UNREPORTED HIGH COURT CIVIL JUDGMENT INDEX 2014

COMPILED BY: MS. LOTTA AMBUNDAJUDICIAL RESEARCH ASSISTANTDIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT

CIVIL INDEX TO HIGH COURT JUDGMENTS DELIVERED DURING 2013

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THE HIGH COURT JUDGMENT INDEX 2014

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 2014. THE INDEX IS COMPILED TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT AUTHORITIES.

THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.

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Table of Contents

SUBJECT INDEX...............................................................................................................................7

ABSOLUTION FROM THE INSTANCE..........................................................................................7

ADMINISTRATIVE LAW...................................................................................................................7

ADMINISTRATION OF ESTATES...................................................................................................9

APPLICATIONS/ MOTION PROCEEDINGS.................................................................................9

APPLICATION FOR EJECTMENT................................................................................................13

APPLICATION FOR RECUSAL.....................................................................................................14

APPLICATIONS UNDER POCA....................................................................................................14

CASE MANAGEMENT RULES......................................................................................................15

CIVIL APPEALS...............................................................................................................................17

COMPANY LAW...............................................................................................................................17

CONDONATION...............................................................................................................................17

CONSOLIDATED PRACTICE DIRECTIVES...............................................................................17

CONSTITUTIONAL LAW................................................................................................................17

CONTEMPT OF COURT................................................................................................................19

CONTRACT......................................................................................................................................20

COSTS...............................................................................................................................................25

DEFAMATION..................................................................................................................................28

DEFAULT JUDGMENT...................................................................................................................29

EXCEPTION.....................................................................................................................................29

IRREGULAR PROCEEDINGS.......................................................................................................32

INTERPRETATION OF STATUTES..............................................................................................34

INQUEST...........................................................................................................................................35

INTERPLEADER..............................................................................................................................36

INTERDICT.......................................................................................................................................36

INTERPLEADER..............................................................................................................................36

JOINDER...........................................................................................................................................36

JURISDICTION OF THE HIGH COURT.......................................................................................37

LAW ON AGENCY...........................................................................................................................37

LAW OF DELICT..............................................................................................................................38

LAW ON DURESS...........................................................................................................................39

LAW OF EVIDENCE........................................................................................................................39

LAW OF INSOLVENCY...................................................................................................................40

LAW OF PROPERTY......................................................................................................................40

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LEGAL ETHICS................................................................................................................................42

LOCUS STANDI...............................................................................................................................43

MATRIMONIAL.................................................................................................................................43

POSTPONEMENT...........................................................................................................................45

PLEADINGS......................................................................................................................................45

PRESCRIPTION...............................................................................................................................48

REQUEST FOR FURTHER PARTICULARS...............................................................................48

RESCISSION....................................................................................................................................48

RES JUDICATA................................................................................................................................50

REVIEWS..........................................................................................................................................50

SECURITY FOR COSTS................................................................................................................51

SPOLIATION....................................................................................................................................51

SUMMARY JUDGMENT.................................................................................................................53

URGENT APPLICATIONS..............................................................................................................54

VINDICATION...................................................................................................................................55

CASE SUMMARIES........................................................................................................................57

Angula v Mavulu (I 2690/2010) [2014] NAHCMD 250 (22 August 2014)..............................57

Awaseb v Kandjii (I 2696-2012) [2014] NAHCMD 315 (24 October 2014)...........................57

Balzer v Vries (A 06/2014) [2014] NAHCMD 32 (4 February 2014).......................................58

Burger v Bowig (I 1771/2013) [2014] NAHCMD 268 (16 September 2014).........................59

Council of the Municipality of Windhoek v Claudia Properties CC (A117/2010) [2014] NAHCMD 344 (14 November 2014)...........................................................................................59

Congo Trading CC v E & Jay Trading Enterprises CC (I 2971/2012) [2014] NAHCMD 136 (14 April 2014)...............................................................................................................................60

Davey’s Micro Construction CC v Ngende (I 118/2012) [2014] NAHCMD 238 (8 August 2014)...............................................................................................................................................60

De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD 160 (22 May 2014)...............................................................................................................................................61

Delie v Hoebeb (I 2498/2013) [2014] NAHCMD 271 (18 September 2014).........................61

Durand v NJC Motors (I 3402/2009) [2014] NAHCMD 44 (13 February 2014)....................62

Gawanab v !Khomanin Traditional Authority (A 419/2013) [2014] NAHCMD 313 (22 October 2014)................................................................................................................................62

Gloria Dawn Farming CC v Van Der Merwe (A290/2003) [2014] NAHCMD 7 [21 January 2014]...............................................................................................................................................63

Greeff v Tona Trade Holdings CC (I 223/2013) [2014] NAHCMD 12 (22 January 2014).. .63

Government of the Republic of Namibia v Heita (I 1402/2012) [2014] NAHCMD 69 (26 February 2014)..............................................................................................................................64

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Hanstein v Hanstein (I 483/2014) [2014] NAHCMD 340 (07 November 2014)....................64

Hashipala v Petrus (I 4238/2011) [2014] NAHCMD 100 (28 March 2014)...........................66

Henock v The Attorney General (A 172/2011) [2014] NAHCMD 366 (27 November 2014)..................................................................................................................................................................67

Ilse v Government Institutions Pension Fund (I 1929/2012) [2014] NAHCMD 122 (04 April 2014)...............................................................................................................................................68

Independent Asphalt Services Namibia CC v Namibia Construction (Pty) Ltd (I 128/2012) [2014] NAHCMD 329 (6 November 2014).................................................................................70

Jin CV Joint Fitment Centre CC v Hambabi (I 1522/2008) [2014] NAHCMD 73 (6 March 2014)...............................................................................................................................................70

Kamahere v The Government of the Republic of Namibia (A 58/2014) [2014] NAHCMD 209 (10 July 2014)........................................................................................................................71

Kandjii v Awaseb (I 2696/2012) [2014] NAHCMD 177 (11 June 2014).................................72

Kapia v Minister of Regional and Local Government Housing and Rural Development (A 333/2012) [2013] NAHCMD 13 (24 January 2014)..................................................................73

Kauvee v Kauvee (I 2961/2013) [2014] NAHCMD 161 (22 May 2014).................................73

Lubrication Specialists (Pty) Ltd v Etosha Lubricants CC (I 2698/2012) [2014] NAHCMD 18 (24 January 2014)...................................................................................................................73

Markus v Telecom Namibia Ltd (I 286/2009) [2014] NAHCMD 51 (26 February 2014)......74

Markus v Telecom Namibia Limited (I 286/2009) [2014] NAHCMD 207 (23 June 2014)....74

Meyer v Scholtz (I 3670/2012) [2014] NAHCMD 148 (25 March 2014)................................76

MLN Extreme Safety Wear CC v Rockstar Footwear (Pty) Ltd (I 351/2013) [2014] NAHCMD 49 (14 February 2014)...............................................................................................76

Munyelutha v Munyelutha (I 201/2013) [2014] NAHCMD 173 (04 June 2014)....................77

Mushindi v Hollard Insurance Company of Namibia (I 1362/2013) [2014] NAHCMD 229 (31 July 2014)................................................................................................................................78

Mwashekele v The Prosecutor General (POCA 3/2013) [2014] NAHCMD 349 (20 November 2014)...........................................................................................................................78

Nakanyala v Nakanyala (I 394/2012) [2014] NAHCMD 47 (14 February 2014)...................78

Namibia Construction (Pty) Ltd v The Chairperson of the Tender Board (A 283/2007) [2014] NAHCMD 6 (21 January 2014).......................................................................................79

Namibia Security Supplies CC v Schidlowski (I 4113/2011) [2013] NAHCMD 282 (01 October 2014)................................................................................................................................79

Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD 74 (19 February 2014).......................................................................................................................81

New Era Investment (Pty) Ltd v The Roads Authority (A 05/2014) [2014] NAHCMD 56 (20 February 2014)..............................................................................................................................81

Nghimtina v Trustco Group International Ltd (I 2976/2010) [2014] NAHCMD 11 (23 January 2014)................................................................................................................................82

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Nguvauva v Minister of Regional and Local Government Housing (A 254/2010) [2014] NAHCMD 290 (2 October 2014).................................................................................................82

PDS Holdings (BVI) Limited v Zaire (I 3364/2012) [2014] NAHCMD 83 (13 March 2014). 83

Platt v Platt (I 2407/2013) [2014] NAHCMD 84 (13 March 2014)...........................................83

Premier Construction CC v Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors (A 200/2014) [2014] NAHCMD 270 (17 September 2014)..........................................................................................................................................................84

Promar CC v Blue Seal Exporters CC (I 236/2004) [2014] NAHCMD 10 (23 January 2014)..................................................................................................................................................84

Purity Manganese (Pty) Ltd v Maritima Consulting Services CC (A 295/2014) [2014] NAHCMD 350 (20 November 2014)...........................................................................................85

Rall v Professional Provident Society Insurance Company (Namibia) Ltd (A 224/2013) [2014] NAHCMD 249 (22 August 2014).....................................................................................85

Sandvoss v Sudwischer (I 719/2013) [2014] NAHCMD 17 (24 January 2014.....................87

Schutz v Pirker (A 374 /2013) [2014] NAHCMD 341 (12 November 2014)..........................87

Shaanika v Minister of Justice (A 411/2013) [2014] NAHCMD 16 (24 January 2014)........89

Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24 July 2014)................................................................................................................................................................89

The Municipal Council of Gobabis v Smith (A 36/2014) [2014] NAHCMD 361 (27 November 2014)..................................................................................................................................90

Tjihero v Kauari (I 2845/2012) [2014] NAHCMD 27 (30 January 2014)................................90

Tumas Granite Close Corporation v The Minister of Mines and Energy (A 95/2013) [2014] NAHCMD 210 (10 July 2014)............................................................................................................91

Useb v Gawaseb (I 1625/2012) [2014] NAHCMD 283 (1 October 2014)..............................91

Van der Merwe v Plastic Packaging (Pty) Ltd (I 1218/2012) [2014] NAHCMD 52 (18 February 2014)....................................................................................................................................92

Van Der Merwe v Nedplan Insurance Brokers (Pty) Ltd (A 402/2013) [2014] NAHCMD 34 (5 February 2014)................................................................................................................................92

Van Straten N.O. v Namibia Financial Institutions Supervisory Authority (I 647/2012) [2014] NAHCMD 31 (31 January 2014)...........................................................................................93

Van Rooi v Town Council of Rehoboth (A 133/2014) [2014] NAHCMD 317 (30 October 2014).....................................................................................................................................................93

Van Wyk v Van Wyk (I 2995/2013) [2014] NAHCMD 5 (20 January 2014)..........................93

Worker Freight Services v The Commissioner for Customs and Excise (A 128/2012) [2014] NAHCMD 38 (07 February 2014)..........................................................................................93

Wiers v Wiers (I 3133/2011) [2014] NAHCMD 66 (26 February 2014)..................................94

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SUBJECT INDEX

ABSOLUTION FROM THE INSTANCEAbsolution from the instance - At close of plaintiff’s case, defendants applied for absolution from the instance. Test for absolution restated. Plaintiff had not made out a prima facie case for a claim based upon an actio iniuriarum which had in any event not been properly pleaded. The plaintiff had also not made out a prima facie case of negligence on the part of any of the defendants and in any event not made out a prima facie case of a casual connection between the damages claimed and any breach of a duty of care. Nor had the damages themselves been prima facie established. Van Zyl v Bennie Venter Legal Practitioners (I 3792/2012) [2014] NAHCMD 352 (13 November 2014); See further Labuschagne v Namib Allied Meat Company (Pty) Ltd (I 1-2009) [2014] NAHCMD 369 (1 December 2014).

ADMINISTRATIVE LAW

Administrative law - Administrative officials - Administrative action - What constitutes – Minister is an administrative official as contemplated in Article 18 of the Namibian Constitution- Decision of Minister to, in terms of the Traditional Authorities Act, 2000, approve the designation of a Chief amounts to administrative action. Customary law - Traditional Authorities- when performing their functions in terms of the Traditional Authorities Act, 2000 are exercising public power, and in exercising those powers the traditional authority is an administrative body as contemplated in Article 18 of the Namibian Constitution. Kapia v Minister of Regional and Local Government Housing and Rural Development (A 333/2012) [2013] NAHCMD 13 (24 January 2014).

Administrative law – Right to the audi alteram partem rule of natural justice – Court held that natural justice is a flexible doctrine and the rule is not cut and dried for it vary infinitely – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the information complained of was not one of the two factors that led to the rejection of the applicant’s tender – The court found that there has not been a failure of fairness. Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first

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respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – The grounds must be set out in the founding affidavit not grounds put forth or as sanitized by counsel in submissions from the Bar – Court held that it is up to a decision maker who knows what he or she desires to achieve to decide what information or facts to collect, what criteria to apply to the information or facts collected and what weight of importance and relevance to put on each piece of information or facts and each individual criterion – In the instant case the criteria or factors applied are contained in the first respondent’s procurement policy, rules and regulations the first respondent’s controlling line ministry’s policy – Court held that the first respondent being a public authority was entitled to apply the Ministry’s policy – The test is not what particular factors the public authority could apply and what weight it would put on each factor but whether the factors and weight were applied equally to the entire competition – The same goes for the criteria for factors to apply to the information and facts collected – Having rejected all the grounds of review the court dismissed the application with costs. New Era Investment (Pty) Ltd v The Roads Authority (A 05/2014) [2014] NAHCMD 56 (20 February 2014).

Administrative law – Legal duties of administrative officials and administrative bodies – The ministerial scheme of approval of proposed designation of a Chief in terms of s 5 of the Traditional Authorities Act 25 of 2000 – Court found that the Minister has discretionary power under s 5(1) of the Act to act or not as opposed to his or her obligation to act under s 5(2) of the Act – Court held that public authorities (administrative officials and administrative bodies) have many legal duties, under which they have an obligation to act, as opposed to their legal power, which give them discretion whether to act or not – Court found that after the Minister had decided that in his discretion the two applications (of Kilus and of Keharanjo) complied with s 5(1) of the Traditional Authorities Act 25 of 2000 he had the obligation to approve their designation but for the fact that he was presented with two applications – Court found further that upon the death of Keharanjo the Minister was obliged to approve Kilus’s designation as Chief of the Ovambanderu Community – Consequently, court concluded that mandamus should issue to compel the Minister to execute his ministerium or prescribed task under s 5(2) of Act 25 of 2000 which is to approve the designation of Kilus as the Chief of the Ovambanderu Community – On authority, court held that where an Act creates an obligation and enforces the performance in a specified manner, the court takes it to be a general rule that performance cannot be enforced in any other manner – Court held further that mandamus is an appropriate remedy in the circumstances to prevent breach of duty and injustice – Consequently, court granted the relief sought with 70 per cent of the costs because counsel of counter-applicants amended certain

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paragraphs relating to the relief sought during his oral submissions. Nguvauva v Minister of Regional and Local Government Housing (A 254/2010) [2014] NAHCMD 290 (2 October 2014).

Administrative law – Legal duty of administrative body (applicant) – Applicant failed or refused to consider respondent’s application for special consent to operate a business on his property – Respondent sought an order to compel applicant to act – Court held that where there has been illegal inaction, by neglect of duty, on the part of an administrative body or administrative official the one remedy available to compel performance is mandamus, a remedy used to prevent breach of duty and injustice – On the facts the court ordered mandamus to issue to compel performance by the applicant and to prevent injustice to the respondent. The Municipal Council of Gobabis v Smith (A 36/2014) [2014] NAHCMD 361 (27 November 2014).

ADMINISTRATION OF ESTATES

APPLICATIONS/ MOTION PROCEEDINGS

Application to compel - Interlocutory application to compel further discovery refused – Application for leave to appeal – leave should not be granted unless it is shown by the applicant that a refusal anticipates or precludes the whole or part of the relief which may be granted at the hearing – Application dismissed. Namibia Development Corporation v Aussenkehr Farms (Pty) Ltd (I 668/2004) [2014] NAHCMD 15 (21 January 2014).

Application to compel – Discovery - : Interlocutory – Discovery in terms of rule 28 – The limits of discovery in motion proceedings – no automatic right to discovery in motion proceedings – Applicants seeking discovery must demonstrate exceptional circumstances – The norm is specific as opposed to general discovery – But a case has to be made out therefor – A request for general discovery in motion proceedings an indication of fishing expedition – If confidentiality is sought to protect discovered documents, the party seeking confidentiality has the onus and must show exceptional circumstances – The default position is full inspection. South African Poultry Association v The Ministry of Trade and Industry (A 94/2014) [2014] NAHCMD 331 (07 November 2014).

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Ex parte applications – Application for leave to oppose - in terms of Rule 6(4)(b) – authority to bring application challenged – Practice - Applications and motions - Motion proceedings - Institution by legal person – such applicant bearing onus to prove authority to institute proceedings where authority conferred by resolution on person to act on behalf of an applicant legal persona which purports to authorise the relevant proceedings, if properly and substantially challenged by a respondent - such applicant, in reply, cannot merely remain content with the text of a resolution (or for that matter an extract of minutes of a meeting whereat the alleged resolution was taken). In that case an applicant is required to present concrete evidence that the resolution (or for that matter the relevant extract of a minute) indeed is what it purports to be, namely, evidence of a decision properly taken by the applicant at a properly constituted board meeting to authorise the legal proceedings and the person and/or persons that are to act on its behalf. Applicant failing to prove authority – Application in terms of Rule 6(4)(b) dismissed. Namibia Financial Institutions Supervisory Authority v Christian t/a Hope Financial Services (A 35/2013) [2014] NAHCMD 54 (28 January 2014).

Application for interim relief - Application for interim relief pending a review of a decision concerning the allocation of an export quota of beef to Norway pursuant to two international agreements. In the main review application (Part B), the applicant not only sought to set aside the allocation, but also a prior decision by Cabinet to set out the process (of a bid) and the criteria. That decision had been challenged in prior review proceedings which were withdrawn. The applicant proceeded to make a bid pursuant to that process and addressed its criteria which it had previously impugned. The applicant’s application for interim relief was dependent upon that prior challenge. The court found that the doctrine of peremption precluded that challenge and that it would in any event in the exercise of its discretion refuse the application for interim relief, given the nature of the decision challenged, in the context of separation of powers and given the applicant’s conduct in acquiescing to the bid process and the criteria decided upon 3 December 2013. Witvlei Meat (Pty) Ltd v The Cabinet of the Republic of Namibia (A 07/2014) [2014] NAHCMD 115 (31 March 2014).

Application by CC – By close corporation – Member authorized by resolution of close corporation to institute application on its behalf for certain relief – Member launching application for different relief – Lack of authority fatal for success of application – Application dismissed. Kittiwake Fishing CC v Lüderitz Diesel Services CC (I 4327-2009) [2014] NAHCMD 152 (30 April 2014).

Application for forma pauperis – Practice - Pauper suits - Litigant seeking to continue action in forma pauperis – applicant not qualifying and not having applied for leave to sue in forma pauperis in terms of Rule 41 of the Rules of Court – the Court – through its case management order - however affording the applicant the opportunity to formalize

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the right to continue to prosecute the action he had instituted in 2008 – the question thus arose whether the non-utilisation of the applicant - of the mechanisms created by Rule 41 of this Court’s Rules - could be condoned? - in this regard not only the court’s powers of condonation, as afforded by Rule 27 (3) came into play, but also the court’s discretion, whether or not this would be a suitable case to exercise the court’s inherent jurisdiction in order to grant the applicant the relief sought? Court - Jurisdiction - Inherent jurisdiction - will only be exercised – sparingly - in specific cases and where requirements of justice demand such deviation – In present instance court prepared to condone the applicant’s non-compliance with Rule 41 and to exercise its inherent jurisdiction – as this deemed to be in the interests of justice - court emphasising however that it did not exercise these powers as a matter of course, but, because it was persuaded, that the applicant had advanced sufficiently strong grounds for the court to do so, and because the court was satisfied that justice in this instance could not properly be done unless the court would grant the applicant leave to continue to prosecute this action in forma pauperis. Application accordingly granted. Loubser v De Beers Marine Namibia (Pty) Ltd (I 341/2008) [2013] NAHCMD 155 (14 April 2014).

Special Plea – Special plea – Defendant raising defence that action should be stayed, pending determination of dispute by arbitrator in terms of arbitration clause – Onus and jurisdictional facts required to be proved discussed – In casu defendant failed to prove facts underlying special plea - In principle possible for parties to agree that question of validity of their agreement would be determined by arbitration even though reference to arbitration was part of agreement being questioned, provided that they foresaw possibility of such dispute arising - In instant matter there is no indication whatsoever that parties intended that any dispute regarding validity of agreement itself should be referred to arbitration – Special plea dismissed. Trustco Group International (Pty) Ltd v The Namibia Rugby Union (I 2781-2010) [2014] NAHCMD 169 (27 May 2014).

Application to set aside arbitration award – for the setting aside of arbitration award on the ground that one of the persons acting for applicant during the arbitration not being a duly admitted legal practitioner – Section 33(1)(a) to (c) of the Arbitration Act 42 of 1965 setting out basis on which the court can interfere with an arbitration award – Arbitration – Power of court to set aside arbitration award –Section 33 of Arbitration Act 1965 distinguishes between ‘misconduct’ and ‘irregularities’ committed by the arbitration tribunal in the conduct of arbitration proceedings - ie the section 33(1)(a) and (b) irregularities – on the one hand – and – on the other - those irregularities which have been committed by others, which result in the award being ‘improperly obtained’, ie. the section 33(1)(c) irregularities - an award can obviously also be ‘improperly obtained’ because of an irregularity which occurred in the proceedings which was not one committed by the tribunal.

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The meaning of the words 'any gross irregularity in the conduct of arbitration proceedings' in s 33(1)(b) was considered in Bester v Easigas (Pty) Ltd and Another 1993 (1) SA 30 (C) at 42G - 43D – Court adopting and applying approach formulated in respect section 33(1)(b) to section 33(1)(c) in the determination of the question whether arbitration award in this instance had been ‘improperly obtained’ - Court thus accepting that not every irregularity in the proceedings will constitute a ground for review under s 33(1) (c) of the Act.

In order to justify a review on this basis, the irregularity must have been of such a serious nature that it resulted in the aggrieved party not having his case fully and fairly determined. The court must also be satisfied that the irregularity caused substantial injustice. Only in those cases where it can be said that what has happened is so far removed from what could reasonably be expected of the arbitral process that one would expect the court to take action would interference with a private arbitration be warranted. The ability to set aside an award due to a gross irregularity is really designed as a long stop, only available in extreme cases where justice calls out for it to be corrected.

Legal practitioner – practising and holding him- or herself out to be a duly admitted by legal practitioner - Section 21 of Legal Practitioners Act 15 of 1995 creating offence where someone purports to practice or in any manner holding him-or herself out or pretending to be a legal practitioner where not such practitioner - Purpose of provision is to protect public against charlatans - Such provision in peremptory terms – Statute - Interpretation of - Regard must only be had to manner in which provisions couched - Not only whether provision peremptory or directory - Regard must also be had to intention of Legislature - Section 21 of Legal Practitioners Act clearly intended to protect public - on a reading of the section it was noted that all the scenario’s listed in Section 21(1), that is all those, listed in Sections 21(1)(a) to (d), were all visited with the same sanction, ie. the penalties provided in Section 21(3)(a) – accordingly no distinction, as far as the prescribed sanction is concerned, is made between a contravention of Section 21(a) or (b) for instance - also the greater part of Maritz J’s reasoning, and the policy considerations enumerated by him in Rosteve Fishing in regard to Section 21(1)(c), would also apply to the other prohibitions listed in Section 21(1)(a), (b) and (d) - this would most certainly be so if perpetrated in legal proceedings which line of reasoning, if taken through to its logical conclusion, would then militate towards a finding that any of the contraventions listed in Sections 21(1)(a) to (d) should all lead to the same result, namely an ipse jure voidness of legal proceedings ab initio.

Quaere – whether in view of the differences between legal- and arbitration proceedings - the contraventions of Section 21(1) the Legal Practitioner’s Act 1995 as perpetrated by one Vorster – should lead to the setting aside of the arbitration award granted against

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the applicant - Court holding – that if one would firstly take into account that the irregularity in question occurred in the less formal setting of underlying private arbitration proceedings, where not every irregularity necessarily would be regarded as fatal and if one then, secondly, would examine the nature of the irregularity in question – its impact on the method and conduct of the arbitration - and ultimately its effect on the result of the arbitration it could not be said that the award in question had been ‘improperly obtained’ – and should thus be set aside as Vorster’s lesser involvement, in a private arbitration did not prevent the applicant from having its case fully and fairly determined and Vorster’s contraventions of Section 21 of the Legal Practitioner’s Act did not cause such substantial injustice to the applicant during the less formal setting of a private arbitration that it had to be said that the arbitration award was ultimately improperly obtained and should thus not be allowed to stand. Westcoast Fishing Properties cc v Gendev Fish Processors Ltd (A 228/2012) [2014] NAHCMD 242 (13 August 2014).

