2019 march-april term roll and case summaries court/courtrolls/court rolls/2019 ma… · web...

CJ = Chief JusticeDCJ = Deputy Chief JusticeJA = Judge of AppealAJA = Acting Judge of AppealJP = Judge-PresidentJ = Judge of the High CourtAJ = Acting Judge of the High Court

SUPREME COURT 2019 FIRST TERM ROLL

4 MARCH 2019 – 15 APRIL 2019

B COURT

SET DOWN DATE

ACRONYMCASE NO

YEAR CASE NAME COURT A QUO JUDGE 1 JUDGE 2 JUDGE 3

4-Mar-19 SA 33 2018DIRECTOR-GENERAL OF THE NAMIBIAN CENTRAL INTELLIGENCE SERVICE AND ANOTHER v HAUFIKU: MATHIAS AND 2 OTHERS

GEIER J DAMASEB DCJ MAINGA JA SMUTS JA

6-Mar-19 SA 2 2018 S v STEWE: WILLIE AND 3 OTHERS SIBOLEKA J et

USIKU J DAMASEB DCJ MAINGA JA FRANK AJA

7-Mar-19 SA37 &

582017

CHRISTIAN CONGREGATION OF JEHOVAH'S WITNESS OF NAMIBIA INC. v SOCIAL SECURITY COMMISSION

UNENGU AJ DAMASEB DCJ MAINGA JA SMUTS JA

11-Mar-19 SA 36 2016HENDRIK CHRISTIAN t/a HOPE FINANCIAL SERVICES v NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY (Re-enrolment)

GEIER J CHOMBA AJAMOKGORO

AJANKABINDE

AJA

13-Mar-19 SA 36 2017 THE STATE v GARISEB: STEPHANUS HENDRICK RUBA SHIVUTE J MAINGA JA SMUTS JA CHOMBA AJA

15-Mar-19 SA 73 2017 PROSECUTOR-GENERAL v PAULO: ALEXES AND ANOTHER ANGULA DJP HOFF JA MOKGORO

AJANKABINDE

AJA

18-Mar-19 SA 60 2017PAMO TRADING ENTERPRISES CLOSE CORPORATION AND ANOTHER v CHAIRPERSON OF THE TENDER BOARD OF NAMIBIA

UEITELE J SMUTS JAMOKGORO

AJANKABINDE

AJA

19-Mar-19 SA 11 2017 RADIAL TRUSS INDUSTRIES (PTY) LTD v ACQUATAN (PTY) LTD MASUKU J SHIVUTE CJ SMUTS JANKABINDE

AJA

25-Mar-19 SA 10 2017 PROSECUTOR - GENERAL v JACO MARIUS KENNEDY ANGULA DJP DAMASEB DCJ HOFF JA FRANK AJA

(Application for condonation and reinstatement)

27-Mar-19 SA 39 2017GOVERNMENT OF THE REPUBLIC OF NAMIBIA v NDJEBO: THOMAS INGHANGWE

OOSTHUIZEN J SHIVUTE CJ MAINGA JA HOFF JA

29-Mar-19 SA 62 2017PROSECUTOR-GENERAL v KAMUNGUMA: MOSES PASANA UAJANDA AND ANOTHER

UEITELE J SHIVUTE CJ HOFF JA FRANK AJA

01-Apr-19 SA 17 2017ZILLION INVESTMENT HOLDING (PTY) LTD v SALZ-GOSSOW (PTY) LTD

ANGULA DJP SMUTS JA HOFF JA FRANK AJA

03-Apr-19 SA 33 2017PERMANENT SECRETARY OF THE NATIONAL PLANNING COMMISSION AND ANOTHER v REHOBOTH PROPERTIES CC

ANGULA DJP SHIVUTE CJ HOFF JA FRANK AJA

08-Apr-19 SA 71 2017 S v NARIMAB: FRANSISCUS DIMITRI USIKU J MAINGA JA SMUTS JA HOFF JA

10-Apr-19 SA 29 2017STANDARD BANK NAMIBIA LIMITED v KARIBIB CONSTRUCTION AND 3 OTHERS

UEITELE J MAINGA JA HOFF JA FRANK AJA

12-Apr-19SA 16 2017

ARANGIES: RAINIER v NEVES: JORGE MAUEL BATISTA AND 2 OTHERS (Matter was postponed on 25 October 2018)

MILLER AJ MAINGA JA SMUTS JA ANGULA AJA

15-Apr-19 SCR 3 2018 STATE v WERNER SHEETEKELA AND 2 OTHERS USIKU J SHIVUTE CJ HOFF JA FRANK AJA

CASE SUMMARIES FOR THE APPEALS ON THE FIRST TERM ROLL OF 2019

1. CASE INFORMATION:

SUPREME COURT CASE NO.: SA 33 / 2018

CASE PARTICULARS: DIRECTOR GENERAL OF THE NAMIBIAN CENTRAL INTELLIGENCE SERVICE & ANOTHER v MATHIAS HAUFIKU & 2 OTHERS

PARTIES:

APPELLANT: THE GOVERNMENT ATTORNEY

RESPONDENT: TJOMBE-ELAGO INC.

CORAM: DAMASEB DCJ, MAINGA JA et SMUTS JA

HEARING DATE: 4 MARCH 2019 @ 10H00, B COURT

CASE SUMMARY

IssuesWhether the court a quo erred in finding that the appellants failed to establish the second requirement of an interdict, being that of the injury actually committed or reasonably apprehended.

FactsThis appeal concerns an application brought on an urgent basis by the appellants in the court a quo, seeking a relief interdicting the third respondent from publishing a newspaper article, intended on exposing the alleged corrupt private use by former members of the service and their families of two commercial farms worth N$ 57 million and a house in Windhoek-West worth N$ 8.2 million allegedly purchased by the Namibia Central Intelligence Services (“NCIS”). The appellants’ case was essentially based on certain provisions of the NCIS Act 10 of 1997 and the Protection of Information Act 84 of 1982. The powers of the NCIS and its Director are founded in Section 16 of the NCIS Act, these include the duty as far as reasonably practical to take steps to ensure that national security, intelligence, intelligence collection methods, sources of information and the identity of staff are protected from unauthorized disclosure. Section 4 of the Protection of Information Act, prohibits the possession, control or disclosure of security matter and non-compliance of this section makes it a criminal offence. The appellants relied on these provisions as the

Director pointed out that he had not authorized the possession of the information which was in the respondents’ possession. The respondents in their defense relied on Article 21 (1) (a) of the Namibian Constitution which guaranteed them freedom of speech and expression, including freedom of the press and other media. However, the appellants were in essence seeking the limitation of the respondents’ fundamental rights and bore the onus to justify this limitation in terms of Article 21 (2). The court a quo had to consider and weigh the appellants’ rights against that of the respondents and in its decision it found that, the appellants had not discharged their onus to justify the limitation they were seeking and further held that, the appellants misconstrued and misunderstood section 4 of the Protection of Information Act and therefore cannot rely on it.During the proceedings, the question arose whether or not statutory provisions could be used to cover up potentially illegal corrupt activities, the court found that it could not and on these considerations, the court a quo exercised limited discretion against the appellants. The court further held that, the actions of the NCIS are subject to judicial oversight as it operates in the context of a democratic state founded on the rule of law which rule subjects all public officials and all those exercising public functions. The agency is established to serve the state and thus remains accountable to the judiciary.In conclusion, the court a quo refused to grant the sought interdict in favour of the appellants and upheld the respondents rights as guaranteed by Article 21 (1) (a) of the Constitution. The court found that the appellants failed to establish all the requirements of an interdict and only established the first requirement, being that of a clear right, however, failed to establish the second requirement, being that of establishing an injury committed or reasonably apprehended. As a result the application was dismissed with costs. The appeal is against the whole judgment and cost order of the court a quo.

Judgment sought to be appealedThe Director General of the Namibia Central Intelligence Service v Haufiku (HC-MD-CIV-MOT-GEN-2018/00107) [2018] NAHCMD 174 (18 June 2018).



