2018 Unreported HC

Civil Judgment Index

THIS INDEX CONTAINS BOTH REPORTABLE AND NON-
REPORTABLE CIVIL JUDGMENTS OF THE HIGH COURT,
2018

Compiled By: Mrs Nicole Januarie

Senior Legal Officer: Supreme Court

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Contents

ABSOLUTION FROM THE INSTANCE.......................................................................................11

ADMINISTRATIVE LAW................................................................................................................11
APPEAL...........................................................................................................................................13
APPLICATIONS..............................................................................................................................14
CIVIL PRACTICE AND PROCEDURE........................................................................................16
COMPANY LAW.............................................................................................................................27
COMPETITION LAW......................................................................................................................28
CONSTITUTIONAL LAW...............................................................................................................28
CONTRACT.....................................................................................................................................30
COSTS.............................................................................................................................................33
DELICT............................................................................................................................................34
DOMICILE.......................................................................................................................................36
ETHICS............................................................................................................................................36
EVIDENCE......................................................................................................................................36
INSOLVENCY LAW........................................................................................................................37
INTELLUCTUAL PROPERTY.......................................................................................................38
INTERDICTS...................................................................................................................................38
INTERLOCUTORY.........................................................................................................................38
LAW OF SUCCESSION................................................................................................................39
MATRIMONIAL...............................................................................................................................40
MOTOR VEHICLE ACCIDENT LAW...........................................................................................42
PRESCRIPTION.............................................................................................................................43
PROPERTY LAW...........................................................................................................................44
RECISSION OF JUDGMENT/ORDER........................................................................................46
REVIEW...........................................................................................................................................46
REI VINDICATIO............................................................................................................................48
STATUTORY INTERPRETATION...............................................................................................48
SUMMARY JUDGMENT...............................................................................................................48
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TAXATION.......................................................................................................................................50
URGENT APPLICATIONS............................................................................................................51
CASE SUMMARIES.......................................................................................................................53
Africa Today Building Enterprise Close Corporation vs Amupolo Building Construction (HC-
MD-CIV-ACT-CON-2017/04545) [2018] NAHCMD 218 (13 July 2018).................................53
Air Liquide Namibia (Pty) Ltd v Afrinam Investments (Pty) Ltd (HC-MD-CIV-ACT-CON-
2017/03356) [2018] NAHCMD 123 (11 May 2018)...................................................................54
Akwenye v Akwenye (HC-MD-CIV-MOT-GEN-2018/00025) [2018] NAHCMD 347 (31
October 2018).................................................................................................................................55
Akwenye v Amadhila (HC-MD-CIV-ACT-CON-2017/02946) [2018] NAHCMD 114 (27 April
2018)................................................................................................................................................55
Akwenye v Amadhila (HC-MD-CIV-ACT-CON-2017/02946) [2018] NAHCMD 252 (21
August 2018)..................................................................................................................................56
Andrico Investments Number Sixty Five CC v Welwitschia Family Clinic CC (HC-MD-CIV-
ACT-CON-2017/00734) [2018] NAHCMD 112 (23 April 2018)................................................57
Ashikoto v Prefered Investment Property Fund (HC-MD-CIV-ACT-DEL-2016/02898) [2018]
NAHCMD 127 (16 May 2018)......................................................................................................58
Asino v Elifas (HC-NLD-CIV-MOT-REV-2017/00011) [2018] NAHCNLD 82 (9 August 2018)
..........................................................................................................................................................59
Auas Valley Residents Association v Minister of Environment & Tourism (HC-MD-CIV-
APP-ATL-2018/00003) [2018] NAHCMD 267 (4 September 2018)........................................59
Autovermietung Savanna CC v Nangolo (HC-MD-CIV-ACT-DEL- 2017/03952) [2018]
NAHCMD 351 (16 October 2018)................................................................................................60
Babyface Civils CC JV Hennimma Investments v // Karas Regional Council (HC-MD-CIV-
MOT-REV-2017/00097) [2018] NAHCMD 29 (7 February 2018)............................................60
Bank Windhoek Ltd v Shiimi (HC-MD-CIV-ACT-CON-2017/04027 [2018] NAHCMD 352 (1
November 2018)............................................................................................................................61
Bargain Building Supplies CC v Van Zyl (HC-MD-CIV-ACT-CON-2017/00049) [2018]
NAHCMD 40 (26 February 2018)................................................................................................62
Ben-Tovim v Van Zyl N.O (HC-MD-CIV-MOT-GEN-2016/00315) [2018] NAHCMD 95 (13
April 2018).......................................................................................................................................62
Beukes v First National Bank Limited (HC-MD-CIV-MOT-GEN-2017/00235) [2018]
NAHCMD 94 (13 April 2018)........................................................................................................63
Bikeur v The Master of the High Court (I 2730-2011) NAHCMD 234 (27 July 2018)...........64
Buildhard Services (Pty) Ltd t/a E Hard-Build Centre v Muukua (I 1586/2016) [2018]
NAHCMD 335 (23 October 2018)................................................................................................65
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Caterplus Namibia Pty Ltd t/a Blue Marine Interfish v Hallie Investment 142 CC t/a Wimpy
Maerua (I 3086/2012) [2018] NAHCMD 320 (12 October 2018).............................................65
Central Technical Supplies (Geiger) Engineering Services (Pty) Ltd v Khomas Aluminium
and Glass CC & Another (I 2242/2015) [2018] NAHCMD 76 (29 March 2018).....................65
Chombo v Minister of Safety and Security (I 3883/2013) [2018] NAHCMD 37 (20 February
2018)................................................................................................................................................66
Christian v Namibia Financial Institutions Supervisory Authority (A 244/2010) [2018]
NAHCMD 19 (8 February 2018)...................................................................................................66
Christian v Namibia Financial Institutions Supervisory Authority (A 244/2010) [2018]
NAHCMD 288 (14 September 2018)...........................................................................................67
CJ’s Service Station CC v Steyn (I 2813/2015) [2018] NAHCMD 275 (6 September 2018)
..........................................................................................................................................................68
Colia Louis Family Trust v Komsberg Farming (Pty) Ltd (in Liquidation) (I 2551/2014)
[2018] NAHCMD 9 (29 January 2018)........................................................................................68
Conrad v Dohrmann (I2073/2015) [2018] NAHCMD 121 (14 May 2018)...............................68
Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of Windhoek (A
421/2013) [2018) NAHCMD 187 (26 June 2018)......................................................................69
C S v C S (HC-MD-CIV-ACT-MAT-2017/00179) [2018] NAHCMD 236 (9 August 2018)....70
Dausab v Hedimund (HC-MD-CIV-ACT-DEL-2016/02446) [2018] NAHCMD 99 (19 April
2018)................................................................................................................................................71
Denk v The Chairperson of the Disciplinary Committee for Legal Practitioners (A 199/2012)
[2018] NAHCMD 405 (14 December 2018)................................................................................71
Development Bank of Namibia v Keystone Technology Solution (I 3678-2013) [2018]
NAHCMD 295 (19 September 2018)...........................................................................................72
Dumeni vs Minister of Safety and Security (HC-MD-CIV-ACT-OTH-2017/01588) [2018]
NAHCMD 137 (22 May 2018)......................................................................................................73
EK v EK (I 3455/2015) [2018] NAHCMD 200 (3 July 2018).....................................................74
Endunde v The Chairperson of the Okavango East Communal Land Board (HC-MD-CIV-
MOT-GEN-2016/00384) [2018] NAHCMD 113 (27 April 2018)...............................................75
Faida Trading & Clearing Enterprises CC v Nedbank Namibia Limited (I 143/2014) [2018]
NAHCNLD 66 (23 July 2018).......................................................................................................76
Fernandes v Baleia Do Mar Industrial Safety Supplies CC (HC-MD-CIV-MOT-GEN-
2017/00204) [2018] NAHCMD 337 (17 October 2018).............................................................77
Fish Orange Mining Consortium (Pty) Ltd v !Goaseb (I 582/2010) [2018] NAHCMD 154 (8
June 2018)......................................................................................................................................78
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Fullard v Nghaamwa (HC-MD-CIV-MOT-GEN-2018/00180) [2018] NAHCMD 306 (30

August 2018)..................................................................................................................................79
G R v E R (HC-MD-ACT-MAT-2016/03929) [2018] NAHCMD 134 (18 May 2018)..............79
Gaweseb v Council of the Municipality of Windhoek (HC-MD-CIV-MOT-GEN-2017/00423)
[2018] NAHCMD 346 (29 October 2018)....................................................................................80
Herero v The Minister of Safety and Security (HC-MD-CIV-ACT-CON-2016/02751) [2018]
NAHCMD 382 (29 November 2018)............................................................................................81
Hiskia v Body Corporate of Urban Space (HC-MD-CIV-MOT-GEN 2017/00143) [2018]
NAHCMD 279 (31 August 2018)..................................................................................................82
Hochobeb v Dunn (I 1772/2013) [2017] NAHCMD 150 (7 June 2018)...................................83
Höfelein v Bruni NO (HC-MD-CIV-MOT-GEN-2017/00079) [2018] NAHCMD 328 (18
October 2018).................................................................................................................................83
Horn v Horn (I 615/2016) [2018] NAHCMD 3 (23 January 2018)............................................85
Indongo v Nangombe (I 2580/2011)) [2018] NAHCMD 143 (30 May 2018)..........................85
Ipinge v Lukas (I 1833/2011) [2018] NAHCMD 106 (23 April 2018).......................................85
Jahanika v Muinjangue (HC-MD-CIV-MOT-GEN-2018/00206) [2018] NAHCMD 363 (14
November 2018)............................................................................................................................87
Joubert v The Minister of Home Affairs and Immigration (HC-MD-CI-MOT-REV-2016-
00327) [2018] NAHCMD 118 (03 May 2018).............................................................................88
Julius v The Prosecutor-General of the Republic of Namibia (2017/00355) [2018] NAHCMD
75 (29 March 2018).......................................................................................................................88
K v K (I2987/2015) [2018] NAHCMD 126 (14 May 2018).........................................................89
Kaishugu v Minister of Land Reform (HC-MD-CIV-MOT-GEN-2017/00292) [2018]
NAHCMD 329 (18 October 2018)................................................................................................90
Kambwela v Mbadhi (I 185/2016) [2018] NAHCNLD 16 (12 February 2018)........................91
Kamwi v Standard Bank Namibia Limited (A 101/2011) [2018] NAHCMD 196 (29 June
2018)................................................................................................................................................91
Kamwi v The Chairperson of the Local Authority of Katima Mulilo (HC-MD-CIV-MOT-GEN-
2017/00201) [2018] NAHCMD 367 (15 November 2018).........................................................92
Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353)
[2018] NAHCMD 287 (3 May 2018).............................................................................................92
Kandjeo v Agape Investment CC (I 597/2015) [2018] NAHCMD 222 (19 July 2018)..........93
Kapika v Minister of Urban and Rural Development (HC-MD-CIV-MOT-REV-2016/00331)
[2018] NAHCMD 51 (9 March 2018)...........................................................................................93
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Karslruh Number One Farming Close Corporation v De wet Esterhuizen (HC-MD-CIV-

ACT-DEL-2016/02394) [2018] NAHCMD 388 (26 November 2018)......................................94
Kashululu v Nakale (I 132/2015) [2018] NAHCNLD 44 (14 May 2018)..................................95
Kauhano v Minister of Safety and Security (I 3952/2013) [2018] NAHCMD 317 (28
September 2018)...........................................................................................................................96
Kavezeri v Kavezeri (HC-MD-CIV-ACT-OTH-2016/02421) [2018] NAHCMD 205 (06 July
2018)................................................................................................................................................97
Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018).........................98
Klein v Kaura (I 4315 / 2013) [2017] NAHCMD 1 (15 January 2017)...................................100
Koujo v Minister of Mines and Energy (HC-MD-CIV-MOT-REV-2017/00411) NAHCMD 260
(17 August 2018)..........................................................................................................................100
Kwizi vs Shinana (HC-MD-CIV-ACT-DEL-2016/03047) [2018] NAHCMD 108 (23 April
2018)..............................................................................................................................................103
Lee’s Investment (Pty) Ltd v Shikongo (HC-MD-CIV-ACT-CON-2016/03394) [2018]
NAHCMD 321 (12 October 2018)..............................................................................................103
Liseho v Liseho (HC-MD-CIV-MOT-GEN-2017/00137) [2018] NAHCMD 82 (28 March
2018)..............................................................................................................................................104
Luckhoff v Nico’s General Investment cc (HC-MD-CIV-ACT-CON-2017/1666) [2018]
NAHCMD 342 (30 October 2018)..............................................................................................105
Luxury Investments One Hundred and Ninety Two (Pty) v Koujo (HC-MD-CIV-MOT-REV-
2017/00411) [2018] NAHCMD 390 (28 November 2018).......................................................105
Malakia v Alexander Forbes Insurance Company (HC-MD-CIV-ACT-OTH-2017/03868)
[2018] NAHCMD 365 (16 November 2018)..............................................................................107
Maritz v Louw N.O Cited In His Capacity As The Executor of the Estate of Late Johann
Wilhelm De Beer under Master's Reference Number: 2021/2012 Whk (HC-MD-CIV-ACT-
OTH-2017/04117) [2018] NAHCMD 261 (28 August 2018)...................................................107
Mbelle Panel Beaters & Transport CC v Willemse (HC-NLD-CIVACT-OTH-2017/00119)
[2018] NAHCNLD 21 (12 March 2018).....................................................................................108
McLaren v Minister of Finance (HC-MD-CIV-MOT-GEN-2017/00144) [2018] NAHCMD 101
(20 April 2018)..............................................................................................................................109
Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-CIV-MOT-GEN -2018/00062
[2018] NAHCMD 97 (17 April 2018)..........................................................................................110
Miljo v Ndivayele (I 3903/2015) [2018] NAHCMD 263 (30 August 2018).............................111
Minister of Finance v Hollard Insurance Company of Namibia Limited (HC-MD-CIV-MOT-
GEN-2018/00227) [2018] NAHCMD 294 (20 September 2018)............................................111
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Miranda Tyre Service (Pty) Ltd v Jin Casings and Tyre Supplies CC (HC-MD-CIV-ACT-
CON-2017/03179) [2018] NAHCMD 247 (10 August 2018)..................................................112
Muhura NO v Lewcor CC (I 3093/2011) [2018] NAHCMD 375 (23 November 2018)........113
Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services CC & Mr B Zaaruka
t/a Benz Building Supplies (I 857/2014) [2018] NAHCMD 50 (08 March 2018)..................113
Mungendje v Kavari (HC-MD-CIV-MOT-GEN-2017/00399) [2018] NAHCMD 153 (22
November 2017)..........................................................................................................................114
Municipal Council of Windhoek v Kolowali (HC-MD-CIV-ACT-CON-2018/00704) [2018]
NAHCMD 206 (5 July 2018).......................................................................................................114
Musoni v Cosmas (HC-NLD-CIV-ACT-DEL-2016/00301) [2018] NAHCNLD 67 (23 July
2018)..............................................................................................................................................115
Mwambwa v The Minister of Safety & Security (I105/2014) [2018] NAHCMD 89 (12 April
2018)..............................................................................................................................................115
Mwoombola vs The Master of the High Court (HC-MD-CIV-MOT-GEN-2017/00299) [2018]
NAHCMD 103 (20 April 2018)....................................................................................................116
Nafuka v Alexander Forbes Insurance Company Namibia Limited (I 2380/2015) [2018]
NAHCMD 298 (24 September 2018).........................................................................................117
Nambinga v Rally for Democracy and Progress (HC-MD-CIV-MOT-GEN-2017/00378)
[2018] NAHCMD 102 (20 April 2018)........................................................................................118
Namibia Airports Company v IBB Military Equipment and Accessory Supplies Close
Corporation (HC-MD-CIV-ACT-OTH-2017-01488) [2018] NAHCMD 271 (31 August 2018)
........................................................................................................................................................119
Namibia Breweries Limited v Timoteus Paulus trading as Gweni Bar (I 2087/2016) [2018]
NAHCMD 39 (26 February 2018)..............................................................................................119
Namibia Marine Phosphate (Proprietary) Limited v Minister of Environment and Tourism
(CA 119/2016) [2018] NAHCMD 122 (11 May 2018)..............................................................119
Nangolo v Imene (HC-MD-CIV-ACT-CON-2016/03515) [2018] NAHCMD 109 (20 April
2018)..............................................................................................................................................121
Ndemuweda v The Government of the Republic of Namibia (Minister of Health and Social
Services) (HC-MD-CIV-MOT-GEN-2017/00336) [2018] NAHCMD 67 (23 March 2018)...121
Ndilula v Beuthin (I 2099/2015) [2018] NAHCMD 73 (28 March 2018)................................123
Negonga v Nampost Limited (HC-MD-CIV-ACT-OTH-2017/01174) [2018] NAHCMD 212
(13 July 2018)...............................................................................................................................123
New Force Logistics CC v The Anti-Corruption Commission (HC-MD-CIV-MOT-GEN-
2018/00018) [2018] NAHCMD 28 (14 February 2018)...........................................................124
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Ngavetene v Minister of Agriculture, Water and Forestry (HC-MD-CIV-MOT-CRT-

2017/00316) [2018] NAHCMD 387 (26 November 2018).......................................................125
Nottingham Incorporated v Rockview Investment Number Seventy (Pty) Ltd and VXK
Investments Thirty (Pty) Ltd (A 16/2016 and A 17/2016) [2018] NAHCMD 278 (28 August
2018)..............................................................................................................................................127
Offshore Development Company v Deloitte & Touche (I 1111/2006) [2018] NAHCMD 299
(25 September 2018)...................................................................................................................128
Olivier v Olivier (I 1784/2016) [2018] NAHCMD 223 (20 July 2018).....................................128
Ombudsman v The Station Commander (HC-MD-CIV-MOT-GEN-2017/00042) [2017]
NAHCMD 366 (08 December 2017)..........................................................................................128
Ongwediva Town Council v Jonas (HC-NLD-CIV-MOT-GEN-2018/00001) [2018]
NAHCNLD 22 (12 March 2018).................................................................................................129
Ongwediva Town Council v Kavili (HC-NLD-CIV-ACT-DEL-2017/00228) [2018] NAHCNLD
35 (16 April 2018).........................................................................................................................130
Ongwediva Town Council v Shithigona (HC-NLD-CIV-MOT-GEN-2017/00017) [2018]
NAHCNLD 78 (06 August 2018)................................................................................................130
Opuwo Town Council v Dolly Investments CC (HC-MD-CIV-ACT-CON-2017/03148) [2018]
NAHCMD 309 (24 September 2018).........................................................................................130
Opuwo Town Council v Dolly Investments CC (HC-MD-CIV-ACT-OTH-2017/03148) [2018]
NAHCMD 389 (23 November 2018)..........................................................................................131
Paulus v Tuhafeni (CA 02/2017) [2018] NAHCNLD 40 (23 April 2018)...............................132
PDS Holdings (BVI) Ltd v Minister of Land Reform (HC-MD-CIV-MOT-GEN-2017/00163)
[2018] NAHCMD 129 (16 May 2018)........................................................................................132
Pennypinchers Timbercity Windhoek v Kohler (I 3045/2015; HC-CIV-ACT-DEL-2016/3653)
NAHCMD 232 (26 July 2018).....................................................................................................133
Prieska Tjapaka N.O. v Tjapaka (I 4079/2014) [2018] NAHCMD 41 (26 February 2018). 134
Rashed v The Inspector-General of the Namibian Police (HC-MD-CIV-MOT-GEN-
2018/00130) [2018] NAHCMD 165 (13 June 2018)................................................................135
Redecker v Tjipueja (A 15/2016) [2018] NAHCMD 264 (31 August 2018)..........................136
Redelinghuys v Coffee-Lind (I 11/2014) [2018] NAHCMD 368 (31 October 2018)............136
Rixi Investment CC v Khomas Civil Construction CC (HC-MD-CIV-MOT-REV-2017/04534)
[2018] NAHCMD 395 (3 December 2018)................................................................................138
Sadok v Eagle Night Watch Security CC (I 2642/2015) [2018] NAHCMD 18 (08 February
2018)..............................................................................................................................................139
Schkade v Gregory N.O (HC-MD-CIV-MOT-GEN-2017/00030) [2018] NAHCMD 235 (9
August 2018)................................................................................................................................139
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Seelenbinder v Fischer (2018/00128) [2018] NAHCMD 135 (21 May 2018).......................140

Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard (A 276/2014) [2018]
NAHCMD 148 (07 June 2018)...................................................................................................141
Shipo v Erastus (HC-NLD-CIV-ACT-OTH-2017/00179) [2018] NAHCNLD 36 (16 April
2018)..............................................................................................................................................141
Shivute v Moses (HC-NLD-CIV-ACT-OTH-2018/00219) [2018] NAHCNLD 140 (11
December 2018)..........................................................................................................................142
Shuudeni vs Minister of Environment and Tourism (HC-MD-CIV-ACT-DEL-2017/01042)
[2018] NAHCMD 107 (20 April 2018)........................................................................................142
Sinco Investments Twenty Six (Pty) Ltd v M & P Investments CC t/a Quality Pharmacy
(Registration number: cc 2009/5335) (I 638/2016) [2018] NAHCMD 15 (5 February 2018)
........................................................................................................................................................143
Sky Dancer CC v Windhoek Flight Training Centre (I 1238/2016) [2018] NAHCMD 138 (14
May 2018).....................................................................................................................................143
Soltec CC v Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 251 (20 August 2018)
........................................................................................................................................................143
Soltec CC v Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 265 (31 August 2018)
........................................................................................................................................................144
Somaeb v Standard Bank (Pty) Ltd (HC-MD-CIV-MOT-GEN-2017/00443) [2018] NAHCMD
406 (14 December 2018)............................................................................................................145
Somaeb v The Chief Justice (HC-MD-CIV-MOT-GEN-2017/00102) [2018] NAHCMD 57 (7
March 2018)..................................................................................................................................146
So‒Oabes v The Minister of Health and Social Services (HC-MD-CIV-ACT-CON-
2016/03412) [2018] NAHCMD 163 (21 May 2018).................................................................146
Southern Sun Africa v Sun Square Hotel (Pty) Ltd (A 66/2016) [2018] NAHCMD 105 (23
April 2018).....................................................................................................................................146
S T v P T (I 5066/2014) [2018] NAHCMD 162 (12 June 2018).............................................147
Standard Bank Namibia v Apisay (HC-MD-CIV-ACT-CON 2017/02741) [2018] NAHCMD
273 (7 September 2018).............................................................................................................148
Standard Bank Namibia Limited v Heita (I 161/2016) [2018] NAHCNLD 137 (04 December
2018)..............................................................................................................................................148
Standard Bank Namibia Limited v Nekwaya (HC-MD-CIV-ACT-CON-2017/01164) [2018]
NAHCMD 172 (15 June 2018)...................................................................................................148
Standard Bank Namibia Limited v Ngashikuao (HC-MD-CIV-ACT-CON-2016/02264) [2018]
NAHCMD 282 (4 September 2018)...........................................................................................149
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Standard Bank of Namibia Ltd v Schameerah Court Number Seven CC (I 3939/2015)

[2018] NAHCMD 378 (27 November 2018)..............................................................................151
Stantoll Properties CC v Johannes (HC-NLD-CIV-MOT-GEN-2018/00005) [2018]
NAHCNLD 23 (7 March 2018)....................................................................................................151
Steyn v Stanley (HC-MD-CIV-ACT-DEL-2017/01216) [2018] NAHCMD 400 (7 December
2018)..............................................................................................................................................151
Stuttafords Stores Namibia (Pty) Ltd v Commissioner of Inland Revenue (HC-MD-CIV-
CON-2017/01798) [2018] NAHCMD 203 (4 July 2018)..........................................................152
Taranah Logistics CC v Super Cool Trading CC (I 2382/2015) [2018] NAHCMD 62 (22
March 2018)..................................................................................................................................155
Tcims Industrial (Namibia) (Pty) LTD v Minister of Finance (HC-MD-CIV-MOT-REV-
2017/00448) [2018] NAHCMD 188 (28 June 2018)................................................................156
Teek v The Minister of Justice (I 3304/2015) [2018] NAHCMD 52 (13 March 2018).........157
Teek v Walters (HC-MD-CIV-ACT-DEL-2016/02863) [2018] NAHCMD 376 (23 November
2018)..............................................................................................................................................157
Teichmann Plant Hire (Pty) Ltd v RCC MCC Joint Venture (I 1216/2015) [2018] NAHCMD
2 (17 January 2018).....................................................................................................................158
Texeira v 4 Fourz Automotiv CC (I 3244/2014) [2018] NAHCMD 233 (6 August 2018)....159
The Board of Incorporators of The African Episcopal Church v Kooper (I 3244/2014) [2018]
NAHCMD 5 (24 January 2018)..................................................................................................159
The Buildhard Services (Pty) Ltd t/a E Hard-Build Centre v Chrechen Muukua (I
1586/2016) [2018] NAHCMD 120 (08 May 2018)...................................................................160
The Central Procurement Board v Nangolo N.O. (HC-MD-CIV-MOT-REV-2017/00441)
[2018] NAHCMD 357 (9 November 2018)................................................................................160
The Director General of the Namibia Central Intelligence Service v Haufiku (HC-MD-CIV-
MOT-GEN-2018/00107) [2018] NAHCMD 174 (18 June 2018)............................................162
The Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-MOT-EXP-
2016/00275) [2018] NAHCMD 36 (16 February 2018)...........................................................163
The Namibian Competition Commission v Puma Energy (Namibia) (Pty) Ltd (HC-MD-CIV-
MOT-EXP-2016/00275) [2018] NAHCMD 356 (8 November 2018)......................................164
Thomas v K & G Bricks CC (I 1883/2015) [2018] NAHCMD 221 (19 July 2018)................164
Thomas v Thomas (I 93/2015) [2018] NAHCNLD 75 (30 July 2018)....................................164
Timotheus v Abed (CA 34/2017) [2018] NAHCMD 130 (17 May 2018)...............................165
Tjirovi v Minister for Land and Resettlement (HC-MD-CIV-MOT-REV-2017/00086) [2018]
NAHCMD 56 (19 March 2017)...................................................................................................165
 10

Tjoklits Investments CC v Aquarius Investments No. 191 CC (I 1569/2013) [2018]

NAHCMD 322 (15 October 2018)..............................................................................................167
Tobias v Hausiku (HC-NLD-CIV-APP-AMC-2018/00002) [2018] NAHCNLD 41 (23 April
2018)..............................................................................................................................................167
Uutoni v Freedom Square Investments Twenty Four CC (HC NLD-CIV-ACT-CON-
2017/00253) [2018] NAHCNLD 51 (11 June 2018).................................................................167
Van Schalkwyk v Dias (I 1048/2011) [2018] NAHCMD 396 (4 December 2018)................168
Van Wyk v Chibueze (I 755/2016) [2018] NAHCMD 305 (26 September 2018)................169
Van Zyl (Snr) v Namibia Affirmative Management and Business (Pty) Ltd (HC-MD-CIV-
MOT-GEN-2018/00337) [2018] NAHCMD 350 (5 November 2018).....................................169
Visser v Auto Tech Truck and Coach CC (HC-MD-CIV-ACT-CON-2017/04585) [2018]
NAHCMD 359 (8 October 2018)................................................................................................170
Voigts v Voigts (I 924/2016) [2018] NAHCMD 55 (16 March 2018)......................................170
W W B v Johannes Aipanda N O (I 402/2014) [2018] NAHCMD 22 (09 February 2018). .171
Worker Freight Services (Pty) Limited v Transwide Freight CC (I 1823/2016) [2018]
NAHCMD 384 (29 November 2018)..........................................................................................172
Zest Investments Seventy-Three CC v Municipal Council of Windhoek (I 166/2016) [2018]
NAHCMD 186 (22 June 2018)...................................................................................................172
Zone Four Electrical Contractors CC v The Kunene Regional Council (HC-MD-CIV-ACT-
CON-2017/02972) [2018] NAHCMD 111 (26 April 2018).......................................................172
 11

ABSOLUTION FROM THE INSTANCE

Absolution from the instance – Whether Farm Sannaspost No 224 is the property
of first defendant or whether it should form part of the estate of the late Stefanus
Tjapaka. Prieska Tjapaka N.O. v Tjapaka (I 4079/2014) [2018] NAHCMD 41 (26
February 2018)

Civil Practice – Absolution from the instance at the close of the plaintiff’s case –
When absolution from the instance is sought at the close of plaintiff’s case, the test to
be applied is not whether the evidence led by the plaintiff establishes what would finally
be required to be established - Court concluded that in the instant case the evidence of
the plaintiff was pool of contradictions and improbabilties in respect of the both the main
and alternative claim and as such her evidence cannot be accepted by this court –
Absolution is granted. Klein v Kaura (I 4315 / 2013) [2017] NAHCMD 1 (15 January
2017); Kejarukua v Veziruapi (I 131/2015) [2018] NAHCMD 161 (07 June 2018),
Bikeur v The Master of the High Court (I 2730-2011) NAHCMD 234 (27 July 2018)

Practice – Absolution – Close of plaintiff’s case – Court applying trite test – Whether
plaintiff has made out a prima facie case upon which a court applying its mind
reasonably could or might find for plaintiff – Court applying its mind reasonably
requires court not to consider the evidence in vacuo but to consider admissible
evidence in relation to the pleadings and requirements of the applicable law.
Principles in Stier and Another v Henke 2012 (1) NR 370 (SC); and Bidoli v Ellistron
t/a Ellistron Truck and Plant 2002 NR 451 (HC) applied. Ashikoto v Prefered
Investment Property Fund (HC-MD-CIV-ACT-DEL-2016/02898) [2018] NAHCMD 127
(16 May 2018); The Buildhard Services (Pty) Ltd t/a E Hard-Build Centre v Chrechen
Muukua (I 1586/2016) [2018] NAHCMD 120 (08 May 2018), Chombo v Minister of
Safety and Security (I 3883/2013) [2018] NAHCMD 37 (20 February 2018)

Civil Procedure – application for absolution from the instance – Rule 100 –
principles governing the application discussed. The Board of Incorporators of The
African Episcopal Church v Kooper (I 3244/2014) [2018] NAHCMD 5 (24 January
2018); Fish Orange Mining Consortium (Pty) Ltd v !Goaseb (I 582/2010) [2018]
NAHCMD 154 (8 June 2018)

Contract ‒ Breach ‒ Claim for profit-share derived from a Joint Venture ‒ The
alleged Joint Venture involving reciprocal obligations ‒ Party claiming payment must
prove that he fulfilled his obligations ‒ Absolution from the instance granted in
favour of the Defendants. Thomas v K & G Bricks CC (I 1883/2015) [2018] NAHCMD
221 (19 July 2018)
 12

ADMINISTRATIVE LAW

Administrative law - Administrative act - Validity of – Allotment of farming unit –

Minister having discretion whether or not to accept recommendation by Land Reform
Commission. Minister failing to appreciate that the recommendation by the
Commission is a jurisdictional fact that must - objectively viewed - exits before he
exercises his discretion - Failure to consider the jurisdictional facts leading to
invalidity of allotment. Tjirovi v Minister for Land and Resettlement (HC-MD-CIV-
MOT-REV-2017/00086) [2018] NAHCMD 56 (19 March 2017)

Administrative law – Administrative act – Dissatisfied with certain provisions of the

Act regulations and notices – Consequence of administrative body bringing an
application for non-compliance with an administrative act pending review proceedings
challenging the constitutionality of the said administrative act – Party bringing the
judicial review entitled to treat the administrative action as void and await further
developments – This approach not be equated with contumacious disregard for the
law. Administrative law – Collateral challenge – Requirements - Right party in
these proceedings – Right remedy is being sought – Whether these are the right
proceedings – Circumstances under which collateral challenge may be raised –
Peculiar circumstances in which the collateral challenge raised in this case
considered. Minister of Finance v Hollard Insurance Company of Namibia Limited
(HC-MD-CIV-MOT-GEN-2018/00227) [2018] NAHCMD 294 (20 September 2018)

Administrative law — Administrative action — Review — Decision taken by

functionary not provided with authority in terms of the enabling Act of parliament —
Court to determine the intention of the Legislature —Functionary to perform duty or
act as imposed by an Act of parliament. Koujo v Minister of Mines and Energy (HC-
MD-CIV-MOT-REV-2017/00411) NAHCMD 260 (17 August 2018)

Administrative law – Administrative action – Applicant aggrieved by decision of

local authority to revoke building permit approved by the first respondent’s office –
First and second respondent of the view decision taken not reviewable on the basis
that permit had lapsed when decision to revoke was made – Court to determine
whether decision is an administrative action or not – Principle in Oudekraal revisited.
Gaweseb v Council of the Municipality of Windhoek (HC-MD-CIV-MOT-GEN-
2017/00423) [2018] NAHCMD 346 (29 October 2018)

Administrative law – failure to file review application within a reasonable time –

the right to be heard (audi alteram partem) applicable considerations – Legislation –
Communal Land Reform Act – erection of fences in communal land considered.
Kaishugu v Minister of Land Reform (HC-MD-CIV-MOT-GEN-2017/00292) [2018]
NAHCMD 329 (18 October 2018)

Civil Practice – Administrative Law – Review of Administrative actions – Setting

aside a decision by the Minister of Agriculture, Water and Forestry, to appoint the
third to eight respondents to the board of directors of Meatco – Declaring such
 13

decision ultra vires the relevant provision of the Meatco Act, 2001 and in violation of
Article 18 of the Namibian Constitution and the common law – Decision by Minister
declared in conflict and ultra vires the provisions of enabling Act and is set aside.
Ngavetene v Minister of Agriculture, Water and Forestry (HC-MD-CIV-MOT-CRT-
2017/00316) [2018] NAHCMD 387 (26 November 2018)

APPEAL

Appeal - Application for leave to appeal to Supreme Court from interlocutory

decision in High Court upholding an exception brought on the ground that amended
particulars of claim were rendered vague and embarrassing through the introduction
of a tacit term in conflict with the express terms of the underlying written agreement,
the court having held that a pleading should not introduce a tacit term inconsistent
with the express terms of a relied upon written agreement – such introduction in the
amended particulars of claim thus rendering the introduced pleading excipiable –
exception accordingly upheld – In this regard the court had further held that the
context in which the relevant clause of the underlying agreement operated clearly
precluded the possible further interpretations advanced in defence to the exception,
which aspect in the view of the court could not be improved upon at any subsequent
trial and through the hearing of evidence. In the determination whether or not there
was a reasonable possibility that the Supreme Court may come to a different
conclusion and as a result of the consideration that that the parties, at the trial, would
very well be able to lead admissible evidence relating to the factual matrix of the case
which 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’ … , that is the reasonable man, having all the background knowledge, which
would reasonably have been available to the parties in the situation they were at the
time of the contract the application for Leave to Appeal was granted. African
Selection Trust SA v Namsov Fishing Enterprises (Pty) Ltd (HC-MD-CIV-ACT-CON-
2016/03860) [2017] NAHCMD 363 (17 November 2017)

Appeal – In terms of Act 7 of 2007 against Minister’s decision – Appellants averring

Minister denied appellants audi when he took the decision – Appellants contending
that they had legitimate expectation that Minister would give them fair opportunity to
present oral evidence through themselves and/or their witnesses in an oral hearing
on top of their written submission – Respondents contending contrariwise that Act 7
of 2007 does not provide for oral hearing – Court finding that Form 3, which was
promulgated under s 50 of Act 7 of 2007 forms part of the appeal procedure – Court
finding further that the Act makes representation through the vehicle of Form 3 that
parties who wish to appeal to the Minister shall be given fair opportunity to present,
by themselves or witnesses, in an oral hearing oral evidence before he decided –
Court concluded that it becomes crystal clear and incontrovertible that legitimate
expectation arose in the present case, because there was a statutory ‘representation’
made by Form 3 – Court held that the absence of a hearing in a case where it should
have been given must be fatal – Consequently, the validity of the Minister’s decision
 14

was vitiated and so could not be allowed to stand. Auas Valley Residents Association
v Minister of Environment & Tourism (HC-MD-CIV-APP-ATL-2018/00003) [2018]
NAHCMD 267 (4 September 2018)

Appeal to Supreme Court – Civil procedure – effect thereof on liquidation

proceedings – amendment of notice of motion – approach thereto – whether appeal
has an effect of stay of proceedings. Metropolitan Bank of Zimbabwe (Pty) Ltd v
Bruni (HC-MD-CIV-MOT-GEN -2018/00062 [2018] NAHCMD 97 (17 April 2018)

Civil Law and Practice – Civil Appeal against Magistrate Court’s decision –
Rescission of a default judgment void ab origine, section 36 of the Magistrates Court
Act (Act No. 32 of 1944) (‘the Act’) and Rule 49(1) and 49(11) of the Magistrate’s
Court. Timotheus v Abed (CA 34/2017) [2018] NAHCMD 130 (17 May 2018)