Application for Execution - Application to execute judgment pending appeal to the Supreme Court. Principles restated, following South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A) at 545. Applying the principles set out in that judgment, the court found that the balance of hardship or convenience favoured the applicant and granted the application. Clover Dairy Namibia (Pty) Ltd v The Minister of Trade and Industry (A 386/2013) [2014] NAHCMD 245 (15 August 2014).

APPLICATION FOR EJECTMENT

Practice – Applications and motions – Application to order second and third respondents not carry out ejectment of applicant from property – Ejectment ordered by the court – Court held that barring well-known exceptions to the rule (respecting rescission application) the court cannot correct, alter or supplement its judgment or order – Court held further that the court has no power to set aside its own judgments or orders, barring a case of a rescission of judgment or order of the court. Balzer v Vries (A 06/2014) [2014] NAHCMD 32 (4 February 2014).

Ejectment – Action for – Necessary averments - Plaintiff need only allege ownership of property and occupation thereof by defendant – Onus on defendant to prove lawful occupation – onus on the defendants to disprove the validity of the title deeds. Angula v Mavulu (I 2690/2010) [2014] NAHCMD 250 (22 August 2014).

Ejectment – Action for – Necessary averments - The owner, in instituting a rei vindicatio, need, do no more than allege and prove that he is the owner and that the

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defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner. Awaseb v Kandjii (I 2696-2012) [2014] NAHCMD 315 (24 October 2014).

APPLICATION FOR RECUSAL

Application for recusal – A litigant who behaves in a rude manner and is warned of such conduct to which she apologizes for cannot be allowed to turn around and allege that the court was biased against her – Where bias is alleged, applicant must prove that his/her apprehension of bias is not only reasonable, but, that he/she is also reasonable in that assertion – The court must protect both the constitutional rights of individuals to a fair trial and at the same time protect the dignity of the court – applicant failed to pass the two tests set by the authorities – Application was dismissed – The court has no jurisdiction to order the Judge President to appoint a Judge from a particular country. Shaanika v Minister of Justice (A 411/2013) [2014] NAHCMD 16 (24 January 2014).

APPLICATIONS UNDER POCA

Application for condonation - in terms of Prevention of Organized Crime Act 29 of 2004 (POCA) – Applicant failing to bring application to condone failure to give notice in terms of s 52(3) of POCA – Applicant applying to court to condone applicant’s failure to bring an application to condone applicant’s failure to give the notice within the time limit – Court concluded that an application to condone in terms of s 60(1) of POCA cannot be considered by court after expiration of the time limit to bring such application – What the court is entitled to condone in terms of s 60(1) is the applicant’s failure to give notice in terms of s 52 of the Act and not the applicant’s failure to launch a condonation application under s 60(1) – Court held that the court has no power under s 60(1) to condone a failure to apply to court to condone a failure to give notice under s 52 – Consequently court dismissed the condonation application. Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24 July 2014).

Rescission of order – Application in terms of s 58(3) of Prevention of Organized Crime Act 29 of 2004 (POCA) – Preservation of property order granted ex parte in absence of applicant – When to be granted – Where relief of no final nature sought – Relief constitutes only a preliminary step in the proceeding which contemplates the bringing of application for forfeiture of the preserved property within a stipulated time in terms of s 53(1) of POCA – Court held that the Prosecutor General only need to make a prima

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facie case where the court is satisfied that there is evidence which if accepted will establish the Prosecutor-General’s belief based on reasonable grounds within the meaning of s 51(2) of POCA that the property sought to be preserved is an instrumentality of an offence under Schedule 1 of POCA or proceeds of unlawful activities – In instant case the Prosecutor General had made out a prima facie case – The test to be applied in deciding whether or not a prima facie case has been made is that the court should be satisfied that there is evidence, if accepted, will establish the belief of the Prosecutor General based on reasonable grounds that the property in question is an instrumentality of an offence under Schedule 1 of POCA or proceeds of unlawful activities – Court held that the mere fact that such evidence could be contradicted cannot disentitle the Prosecutor General to the grant of a preservation of property order. Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24 July 2014).

Practice – Applications and motions – Application to condone non-compliance with relevant provisions of the Prevention of Organized Crime Act 29 of 2004 (‘POCA’) – Applicant failed or refused to bring application in terms of s 60(1) to condone applicant’s failure to give notice in terms of s 52(3) of POCA – Court found that the court has no power to condone the applicant’s failure to bring application in terms of 60(1) – Court rejected counsel’s argument that the court should invoke its inherent power and grant a condonation over and above s 60(1) – Court held on authority that court cannot have an inherent power which would entitle the court to act contrary to an express provision of an Act – Court held further that to use the terms ‘inherent power’ at large and loosely, without reference to a specific aspect of a particular law, makes the term empty, meaningless and otiose – Court held that the inherent power of the court to fill in the gaps in the interpretation of legislation flow logically, ie inherently, from the doctrine of casus omissus in the interpretation of legislation – Upon the correct interpretation of the relevant provisions of POCA and upon the application of those provisions, the court rejected applicant’s counsel’s arguments and the application and dismissed the application with costs. Mwashekele v The Prosecutor General (POCA 3/2013) [2014] NAHCMD 349 (20 November 2014).

CASE MANAGEMENT RULES

Rule 37(14) — Judicial case management — urgent interlocutory application brought to review and set aside a certificate issued in terms of Section 85(2) of the Legal Practitioners Act 1995 by the Chief Justice to plaintiff’s counsel authorizing them to act and appear on behalf of plaintiff on an in forma pauperis basis – such issue not identified as an issue requiring determination at the trial in the court’s pre-trial order

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issued on the basis of the parties’ pre-trial proposal – applicant failing to apply for the variation or re-consideration of the pre-trial order - Practice — Judicial case management - Rule 37(14) of the Rules of High Court expressly providing that ‘issues, evidence and objections not set out in the managing Judge’s pre-trial order are not available to the parties at the trial or hearing’.

Held – that this provision takes into account the binding nature of pre-trial orders – which are interlocutory in nature - and the underlying legal principles that the courts will not readily or lightly vary their own simple interlocutory orders - as the applicant had failed to address this point at all and had also failed to take into account that pre-trial orders stand unless reconsidered, varied or rescinded on good cause shown – the application could not be granted in the absence of any application for the reconsideration, variation or rescission of the pre-trial order made on 19 March 2013 - which pre-trial order thus continued to stand and which order did not- and still does not permit the defendant to raise this in limine interlocutory issue. Court accordingly holding that the absence of any application for the variation, or rescission, or even an application for its reconsideration constituted a material, if not absolute barrier, to the defendant’s urgent interlocutory application - at least until such time - that that obstacle, on good cause shown, had been removed. The urgent interlocutory application was accordingly dismissed with costs. Loubser v De Beers Marine Namibia (Pty) Ltd (I 341/2008) [2014] NAHCMD 40 (18 October 2013).

Practice -The objectives of case management - Case management order–Whether an order of this Court made at a case management conference is final – and definitive of the rights of the parties. Markus v Telecom Namibia Ltd (I 286/2009) [2014] NAHCMD 51 (26 February 2014).

Rule 37(16) – Practice - Sanctions in terms of Rule 37(16) – Given the case history, which reflected previous non-compliances with the court’s case management orders and a repeated failure to comply with the deadlines set by such court orders, as well as the failure by the applicant and his legal practitioner to generally comply with the obligations imposed on them by the Case Management Rules and particularly because of the blatant attempt by the applicant’s legal practitioner of record to mislead the court in order to procure a postponement - which was viewed in a most serious light – the court deemed it proper to strike the applicant’s founding and replying affidavits and to dismiss the application with costs in terms of Rule 37(16) (ii) and (iii) of the Rules of Court and to refer the conduct of the legal practitioner to the Law Society for further action. Africa v Minister of Defence (A 109/2008) [2014] NAHCMD 153 (19 March 2014).

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CIVIL APPEALS

Appeal – Against judgment of court a quo – Magistrate finding that appellant responsible for damages arising out of motor vehicle collision – Main defence raised on appeal – that plaintiff’s actions constituted novus actus intervenience which broke chain of causation; alternatively, contributory negligence set up as a ground for appeal – On Appeal, court finding that where there is no misdirection on fact by the trial court the presumption is that its conclusion is correct and that an appellate court will only reverse a conclusion on fact if convinced that it is wrong – Appellant court observing that appellant is a reckless driver who displayed wanton disregard for the lives and safety of others and that to require a driver placed in a sudden emergency such as the plaintiff was to always have the foresight to reflect on all the options open to him or her to avoid a collision, is to place too onerous a burden on a driver as to conform to the legal convictions of our community – Appeal dismissed on merits. Nathinge v Hamukanda (A 85/2013) [2014] NAHCMD 348 (24 November 2014).

COMPANY LAW

CONDONATION

Application for condonation – Noting of an appeal against judgment of the Magistrates Court – Application not brought within a reasonable time from the time that the applicant became aware of the judgment - Judgment handed down by the first respondent in the absence of the applicant on the 8th of November 2012 – Applicant was aware of the judgment already on the 15 th of November 2012 if not before then - Application was launched on the 9th of May 2013 – Principles on unreasonable delays reinstated - applicant failed to fully explain the reason for the delay in bringing the review application. Application dismissed. Rooi v Stanley (I 136/2013) [2014] NAHCMD 199 (23 May 2014); See further Maletzky v Creative Computer Connections CC (A 164/2013) [2014] NAHCMD 289 (23 July 2014).

CONSOLIDATED PRACTICE DIRECTIVES

CONSTITUTIONAL LAW

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Constitutional law – Alleged unlawful detention contrary to Articles 7 and 11 of the Namibian Constitution – Plaintiff alleging not brought before a competent court within 48 hours of arrest – Onus of proof on defendant discharged – Defendant discharged onus of lawful detention on balance of probabilities – Evidence established that plaintiff brought before an ‘assistant magistrate’ within 48 hours of his arrest – Claim dismissed with costs. Kabuyana v Ministry of Safety and Security (I 546/2013)[2014] NAHCMD 61 (20 February 2014).

Constitutional law – Damages - The plaintiff sustained serious injuries in a motor vehicle accident in 2004 which resulted in his losing his sight. He was driving a motor cycle and the accident was caused by the negligent driving of a foreign national in a car hired from the third defendant, Europcar. The plaintiff’s claim against the MVA Fund was limited in the amounts as set out in the regulations promulgated by the Minister of Finance under s10(2) of the Motor Vehicle Accident Fund Act, 4 of 2001. The plaintiff claimed that those limitations are unconstitutional and invalid and claimed the full amount of his damages from the Fund. An alternative claim was included against Europcar. The Constitutional challenge was separated from the other issues under the erstwhile rule 33(4). Section 10(2) and the regulations were challenged on the grounds that Parliament unconstitutionally delegated law making powers to the Minister in s 10(2) and on the grounds of offending against art 10 and other Constitutional provisions. The plaintiff failed to establish the Constitutional conflicts contended for and the Constitutional challenge is dismissed with costs. Visser v The Minister of Finance (I 3178/2007) [2014] NAHCMD 321 (29 October 2014).

Namibian Constitution - Citizenship – By birth – Requirements of in terms of art 4(1)(d) of the Namibian Constitution – Father or mother of person must be ordinarily resident in Namibia at time of his or her birth – For purposes of art 4(1)(d) ‘ordinarily resident’ means continuously and permanently resident in Namibia – Court held that proof of ‘ordinarily resident’ is ultimately a question of fact, depending more on the evidence of matters susceptible of objective proof than on evidence as to state of mind – Court held further that there is the need for simple test for respondent to apply when determining whether a person is ordinarily resident in Namibia – Court held further that the words ordinarily resident must therefore be construed so as to enable the respondent’s administrative bodies and administrative officials to establish without undue difficulty whether a person is ordinarily resident in Namibia – Court found that since the applicant resided in Namibia on the strength of temporary employment permits applicant was not ordinarily resident in Namibia within the meaning of art 4(1)(d) of the Namibian Constitution – For applicant to be ordinarily resident applicant must be in possession of permanent residency permit. De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD 160 (22 May 2014).

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Constitutional law – Statutory enactment remain in force until they are declared unconstitutional. A declaration of unconstitutionality does not operate retrospectively: in re: the section 17(6) of Proclamation 15 of 1928. Shipanga v Shipanga (I 259/2012) Shipanga v Kautwima (I 3962/2012) [2014] NAHCMD 318 (30 October 2014).

Constitutional law - Constitutional law - Fundamental rights - Cruel inhuman or degrading treatment in terms of art 8(2)(b) of Constitution – Right to equality Article 10(1) Whether minimum sentence of imprisonment for importing, supplying or possessing armaments in terms of s 29(1)(a) Arms and Ammunition Act 7 of 1996 unconstitutional - Minimum sentence provision not found unconstitutional. Henock v The Attorney General (A 172/2011) [2014] NAHCMD 366 (27 November 2014).

Constitutional law – Constitutionality of the Electoral Act, 5 of 2014 – Application brought on eve of the scheduled elections – Applicant in procession of the relevant statute already on 20 October 2014 while application was brought one month after – application dismissed as regards the challenge on the constitutionality of the third Constitutional amendment – As regards the challenge on the Electoral Act, 5 of 2014, court excercising the non-complience with rules of court because respondents could answer comprehensively within a limited time and secondly, that the case is in the national interest that the issues raised are settled before the elections – Court holding section 209(2) of the Act which empowers the 16th Respondent to decide when portions of the Act shall be applicable is not unconstitutional because it is by no means unusual in this country and in other states that recognize the separation of powers for the Legislature to delegate to the appropriate functionary in the Executive Branch, the power to determine a date upon which its enactments should take effect. Often as in the present case, administrative preparations are required to be made as a prerequisite to bring the legislation into effect and it is best left to the Executive Branch and Government to determine when the appropriate time has arrived - As regards the EVM machines, no factual basis to prove that the constitutional right of citizens to take part in the elections and cast their vote is impaired and diminished through the use of these machines – As regards the conduct of the Election process, issues fall within the jurisdiction of the Electoral court and not the High Court – Application dismissed with costs. Maletzky v The Electoral Commission of Namibia (ECN) (A 326-2014) [2014] NAHCMD 365 (26 November 2014).

CONTEMPT OF COURT

Contempt of court – Alleged disobedience to court order – If contempt continuing the hearing of an application in contempt proceedings may be rendered urgent – Correct approach is to analyse affidavits to consider whether respondents are in fact continuing

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to commit contempt of court – In casu no case for contempt made out – Other relief claimed also not urgent – Application struck with costs. Hailulu v The Prosecutor-General (A52-2010) [2014] NAHCMD 151 (30 April 2014).

CONTRACT

Contract – Contract of sale of goods and services – Plaintiff claims an amount of N$128 069,35 being the defendant’s indebtedness to the plaintiff for goods sold and services rendered to the defendant by the plaintiff – Defendant failed to participate in judicial case management processes and failed to appear for the trial in person or by counsel – Court invoked rule 40(1) of the rules of court and granted judgment for the plaintiff for the debt or liquidated demand. Greeff v Tona Trade Holdings CC (I 223/2013) [2014] NAHCMD 12 (22 January 2014).

Contract – Purchase and sale – Plaintiff (seller) relying on an oral agreement to sell and the second defendant (buyer) to purchase horse mackerel – Plaintiff unable to supply total contract consignment – Parties subsequently agreed that plaintiff could supplement consignment with mackerel – Court held that there was only one original agreement and the agreement to supplement mackerel was an amendment of a term of the original agreement – The amendment does not constitute a new and separate agreement which can stand on its own and capable of being severed from the original agreement – The evidence indicates that that was the only substantive term that was amended. Promar CC v Blue Seal Exporters CC (I 236/2004) [2014] NAHCMD 10 (23 January 2014).

Contract – Locatio conductio operis – Court held that in the contract of letting and hiring of work it is usually an implied term of the contract that the contractor will perform the work in a proper and workmanlike fashion – Breach of the contract occurs where the contractor fails to carry out the work in a proper and workmanlike manner. Durand v NJC Motors (I 3402/2009) [2014] NAHCMD 44 (13 February 2014).

Contract - Claims and counterclaims arising from the Government terminating a service agreement with project promoters appointed to facilitate the establishment of headquarters for an international civil aviation authority in Namibia. The project promoters – defendant – claimed that the project had been extended by an agreement. The Government claimed that the agreement to extend was unenforceable and invalid on the grounds of a fraudulent misrepresentation, lack of authority and the failure to comply with formalities set in the agreement. The Government also contended that the agreement had come to an end when an international aviation authority was established in Namibia. The Government claimed the repayment of sums by way of a condictio

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indebiti or sine causa. The project promoter claimed sums which it alleged were owing under the agreement including a claim for severance. The principles concerning enrichment claims and interpretation of contract restated. Claims and counter claims partially successful. Government of the Republic of Namibia (Ministry of Works, Transport and Communication) v The African Civil Aviation Agency (Pty) Ltd (I 3298/2009) [2014] NAHCMD 45 (12 February 2014).

Contract - Action for payment of sums due under a financial lease agreement following cancellation. Defence raised an oral agreement with a third party. Court found the third party was not a party to the financial lease agreements and the alleged oral agreement could not be raised against the plaintiff. The court further found that the oral agreement contended for was also excluded by the no oral variation clauses in the financial leases. Judgment granted in favour of the plaintiff. Scania Finance Southern Africa (Pty) Ltd v Aggressive Transport CC (I 3499/2011) [2014] NAHCMD 57 (19 February 2014).

Contract - Debtor and creditor – Loan agreement – In terms of which debt became payable on demand – Court held that as a matter of law summons constitutes demand – And in that event court held further that the defendant will not be in mora until summons has been served – In instant case court found that defendant had been served with summons and so he was in mora from date of issuance of the summons – Court having found that on the evidence the defendant has no defence to the claim court granted judgment for the plaintiff with costs. PDS Holdings (BVI) Limited v Zaire (I 3364/2012) [2014] NAHCMD 83 (13 March 2014).

Contract - Claim by architect for professional services rendered – Defendant raising defence that contract concluded with different party – Defence rejected on facts – Requirement that plaintiff makes allegations that it fulfilled its obligations in case of reciprocal contract discussed - Defendant raising second defence of exceptio non adimpleti contractus – Allegations required to be alleged by plaintiff claiming reduced contract fee based in incomplete performance discussed – Second defence upheld on facts – Plaintiff proved defendant’s liability for disbursements. Pierre Smith Architects CC v Schmidt (I 920-2003) [2014] NAHCMD 92 (20 March 2014).

Contract - Claim for payment in terms of acknowledgement of debt – Agreement providing for certificate of balance drawn by authorised agent to be accepted as prima facie proof of indebtedness – Onus on defendants to disprove outstanding balance – Certificate based on certain exchange rate - In casu defendants did not testify – Certificate accepted as conclusive proof – Non-variation clause in agreement requiring that both parties sign any variation – Addendum to agreement signed only by defendants – Plaintiff’s claim that defendants waived rights under non-variation clause upheld. Leimbach v Sudwischer (I 3939-2008) [2014] NAHCMD 97 (26 March 2014).

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Contract - Prescription - Extinctive prescription - When operative - Failure to perform by creditor - Purposes of Prescription Act 68 of 1969 subverted if creditors allowed by deliberate or negligent acts to delay pursuit of claims without incurring consequences of prescription – Creditor had failed to timeously pursue its claims for demurrage in terms of the payment parameters set in terms of an agreement – and had also through its failure to provide the necessary invoice documentation prevented its claims from becoming due - Debtors relying on prescription - Creditor not entitled to rely on own lack of performance to delay commencement of prescription - Creditor's right to claim damages for demurrage thus having prescribed. Contract — Interpretation — the court proceeds firstly to ascertain the common intention of the parties from the language used in the instrument. Various canons of construction are available to ascertain their common intention at the time of concluding the agreement. According to the 'golden rule' of interpretation the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument - The mode of construction should never be to interpret the particular word or phrase in isolation (in vacuo) by itself - The correct approach to the application of the 'golden rule' of interpretation - after having ascertained the literal meaning of the word or phrase in question – is - broadly speaking, to have regard:

(1) to the context in which the word or phrase is used with its interrelation to the contract as a whole, including the nature and purpose of the contract;

(2) to the background circumstances which explain the genesis and purpose of the contract, ie to matters probably present to the minds of the parties when they contracted.

(3) to apply extrinsic evidence regarding the surrounding circumstances when the language of the document is on the face of it ambiguous, by considering previous negotiations and correspondence between the parties, subsequent conduct of the parties showing the sense in which they acted on the document, save direct evidence of their own intentions.

In the application of these principles : ‘the four steps of this technique‟ - should not be “ … paced out in succession with military precision, but must be danced with some pirouetting and an entrechat or two … “.Ultimately the court should endeavour to take into account that the phrase in question should be interpreted in such a way „ … which would convey to a reasonable person, having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract… „. and that the so-called „matrix of fact‟ may include „ absolutely everything which would have affected the way in which the language of the document would have been understood by a reasonable man.’ Namibia Liquid Fuels (Pty) Ltd v Engen Namibia (Pty) Ltd (I 836/2011 [2014] NAHCMD 113 (31 March 2014).

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Contract - Action for payment in terms of alleged amended agreement – Defendant denying that manager allegedly signing on its behalf had authority – Plaintiffs failing to prove actual authority – Plaintiffs failing to make necessary allegations to sustain cause of action based on ostensible authority and estoppel – Plaintiffs relying on Turquand rule – Failure to prove that signatory had authority to represent the company the exercise of which authority was dependent upon some act of internal organisation – Amended agreement not proved – Plaintiffs action dismissed - Counterclaim for overpayment on original agreement upheld. GF Group Holdings (Pty) Ltd v Transnamib Holdings Ltd (I 654-2006) [2014] NAHCMD 114 (31 March 2014).

Contract - Action for payment of rental of equipment in term of lease agreement, for holding over and for return of equipment, alternatively for payment of the replacement value of the equipment – Plaintiff not entitled to claim replacement value as if new – Actual value of equipment not proved - Absolution from the instance granted in this part of claim – Plaintiff did not prove that equipment lettable during period equipment held over – Defendant did not in fact have use of equipment – Plaintiff not succeeding on claim for holding over – Plaintiff succeeding on claim for rental and for return of equipment. Dentlinger ta O Dentlinger Builders v Wellmann ta WW Construction (I 4202-2009) [2014] NAHCMD 166 (27 May 2014).

Contract - Condictio indebiti. Requisites restated. Plaintiff establishing receipt of funds indebiti by the defendant, having been mistakenly paid over by the plaintiff. Defendant pleading that it had not been enriched. Onus upon it to show that further payment made was not mala fide. Defendant discharging that onus. Claim dismissed. Van den Dries v The International University of Management (I 602/2008) [2014] NACHMD 159 (21 May 2014)

Contract- When two or more persons conclude an agreement they agree to create a legal relationship between them - Courts will give effect to the expressed intention of the parties, however absurd the consequences may be – Parties bound by the terms of the agreement they concluded and the court has to enforce those terms- The plaintiff pursuing the claim for payment in the respect of the interest - Interest - Mora - Nature of - Rate of interest - Liability for mora interest would follow inevitably if a debtor failed to pay a contractually agreed monetary obligation when performance was due and enforceable. Practice — JCM – A pre-trial conference order is a compromise through and through-Thus binding on the parties. Markus v Telecom Namibia Limited (I 286/2009) [2014] NAHCMD 207 (23 June 2014).

Contract – Damages arising from breach of a written contract between the parties – Duty to mitigate loss rest on the aggrieved party – Legal principles on mitigation of

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losses reiterated – Aggrieved party who took reasonable steps also entitled to recover losses occasioned by the taking of these steps – Held that the employ of an estate agent is reasonable enough to entitle the plaintiff to recover agent’s fees from the defendants. Vogt v Erasmus (I 3943 / 2010)[2014] NAHCMD 200 (25 June 2014).

Contract – Rectification – Essential allegations that should be set out and proved in claim for rectification – Terms of lease agreement lifted from a pre-prepared lease agreement obtained from a legal practitioner and parties drafted their agreement by a process of cutting and pasting – Parties agreed that their agreement was misrecorded in three clauses – But defendant resisted rectification of two other clauses – Court held that on the facts and in the circumstances it was more probable than not that those two clauses also did not reflect the common intention of the parties and so the probabilities favoured the version of the plaintiff that the parties did not agree upon those clauses – Consequently, court granted plaintiff rectification. Burger v Bowig (I 1771/2013) [2014] NAHCMD 268 (16 September 2014).

