of the provisions of rule 32 (9) and (10) on applications for exception. Veritas Kapital (Pty) Limited v Davids (I 44-2013) NAHCMD 203 (2 September 2015).
Practice – Exceptions – Exception cannot be taken against the relief a party prays the court to grant at the conclusion of a trial – The defendants are not called upon to plead to the relief – Whether or not on the evidence the plaintiff would succeed in due course in the relief he or she seeks under a claim cannot found an exception. Naanda v Edward (I 2097-2014) [2015] NAHCMD 239 (8 October 2015).
IRREGULAR PROCEEDINGS
Practice – Irregular Proceedings – Setting aside in terms of rule 61 – Taking a further step –Rule 61(1) providing that application for setting aside may be made only if the applicant applies to the managing judge to set it aside within 10 days after becoming
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aware of the irregularity, provided that if that party has taken any further step in the cause of the matter with knowledge of the irregularity, he or she is not entitled to make such an application. Irregular proceedings – Object – Procedure catered for by rule 61 is appropriate for irregularities of form rather than substance. A plea of lack of jurisdiction, locus standi or prescription should be dealt with via delivery of special plea and not in terms of rule 61. Louw v Khomas Regional Council (A 164-2015) [2015] NACHMD 187 (10 August 2015).
INTERPRETATION OF STATUTES
Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995) – Land – Sale – Agricultural land – Agricultural (Commercial) Land Reform Act, 1195 (Act 6 of 1995) providing that agreement of alienation of agricultural land of no force and effect until land first offered to State and certificate of waiver furnished – In terms of section 17(3) this provision does not apply where land alienated in administration of deceased estate – In casu option granted in respect of farm – Option exercised after death of grantor but before appointment of executor – Farm not offered to State and no certificate of waiver furnished – Held that granting of option not an alienation under Act – Upon exercise of option agreement of alienation comes into being – When option exercised no executor appointed and no deceased estate being administered – In casu alienation not in administration of deceased estate - Farm also not alienated by duly appointed executor in order to cover debts of estate or to give effect to wishes of testator as expressed in will - Had option grantor not died, agreement of alienation would have been of no force and effect - Mere fact of his death and timing of acceptance of option do not change position - Mere coincidence with no legal significance as far as the provisions of section 17 are concerned. Jordaan NO v Snyman (I 1624-2005) [2015] NAHCMD 17 (6 February 2015).
Communal Land Reform Act 5 of 2000 – first applicant removed by first respondent, the head of the Oukwanyama Traditional Authority, from his position as a member of the Ohangwena Communal Land Board - removal from office of member of Communal Land Board however regulated by Section 6(3) of the Communal Land Reform Act and can only be effected by the Minister, on specified grounds, and after giving the affected board member a reasonable opportunity to be heard - chiefs or heads of traditional authorities are not assigned any powers in this regard by the Act. First respondent’s dismissal of first applicant from the board ultra vires and accordingly unlawful. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015).
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Immigration Control Act 7 of 1993 - Immigration - Aliens – Employment permit in terms of section 27 of Immigration Control Act 7 of 1993 – Application for – Refusal of – Review of – Immigration Selection Board bound to reasons originally provided for decision – Reasons provided not indicating misapplication of section 27(2)(b) – Factual basis for decision – Board may by nature of duties and responsibilities and its varied composition acquire relevant knowledge used to make decision – Where such knowledge could not reasonably be expected to be known to applicant the dictates of administrative justice require applicant to be informed of such before decision taken to afford opportunity to controvert – Concept of legitimate expectation discussed – Need not use such in this case to decide basis on which applicant should have been heard. Fernandes v Minister of Home Affairs (A117-2009) [2015] NAHCMD 59 (16 March 2015).
Statute - Sale of the Agricultural (Commercial Land) – requirements of s 7 of the Married Persons Equality Act, 1996 (Act No.1 of 1996). Intamba v Tjapaka (A57-2015) [2015] NAHCMD 218 (16 September 2015)
Statutes – Interpretation - National Transport Service Holding Company Act, 1998 – Interpretation of ‘transport services’ in the context of transportation of goods – Courts to depart from the literal meaning if such would not reveal the true intention of the legislature – Exception to the rule of interpretation of Statutes – words interpreted in the context within which they are used – ‘transport services to mean any other type of services offered by the first respondent in relation to the transportation of goods – Application dismissed. Coetzee v TransNamib Holdings Ltd (I 3841-2012) [2015] NAHCMD 231 (01 October 2015).
INQUEST
INTERDICT
Interdict — Interim interdict pending review — Prerequisites well established: prima facie right; apprehension of harm; balance of convenience favouring applicant; no other remedy —Applicant not given any opportunity to make representations — First respondent not complying with audi rule — Applicant establishing prima facie right to be heard Applicant having no other remedy — Court satisfied that applicant establishing prerequisites for interim interdict. Namibia National Students Organization v National Youth Council of Namibia (A 169-2015) [2015] NAHCMD 201 (7 August 2015).
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Practice – interim interdict pendent lite – requirements thereof; effect of failure to reply to critical depositions in answering affidavits; the need to accurately establish facts before launching an urgent application for interim interdict; STATUTES – provisions of the Communal Land Reform Act, 1992. Maswahu v Katima Mulilo Town Council (I1575-2015)[2015] NAHCMD 284 (18 November 2015).
INTERLOCUTORIES
Rule 32(9) (10) – Practice – Applications and motions – Interlocutory application – Court held that rule 32(9) and (10) of the rules are peremptory – Consequently failure to comply with rule 32(9) and (10) is fatal and interlocutory application falls to be struck from the roll. Practice – Applications and motions – Interlocutory application – Applicant (defendant) launched application in terms of rule 61(1) of the rules of court – Applicant failed to comply with rule 32(9) and (10) which is peremptory – Such failure is fatal – Consequently, application is struck from the roll. Standard Bank Namibia Limited v Gertze (I 3614/2013) [2015] NAHCMD 77 (31 March 2015).
Rule 32(9) (10) – Practice – Application of the provisions of rule 32 (9) and (10) and consequences of failure to comply therewith. Rule 61 its, contents and implications revisited in application to matrimonial proceedings. Chantal Visagie v Josias Alexander Visagie (I 1956/2014) [2015] NAHCMD 117 (26 May 2015).
Civil Procedure – application for the rescission of an interlocutory order – such application interlocutory in nature – and thus subject to the requirements set by Rules 32 (9) and (10) of the rules of court – applicant had failed to comply with the said rules – court refusing to condone such non-compliance – interlocutory application thus struck from the roll with costs. Christian v Namibia Financial Institutions Supervisory Authority (A 35-2013) [2015] NAHCMD 146 (11 February 2015).
Interlocutory - An application for amendment of the replication was moved by the plaintiff just before commencement trial. The application was not opposed. The court revisited the main rules applicable to amendments and held that even if an application for amendment is not opposed the court should still exercise judicial oversight. The court found that the application for amendment redounded to clarity and further aligned the pleadings (replication) to the evidence proposed to be led. The application was granted and the plaintiff was ordered to pay the wasted costs which it had tendered. KL Construction (Pty) Ltd v The Minister of Works and Transport (I 246/2013) [2015] NAHCMD 71 (25 March 2015).
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Practice – Applications and motions – Interlocutory application – Applicant contending that application is sui generis therefore, rule 32 of the High Court Rules not applicable – Court held that not persuaded that rule 32(9) and (10) not applicable – Further, Court held that application is of interlocutory nature, therefore, must comply with the peremptory provisions of rule 32(9) and (10) of the Rules of Court – In the result, the point in limine upheld due to non-compliance with rule 32(9) and (10) – and application struck from the roll with costs. Kambazembi Guest Farm CC v The Minister of Lands and Resettlement (A 295/2013) [2015] NAHCMD 128 (05 June 2015).
Practice – Rules of the High Court – application of rule 32 (9) and (10) to interlocutory applications. Considerations of the applicability of the doctrine of substantial compliance with the provisions of rule 32 (9) and (10). Amendment of pleadings and propriety of objecting to a proposed pleading on the basis that is excipiable. – Requirement for pleadings to contain a clear and concise statement of material facts on which claim is based. Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I 2359-2014) [2015] NAHCMD 152 (26 June 2015).
Rules of Court – Compliance with Rule 32 (9) and (10); Amendment of pleadings; offer to settle and costs order in relation applications for amendment. The plaintiff sued the defendant for a sum arising out of a contract for performance of certain works. Defendant claimed that the work had not been carried out in a workmanlike manner but tendered the amount claimed upon performance. The defendant applied for an amendment of its plea which was objected to by the plaintiff on a number of grounds. Held Parties should comply with the provisions of rule 32 (9) and (10) or they run the risk of their cases being struck from the roll for non-compliance. Court nevertheless condoned the non-compliance. Held that a party must be confined to the grounds of objection to amendments raised in the notice of opposition and may not be allowed to augment or supplement or add thereto in the heads of argument. Held further that a party may make a conditional ‘tender’ to settle the amount claimed against performance of certain conditions but this is not governed by the provisions of Rule 64. Policy of the courts regarding amendment of pleadings revisited. Held further that a party seeking an amendment craves an indulgence and must ordinarily pay the costs occasioned by the amendment. Amendment allowed and the party seeking amendment ordered to pay the costs. Zamnam Exclusive Furniture CC v Lewis (I 268-2014) [2015] NAHCMD 274 (13 November 2015).
INTERPLEADER
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Onus on the claimant. See The Deputy Sheriff of Oshakati v The Government of the Republic of Namibia (I 4038-2011) [2015] NAHCMD 138 (2 June 2015).
JOINDER
Peregrini - Application to join two third parties to an action. Both parties are peregrini. No attachment made to confirm or found jurisdiction. Held that an attachment to confirm or found jurisdiction necessary before a peregrinus can be joined as a third party. Joseph and Snyman v Freedom Square (I 1192-2014) [2015] NAHCMD 161 (9 July 2015).
Practice – Parties – Joinder – Necessary parties – Application by a Traditional Authority established by the Traditional Authorities Act 25 of 2000 – Applicant not citing all parties who are necessary parties to the proceeding – Court held that the non-joinder of those statutory bodies is fatal – Court struck the application with costs. Ondonga Traditional Authority v Oukwanyama Traditional Authority (A 44-2013) [2015] NAHCMD 170 (27 July 2015).
Practice – Parties – Joinder – A party may be joined in a proceeding where the dispute between the parties raises questions of law or fact that would arise in a dispute between the party making the joinder application and another party as contemplated in rule 40 of the rules of court – Besides, the court may evoke its inherent power under the common law to order joinder of a party in order to ensure that the party to be joined is before the court in the proceeding on the basis that the party to be joined has direct and substantial interest in the outcome of the proceeding. Auto Tech Truck and Coach CC v Fannys Motor Repairs and Investment CC (I 2483-2013) [2015] NAHCMD 236 (6 October 2015).
Practice — Parties — Joinder —Applicants seeking interdict to stay execution of an order refusing to issue the applicants employment permits pending a review application. The relevant Immigration Tribunal, Namibian Police and Prosecutor General are all interested parties in such proceedings and should be joined. Demenkov and Another // Minister of Home Affairs and Immigration and Another (A 263/2015) [2015] NAHCMD 267 (09 November 2015).
Practice – Parties – Joinder – Application to restore peaceful and undisturbed possession of property – Court set out considerations that may give rise to the necessity of joining a person as a party in a suit – First respondent objected to non-joinder of the husband of the applicant who was in peaceful and undisturbed possession of property
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based on applicant’s lease agreement with second respondent – Court found that none of considerations exist in the instant case to necessitate the joining of the husband as a party in the suit. Manetti v Feris (A 277/2015) [2015] NAHCMD 255 (29 October 2015).
JURISDICTION OF THE HIGH COURT
Applications and Motions – Jurisdiction of High Court (sitting a High Court) raised in limine – Consequently, Court not competent to deal with issue of urgency and merits of application unless jurisdiction challenge has first been determined. Usakos Town Council // Joseph Esau Jantze and Others (A 222/2015) [2015] NAHCMD 217 (16 September 2015).
LAW ON AGENCY
Agency – Two cases heard together – First case is action for payment of balance of purchase price for vehicle sold – Plaintiff alleging that buyer contracted with him duly represented by plaintiff’s agent – Common cause that sale agreement was in name of alleged agent as seller – Plaintiff’s case based thereon that his identity as principal had been disclosed to buyer – Court holding that, on assumption that there was indeed mandate of agency, the agent acted on behalf of undisclosed principal – Plaintiff’s claim dismissed – Second case is action for restitution of part purchase price paid on contract induced by misrepresentation – Held that misrepresentation not proved on facts – Claim dismissed. Kaukuetu v Muhenje; Muhenje v Kaukuetu (I 497-2011; I 592-2011) [2015] NAHCMD 5 (26 January 2015).
Principal and agent – plaintiff relying on ostensible authority of former employee of first defendant to prove claim – first defendant not creating the impression to plaintiff that employee was authorised to enter into an agreement with plaintiff on behalf of it – plaintiff failed to prove ostensible authority – Practice – Costs – Application for absolution from the instance made prematurely – plaintiff entitled to wasted costs occasioned as a result of such pre-mature application. O Behrens and Co (Pty) Ltd v Hora Property Investment One CC (I 545-2014) [2015) NAHCMD 174 (30 July 2015).
LAW OF DELICT
Negligence - The plaintiff sued the defendant for damages allegedly resulting from injuries suffered as a result of an electric wire or cable installed by the defendant. The plaintiff applied for the action to be transferred in terms of the Rules of Court from the main division Windhoek to Oshakati in the northern division. The defendant opposed
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this application. The court reviewed the basis for transfer in terms of the Rules and defined the operative words ‘reasonableness’ and ‘convenience’ and postulated some of the factors that night influence the decision to transfer a case. The court held that the wishes of a party and the convenience of counsel do not play a meaningful part in a decision to transfer a case. The application was transferred to the northern division. Mingeli v Oshakati Premier Electric (Pty) Ltd (I 3683/2014) [2015] NAHCMD 45 (6 March 2015.
Delict - Practice – Action against the Minister of Safety and Security – Unlawful arrest and detention – Torture by members of the Police Force as cause of action – Plaintiff untrustworthy and unreliable – Claim dismissed – The plaintiff in the matter is claiming N$100 000 from the Minister of Safety and Security as compensation for damage suffered as a result of alleged unlawful arrest and detention, assault and torture – Court found the plaintiff untruthful, untrustworthy and unreliable witness, held that the plaintiff failed to prove his claim on the balance of probabilities and dismissed the claim. Tjijeura v Minister of Safety and Security (I 336/2013) [2015) NAHCMD 75 (30 March 2015).
Damages – Delict - General damages- assessment of. Milunga v Tania (I 3533/2009) [2015) NAHCMD 112 (15 May 2015).
Negligence - Liability for - Wrongfulness - Omission - Whether negligent omission to be regarded as unlawful - Issue is one of legal policy, to be answered against background of norms and values of particular society in which principle sought to be applied - Legal convictions of Namibia community necessarily informed by norms and values embodied in Namibian Constitution - Norms and values inconsistent with Constitution having no legal validity - Constitution thus a system of objective, normative values for legal purposes. Negligence - Proof of - Necessity for plaintiff to prove not only that the possibility should have been foreseen but also that there were reasonable steps which should have been taken - Onus on plaintiff to establish the steps defendant could and should have taken to protect plaintiff’s property. Four Winds Logistics CC v The Government of the Republic of Namibia [2015] NAHCMD 115 (27 May 2015).
Negligence – Of Motorists – Duty of drivers – One driver travelling on main road across intersection – Other driver travelling on minor road across intersection – Generally, a driver travelling on main road entitled to assume that the driver travelling on the main road will not enter intersection unless it is safe for him or her to do so – Nevertheless the driver travelling on the main road must travel at such speed that he or she is able to apply his or her brakes or reduce speed in good time or swerve his or her vehicle in good time in order to avoid a collision – Court held that failure of either driver to keep proper lookout and travel at such a speed into the intersection as to enable him or her to carry out appropriate manoeuvres in order to avoid a collision constitutes negligence in
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violation of s 81 of the Road Traffic and Transport Act 22 of 1999 – In such event, court held, both drivers are negligent and apportionment of contributory negligence depends upon which of the two drivers made an attempt and took appropriate action in order to avoid the collision. Mungunda v Wilhelmus (I 2354-2014) [2015] NAHCMD 149 (25 June 2015).
Negligence – What constitutes – Motorists – Duty of driver wishing to turn right at a robot controlled intersection – should not execute turn unless satisfied that safe to do so. Failure constitutes prima facie negligence in the absence of a reasonable and satisfactory explanation for such conduct. Duty of driver when lights turn yellow – A driver who faces a green signal which turns yellow should not enter the intersection unless he is so close to the intersection that he cannot safely stop behind the stop line, in which case he must proceed cautiously through the intersection. Josea v Ahrens (I 3821-2013) [2015] NAHCMD 157 (2 July 2015)
Negligence - Motorist executing a left-hand turn - Duties of in relation to following traffic -Duty to ensure neither oncoming nor following traffic will be endangered - Use of rear-view mirror required. Von Wielligh v Shaumbwako (I 2499/2014) [2015] NAHCMD 168 (22 July 2015).