Statutory Appeal - Section 51(1) of the Environmental Management Act, 7 of 2007 -

on points of law only - Meaning - Whether grounds of appeal are based on points of
law. Namibia Marine Phosphate (Proprietary) Limited v Minister of Environment and
Tourism (CA 119/2016) [2018] NAHCMD 122 (11 May 2018)

APPLICATIONS

Applications and motions – Affidavits – Number of sets of affidavits – Sequence to

be followed – Affidavit tendered late and out of time – What party has to show to have
such affidavit admitted. The Namibian Competition Commission v Puma Energy (Pty)
Ltd (HC-MD-CIV-MOT-EXP-2016/00275) [2018] NAHCMD 36 (16 February 2018)

Applications – Jurisdiction of the High Court – Whether the High Court has the
power to direct the Supreme Court to exercise its review jurisdiction in terms of
section 16 of the Supreme Court Act, 1990 – Complying with the provisions of section
12 of the Supreme Court Act, 1990 – Section 12 prohibits the issuing of a summons
or subpoena against the Chief Justice or any judge of the Supreme Court in any civil
action except with the consent of the Chief Justice or the next senior judge –
Applicant failed to obtain such consent – Application struck from the roll. Somaeb v
The Chief Justice (HC-MD-CIV-MOT-GEN-2017/00102) [2018] NAHCMD 57 (7
March 2018)

Application for leave to intervene in the proceedings – Applicant is required to

satisfy the court that he or she has a direct and substantial interest in the subject
matter of the litigation which could be prejudiced by the judgment or order of the
court; that he or she has a prima facie case or defence. Fernandes v Baleia Do Mar
Industrial Safety Supplies CC (HC-MD-CIV-MOT-GEN-2017/00204) [2018] NAHCMD
337 (17 October 2018)

Applications and Motions – Locus standi – Members of a political party brought an

application on behalf of other party’s members whom the applicants claimed had
 15

been ‘disenfranchised’ during the political party’s elections process – Applicants

contending that they have the constitutional rights in terms of Articles 17 and 21 of
the Constitution to bring the application – Articles 17 and 21 do not create
constitutional rights for any member of a political party to approach the court on
behalf of his or her fellow political party members – Locus standi to be determined in
terms of the common law – Actio popularis-class action, not allowed by the common
law. Mungendje v Kavari (HC-MD-CIV-MOT-GEN-2017/00399) [2018] NAHCMD 153
(22 November 2017)

Applications and motions – The court has a discretion to refer a mater on a

notice of motion for oral evidence to deal with a specific issue – the court will do
so where the balance of the scale of probabilities tips in favour of an applicant.
Equally so, the court will be more inclined to make that order where the scale of
probabilities are evenly balanced. The more the scales are depressed against the
applicant the more likely the court will exercise its discretion in favour of applicant.
Asino v Elifas (HC-NLD-CIV-MOT-REV-2017/00011) [2018] NAHCNLD 82 (9 August
2018)

Applications and motions – Nonjoinder or misjoinder – No indication in judicial

case management orders that any such matter was in issue – Furthermore, second
defendant failed to comply with rule 32(9) and (10) of the rules – Consequently,
application on nonjoinder or misjoinder struck out. Luckhoff v Nico’s General
Investment cc (HC-MD-CIV-ACT-CON-2017/1666) [2018] NAHCMD 342 (30 October
2018)

Application for rescission of default judgment ‒ Failure to file a plea ‒ No

acceptable or reasonable explanation furnished for failure to file a plea ‒ Prospects of
success in the applicant’s defence not considered ‒ Application dismissed. Visser v
Auto Tech Truck and Coach CC (HC-MD-CIV-ACT-CON-2017/04585) [2018]
NAHCMD 359 (8 October 2018)

Application to re-open case — applicable principles — the conduct of civil

proceedings — appropriate time to raise objections — the prejudice to parties —
objection should be brought timeously. Ipinge v Lukas (I 1833/2011) [2018] NAHCMD
106 (23 April 2018)

Civil Procedure – application for reinstatement of an application for rescission

– requirements to be met by applicant therefor – Rules of Court – Rule 32(9) and (10)
– whether non-compliance therewith is fatal to the application for reinstatement. Denk
v The Chairperson of the Disciplinary Committee for Legal Practitioners (A 199/2012)
[2018] NAHCMD 405 (14 December 2018)

CIVIL PROCEDURE – Application for spoliation – requirements to be met by

applicant therefor – the mandament van spolie – not available to protect access but
possession - RULES OF COURT – Rule 32 (9) and (10) discussed and the
peremptory nature thereof – applicant’s attempt to comply therewith sufficient to
 16

condone non-compliance in the circumstances – Rule 73 (3) – need for applicant in

urgent applications to afford the respondent reasonable time limits within which to file
answering affidavits. Seelenbinder v Fischer (2018/00128) [2018] NAHCMD 135 (21
May 2018)

Practice - Applications and motions - Application for condonation for non-

compliance with court order - Courts will not grant condonation where flagrant breach
of court order - Condonation may be refused notwithstanding good prospects of
success – Reasons provided however justifiable and reasonable to grant
condonation. Namibia Airports Company v IBB Military Equipment and Accessory
Supplies Close Corporation (HC-MD-CIV-ACT-OTH-2017-01488) [2018] NAHCMD
271 (31 August 2018)

Practice — Applications and motions — Declaratory order — Jurisdictional facts

— Interested person with vested right present or future entitled to seek declaratory
order – Court accepting in favour of applicant that applicant satisfied this jurisdictional
fact – Court however refusing to exercise its discretion in favour of applicant to grant
the sought declaratory relief inter alia also on the ground of the substantial and
unreasonable delay. Kandando v Medical and Dental Council of Namibia (HC-MD-
CIV-MOT-REV-2017/00353) [2018] NAHCMD 287 (3 May 2018)

Practice – Application and motions – Passing-off – Goodwill not existing only at

place where business is located. Southern Sun Africa v Sun Square Hotel (Pty) Ltd
(A 66/2016) [2018] NAHCMD 105 (23 April 2018)

CIVIL PRACTICE AND PROCEDURE

Civil Practice – Eviction order – Plaintiff suing defendant to be evicted from his
house – Defendant claiming conflict of interest by plaintiff as defence. Hochobeb v
Dunn (I 1772/2013) [2017] NAHCMD 150 (7 June 2018)

Civil Practice – Insurance company suing third party for compensation –

Insurance company paid insured in full – Special plea by third party against claim by
Insurance company – Special plea dismissed – defence of volenti non fit injuria also
rejected by court. Nafuka v Alexander Forbes Insurance Company Namibia Limited (I
2380/2015) [2018] NAHCMD 298 (24 September 2018)

Civil Practice – Judgment and orders – Plaintiff claiming from the defendant –
payment of N$100 000-00 arising from an undertaking the defendant signed – Court
held that in law an agreement is binding on the parties to it alone – That third parties
not parties to such agreement acquire no personal rights arising from such
agreement – therefore, no obligation on such parties to perform in terms of such
agreement – Judgment granted in favour of plaintiff. Buildhard Services (Pty) Ltd t/a
E Hard-Build Centre v Muukua (I 1586/2016) [2018] NAHCMD 335 (23 October
2018)
 17

Civil Practice – Judgment and Orders – Rescission of Order – Application

brought in terms of rule 103 of the Rules of this Court – In an application for
rescission of a judgment or order brought in terms of rule 103, an applicant is not
required to show good cause, or the prospects of success. Fernandes v Baleia Do
Mar Industrial Safety Supplies CC (HC-MD-CIV-MOT-GEN-2017/00204) [2018]
NAHCMD 337 (17 October 2018)

Civil Practice – Oral agreement enforcement – Parties and matter referred to

mediation during case management proceedings – Mediator conducting mediation
similar to arbitration proceedings – Process not in accordance with the Rules of Court
– Court held – Mediator defied Rules of court and failed to state in the report whether
the mediation was successful or unsuccessful. Further, court refused to declare that
the oral agreement was concluded by the parties – furthermore, the court refused to
order the power of attorney to be stamped with a revenue stamp to validate same –
Claim dismissed after special plea was upheld. Worker Freight Services (Pty) Limited
v Transwide Freight CC (I 1823/2016) [2018] NAHCMD 384 (29 November 2018)

Civil Practice — Actions against Namibian Police and Correctional Services —

Requirements to be met in terms of s 39(1) of Police Act 19 of 1990 and s 133 of the
Correctional Services Act 9 of 2012 — Section 39(1) of Police Act 19 of 1990
providing for period of 12 months within which action to be instituted - Section also
providing in proviso for waiver by Minister if period of 12 months has lapsed. Dumeni
vs Minister of Safety and Security (HC-MD-CIV-ACT-OTH-2017/01588) [2018]
NAHCMD 137 (22 May 2018)

Civil Practice – Failure to comply with judgment order dated 8 September 2017 and
non-appearance by the first defendant – First defendant’s defence and counterclaim
struck out – Judgment granted in favour of the plaintiff with costs. Indongo v
Nangombe (I 2580/2011)) [2018] NAHCMD 143 (30 May 2018)

Practice – Trial – Absolution from the instance at close of plaintiff's case – Test to
be applied – Test was whether evidence could or might lead a Court, applying its mind
reasonably, to find for plaintiff – Evidence to be considered in relation to pleadings and
law applicable to particular case. Redelinghuys v Coffee-Lind (I 11/2014) [2018]
NAHCMD 368 (31 October 2018)

Practice – Consolidation of actions application – Onus on applicant to satisfy

court that consolidation of actions favoured by balance of convenience – Principles
reiterated. Karslruh Number One Farming Close Corporation v De wet Esterhuizen
(HC-MD-CIV-ACT-DEL-2016/02394) [2018] NAHCMD 388 (26 November 2018)

Practice — Expert evidence — Question on court allowing expert evidence of a

South African clinical psychologist — Evidence objected to on grounds that expert is
not registered to practice in Namibia as contemplated in the Social Work and
 18

Psychology Act, 6 of 2004. C S v C S (HC-MD-CIV-ACT-MAT-2017/00179) [2018]

NAHCMD 236 (9 August 2018)

Practice ‒ Judgment and orders ‒ Default judgment ‒ Cause of action based on a

money-lending claim ‒ Particulars of claim alleging that Plaintiff is holder of a
mortgage bond executed in Plaintiff’s favour in respect of monies lent and advanced
by Plaintiff to Defendant ‒ No indication whether this loan agreement was in writing or
oral ‒ No loan agreement attached to the particulars of claim but Plaintiff attached a
registered mortgage bond ‒ Court holding that in a claim based on money-lending,
the loan agreement is the basis for the claim, not the mortgage bond ‒ Mortgage
bond is proof that Plaintiff’s claim has been secured by way of mortgage bond over
immovable property of Defendant. Standard Bank Namibia v Apisay (HC-MD-CIV-
ACT-CON 2017/02741) [2018] NAHCMD 273 (7 September 2018)

Practice – Judgments and orders – Application for stay of execution of

judgment pending appeal to Supreme Court – Court having jurisdiction to
determine matter in terms of its inherent jurisdiction where dictates of real and
substantial justice required it. Luxury Investments One Hundred and Ninety Two (Pty)
v Koujo (HC-MD-CIV-MOT-REV-2017/00411) [2018] NAHCMD 390 (28 November
2018)

Practice — Judgments and orders - Application for Re-instatement of a

Summary judgment application, which had been struck due to the applicant’s non-
compliance with Rules 32(9) and (10) — subsequent Application for Re-instatement
of the struck summary judgment application an interlocutory application — The
question arose whether or not the applicant in this instance was absolved from
complying with the requirements set by Rules 32 (9) and (10) by virtue of the fact that
the case managing judge had directed the applicant to bring an application for re-
instatement should it wish to pursue the struck summary judgment application –The
court held that the sub-rule required of the party wishing to bring any interlocutory
proceedings to first comply with sub-rule (9) and that the rule thus again required of
the plaintiff in this instance - before it’s launching – that is before the delivery of the
application for re-instatement as per the judge’s direction of 6 October 2017, that the
plaintiff had to engage the other party in order to seek an amicable resolution thereof
before it would have been entitled to deliver same for the adjudication of the court.
The Court held further that the regulation of a procedure - or a facet thereof - by a
court, would generally, never absolve the parties from complying with the rules of
court, in so far as such rules may still have a bearing on such interlocutory procedure
even if such proceedings had been regulated to some extent, as was the case in this
instance and that the direction, which the case managing judge had given, would
always have to be seen and to be the interpreted with regard to- and within the
context of the rules of court. Court accordingly holding further that also the applicant
in the directed re-instatement application, was also always obliged, to again, comply
with the requirements set by Rules 32(9) and (10) before its delivery. As the
compliance with High Court Rules 32(9) and (10) was peremptory for all interlocutory
applications - application for re-instatement accordingly also struck due to the
 19

applicant’s non-compliance with Rules 32 (9) and (10). Standard Bank of Namibia
Limited v Nekwaya (HC-MD-CIV-ACT-CON-2017/01164) [2017] NAHCMD 365 (01
November 2017)

Practice - Judgments and orders - Rescission of judgment - Requirements for a

rescission application - Reasonable explanation for default, that application is bona
fide and the applicant has a bona fide defence on the merits - Applicant for rescission
required to make out prima facie defence and need not fully set out merits – It is
sufficient for applicant to show that probabilities lie in his or its favour. Rixi Investment
CC v Khomas Civil Construction CC (HC-MD-CIV-MOT-REV-2017/04534) [2018]
NAHCMD 395 (3 December 2018)

Practice – Judgment and Orders – Objection to content of some paragraphs in the

witness statement of second defendant – Objection against para 21 dismissed
whereas objection against paras 26, 27, 30, 35, 37 and 39 with annexures sustained
– Content thereof invalid and to be disregarded. Multi Engineering Contractors (Pty)
Ltd v De Vries Cooling Services CC & Mr B Zaaruka t/a Benz Building Supplies (I
857/2014) [2018] NAHCMD 50 (08 March 2018)

Practice — Judgments and orders — Stated case in terms of Rule 63 of Rules

of Court — Liquidated claim — Deed of suretyship required to secure loan —
Suretyship cession of life cover and cession agreement wherein first defendant
ceased monies entitled to it from the Ministry of Safety and Security to the plaintiff
formed part of security set — Plaintiff failed to execute on the cession in respect of
the Ministry of Safety and Security — The questions of law to be decided in stated
case — Did plaintiff’s breach its duty towards third defendant, as surety, such that he
is released of his obligations under Suretyship — Did conduct of plaintiff amount to a
prejudicial act which releases third defendant from liability. Development Bank of
Namibia v Keystone Technology Solution (I 3678-2013) [2018] NAHCMD 295 (19
September 2018)

Practice — Judicial case management — Sanctions – Rule 56 of the High Court

rules – Relief from sanctions to be imposed for failure to comply with a rule, practice
direction or court order – Defaulting party afforded the opportunity to make
presentations on why sanctions should not be imposed – Defaulting party to show
good cause. Voigts v Voigts (I 924/2016) [2018] NAHCMD 55 (16 March 2018)

Practice – Pleadings - Special plea – Whether necessary to deliver plea on the

merits where special plea is raised – Court to determine whether special plea raised
can be heard separately from the merits. Maritz v Louw N.O Cited In His Capacity
As The Executor of the Estate of Late Johann Wilhelm De Beer under Master's
Reference Number: 2021/2012 Whk (HC-MD-CIV-ACT-OTH-2017/04117) [2018]
NAHCMD 261 (28 August 2018)

Practice – Pleadings defective - A party who when advised to rectify an anomaly in

its papers but ignores to do so timeously but only to come two days before the
 20

hearing of the matter cannot escape being saddled with punitive costs. Matter is
postponed with applicant paying costs at a punitive scale. Ongwediva Town Council
v Shithigona (HC-NLD-CIV-MOT-GEN-2017/00017) [2018] NAHCNLD 78 (06 August
2018)

Practice: Trial – Special case in terms of rule 63 of the rules of court – Separated
issues in special case determined after plaintiff’s evidence – Determination of
separated issues resulting in conclusion of litigation – Court finding that moneys lost
in investment made through defendant belonged to third entities – Court found
therefore that the loss was not plaintiff’s – Plaintiff’s patrimony was not diminished –
Court held that no person can lose what he or she himself had not possessed –
Principle of nemo potest perdare quod ipse non possederat applies – Plaintiff could
not claim what it itself had not lost – Consequently, separated issues determined in
favour of defendant – Accordingly , plaintiff’s claim dismissed with costs. Offshore
Development Company v Deloitte & Touche (I 1111/2006) [2018] NAHCMD 299 (25
September 2018)

Practice — Late amendments to pleadings. Namibian approach. Caterplus

Namibia Pty Ltd t/a Blue Marine Interfish v Hallie Investment 142 CC t/a Wimpy
Maerua (I 3086/2012) [2018] NAHCMD 320 (12 October 2018)

Practice – Leave to appeal – On the facts – Arbitration clause – Appellant of the

view that the court misinterpreted the agreement as entered into between the parties
– Court to determine the intention of the parties in respect of the inclusion of the
arbitration clause in the agreement entered into between the parties. Opuwo Town
Council v Dolly Investments CC (HC-MD-CIV-ACT-OTH-2017/03148) [2018]
NAHCMD 389 (23 November 2018)

Practice — Party — Locus standi — Citizens in constitutional State entitled to come

to Court where there is legal uncertainty. Kapika v Minister of Urban and Rural
Development (HC-MD-CIV-MOT-REV-2016/00331) [2018] NAHCMD 51 (9 March
2018)

Practice —Locus standi — point in limine in law that the applicant does not have
locus standi to bring this application as he was not given authority in terms of the
Constitution of the applicant. Point in limine is dismissed with costs Purros
Conservancy Committee v Uaraavi (HC-MD-CIV-MOT-GEN-2018/00204) [2018]
NAHCMD 259 (18 July 2018)

Practice - Rule 59 - Security for costs - Liability to pay security for costs -
Determination of quantum - whether it is proper for it to be done by a judge - Delay in
filing a demand for security for costs. Ben-Tovim v Van Zyl N.O (HC-MD-CIV-MOT-
GEN-2016/00315) [2018] NAHCMD 95 (13 April 2018); Standard Bank Namibia v
Atlantic Meat Market (I 2175/2004, I 1758/2007) [2018] NAMCMD 61 (22 March
2018)
 21

Practice — Service — Purpose of — Notice of nature and contents of process —

Irregular service — Effect depending on nature of proceedings and extent of
irregularity. Hiskia v Body Corporate of Urban Space (HC-MD-CIV-MOT-GEN
2017/00143) [2018] NAHCMD 279 (31 August 2018)

Civil Procedure – Case Management – Pre-Trial Report – Rule 26 – variation of a

Pre-Trial Order – application for variation brought on day of trial. Lee’s Investment
(Pty) Ltd v Shikongo (HC-MD-CIV-ACT-CON-2016/03394) [2018] NAHCMD 321 (12
October 2018)

Civil Procedure – Condonation and upliftment of bar – Party to give satisfactory

explanation for non-compliance of court order – Lack of explanation or unsatisfactory
explanation will lead to refusal of condonation irrespective of prospect of success –
Limit beyond which litigant can escape practitioner’s lack of diligence and
insufficiency of explanation. Akwenye v Amadhila (HC-MD-CIV-ACT-CON-
2017/02946) [2018] NAHCMD 114 (27 April 2018)

Civil Procedure - Contempt of court - the standard of proof to be employed for

finding a person guilty of contempt of court is the same as in criminal proceedings -
whether the court is satisfied beyond reasonable doubt that the 1 st respondent was
wilful and mala fide in her disobedience - any doubt, however small, should enure in
her favour. Jurisdiction – Peregrinus – where peregrinus has acted through his or
her lawyers – liability is through them. Höfelein v Bruni NO (HC-MD-CIV-MOT-GEN-
2017/00079) [2018] NAHCMD 328 (18 October 2018)

Civil procedure – contempt of court – requirements to be satisfied by applicant

therefor. Joinder – whether failure to join a necessary party should result in the
application being dismissed or merely stayed or postponed – Service of proceedings
– whether it is necessary in contempt proceedings to effect personal service on the
respondent. Endunde v The Chairperson of the Okavango East Communal Land
Board (HC-MD-CIV-MOT-GEN-2016/00384) [2018] NAHCMD 113 (27 April 2018)

Civil Procedure ‒ Interlocutory application ‒ Application for condonation ‒ Non-

compliance with court orders ‒ Unacceptable explanation for non-compliance ‒
Application for condonation dismissed with costs. Autovermietung Savanna CC v
Nangolo (HC-MD-CIV-ACT-DEL- 2017/03952) [2018] NAHCMD 351 (16 October
2018)

Civil procedure – joinder of parties – the test to be applied. Kaishugu v Minister of

Land Reform (HC-MD-CIV-MOT-GEN-2017/00292) [2018] NAHCMD 329 (18
October 2018)

Civil procedure – application for cancellation of a transfer of immovable property –

misjoinder - undue delay in launching proceedings – res judicata. Somaeb v
 22

Standard Bank (Pty) Ltd (HC-MD-CIV-MOT-GEN-2017/00443) [2018] NAHCMD 406

(14 December 2018)

Civil Procedure - Notice of motion to strike out – certain paragraphs of the

respondents’ answering affidavit on the bases that same were scandalous, vexatious
or irrelevant – Interlocutory application – The parties followed the peremptory
provisions of rule 32 (9) and (10). Minister of Finance v Hollard Insurance Company
of Namibia Limited (HC-MD-CIV-MOT-GEN-2018/00227) [2018] NAHCMD 294 (20
September 2018)

Court - Jurisdiction - Exclusion of jurisdiction - Domestic remedies - Nothing in

section 41 of the Agricultural (Commercial) Land Reform Act, 1995 suggesting that
court's jurisdiction deferred until domestic remedies exhausted – applicant not
compelled to exhaust domestic remedies before instituting review proceedings.
Tjirovi v Minister for Land and Resettlement (HC-MD-CIV-MOT-REV-2017/00086)
[2018] NAHCMD 56 (19 March 2017)

Court — Jurisdiction — High Court — Income tax — Establishment of Special

Income Tax Court not entirely ousting jurisdiction of ordinary courts — Ordinary
courts retained review jurisdiction and jurisdiction for granting interim declaratory
orders and determining legal issues in respect of taxation. Stuttafords Stores
Namibia (Pty) Ltd v Commissioner of Inland Revenue (HC-MD-CIV-CON-
2017/01798) [2018] NAHCMD 203 (4 July 2018)

Rules of Court – Rule 24 – the pre-trial order and whether a party may introduce
issues not identified for determination in the pre-trial order at trial. The Board of
Incorporators of The African Episcopal Church v Kooper (I 3244/2014) [2018]
NAHCMD 5 (24 January 2018)

Civil Practice – Compliance with Rule 32 (9) and (10) before launching an
application – Role of 32 (9) and (10) reiterated. S T v P T (I 5066/2014) [2018]
NAHCMD 162 (12 June 2018); Standard Bank Namibia Limited v Neumbo (HC-MD-
CIV-ACT-CON- 2016/03103) [2018] NAHCMD 224 (19 July 2018)

Practice - Applications and motions – Application to compel discovery – Determined

to be interlocutory in nature and as a result, Rule 32 (9) and (10) must be complied
with – Object of Rule 32 (9) and (10) for parties to genuinely engage one another in
trying to resolve the matter – It is therefore not for the parties to choose whether it will
comply with these rules or not as the compliance is peremptory and the application
stands to be dismissed if it is clear that a party had ulterior motives in complying with
the rule. Namibia Airports Company v IBB Military Equipment and Accessory
Supplies Close Corporation (HC-MD-CIV-ACT-OTH-2017-01488) [2018] NAHCMD
271 (31 August 2018)
 23

Civil Procedure – Rules of Court – Rule 32(11) – Rule 100 – application for
absolution from the instance – whether application for absolution from the instance is
an interlocutory application within the meaning of Rule 32 and particularly whether
the provisions of Rule 32 (11) in relation costs apply thereto. Soltec CC v
Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 265 (31 August 2018)

RULES OF COURT – Rule 37 – the import of a pre-trial order and its impact on live
matters for determination by the court – impermissibility of including new issues not
recorded in the pre-trial order, particularly in the absence of an application for the
inclusion of the new matters, accompanied by a sound explanation for the order
sought – Rule 130 – the need for legal practitioners to follow the provisions of this
rule and not to merely file certificates which amount to lip service to the rule in
question. CIVIL PROCEDURE – the approach of the court where there are mutually
destructive versions placed before the court – how the court should reach
conclusions on reliability, creditworthiness and where the probabilities lie - the
impermissibility of allowing the defendant the right to comment on the plaintiff’s
witness’ statement after the latter has been excused and can no longer respond to
the said comments – prejudice to the plaintiff – the need for the defendant’s case to
be fully put to the plaintiff in cross-examination reinforced – the function and proper
approach to heads of argument. Conrad v Dohrmann (I2073/2015) [2018] NAHCMD
121 (14 May 2018)

Failure to comply with requirements of Rule 45(7) ‒ Plaintiff obliged to furnish

particulars mentioned in Rule 45(7) whenever a contract forms part of the cause of
action ‒ Where written agreement is basis of the cause of action a copy of the written
agreement must be attached to the combined summons. Application for default
judgment refused. Standard Bank Namibia v Apisay (HC-MD-CIV-ACT-CON
2017/02741) [2018] NAHCMD 273 (7 September 2018)

Civil procedure - Applications – Rule 61 – Irregular proceedings – what constitutes

irregular proceedings - requirements to be satisfied by applicant therefor. Christian v
Namibia Financial Institutions Supervisory Authority (A 244/2010) [2018] NAHCMD
288 (14 September 2018)
Procedure – Notice in terms of rule 64 containing unconditional settlement offer –
Such party to be cautious utilising rule 64 and must ensure strict compliance to the
provisions of the rule cited in settling under rule 64. Akwenye v Amadhila (HC-MD-
CIV-ACT-CON-2017/02946) [2018] NAHCMD 252 (21 August 2018)

Civil Practice – Rule 98 of the High Court Rules – Provision made for the
alternative to an application for absolution from the instance – Party to lead evidence
in order to satisfy the Court that it is entitled to a judgment on the issues raised by
those claims. Kwizi vs Shinana (HC-MD-CIV-ACT-DEL-2016/03047) [2018]
NAHCMD 108 (23 April 2018)
 24

Practice - In a rule 108 application the execution creditor must apply for the
declaration that an immovable property be declared specially executable. Procedure
to follow – issuance of summons, if not defended, application for a default judgment
must be made - issuance of a writ – if there are no attachable movable assets -
Deputy Sherriff – issues a nulla bona return of service - execution creditor gives a 30
day notice to execution debtor to show cause why the immovable property should not
be declared specially executable. Defence – execution debtor must submit a reason
that is legally acceptable in order to avoid the property being declared specially
executable. Standard Bank Namibia Limited v Heita (I 161/2016) [2018] NAHCNLD
137 (04 December 2018)

Sanctions – Application for sanctions by defendants. Application for condonation by

plaintiff. Sinco Investments Twenty Six (Pty) Ltd v M & P Investments CC t/a Quality
Pharmacy (Registration number: cc 2009/5335) (I 638/2016) [2018] NAHCMD 15 (5
February 2018); Nzianga v Carlos (I 1077/2014) [2017] NAHCMD 364 (17 August
2017)

Absolution from the instance — Ruling in terms of PD 61 — Kejarukua v

Veziruapi (I 131/2015) [2018] NAHCMD 161 (07 June 2018), Nkandi v Namibia
Airports Company Ltd (I 3622/2014) [2018] NAHCMD 274 (31 August 2018),
Windhoek Renovation CC v Southern Africa Civils CC (HC-MD-CIV-ACT-CON-
2017/00121) [2018] NAHCMD 280 (6 September 2018)

Application for parole — Eichab v Commissioner General Namibian Correctional

Service: Raphael Hamunyela (HC-MD-CIV-MOT-GEN-2017/00358) [2018] NAHCMD
401 (6 December 2018), Tjikunga v Minister of Safety and Security (HC-MD-CIV-
MOT-GEN-2017/00229) [2018] NAHCMD 402 (6 December 2018)

Condonation — Ruling in terms of PD 61 — Eco-Nam Building and Civils CC v

Okuvakuatjivi Investments CC (HC-MD-CIV-MOT-GEN-2017/00074) [2018]
NAHCMD 100 (20 April 2018); Ipinge vs Titus (HC-MD-CIV-ACT-DEL-2017/00946)
[2018] NAHCMD 91 (23 February 2018); Rouco Auto Manufacturers (Pty) Ltd v Erf
Two Four Walvis Bay CC (I 2112/2013) [2018] NAHCMD 69 (8 March 2018); Voigts v
Voigts (I 924/2016) [2018] NAHCMD 46 (28 February 2018); Andrico Investments
Number Sixty Five CC v Welwitschia Family Clinic CC (HC-MD-CIV-ACT-CON-
2017/00734) [2018] NAHCMD 110 (26 April 2018), Mofuka v Bank Windhoek Limited
(A 180/2016) [2018] NAHCMD 308 (24 September 2018)

Costs — Ruling in terms of PD 61 — Principle to awarding of costs where the party

initiating proceedings withdraws its claim – Court to determine whether the general
rule that costs should follow the result should apply in matrimonial proceedings where
parties settle – No order as to costs should be made in such instances.
 25

Damages — Ruling in terms of PD 61 — Kapuka v Haufiku (HC-MD-CIV-ACT-

CON-2017/04086) [2018] NAHCMD 178 (14 June 2018)

Exception — Ruling in terms of PD 61 — Edcon Construction CC v Red

Investment Holding (PTY) Ltd (HC-MD-CIV-ACT-OTH-2017/03060 [2018] NAHCMD
93 (03 April 2018), Garoes v Beukes (HC-MD-CIV-ACT-OTH-2018/00470) [2018]
NAHCMD 324 (15 October 2018)

Incorrect citing of parties — Ruling in terms of PD 61 — Practice and Procedure

– Incorrect citation of a party to the proceedings – Whether an incorrect citation of a
party renders a claimant not to have locus standi in a matter – Incorrect citation not
material and can be rectified by a mere amendment. Small and Medium Enterprises
Limited represented by Bruni & McLaren v Colgar Investment CC (HC-MD-CIV-ACT-
CON-2018/01116) [2018] NAHCMD 319 (11 October 2018)

Leave to amend — Ruling in terms of PD 61 — Andjamba vs Andjamba (HC-MD-

CIV-ACT-MAT-2017/00615) [2018] NAHCMD 90 (26 February 2018); Negonga v
Nampost Limited (HC-MD-CIV-ACT-OTH-2017/01174) [2018] NAHCMD 60 (19
March 2018); J & M Casino Consulting CC v United Africa Group (Pty) Ltd (HC-MD-
CIV-CON-2017/01344) [2018] NAHCMD 176 (18 June 2018)

Leave to appeal — Ruling in terms of PD 61 — Bruni N.O. v Metropolitan Bank of

Zimbabwe Ltd (HC-MD-CIV-MOT-GEN-2018/00062) [2018] NAHCMD 377 (23
November 2018), Minister Of Finance v Hollard Insurance Company Of Namibia
Limited (HC-MD-CIV-MOT-GEN-2018/00227) [2018] NAHCMD 391 (29 November
2018)

Leave to call another witness— Ruling in terms of PD 61 — First National Bank

of Namibia Limited v Du Preez (HC-CIV-ACT-CON-2017/01020) [2018] NAHCMD
383 (28 November 2018)

Leave to join parties— Ruling in terms of PD 61 — Shituula v Swapo Party (HC-

MD-CIV-MOT-GEN-2018/00413) [2018] NAHCMD 403 (6 December 2018)

Lien — Ruling in terms of PD 61 — Cosmo Construction & Civils cc v Spieker (HC-

MD-CIV-MOT-GEN-2018/00212) [2018] NAHCMD 248 (17 August 2018)

Lis pendens — Ruling in terms of PD 61 — Olivier v The Deputy Sheriff for the
District of Windhoek (HC-MD-CIV-MOT-GEN-2018/00352) [2018] NAHCMD 360 (8
November 2018)

Partnership — Ruling in terms of PD 61 — Marriage out of community of property

— Tacit universal partnership agreement — Whether antenuptial contract precluding
conclusion of such agreement — Evidence required for manifestation of conduct
consistent with universal partnership — Court must be satisfied that it was more
 26

probable than not that agreement came into existence. MB v DB (HC-MD-CIV-ACT-

MAT-2017/03195) [2018] NAHCMD 266 (31 August 2018)

Postponements — Ruling in terms of PD 61 — Karslruh Number One Farming

Close Corporation vs De wet Esterhuizen (HC-MD-CIV-ACT-DEL-2016/02394)
[2018] NAHCMD 139 (23 May 2018)

Preliminary issues — Ruling in terms of PD 61 — Enviro-fill Namibia (Pty) Ltd v

Municipality of Tsumeb (I 6045/2014) [2018] NAHCMD 373 (12 November 2018)

Recission of order — Ruling in terms of PD 61 — Strauss v Strauss (born Van

Wyk) (HC-MD-CIV-ACT-CON-2016/03096) [2018] NAHCMD 159 (07 June 2018).

Stay of proceedings — Ruling in terms of PD 61 — Government of the Republic

of Namibia (Minister of Land Reform) v Kamunguma (HC-MD-CIV-ACT-OTH-2017-
00069) [2018] NAHCMD 237 (8 August 2018)

Summary judgment — Ruling in terms of PD 61 — Ultimate Safaris (Pty) Ltd v

Gariseb (HC-MD-CIV-ACT-DEL- 2018/00941) [2018] NAHCMD 281 (07 September
2018), Small and Medium Enterprises Limited represented by Bruni & McLaren v
Colgar Investment CC (HC-MD-CIV-ACT-CON-2018/01116) [2018] NAHCMD 349 (5
November 2018), Wum Properties (Pty) Ltd v Obuzu Investment CC t/a Liquid
Events Namibia CC (HC-MD-CIV-ACT-OTH-2018/01411) [2018] NAHCMD 353 (2
November 2018), First National Bank of Namibia Ltd v Leap Agribusiness Ltd
2012/0977 (HC-MD-CIV-ACT-CON-2018/01275) [2018] NAHCMD 370 (15
November 2018)

Unreasonable delay in prosecuting action — Ruling in terms of PD 61 — Louw

v Strauss (HC-MD-CIV-ACT-CON-2016/03949) [2018] NAHCMD 177 (14 June 2018)

Civil Procedure ‒ Annexure 11 — amendment of pleadings — Pretorius v van Eck

(I 45/2016) [2018] NAMCMD 209 (12 July 2018)

Civil Procedure ‒ Annexure 11 — eviction — Somaeb v Standard Bank Namibia

Ltd (HC-MD-CIV-MOT-GEN-2017/00202) [2018] NAHCMD 354 (7 November 2018)

Civil Procedure ‒ Annexure 11 — exception — Rossmund Golf Estate Home

Owners Association v M Hartmann Investments Eighty Two CC (HC-MD-CIV-ACT-
CON-2017/03671) [2018] NAMCMD 184 (21 June 2018)

Civil Procedure ‒ Annexure 11 — jurisdiction — Article 80(2) of the Constitution —

Namibia Tourism Board v Mundial Telecom Sarl (HC-MD-CIV-ACT-CON-2016/02888
[2018] NAMCMD 198 (2 July 2018)
 27

Civil Procedure ‒ Annexure 11 — interdicts — Haindaka v The Minister of Urban

and Rural Development (HC-MD-CIV-MOT-GEN-2018/00254) [2018] NAHCMD 258
(16 August 2018)

Civil Procedure ‒ Annexure 11 — interim relief — Abduselam v Luxury Investment

M.A (Pty) Ltd (HC-MD-CIV-MOT-GEN-2018/00385) [2018] NAHCMD 397 (3
December 2018)

Civil Procedure ‒ Annexure 11 — leave to amend — Gecko Salt (Pty) Ltd v The
Minister of Mines and Energy (HC-MD-CIV-MOT-REV-2017/00307) [2018]
NAHCMD 364 (15 November 2018)

Civil Procedure ‒ Annexure 11 — leave to appeal — Kamwi v Standard Bank

Namibia Limited (A 101/2011) [2018] NAHCMD 316 (5 October 2018)

Civil Procedure ‒ Annexure 11 — review — Kleinhans v Mapove (HC-MD-CIV-

MOT-GEN-2017/00346) [2018] NAHCMD 262 (30 August 2018)

Civil Procedure ‒ Annexure 11 — Rule 28(8)(a) — additional discovery. Meat

Corporation of Namibia v Groenewald (HC-MD-CIV-ACT-CON-2016/02858) [2018]
NAMCMD 194 (28 June 2018)

Civil Procedure ‒ Annexure 11 — security for costs. IBB Military Equipment and
Accessory Supplies CC vs Namibia Airports Company Limited (HC-MD-CIV-ACT-
CON-2017/03477) [2018] NAHCMD 211 (13 July 2018)

Civil Procedure ‒ Annexure 11 —spoliation. Cuff’s Cattle Enterprise (Pty) Ltd v

Botes (HC-MD-CIV-MOT-GEN-2018/00389) [2018] NAHCMD 348 (5 November
2018)

Civil Procedure ‒ Annexure 11 — urgency self-created — Tjiurisa v Naobeb (HC-

MD-CIV-MOT-GEN-2018/00219) [2018] NAHCMD 217 (13 July 2018)

COMPANY LAW

Close corporation ― Fiduciary duty ― To whom owed ― In terms of the Close

Corporation Act 26 of 1988, s 42 (1) ― Each member stands in fiduciary relationship
to corporation ― Consequently, a member (in instant case first plaintiff in
reconvention) not entitled to an order against the other member (defendant in
reconvention) to render full account (supported by vouchers) for period of
corporation’s founding to date, debatement of account, and payment of amount due
to plaintiff in reconvention ― Court held that plaintiff in reconvention entitled only to
access to accounts of corporation. Horn v Horn (I 615/2016) [2018] NAHCMD 3 (23
January 2018)
 28

Company Law – voluntary liquidation of a company – whether provisions of s.