Contract of insurance – Insurance –Time limits for insured to make a claim, to challenge insurer’s rejection of claim, to institute legal action by serving summons on insured – Court found that in terms of the contract of insurance where the time limit for serving summons has expired the claim became prescribed and the insurer was not liable for the claim. Mushindi v Hollard Insurance Company of Namibia (I 1362/2013) [2014] NAHCMD 229 (31 July 2014).

Contract of Insurance - Disability insurance - Obligation to pay interest - When insurer in mora - Interest may be due from the nature of the case, where, for instance, the time for performance is fixed either by agreement or the law (mora ex re); or where in the absence of such agreement, the defendant has been called upon to perform his obligation (mora ex pesona). Rall v Professional Provident Society Insurance Company (Namibia) Ltd (A 224/2013) [2014] NAHCMD 249 (22 August 2014).

Contract – Contract - Formation - Admission of an obligation in an existing contract - Such an acknowledgment of debt, provided it is coupled with an express or implied undertaking to pay that debt, gives rise to an obligation in terms of that undertaking when it is accepted by the creditor; and it does not matter whether the acknowledgment is by way of an admission of the correctness of an account or otherwise. Rall v Professional Provident Society Insurance Company (Namibia) Ltd (A 224/2013) [2014] NAHCMD 249 (22 August 2014).

Contract – Breach of contract arising from memorandum of agreement between the parties – Defendant committed a breach by resigning before completion of the training program – Failed to establish that plaintiff waived the duration of the training program –

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Plaintiff entitled to refund. Telecom Namibia Ltd v Kalipi (I 2397/2011) [2014] NAHCMD 275 (18 September 2014).

Contract – Sale – Land – – Cancellation – Purchaser in breach – Court held that where the contract lays down a procedure for cancellation that procedure must be followed, otherwise the purported cancellation will be ineffective – In instant case court found that the seller did not follow the procedure for cancellation upon alleged breach of a material term of the agreement – Consequently court concluded that the purported cancellation was ineffective. Van Rooi v Town Council of Rehoboth (A 133/2014) [2014] NAHCMD 317 (30 October 2014).

Contract – Purchase and sale – Claim for cancellation and restitution of purchase price – Where seller has expressly given warranty that merx is fit for purpose for which it is sold, there is no basis on which reliance can be placed on a naturale of the contract to same effect, except in the alternative – If intention is to rely on such an implied term, it must be pleaded since the relief sought will depend on it, failing which it is not open to plaintiff to rely on actio redhibitoria. Unique Caterers and Tents CC v Anthony (I 2187-2910) [2014] NAHCMD 364 (27 November 2014).

Contract – Breach of contract arising from unprofessional workmanship. Josua v Nambala ta City House Service (I 3066/2010) [2014] NAHCMD 346 (14 November 2014).

COSTS

Costs – Question of costs in an opposed liquidation application which was withdrawn. The applicant had launched its application on the basis of a statutory demand contemplated by s350 of the Companies Act. But it also instituted an action for the same claim a few days later which became defended. This was not disclosed in the liquidation application. The respondent established that it bona fide disputed the claim on reasonable grounds. It followed on an application of the test articulated in Kalil v Decotex 1988 (1) SA 943 (A) that the application would not have succeeded with its liquidation application. The respondent thus entitled to its costs. Orion Cold Storage (Pty) Ltd v Deep Catch Trading (Pty) Ltd (A 260/2013) [2014] NAHCMD 72 (5 March 2014)

Costs – Agreement to postpone trial – Parties failing to agree about costs – Plaintiff praying for wasted costs of the day – Defendant claiming that matter not ready for trial as both parties at fault – Defendant praying that each party bears own costs – Defendant filed late notice of amendment of plea involving withdrawal of admissions of

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fact – Plaintiff opposing amendment - Plaintiff filing late rule 36(9)(a) expert notice out of sequence after rule 36(9)(b) expert summary filed – Defendant claiming prejudice – Expert report attached to particulars of claim – Defendant should have prepared independently on issues raised in particulars of claim – Defendant not prejudiced – True reason for postponement is defendant’s late amendment – Defendant ordered to pay wasted costs of the day. Horn v Municipal Council of Swakopmund (I 50-2009) [2014] NAHCMD 89 (19 March 2014).

Costs - It is generally understood in our law that the question of cost is a matter for the discretion of the Court which discretion of course must be exercised judicially taking into account the facts and circumstances surrounding the case – Appointment of judicial manager for the company under provisional liquidation - Candidate in the meantime entering into another business in direct competition with the subject company - Conflict of interest - An order that cost be cost in the liquidation would be to the detriment of the creditors of the second respondent which includes the applicant – First respondent (candidate) should be ordered to pay the cost of the application. Jansen v Schaefer-Stiege (A 57/2014) [2014] NAHCMD 162 (20 May 2014).

Award of Costs - Debt collection cases falling within the jurisdiction of the magistrates’ courts. The court, in the exercise of its discretion, declining to award any costs in such matter unless good and sufficient circumstances are shown to exist to warrant the institution of such matters in the High Court. Kalahari Wire Product (Pty) Ltd v Property Investments No 5 CC (I 2347/2014) [2014] NAHCMD 191 (20 June 2014).

Costs - Interrelated applications arising from the taxation of a cost order granted in favour of Petherbridge Law Chambers. The court ordered set aside the refusal of the Deputy Sheriff to proceed with execution and to pay over funds held in trust and paid as security to him. The application to set aside the writ execution in respect of the court order found to be without a basis and dismissed. Petherbridge Law Chambers & Another v The Acting Deputy Sheriff of the District of Windhoek & others (A32/2013) [2014] NALCMD 232 (30 July 2014).

Costs - A party who continues to insist on obtaining an order which the other party has already acceded to should be censured by the courts as it is a waste of the courts time and an abuse of the legal system. Applicant applied that he be allowed to remain in the house which was previously allocated to him pending the determination of his labour dispute with his employer. When the matter came for hearing, respondent (his employer) acceded to his request, but instead of withdrawing the application he persisted with the said order. In addition thereto he sought a claim for damages in the sum of N$6900 000 ± from respondent. Application to stop eviction was dismissed as it was no longer relevant and was advised to proceed separately for his claim for

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damages. Shirichena v Namibia Training Authority (A 16/2014) [2014] NAHCNLD 46 (16 July 2014).

Costs – Taxation thereof - A party which is not happy with the decision of the Registrar with regards to security for costs is entitled to approach the court for review of that decision. The Registrar’s decision is final and the court can only set it aside if it unreasonable, too high or has been actuated by ulterior motives. A peregrinus is obliged to pay security for costs unless he has immovable property within the jurisdiction of the court. A peregrinus who initially offers to pay certain amount as security for costs and later withdraws the said offer and thereafter refuses is regarded as lacking bona fides in his argument that he is unable to pay. In determining his ability to pay, the court takes into account various factors. Applicant (Prosecutor-General) applied for security for costs before the Registrar. Respondent (a peregrinus) offered N$60 000. The Registrar ordered respondent to pay N$200 000 which she later reduced to N$140 000. Respondent was not happy with both figures. Respondent argues that he was not in a position to pay any amount including the N$60 000 which he had initially offered. Prosecutor-General v Nzinu (A 22/2013) [2014] NAHCNLD 38 (02 July 2014).

Costs – In interlocutory motions capped by rule 32(11) - But court has discretion - Costs order in excess of capped amount may be given if, inter alia,: a clear case is made out, based on the importance and complexity of the matter and the fact that the parties are litigating at full stretch; the parties must be litigating with equality of arms; reasonableness or otherwise of a party during the discussions contemplated in rule 32(9) ; the dispositive nature of the interlocutory motion and the number of interlocutory applications moved in the life of the case. South African Poultry Association v The Ministry of Trade and Industry (A 94/2014) [2014] NAHCMD 331 (07 November 2014).

DEFAMATION

Defamation – Media – Defence of reasonable publication – Defendant must show that publication was reasonable and in the public interest in order to establish that publication was not wrongful – Court held that French philosopher Voltaire’s counsel that in the case of news, we should always wait for the sacrament of confirmation finds expression in the Code of Ethics of the Society of Professional Journalists and a factor to be taken into account in determining whether publication is reasonable. Nghimtina v Trustco Group International Ltd (I 2976/2010) [2014] NAHCMD 11 (23 January 2014).

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Defamation - A union leader had written a letter to the then Chancellor of the University of Namibia calling for an inquiry into alleged irregularities and corrupt conduct involving the Vice-Chancellor and members of the top management of the university. The letter came into the hands of the Informante, a weekly newspaper which prominently published the allegations together certain further embellishments of their own upon them. The Vice-Chancellor and members of UNAM’s top management instituted defamation claims against the union leader and the reporter, editor and publisher of the newspaper. The court upheld a defence of qualified privilege in respect of the claim against the union leader. The media defendants raised defences of truth and public interest, fair comment based upon essentially time facts, reasonable publication and proposed that the defence of qualified privilege be extended as a general defence to the media in matters of public interest. The court rejected this proposal and confirmed the position under common law that such a defence would only be open to the media in rare and appropriate cases and that the instant did not meet the requisites for the defence. The court also found that the other defences raised by the media defendants were not established by them and awarded the plaintiffs damages. University of Namibia v Kaaronda (I 1838/2010) [2012] NAHCMD 221 (23 July 2014).

Defamation – Claim for defamatory statements repeated to various persons and on various occasions over period of about two years – Statements held to be defamatory – In denying liability defendant’s case was that statements were published only after the contents thereof had become common knowledge – This defence rejected - Person who publishes a defamatory rumour cannot escape liability on the ground that he passed it on only as a rumour, without endorsing it - In denying liability, defendant relying, inter alia, on alleged truth of statements – Truth per se is no defence – The truth of the statement is only a defence if it is published for the public benefit - Defendant must plead and prove that statements the truth and published for the public benefit – In casu not pleaded – Held that defendant cannot rely on such defence – One of statements made for purposes of court proceedings – Defendant sought to raise defence of qualified privilege during trial – Such defence not pleaded – Held that defendant cannot rely on such defence – Held further on facts that defendant did not rebut presumptions that defamatory statements made wrongfully and with animus iniuriandi - Plaintiff awarded N$40 000. Nuule v Kambwela (I 629-2009) [2014] NAHCMD 219 (21 July 2014).

Defamation - Plaintiff, a businesswoman, claiming damages of N$ 150 000.00 on account of being called a witch at a funeral of her half-brother where it was intimated that she had been responsible for his death – although allegations in principle serious – it having been alleged that it is trite that traditional communities still believe in witchcraft – court nevertheless holding that Namibia strives to be a modern civilised society, in which allegations of witchcraft and to be a witch must have lost some of its sting – Court

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- after taking into account various factors - awarding N$ 50 000.00 in damages to Plaintiff. Mbura v Katjiri (I 4382/2013) [2014] NAHCMD 265 (30 July 2014).

Defamation – Claim for damages – Defamatory statements issued in newspapers accusing the plaintiff to be a “witch” – Such Statements defamatory in nature – Award of damages not quantified – Courts hesitant on granting big awards in defamatory cases – Award for damages reduced. Nahole v Shiindi (I 220/2014) [2014] NAHCNLD 53 (03 October 2014).

DEFAULT JUDGMENT

Default Judgment - Application for default judgment based upon an agreement where the consideration was stated to be for the defendant become sole trustee and sole beneficiary of a trust which owned immovable property. The court required that it be addressed as to whether the agreement was valid and enforceable on the grounds of being in faudem legis of the Transfer Duty or Stamp Duty Act or contra bonos mores by reason of the forfeiture instalments and because it contemplated that the defendant become sole trustee and beneficiary. The court found that the agreement was simulated and in fraudem legis of the Transfer Duty Act and set it aside. Ellis in his Capacity as Trustee of Eldo Trust v Noabeb (I 3565/2013) [2014] NAHCMD 81 (12 March 2014).

EXCEPTION

Rule 23 - The particulars of claim should be concise and sufficiently clear. A claim which is capable of more than one interpretation deprives defend to defend and is vague and embarrassing – Exception will be upheld if the vagueness goes to the root of the cause of action – The excipient must show that if left unattended it will result in defendant’s prejudice. Lubrication Specialists (Pty) Ltd v Etosha Lubricants CC (I 2698/2012) [2014] NAHCMD 18 (24 January 2014).

Rule 23 - Failure to cite an interested party renders a judgment obtained against him a nullity and of no force or effect – Particulars of claim should be clear and concise in order to enable defendant to plead – The claim should be clear whether it arises from a contractual, statutory or delictual duty – The courts will allow uphold an exception not only if it is vague and embarrassing but if such vagueness and embarrassment is prejudicial to the defendant – Justice demands that plaintiffs be awarded an opportunity to amend its particulars of claim within 15 days – Plaintiffs to pay the costs. Van Straten N.O. v Namibia Financial Institutions Supervisory Authority (I 647/2012) [2014] NAHCMD 31 (31 January 2014).

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Rule 23 - Suspensive condition in contract of purchase and sale – Assuming that condition for exclusive benefit of plaintiff – May be unilaterally waived by plaintiff - Party relying on its own waiver of a suspensive condition - Must allege and prove all elements of valid waiver in order to sustain claim that contract has come into existence despite non-fulfilment of condition - This includes allegations that party had full knowledge of right it waived and that it communicated abandonment of right to other party - In casu such allegations lacking – Exception upheld. Namibia Development Corporation v Universal Wood Industries (Pty) Ltd (I 1188-07) [2014] NAHCMD 48 (14 February 2014).

Rule 23 - Exception on the basis that particulars of claim does not disclose a cause of action – The cause of action relied upon by plaintiff must have existed at the time when the summons was issued. The integration rule, in general, where an agreement between parties is embodied in a document no evidence may be given of its terms except the document itself, nor may the contents of such document be contradicted, altered, added to, or varied by extrinsic evidence. Causes of action which arose after issue of summons may be joined to the existing ones in the same action. Where an exception that pleadings disclose no cause of action is upheld, the court should set aside the pleadings and not dismiss the action. Development Bank of Namibia Limited v Kubaraf Development Enterprise CC (I 240/2013) [2014] NAHCMD 67 (26 February 2014).

Rule 23 - Exception - Not ground for exception that one of several claims arising out of one cause of action is not supported by the particulars of claim – Pleadings - Exception - On ground that pleading vague and embarrassing - Must go to whole cause of action and not to particular paragraphs of pleading. Wiers v Wiers (I 3133/2011) [2014] NAHCMD 66 (26 February 2014).

Rule 23 - In an interlocutory application – respondent is required to file his heads of argument 10 days before the date of the hearing. – Where a party in his plea relies on a written lease agreement such agreement should be attached in terms of rule 18(6) of the Rules of the High Court. – Failure to comply with this rule will result in the exception being upheld. Applicant proceeded against respondent for his ejectment. Respondent resisted this move relying on a written lease agreement which he was unable to produce. Respondent’s legal practitioner failed to file his heads of argument timeously and did not apply for condonation as he was under the impression that he was supposed to file a day before the hearing. Application for an exception upheld. Khomas Regional Council v Namene (I 1847/2012) [2014] NAHCMD 102 (27 March 2014).

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Rule 23 – Exception to plea on the basis that it does not disclose a defence. Standard Bank Namibia Ltd v Kapuuo (I 1534/2013) [2014] NAHCMD 128 (07 April 2014).

Exception - Exception taken against portions of further amended particulars of claim on the grounds that such portions were vague and embarrassing. Defendants failing to establish vagueness and furthermore unable to establish vagueness amount embarrassment and prejudice. Furthermore the exception complains about the use of two terms and does not go to the whole cause of action. Exception proceedings inappropriate. Exception dismissed with costs. Van der Merwe v Arangies (I 4235/2008) [2014] NAHCMD 202 (25 June 2014), see further Caterplus Namibia (Pty) Ltd v Hallie Investment One Hundred and Forty Two CC (I 3086/2012) [2014] NAHCMD 192 (20 June 2014).

Rule 23 – Practice and procedure – Pleadings – Pleadings should contain the facts upon which the pleader relies and not the evidence. Pleading vague and embarrassing - Exception upheld. Stewart NO v Engelbrecht (I 1699/2013) [2014] NAHCMD 287(26 September 2014).

Exception – Doctrines of estoppel by representation and waiver of rights: when applicable – Reliance on disputed paternity for the inference of adultery – Duty of father in such circumstances – Section 9 of the Children’s Status Act 6 of 2006 casts a presumption of paternity on a father married to the mother of child – Father has duty to lay foundation in pleadings in order to reverse presumption – Section 10 of the Children’s Status Act confers a discretion on High Court as the upper guardian to order paternity test if ‘in the best interest’ of the child – Court not willing to exercise such discretion absent a specific allegation by father that paternity test in children’s best interest, especially given his inaction over a long period of time to make paternity an issue. LNL v LJL (I 2406/2013) [2014] NAHCMD 309 (17 October 2014).

Exception — On ground that particulars of claim not disclosing cause of action as plaintiff had failed to allege compliance with Section 39(1) of the Police Act 1990 – Court holding that a proper and timeous notice under s 39(1) was a pre-condition for the institution of a civil action arising under the Police Act 1990 and that a litigant who relies on a particular section in a statute must say so, and in addition to referring to the section must plead the facts which entitle him to invoke the section and that the failure to do so rendered the particulars of claim excipiable – exception thus upheld with costs. Indilinga Systems Design & Logistics CC v The Minister of Safety and Security (I 209/2013) [2014] NAHCMD 264 (20 May 2014).

Exception – Practice — Pleadings — Exception — On ground that particulars of counterclaim not disclosing cause of action — The crux of the first and second plaintiffs

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counterclaim was the alleged invalid registration of the property in the name of plaintiff in convention due to the fraud perpetrated by one Shikongo in respect of which a bond had subsequently been registered in favour of the fourth defendant to the counterclaim, the excipient in this instance – In casu excipient arguing that there had been no suggestion nor any facts pleaded in the counterclaim that when steps taken to have the property in question transferred there was no real intention to transfer ownership and that – in any event – fraudulent intent does not scupper the intent to pass transfer, that the registration of transfer should stand and that no case had thus been made out for the cancellation of the bond. Lema Enterprises CC v Orban Investments Three Seven Five (Pty) Ltd (I 1085/2012) [2014] NAHCMD 324 (19 September 2014).

Exception – Practice – Pleadings – Exception to plea and counterclaim – Point in limine that exception to plea delivered while plaintiff under automatic bar to be struck out upheld – Argument rejected that counterclaim not excipiable because parties put differing interpretations on statutory provisions on which counterclaim is based - Transaction whereby farm, being agricultural land, is donated to close corporation to be incorporated and whereby donor’s 100% member’s interest in close corporation is sold to another is not in contravention of Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995,) prior to its amendment by Agricultural (Commercial) Land Reform Amendment Act, 2002 (Act 13 of 1995) – Exception upheld to principal counterclaim based thereon that such transaction illegal and therefore void and unenforceable. Gunchab Farming CC v Barnard (I 3905-09) [2014] NAHCMD 345 (14 November 2014).

IRREGULAR PROCEEDINGS

Rule 30 application – Applicant must elect a proper procedure when attacking an irregularity – The court cannot review its own decision – Provisions of Rule 31 (2) (b) must be complied with in an application for a rescission of judgment – Application dismissed. Sandvoss v Sudwischer (I 719/2013) [2014] NAHCMD 17 (24 January 2014).

Practice – Irregular proceeding – Two-stage approach enunciated by Supreme Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) adopted in present enquiry – If step is irregular, court to determine whether innocent party prejudiced – In instant case respondents’ filing of answering affidavit constituting irregular step – Court held that the irregular step prejudiced applicants because the step whittled away the applicants’ procedural rights under rules of court – Consequently, court upheld the rule 30 application and treated the filing of the answering affidavit as a nullity. Tumas Granite Close Corporation v The Minister of Mines and Energy (A 95/2013) [2014] NAHCMD 210 (10 July 2014); Namibia Bunker

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Services (Pty) Ltd v ETS Katanga Futur (A393-2009 A425-2009) [2014] NAHCMD 197 (23 June 2014).

Irregular proceedings — What constitutes — whether the bringing in the High Court of an application for the rescission of a default judgment granted in the Magistrates’ Court constitutes an irregular step or proceeding – court holding that the general rule was that applications for rescission of judgment should normally be brought in the Magistrates’ Court but that the High Court, nevertheless had jurisdiction and thus a discretion to allow such an application to proceed in the High Court if considerations of justice and convenience required it to proceed – Practice — Irregular proceedings — Application in terms of rule 30 of the High Court — Rule 30 applications in essence apply to ‘irregularities of form’ as opposed to ‘matters of substance’ – as the question of whether or not an applicant has shown ‘good and sufficient circumstances’ which would warrant that the High Court entertain an application for the rescission of a default judgement granted in the Magistrates’ Court on ‘considerations of justice and convenience’ would however be a question of fact and evidence - i.e. it would be a question of ‘substance’ rather than ‘form’, which question should rather be raised by way of a special plea and should be determined after the hearing of evidence and argument with reference to the particular circumstances pertaining to the particular case serving before the court and not by way of a Rule 30 application -

First respondent’s application in terms of Rule 30 accordingly could not succeed on this ground as the rescission application brought in the High Court could not be regarded as an irregular step or proceeding per se. Practice — Irregular proceedings — What constitutes — whether the utilization of the wrong from and constrained time periods afforded to the first respondent by the applicant in the notice of motion rendered the rescission application irregular – Court holding that although the notice of motion contained a prayer for condoning any non-compliance with the rules no grounds were advanced for the abridgement of the time periods set and no basis for the non-compliance with Rule 6 was laid in the founding papers – In any event it was also clear from the overall facts pertaining to the matter that the rescission application was not urgent – Court holding further that as the rules of court are designed to achieve procedural fairness it would always have been incumbent on the applicant to set a procedure in his notice of motion that would have given effect to procedural fairness - a requirement that is obligatory in order to ensure the fair trial rights afforded to litigants also in civil proceedings by the Constitution would be afforded to a respondent.

As this fundamental requirement was not met - which for obvious reasons caused material prejudice to the 1st respondent – court exercising its discretion in favour of the 1st respondent on the second ground of irregularity advanced and granting 1st

respondent’s application in terms of Rule 30 on the second ground raised. Maletzky v M

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and Z Passenger Vehicles a Division of Metje and Ziegler Ltd (A 325/2013) [2014] NAHCMD 267 (01 August 2014).

INTERPRETATION OF STATUTES

Fencing Proclamation – Applications — Removal of structures and fences erected between adjoining farms — Dispute — Fencing Proclamation — Applicable to erection and maintenance of dividing fences between adjoining farms. Gloria Dawn Farming CC v Van Der Merwe (A290/2003) [2014] NAHCMD 7 [21 January 2014].

Custom and Excise Act - Revenue - Customs and excise - Liability of clearing agent for payment of duty - 'Any person who exports' in terms of s 18 (2) of Customs and Excise Act, 1998 (Act No 20 of 1998) to pay customs and excise duties. Principal and surety - Suretyship - What amounts to – Surety’s of obligation to pay is dependent upon the existence of a particular state of affairs (the breach of contract by the principal debtor or it’s agent) that is an obligation that arises when that state of affairs exists and is enforceable as such. Worker Freight Services v The Commissioner for Customs and Excise (A 128/2012) [2014] NAHCMD 38 (07 February 2014).

Magistrate’s Courts Act – Misconduct - Magistrates Commission – Commission recommending dismissal of magistrate based on misconduct – Minister of Justice dismissing magistrate – Magistrate aggrieved by dismissal launching review proceedings – Point in limine taken that mandatory to follow appeal procedure in terms of section 21(4) of Magistrates Act, 3 of 2003 – Held that appeal provided for is appeal in ordinary sense – Permissible to bring review proceedings – Point in limine dismissed.Magistrate – Misconduct – Magistrates Act, 2003 (Act No.3 of 2003) - Presiding officer who investigates alleged misconduct may make finding without having transcribed record of proceedings – Presiding officer need not provide reasons for findings at time they are made – In terms of section 26(12)(b) written reasons to be provided to Magistrates Commission within 7 days after conclusion of investigation. Magistrate – Misconduct – Magistrates Act, 2003 (Act No.3 of 2003) – Magistrate guilty of misconduct given opportunity to resign within 14 days in terms of section 26(17)(b) – Magistrate failed to resign - Magistrate requesting documents from Magistrates Commission outside time period of seven days prescribed in section 26(13) and after recommendation for dismissal was forwarded to Minister of Justice – Refusal of Commission to provide documents no ground for setting aside notice conveying opportunity to resign. Magistrate – Misconduct – Magistrates Act, 2003 (Act No.3 of 2003) – Dismissal of magistrate by Minister of Justice printed on letterhead of

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Magistrates Commission – Error does not vitiate dismissal – Documents which Minister of Justice considered sufficient to establish that she dealing with dealing with decision of Commission – Power of Minister under section 21(3) very narrow – Must dismiss magistrate on recommendation of Commission. Le Roux v Minister of Justice (A 214-08) [2014] NAHCMD 60 (20 February 2014).