Delict – Specific forms – Wrongful arrest and detention and assault – Court held that arrest not cognitive but process of action – Arrest and detention governed by s 39 of the Criminal Procedure Act 51 of 1977 in order to make arrest lawful – Court held that the requirements in ss (1), (2) and (3) of s 39 must all be satisfied in order to make arrest lawful – Arrest and detention that are not in conformity with s 39(1), (2) and (3) of Act 51 of 1977 constitute wrongful arrest and detention and therefore unlawful – Assault that is not reasonably necessary to effect an arrest goes beyond the pale allowable by s 49(1) of Act 51 of 1977 and is accordingly unlawful – In instant case court found that as the arrest was unlawful because plaintiff was not informed of ‘cause’ or grounds of the arrest in violation of s 39(2) of Act 51 of 1977, thus, making subsequent detention also unlawful – Court found assault unlawful because force used was absolutely unnecessary at all. Sheefeni v The Council of the Municipality of Windhoek (I 2473-2013) [2015] NAHCMD 172 (30 July 2015)
Delict - Unlawful arrest - Plaintiff arrested without warrant in terms of s 40(1)(b) of Criminal Procedure Act 51 of 1977 - Police can arrest someone without warrant on reasonable suspicion that Schedule 1 offence has been committed - Such suspicion should be based on facts and not wild hunch or suspicion. Delict - Malicious arrest - What plaintiff must prove to succeed on merits - plaintiff must allege and prove that the defendants (acting in person or through their agents or servants) instigated the deprivation of liberty, that the instigation was without a reasonable and probable cause;
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and that the defendants acted with ‘malice’ (or animo injuriandi). Tjipepa v Minister of Safety and Security (I271-2013) [2014] NAHCMD 193 (7 August 2015).
Damages – The need to set out claims for damages in pleadings in a manner that enables the defendant to reasonably assess the quantum thereof. Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I 2359-2014) [2015] NAHCMD 152 (26 June 2015).
Damages - Civil Practice – Trial – plaintiff sued defendant for damages on his motor vehicle resulting from a collision with defendant’s motor vehicle – The court rejecting the evidence of the defendant – found in favour of the plaintiff and granted the relief sought in the particulars of claim with costs. Josef v Haindobo (I 1851-2014) [2015) NAHCMD 263 (05 November 2015).
Damages – Claim for damages of goods stolen by employee – Overwhelming evidence in favour of the plaintiff – No contradictory evidence offered by the defendant – Test in solving factual disputes - Being on a balance of probabilities which necessitates an analysis and evaluation of the probability or improbability of each party's version on each of the disputed issues - Damages proved on all probabilities. Hangana Sea Food (Pty) Ltd v Aloisius (I 1675/2014][2015] NAHCMD 280 (19 November 2015)
LAW ON DURESS
LAW OF EVIDENCE
Law of Evidence – failure to put the case to the opposing party in cross examination and the consequences thereof. A lay litigant is not exempted from putting his case to the opposite party. How the court should resolve factual disputes in trials. Ndabeni v Nandu (I 343/2013) [2015] NAHCMD 110 (11 May 2015).
Attendance of witnesses – Practice and Procedure - Suboena duces tecum - Application to set aside subpoena duces tecum as abuse of process of Court - Should the court be satisfied in any particular case that the issue of subpoena constitutes abuse, entitled to set it aside - What constitutes abuse of process of Court is to be determined by circumstances of each case. Mukendwa v Minister of Safety and Security (I 490/2013) [2015] NAHCMD 109 (29 April 2015).
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Evidence - Onus of proof - When discharged - Estimate of credibility of witness inextricably bound up with consideration of probabilities of case. Natural Namibia Meat Producers (Pty) Ltd v Prenn (I 304-2012) [2015] NAHCMD 96 (17 April 2015).
Evidence – Finding facts or making inferences in civil case – Probabilities – Court may go upon a mere preponderance of probability although its doing so does not exclude every reasonable doubt – In finding fact or making an inference in civil case court may balance the probabilities and select a conclusion which seems to be more natural or plausible. Mungunda v Wilhelmus (I 2354-2014) [2015] NAHCMD 149 (25 June 2015).
Evidence – Witnesses – calling, examination and refutation of – witness not cross-examined because he collapsed at the beginning of his cross-examination – probative value of such evidence – Court has discretion to accept or reject evidence not tested by cross-examination. Generally, the less the evidence is tested the more the court should lean towards ignoring such evidence for purposes of the determination of the matter. Josea v Ahrens (I 3821-2013) [2015] NAHCMD 157 (2 July 2015). Evidence – A Judicial Officer must show the ability to listen to facts and/or issues presented to him by litigants and make an order which can be reasonably viewed as being without bias. A mixture of complaint of assault cannot be dumped together with a claim for maintenance. Each matter should be dealt with separately as it is governed by different rules. Appellant filed a complaint of assault by his wife under the Combating of Domestic Violence Act 04/2003. During the proceedings the respondent (wife) brought up the issue of maintenance which the court granted her without proper investigations being carried out. This was improper. The proceedings is set aside. The matter is referred back for a trial de novo before a different magistrate. Livingstone v Asiimwe (CA 02-2014) [2015] NAHCNLD 20 (05 May 2015).
Evidence - Onus of proof - When discharged - Versions of plaintiff and defendant mutually destructive - Must be proved that version of party burdened with the onus is true and that of the other party false - Estimate of credibility of witness inextricably bound up with consideration of probabilities of case. Von Wielligh v Shaumbwako (I 2499/2014) [2015] NAHCMD 168 (22 July 2015).
LAW OF INSOLVENCY
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LAW OF PROPERTY
Practice - Stated case – Law of Property - Claim for unjustified enrichment – Payments made in terms of the conditions of resale of immovable property – Contract – Plaintiff not to resell without the consent of the Municipality –In terms of the agreement, such consent can only be granted if the property has been improved up to the minimum required standard in terms of the Town Planning Scheme, or alternatively a penalty of 20 % for breach of contract and 10% per annum as occupational rent – Property sold in execution – Such condition also applies to sales in execution and that payment made from the proceeds of the sale in execution justified. Pienaar v The Council of the Municipality of Windhoek (I 2535/2013) NAHCMD 191 (18 August 2015).
Trustee – removal of – appointment of new trustee. Fideicommissum – meaning of – requirements –restraint against alienation. Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015)
Estoppel – By conduct – Operation of estoppel – Court held that estoppel cannot be used to make legal what otherwise would be illegal. Town Council of Rundu v Dinyando (A 417-2013) [2015] NAHCMD 237 (8 October 2015).
Law of property – Ownership of a motor vehicle in terms of the common law and legislation; PRACTICE – special plea of locus standi in judicio. The plaintiff sued the defendant and the third party for damages allegedly sustained by a motor vehicle he claimed as his. The defendant raised a special plea of locus standi in judicio seeking to non-suit the plaintiff on the grounds that the vehicle was not registered in his name but in the name of his brother and adoptandus. Held that registration of a vehicle in terms of the Road Traffic and Transport Act No. 22 of 1999 and the relevant Regulations and Government Gazettes does not detract from ownership at common law; Held further that on the facts, notwithstanding that the plaintiff was not the registered owner of the vehicle, on the evidence he had shown on a balance of probabilities that he was the owner at common law. Special plea dismissed with costs. Uvanga v Steenkamp (I 1968-2014) [2015] NAHCMD 273 (13 November 2015).
LEGAL ETHICS
Ethics - A legal practitioner’s first duty is towards the court and public and not his/her client. The dignity of the court should be protected from errant and disobedient legal practitioners. A legal practitioner who fails to attend court for no reason impairs the dignity of the court and should be censured by paying costs de bonis propriis. A legal practitioner who was aware of the sitting of the court where he was representing the other party failed to attend court and no reason was given. A legal practitioner who acts
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in this manner deserves censure in the form of punitive costs, de bonis propriis. Marwa and Associates Land Surveyors v Helao Nafidi Town Council (I 181-2014) [2015] NAHCNLD 50 (2 November 2015).
LOCUS STANDI
MATRIMONIAL
Husband and wife- Divorce- Claims by plaintiff - counterclaim by defendant - Malicious desertion- Married in community of property. - Husband and wife - Divorce - Proprietary rights. Schiffer v Schiffer (I 2985/2013) [2015] NAHCMD 93 ( 22 April 2015).
Family law – The matters that may be raised in an affidavit of non-return and implications of Rule 89 (4) and alleged failure to comply therewith. Chantal Visagie v Josias Alexander Visagie (I 1956/2014) [2015] NAHCMD 117 (26 May 2015).
Restitution of Conjungal rights - Court may use its judicial discretion to grant a Restitution of Conjugal Rights. If such grant will result in plaintiff being threatened or assaulted by defendant the court may refuse it. Plaintiff issued summons against defendant for divorce. One of the grounds was that of violence by defendant which resulted in him being incarcerated and was still in prison at the day of hearing. When an order of Restitution of Conjugal Rights was applied for, plaintiff expressed fear of being assaulted by defendant. Court used its judicial discretion and granted a final order in order to deprive defendant authority to return to plaintiff which could have resulted in him further assaulting and /or killing her. Shitaleni v Shitaleni (I 61-2015) [2015] NAHCNLD 30 (08 July 2015).
Divorce Law - A party who opposes a divorce claim on religious grounds cannot succeed under Namibia law. Namibian marriages are not bound by Heavenly covenants and/or laws which cannot be verified by human beings. The court will deal with earthly matters which are governed by earthily laws. Plaintiff issued out divorce summons which was opposed by defendant on the basis that God had joined their marriage in Heaven, therefore, no man should separate them. God deals with Heavenly matters while these courts deal with earthily matters. Divorce was granted by the court being an earthily court and therefore a court of human beings thereby leaving Heavenly matters to the Almighty. Palastus v Palastus (I 194-2014) [2015] NAHCNLD 29 (08 July 2015).
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Marriage – Custody of minor children – Application to grant custody of minor child to applicant pending finalization of application in terms of Children’s Status Act 6 of 2006 – Application for custody already launched in Children’s Court (Lower Court) and pending – Court held that the High Court is not entitled to usurp the statutory powers and functions of the Lower Court or a tribunal when that court or tribunal has not determined the dispute or matter before it – In the instant case, the fact that the High Court is the upper guardian of minor children does not entitle the court to usurp the statutory powers and functions of the Children’s Act – Consequently, court refused to grant the relief sought and dismissed the application. Kriel v Kantak (A 268-2015) [2015] NAHCMD 242 (7 October 2015).Husband and wife – Divorce – Proprietary rights – Parties married in community of property – Divorce order failing to make a specific order for division of estate or general forfeiture order – Registrar of Deeds transferring the immovable property of the joint estate to the respondent – Registrar of Deeds erring because Registrar acted ultra vires s 6 of the Deeds Registries Amendment Act 2 of 1996 since there is no basis for the Registrar’s act in terms of the court order – Court accordingly found the endorsement made by the Registrar to be null and void and of no force – Court applied the common law principle that in a marriage in community of property generally each party entitled to half of the estate – On the facts and in the circumstances of the case court applied the common law principle and declared that in the absence of a general forfeiture order or a specific order for division of the estate the law itself divides the parties’ joint estate – Court held further that it is not a requirement that an applicant for a declaratory order should have an opponent – Consequently, the non-joinder of the Registrar of Deeds is not fatal – Court granted a declaratory order that each party is entitled to half of the joint estate, including the immovable property of the estate. Mbahuurua v Mbahuurua (A 31/2015) [2015] NAHCMD 230 (1 October 2015).
POSTPONEMENT
PLEADINGS
Upliftment of bar - In order to succeed, it is necessary for the applicant to establish two essentials. First there must be reasonable explanation for the delay and secondly, the plea must raise a triable issue. Futeni Collections Limited v OB Davids Properties [I 709/2013] [2015) NAHCMD 104 (30 March 2015).
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Practice – Pleadings - witness statements - should contain a chronological sequence of all facts to which the witness will testify as if he is giving evidence in chief. In as far as possible, the witness statement must be in the witness’ own words and not that of the drafter of the witness statement. Josea v Ahrens (I 3821-2013) [2015] NAHCMD 157 (2 July 2015).
PRESCRIPTION
Prescription – Extinctive prescription – debt what constitutes. Claim for rei vindicatio not constituting debt - Accordingly not prescribing after 3 years – Prescription Act 68 of 1969 s 10. Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015).
Prescription – Provisions of the Prescription Act 1969 i.e. ss 14 and 15 – interruption of prescription by acknowledgment of liability; judicial interruption of period of prescription and the application of the continuous wrong argument in relation to an alleged fraud and its effect on the running of prescription considered. Shambo v Amukugo (I 3744-2014) [2015] NAHCMD 244 (9 October 2015).
REQUEST FOR FURTHER PARTICULARS
RESCISSION
Civil Procedure – application for the rescission of an interlocutory order – such application interlocutory in nature – and thus subject to the requirements set by Rules 32 (9) and (10) of the rules of court – applicant had failed to comply with the said rules – court refusing to condone such non-compliance – interlocutory application thus struck from the roll with costs. Christian v Namibia Financial Institutions Supervisory Authority (A 35-2013) [2015] NAHCMD 146 (11 February 2015).
Practice - Judgments and orders - Rescission of judgment - Application in terms of Rules 44, 31(2)(b) and common law - Requirements - 'Good cause shown' in Rule 16 - Reasonable explanation for delay; bona fide defence - Defence must be clear on the papers. Ita v Angula NO (A 245-2014) [2015] NAHCMD 215 (4 September 2015).
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Rescission - Applicant delayed in filing an appearance to defend by 20 days due to miscommunication and other administrative issues at the Registrar’s office. Explanation for the delay was reasonable. Respondents were aware that applicant was denying their claim. Application succeeds and applicant to pay costs for this application. Tona Trade Holdings CC v Mvula Properties CC (I 164-2014) [2015] NAHCNLD 41(12 August 2015).
RES JUDICATA
See BV Investments 264 CC v First Namibia Holdings Ltd (I 471-2010) [2015) NAHCMD 129 (3 June 2015).
REVIEWS
Review - of proceedings before the Inspector General of the Namibian Police - Application for review brought under Rule 65 and not Rule 76 of Rules of Court - Purpose of Rules of Court – rules are not enacted to protect a litigant or for the benefit of a particular litigant but to place parties on an equal footing; and to facilitate the inexpensive, just, fair and speedy resolution of disputes between parties as mandated by Article 12 of the Namibian Constitution. Review - Applicant who seeks to bring under review the decision or proceedings of an inferior court, a tribunal, an administrative body or an administrative official must, depending on the circumstances of the case, bring the application for the review of the decision or proceedings under Rule 76, because Rule 76 is the rule which is designed to regulate proceedings where a decision of an inferior court, a tribunal, an administrative body or administrative official is challenged. Practice - Judgments and orders - Rescission - Application in terms of Rule 103 (1) (a) Rules of Court - Judgment is 'erroneously granted' as intended in Rule 103 (1) (a) when a wrong procedure is followed - Court, in deciding such issue, confined to the record of proceedings - Once such error established, applicant entitled to rescission - Applicant need not show 'good cause' in the sense of an explanation for his or her default and a bona fide defence. The Inspector General of the Namibian Police v Dausab-Tjiueza (A 191/2014 [2015] NAHCMD 25 (29 January 2015)
Review — Delay in instituting review proceedings — Whether delay was unreasonable — Applicants launching review proceedings five months and 25 days after their dismissal from their positions as traditional councilor and senior traditional councilors of the Oukwanyama Traditional Authority — The respondents raising the defence of
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unreasonable delay in their answering papers - applicants explaining delay in reply — After having regard to the overall facts and circumstances of the case - court coming to the conclusion that the applicants delay, in this instance, was not unreasonable and that the question of condonation did thus not arise. Practice - Application and motions – Application for review – respondents contending that applicants should substantively have applied for condonation for the delay in instituting the review proceedings – court considering point to be without merit for the reasons set out in the judgment – as the question of condonation did not arise objection not finally decided. Hikumwah v Nelumbu (A 15/2012) [2015] NAHCMD 111 (13 May 2015).
Record – Rule 76 affords the Applicant the right to have access to the record of the proceedings under review and to amplify or vary or amend the notice of motion and the founding affidavit. Tulipamwe Consulting Engineers v Roads Authority (A 320/2014) [2015] NAHCMD 103 (9 April 2015).
Review - Review in terms of Rule 76 and record of proceedings – Only documents relevant to the impugned decision to be made available. Tulipamwe Consulting Engineers v Road Authority of Namibia (A 339-2014) [2015] NAHCMD 145 (17 June 2015).
Review — Application for — Time within which proceedings to be instituted — Delay — Whether delay unreasonable — Question whether delay unreasonable a question of fact and not of law — Question to be determined objectively on particular facts and circumstances of each case — Determination of such question not entailing exercise of discretion — But it does imply the making of a value judgment. Review — Delay in instituting review proceedings — Whether delay was unreasonable and should be condoned — Applicants launching review proceedings after some nine and a half months in respect of a decision taken by an Appeal Tribunal constituted in terms of Section 39 of the Communal Land Reform Act, No 5 of 2002— Despite question of delay having been raised in respondents' answering papers, applicants offering no explanation — Court upholding defence of unreasonable delay — Applicants’ failure to give an explanation and to seek condonation as well as the establishment of prejudice militating against the granting of condonation for the delay — Application accordingly dismissed with costs. Tjiundje v Kaavara (A 325/2012) [2015] NAHCMD 122 (27 March 2015).