423 and 424 relating to the establishment of a commission of enquiry apply –
Customs and Excise Act – onus on company dealing in import and export to show
that good bought and imported into the country were subsequently exported outside
the common customs area and failure to do so renders the company liable for duties
and taxes. McLaren v Minister of Finance (HC-MD-CIV-MOT-GEN-2017/00144)
[2018] NAHCMD 101 (20 April 2018)

Company Law – application of s. 260 and requirements to be met by an applicant

therefor. Van Zyl (Snr) v Namibia Affirmative Management and Business (Pty) Ltd
(HC-MD-CIV-MOT-GEN-2018/00337) [2018] NAHCMD 350 (5 November 2018)

locus standi in judicio – whether a shareholder has a right and interest in orders
granted ex parte by virtue of shareholding in the company in liquidation. Company
Law – the distinction of the role and duties of provisional and final liquidators
discussed. Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-CIV-MOT-GEN
-2018/00062 [2018] NAHCMD 97 (17 April 2018)

COMPETITION LAW

Competition law – A warrant in terms of Section 34 of the Competition Act 2 of 2003

had been granted on application made ex parte and in camera by a Judge of the High
Court during September 2016 to the Namibian Competition Commission. The search
authorized by the warrant occurred from 15 to 17 September 2016. On 10 October
2016 the respondent filed its anticipation notice and its notice of counter-application.
Court holding that the respondent, Puma Energy Namibia Pty Ltd, in this instance
was entitled as a matter of law, to a reconsideration of the order authorizing the
warrant, which regardless of its form, was provisional in nature and subject to
reconsideration where the court was tasked to consider the matter 'afresh' on the
return date — that is on the merits — in the light of all the information which has by
then been placed before the court — 'as if the order was first being applied for'.
Court holding that in such circumstances and once the court was appraised of the
true facts, through the filing of an answer, the court may set aside the former order.
This so it was held further was not interference with the discretion that the previous
court had exercised, but an exercise of the reconsidering courts powers, in the light of
further information placed before it. The Namibian Competition Commission v Puma
Energy (Namibia) (Pty) Ltd (HC-MD-CIV-MOT-EXP-2016/00275) [2018] NAHCMD
356 (8 November 2018)

CONSTITUTIONAL LAW
 29

Constitution of the Republic of Namibia – Organs of State – Such not to interfere

with the operational functions of the other – Expectations on other branches of State
to comply with orders made by a court of law – Non-compliances therewith to put the
constitutional mandate of the courts into disrepute. Ndemuweda v The Government
of the Republic of Namibia (Minister of Health and Social Services) (HC-MD-CIV-
MOT-GEN-2017/00336) [2018] NAHCMD 67 (23 March 2018)

Constitutional Law – Article 16 of the Namibian Constitution conferring freedom of

testation on all persons – Invalidating Will for non-compliance with sec. 2 (1) (a) (iii)
and (iv) of the Wills Act 7 of 1953, may in certain circumstances amount to a violation
of the right to freedom of testation. Mwoombola vs The Master of the High Court (HC-
MD-CIV-MOT-GEN-2017/00299) [2018] NAHCMD 103 (20 April 2018)

Constitutional law — Article 18 — Right to fair and reasonable administrative

justice — Common Law audi alterem partem rule. Kapika v Minister of Urban and
Rural Development (HC-MD-CIV-MOT-REV-2016/00331) [2018] NAHCMD 51 (9
March 2018)

Constitutional law — Constitution — Foundational values — Rule of law —

Justice for all — Public officials enjoined by the Constitution to perform their functions
fairly and reasonably — in compliance with the common law and statutory
provisions. Ombudsman v The Station Commander (HC-MD-CIV-MOT-GEN-
2017/00042) [2017] NAHCMD 366 (08 December 2017)

Constitutional Law – the necessity to comply with court orders and to maintain the
rule of law and thus avoid anarchy. Endunde v The Chairperson of the Okavango
East Communal Land Board (HC-MD-CIV-MOT-GEN-2016/00384) [2018] NAHCMD
113 (27 April 2018)

Constitutional law — Freedom of speech and expression and the media guaranteed
by art 21(1)(a) of Namibian Constitution — Such freedom central to vibrant
democracy where and the principle of accountability applicable in democratic states
and rule of law jurisdictions and in which members of the public have a right to be
informed about the manner and fashion in which the authorities are performing their
public duties and mandates, which right includes the right to be informed about how
public figures, officials and politicians execute the tasks entrusted to them - members
of the public thus have the consequent right to form an opinion about the manner and
fashion in which the authorities and public figures are performing their public duties,
which opinion is dependent in a very large measure upon the media's ability to
provide accurate information on the way in which politicians and functionaries are
fulfilling their mandates; in this regard the media plays a key role in that its members
are important agents in ensuring that government is open, responsive and
accountable to the citizens as the founding values of the Constitution require –
Constitutional law — Freedom of speech and expression and the media guaranteed
by art 21(1)(a) of Namibian Constitution – the recognition of the negative effects and
the negative impact of corruption on the Namibian Bill of Rights and on Namibia’s
 30

developing democracy translates itself into the recognition of the important role that
the media have in reporting on such activities. ‘It is thus one of the functions of the
press to ferret out corruption, dishonesty and graft wherever it may occur and to
expose the perpetrators…’. The press must reveal dishonest mal- and inept
administration. This role of the media is obviously also in the public interest.
Constitutional law - the actions of the NCIS are subject to judicial oversight as the
NCIS operates in the context of a democratic state founded on the rule of law which
rule subjects all public officials and all those exercising public functions, whether
openly or covertly, in the interest of the State, to judicial scrutiny, this would include
all operatives and functionaries of the NCIS. Constitutional law — Freedom of speech
and expression and the media guaranteed by art 21(1)(a) of Namibian Constitution —
the limitation of such rights and freedoms is however permissible in terms of art 21(2)
by any law which imposes reasonable restrictions on the exercise of such rights and
freedoms, which rights can also be limited if this should be required in the interests of
national security. The Director General of the Namibia Central Intelligence Service v
Haufiku (HC-MD-CIV-MOT-GEN-2018/00107) [2018] NAHCMD 174 (18 June 2018)

Constitutional law — Fundamental rights — Administrative justice —Failure to

invite one of the parties to a dispute to the appeal hearing— fundamentally unfair
hearing — Violation of arts 12 and 18 of Constitution. Namibia Marine Phosphate
(Proprietary) Limited v Minister of Environment and Tourism (CA 119/2016) [2018]
NAHCMD 122 (11 May 2018)

Constitutional law – meaning of good constitutional citizenship. The Central

Procurement Board v Nangolo N.O. (HC-MD-CIV-MOT-REV-2017/00441) [2018]
NAHCMD 357 (9 November 2018)

Execution - Sale in execution – of immovable property - For debt - Constitutionality

of procedure - Failure to provide judicial oversight over sales in execution against
immovable property of judgment debtors in s 66(1)(a) of Magistrates' Courts Act 32 of
1944 declared unconstitutional and invalid. Hiskia v Body Corporate of Urban Space
(HC-MD-CIV-MOT-GEN 2017/00143) [2018] NAHCMD 279 (31 August 2018)

Voluntary association – Unincorporated voluntary association – Political party –

Rules of - Non - compliance with by association - When Court will interfere -
Disregarding of rules - When Court will interfere. Political Rights – Political choices
– Freedom of citizens to participate in the political activities of a political party Article
17 of the Constitution – Scope and ambit of right – Right to participate in the activities
of political party confers on every political the duty to act lawfully and in accordance
with its own constitution. Nambinga v Rally for Democracy and Progress (HC-MD-
CIV-MOT-GEN-2017/00378) [2018] NAHCMD 102 (20 April 2018)

CONTRACT
 31

Law of Contract – Agreement to manufacture and erect a shed with material

supplied by plaintiff. Bargain Building Supplies CC v Van Zyl (HC-MD-CIV-ACT-
CON-2017/00049) [2018] NAHCMD 40 (26 February 2018)

Law of Contract – relating to construction and related work – Prescription – The

Prescription Act 1988 – when is prescription to start running in relation to a debt.
Central Technical Supplies (Geiger) Engineering Services (Pty) Ltd v Khomas
Aluminium and Glass CC & Another (I 2242/2015) [2018] NAHCMD 76 (29 March
2018)

Law of Contract – Divisibility of a written contract – when applicable – repudiation of

a contract – notice of cancellation of a contract. Conrad v Dohrmann (I2073/2015)
[2018] NAHCMD 121 (14 May 2018)

Law of Contract - Offer and Acceptance – Terms of the offer must be certain and
definite - Acceptance of the offer must be unequivocal - Sale of land within local
authority area is subject to the provisions of s 30 (1) (t) of the Local Authority Act 23
of 1992, as amended - where all the conditions of sale are not determined at time
when offer is made and accepted – no binding contract comes into existence. Kamwi
v The Chairperson of the Local Authority of Katima Mulilo (HC-MD-CIV-MOT-GEN-
2017/00201) [2018] NAHCMD 367 (15 November 2018)

Contract – Arbitration clause – Whether peremptory or discretionary in nature as

formulated in the agreement entered into between the parties. Opuwo Town Council
v Dolly Investments CC (HC-MD-CIV-ACT-CON-2017/03148) [2018] NAHCMD 309
(24 September 2018)

Contract – Home Loan Agreement and Access Bond Facility Agreement –

Breach and enforcing of – Recovery of monies lent and advanced by plaintiff Bank
– Certificate of balance indicating outstanding balance of amount claimed – Court
finding first defendant and second defendant liable jointly and severally to pay
amount claimed together with interest thereon – Consequently, court entered
judgment for plaintiff in the amount claimed together with interest thereon –
Furthermore, plaintiff applied by notice for an order declaring the immoveable
property in question executable in terms of rule 108 of the rules of court - Court
satisfied notice complied with requirements of the rules – Court found that no
defendant and no other persons provided reasons why such order should not be
granted – Consequently, court granted order prayed for. Principle in Standard Bank
Namibia Limited v Magdalena Shipila and Other Case No. SA 69/2015 (SC) applied.
Standard Bank of Namibia Ltd v Schameerah Court Number Seven CC (I 3939/2015)
[2018] NAHCMD 378 (27 November 2018)

Contract – Misrepresentation – Plaintiff alleging that but for the misrepresentation,

she would not have entered into the contract – Misrepresentation constituting material
aspect of contract — Plaintiff entitled to cancel contract. Redelinghuys v Coffee-Lind (I
11/2014) [2018] NAHCMD 368 (31 October 2018)
 32

Contract – Sale and purchase of immovable property – Agreement orally made

and in writing – Non-compliance with the Formalities In Respect of Sale of Land Act,
1969 (Act 71 of 1969) – Agreements void ab initio - Immovable property subsequently
sold to a third party – Specific performance impossible – Court ordering refund of
moneys paid. Van Schalkwyk v Dias (I 1048/2011) [2018] NAHCMD 396 (4
December 2018)

Contract – Sale of land – Breach of contract by purchaser – Purchaser failing to

furnish Seller with guarantee payable against registration of transfer of the property–
Purchaser furnishing Seller with guarantee payable “subject to availability of funds” ‒
Such guarantee not a guarantee required in terms of the contract. Zest Investments
Seventy-Three CC v Municipal Council of Windhoek (I 166/2016) [2018] NAHCMD
186 (22 June 2018)

Contract – reliance on indemnity clause – Breach of contractual relationship – A

party that seeks to rely on an indemnity clause should ensure that it is free from all
other actions or commissions which are questionable. Public policy dictates that a
party cannot benefit from its own errors and hide behind the indemnity clause. Faida
Trading & Clearing Enterprises CC v Nedbank Namibia Limited (I 143/2014) [2018]
NAHCNLD 66 (23 July 2018)

Law of Contract – restitution of deposit following the termination of contract.

Texeira v 4 Fourz Automotiv CC (I 3244/2014) [2018] NAHCMD 233 (6 August 2018)

Contracts – Interpretation – Taking into account text and context as well as

knowledge of contracting parties at conclusion of contract – Background evidence not
permissible and not needed to interpret unambiguous contracts. Standard Bank
Namibia Limited v Ngashikuao (HC-MD-CIV-ACT-CON-2016/02264) [2018]
NAHCMD 282 (4 September 2018)

Insurance – Contract of insurance – Liability of insurer - Repudiation of – On

ground of special stipulation or ‘general exceptions’ or ‘exclusion’ clauses in
insurance contract – Court held that the fact that the peril insured against was
brought into operation by an act on the part of the insured does not necessarily take
away the liability of the insurer for any loss that may be sustained in consequence –
The effect of the act depends partly on its nature and partly on the special stipulations
or exclusions or general exceptions, if any, of the Policy -The stipulation that insured
should give exact time by the hour, minutes and seconds of occurrence of accident is
perverse and insensitive – Such stipulation not in accord with common human
experience for insured involved in motor vehicle accident to note the exact time of
accident – Failure of insured to give exact time by the hour, minutes and seconds not
amounting to failure to give complete and true information to insurer- Exclusion of
liability based on plaintiff driving in excess of general speed limit not stipulated
explicitly and clearly in any exclusion or special stipulations clauses in the Policy –
Defendant failed to establish that plaintiff left scene of accident ‘unlawfully’ –
 33

Consequently court held defendant not entitled to stand on the two general exception
and exclusion clauses to repudiate liability – Accordingly, court entered judgment for
plaintiff and ordered defendant to compensate plaintiff in terms of the insurance
contract for his loss occasioned by the accident. Malakia v Alexander Forbes
Insurance Company (HC-MD-CIV-ACT-OTH-2017/03868) [2018] NAHCMD 365 (16
November 2018)

Practice — Judgments and orders — Stated case in terms of Rule 63 of Rules of

Court — Liquidated claim — Deed of suretyship required to secure loan —
Suretyship cession of life cover and cession agreement wherein first defendant
ceased monies entitled to it from the Ministry of Safety and Security to the plaintiff
formed part of security set — Plaintiff failed to execute on the cession in respect of
the Ministry of Safety and Security — The questions of law to be decided in stated
case — Did plaintiff’s breach its duty towards third defendant, as surety, such that he
is released of his obligations under Suretyship — Did conduct of plaintiff amount to a
prejudicial act which releases third defendant from liability. Development Bank of
Namibia v Keystone Technology Solution (I 3678-2013) [2018] NAHCMD 295 (19
September 2018)

COSTS

Costs – General principle that costs follow the event and that the rule may be
departed from where exceptional circumstances exist applied – Court held that where
plaintiff has dragged defendant to the High Court in a matter where the Magistrates’
court also has jurisdiction and defendant succeeds in her defence court should award
to defendant costs applicable to the High Court – Court held further that where
plaintiff succeeds in a matter in the High Court in which the Magistrates’ court also
has jurisdiction it will be unjust and inequitable for court to award to plaintiff costs
applicable to the High Court. Ndilula v Beuthin (I 2099/2015) [2018] NAHCMD 73 (28
March 2018); Spangenberg v Kloppers (HC-MD-CIV-ACT-OTH-2017/01338) [2018]
NAHCMD 81 (5 April 2018)

Costs – Principle to awarding of costs where the party initiating proceedings

withdraws its claim – Court to determine whether the general rule that costs should
follow the result should apply in matrimonial proceedings where parties settle – No
order as to costs should be made in such instances. G R v E R (HC-MD-ACT-MAT-
2016/03929) [2018] NAHCMD 336 (19 October 2018)

Civil Practice – Costs – Abandonment of proceedings – Rule 97 – The rule provides

that where a party in whose favour a judgement or order has been made abandons
part of the order without consent to pay the costs, the other party may apply to court
for an order for costs – The intervening parties are entitled to wasted costs following
his abandonment of part of the order made in the applicant’s favour. Akwenye v
 34

Akwenye (HC-MD-CIV-MOT-GEN-2018/00025) [2018] NAHCMD 347 (31 October

2018)

Costs award — When granted — Successful litigant to be reimbursed for expense of

litigation — Rule not immutable that costs will always follow the successful litigant —
Test in making cost-ruling is to enquire what is just in the circumstances —
Justification of one instructed and two instructed — Costs of only one counsel
allowed. Pennypinchers Timbercity Windhoek v Kohler (I 3045/2015; HC-CIV-ACT-
DEL-2016/3653) NAHCMD 232 (26 July 2018)

Costs — Public officer — Award of costs against a person acting in a

representative capacity de bonis propiis — Mala fides on his part must be proved.
Ombudsman v The Station Commander (HC-MD-CIV-MOT-GEN-2017/00042) [2017]
NAHCMD 366 (08 December 2017)

COSTS – the court normally grants punitive costs to discourage members of the
public from taking the law into their own hands, risking anarchy during the process.
Seelenbinder v Fischer (2018/00128) [2018] NAHCMD 135 (21 May 2018)

COSTS – punitive scale – A party who when advised to rectify an anomaly in its
papers but ignores to do so timeously but only to come two days before the hearing
of the matter cannot escape being saddled with punitive costs. Matter is postponed
with applicant paying costs at a punitive scale. Ongwediva Town Council v
Shithigona (HC-NLD-CIV-MOT-GEN-2017/00017) [2018] NAHCNLD 78 (06 August
2018)

COSTS – punitive scale – Administration of estates ‒ A surviving spouse married

in community of property is entitled to her husband’s estate – members of the
husband’s family have no right to deprive her of the same – a party who embarks and
insists on litigation in the face of official advise from the Master of the High Court and
his opponent’s legal practitioner that he has no legal right to his claim should be
ordered to pay costs as between legal practitioner and client scale. Thomas v
Thomas (I 93/2015) [2018] NAHCNLD 75 (30 July 2018)

Law of Costs – circumstances in which attorney and client scale are granted – party
inventing a counterclaim that does not exist is liable a punitive costs order. Soltec CC
v Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 251 (20 August 2018)

DELICT

Action for damages against defendants for having frustrated and delayed the
serving of summons against former foreign Supreme Court Acting Justices. Teek v
The Minister of Justice (I 3304/2015) [2018] NAHCMD 52 (13 March 2018)
 35

Action for damages – In a claim for delictual damages, plaintiff must separate
patrimonial and non-patrimonial loss. The court cannot award costs for medical
expenses or loss of property where there is no proof for the expenses incurred.
Musoni v Cosmas (HC-NLD-CIV-ACT-DEL-2016/00301) [2018] NAHCNLD 67 (23
July 2018)

Action for damages arising from misappropriation of money over a period of time –
court holding Defendants liable to pay Plaintiff amounts misappropriated, with costs.
CJ’s Service Station CC v Steyn (I 2813/2015) [2018] NAHCMD 275 (6 September
2018)

Animals ‒ Actio de pauperie ‒ Defendant’s dogs allegedly having attacked and

killed Plaintiff’s livestock on Plaintiff’s farm ‒ Dogs having acted contra naturam sui
generis in the circumstances ‒ Defendant liable for damages caused to the extent as
proved by evidence. Steyn v Stanley (HC-MD-CIV-ACT-DEL-2017/01216) [2018]
NAHCMD 400 (7 December 2018)

Civil Procedure – Delict – Malicious prosecution – Elements that need to be

satisfied before successfully raising malicious prosecution – Onus – Rests on he who
alleges to prove on a balance probabilities that prosecution was done without
reasonable and probable cause and that members of the prosecuting authority acted
with malice or animo injuriandi. Mwambwa v The Minister of Safety & Security
(I105/2014) [2018] NAHCMD 89 (12 April 2018)

Delict — Malicious proceedings — what plaintiff must prove — Malicious

prosecution — Elements of — Institution of proceedings animus iniuriandi without
reasonable and probable cause — Common law extended to include claim for
malicious continuation of prosecution. Kauhano v Minister of Safety and Security (I
3952/2013) [2018] NAHCMD 317 (28 September 2018)

Defamation - What constitutes – Plaintiffs averring that statement made in plea to

the plaintiffs claim by the defendants are defamatory – Defendants raising defence of
privilege – Plea filed during course of judicial proceedings – Court to determine
whether plea filed is defamatory in nature or not. Teek v Walters (HC-MD-CIV-ACT-
DEL-2016/02863) [2018] NAHCMD 376 (23 November 2018)

Defamation — Every person is entitled to legal protection against an infringement of

his/her dignity which is presumed. Where a plaintiff fails to make a full disclosure of
the basis of his/her claim and/or misleads the court on matter of fact, the court will not
be in a position to make a proper determination. A claim for defamation will not
succeed. Kambwela v Mbadhi (I 185/2016) [2018] NAHCNLD 16 (12 February 2018)

Defamation – In a claim for defamation, plaintiff must prove that there was
wrongfulness and false publication about him/her which publication has infringed
his/her dignity - The said publication was unlawful – Defendant can then raise legal
defences. Kashululu v Nakale (I 132/2015) [2018] NAHCNLD 44 (14 May 2018)
 36

Practice – In a defamation suit – plaintiff seeks relief for impairment of his/her

personal dignity and sense of self-worth – plaintiff must set out the words alleged to
have been used by defendant and must prove his/her claim on a balance of
possibilities. Particulars of claim must be clear. Shivute v Moses (HC-NLD-CIV-ACT-
OTH-2018/00219) [2018] NAHCNLD 140 (11 December 2018)

Delict – Loss of support – Plaintiff suing for loss of support under common law
alleged as a result of the due to the negligence of the defendant – Special plea raised
by defendant – Defendant indicating that plaintiffs are barred by the Employee’s
Compensation Act 30 of 1941 from pursuing a claim for damages in terms of the
common-law against the defendant – Court to determine whether s 7 of the
Employee’s Compensation Act 30 of 1941 precludes any action against an employer
for damages in terms of the common law. Muhura NO v Lewcor CC (I 3093/2011)
[2018] NAHCMD 375 (23 November 2018)

Vicarious liability – Liability of employer for acts of employee – whether the

employees of the defendant acted wrongfully and unlawfully when they assaulted
plaintiff’s person – Defendant established the physical interference was justified.
Sadok v Eagle Night Watch Security CC (I 2642/2015) [2018] NAHCMD 18 (08
February 2018)

DOMICILE

Domicile – Domicile of choice – Requirements thereof. Immigration Control Act 7 of

1993 – Interpretation of s 22(1) (d) read with s 22(2)(b) excludes computation of
period of residence in Namibia if applicant is only resident by virtue of a permit issued
in terms of s 27 of the Act. Meetings of the Immigration Selection Board – Quorum
not constituted – Decisions taken at inquorate meetings amount to a nullity. Joubert
v The Minister of Home Affairs and Immigration (HC-MD-CI-MOT-REV-2016-00327)
[2018] NAHCMD 118 (03 May 2018)

ETHICS

Legal Ethics – duties of legal practitioners to the court, especially in ex parte

proceedings. Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-CIV-MOT-
GEN -2018/00062 [2018] NAHCMD 97 (17 April 2018)

LEGAL ETHICS – the impropriety of a legal practitioner who acts on behalf of clients
in a non-litigious matter, to then act on behalf of one of the parties to the dispute that
later arises – the proper course is to withdraw and refer the parties to find lawyers to
represent them in the litigious dispute. The role of counsel and function of heads or
 37

argument discussed. Conrad v Dohrmann (I2073/2015) [2018] NAHCMD 121 (14

May 2018)

LEGAL ETHICS – Need for practitioners to act with punctilious courtesy towards
colleagues and avoid partaking in the acrimony displayed by their clients.
Seelenbinder v Fischer (2018/00128) [2018] NAHCMD 135 (21 May 2018)

EVIDENCE

Civil Procedure — Admissibility of Documentary Evidence —applicable

principles — the admission of documentary evidence when the issue for
determination is; whether the parties were married in community of property or out of
community of property in terms of section 17 (6) of the Native Proclamation 15 of
1928 — the manner of admission of such evidence — nature of the evidence to be
adduced. Admissibility of Documentary Evidence —Objections to admission of
evidence — the manner in which objection must be raised and law relating to
admission of documentary evidence in terms of section 18, 20 and 34 of the Civil
proceedings evidence Act. Ipinge v Lukas (I 1833/2011) [2018] NAHCMD 106 (23
April 2018)

Evidence – mutual destructive evidence – where the evidence of the parties is

mutually destructive court must decide as to which version to belief – Court found
version of defendant more probable. Sadok v Eagle Night Watch Security CC (I
2642/2015) [2018] NAHCMD 18 (08 February 2018)

Law of Contract – for work done in installing invertors and switch gear to
defendant’s shop – whether contract was entered into – terms thereof - Law of
Evidence – approach to disputed facts and procedure to be employed in resolving the
disputes – the fact that a witness has lied in respect of an issue does not necessarily
mean that his or her entire evidence must of necessity be discarded. Soltec CC v
Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 251 (20 August 2018)

LAW OF EVIDENCE – The necessity of a party putting its version to the opposing
witnesses. Failure to do so results in the court regarding the evidence elicited
therefrom as an afterthought – an adverse inference drawn from failure to call an
important witness to testify – impermissibility of eliciting questions from the defendant
regarding contents of a witness’ statement. Conrad v Dohrmann (I2073/2015) [2018]
NAHCMD 121 (14 May 2018)

Law of Evidence - whether failure to examine an expert who has filed his report
results in the court attaching no value to the expert report – commercial value
attached to the Exclusive Prospecting Licence – court’s discretion on how the value
of the EPL License is computed. Fish Orange Mining Consortium (Pty) Ltd v !Goaseb
(I 582/2010) [2018] NAHCMD 154 (8 June 2018)
 38

Rule 128 – authentication of documents – whether documents not authenticated but

attached to affidavits that need not be authenticated are admissible in evidence
Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-CIV-MOT-GEN -
2018/00062 [2018] NAHCMD 97 (17 April 2018)

INSOLVENCY LAW

Insolvency – When granted – A creditor having established 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 – Respondents not raising any matter which
would disentitle applicant to a final order – Consequently final order of sequestration
granted. Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard (A
276/2014) [2018] NAHCMD 148 (07 June 2018)

Law of Insolvency – Winding-up – Application for the winding-up of both the

principal debtor and its surety. Inability to pay a sum of US$2.5 million – Based on an
arbitral Award in favour of the applicant and made an order of this court. Surety
raising a defence that the claim against the principal debtor has prescribed. The
Award created a new cause of action in favour of the applicant. Nottingham
Incorporated v Rockview Investment Number Seventy (Pty) Ltd and VXK
Investments Thirty (Pty) Ltd (A 16/2016 and A 17/2016) [2018] NAHCMD 278 (28
August 2018)

INTELLUCTUAL PROPERTY

Intellectual property – Copyright – Infringement of – Reproduction of a trade-logo

infringing copyright. Southern Sun Africa v Sun Square Hotel (Pty) Ltd (A 66/2016)
[2018] NAHCMD 105 (23 April 2018)

INTERDICTS

Interdict — Final interdict — Requisites — an applicant has to establish a clear

right, an injury actually committed or reasonably apprehended, and the absence of
similar protection by any other ordinary remedy. The Court retains a limited
discretion, if at all. There is no general discretion to refuse relief. That is a logical
corollary of the court holding that the applicant has suffered an injury or has a
reasonable apprehension of injury and that there is no similar protection against that
injury by way of another ordinary remedy. In those circumstances, were the court to
withhold an interdict, that would deny the injured party a remedy for their injury, a
result inconsistent with the constitutionally protected right of access to courts for the
resolution of disputes. The Director General of the Namibia Central Intelligence
 39

Service v Haufiku (HC-MD-CIV-MOT-GEN-2018/00107) [2018] NAHCMD 174 (18

June 2018)

Motion proceedings – Interim interdict – Requirements – Applicant’s right to be

granted an interdict dependent on a fulfilment of a suspensive condition of the
agreement – Applicant failed to establish a prima facie right – Application is
dismissed. Fullard v Nghaamwa (HC-MD-CIV-MOT-GEN-2018/00180) [2018]
NAHCMD 306 (30 August 2018)

INTERLOCUTORY

Application for leave to amend – Civil procedure – Application for leave to amend –
Rule 52(9) of the rules of court – considerations to be taken into account in granting
or refusing such applications – Result - application granted. Teichmann Plant Hire
(Pty) Ltd v RCC MCC Joint Venture (I 1216/2015) [2018] NAHCMD 2 (17 January
2018)

Application for leave to appeal – application for condoning late filing of the leave to
appeal – prospects of success on appeal – bona fide defence. Colia Louis Family
Trust v Komsberg Farming (Pty) Ltd (in Liquidation) (I 2551/2014) [2018] NAHCMD 9
(29 January 2018)

Interlocutory – Application in terms of rule 67(1)(a) – Referral to oral evidence –

Application opposed – Two points in limine raised; applicants lack locus standi; and
that the resolution attached to the founding affidavit does not authorised the
applicants to institute legal proceedings – Points in limine dismissed – Points of
dispute referred to oral evidence. Jahanika v Muinjangue (HC-MD-CIV-MOT-GEN-
2018/00206) [2018] NAHCMD 363 (14 November 2018)

Plea – Non-joinder – Delivery of goods in terms of agreement. Namibia Breweries

Limited v Timoteus Paulus trading as Gweni Bar (I 2087/2016) [2018] NAHCMD 39
(26 February 2018)

Practice – Applications and motions – Interlocutory application – What constitutes

– Court held the test was the nature of the application to the court; and not the nature
of the order which the court made – Court held therefore that application for an order
granting absolution from the instant at the close of plaintiff’s case is not an
interlocutory application – The nature of such application is a decision of the court
determining conclusively the final rights of the parties and bringing the trial to an end.
The principles in Salman v Warner [1891] 1QB 734 (CA); and in Guerrera v Guerrera
[1974] 2 All ER 460 (CA) applied. Ashikoto v Prefered Investment Property Fund
(HC-MD-CIV-ACT-DEL-2016/02898) [2018] NAHCMD 127 (16 May 2018)
 40

Practice ‒ Applications and motions ‒ Interlocutory applications ‒ Failure to

comply with rule 32(9) and (10) ‒ Matter struck from the roll. Municipal Council of
Windhoek v Kolowali (HC-MD-CIV-ACT-CON-2018/00704) [2018] NAHCMD 206 (5
July 2018)

Civil Procedure ‒ Interlocutory ‒ Application to compel discovery ‒ Summons

have not lapsed ‒ Application to compel discovery struck from the roll. So‒Oabes v
The Minister of Health and Social Services (HC-MD-CIV-ACT-CON-2016/03412)
[2018] NAHCMD 163 (21 May 2018)

LAW OF SUCCESSION

Administration of estates ‒ Heir instituting action for the return and administration
of a farm as an asset in the estate of the deceased ‒ Defendants raising a special
plea of lack of locus standi ‒ Court upholding the special plea ‒ Heir having no
standing to institute the action for the relief she seeks. Kandjeo v Agape Investment
CC (I 597/2015) [2018] NAHCMD 222 (19 July 2018)

Administration of estates ‒ A surviving spouse married in community of property is

entitled to her husband’s estate – members of the husband’s family have no right to
deprive her of the same – a party who embarks and insists on litigation in the face of
official advise from the Master of the High Court and his opponent’s legal practitioner
that he has no legal right to his claim should be ordered to pay costs as between
legal practitioner and client scale. Thomas v Thomas (I 93/2015) [2018] NAHCNLD
75 (30 July 2018)

Applications – Validity of Will – Forgery Alleged – Dispute of fact – Whether the

nature or extend of the deceased’s infirmity or the medication he was on as a result
thereof, at the time of drafting the disputed Will had affected his motor and cognitive
state and function – Expert Report Confirming the allegation of Forgery – Witnesses
in the disputed Will deposed to affidavits that the deceased signed the disputed Will
in their presence – Doctors on opposite sides have conflicting opinions – None of the
witnesses stand to gain anything from either Will being accepted as the last Will and
testament of the deceased – Glaring dispute of fact which should have been
reasonably foreseen before the application was lodged – In view of the application
held not to be one of review of administrative action by a public official – held that the
issue of unreasonable delay in launching the application does not apply in the instant
case – Rule 65 (7) requiring applicant to submit application in respect of a estate is
peremptory. Schkade v Gregory N.O (HC-MD-CIV-MOT-GEN-2017/00030) [2018]
NAHCMD 235 (9 August 2018)

Ejectment — Action for ejectment — Necessary averments — Plaintiff need only

allege ownership of property and occupation thereof by defendant — Onus on
 41

defendant to prove lawful occupation. Kavezeri v Kavezeri (HC-MD-CIV-ACT-OTH-

2016/02421) [2018] NAHCMD 205 (06 July 2018)

Will - Execution – executrix and witnesses initialing the first three pages of a four
paged will and only signing the fourth page - Requirements of sec. 2 (1) (a) (iii) and
(iv) of the Wills Act 7 of 1953. Mwoombola vs The Master of the High Court (HC-MD-
CIV-MOT-GEN-2017/00299) [2018] NAHCMD 103 (20 April 2018)

Will — Validity of — Testamentary capacity of testator — Party disputing validity of

will bearing onus to prove that testator lacked testamentary capacity at time of
execution of will —Court not satisfied that plaintiff in reconvention proved that
deceased lacking mental capacity when will executed — Action disputing validity of
will dismissed with costs. Bikeur v The Master of the High Court (I 2730-2011)
NAHCMD 234 (27 July 2018)

MATRIMONIAL

Custody of minor children must be awarded to a parent or guardian/caregiver who

is favoured by the principle of the best interest of the children. A Social Welfare
Report, though not binding is however persuasive and should be ignored if the
conclusion is not in the interest of the children. Paulus v Tuhafeni (CA 02/2017)
[2018] NAHCNLD 40 (23 April 2018)

Divorce — Restitution order granted on counterclaim raised by defendant— Whether

plaintiff's offer to return bona fide — Onus on plaintiff to establish that offer bona fide
— Plaintiff failing to discharge onus — On evidence apparent that offer to resume
cohabitation simply a ruse to avoid divorce order and inevitable consequence of an
award of proprietary rights, maintenance and custody and access to the minor
children – Court however cannot disregard the issues raised by the plaintiff relating to
the ancillary relief claimed by the defendant and more specifically the issue regarding
custody and access to the minor children – These are issues that are extremely
important and no final decision should be made without hearing the parties. K v K
(I2987/2015) [2018] NAHCMD 126 (14 May 2018)

Husband and wife – Divorce – Forfeiture of benefits – Spouses married in

community of property – When court deals with a request to issue a quantified or
specific forfeiture order, it is necessary to provide evidence to the court as to the
value of the estate at the date of the divorce – Court satisfied that plaintiff had made
out a case for specific forfeiture of benefit. Husband and wife – Divorce – Whether
value of the improvements made to the traditional homestead is considered part of
joint estate – Customary land right may not be allocated to more than one person
jointly – The concept of joint-holdership does not find support in the provisions of the
Communal Land Reform Act 5 of 2002 – Homestead sole property of defendant. W W
B v Johannes Aipanda N O (I 402/2014) [2018] NAHCMD 22 (09 February 2018)
 42

Maintenance — In an appeal for maintenance, appellant must prove a misdirection

or irregularity on the part of the court a quo in arriving at the current order levied
against him. The fact that one is looking after an elderly parent or indigent relative
cannot take priority over his natural children and wife where applicable. Tobias v
Hausiku (HC-NLD-CIV-APP-AMC-2018/00002) [2018] NAHCNLD 41 (23 April 2018)

Marriage — Custody of minor children — Considerations by court in awarding

custody — Best interests of children paramount — Mother will not automatically be
awarded custody — Award based on what would be in best interests of children. EK
v EK (I 3455/2015) [2018] NAHCMD 200 (3 July 2018)

Matrimonial proceedings – Rule 103 (1) (a) rescission of an interim order wrong
procedure in terms of rule 90 applications – Party to utilize rule 90 (7) for variation of
interim orders where divorce matters are pending – Rule 90 does not contemplate
ordinary applications. G R v E R (HC-MD-ACT-MAT-2016/03929) [2018] NAHCMD
134 (18 May 2018)

Partnership — Ruling in terms of PD 61 — Marriage out of community of property —

Tacit universal partnership agreement — Whether antenuptial contract precluding
conclusion of such agreement — Evidence required for manifestation of conduct
consistent with universal partnership — Court must be satisfied that it was more
probable than not that agreement came into existence. MB v DB (HC-MD-CIV-ACT-
MAT-2017/03195) [2018] NAHCMD 266 (31 August 2018)

Settlement agreement – Status of orders made pursuant to settlement agreement –

Terms enforceable by court orders – Enforcement of a term of a divorce settlement
agreement to sell a jointly-owned immovable property – Rule 108 not applicable.
Liseho v Liseho (HC-MD-CIV-MOT-GEN-2017/00137) [2018] NAHCMD 82 (28
March 2018)

MOTOR VEHICLE ACCIDENT LAW

Civil Procedure – Motor vehicle collision – Elements – Factors to be proven to

successfully raise a claim for damages – Court to decide whether on all evidence and
probabilities and inferences, plaintiff discharged onus of proof on the pleadings on a
preponderance of probability. Shuudeni vs Minister of Environment and Tourism (HC-
MD-CIV-ACT-DEL-2017/01042) [2018] NAHCMD 107 (20 April 2018)

Motor vehicle accident – Defendant makes U-turn in front of the plaintiff’s vehicle
and colliding with it – Defendant failed to exercise care to avoid the accident
happening. Miljo v Ndivayele (I 3903/2015) [2018] NAHCMD 263 (30 August 2018)
 43

Motor vehicle collision - Negligence - Action for damages - Evidence - Expert

evidence - Weight to be attached thereto - Direct and credible evidence of what
happened in a collision must generally carry greater weight than the opinion of an
expert, however experienced he may be, seeking to reconstruct the event from his
experience and scientific training. An expert's view of what might probably have
occurred in a collision must on the application of this test give way to the assertions
of the direct and credible evidence of an eyewitness. It is only where such direct
evidence is so improbable that its very credibility is impugned, that an expert's
opinion as to what may and may not have occurred can persuade the court to his
view. Court then considered and applied the approach, as expounded by the leading
South African authorities and the approach followed there, with the reconciled
approach as followed in a Namibian authority in a criminal matter, in this civil matter.
The court then summarized the elements of the so adopted reconciled approach as
follows : a) that the South African approach is a general approach only; b) hat such
general approach is to the effect that direct credible evidence of what happened in a
collision should carry greater weight than the opinion of an expert; c) that the general
approach is to be adopted where there is direct and credible evidence of an eye
witness; d) that it is only when such direct evidence is so improbable that it’s very
credibility is impugned, that an expert’s opinion, as to what may or may not have
occurred, can persuade a court to his or her view; and e) that this can only occur
where the expert witness can assist the court to reach a conclusion on matters on
which the court itself does not have the necessary knowledge to decide. Here it is not
the mere opinion of the witness which is decisive but his/her ability to satisfy the court
that, because of his/her special skill, training or experience, the reasons for the
opinion, which he expresses, are acceptable.Negligence - Action for damages - Proof
of negligence - Res ipsa loquitur principle - Application of as a factor from which the
inference of negligence could be drawn – First defendant having crossed into the
incorrect lane there colliding with the plaintiff’s truck and trailer combination in the
plaintiff’s lane of travel – the application of principle gave rise to the inference of the
causative negligence on part of first defendant for the collision and the resultant
damages - The court thus finding that the plaintiff had discharged its onus of proof
and proved its case on a balance of probabilities.Negligence - What constitutes -
Motor vehicle accident – First defendant after being blinded by the headlights of
oncoming vehicle(s) crossed into the incorrect lane there colliding with the plaintiff’s
truck and trailer combination in the plaintiff’s lane of travel – Court in applying section
1 of the Apportionment of Damages Act, apportioning the respective degrees of
negligence of the involved driver’s in favour of the plaintiff on a 90% to 10% ratio.
Taranah Logistics CC v Super Cool Trading CC (I 2382/2015) [2018] NAHCMD 62
(22 March 2018)

Negligence – Motor vehicle in a stream of traffic colliding with motor vehicle

travelling ahead which has not stopped suddenly is res ipsa liquitur – Where res ipsa
liquitur applies there is presumption that the event is caused by negligence on the
part of defendant and plaintiff succeeds unless defendant can rebut this presumption.
Barkway v South Wales Transport Co [1948] 2 All ER 460 applied. Dausab v
Hedimund (HC-MD-CIV-ACT-DEL-2016/02446) [2018] NAHCMD 99 (19 April 2018)
 44

Motor vehicle accident. Negligence. Different and mutually destructive versions.