Public Service Act - Public Service Act, 1995 - Paragraph 5(h) of Annexure A to Part D.I /XI of the Public Service Staff Rules providing that staff member who was granted study to continuously serve the State in an office, ministry or agency – Words 'office, ministry or agency' in Public Service Staff Rules mean, office, ministry or agency established as contemplated in Article 32(3)(g) of the Namibian Constitution. Government of the Republic of Namibia v Heita (I 1402/2012) [2014] NAHCMD 69 (26 February 2014).

Public Service Act, 1995- The conditions of employment of persons employed in the public service are determined in terms of the Public Service Act, 1995 - Section 13 (1) of the Public Service Act, 1995. Pension Funds Act, 1956 – The Pension Funds Act, 1956 and the Rules made by a Fund (in this instance the first defendant) in terms of that Act do not determine the conditions of employment of a person employed in the public service. Ilse v Government Institutions Pension Fund (I 1929/2012) [2014] NAHCMD 122 (04 April 2014).

INQUEST

INTERDICT

Interim Interdicts - An applicant who has received injustice before is legally entitled to take preventative steps when he sees respondent’s behavior and conduct threatening to repeat the same wrongful conduct. In order for applicant to succeed in an application for an interdict, it must establish a) clear right, b) an injury actually committed or reasonably apprehended; and c) absence of adequate remedy. Applicant whose tender bid had been unlawfully and wrongfully interfered with previously by respondents applied for an interdict when it appeared to it that respondents were going to repeat their tactics of acting in a manner that would prejudice it. Application for an interdict was granted. Free Namibia Caterers CC v Chairperson of the tender Board of Namibia (A 52/2014) [2014] NAHCMD 103 (27 March 2014).

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INTERPLEADERSee Deputy Sheriff of Oshakati v Masshire Equip Services (I 3903/2013) [2014] 351(29 October 2014)

JOINDER

Joinder – Review application — Joinder of parties — When required — Failure to do so fatal to applicants case — Application dismissed with costs. Namibia Construction (Pty) Ltd v The Chairperson of the Tender Board (A 283/2007) [2014] NAHCMD 6 (21 January 2014).

Practice - Parties - Joinder - Non-joinder of necessary party - Inherent jurisdiction of Court to require joinder of such party in proceedings already instituted - In casu - Respondent - by way of an ex parte application – seeking an order declaring certain judgments granted in favour of applicant null and void – such relief directly impact on the rights that the other party has acquired through the judgments which are to be assailed. Before any such judgment is set aside – on whatever ground - the affected party will be entitled to defend any rescission attempted in this regard - Under the common law the Court has the inherent power to order the joinder of further parties to a case - which has already begun - to ensure that all persons - with the requisite interest in the subject matter of the dispute - and whose rights may be affected - are before the Court – the applicant was such a party – Despite dismissing the applicant’s application for leave to oppose the ex-parte application, which the respondent had brought on an in limine objection – court nevertheless ordering the joinder of that applicant as a respondent to the main application. Namibia Financial Institutions Supervisory Authority v Christian t/a Hope Financial Services (A 35/2013) [2014] NAHCMD 54 (28 January 2014).

Practice - Parties - Joinder - Applicant applying for an order directing the consolidation of actions against it - When to be ordered. Kandjii v Awaseb (I 2696/2012) [2014] NAHCMD 177 (11 June 2014).

JURISDICTION OF THE HIGH COURT

Practice – Declaratory orders – Power of the court to grant governed by s 16 of High Court Act 16 of 1990 – Court finding that the applicants have failed to establish a right

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which the court may protect – Consequently, court exercised its discretion against granting the declaratory orders sought. Kamahere v The Government of the Republic of Namibia (A 58/2014) [2014] NAHCMD 209 (10 July 2014).

Incolae - Approached this Court on an urgent and ex parte basis for an order ad fundandam jurisdictionem alternatively ad confirmandam jurisdictionem in respect of certain movable property of the respondents who are both peregrine of this Court. Labuschagne vs Gaerdes (A 63/2014) NAHCMD 277 (22 September 2014).

Jurisdiction of the High Court - Ouster of the High Court's jurisdiction is not readily assumed - Where a forum other than the High Court has been given jurisdiction by the legislature over a matter falling within the High Court's jurisdiction, the inquiry is not so much about whether that forum is the more convenient or suitable forum but whether the legislature in express language intended to exclude the jurisdiction of the High Court. Katjiuanjo v The Municipal Council of the Municipality of Windhoek (I 2987/2013) [2014] NAHCMD 311 (21 October 2014).

LAW ON AGENCY

Principal and agent – Authority of agent – Authority of agent must be established unless a party is able to rely on ostensible authority – Court held that such authority may be evidenced by direct proof of an express authorization or by way of inference – Court found that in instant case at the close of the plaintiff’s case the plaintiff has failed to establish the authority of alleged agent of the defendant. Congo Trading CC v E & Jay Trading Enterprises CC (I 2971/2012) [2014] NAHCMD 136 (14 April 2014).

LAW OF DELICT

Damages - Action for malicious prosecution. Defendant a private citizen who laid a charge of theft against the plaintiff. Defendant aware that the facts do not prove theft. Not sufficient that defendant merely provided the facts to the police. In addition defendant must assist in or associate himself with the prosecution. In casu this was established. Damages awarded. Meyer v Felisberto (I 2705/2012) [2014] NAHCMD 85 (14 March 2014).

Law of nuisance – Conduct of the respondent must be unreasonable – Whether or not conduct is unreasonable is a question of fact to be determined objectively – Onus on the applicant. Motion proceedings – Bona fide dispute on questions of fact raised by the

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respondent – Approach to be adopted by the Courts. Application dismissed. Ero CC v Mars Properties (Pty) Ltd (A 101/2013) [2014] NAHCMD 171 (30 May 2014).

Medical negligence - Plaintiff sustained a gunshot wound to the upper part of his right leg – Admitted to the Katutura state hospital approximately nine hours after - No attempt was made to attend to the vascular injury - The probabilities indicate that this failure was attributable mainly to a wrong diagnosis made by Dr. Domingos, a medical practitioner employed by the first defendant - Dr. Domingos incorrectly recorded that the plaintiff’s leg was warm and that the pulses were strong - He concluded that plaintiff was in a stable condition – A day after , Dr. Nel, a specialist surgeon and Dr. Burger attended to the plaintiff. Dr. Nel concluded that the plaintiff’s leg was in rigor mortis and not salvageable – Plaintiff’s leg amputated - The standard of care fell below what is expected of a reasonable doctor in a major Centre - First defendant is liable to compensate the plaintiff. Kasingo v Minister of Health and Social Services NO (I 925/2012) [2014] NAHCMD 174 (03 June 2014).

Enrichment – Defendant, a Police Officer discharged from the Police Force due to absenteeism received monthly remuneration after discharge – Plaintiff – Managed to prove all elements for unjust enrichment – Claim granted in favour of plaintiff .The defendant, a Police Officer who has been discharged from the police force due to absenteeism in terms of section 9 of the Police Act 19 of 1990 received his monthly remuneration after the discharge. Plaintiff has instituted a claim for the payment of the remuneration so paid on the basis of unjust enrichment against the defendant. Plaintiff managed to prove all elements for unjust enrichment and was granted the relief claimed. The Government of the Republic of Namibia (Minister of Safety and Security) v Ipinge (I 739-2012) [2014] NAHCM 196 (23 June 2014).

Law of Trusts - Personal Liability of trustees to trust creditors. There is no absolutely immunity for trustees. If they act negligently they may incur liability. Herbert v Britz NO (I 2188/2006 [2014] NAHCMD 276 (19 September 2014).

Negligence – Duty of a driver on a public road – Duty to have reasonable consideration for other persons using the road – Court held that s 81 of the Road Traffic and Transport Act 22 of 1999 and other provisions of the Act provide norms according to which the conduct of drivers may be judged and a breach of any of them may be relied on as establishing the delictual liability of parties in a collision. Delie v Hoebeb (I 2498/2013) [2014] NAHCMD 271 (18 September 2014). See further Van Schalkwyk v Government of the Republic of Namibia (I 3388/2013) [2014] NAHCMD 310 (17 October 2014) on negligence arisng from motor vehicle collision.

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Action for damages - Delicts affecting plaintiff's personality and bodily integrity - Onus normally on defendant to prove excuse or justification, such as self-defence or necessity unless pleadings throw onus on plaintiff - Onus likewise on defendant to prove that force used in defending himself was reasonable and commensurate with plaintiff's aggression. Negligence - Damages - Damages claimed in delictual actions for injury to a thing are to be assessed on the principle that the plaintiff must by monetary compensation be placed in as good a position financially as he would have been had the damage not been inflicted. Negligence - Damages -If a thing has been wrongfully damaged, the ordinary measure of damages will be the difference between the market value of the thing immediately before the wrong was committed and the market value of the thing after the commission of the wrong. Meyer v Scholtz (I 3670/2012) [2014] NAHCMD 148 (25 March 2014).

LAW ON DURESS

LAW OF EVIDENCE

Evidence – In civil proceeding – Where court is faced with two mutually destructive versions of facts – Approach to determination of dispute of facts – Court to apply its mind not only to the merits and demerits of the two sets of versions but also to their probabilities – It is so applying its mind that court would be justified in deciding which version to reject and which to accept. Jin CV Joint Fitment Centre CC v Hambabi (I 1522/2008) [2014] NAHCMD 73 (6 March 2014).

Evidence – Admissibility of Computer-printouts - Action for damages arising from alleged misappropriation of money over certain period – Plaintiff’s case wholly dependent on admissibility of computer print-outs – Plaintiff handed in several computer print-outs during testimony of witness who also deposed to affidavit in terms of section 2(1), (2), (4) and (5) of Computer Evidence Act, 1985, (Act 32 of 1985) to authenticate the computer print-outs in order to ensure their admissibility – Evidence during cross-examination showing that witness only began employment at plaintiff after period alleged by plaintiff – Witness did not comply with peremptory provisions of section 2(3)(a) of the Act, which provides that the ‘deponent to an authenticating affidavit shall be some person who is qualified to give the testimony it contains by reason of his knowledge and experience of computers and of the particular system by which the computer in question was operated at all relevant times’ - Witness also testified that computer system had loopholes, no proper control and security measures and was

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open to abuse – Witness not in position to make authenticating affidavit – Computer print-outs ruled inadmissible – Claim dismissed. Nored Electricity (Pty) Ltd v Angula (I 7-2004) [2014] NAHCMD 142 (16 April 2014).

Evidence - Practice – Civil claim – Plaintiff lay litigant – failure to present evidence to prove claim – claim dismissed with costs. The plaintiff who litigated in person failed to present evidence to prove her claim of N$3 000 000.00 resulting in her claim being dismissed with costs. Madisia v Steytler (I 3296/2011) [2014] NAHCMD 135 (14 April 2014).

LAW OF INSOLVENCY

Insolvency - Return date in respect of a provisional order of sequestration. Respondent filing a supplementary affidavit making an offer to settle the applicant’s outstanding debt. The applicant declining to accept that offer. The court cannot compel a party to accept a settlement offer in the circumstances. A creditor establishing its claim and an act of insolvency has an unfettered right to choose its form of execution, one of which is sequestration of the debtor’s estate. The respondent not raising any matter which would disentitle the applicant to a final order of sequestration. Order granted. Bank Windhoek Limited v Jacobs (A 208/2013) [2014] NAHCMD 26 (29 January 2014).

LAW OF PROPERTY

Law of property – Plaintiff seeking declarator that immoveable property, a farm, allegedly fraudulently transferred into the name of first defendant – Plaintiff also seeking an order that title deed at Deeds Registry be ‘rectified’ to record plaintiff as owner; and seeking order that first defendant be evicted from farm – First defendant raising special plea of prescription and after exception thereto seeks to amend special plea – Plaintiff still excepting to special plea on ground that it does not disclose a defence in law as claim to enforce return of property fraudulently obtained not a ‘debt’ as contemplated in Prescription Act, 1969; that ‘rectification’ equally not susceptible to prescription; alternatively, if found to be a ‘debt’, unlawful possession of farm constitutes a ‘continuous wrong’ creating a series of debts arising from moment to moment and thus interrupting prescription.

Held What is important is not the label claimant assigns to claim but effect it has. Present claim seeks the re-transfer of the farm and declarator without relief seeking re-transfer academic. Obiter dicta from pre-independence and other dicta from South Africa, post Namibia’s independence, suggesting that claim seeking vindication of

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property is, regardless of whether or not relating to real right in property, a ‘debt’ in terms of Prescription Act. ‘Rectification’ sought in respect of title deed not the same thing as rectification under common law based on mistake. The cause of action relied on is an alleged act of fraud which led to separation of plaintiff from the farm. That single act not a continuous wrong creating series of debts.

Held Special plea, if given most beneficial construction, capable of disclosing a defence of prescription. Plaintiff’s argument that holding that prescription applies to property fraudulently acquired breaches Art 16 of the Constitution demonstrates that both special plea and exception are arguable as both offer differing interpretations of the Prescription Act and Constitution and can only be determined after full argument.

Held Exception dismissed and first defendant’s amendment of special plea allowed. Ongopolo Mining Limited v !Uris Safari Lodge (Pty) Ltd ( I 3544/20100 [2014] NAHCMD 55 (19 February 2014).

Law of property – Sale - Land - Transfer - Abstract theory of passing of ownership applicable to immovable property - Requirements for passing of ownership being: (1) delivery (registration of transfer); and (2) real agreement, essential elements of which being (i) intention of transferor to transfer ownership, and (ii) intention of transferee to acquire ownership - Ownership not passing where real agreement defective. Land — Sale — Transfer — Fraud inducing transfer — Underlying transaction tainted by fraud — Real agreement defective in that no intention on part of owner to transfer ownership — Requirements for passing ownership not met in absence of intention to transfer ownership - Ownership not passing despite registration. The Court – in deciding the exception - taking into account that the legal principles - which generally underly contracts - also apply to the so-called ‘real agreements’, which involve the transfer of immovable property – and - that in accordance with those principles, contracts which are generally lawful may in certain circumstances be either void or voidable and that an agreement will be void - in accordance with those principles - and thus also a real agreement - underlying the transfer of immovable property - if fraud has vitiated the underlying consent. - As in the present instance it had been alleged that the relevant consensus was obtained through fraud - this was tantamount to alleging a defect in the real agreement underlying the transfer of the property in question - on the basis of which the relief sought by the respondents could be granted. Court therefore concluding that the excipient thus could not show that no cause of action had been made out on the pleadings ie. on all reasonable constructions of the respondent’s counterclaim, as amplified or amended, and, particularly, on all possible admissible evidence that might be led on this score and that the exception therefore had to fail. Exception accordingly dismissed with costs. Lema Enterprises CC v Orban Investments Three Seven Five (Pty) Ltd (I 1085/2012) [2014] NAHCMD 324 (19 September 2014).

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LEGAL ETHICS

Legal practitioner - Misconduct - Unprofessional conduct - what constitutes - applicants’ legal practitioner failing to appear on two occasions at the time that he had set down the same urgent application – Court holding that it is a legal practitioner’s professional duty, to present him or herself – punctually - at court - at the set time - for any hearing – and – that the failure to do so without lawful excuse amounted to unprofessional conduct.

Practice – effect of court’s order striking an application from the roll - Where a court refuses to condone the non-compliance with the rules that is, generally speaking, the end of that particular process unless the court gives other directions regarding its prosecution or unless the parties otherwise agree. Because there was no adjudication on the merits of the disputes between the parties, a litigant may, now in the ordinary course and using the prescribed form, bring such dispute before the court. However, once the matter is struck from the roll for lack of urgency, it is no longer part of the litigious process and an applicant is left with various options which he can choose from.

Practice - in Swakopmund Airfield CC v Council of The Municipality of Swakopmund applied – the Supreme Court formulated the general rule that, once a matter has been struck from the roll, it is no longer before the court and that generally speaking, that is the end of that process. The Supreme Court has however qualified this general rule by also expressly stating that this would only be so, unless the court gives other directions, regarding the further prosecution of such application, or unless the parties otherwise agree - In casu the court did give such other directions, regarding the further prosecution of the application, in its case management orders of 7 and 14 February 2014 - In addition the application was also served on the respondents after it was struck on three prior occasions – In order to blow new life into the struck application, the applicants were obliged to serve the application, which they did – applicants also delivering a further notice of re-instatement on 18 February 2014, in their quest to formalise the renewed hearing of the application - In the circumstances it was then held that the application did serve properly before the court. Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD 74 (19 February 2014); see further Philander v The Legal Practitioners Disciplinary Committee (A 336/2012) Denk v The Legal Practitioners Disciplinary Committee (A 338/2012) [2014] NAHCMD 319 (30 October 2014).

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LOCUS STANDI

Locus Standi - Return date of a rule nisi granted ex parte. Applicant claimed to be intestate heir as an adopted child under Herero customary law. Locus standi of applicant challenged by denying that he was an intestate heir. The need to prove customary law restated. The court found that the applicant failed to do so and that the claim under customary law was not established. But it was successfully argued that the applicant had standing under common law. The applicant however failed to establish a prima facie right to the relief sought in the form of a review. The court also found that there had been a material non-disclosure in the founding papers prior to the granting of the rule nisi. The rule would also have been discharged for that reason. Tjingaete v Lakay NO (A 34/2014) [2014] NAHCMD 178 (11 June 2014).

Locus Standi - Practice - Pleading - Declaration - Necessity to make averments showing defendant has locus standi - No presumption that a voluntary association is a corporate body. Practice - Party - Locus standi - Party must demonstrate that he has direct interest in the subject of litigation- Such standing cannot be acquired by invoking the fact that party is a member of a given community. Gawanab v !Khomanin Traditional Authority (A 419/2013) [2014] NAHCMD 313 (22 October 2014).

MATRIMONIAL

Divorce – Husband and wife – Where specific quantitative order is sought – Plaintiff should make all the necessary allegations in the summons and particulars of claim. Van Wyk v Van Wyk (I 2995/2013) [2014] NAHCMD 5 (20 January 2014).

Matrimonial property regime - Husband and Wife –– Marriages governed by Proc 15 of 1928 – Such marriages presumed to be out of community of property – However, within one month before solemnization of marriage parties may declare before marriage officer that they wish their marriage to be in community of property – In that case such marriage will be in community of property. Nakanyala v Nakanyala (I 394/2012) [2014] NAHCMD 47 (14 February 2014).

Divorce – Husband and wife – Divorce – Defendant (wife) not defending action respecting dissolution of the marriage but praying for certain anciliary relief – Anciliary relief includes right to immovable property – Plaintiff offered to pay 50 percent of mortgage Bank’s valuation to defendant (wife) in return for the plaintiff becoming the sole and exclusive owner of the property – On the facts and in the circumstances of the case the court granted the relief. Husband and wife – Divorce – Defendant (wife) not defending dissolution of the marriage but praying for certain anciliary relief – Spousal

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maintenance – The court held that a court may only award spousal maintenance if it is proven on a balance of probabilities that he or she is in need of it. Platt v Platt (I 2407/2013) [2014] NAHCMD 84 (13 March 2014).

Divorce – Husband and wife - Divorce - Application seeking a variation of a final order of divorce and declaring the respondent in contempt. Final order granted on 7 April 2011. Application launched in October 2013 and served on the legal practitioners who represented the respondent in the divorce proceeding. In the absence of written authority to accept service, this form of service is ineffective as the application is not covered by rule 4(1)(b). Application struck from the roll. Höfelein v Sharma (A 351/2013) [2014] NAHCMD 63 (21 February 2014).

Divorce – Husband and wife – Divorce – Bigamy – Counterclaim – the purported marriage between the plaintiff and defendant was ab initio null and void and of no force and effect. Hashipala v Petrus (I 4238/2011) [2014] NAHCMD 100 (28 March 2014).

Interim relief - Husband and wife – Rule 43 applications - Application in terms of Rule 43 for maintenance pendente lite and contribution to costs of pending divorce action. Onus on applicant to show a prima facie case in the main action – relies on constructive desertion – bald statement by plaintiff that she has been chronically abused not sufficient – desirable that some details should be given to enable court to deal with application without recourse to viva voce evidence. Declaration of applicant not considered in isolation – Where respondent produces equally convincing evidence showing there is no foundation for the allegations in declaration of applicant, prima facie case not made out and applicant has no claim to an order for maintenance pendente lite nor to an order for a contribution to the costs of the pending divorce action. Stoman v Stoman (I 1209/2013) [2014] NAHCMD 116 (27 March 2014).

Maintenance - Husband and wife – Maintenance – Of minor children of the family – Court held that the burden of supporting a child of the family is common to both spouses and must be borne by them in proportion to their means – Court held further that in considering the means of the parents the court it is equally important to take into account also the financial burden that each party will shoulder respecting the minor children after the divorce and unavoidable expenses that come naturally to the party having custody and control of the minor child. Kauvee v Kauvee (I 2961/2013) [2014] NAHCMD 161 (22 May 2014).

Divorce – Husband and wife - Divorce- Claims by plaintiff - counterclaim by defendant - Malicious desertion- Married in community of property- Division of the joint estate. Munyelutha v Munyelutha (I 201/2013) [2014] NAHCMD 173 (04 June 2014).

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Damages – Husband and Wife – Delicts – Action for damages for adultery, loss of consortium and contumelia – principles restated - Damages – measure of - factors to be taken into account. Useb v Gawaseb (I 1625/2012) [2014] NAHCMD 283 (1 October 2014).

POSTPONEMENT

Practice – Application for postponement – On third occasion that defendant allegedly ill and applied for postponement of trial the Court required that written application under oath be made including an affidavit by a medical doctor - Defendant did not comply but filed application supported only by affidavit by his legal practitioner and attaching medical certificate – Application inadequate – Prejudice suffered by plaintiff not curable by an order for costs - Application refused – Judgment granted for plaintiff and counterclaim dismissed with costs. Katumbe v Kaiyamo (I 14-2012) [2014] NAHCMD 21 (28 January 2014).

PLEADINGS

Amendment - Application to amend at an advanced stage of a trial action. Principles relating to such applications now impacted by judicial case management and rule 37(14). The court is to be more stringent with regard to granting such applications, particularly given rule 37(14) and where it would entail resiling from an agreement to confine issues. Scania Finance Southern Africa (Pty) Ltd v Aggressive Transport CC (I 3499/2011) [2014] NAHCMD 19 (22 January 2014).

Amendment - Practice and procedure – Amendment to pleadings – Judicial case management – Matter enrolled for trial – subsequent application to amend pleadings – Explanation for delay to be explained on affidavit. Nedbank Namibia Limited // Tile and Sanitary Ware CC (I 1545/2009) [2014] NAHCMD 279 (25 September 2014).

Amendment – Amendment of pleading brought late in the proceedings – Counsel advanced reasons that a possible amendment became apparent only when senior counsel became involved at the late stage of the case and that prejudice suffered by the respondent can be cured with a cost order –Where an amendment to withdraw admissions is sought , a reasonable explanation for change of front is required, such reason must be bona fide and there must be special circumstances to allow parties to resile from a court order – With the advent of judicial case management – A judge-controlled civil litigation – the common law position that a party may amend at any stage of proceedings as long as prejudice does not operate to the prejudice of the opponent remains, save that, like every other procedural right, it is also subject to the objectives of

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the new judicial case management regime applicable in the High Court – This places obligations on legal practitioners to through early and thorough preparation identify real issues in dispute for the speedy and expeditious finalization of the matter – New approach to be adopted is that in the exercise of its discretion, court must observe parties’ rights to state their case at any stage and to amend pleadings, even withdraw admissions in a pre-trial order – Such variation of pleadings subject to the presumption that pleadings drawn on instructions of the client - If amendment based on a mistake, such mistake must be bona fide – Court cannot hold parties to a version which no longer represents its stance – Ultimate aim is to allow parties to ventilate the real issues between them and the interest of the administration of justice. I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC (I 601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014).

Replication – Plaintiff entitled to deliver replication in terms of rule 25(1) of rules of court – But such entitlement is qualified by the requirement of compliance with the time limit prescribed by rule 25(1) – Court held that plaintiffs cannot raise what would amount to a new or an alternative cause of action, that is, there should not be a departure. Pleadings – In terms of rule 18(4) of the rules of court – Interpretation and application of the rule – Court held that whether a party can prove what he or she alleges is neither the concern nor requirement of rule 18(4) – On the authorities the court held further that the plaintiffs pleading contains indubitably sufficient averments to sustain a cause of action. Tjihero v Kauari (I 2845/2012) [2014] NAHCMD 27 (30 January 2014).