Review – Decision of tender board to award tender for catering services to government schools – Review to set aside and re-award the tender to the applicant – Supreme court confirming the setting aside and ordering for re-awarding of the original tender to other tenderers, including the applicant – Tender awarded to the applicant - Specific tender period omitted from the award – Application to extend the period dismissed since the
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supreme court ordered that the original tender should be the one to be re-awarded. Free Namibia Caterers v The Chairman of the Tender Board of Namibia (A 52-2014) [2015] NAHCMD 196 (21 August 2015).
SECURITY FOR COSTS
SPOLIATION
See Coetzee v Rouco Auto Manufacturers (Pty) Ltd (A 161-2015) [2015] NAHCMD 165 (9 July 2015)
Mandament van spolie – Applicant must prove peaceful and undisturbed possession of the thing in question at time of illicit deprivation of possession – Where these elements are proved there is spoliation – In that event there can never be lawful spoliation – It is therefore petitio principii for counsel to concede there has been spoliation and argue that but the spoliation was not unlawful – Court held that since applicant is the Executix of the estate in terms of the Administration of Estates Act 66 of 1965 when the respondents carried out the spoliation of assets of the estate, mandament van spolie should operate ipso facto. Mpasi v Kudumo (A 235/2015) [2015] NAHCMD 252 (22 October 2015).
Spoliation – Mandament van spolie – Applicant must prove peaceful and undisturbed possession at time of illicit deprivation of possession – Phrase meaning possession without interference or interruption – Not just any measure will suffice – Court must be satisfied, regard being had to the nature of the thing dispossessed, that the despoiled possession was sufficiently stable and durable. Manetti v Feris (A 277/2015) [2015] NAHCMD 255 (29 October 2015).
Spoliation – Applicant must prove peaceful and undisturbed possession at time of deprivation of possession. – Possessor need not be physically present to be in possession - Respondents not at liberty to take law into own hands. Applicant applied for an order directing the respondent to restore to her possession a certain field in the Caprivi Region in which she engaged in crop farming, and which field had been in her undisturbed possession since 1952 – Respondents erected structures on field but denied spoliation, alleging that the applicant was not in possession of the field in
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question, but possessed of another field in the nearby vicinity. Sinalumbu v Kabula (A 359-2013) [2015] NAHCMD 298 (9 December 2015).
SUMMARY JUDGMENT
Judgments and orders – Summary judgment – Applicant’s claim based on unjustified enrichment and misrepresentation – Respondent’s defence is that the amounts were approved by appointing authority – Section 22 of State-Owned Enterprise Governance Act, 2006(Act 2 of 2006) (SOE Act) precluding Plaintiff from remunerating any member without consent of both the portfolio Minister and Minister of Finance – Court satisfied that respondent has no bona fide defence to applicant’s claim – Plaintiff cannot act ultra vires its powers – Plaintiff bound by its creative deed, ie Social Security Act, 1994 (Act 34 of 1994) and SOE Act – Summary judgment granted. Social Security Commission v Kukuri (I 5042/2014)[2015] NAHCMD 79 (31 March 2015).
Opposition – In an application for summary judgment, the defendants did not file an opposing affidavit and withdrew their notice opposing summary judgment. The question was whether the provisions of Rule 32(9) and (10) apply. Held that in the peculiar circumstances of this case, the defendant not having filed papers in opposition and having withdrawn opposition, rule 32(9) and (10) did not apply. Summary judgment was granted as prayed. Bank Windhoek (Pty) Ltd v Nosib Farming CC (I 1404/2014) [2015] NAHCMD 89 (15 April 2015).
Practice - Rules of Court – Implications of the provisions of rule 32 (9) and (10) on applications for summary judgment; Rule 60 examined and the responsibilities of the plaintiff and defendant in summary judgment revisited. First National Bank of Namibia Limited v Louw (I 1467-2014) [2015] NAHCMD 139 (12 June 2015).
Practice – Summary judgment –unopposed. ESTATES – whether a plaintiff is entitled to sue a deceased estate without having lodged a claim against the estate in terms of the Administration of Estates Act. First National Bank of Namibia Limited v SSS Motor Spares CC (I 4071-2014) [2015] NAHCMD 163 (22 July 2015).
Practice – Summary judgment application; the seven golden rules of summary judgment revisited – meaning of liquidated amount. The plaintiff sued the defendant for an amount of damages due as a result of fraudulent claims made by the defendant to the plaintiff. The court held that the defendant’s affidavit did not meet the required standards of setting out a defence which if proved at trial would deflect judgment. The
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court considered whether a claim for damages may be regarded as a liquidated amount within the meaning of the rules of court. Summary judgment granted as prayed. Nored Electricity (Pty) Ltd v Ouster (I 3670-2015) [2015] NAHCMD 178 (3 August 2015).
Practice – Judgments and Orders – Summary Judgment – Opposition to – Requirements – Defendant required to show and satisfy the court that he has a bona fide defence to the claim – Material facts upon which defences based must be disclosed with sufficient particularity and completeness to enable the court to decide whether bona fide defence disclosed – Not required to disclose all details as would be the case in trial proceedings – Conversely, summary judgment is an extra-ordinary and stringent remedy and should only be granted if there is no doubt that the plaintiff has an unanswerable case. Rall v Professional Provident Society Insurance Company (Namibia) Ltd (I 1153-2015) [2015] NAHCMD 209 (9 September 2015).
Summary Judgment – Practice and Procedure – Defendant must have a bona fide defence against the claim instituted by the plaintiff – Such defence must not be for purposes of delay – Defendant claiming allegations of misrepresentation from a third party who is not a party to the agreement between the plaintiff and the defendants – Such not a defence to the plaintiff’s claim – Summary judgment granted. Development Bank of Namibia Ltd v Crystal Crest Investment CC (I 6071-2014) [2015] NAHCMD 249 (16 October 2015).
Summary judgment – Construction agreement containing arbitration clause – Arbitration Act, 42 of 1965 applicable – Court having discretion whether to stay the action or proceed with the claim – Such triable and arguable defence against summary judgment – Summary judgment dismissed. Teichmann Plant Hire (Pty) Ltd v RCC MCC Joint Venture (I 1216/2015)[2015] NAHCMD 278 (19 November 2015).
Summary Judgment – Defendant must have a bona fide defence and not for purposes of delay – International agreement containing arbitration clause – Court to honor such clause unless validity of arbitration in dispute – Such triable and arguable issue – Summary judgment refused. Strauss Group Construction CC v Ocean 102 Investment CC (1405/2015) NAHCMD 279 (19 November 2015)
URGENT APPLICATIONS
Practice – Applications and motions – Urgent application – Requirements for in terms of rule 73(4) – Court held that the court cannot grant the indulgence of hearing matter on the basis of urgency where a requirement under rule 73(4) has not been satisfied
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and where urgency in the application is self-created – Principle in Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 applied – Consequently, application struck from the roll with costs. Fuller v Shigwele (A 336/2014) [2015] NAHCMD 15 (5 February 2015); see further Zwiggelaar v Church (A 144/2012) [2015] NAHCMD 03 (23 January 2015); Namibia Tantalum Mining Pty Ltd v The Minister of Mines and Energy (A 310/2014) [2015) NAHCMD 113 (14 April 2015);
Practice – applications and motions – urgent application. Requirements of Rule 73(4) – court held that urgency is not satisfied where the applicant has created the urgency. Court held that an applicant in urgent applications must make a full and frank disclosure of all circumstances affecting urgency and that failure to do so may imperil that party’s success. Held further that the applicant was guilty of abusing court process. Urgency was held to be self-created and the applicant was ordered to pay costs on the punitive scale. Lindequest Investment Number Fifteen CC v Bank Windhoek Ltd (A 80/2015) [2015] NAHCMD 100 (27 April 2015).
Practice - The applicants, awaiting trial in-mates, approached the court on the basis of urgency seeking interpretation of certain articles of the Namibian Constitution and a certain declarator. The respondent took points of law in limine including that the matter was not urgent or if urgent, the urgency was created by the applicants. The court held that the applicants had not complied with the mandatory provisions of rule 73 (4). The court held further that the fact that the applicants, were unrepresented, should not avail them when they had failed to comply with the mandatory procedural rules relating to urgency and which would result in them “jumping the queue” ahead of litigants who had instituted their cases earlier. The court refused to have the matter enrolled as one of urgency. Nghiimbwasha v Minister of Justice (A 38/2015) [2015] NAHCMD 67 (20 March 2015).
Practice – Applications and motions – Urgent application in terms of Rule 73(3) – Applicants seeking an order against the respondents to restore the peaceful and undisturbed possession of, alternatively the right of access to and use of property including Quba Mosque, situated at Erf 1655, Nelson Mandela Avenue, Corner of Burg street, Klein-Windhoek – Respondents raising points in limine in the form of points of law – Rule 66(1)(c) of the Rules of the High Court – claiming sovereign and diplomatic immunity by virtue of international law and the International Diplomatic Privileges Act, Act 71 of 1951 – Court upholds the points in limine and struck the application from the roll with costs. Mazila v The Government of the Islamic Republic of Iran (A 13/2015) [2015] NAHCMD 24 (13 February 2015)
Practice – Applications and motions – Urgent application – Requisites that applicant must satisfy in order to succeed in terms of rule 73(4) – Court found that applicant failed
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to satisfy the second requisite provided in rule 73(4) – Court found further that the urgency was self-created – Court therefore refused to grant the indulgence sought that the matter be heard on urgent basis – Consequently, application struck from the roll with costs. Blaauws Transport (Pty) Limited v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 125 (4 June 2015).
Practice – Applications and motions – Urgent applications – Applicant must satisfy the requirements of rule 73(4) of the rules of court for the matter to be heard on urgent basis – Furthermore, no urgency where urgency is self-created. Practice – Applications and motions – Urgent applications – Applicant must satisfy the requirements of rule 73(4) of the rules of court for the application to be herd as one of urgency – Court finding that applicant has failed to satisfy those requirements – Consequently, application struck from the roll with costs. Maletzky v Inspector-General of Namibian Police (A 175-2015) [2015] NAHCMD 162 (15 July 2015); See further Amukugo v Town Council of Ondangwa (A 16/2015)[2015] NAHCNLD 45(24 September 2015).
Applications and motions – Urgent applications – Applicant must satisfy both requirements of rule 73(4) of the rules of court for the matter to be heard on basis of urgency – Furthermore, no urgency where urgency is self-created. Kaura v Kazenango (A 193-2015) [2015] NAHCMD 176 (29 July 2015).
Practice - Applications and motions - Urgent application - Rule 73(4) places two requirements on an applicant regarding the allegations he or she must make in the affidavit filed in support of the urgent application - The first allegation the applicant must “explicitly” make in the affidavit relates to the circumstances alleged to render the matter urgent - The second allegation, the applicant must “explicitly” make in the affidavit relates to the reasons why it is alleged he or she cannot be granted substantial relief at a hearing in due course. Namibia National Students Organization v National Youth Council of Namibia (A 169-2015) [2015] NAHCMD 201 (7 August 2015)
Practice – Applications and motions – Urgent applications – applicant is required to set out in detail the circumstances which he/she avers render the matter urgent and the reasons why he claims that he could not be afforded substantial redress at a hearing in due course. Failure to set forth these facts explicitly is fatal to the urgent relief. Tjiriange v Kambazembi (A 164-2015) [2015] NAHCMD 185 (10 August 2015).
Applications and motions – Urgency – Application brought ex parte – Court held that it is trite practice of the court that good faith is sine qua non in ex parte applications – Applicant owes a duty of utmost good faith to the court to make a full and proper disclosure of all material facts to the court – Failure to so act should lead to dismissal of the application – It matters not whether the facts were willfully suppressed or negligently
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omitted. Baker v The Messenger of Court for the District of Walvis Bay (A 309-2015) [2015] NAHCMD 286 (23 November 2015).
Applications and motions – Urgency – Requirements for prescribed by rule 73(4)(a) and (b) of the rules of court – Applicant must set out explicitly the circumstances relating to urgency and reasons why the applicants claim they could not be afforded substantial redress in due course – ‘Substantial redress’ not synonymous with ‘damages’ – And applicant must make out a case for urgency in founding affidavit – No urgency where urgency is self created – Respondent bears no onus, none at all, to establish the opposite, namely, that the matter should not be heard on the basis of urgency – Respondent only need to answer to applicant’s averments that the application be heard as a matter of urgency. Inter-Africa Security Services CC v Transnamib Holdings Limited (A 236-2015) [2015] NAHCMD 276 (17 November 2015).
Practice – Applications and motions – Urgent applications – No urgency where urgency is self-created – Court explained meaning of self-created urgency – Court held that in urgent applications the issue that the urgency was self-created relates to dilatoriness attributable to the applicant in launching the application and not applicant’s contribution to the arrising of the course of action which is the subject matter of the application. Mpasi v Kudumo (A 235/2015) [2015] NAHCMD 252 (22 October 2015).
Applications and motions – Urgency – Application brought ex parte – Court held that it is trite practice of the court that good faith is sine qua non in ex parte applications – Furthermore, applicant owes a duty of utmost good faith to the court to make a full and proper disclosure to the court – Failure to so act should lead to dismissal of the application – It is not up to an applicant who brings and ex parte application to decide what facts will make a difference and what facts will not in the eyes of the court and then decide what facts to disclose – All material facts must be disclosed. Jacobs v Van Zyl (A 106/2015) [2015] NAHCMD 254 (29 October 2015).
Applications and motions – Urgency – Requirements for prescribed by rule 73(4) of the rules of court – Applicant must set out explicitly the circumstances relating to urgency and reasons why applicant claims he or she could not be afforded substantial redress in due course – And applicant must make out a case for urgency in founding affidavit – Respondent bears no onus, none at all, to establish the opposite, namely, that the matter should not be heard on the basis of urgency – Respondent only need to answer to applicant’s averments that the application be heard as a matter of urgency. Sinalumbu v Lewin (A 321/2015) [2015] NAHCMD 277 (18 November 2015).
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VINDICATION
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CASE SUMMARIES
Alexander Forbes Namibia Group (Pty) Ltd v Andrew Nangombe (I 2452-2014) [2015] NAHCMD 167 (24 July 2015)
Summary: Application for summary judgment in terms of rule 60. Rule 32 (9) and (10) not applicable when interlocutory application is not opposed. Application as been opposed, opposing affidavit not commissioned or authenticated in terms of rule 60 (5) (b) read with rule 1 of the rules of court. Held: there was no opposition to the summary judgment application due to non-compliance with rules of court. Acknowledgment of debt signed by parties. Defendant claiming duress as a ground of opposition. The burden of proof lies with the party claiming such duress.
Auto Tech Truck and Coach CC v Fannys Motor Repairs and Investment CC (I 2483-2013) [2015] NAHCMD 236 (6 October 2015).
Summary: Practice – Parties – Joinder – Plaintiff applying to join another person as second defendant the basis that the person to be joined acted as an agent of the defendant in transactions between the plaintiff and the defendant – Court found that no lis was established between the plaintiff and the person to be joined (second respondent) as there may be between the plaintiff and the defendant necessitating the calling in aid of rule 40 of rules – Court found further that since agency relationship was not proved between the defendant and the person to be joined the court’s inherent power under the common law in order to ensure that that person was before the court in the action and that that person’s rights will not be affected by the judgment in due course in the action – Consequently, court dismissed the joinder application with costs.
Baker v The Messenger of Court for the District of Walvis Bay (A 309-2015) [2015] NAHCMD 286 (23 November 2015).
Summary: Applications and motions – Urgency – Application brought ex parte – Court held that it is trite practice of the court that good faith is sine qua non in ex parte applications – Applicant owes a duty of utmost good faith to the court to make a full and proper disclosure of all material facts to the court – Failure to so act should lead to dismissal of the application – It matters not whether the facts were willfully suppressed or negligently omitted – Applicant launched an urgent ex parte application and failed to disclose to court that a pending application had been pending for some five months
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upon the bringing of the urgent ex parte application – Court granted rule nisi – On this return day court upheld respondents’ point in limine that that raised the issue of lis alibi pendens – Court found that lis alibi pendens existed and by not disclosing the pending proceedings in the urgent ex parte application applicant did not act in utmost good faith – Consequently, court discharged the rule nisi and dismissed the application.
Bampton v Von Wielligh (CA 44-2015) [2015] NAHCMD 293 (3 December 2015).
Summary - Appeal – Late prosecuting of appeal – Counsel for appellant sought to place before court reasons why rule 116(5) of the rules of court could not be complied with – Counsel mentioned difficulty in obtaining the record to be delivered to the registrar – Appeal considered to have lapsed – There was no application to condone non-compliance with rules – Appellant could have stated in such application reasons why the rules could not be complied with for court to consider whether to condone late prosecuting of appeal and re-instatement of appeal – Accordingly, court found there was no appeal properly before court for the court to adjudicate on – Consequently, appeal struck from the roll with costs.
Blaauws Transport (Pty) Limited v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 125 (4 June 2015).