Van Wyk v Chibueze (I 755/2016) [2018] NAHCMD 305
(26 September 2018)

PRESCRIPTION

Banking — Relationship between bank and client — Rights of bank in respect of

money in customer's account – Due to the unique and multifaceted contractual
relationship between the banking institution, prescription would not begin to run at the
time of making a deposit — Inactivity in an Post Office Savings Bank account for
three years would not cause it to prescribe but rather causes it to become dormant —
Date of the deposit therefore not the determining factor in when the debt became due
— The determining factor in deciding if the claim has prescribed or not is in respect of
when demand was made for the payment thereof. Negonga v Nampost Limited (HC-
MD-CIV-ACT-OTH-2017/01174) [2018] NAHCMD 212 (13 July 2018).

Prescription ‒ Interruption of prescription ‒ Summons issued in 2015 ‒ Matter not

prosecuted to finality ‒ Action removed from the roll on 25 October 2015 and not re-
enrolled since – Plaintiff subsequently serving fresh summons on the Defendant on
02 March 2017 ‒ Whether the year 2015 summons interrupted the running of
prescription ‒ Court holding that the Plaintiff’s claim has prescribed. Nangolo v Imene
(HC-MD-CIV-ACT-CON-2016/03515) [2018] NAHCMD 109 (20 April 2018)
Prescription - Extinctive prescription - Interruption of - By service of summons -
Act 68 of 1969 s 15 (1) - Lapsing of such interruption in terms of s 15 (2) - Failure by
plaintiff to 'successfully prosecute his claim under the process in question to final
judgment'. Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018)

Prescription – Section 13(1) of the Prescription Act, Act 68 of 1969. Sky Dancer CC
v Windhoek Flight Training Centre (I 1238/2016) [2018] NAHCMD 138 (14 May 2018)

Prescription - Extinctive prescription — Running of — Prescription beginning to

run not necessarily when debt arose, but when it became due. Prescription —
Extinctive prescription — Commencement — Knowledge of debt — Debt due when
creditor has 'knowledge of . . . facts from which . . . debt arises —'Meaning of ‘debt’.
Negonga v Nampost Limited (HC-MD-CIV-ACT-OTH-2017/01174) [2018] NAHCMD
212 (13 July 2018)

Prescription ‒ Special plea ‒ Prescription ‒ Plaintiff claiming proceeds from sale of

immovable property ‒ Immovable property was ordered to be transferred to the
Plaintiff in terms of a Final Order of Divorce ‒ Plaintiff and Defendant agreeing that
immovable property be sold and proceeds be paid to Plaintiff after settlement of the
mortgage bond amounts on the property ‒ Defendant alleging that Plaintiff’s debt has
prescribed ‒ Court holding that the debt originates from a court order and has
 45

therefore not prescribed. Olivier v Olivier (I 1784/2016) [2018] NAHCMD 223 (20 July
2018)

Special plea – prescription – In order for a party to succeed under the Prescription
Act 68 of 1969, it should show that there was (a) an obligation which is against him;
(b) performance must be due; and (c) must be or is deemed to have been aware of
the nature of the contract. Mora is in three categories, thus: (a) Mora ex lege, that is
arising out of the operation of law; (b) Mora ex re, arising from the contract itself; and
(c) Mora ex persona, performance expected within a reasonable time. A letter of
demand is not a legal process and therefore does not interrupt the running of the
prescription period - Where the debtor is in mora ex re there is no need for the
plaintiff to write a letter of demand. Special plea upheld. Mbelle Panel Beaters &
Transport CC v Willemse (HC-NLD-CIVACT-OTH-2017/00119) [2018] NAHCNLD 21
(12 March 2018)

PROPERTY LAW

Compensation – Where the State has expropriated land and given it to a local
authority it is the local authority which is then bestowed with the right to protect,
develop and further alienate it as per its mandate by the State. A former occupier of a
piece of land which has been acquired by a local authority has no right to remain on it
on the basis that he has not been compensated. Compensation is a separate legal
process. Application is granted. Ongwediva Town Council v Jonas (HC-NLD-CIV-
MOT-GEN-2018/00001) [2018] NAHCNLD 22 (12 March 2018)

Ejectment — Action for ejectment — Necessary averments — Plaintiff need only

allege ownership of property and occupation thereof by defendant — Onus on
defendant to prove lawful occupation. Kavezeri v Kavezeri (HC-MD-CIV-ACT-OTH-
2016/02421) [2018] NAHCMD 205 (06 July 2018)

Execution – Valuation of the immovable property – Valuation certificate by a

valuator not tendered under oath, not admissible evidence to prove the value of a
property – Law of Evidence – Rule 110(9) – Sworn valuation only to be tendered in
the absence of regional or municipal valuation. Beukes v First National Bank Limited
(HC-MD-CIV-MOT-GEN-2017/00235) [2018] NAHCMD 94 (13 April 2018)

Fencing Proclamation 1921 – jurisdiction of the High Court – Jurisdiction of the

High Court to adjudicate a dispute originating from the Fencing Proclamation 1921.
Dividing fence constituting the give-and-take dividing line and boundary fence
between two neighbouring farms. Nature and effect of a prior agreement in terms
whereof a give-and-take dividing line was agreed between two former landowners of
neighbouring farms. Redecker v Tjipueja (A 15/2016) [2018] NAHCMD 264
(31 August 2018)
 46

Land – Section 17 (as amended by Act 1 of 2014) of Agricultural (Commercial)

Land Reform Act, Act 6 of 1995 (‘the Act’) – Statutory obligation of the deputy-
sheriff to offer the judicially attached agricultural commercial land to the State – The
Minister’s statutory obligations – Agreement concluded subsequent to the sale in
execution not null and void but simply unenforceable pending the State exercising its
preferent right in terms of section 17 of the Act or the Minister issuing a certificate of
waiver. PDS Holdings (BVI) Ltd v Minister of Land Reform (HC-MD-CIV-MOT-GEN-
2017/00163) [2018] NAHCMD 129 (16 May 2018)

Law of Property – ownership of immovable property – bona fide possession of

property – eviction – whether the plaintiffs made out a case for ownership of the
property in question and are as such entitled to an order for eviction at the close of
their case. The Board of Incorporators of The African Episcopal Church v Kooper (I
3244/2014) [2018] NAHCMD 5 (24 January 2018)
Local Authorities – Where government has gazetted land and delegated its
authority to a local authority, it is the local authority which has a right to distribute or
alienate the said land. Where the local authority has sold the property to a third party
and the previous owner or occupier has not been compensated the said previous
owner’s recourse for a remedy lies in suing the local authority and not the new owner
or a third party as the new owner/third party has no contract with him/her. Stantoll
Properties CC v Johannes (HC-NLD-CIV-MOT-GEN-2018/00005) [2018] NAHCNLD
23 (7 March 2018)

Rule 108 – opposition – Ruling in terms of PD 61 – Mungunda v Barth (HC-MD-CIV-

ACT-CON-2016/02493) [2018] NAHCMD 66 (14 March 2018)

Valuation Court – the applicants, as land owners and consequently liable to pay
land tax to be levied based on the alleged flawed and defective Valuation Roll, have a
prima facie right to demand that the Valuation Roll is free of defects before they can
be assessed for payment of land tax. Traupe Farming CC & Another v The President
of the Valuation Court (HC-MD-CIV-MOT-GEN-2017/00459) [2018] NAHCMD 68 (21
February 2018)

RECISSION OF JUDGMENT/ORDER

Application for rescission of an order – Rule 66(3) – the duties of a respondent

desirous of opposing an application – whether it is permissible for a respondent to file
both an answering affidavit and also raise points in limine. Whether a judge is at large
to overturn a judgment or order of a judge of co-ordinate jurisdiction. Christian v
Namibia Financial Institutions Supervisory Authority (A 244/2010) [2018] NAHCMD
19 (8 February 2018)
 47

Civil Practice – Default Judgment – Application for rescission of judgment –

Requirements for rescission of judgment – Reasonable explanation for default, that
application bona fide and bona fide defence – Applicant for rescission required to
make out prima facie defence – Need not fully set out merits. Andrico Investments
Number Sixty Five CC v Welwitschia Family Clinic CC (HC-MD-CIV-ACT-CON-
2017/00734) [2018] NAHCMD 112 (23 April 2018); Shityeni v Shityeni (HC-MD-CIV-
MOT-GEN-2017/00127) [2018] NAHCMD 88 (12 April 2018)

Default judgment set aside – Where in a matter, default judgment is granted in

respect of a counterclaim by defendant which renders the main action academic, but
where plaintiff on the papers has established a prima facie case, the court is entitled
to revisit the default judgment order in terms of rule 103 (1)(c) of the Rules of Court
and set aside such order. Shipo v Erastus (HC-NLD-CIV-ACT-OTH-2017/00179)
[2018] NAHCNLD 36 (16 April 2018)

Rules of Court – rescission of judgment in terms of Rule 103 – requirements

thereof – whether the court, in determining the applicability of rule 103, is confined to
the record of proceedings. Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-
CIV-MOT-GEN -2018/00062 [2018] NAHCMD 97 (17 April 2018)

REVIEW

Administrative law – Review - Setting aside of award of tender - Consequences -

Such to be fully considered – Interest of all parties to be considered. Tjirovi v Minister
for Land and Resettlement (HC-MD-CIV-MOT-REV-2017/00086) [2018] NAHCMD
56 (19 March 2017)

Civil Procedure – Review – Rule 76 - production of record in review proceedings –

pending criminal case in the Magistrate’s Court – applicant charged in terms of
Prevention of Organized Crimes Act – procedure of production of record governed by
Rule 76 – Record in this case constituting “docket” – record only to be produced after
the finalisation of investigations in criminal proceedings. Julius v The Prosecutor-
General of the Republic of Namibia (2017/00355) [2018] NAHCMD 75 (29 March
2018)

Review — Delay in instituting review proceedings — Whether delay was

unreasonable — Appellant launching review proceedings seven months after he
became aware of the decision to recognise a leader of a traditional community — the
explanation given — negatives unreasonable delay. Kapika v Minister of Urban and
Rural Development (HC-MD-CIV-MOT-REV-2016/00331) [2018] NAHCMD 51 (9
March 2018)
 48

Review — Delay in instituting review proceedings — The appellant offers no

reasonable explanation as to the delay- In instant case delay of seven years and six
months held to be unreasonable – condonation refused – a consideration of the
merits not warranted due to the egregious delay - Review is dismissed. Kandando v
Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-2017/00353) [2018]
NAHCMD 287 (3 May 2018)

Review – Tender – Application to review decision of the first and/or third or fifth
respondents taken on 13 February 2017 cancelling the appointment of first applicant
for tender No: 11/09/2016 – Whether decision to cancel the award was taken by the
wrong person who did not have the power to do so and therefore ultra vires and
unlawful – Whether in awarding the tender it was done in compliance with the
statutory requirements – Whether the tender was validly cancelled or whether the
sixth respondent through its agent’s was estopped from cancelling the award of the
tender – Court held – Doctrine of estoppel cannot be used to give effect to what is not
permitted or recognized by law – The provisions of section 17 of the State Finance
Act, 1991, as well as section 37(2) of the Regional Councils Act, 1992 had not been
complied with prior to awarding tender number 11/09/2016 by the fifth respondent to
the first applicant – Accordingly the awarding of the tender was unlawful, null and
void and is set aside. Babyface Civils CC JV Hennimma Investments v //Karas
Regional Council (HC-MD-CIV-MOT-REV-2017/00097) [2018] NAHCMD 29 (7
February 2018)

Review – whether the applicant is entitled to be served with a copy of the application
for review – hearing – the applicant had a right to be afforded a proper opportunity to
present its case in relation to the application for review – whether the applicant is
required to consult the Policy Unit in relation to the appointment of members of its
evaluation committee – Meaning of ‘consultation’ and ‘after consultation and with’ –
Standstill period in respect of applications for review. The Central Procurement Board
v Nangolo N.O. (HC-MD-CIV-MOT-REV-2017/00441) [2018] NAHCMD 357 (9
November 2018)

Practice – Review application – Applicant seeking from court an order to declare

billboards erected by the second respondent unlawful – And be broken up –
Application for review dismissed with costs. Continental Outdoor Media (Pty) Ltd v
The Municipal Council for the City of Windhoek (A 421/2013) [2018) NAHCMD 187
(26 June 2018)

REI VINDICATIO

Vindication ― Rei vindicatio ― Requirements of ― Plaintiff must prove ownership of

thing ― Plaintiff must also prove that defendant in possession of thing ― Court held
 49

that on the evidence plaintiff proved his ownership of equipment he had purchased
from a third party ― Consequently, court ordered defendants to deliver the
equipment to plaintiff. Horn v Horn (I 615/2016) [2018] NAHCMD 3 (23 January
2018)

STATUTORY INTERPRETATION

Labour law – Unfair dismissal in terms of the Police Act 19 of 1990, s 18 –

Failure to follow procedure prescribed by Act 19 of 1990 – Court finding that second
defendant acted unfairly for not complying with requirements prescribed by the Act in
violation of art 18 of the Namibian Constitution – However, court finding that
defendants had good reason to dismiss plaintiff – Defendants therefore acted
reasonably on that score – In award of appropriate monetary compensation court
considered factors courts and tribunals ought to take into account. Herero v The
Minister of Safety and Security (HC-MD-CIV-ACT-CON-2016/02751) [2018]
NAHCMD 382 (29 November 2018)

Statute – Rule of court, rule 119(1) – Interpretation of – Rule providing time limit
within which notice of appeal in terms of Act 7 of 2007 be delivered – Notice of
appeal against decision of Minister made in terms of that Act – Court held that the
critical date from which one ought to calculate the rule 119(1) time limit is the date on
which a party received or could reasonably have received the decision and not the
date on which the decision in question was made. Auas Valley Residents Association
v Minister of Environment & Tourism (HC-MD-CIV-APP-ATL-2018/00003) [2018]
NAHCMD 267 (4 September 2018)

Statute — Interpretation of – s 38 of the Value Added Tax Act 10 of 2000 and section
71 of the Income Tax Act 24 of 1981. Stuttafords Stores Namibia (Pty) Ltd v
Commissioner of Inland Revenue (HC-MD-CIV-CON-2017/01798) [2018] NAHCMD
203 (4 July 2018)

Legislation – Procurement Act No. 15 of 2015 – award of tenders – transitional

provisions and whether the award in this case falls to be done in terms of the
repealed Act or the new Act. The Central Procurement Board v Nangolo N.O. (HC-
MD-CIV-MOT-REV-2017/00441) [2018] NAHCMD 357 (9 November 2018)

SUMMARY JUDGMENT

Civil Practice – Application and Motions – Summary Judgment – Opposition to —

Requirements in terms of Rule 60 of the High Court rules — Respondent required to
show and satisfy court that he/she had bona fide defence to claim — Material facts
upon which defence based must be disclosed with sufficient particularity and
completeness to enable court to decide whether bona fide defence disclosed — Not
 50

required to disclose all details as would be case in trial proceedings. Zone Four
Electrical Contractors CC v The Kunene Regional Council (HC-MD-CIV-ACT-CON-
2017/02972) [2018] NAHCMD 111 (26 April 2018)

Civil Procedure – Summary judgment Application – Rule 60 – whether the

defendants have a triable defence – defence of duress alleged – discrepancies
alleged in respect of acknowledgment of debt signed – discrepancies in respect of
claimed amounts by plaintiff – Court found there to be a triable defence – Summary
Judgment Application refused. Miranda Tyre Service (Pty) Ltd v Jin Casings and Tyre
Supplies CC (HC-MD-CIV-ACT-CON-2017/03179) [2018] NAHCMD 247 (10 August
2018)

Civil Procedure ‒ Application for summary judgment. Bank Windhoek Ltd v Shiimi
(HC-MD-CIV-ACT-CON-2017/04027 [2018] NAHCMD 352 (1 November 2018)

Practice — Judgments and orders — Summary judgment — Bona Fide defence —

Defendant must satisfy the court that he has a bona fide defence — Defendant must
depose to facts which, if true, would establish a defence — Defendant must disclose
facts upon which defence was based — Court must be satisfied that defendant has a
good defence in law — Defendant must make a full disclosure so that the court is
apprised of all relevant facts. Practice - Judgments and orders - Summary judgment
- Stringent remedy - Should only be granted if clear that plaintiff has unanswerable
case - Court having discretion to refuse summary judgment even if defendant not
sufficiently complying with requirements of Rule 60(5) of Rules of Court. Air Liquide
Namibia (Pty) Ltd v Afrinam Investments (Pty) Ltd (HC-MD-CIV-ACT-CON-
2017/03356) [2018] NAHCMD 123 (11 May 2018)

Practice — Judgments and orders — Summary judgment — Interlocutory application

— Compliance with High Court Rules — Rule 32 (9) and (10) peremptory for all
interlocutory applications. Practice - Judgments and orders — Summary judgment —
Bona fide defence — What constitutes — Respondent should set out defence so as
to constitute bona fides — Bald and sketchy statements not amounting to bona fide
defence — Respondent not bearing onus — However, had to satisfy Court that had
bona fide defence. Standard Bank Namibia Limited v Nekwaya (HC-MD-CIV-ACT-
CON-2017/01164) [2018] NAHCMD 172 (15 June 2018)

Practice — Judgments and orders — Summary judgment — Opposition to —

Requirements — Respondent required to show and satisfy court that he/she had
bona fide defence to claim — Material facts upon which defence based must be
disclosed with sufficient particularity and completeness to enable court to decide
whether bona fide defence disclosed — Not required to disclose all details as would
be case in trial proceedings. Africa Today Building Enterprise Close Corporation vs
Amupolo Building Construction (HC-MD-CIV-ACT-CON-2017/04545) [2018]
NAHCMD 218 (13 July 2018)
 51

Summary judgment — A party is entitled to a summary judgment where it is in

possession of a liquid document. – Defendant can succeed in opposing the
application if it can prove that it has an arguable case and a bona fide defence on the
merits. – when both parties are culpable with regards to non-compliance with the
rules – no one party can insist that the other party be penalised while it is let to go
scot free. Both parties non-compliance should be excused. Uutoni v Freedom Square
Investments Twenty Four CC (HC NLD-CIV-ACT-CON-2017/00253) [2018]
NAHCNLD 51 (11 June 2018)

Summary judgment ― In a summary judgment application where respondent

opposes the application and shows that there are disputes of facts the court
should not grant the application but allow the mater to proceed to trial. The court
should bear in mind that the majority of people in Namibia are indigent and do not
fully understand legal principles. They should accord them sufficient time for them
to understand. Ongwediva Town Council v Kavili (HC-NLD-CIV-ACT-DEL-
2017/00228) [2018] NAHCNLD 35 (16 April 2018); Zone Four Electrical
Contractors CC v The Kunene Regional Council (HC-MD-CIV-ACT-CON-
2017/02972) [2018] NAHCMD 111 (26 April 2018); Dausab v Minister of Safety
and Security (HC-MD-CIV-ACT-OTH-2017/02170 [2018] NAHCMD 92 (06 March
2018)

TAXATION

Costs – Taxation – Taxing Officer’s disallowance of fees and certain items of

disbursements charged by a lay litigant representing himself – Case stated by the
Taxing Officer in terms of rule 75(1) of the rules of court – Principles on costs
awarded to a lay litigant, enunciated in Nationwide Detectives & Professional
Practitioners CC v Standard Bank of Namibia Limited 2007 (2) NR 592 (HC) and
Nationwide Detectives CC v Standard Bank of Namibia Limited 2008 (1) NR 290 (SC)
followed. Kamwi v Standard Bank Namibia Limited (A 101/2011) [2018] NAHCMD
196 (29 June 2018)

Rule 32(11). Meaning of. Rule 75(1) review. Tjoklits Investments CC v Aquarius
Investments No. 191 CC
(I 1569/2013) [2018] NAHCMD 322 (15 October 2018)

Revenue — Income tax — Assessment — First defendant objecting to tax

assessment made by plaintiff’s income for the year 2002 – Plaintiff’s objection
misplaced at the said offices, the objection was never considered by the second
defendant as envisaged by s 71 of the Income Tax Act and plaintiff was never
informed of the outcome of the objection. Stuttafords Stores Namibia (Pty) Ltd v
Commissioner of Inland Revenue (HC-MD-CIV-CON-2017/01798) [2018] NAHCMD
203 (4 July 2018)
 52

Revenue – Income Tax – meaning of ‘manufacturing activity’ in Income Tax Act

24 of 1981, s 1 – Words given wide meaning – The essence of manufacturing is that
what is made shall be a different thing from that out of which it is made – Therefore
‘manufacturing activity’ involves final product being made either manually and /or
mechanically or by way of other process – Act 24 of 1981 laying down that degree of
‘transformation’ required that process of ‘physical’ or ‘chemical’ transformation of
materials should result in a ‘new product’ – Throw-away slag transformed by
chemical process into economically valuable and saleable crushed matte and white-
metal – Court concluding that process in applicant’s operation amounts to
manufacturing activity within meaning of s 1 of Act 24 of 1981 – First respondent’s
misinterpretation of s 1 constituting reviewable error of law – First respondent’s
decision did not accordingly comply with requirement of relevant legislation and
therefore unlawful and invalid – Court finding further that first respondent taking a
decision in terms of s 5A(3) of Act 21 of 1981 without ‘concurrence’ of 3 rd respondent,
abrogated art. 18 of the Namibian Constitution for failure to comply with requirement
of relevant legislation – Such decision being unlawful and invalid – Accordingly
decision based on s 1 and decision based on s 5A reviewed and set aside – 1 st
respondent accepting holus bolus 2nd respondent’s misinterpretation of s 1 of Act 24
of 1981 there was no justification to refer the matter back to 1 st respondent to
reconsider it – Consequently court granted a declaration. Tcims Industrial (Namibia)
(Pty) LTD v Minister of Finance (HC-MD-CIV-MOT-REV-2017/00448) [2018]
NAHCMD 188 (28 June 2018)

URGENT APPLICATIONS

Civil Procedure – urgent application – requirements to be met; locus standi to

bring an application in terms of s. 260 of the Companies Act, 2004 – temporary
interdict – requirements to be met by applicant therefor.Van Zyl (Snr) v Namibia
Affirmative Management and Business (Pty) Ltd (HC-MD-CIV-MOT-GEN-
2018/00337) [2018] NAHCMD 350 (5 November 2018)

Urgent Application - Criminal Procedure – procedure – search, seizure and

attachment of property in terms of s. 23 of the Anti-Corruption Act – legality of search,
seizure and attachment without a warrant – grounds for search, search and
attachment without a warrant – reasonable suspicion – what constitutes reasonable
suspicion. Civil Procedure - Necessity of person who conducts the search, seizure
and attachment of property to depose to affidavit regarding the issues that persuaded
him or her to act in terms of the Act without a warrant. Applicability of Rule 32 (9) and
(10) of the High Court Rules to urgent applications. New Force Logistics CC v The
Anti-Corruption Commission (HC-MD-CIV-MOT-GEN-2018/00018) [2018] NAHCMD
28 (14 February 2018); Traupe Farming CC & Another v The President of the
Valuation Court (HC-MD-CIV-MOT-GEN-2017/00459) [2018] NAHCMD 68 (21
February 2018)
 53

Urgent application for release of money seized from applicant pursuant to acquittal
after a criminal trial – Civil procedure – jurisdiction – whether it is proper for the High
Court to grant an order compelling compliance with the order of a lower court - Rules
of Court – Rule 73 – Urgency – Rule 32 (9) and (10) – attempt to resolve matter
amicably not followed – Rule 41 – application for intervention – application to
managing judge on notice to other parties – attachment of counter-application as
annexure to answering affidavit – effect thereof. Contempt of court – whether proved.
Rashed v The Inspector-General of the Namibian Police (HC-MD-CIV-MOT-GEN-
2018/00130) [2018] NAHCMD 165 (13 June 2018)

Urgent Application – restore the undisturbed possession and occupation – Purros

Conservancy Committee v Uaraavi (HC-MD-CIV-MOT-GEN-2018/00204) [2018]
NAHCMD 231 (19 July 2018)
 54

CASE SUMMARIES

Africa Today Building Enterprise Close Corporation vs Amupolo Building

Construction (HC-MD-CIV-ACT-CON-2017/04545) [2018] NAHCMD 218 (13 July
2018)

Summary: The parties entered into an agreement wherein the plaintiff was appointed
as a domestic subcontractor for purposes of cutting and filling for construction of a
platform for the new ante-natal maternity ward of the Onandjokwe State Hospital.

The plaintiff complied with the terms of the agreement and duly invoiced the
defendant for the services rendered. However, the defendant allegedly failed to make
payment to the plaintiff for services rendered. The defendant, (represented by Ms.
Rachel Gabriel, in her capacity as director of the defendant) at a later stage drew up
at her special instance an acknowledgement of debt wherein she acknowledged
defendant being indebted to the plaintiff in the amount of N$ 530,177.98 (Five
hundred and thirty thousand one hundred and seventy seven Namibian Dollars and
ninety eight cents) for services rendered. The payment terms of the
acknowledgement of debt were that the defendant would affect payment to the
plaintiff no later than 31 July 2017.

Based on the agreement and the acknowledgment of debt by the defendant, the
plaintiff pursued an application for summary judgment, which the defendant opposed
on the following grounds, being that the summons is excipiable, the citation of the
defendant differs materially on the combined summons and the particulars of claim,
the quotation which doubles as an agreement between the parties is not signed by
the plaintiff, annexure A to the particulars of claim, i.e. the acknowledgment of debt
does not comply with s. 12 of the Stamp Duties Act as it was not stamped, the
interest clause of the prayers of the particulars of claim does not indicated how the
20% interest shall be calculated, the plaintiff must choose its remedies as the plaintiff
attached an agreement as basis for its claim for damages suffered and then proceed
to claim same amount in terms of the acknowledgment of debt also attached to
particulars of claim. As on the merits, the defendant further submitted without much
detail that it had a bona fide defence against the plaintiff’s application for summary
judgment.

Held – It is trite that opposing affidavit has to contain a sufficient exposition of the
facts which, if they were later to be proven and accepted by the trial court as true,
would constitute a good defence in law.

Held – with respect to the argument on the description of the defendant, it is

sufficiently clear who the plaintiffs’ intended to sue as the defendant and, this
 55

approach by the defendant is overly technical and is not conducive to having real
issues between the litigants decided in as speedy and cost effective manner as
possible.

Held further – If the contract does not include an express or tacit statement of the
date when payment is due, a demand for payment within a reasonable time must be
sent before interest starts accumulating. Summons in this instance would constitute
demand.

Held further that – If the claim is based on a liquid document but the plaintiff omits to
attach it to the summons, the application will be defective and summary judgment can
as a result not be entered. However, should the liquid document relied upon be
attached to the summons, the omission to again superfluously attach it to the
summary judgment application cannot prejudice the defendant and is accordingly not
fatal to the application.

Air Liquide Namibia (Pty) Ltd v Afrinam Investments (Pty) Ltd (HC-MD-CIV-ACT-
CON-2017/03356) [2018] NAHCMD 123 (11 May 2018)

Summary: Applicant applied for summary judgment against the first and second
respondents on an alleged written agreement for the sale of gas and lease of gas
cylinders. Both first and second defendants entered notice to defend the plaintiff’s
claim. In support of the application for summary judgment the plaintiff filed an affidavit
verifying the indebtedness of first defendant to the plaintiff in the amount of the claim
and that the defendants have no bona fide defence to the action and they delivered the
intention to defend solely for the purpose of delay.

Plaintiff alleges the second respondent bound himself as surety and co-principle
debtor with the first defendant for the due performance of any obligation of the first
defendant and for the due payment of the plaintiff by the first defendant of any amount
which may become owing to the plaintiff by the first defendant. The plaintiff also set out
the terms of the alleged written surety agreement. The defendants filed an opposing
affidavit setting out the basis of their defence.

Held that summary judgment is a very stringent and final remedy which closes the
doors of the Court for a defendant and should be granted only if it is clear that the
plaintiff has an unanswerable case.

Held further that it has often been stated by the Courts that, even if the defence of the
defendant does not sufficiently comply with the requirements of Rule 60(5) of the
Rules of Court, the Court still has a discretion to refuse summary judgment.
 56

Akwenye v Akwenye (HC-MD-CIV-MOT-GEN-2018/00025) [2018] NAHCMD 347

(31 October 2018)

Summary: Civil Practice – The intervening respondent applied for leave to

intervene in the proceedings related to the properties in which they had direct and
substantial interest – The applicant did not oppose the respective applications –
Thereafter the applicant abandoned part of the order relating to the intervening
respondents’ properties – In an application for an order by the intervening
respondents directing the applicant to pay their wasted costs.

Court held – Where an application or action is withdrawn, an intervening party should

demonstrate that he would have been entitled to intervene and in doing so, had
incurred costs which became wasted by virtue of the applicant’s decision to withdraw
the application.

Held further – Where a litigant withdraws an action or an application, there should

exist very sound reasons why a respondent should not be entitled to his or her costs.
An applicant who withdraws or abandons his or her application is in the same position
as an unsuccessful litigant. This is, because his or her application is futile and the
respondent, is entitled to all costs associated with the withdrawing plaintiff's or
applicant's institution of proceedings.

Court held – In casu there were no exceptional grounds or facts justifying the court to
depart from the normal rule to order the applicant to compensate the intervening
respondents in respect of their wasted costs. Accordingly, the applicant was ordered
to pay the intervening respondents’ wasted costs.

Akwenye v Amadhila (HC-MD-CIV-ACT-CON-2017/02946) [2018] NAHCMD 114

(27 April 2018)

Summary: The plaintiff instituted action against the defendant for a claim in terms of
an oral agreement wherein the defendant agreed to sell the plaintiff immovable
property on condition that the plaintiff was to pay an amount to Nedbank Namibia
Limited. The plaintiff allegedly performed as per the agreement and the defendant
failed by breaching the terms of the agreement in allegedly failing and refusing to give
transfer of the property into the plaintiff’s name, despite demand. The defendant
defended the action and the matter was resultantly allocated to a managing judge.

The plaintiff submits that the defendant has made no factual allegations whatsoever
on whether she has any defence to the plaintiff’s claim and no defence whatsoever is
disclosed. The plaintiff’s legal practitioner further submits that the court cannot in the
 57

circumstances, exercise its discretion in favour of the defendant, considering the

deficiency and defectiveness of the application. In the absence of such facts and
evidence relevant to the prospects of success and any defence, the condonation
application is fatally defective and stands to be dismissed with costs.

The defendant’s legal practitioner further submits that the application made by the
defendant is bona fide and not with a reckless disregard for the court order but rather
with the confidence that the defendant has good prospects of success.

The defendant’s legal practitioner further submits that due to the amount claimed by
the plaintiff is a large amount of money, it would be very harsh, unjust and against the
administration of justice, if the defendant is not awarded the opportunity to bring its
case before the court.

Held – the condonation application and the application for the upliftment of the bar is
interlocutory in nature and falls under the provisions of Rule 32 and the Rule 32(9)
and (10).

Held – that non-compliance with process in terms of particularly Rule 32(9) renders
an interlocutory application defective and such an application stands to be struck
from the roll.
Held further – In the absence of the facts and evidence relevant to the prospects of
success and any defences, the condonation application is fatally defective and stands
to be dismissed.

Akwenye v Amadhila (HC-MD-CIV-ACT-CON-2017/02946) [2018] NAHCMD 252

(21 August 2018)

Summary: The parties entered into an agreement in which the defendant breached
the terms thereof and the plaintiff ensued to seek relief in terms of the agreement.
The defendant however opposed the relief sought by the plaintiff.

On 26 October 2017, a case plan was adopted as filed by the parties and the matter
was postponed to 30 November 2017 for a case management conference hearing.
For various reasons advanced by the defendant’s legal practitioners, the plea that
should have been filed as per court order dated 26 October 2017 was not filed. Due
to the defendant’s failure to file her plea, the plaintiff proceeded to file an application
for default judgment against the defendant. The defendant applied for condonation for
her non-compliance with the relevant court order which was opposed by the plaintiff.
The parties then proceeded with filing papers and this court’s ruling dated 27 April
2018 refused condonation for defendant’s non-compliance, rendering the defendant
being barred ipso facto from partaking in court proceedings.
 58

In a last resort attempt, the defendant filed a Rule 64 notice with an unconditional
tender to settle the claim of the plaintiff. The defendant offered an amount of N$
769,334.87 to the plaintiff in full and final settlement of the claim against the
defendant. Furthermore, the defendant filed a status report indicating to this court she
gave the plaintiff a Rule 64 notice in which the plaintiff failed to respond to.