Amendment – Application to amend –– Party seeking to amend a pleading must give a satisfactory explanation for seeking the amendment late in the proceedings – Application to amend brought close to four years after the plea filed – Prejudice not only to the opponent but also to the administration of justice – Parties to be prompt and diligent in the prosecution of a case and not to sit back idly waiting to take advantage of the inaction and mistake of the opponent – Inaction causes unreasonable delay in the speedy finalization of cases – Underlying objective of the civil litigation process is the early identification of the real issues in the case and the speedy and economical disposal of cases – Legal practitioners have a duty and are expected to take full instructions from clients before committing their cases to paper in the form of pleadings – It is a dereliction of duty to fail to do so. Kandjii v Tjingaete Tjinga’s Gold Farming v Tjinjeke (I 1024/2009;I 4579/2009) NAHCMD 35 (06 February 2014).

Service - Service of summons or court process on a domicilium citandi chosen by a defendant or respondent is proper service even if he/she is no longer at that address as long as plaintiff and/or applicant has not been notified of the change of domicilium citandi - Acknowledgement of debt in the absence of an undue influence is an

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admission of liability and cannot be used to assist applicant in the rescission of a judgment - Costs on ordinary scale granted. MLN Extreme Safety Wear CC v Rockstar Footwear (Pty) Ltd (I351/2013) [2014] NAHCMD 49 (14 February 2014).

Service - Service of a summons affixed to a gate of a yard where there are various offices and residential properties is not a proper or good service as it is not a principal door as contemplated by the rules of court – Failure to apply for rescission of judgment due to non-service and followed by negotiations by the parties is a reasonable explanation for non-compliance with the rules – A rescission of judgment sought on the basis of a defective service but no disclosure to the court results in an erroneous judgment – Negotiations that followed after the default judgment raising the issue of an agreement with a possibility of excusing defendant/applicant enhances his chances of a successful defence. – Application for condonation and application for rescission of the judgment succeeded. Van der Merwe v Plastic Packaging (Pty) Ltd (I 1218/2012) [2014] NAHCMD 52 (18 February 2014).

Plea - Practice – Filing of Plea- Application for condonation of failure to timeously file a plea - Requirements of - Rule of Court 55 – Requirements restated. Namibia Security Supplies CC v Schidlowski (I 4113/2011) [2013] NAHCMD 282 (01 October 2014).Practice – Pleadings – Particulars of claim – Amendment of – When to be granted – Amendment raising no cause of action and therefore excipiable – Court held that ‘cause of action’ means the fact or combination of facts which give rise to a right of action – In instant case court found that the proposed amendment does not disclose a course of action and is therefore excipiable and would cause irreparably prejudice to the defendant if it was allowed – Based on excipiability of the amendment and attendant irreparable prejudice to the defendant court refused to allow the amendment. Independent Asphalt Services Namibia CC v Namibia Construction (Pty) Ltd (I 128/2012) [2014] NAHCMD 329 (6 November 2014).

PRESCRIPTION

Prescription - Running of - Prescription beginning to run not necessarily when debt arose, but when it became due. Ilse v Government Institutions Pension Fund (I 1929/2012) [2014] NAHCMD 122 (04 April 2014).

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REQUEST FOR FURTHER PARTICULARS

RESCISSION

Rescission – Against default judgment - Judgment granted on 30 November 2012 – application lodges five months thereafter - That is an unreasonably long period of time for which there is no satisfactory explanation. Shikesho v First National Bank Namibia Limited (I 3258/2012) [2014] NAHCMD 53 (18 February 2014).

Rescission -Applications for rescission of default judgment, removal of bar, leave to defend an application, and extention of time for the filing of pleadings have one common denominator namely the failure by a litigant to act timeously in terms of the rules and who seeks the indulgence of the court to allow such a litigant to proceed with his or her action or defence – A court may condone non-compliance where ‘good cause’ has been shown – Rule 27 gives a court a wide discretion which must, in principle, be exercised with regard to the merits of the matter seen as a whole. Good cause comprises, firstly, of the giving of a reasonable explanation of the non-compliance, sufficiently full, to enable the court to understand how the non-compliance came about and to assess the conduct and motives of a litigant, and secondly, disclosing a bona fide defence, under oath, valid in law, which is sufficiently full, to persuade a court that what such litigant alleges, if proved at the trial, will constitute a defence. The Minister of Defence v A & R Properties & Supply CC (I 174/2013) [2014] NAHCMD 133 (14 April 2014).

Rescission - Application for rescission of judgment under the then applicable Rule 44. Default judgment had been granted against the applicant in terms of the former Rule 31(5)(a) by the Registrar. The applicant contended that this offended against the Constitution. The applicant failed to join the rule-giver (the Judge-President), the Registrar who granted the judgment or the Attorney-General, even though alive to the obligation to do so. This non-joinder, aggravated by other unsatisfactory features of the application, led to its dismissal. Edison Building Enterprises CC v R. Furnis t/a Electrifix (A403/2013) [2014] NAHCMD 150 (29 April 2014).

Rescission - Application for rescission of judgment given in the absence of a party under the erstwhile Rule 37 (16). Applicable principles restated. The court also stressed the change in litigation culture brought about by judicial case management, stressing that parties cannot sit idly by and do nothing with regard to their cases. Explanation involving inaction found to be inadequate and the court also finding that the defence raised lacked reasonable prospects of success. Application dismissed. Katzao v Trustco Group International (Pty) Ltd (A 108/2014 [2014] NACHMD 175 (4 June 2014).

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Rescission - Practice - Judgments and orders - Rescission of judgment - Can only be granted in terms of rule 44(1)(a) of Rules of High Court or under common law where judgment erroneously granted in absence of party – Application, in terms of Rule 44(1) (a) & (c), for rescission of a judgment granted in presence of applicant not competent. Practice - Judgments and orders - Rescission - Rescission in terms of Rule 44(1)(a) - meaning of 'erroneously granted' restated. Davey’s Micro Construction CC v Ngende (I 118/2012) [2014] NAHCMD 238 (8 August 2014).

Rescission - Civil Practice - Application – Rescission of judgment in terms of Rule 44(1) alternatively common law – application dismissed – Court upholding the point in limine by the respondent that the Court is functus officio – in the alternative, the applicant has failed to establish good cause for default and a bona fide defence. The application for the rescission of judgment dismissed with costs. Jacobus Jansen Frederick vs Government of the Republic of Namibia (A 211/2013) NAHCMD 240 (12 August 2014).

Rescission - Practice - Judgments and orders - Rescission of order- Can only be granted in terms of rule 103 of Rules of High Court or under common law where judgment erroneously sought or granted in absence of party - The failure by the defendant to provide an address where the documents would be served does not render the notice of intention to defend void - plaintiff therefore not entitled to proceed with the action as if there had been no notice to defend at all. Hanstein v Hanstein (I 483/2014) [2014] NAHCMD 340 (07 November 2014).

RES JUDICATA

REVIEWS

Review - Application to review a notice issued in the name of the Minister of Trade and Industry under Act 30 of 1994 to restrict the importation of dairy products to Namibia and to challenge the constitutionality of s2 and s3 of Act 30 of 1994. The court found that earlier legislation, Act 5 of 1986, applied to the imposition of restrictions upon the importation of dairy products and that it was not competent to do so under Act 30 of 1994. The court also found that even if Act 30 of 1994 were applicable, the minister had in any event failed to apply his mind to relevant matter including his powers under that Act and other relevant matter. The court also found that the only decision on record was made by the cabinet, not vested with the power to do so and not the Minister and that

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this would also have vitiated the decision. The court also found that the process of decision making was flawed and that interested parties had not been properly accorded their right to be heard in the circumstances. Because the decision was to be set aside upon review grounds, it was not necessary for the court to pronounce upon the constitutionality of the impugned sections. Matador Enterprises (Pty) Ltd (A 352/2013) and Clover Dairy Namibia (Pty) Ltd (A386/2013) v The Minister of Trade and Industry [2014] NAHCMD 156 (16 May 2014).

Review - Application to review and set aside decision making resulting in the discharge of the applicant as a member of the Windhoek City Police. The thrust of the applicant’s challenge was an infringement of the double jeopardy rule because board of inquiry under Regulation 18 had found he was unfit for service on grounds and factual matter which had formed the subject matter of prior disciplinary proceedings under Regulation 19. The court found that the different purpose of board of inquiry meant the double jeopardy rule had not been infringed. The court found that the applicant had failed to establish any vitiating irregularity and dismissed the application with costs. Keramen v Council of the Municipality of Windhoek (I2622/2013) [2014] NAHCMD 237 (8 August 2014)

Review – Practice – Applications and motions – Interim relief pending review application – In review application applicant alleging violation of art 18 in relation to it – In instant application applicant alleging ‘prima facie infringement of applicant’s rights’ – Court held that it is a constitutional imperative under the Namibian Constitution that onus of proof on applicant who alleges violation of his or her constitutional basic human rights – And proof should be conclusive proof – Court held further that third respondent bears no onus of proof – Consequently, court concluded that to ask the court to accept that there has been prima facie infringement until proved otherwise has the effect of setting at naught without justification the constitutional imperative that onus of proof lies on party alleging infringement of fundamental rights – Court concluded further that if court granted the interim relief on the basis that there has been prima facie infringement of the applicant’s rights that would be wrong and unjust – Court found that on the papers it is rather the fourth respondent who will suffer real loss or disadvantage if the interim relief was granted – Based on these reasons court rejected applicant’s prayer for interim relief with costs. Premier Construction CC v Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors (A 200/2014) [2014] NAHCMD 270 (17 September 2014).

SECURITY FOR COSTS

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Rule 47 - Application for security for costs brought under Rule 47 read with s11 of the Companies Act, 28 of 2004. Test restated. Applications granted. Witvlei Meat (Pty) Ltd v The Cabinet of the Republic of Namibia (A 07/2014) [2014] NAHCMD 79 (12 March 2014).

Practice - Applications and motions - Notice in terms of Rule 55 and Notice of Motion in terms of Rule 65(1) of the Rules of Court - Meaning of. – Practice – Interlocutory proceedings - Security for costs - Incola claiming security for costs against peregrinus - Incola does not have a right which entitles him as a matter of course to furnishing of security for costs by peregrinus - Court has judicial discretion - Court should have regard to particular circumstances of the case, and to considerations of fairness and equity to both parties. Schutz v Pirker (A 374 /2013) [2014] NAHCMD 341 (12 November 2014).

SPOLIATION

Spoliation - Mandament van spolie – In casu applicant, in addition to mandament, claimed interdictory relief wider in ambit than interdict against threatened spoliation – If more than spoliatory relief is claimed Court may investigate respondent’s defence on the underlying dispute - Parties entered into electricity management contract – Assumed to be joint business venture subject to Joint Business Venture Regulations – Contract concluded without prior approval of Minister as required by Regulations – Contract illegal and unenforceable because local authority council acted ultra vires – Application refused. Southern Electricity Company (Pty) Ltd v Municipal Council of Keetmanshoop (A264-2005) [2014] NAHCMD 39 (7 February 2014).

Spoliation - Mandament van spolie - Applicants possession of water and electricity supply interfered with – Water and electricity supply capable of being protected through spoliation proceedings - Possessor must prove actual possession and not right to possess - On papers not contested that applicant had uninterrupted possession - Respondent not denying interference with possession - Spoliation order accordingly granted pendent lite. Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD 74 (19 February 2014).

Spoliation - Application for madament van spolie and two further interdicts. Nature of the remedy restated. It is a possessory remedy to restore the status quo ante and not for the making of reparation. The applicants found to have possessed a structure which was demolished. It ceased to exist and could not be restored. Application refused but applicants granted costs by reason of unlawful deprivation of possession. Junias v The

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Municipal Council of the Municipality of Windhoek (A 35/2014) [2014] NAHCMD 80 (12 March 2014).

Spoliation - Return date of rule nisi granted in spoliation proceedings. The respondents disputed the applicant’s possession of a mining area and access to it because the mining claim was registered in the name of another entity, a subsidiary of the applicant. But the respondents did not deny that the applicant conducted mining operations. It would require possession to do so. Its title to do so is irrelevant in spoliation proceedings. Rule confirmed. Sino Namibia Mineral Resources Investment (Pty) Ltd v Smith (A 87/2014) [2014] NAHCMD 247 (14 May 2014).

Spoliation application – Requisites restated. Applicant failing to establish possession. Application dismissed. Ntuko v Omuthiya Town Council (A 263/2014) [2014] NAHCMD 322 (2 October 2014).

Mandamus – Urgent application for mandamus against a magistrate to strike his case from her roll because he was not requisitioned to attend court. He also sought other relief. The applicant failing to make out a case for a mandamus or for the other relief sought. Application dismissed. Pienaar v The Prosecutor-General (A261/2014) [2014] NAHCMD 320 (29 October 2014).

Application - Property Law – Application for a mandamus – Respondents applied for consolidation and rezoning of 2 erven – Application approved subject to respondents erecting a retaining wall – 54 parking bays – Respondents failed to comply with conditions – Application for a mandamus granted. Council of the Municipality of Windhoek v Claudia Properties CC (A117/2010) [2014] NAHCMD 344 (14 November 2014).

SUMMARY JUDGMENT

Application for summary judgment – Based on rei vindication - respondents in an opposing affidavit stated that they have a bona fide defence to applicant’s claim in the form of an improvement lien, that the value of the buildings erected on the property is approximately N$79,481,426 that they are therefore entitled to remain in possession of the property - That if an owner brings a rei vindicatio and alleges that he is the owner and that the defendant is holding the res, the onus is on the defendant to allege and establish any right to hold against the owner - That if an owner brings a rei vindicatio and alleges that he is the owner and that the defendant is holding the res, the onus is on the defendant to allege and establish any right to hold against the owner - Summary judgment is regarded as an extraordinary, stringent and drastic remedy which closes

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the doors of the court (figuratively speaking) and permits a judgment to be given without a trial. It should only be granted where the court has no doubt that the plaintiff has an unanswerable case. Summary judgment dismissed. The Municipal Council for the Municipality of Windhoek v Bruni (I 2481/2013) [2014] NAHCMD 195 (13 June 2014); see further Anderson Transport (pty) Ltd v Wings Innovation Solutions (I 1016/2014) [2014] NAHCMD 227 (25 July 2014).

Summary Judgment - Application for summary judgment for ejectment of the defendant from agricultural land. Several preliminary points and defences raised in the answering affidavit. During argument only one preliminary point was persisted with, namely non-joinder of a party. This was found to be without substance. The two defences on the merits which were argued were also found to be singularly unconvincing and without merit. Summary judgment granted. Acasia Resorts (Pty) Ltd v Dax (I 2513/2014) [2014] NAHCMD 248 (22 August 2014).

Summary judgment – Defence set out in the defendant’s answering affidavit in bald and sketchy manner and falling short of the sufficiency required by the courts. Summary judgment granted in respect of claim 1. Gabrielle Investment (Pty) Ltd v Steelmaster (I 806/2014) [2014] NAHCMD 299 (8 October 2014).

URGENT APPLICATIONS

Urgent application – Applicant must prove to the court that the application is urgent. Schroeder v Government of the Republic of Namibia (A 67/2014) [2014] NAHCMD 124 (3 April 2014). See further the case of Kahua v Minister of Regional and Local Government Housing and Rural Development (A457-2013) [2014] NAHCMD 1 (3 January 2014); see further Jansen v Schaefer-Stiege (A 57/2014) [2014] NAHCMD 120 (02 April 2014); see further !Uris Safari Lodge (Pty) Ltd v Weatherly Mining Namibia Ltd (A 284/2013 [2014] NAHCMD 266 (11 September 2014).

Urgent application – Applicant who was due to be evicted and his contract was cancelled is justified to apply for an urgent application only in certain circumstances. – Applicant breaching the material term of the contract has himself to blame if the other party cancels the agreement in terms of the provisions of the said agreement. Balance convenience favours the party who is cancelling the agreement. Costs on an ordinary scale – Courts should be slow in granting costs on a higher scale against a losing party as this might discourage the public from asserting their rights in the courts. Van Der Merwe v Nedplan Insurance Brokers (Pty) Ltd (A 402/2013) [2014] NAHCMD 34 (5 February 2014).

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Ex parte urgent application – Granted on 31 May 2013 – Respondent in opposing affidavit alleges that application not urgent and not necessary to approach court on ex-parte basis. On extended return date rule nisi confirmed by Court - The applicant acting in his official capacity as the executor of the estate of his late father sought certain relief on ex parte basis which the Court granted him against the respondent. Court held that the matter was urgent and necessary for the applicant to approach the Court on ex parte basis. Held further that the applicant was honest and did not suppress any information or failed to disclose same. The rule nisi therefore confirmed. Du Plessis NO v Strydom (A 170/2013) NAHCMD 201 (25 June 2014).

Rule 65 - Urgent applications should be brought as far as is practical in terms of the provisions of the Rules in order to facilitate procedural fairness – Rule 65(4) applicable to urgent applications – Applicants in urgent applications must responsibly strike a balance between the duty to obey Rule 65(4) and the entitlement to deviate from the Rules. Rules 65(5)(a) and (b) are peremptory except in extremely urgent circumstances. Applicants should be conscious that their conduct, in an application which is rushed to court on a ill-perceived urgent basis, may be construed as a misuse or an abuse of process and that a court in exercising its discretion may for that reason strike the urgent application from the roll. QE Construction CC v Air Cool CC (A 155/2014) [2014] NAHCMD 208 (02 July 2014).

Urgent Application - An Applicant who is aware of the day of arrival of the day of revoking but chooses to ignore it by failing to take reasonable steps to counter it cannot be allowed to treat the matter as urgent later. The court will not treat the matter as urgent on the basis of applicant’s mere say-so. Applicant must meet all the requirements for an urgent matter. Application was dismissed. Applicant entered into an employment contract which was to expire after two years. Upon expiry he refused to sign a new contract and was of the view that the previous contract was to expire in 2031. When the date of his departure arrived he approached the court on an urgent basis. He however, did not comply with requirements of an urgent application. Application was dismissed. Shirichena v Namibia Training Authority (A 17/2014) [2014] NAHCNLD 41 (16 July 2014).

Urgent Application - Practice – Applications and motions – Urgent applications – Court held that applicant must satisfy the two requirements under rule 73(4) of the rules (ie rule 6(12)(1)(b) of the repealed rules) – Court found that the applicant has failed to satisfy the requirements, in particular the requirement in rule 73(4)(b) of the rules – Consequently, the court refused the application on that basis. Purity Manganese (Pty) Ltd v Maritima Consulting Services CC (A 295/2014) [2014] NAHCMD 350 (20 November 2014).

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VINDICATION

Vindication Action - Action for vindication and alternative relief arising from a disputed oral agreement. The court found that the terms of the oral agreement were as pleaded and testified by the defendant. The plaintiff’s claim was thus unsuccessful. Blaauw v Barth (I 1142/2012) [2014] NAHCMD 101 (26 March 2014).

Rei vindication - The owner of the immovable property is entitled to proceed against a possessor of his/her property. - A party who elects to proceed under the common law principle of rei vindicatio is entitled to repossess its property provided that it proves that, it is the owner and that defendant is in possession of it. – In rare circumstances the court will bend backwards to allow a lay person to file his/her papers out of time as long as there is no prejudice to the other party – Defendant in a summary judgment is not allowed to introduce new matters other than through a proper application - An order of court should be obeyed even if the affected party is not happy with it. The Deputy Sherriff in executing an order of the court does so as an officer of the court and is accordingly not carrying out an administrative function as he does so as an officer of the court – Defendant failed to prove a bona fide defence – Application for summary judgment is granted with costs. Applicant sued respondent who defended the matter. Applicant had the immovable property already transferred to itself. Application for a rei vindication was made. Applicant proved that the property was registered under its name and respondent was refusing to give vacant possession. Respondent sought to introduce a new matter in an unprocedural manner. Respondent argued that the Deputy Sheriff acted unlawfully as he was acting in an administrative capacity. Standard Bank Namibia Limited v Somaeb (I 1912/2013) [2014] NAHCMD 98 (26 March 2014).

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CASE SUMMARIES

Angula v Mavulu (I 2690/2010) [2014] NAHCMD 250 (22 August 2014).

Summary: The plaintiffs instituted separate actions against the defendants for orders for the ejectment of the defendants from a certain property, described as Erf 476, Nile Street, situated in the Township of Wanaheda, Windhoek. Because the issues that were involved in the different matters were identical, the different actions were consolidated into one action.

The defendants entered appearance to defend the action and pleaded to the plaintiffs’ claim. The defendants, deny that the plaintiffs are the lawful owners of the property in dispute. They further pleaded that their occupation of the said property was pursuant to an agreement with the Nasboukor the predecessor of the current National Housing Enterprise (NHE).

Held that the defendants bore the onus to prove that ownership is, despite the title deed, of a ‘nominal character’.

Held, that the plaintiff succeeded in discharging the onus of proof in respect of ownership by providing registered tittle deed in their favour.

Held, that defendants have failed to discharge the onus that rested upon them.

Awaseb v Kandjii (I 2696-2012) [2014] NAHCMD 315 (24 October 2014).

Summary: The plaintiffs instituted action against the defendant for an order for the ejectment of the defendant from a certain property, Erf 4492, Edsel Street, situated in Khomasdal, Windhoek. They pleaded further that they are the owners of Erf 4492, Edsel Street, Khomasdal and that Defendant is in unlawful occupation of the said property.

The defendant entered appearance to defend the action and pleaded to the plaintiffs’ claim. The defendant in his amended plea pleaded that on or about 10 July 2003, he entered into a sale agreement with Ms and Mr Tjongarero, in terms whereof they sold the said property in question to the defendant for the total purchase price of N$280 000.00. He further pleaded that in terms of clause 8 of the aforesaid sale agreement defendant has a real right to occupy the property.

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Held, it is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner (e.g. a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner.

Held furthermore that should the defendant deny any one of these elements, namely that the plaintiff is the owner or that the defendant is in occupation, the onus is on the plaintiff to prove the truth of the element which is denied. The plaintiff would succeed in discharging the onus of proof in respect of ownership by providing registered tittle deeds in his favour. An inference that plaintiff is the owner would then justifiably be drawn. Should the defendant dispute the validity of the title deeds or the ownership, despite the deeds, the onus is on the defendant to prove this.

Held further, it is a trite principle that a litigant must make out his or her case in the pleadings. A pleading that states conclusions and opinions instead of material facts, or that draws a conclusion without alleging the material facts which, if proved, would warrant that conclusion, is defective.

Held further, in the present matter the defendant does not in his plea, set out the material facts on which he relies to reach the conclusion that he has a real right to the property and to that extent his plea is defective.

Held further, on an application of the doctrine of privity of contract the plaintiffs are not bound by the terms of the sale agreement. As a principle, a contract is a matter between the parties thereto, and no one who is not a contracting party will incur any liability or derive any benefit from the terms thereof.Held further, that the plaintiffs’ succeeded in discharging the onus of proof in respect of ownership by providing their registered tittle deeds in their favour.

Balzer v Vries (A 06/2014) [2014] NAHCMD 32 (4 February 2014).

Summary: Practice – Applications and motions – Applicant sought an order to stop ejectment of applicant from property she occupied unlawfully – Court found that the court had ordered, among other things, ejectment of the applicant from that property – In that behalf, court concluded that the order is cogent proof that the applicant is not in ‘undisturbed’ possession and occupation of the property – Court concluded that any ejectment of the applicant from the property in implementation of a Writ of Execution issued to enforce the order was not an ‘unlawful’ or ‘criminal’ abuse of power of the

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sheriff or deputy sheriff – Court refused to grant the relief sought on the basis that to grant the relief would amount to the court setting its own orders at naught which would be derogation of the administration of justice – Consequently, the court dismissed the application with costs.

Burger v Bowig (I 1771/2013) [2014] NAHCMD 268 (16 September 2014).

Summary: Contract – Rectification – Essential allegations that should be set out and proved in claim for rectification – Terms of lease agreement lifted holus bolus from a pre-prepared lease agreement obtained from a legal practitioner and parties drafted their agreement by a process of cutting and pasting – Parties agreed that their agreement was misrecorded in three clauses – But defendant resisted rectification of two other clauses – Upon issue of credibility the court found that the evidence of the defendant that the terms of those two clauses were discussed and agreed upon was false and that of the plaintiff was true – And on the probabilities the court found that the version of the plaintiff that the two clauses were not discussed and agreed upon was more probable than not and so the probabilities favoured the plaintiff’s version – Court was satisfied that the plaintiff had discharged the onus cast on him and, therefore, succeeds in his claim for rectification – Consequently the court granted plaintiff rectification with costs.

Council of the Municipality of Windhoek v Claudia Properties CC (A117/2010) [2014] NAHCMD 344 (14 November 2014).