CASE PARTICULARS: THE STATE IN RE: REVIEW JUDGMENT BY SIBOLEKA J et. USIKU J CR 57/2016 DELIVERED IN RESPECT OF THE FOLLOWING SPECIAL REVIEWS:1. HC REVIEW 1323/2016 WILLIE STEWE2. HC REVIEW 1324/2016 ALBERTICO PIETERSEN3. HC REVIEW 1325/2016 FRANSISCUS KAIWINA & 21

OTHERS4. HC REVIEW 1326/2016 RUDY RAUTENBACH & 4

OTHERS

PARTIES:

APPELLANT: THE PROSECUTOR-GENERAL

RESPONDENTS: IN PERSON

CORAM: DAMASEB DCJ, MAINGA JA et FRANK AJA


CASE SUMMARY

Issue:Whether the court a quo misdirected itself by upholding the decisions of the Regional Court Magistrates to recuse themselves mero motu from presiding over criminal trials in the Regional Courts in acting capacities and ordered the cases to start de novo before a permanent Reginal Court Magistrate

Facts:This case came before the court a quo on special review from the Divisional Magistrate in Windhoek. The appellant is the Prosecutor-General of the Republic of Namibia, and the respondents are two magistrates who have been assigned by the Magistrates Commission in terms of section 11(3) of the Act as Magistrates for the Regional Court of Windhoek to preside over Regional Court cases for a number of months. They have recused themselves from continuing to do that work for reasons contained in a covering letter. The magistrates state that they feel uncomfortable that on one hand they are considered competent to preside over Regional Court cases and therefore assigned to preside, yet on the other hand they are told they cannot be considered for permanent appointments in the Regional Court because they don’t have the required LLB qualifications.

The court a quo considered the requirements for a presiding officer to recuse him/herself from a case and the requirements for the appointing of magistrates in terms of the Magistrates Act. The court considered the decisions in S v Malindi and Others 1990 (1) SA 962 AD, S v Radebe 1973 (1) SA 796 (A) and SA Motor Acceptance Corporation (Edms) v Oberholzer 1974 (4) SA 808 (T). In S v Malindi and Others, Corbett J stated that:“The common law basis of the duty of a judicial officer in certain circumstances to recuse himself was fully examined in the cases of S v Radebe and South African Motor Acceptance Corporation (Edms) v Oberholzer. Broadly speaking the duty of recusal arises where it appears that the judicial officer has an interest in the case or where there is some other reasonable ground for believing that there is a likelihood of bias on the part of the judicial officer. That is, that he will not adjudicate impartially. The matter must be regarded from the point of view of the reasonable litigant and the test is an objective one. The fact that in reality the judicial officer was impartial or is likely to be impartial is not the test. It is the reasonable perception of the parties as to the impartiality that is important. Normally recusal would follow upon an application … therefore by either or both of the parties, but on occasion a judicial officer may recuse himself mero motu , ie without prior application” (underline Court a quo’s own emphasis).

Magistrates are appointed in terms of section 14 (as amended by the Magistrates Act 2 of 2014). These magistrates are then assigned to preside over Regional Court cases in terms of section11 (3) of the Magistrates Act 3 of 2003.

The court a quo found that the practice of using section 11(3) to assign Magistrates who are none LLB qualification holders to preside over Regional Court cases yet they cannot be considered for permanent Regional Court Magistrate appointments should be urgently and very seriously revisited. The court went on to say that this kind of practice would make a person in the position that the magistrates in this case find themselves in, dissatisfied and difficult to understand the double standard.

The court a quo found that if the Magistrates Commission is satisfied with the work that the assigned none LLB degree holding Magistrates are doing on the bench while presiding over cases in the Regional Court, why can they not be considered for permanent appointments in that regard, and if this is not possible, why assigning them to do the work they are not qualified to do.

Court a quo further held that, it found merit in the concerns raised by the dissatisfied Magistrates. The court a quo upheld the Magistrates’ recusals and ordered the cases concerned to start de novo before a permanent Regional Court Magistrate.

This appeal is against the whole judgement of the court a quo.


SUPREME COURT CASE NO.: SA 37 & 58 / 2017

CASE PARTICULARS: CHRISTIAN CONGREGATION OF JEHOVAH’S WITNESSES OF NAMIBIA (INCORPORATED ASSOCIATION NOT FOR GAIN) v SOCIAL SECURITY COMMISSION

PARTIES:

APPELLANT: DR WEDER KAUTA & HOVEKA INC.

RESPONDENTS: TJOMBE ELAGO INC.

CORAM: DAMASEB DCJ, MAINGA JA et SMUTS JA


CASE SUMMARY

Issue:Whether the court a quo erred in making an order which upheld the decision of the Social Security Commission not to de-registration of the appellant as an employer.

Facts:The appellant, namely Christian Congregation of Jehovah’s Witness of Namibia is an incorporated association not for gain (established under section 21 of the Companies Act, 61 of 1973). The church noted an appeal in terms of the Social Security Act, 34 of 1994 against a decision taken by the Social Security Commission not to de-register it as an employer. The appellant appealed to the court a quo in terms of section 45 of the Social Security Act. The Social Security Commission informed the appellant that it is considered as an employer in terms of their Act and consequently should be registered with the Employees’ Compensation Fund established by the Employees’ Compensation Act of 1941. The court had to consider the law on who employees are and who are employers and the conditions of an employment relationship. After a survey of different Namibian statutes dealing with employment relationship in Namibia and the case law, the court it held that the Social Security Act does not provide for de-registration of employers once registered as such nor does the Act exempt entities from obligations provided in the Act and dismissed the appeal with no order as to costs.

Appellant raised a constitutional argument in that an interference by the court of imputing an employment relationship onto the parties is in clear violation of the right to freedom of religion and association. The appellant stated that:

‘The application of the Social Security Act to the Appellant and to the members of the Worldwide Order in Namibia would change the entire relationship between members of the religious organization of Jehovah’s Witnesses from one governed entirely by religious and spiritual considerations to one regulated by secular standards, which are contrary to their beliefs… The Appellant and the members of the Worldwide Order cannot be forced to recognize a secular, commercial motive and relationship that they do not have and that are contrary to their core beliefs. Such an imposition would violate the right to church autonomy, which is a fundamental element of the freedom of religion. Therefore, this would run contrary to the approach set out above and would constitute a violation of article 21(1)(c) of the Constitution of the Republic of Namibia.’

The respondent argued that the appellant is a registered section 21 company and accordingly is incorporated under the laws of Namibia and should not be afforded a ‘get out of jail – free card’ just because it is doing the work of God.

The appellant is appealing against the entire judgment of the court a quo.


SUPREME COURT CASE NO.: SA 36/2016

CASE PARTICULARS: HENDRIK CHRISTIAN T/A HOPE FINANCIAL SERVICES v NAMIBIA FINANCIAL INSTITUTIONS SUPERVISORY AUTHORITY

PARTIES:

APPELLANT: IN PERSON

RESPONDENTS: LORENTZANGULA INC.

CORAM: CHOMBA AJA, MOKGORO AJA et NKABINDE AJA


CASE SUMMARY

Issue

Whether the High Court was justified in granting an order preventing the appellant from instituting legal proceedings against the respondent without leave of the court.

Facts

The appeal has its origin in an application for default judgment granted in favour of the appellant against the respondent for the sum of N$ 2 911 402.15 with 20% interest. The claim against the respondent is founded on the allegation that the former chief executive officer (CEO) of Namibia Financial Institutions Supervisory Authority (NAMFISA) interfered with the appellant’s right to do business as an insurance agent in September 2002. This default judgment was later rescinded by agreement between the parties.

Thereafter, the appellant instituted several proceedings against the respondent contending that the rescinded default judgment was not applicable to him because the legal practitioner who represented the respondent was not properly authorised to represent NAMFISA in launching the application for rescission of the default judgment. The court a quo granted a permanent stay in respect of a number of proceedings brought by the appellant and directed

that future litigation by the appellant against the respondent could only be instituted with prior leave of the court. Subsequent to these orders, the appellant, without the court’s prior leave, launched an application in the court a quo for declaratory relief to revive the default judgment previously granted in his favour.