During submissions, the defendant was of the view that the court should take
cognizance on the fact that the defendant made a bona fide offer on the alternative
prayers to the plaintiff’s claim, and submitted that the defendant should not be further
sanctioned under the circumstances in the court’s refusal for the plaintiff to accept
offer made on the alternative claim.

The plaintiff, however, of the view that defendant was ipso facto barred from pleading
as the condonation application incorporating the upliftment of the bar was denied. As
a result, the defendant must appeal against this judgment and have it properly
prosecuted. The plaintiff was furthermore of the view that in light of the offer made on
the plaintiff’s alternative prayers, such would only be introduced if, and only when the
court ruled upon the unenforceability of the alleged cancellation of the agreement in
favor of the defendant, and seeing that the defendant is ipso facto barred from
pleading, her defence is not before this court and therefor the plaintiff’s claim stands
unchallenged.

Held – It is important to understand that the plaintiff is not obliged to accept the
offer/tender and if the plaintiff does not accept the tender the action proceeds in the
normal way. Failure to accept an unconditional tender by a plaintiff can be to his or
her own peril when the issue of cost is considered.

Held further – the rule 64 notice made by the defendant falls short of the requirement
of rule 64 in light of the fact that the alternative claim by the plaintiff relied on by the
defendant is not the main relief sought by the plaintiff.

Andrico Investments Number Sixty Five CC v Welwitschia Family Clinic CC

(HC-MD-CIV-ACT-CON-2017/00734) [2018] NAHCMD 112 (23 April 2018)

Summary: The respondent issued a combined summons which was served at the
domicilium address of the applicant as per the agreement of lease entered into with
the plaintiff. On 6 April 2017 the respondent obtained default judgment against the
applicant.

The applicant submitted that it only became aware of the default judgment against it
when the Deputy Sherriff arrived at units 84, 328, 329, 330 and 331 of the Auas Hill
Medical Centre on 08 May 2017 with a warrant of execution that was issued on 12
April 2017. A warrant of ejectment issued on 19 April 2017 was also served on the
 59

applicant. Upon gaining knowledge of the judgment, the applicant filed a rescission
application to which the respondent opposed.

The respondent was of the view that the the combined summons with reference to
the default judgment application was served at the correct domicillium address as
elected by the applicant in the lease agreement and as a result, has no proper
explanation for having defaulted in entering an appearance to defend the default
judgment proceedings. The respondent further submits that even if the applicant no
longer resided at the nominated domicillium, the applicant also failed to provide a
notice to the respondent of a change of domicillium if at ever there was in this case.

The applicant was of the view that the respondent cancelled the lease agreement
prematurely by not willing to accept the amount offered by the applicant in payment of
the rent due. The amount offered was according to the applicant in line with the oral
amendment of the lease agreement allegedly agreed to between the applicant and
the respondent and naturally as a result of declining to accept the offer made by the
applicant, the respondent never received the rent due on the leased premises.

The applicant further submits that it was not willful in its failure to defend the action
and neither is the rescission application brought merely to delay the enforcement of
the judgment of the respondent and that it has a bona fide defence against the
plaintiff’s judgment.

Held – as a principle, two essential elements of ‘sufficient cause’ for rescission of

judgment by default are namely that the party seeking relief must present a
reasonable and acceptable explanation for his default and that on the merits such
party has a bone fide defence which, prima facie, carries some prospect of success.

Held – The applicant therefore bears the onus of establishing good cause and the
other requirements in the application to rescind the judgment in terms of Rule 16.

Held – Once the court found that there has been a breach of a material term of the
agreement, the cancellation of the agreement follows by virtue of operation of law
which will entitle the respondent to recover the movable property and money advance
by way of default application.

Ashikoto v Prefered Investment Property Fund (HC-MD-CIV-ACT-DEL-

2016/02898) [2018] NAHCMD 127 (16 May 2018)

Summary: Practice – Absolution – Close of plaintiff’s case – Court applying trite

test – Whether plaintiff has made out a prima facie case upon which a court applying
its mind reasonably could or might find for plaintiff – Court applying its mind
reasonably requires court not to consider the evidence in vacuo but to consider
admissible evidence in relation to the pleadings and requirements of the applicable
 60

law – Parties in these proceedings were parties to a loan facility agreement for
implementation of a project – Defendant (financier) could only reimburse plaintiff for
materials purchased for project – Plaintiff to satisfy defendant he has complied with
conditions before payment could be made – As to claim 5.1 three earlier requests for
reimbursements were satisfied by defendant though the conditions not complied with
– Defendant refusing to make fourth payment on fourth request – Court rejected
plaintiff’s evidence that by paying the three requests defendant had in effect waived
its right to insist on compliance with conditions of the Agreement – Court concluding
that plaintiff could rely on such waiver only if the waiver was specifically pleaded and
proved – In the absence of such specific pleading and such proof court found there
was no such waiver – Regarding payment of claim 5.2 court found that plaintiff failed
to indicate to court what particular invoices from an assortment of invoices supported
plaintiff’s claim – Court found that in respect of claims 5.1 and 5.2 plaintiff did not
make out a prima facie case upon which a court acting reasonably could or might find
for plaintiff – Consequently, court granted absolution from the instance at close of
plaintiff’s case.

Practice – Applications and motions – Interlocutory application – What constitutes –

Court held the test was the nature of the application to the court; and not the nature
of the order which the court made – Court held therefore that application for an order
granting absolution from the instant at the close of plaintiff’s case is not an
interlocutory application – The nature of such application is a decision of the court
determining conclusively the final rights of the parties and bringing the trial to an end
− Plaintiff instituting application for order granting absolution from the instance at
close of plaintiff’s case – Court explaining the final/interlocutory distinction – Relying
on authorities court concluded such application not interlocutory application –
Consequently, court deciding that rule 32 of the rules of court not applicable to
application for grant of absolution from the instance after close of plaintiff’s case.
Asino v Elifas (HC-NLD-CIV-MOT-REV-2017/00011) [2018] NAHCNLD 82 (9
August 2018)

Summary: Applicants launched an application for review of proceedings which took

place under the authority of first respondent which resulted in their dismissal.
Applicants raised an issue about first respondent’s capacity to have made such
decisions and applied that first respondent, (the king) be ordered to appear in court to
give oral evidence about the authorship of his letters and their contents. Held that it
was necessary for him to give oral evidence as this will justify the necessity for a
review or otherwise.

Auas Valley Residents Association v Minister of Environment & Tourism (HC-

MD-CIV-APP-ATL-2018/00003) [2018] NAHCMD 267 (4 September 2018)
 61

Summary: Statute – Rule of court, rule 119(1) – Interpretation of – Rule providing

time limit within which notice of appeal in terms of Act 7 of 2007 be delivered – Notice
of appeal against decision of Minister made in terms of that Act – Second and third
respondents contending in limine that the time limit runs from the date the decision
was made – Minister made his decision on 31 October 2017 but admits he sent to a
wrong address the communication of the decision meant for appellants – Appellants
asserting that they received the decision on 12 February 2018 – Court finding that no
relevant and convincing challenge was put up against appellants’ assertion –
Consequently, on the facts and the probabilities, court accepting appellants’ assertion
that they received the decision on 12 February 2018 as they averred – Accordingly,
court finding that appellants delivered their notice of appeal within the time limit –
Consequently, court rejecting second and third respondents’ point in limine on the
issue.

Appeal – In terms of Act 7 of 2007 against Minister’s decision – Appellants averring

Minister denied appellants audi when he took the decision – Appellants contending
that they had legitimate expectation that Minister would give them fair opportunity to
present oral evidence through themselves and/or their witnesses on top of their
written submission – Respondent contending contrariwise that Act 7 of 2007 does not
provide for presentation of oral evidence and that the appellants written submission
was all that the Minister required in order to decide – Court found that the Act makes
representation through the vehicle of Form 3 that parties who wish to appeal to the
Minister shall be given fair opportunity to present, by themselves or witnesses, oral
evidence before he decided – Court concluded that legitimate expectation arose in
the present case, because there was a statutory ‘representation’ made by Form 3 –
Minister having denied appellants audi the validity of the decision was vitiated and so
could not be allowed to stand – Consequently, this appeal succeeds and the decision
of the Minister is set aside and the matter is remitted to the Minister for him to
reconsider within a reasonable time appellants’ appeal in terms of s 50 of Act 7 of
2007 in accordance with the law.

Autovermietung Savanna CC v Nangolo (HC-MD-CIV-ACT-DEL- 2017/03952)

[2018] NAHCMD 351 (16 October 2018)

Summary: The Defendants applied for condonation for non-compliance with court
orders dated 01 June 2017 and 16 August 2017. It was argued on their behalf that a
filling clerk at the Defendants’ legal practitioner’s office misplaced the file, hence the
delay in filing the plea. However no confirmatory affidavit deposed to by the said filing
clerk was filed. Explanation for the delay in filing the application does not fully cover
the period of delay. Prospects of success not adequately covered.

Held: Application dismissed with costs.

 62

Babyface Civils CC JV Hennimma Investments v // Karas Regional Council (HC-

MD-CIV-MOT-REV-2017/00097) [2018] NAHCMD 29 (7 February 2018)

Summary: The applicants’ brought an application to review and set aside the
decision of the first and/or third or fifth respondent taken on 13 February 2017
cancelling the selection of first applicant for a tender awarded to them – The
applicants contend that the cancellation of the award impinge on their rights to fair
and reasonable administrative actions and that the respondents acted in breach of
the audi alteram partem rule and that failure by the applicants to submit the
guarantee within the stipulated time, the sixth respondent is estopped, by virtue of its
principal agent’s conduct, from denying that it extended the time period for filing the
guarantee and the insurance documents.

The application was opposed and the sixth respondent for the most part pointed out
that the award was conditional subject to the condition that the applicants’ submitted
the guarantee within the required time and that failure by the applicants to submit the
guarantee by 15 December 2016 meant that no rights arose from the conditional
award. The sixth respondent denied that estoppel applied against it through the
Principal Agent and therefore submitted that the applicants’ case be dismissed. In
any event the tender was awarded without prior Treasury’s approval in contravention
of section 17 of State Finance Act, 1991 and section 37(a) of the Regional Council
Act, 1992 and was thus unlawful, null and void.

Court Held: The applicants bear the onus to satisfy the court that the review
grounds raised by them are based on facts and are of such a nature that it is entitled
to the relief sought.

Court held further: The provisions of section 17 of the State Finance Act, 1991, as
well as section 37(2) of the Regional Councils Act, 1992 had not been complied with
prior to awarding tender number 11/09/2016 by the fifth respondent to the first
applicant on 8 December 2016. For the reason that no Treasury approval had been
granted prior to the tender being awarded. It follows therefore the awarding of the
tender was unlawful, null and void and is liable to be set aside.

Bank Windhoek Ltd v Shiimi (HC-MD-CIV-ACT-CON-2017/04027 [2018] NAHCMD

352 (1 November 2018)

Summary: The Plaintiff sued the Defendant for payment of N$ 2,282,088.19 in

respect of monies lent and advanced on basis of a written loan agreement. The
Defendant contended that since the Plaintiff indicates in its particulars of claim that
the amount was initially advanced in terms of the loan agreement was N$
957,243.66, and now the Plaintiff claims N$ 2, 828,088.19, therefore, the amount
 63

being claimed by the Plaintiff is not easily ascertainable and the Plaintiff’s claim does
not fall within the ambit of Rule 60.

Court holding that the amount claimed by the Plaintiff is for a liquidated amount in
money and accordingly resorts within the ambit of summary judgment.
Bargain Building Supplies CC v Van Zyl (HC-MD-CIV-ACT-CON-2017/00049)
[2018] NAHCMD 40 (26 February 2018)

Summary: Parties entered into partly written and partly oral agreement. Plaintiff to
supply material. Defendant to manufacture and erect shed. Erecting of shed agreed
to be on premises of plaintiff. Defendant manufactured the shed but did not erect
same. Remuneration of defendant in the amount of N$60 000 agreed. Defendant did
not comply with agreement and plaintiff cancelled same.

Ben-Tovim v Van Zyl N.O (HC-MD-CIV-MOT-GEN-2016/00315) [2018] NAHCMD

95 (13 April 2018)

Summary: The respondents, as applicants, commenced proceedings in this Court

on 13 October 2016 in terms of which they sought the provisional sequestration of Mr
Ben-Tovim, as respondent in that application, and the placing of his assets in the
hands of the Master of the High Court. On 28 November 2016 Mr. Ben–Tovim gave
notice that he will oppose the applicants’ application. This is an application in terms
of which the court is required to determine an application for security for costs at two
different levels. First, the court is required to determine the issue of the respondents’
liability to pay security for the applicant’s costs. Second, and if the court finds that the
respondents are so liable, the court is required to determine the amount of security
for costs to be paid by the respondents. On 7 November 2017 Mr Ben-Tovim gave
the respondents notice under Rule 59(1) that he requires the respondents to furnish
him with security for costs in the amount of N$ 500 000. He gave his reason for
requiring the respondents to furnish security for costs, being the fact that the
respondents are peregrines of this court. The respondents oppose the applicant’s
application for security of costs on the following grounds: that the application for
security for costs must be dismissed because of the delay in bringing the application.
The respondents furthermore oppose the application on the basis that the application
had been launched for improper purpose, namely to delay the adjudication of the
sequestration application. The third basis on which the respondents urged the court
to dismiss the application for security for costs is the contention by the respondents
that, the amount claimed as security, being the sum of N$ 500 000 is unreasonable
and unsubstantiated.
 64

Held that – Mr. Ben-Tovim is entitled to demand security for his costs, but whether
the Court will order the party from whom security of costs is demanded to provide the
security depends on how the Court will exercise its discretion.

Held that – there is no indication that Mr. Ben–Tovim has waived his right to ask for
security for costs. The respondents have not demonstrated how they are prejudiced
or will be prejudiced by the alleged delayed request for security for costs.

Held further that – the respondents referred to the failure by Ben-Tovim to comply
with certain court orders relating to the filing of his answering affidavits. The delays
were explained and on the basis of the explanation provided, the court condoned his
non-compliance with the court orders. The court is therefore unable to find, as urged
by the respondents’ that the application was brought solely to frustrate or delay the
sequestration application.

Held furthermore – the fact that the amount demanded as security for costs is
unsubstantiated can in the court’s view never be basis for the dismissal of the
application.

Held that – the court has to carry out a balancing act. The court is of the view that the
scale must tilt in favour of Mr Ben-Tovim for the court to order the respondents (the
applicants in the main application for sequestration) to provide Mr. Ben-Tovim with
the security of costs he demands. In his application Ben-Tovim alleges that there is a
probability that if he successfully opposes the sequestration application it may be
difficult, if not impossible, for him to recoup his costs. The respondents do not dispute
this allegation by Mr. Ben-Tovim. The respondents furthermore do not establish that
an order directing them to provide security for costs might well result in them being
unable to pursue the litigation in this Court. Consequently, the court is of the view
that Mr. Ben - Tovim is entitled to demand security for costs from the respondents.

Beukes v First National Bank Limited (HC-MD-CIV-MOT-GEN-2017/00235) [2018]

NAHCMD 94 (13 April 2018)

Summary: In an application to set aside the sale in execution of the applicants’

immovable property, the applicants alleged that the property was sold less than 53.84
per cent of the valuation by a valuator and contrary to the provisions of rule 110(9) of
the rules of the this court. Rule 110(9) stipulates that if a primary home of a person is
being sold in execution, the highest bid must not be less than 75 per cent of the
regional or local authority council or land valuation of the property; and in the
absence of a regional or local authority council or land valuation, not be less than 75
per cent of a sworn valuation.

In order to prove their case, the applicants tendered in evidence a valuation

certificate compiled by a person claiming to be a sworn valuator. The certificate was
 65

simply attached to the founding affidavit by the applicants. No confirmatory or report

by the said valuator was filed.

Held that the valuation certificate constituted inadmissible evidence, in that it was a
bald statement by the valuator, not made under oath and did not contain facts upon
which the conclusion of the value of the property was based.

Held further that even if the certificate was admissible, on a proper interpretation of
rule, the sworn valuation certificate should be an act of last resort and not the first
port of call; that the sworn valuation can only be tendered in the absence of valuation
by the regional or local authority. Accordingly the application was dismissed with
costs.

Bikeur v The Master of the High Court (I 2730-2011) NAHCMD 234 (27 July 2018)

Summary: The plaintiff instituted action against the defendants challenging the
decision by the 1st defendant to appoint the 2nd defendant as the executor of the
estate of the late Hiskia Kaaronda and rejecting the last will and testament of the late
Hiskia Kaaronda on the grounds of a doctor’s letter submitted by the 2 nd defendant
indicating that the late Hiskia Kaaronda suffered from Alzheimer disease.

On 27 March 2003, the late Hiskia made a Will. In the Will, he nominated a certain
Job Ndukireepo as the sole Executor of his estate and bequeathed Erf 2269 Katutura
to the plaintiff. He directed that the residue of his estate devolve according to Herero
Law and Custom. After the death of the late Hiskia on 9 February 2007, the plaintiff
lodged the Will with office of the Master. On 12 July 2007 the Master endorsed on the
Will that she registered the Will but the Will was not accepted because of a letter
dated 12 May 2006, from Dr. Burger. The letter was submitted to the Master by the
second defendant.

After a brief testimony by the second defendant, Ms Gaes for the plaintiff applied for
absolution from the instance. The plaintiff based its application for absolution on the
basis that the second defendant failed to lead admissible evidence that his late father
was suffering from Alzheimer disease, cerib dementia and ostheo arthroses. Ms
Gaes furthermore argued that the second defendant’s failure to call an expert witness
to testify as to the mental state of Hiskia at the time when he made the Will is fatal to
Phillipus case.

Mr Krenz for the second defendant however argued that he led evidence that the late
Hiskia sold his Ford Bakkie for an amount of N$ 1 500, this he submitted is prove of
the fact that Hiskia was not aware of the value of property in his possessions. He
further argued that the late Hiskia mistook his daughter for his late wife and that he
was also forgetful and accused his son of having given him instructions when Hiskia
had not given any instructions at all. Mr Krenz thus submitted that the second
 66

defendant has on a balance of probabilities made out a case that the late Hiskia was
of unsound mind and that the application for absolution from the instance must thus
be dismissed.
Held that the test on absolution is well established in our courts. Moreover, ‘the
phrase 'applying its mind reasonably' requires the Court not to consider the evidence
in vacuo but to consider the admissible evidence in relation to the pleadings and in
relation to the requirements of the law applicable to the particular case.

Held further that our courts have over the years been confronted with disputes relating
to the validity of Wills and the courts have over those years formulated a number of
tests for testamentary capacity. It is apparent that all these tests are an elaboration of
the principles spelt out in s 4 of the Wills Act, 1953.

Held furthermore that there is no admissible evidence on record that Hiskia suffered
from the Alzheimer disease at the time when he made his Will on 27 March 2003.
Furthermore, there is no evidence showing that Hiskia failed to appreciate the nature
and effect of making a will; or that he was at the time unaware of the nature and extent
of his possessions.

Buildhard Services (Pty) Ltd t/a E Hard-Build Centre v Muukua (I 1586/2016)

[2018] NAHCMD 335 (23 October 2018)

Summary: Civil practice, Judgment and orders. The plaintiff sued the defendant
for payment of N$100 000-00 which defendant in a written agreement undertook to
pay the plaintiff. The defendant’s defence is that she was released from her
obligation under the agreement to pay the plaintiff by Mr Siegfried Katjiseua.
However, the Court disagreed and held that the defendant is liable to pay the amount
claimed as Mr Siegfried Katjiseua is not a party to the agreement. Further, the court
granted judgment with costs in favour of the plaintiff.

Caterplus Namibia Pty Ltd t/a Blue Marine Interfish v Hallie Investment 142 CC
t/a Wimpy Maerua (I 3086/2012) [2018] NAHCMD 320 (12 October 2018)

Summary: Defendants brought an application to amend its plea and counterclaim

almost 2 years after filing their second set. Defendants failed to give an explanation
when called to do so. Namibian approach to late amendments require an explanation.

Held, application to amend plea and counterclaim dismissed with costs.

 67

Central Technical Supplies (Geiger) Engineering Services (Pty) Ltd v Khomas

Aluminium and Glass CC & Another (I 2242/2015) [2018] NAHCMD 76 (29 March
2018)
__________________________________________________________________________________

Summary: The plaintiff sued the defendants jointly and severally in respect of a
contract, which was awarded to the 1 st defendant and in which the plaintiff was
appointed as a sub-contractor. Two certificates of payment, were made by the
Ministry of Health, to the 1st defendant in respect of the work done by the plaintiff. The
1st defendant did not immediately pay the money received to the plaintiff in 2011,
when the money was paid to the 1st defendant by the Ministry of Health. In 2015, the
plaintiff instituted action against the defendants claiming payment of the money in
respect of the work it had done. The defendants raised the special plea of
prescription, arguing that the amounts became due in 2011 and that because the
plaintiff lodged its claim in 2015, the claim had prescribed in terms of the provisions of
Prescription Act.

Held – that the time which must be considered, in line with the practice in the
construction industry, is not when the payment certificates were issued by the
Government to the 1st defendant but rather, when the plaintiff got to know that
payment had been made and the plaintiff could issue invoices against the 1 st
defendant.

Held further – that the plaintiff did not know that the 1 st defendant had been paid until
it got information of the said payment from the Engineer to that effect in March 2015.
The plaintiff thereafter issued its invoices, culminating in the issuance of summons in
2015.

Held – that the summons was issued within a period of three years from the time that
the plaintiff became aware of the payment of the claim to the 1 st defendant.

The claim was therefore held not to have prescribed and the defendants’ special plea
was dismissed with costs.

Chombo v Minister of Safety and Security (I 3883/2013) [2018] NAHCMD 37 (20

February 2018)

Summary: Practice – Judgments and orders – Absolution from the instance – In

order to survive absolution plaintiff must place before court evidence upon which a
court, applying its mind reasonably to such evidence, could or might find for the
plaintiff – Court held in that regard authorities and precedents cannot supply evidence
– Court held further that at this stage of close of plaintiff’s case it is inferred that all
the evidence against the defendant are before the court – Court found and held that
at this stage there is no evidence upon which a court, applying its mind reasonably to
 68

such evidence, might find for plaintiff that in instigating or instituting proceedings or in
continuation of the prosecution there was want of reasonable and probable cause on
the part of defendants or that they were actuated by malice – In the result, court
granted absolution from the instance with costs.

Christian v Namibia Financial Institutions Supervisory Authority (A 244/2010)

[2018] NAHCMD 19 (8 February 2018)

Summary: The applicant applied to court for an order setting aside a previous court
order, in terms of which the parties, who had filed answering and replying affidavits,
were ordered to argue certain points of law in limine first. The applicant took issue
and argued that a respondent cannot properly file an answering affidavit and also
raise points in limine at the same time.

Held – there is nothing wrong with a respondent who wishes to oppose an application
to raise both points of law and file an answering affidavit dealing with the issues
raised in an affidavit. The issue will always depend on the peculiarities and nuances
of the case at hand;

Held – that the rules must not be interpreted and applied mechanically or slavishly
but with a view to making them a handmaid of justice and not the mistress.

Held further – that where a party is dissatisfied with an order or judgment of the High
Court, it is in very limited and circumscribed circumstances where the High Court can
rescind or vary its judgment. The ordinary route is for the dissatisfied party to appeal
to the Supreme Court.

Held – that in the peculiar circumstances of this case, no facts or considerations had
been raised that would imbue a judge of the High Court to set aside the order sought
to be impugned.

The application for rescission of the order was thus set aside with costs.

Christian v Namibia Financial Institutions Supervisory Authority (A 244/2010)

[2018] NAHCMD 288 (14 September 2018)

Summary: The applicant had instituted an application in terms of Rule 61 of this

court’s rules, alleging an irregular proceeding in light of a judgment by this
Honourable Court in 2011 in the same matter, specifically order 3 and seeks for the
Honourable to dismiss and/or set aside the judgment of 2011.
 69

This matter has been in the litigant “arena” since 2010. The main application has
been heard in 2011. The applicant seeks to find whatever means necessary to strike
out or set aside the judgment in 2011.

Held that – The applicant’s interpretation of Rule 61 of this Court’s Rules is correct,
however that it does not pertain to this matter as judgment has already been
delivered in 2011.

Held – The application in terms of Rule 61 is hereby dismissed with costs.

CJ’s Service Station CC v Steyn (I 2813/2015) [2018] NAHCMD 275 (6 September

2018)

Summary: The Plaintiff instituted action against the Defendants, former employees
of the Plaintiff, for payment of N$ 2 054 194.37, plus interest and costs. After certain
amendments, the final amount claimed was reduced to N$ 1 006 816.96. The court
held the Defendants liable to pay the amount misappropriated.

Colia Louis Family Trust v Komsberg Farming (Pty) Ltd (in Liquidation) (I
2551/2014) [2018] NAHCMD 9 (29 January 2018)

Summary: Applicant applied for condonation of its failure to comply with a court
order. Rule 54 (3) of the Namibian High Court Rules automatically bar a litigant in the
event it did not plea timeously. Rule 55 requires a party to show good cause in
condonation application. Rule 56 (2) requires evidence under oath. Good cause
requires a party to fully explain its remiss under oath.

Held, applicant failed to satisfy the court that it had a bona fide defence.

Conrad v Dohrmann (I2073/2015) [2018] NAHCMD 121 (14 May 2018)

Summary: The plaintiff and the defendants entered into a written agreement of
sale in respect of 100% membership in a close corporation and sale of furniture and
inventory. The plaintiff testified that he complied with his part of the agreement but
the defendants failed to deliver the furniture and inventory he paid for in the sum of
N$400 000.
 70

Held – though the agreement was contained in a single document, a reading thereof,
together with the intention of the parties was that the agreement was divisible and
separate and as a result of which the plaintiff could sue only in respect of the furniture
and inventory.

Held further – that the defendants, in terms of their behaviour, in availing the furniture
and inventory worth N$ 20 830, evinced an intention to no longer be bound by the
agreement they had signed. It was in that context found that the plaintiff was, in the
circumstances, entitled to cancel the contract as he did and was at large to claim the
return of the money he had paid, against the tender of the furniture and inventory
received.

Held – that the pre-trial order is a very important document which carries the
imprimatur of the court and outlines the issues to be decided at trial. In that regard, it
is not open to a party to unilaterally include issues at the trial that were not recorded
in the pre-trial order as this is prejudicial to the court and the other party, who may
have no notice of the witnesses required to deal with that issue.

Held further – that a defendant’s legal practitioner, may not, after the plaintiff has
been excused, elicit comments on the plaintiff’s witness’ statement as that is
prejudicial to the plaintiff or his witnesses, who cannot, at that stage, be recalled to
deal with the issues subsequently raised. The proper course, is to put the entire
version of the defendant about the former’s witness’ statement to him or her while he
or she is in the witness stand.

Held – that a legal practitioner, who acts for two parties in a non-litigious matter,
should, after the parties cross swords, withdraw from the matter and refer both
parties to independent lawyers to represent them. It is ethically improper, once a
dispute arises, for that lawyer, to act on behalf of one of the protagonists.

Held further – that legal practitioners have a duty to file proper heads of argument to
assist the court by referring the court to the particular pages of the judgment referred
to. Furthermore, that in filing a certificate in terms of Rule 130, alleging that there are
no local authorities in the jurisdiction, legal practitioners should ensure that they have
done the necessary research and that the certificate they file is accurately reflective
of the true position on the ground. Mere lip service to the provisions of this rule will
not be tolerated.

Held that – failure to call an important witness for a party elicits an adverse inference.
In this case, the defendant did not call a critical witness, being the 2 nd defendant.

Held further – that it is important for a party to put its case to the opposing witness
while the latter is still on the witness stand. Failure to do so results in the court
consigning the version put as an afterthought and liable therefor to rejection.
 71

The court upheld the plaintiff’s main claim and held that the divisible aspect of the
agreement relating to the furniture and inventory, was properly cancelled and that the
plaintiff was entitled to recover the amount of N$400 000, he had paid to the
defendants, against him returning the furniture and inventory he had received from
the defendants. In the event the plaintiff failed to tender the furniture and inventory
supplied, he would be entitled to the purchase price of the inventory, less the value
thereof as ascertained by the plaintiff’s expert witness.

Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of
Windhoek (A 421/2013) [2018) NAHCMD 187 (26 June 2018)

Summary: The applicant, Eshisha Media Networks CC, brought a review

application against a decision of the City Council, (the first respondent) allowing the
second respondent to erect LED animated billboards on places they were erected.
Applicant alleged that the billboards were erected contrary to the Outdoor Advertising
Regulations and Outdoor advertising Policy and asked the court to order the first
respondent to give notice to second respondent to dismantle the billboards.

Held: City Council took a contractual decision not an administrative decision,

therefore not reviewable.

Held further, the decision taken by the City Council was in accordance with a
standard practice applicable at that time, not contrary to the Outdoor advertising
Policy or Outdoor Advertising Regulations. Application dismissed with costs.

C S v C S (HC-MD-CIV-ACT-MAT-2017/00179) [2018] NAHCMD 236 (9 August

2018)

Summary: This matter was brought about an urgent application wherein the
defendant objected to the plaintiff calling a certain Mr. Dowdall as an expert clinical
psychologist to provide expert evidence in the main action. The defendant based the
objection primarily on the fact that the expert clinical psychologist was a South
African national and as a result had to be registered as contemplated in the Social
Work and Psychology Act, 6 of 2004 in Namibia.

The plaintiff is however of the view that precedent was set by this court to accept the
evidence of experts from South Africa, who testify in our courts on a regular basis
and the argument advanced on behalf of the defendant regarding the alleged illigality
of a South African psychologist to give expert evidence in a Namibian Court of law,
without being registered in Namibia is unmeritorious. He submitted that the legislature
drew a distinction between ‘practice’ on the one hand and ‘the performance of any act
pertaining to such profession’ and that the legislature had no intention of equating the
two principles. The court should therefore consider the ordinary meaning of the word
 72

‘practice’ and having done so, the court should find that Mr. Dowdall will not practice
when he testifies in the matter in casu as an expert witness.

The defendant on the other hand argued that the plaintiff is seeking an order, which
considering the relevant regulatory framework, will sanction/and or condone and/or
allow an illegality. The defendant submits that the court is being asked to take over
the duties and functions of the Social Work and Psychology Council of Namibia (“the
Council”), which registers and regulates clinical psychologists and in view thereof.

The defendant does not take issue with the fact that Mr. Dowdall is duly registered as
a clinical psychologist practicing in South Africa but makes the point that, unless Mr.
Dowdall is registered, he is not entitled to practice as a clinical psychologist in
Namibia.

The defendant further argued that in considering the wording of the definition
‘practice’, it is not limited to the instance of employment but that on the contrary, the
word ‘practice’ is defined to include any act especially pertaining to such profession,
which includes drafting a report and testifying in court as an expert.

Held – it is my considered opinion that the work as a professional (practice) cannot

be seperated from the scope of the work (practice) to which the clinical psychologist
is confined. Practice and scope of practice of a clinincal psychologist must been seen
in context, having regard to the Act and the Regulations applicable.

Held – ultimately this court is a creature of statute and cannot go beyond the ambit of
the relevant statute. Therefore, regardless of whether the parties agreed to the report
of the expert witness, the court cannot accept that he testifies and hands in his report
if it would mean that this court would act ultra vires.

Dausab v Hedimund (HC-MD-CIV-ACT-DEL-2016/02446) [2018] NAHCMD 99 (19

April 2018)

Summary: Negligence - Motor vehicle in a stream of traffic colliding with motor

vehicle travelling ahead which has not stopped suddenly is res ipsa liquitur – Where
res ipsa liquitur applies there is presumption that the event is caused by negligence
on the part of defendant and plaintiff succeeds unless defendant can rebut this
presumption – Court found that plaintiff’s motor vehicle was stationary before
intersection controlled by traffic lights which showed red in his direction – Third
defendant’s motor vehicle hit rear of plaintiff’s motor vehicle – Court rejected third
defendant’s evidence that first defendant’s vehicle hit third defendant’s vehicle
propelling it forward and making it hit plaintiff’s vehicle – Court found that third
defendant did nothing to prevent his vehicle from hitting plaintiff’s vehicle, albeit he
had ample time to take reasonable steps to avoid the collision after his vehicle had
been hit by first defendant’s vehicle.
 73

Denk v The Chairperson of the Disciplinary Committee for Legal Practitioners

(A 199/2012) [2018] NAHCMD 405 (14 December 2018)

Summary: The applicant, a legal practitioner, was found guilty by the Disciplinary
Committee for Legal Practitioners of dishonourable or improper conduct following a
complaint by the second respondent. He successfully challenged that finding.
Unbeknown to him, the second respondent obtained an order rescinding and setting
aside the finding favourable to him. He launched an application for the review of that
order, which was not opposed. The matter was placed on the motion court roll but
because the applicant’s legal practitioners had not received the returns of service in
good time, the matter was struck from the roll. The applicant now seeks to have his
application for rescission of the order granted but the second respondent opposes
same claiming chiefly that the applicant has no interest in the order obtained by the
said respondent.

Held – that a party seeking reinstatement must provide a reasonable and acceptable
explanation for the matter being struck from the roll and that he or she has good
prospects of success.

Held further – that the applicant had provided a reasonable and acceptable
explanation in that the matter could not have proceeded in the absence of the returns
of service, which had not been provided in good time by the Deputy-Sheriff and that
the late receipt of the returns of service was outside the control of the applicant.

Held – that the applicant had bright prospects of success as his application for
rescission is based on the uncontested fact that he had not been served with the
application which resulted in the order in his favour being set aside, considering that
same had been served on legal practitioners who had not been appointed by him as
his legal practitioners of record.

Held further – that the applicant had an interest in the order granted in his absence
since the said order had a decisive bearing on his status as a legal practitioner in
good standing.

Held – that rule 32 (9) and (10) is not applicable to the peculiar facts of this matter for
the reasons that the application for rescission had not been opposed by the applicant
and that any non-compliance had to do with the practice directions and required only
the court to make a finding as to whether a good and acceptable explanation for the
non-compliance with the practice directions had been proffered.

The application for reinstatement was granted with costs.

 74

Development Bank of Namibia v Keystone Technology Solution (I 3678-2013)

[2018] NAHCMD 295 (19 September 2018)

Summary: The parties in this matter entered into a bridging finance loan agreement
in terms of whereof an amount of N$ 900, 000 was lent and advanced to the first
defendant by the plaintiff. As one of the conditions to secure the loan, the defendants
had to provide security wherein the second and third defendants would enter into an
unlimited suretyship agreement with the plaintiff and the first defendant would enter
into a cession of contract monies due to him from the Ministry of Safety and Security
valued at N$ 900,000 to the plaintiff.

As the plaintiff did not received the funds as per the cession of monies agreement
entered into with the first defendant, the plaintiff instituted summary judgment
proceedings against all the defendants jointly and severally. Being opposed, the court
now had to determine the effect of the cession of monies agreement as entered into
between the plaintiff and the first defendant had on the suretyship agreement as
entered into between the plaintiff and the second and third defendants.

The plaintiff submitted that it had no duty towards the third defendant to take cession
of contract monies due to the first defendant from the Ministry and further that its
rights, duties and obligations towards the third defendant are derived from the
suretyship. The plaintiff further submitted that the cession of monies agreement did
not form any duty undertaken in the Suretyship and it did not form a condition upon
which basis the third party undertook his obligations.

The third defendant was however of the view that plaintiff’s failure to take cession of
the money from the Ministry of Safety and Security as provided for in terms of the
Cession Agreement constituted a prejudicial act, which in law had the consequence
of releasing the third defendant from the obligations of suretyship.

Held – There is no principle in our law that states that should a creditor’s actions in
respect of the principal debtor prejudice a surety, the surety can be released from its
obligations under the deed of suretyship. The only instance where a surety can be
released (totally or partially) is where there has been a breach of a legal duty or
obligation by the creditor that was required from the creditor in terms of the principal
agreement or deed of suretyship.

Held further – Prejudice to a surety will only release the surety from liability if the
prejudice is the result of a breach of a legal duty or obligation owed by the creditor. If
the prejudice complained of results from conduct falling within the terms of the
principal agreement or the deed of suretyship, the surety could not rely upon such
prejudice in order to escape liability.
 75

Dumeni vs Minister of Safety and Security (HC-MD-CIV-ACT-OTH-2017/01588)

[2018] NAHCMD 137 (22 May 2018)

Summary: This matter involves a claim instituted by the plaintiff against. The plaintiff
instituted action against members of the Namibian police and Namibian correctional
services alleging that members of the Namibian police assaulted and tortured the
plaintiff and further that members of the Namibian correctional services placed the
plaintiff in an isolation cell to cover up the injuries of assault and torture in attempt to
rid of the evidence of the alleged assault and torture committed against the plaintiff by
the members of the Namibian police.