Summary: The respondents applied to the applicant for consolidation and rezoning of 2 erven. The application was approved subject to the applicant submitting an engineer’s drawing for the erection of the retaining walls and to create 54 clients accessible parking bays. The respondents failed to comply with the said conditions, instead they constructed corrugated iron wall and dumped building materials and rubble on the erf. Applicant launched the application to compel the respondents to submit the engineer’s drawing for the erection of the retaining walls, to remove the corrugated iron wall and to create 54 parking bays.

Held that the erection of the retaining wall was a condition of the approval of the consolidation and rezoning of the erven and must be complied with.

Held further that the temporary corrugated iron wall erected is illegal as it was not approved by applicant and must be removed.

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Held further that the creation of 54 parking bays was also a condition of the approval of the consolidation and rezoning of the erven and must be complied with.

Congo Trading CC v E & Jay Trading Enterprises CC (I 2971/2012) [2014] NAHCMD 136 (14 April 2014).

Summary: Principal and agent – Authority of agent – Authority of agent must be established unless a party is able to rely on ostensible authority – Court found that in instant case at the close of the plaintiff’s case the plaintiff has failed to establish the authority of alleged agent of the defendant Martha Manasse – The plaintiff allegedly entered into oral agreement with Martha Manasse for the sale of cement to Martha to be exported to a customer in Angola – Court found that at the close of the plaintiff’s case, plaintiff had failed to establish an express authorization or by way of inference that Martha was the defendant’s agent in the alleged transaction – Consequently, court granted absolution from the instance in the interest of justice.

Davey’s Micro Construction CC v Ngende (I 118/2012) [2014] NAHCMD 238 (8 August 2014).

Summary: On 08 February 2012 the plaintiff issued summons against the defendant in which he claimed N$72 958.50 being the amount outstanding for work done in respect of building and renovation contract. The defendant filed its plea and counterclaim for N$103 924.11 being the costs to rectify and complete the defective work of the plaintiff and further claimed that the building and renovation work was defective and not completed. The hearing started on 05 November 2013 and continued until 06 November 2013 on which date the plaintiff closed his case.

At the close of the plaintiff’s case, counsel for the defendant applied for absolution of the instance. This court granted absolution of the instance. Thereafter the defendant indicated to the court that he would not pursue his counterclaim and he withdrew the counterclaim. The Court granted the defendant leave to withdraw its counterclaim with no order as to costs and a cost order was awarded in respect of the counterclaim that was withdrawn.

On 17 January 2014 counsel for the defendant filed a notice of motion seeking the following relief: ‘(1) that the cost orders made by the Honourable Justice Ueitele in respect of his judgment on absolution of the instance and withdrawal of the counterclaim of the applicant be rescinded and set aside in terms of Rule 44; (2) that the respondent/ plaintiff pay the costs of the applicant/defendant in respect of the

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judgment on absolution of the instance; (3) costs of this application and (4) further and/or alternative relief.’

Held that the order made on 06 November 2013 was not made in the absence of any party or as a result of a mistake common to the parties. It thus follows that the application cannot be made in terms of Rule 44(1) (a) &(c).

Held further that there is no ambiguity in the two cost orders as both orders are very clear in that no cost order is granted in respect of the absolution from the instance and a cost order is awarded in respect of the counterclaim that was withdrawn.

Held further that there is no patent error or omission to justify a rescission of the order in terms of Rule 44(1) (b).

De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD 160 (22 May 2014)

Summary: Citizenship – By birth – Requirements of in terms of art 4(1)(d) of the Namibian Constitution – Father or mother of person must be ordinarily resident in Namibia at time of his or her birth – For purposes of art 4(1)(d) ‘ordinarily resident’ means continuously and permanently resident in Namibia – Applicant (and his wife) are on temporary employment permits – Applicant applied to the respondent to issue a Full Birth Certificate (Namibian) to applicant’s son born during the time the applicant is on employment permit status and therefore sojourning in Namibia temporarily – Court found that in terms of s 24(b) of the Immigration Control Act a person who resides in Namibia on the basis of an employment permit which is a temporary permit has not established his intention to reside in Namibia permanently and accordingly is not ordinarily resident in Namibia for purposes of art 4(1)(d) of the Namibian Constitution – Consequently, the respondent was correct in refusing to issue a Full Birth Certificate (Namibian) to the applicant’s son – Consequently, court found that applicant has not established a right that may be protected by a declaratory order – Accordingly court dismissed the application.

Delie v Hoebeb (I 2498/2013) [2014] NAHCMD 271 (18 September 2014).

Summary: Negligence – Duty of a driver on a public road – Duty to have reasonable consideration for other persons using the road – Court held that s 81 of the Road Traffic and Transport Act 22 of 1999 and other provisions of the Act provide norms according to which the conduct of drivers may be judged and a breach of any of them may be relied on as establishing the delictual liability of parties in a collision – Defendant driving

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beyond the speed limit and disregarding a double line in the middle of a stretch of the road prohibiting overtaking of traffic – Court found that the defendant drove beyond the speed limit and at excessive speed and he overtook traffic on a stretch of the road where overtaking of traffic is prohibited – Defendant lost control of his motor vehicle and the vehicle slammed into traffic guard-rails and was thrown back into oncoming traffic and thereby hitting the plaintiff’s motor vehicle which happened to be in the oncoming traffic – Court found that the cumulative effect of the defendant’s actions breached the Act and the defendant was negligent as he drove his vehicle on a public road without reasonable consideration for other persons using the road.

Durand v NJC Motors (I 3402/2009) [2014] NAHCMD 44 (13 February 2014).

Summary: Contract – Locatio conductio operis – Court held that in the contract of letting and hiring of work it is usually an implied term of the contract that the contractor will perform the work in a proper and workmanlike fashion – In the instant case the court found that the defendants were in breach of the contract because the defendants failed to repair the gearbox of the plaintiff’s motor vehicle in a proper and workmanlike manner in terms of the contract – Accordingly, the court found the defendants liable and gave judgment for the plaintiff.

Gawanab v !Khomanin Traditional Authority (A 419/2013) [2014] NAHCMD 313 (22 October 2014).

Summary: The applicants commenced proceedings by Notice of Motion against the !Khomanin Traditional Authority (as the first respondent) the Government of the Republic of Namibia (as the second respondent) the Damara Kings’ Council (as the third respondent) and Juliana Gawa-!Nas (as the fourth respondent). In their application the applicants are amongst others asking this court to order the !Khomanin Traditional Authority to convene a meeting of the !Khomanin Traditional Community, within 21 days from the date that the court makes the order, for the purpose of electing a Chief of the !Khomanin Traditional Community.

The first, second and fourth respondents opposed the applicants’ claim. In its opposition the first applicant has raised two preliminary points, first it challenges the applicants’ capacity (i.e. locus standi) to institute these proceedings. Secondly it raises the point that there are material disputes on the facts which disputes cannot be resolved on the papers and the applicants ought to have foreseen that .The first respondent objects to the first applicant’s capacity on the round that both the first and the second applicants failed to make out a case by making satisfactory allegations proving their locus standi.

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Held that it is now a well-established principle of our law that an applicant must, in his or her founding affidavit make out the case for the remedy which he or she seeks from the court. In other words the applicant must in his or her founding affidavit, set out the factual averments which, if found to be accurate at the hearing will entitle him or her to some relief. Further that a litigant must have a direct and substantial interest in the outcome of legal proceedings.

Held further, in order to determine whether an association of individuals is a corporate body which can sue in its own name, the court has to consider the nature and objects of the association as well as its constitution and if these shows that it possess the characteristics of a corporation or a universitas then it can sue in its own name, and that the first applicant has failed to demonstrate that it is a universitas entitling it sue in its own name.

Held further, that the second applicant too, has failed to prove that he is authorised by the customary law of the !Khomanin Traditional Community set in motion the process of designating a leader of the !Khomanin Traditional Community and that he therefore has failed to demonstrate that he has locus standi.

Gloria Dawn Farming CC v Van Der Merwe (A290/2003) [2014] NAHCMD 7 [21 January 2014].

Summary: The applicant brought an application asking the respondents to remove certain structures and a fence erected across Natas Spruit, bordering applicant’s farm and respondent’s farm. Respondents submitted that a give and take arrangement existed in terms of the Fencing Proclamation 57 of 1921 and the dispute should have been referred to arbitration as provided for in the Proclamation. Applicant denies that the Proclamation applies to the dispute. Held, that the Fencing Proclamation applies as it was enacted to regulate the erection and maintenance of dividing fences between adjoining farms. Held, that the dispute should have been referred to arbitration. Application dismissed.

Greeff v Tona Trade Holdings CC (I 223/2013) [2014] NAHCMD 12 (22 January 2014).

Summary: Contract – Contract of sale of goods and services – Plaintiff claimed N$128 069,35 for goods sold and delivered and services rendered to the defendant at defendant’s special instance and request – The defendant failed to participate in judicial case management processes and did not appear for the trial in person or by counsel and no explanation was given for the non-participation and non-appearance for trial – Court accordingly invoked rule 40(1) of the rules of court and granted judgment with costs for the plaintiff.

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Government of the Republic of Namibia v Heita (I 1402/2012) [2014] NAHCMD 69 (26 February 2014).

Summary: The plaintiff is claiming an amount of N$ 23 095 -58 from the defendant in respect of damages allegedly suffered as a result of breach of contract by the defendant in respect of study leave granted to defendant whilst he was employed in the Ministry of Environment and Tourism. Defendant denies breaching the contract and pleaded that he is still serving the State although in a separate department. In oral arguments it was argued (although not pleaded) that the defendant has served the State for one year after he completed his studies as is required in the agreement and that he was accordingly not in breach of the agreement.

Held that any interpretation or meaning which one assigns to the words ‘office, ministry or agency’ must be informed by the Public Service Act, 1995.

Held further that NAM-PLACE was not established as an office, ministry or agency as contemplated in Article 32(3) (g) of the Namibian Constitution and that the defendant is not serving the State in any office, ministry or agency.

Held further that the defendant is bound to what he has pleaded and will not be allowed to raise a defence which is not covered in his plea.

Hanstein v Hanstein (I 483/2014) [2014] NAHCMD 340 (07 November 2014).

Summary: On 12 February 2014 the plaintiff caused summons to be issued against the defendant. In the summons the plaintiff claimed for the restitution of conjugal rights, and, failing compliance therewith a decree of divorce. The plaintiff furthermore claimed other ancillary relief.

The summons were, on 04 March 2014, served on the defendant personally. On 07 March 2014, the defendant acting in person served a notice of intention to defend on the plaintiff’s legal practitioners of record and also on the Registrar of this court.

Despite the fact that, the defendant gave notice that she intends to defend the plaintiff’s claim, the plaintiff’s legal practitioners, without notice to the defendant, on 19 March 2014 gave notice to the Registrar for the latter to set down the matter for hearing on 24 March 2014. The matter was accordingly set down for hearing on the undefended matrimonial matters court roll of 24 March 2014. On that day when the matter was called the plaintiff’s legal practitioner informed the Court that the defendant entered

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notice of intention to defend the action but the notice is defective because it (the notice) did not provide an address within 08 Kilometers radius at which the court process would be served. After that submission by the plaintiff’s legal practitioner the court granted a restitution of conjugal rights order in favour of the plaintiff.On 12 May 2014 the legal practitioners acting on behalf of the defendant filed a notice of representation and of intention to defend. The defendant, on 08 August 2014 filed an application for the rescission of the order granted on 24 March 2014, the application is brought under Rule 103 of this Court and an application for the condonation of the late filling of the application for the rescission application.

The plaintiff opposes both the application for the rescission and the application for the condonation of the late filling of the application for the rescission. The plaintiff opposes the condonation application on the basis that, the defendant allegedly unreasonably delayed in the bringing of the rescission application.

The plaintiff opposes the rescission application on the ground that the order of 24 March 2014 is not a final order and can therefore not be rescinded, that when the Court granted the order on 24 March 2014, the court was alerted that a ‘defective notice of intention to defend’ was filed the court thus granted the order full knowing that there is a defective notice to defend and the order was thus not erroneously granted.

Held that in a wide and general sense the term "interlocutory" refers to all orders pronounced by the Court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. At common law a purely interlocutory order may be corrected, altered or set aside by the Judge who granted it at any time before final judgment; whereas an order which has final and definitive effect, even though it may be interlocutory in the wide sense, is res judicata.

Held further that failure to give an address for service in a notice of intention to defend does not render the notice void but makes it irregular and liable to be set aside. In such an event the plaintiff should not disregard the notice and apply for default judgment but may in a proper case apply to the court on notice to the defendant to set the notice aside as an irregular proceedings in terms of the rules of Court.

Held further, that the plaintiff erroneously sought the restitution of conjugal right order together with the ancillary relief. This court can therefore not allow that order to stand and it is accordingly set aside.

Hashipala v Petrus (I 4238/2011) [2014] NAHCMD 100 (28 March 2014).

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Summary: The parties were married on 20 December 1996 in community of property at Tsumeb. The plaintiff instituted divorce action against the defendant. The defendant defended the action. At the time of the said purported marriage and unbeknown to the plaintiff, there was a valid and subsisting marriage between the defendant and one Antonia Naris. The plaintiff alleges that the defendant has wrongfully, maliciously and constructively deserted the plaintiff, in which desertion he persists. The plaintiff seeks from this Court:

AD CLAIM 1: ‘1 Declaring the purported marriage entered into between Hendrina Cassandra

Hashipala and Thomas Petrus on 20 December 1996 at Tsumeb, Namibia to have been null and void ab initio and of no legal effect;

ALTERNATIVE TO CLAIM 12 (a) An order for the restitution of conjugal rights, failing compliance therewith

(b) a decree of divorce.

3 An order in terms of which the custody and control of the parties two minor children be awarded to the plaintiff, subject to the defendant’s right of reasonable access.

4 That the defendant be ordered to pay maintenance in the amount of N$1,000.00 per month in respect of both the two minor children.

AD CLAIM 2:5 An order in terms of which the defendant forfeits his 50% undivided share in the

immovable property situated at Erf 4440, Ongwediva, Republic of Namibia and in terms of which the plaintiff shall retain the said immovable property as her sole and exclusive property;

6 An order directing the defendant to transfer to plaintiff his 50% undivided share in Erf 4440, Ongwediva, Republic of Namibia, and directing the deputy sheriff in the event of the defendant failing to transfer his 50% undivided share in the aforesaid immovable property to the plaintiff within a time to be fixed by this Honourable Court, to execute in the name of the defendant such documents and to perform all such other acts as may be necessary to effect transfer of the said 50% undivided share into the name of the plaintiff.

AD CLAIM 3:7 An order in terms of which plaintiff shall retain the Hyundai Elantra 1998 model

motor vehicle as her sole and exclusive property.AD ALL CLAIMS:

8 That the Defendant be ordered to pay the costs of this action.9 Further and or alternative relief.’

The purported marriage declared null and void and of no effect and consequences. The plaintiff declared sole owner of the immovable property while ad claim 3 has been dismissed.

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Henock v The Attorney General (A 172/2011) [2014] NAHCMD 366 (27 November 2014).

Summary: The accused had been convicted of a contravention of s 29(1)(a) of the Arms and Ammunition Act 7 of 1996. He had been sentenced to 2 years in terms of s 38(2)(a) of the Act. Applicant challenging the constitutionality of the remaining sentencing provision after the court in S v Likuwa had struck down the then applicable minimum sentence of 10 years in s 38(2)(a) as unconstitutional. The question now was whether the remaining s 38(2)(a) was unconstitutional, in that such remaining minimum sentence still constituted cruel, inhuman or degrading treatment in breach of art 8(2) of the Constitution and was in violation of art 10 which provided for equality before the law.

The court held that the court in Likuwa had by implication already determined that the remaining minimum sentence provision was not unconstitutional or in conflict with articles 8 and 10.

The Court held that in any event the remaining mandatory imprisonment provision of the Act was not unconstitutional in that it did not infringe on the applicant’s article 8 and 10 rights as

a) The wide scope of imprisonment options – ranging from detention to the rising of the court, via the further minimum of 4 days imprisonment up to the maximum period of imprisonment for 25 years demonstrated that the court can recognize the individual circumstances pertaining to any contravention of the section with regard to Section 284 of the Criminal Procedure Act 1977.

b) the courts are still able to recognize and distinguish - through the proper evaluation of evidence presented in mitigation - between less serious offences of possession and distinguish them from more serious offences of possession, when imposing an appropriate sentence’. The court thus still in the position to appropriately ameliorate or aggravate the mandatory prison sentence, depending on the circumstances serving before it.

Held : that he cumulative effect of various factors indicated, that the sentencing benchmark, left in the statute, after Likuwa, had not been left too high so as to result in a situation where the obligatory regard to the minimum sentence would result in shocking and disproportionate sentences in violation of Article 8 (2)(b) of the Constitution as any sentencing court remained in the position, to make an appropriate distinction, per case, when imposing any sentence under the act.

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Held : that it was precisely because of the scope of sentencing options still available, which scope was wide enough to accommodate the individual circumstances of any particular case - and also because of all the other considerations relevant to sentencing being in place - that accused persons charged, convicted and sentenced under the Act - after due process - would not just simply be ‘sacrificed on the altar of deterrence’.

Held : that the prescribed minimum sentence in the Arms and Ammunition Act did not exhibit an undue proportionality to the seriousness of the offence, or that it caused an improper gradation of punishments according to the malignity of the offences.

Held : that the attack based on the provisions of Article 8 of the Constitution could therefore not succeed.

Held : the equality provision of the Constitution was also not infringed as the Act does not impermissibly ‘single out offenders, convicted of possession armaments, for particularly severe and harsh punishments, which are wholly out of kilter with the punishments meted out to the perpetrators of other crimes and as the minimum sentencing regime left after Likuwa does not offend against the principle that there should be a fair ‘gradation of punishments according to the malignity of the offences’.

Held : that the promulgation of the Act had indeed resulted in the differentiation between persons facing criminal prosecution for crimes in respect of which no minimum sentence is prescribed and those which face criminal prosecution in respect of crimes where the law prescribes a minimum sentence.

Held : As the aim and object of the statute - as well as the purposes - for enacting same – all served a legitimate goal - and as the resultant differentiation - caused by the act between the aforesaid categories of persons - was rationally connected to the proclaimed purposes for which the enactment was made it had to be concluded that the aforementioned differentiation caused by the prescribed minimum sentence set by the Arms & Ammunition Act was also not in breach of Article 10(1) of the Constitution.

Application was accordingly dismissed with costs

Ilse v Government Institutions Pension Fund (I 1929/2012) [2014] NAHCMD 122 (04 April 2014).

Summary: That plaintiff retired from the employment of the second defendant on 30 September 1997. When she so retired she received her pension benefits from the first defendant. On 01 June 1999 the plaintiff was re-employed by the second defendant. When she was re-employment, her employment was subject to certain conditions, one

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of the conditions was that she was compelled to become a member of first defendant and to contribute on a monthly basis 7% of her monthly pensionable earnings to the first defendant. During her employment tenure she contributed 7% of her monthly pensionable earnings to the first defendant and the second defendant contributed (on behalf of the plaintiff) 16% of the plaintiff’s monthly pensionable earnings to the first defendant. On 31 March 2010 the plaintiff again retired from the service of the second defendant and also as member of first defendant. On retirement the first defendant discovered that the plaintiff was by virtue of the Government Institutions Pension Fund Rules (Rule 1.6) not eligible for membership with the first defendant.

Pursuant to the discovery that the plaintiff was ineligible for membership with the first defendant, the first defendant refunded to the second defendant the amount of N$218 881-88 and instructed the second defendant to refund the plaintiff. The second defendant, however only refunded to the plaintiff the amount of N$27 240-24 and N$29 821-68 (which are the contributions plus the interest earned on the contributions made by the plaintiff less income tax). When the plaintiff demanded refund of the amount of N$152 265-66 (being the contributions plus interest earned on the contributions made by the second defendant to the first defendant on behalf of the plaintiff) the second defendant refused to pay that amount claiming that its obligation to contribute was dependent on the existence of a valid membership agreement between the plaintiff and the first defendant.

On 13 July 2012 the plaintiff issued summons out of this Court against the first and second defendants. In the summons the plaintiff claimed payment in the amount of N$152 265-66 plus interest on that amount at the rate of 20% per annum the interest to be calculated from 01 June 2010 to the date of final payment, and also interest on the amount of N$29 821-68 at the rate of 20% per annum, the interest to be calculated from 01 April 2010 to 15 January 2011. Both the first defendant and the second defendant gave notice of their intentions to defend the action. The first defendant raised a special plea of prescription.

Held that in determining when a debt arises and when it becomes due different concepts are concerned and that a distinction needs to be made between “the coming into existence of the debt on the one hand and recoverability thereof on the other”. The stage when a debt become recoverable, and therefore due in the sense in which the Act speaks of it, has been held to mean that there has to be a debt immediately claimable by the creditor or stated in another way, that there has to be a debt in respect of which the debtor is under an obligation to perform immediately. That in the present case the plaintiff’s claim had not prescribed and as result the first defendant's point in limine fails.

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Held further that the Pension Funds Act, 1956 and the Rules made by a Fund (in this instance the first defendant) in terms of that Act do not determine the conditions of employment of a person employed in the public service. The conditions of employment of persons employed in the public service are determined in terms of the Public Service Act, 1995.

Held furthermore that if both the plaintiff and the second were not under a mistaken belief (on 01 June 1999) when she was re-employed, that she is eligible to become a member of the first defendant her contract of employment would have provided for the second defendant to pay her a gratuity to enable her to make her own retirement arrangements and that in the absence of the payment of the gratuity the plaintiff is entitled to receive the payments (plus the interest which those payments earned) which the second defendant made on her behalf to the first defendant.

Independent Asphalt Services Namibia CC v Namibia Construction (Pty) Ltd (I 128/2012) [2014] NAHCMD 329 (6 November 2014).

Summary: Practice – Pleadings – Particulars of claim – Amendment of – When to be granted – Amendment raising no cause of action and therefore excipiable – Plaintiff sought to amend its particulars of claim whereby it would claim payment by defendant of an amount for goods plaintiff did not supply in terms of a contract – On plaintiff’s own version it did not supply the bitumen part of asphalt required for the road construction project but the defendant did – Court found therefore that if the plaintiff’s amendment was allowed its further conditional claim will not disclose a cause of action, thus rendering the amendment excipiable – Court found further that for that reason irreparable prejudice would be occasioned the defendant if the amendment was allowed – Consequently, court refused to allow the amendment on the basis that the amendment would be excipiable and there would be irreparable prejudice to the defendant – Application was accordingly dismissed with costs.

Jin CV Joint Fitment Centre CC v Hambabi (I 1522/2008) [2014] NAHCMD 73 (6 March 2014).

Summary: Evidence – In civil proceeding – Court was faced with mutually destructive versions – Defendant denied existence of contract whereby the plaintiff sold and delivered imported goods (second-hand tyres) to the defendant – Consequently, the defendant refused to pay the purchase price and cost of transportation ex-Walvis Bay Port to Ohangwena – The court applied the following dicta from Harold Schmidt t/a Prestige Home Innovations v Heita 2006 (2) NR 555 (HC) at 559D and from National Employers’ General Insurance Co. Ltd v Jagers 1984 (4) SA 437 (E) at 440E:

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‘… the proper approach is for the court to apply its mind not only to the merits and demerits of the two mutually destructive versions but also their probabilities and it is only after so applying its mind that the court would be justified in reaching the conclusion as to which opinion to accept and which to reject. (See Harold Schmidt t/a Prestige Home Innovations v Heita 2006 (2) NR 555 at 559D.)

‘…where the onus rests on the plaintiff and there are two mutually destructive stories he (the plaintiff) can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable, and that the version advanced by the defendant is therefore false or mistaken and falls to be rejected. (National Employers’ General Insurance Co. Ltd v Jagers 1984 (4) SA 437 (E) at 440E)’

Having applied the above tests, the court accepted the plaintiff’s version and rejected the defendant’s version, and granted judgment for the plaintiff with costs.

Kamahere v The Government of the Republic of Namibia (A 58/2014) [2014] NAHCMD 209 (10 July 2014).