Summary: Applications and motions – Urgent application – Requisites that applicant must satisfy in order to succeed in terms of rule 73(4) – Applicant decided not to launch an application when it was clear that first respondent would not budge an inch on his position that he would not permit applicant to remove applicant’s wrecked vehicles from first respondent’s premises until applicant had paid for the amount demanded by first respondent for salvaging and removing applicant’s vehicles which had collided on a public road and had posed risk to motorists – Court found that no negotiations were ongoing to give the applicant reason for not launching the application timeously – Court therefore found that urgency was self-created – Besides, court found that applicant has not set out explicitly the reasons why applicant claims it could not be afforded substantial redress in due course – Court therefore refused to hear the matter on the basis of urgency – Consequently, court struck the application from the roll for lack of urgency.
Blaauws Transport (Pty) Ltd v Auto Truck and Coach CC (A 96-2015) [2015] NAHCMD 268 (12 November 2015).
Summary: Lien – In what cases – First respondent claiming creditor-debtor lien or, and in addition, salvage lien for salvage work done and not paid – Respondent relying
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on oral agreement – Court held that lien ex contractu being the offspring of contract can only arise in conformity with and not in contradiction to the contract – Court found that in instant case terms of the contract do not provide that respondent will have a lien over vehicles it removed after the collision of the applicant’s vehicles with other vehicles – Consequently, court found that respondent cannot retain vehicles on basis of a lien ex contractu – Court found respondent has rather a salvage lien over the vehicles – Court having discretion to deprive lien holder of possession of the thing and to substitute security for the lien – Applicant tenders security in the form of Bank guarantee in an amount covering the amount charged (though genuinely and bona fide disputed) and interest thereon and legal costs – Court found that security is adequate, reasonable and bona fide – Court found that it serves well the selfish interest of the first respondent to resist substitution of security for the lien because the first respondent gains N$600 per day in respect of storage charges on top of the disputed amount – Court concluded that since the amount charged is genuinely and bona fide disputed the applicant has the right under 12(1) of the Namibian Constitution to have that dispute determined by the court – Consequently, court found that it is equitable to deprive the first respondent of possession and to substitute security for the lien.
BV Investments 264 CC v FNB Namibia Holdings Limited (I 362/2010) [2015] NAHCMD 6 (29 January 2015).
Summary: Practice – Judgment and orders – Default judgment – Application for default judgment brought in relation to action which had long been dismissed – The plaintiffs instituted action whereupon the first defendant raised an exception to the particulars of claim – The exception was upheld – The plaintiffs did not move to amend the particulars of claim – Defendant therefore applied for dismissal of the action which the court granted – Meanwhile, when the exception remained undetermined by the court the plaintiffs brought an application for judgment by default – The application was dismissed – Undeterred the plaintiffs brought subsequent default judgment applications and they were dismissed – The instant proceeding is the latest in the series of such unsustainable application for judgment by default – Court dismissed with costs the latest application also on the basis that there was no action existing in which or in relation to which the plaintiffs are entitled to bring such application.
Chantal Visagie v Josias Alexander Visagie (I 1956/2014) [2015] NAHCMD 117 (26 May 2015).
Summary – The court issued a restitution order following a divorce action which was not contested. An agreement reached by the parties awarded custody of the minor children to the applicant. On the return day, in his affidavit of non-return the respondent alleged that the applicant’s boyfriend was molesting the parties’ girl child and contested
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the issue of custody on that basis. The applicant moved an application in terms of rule 61 alleging that no notice had been given to the applicant’s boyfriend regarding the allegations. Held, rule 61, being an interlocutory application, the applicant ought to have complied with the provisions of rule 32 (9) and (10) which are peremptory and the court stated it was inclined not to hear the matter for that reason. The court, in dealing with the rule 61 application stated that the said application was bad for it did not make the necessary allegations and held further that the respondent was at large to revisit the issue of the custody of children in his affidavit of non-return. Held further that the respondent was not in breach of the provisions of rule 89 (4) as the matter before court was not based on adultery. Held that the rule 61 application was bad and it was dismissed with costs.
Demenkov and Another // Minister of Home Affairs and Immigration and Another (A 263/2015) [2015] NAHCMD 267 (09 November 2015).
Summary: On 23 October 2015 the applicants approached this court on an urgent basis seeking to, amongst others, stay the operation of a decision (refusing to issue them an employment permit) pending the determination of a review application they have launched. They furthermore sought an order interdicting the Minister of Home Affairs and Immigration or the Immigration Selection Board from detaining, deporting or removing them from the Republic of Namibia on the strength or by virtue of the aforementioned ruling until the applicants’ review application has been prosecuted to finality.
The respondents opposed the application and raised seven points in limine. At the hearing of the application the respondents confined the points in limine to the point that applicants have failed to join the relevant Immigration Tribunal, The Inspector General of Namibian Police and the Prosecutor General.
Held that it is now a firmly established principle of our law that when a person has an interest of such a nature that he or she is likely to be prejudicially affected by any judgment given in the action, it is essential that such person be joined either as an applicant or as a respondent.
Held further that an Immigration Tribunal established under s 43 of the Immigration Control Act, 1993 is a Constitutional Tribunal which derives its authority and power from the Constitution and statute and is not a delegate of the Minister. The power to order the removal of a person who is regarded as prohibited immigrant vests in the Immigration Tribunal and not in the Minister or the Immigration Selection Board. The body vested
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with such power such has a direct and substantial interest in the outcome of this application.
Held further that as the bodies vested with the powers to investigate and prosecute criminal offences in Namibia the Namibian Police and the Prosecutor General have a direct and substantial interest in the outcome of this application. The failure to join the relevant Immigration Tribunal, the Namibian Police and the Prosecutor General is fatal.
Enkali v Ondangwa Town Council (A 15-2012) [2015] NAHCNLD 52 (12 November 2015).
Summary: Respondents issued out process against 1st applicant. The relief sought affected 2-4th applicants who were however not cited as parties. A party that has a direct and substantial interest in a matter should be served with court process. The said party should be joined as a party. The order was not properly served on all the affected parties. Applicants in addition argued that the said order was not properly sought and not properly obtained. The court was misled, that being the case the order was a nullity and everything that flows from it is a nullity. The judgment was rescinded in terms of Rule 44 of the High Court Rules.
Epic Transport (Pty) Ltd v MLN Junior Trucking CC (I 244-2015) [2015] NAHCMD 198 (25 August 2015).
Summary: Application of upliftment of bar for failure to file an affidavit resisting summary judgment –an affidavit is not a pleading and therefore an application to uplift the bar is not appropriate. The correct course to follow is to apply for condonation. Condonation for late filing considered – the twin requirements revisited. Failure to file affidavit resisting summary judgment on time – respondent failed to make out a case for condonation to be granted – application for summary judgment granted.
First National Bank of Namibia Limited v Louw (I 1467-2014) [2015] NAHCMD 139 (12 June 2015).
SUMMARY: The plaintiff moved an application for summary judgment in which some papers in opposition were filed. Held that court may in certain circumstances overlook the application of rule 32 (9) and (10) as in the instant case where the defendant actually does not raise any defence in the papers. Held further that in certain instances, application of rule 32 (9) and (10) may impinge on the other overriding principles of judicial case management e.g. saving costs and just speedy and expeditious resolution
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of disputes. The court in obiter further expressed doubt whether summary judgment is interlocutory in nature and effect and whether the court is precluded from dealing with summary judgment without reference to rule 32, especially in view of rule 60 (4). The ‘seven golden rules of summary judgment’ are discussed and applied. Held that the plaintiff had complied with all the technical requirements and that the defendant had both in his plea and affidavit admitted liability to the plaintiff on all claims. Summary judgment granted as prayed and an order declaring the property executable stayed over pending compliance with rule 108.
First National Bank of Namibia Limited v SSS Motor Spares CC (I 4071-2014) [2015] NAHCMD 163 (22 July 2015).
Summary: The plaintiff sued the defendants for payment of an amount loaned to the company in which the deceased signed a suretyship agreement. The executrix of the deceased estate was cited and served. Held that the defendants had not filed an affidavit opposing summary judgment and that the papers filed by the plaintiff were technically in order. Held further that a plaintiff’s right to sue a deceased estate without following the procedure set out in the Administration of Estates Act was not taken away. Summary judgment was granted as prayed.
Fuller v Shigwele (A 336/2014) [2015] NAHCMD 15 (5 February 2015)
Summary: Practice – Applications and motions – Urgent application – Requirements for in terms of rule 73(4) – Dispute between applicant and 1 st respondent revolves around sales agreement concluded between the applicant and 1st respondent – 1st
Respondent refused to perform under the contract on the basis that contract had lapsed – Applicant informed about 1st respondent’s firm position on 13 October 2014 – Applicant did not carry through his threat to launch an urgent application then to protect applicant’s interest – Applicant launched urgent application on 4 December 2014 and set matter down for hearing on 11 December 2014 – Court found that applicant has failed to satisfy the first requirement for hearing a matter on the basis of urgency in terms of rule 73(4)(a) of the rules – Court concluded that the urgency in the application is self-created – Consequently, court refused to grant the indulgence sought by the applicant and struck the matter from the roll with costs.
Futeni collections (Pty) Ltd v De Duine (I 3044/2014) [2015] NAHCMD 119 (27 May 2015).
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SUMMARY – In an undefended matter, the plaintiff applied for judgment by default; rectification of an agreement and a declaration of property executable. The court examined the procedures to be followed before default judgment can be granted and held they were satisfied. In relation to rectification, it was held that the plaintiff had not fully complied with all five requirements but had substantially complied therewith. Rectification also granted. Regarding property being executable, the court examined the provisions of the rule and held that such steps as the filing of the nulla bona return should be complied with before a home can be sold in execution. The court further defined what a ‘primary home’ is and held that other means of settling a debt should be considered before resorting to the sale of a primary home. The court further set out the steps to be followed normally i.e. the obtaining of a monetary judgment; issuance of a nulla bona return; filing of an application for the property to be declared executable; the right of the debtor to show cause why the order should not be made. Further the court held that this process should be made easy and accessible even to those who cannot afford lawyers.
Gurirab v Minister of Home Affairs and Immigration (A 323-2014) [2015] NAHCMD 262 (5 November 2016)
Summary: Administrative law – Exhaustion of internal or domestic remedies before approaching court – Court set out considerations that a court ought to take into account when deciding whether internal remedies should be exhausted before litigant approaches court – Paramount considerations are (1) whether remedies capable of providing effective redress in respect of complainant and (2) whether alleged unlawfulness has undermined the internal remedies themselves – In instant case internal remedy is provided by s 9(2) of the applicable Act being the Marriage Act 25 of 1961 – Applicant applied to court to review and set aside decision of the first respondent or decision of the Permanent Secretary of first respondent’s Ministry to revoke marriage license of applicant granted in terms of Act 25 of 1961 – First respondent has discretionary power under s 9(2) of the Act to review and set aside Permanent Secretary’s decision – Court found that applicant has rushed to court prematurely without exhausting the internal remedy provided by the Act without justification – Consequently, court dismissed the application.
Hoveka v Minister of Regional and Local Housing and Rural Development (A 356/2013) [2015] NAHCMD 63 (10 February 2015).
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Summary: This matter concerns the recognition of a person as a Chief, under the Traditional Authorities Act, 2000, of the Hoveka Traditional Authority in respect of the ‘Epukiro Traditional Community’.
On 12 October 2005 a person by the name of S Makono purported to apply in terms of the Traditional Authorities Act, 2000 for the approval, by the Minister responsible of Regional & Local Government, Housing & Rural Development, to designate Sylvanus Kaveriua Hoveka, as Chief of the Hoveka Royal House in respect of the Epukiro Traditional Community. On 22 May 2006 the Minister responded that ‘according to their record Epukiro falls under the jurisdiction of Mbanderu Royal House, a recognized Traditional Authority’. The Minister further stated that an application over a communal area that falls under the jurisdiction of a recognized traditional authority contravenes the provision of Section 5(3) of the Traditional Authorities Act, 2000 and that the Ministry is not in the position to consider the application submitted by Mr. Makono.
The Hoveka Royal House did not accept the decision of the Minister and between May 2006 and September 2013 correspondences were exchanged between the Hoveka Royal House, their legal representative and the Minister. When the exchange of the correspondences did not result in a favourable decision for the Hoveka Royal House, the latter and a certain Turimuro Retoveni Hoveka approached this Court seeking an order in terms of which this Court orders the Minister to recognize and gazette the Turimuro Retoveni Hoveka as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act, 2000.
On the 24th of June 2014 the applicants filed an amended Notice of Motion. In the amended Notice of Motion the applicants only seek to compel the Third Respondent (The President of the Republic of Namibia) to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of Section 6 of the Traditional Authorities Act, 2000.
Held, the application which was attached to the Applicants’ Notice of Motion and the supporting affidavit (as Annexure “TH 7”) is that of the late Sylvanus Kaveriua Hoveka which was submitted to the Minister on 12 October 2005.
Held further that Sylvanus Kaveriua Hoveka passed on, on 16 November 2011 and that he is not a party to this proceedings and that s 5 of the Traditional Authorities Act, 2000 specifically provides that if a traditional community intends to designate a chief or head of that traditional community the Chief's Council or the Traditional Council of that community, or if no Chief's Council or Traditional Council for that community exists, the
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members of that community who are authorised thereto by the customary law of that community, must apply on the prescribed form to the Minister for approval to make such designation.
Held, furthermore that there is no application that has been placed before this court in respect of Turimuro Retoveni Hoveka and it follows that if there is no application there is nothing for the Minister to consider. If there is no application which the Minister can consider there is also no issue which the Minister can refer to the President as contemplated in s 5(3) of the Act and to that extent this court cannot compel the President to recognize and gazette the first applicant as the Chief of the Hoveka Royal House and to recognize and gazette the Hoveka Royal House as a Traditional Authority in terms of s 6 of the Act.
Hinananye Nehoya v Shafooli (I 09/2013) [2015] NAHCNLD 04 (27 January 2015).
Summary: Applicant issued out summons against respondents for their ejectment and other ancillary relief. Respondents opposed the application on the grounds that applicant was introducing a new cause of action and will, therefore, be prejudiced. The court found that the said amendments were not introducing a new cause of action. Applicant was not acting mala fide and if there is prejudice it can be cured by costs or postponement. Respondents failed to show prejudice.
Intamba v Tjapaka (A57-2015) [2015] NAHCMD 218 (16 September 2015)
Summary: During 2010 the parties entered into a written sales agreement of Farm Guiganab-Ost, No. 273, Registration Division “B”, situate in the District of Grootfontein, Otjozondjupa Region, measuring 3006,6982. In terms of the sales agreement the applicant had to pay a deposit in the amount of N$ 500 000 (Five Hundred Thousand Namibia Dollars) and certain other payments owed by the first and second respondents to the Agricultural Bank of Namibia. Transfer of the farm would take place after October 2014 on payment of the balance of the purchase price.
On 06 June 2014, the 1st and 2nd respondents’ legal practitioners addressed a letter to the applicant stating that the purchase price agreed upon was unrealistic and that the applicant must adjust the price to market related price. On 11 July 2014 the 1 st and 2nd
respondents’ legal practitioners addressed another letter to the applicant stating that because the purchaser was married in community of property to the late Andrew Anyanya Intamba, she legally could not have entered into a sales agreement involving the immovable property in question without the authorization of her late husband and that that agreement is thus void.
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The parties exchanged correspondences, in her final correspondence to the first and second respondents, the applicant sought an undertaking from the first and second respondents that they will not proceed the execution of the Deed of Sale they (i.e. first and second respondents) concluded with the third and fourth respondents. When the first and second respondent refuse to give the undertaking sought by the applicant, the latter approach this court in essence seeking specific performance. The first and second respondents opposed the application in their opposition they simply raised some points in limine.
Held that in application proceedings the affidavits take the place not only of the pleadings in action proceedings but also of the essential evidence which would be led at a trial.
Held further that, by electing not to answer the allegations made by the applicant in her founding affidavit in his answering affidavit, it follows that the facts raised by the applicant in her founding affidavit were not placed in dispute and must be accepted as correct.
Held further that the first and second respondents in their affidavit, had to furnish facts in the form of evidence of the nature of the applicant’s and the first respondent’s lack of consents from their spouses to conclude the sales agreement. The allegation, that the applicant did not have her spouse’s consent to enter into the sales agreement, in the answering affidavit is a conclusion of law, it is at best for the first respondent an inference, a "secondary fact", with the primary facts on which it depends omitted.
Held further that the absence of the signatures of the late Andrew Anyanya Intamba (the husband of the purchaser) and Samuelina Tjapaka (the wife of the seller) is not evidence of absence consent from those parties The first and second respondents have failed to establish the contravention (if any) either by the applicant or by the first respondent of s7 of the Married Persons Equality Act, 1996 or of the lack of compliance with the provision of s1 of the Formalities in respect of Contracts of Sale of Land Act, Act No. 71 of 1969.
Inter-Africa Security Services CC v Transnamib Holdings Limited (A 236-2015) [2015] NAHCMD 276 (17 November 2015).
Summary: Applications and motions – Urgency – Requirements for prescribed by rule 73(4) of the rules of court – Applicant must set out explicitly the circumstances relating to urgency and reasons why the applicants claim they could not be afforded substantial redress in due course – ‘Substantial redress’ not synonymous with ‘damages’ – And
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applicant must make out a case for urgency in founding affidavit – No urgency where urgency is self created – Court found that the applicants failed to satisfy the requirements for urgency prescribed by rule 73(4) of the rules – Court found further that urgency was self created – Applicants had been aggrieved by decision of first respondent in July 2015 but only approached the court for relief on urgent basis in September 2015 without justification – Consequently, court refused application on the basis that the requirements in rule 73(4) have not been met.