The court a quo dismissed the application with costs because no prior leave had been obtained. In addition, the court a quo ordered the Registrar of the court to refer the matter to the Prosecutor-General for a decision regarding whether the appellant should be prosecuted for contempt of court.

The appeal is against the whole judgment and orders of the court a quo dated 30 June 2016.

Judgment sought to be appealed.

Hendrik Christian t/a Hope Financial Services v NAMFISA (A 35/2013) [2016] NAHCMD 188 (30 June 2016)

5. CASE INFORMATION: SUPREME COURT CASE NO.: SA 36 / 2017

CASE PARTICULARS: THE STATE v STEPHANUS HENDRICK RUBA GARISEB

PARTIES:

APPELLANT: PROSECUTOR GENERAL

RESPONDENTS: UANIVI GAES INCORPORATED

CORAM: MAINGA JA, SMUTS JA et CHOMBA AJA

HEARING DATE: 13 MARCH 2019 @ 10H00 B COURT

CASE SUMMARY

Issue

This is an appeal lies against the acquittal by the high Court of the respondent of the charges of:

Contravening section 2 (1) (a) of the Combating of the Rape Act, 2000(Act no. 8 of 2000) - rape and instead convicting the respondent of the Common Law offence of indecent assault.

Facts in brief

Accused, Stephanus H.R Gariseb was charged as above. State alleged that he had committed rape with a minor child of 9 years old on diverse occasions. It is alleged that the act was committed when he placed his penis between the buttons of the minor. The medical evidence revealed that there was no penetration and the particularities placed before the Court were insufficient in that there was no evidence as to which year, which the place and in what circumstances the offence was committed.

Having considered the evidence before it, the Court a quo was faced with the question, does the conduct of the respondent by placing his penis between the buttocks or anus of the complainant amount to a sexual act?

The Court a quo went on to consider the definition of the “sexual act” and the medical report by the doctor. Having considered the evidence as a whole it concluded that the conduct of the respondent amount to indecent assault instead and convicted the respondent accordingly.

Judgment sought to be appealed.The State v Stephanus Hendrick Ruba Gariseb (CC 02 / 2013) [2015] NAHCMD 114 (19 May 2015)


SUPREME COURT CASE NO.: SA 73/ 2017

CASE PARTICULARS: THE PROSECUTOR GENERAL v ALEXES PAULO & ANOTHER

PARTIES:

APPELLANT: THE GOVERNMENT ATTORNEY’S OFFICE

RESPONDENTS: SISA NAMANDJE & CO. INC.

CORAM: HOFF JA, MOKGORO AJA et NKABINDE AJA


CASE SUMMARY

Issues

Whether the High Court in a forfeiture of property order under the Prevention of Organised Crime Act, 29 of 2004 (POCA) erred in granting the in limine objection that the non-compliance with rule 65(1) of the High Court Rules renders the forfeiture application a nullity.

Facts

In the High Court, the appellant by way of a notice of motion sought an order that the property being certain positive balances held in two bank accounts in the names of the respondents be forfeited to the State. The allegations were that the first respondent contravened Regulation 2(1) of the Exchange Control Regulations promulgated under the Currency and Exchange Control Act1 in that he illegally traded in foreign currency. It was further alleged that the first respondent contravened section 30 of the Immigration Control Act2, in that the he traded in foreign currency on behalf of the second respondent without a work permit. It was a further allegation that the first respondent committed offences of fraud and money laundering.

The respondents opposed the forfeiture application and raised three in limine points. The first point is that the application for forfeiture of property order was not issued by the Registrar of the High Court. The second is that the application was not served on them by the Deputy-Sheriff or a police officer at the chosen address as stipulated by regulation 4(8) made under the Prevention of Organised Crime Act3. The third point is that the preservation order had not been served on the respondents at the chosen address within 120 days after publication of the

1 Act 9 of 1993.2 Act 7 of 1993.3 Act 29 of 2009.

preservation order in the Government Gazette in accordance with the relevant provisions of the Prevention of Organised Crime Act.

As to the first point, the court held that an application for forfeiture of property order is an application initiating new proceedings within the meaning of rule 65(1) of the High Court Rules and must be issued by the registrar before such an application is be served on the affected person. The court further held that the appellant’s non-compliance with the provisions of rule 65(1) by not causing the application to be issued before it was served on the respondents rendered the application a nullity. The court also held that non-issuance of the application was of such a nature could not be cured by the fact that the respondents have taken steps by filing opposing papers in the matter. Based on the findings on the first point, the court declined to determine the remaining questions and consequently, struck the application from the roll with costs.

The appeal lies against the whole judgment and order of the court a quo.

Judgment sought to be appealed.The Prosecutor General v Paulo (POCA 13/2015) [2017] NAHCMD 337 (22 November 2017)

7. CASE INFORMATION


CASE PARTICULARS: PAMO TRADING ENTERPRISES CC AND ANOTHER vCHAIRPERSON OF THE TENDER BOARD OF NAMIBIA AND 90 OTHERS

FOR THE PARTIES:APPELLANTS: ENGLING, STRITTER & PARTNERS1ST - 3RD RESPONDENTS: GOVERNMENT ATTORNEYS6TH, 32ND, 56TH, 62ND AND83RD RESPONDENTS: AMUPANDA KAMANJA & INC.74TH RESPONDENT: CLEMENT DANIELS ATTORNEYS54TH RESPONDENT: ANGULACO INC.

CORAM: SMUTS JA, MOKGORO AJA et NKABINDE AJA

HEARING DATE: 18 MARCH 2019 @10H00, B COURT

CASE SUMMARY

Issue on appeal

Whether the High Court misdirected itself in holding that (a) the decision by the Tender Board to cancel the tender without giving a hearing to the tenderers was justifiable; (b) the Tender Board was not functus officio when it cancelled the tender; (c) extension of the existing agreements with existing service providers was not invalid.

FactsOn the 4 March 2014, the Tender Board invited interested parties to submit tenders for the provision of catering service to government school hostels for the period 1 June 2014 to 31 May 2019 in eight catering regions. By the closing date, 88 interested parties submitted their tenders. On the 15 July 2014 the Evaluation Committee made a written recommendation to the Tender Board for the award of the tender. On 15 August 2014 the Tender Board held a meeting to consider the various submissions and recommendations. The Tender Board rejected the recommendations made by the Evaluation Committee and remitted the tenders back to the Committee for further consideration in light of certain concerns raised by the Board. The Committee reconsidered the tenders and again made recommendations to the Board which the Board accepted and the appellants were the successful applicant tenderers for the Khomas and Otjozondjupa Regions. On 8 October 2014 however, the Permanent Secretary of the Ministry of Education wrote a letter addressed to the Tender Board informing it to cancel the entire food tender. Subsequently, the Board prepared a submission requesting the cancellation of the tender in the standard form. On the 10 October 2014 an article appeared in the Confidante

newspaper alleging that the Permanent Secretary of the Ministry of Education was improperly involved in the allocation of the tender to a company in which his wife had an interest without declaring same to the Tender Board. Similar articles followed in the New Era and Republikein newspapers on 10 and 13 October 2014. At a meeting held on 13 October 2014, the Tender Board considered the request made by the above stated Permanent Secretary and approved same. On 15 October 2014 the secretary to the Board addressed a letter to all 88 tenderers informing them that the tender was cancelled. As a result of this, the appellants’ legal practitioner addressed a letter to the Tender Board asserting that they were prejudiced by the cancellation of the tender and had not been consulted on this issue and requested the Board to release the minutes of all the meetings held in respect of the tender so that they could be able to advise their clients of their rights. The Board replied by refusing to disclose such documents to the appellants and as a result the appellants lodged an urgent application in the court a quo. The Board opposed the application declaring that the appellants had no right to pre-litigation discovery and that they had an alternative remedy of lodging a review.

When the application was heard on 14 November 2014, the court ordered that the Tender Board provide copies of the minutes of the meeting of the 13 October 2014 to the appellants and to pay the costs of the application. Despite this order, the Board refused to produce the documents to the appellants. On 27 November 2014 the 1 st respondent confirmed that it would not comply with the court a quo’s order pending the outcome of their appeal to the Supreme Court. On the 12 December 2014 the appellants approached the court a quo to review the decision of the Tender Board.