Summary: Practice – Declaratory orders – Power of the court to grant declaratory orders governed by s 16 of the High Court Act 16 of 1990 – Applicants who are serving sentence of life imprisonment relied on two repealed laws and a Colonial Cabinet Memorandum for relief – Court found that the applicants did not pursue their right under the Prisons Act 8 of 1959 that was repealed by the Prisons Act 17 of 1998 or under Act 17 of 1998 which in turn has been repealed by the Correctional Service Act 9 of 2012 – Court found that enjoyment of the applicants’ rights was subject to similar limitation provisions provided in Act 8 of 1959 and Act 17 of 1998 – Court found that the applicants had not exercised their rights upon the repeal of the Acts and therefore the limitation provisions in Act 8 of 1959 had upon coming into operation of Act 17 of 1998 rendered those rights non-existent and the limitation provisions in Act 17 of 1998 had upon coming into operation of Act 9 of 2012 rendered non-existent the rights under Act 17 of 1998 – Consequently, court concluded that upon coming into operation of Act 17 of 1998 and Act 9 of 2012 no rights accrued within the meaning of s 11(2)(c) of Proclamation 2 of 1928 which the court may protect in the instant proceeding – Furthermore, court found that the colonial Cabinet Memorandum was not a delegated legislation which may bind the Government of Republic of Namibia upon the application of art 140(1) of the Namibian Constitution – It was also not a Government Policy and the fact that the Cabinet Memorandum was applied by some administrative bodies or officials was irrelevant – Court held that an act of an administrative body or

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administrative official which is done in not conformity with legislation, delegated legislation or a lawful Government policy does not bind any person or the court.

Kandjii v Awaseb (I 2696/2012) [2014] NAHCMD 177 (11 June 2014).

Summary: This is an application where the applicant seeks an order for consolidation of two actions (Case No. I 2696/2012 and Case No: I 2077/2013). The application is opposed by the plaintiffs.

The plaintiffs’ action (in Case No. I 2696/2012), is based on ejectment of the applicant from a certain immovable property namely Erf 4492, Edsel Street, Khomasdal, Windhoek and a claim for damages allegedly suffered by the plaintiffs as a result of the occupation of the property by the applicant. The applicant’s action (in Case No: I 2077/2013) is based on a breach of contract in that he seeks an order to declare an agreement of sale entered into by and between the plaintiffs on the one hand and the third and fourth respondents on the other hand void and of no legal effect

The pleadings in Case No. I 2696/2012 have closed and the matter is trial ready whereas in Case No: I 2077/2013 the pleadings are still at the early stages they have not even closed. At the time of hearing the application for consolidation the respondents had not yet filed their plea and the issues between the parties have accordingly not yet been defined.

The onus is upon the party applying to Court for a consolidation to satisfy the Court that such a course (i.e. consolidation of actions) is favoured by the balance of convenience and that there is no possibility of prejudice being suffered by any party.

Held the only facts which are common in the two actions is the immovable property and the fact that both the plaintiffs and the appellants purchased the immovable property from the third and fourth respondents. That does not mean that the questions of law and fact upon which the right to relief in the two actions depend is 'substantially' the same.

Held that an order to consolidate the actions will not be convenient if it causes prejudice to any of the parties.

Held the applicant failed to make out a case for the consolidation of the two cases.

The application for consolidation is dismissed with costs.

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Kapia v Minister of Regional and Local Government Housing and Rural Development (A 333/2012) [2013] NAHCMD 13 (24 January 2014).

Summary: On 08 August 2012 the Minister approved the application by the Zeraeua Traditional Authority to approve the designation of Mr Manase Meundju Zeraeua as Chief of the Zeraeua Traditional Community. The applicant is aggrieved by that decision and requests this Court to review and set aside that decision.

Held that the decision taken by the Minister to approve the designation of of Mr Manase Meundju Zeraeua as Chief of the Zeraeua Traditional Authority is an administrative decision as contemplated in Article 18 of the Namibian Constitution. Held further that Minister misread section 5(1) of the Act and thus stultified his discretion, he failed to perform his statutory duties.

Held further that the decision to approve the application for the designation of Manase Meundju Zeraeua as the chief of the Zeraeua Traditional Community did not comply with the requirements of the Act and can therefore not be allowed to stand and is reviewed and set aside. Held further that the Minister is ordered to pay the costs of this application.

Kauvee v Kauvee (I 2961/2013) [2014] NAHCMD 161 (22 May 2014).

Summary: Husband and wife – Maintenance – Of minor children of the family – Court held that the burden of supporting a child of the family is common to both spouses and must be borne by them in proportion to their means – Court held further that in considering the means of the parents the court it is equally important to take into account also the financial burden that each party will shoulder respecting the minor children after the divorce and unavoidable expenses that come naturally to the party having custody and control of the minor child – In the instant case while plaintiff earns no income the defendant is self-employed and earns an appreciable income – But the plaintiff is awarded custody and control of the minor children – Court remarked that the amount of child maintenance ordered is fair and just.

Lubrication Specialists (Pty) Ltd v Etosha Lubricants CC (I 2698/2012) [2014] NAHCMD 18 (24 January 2014).

Summary: Plaintiff issued summons against defendants on reliance of a purchase agreement. It was not sufficiently clear whether it relied on a contract per se or agency. Plaintiff was called upon to remedy the complaint, but did not do so resulting in this application. Defendant/Applicant averred that Plaintiff/Respondent’s particular of claim,

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left in that state was a vague and embarrassing, the vagueness went into the root of the cause of action and was prejudicial to it.

Markus v Telecom Namibia Ltd (I 286/2009) [2014] NAHCMD 51 (26 February 2014).

Summary: The plaintiff was at one time employed by the defendant. During the year 2007, the plaintiff lodged a complaint of unfair dismissal with the now defunct District Labour Court. The defendant opposed the complaint. The parties however later referred the matter for arbitration. During the arbitration proceedings the parties agreed to settle their dispute. A settlement agreement was consequently signed by the parties during October 2008. On 04 February 2009, the plaintiff alleging that the defendant was in breach of the settlement agreement, instituted action against the defendant in which action he claimed an amount of N$ 556 767-55 plus interest on that amount. The defendant entered a notice to defend the action. After the pleadings closed and the matter was ripe for trial, the matter was allocated to a Managing Judge for purpose of case managing the matter.

On 20 July 2011, the matter was called for a pre-trial conference, before Justice Schimming-Chase, Acting. On that day Acting Judge Schimming-Chase made an order that the matter has settled and is removed from the roll. Approximately two months later the legal practitioner acting for the plaintiff addressed a letter to the Registrar of this Court, requesting her to re-allocate the matter to a managing judge for purpose of case management and further advised her that the parties previously erroneously advised the presiding Judge that the matter had become settled.

The question which this court is called upon to determine is whether the order of this Court made on 20 July 2011 is final thus discharging the authority of the Court to hear the matter except if there was an application to rescind the order of 20 July 2011.

Held that the basis on which this court, on 20 July 2011, removed the matter from the roll was procedural in nature. Held further that not every decision made by the court in the course of judicial proceedings constitutes a judgment or order.

Held furthermore that the court order of 20 July 2011 was neither final nor was it definitive of the rights of the parties nor did it have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

Markus v Telecom Namibia Limited (I 286/2009) [2014] NAHCMD 207 (23 June 2014).

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Summary: The plaintiff was employed by the defendant from 1977 to 2006. During the year 2006, the plaintiff was dismissed from the defendant’s employment. During the year 2007 the plaintiff lodged a complaint of unfair dismissal with the now defunct District Labour Court. The defendant opposed the complaint. The parties however later referred the matter to arbitration. During the arbitration proceedings the parties agreed to settle their dispute. A settlement agreement was signed by the parties during October 2008. In terms of the settlement agreement defendant had to pay the plaintiff an amount of N$ 674 051-52 less income tax assessed on that amount. Defendant submitted wrong amounts to Receiver of Revenue resulting in Receiver make a wrong assessment (resulting in a tax overpayment of N$117 283-97). The plaintiff submitted the correct amounts to the Receiver of Revenue resulting in the latter reassessing the tax payable by the plaintiff and issuing a revised tax directive.

The defendant tendered to pay to the plaintiff the amount of N$ 438 133-49 ‘in full and final settlement’ of its obligation in terms of the settlement agreement. Plaintiff refused to accept the amount of N$ 438 133-49 ‘in full and final settlement’ but was prepared to accept that amount but reserving his right to pursue interest on the amount of of N$117 283-97 which was overpaid to the Receiver of Revenue. Defendant rejected the plaintiff’s condition of accepting payment resulting in plaintiff refusing to accept the amount of N$ 438 133-49 and returning the tendered amount to defendant. On 04 February 2009 the plaintiff alleging that the defendant was in breach of the settlement agreement, instituted action against the defendant in which action he claimed an amount of N$ 556 767 - 55 plus interest at the rate of 20 % per annum on the amount of N$ 556 767-55 calculated from 17 December 2008.

At the trial the plaintiff (having accepted, but with the reservation that he will pursue interest on the amount overpaid to the Receiver of Revenue, and deposited the cheque in the amount of N$ 438 133-49) abandon his claim on the capital but persisted with his claim in respect of interest at the rate of 20 % per annum on the amount N$ 556 767-55 calculated from 17 December 2008 to date of payment.

Held that the defendant is bound by the terms of the agreement it concluded and the court has to enforce those terms.

Held further that the plaintiff or his legal practitioners were not under any obligation to accept payment in the amount of N$ 438 133-49 when it was tendered ‘in full and final settlement’ on 17 December 2008, but was entitled to pay the cheque in the amount of N$ 438 133-49 into his bank account, alternatively the trust account of his legal practitioners when the defendant clarified its position as regards the pursuit of the payment of the interest on the amount of N$117 283-97.

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Held furthermore that the plaintiff was perfectly within his rights to reject the cheque in the amount of N$ 438 133-49, if acceptance of that amount would have barred him from pursuing payment in respect of the interest on the amount of N$117 283-97. Held furthermore that when the parties signed the draft pre trail order they reached a compromise as to which factual disputes they require the court to determine. Since the question of whether a settlement agreement was reached on 20 July 2011 is not one of the question contained in the pre-trial order the court decline to entertain that question

Meyer v Scholtz (I 3670/2012) [2014] NAHCMD 148 (25 March 2014).

Summary: On 21 November 2012 Mr Bernd Otto Kurt caused to be served on Jaco Scholtz a combined summons in terms whereof he claimed from the defendant payment of damages for injuries suffered as a result of an assault (allegedly carried out by defendant on plaintiff on 12 October 2012), for pain and suffering, medical costs and contumelia. The plaintiff also claimed damages for damage to his spectacles, hearing aid and motor vehicle. The defendant entered appearance to defend and filed a plea (which was later amended on two occasions) and a counter-claim. The defendant, in his further amended plea, denies that he assaulted the plaintiff. The defendant further pleaded that he was acting out of necessity all the time trying to affect a citizen’s arrest of the plaintiff who was driving recklessly and negligently and had threatened the lives of the defendant and his young son.

Held that in matters of delicts affecting plaintiff's personality and bodily integrity onus is normally on defendant to prove excuse or justification, such as self-defence or necessity unless pleadings throw onus on plaintiff, onus likewise on defendant to prove that force used in defending himself was reasonable and commensurate with plaintiff's aggression.

Held further that damages claimed in delictual actions for injury to a thing are to be assessed on the principle that the plaintiff must by monetary compensation be placed in as good a position financially as he would have been had the damage not been inflicted.

Held furthermore that the defendant assaulted the plaintiff and further that the so-called assault by the plaintiff on the defendant was not proved.

MLN Extreme Safety Wear CC v Rockstar Footwear (Pty) Ltd (I 351/2013) [2014] NAHCMD 49 (14 February 2014).

Summary: Applicant was issued with summons which was served at his chosen domicilium citandi. At the time of the service he had left his domicilium citandi, but, had

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not notified first respondent. A default judgment was granted against him and he applied for a rescission of judgment. This was not allowed as there had been proper service on him and had no good prospects of success in light of the acknowledgment of debt. Costs at ordinary scale were granted as applicant did nothing to justify an order for punitive costs.

Munyelutha v Munyelutha (I 201/2013) [2014] NAHCMD 173 (04 June 2014)

Summary: The parties were married in community of property at Ontananga, Oshikoto Region, Republic of Namibia, on 07 September 2002, which marriage still subsists. The plaintiff alleges in his particular of claim that during the subsistence of their marriage defendant engaged in wrongful and unlawful conduct with the fixed and malicious intention to terminate the marital relationship between the parties. Plaintiff prays for an order for the restitution of conjugal rights and failing compliance therewith a final order of divorce; and an order that each party retains the property in his/her possession as their sole and exclusive property.

Defendant entered her notice to defend and filed a plea and counterclaim respectively. Defendant also alleges that during the subsistence of their marriage, plaintiff engaged in wrongful and unlawful conduct with the fixed and malicious intention to terminate the marital relationship between the parties. The defendant also prays for an order for the restitution of conjugal rights and failing compliance therewith a final order of divorce and an order for the division of the joint estate.

The issue to be determined is who is responsible for the breakdown of the marriage.

Held that plaintiff succeeded in discharging his overall onus in respect of some of the relied upon grounds of divorce.

Held further that on the facts before Court, and on the Court’s impressions of the defendant's personality and temperament, the defendant had either the actual or the constructive intention of putting an end to her marriage with the plaintiff, or of cohabitating between her and the plaintiff. Held further that the defendant's conduct amounts to malicious and constructive desertion of the plaintiff.

Held further that it is now a well-established principle of our law that if a marriage in community of property is dissolved, the equal division of the community of property takes place as a matter of law. The court will therefore not add or subtract from the operation of the law and order that the joint estate of the parties be equally divided between them.

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Mushindi v Hollard Insurance Company of Namibia (I 1362/2013) [2014] NAHCMD 229 (31 July 2014).

Summary: Insurance – Contract of insurance – Time limits for insured to make a claim, to challenge insurer’s rejection of claim, to institute legal action by serving summons on insured – Court found that in terms of the contract of insurance where the time limit for serving summons has expired the claim became prescribed and the insurer was not liable for the claim – Plaintiff (insured) served summons outside the 90 days’ time limit within which to serve summons on the defendant (insurer) – In an application for absolution from the instance court found that on the basis that the claim had become prescribed the defendant was not liable for the claim – Consequently, court reasoned that it is in the interest of justice to make an order granting absolution from the instant – Court, accordingly, ordered absolution from the instance with costs.

Mwashekele v The Prosecutor General (POCA 3/2013) [2014] NAHCMD 349 (20 November 2014).

Summary: Practice – Applications and motions – Application to condone non-compliance with relevant provisions of the Prevention of Organized Crime Act 29 of 2004 (‘POCA’) – Applicant failed or refused to bring application in terms of s 60(1) to condone applicant’s failure to give notice in terms of s 52(3) of POCA – Court found that the court has no power to condone the applicant’s failure to bring application in terms of 60(1) – Court rejected counsel’s argument that the court should invoke its inherent power and grant a condonation over and above s 60(1) – Court found that having failed or refused to take advantage of s 60(1) in terms of which he could bring an application to condone, applicant cannot bring an application to condone his failure or refusal to bring a condonation application under s 60(1) – Court found that there is one power in terms of s 60 to condone such application and there can be only one application to condone under s 60 of POCA – Court found further that it is not entitled to entertain applicant’s application because as a matter of law and logic there is no application to condone properly before the court for the court to determine – In the result the application was dismissed with costs.

Nakanyala v Nakanyala (I 394/2012) [2014] NAHCMD 47 (14 February 2014).

Summary: Husband and Wife – Matrimonial property regime – Marriages governed by Proc 15 of 1928 – Such marriages presumed to be out of community of property – However, within one month before solemnization of marriage parties may declare before marriage officer that they wish their marriage to be in community of property – In that case such marriage will be in community of property – In instant case marriage governed by Proc 15 of 1928 and no declaration was made as such – Consequently, court found that the parties’ marriage is out of community of property – Court concluded

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that what appears in mortgagee Bank’s documents based on conveyancer’s papers to the effect that the marriage is in community of property does not bind the court because it is offensive of a written law (ie Proc 15 of 1928) – Court found further that property in Windhoek was bought by the plaintiff and paid for by monthly instalments deducted from the plaintiff’s salary from 1997 until defendant took over payment in 2008 with loan taken from the mortgagee Bank – Court concluded therefore that that arrangement did not give ownership of the property to the defendant – Consequently, on the facts and in the circumstances of the case the court held that it is fair and just that the property in Windhoek be awarded to the plaintiff as the sole and exclusive owner of that property and by party of reasoning the Onembanda house (in ‘the North’) be awarded to the defendant.

Namibia Construction (Pty) Ltd v The Chairperson of the Tender Board (A 283/2007) [2014] NAHCMD 6 (21 January 2014).

Summary: The applicants’ brought an application to set aside the decision of first respondent to award a tender to third respondent. Applicants failed to join unsuccessful tenderers to the application. Issue of non-joinder raised as point in limine by respondents. Respondents argued that unsuccessful tenderers had a direct and substantial interest in the litigation concerning the tender. Held that the unsuccessful tenderers had a direct and substantial interest not only in the subject matter of litigation but also in the outcome of it. Failure to join unsuccessful tenderers fatal to applicants’ case. Held that the issue of non-joinder was raised earlier by respondents, by the time the application was launched the construction of the building had commenced and by now the building is completed. Held further that there is no point in affording applicants’ the opportunity to join the unsuccessful tenderers. Application dismissed with costs.

Namibia Security Supplies CC v Schidlowski (I 4113/2011) [2013] NAHCMD 282 (01 October 2014).

Summary: The plaintiff claimed from the defendant, the sum of N$96 203-65 for goods sold and delivered during the period 22 September 2010 to 17 June 2011. The summons was served on the defendant’s wife, Leanie at the defendant’s residential address on 12 January 2012, and on 25 January 2012, the defendant entered appearance to defend the claim.

Between the service of the summons on 25 January 2012 and March 2013 the plaintiff and the defendant engaged in attempts to reach a settlement of the plaintiff’s claim to no avail. On 13 March 2013 the defendant’s legal practitioner (Petherbridge Law Chambers) withdrew as legal practitioners of the defendant. On 12 April 2013 the defendant was personally served with a formal notice demanding the defendants' plea

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or answer to the plaintiff's claim within five days or face a notice of bar. On 24 May 2013 the Registrar of this Court gave notice to the parties that the matter has been docket allocated to this court and that an initial case management conference is scheduled for 19 June 2013. On that date the defendant did not appear at the case management conference and the matter was postponed to 10 July 2013 for the plaintiff to make an application for default judgment. On 10 July 2013 when the matter was called it transpired that the application for default judgment was not served on the defendant as he was allegedly in South Africa. This court consequently postponed the matter to 31 July 2013 to enable the plaintiff to serve the default judgment application on the defendant. On 23 July 2013 MB De Klerk filed a notice of representation for the defendant and on 25 July 2013 the defendant’s legal practitioner wrote to the plaintiff’s legal practitioner requesting the application for default judgment to be withdrawn and he tendered wasted costs. But the plaintiff refused to uplift the bar; and on 30 July 2013 the defendant applied, on notice of motion, for the removal of the bar.

The defendant in his affidavit in support of this application explained his failure to timeously deliver his plea. Defendant asserts, in his affidavit, that he has a bona fide defence to plaintiff’s claim on the basis that plaintiff’s claim is defective. The main explanation given by the defendant as to why he failed to timeously file his plea is the fact that he was without legal representation from the date that he was served with a notice to plead.

Held that the tendency of the Court was to uplift a bar where (a) there was a reasonable explanation for the delay; (b) the application was bona fide and not made with the object of delaying the opponent in the satisfaction of his or her claim; (c) there did not appear to be a reckless or deliberate non-compliance with the rules of Court; (d) applicant's case was not patently unfounded; and (e) the opponent would not be so prejudiced that he could not be compensated by a suitable order as to costs.

Held further that condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility.

Held furthermore that the deficiencies in the defendant’s affidavit have resulted in a situation where this court is unable to arrive at the conclusion that the defendant has discharged the onus that rests upon him. It follows that the defendants application for the uplifting of the bar in regard to this claim cannot succeed and is accordingly dismissed.

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Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD 74 (19 February 2014).

Summary: The 1st respondent had disconnected the water and electricity supply to Block A and B of the Nurses Home affiliated to the Windhoek Central Hospital – applicants were residing is such quarters – right of occupation disputed and subject to pending eviction proceedings in the High Court – as the applicants had shown their actual possession of water and electricity – and in circumstances were the 1st

respondent did not deny interference with such possession in pursuance of a notice to cut off water and electricity to the nurses quarters – spoliation order granted until finalization of pending eviction proceedings.

New Era Investment (Pty) Ltd v The Roads Authority (A 05/2014) [2014] NAHCMD 56 (20 February 2014).

Summary: Administrative law – Right to audi alteram partem – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the prejudicial information concerns the applicant’s ‘very questionable quality of work and ability to carry out tasks to programme deadlines in respect of two previous projects – Court found that the information was evaluated in addition to other information and facts, many of which were supplied by the tenderers – Court concluded that it was not established that but for the information the decision would have gone the other way in the applicant’s favour but there is ample evidence that the scores of the applicant in respect of technical evaluation and financial evaluation sealed its fate – These two evaluations led to the rejection of the applicant’s tender – Court concluded the non-disclosure of the information does not amount to failure of fairness – Court found that the applicant has not discharged the onus cast on it to satisfy the court that good grounds exist to review the decision of the public authority – Accordingly, application was dismissed with costs.

Summary: Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – Applicant’s main complaint was that certain criteria and weights of importance and

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relevance put on those criteria that did not favour it were applied by the public authority to its disadvantage – Consequently, for the applicant, there was failure of fairness and reasonableness because the public authority did not apply its mind and it took into account irrelevant and extraneous considerations in rejecting applicant’s tender – Court rejected the grounds on the basis that the public authority was entitled to whatever information and facts it desired to collect and apply whatever criteria or factors in its procurement policy, rules and procedures and the policy of its controlling line Ministry and put any weight of relevance and important on any piece of information and fact and any criterion or factor so long as all these were applied equally to all the tenderers.

Nghimtina v Trustco Group International Ltd (I 2976/2010) [2014] NAHCMD 11 (23 January 2014)

Summary: Defamation – Media – Defence of reasonable publication – Defendant must show that publication was reasonable and in the public interest in order to establish that publication was not wrongful – In instant case the weekly newspaper Informanté published by the first defendant and printed by the third defendant published material that is defamatory of the plaintiff, a Cabinet Minister – Defendants raised the defence of reasonable publication – Court found that steps taken by the defendants to confirm the story from an anonymous source was not enough and the defendants breached certain tenets of the Code of Ethics of the Society of Professional Journalists – Court found that the second defendant (editor of Informanté) was not prepared to wait any longer to obtain comments from the plaintiff after his reporters had failed to obtain such comments for fear that some weekly newspaper would beat Informanté to it by publishing the story – The defendants were accordingly not prepared to wait for the sacrament of confirmation – Consequently, court found that defendants have failed to establish the defence of reasonable publication and therefore the publication was wrongful and the defendants liable to the plaintiff.

Nguvauva v Minister of Regional and Local Government Housing (A 254/2010) [2014] NAHCMD 290 (2 October 2014).

Summary: Administrative law – Legal duties of administrative officials and administrative bodies – Approval for designation as chief or head of a traditional community – Ministerial scheme and Presidential scheme under the Traditional Authorities Act 25 of 2000 – The ministerial scheme of approval of proposed designation of a Chief in terms of s 5 of Act 25 of 2000 stands apart from the Presidential scheme – Court held that the two schemes are diametrically opposed and it is an absolute imperative that the two schemes are kept strictly apart – Court found that the Minister has discretionary power under s 5(1) of the Act to act or not as opposed to

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his or her obligation to act under s 5(2) of the Act – Minister received two applications to approve designation of two candidates as Chief of Ovambanderu Community as successor to the deceased Chief Munjuku – Court found that the Minister decided that both applications complied with s 5(1) of Act 25 of 2000 – In order to break the tie Minister ordered the Community to go for elections in order to choose a successor to Munjuku – Before the elections could be held Keharanjo died – Court found that by that act of God the Minister had Kilus’s designation only to approve under s 5(2) of Act 25 of 2000 – Court concluded that on the facts mandamus should issue to compel the Minister to execute his ministerium or prescribed task which is to approve Kilus’s designation – Consequently, court granted the relief sought with costs but only 70 per cent of costs of the counter-application because counsel of the counter-applicants amended certain paragraphs relating to the relief sought in the course of counsel’s oral submission.

PDS Holdings (BVI) Limited v Zaire (I 3364/2012) [2014] NAHCMD 83 (13 March 2014).

Summary: Debtor and creditor – Loan agreement – Addendum to loan agreement provides that if suspensive condition was not fulfilled by the defendant within 180 days from date of signing of the addendum to the loan agreement the debt became payable on demand – No letter of demand was sent to defendant but summons was issued and served on defendant – Court having found that as a matter of law summons constitutes demand and also that on the evidence the defendant has no defence to the claim court granted judgment for the plaintiff with costs.

Platt v Platt (I 2407/2013) [2014] NAHCMD 84 (13 March 2014).

