CIVIL INDEX TO HIGH COURT JUDGMENTS DELIVERED DURING 2013
UNREPORTED HIGH
COURT CIVIL
JUDGMENT INDEX
2015
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COMPILED BY: MS. LOTTA AMBUNDA
JUDICIAL RESEARCH ASSISTANT
DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT
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 JUDGEPRESIDENT 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 24832013) [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 1692015) [2015] NAHCMD 201 (7 August 2015). .................................................................................. 80
Namsov Fishing Enterprise (Pty) Ltd v Ministry of Fisheries and Marine Resources (A 592015) [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
has arisen to grant an order of absolution form the instance. Mokomele v Katjiteo (I
3148-2013) [2015] NAHCMD 153 (26 June 2015).
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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 662015) [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
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
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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
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).
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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
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
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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
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
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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).
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
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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 noncompliance 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
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).
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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
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.
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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
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),
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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
an appeal has been disposed of. The Prosecutor General v Hategekimana (POCA 52014) [2015] NAHCMD 238 (8 October 2015).
CASE MANAGEMENT RULES
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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 –
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).
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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 2 nd 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
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).
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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
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
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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 noncompliance 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
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);
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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
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
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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
circumstances. National Cold Storage v Namibia Poultry Industries (Pty) Ltd (A
286/2014) [2014] NAHCMD 40 (03 March 2014).
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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
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
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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).
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
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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 092015) [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.
Hoveka v Minister of Regional and Local Housing and Rural Development (A 356/2013)
[2015] NAHCMD 63 (10 February 2015).
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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
preferred against them which could lead to their dismissal, allowing them to prepare
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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
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
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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 nonexistent 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
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
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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)
FAMILY LAW
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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 072014) [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
are concerned they are part of the pleadings in support of the allegation that the
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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
aware of the irregularity, provided that if that party has taken any further step in the
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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).
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 –
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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 (I15752015)[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
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carry out 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, 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 rearview 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 24732013) [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
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deprivation of liberty, that the instigation was without a reasonable and probable cause;
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 crossexamined 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 3142011) [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 19682014) [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
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period omitted from the award – Application to extend the period dismissed since the
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)
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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
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 –
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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. 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
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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).
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 24832013) [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
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
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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
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
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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
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
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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
with such power such has a direct and substantial interest in the outcome of this
application.
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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
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
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‘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 1st 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).
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
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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).
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
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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
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.
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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.
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
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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
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
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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
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
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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.
Kameya v The Chief of the Namibian Defence Force (A 66-2015) [2015] NAHCMD 92
(16 April 2015).
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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).
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 –
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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
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
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(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
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
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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
respondent’s possession of the property was sufficiently stable and durable to constitute
‘peaceful and undisturbed possession’ of the property.
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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 nonjoinder 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
that existed when the costs order was made – Court concluded therefore that applicant
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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
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prove it – Court found further that plaintiff failed to lead admissible evidence that
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
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and the defendants – Plaintiff led admissible evidence on defendants’ fraudulent
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)
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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.
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.
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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.
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.
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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
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 1692015) [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
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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
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.
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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.
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.
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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
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
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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
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
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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.
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
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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.
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.
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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
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
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to continuous wrong did not apply to the case at hand. The special plea of prescription
upheld with costs.
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
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relevant to the review application and to enable the applicants to properly respond to
the issues raised by third respondent in its answering affidavit.
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
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– 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 – 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)
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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
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).
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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
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
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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
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 Keet1 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
1
2015(4) SA 474 SCA
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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
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).
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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
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 12th 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
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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
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.
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Von Wielligh v Shaumbwako (I 2499/2014) [2015] NAHCMD 168 (22 July 2015).
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
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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.
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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