The appellants based their challenge on two grounds, namely that they were not given an opportunity to be heard before the Board cancelled the tender and the Board never had the right to cancel the entire tender due to the principle of functus officio and even if it had the right to do so, the reasons advanced did not justify the cancellation thereof.

In terms of the review application the court held that the decision by the Board to cancel the tender was an administrative act and as such it had to act fairly which ultimately contains two principles, the audi alteram partem and the nemo iudex in sua causa rule. With respect to the audi principle, the court held that the reason why the Board cancelled the tender was on request by the Permanent Secretary of the Ministry of Education to do so after he was informed that officials from his office were linked to some of the tenderers and were also sitting on the Evaluation Committee despite prior warning to recuse themselves if a conflict arose. As a result, the Board by cancelling the tender without allowing a hearing of the tenderers was not acting unfairly under the circumstances, but rather reacted to the allegations of impropriety, corruption and irregularity levelled against the officials of the Ministry itself. In that respect the court found the practices displayed by the Ministry’s officials were corrupt and viewed as irrational and unreasonable and the appellants could produce nothing to the contrary to show that these allegations were merely rumors. As such, the Board was justified on this aspect in resorting to cancelling the tender. In terms of the argument that the Board

was functus officio when it cancelled the entire tender, the court held that the decision of 2 October 2014 to award the tender to the appellants in the respective regions was not translated into an overt act, through written notification to the successful or unsuccessful tenderer. The Board was accordingly not funtus officio when it cancelled the tender. Besides the review question regarding the tender, the appellants also called upon the court to declare the extension of the existing contracts by the Board with the existing service providers as invalid. The court held that the extended contracts were initially concluded with the approval of the Tender Board and the extensions thereof with the existing service providers. The question of lack of authority does not come into play. Furthermore, the non-extension of the contracts would have had disastrous consequences for the learners and under the present circumstances the Board could be said to have been authorized in terms of the Act to extend the existing contracts until the earliest practical time that new contracts could be concluded in a fair and reasonable manner. As such the entire application was dismissed by the court with costs.

Aggrieved, the appellants now appeal against the whole judgment and orders, including the cost orders, of the court a quo delivered on 18 September 2017.

Judgment sought to be appealed

Pamo Trading Enterprises CC v Chairperson of the Tender Board of Namibia (A 349/2014) [2017] NAHCMD 268 (18 September 2017)



CASE PARTICULARS: RADIAL TRUSS INDUSTRIES (PTY) LTD v AQUANTAM (PTY)LTD

PARTIES:

APPELLANT: NIXON MARCUS PUBLIC LAW OFFICE

RESPONDENT: KOEP & PARTNERS

CORAM: SHIVUTE CJ, SMUTS JA et NKABINDE AJA


CASE SUMMARY

Issue on appeal

Whether the High Court misdirected itself in holding that: (a) the application for summary judgment should be granted; (b) the contents of the appellant’s opposing affidavit did not fully disclose the nature and the grounds of the appellant’s defence, therefore not meeting the requirements.

Facts

On the 23 July 2014 the parties entered into an agreement contained in a quotation. Upon completion of the works, the parties agreed that the items would be re-measured and adjusted to the actual quantities built into the works. In terms of the agreement, the appellant placed an order for the supply, delivery and installation of the goods and services as outlined in the quotation. The services were accordingly rendered to the appellant and the respondent claimed N$440,288.30 from the appellant. When the amount was not paid by the appellant, the respondent instituted action against the appellant claiming the above amount plus interest and costs of suit. The appellant defended the matter.Upon perusal of the appellant’s papers, the respondent filed an application for summary judgment alleging that the appellant had no bona fide defence to the claim and the only reason for defending the matter, was to delay the proceedings. The court agreed with the respondent and granted the application holding that the appellant should have in its affidavit set out the facts and material upon which its defence is predicated in order to convince the court that it has a good defence in law. The appellant however failed to do so in that it merely alleged

certain defects without stating the particulars of the nature and extent thereof. Further, the court noted that a legal practitioner arguing for the appellant cannot seek to introduce factual material which was not included in its opposing affidavit to embellish its case. Accordingly, the court held that the appellant’s affidavit did not meet the requirements of Rule 60(5) of the Rules of the High Court and as a result was convinced by the respondent to grant the application.

Aggrieved, the appellant appealed against the whole judgment and cost order of the court a quo to this court.


Aquantam (Pty) Ltd v Radical Trust Industries (2016/02337) [2017] NAHCMD 52 (1 March 2017)



CASE PARTICULARS: THE PROSECUTOR-GENERAL v JACO MARIUS KENNEDY

PARTIES:

APPELLANT: GOVERNMENT ATTORNEYS

RESPONDENT: IN PERSON

CORAM: DAMASEB DCJ, HOFF JA et FRANK AJA


CASE SUMMARY

Issue on appeal

Whether the High Court misdirected itself in holding that: (a) the appellant failed to prove on a balance of the probabilities that the property in question was an instrumentality in the alleged commission of the offences of kidnapping and rape; (b) there was no rational connection between the deprivation of the property and the objective of the Act; (c) the appellant should pay two-thirds of the respondent’s taxed costs.

Facts

A forfeiture application in terms of section 61 of Prevention of Organized Crime Act (Act 29 of 2004) [‘POCA’] was instituted by the appellant in the court a quo. The appellant alleged that the property in question was an instrumentality, as defined in schedule 1 of POCA, to commit the offences of kidnapping and rape. The respondent opposed the application arguing that the property was merely incidental to the commission of the alleged offences. The court a quo dismissed the application as it held that the appellant failed to prove on a balance of probabilities that the property was an instrumentality in the alleged commission of the offences.

Aggrieved by the ruling of the court a quo, the appellant lodged an appeal to this court on the 7 March 2017 against the whole judgment including a cost order issued by the court a quo. In addition, on the 11 May 2017, the appellant filed an application for condonation for non-compliance with Rule 5(5)(b) of the Rules of the Supreme Court. To date there has been no formal opposition to this application and the court must consider this application before the appeal can be heard.

Judgment sought to be appealed.The Prosecutor-General v Jaco Marius Kennedy (POCA 02/2015) [2017] NAHCMD 26 (6 February 2017)



CASE PARTICULARS: THE GOVERNMENT OF THE REPUBLIC OF NAMIBIA v THOMAS INGHANGWE NDJEBO

PARTIES:

APPELLANT: GOVERNMENT ATTORNEY

RESPONDENTS: CHRIS BRANDT ATTORNEYS

CORAM: SHIVUTE CJ, MAINGA JA et HOFF JA


CASE SUMMARY

Issue:Whether the court a quo erred in finding that the arrest and detention of the respondent was unlawful and that the appellant should pay respondent an amount of N$ 20 000.00, to return the respondent’s cellular phone, alternatively pay N$ 800.00 in damages and the costs order?

FactsThis is an appeal against the decision of the court a quo in which appellant is seeking to set aside an order awarding the respondent and costs.

The facts in this matter are as follows:Respondent was arrested during the early morning of 6 July 2015 by members of the Namibian Police Force without a warrant. Respondent alleged that he was continuously assaulted during interrogation, which mainly occurred during the morning of 7 July 2015, and just after his arrest of 6 July 2015. Respondent did not present cogent and objective evidence concerning the alleged assault upon him and the court find that the allegations of assault are highly improbable.Sergeant Nakangombe Frans Ndeshipanda testified that at the time of respondent’s arrest he had a reasonable suspicion upon which he could arrest the respondent on a charge of armed robbery which took place during the morning of 5 July 2017. He testified that information

supplied by a confidential informant had proved to be correct and respondent’s failure to take the police officers to his (respondent’s) place of residence strengthened the suspicion.

Sergeant Ndeshipanda testified about an informant (which the police wish not to identify) who on the Sunday of the robbery, gave valuable information to the police. As A result of the information the police were able to arrest a suspect prior to the arrest of the plaintiff. When the first mentioned suspect’s residence was searched they found most of the items stolen during the robbery. On this first arrested suspect they found a cellular phone which contained the cellular number of the respondent.