Jacobs v The Minister of Safety and Security (I 3772/2013) [2015] NAHCMD 27 (19 February 2015).
Summary: Practice – Exception – On ground that pleading vague and embarrassing – Court held that ultimate test is whether pleading complies with the general rule laid down in rule 18(4) of the repealed rules (rule 45(5) of the current rules of court) – Court held further that exception involves two-fold consideration – First, whether pleading complained of lacks particularity to the extent that it is vague, and second whether the vagueness causes embarrassment of such nature that excipient is prejudiced – Where vagueness is not established the second consideration does not arise – Excipient complained that the pleading that plaintiff was detained unlawfully and wrongfully lacks particularity because it does not say for how long plaintiff was detained by the Police and for how long he was detained by order of court – Second exception relates to information about plaintiff that third defendant placed before the lower court in plaintiff’s abortive bail application – Court found that the pleading is not vague because it is not meaningless and it is not capable of having two meanings – Court found further that the pleading is clear and concise and contains sufficient particularity to enable the defendants to reply to it in term of repealed rule 18(4) – Consequently, court found that defendants have failed to show that pleading is vague – Consequently, court dismissed exception.
Jacobs v Van Zyl (A 106/2015) [2015] NAHCMD 254 (29 October 2015).
Summary: Applications and motions – Urgency – Application brought ex parte – Court held that it is trite practice of the court that good faith is sine qua non in ex parte applications – Furthermore, applicant owes a duty of utmost good faith to the court to make a full and proper disclosure to the court – Failure to so act should lead to dismissal of the application – It is not up to an applicant who brings and ex parte application to decide what facts will make a difference and what facts will not in the eyes of the court and then decide what facts to disclose – All material facts must be disclosed – Applicant launched urgent ex parte application to restore applicant’s use of a borehole access to which applicant alleges respondent had deprived applicant of – Court had
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granted a rule nisi – On this return day court found that in order to gain judicial sympathy in the granting of the rule nisi applicant failed to disclose to court the existence of two dams and a tank on applicant’s farm which were alternative sources of water at the disposal of the applicant – Court found that the existence of those sources of water should have been disclosed – Applicant had a duty to so disclose because such disclosure might have influenced the granting of the rule nisi – For that failure to disclose alone the rule nisi was discharged and the application dismissed with costs.
Josea v Ahrens (I 3821-2013) [2015] NAHCMD 157 (2 July 2015).
Summary: When approaching a robot controlled intersection, it is crucial that a motorist intending to turn right should properly indicate his or her intention to do so, but such motorist should not proceed to turn across the path of oncoming traffic unless and until he or she is satisfied that it is safe to do so. A motorist’s conduct in executing a right hand turn when it is not safe to do so, is a prima facie case of negligence, in the absence of a reasonable and satisfactory explanation for such conduct. The duty of a driver who has a green light in his favour when he approaches an intersection, and the light turns yellow before he crosses the intersection, is to stop behind the stop line and remain stationary: Provided that if he is so close to a stop line when a yellow signal is displayed that he or she cannot stop safely, he may proceed with caution against such yellow light signal.
Witness statements are an important tool in the trial preparation process. By the time they are prepared, the pre-trial procedure in terms of Rule 26 has generally already taken place, and the parties are required to comply with the terms of a pre-trial order. At this stage discovery and the exchange of discovered documents has generally also already occurred so the parties are apprised of each other’s case and are aware of the strengths and weaknesses of their respective cases. Therefore, witness statements should contain a complete version of the evidence in chief that the witness will give, in a chronological and sequenced fashion and in as much as possible in the witness’ own words. Short summaries that are substantially amplified with facts and information that should have been contained in the statement are not acceptable, delay the proceedings and defeat the purpose of the witness statement.
If a witness is unable to testify after giving evidence in chief and his evidence is not tested by cross-examination, the court has a discretion whether to accept or ignore his evidence. The less the evidence is tested by cross-examination, the less probative value it has for the court’s determination of the matter.
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Kameya v The Chief of the Namibian Defence Force (A 66-2015) [2015] NAHCMD 92 (16 April 2015).
Summary: Administrative law – Review – Application to review act of administrative official – Such application must be brought in terms of rule 76 of the rules – Failure to comply with rule 76 is fatal – In the same notice of motion applicant brought application for interim interdict and application to review – Applicant prayed the court to determine both applications on the basis of urgency – Court refused to grant the application for both interim relief and to review – Court reasoned that it would be wrong and illogical to grant the interim relief pending the finalization of the review application when such application did not exist – Consequently, court struck the application from the roll with costs.
Kambazembi Guest Farm CC v The Minister of Lands and Resettlement (A 295/2013) [2015] NAHCMD 128 (05 June 2015).
Summary: Practice – Applications and motions – Interlocutory application – Applicant who launched review application against the respondents in the main application has launched another application to compel the respondents to furnish him with certain documents – Application was termed by the applicant sui generis excusing the applicant from complying with the provisions of rule 32(9) and (10) of the Rules of Court – However, the court held that the point in limine raised by the respondents be upheld due to non-compliance with rule 32(9) and (10) and struck the application from the roll with costs.
Kanguatjivi v Kanguatjivi (I 309/2013) [2015] NAHCMD 106 (30 April 2015).
Summary: Civil Practice, plaintiff seeking an order to evict the defendant from her farming and residential area at Otjijere Village in Epukiro Traditional area allocated to her by the Ministry of Lands and Resettlement – Plaintiff applied for and has been awarded customary land rights of the property in terms of the Communal Land Reforms Act 5 of 2002 – However, the defendant, the son of the late husband of the plaintiff, is refusing to vacate the property, claiming that he was entitled to occupy the area per the Ovaherero customs – The Court, however, after the trial, rejected his version and granted the plaintiff the order prayed for in the notice of motion.
Kaura v Kazenango (A 193-2015) [2015] NAHCMD 176 (29 July 2015).
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Summary: Practice – Applications and motions – Urgent applications – Applicant must satisfy both requirements of rule 73(4) of the rules of court for the matter to be heard on basis of urgency – Furthermore, no urgency where urgency is self-created – Applicant has not given any reason why he could not be afforded substantial redress in due course if matter was heard in the ordinary course and he lost the 58 herd of cattle – Consequently, court concluded court cannot grant the indulgence the applicant craves – Application is therefore refused, with costs, on the basis that the requirements in rule 73(4) have not been met.
Klein v Caremed Pharmaceuticals (Pty) Ltd (A 17-2014) [2015] NAHCMD 136 (11 June 2015).
Summary: Company – Winding-up – Application for – Applicant averring that company (respondent) has failed to pay its debts – Unpaid debt arose from costs order granted without reasons in previous application proceeding – Respondent disputes the unpaid debt – To date respondent’s request for reasons to enable it to take appropriate steps to appeal the costs order has been ignored – Besides, applicant’s demand for security for costs had been fully and duly satisfied – Court concluded therefore that in the circumstances and on the facts applicant has failed to prove to the satisfaction of the court that the respondent is unable to pay its debts within the meaning of s 349(f), read with s 350(1)(c), of the Companies Act 28 of 2004 – Consequently, application dismissed with costs.
Kondjeni Nkandi Architects v The Namibian Airports Company Limited ( I 3622-2014) [2015] NAHCMD 223 (11 September 2015).
Summary: The plaintiffs sued the defendant for architectural work done apparently in violation of a statutory enactment. PRACTICE – Rules of Court – held the provisions of rule 32 (9) and (10) are mandatory and parties should comply therewith and may not choose or agree whether to comply with same or not; Exception – a thin line at times exists between a bad cause of action or defence and one that is excipiable. For an exception to apply, the question is whether any evidence may be led on the averrals in the particulars of claim or plea. CONTRACT – held that payment claimed under contracts entered into in violation of statutory provisions may not be sanctioned by the court. Defendant’s exception upheld with costs.
Korea v Angala (A 09-2015) [2015] NAHCNLD 42 (12 August 2015).
Summary: Applicant was sued for adultery. The pleadings were filed. Matter was set down for a Pre-Trial Conference. Applicant filed two notices of withdrawal in the first one did not tender wasted costs while in the second, she stated that the withdrawal was
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on condition each party was to bear its own costs. This had not been agreed to. Applicant applied for costs. There was no good reasons shown by the respondent for the withdrawal of the actions. The payment of costs was a must where plaintiff (respondent) was withdrawing in order to prevent the innocent applicant from being saddled with costs occasioned by either a malicious or negligent plaintiff/respondent.
Kriel v Kantak (A 268-2015) [2015] NAHCMD 242 (7 October 2015).
Summary: Marriage – Custody of minor children - Application to grant custody of minor child to applicant pending finalization of application in terms of Children’s Status Act 6 of 2006 – Application for custody already launched in Children’s Court (Lower Court) and pending – Court held that the High Court is not entitled to usurp the statutory powers and functions of the Lower Court or a tribunal when that court or tribunal has not determined the dispute or matter before it – In the instant case, the fact that the High Court is the upper guardian of minor children does not entitle the court to usurp the statutory powers and functions of the Children’s Act – In instant case application in terms of Act 6 of 2006 was launched by applicant some three days previously in the Lower Court and was pending – Applicant says that that court has breached his rights on the basis that court refuses to hear him – Court found that in that event applicant should have sought an order of mandamus which is an effective remedy to compel the Lower Court’s performance – Court refused to grant the relief sought and dismissed application.
Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (A 273-2014) [2015] NAHCMD 240 (8 October 2015).
Summary: Practice – Applications and motions – Discovery in motion proceedings – Discovery in terms of rule 28(1), read with rule 70(3), of the rules of court – These rules are subject to the peremptory provisions of rule 66(1)(b) of the rules – Respondents sought to introduce a multitude of documents in violation of rule 66(1)(b) of the rules – The documents have always been in respondents’ possession – Respondents failed to identify, in an affidavit, the particular documents or portions of the documents which the respondents desire to use and rely on – Court found that the approach taken by the respondents is alien to the rules of court and unreasonable and unfair not only to the other parties, but also to the court – Consequently, court declined to direct that respondents discover further documents. Summary: Application and motions – Application for hearing of oral evidence – Generally, court will exercise discretion in favour of hearing oral evidence only where genuine dispute of facts on the papers exists – Courts will not readily refer application for a provisional winding-up order to oral
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evidence – This will only be ordered in exceptional circumstances – It will not be ordered where material dispute of facts has not been clearly defined – It will also not be ordered where referral will not lead to a just and speedy determination of the matter as contemplated in rule 1(3) of the rules of court – Court found that respondents have not clearly defined the material dispute of facts necessitating referral to oral evidence – Court found further that in the circumstances a referral will not lead to a just and speedy determination of the matter as contemplated in rule 1(3) of the rules of court which the court’s order of 18 May 2015 sought to achieve – Consequently, court declined to direct that the matter be referred to oral evidence.
Louw v Khomas Regional Council (A 164-2015) [2015] NACHMD 187 (10 August 2015).
Summary: Plaintiffs instituted an action for damages in high court based on unjust enrichment, and for payment of compensation for work done whilst they were in the employment of the defendant in acting capacities. The plaintiffs’ claim essentially relates to work performed by them, and the discharge of additional duties falling outside the scope and sphere of their normal employment which they were not paid for. Defendant applied to set aside summons as an irregular proceeding on the ground that the high court does not have jurisdiction to hear the matter, which was a labour matter disguised as a damages claim. The purpose of the rule 61 procedure is to enable a party to a cause to apply to set aside a step or proceeding taken by the other party as an irregular step or proceeding, if that step is also prejudicial to the party. It also affords a party an opportunity to compel its opponent to comply with the rules of court on pain of having the said irregular step set aside. It is a procedure catering for irregularities of form rather than substance. It is well established by now that where a party raises the jurisdiction of the court, the appropriate course to adopt is to deliver a special plea.
Manetti v Feris (A 277/2015) [2015] NAHCMD 255 (29 October 2015)
Summary: Spoliation – Mandament van spolie – Applicant must prove peaceful and undisturbed possession at time of illicit deprivation of possession – Phrase meaning possession without interference or interruption – Not just any measure will suffice – Court must be satisfied, regard being had to the nature of the thing dispossessed, that the despoiled possession was sufficiently stable and durable – First respondent as lessee of property occupied property until she was dispossessed of property by first respondent, new owners of property – Court found that on the papers the applicant had not voluntarily given up her peaceful and undisturbed possession of the property – Court found further that first respondent illicitly deprived applicant of such possession – Consequently, court concluded that spoliation was proved – Court rejected the first respondent’s assertion that there was a counter spoliation of the property (whatever that means) committed by the applicant on the basis that it was not established that first
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respondent’s possession of the property was sufficiently stable and durable to constitute ‘peaceful and undisturbed possession’ of the property.Summary: Practice – Parties – Joinder – Application to restore peaceful and undisturbed possession of property – Court set out considerations that may give rise to the necessity of joining a person as a party in a suit – First respondent objected to non-joinder of the husband of the applicant who was in peaceful and undisturbed possession of property based on applicant’s lease agreement with second respondent – Court found that none of considerations exists in the instant case to necessitate the joining of the husband as a party in the suit – Court found that the husband could not be a necessary party in the suit on the basis that applicant based her peaceful and undisturbed possession of the property on an oral lease agreement she alone had entered into with second respondent and it was she who was illicitly deprived of her peaceful and undisturbed possession of the property – Court found that in instant case court will not issue an order which will be a brutum fulmen as the husband will not be asked to cooperate with the carrying out of such order – Moreover, the husband cannot in a subsequent proceeding seek to raise between himself and one or more of the parties to this application the same issues that would be decided in this application – Consequently, court found that the husband was not a necessary party in this application – Preliminary point of non-joinder rejected.
Maritima Consulting Services CC v Northgate Distribution Services Ltd (A 282-2014) [2015] NAHCMD 121 (29 May 2015).
Summary: Practice – Applications and motions – Further affidavits – Court has discretion to allow filing of further affidavits – Respondent averred that applicant’s replying affidavit contained new matter – Respondent chose not to apply to strike out the alleged new matter but rather chose to apply for leave to file supplementary answering affidavit in order to answer the new matter – Court considered such course unadviseable because it does not conduce to structured litigation in application proceedings and it tendered to offend the overriding objectives of the rules set out in rule 1(2) of the rules of court – Court concluded that respondent has failed to establish that special circumstances exist to persuade the court to exercise its discretion in favour of the respondent’s application – Consequently, court dismissed application with costs.
Summary: Appeal – Leave to appeal against costs order – General rule is that costs should follow the event and court entitled to depart from general rule only where special circumstances exist – In instant case court had awarded costs against applicant when its application was struck from the roll which decision has not been set aside – Court awarded costs to the party which successfully moved to reject the application in the absence of special circumstances – Court reasoned that since it did not find that special circumstances existed it was not entitled to deny the successful respondent its costs – Court found that in instant proceedings counsel did not point to special circumstances
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that existed when the costs order was made – Court concluded therefore that applicant has not indicated clearly prospects of success on appeal – Consequently, court dismissed with costs the application for leave to appeal.
Martins v Medusalem (I 132-2013) [2015] NAHCNLD 19 (24 April 2015)
Summary: The parties were ordered to file certain documents by certain dates. Both failed to do so and gave various personal reasons for their failures. Failure to comply with a court order due to omission and other office work is unacceptable and inexcusable. The only acceptable excuses in the circumstance are appearance at the Supreme Court by applicant’s Legal Practitioner and respondent’s Legal Practitioner’s indisposition. Both counsels were not prepared to indulge each other in this application for condonation, yet both were culpable. Both asked for costs against each other. There was no justification for one to pay costs for the other. Condonation is granted and each party is to pay its own costs.
Maswahu v Katima Mulilo Town Council (I1575-2015)[2015] NAHCMD 284 (18 November 2015).
Summary: The applicants approached the court on urgency seeking an interim interdict stopping the 1st respondent from continuing with earthmoving works that allegedly interfered with the exercise of their customary land rights. Requirements for the grant of an interim interdict revisited. Held that the applicants had failed to establish a prima facie right in so far as they did not show that they had a right to occupy the land in question in terms of customary land rights. Held that an applicant seeking urgent interdictory relief must establish the correct facts before launching an application. Held further that failure to respond to allegations of fact made by the respondent in reply will result in the court upholding the respondent’s position advocated on oath. Held further that a party alleging existence of land rights must identify the nature of the said rights in terms of s. 15 of the Communal Land Reform Act. Held that once land has vests in the State, it cannot thereafter be subject to exercise of customary law powers by traditional leaders. Held that the applicants failed to satisfy the requisites for the grant of interim interdictory relief. Application dismissed with costs.
Mazila v The Government of the Islamic Republic of Iran (A 13/2015) [2015] NAHCMD 24 (13 February 2015)
Summary: Practice – Applications and motions – Applicants have sought on an urgent basis in terms of Rule 73(3) of the High Court Rules, an order to be restored in the peaceful and undisturbed possession of, alternatively the right of access to and use of property, including Quba Mosque, situated at Erf 1655, Nelson Mandela Avenue,
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Corner of Burg street, Klein Windhoek – Respondents have raised points in limine in the form of points of law in terms of Rule 66(1)(c) of the Rules of the High Court, claiming sovereign and diplomatic immunity by virtue of international law and the International Diplomatic Privileges Act 51 of 1951 – Court found that first and second respondents are immune to the jurisdiction of this court, upheld the points in limine and struck the application from the roll with costs.