The defendants were of the view that in light of the fact that the plaintiff’s alleged
cause of action and the instituting of civil action by way of summons was
approximately 4 years and 10 months, it as a result of that time period, prescribed in
terms of section 39 (1) of the Police Act 19 of 1990 and section 133 (3) of the
Correctional Services Act 9 of 2012.

The plaintiff submitted that as a result of his imprisonment, he was left destitute with
no assistance from the authorities and furthermore that he was kept in an isolation
cell for a very long period where he was denied his basic human rights which
included the right to consult a lawyer. Although conceding that his claim in terms of
the Police Act and Correctional Services Act has prescribed, the plaintiff relied on the
provision wherein the Minister can waiver the requirements of section 39 (1) and
have his claim heard before this court, subject to the court’s order to allow him to
make an application to the Minister for waiver.

Held – There is no evidence before this court to suggest that the plaintiff was indeed
impeded from prosecuting his claim as a result of the alleged conduct by the
members of the Namibian police and Correctional Services.

Held further – That it would defeat the purpose granting the plaintiff to apply to the
Minister for waiver and in the event of the waiver being granted, to have his claim
dismissed on the ground of prescription if the plaintiff does not succeed to avoid
prescription.

Held further– The position as laid down in Madjiedt and Zhang Fuang, is to be
followed and defendant’s special plea is upheld and no order is made as to costs.

EK v EK (I 3455/2015) [2018] NAHCMD 200 (3 July 2018)

Summary: The plaintiff instituted divorce proceedings against the defendant which
in turn became defended. The main issues the court had to make a decision on, were
the awarding of custody and the division of the joint estate. Although the breakdown
 76

of the marriage was also at issue, through evidence led by the parties, the
circumstances revolving the breakdown became moot.

In respect of the custody of the minor children, the plaintiff made the point that he
was in a generally better position to take care of the minor children whereas the
defendant made the point that the plaintiff was merely using her mental condition to
prove that she is unfit to be awarded custody of the minor children.

Held – through evidence led by the parties, it clearly transpired that the plaintiff was
forced to move from the common home due constant psychological relapses suffered
by the defendant, causing her times to become extremely violent towards the plaintiff.

Held further – the marriage was ‘irretrievably broken down’ and that there are no
reasonable prospects for the resumption of a joint and further harmonious married
life.

Held further – in respect of the issue of custody of the minor children, the social
worker’s report is however clearly in favor of the fact that the court should grant
custody to the plaintiff. The defendant further took no issue as to the plaintiff’s
parenting skills and ability to look after the minor children. The defendant further
submitted that she enjoyed unhindered access to the children while in the plaintiff’s
custody.

Held further that – this court must weigh the parents' mental and physical conditions
when determining custody. The court accepts that a bipolar parent should not
automatically be barred from obtaining custody over a minor child, however in the
matter in casu, there is nothing placed before court that it would be in the best
interest of the children to award custody to the defendant, except for her word.

Endunde v The Chairperson of the Okavango East Communal Land Board (HC-
MD-CIV-MOT-GEN-2016/00384) [2018] NAHCMD 113 (27 April 2018)

Summary: This court issued an order dated 1 April 2017 calling upon the
respondents to consider and determine an application by the applicant for rights of
leasehold to a farm situate in the Kavango Region within a stipulated period and to
also inform the applicant of the decision within a specified time. The respondents did
not comply with the order in respect of the time frames and on the merits, made an
order confirming their previous decision. The applicant launched contempt
proceedings alleging that the respondents were in contempt of the court order.

Held that – it is imperative in a democratic society to ensure that court orders are
complied with in order to ensure social cohesion and to allow the courts to decide
disputes, in the knowledge that their orders will be complied with, failing which
anarchy will reign supreme.
 77

Held – that a party seeking an order for contempt must show that (a) that the court
made an order; (b) that the respondent was served with or became aware of the said
order; and (c) that the respondent has not complied with the order or neglected to do
so.

Held further – that in this case, the applicant had satisfied the first two requirements
as the order was issued and the respondents were aware of the order. The only
question was whether the respondents were wilful and mala fide not complying with
the order.

Held that – failure to comply with an order of court of which the respondent is aware
attracts an inference of wilfulness and the evidential burden then shifts to the
respondent, to show that he or she was bona fide in the non-compliance.

Held further that – in the circumstances, although the respondents had not complied
with the order, there was no inducium that the respondents were wilful and mala fide
in their non-compliance. In this regard, although the respondents were incorrect in
their actions, there was no evidence that they acted in a contumelious manner and
with intent to violate the dignity and authority of the court.

Held that – in terms of service of the court order, there may be personal service or
the court will be satisfied if there is evidence that the respondent became aware of
the court order. In this regard, the court held that as far as possible, because of the
likely consequence of being found in contempt, which may result, in the worst case
scenario, with the contemnor being committed to gaol, personal service is preferred.
The court was nonetheless satisfied that the respondents became aware of the order,
particularly because they alleged that they had complied with the order, suggesting
inexorably, that they were aware of the said order.

Held further that – that where a necessary party has not been joined in proceedings,
it is not appropriate to dismiss the application therefor. The proper order, the court
held, is to either stay the proceedings pending the joinder of the necessary party or to
postpone the proceedings with an appropriate order as to costs.

Held that – the decision to dismiss is far-reaching and serves to undo the court’s
policy to deal with cases on their real merits, in an inexpensive and expeditious
manner.

At the end, the court held that there was no evidence that the respondents, although
they did not comply with the order, did so wilfully and in bad faith. There was some
bona fide belief in their minds that they were acting within their rights to act as they
did, wrong as they were. The respondents were then afforded an opportunity to again
comply, on the pain of serious repercussions if they do not comply yet again.
 78

Faida Trading & Clearing Enterprises CC v Nedbank Namibia Limited (I

143/2014) [2018] NAHCNLD 66 (23 July 2018)

Summary: Plaintiff a long standing client of defendant instructed defendant to do

an overseas money transfer to Amazing Grace Exports, but, instead transferred it to
a wrong account number, contrary to defendant’s clear instructions. Defendant’s
employee used a scanned document, the original of which, had been destroyed by
plaintiff’s representative in her presence. When asked on whose authority she had
done so, she sought to rely on instructions from emails which turned out to have been
hacked. Defendant sought to rely on an indemnity clause. Court held that the
employee should have verified by phone as to who was sending her the said e-mails
in light of the fact that she had plaintiff’s number. This failure was both a breach of a
contractual relationship with plaintiff and was also negligence on Ms Kooper’s part.
Plaintiff succeeded.

Fernandes v Baleia Do Mar Industrial Safety Supplies CC (HC-MD-CIV-MOT-

GEN-2017/00204) [2018] NAHCMD 337 (17 October 2018)

Summary: The first and second respondents obtained judgment on 27 January

2018 against the third and fourth respondents, in the absence of the applicant – In
terms of the said order, the chairperson of the Council and the Council itself were
inter alia ordered to ensure that any construction works already undertaken at Erf
688, Walvis Bay (‘the property’) in terms of the building permit number 688 were
demolished immediately – The applicant is the co-owner of the property.

The applicant brought an application to have the above demolition order rescinded
and set aside. Furthermore, the applicant sought an order to intervene in a review
application pending before court

The first and second respondents opposed the application and raised a point in
limine that the applicant lacked locus standi. In support of this point, the respondents
contended that the property had been already been donated during April 2010 to two
children of the applicant and the deceased. The respondents contended in the
alternative that even if the court were to find that the applicant was the owner of the
property, she did not have substantial nor direct interest in the matter.

Court held: The applicant has the necessary locus standi by virtue of the fact that
she a co-owner of the property through her marriage in community of property to her
late husband.
 79

Furthermore, the applicant had the necessary locus standi in her capacity as the duly
appointed executrix of her late husband’s estate who was the registered owner. In
that capacity too, she has the standing and interest with respect to the property.
Furthermore, the donation of the property to her two children has not been registered
by means of a notarial deed nor was the transfer of ownership registered by the
Registrar of Deeds in the Deeds Office. Therefore until such time that the donation is
registered, the applicant was and remained the co-owner of the property.

Court held further: With regards to the rescission, an application brought in terms of
rule 103 of the Rules of the Court, an applicant is not required to show good cause,
or the prospects of success. Furthermore, an order or judgment that was erroneously
sought or granted in the absence of any party affected by it, should without further
enquiry, be rescinded or varied.

Court held further: The applicant was a necessary party and should have been cited
as a party to the main application. The applicant as a co-owner of the property and a
duly appointed executrix of her late husband’s estate has a direct and substantial
interest in the demolition order granted. The demolition order could not carried into
effect without negatively affecting or prejudicing the applicant or her interests in the
property.

Court held further: For an applicant who seeks leave to intervene in proceedings to
succeed, he or she must satisfy the court that he or she has a direct and substantial
interest in the subject matter of the litigation which could be prejudiced by the
judgment or order of the court. Furthermore, the applicant must satisfy the court that
he or she has a prima facie defence or cause of action.

Court held further: The applicant has a right as co-owner of the property to protect
her property. The demolition order is aimed at destroying the improvements which
have been effected on the property which has improved or increased the value of the
property. It was therefore clear that the applicant would suffer prejudice as a result of
the order of the court being implemented and if the applicant was not allowed to
intervene in the proceedings to place her defense before court why the structures or
improvements effected upon the property should not be demolished.

Court held further: That it is of the view that the applicant has made out a case that
she has a prima facie case or defense to the main application.

Fish Orange Mining Consortium (Pty) Ltd v !Goaseb (I 582/2010) [2018]

NAHCMD 154 (8 June 2018)

Summary: The plaintiff sued the defendants for payment of an amount of N$ 5

Million. The amount claimed is in respect of the plaintiff sustaining damages as a
result of the unlawful and wrongful transfer of a exclusive prospecting licence
 80

(E.P.L.) caused by the 1st and 2nd defendants to the 3rd defendant. At the close of the
plaintiff’s case, the 1st and 2nd defendants brought an application for absolution from
the instance on the following grounds - first, the defendant submitted plaintiff failed to
lead admissible evidence of an expert to prove that the EPL has some commercial
value which would in turn prove the amount of damages allegedly suffered by the
plaintiff. The second point of argument related to the laws relating to the issue of
extraction of minerals and that the plaintiff did not have the licence to mine and
remove the minerals for sale.

Held: That the plaintiff had led evidence to suggest that the transfer of the licence by
the said defendants was unlawful.

Held further: That the plaintiff did place evidence before court by an expert regarding
the value of the E.P.L. (subject to certain safeguards) and that the court was not
entitled to disregard that evidence merely because the said expert was not examined,
considering that his report was admitted by the consent of the parties.

Held: That the E.P.L. does have some commercial value and it is the duty of the
court, subject to hearing the evidence of the defendants, that has to decide what
damages, if any, had been proved by the plaintiff.

Held further that: The awarding of damages is primarily the duty of the court and not
that of the expert witness.

Held: That the plaintiff had succeeded to meet the threshold of absolution from the
instance, namely that it had adduced evidence upon which a court acting reasonably
may find for the plaintiff.

The application for absolution from the instance was thus refused with costs and the
defendants were ordered to open their defence.

Fullard v Nghaamwa (HC-MD-CIV-MOT-GEN-2018/00180) [2018] NAHCMD 306

(30 August 2018)

Summary: The applicant entered into a written agreement for the development of
an immovable property belonging to the first respondent, as owner and seller – The
agreement was subject to certain, suspensive conditions, inter alia, that the applicant
would obtain development finance from a registered financial institution within four
months from the date of signature of the agreement – The applicant failed to provide
proof of written approval to the first respondent within the agreed period of four
months – As a result the first respondent sold the property to a third party, the fourth
respondent.

The applicant then brought an urgent application for an interim order to stop the
transfer of the immovable property from the first respondent to the fourth respondent.
 81

The court held that the applicant had failed to establish a prima facie right to move
the court to issue an interdict. Application is dismissed with costs.

G R v E R (HC-MD-ACT-MAT-2016/03929) [2018] NAHCMD 134 (18 May 2018)

Summary: This court was called upon to rescind an order it made in relation to the
best interest of the child on 14 December 2017, after applicant launched an
application in terms of 90 of the rules of court .At the insistence of the applicant, the
matter was set down for 14 December.

On the day of the hearing, the applicant’s legal practitioner was engaged elsewhere
and could not attend the hearing. The applicant himself was in Zimbabwe at the time.
Due to applicant’s legal practitioner’s inability to attend the hearing, applicant had
instructed another legal practitioner to stand in for her and ask the court for a
postponement. The postponement was refused and the instructed practitioner who
stood in for applicant’s legal practitioner had no further instructions.

The respondent’s legal practitioner then requested this court to hear evidence from
the respondent on issues pertaining to the best interests of the minor child. The
respondent was granted leave to testify, and testified that the applicant had put their
12 year old daughter in a taxi from Okahandja to Windhoek after the said child
continuously cried and wanted to return to her mother in Windhoek.

Upon arrival at home, daughter had informed her mother (the respondent) of her
traumatic encounter as she was the only female in the taxi that the father (applicant)
had placed her.

Held – That although the applicant received no audi due to its legal practitioner’s
absence from court, the court could exercise its inherent common-law jurisdiction to
act in appropriate circumstances in the interests of minor children to make an order.

Held further that in order to invoke that common-law inherent jurisdiction, the
applicant (respondent in casu) must establish (a) that considerations of urgency
justify the intervention; and (b) that the intervention is necessary to protect the best
interests of the minor child.

Held further that – the applicant in this matter ought to have followed this procedure
and ought to have founded his case for variation of the order, having regard to the
considerations ordinarily operative in proceedings in terms of the Rule.
 82

Gaweseb v Council of the Municipality of Windhoek

(HC-MD-CIV-MOT-GEN-2017/00423) [2018] NAHCMD 346 (29 October 2018)

Summary: The applicant instituted an urgent application pending a review of the first
and second respondent’s decision to revoke a building permit approved by the first
and second respondent. The third to seventh respondents however brought a
counterapplication seeking an to interdict the applicant from further completing its
construction activities on Erf 506, Pioneerspark, Windhoek, Namibia and to have the
first and second’s decision be declared null and void.

The applicant based its application on the grounds that the second respondent had
no right to cancel the building plan approval as it has become functus officio; further
that even if it had the said power to cancel the building plan approval, it had no
rational and reasonable basis to make such a decision and that he did not act in
accordance with the relevant law; further that the applicant was not given a
reasonable and fair opportunity to make representation as to why the building plan
approval should not be cancelled and lastly that the decision made by the second
respondent was in consistent with the provisions of Article 18 of the Namibian
Constitution.

The first to second respondent were of the view that the applicant has in law no title
to the relief sought, if such relief is predicated on the letter authored by the second
respondent on 25 October 2017, which purportedly revoked the approval of the
applicants building plan. They were further of the view that the decision as
communicated to the applicant on 25 October 2017 does not amount to a decision
capable or competent of review and setting aside by this court as the said decision
had no weight or force in law.

The third to seventh respondents held that although they had enduring concerns with
the construction carried out on the applicant’s property, they never received
responses from the first respondent regarding the queries they made on the rezoning
of the applicant’s property. In the result, the third to seventh respondents submit that
they did not know whether there was approval for the structure being built on the
property and what exactly was being built.

The third to seventh respondents further submit that the building permit was
approved on 29 December 2015 and in terms of Regulation 10 of the Municipality of
Windhoek building regulations of 1969 as amended, any erection of a building had to
be completed within twelve months and any building to be continued under
construction subsequent thereto, the building permit had to be renewed. In the
circumstances, the third to seventh respondents submit that in the result, the
applicant does not have an approved building permit of building plans and the relief
sought by the applicant is moot in that he in any event has to apply for new building
plans and permit.
 83

Held – There is no doubt that the conduct of the respondents in approving the
building plans of the applicant in terms of the empowering provisions of the relevant
regulations, subject to conditions, amounts to administrative action and that its
decision affects the legal rights of an individual. Hereafter the second respondent
unilaterally revoked the original decision. Such decision therefore is an administrative
act and/or decision.

Held further – The court is of the considered view that the third to seventh
respondents have not shown sufficient reason for the relaxation of the rule requiring a
review to be brought within a reasonable time. The court found it hard to belief that
the relevant respondents only managed to find out how the building plan was
approved only in November 2017/January 2018, after the alleged unlawful
construction started two years ago already.

Herero v The Minister of Safety and Security (HC-MD-CIV-ACT-CON-2016/02751)

[2018] NAHCMD 382 (29 November 2018)

Summary: Labour law – Unfair dismissal in terms of Police Act 19 of 1990, s 18 –

Plaintiff employed as police cadet constable – Plaintiff dismissed for not disclosing on
application form that he had been charged with certain offences and the case was
pending in the magistrates’ court and for failing to turn up for duty without the
knowledge of shift commander – Court finding that defendants had good reason to
dismiss plaintiff – Consequently court finding that defendants acted reasonably – But
defendants failed to comply with procedural requirements prescribed by Act 19 of
1990 – Consequently, court finding that defendants acted unfairly procedurally –
Court finding further that no evidence was placed before court to persuade court to
reinstate plaintiff for unfair dismissal – Court held that in that regard it will be unsafe
and unsatisfactory to order plaintiff’s reinstatement – Court, however inclined to order
monetary compensation and took into account certain factors which court discussed
in order to arrive at an appropriate amount of monetary compensation.

Hiskia v Body Corporate of Urban Space (HC-MD-CIV-MOT-GEN 2017/00143)

[2018] NAHCMD 279 (31 August 2018)

Summary: The first applicant, through the second applicant, was the registered
owner of a Sectional Title Unit consisting of Section No. 32 and 105 as more fully
described on Sectional Plan No. 80/2006 in a building known as Urban Space. The
building is situated on Erf 3775, Nelson Mandela Avenue, Klein Windhoek.

The Body Corporate which managed the Urban Space building, being the first
respondent, obtained judgment by default under case number 2369/2015 against the
 84

close corporation in an amount of N$ 27 854-14, plus interest at the rate of 20% on

that amount in respect of arrear levies and penalties for Unit 32. The judgement
remained unsatisfied and Unit 32 was attached pursuant to a warrant of execution
issued on 13 August 2015 and sold in execution to one, Isak Mekondjo Nahum, the
second respondent for an amount of N$ 750 000.

The applicants instituted this proceedings seeking amongst other reliefs an order
setting aside; default judgment granted, under case number 2396/15, by the Clerk of
the Civil Court, Magistrates’ Court for the District of Windhoek on 24 June 2015, the
re-issue on 13 August 2015 of the Warrant of Execution in Case Number 2396/15
(Body Corporate of Urban Space v Urban Space Investments Number Thirty Two
CC) by the Clerk of the Civil Court of the Magistrates’ Court Windhoek and setting
aside the attachment and sale in execution on 9 February 2017 of the immovable
property consisting of Unit 32. The applicants furthermore sought an order declaring s
66 of the Magistrates’ Courts Act, 1944 invalid in as far as it authorizes the sale in
execution of immovable property if sufficient moveable property to satisfy a judgment
or order of a Magistrates’ Court is not found, declaring Rule 12 of the Rules of the
Magistrates’ Courts (the Rules) invalid in so far as it authorizes the Clerk of the
Magistrates’ Court to grant judgment by default, declaring Rule 43 of the Rules invalid
in so far as it authorizes the issue of a warrant of execution against immovable
property without the supervision of a Magistrate and not in the same manner as
prescribed by Rule 108 of the Rules of the High Court of Namibia.

Held that the service of the summons, commencing action under case number
2396/15 in the Magistrates’ Court was invalid because neither Rule 9(3)(e) nor s
25 of the Close Corporation, Act,1988 permits service of a process or document
by affixing the document or process to a door at the registered office of the close
corporation.

Held further that although the extent of the powers and responsibilities of the High
Court and the Magistrates’ Court differ, there is a common thread running through the
exercise of the powers and the responsibility of the courts and that thread is that the
Courts are independent and must administer justice subject to and in accordance
with the Constitution which is the Supreme Law of the Country and that litigants
before both the Superior Courts and the Lower Courts must enjoy the same
Constitutional protection.

Held further that the difference that crops up in the process of debt recovery in the
High Court and in the Magistrates’ Court creates a differentiation between litigants in
the High Court and litigants in the Magistrates’ Court. And that such differentiation is
not reasonable and rationally connected to the purpose for which the Magistrates’
Court was created.

Held furthermore that s 66(1)(a) of the Magistrates’ Court Act, 1944, Rules 36 and 43
of the Magistrates’ Court Rules in so far as they permit the sale in execution of
immovable property without judicial oversight offend Article 10(1) of the Constitution.
 85

Hochobeb v Dunn (I 1772/2013) [2017] NAHCMD 150 (7 June 2018)

Summary: The plaintiff has sued the defendant and asked the court to evict her
from his house he bought in a sale of execution. Court held that the plaintiff
persuaded it on a balance of probabilities that he was entitled to the relief sought and
granted judgment in his favour with costs.

Höfelein v Bruni NO (HC-MD-CIV-MOT-GEN-2017/00079) [2018] NAHCMD 328

(18 October 2018)

Summary: Applicant and 1st respondent married in community of property and during
the subsistence of which, a child was adopted by the parties.

2nd respondent filed for divorce and a final order of divorce was granted on 8 April
2011. The court ordered that custody and control of the child be awarded to 2 nd
respondent with reasonable access by the applicant. By consent of the parties and on
endorsement by an order of this court, 2 nd respondent was allowed to leave this
jurisdiction with the child but on certain terms.

The court further ordered that a liquidator be appointed in relation to the distribution
of the parties’ joint estate by virtue of which, 1 st respondent was appointed -
Subsequent to this appointment, 1st respondent compiled a report as to the division of
the parties’ joint estate.

The applicant alleged that the 2 nd respondent denies him access to the child and that
as a consequence, the latter is in contempt of a court order and should be ordered to
comply failing which she should be denied access to her share of the estate as long
as the non-compliance persists.

The applicant further alleged that the report by the 1 st respondent was biased and
should, as a result, be set aside by the court.

Held: That the 1st respondent had, in the answering affidavit, indicated his
unwillingness to proceed with the liquidation of the joint estate. For that reason, the
court found it fit to set aside the 1 st respondent’s report, without making any adverse
findings on his conduct of the liquidation, however.

Held further that: The fact that both respondents were represented by a same firm of
attorneys did not sit well and that the 1 st respondent, sitting as he does, in apposition
of being an arbiter of sorts, should maintain an impartial and independent disposition.
 86

The complaints by the applicant about the 1 st respondent’s alleged partiality, could
not, in the circumstances, be easily dismissed.

Held: it is always healthy for a child to be afforded reasonable access to both parents.

Held further that: Although the applicant had approached a German court in an effort
to exercise his access rights to the child, that court did not find that he was not
entitled not to have access to the child.

Held: That although the 1 st respondent is not physically within the court’s jurisdiction,
this court has a right to hear and determine the matter and to issue appropriate
orders against her as she has submitted herself to the court’s jurisdiction by
participating in this matter.

Held: that in view of the 2 nd respondent’s allegation that she relied on expert reports
to deny the applicant access, a reasonable doubt exists as to whether the said
respondent acted contumaciously of the court order.

Held further that: The 1st respondent should be afforded an opportunity to comply with
the court order once again before drastic steps are taken against her.

In the result, the report filed by the 1 st respondent was set aside and the 2 nd
respondent was given an opportunity to comply with the court order allowing the
applicant access to the minor child, failing which the applicant was granted leave to
approach the court on modified papers for appropriate relief.
Horn v Horn (I 615/2016) [2018] NAHCMD 3 (23 January 2018)

Summary: Vindication ― Rei vindicatio ― Requirements of ― Plaintiff must prove

ownership of thing ― Plaintiff must also prove that defendant in possession of thing
― Court held that on the evidence plaintiff proved his ownership of equipment he had
purchased from a third party ― Consequently, court ordered defendants to deliver
the equipment to plaintiff ― Court accepted first plaintiff's evidence that he bought
the equipment from Mr Harmse ― Court found that that the equipment is in
possession of defendants was not in dispute ― Defendants failed to prove what they
asserted that they are the owners of the equipment and from whom they bought the
equipment.

Close corporation ― Fiduciary duty ― To whom owed ― In terms of the Close

Corporation Act 26 of 1988, s 42 (1) ― Each member stands in fiduciary relationship
to corporation ― Consequently, a member (plaintiff in reconvention) not entitled to
an order against other member (defendant in reconvention) to render full account
(supported by vouchers) for period of corporation’s founding to date, debatement of
account, and payment of amount due to plaintiff in reconvention ― Court held that
plaintiff in reconvention entitled only to access to accounts of corporation ― First
plaintiff in reconvention and first defendant in reconvention were the only members of
 87

close corporation ― First plaintiff in reconvention left running of corporation in the

care of first defendant in reconvention ― First defendant in reconvention rebuffed
request of first plaintiff in reconvention to have sight of financial statements and to
have share in profits ― First plaintiff in reconvention sought an order directed to first
defendant in reconvention to render full account, debatement and payment of
amounts due to first plaintiff in reconvention ― Court rejected that claim reasoning
that first defendant in reconvention did not stand in fiduciary relationship to first
plaintiff in reconvention and that remedies of first plaintiff in reconvention lay only in
Act 26 of 1988 ― Consequently, first plaintiff in reconvention only entitled to access
to accounts of the corporation.

Indongo v Nangombe (I 2580/2011)) [2018] NAHCMD 143 (30 May 2018)

Summary: Civil Practice – Failure to comply with judgment order dated 8

September 2017 and non-appearance by the first defendant – First defendant’s
defence and counterclaim struck out – Judgment granted in favour of the plaintiff with
costs.

Ipinge v Lukas (I 1833/2011) [2018] NAHCMD 106 (23 April 2018)

Summary: The issue for determination is whether the plaintiff and first defendant
are married in or out community of property. The parties agreed that the marriage
was soleminised between them on 10 December 1970, 47 years ago. In addition to
the marriage certificate, the plaintiff cause to be admitted into evidence, without any
objection, certified copies of a declaration under section 22(3) of Native
Administration Act 1927, a duplicate original marriage register and a certificate of
Banns of Marriage. The Plaintiff testified and trial proceeded. At the end of the
Plaintiff’s case, first defendant applied for absolution from the instance which was
denied, and thereafter the first defendant testified.

In the application for absolution, first defendant objected to the admissibility of

documentary exhibit handed into account. At no time during the proceedings did first
defendant object to the admission of the exhibits handed in as evidence. The first
respondent’s rights were not reserved with regard to the admissibility or authenticity
of the exhibits and during cross-examination counsel for the first respondent
proceeded to extensively cross-examine the plaintiff as to the contents of the exhibits.
The plaintiff was permitted to bring his application to re-open her case limited to
documentary evidence led into evidence only. The first defendant opposed the
application for plaintiff to re-open her case.
 88

Held — that section 18 of the Civil Proceeding Evidence Act prescribes the
admissibility of a public document into evidence without the need to call the public
official to testify about the content of the document. A certified copy received from
such public officer is sufficient to be admitted into evidence.

Held — that section 20 of the Act clearly deals with the admissibility of official records
without the need to call the official to testify as regard to the content of the document.
A copy of an official document may be produced into evidence if certified by the head
of the department in whose custody or control the document is or by an officer in the
service of the state authorized by such head to certify such a document.

Held — that a document is original if, according to the substantive law and issues
raised in the trial, it is the documents whose contents have to be proved. A party is
required to produce the original document only if he seeks to prove its content. But
the existence of a status or relationship created by a document may be proved by
oral or any other evidence. Oral evidence by a marriage officer remains the best
evidence to prove that a marriage between two parties did take place. A marriage
certificate is the most convenient evidence however it is not the best evidence.

Held — that although the first defendant, on his own version, is only challenging the
“quality” of the evidence produced and not that the evidence is inadmissible, the
manner in which the challenge was advanced is not in accordance with rules of
conducting civil proceedings as set out in rule 1 (2) and (3) of this court. The conduct
of civil proceedings must give effect to the provision of Article 12(1) of the Namibian
Constitution. The objective of these rules is to facilitate the resolution of the real
issues in dispute justly and speedily, efficiently and cost effectively and as far as
practicable.

Held — that the objection should have been brought at the time when the documents
were tendered for admission into evidence. This is particularly important to enable the
plaintiff to respond thereto timeously and appropriately. This was not done. Instead,
the first defendant waited for the plaintiff to close her case before he raised an
objection in respect of the documentary exhibits tendered.

Held — that the lack of proper certification and authentication of the documentary
evidence, if any, would severely prejudices both parties. The documentary evidence
would be of great assistance to the parties and to the court and may be the best
evidence the case will allow.
 89

Jahanika v Muinjangue (HC-MD-CIV-MOT-GEN-2018/00206) [2018] NAHCMD 363

(14 November 2018)

Summary: The applicants and the respondents are all members of a political
parties, the National Democratic Organisation (NUDO) – This application concern a
dispute about the leadership of NUDO following disputed Congress held during May
2018 – A dispute of facts has arisen whether the Congress was held or not – The
applicants applied to have the dispute referred to oral evidence in terms of Rule 67
(1)(a) – The respondents opposed the application and raised two points in limine
namely that the applicants lack locus standi to bring the main application; and that the
resolution attached to the founding affidavit does not authorise the applicants to bring
the application.

Court held that the applicants have the locus standi to bring the application. Point in
limine dismissed.

Court further held that ex facie it appeared that the resolution authorised the
applicants to bring the application

Court held further: That it has a discretion to decide whether or not to refer the
disputed facts to oral evidence. The discretion is exercisable whether or not either of
the parties has applied for leave to invoke the procedure.

Court held further: That there is a real and genuine dispute of facts on crucial and
material areas, necessary for the resolution of the dispute that material dispute was
incapable of being resolved without resort to oral evidence.
Joubert v The Minister of Home Affairs and Immigration (HC-MD-CI-MOT-REV-
2016-00327) [2018] NAHCMD 118 (03 May 2018)

Summary: The Applicants are South African citizens and are married to each
other. The First Applicant was issued with a work permit during 2013, which has been
renewed on a number of occasions until 2016. During June 2016, he was informed
that his application for a new work permit was refused on 10 May 2016. He re-
submitted the application and was informed during August 2016 that his application
was again rejected on 05 July 2016.

Held that, the Applicants had established domicile.

Held further that, the Applicants are granted the relief they pray for.
 90

Julius v The Prosecutor-General of the Republic of Namibia (2017/00355) [2018]

NAHCMD 75 (29 March 2018)

Summary: The applicant brought an application for the review of the Prosecutor-
General’s decision to prosecute him. In this matter, the applicant launched an
interlocutory application for the production of the record proceedings in respect of the
Prosecutor-General’s decision aforesaid. The application is opposed and the
respondent avers that the record to be produced is in actual fact the “docket”, which
is still under investigation and with the police. The issue the court had to consider
was whether the record of proceedings should be produced in light of the fact that
investigations were still pending.

Held that: The present application resorts under the provisions of Rule 76(8) and
not Rule 28(9) as submitted by respondent. This is so because the record sought to
be produced has not been so produced by the respondent. Rule 28(9) generally
applies to action proceedings where discovery of documents is in issue.

Further Held that: The production of the record of proceedings at this juncture,
where investigations have not been finalised, is premature as it may compromise the
investigations, but may be allowed at a future date and once investigations are
completed. The court took special cognizance of the nature of the record, and
particularly the sensitive stage at which the investigations are at the moment, as
alleged in the respondent’s unchallenged affidavit.

Held that: The decision to prosecute is choate once the investigations have been
concluded and evidence is available to justify an arrest may not be enough for a
decision to prosecute as a host of possibilities may arise on the finalisation of
investigations, including dropping of charges, if necessary.

Held further that: the decision to allow the State time to further investigations should
not be regarded as a licence to the State to drag their feet and occasion damage to
the applicant’s rights and interests.

K v K (I2987/2015) [2018] NAHCMD 126 (14 May 2018)

Summary: The parties to this matter were involved in divorce proceedings dating
back to September 2015 wherein the plaintiff instituted divorce proceedings against
the defendant. The defendant opposed the action and filed her counterclaim against
that of the plaintiff and the proceedings had to be put on hold pending a report to be
compiled by a social worker regarding the minor children.

In correspondence received from social worker on 24 January 2017 it was indicated

that the report was delayed due to the unwillingness of the plaintiff to cooperate with
 91

the said social worker and the legal practitioner of record for the plaintiff also
withdrew from the matter citing the same issues of non-cooperation from the plaintiff.
Ultimately, the plaintiff’s claim and plea to counterclaim was struck and the defendant
(plaintiff in reconvention) was allowed to proceed with her counterclaim. A restitution
order was granted in favour of the defendant on 28 September 2017.

On 25 October 2017 the aforesaid court order was personally served on the plaintiff
by the Deputy Sherriff, which return was filed by the defendant.

The defendant also filed an affidavit of non-return. In the affidavit of non-return the
defendant indicated that the plaintiff failed to restore conjugal rights to her or to
receive to her or to return to her before 09 November 2017. She further stated in the
aforesaid affidavit that on 07 November 2017 a letter was received from the plaintiff in
which he purportedly offered to restore conjugal rights to her. The defendant
however submitted that the offer of restoration was not genuine and proceeded to set
out her reasons for making such statement.

On 07 December 2017 the plaintiff made an appearance in court during which

appearance he indicated to the court that he no longer wish to get divorced.

In order to give the plaintiff the opportunity to show cause why the restitution order
should not be made final the matter was postponed and subsequently on 06 April
2018 the court heard viva voce evidence by the plaintiff.

Although the plaintiff professed his love for the defendant during his viva voce
evidence it would appear that the plaintiff has resigned himself to the fact that the
divorce was inevitable but took issue with the ancillary relief that the defendant claims
in her prayer in respect of proprietary rights, maintenance and custody and access to
the minor children.

Held – on the return date the sole task of the court is to determine whether there has
been proper service of the restitution order and whether the defendant had restored
conjugal rights to the plaintiff. Any ancillary relief relating to custody and maintenance
of the children may be raised on the return date and retried.

Held – The court will not revisit the merits of the case and will only take cognisance of
the history of the marriage insofar as it throws a light on the intention of the plaintiff,
i.e. whether his offer to return is genuine.

Held – There is nothing before this court to show that the plaintiff is bona fide in his
offer to restore conjugal rights to the defendant after three years of separation.

Held – the court cannot disregard the issues raised by the plaintiff relating to the
ancillary relief claimed by the defendant and more specifically the issue regarding
custody and access to the minor children. These are issues that are extremely
important and no final decision should be made without hearing the parties.
 92

Kaishugu v Minister of Land Reform (HC-MD-CIV-MOT-GEN-2017/00292) [2018]

NAHCMD 329 (18 October 2018)

Summary: The applicant was granted rights to communal land, after his father had
passed on. The rights to the farm in question were shared with the 6 th respondent
until the traditional authority decided to give the rights exclusively to the applicant,
leaving the 6th respondent to exercise any such rights at the pleasure of the applicant.
Dissatisfied with this arrangement, the 6th respondent approached the 2nd respondent
on appeal. His appeal succeeded in terms of which the 6 th respondent erected a
fence on the farm in question. The applicant sought to review the decision of the 2 nd
respondent on the grounds that he had not been cited nor served with the appeal
papers.

Held – that the applicant’s application was not, in all the circumstances, filed after an
unreasonable delay had been incurred and that in any event, the applicant had
provided a full and reasonable explanation for the delay.

Held further that – the applicant had a right to be cited in the appeal proceedings as
he had and that s. 39 of the Act does not operate to deny the applicant from
participating in the appeal merely because he is not aggrieved by the decision
submitted on appeal.

Held – that the applicant had a direct and substantial interest in the matter and that
any order the appellate body would make would affect him and his interests.

Held further – that the decision to exclude the applicant on the basis that he was not
aggrieved by the decision had the deleterious effect of depriving him of the right to be
heard by the 2nd respondent although the decision made would impact on his rights,
contrary to the audi alteram partem principle.

Held – that the fence erected by the applicant had not been duly authorised in terms
of the Act and that a fence is not, in consideration of the Act as a whole, to be
considered as a structure or building within the meaning of s. 29(5) of the Act.

The court found that the applicant’s application was sound and granted the relief
prayed for by the applicant with costs.