This judgment was centered on the question of whether respondent was lawfully arrested and detained.

Section 40(1)(b) of the Criminal Procedure Act 51 of 1977 provides that ‘a peace officer may arrest any person without a warrant of arrest whom he reasonably suspects of having committed an offence referred to in schedule 1, other than the offence of escaping from lawful custody’. Robbery is such an offence. Referring to Lansdown and Campbell, for a peace officer to arrest a suspect without an arrest warrant there must be a reasonable suspicion “will have to be supported by circumstances sufficiently strong in themselves to induce in a cautious person the belief that the arrested person has committed a First Schedule offence”. The reasonable suspicion must be objective and not based on a peace officer’s subjective belief in the arrested person’s suspicious conduct.

The court a quo applied the applicable law to the facts as follows:- ‘A robbery was committed on Sunday 5 July 2015. - A suspect was arrested by the police earlier on the morning of 6 July 2015, which was

clearly identifiable on CCTV video tape and in which possession most of the robbed items were found.

- The CCTV video footage was in the possession of the arresting officer, arresting the plaintiff, before he made the arrest of the plaintiff.

- Plaintiff was not identifiable on the CCTV footage. Four identifiable suspects were clearly identifiable and known to the police. A fifth, wearing something covering his face was seen on the CCTV footage.

- No evidence was tendered by Sergeant Ndeshipanda that the plaintiff wore similar clothes to the hooded suspect or that similar clothing was found at his residence.

- Plaintiff’s cell number was found on the cell phone of the suspect who was already arrested and before plaintiff was enticed to meet the first mentioned suspect at a sewage drain by using the cell phone of the first mentioned suspect.

- Plaintiff at first did not point out his correct place of residence. It was pointed out by his girlfriend.

- Nothing linking plaintiff to the crime could be found at his residence after a diligent search.

- Sergeant Ndeshipanda testified that -:

‘At this stage there was a reasonable suspicion upon which I could arrest the suspect. Firstly, the information that was supplied by the confidential informant had proved to be correct up to that point, and secondly, the failure of the suspect to take us to his place of residence raised suspicion. I touched him and placed him under arrest.’

- Plaintiff testified inter alia that the police confiscated his wrist watch and cell phone and that he did not get it back upon his release. Plaintiff did not proof that he had his wrist watch confiscated (if he had one). It was admitted that his cell phone was/is in the possession of the defendant and not given back to the plaintiff, although tendered’ (sic).

Based on the evidence furnished by the arresting officer, the court a quo found that said police officer did not make the arrest on an objective reasonable suspicion. Respondent succeeded in his claim for unlawful arrest and his lost cell phone.___________________________________________________________________________This appeal is against the entire judgment of the court a quo.



CASE PARTICULARS: THE PROSECUTOR-GENERAL v MOSES PASANA UANJANDA

KAMUNGUMA AND ANOTHER

PARTIES:

APPELLANT: GOVERNMENT ATTORNEYS

RESPONDENTS: SISA NAMANDJE & CO. INC.

CORAM: SHIVUTE CJ, HOFF JA et FRANK AJA


CASE SUMMARY

Issue:Whether the High Court misdirected itself in holding that (a) the information provided in the appellant’s affidavit regarding Ms Kanyangela is inadmissible; (b) the word ‘incorporates’ used in the appellant’s affidavit is not sufficient to allow the affidavits and its annexures used in obtaining the preservation order to become part of the forfeiture application; (c) the appellant failed to produce evidence in her affidavit to show that the property in question was the instrumentality of an offence referred to in schedule 1 of the Act or was the result of proceeds of unlawful activities.

FactsOn the 16 June 2014 First National Bank (FNB) of Namibia received an instruction from a corresponding bank in Germany to pay, on behalf of its Chinese corresponding bank, an amount equivalent to EUR 192,518.60 into the account of the first respondent. Upon receiving the instruction, FNB contacted the first respondent to complete a declaration form which states the reasons for receipt of the funds. The first respondent indicated on the form that the funds were from ‘China North’ in respect of ‘construction’. On the 18 June 2014 FNB deposited N$ 2,788,054.97 into the first respondent’s account. On 2 July 2014 the first respondent transferred the amount of N$ 2,730,000 from his cheque account into his 32-day investment account he held at FNB. Between 18 June 2014 and 18 March 2015 the aforementioned

amount was moved between the first respondent’s aforementioned two accounts. During this time large amounts of cash were also withdrawn from these accounts. As a result, this activity was reported to the Anti-Corruption Commission, which conducted an investigation into the matter. Based on their findings the Prosecutor-General on the 9 February 2016 obtained a preservation order from the court a quo in terms of section 51(1) of the Prevention of Organised Crime Act, Act 29 of 2004 (POCA). The order so obtained was then published in the Government Gazette on the 4 March 2016 and the order together with the notice of motion, founding affidavit and its annexures were served by the Deputy-Sheriff for the district of Windhoek on the respondent on 26 February 2016. On the 17 March 2016, the first respondent acting in his personal capacity and on behalf of the second respondent filed an application opposing the application for a forfeiture order.

After the matter had been case managed, it was set down for hearing and heard on the 4 July 2017. In its opposing papers, the respondents raised a point in limine which relates to how the forfeiture application was served on the respondents. The court on this point held that although the forfeiture application was served at the office of the Law Society where the respondents’ legal practitioner of record agreed to service of process, which may be viewed as irregular, is not a complete failure of service resulting in a complete nullity. The respondents’ legal practitioner of record was identified as the agent of the respondents in terms of service for the section 59(1) application in terms of POCA. The respondents were not prejudiced as they did receive the application and entered into an appearance to oppose the application and consequently the irregularity can be condoned and this point falls to be dismissed.

In terms of the forfeiture application, the court held that in terms of section 91(1) of POCA, every application made under sections 25, 43, 51, 59 and 64 should be made in the prescribed manner. Regulation 7 of the regulations made under section 100 of POCA sets out the procedure for applications made in terms of the Act. The court accordingly held that section 50 of the Act provides that proceedings under chapter six of the Act are civil and not criminal. Consequently, in motion proceedings, which the present matter is, all affidavits constitute the pleadings and evidence on which the court can rely on and is restricted to. In the present application the appellant failed to attach the affidavits and annexures on which she relies in the preservation application to her affidavit in support of the forfeiture application. The appellant merely relies on the fact that in her affidavit she ‘incorporates’ the affidavits and annexures she relied on in obtaining the preservation order for the forfeiture application. This the court a quo found to be insufficient holding that the process under chapter six of the Act is a two stage process and not a single process. In other words, for each process evidence must be provided on affidavit to support granting an order in that regard.

Furthermore, the appellant also referred to a certain ‘Kanyangela’ in her affidavit without annexing an affidavit from such person in support of what she stated, that in essence cannot be regarded as admissible evidence. Furthermore, the court settled that in order to grant the forfeiture application applied for, the court must find on a balance of probabilities that the property concerned is the instrumentality of an offence referred to in schedule 1 or is the result of proceeds of unlawful activities. Section 1 of the Act defines ‘instrumentality of an offence’

and the appellant has failed to discharge the onus of proving that the property in question can be reasonably directly linked to a crime committed or that the property is the result of proceeds of unlawful activities. As a result the court held that the entire evidence placed before this court by the appellant is inadmissible and stands to be rejected. The application was accordingly dismissed with costs.

Aggrieved, the appellant now appeals against the whole judgment and orders, including the cost orders, of the court a quo delivered on 20 October 2017.