Mbahuurua v Mbahuurua (A 31/2015) [2015] NAHCMD 230 (1 October 2015).
Summary: Husband and wife – Divorce – Proprietary rights – Parties married in community of property – Divorce order failing to make a specific order for division of estate or general forfeiture order – Registrar of Deeds transferring immovable property of the joint estate to the respondent – Registrar of Deeds erring because Registrar acted ultra vires s 6 of the Deeds Registries Amendment Act 2 of 1996 since there is no basis for the Registrar’s act in terms of the court order – Court accordingly found the endorsement made by the Registrar to be null and void and of no force – Court applied the common law principle that in a marriage in community of property generally each party entitled to half of the estate – On the facts and in the circumstances of the case court applied the common law principle and declared that in the absence of a general forfeiture order or a specific order for division of the estate the law itself divides the parties’ joint estate – Court held further that it is not a requirement that an applicant for a declaratory order should have an opponent – Consequently, the non-joinder of the Registrar of Deeds is not fatal – In a divorce order court did not make a general forfeiture order or specific order for division of the joint estate and the respondent (plaintiff in the action proceeding) did not apply for amendment of the order – Having declared the applicant’s (the plaintiff in the action proceeding) rights under the common law, the court ordered that each party is entitled to half of the joint estate, including the immovable property of the estate – Consequently, court granted applicant’s application for the declaratory order.
McDonald v Moor (A 244-2015) [2015] NAHCMD 235 (21 September 2015).
Summary: Applicant had brought an urgent application for the interim variation of an existing court order regulating custody and access to the parties’ minor children pending the finalisation of an application, to be launched in terms of section 12 of the Children Statute Act 2 of 2008 by the applicant. After some protracted proceedings the parties agreed to having certain relief made an order of court. In such order the parties also recorded various additional undertakings given by them. The parties agreed also that the only issue which the court should still determine was whether or not the two younger children should be enrolled, pendent lite, in a Windhoek hostel. In the course of
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determining this issue the court considered itself at liberty to also have regard to a disputed expert report, seemingly obtained contravention of Section 17 of the Social Work and Psychology Act, No 6 of 2004.
Held: That when the court, as the upper guardian of minors, has to determine issues of custody and access, it is empowered and under a duty to consider and evaluate all relevant facts placed before it with a view to deciding the main issue which is of paramount importance in such enquiry: the best interests of the child.
Held: That the court in determining the issue of custody and access has extremely wide powers in establishing what is in the best interests of the minor or dependent children involved and that it is not bound in this regard by procedural strictures or by the limitations of the evidence presented or contentions advanced by the respective parties. It may in fact have recourse to any source of information, of whatever nature, which may be able to assist it in resolving custody and related disputes.
Held: That the interests of minors should thus not be 'held to ransom for the sake of legal niceties' and held that in the case before it the best interests of the child 'should not be mechanically sacrificed on the altar of jurisdictional formalism'.
Held: As the disputed expert report, as well as one of the respondents experts had recommended the enrolment of the two minor children involved at the hostel of a private school in Windhoek ‘to remove them out of the conflict zone’ the court ultimately and reluctantly found that - at the moment - it would be in the children’s best interests to enroll them in the hostel in the interim as this would keep them ‘out of the middle of the conflict’ – which - in all probability was about to escalate again - also for the reason of the imminent proceedings, which were to be launched by the applicant, in the Children’s Court.
Mokomele v Katjiteo (I 3148-2013) [2015] NAHCMD 153 (26 June 2015).
Summary: Practice – Trial – Absolution from the instance at the close of plaintiff case – When to be granted – Plaintiff must lead admissible evidence on which a court, applying its mind reasonably to the evidence, could or might find for the plaintiff – It requires the court to consider the evidence not in vacuo but to consider the admissible evidence in relation to the pleadings and to the requirements of the law applicable to the particular case – The purpose of pleadings explained – Court concluded that in the instant case the occasion has arisen to grant an order of absolution form the instance – Court found that plaintiff has not in his pleadings set out with sufficient particularity his claim for damages based on undue enrichment and no admissible evidence was led to prove it – Court found further that plaintiff failed to lead admissible evidence that
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improvements he carried out on defendant’s property was authorized by the Windhoek Municipal Council entitling him to compensation – Considering the pleadings and the evidence and the law applicable to the case court concluded that the occasion has arisen to make an order granting absolution from the instance – Consequently, application was granted with costs.
Mpasi v Kudumo (A 235/2015) [2015] NAHCMD 252 (22 October 2015).
Summary: Mandament van spolie – Applicant must prove peaceful and undisturbed possession of the thing in question at time of illicit deprivation of possession – Where these elements are proved there is spoliation – Applicant launched application in nomine officii as the Executrix of the estate of a deceased who had died intestate – Respondents jointly illicitly distributed the assets of the estate when applicant was in peaceful and undisturbed possession of the assets – Court found that spoliation has been proved – Consequently, court granted rule nisi calling on the respondents to show cause on the return day why a final order should not be made commanding the possession of respondents to restore the assets they had distributed among themselves.
Practice – Applications and motions – Urgent applications – No urgency where urgency is self-created – Counsel argued that urgency was self-created because applicant consented to the illicit deprivation of the assets of the estate – Court explained that in urgent applications the issue that the urgency was self-created relates to dilatoriness attributable to the applicant in launching the application and not applicant’s contribution to the arrising of the course of action which is the subject matter of the application – Court found that there has not been culpable remissness on the part of the applicant in the launching – Consequently, urgency was established.
Mpepo v Steckels Toyota CC (I 791-2013) [2015] NAHCMD 137 (11 June 2015)
Summary: Practice – Trial – Absolution from the instance at the close of the plaintiff’s case – When to be granted – Plaintiff must lead admissible evidence on which court, applying its mind reasonably to the evidence, could or might find for the plaintiff – It requires the court to consider the evidence not in vacuo but to consider the admissible evidence in relation to the pleadings and to the requirements of the law applicable to the particular case – In present case plaintiff relying on fraudulent misrepresentation on a material aspect of the contract of sale of a motor vehicle concluded between the plaintiff and the defendants – Plaintiff led admissible evidence on defendants’ fraudulent
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misrepresentation – Considering the pleadings and the applicable law on the case, particularly in relation to the aeditilian remedies and the evidence, court concluded that on the evidence a court might find for the plaintiff – Court therefore refused to grant absolution from the instance – Consequently, application for order granting absolution from the instance is dismissed with costs.
Moor v McDonald (A 244-2015) [2015] NAHCMD 253 (30 September 2015).
Summary: In terms of a ruling, which the court had previously made at the request of the parties, the court had ordered that their two younger children, be enrolled, during weekdays, in the hostel of a private school, pending the institution and finalization of an application to be launched by the first respondent in the Children’s Court for the variation of an agreement concluded between the parties in regard to the custody and related matters of their minor children.
The applicant responded to such ruling by launching an urgent application for leave to appeal in respect thereof, together with other relief.
At the commencement of the hearing the Court requested the parties to address the court on the issue of whether or not it was competent for the Court to hear the application before the applicant had purged her contempt of the original order. The applicant had not enrolled the children in the hostel as ordered and had also refused the respondents’ access to the children as ordered.
The Court holding that, although contempt of a Court order was not an absolute bar to be heard at subsequent proceedings, this case did not fall under the exceptions to this rule. The Court stressed the importance of complying with orders of Court.
The Court accordingly struck the matter from the roll and gave leave to the applicant to re-enrol her application for leave to appeal and to proceed with the other relief in the normal course on proof that she had complied with the existing Court order as far as the enrolment and placement of the children in the hostel was concerned.
Mukata v Appolus (I 3396/2014) [2015] NAHCMD 54 (12 March 2015)
Summary: Practice – Applications and motions – Interlocutory application – Applicant launched application for summary judgment without complying with rule 32(9) and (10) of the rules – Court held that an applicant for summary judgment must comply with rule 32(9) and (10) which are peremptory – Consequently, application dismissed with costs.
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Mukendwa v Minister of Safety and Security (I 490/2013) [2015] NAHCMD 109 (29 April 2015).
Summary: On 26 March 2015 the plaintiff caused a subpoena to be issued out of this court. In that subpoena, two persons namely Ms. O.M Imalwa, who is the current Prosecutor General and Mr. JR Walters who is the current Ombudsman, but who was the Acting Prosecutor General between the period December 2002 to December 2003, are required to appear in person before this court and to remain in attendance until excused by the court in order to testify on behalf of the plaintiff in regard to all matters with his or her knowledge relating to an action which is pending in this court.
The parties exchanged pleadings and in that process the plaintiff realized that in addition to the documents already discovered by the defendants there were additional documents which may be relevant to the dispute and which the defendants did not discover it called upon the defendants to discover the identified documents.
On 24 April 2015, the defendants gave notice to the plaintiff that they will at the outset of the hearing of this matter apply for the setting aside of the subpoena issued at the behest of the plaintiff. The grounds on which the defendants rely for the setting aside of the subpoena are that subpoena amounts to an abuse of the process of the court.
During the arguments counsel for the plaintiff conceded that he would not persist with the requirement that Mr. Walters produce the ‘police docket handed over by the Namibian Police to the office of the Prosecutor General, and any other documents the Prosecutor General relied on when she decided to prosecute plaintiff for High Treason and 277 other charges.’
Held that ordinarily, a litigant is entitled to obtain the production of any document relevant to his or her case in the pursuit of the truth, unless the disclosure of the document is protected by law. The process of a subpoena is designed precisely to protect that right but when the Court finds an attempt made to use for ulterior purposes machinery devised for the better administration of justice, it is the duty of the Court to prevent such abuse.
Held further that rule 37 is designed for circumstances where a party to a dispute seeks to obtain the production of any document relevant to his or her case in the pursuit of the truth, but which is not in the possession or under the control of his or her protagonist.
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Held furthermore the rule was definitely not designed for a party to obtain documents which are under the control or in the possession of his or her opponent but which the opponent has failed or refused to make available. In such circumstances the aggrieved party has a remedy and the remedy is set out in rule 28 (9).
Held furthermore that the plaintiff has resorted to the use of the procedure set out in rule 37 for a purpose which is extraneous to the objective of that rule.
Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services cc & Another ((T) I 982/2011) [2015] NAHCMD 291 (1 December 2015).
Summary: The plaintiff sued the defendant for payment of a sum of money allegedly arising out of the latter’s failure to comply with its contractual obligations. In its plea, the 2nd defendant raised the defence of repudiation and the exceptio non adimpleti contractus as a defence. The 2nd defendant also made a counterclaim against the plaintiff for damages as a result of it not complying with the contract. Defences of repudiation and the exceptio considered. Held the defendant had failed to make allegations necessary to found both a defence and its counterclaim by failing to make allegations relating to repudiation. Held the defendant may not plead two inconsistent and mutually destructive defences but should plead same in the alternative to enable the plaintiff to properly plead thereto. Held further that it is undesirable for an excipient to issue a number of exceptions under separate documents in respect of the same pleadings. Held further that the court will not deal with issues not properly placed before it in terms of the rules or the pleadings. Exceptions upheld with costs.
Mungunda v Wilhelmus (I 2354-2014) [2015] NAHCMD 149 (25 June 2015).
Summary: Evidence – Finding facts or making inferences in civil case – Probabilities – Court may go upon a mere preponderance of probability although its doing so does not exclude every reasonable doubt – In finding fact or making an inference in civil case court may balance the probabilities and select a conclusion which seems to be more natural or plausible – In instance case no direct evidence that traffic lights controlling an intersection were in working condition – On the totality of the evidence court balanced the probabilities and concluded that it was more probable than not that the traffic lights were in good working condition when collision of plaintiff’s motor vehicle and the defendant’s motor vehicle occurred at the intersection.
Negligence – Of Motorists – Duty of drivers – One driver travelling on main road across intersection – Other driver travelling on minor road across the same intersection – Generally, a driver travelling on main road entitled to assume that the driver travelling
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on the main road will not enter intersection unless it is safe for him or her to do so – Nevertheless, the driver travelling on the main road must travel at such speed that he is able to apply his or her brakes or reduce speed in good time or swerve his or her vehicle in good time in order to avoid collision – Failure of either driver to keep proper lookout and travel at such speed into the intersection as to enable him or her to apply appropriate manoeuvres in order to avoid a collision constitutes negligence in violation of s 81 of the Road Traffic and Transport Act 22 of 1999 – In such event both drivers are negligent and apportionment of contributory negligence depends upon which of the two drivers made an attempt and took appropriate action in order to avoid the collision – In instant case defendant swerved his vehicle in order to avoid the collision – Plaintiff engaged no manoeuvres to avoid the collision although he had just proceeded into the intersection after having stopped to wait for the traffic lights to turn green in his lane of traffic – Consequently, court concluded that plaintiff contributed to the collision to a degree of 60 per cent, and the defendant to a degree of 40 per cent.
Naanda v Edward (I 2097-2014) [2015] NAHCMD 239 (8 October 2015).
Summary: Exceptions – Exceptions taken against the relief the plaintiff prays the court to grant at the conclusion of the trial – Court concluded that exception cannot be taken against the relief on the basis that defendants are not called upon to plead to the relief – The plaintiff has prayed the court to grant certain relief under claim 3 – In the prayers after the pleadings relating to claim 3, plaintiffs ask the Court to grant certain items of relief under claim 3 – Court held that whether or not on the evidence the plaintiff would succeed in due course in the relief they seek cannot found an exception – Court accordingly dismissed the exception raised against the plaintiff’s relief under claim 3.
Namibia National Students Organization v National Youth Council of Namibia (A 169-2015) [2015] NAHCMD 201 (7 August 2015).
Summary: Applicant, the Namibia National Students Organization (NANSO), was suspended on 27 June 2015 from all activities of the first respondent for a period of 4 months pending the resolution of an alleged leadership impasse within NANSO. The second respondent cited s 9 (f) & (g) of National Youth Council Act, 2003 as empowering it to suspend the applicant. The applicant claimed that the main reason for the suspension was for second respondent to specifically exclude applicant from first respondent’s activities and affairs in particular the deliberative and elective general assembly which was scheduled to take place during September 2015. Applicant on an urgent basis approached the court to interdict the respondents from carrying through their decision to suspend the applicant. Applicant alleging that the suspension was
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taken to its prejudice because it was not afforded a fair hearing before decision to suspend it was taken. Respondent took a point in limine of urgency, arguing that the applicant failed to meet the mandatory requirements in terms of rule 73(4).
Held that the applicant has explicitly set out the circumstances which it alleges render the matter urgent – and that it also “explicitly” stated the reasons why it alleges that it cannot be granted substantial relief at a hearing in due course.
Held furthermore that when a statute empowers a public body or official to give a decision prejudicially affecting an individual in his liberty, property, existing rights or legitimate expectations, he has the right to be heard before the decision is taken unless the statute expressly or impliedly indicates the contrary.
Held furthermore that the National Youth Council Act, 2003 does not expressly or impliedly exclude the right to be heard before a decision to suspend an affiliate can be taken. The court accordingly found that the failure by the second respondent to have given the applicant an opportunity to be heard prior to the decision suspending it was fatal to the respondents’ case.
Namsov Fishing Enterprise (Pty) Ltd v Ministry of Fisheries and Marine Resources (A 59-2015) [2015] NACHMD 246 (15 October 2015).
Summary: On 18 March 2015 the applicant commenced proceedings in this court seeking certain information from the Minister responsible for Fisheries and Marine Resources. The notice of motion was served on the Government Attorney’s offices on 19 March 2015. In the notice of motion, the legal practitioners for respondents were given five day to indicate their intention to oppose the application and fourteen days within which to file their answering affidavit (after they had filed their notice of intention to oppose).
The time limits given to the Government respondents were not in accordance with the rules of court and when the matter was placed on the residual motion court of 10 April 2015 it was struck from the roll for non-compliance with rules of court and because of the applicant or its legal practitioners’ no appearance at court.
After the matter was struck from the roll the applicant without reserving the matter requested the Registrar of this court to allocate the matter to a judge for the judge to manage the matter. The applicants thereafter gave notice that it will apply for order set out in its notice of motion because the respondents were allegedly barred in terms of Rule 54 from filling further pleadings.
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Held that the applicant’s notice of motion was defective because it gave the respondents five days instead of the prescribed fifteen days to indicate their intention to oppose the application and fourteen days instead of twenty one days to file an answering affidavit.
Held further that when the application was struck from the roll on 10 April 2015 the application (i.e. Application No. A 59/2015) was no longer before the court the applicant thus had to take some formal procedural step to bring the matter again before court.
Held furthermore that steps taken by the applicant, to have the matter allocated to a managing judge, were irregular and that the application was still not properly before this court.
Held furthermore that the respondents cannot be in default of the rules of court in respect of a matter which is not before court.
National Cold Storage v Namibia Poultry Industries (Pty) Ltd (A 286/2014) [2014] NAHCMD 40 (03 March 2014).