Kambwela v Mbadhi (I 185/2016) [2018] NAHCNLD 16 (12 February 2018)

Summary: Plaintiff, a businessman, employed the defendant and was engaged in

various uncalled for immoral activities with defendant taking her to his various outlets
 93

and coming back at night, showering her with presents and other financial rewards
that were outside work environment. Plaintiff alleged that defendant had been
spreading rumours that he was HIV positive. This resulted in him taking her for an
HIV test and she was tested. However he did not submit himself for the test before
the same doctor but advised defendant that he was going to be tested somewhere
else in a laboratory. However, his results remain unknown. Defendant’s HIV results
were read to the workers. Plaintiff claimed N$35 000 from defendant for spreading
this rumour.

Defendant also counter-claimed the same amount from plaintiff for defamation based
on the allegations that plaintiff had been making sexual advances towards her and
that she underwent an HIV test and he forced her to read her HIV results to her fellow
employees.

The evidence for both parties was not convincing as they seem to have been
concealing a lot of information regarding their true social interaction. The court could
not determine, as who defamed who. Both claims were dismissed with no order to
costs.

Kamwi v Standard Bank Namibia Limited (A 101/2011) [2018] NAHCMD 196 (29
June 2018)

Summary: Costs – Taxation – Case stated by the Taxing Officer in terms of rule
75(1) of the rules of court upon objection by a lay litigant and counter-objection by the
legal practitioner for the first respondent – Such lay litigant not entitled to fees for his
labour or for loss of earning opportunity – Principles in Nationwide Detectives &
Professional Practitioners CC v Standard Bank of Namibia Limited 2007 (2) NR 592
(HC) and in Nationwide Detectives CC v Standard Bank of Namibia Ltd 2008 (1) NR
290 (SC) followed – Court concluding that the Taxing Officer was not wrong in
disallowing fees claimed by a lay litigant – Furthermore court disallowing certain
disbursements – Court ordering the lay litigant to provide the Taxing Officer with
quotations or pro-forma invoices from photocopying service providers to enable the
Taxing Officer to assess the disbursements claimed by the lay litigant in respect of
photocopies made by the lay litigant – Lay litigant to prove to the satisfaction of the
Taxing Officer that the disbursements claimed were necessary and reasonably
incurred.

Kamwi v The Chairperson of the Local Authority of Katima Mulilo (HC-MD-CIV-

MOT-GEN-2017/00201) [2018] NAHCMD 367 (15 November 2018)
 94

Summary: The applicant approached the court seeking an order for the
Municipality of Katima Mulilo to conclude a sale agreement with him in respect of an
offer he had accepted to purchase immovable property within the said Municipality.

Held – that in matters relating to local authorities, the offer to buy land and the
acceptance thereof by the Municipality do not result in a binding contract for the
reason that the consent of the Minister is required by the provisions of s. 30 (1) (t) of
the Act. In the absence of the said consent by the Minister, no binding contract
comes into existence, even if an offer had been made and ‘acceptance’ had been
given.

Held further – that in the instant case, the Minister did not grant the consent required
and the first and second respondents did not have the power to ‘order’ the Minister to
consent to the sale of municipal property to an individual, as that power lies
exclusively with the Minister.

The application was accordingly dismissed with costs and the first and second
respondents were ordered to return the amount that had been paid to them by the
applicant in anticipation of a sale going through.

Kandando v Medical and Dental Council of Namibia (HC-MD-CIV-MOT-REV-

2017/00353) [2018] NAHCMD 287 (3 May 2018)

Summary: The Applicant is a specialist Clinical biochemist, in the year of 6 th of April

2010, a government gazzette was published with new procedures as stated in the
said gazzatte relating to the practice of Specialist in Namibia. The application was
involved at the initial stage and before the gazetting of the complained of regulations
and once they were gazetted - he embarked upon his crusade to have them
interpreted to his understanding and to have them set aside if necessary. The
applicant more than seven years to institute this review and to seek the
complementary declaratory relief.

The court analised all the main steps the applicant took during the said period, from
which analysis it emerged inescapably, that the applicant had failed to explain his
inactivity for various lengthy periods in any satisfactory manner. The court as a result
found that the time that the applicant took to institute the proceedings was
unreasonable and also refused to exercise its discretion against granting condonation
for such delay-

In the consideration of various other factors such as the prejudice occasioned to the
listed parties that had aligned their practices in accordance with the regulations over
the past 8 years and after considering the public interest and the interest in the
finality of litigation in the course of resolving the question whether or not condonation
should be granted - the court – also - and while recognizing on the one hand that the
applicant should have attempted to resolve his perceived issues through alternative
 95

means first, this would, on the other, never have meant that such attempts could drag
on inordinately thereby legitimately delaying the launching of review proceedings for
any inordinate period of time.

For similar reasons the court also refused to exercise its discretion against the
granting of the sought declaratory relief. The facts appear from the judgment.

Kandjeo v Agape Investment CC (I 597/2015) [2018] NAHCMD 222 (19 July 2018)

Summary: The Plaintiff instituted an action against the defendants seeking an order,
among other things, for the return and administration of a farm as an asset of the
deceased estate. The 1st, 2nd and 3rd defendants raised a special plea averring that
the plaintiff lacks standing to institute the action for the relief she seeks. Court
upholding the special plea on the ground that the executor appointed in the estate is
the only person, in the circumstances, legally authorized to represent the estate of
the deceased and to claim for the relief that the Plaintiff now seeks. Court holding
further that there are no exceptional circumstances in this matter justifying departure
from the general legal principles. Court upholding the special plea with costs.

Kapika v Minister of Urban and Rural Development (HC-MD-CIV-MOT-REV-

2016/00331) [2018] NAHCMD 51 (9 March 2018)

Summary: The applicant instituted proceedings out of this court in terms of which he
sought the review and setting aside of the first respondent’s decision to designate the
fourth respondent as chief of the Ombuku Traditional community in terms of the
Traditional Authorities Act, 2000 (Act No. 25 of 2000).

The fourth respondent, in his opposition of the application, raised two preliminary
objections, the first being that the applicant lacked locus standi to launch this
application and the second being that the applicant unreasonably delayed in
instituting the review application. The Minister also opposed the application, she
based her on opposition on the contention that she complied with the requirements of
the Act and as such was satisfied that the fourth respondent was designated chief of
the community in question.

Held that the Applicant in his capacity as a bona fide member, a de facto and
legitimate leader of the Ombuku traditional community had the necessary standing to
launch this application. Furthermore, the court held that in accordance with guidance
provided by the Supreme Court, the rules of standing must not ordinarily operate to
prevent citizens from obtaining legal clarity as to their legal entitlements, as such
clarity by the Applicant in these matter can only be obtained if these application is
allowed.
 96

Held further that the Applicant in his founding affidavit extensively explained the
sequence of events that transpired during the entire seven months leading to the
institution of these proceedings, that same was not denied by the fourth respondent,
and as such, there has not been an unreasonable delay on the applicant’s part.

Held further that on the documents filed of record, there was no evidence that the
requirements set out in section 5 (1) of the Act were met, and secondly that the
Minister also failed to establish that the jurisdictional facts required under section 12
existed for her to establish the Ministerial investigation committee that she did, and
on whose report she relied on to arrive at her decision to designate the fourth
respondent as chief of the Ombuku Traditional community.

Held furthermore that the court held that the common law audi rule places an
obligation on pubic authorities and public officials to afford a person who may be
affected the pubic authority and public official’ decision an opportunity to be heard
before the decision is taken. The Minister as an administrative official failed to adhere
to this rule and as such, her decision was reviewed and set aside with costs.

Karslruh Number One Farming Close Corporation v De wet Esterhuizen (HC-

MD-CIV-ACT-DEL-2016/02394) [2018] NAHCMD 388 (26 November 2018)

Summary: The second defendant brought an application to consolidate two matters

involving the same parties running before another judge for purposes of convenience
in terms of Rule 41 of the High Court Rules. The plaintiffs opposed the application.

In argument, counsel for the second defendant was of the view that the parties in all
three actions are the same and the issues in respect of all three actions emanate
from the sale and/or occupation of Farm Vaalgras and therefore as a result, a major
part of the evidence to be adduced will overlap. Counsel further submitted that
submitted that there will not only be a reduction of costs, but also will be to the benefit
of the court and the administration of justice and other litigants.

Counsel further submits that if the matters are consolidated, evidence regarding all
three actions can be heard within one week and that there will be no prejudice
suffered by the plaintiffs if the actions are consolidated. Counsel was further of the
view that neither party will be seriously prejudiced if consolidation is granted and in
fact will save lots of time and money if the actions are consolidated.

In respect of the plaintiffs, counsel submitted that even though the matters are
considerably or otherwise the same, the actions differ substantially in nature and
causes of action and further that the causes of action in respect of the three claims
are entirely different and are to be supported by evidence which is different and
relevant only to the specific cause of action.
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On the notion that costs will be reduced generally, counsel submitted that the court
should considered that the actions sought to be consolidated are at different stages in
litigation and the court cannot lose sight of the issue of prejudice to the plaintiffs. He
submitted that the plaintiffs are substantially prejudiced on account of the delay of the
finalisation of this present matter, which was already previously postponed at the
instance of the second defendant. Counsel further submitted that submitted that the
second defendant failed to set out the basis in full in his application which he alleges
makes it convenient for the three separate actions to be heard together and therefor
submitted that the application should be dismissed with costs.

Held – it is common cause that the claims prayed for in all the three actions all arose
from the occupation of the defendants on Farm Vaalgras. There can be no argument
that the evidence are overlapping and intertwined. The parties are exactly the same
in all three matters and the evidence that will be led during the trial will at all material
times be relevant to all the parties concerned.

Held – The cost implications for the parties to attend to three separate trials can be
far reaching. Once the consolidated matter is set down for hearing, it can be attended
to in one week and be finalized, circumstance permitting. However, if three separate
hearing dates are allocated to the different matters, there is no guarantee as to when
the matters will be finalized.

Held further – Consolidation of the actions under the circumstance would therefore
not only be cost effective for the parties but time effective and in keeping with the
spirit and the primary objectives of the court rules.

Kashululu v Nakale (I 132/2015) [2018] NAHCNLD 44 (14 May 2018)

Summary: Plaintiff sued defendant for having accused him of witchcraft. Plaintiff a
police officer was executing his duty as a traffic officer when he attempted to issue
defendant with a traffic offence ticket. Defendant refused to co-operate and laid false
criminal charges against the plaintiff and at the same time called him a witch. This
was in the Charge Office where there were other police officers. Plaintiff’s colleague
corroborated his evidence. Defendant denied. Plaintiff claimed damages for loss of
promotion. Plaintiff proved on a balance of probabilities that he was defamed. Plaintiff
failed to prove that he was going to pass the interview which would have led to his
promotion. Defamation was proved and defendant was found liable.

Kauhano v Minister of Safety and Security (I 3952/2013) [2018] NAHCMD 317 (28
September 2018)
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Summary: The plaintiff instituted an action against the defendants for malicious
prosecution and in the alternative, a claim for alleged violation of various
constitutional rights. The plaintiff was arrested on 26 August 1999 by the Namibian
police and was arraigned on 278 charges in a criminal trial that has since been
christened as the Caprivi Treason trial.

The plaintiff was among a number of accused persons discharged after the close of
the State‘s case in the criminal trial on 11 February 2013. Shortly hereafter the
plaintiff instituted the proceedings in casu, and the defendants defended the action.
The parties agreed that the liability and quantum be separated and that the trial
concern the aspect of liability only.

The plaintiff’s main claim premised on the notion that subsequent to his arrest on 26
August 1999, the Namibian Police wrongfully and maliciously set the law in motion by
laying false charges and conveying false information to their members and the
second defendant that the plaintiff was guilty of high treason and other crimes as set
out in the indictment and in so doing, the members of the first defendant had no
reasonable or probable cause for doing so, nor did they have any reasonable belief in
the truth of the information given. The plaintiff further submitted that the second
defendant could have stopped the proceedings in terms of s 6(b) of the Criminal
Procedure Act or ought to have reasonably caused the plaintiff’s release from
prosecution and detention, in order to safeguard or prevent violation of the plaintiff’s
rights under the Articles of the Namibian Constitution.

The defendants on the other hand pleaded that the plaintiff was arrested in terms of s
40(1) (b) of the Criminal Procedure Act, and within the context of a constitutional duty
to secure the internal security of Namibia to maintain law and order. The defendants
denied that they set the law in motion and contend that they had reasonable
suspicion to arrest and detain the plaintiff.

The defendants further denied that they are liable to pay to the plaintiff the amount
claimed because the Namibian police acted within the statutory constitutional power
to investigate and the second defendant within her statutory power to prosecution,
however without an improper or malicious motive.

Furthermore, the second defendant pleaded that at the time of prosecution, she had
sufficient evidentiary material to prosecute and there was a prima facie case against
the plaintiff that he committed high treason crimes based on the doctrine of common
purpose.

On the notion of continued prosecution, the second defendant denied these

allegations and pleaded that it was humanely impossible to have considered the
evidence against the plaintiff and to stop prosecution on 23 November 2007. The
defendant’ also pleaded that it wanted to make use of s 174 of the Criminal
Procedure Act to strengthen the State’s case through the defence’s case and that the
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plaintiff could have invoked s 6 (b) of the Criminal Procedure Act and Article 12 (1) (b)
of the Constitution.

The second defendant also pleaded that the plaintiff’s initial detention was lawful in
terms of s 50 of the Criminal Procedure Act and subsequent to the arrest, it was as
result of judicial remand by the court and warrants of detention.

Held – The concept of reasonable and probable cause is clearly the most onerous of
the elements for a plaintiff to establish. The test contains both a subjective and
objective element, which means that there must be both actual belief on the part of
the prosecutor and that that belief must be reasonable in the circumstances.

Held – The plaintiff had to prove that the state of mind of the prosecutor fell short of a
positive persuasion of guilt, i.e. whether the plaintiff has proven that the prosecutor
did not honestly from the view that there was a proper case for prosecution, or prove
that the prosecutor formed the view on an insufficient basis.
Held – It is thus clear that if probable cause exits initially, but during the course of the
criminal prosecution it becomes clear that there is no probable cause to continue
such prosecution, then liability will follow when a party maintains the action thereafter.

Held further that – Persisting with prosecution notwithstanding that there was no case
against the plaintiff and then opposing the application for discharge at the closing of
the State’s case in a hope that the plaintiff (accused) would be implicated by co-
accused clearly falls in the latter category as set out in the New South Wales matter.
Kavezeri v Kavezeri (HC-MD-CIV-ACT-OTH-2016/02421) [2018] NAHCMD 205 (06
July 2018)

Summary: The plaintiff married the late Nehemia Kavezeri in 1987 in community of
property. The plaintiff and the late Nehemia Kavezeri cohabitated at Erf 2404,
Katutura, Windhoek, which property was transferred and registered into the name of
the plaintiff’s late husband during 1984. The defendant and the defendant’s mother
also lived together with the plaintiff and her late husband. However, the defendant’s
mother at one stage became extremely disobedient and ill-disciplined towards the
plaintiff and her husband, to the point where the plaintiff’s late husband instructed the
defendant’s mother to vacate from the property. Not long after evicting the
defendant’s mother from the premises, her husband also requested the defendant to
vacate the premises.

In 2007, when the late Nehemia Kavezeri passed on, the plaintiff was furnished with
a letter of authority in terms of Section 18(3) of the Administration of Estates Act, Act
66 of 1965 on 06 July 2007. In terms of the letter of authority the plaintiff was
appointed as the estate representative of the late Nehemia Kavezeri.

Approximately four (4) years after the defendant was instructed to leave the
premises, she returned with the reason being that she was pregnant and vulnerable
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and as a result, needed a place to stay at least until after birth. The plaintiff agreed
that the defendant could stay at Erf 2404 Katutura Windhoek and an undertaking was
made that the defendant would make monthly contributions to the expenses of the
house in an amount of N$ 350, which the defendant would pay directly into the
municipal account of the house. However, it later transpired that the defendant
ceased making contributions towards the expenses of the house, resulting in the
plaintiff having to settle the debt incurred for municipal fees.

The relationship between the plaintiff and the defendant deteriorated to the extent
that the plaintiff had to stay away from the premises and as a result, the property
deteriorated as well. The plaintiff then took the decision to file for an application to
evict the defendant from the premises so that the plaintiff could once more manage
the property accordingly.

Held – in order to eject a defendant from immovable property, a plaintiff need only
allege that he is the owner of the immovable property and that the defendant is in
occupation of the immovable property.

Held further that – In terms of the law of intestate succession, the principle applying is
that in each line of succession, the succession will go to those in the line related to
the nearest degree to the deceased, with in effect means that grand children of
parents that are no pre-deceased will be excluded from inheriting.

Held further that – The rights and powers in connection with the liquidation and
administration is vested in the plaintiff as the executrix of her late husband’s estate
and as such she is entitled to bring this action and seek the relief she does.

Kehrmann v Gradtke (I 25/2016) [2018] NAHCMD 141 (01 February 2018)

Summary: Section 15(1) of the Prescription Act 68 of 1969 provides that prescription
will be interrupted by the service on the debtor of any process whereby the creditor
claims payment of the debt - if a creditor fails in his claim, ie if he does not
successfully prosecute his claim under the process in question to final judgment or
the judgment is abandoned or set aside, the provisions of s 15 (2) come into play in
that the interruption of prescription which has occurred in terms of subsection (1)
shall lapse, and the running of prescription shall not be deemed to have been
interrupted.

In casu the Plaintiff had instituted two actions for the enforcement of the same debt
against the defendant. The first action instituted in 2004 under High Court case (T) I
1632/2004 ended in absolution from the instance being granted on 18 May 2015. The
order for absolution was also never taken on appeal and thus became final;
 101

The second case, which was instituted in May 2016 in the High Court, was instituted
on essentially the same cause of action - and on substantially similar facts - and for
the same relief as the first action. This was also the case which the parties agreed to
have determined by way of a stated case;

The plaintiff was thus attempting to claim payment of the original- and substantially
the same debt - through the institution of the said two actions.

Held that the relevant process in question, i.e. the first legal proceedings instituted
under case (T)I 1632/2004, had a final outcome i.e. that reflected in the court order
on 18 May 2015, which was one for absolution from the instance.

Held further that this result determined the question whether or not the plaintiff was
able to prosecute his claim successfully to final judgment, as required by Section
15(2).

Held that this outcome was clearly not successful, so much was signified by the
granting of absolution from the instance.

Held that it had to follow in such circumstances – that the interruption of prescription -
achieved through the service of the first summons under case (T) I 1632/2004 on 23
July 2004 - lapsed once the order for absolution from the instance - (signifying an
unsuccessful prosecution of the plaintiff’s claim) - was granted on 18 May.

Held further that this conclusion was re-enforced by the ancillary factors that the
order granting absolution had since become final, as it was never taken on appeal
and through the circumstances where the first case was, in any event, never re-
enrolled, (if that was at all possible), after the payment of costs.

In such circumstances the deeming provisions contained in Section 15(2) of the

Prescription Act 1969 came into play, with the result that the interruption of
prescription, which had occurred on 23 July 2004 was deemed not to have occurred,
thus resulting in the situation that the plaintiff’s claim, against the defendant had
already become prescribed during or about October 2005.

In the result the special plea of prescription was upheld with costs.

Klein v Kaura (I 4315 / 2013) [2017] NAHCMD 1 (15 January 2017)

Summary: Plaintiff instituted action against the defendants in respect of two claims, a
main claim and an alternative claim by a way of amended particulars of claim. The
claims were in short in terms of an agreement entered between the plaintiff and the
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defendants of a building contract of a medicentre which they are both shareholders,

each holding 33.3%. The plaintiff made out a list with figures of amounts spend on
constructon costs and bank loans and overdrafts, engineers and labourers, municipal
fees, insurance and interest due to her and other ancillary costs that she spent money
on and needed to be refunded. The second defendant objected on the ground that the
plaintiff failed to give evidence on the figures presented and how she arrived at such
amounts being claimed. At the close of the plaintiff’s case, the second defendant
applied for absolution from the instance.

Court held: A plaintiff has to make out a prima facie case in the sense that there is
evidence relating to all the elements of the claim to survive absolution because without
such evidence no court could find for the plaintiff, hence the test to be applied is not
whether the evidence led by the plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or might (not should, nor ought to) find for the
plaintiff.

Held further: Plaintiff’s particulars of claim is not supported by the evidence presented.
Plaintiff relied heavily on the report from FCS but failed to call the expert who could
shed light on how the calculation was made and how the amount that is allegedly
payable was calculated. The evidence of the plaintiff was mishmash of contradictions
and improbabilties in respect of the both the main and alternative claim and as such her
evidence cannot be accepted by this court. Plaintiff have altered her figures so many
times that she actually confused herself. There are also numerous incongruities
between the evidence of the plaintiff, her particulars of claim and the further particulars
that she furnished to the defendants and for these reasons and those as set out above I
am not satisfied that the plaintiff has made out a prima facie case.

Koujo v Minister of Mines and Energy (HC-MD-CIV-MOT-REV-2017/00411)

NAHCMD 260 (17 August 2018)

Summary: The applicant applied for mining claims with the first respondent and
visited the area of Otuani in the Kunene Region in order to look for a mining
opportunity in that area.

The applicant then went to the relevant office of the first and second respondents to
enquire about the area from an official, and was informed that the mining claims
registered in the respective area concerned expired. The applicant was then equally
informed that there were no other mining claims in the area concerned.
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During roundabout the month of September/October 2016, the applicant pegged an

area that the applicant took coordinates of and was allegedly assured that there were
no other mining claims in that area. The applicant’s mining claims were accordingly
granted and approved on 7 February 2017 and registered in terms of s 36 (1)(a) and
(c ) of the Minerals (Prospecting and Mining) Act 33 of 1992.

On 31 August 2017, the first respondent, under s 44 of the Act, gave notice to the
applicant of his intention to cancel the applicant’s mining claims as the applicant’s
mining claims overlap with mining claim “69778” registered to Luxury Investment 192
(Pty) Ltd (the 3rd respondent). The first respondent further reasoned that his Ministry
was obligated by s 125 of the Act to consider applications in the same order in which
they were made and received, with the third respondent’s application being received
during February 2016, while that of the applicant received on 25 October 2017.

The applicant made submissions to the first respondent against the intended
cancellation, and thereafter received a notice of cancellation from the first respondent
who in his decision gave the reason that the applicant’s mining claim overlapped with
that of the third respondent. The applicant then approached this court for judicial
review and a declarator in which proceedings he sought to review the decision taken
by the first respondent.

The first and second respondents did not oppose the applicant’s application for
review but the third and fourth respondents opposed and in turn submitted a
conditional counterclaim if the court were to find in favor of the applicant to review,
set aside and/or correct the decision to grant mining claims registered to the
applicant.

Counsel for the applicant submitted that the application for review must be granted
primarily on the basis that the first respondent had no power in terms of s 44 of the
Act to cancel mining claims such as that of the applicant, as the power to do so
belonged to the Mining Commissioner by virtue of s 44 (1) and (2)(a) to (c ) of the
Act.

With respect to the third and fourth respondent’s counterclaim, the applicant
submitted that the third and fourth defendants did not prove any claim registered for
the third and fourth defendants’ on 31 August 2017 when the first respondent gave
notice of preparedness to cancel the applicant’s mining claims. Therefore and as a
matter of fact, the applicant submitted that the third and fourth respondents did not
prove any claim registered in terms of s 36 of the Act.

Counsel for the third and fourth respondents argued that the applicant’s argument
under s 44 failed to take into account the effect of the trite principle that he who
delegates does not lose the power to act personally, combined with the language of s
4 (1) of the Act, which provides that the mining commissioner shall exercise or
perform his powers, duties and functions under the provisions of the Act subject to
the directions and control of the Minister. Counsel was of the view that if the first
 104

respondent could direct the Commissioner to cancel the mining claims, then the
Minister could cancel them himself.

Counsel further submitted that the applicant did not comply with material
requirements of the Minerals Act by failing to present truthful and accurate responses
on material information statutorily required of it. This failure, counsel submitted, led to
the decision makers within the Ministry being unable to detect an error on the
Ministry’s system. This failure, in turn led to the Ministry’s failure to meet the statutory
purpose sought to achieve with s 125.

Held – the Mining Commissioner operates under the direction and control of the
Minister and parts of the functions of the Mining Commissioner need not exclusively
be performed by the Mining Commissioner and can be delegated to other officers as
may be designated by the Permanent Secretary.

Held – section 55 clearly sets out the procedure to be followed in cancellations of

mining claims. The operative word in s 44 is “shall” and gives clear guidelines when
determining the interpretation of s 55, guiding that any reference to the Minister must
for purposes of s 44 be regarded as a reference to the mining commissioner.

Held further – the general rule is that delegated power must be exercised by the
administrator or the Minister in this instance, on whom it is conferred. However, it is
practically impossible for the Minister to exercise the power or perform the functions
personally. For that reason it has always been open to original legislators
(Parliament) to stipulate that their delegees may further delegate their powers to
other administrators.

Held further – the proper functionary must be afforded the opportunity to make its
determination on the matter at hand, being the mining commissioner and upon
consideration of s 44 and s 55 together, the intention of the legislature is that it must
be the mining commissioner who should make the determination in cancellation of
mining claims and not the Minister.

Held further that – Article 18 forms the corner stone of administrative justice,
therefore if an administrative official does not act in terms of administrative law and its
relevant legislation, it would be grounds for this court to review that decision. In the
present matter, s 125 was not complied with due to the inability of the Ministry to
detect the error in the Flexi Cadastre system. The decision making process was
flawed due to the incorrect information and the decision to grant the claims of the
applicant must be set aside.

Kwizi vs Shinana (HC-MD-CIV-ACT-DEL-2016/03047) [2018] NAHCMD 108 (23

April 2018)
 105

Summary: The claim and counterclaim in this matter arose as a result of a motor
vehicle accident. At the time the plaintiff was driving his vehicle bearing registration
number N 83658 W and the first defendant drove the vehicle of the second defendant
bearing registration number POL 8267.

On Friday 20 April 2018 at 14h12 the plaintiff filed a notice of withdrawal of his claim.
On the Monday the following week, the 23rd of April 2018, counsel acting on behalf of
the plaintiff confirmed the withdrawal of the action against the first and second
defendant. When counsel acting on behalf of the defendants indicated that the
defendants wish to pursue their counter claim against the plaintiff, counsel for the
plaintiff indicated that she had no instruction to recall plaintiff’s withdrawal of action
and prayed to be excused, in order for the defendants to proceed with their matter on
an undefended basis.

As the counsel who acted on behalf of the plaintiff had no further instruction to
proceed with the trial she was excused from the proceedings and the court hereafter
regarded the plaintiff to be in default and proceeded in terms of Rule 98(1) read with
Rule 98(4), in the absence of the said plaintiff.

Held It has long been recognized that where in an ordinary action a party chooses not
to appear at the trial or, having appeared, withdraws from the trial, the other party
remaining need not content itself with an order for absolution from the instance but
may elect to lead evidence in order to satisfy the Court that it is entitled to a judgment
on the issues raised by those claims.

Lee’s Investment (Pty) Ltd v Shikongo (HC-MD-CIV-ACT-CON-2016/03394)

[2018] NAHCMD 321 (12 October 2018)

Summary: The defendants’ brought an oral application for the variation of the Pre-
Trial Order (made an order of court on 27 November 2017) on the day the trial was
supposed to start. The plaintiff opposed the application. The court ordered a proper
application. Whether such an amendment could be granted in the circumstances.

Held that – Late amendments violate the overriding objective of judicial case
management to bring expeditious closure to litigation.

Held that - Parties are bound to their pre-trial reports.

Held that - Late amendments call for reasonable explanations.

Held that - Instructing legal practitioner admitted that, and explained why he erred in
signing the pre-trial report.
 106

Held that - In the circumstances of the case and taking account of pleadings in the
matter, the explanation is reasonable.

Held that - The amendment will partially be allowed.

Held that - Instructing legal practitioner, being agent of the defendants, bound the
defendants. Defendants responsible for wasted trial costs.

Liseho v Liseho (HC-MD-CIV-MOT-GEN-2017/00137) [2018] NAHCMD 82 (28

March 2018)

Summary: The applicant and respondent entered into a settlement agreement in

terms whereof they agreed that the respondent has the first option to purchase the
applicant’s half share following valuation of the immobile property by a valuator –
Furthermore should the respondent fail to exercise his option or pay the applicant the
50 per cent of value of her half share within 30 days of the valuation and the
remaining 50 per cent on the anniversary of the final divorce order failing which, the
property shall be sold to a third party – The settlement agreement was incorporated
in the final order of divorce on 3 December 2013.

The property was duly valuated during November/December 2014. During March
2015 the respondent informed the applicant that he was still interested in buying the
applicant’s half-share. Thereafter the respondent failed to buy the applicant’s value of
the half shares.

In view of the long period which went by since the property was valuated, the
applicant applied, inter alia, for an order to have the property revalued and sold to a
third party. The respondent opposed the application and raised two points in limine.
First, that no founding affidavit was attached to the notice of motion. Second, the
applicant is seeking execution of the property but failed to comply with the provisions
of rule 108 of the rules of the court.

Held, that the record showed that a founding affidavit was filed together with the
notices of motion. Furthermore, that the return of service showed that the notice of
motion together with the founding affidavit were personally served on the respondent.
Accordingly the point in limine was dismissed.

Held further, that the enforcement of the term of the settlement agreement to sell the
immovable property did not amount to a sale in execution and therefore the
provisions of rule 108 were not applicable. Consequently the point in limine was,
similarly, dismissed.
 107

Luckhoff v Nico’s General Investment cc (HC-MD-CIV-ACT-CON-2017/1666)

[2018] NAHCMD 342 (30 October 2018)

Summary: Applications and motions – Nonjoinder or misjoinder – No indication in

judicial case management orders that second defendant or any party contemplated
raising such issue – Furthermore, second defendant failed to comply with rule 32(9)
and (10) of the rules – Consequently, court struck out the application.

Luxury Investments One Hundred and Ninety Two (Pty) v Koujo (HC-MD-CIV-
MOT-REV-2017/00411) [2018] NAHCMD 390 (28 November 2018)

Summary: The first respondent filed a notice of appeal to the Supreme Court against
the orders and judgment of this court dated 20 August 2018 wherein the court
granted the applicant’s conditional counter-application. Shortly after the filing of the
appeal by the first respondent, the applicants thereafter launched an application for
leave to be granted to put the order dated 20 August 2018 into operation pending the
appeal process.

In support of the application, a detailed founding affidavit deposed to by Mr. van der
Plas was filed together with a number of supporting affidavits. The application was
duly opposed by the first respondent and an answering affidavit of Mr. Koujo was filed
in support of this opposition.

The crisp question for determination in the matter in casu is thus whether on the facts
at hand, a proper case is made out to grant leave to put the order to execute the
judgment into operation pending the appeal process.

This rule was premised on a principle of the common law to the effect that the noting
of an application for leave to appeal, suspended the ‘execution’ of the order.
Applications for leave to execute judgments of this court pending appeal, are
governed by the provisions of Rule 121 (2). Rule 121(2) of the Rules of the High
Court.

Mr. Heathcote argued on behalf of the applicants that the first respondent did not put
up any case for potential of irreparable harm or prejudice and leave to execute should
be granted. He pointed out that the first respondent, apart from a sweeping statement
by the first respondent that he will suffer ‘massive and irreparable harm’, he failed to
advance a single primary fact for such a statement.

Mr. Heathcote submitted that in contrast with the first respondent, the applicants
made out a clear case for ‘massive and irreparable harm’ or prejudice should leave to
execute be refused. He submitted that this was factually demonstrated in the
founding affidavit of Mr. van der Plas.
 108

Mr. Namandje contended that the applicants’ case is based on the wrong assumption
that the judgment of this court in August 2018 resulted in a restoration of the first and
second applicants mining claims. He argued that the applicants are defending this
court’s acceptance of the irregular affidavit filed after close of pleadings and in which
affidavit the third respondent stated under oath that the first applicant’s application for
mining claims were still under consideration. However, he argued that whether or not
the mining claims were granted, the fact remains that the cancellation of the first
respondent’s claims was reviewed and set aside and the order on the counter
application did not put any life in the alleged claims of the first applicant as the matter
was simply referred back to the decision-maker.

It was argued that the majority of the allegations made on behalf of the applicants
relates to the prejudice or irreparable harm to be suffered by the second applicant but
that the second applicant as already alluded to did not apply for mining claim not
does it have any. The allegations of prejudice and irreparable harm are therefore
irrelevant and thus inadmissible.

It was further argued that the first respondent duly applied for mining claims and was
granted such mining claims. Third parties were contractually recruited to undertake
mining activities and it would suffer irreparable harm and prejudice if the first
respondent were dislodged from the mining area, while awaiting the outcome of the
appeal to the Supreme Court. Mr. Namandje submitted that it would be against all
notions of justice if the first respondent were to be denied the right to undertake its
mining activities when he has filed an appeal as the appeal enjoys excellent prospect
of success.

Held – From the onset, there is very little contained in the answering affidavit of the
first respondent in opposition to the application. In the answering affidavit of the first
respondent, he indicated that he will suffer irreparable harm if the application is
granted in favor of the applicants. The first respondent did not elaborate on the nature
of or the potentiality of irreparable harm or prejudice.

Held – No documentation was presented to this court as to the nature of the potential
prejudice or harm that the first respondent will suffer.

Held further – It not apparent how and why the respondent will be severely prejudiced
should execution be granted. If the Wightman case is applied to the facts of this
matter, there is clearly no real, genuine and bona fide dispute of fact that exists as
the first respondent who raised the dispute in his answering affidavit did not address
the facts said to be disputed.

Held – A court dealing with an application for leave to execute must caution itself
against the temptation to deal with the application as if it was the appeal court, for this
would have the undesirable effect of pre-judging the outcome of the appeal.
 109

Held further – In my view, counsel for the first respondent remained unable during the
hearing to demonstrate that there are prospects of success on appeal on the grounds
raised. I do not believe that another court might come to a different conclusion on the
grounds raised.

Malakia v Alexander Forbes Insurance Company (HC-MD-CIV-ACT-OTH-

2017/03868) [2018] NAHCMD 365 (16 November 2018)

Summary: Court found that plaintiff gave three different estimations of time
accident happened – That could not amount to not giving full and complete
information to enable defendant to assess plaintiff’s claim – Court found further that
although plaintiff drove at a speed in excess of the statutory general speed limit no
general exception or exclusion clause dealt explicitly and specifically with such
infraction – Court found further that although plaintiff left scene of the accident
defendant did not establish in what manner his action was unlawful – Statutory
provision relied on by defendant to trigger this exclusion is not part of Namibian law –
Consequently, court rejected defendant’s reliance on the exclusion clause –
Accordingly, court found that defendant failed to justify its repudiation of liability on
the basis of reasons defendant gave for the repudiation - Court entered judgment for
plaintiff with costs.

Maritz v Louw N.O Cited In His Capacity As The Executor of the Estate of Late
Johann Wilhelm De Beer under Master's Reference Number: 2021/2012 Whk
(HC-MD-CIV-ACT-OTH-2017/04117) [2018] NAHCMD 261 (28 August 2018)

Summary: The plaintiff sued for the dissolution of a partnership for a due
accounting and ancillary relief against the plaintiff’s deceased partner (Johann
Wilhelm de Beer, herein represented by the first defendant in his capacity as the
executor of the estate of the deceased.

The deceased and thereafter the first defendant, with the fourth and eighth
defendant, took control over the partnership assets, including cash reserves and
income.

After the death of the plaintiff’s deceased partner, the partners in the partnership
were unable to agree to the dissolution of the partnership while the partnership
continued to trade.
 110

During case management, the parties were issued with a case plan, instructing the
defendants should file, amongst others, their exception or notice to strike out on or
before 16 April. However, in the event that the defendants did not intend to except or
strike, the defendants had to their plea with or without a counterclaim, on or before 16
April 2018.

As it turned out, the defendants filed neither an exception nor did they file a notice to
strike out. Instead, the defendants filed a special plea without pleading over on the
merits. In this regard, the plaintiff maintained that the special plea filed by the
defendants did not constitute a special plea in the true sense of what is defined and
regarded as a special plea.

The defendants, however, were of the view that the special plea be adjudicated upon
separately from the merits as it will dispose of the matter if successful, whereas the
plaintiff is of the view that the determination of the special plea is not dispositive of
the relief sought by the plaintiff. As the parties could not agree on the further conduct
of the matter the parties requested to argue the matter in order for the Managing
Judge to make a ruling.

Held – it is thus clear, from the foregoing that a special plea can either be dilatory or
peremptory. In the instant case, the special plea raised was not dilatory but
peremptory as it sought to quash the proceedings altogether.

Held further – the Court is therefore convinced that the special plea raised by the
defendants aimed at the legality of the partnership, if successful, will bring an end to
the matter and therefore, must be determined separately from the merits of the case.