Judgment sought to be appealedThe Prosecutor-General v Kamunguma and Another (POCA 01/2016) [2017] NAHCMD 302 (20 October 2017)



CASE PARTICULARS: ZILLION INVESTMENT HOLDINGS (PTY) LTD v SALZ GOSSOW (PTY) LTD

PARTIES:

APPELLANT: DU PISANI LEGAL PRACTITIONERS

RESPONDENTS: ELLIS SHILENGUDWA INC

CORAM: SMUTS JA, HOFF JA et FRANK AJA

HEARING DATE: 1 APRIL 2019 @10H00, B COURT

CASE SUMMARY

IssueThis is an appeal against the whole judgment by the High Court and order of cost granted in favour of the applicant. The Supreme Court is called upon to determine the following issues:

i. Whether the effect of clause 20.4 of the FIDIC Conditions of the Contract should be interpreted to mean that the decision of the DAB should give effect promptly regardless of what happens in future

ii. Whether the court can make an order to enforce a decision which is not final and whether a court may order specific performance

Facts

The applicant approached the High Court seeking an order of enforcement of a ruling made by the Dispute Adjudication Board (DAB) in terms of the parties’ contract. The applicant and respondent entered into an agreement in which they agreed that; should a dispute arise, the dispute would be referred to the DAB. Parties of the terms to clause 20.4 of the agreement

stipulated that the decision of the DAB would be binding on both parties and should give effect it until reversed.

A dispute arose between the parties regarding payment due to the applicant and they referred the matter to DAB. Arbitration proceedings before DAB resulted in a decision being granted in the applicant’s favour, whereupon, the respondent was required to pay an amount of N $ 3 246 792.71 to the applicant. Aggrieved by this decision, the respondent filed a notice of dissatisfaction with the ruling of DAB and declined to abide by the decision. The respondent contended that its notice of dissatisfaction suspended the enforcement of the DAB ruling. It was submitted by the respondent that compliance with the ruling would be unreasonable since the applicant’s financial books showed a negative liquidity and that it would be able to reimburse the respondent in the event that the DAB decision in reversed.

The respondent filed a counter-application in which it sought three things:

i. An order setting aside the award made by the DAB and ii. Staying of applicant’s application for specific performance

iii. Staying of the execution of any judgment enforcing the award by the adjudicator pending the final arbitration proceedings in respect of the ruling of the DAB

In its counter-application, the respondent argued that the award by the adjudicator is invalid and unenforceable. The respondent also alleged that the adjudicator’s conclusion was incorrectly and grossly unreasonable. Another issue raised was that DAB made a mistake in interpreting, contra proferentem and the clause regarding whether the applicant is entitled to interest after the completion date being 31 October 2012 on the amount to be paid. After filing of the counter-application, the applicant filed an application strike out parts of the respondent’s affidavit on the ground that the information was new since it had not been placed before the adjudication board and privileged information relating to settlement negotiations.

After assessing the evidence presented and South African authority, the court came to the conclusion that the respondent was required to comply and give effect to the DAB decision. The court reasoned that, giving a notice of dissatisfaction did not suspend the obligation to comply with the DAB ruling. The court further held that the fact that the decision was subject to revision did not suspend any obligation of the parties. Thus the court found in favour of the applicant. It concluded by stating the negative liquidity argument advanced by the respondent was not sound. Lastly, the court held that it had the discretion to order specific performance, but it decided not to because it was not convinced that the respondent had proved exceptional circumstances to warrant the exercise of the discretion. The respondent now appeals against the court’s whole judgement and order of costs.

Judgment sought to be appealed.Salz-Gossom (Pty) Ltd v Zillion Investment Holdings (Pty) Ltd (A 44/2016) [2017] NAHCMD 72 (09 March 2017)



CASE PARTICULARS: THE PERMANENT SECRETARY OF THE NATIONAL PLANNING COMMISSION AND ANOTHER v REHOBOTH PROPERTIES CC

PARTIES:

APPELLANT: GOVERNMENT ATTORNEY

RESPONDENTS: DR WEDER, KAUTA & HOVEKA INC.

CORAM: SHIVUTE CJ, HOFF JA et FRANK AJA


CASE SUMMARY

Issue:Whether the court a quo erred in making the following orders against the appellant:

1. An order restoring ante omnia the respondent’s free and undisturbed possession in and the control sites at Tierkloof Campsite, Gibeon Traditional Authority Office, Vaalgras Heritage Site, Blaauwes Traditional Authority Office, Tses Tourism Information and Camp Site, Warmbad Traditional Office and Heritage Site, Aroab Hostel, SME Units and Tourism Information Site, Koes SME Units and Camp Site;

2. An order restoring ante omnia the respondent’s free and undisturbed possession in and all construction material and equipment at Tierkloof Campsite, Gibeon Traditional Authority Office, Vaalgras Heritage Site, Blaauwes Traditional Authority Office, Tses Tourism Information and Camp Site, Warmbad Traditional Office and Heritage Site, Aroab Hostel, SME Units and Tourism Information Site, Koes SME Units and Camp Site;

3. For the appellant’s to pay the costs of the application jointly and severally, the one paying the other to be absolved.

FactsThe respondent was contracted by the first appellant to carry out renovation and construction works on eight separate sites in the Karas Region. A dispute arose between the parties regarding alleged non-performance by the respondent on the one hand and several alleged breaches such as outstanding payments by the appellants of money owed to the respondent by the appellant on the other hand in respect of work done. The appellants then terminated the contract and took occupation of the sites due to the alleged non-performance. The first appellant further alleged that the respondent had abandoned the sites. In the application for a spoliation order, the respondent disputed that it abandoned the sites and furthermore that it was exercising a lien over the sites. The respondent contended that it was in peaceful and undisturbed possession of the sites and that it was unlawfully dispossessed of such possession by the appellants. This matter came before the court a quo as an urgent application for a spoliation order.

The respondent’s case is that on 3 March 2017, the appellants took the law into their own hands by forcefully removing the respondent’s employees from the sites and taking possession of the construction sites, material and the equipment.

The respondent further alleged that it was at all material times in peaceful and undisturbed possession of all eight construction sites and all the material and equipment stored or stock-piled at the various construction sites. The respondent further alleged that it had employed a number of employees who performed the construction works at the sites. Furthermore that it stored materials and equipment including sand, gravel, cement, bags of cement, concrete mixtures and various loose building tools on the sites. According to the respondent the construction operations were ongoing when the appellants deprived the respondent of its possession of the aforementioned construction sites, material and the equipment.And finally the respondent claimed that their case matter is urgent given the unlawful conduct of the appellants; that its properties at the various sites are currently exposed to the elements of nature and theft, and finally that the applicant would not be able to do construction works at other sites without its equipment.

The appellants’ opposition

Mr Hungamo deposed to the opposing affidavit on behalf of the appellants. With regard to the issue of urgency Mr Hungamo, points out that the respondent failed to provide factual circumstances as to why it avers the matter is urgent and also failed to advance reasons as to why it cannot be afforded substantial redress at the hearing in due course. Furthermore, appellant claimed that the respondent failed to provide any factual basis explaining what had happened between the 3 March 2017 and 14 March 2017 when the application was issued and served on the respondents. With regards to the merits, Mr Hungamo states that it is common

cause that the agreement between the parties has been terminated. According to Mr Hungamo, four of the eight sites are currently in possession of new contractors who are on-site busy completing the projects. In support of this allegation he attached a variation order which he says confirmed the appointment of a new contractor on site. He denies that the respondent was in possession of the sites disputes and that the respondent voluntarily vacated sites prior to the alleged spoliation. According to Mr Hungamo he was informed by the various project management committee members of four of the sites, namely, Gibeon, Blaauwes, Warmbad and Tses and who reside at these sites that no employees of the respondent have been present on the sites since end of February 2017. Confirmatory affidavits by the said members of the committee were filed. Furthermore, he has been informed by Dr Namu Musulwe who is part of the project management team of the Programme and who went to the four sites on 10 March 2017 to introduce the new contractor to the sites and that upon their arrival no employees of the respondent were present on these sites; that the sites were vacant and abandoned by the respondent’s employees. A confirmatory affidavit by Dr. Masulwe was filed. Regarding the four sites of Aroab, Koes, Tierkloof and Vaalgras, appellant claimed that the agreement was already terminated on 16 December 2016 and the sites were handed over to a new contractor on 31 January 2017 and therefore no spoliation could have taken place on 3 March 2017 as alleged by the respondent.