Summary: During October 2010 Mr. Brink (acting on behalf of applicant) and Mr. White (acting on behalf of respondent) had certain discussions regarding the poultry market in Namibia. A period of approximately twelve months passed by without the parties following up on the discussions or taking any action in respect of the discussions they had during October 2010.
On 14 October 2011, the respondent’s Mr. White send an email correspondence to the applicant’s Mr. Brink to which was attached a letter which sets out the respondent’s intent to engage the applicant with regard to the sale and distribution of the respondent’s frozen products. In the letter of intent the respondent sets out the areas and aspects around which the respondent wished to engage the applicant. And it also attached a draft “non-disclosure agreement” which would form the basis of the negotiations and discussions in respect of the engagement. Pursuant to the letter of intent the parties commenced with negotiations (between October 2011 and December 2011) to enter into a contract.
The negotiations culminated in the respondent sending, during April 2012, to the applicant a draft “Distribution Agreement.” The applicant did not sign the draft agreement which was sent to it, but it made certain changes to the draft agreement and send it back to the respondent. Respondent made further changes and send the draft agreement back to applicant, who kept quiet and did not reply to respondent. The
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parties were, however, doing business with each other. They continued to do business for a period of more than eighteen months (i.e. between September 2012 and June 2014) when the respondent informed applicant that it is withdrawing the offer it made to applicant. Applicant maintained that the offer was tacitly accepted and a binding agreement concluded. Respondent disputes the existence of a tacit agreement. Applicant than instituted these proceedings.
Held, that the Distribution Agreement annexed to the applicant’s affidavit in support of its claim constituted a firm and unequivocal offer by the respondent to the applicant.
Held further that the applicant had an obligation in the circumstances of this matter to communicate its rejection or acceptance of the offer to the respondent. The applicants silence or failure to inform the respondent whether it accepts or rejects the offer amounted to an acceptance of the offer by acquiescence.
Held, furthermore that since the respondent’s only ground for resisting an order of specific performance is the fact the applicant can be compensated with damages, the Court should avoid becoming supine and spineless in dealing with the offending contract breaker, by giving him the benefit of paying damages rather than being compelled to perform that which he had undertaken to perform and which, when he was called upon to perform by summons, and he chose to defy the claim of the plaintiff.
Natural Namibia Meat Producers (Pty) Ltd v Prenn (I 304-2012) [2015] NAHCMD 96 (17 April 2015).
Summary: In this matter the plaintiff commenced action against the defendant by way of simple summons claiming an amount of N$ 32 200 in respect of goods sold and delivered by the plaintiff to the defendant during September 2011 at the special instance and request of the defendant. The defendant entered notice to defend the plaintiff’s claim. After the defendant gave notice that he will defend the action the plaintiff filed its declaration.
The plaintiff alleges that the defendant removed sets of offal and sold it and thereafter repudiated the agreement allegedly because the offal was not fit for the purpose for which he acquired it. The plaintiff accepted the repudiation but held the defendant responsible for the offal removed. The defendant denied having repudiated the agreement and alleges that it is the plaintiff who breached the agreement and thus repudiated it.
From the pleadings and the evidence that was lead at the trial, it emerges that, the issue which is in dispute between the parties is, how many sets of offal the defendant
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took from the container, how many he sold and how many sets of offal he returned to the container. The question thus revolves around how many sets of offal if any the defendant is liable to pay the plaintiff for.
Held that since the defendant did not lead evidence as to how many sets or individual pieces of offal he has removed from the container or how many sets or individual pieces of offal he sold or how many sets or individual pieces of offal he has returned to the container, the court is of the view that the defendant has failed to discharge the duty cast upon him to adduce evidence in order to combat a prima facie case made by the plaintiff.
Ndabeni v Nandu (I 343/2013) [2015] NAHCMD 110 (11 May 2015).
Summary: The plaintiff alleged that he and the defendant entered into an agreement to form a close corporation to do business in the wood industry. The plaintiff, allegedly in pursuance of the oral agreement bought machinery which was used by the defendant and he refused to return same. The defendant denied any oral agreement and testified that he merely stored the machines for the plaintiff and later used same with the plaintiff’s permission. Held an oral agreement was established and that the defendant did not fulfil his part of the bargain and kept the machinery against the plaintiff’s will. He was ordered to pay the amount proved, being the amount paid for the machines and other ancillary costs.
Nepolo v Burgers Equipment and Spares Okahandja CC (I 2352/2012) [2015] NAHCMD 53 (12 March 2015).
Summary: Contract – Breach of contract – Misrepresentation – Plaintiff entered into contract of sale of backhoe loader – Defendant represented that the made-in-China loader was brand new and of high quality and durable – The loader was fit to be operated for some five months only when it had clocked about 1500 operational hours due to persistent and continual overheating of the engine – Court found that no amount of cleaning of the radiator of the loader by the plaintiff and no amount of repairs and replacement of parts and reconditioning of the engine of the loader by the defendant would ex post facto make the loader fit for the purpose or purposes for which a loader of its kind is commonly bought – Court found that the loader had latent defect and was unmerchantable – Court found further that representations made to the plaintiff about the loader being brand new and of high quality and durable were misrepresentations that were material because they went to the root of the contract – Plaintiff was therefore entitled to cancel the contract and sue for restitution.
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New African Methodist Episcopal Church in the Republic of Namibia v Kooper (A 293/2013) [2015] NAHCMD 105 (29 April 2015).
Summary - This is an application for the declaration of the 2nd applicant as the leader of the New AME Church and the expulsion of the respondents from the church was lawful. Held that the court did not have jurisdiction to hear the matter as it involved ecumenical issues falling outside the court’s jurisdiction. Held further that there was insufficient evidence that the proceedings had been properly authorized as there were serious disputes about the 2nd applicant’s authority and power to launch the proceedings. Held further that there were serious disputes of fact which were foreseeable and that the applicants ought not to have brought the matter on motion proceedings in the light of the foreseeable disputes of fact. The application was dismissed with costs.
Purity Manganese (Pty) Ltd v Mineworkers Union of Namibia (I 4026-2014) [2015] NAHCMD 204 (3 September 2015).
Summary: The plaintiffs sued the defendants for damages resulting from alleged defamatory matter having been published. Held that a nexus must be created between the defamatory statements or action alleged and the defendants’ actions. All necessary allegations regarding liability and the relief sought must be pleaded specifically in the particulars of claim. Held that the amende honorable is not part of the law of Namibia but the court may, in deserving cases, in development of the law in accordance with equitable principles rooted in Roman-Dutch law, order an apology. An apology, at best for a truly contrite defendant may result in reduction of damages awarded.
O Behrens and Co (Pty) Ltd v Hora Property Investment One CC (I 545-2014) [2015) NAHCMD 174 (30 July 2015).
Summary: The plaintiff in the matter relied on ostensible authority of Mr Wessel Honiball, a former employee of first defendant to prove its claim – However, the court found that plaintiff failed to prove that Mr Wessel Honiball was indeed authorised by the first defendant to entertain an agreement with plaintiff. Practice – Court awarded wasted costs to plaintiff after defendants applied for absolution from the instance after the close of plaintiff’s case – which application was later abandoned – Court held that plaintiff was entitled to such wasted costs as a result of such hastily application.
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Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I 2359-2014) [2015] NAHCMD 152 (26 June 2015).
Summary: The defendant launched a counterclaim against the plaintiff for payment of damages arising out of an alleged breach of a contract. At the hearing of the exception, the defendant applied for the matter to be struck out for failure to comply with the provisions of rule 32 (9) and (10). Held that in terms of the evidence, the parties did attempt to settle the matter amicably out of court but merely neglected to file evidence of such attempts with the registrar. The court held that substantial compliance had been proved and the application to strike the matter off the roll was refused. EXCEPTION – Held that an excipient may object to an amendment on the basis that the proposed amendment is excepiable. Held further that the pleadings in respect of the plaintiff’s counterclaim did not set out material facts to enable the plaintiff to know the case it has to meet. Held further that the defendant’s claim for damages was not drafted in a manner that will enable the plaintiff to reasonably assess the nature and the quantum thereof. Exception upheld with costs and the defendant granted leave to amend the counterclaim.
Rall v Professional Provident Society Insurance Company (Namibia) Ltd (I 1153-2015) [2015] NAHCMD 209 (9 September 2015).
Summary: Plaintiff sued the defendant for some N$3.2 million representing interest payments due and payable to the defendant in respect of certain long-term insurance benefits that were owed to and eventually paid by the defendant to the plaintiff. This included a claim for capital and interest outstanding in respect of certain accident benefits which the defendant also accepted were payable to the plaintiff. Defendant made an offer to pay a certain amount before proceedings were instituted in full and final settlement of plaintiff’s claim. Defendant also made a tender in the opposing affidavit for an amount of N$1,532,600.18. The plaintiff indicated in its heads of argument (filed in terms of Rule 71(5)) that it would only take judgment in the amount of N$1,532,600.18 as tendered, and apply for summary judgment in the amount of N$83,714.75. The court found (applying the legal principles distinguishing a tender from an offer of compromise) the offer in full and final settlement was not an unconditional settlement but an offer of compromise. Apart from the letter being without prejudice, it was apparent that the plaintiff would have had to accept the amount “offered” when it was clear that the plaintiff still had a portion on which he would sue. Summary judgment was refused in the amount of N$83,714.75 although the defendant was sparse in the issue in its papers because it could not be said that there was no doubt that the defendant had an unanswerable case.
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Scania Finance Southern Africa (Pty) Ltd v XXX Trucking CC (I 2166-2014) [2015] NAHCMD 173 (30 July 2015).
Summary: Practice – Exceptions – Exception taken on the basis that parts of the plea disclose no cause of action and, alternatively, that parts of the plea are vague and embarrassing – Court held that exception cannot be taken where defendant’s interpretation of a provision of a legal instrument differs from that of the plaintiff – Exception may be taken where defect in a pleading appears ex facie the pleading – Pleading is vague if it is either meaningless or capable of more than one meaning – And pleading is embarrassing where it cannot be gathered from it what ground is relied on in the claim or defence – Court held further that exception that pleading is vague and embarrassing strikes at the formulation of the cause of action or defence and not its legal validity – Court found that the interpretation and application of certain provisions of the contract relied on in the plea differ from those put on these provisions by the plaintiff – Court concluded that the plea, put forward on the basis of that interpretation, is not excipiable – Court found further that the formulation of parts of the plea in question was neither meaningless nor capable of more than one meaning and therefore are not vague or embarrassing – Court concluded that in deciding the exception court did not concern itself with the legal validity of what is pleaded but with the formulation of the defence – Consequently, court dismissed some of the exceptions with costs.
Schiffer v Schiffer (I 2985/2013) [2015] NAHCMD 93 (22 April 2015)
Summary: This case concerns divorce proceedings instituted by the plaintiff against the defendant based on allegations of malicious desertion. The husband has entered a notice of intention to defend the action and in return also claimed an order for restitution of conjugal rights and failing compliance therewith, a decree of divorce also on the basis of malicious desertion.
On the evidence before court it is clear that the plaintiff, during August 2013 moved out of the common house. It further emerged that the plaintiff and the defendant have not lived as husband and wife since August 2013 to the date of trial.
Held that the plaintiff has proven on a balance of probabilities that the conduct of the defendant made cohabitation intolerable, thus entitling her to an order of restitution of conjugal rights.
Held furthermore that allegations in the defendant‘s pleadings and the evidence led at the trial do not in the view of this court, in law entitle the defendant to a specific
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forfeiture order, as it is in the instant case that the defendant who maliciously deserted the plaintiff.
Held furthermore that the plaintiff is in need of maintenance and this court is satisfied that the defendant is in the position to maintain the plaintiff.
Seneviratne v The President of the Republic of Namibia (A 49/2013) [2015] NAHCMD 14 (5 February 2015)
Summary: Applications and motions – Application for declaratory order – Question to be answered by court is whether the applicant was recruited from his home country of New Zealand for the post of Special Adviser to the Director General of the National Planning Commission – Applicant was ordinarily resident in Namibia and employed as Special Assistant to the Director General of the National Planning Commission – While so employed and so ordinarily resident in Namibia the applicant left Namibia temporarily on sick leave and vacation leave – He was expected to return to Namibia and to his employment – While on sick leave and vacation leave the President appointed applicant to the post of Special Adviser to the Director General of the National Planning Commission – Applicant’s letter of appointment is addressed to the applicant at the National Planning Commission, Windhoek – On the papers court held that applicant was locally recruited – Court concluded that applicant has, therefore, not established a right which may be protected by declaratory order – Consequently the application was dismissed with costs.
Shambo v Amukugo (I 3744-2014) [2015] NAHCMD 244 (9 October 2015).
Summary: The plaintiff sued the defendant for N$ 75 000 allegedly given to the defendant following an alleged misrepresentation made by the latter to the former that the latter was properly authorized by the Ondangwa Town Council to sell land to members of the public. This misrepresentation induced the plaintiff to pay over the sum claimed to the defendant, which the latter despite demand failed to pay back. Held that a summons issued in the Magistrate’s Court did not interrupt prescription because the amount claimed and the cause of action as well as the dates of the relevant transactions did not have any bearing on the present action. Held that prescription was interrupted by acknowledgement of liability but the period when prescription started running afresh showed that the claim was prescribed. Held further that the fraud alleged in the instant case constituted a single choate transaction and that the argument relating to continuous wrong did not apply to the case at hand. The special plea of prescription upheld with costs.
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Sheefeni v The Council of the Municipality of Windhoek (I 2473-2013) [2015] NAHCMD 172 (30 July 2015)
Summary: Delict – Specific forms – Wrongful arrest and detention and assault – Court held that arrest not cognitive but process of action – Arrest and detention governed by s 39 of the Criminal Procedure Act 51 of 1977 in order to make arrest lawful – Court held that the requirements in ss (1), (2) and (3) of s 39 must all be satisfied in order to make arrest lawful – Arrest and detention that are not in conformity with s 39(1), (2) and (3) of Act 51 of 1977 constitute wrongful arrest and detention and therefore unlawful – Assault that is not reasonably necessary to effect an arrest goes beyond the pale allowable by s 49(1) of Act 51 of 1977 and is accordingly unlawful – Plaintiff sued defendant for assault and unlawful arrest and detention – Defendant’s police officials sought to arrest plaintiff for traffic violation – Plaintiff did not submit to custody necessitating a police official forcibly pulling plaintiff, a taxi driver, from the taxi he was driving – Court found that that act did not constitute assault because it was reasonably necessary as the plaintiff was resisting being arrested – Court found that the police officials should have arrested him then – Pushing plaintiff’s head against the curb of the street in question was therefore not reasonably necessary within the meaning of s 49(1) of Act 51 of 1977 and therefore amounting to assault – Court accordingly found for plaintiff with costs in his claims for assault and unlawful arrest and detention.
Sinalumbu v Lewin (A 321/2015) [2015] NAHCMD 277 (18 November 2015).
Summary: Applications and motions – Urgency – Requirements for prescribed by rule 73(4) of the rules of court – Applicant must set out explicitly the circumstances relating to urgency and reasons why applicant claims he or she could not be afforded substantial redress in due course – And applicant must make out a case for urgency in founding affidavit – Court found that the applicant failed to satisfy the requirements for urgency prescribed by rule 73(4) of the rules – Consequently, application refused and struck from the roll on the basis that the requirements in rule 73(4) have not been met.
South African Poultry Associations v The Ministry of Trade and Industry (A 94-2014) [2015] NAHCMD 256 (28 October 2015)
Summary: This is an application brought in terms of rule 70 (1) and (3) read with rule 28 (1) for discovery of certain documents, which, according to the applicants are relevant to the review application and to enable the applicants to properly respond to the issues raised by third respondent in its answering affidavit.
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The request for discovery was declined by third respondent’s legal practitioners. The decline prompted the applicants to launch the application for discovery of the documents identified in the application. The applicants’ grounds on which they based their request for discovery were that: the documents requested would enable the applicants to consider the averments of the third respondent meaningfully; the applicants requested specific documents sourced in particular paragraphs in third respondent’s answering affidavit; the application for discovery is informed by the rule of law embodied in the Namibian Constitution and their right to a fair trial in terms of Article 12 of the Namibian Constitution. Third respondent opposed the application and in their answering affidavit, it indicated the reasons for opposition that, the documents requested
Held that, for this court to order the third respondent to discover the documents sought by the applicants, the applicants must in their application demonstrate some sensible or logical connection between the documents sought to be discovered and the Government’s decision making process.
Held further that, the test whether or not the documents which the applicants want the third respondent to discover are relevant to the dispute as to whether the decision by the Government is legal and lawful or not is, in the circumstances, of this matter not dependent on what the third respondent may have said or not said in its answering affidavit.
Held further that, the test for relevance is the connection or relation between the documents requested by the applicants and the Government’s decision making process
Standard Bank Namibia Limited v Gertze (I 3614-2013) [2015] NAHCMD 144 (18 June 2015).
Summary: Applications and motions – Defendant failing to comply with order of court to file amended plea to particulars of claim in an action within a time limit – Defendant rather launching an application – Court found that applicant failed to comply with court order was accordingly barred – Court held that the principle in Christian v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008 (2) NR 753 (SC) about pleadings filed by lay persons representing themselves not to be taken too far to cover situations where a rule of court or an order of the court has not been complied with at all – Relying on Kalenga Iyambo v S Case No. CA 165/2008 (Unreported) court held that lay litigants representing themselves are just as much under an obligation as those
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represented by counsel to comply with orders of court – Defendant gave no explanation satisfactory to the court for failure to comply with the court order which he acquiesced in and which he informed the court he understood – Invoking the rules of court respecting consequences following upon non-compliance with the rules or orders of court, defendant’s application was dismissed with costs.