Summary: Husband and wife – Divorce – Defendant (wife) not defending action respecting dissolution of the marriage but praying for certain anciliary relief – Anciliary relief includes right to immovable property – Plaintiff had proposed to defendant that defendant pays to him 50 percent of value of the property in order for defendant to become sole and exclusive owner of the property – Defendant declined the offer – Plaintiff prayed the court for an order that he pays to the defendant 50 percent of the value of the immovable property in return for the plaintiff becoming the sole and exclusive owner of the property which he wants to keep for the children of the family – Court found that in the circumstances and for the reason given by plaintiff for the relief sought it was fair and reasonable to grant the relief – Court accordingly awarded the immovable property to the plaintiff as his sole and exclusive property. Husband and wife – Divorce – Defendant (wife) not defending dissolution of the marriage but praying for certain anciliary relief – Spousal maintenance – The court held that a court may only award spousal maintenance if it is proven on a balance of probabilities that he or she is

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in need of it – Plaintiff (husband) undertook to take full financial responsibility for the minor children’s schooling and tuition costs and related costs and medical costs and related costs – Court found that the defendant earns an appreciable money as an employee – More important, the defendant did not place any evidence before the court in order to prove that she is in need of maintenance – Based on these reasons, in the exercise of its discretion, the court declined to award spousal maintenance.

Premier Construction CC v Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors (A 200/2014) [2014] NAHCMD 270 (17 September 2014).

Summary: Practice – Applications and motions – Interim relief pending review application – Applicant sought interim relief (as opposed to interim interdict) pending review application to review and set aside third respondent’s decision to award tender to fourth respondent – In review application applicant alleges infringement of its art 18 (of the Namibian Constitution) right – Court held that to ask the court to accept that there has been prima facie infringement until proved otherwise has the effect of setting at naught without justification the constitutional imperative that onus of proof lies on party alleging infringement of fundamental rights – Court concluded that if court granted the interim relief on the basis that there has been prima facie infringement of the applicant’s rights that would be wrong and unjust – Court found that on the papers the event which applicant has approached the court to stop has already been implemented because contract between third respondent (the employer) and fourth respondent to whom the tender was awarded had been entered into – Tender works were in progress after fourth respondent acquired construction machinery and equipment for the works – Court found further that fourth respondent had concluded contracts with subcontractors and committed most of its employees to the works – Based on the issue of constitutional imperative and the factual findings court refused to grant the relief – Consequently, court rejected the application with costs.

Promar CC v Blue Seal Exporters CC (I 236/2004) [2014] NAHCMD 10 (23 January 2014)

Summary: Contract – Purchase and sale – Plaintiff (seller) relying on an oral agreement to sell and second defendant (buyer) to purchase horse mackerel – Fish loaded on vessel fell short of the total contract consignment – Subsequently, parties agreed that consignment could be supplemented with mackerel – Court found that the subsequent agreement on supplementation constituted an amendment of the original agreement and did not constitute a separate or second agreement that could stand on its own and be severable from the original agreement.

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Purity Manganese (Pty) Ltd v Maritima Consulting Services CC (A 295/2014) [2014] NAHCMD 350 (20 November 2014).

Summary: Practice – Applications and motions – Urgent applications – Court held that applicant must satisfy the two requirements under rule 73(4) of the rules (ie rule 6(12)(1)(b) of the repealed rules) – The applicant launched an urgent application for an order to intervene in, and oppose, a pending application in which a rule nisi had been granted – Applicant sought to intervene in, and oppose, that application – On the papers the court found that applicant has not satisfied the requirements under rule 73(4), in particular the requirement under para (b) of rule 73(4) – Consequently, the court refused, with costs, the application on the basis that the requirements of rule 73(4) of the rules of court have not been satisfied.

Rall v Professional Provident Society Insurance Company (Namibia) Ltd (A 224/2013) [2014] NAHCMD 249 (22 August 2014)

Summary: The applicant was a legal practitioner of this Court. During his tenure as a legal practitioner he and PPS Namibia (Ltd) (the respondent company) concluded an agreement of insurance, in terms of which he was insured in the event that he would become permanently disabled or incapacitated to continue with his profession as a legal practitioner.

During March 2009 the applicant was involved in an accident with a bicycle. As a result of the accident the applicant sustained a brain injury which injury resulted in the applicant becoming incapable of exercising his profession as a legal practitioner. During September or October 2010, the applicant lodged a claim for the payment of the permanent incapacity benefits in terms of the insurance policy (agreement) which he held with the respondent. On 11 February 2011 the respondent rejected the applicant’s claim. The applicant objected to the rejection of his claim.

As a result of his objection the applicant was evaluated by medical specialist and other advisors of the respondent, and his claim was revised and he was advised that his claim was accepted but only 20% of the benefits would be awarded to him. The applicant appealed against this 20% award. During the entire period of pursuing his claim (i.e. from October 2010 to 08 February 2012) when his claim was finally admitted and accepted, the appellant continued to pay his premiums as set out in the insurance policy contract. His appeal was ultimately reconsidered and on 08 February 2012 the respondent advised the applicant his claim was reassessed and PPS has awarded him a 100% benefit effective 27 February 2011.

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During March 2012, the respondent informed the applicant that an amount of N$8 332 929-00 was determined as the disability lump sum benefit, and that amount will also be paid to him. The respondent per e-mail dated 22 February 2012, addressed to the applicant’s legal practitioners amongst others informed the applicant that the outstanding amount together with the interest should be paid to the member by no later than the end of the month.

When the respondent ultimately effected payments no interest was paid. The applicant appealed against the non-payment of the interest, the arbitrator appointed by the applicant dismissed the appeal on the ground that applicant was not entitled to mora interest. When applicant’s appeal was dismissed he launched the present proceedings. Respondent raised to point in limine first being that the applicant’s claim is based upon an insurance agreement, but the applicant fails to make the necessary averments in order to establish and rely on the insurance contract and that the applicant’s application does not comply with rule 18(6) of the Rules of this Court (now repealed) and should therefore be dismissed. The second point in limine was that only a liquidated claim attracts interest. In the present case the permanent disability amount of N$ 8 332 929-00 was only determined on 8 February 2012, and thus only became liquidated on that date (i.e. on 8 February 2012) meaning that interest will only become due as from the date that the amount became liquidated.

Held, that there is ample authority to the effect that an acknowledgment of debt, provided it is coupled with an express or implied undertaking to pay that debt, gives rise to an obligation in terms of that undertaking when it is accepted by the creditor; and it does not matter whether the acknowledgment is by way of an admission of the correctness of an account or otherwise.

Held further that in the present matter, the parties concluded an insurance contract, in terms of that contract the parties agreed that the respondent will indemnify and make good the loss suffered by the applicant on the happening of an uncertain event. The event in respect of which the parties contracted occurred during March 2009, when the applicant sustained brain damages in a bicycle accident. On 8 February 2012 the respondent accepted the applicant’s claim and undertook to pay the applicant the loss he (i.e. the applicant) suffered with effect from 27 February 2011 and that, the acceptance and undertaking to pay the applicant with effect from 27 February 2011 is an agreement independent and separate from the main insurance contract.

Held, further, that the respondent had fixed and determined the date on which it will pay the applicant the disability benefit, as 27 February 2011. Having fixed the date for paying the disability benefit, at 27 February 2011, the failure to pay the benefit on that day resulted in the respondent being in mora ex re.

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Sandvoss v Sudwischer (I 719/2013) [2014] NAHCMD 17 (24 January 2014

Summary: An application under Rule 30 was lodged attacking the application for a rescission of judgment. Applicant argued that the summary judgment was granted without regard to the provisions of Rule 31 (2) (b). It was not clear whether application was relying on an irregularity of the procedure employed by the court or the decision itself in which case a proper procedure should have been elected from the start.

Schutz v Pirker (A 374 /2013) [2014] NAHCMD 341 (12 November 2014).

Summary: The applicant commenced proceedings on 21 October 2013, by way of notice of motion. In his notice the applicant is asking this court to order Ms Pirker (who is the first respondent) to refrain from interfering with Mr Simon Gaeb (who is allegedly the applicant’s agent) and to allow Simon Gaeb to enter onto farm Hefner No. 45 to attend to the applicant’s interest on the farm. The applicant is furthermore asking this court to order Ms Pirker to sign the amended founding statement in respect of Hefner Farming CC, so as to reflect a certain Clemens Hellman as the holder of 25% of the members’ interest in and to Hefner Farming CC.

On 30 October 2013 Ms Pirker gave notice that she will oppose the applicant’s application. On 17 January 2014 Ms Pirker gave the applicant notice, under Rule 47(1), that she requires the applicant to furnish her with security for costs in the amount of N$150 000. She gave as her reasons for requiring the applicant to furnish security for costs the fact that, the applicant is a peregrinus of this court. On 28 January 2014 the applicant gave notice to Ms Pirker that he disputes Pirker’s entitlement to security for costs. He disputes her entitlement to costs on the basis that, to the knowledge of Pirker, he (the applicant) has substantial assets in the Republic of Namibia, which assets are in excess of the security requested by Pirker. On 11 February 2014 Pirker gave notice that on 21 February 2014 she will apply to the Court to order the applicant to furnish security for costs in the proceedings commenced on 21 October 2013.

On 24 September 2014 the matter was postponed to 30 October 2014 for hearing the application for security of costs. It was further ordered that, Ms Pirker must file her heads of argument by no later than 20 October 2014 and the applicant must file his heads of argument by no later than 23 October 2014. Ms Pirker only filed her heads of argument on 23 October 2014. On 27 October 2014 Ms Pirker brought an application (by way of simple notice) for the condonation of the late filing of the heads of argument.

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At the hearing of the application for security of costs on 30 October 2014 Mr Mouton who appeared for the applicant indicated that, the applicant opposes the application for condonation, this is despite the fact that, no notice to oppose the application for condonation was filed. Mr Mouton opposes the condonation application on two grounds. The first ground of opposition is based on the argument that the application for condonation is invalid for want of compliance with Rule 65(1) & (4). The second ground of opposition is that the late filing of the heads of argument prejudices the applicant in that he had to prepare his heads of argument without insight to the arguments on behalf of Pirker.

Held, that Ms Pirker’s failure to timeously file the heads of argument was not intentional, and that she sufficiently explained the failure. The application for security for costs was, despite the late filing of the heads of argument, heard on the date on which it was set down for hearing. No demonstrable adverse effects were placed before this Court. That this is a clear case which calls for this Court to exercise its discretion in favour of Ms Pirker, and condone her legal practitioner’s failure to timeously compliance with the court order of 24 September 2014.

Held further that the question whether or not the court must order a party from whom security for costs is demanded lies within the discretion of the court. That the court must carry out a balancing exercise. On the one hand it must weigh the injustice to the applicant if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the respondent if no security is ordered and at the trial the applicant’s claim fails and the respondent finds himself unable to recover from the applicant the costs which have been incurred by her in her defence of the claim.

Held further, that the scale must tilt in favour of Ms Pirker for the following reasons. The applicant is a peregrinus of this court and he does not dispute the fact that if Ms Pirker is successful in the main application and an order of costs is granted in her favour it will be difficult if not impossible for her to recover from him the costs which she has incurred in her defence of the claim against her. The applicant simply states that he has ‘considerable assets’ in Namibia. Firstly the assets that he claims to have are the subject of the dispute in the main application, secondly he does not inform this court what the value of those ‘assets’ are.

Shaanika v Minister of Justice (A 411/2013) [2014] NAHCMD 16 (24 January 2014).

Summary: Applicant alleged bias on the part of court. She was however, disrespectful throughout the proceedings not only to the legal practitioner on the other side but to the court as well. The test in bias was applied as per the case authorities in this jurisdiction and she failed it. Applicant further applied that the Judge President be

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ordered not to appoint a Judge from Namibia or Zimbabwe to preside on her case but from any other SADC country. This court does not have such powers. The application was accordingly dismissed.

Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24 July 2014).

Summary: Practice – Applications and motions – Application for condonation in terms of Prevention of Organized Crime Act 29 of 2004 (POCA) – Applicant failing to bring application to condone failure to give notice in terms of s 52(3) of POCA – Applicant applying to court to condone applicant’s failure to bring an application to condone applicant’s failure to give the notice within the time limit – Applicant failed to give notice in terms of s 52 of POCA and applicant failed to bring application under s 60(1) to condone applicant’s failure to give such notice – Court held that the court has no power to condone applicant’s failure to bring application for condonation in terms of s 60(1) of POCA – Court gave reasons for not accepting the applicant’s reasons for not giving the notice under s 52 and not bringing application to condone the failure to give the notice under s 52 of POCA.

Summary: Practice – Judgments and orders – Rescission of order – Application in terms of s 58(3) of Prevention of Organized Crime Act 29 of 2004 (POCA) – Preservation of property order granted ex parte in absence of applicant – When to be granted – Where relief of no final nature sought – Relief constitutes only a preliminary step in the proceeding which contemplates the bringing of application for forfeiture of the preserved property within a stipulated time in terms of s 53(1) of POCA – Court held that the Prosecutor General only need to make a prima facie case where the court is satisfied that there is evidence which if accepted will establish the Prosecutor-General’s belief based on reasonable grounds within the meaning of s 51(2) of POCA that the property sought to be preserved is an instrumentality of an offence under Schedule 1 of POCA or proceeds of unlawful activities – Court found that the evidence placed before the court that granted the preservation of property order established to the satisfaction of that court that the Prosecutor General’s belief was based on reasonable grounds that the property is an instrumentality of an offence under Schedule 1 of POCA or proceeds of unlawful activities – The Prosecutor General’s belief was not groundless or frivolous and so the court was inclined to grant the preservation of property order – The court concluded that applicant has not established that the preservation of property order was erroneously sought or erroneously made or that it was made as a result of a mistake common to the Prosecutor General and Shaululu – Consequently, the court rejected the relief for rescission of the preservation of property order.

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The Municipal Council of Gobabis v Smith (A 36/2014) [2014] NAHCMD 361 (27 November 2014)

Summary: Administrative law – Legal duty of administrative body (applicant) – Applicant failed or refused to consider respondent’s application for special consent to operate a business on his property – Respondent sought an order to compel applicant to act – The respondent (applicant in the counter application) applied to the applicant (respondent in the counter application) for special consent to operate a brick plant business on his property – Respondent received no answer to his application necessitating the launching of the counter application to an application brought by the applicant to interdict the respondent from carrying on non-agricultural activity on his property – Applicant having withdrawn the application the counter application was moved and heard – Court found that because the applicant did not act on the respondent’s application there was illegal inaction, by neglect of duty, on the part of the applicant – Consequently, court ordered mandamus to issue to compel performance by the applicant and to prevent injustice to the respondent – Court accordingly granted the counter application with costs.

Tjihero v Kauari (I 2845/2012) [2014] NAHCMD 27 (30 January 2014).

Summary: Pleadings – Replication – Plaintiffs entitled to deliver replication in terms of rule 25(1) of the rules of court – But such entitlement is qualified by the requirement that plaintiffs must comply with the time limit prescribed by rule 25(1) for delivery of replication – In instant case, plaintiffs sought in terms of rule 27(1) extension of the time limit prescribed by rule 25(1) of the rules – Court found that the plaintiffs have on affidavit furnished a sufficiently full explanation for the default and no prejudice will be occasioned to the defendant if the time limit for delivery of the replication was extended – Court found further that the replication did not raise what amounts to a new or an alternative cause of action and further that the replication was necessary for the adjudication of the dispute between the parties – Consequently, the court granted the application for extension of time for the delivery of the plaintiffs’ replication. Pleadings – In terms of rule 18(4) of the rules of court – Interpretation and application of the rule – Court found that a party complies with the requirements of rule 18(4) of the rules if the party puts forth a definite or clear expression of the facts the party relies on for his or her claim with sufficient particularity to enable the opposing party to reply to it – It is not the concern or requirement of rule 18(4) whether the party can prove what he or she alleges – Upon the authorities the court found that the plaintiffs’ pleading contains indubitably sufficient averments to sustain a cause of action.

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Tumas Granite Close Corporation v The Minister of Mines and Energy (A 95/2013) [2014] NAHCMD 210 (10 July 2014)

Summary: Practice – Irregular proceeding – Two-stage approach enunciated by Supreme Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) adopted in present enquiry – If step is irregular, court to determine whether innocent party prejudiced – Applicants by notice requested respondents to deliver documents required for the prosecution of applicants’ review application – Respondents refused or failed to deliver the documents and instead filed answering affidavit because in their view the documents were not necessary for the applicants to pursue the application – It is not up to an administrative body or official to decide that a document which a person, who is aggrieved by a decision of that body or official and who desires to bring that decision under review, is not necessary or required for the person to pursue the review application – Court found that the step taken by the respondents was irregular – Court held that since the step amounted to the taking away of the applicants’ procedural rights under the rules of court the step substantially prejudiced the applicants – Court concluded, therefore, that the irregular step was a nullity – Court held that an irregular step that has the effect of whittling away the right of a person must always prejudice that person such and prejudice is undoubtedly substantial – Consequently, the rule 30 application succeeded and the court struck out the answering affidavit.

Useb v Gawaseb (I 1625/2012) [2014] NAHCMD 283 (1 October 2014).

Summary: The plaintiff was married to Helen Charmaine Useb (Born Tsaes) on 03 September 2005 at Outjo. Two children were born of the marriage. On 25 November 2011 Charmaine left the plaintiff. She subsequently divorced the plaintiff and is presently living with the defendant in Windhoek. On 25 July 2012 the plaintiff caused summons to be served on the defendant in which summons the plaintiff is claiming damages in the amount of N$95,000.00 on the grounds of the defendant’s alleged adultery with the plaintiff’s former wife, Charmaine. The defendant defended the action.

Held that the plaintiff’s cause of action is the actio iniuri, that the plaintiff draws the onus to prove the infringement of his personality rights and that damages are awarded on two grounds; first on the ground of the injury or contumelia inflicted upon the husband/wife, and second, for the actual damage which the plaintiff may have sustained by reason of the loss of society, comfort and assistance of his wife in consequence of the adultery.

Held further that both the defendant and Charmaine admitted that they entered into a romantic relationship prior to the dissolution of the marriage between the plaintiff and

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Charmaine. In view of this admission this Court finds that the defendant committed adultery with Charmaine when he stayed with her from May 2012 until when the marriage between the plaintiff and Charmaine was dissolved by this Court.

Held further that the plaintiff’s evidence is generally, unsupported by details and this Court rejects it as false. Charmaine’s evidence is supported by the evidence of friends, that she was thoroughly unhappy during the subsistence of the marriage. This Court is unable to find a causal connection between the admitted adultery and any loss of consortium which the plaintiff may have suffered.

Held further that plaintiff has failed to discharge the onus upon him to prove the loss of consortium.

Held furthermore that as regards the injury to his dignity and feelings this Court is not satisfied that defendant’s adultery with Charmaine caused him any distress or injuria whatsoever. Under the circumstances he is not entitled to more than nominal damages.

Van der Merwe v Plastic Packaging (Pty) Ltd (I 1218/2012) [2014] NAHCMD 52 (18 February 2014).

Summary: Applicant was in a 50% share ownership with second respondent before it converted into a company. Applicant sold his shares to a Mr Herman Mans. Second respondent later applied for a credit from first respondent to which applicant signed as surety, but, thereafter signed a memorandum of understanding excluding applicant. Summons were served on applicant and were affixed at the gate where there are many offices and residential properties. Applicant later entered into negotiations which failed. Applicant sought condonation of late application and rescission in terms of Rule 44 (1) (a) on the basis of an error of a judgment granted by the court.

Van Der Merwe v Nedplan Insurance Brokers (Pty) Ltd (A 402/2013) [2014] NAHCMD 34 (5 February 2014).

Summary: Applicant acted dishonestly by falsifying a client’s finalisor form. Third respondent cancelled their contract and evicted him. Applicant to blame and not allowed to get relief through an urgent application. The courts should not as a general rule grant costs on a higher scale against a losing party unless he was unreasonable in his pursuance of his rights to the court. Costs awarded on the ordinary scale.

Van Straten N.O. v Namibia Financial Institutions Supervisory Authority (I 647/2012) [2014] NAHCMD 31 (31 January 2014).

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Summary: Plaintiffs issued summons out of this court against defendants on the basis of negligence in failing to supervise second plaintiff and Potgieter. Defendants excepted to the summons on the basis that the particulars of claim were vague and embarrassing as they lacked the necessary averments which would enable them to plead. The requirements for exception were examined.

Van Rooi v Town Council of Rehoboth (A 133/2014) [2014] NAHCMD 317 (30 October 2014)

Summary: Sale – Land – Contract – Cancellation – Purchaser in breach – Seller purported to cancel sale agreement on the basis that purchaser has breached material terms of the agreement, including non-payment of the purchase price on due date – In terms of the agreement the seller was to give written notice to remedy the breach within 14 days, failing which seller was entitled to cancel the sale or claim immediate payment of the purchase price and fulfillment of all terms and conditions of the agreement – Court found that the seller had not followed the procedure for cancellation under the agreement when she purported to cancel the agreement – Consequently, court found the purported cancellation to be ineffective – Court granted order requiring the seller to follow the proper procedure if she desired to cancel agreement.

Van Wyk v Van Wyk (I 2995/2013) [2014] NAHCMD 5 (20 January 2014).

Summary: Plaintiff in a Restitution of Conjugal Right application claimed specific or quantitative order. The court questioned this claim. Plaintiff’s legal practitioner submitted Heads of Argument. Court satisfied with the approach. Plaintiff was ordered to set down the matter and apply for a Restitution of Conjugal Rights.

Worker Freight Services v The Commissioner for Customs and Excise (A 128/2012) [2014] NAHCMD 38 (07 February 2014).

Summary: This matter concerns the liability of a surety for the payment of customs and excise duty. During June 2011 somebody, wanted to import a consignment of cigarettes into Namibia from Zimbabwe. The truck carrying the consignment of cigarettes was destined to enter Namibia from Zambia at the Wenela border post, on 02 June 2011. The truck was, in terms of the Customs and Excise Act, 1998 detained under customs at the Wenela border post, pending the payment of excise duties imposed in terms of the Customs and Excise Act, 1998. The applicant authorised the consignment of the cigarettes to be cleared on the applicant’s Multi-Purpose General Bond from the Zambezi Duty Free Bond Warehouse to Angola through the Oshikango Border post. It, however, transpired that the consignment of the cigarettes was not exported from Namibia. The first respondent accordingly refused to acquit the

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applicant’s bond. Applicant as a consequence instituted this application seeking to interdict the first respondent from presenting for payment or enforcing the ‘Multi-Purpose General Bond’.

Held that when the applicant authorised its ‘multi-purpose bond’ to be used it accepted liability to pay the debt (custom and excise duties) of another (ie the person who imported the consignment of cigarettes into Namibia) and as such acted as a surety for that person (whoever he or she may be).

Held further that the third respondent, in his capacity as agent for the person (the principal debtor) who exported the consignment of the cigarettes, was in terms of the Act liable to pay duty. As surety the applicant promised that the principal debtor would perform and the applicant thus assumed the risk of breach of contract by the principal debtor.

Held furthermore that the applicant's obligation to pay is dependent upon the existence of a particular state of affairs (the breach of contract by the principal debtor or it’s agent) that is an obligation that arises when the state of affairs exists and is enforceable as such. In the result the applicant’s claim is dismissed with costs.

Wiers v Wiers (I 3133/2011) [2014] NAHCMD 66 (26 February 2014).

Summary: Plaintiff issued summons against the defendant for restitution of conjugal rights, or failing therewith, a final order of divorce. Defendant filed her plea and simultaneous therewith a counterclaim. In her counterclaim the defendant also claimed restitution of conjugal rights and if the plaintiff failed to comply therewith a final order of divorce. The defendant also asked for other ancillary relief, amongst others the relief that an immovable property registered in the name of the plaintiff be sold and that the proceeds be divided equally between the parties. The plaintiff excepted to the plaintiff’s counterclaim on the ground that since the parties were married out of community of property without the accrual system there was no legal basis for defendant’s reliance on international law or the Namibian Constitution, to pray for the sale of the common home and the equal division of the proceeds therefrom.

Held, that in the present case (the counterclaim) there is only one cause of action, namely the alleged breach of the marriage contract committed by the plaintiff. The allegations by the plaintiff on which she relies to allege that the plaintiff breached the marriage contract are not meaningless, they are clear and are not capable of more than one meaning.

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Held, further that an exception to a pleading, to be successful, must be directed at each separate and distinct cause of action or at a particular cause of action and that an exception to the whole of a declaration on the basis that it does not support one of two claims arising out of one cause of action is bad.

Held furthermore that the first claim (the restitution of conjugal rights), the major claim, is just as much part of the cause of action as the second, the minor claim. That if the averments in the particulars of the counterclaim are sufficient to sustain the major claim, then, even if they are not sufficient to sustain the minor claim, they are sufficient to sustain the action in part. The plaintiff is not entitled to have the counterclaim set aside because it is not sufficient to sustain both the major and the minor claims in the action.

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