The court considered the legal position on spoliation as it was laid out in JJF Investments CC v Helgaardt Mouton Case No. HC-MD-CIV-MOT-GEN 2017/00048 (delivered 5 April 2017) where the court stated that:

‘[25] … It is generally accepted that an application for spoliation relief is by its very nature urgent. The remedy’s main objective is to preserve law and order and to prevent or discourage self-help. It has been held that for the purpose of deciding urgency, the court’s approach is that it must be accepted that the applicants’ case is a good one and that the respondent has unlawfully infringed upon the applicant’s right.’4

. . .‘[29] Regarding the alleged delay of one month as contended by the respondents, this approach is based on the so-called ‘delay rule’, where the respondent calculates each day from which the incident which gave rise to the application being brought, took place, up to the day when the application is launched. Calculating the days which went by, it is then contended that there has been undue delay because so many days went by. It has been pointed out in the matter of Shetu Trading v The Chair of the Tender Board for Namibia that there is no such thing as the ‘delay rule’ in our law as far as urgency is concerned. Based on the objective facts of this matter I am of the view that there has not been culpable remissness on the part of the applicant in launching this application.’5

The court dismissed the appellants’ point in limine on urgency and accepted respondent’s argument that a period of seven days from the date the alleged spoliation took place to the date when the application was launched.

4 Page 11 of the JJF Investment judgment.5 Page 13 of the JJF Investment judgment.

On the merits of the court a quo found that it was satisfied with regards to the credibility of factual allegations made by the respondent. In relation to appellants’ claim that respondent voluntarily abandoned the sites in question, the court relied on the JJF Investment CC matter were a similar allegation was made and found that:

‘Given such a dispute and having regard to well-known practice in the construction or building industry that a builder will never abandon the construction site until he is paid, I consider it highly improbable that the applicant would have abandoned or vacated the site without the dispute of payment having been resolved.’

The court further found that the appellant was unable to show the court when exactly or at very least minimum, when the respondent’s employees in each town or village in which such member construction site is situated abandoned such site.

Further the court found that the evidence deposed to by Mr Hungamo to be uncorroborated hearsay and the confirmatory affidavits by the members of the Committee to be un-corroborative of the allegations by Mr Hungamo, but unhelpful to the resolution of the apparent dispute of facts created by the appellants through their allegation that the respondent had abandoned the sites prior to 3 March 2017. This led the court to find that respondent’s version that it did not abandon the sites un-contradicted and acceptable.

The court finally arrived to the conclusion that the respondent’s had established on the balance of probabilities that it was in peaceful and undisturbed possession of the sites in question and that it was lawfully dispossessed of such possession of the sites by the appellants and that the respondent was entitled to an order restoring it to such possession ante omnia.______________________________________________________________________________The appellants are appealing against the whole judgment of the court a quo.



CASE PARTICULARS: THE STATE v FRANSISCUS DIMITRI NARIMAB

PARTIES:

APPELLANT: THE PROSECUTOR-GENERAL

RESPONDENTS: SIYOMUNJI LAW CHAMBERS

CORAM: MAINGA JA, SMUTS JA et HOFF JA


CASE SUMMARY

IssueWhether the High Court erred in granting the application brought by the respondent in terms of section 174 of the Criminal Procedure Act, 51 of 1977(the Act).

FactsThe respondent and a co-accused Ruben Fritz, who is currently placed on his defence, were charged on five counts: murder ─ count 1; rape ─ counts 2 and 3; robbery with aggravating circumstances ─ count 4; and, defeating or obstructing or attempting to defeat or obstruct the course of justice ─ count 5. The appellant led evidence of several witnesses including the mother of the co-accused.

At the close of the State case the respondent was found not guilty and discharged in terms of section 174 of the Act. Subsequently, the appellant applied to the trial court, for leave to appeal against the acquittal of the respondent, but leave was refused. The appellant subsequently petitioned the Chief Justice for leave to appeal and leave to appeal was successful.

The appeal lies the judgment and order granting the application in terms of s 174 of the Act.

Judgment sought to be appealed.S v Narimab (CC 12/2015) [2017] NAHCM 77 (15 March 2017)



CASE PARTICULARS: STANDARD BANK OF NAMIBIA LIMITED v KARIBIB CONSTRUCTION AND 3 OTHERS

PARTIES:

APPELLANT: ANGULACO. INC.

RESPONDENTS: CHRIS BRANDT ATTORNEY (1st RESPONDENT)KOEP AND PARTNERS (2nd RESPONDENT)

CORAM: MAINGA JA, HOFF JA et FRANK AJA


CASE SUMMARY

Issues:Whether the court a quo erred in making the following orders against the appellant:1. It is declared that the letter issued by Standard Bank Namibia Limited, on 14 December

2012 at the behest of BPO Logistics Services CC to First National Bank of Namibia Limited, for the benefit of Karibib Construction Services CC is a ‘demand guarantee’.

2. It is declared that the demand guarantee issued by Standard Bank on 14 December 2012 is independent of the underlying agreement between Karibib Construction and BPO Logistics.

3. It is declared that the revocation, on 31 May 2013, by Standard Bank of the ‘demand guarantee’ issued by it on 14 December 2012 is unlawful and therefore invalid.

4. It is declared that the payment of the guaranteed amount of N$ 1 293 750 (plus any interest earned on that amount), is due and payable on the date that DF Malherbe in

writing advises Standard Bank Namibia Limited that the Covering Bond over the lease No.1 and No. 3 on Portion 196 Walvis Bay Town & Townlands registered in the name of the Municipality of Walvis Bay was registered in the Deeds Registration Office at Windhoek.

5. DF Malherbe & Partners are hereby directed to conduct a search at the Deeds Registration Office in Windhoek in order to confirm whether or not the Covering Bond over the lease No.1 and No. 3 on Portion 196 Walvis Bay Town & Townlands registered in the name of the Municipality of Walvis Bay was registered and to in writing inform Standard Bank Namibia Limited accordingly.

6. Standard Bank Namibia Limited is directed to honour and comply with its contractual obligations in terms of the ‘demand guarantee’ that it issued on 14 December 2012 at the behest of BPO Logistics Services CC to First National Bank of Namibia Limited, for the benefit of Karibib Construction Services CC and to pay the amount of N$ 1 293 750 (plus any interest earned on that amount), to First National Bank of Namibia Limited not later than three days from the date that Standard Bank Namibia Limited receives written confirmation from DF Malherbe & Partners that the Covering Bond over the lease No.1 and No. 3 on Portion 196 Walvis Bay Town & Townlands registered in the name of the Municipality of Walvis Bay was registered in the Deeds Registration Office in Windhoek.

7. First National Bank of Namibia Limited is directed to make available and pay into the Banking account of Karibib Construction Services CC the amount of N$ 1 293 750 (plus any interest earned on that amount) LESS any advances made by First National Bank Namibia on the strength of the demand guarantee to Karibib Construction Services CC, not later than three days from the date that First National Bank Namibia receives that amount from Standard Bank Namibia Limited.

8. Standard Bank Namibia Limited and BPO Logistics CC must, jointly and severally the one paying the others to be absolved, pay the costs of Karibib Construction Services CC and First National Bank of Namibia Limited in respect of this application.

Facts:

The brief background to this matter are as follows. During August 2012, Karibib Construction issued a quotation to BPO Logistics to construct a roadbed in Walvis Bay (“the Project”) the quotation was for the amount of N$ 2 250 000 exclusive of Value Added Tax. In terms of the quotation Karibib Construction indicated that it required a 50% deposit of the construction costs prior to it commencing with construction work with the balance of the construction costs to be paid on the completion of the project.

BPO Logistics was satisfied with the quotation it received from Karibib Construction and on 11 September 2012 issued a purchase order in favour of Karibib Construction. After receiving the purchase order Mr Foelscher, the representative of Karibib Construction, indicated to Mr

Polster, the representative of BPO Logistics that it (i.e. Karibib Construction) is eager to commence with the construction work in respect of the project despite the fact that the deposit had not been paid as long as the parties conclude a written agreement. But prior to the parties signing a written agreement Foelscher and Polster orally agreed that the deposit will be paid as soon as BPO Logistics has secured financing from Standard Bank.