Standic BV v Kessels (A 289-2012) [2015] NAHCMD 197 (24 August 2015).
Summary: The respondent filed an application to have a default judgment granted against it rescinded. The applicant opposed the application for condonation but failed to timeously file an opposing affidavit. Applicant accordingly applied for the condonation of the late filling of the opposing affidavit.
Held, that the courts normally were inclined to grant applications for removal of bar where: (a) a reasonable explanation for applicant's delay was forthcoming; (b) the application for condonation was bona fide; (c) it appeared that there had not been a reckless or intentional disregard of the Rules of Court; (d) the applicant's cause was not obviously without foundation; and (e) the other party was not prejudiced to an extent which could not be rectified by an appropriate order as to costs.
Held, further, that it has also been said that lack of diligence on the part of the applicant or his attorney, even if gross was not necessarily a bar to relief in condonation applications; on the other hand where the delay was longer and the lack of diligence was gross whether by the applicant or by his attorney the courts were entitled to take a more serious view of the matter.
Held further that the applicant has failed to explain why the notice to oppose the rescission application was filed late. The court did not find any acceptable explanation, (in the sense of being explanation being satisfactory) or reasonable explanation for the failure to timeously file the opposing affidavit. The court further found that apart from the failure to explain all the above issues the supporting affidavit is silent on the prospects of success in opposing the rescission application.
The Inspector General of the Namibian Police v Dausab-Tjiueza (A 191/2014 [2015] NAHCMD 25 (29 January 2015)
Summary: The respondent is employed by the Namibian Police and holds the rank of Sergeant Class I. On 25 April 2014, the Inspector General of the Namibian Police took a decision to transfer the respondent from the Drug Law Enforcement Unit at Gobabis to
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Corridor 13 Police Station. The respondent was aggrieved by that decision and on 29 July 2014, the respondent commenced proceedings (under Rule 65 of the rules of Court) seeking an order reviewing and correcting or setting aside the decision to transfer her.
On 26 September 2014, this Court granted an order (in the absence of the Inspector General of the Namibian Police and the Minister of Safety and Security) setting aside the transfer. The Inspector General of the Namibian Police and the Minister of Safety and Security (the applicants) then launched these proceedings seeking the rescission of the Order granted by this Court on 26 September 2014.
Held, that when a person seeks to bring under review the decision or proceedings of an inferior court, a tribunal, an administrative body or administrative official that application must, as general rule, be brought under Rule 76, because Rule 76 is the rule which is designed to regulate proceedings where a decision of an inferior court, a tribunal, an administrative body or administrative official is challenged.
Held further, that in the present matter the procedural route prescribed under Rule 76 would not have resulted in a fruitless exercise and wastage of time and money and that in the circumstances of this matter the application, to review the decision of the Inspector General of the Namibian Police to transfer the respondent should have been launched under Rule 76 and should have called upon the Inspector General of the Namibian Police to show cause why the impugned decision should not be reviewed and corrected or set aside and should also have called upon the Inspector General of the Namibian Police to file with the Registrar the original record of the proceedings sought to be corrected or set aside together with reasons for the decision.
Held further that the procedure adopted by the respondent to bring, under Rule 65, the application to review and correct or set aside the Inspector General of the Namibian Police’s decision to transfer the respondent is irregular.
Held furthermore, that the order of 26 September 2014 was made in the absence of the applicants.
The Prosecutor General v Hategekimana (POCA 5-2014) [2015] NAHCMD 238 (8 October 2015).
Summary: Applications and motions – In terms of Prevention of Organized Crime Act 29 of 2004, s 61(1) – Forfeiture of property – In determination of application for an order of forfeiture of property the following constituent elements of the interpretation and
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application of s 61(1) of the Act are crucial: (a) The property which is presently subject to a preservation of property order granted by this Honourable Court under case number POCA 5/2014 on 16 May 2014, namely the Nissan Hardbody with Engine Number KA2401878639X and Vin Number ADNJ260000E015363 (‘the property’), be forfeited to the State in terms of section 61, read with section 64, of the Prevention of Organized Crime Act, Act 29 of 2004 (‘POCA’), (b) That Sergeant Emilia Nambadi, in whose control the property is in terms of the preservation of property order, is authorized to: (i) sell the property at a public auction for a value not less than the current market value; and (ii) pay the proceeds of the sale into the Asset Recovery Account, Ministry of Justice – POCA, Standard Bank Account Number 589 245 309, branch code 08237200, (c) That any person, other than the respondent and Corporate Development Consortium (CDC), whose interest in the properties concerned is affected by the forfeiture order, may within 20 days after he or she has acquired knowledge of such order, set the matter down for variation or rescission of this order by the Court, (d) Prayers (a) to (c) shall not take effect before the expiration of 30 days after the notice of this order was published in the Government Gazette or before an application in terms of section 65 of Act 29 of 2004 or an appeal has been disposed of. – In instant case, court found that certain payments to respondent’s youth organization were made through corruption of named officials of the Ministry of Youth and payments obtained fraudulently by the respondent – Court found that respondent failed to prove to the satisfaction of the court that respondent’s organization provided training in favour of the Ministry and supplied certain equipment to the Ministry – Respondent paid cash for a motor vehicle (the property to be forfeited) it purchased with part of moneys that were paid through such corruption and moneys obtained fraudulently – At all material times no moneys had been paid to the organization’s bank account except those moneys that were paid by the Ministry to the organization – Court was satisfied that applicant has established that the motor vehicle (the property) was purchased with proceeds begotten by those unlawful activities – Court concluded that applicant has satisfied the relevant requirements of s 61(1) of the Act – Consequently, court granted the application for forfeiture of the property.
Tjamuaha v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015)
Summary: Applicants and second respondent are the two surviving sons and widow respectively of the deceased. Second respondent was married to the deceased in community of property. The deceased purported via testamentary trust to bequeath the entire joint estate comprising in a farm to his administrator in trust, which he was not entitled to do, The administrator was given the obligation to manage the Trust and to pay the income from the farming activities to the second respondent until she died, thereafter to the applicants until they died, thereafter the capital and accumulated
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income to the descendants of the applicants, failing which the nephew of the testator. Subsequent to the deceased’s death the second respondent signed a redistribution agreement in terms of which she relinquished her half share in the joint estate to the administrator in trust, subject to the conditions set out in the deceased’s will. Second respondent moved to the farm where she had been farming on an uninterrupted and commercial basis since 1990. The administrator did not manage the farm or fulfil any of the requirements and obligations imposed, and summarily resigned in 2007. The applicants discovered that the second respondent registered a mortgage bond over the farm in 2010. Applicants applied to be appointed as administrators of the Trust by virtue of the provisions of the redistribution agreement. Second respondent in a counter application applied to set the redistribution agreement aside and claim her half share in the farm on the grounds that there was no consensus ad idem when the redistribution agreement was signed. It was represented to her that she was only signing documents in relation to her husband’s estate, it was never explained to her that she was entitled to half of the joint estate, or that she could obtain a division of the estate.
With regard to the plea of prescription raised by the applicants, the court approved the principles in ABSA v Keet 1 that a vindicatory claim is not a debt for purposes of section 10 of the Prescription Act, No 68 of 1969. It accordingly does not prescribe in 3 years, but in 30 years. Applying the Plascon-Evans rule, the court found that the facts in support of the allegations by the second respondent of lack of consensus ad idem could not meaningfully be gainsaid by the applicants. The administrator, though served with papers, chose not to place any facts on record to dispute them. In the result the application was granted. The court set aside the redistribution agreement and directed the Master to appoint an executor to administer the will. The court further directed that an independent administrator be nominated by the President of the Law Society of Namibia to manage and administer the deceased’s portion of his estate via the testamentary trust.
Tjipepa v Minister of Safety and Security (I 271-2013) [2014] NAHCMD 193 (7 August 2015).
Summary: The plaintiff who is a peasant farmer living in a village known as Okatjuru in the Kunene Region of Namibia instituted action against the Minister of Safety and Security, the Inspector General of the Namibian Police, Sergeant Rukumbiruavi Keimune and Constable Tjindjuau Kangombe (who by the time the trial commenced was deceased) alleging that he was unlawfully, alternatively maliciously arrested without a warrant, he was unlawfully, alternatively maliciously detained for two days (i.e. 6-8 1 2015(4) SA 474 SCA
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April 2011) and that he suffered physical assaults and other breaches of his constitutional rights, such as the right to be brought before a court within 48 hours of his arrest, at the hands of the third and fourth defendants and other members of the Namibian Police Force acting within the scope and course of their employment.
Held that wrongful deprivation of liberty means that a person is deprived of his or her physical liberty without legal justification. To succeed in an action based on wrongful deprivation of liberty the plaintiff must allege and prove that the defendant himself or a person acting as his agent or servant deprived him of his liberty.
Held that section 40(1)(a)&(b) of the Criminal Procedure Act, 1977 provides for the arrest without warrant of a person who commits or, attempts to commit any offence in the presence peace officer or who is suspected (the suspicion must be based on reasonable grounds) of having committed an offence referred to in Schedule 1 of that Act.
Held that the arrest of the plaintiff fell squarely within the ambit of s 40(1) (b) of the Criminal Procedure Act, 1977 and s 9 read with s 2 of the Stock Theft Act, 1990. In the light of the finding that the arrest of the plaintiff was lawful the court found that the seizure of the cattle by the Police officers was lawful.
Held furthermore that in order to succeed with a claim for malicious arrest, the plaintiff had to allege and prove that the defendants (acting in person or through their agents or servants) instigated the deprivation of liberty, that the instigation was without a reasonable and probable cause; and that the defendants acted with ‘malice’ (or animo injuriandi).
Held furthermore that the plaintiff failed to make the requisites allegations in respect of the claim for malicious arrest and also failed to prove that the defendants were actuated by malice when they deprived him of his liberty. The plaintiff also failed to establish a lack of real and probable cause and the existence of animus injuriandi on the part of the defendants.
Held furthermore that the third and fourth defendants did not assault the plaintiff.
Tjiriange v Kambazembi (A 164-2015) [2015] NAHCMD 185 (10 August 2015).
Summary: The applicant applied for urgent interim relief interdicting the respondents from preventing the applicant’s livestock from grazing in the commonage of a communal area pending finalisation of a review application launched in the normal course. The
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applicant failed to adequately explain in his founding affidavit the circumstances which render the matter urgent and the reasons why he could not be afforded substantial redress in due course. Application struck from the Roll. Principles relating to urgent applications restated.
Tona Trade Holdings CC v Mvula Properties CC (I 164-2014) [2015] NAHCNLD 41(12 August 2015).
Summary: Application for rescission of a default judgment. Application was out of time of by 20 days. Evidence showed that his legal practitioner and a correspondent miscommunicated. Applicant’s legal practitioner was further delayed when he was awaiting a transcript of proceedings. Parties had a dispute before summons were issued and had indulged each other before regarding completion time of project. Explanation for the delay was reasonable and applicant had a prima facie defence. Application granted and applicant ordered to pay the costs of the application.
Town Council of Rundu v Dinyando (A 417-2013) [2015] NAHCMD 237 (8 October 2015).
Summary: Estoppel – By conduct – Operation of estoppel – Applicant launched application to evict respondents from land applicant contends respondents occupy unlawfully – Respondents’ response is that after the land had been allocated to them by the Land Development Committee (which was related to the applicant) they applied to the applicant for water connections, to the land, which they obtained and paid a fee for – On that basis respondents aver that applicant is estopped from denying that respondents occupy the land lawfully – Court found that no proof has been placed before the court establishing that the Land Development Committee allocated the land to the respondents – Court accepted applicant’s averment that persons who paraded themselves as members of the Committee (including 12 th respondent) were not members of the committee at the material time – Court found further that the traditional headwoman who allegedly allocated the land to fourth respondent did not have power to give land which is within the jurisdiction, and under the control, of a local authority council to another person in virtue of the Local Authorities Act 23 of 1992 – Court found further that applicant’s policy on water connections does not cater for land without erf/plot numbers, like the land in question, and so the water connections relied on to found estoppel was illegal – Court concluded that the doctrine of estoppel is not available to the respondents because estoppel cannot be used to make legal what otherwise would be illegal – Consequently, court concluded that estoppel was not
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available to the respondents because it cannot apply to the facts of this case – Consequently, court granted the application.
Usakos Town Council v Jantze (A 222-2015) NAHCMD 225 (16 September 2015)
Summary: The applicant brought an urgent application to the High Court, sitting as such, to declare the notice of attachment of applicant’s property to be null and void and of no force and effect in law, alternatively setting it aside; and –an order interdicting the respondents from selling the property of the applicant by public auction on 28 August 2015.
The arbitrator in an arbitration award, granted on 29 December 2012, ordered the applicant to pay N$ 401 360.60 to the first respondent. On 7 February 2013, applicant filed a notice of appeal against the arbitration award, but failed to prosecute the appeal. On 24 April 2015, the arbitration award was made an order of the Labour Court under Case no LC 69/2015. On 27 April 2015, applicant and his legal representative was duly notified of the Labour Court order. On 29 July 2015, a writ of execution was issued against applicant and it’s movables were attached and a sale in execution thereof was arranged for 28 August 2015. Applicant approached the High Court, sitting as such, on the 22 August 2015 on an urgent basis to declare the notice of attachment of the applicant’s property to be null and void ; and an order interdicting the respondents from selling applicant’s property by public auction.
Held that the High Court sitting as such, does not have jurisdiction to adjudicate a matter in respect of s 117(1)(i) of the Labour Act, 2007 which confers exclusive jurisdiction to the Labour Court.
Held further that applicant’s urgency was self created, therefore the Court declined to condone applicant’s non-compliance with the Rules of Court to hear this application as one of urgency.
Held furthermore that applicant has attempted to throw whatever obstacle it could lay its hand onto, to frustrate the first respondent’s claim. It left the Court with the indefinable feeling that something is ‘amiss’. Court therefore deems it just and equitable that first respondent should not be out of pocket. Court grants a cost order in favor of first respondent on an attorney/client scale.
Von Wielligh v Shaumbwako (I 2499/2014) [2015] NAHCMD 168 (22 July 2015).
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Summary: In this action the plaintiff claims damages in the sum of N$76 850 from both the first and second defendants while the second defendant counter-claims for damages in the sum of N$ 27 293, 04. Both claims are in respect of damages occasioned to each party's motor vehicle in a road collision that occurred on 07 October 2011 in Beethoven Street, Windhoek West, Windhoek.
In essence the plaintiff alleges that the first defendant was the sole cause of the collision. The defendants deny that they were negligent in any of the respects alleged or at all and further deny that they were the sole cause of the collision. The defendants alleged that the sole cause of the collision was the negligent driving of the plaintiff.
At the commencement of the trial the parties had agreed that the only issue for determination was whether the cause of the collision was the negligent driving of the first defendant or the negligent driving of the plaintiff. The evidence demonstrates that the two versions of the protagonists are mutually destructive.
Held that where the two versions of the litigants are mutually destructive the approach which the court may follow is to start from the undisputed facts which both sides accept. Add to them such other facts as seem very likely to be true, as for example, those recorded in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. A witness is then judged to be unreliable, if his or her evidence is, in any serious respect, inconsistent with those undisputed or indisputable facts, or of course if he or she contradicts himself or herself on important points.
Held further that, where a party alleges negligence on the part of the other, that party must prove what it alleges. The court was satisfied that the plaintiff has failed to discharge that onus resting on her and the court accordingly found on the facts that the accident happened when the first defendant was about to turn left into the parking area in front of the college.
Held furthermore that a driver of a motor vehicle who intends to turn out of his or her path of travel, whether to the left or to the right, must look back into to his or her rear view mirrors to establish whether there are other vehicles behind him and what the position of those vehicles is. He must thereafter give sufficient and reasonable warning to the vehicles behind him and in front of him that he intends to turn left out of his or her path of travelling and he must only execute that manoeuvre to turn left when it is opportune and safe to do so. The court was satisfied that, in this matter, the first defendant was entitled to conclude that it was an opportune and safe moment to execute the signaled turn.
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Workers Advice Centre v Conradie (I 4388-2013) [2015] NAHCMD 229 (24 August 2015).
Summary: Plaintiffs and defendant were set for trial. On the trial date, plaintiffs failed to attend court and filed what they purported to be a notice of postponement which was signed by a Mr. Josob, a non-litigant and non-legal practitioner. The said notice of postponement was an invalid notice and as such plaintiffs were in default. Defendant was entitled to an absolution from the instance due to plaintiffs’ default.
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![Conrad v Dohrmann - ejustice.moj.naejustice.moj.na/High Court/Judgments/Civil/Conrad v Dohrmann (I... · Web view[113]At p. 39, the learned author proceeds and states that, ‘Even](https://static.documents.pub/doc/80x56/5bfca1cf09d3f2740f8b9c19/conrad-v-dohrmann-courtjudgmentscivilconrad-v-dohrmann-i-web-view113at.jpg)
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