Mr Foelscher accordingly drafted an agreement and forwarded that agreement to Polster who, on behalf of BPO Logistics, signed the agreement and send it back to Mr Foelscher on 20 September 2012. On that day, Karibib Construction commenced with the construction works in respect of the project.

On 14 December 2012 Standard Bank acting on the instructions of BPO Logistics issued a letter, to FNB Usakos Branch, advising FNB that it (i.e. Standard bank) undertakes to pay the sum of N$ 1 293 750, being 50% deposit, to Karibib Construction for work to be performed as per quotation dated 15 August 2012.

On 31 May 2013, Standard Bank addressed a letter to Karibib Construction’s legal practitioners in which letter it informed the legal practitioners that it was instructed by BPO Logistics not to honour the obligations stipulated in the letter of 14 December 2012 because, so the letter read:

‘According to our client your client is not entitled to call upon the guarantee because the underlying construction agreement upon which the guarantee is reliant had not been concluded.

In our view the guarantee only becomes due and payable once the construction agreement - especially in respect of the quotation referred to in the guarantee - is in place between the parties. In the meantime your client is prohibited to call upon the guarantee.’

The instructions contained in this letter are at the centre of the dispute between the parties.Respondent in this case alleged that the letter of undertaking issued by Standard Bank to FNB of its benefit constitutes a demand guarantee which became irrevocable when the condition to which it was subject was met and fulfilled.

Appellant argued that the letter of 14 December 2012 relied upon Karibib Construction to demand payment by FNB is not a guarantee despite that term being used widely and freely. It further argued that the letter was never intended to be a demand guarantee but simply a letter of undertaking.

The court found that a ‘bank demand guarantee’ is an undertaking by a bank in terms of which a bank promises payment, the bank has to pay if the documents presented with the demand for payment comply with the documents that are mentioned in the text of the demand guarantee.

It further found that a guarantee is an obligation wholly independent of the underlying contract between the parties. A bank issuing an on demand guarantee is obliged to pay where such a demand complies with the terms of the guarantee, and it provides conclusive evidence that

payment is due. And finally the court found that, the terms of the letter of undertaking are clear and unambiguous. The words used by the parties must be given their ordinary meaning. The letter of undertaking constitutes a guarantee on demand which must be payable upon demand and secondly upon fulfilment of any conditions imposed in the guarantee. The only condition imposed in this guarantee is firstly the registration of a covering Mortgage Bond in favour of Standard Bank Namibia Limited over the lease No 1 and No 3 on Portion 196, Walvis Bay Town and Townlands.

16. CASE INFORMATION (MATTER WAS POSTPONED ON 25 OCTOBER 2018)


CASE PARTICULARS: ARANGIES: RAINER v NEVES: JORGE BATISTA AND 2 OTHERS

PARTIES:

APPELLANT: DE KLERK HORN AND COETZEE INC

RESPONDENTS: NEVES LEGAL PRACTITIONERS

CORAM: MAINGA JA, SMUTS JA et ANGULA AJA

HEARING DATE: 12 APRIL 2019 @ 10H00, B COURT

CASE SUMMARY

Issue

This is an appeal against the whole judgment by the High Court declaring that the plaintiffs

(now respondents) acquired a servitude right of way over the defendants’ (now appellants’)

property. The appellants also appeal against the order of costs on the basis of one instructing

and 2 instructed counsel

Facts

The plaintiffs approached the court a quo seeking a declaratory order that they acquired a

servitude right of way over the first defendant’s property in terms of section 6 of the

Prescription Act 68 of 1969. During 1972, the first plaintiff’s father bought property (Erf in issue)

and became the owner thereof. The first plaintiff acquired ownership of the property when his

father passed away in 1997. The first defendant also owns property (formerly open space)

which is adjacent to the plaintiffs’ property.

The plaintiffs contended that the only entrance and exit from their property via the public road

known as Susan Nghidinwa Street and the only way to reach it is by traversing the defendants’

property. It was argued by counsel for the plaintiffs that since 1972, the first plaintiff’s father,

plaintiffs, their customers, tenants, employees and guests have traversed the defendants’

property openly without interruption as if they were entitled to do so. The plaintiff’s case was

based on section 6 of the Prescription Act. According to the plaintiff, they acquired servitude by

prescription because they had accessed their property through the defendants’ property for 30

years uninterrupted. The second defendant did not file its plea to oppose. However, the first

defendant opposed the application arguing that the plaintiffs did not meet all the requirements

to acquire the servitude right by prescription. Counsel for the defendant contended that the

plaintiff did not make use of the property from the period of 1973 to 1980 since the first

plaintiff lived in a different location from 1966 to 1980. Counsel further argued that period of

possession for 30 years was interrupted and there was no continuous possession.

Having considered the evidence led, the court a quo was of the opinion that a period of

uninterrupted possession 30 years had elapsed. The court was satisfied that the plaintiffs had

met all the following prerequisites to assert a servitude right by acquisitive prescription:

i. There must have been a civil possession, which means there must have been an

intention to possess and control the property

ii. There must be possession for an uninterrupted period of 30 years

iii. Possession must have been without force

iv. The possession must be non-precarious-which means the right should have been

exercised adversely and as of right

Therefore, the court found in favour of the plaintiff on the principal claim to declare their right

of servitude over the defendants’ property.


Neves & Another v Arangies & Another (I 3785/2012) [2017] NAHCMD 57 (03 March 2017)


SUPREME COURT CASE NO.: SCR 3 / 2018

CASE PARTICULARS: THE STATE v WERNER SHEETEKELA AND 2 OTHERS

PARTIES:

APPLICANT: OFFICE OF THE PROSECUTOR GENERAL

1ST RESPONDENT: ISAACKS AND ASSOCIATES

2ND RESPONDENT: DR WEDER, KAUTA AND HOVEKA INC.

3RD RESPONDENT: KADHILA AMOOMO LEGAL PRACTITIONERS

CORAM: DAMASEB DCJ, HOFF JA et FRANK AJA

HEARING DATE: 15 APRIL 2019 @ 10H00, B COURT

CASE SUMMARY

Issues

Whether an irregularity occurred in the High Court’s proceedings necessitating the review of

the proceedings of that court and correcting or setting aside the order made by the court on

the 9th November 2017.

Facts

The respondents were charged with murder, kidnapping and defeating or obstructing the

course of justice by the applicant. The list of witnesses accompanying the indictment indicated

that the applicant had the intention of calling 33 witnesses. The respondents who at the time

were all represented, pleaded not guilty and the trial commenced; whereby the applicant

started and closed its case without calling all the witnesses on the list it provided. The applicant

then made the list of all uncalled witnesses including the witness statements available to the

respondents.

The first respondent opted to use one of the witnesses, Ronald Rohm, as a defence witness and

the applicant had no objections to this. After the witness provided his testimony during

examination in chief, the applicant then wanted to cross-examine the witness, however, all

three respondents objected, the objection mainly based on the fact that the witness was

initially the applicant’s witness and thus the applicant had already been consulted on his

testimony. When questioned by the trial Judge, the prosecutor representing the applicant

confirmed that he consulted with the witness.

The court a quo without hearing any oral evidence from the applicant, upheld the respondents’

objection. The applicant then enquired with the trial Judge whether someone else from their

office who had not consulted the witness would be allowed to cross-examine the witness and

this was refused on the basis that, there could only be one prosecutor in a case. The witness

was excused and the trial postponed. When the trial commenced the applicant brought an

application for the recalling of the witness and the request for the court to invoke its powers in

terms of section 167 of the Criminal Procedure Act of 1977. The trial Judge indicated that she

had already made a ruling and that decision could not be changed as she was functus officio.

Dissatisfied by the decision of the court a quo, the applicant brought an application in terms of

section 16 of the Supreme Court Act 15 of 1990 to review the proceedings of the High Court

and to correct or set aside such an order made by the court on the 9th November 2017 in the

partly heard High Court criminal trial. The apex Court satisfied with the application, invoked the

provisions of section 16 of the Supreme Court Act 16 of 1990.

Order sought to be reviewed

S v Sheetekela & 2 Others (CC 10/2014) [2018] NAHCMD (9th November 2017).

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