Mbelle Panel Beaters & Transport CC v Willemse (HC-NLD-CIVACT-OTH-

2017/00119) [2018] NAHCNLD 21 (12 March 2018)

Summary: Plaintiff and defendant entered into an agreement wherein defendant

was supposed to pay the amount of N$127 064-54 by the 31st December 2013.
Defendant failed to do so. Plaintiff did not demand payment then or institute legal
proceedings when the debt became due and payable. Plaintiff served defendant with
summons commencing action on the 2 nd of May 2017, a period of over 3 years from
the date the debt become due. Plaintiff had written a letter of demand on the 8 th of
April 2016. Defendant applied for a special plea on the basis that the debt had been
prescribed. It was held that a letter of demand is not a legal process. Summons is a
legal process and was issued after the prescription period had lapsed. The special
plea was upheld with costs.
 111

McLaren v Minister of Finance (HC-MD-CIV-MOT-GEN-2017/00144) [2018]

NAHCMD 101 (20 April 2018)

Summary: The liquidators of a company that was voluntarily wound up brought

two applications to court on an urgent basis, seeking the discovery of certain
documentation allegedly in the hands of the respondents which could prove that the
company in liquidation had exported goods outside the common customs area. The
second application was for the court to establish a commission of enquiry in terms of
the provisions of ss. 423 and 424 of the Companies Act, 2007. The respondent
opposed the applications and the argued that the latter application does not apply to
a company that has been would up voluntarily but only applies to involuntary
liquidation.

Held – that the provisions of the sections are applicable only to companies would up
involuntarily by creditors and where there is a suspicion of foul play, fraud or
impropriety by the managers of directors of the company that suddenly finds itself in
financial ruin.

Held further – the section does not apply to companies that are wound up in
voluntarily by the shareholders or members thereof.

Held - that the purpose of the sections is to call those persons who may have
information regarding the property or funds belonging to the company to account and
to explain whatever documents are in the possession of the company.

Held further that – the sections are designed to assist the liquidators, who normally
are outsiders to the company and may not be au fait with the operations and
documentation and processes of the company.

Held – that in the instant case, the applicants had abused their powers in moving the
applications in terms of the said provisions for the reason that the applicants had, at
the same time, also sought discovery of relevant documents to the question in issue
which had been provided by the respondents and that the respondents had acceded
to the applicants’ expert to have access the respondents’ system from which relevant
information to the transactions could be found.

Held further – that since the applicants sought to have a dispute of fact resolved
regarding whether the goods in question had been removed from the court’s
jurisdiction, there was a mechanism available in the rules of court, to deal with such
scenarios and that ss. 423 and 424 were not designed to serve that purpose.
 112

Held – that the onus, in terms of the Customs and Excise Act, 1998, was on the
company involved in import and export to provide evidence that goods imported into
the country were subsequently exported outside the common customs area, failing
which customs duty would have to be paid by such entity.

The court found that the applicants had abused the procedures and that their
application was not tailored for the circumstances of the case. The court therefore
dismissed the application but declined to order costs de bonis propiis against the
applicants because the issue of alleged abuse of the processes of the court was only
raised in argument and did not appear in the affidavits nor in the heads of argument
filed.

Metropolitan Bank of Zimbabwe (Pty) Ltd v Bruni (HC-MD-CIV-MOT-GEN -

2018/00062 [2018] NAHCMD 97 (17 April 2018)

Summary: The applicants brought an application for rescission of an order of this

court granting the liquidators, who are the respondents certain powers in respect of
recovery of money and assets of the company and payment part of deposits to clients
of the Bank in liquidation. The orders were granted ex parte with the applicants, who
are shareholders of the Bank unaware of the proceedings and not having been cited
nor served therewith.

Held – that the applicants, by virtue of their shareholding had rights and interests
which could be affected by the granting of the order in question ex parte.

Held further – that in applications under rule 103, the applicant has to show that the
order sought to be impugned was granted in the applicant’s absence and in error and
that the applicant is affected thereby.

Held – that in some cases, such as the present, the requirements of an error and that
the order affects the applicant may coalesce and that once the order is granted in
absence of such a party, whereas that party may be affected thereby may be
indicative of the application having been granted in error.

Held further – that in applications for amendment of notices of motion where the
amendment is merely formal and seeks to change the name, without any mala fides
on the part of the applicant; prejudice, to the opposite party, the courts normally grant
such orders subject to the applicant paying the costs occasioned thereby.

Held – that there appears to be a difference in the duties and functions of provisional
and final liquidators and that there are some functions which are the exclusive
 113

preserve of the latter, the former being largely restricted to maintaining the status
quo.

Held further – that courts should avoid being highly technical but should, in dealing
with matters, avoid an approach where serious matters are dismissed on highly
technical issue to the detriment of deciding the matters on their real merits.

Held that – in urgent applications, the court may overlook the non-authentication of
documents attached to affidavits, which are executed in countries, which are
otherwise exempt from authentication.

Held – legal practitioners, as officers of the court, have an abiding duty to assist the
court on all procedural and legal questions that arise, particularly in matters brought
ex parte.

After reviewing all the matters that arose, the court formed the view and concluded
that the applicants had established that they had an interest in the orders sought and
granted and held that because they were not served with the papers, their interest
notwithstanding, the order sought was issued in error within the meaning of rule 103.
The order was thus rescinded and set aside.

Miljo v Ndivayele (I 3903/2015) [2018] NAHCMD 263 (30 August 2018)

Summary: The defendant’s vehicle collided with the plaintiff’s vehicle when
defendant made a U-turn in front of the plaintiff’s vehicle. He hit the left front side of
the plaintiff. Held: Defendant was a poor witness while plaintiff gave acceptable and
credible explanation of how the accident happened. Held: That it is a notorious fact
and common know ledge how taxi drivers operate on public roads. They have no
regard of safety of other motorists, pedestrians and own passengers. Court granted
judgment with costs of suit in favour of plaintiff.

Minister of Finance v Hollard Insurance Company of Namibia Limited (HC-MD-

CIV-MOT-GEN-2018/00227) [2018] NAHCMD 294 (20 September 2018)

Summary: The Applicants brought an urgent application to compel the respondents

to comply with certain notices and regulations in terms of Namibia National
Reinsurance Act No. 22 of 1998 (the ‘Act’). The First Applicant caused certain notices
and regulations to be issued and gazetted namely; Government Notices 333, 334,
335, 336, 337 and 338, promulgated on 29 December 2017 in terms of the Act in
Government Gazette 6496, and published in terms of the Act and published in
Government Gazette No. 6496. These notices dealt with the compulsory cession of
insurance contracts and reinsurance business and related matters. A constitutional
challenge to the issuance of these notices was mounted by the respondents, who
 114

brought an application for review before this court, in which they seek to have the
said notices and regulations should be set aside.

The First Applicant sought a declarator that the said notices and regulations were
valid and enforceable and compelling the Respondents to comply with the 29
December 2017 notices and regulations or face imprisonment for contempt of court.
The Respondents contended that they would not comply with the notices and
regulations pending a final determination of the pending judicial review proceedings
and raised a collateral challenge in that regard. The Applicants argued that the
current proceedings are not the right ones in which to bring such a challenge whilst
respondents contended the opposite.

Held - that even though it may appear at first blush that these are not the right
proceedings in which to raise a collateral challenge, the peculiar circumstances of
this case, particularly the type of proceedings which have given rise to the collateral
challenge, namely, an urgent application, together with the fact that other
proceedings are pending before this court, points inexorably in the way of staying the
effect of the First Applicant’s actions, pending the full and comprehensive treatment
of all the issues raised in the pending proceedings.

Further held - that pending the outcome of the review and the action proceedings, the
decision of the First Applicant must be stayed to allow the matters, which have
already been launched, to be ventilated and decided by this court.

Held - that in the circumstances, it would appear that parties in the respondents’
position are entitled at law, as held in the Black Range case, to treat the
administrative action as void and await developments.

Held further – that certain language employed by the respondents in their answering
affidavit fell within the realms of the scandalous, vexatious and irrelevant and should
therefore be struck out.

The court granted an order staying the application and enforcement of the Minister’s
notices and regulations pending the determination of the pending proceedings with
costs. Concomitantly, the court ordered the respondents jointly and severally for the
costs in respect of the motion to strike out.

Miranda Tyre Service (Pty) Ltd v Jin Casings and Tyre Supplies CC (HC-MD-
CIV-ACT-CON-2017/03179) [2018] NAHCMD 247 (10 August 2018)

Summary: The application before this court, is an interlocutory application, more

specifically a Summary Judgment Application. The plaintiff instituted action
proceedings against the defendants for goods sold and delivered, resulting in an
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acknowledgment of debt being concluded, which is also the basis of the plaintiff’s
claim.

The first defendant raises the defence of amongst others, duress and the authenticity
of the acknowledgment of debt signed.

Held – that the first defendant raised a triable defence and therefore the summary
judgment could not succeed.

Held further – the Summary Judgment Application is refused.

Muhura NO v Lewcor CC (I 3093/2011) [2018] NAHCMD 375 (23 November 2018)

Summary: The plaintiff instituted summons wherein in the particulars of claim, she
claimed for loss of support in the death of the late Mr. Andreas Sikwaya Ndara, whom
the plaintiff alleges is a result of the defendant’s negligence.

The defendants however raised a special plea by virtue of s 7 of the Employee’s

Compensation Act 30 of 1941 which precludes any action against an employer for
damages in terms of the common law.

As the plaintiffs were unrepresented and chose to litigate in-person, the court now
had to determine the special plea raised by the defendant.

Held – In order to consider the argument advanced on behalf of the defendant, it was
necessary for this court to have regard to the Compensation for Occupational Injuries
and Diseases Act 130 of 1993 of South Africa, which legislation has a similar section
incorporated in the said Act. The reason for this approach was simply the position no
similar cases in this jurisdiction dealt with the issued at hand.

Held – The Employee’s Compensation Act, Act 41 of 1930 provides for the
administrative process for the recovery of compensation as set out in s 50 to 63 of
the Act in an instance where an employee meets with an accident, resulting in his/her
disablement or death.

Held further – I am of the considered view that the facts of the matter in casu falls
within the ambit of the Employee’s Compensation Act and the plaintiffs are therefore
by virtue of s 7 of the Act, barred from from suing defendant in terms of the common
law for damages.

Multi Engineering Contractors (Pty) Ltd v De Vries Cooling Services CC & Mr B

Zaaruka t/a Benz Building Supplies (I 857/2014) [2018] NAHCMD 50 (08 March
2018)
__________________________________________________________________________________
 116

Summary: Practice Judgment and Orders – Plaintiff’s objection to content of some

paragraphs and annexures in the witness statement of the second defendant. Court
refuses to sustain the objection raised against para 21 of the witness statement at
this stage of the proceedings but rule in favour of the plaintiff in respect of objection
raised against para 26, 27, 30, 35, 37 and 39 as well as annexures attached thereto.

Mungendje v Kavari (HC-MD-CIV-MOT-GEN-2017/00399) [2018] NAHCMD 153

(22 November 2017)

Summary: The applicants brought an urgent application claiming to be acting on

behalf of their fellow political party members whom the applicants contended had
been disenfranchised during the political party’s districts and regional elections – The
applicants sought to interdict the Party from allowing the delegates who had been
nominated and elected and the districts and regional conference from attending the
party’s congress and further interdicting the political party from allowing the delegates
to attend the party’s congress.

The applicants alleged that by virtue of the provisions of Articles 17 and 21 they had
the constitutional right to approach the court on to assert the right of their fellow
disenfranchised political party members.

Held that: Articles 17 and 21 of the Constitution do not create constitutional rights for
any member of a political party to approach the court on behalf of his or her fellow
political party members; and that the said Articles merely vest the right in all citizens
the right to participate in political activities, to form and join political parties.

Held that the applicants’ right to bring the application – locus standi had to be
determined in terms of the common law.

Held further, that the applicants had failed to discharge the onus that they had the
locus standi to bring the application and for that reason the application was dismissed
with costs.

Municipal Council of Windhoek v Kolowali (HC-MD-CIV-ACT-CON-2018/00704)

[2018] NAHCMD 206 (5 July 2018)

Summary: Applicant launched an application for summary judgment and an

application for condonation for late filing of heads of argument. Applicant only
attached a copy of a letter, to the application for summary judgment, indicating that
Applicant had invited the Respondent to provide Applicant with a “settlement
 117

proposal”. Court holding that such letter does not constitute compliance with the
requirements of rule 32 (9) and (10). Applicant’s application struck from the roll.

Musoni v Cosmas (HC-NLD-CIV-ACT-DEL-2016/00301) [2018] NAHCNLD 67 (23

July 2018)

Summary: Plaintiff sued defendants for various amounts both for patrimonial and
non-patrimonial loss. The claims were lumped together and there was no proof of the
loss incurred. The court requires proof of damages in order to make a reasoned
decision. Plaintiff partially succeeded in his claim.

Mwambwa v The Minister of Safety & Security (I105/2014) [2018] NAHCMD 89

(12 April 2018)

Summary: The plaintiff instituted proceedings against the Minister of Safety and
Security, the Prosecutor-General and the Government of the Republic of Namibia for
damages for alleged malicious prosecution, in the alternative, a claim for alleged
violation of various constitutional rights. The plaintiff was one of many accused
persons charged with 278 charges to which the most serious of the charges, on
which plaintiff was prosecuted, were high treason, sedition, public violence, murder
and attempted murder (collectively referred to as “high treason”) in what has become
known as the Caprivi Treason trial.

On 11 February 2013, plaintiff was acquitted and discharged in terms of s 174 of the
Criminal Procedure Act 51 of 1977 and after being so acquitted, the plaintiff filed a
claim for malicious prosecution, pleading that from 08 March 2006, alternatively 18
October 2011, his continued prosecution was without any reasonable or probable
cause and the trial should have been stopped in terms of s 6 (b) of the CPA or within
a reasonable time thereafter; alternatively the Prosecution ought reasonably to have
closed the State’s case against him and have moved for his discharge or caused his
release from prosecution.

The first and second defendants both denied liability in respect of the plaintiff’s claim,
alleging that the evidence collected against the plaintiff by the Namibian Police
provided sufficient grounds to hold a reasonable belief that the plaintiff had committed
the offences as contained in the annexure to the combined summons. Further the
second defendant denied that she could have stopped the prosecution in terms of s
6(b) of the CPA on 08 March 2006 alternatively 18 October 2011 or any time
thereafter other than when State closed its case on 02 February 2012 as the second
defendant or her employees believed that the evidence presented against the plaintiff
during the trial was sufficient to convict him on the charges preferred against him.
 118

Held – that the defendants conceded that the members of the second defendant
initiated and continued prosecution of the plaintiff until the latter was discharged,
following an application in terms of s 174 of the CPA, further conceding that the
prosecution of the plaintiff failed.

Held – As a result of the failed prosecution as conceded, the remaining issues the
court had to determine were firstly, whether the prosecution of the plaintiff was done
without reasonable and probable cause, and secondly, whether the members of the
second defendant acted with malice or animo injuriandi.

Held further – It is clear that the Namibian Police gathered information from various
sources and agencies where after they interviewed the witnesses and obtained the
necessary statements in order to compile a docket

Held further that – There is no evidence that the police officers did anything other
than what would be expected of them as the investigators in this matter. There is no
evidence that the first defendant instigated the prosecution of the plaintiff and the
claim against the first defendant can thus not succeed.

Held further that – It however remains common cause that the prosecuting authority
relied on the information received from the Namibian Police and the statements under
oath from third persons and further that that there were no sound reasons advanced
by the plaintiff as to why the prosecution team had to disbelief the statements under
oath at their disposal.

Held further that – the plaintiff failed to prove on a balance of probabilities that the
second defendant acted with malice in initiating the prosecution against the plaintiff or
that second defendant instigated the proceedings did it with the aim to injure plaintiff.

Mwoombola vs The Master of the High Court (HC-MD-CIV-MOT-GEN-

2017/00299) [2018] NAHCMD 103 (20 April 2018)

Summary: The applicants in this matter approached this court for an order in the
following terms: (a) That the testamentary document executed on 02 February 2017
by the late Linea Peneyambeko Nuugwedha who died on 03 February 2017, a copy
of which is appended to the Affidavit of Gina Nelao Wetutala Mwoombola as
Annexure A, is declared to have been intended by the deceased to be her last Will;
(b) That the respondent is directed to accept the aforementioned testamentary
document as a Will for purposes of the Administration of Estates Act 66 of 1965; (c)
That the administrative oversight by not signing on pages 1-3 of the testamentary
document by the testator and two witnesses as contemplated by Section 2 (1)(a)(iv)
of the Wills Act 7 of 1953 be condoned; (d) That the party who is appointed as the
executor by the testamentary document shall so remain.
 119

The respondent opposed the application launched by the applicants, arguing that the
late Nuugwedha’s document purporting to be her last will and testament in terms of
the Wills Act, 1953 was not a valid will, as that document was not in compliance with
the formalities required for the execution of a valid will.

Held that it is no longer appropriate for courts to simply defer to what parliament or
the legislature says, but to ask the question whether the statutory provisions, in
question, promote the spirit of the Constitution and whether the strict application of
the statutory provision will amount to a violation of a fundamental human right.

Held that the court is of the view that the first principle of the law of wills is freedom of
testation. Although the legislature limits the power of testation in various ways, within
the province that remains to the testamentary power, virtually the entire law of wills
derives from the premise that a person has the fundamental right to dispose of his or
her property as he or she pleases in death as in life.

Held further that the rules governing testamentary capacity and the construction of
wills must, therefore, not result in interfering with or depriving a testator or testatrix his
or her freedom of testation.

Held that taking into consideration that; the right to dispose of her property as she
pleases in death as in life is a fundamental right, the late Nuugwedha substantially
complied with the formalities prescribed by s 2 (1) (a)(iii) and (iv) of the Wills Act, and
the purposes, of the signature to a will and the fact that in this case the dangers
which the Wills Act aims to prevent or eliminate are not present in this case, the court
is of the view that invalidating the will amounts to the violation of the fundamental
right of the late Nuugwedha to freedom of testation.

Held finally that the testamentary document executed on 02 February 2017 by the
late Linea Peneyambeko Nuugwedha who died on 03 February 2017, a copy of
which is attached to the affidavit of Gina Nelao Wetutala Mwoombola as Annexure A,
is a valid Will and the court directs the Master to accept it as such.

Nafuka v Alexander Forbes Insurance Company Namibia Limited (I 2380/2015)

[2018] NAHCMD 298 (24 September 2018)

Summary: The Insurance company Alexander Forbes paid compensation in an

amount of N$ 180 000.00 to Mr Nafuka for damages to his vehicle sustained in an
accident while the third party Ms Ngolo was the driver. When sued by the Insurance
company for compensation for the amount paid to the owner of the vehicle, Ms Ngolo
raised a special pleas of locus standi and volenti non fit injuria. Court dismissed both
special pleas and held: Insurance company has locus standi to sue third party on the
principle subrogation.
 120

Held further that the defence of volenti non injuria is not applicable in the matter.

Held furthermore that the third party was liable to compensate the Insurance
company in the amount of N$180 000.00 paid to the plaintiff.

Nambinga v Rally for Democracy and Progress (HC-MD-CIV-MOT-GEN-

2017/00378) [2018] NAHCMD 102 (20 April 2018)

Summary: The applicant’s application was primarily on the ground that the
decision to pass a vote of no confidence was taken without having been an item on
the agenda of the National Executive Committee meeting of 12 August 2017 and
without the applicant being given adequate notice to prepare for and to properly
address the issue. He furthermore contend that he was thus not given a hearing
before the decision was taken.

The applicant further avers that the decision to pass a vote of no confidence in him
was taken, contrary to the provisions of Article 19 of the constitution of the first
respondent, which requires not only that application of any disciplinary sanction be
preceded by a prudent and meticulous investigation and only after the accusation has
been duly proved correct, but also that the fundamental objective of application of any
sanction is education of RDP cadres aiming at strengthening or reinforcing the RDP
unity and safeguarding the ideological purity of the RDP.

The respondents contend that the applicant is bound by the constitution and
procedures set out in the constitution of the first respondent. This includes the
obligation to first exhaust the domestic remedies provided for in the constitution of the
first respondent, in the event where he feels aggrieved by a decision of a
constitutional structure of the first respondent such as its National Executive
Committee. To resort to Court without first exhausting the domestic remedies
provided for in the first respondent’s constitution is not competent.

Held that the mere fact that a statute creates an internal remedy does not imply that
access to court is prohibited pending the exhaustion of that remedy.

Held that there is nothing in the language of the RDP‘s constitution that prohibits a
member from approaching a court if that member is aggrieved by a decision of one of
the organs of the first respondent. Since there is no general principle at common-law
that an aggrieved person may not go to court while there is hope of extrajudicial
redress, the court is of the view that the applicant was, as he did, entitled to
approach this Court for relief.

Held further that the decision to adopt a motion of no confidence in the applicant was
a clear breach of the contractual terms between the applicant and first respondent
and can therefore not be allowed to stand.
 121

Namibia Airports Company v IBB Military Equipment and Accessory Supplies

Close Corporation (HC-MD-CIV-ACT-OTH-2017-01488) [2018] NAHCMD 271 (31
August 2018)

Summary: During proceedings, this court made an order wherein the plaintiff was
ordered to discover by 15 January 2018, which it failed to comply with. The defendant
then brought an application to have the plaintiff’s claim dismissed as a result of the
non-compliance.

Held – the court must decide on the reasonableness of the explanation for the non-
compliance of the defaulting party as the provisions of Rule 53 will only apply if and
when the court finds that the defaulting party, without a reasonable explanation failed
to comply with a case plan, as in this instance. Once the court finds that the
defaulting party has no reasonable explanation the court must enter an order that is
just and fair.

Held – Non-compliances with court order is serious business but each case will have
to be treated in the light of its own peculiar facts and circumstances. Given the
circumstance of this matter, it would an unduly harsh sanction to impose should the
court not accept the explanation for non-compliance on behalf of the plaintiff.

Held – the defendant was unduly litigious and instead of allowing the matter to move
forward it was halted with an interlocutory application that was in my opinion
avoidable. It is therefore necessary that this court should show its displeasure with
the conduct of the defendant by imposing an appropriate cost order.

Namibia Breweries Limited v Timoteus Paulus trading as Gweni Bar (I

2087/2016) [2018] NAHCMD 39 (26 February 2018)

Summary: Plaintiff delivered goods in terms of agreement. Defendant admits

delivery but raised plea of non-joinder.

Namibia Marine Phosphate (Proprietary) Limited v Minister of Environment and

Tourism (CA 119/2016) [2018] NAHCMD 122 (11 May 2018)

Summary: The appellant was granted an environmental clearance certificate for

marine phosphate mining by the Environmental Commissioner. The second
respondent, a certain Mr Michael Gaweseb, appealed against the Commissioner’s
decision, to the Minister. The Minister set aside the granting of the certificate,
 122

primarily on the ground that the Commissioner did not adequately consult the public
and interested persons.

During the appeal hearing before the Minister, both parties had made written
representations. The second respondent completed the appeal Form 3 which was
also handed to the appellant and the appellant subsequently, delivered a responding
statement thereto. On the day of the hearing, the Minister gave the second
respondent an opportunity to make oral submissions, but, the appellant was not
informed of the appeal hearing and was thus not present at the appeal hearing.
During those submissions, the second respondent introduced a new issue –
inadequate consultations, but this issue was not recorded as a ground of appeal on
the appeal Form 3 and therefore the appellant had no knowledge of it.

Aggrieved by the Minister’s decision to set aside the environmental clearance

certificate which was issued to it by the Commissioner, the appellant appealed, in
terms of s 51 of the Act, to this Court against the Minister’s decision. The appellant’s
attack on the Minister’s decision was that there was no proper appeal for the Minister
to consider, the second respondent had no locus standi to appeal to the Minister and
the Minister violated the appellant’s right to a fair hearing and fair administrative
action. The Minister and the second respondent opposed the appeal on a variety of
grounds. The main ground on which they opposed the appeal is that the appellant’s
appeal was allegedly not based on points of law only, but on factual matters.

Held that the second respondent’s appeal before the Minister was compliant with the
Regulations made under the Environmental Management Act, 2007.

Held further that in a constitutional State, citizens are entitled to exercise their rights
and they are entitled to approach courts, where there is uncertainty as to the law to
determine their rights. The court thus found that, in the context of the Act, Mr
Gaweseb has a legal grievance and is as such, an aggrieved person entitled to
approach courts to determine his rights.

Held further that it is now well established in our law that an administrative act or
decision, even if improperly taken, remains effectual until properly set aside and
cannot just be ignored. Since the Minister extended the time within which to launch
the appeal and the decision to extend the period within which to lodge a s 50 appeal
is not the subject of a review application, that decision remains and the appeal was
thus lodged within the extended period.

Held furthermore that the question whether or not the s 51 appeal hearing before the
Minister violated the appellant’s rights conferred on him by Articles 12 and 18, is a
question of law.

Held furthermore that if the principles of natural justice are violated in respect of any
decision, it is, indeed, immaterial whether the same decision would have been arrived
 123

at in the absence of the departure from the essential principles of justice. The
decision must be declared to be no decision.

Nangolo v Imene (HC-MD-CIV-ACT-CON-2016/03515) [2018] NAHCMD 109 (20

April 2018)

Summary: Plaintiff instituted an action against the Defendant on 25 October 2016,

but did not prosecute such action to finality. The Plaintiff served fresh summons on
the Defendant on 02 March 2017. The Defendant raised a special plea of
prescription, in that the cause of action arose on 17 October 2013, however, the
Plaintiff only served the Defendant with the summons on 02 March 2017. The
Defendant alleged that the initial summons interrupted the running of prescription.
The initial action was removed from the roll on 22 October 2015 and was not
prosecuted to finality.

Held, that the Plaintiff’s claim has prescribed.

Ndemuweda v The Government of the Republic of Namibia (Minister of Health

and Social Services) (HC-MD-CIV-MOT-GEN-2017/00336) [2018] NAHCMD 67 (23
March 2018)

Summary: The plaintiff instituted action against the Government of the Republic of
Namibia represented by the Ministry of Health and Social Service as defendant. The
ministry as the defendant, opposed the action instituted by the plaintiff. The matter
was referred to Court connected mediation in which a settlement agreement was
reached. Pursuant to the settlement agreement, this court on 3 October 2016 issued
an order making the settlement agreement between the plaintiff and the Ministry as
defendant an order of Court.

In terms of that order the Ministry was ordered to pay to the plaintiff an amount of
N$400 000 plus interest calculated at the rate of 20% per annum. The money had to
be paid within a period of one hundred and twenty days from the date that the
settlement agreement was signed. The settlement agreement between the parties
was signed on 28 September 2016, meaning that payment to the plaintiff had to be
effected by the latest on 31 January 2017.

At the end of March 2017, the plaintiff enquired with the Government Attorney’s office
as to payment that had to be made to it by the defendant, to which the Government
Attorney’s office responded that a letter was sent to the defendant awaiting
instructions. The plaintiff then again enquired with the Government Attorney’s office
via letter regarding payment that was due as per the court order on 15 May 2017, to
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which, up until 18 September 2017 when this application was launched, no response
was made by.

On 15 May 2017, the plaintiff’s legal practitioners addressed a follow up letter to the
Government Attorney enquiring about the payment that was due in terms of the court
order. The letter written on behalf of the plaintiff on 15 May 2017 has, up until 18
September 2017 when the plaintiff brought this application, not been responded to.

During court proceedings, the Permanent Secretary as the accounting officer in the
Ministry, came to Court to explain why the payment due as per court order was
delayed for more than eleven months after the due date. The Permanent Secretary
testified that the Ministry of Finance informed him that it did not have the funds to
make that payment and instructed the Ministry to identify a budget vote from its
Ministry’s budget from which the payment would be effected. The Permanent
Secretary further testified that because of the precarious financial position of
Government, the Ministry of Finance jettisoned the traditional approach of transferring
the entire amount of money budgeted in respect of a financial year to a Government
Ministry and was now only releasing money on a monthly basis and the moneys so
being released was also not the entire funds requested by a Ministry but it depended
on the cash flow situation of the Ministry of Finance. The money that would be
released by the Ministry of Finance to the Ministry would barely be adequate to fund
the operational activities of the Ministry and the Ministry would, despite the will to pay
the plaintiff always be left short of funds to meet its financial commitments.

As a result, the Permanent Secretary undertook to divert funds from the funds that he
will receive in respect of the month of November 2017 so that he can comply with the
Court order of 3 October 2016. He made an undertaking that the Ministry will pay the
amount of N$ 400 000 by the end of November 2017.

Held that The Constitution explicitly enjoins organs of State to assist and protect the
courts to ensure their independence, impartiality, dignity, accessibility and
effectiveness.

Held further that in order to ensure that the courts’ authority is effective, an order of
court binding on ‘all persons to whom and organs of State’ to which it applies must be
fulfilled.

Held further that a person who unlawfully and intentionally disobeys a court order that
person commits the offence of contempt of court and that the essence of the offence
of contempt of court lies in the violation of the dignity, repute or authority of the court.

Held further that the explanation of the Permanent Secretary clearly indicates that
'deliberate and mala fide' are absent in the disobedience of the Court order of 3
October 2016 and that he has shown good cause, however, due to the constitutional
functions carried by State organs, a constitutional crises will develop if court orders
are not heeded and honoured.
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Held further held it is recommend to the Minister of Finance that he investigate

means on how the State’s obligation to pay monetary awards emanating from Court
orders can be funded from sources other than the operational budgets of the
Ministries.
Ndilula v Beuthin (I 2099/2015) [2018] NAHCMD 73 (28 March 2018)

Summary: Costs – General principle that costs follow the event and that the rule
may be departed from where exceptional circumstances exist applied – Court held
that where plaintiff has dragged defendant to the High Court in a matter where the
Magistrates’ court also has jurisdiction and defendant succeeds in her defence court
should award to defendant costs applicable to the High Court – Court held further that
where plaintiff succeeds in a matter in the High Court in which the Magistrates’ court
also has jurisdiction it will be unjust and inequitable for court to award to plaintiff costs
applicable to the High Court – In instant case court found that plaintiff has not shown
exceptional circumstances to persuade the court to depart from the general principle
– As respects to Claim 2 court found that the Magistrates’ court also clearly has
jurisdiction and plaintiff should be awarded costs applicable to the Magistrates’ court
– As respect Claim 1 court found that since defendant was dragged to the High Court
and defendant has been successful in her defence, defendant should be awarded
costs applicable to the High Court.

Negonga v Nampost Limited (HC-MD-CIV-ACT-OTH-2017/01174) [2018]

NAHCMD 212 (13 July 2018)

Summary: The plaintiff instituted action against the defendant which action arises
from monies that the plaintiff deposited in his account with the defendant over a
period of time. Once the plaintiff reconciled his statements received from the
defendant, he noticed that there was a deficit on his account as the amounts
deposited did not reflect on his statement. The defendant raised a special plea to the
effect that the plaintiff’s claim has prescribed.

The defendant submitted that prescription would start running on date of deposit
based on the fact that the plaintiff had access to the account at all times and the fact
that repayment in respect of the said claim would become due and payable on the
date of deposit. The first deposit was made on 18 January 2013 and action was
instituted on 02 May 2017.

The defendant further submitted that the plaintiff cannot and should not rely on when
he became aware of the alleged debt but rather on when he should have become
aware of the debt. The defendant argues that the plaintiff at all times had access to
his statements and if he had exercised reasonable care as expected of the
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reasonable man, he would have become aware of the alleged debt before
prescription of the debt, i.e. prescription cannot be postponed by the inaction of the
creditor if he could have acquired knowledge of the debt by exercising reasonable
care.

The plaintiff however advanced that the prescription of the debt could only have
started to run when the plaintiff became aware that the monies were not in his
account and further that the plaintiff indeed exercised reasonable care in as far as it
is required by the Prescription Act.

The plaintiff further raised the question as to what would be reasonable care. Plaintiff
denies that he had continuous access to his account as he is residing in Gobabis and
the account was held at the defendant’s Leonardville branch.

A further question of when the debt becomes due was also raised by the plaintiff.
When a client deposits money into his or her account, can it be said that the debt is
said to exist at the moment when the deposit is made or does there need to be a
demand made for there to be a debt. She further argues that upon depositing monies
into the customer account, there is no stipulation as when the plaintiff would have to
withdraw the said monies and the defendant can therefore not argue that prescription
in respect of claim as such begins to run from date of deposit.

Held – that prescription would not begin to run at the time of making a deposit. This
would create an untenable position as a client would not be able to claim refund of
his/her monies after the lapsing of three years as the claim would have prescribed.

Held further – the date of the deposit is therefore not the determining factor in when
the debt became due. The determining factor in deciding if the claim has prescribed
or not is in respect of when demand was made for the payment thereof.

New Force Logistics CC v The Anti-Corruption Commission (HC-MD-CIV-MOT-

GEN-2018/00018) [2018] NAHCMD 28 (14 February 2018)

Summary: In this application, the respondent seized and attached property

belonging to the applicant, namely trucks, containers and their contents and certain
permits. The applicant therefor sought an order from the court declaring that the
conduct of the respondent’s agents of searching, seizing and attaching the trucks,
consignment, documents and keys belonging to the applicant, is unlawful.

Held that: The applicant brought the case on the basis of what is referred to as
commercial urgency. The court found that the matter is sufficiently urgent to merit the
abridgment of the rules applied for.
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Held that: In matters where fundamental rights and freedoms are concerned, the
courts, as a rule, strictly construe legislation that is invasive in character and affects
the enjoyment of rights and freedoms.

Held further that: Because respondent relied on s. 23 of the Anti-Corruption Act,

the person(s) responsible for the search, seizure and attachment, without a warrant,
must disclose to the court what considerations led them to conclude that there was
indeed a reasonable suspicion of the commission of a crime and the reasons why, in
their peculiar circumstances, they did not find it necessary or expedient to obtain a
warrant. In that premise, the court held that the Head of Investigations, who was not
involved in the actions complained of, deposing on oath to issues relating to the state
of mind of an officer on the ground and who has to taken steps that serve to violate
some constitutionally protected rights is insufficient and inadmissible.

Held that: In so far as a functionary relies for its actions on particular provisions of
an Act, which are invasive and violative of fundamental rights of an individual, the
courts must hold the middle ground and ensure that where crime is suspected to
have been committed, those suspected are treated fairly and strictly in terms of the
law.

Held further that: The respondents, in their affidavits, did not state that they
informed the applicant’s employees regarding their right to legal representation and
the exercise thereof as mandatorily required by s.25 of the Anti-Corruption Act. That
omission, the court held, renders the action taken by the respondents in violation of
this section unlawful.

Held that: There was no need for the applicant to comply with the requirements of
Rule 32 (9) and (10), before launching these proceedings, as the application in
question was not interlocutory in nature and/or effect.

The application was consequently granted with costs on a party and party scale.

Ngavetene v Minister of Agriculture, Water and Forestry (HC-MD-CIV-MOT-CRT-

2017/00316) [2018] NAHCMD 387 (26 November 2018)

Summary: The applicants brought an application before court to declare a decision

by the Minister of Agriculture, Water and Forestry, made on 16 February 2017 to
appoint the third to eight respondents to the board of directors of Meatco to be in
conflict with and ultra vires the provisions of s 5 of the Meatco Act read with the
relevant provisions of the Public Enterprises Governance Act, 2006 and to be in
violation of Article 18 of the Namibian Constitution.

The application is opposed by the respondents, the Minister contending that he acted
in terms of s 5(4) of the Meatco Act and therefore his decision was compliant with the
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Act. Further the respondents raised two points in law in limine, namely; applicants’
lack of locus standi and that this application was launched unreasonably late.

Court held: The applicants, as members of Meatco are entitled to exercise their
rights as such and in doing so to approach the courts if they are of the view that a
decision taken by the Minister with regard to Meatco is ultra vires. If in the end the
applicants were to be proved to be incorrect, then they would have obtained legal
clarity on what they might have perceived to be their legal entitlement.

Court held further: When considering what a reasonable time is to launch

proceedings, the court has to have regard to a reasonable time required to take all
reasonable steps prior to and in order to initiate those review proceedings. In this
matter, the applicants’ explanation how they arrived at the decision to ultimately
resorting to litigation is reasonable and acceptable. They explained in thorough detail
the steps they took, the number of consultations held with their legal practitioners,
thereafter with their junior counsel, the availability of the senior counsel and ultimately
the settling of papers by senior counsel and finally the filing of the application.
Therefore, the events as described by the applicants and the seven months it took
the applicants to launch the application was not unreasonable in the circumstances.
The delay, if any, has been fully and satisfactory explained.

Held further: On the merits – Considering the Rule of Law, Ministers and public
officers at all levels must exercise the power conferred on them in good faith, fairly
and for the purpose for which the powers were conferred, without exceeding the limits
of such powers. Any limitations on the exercise of power which have been prescribed
by a statute must be observed.

Held further: The ultra vires doctrine is based on the assumption that a person or a
public body who or which owes its legal existence to and derives its power from a
statute, or an agreement or the common law, can do no valid act unless thereto
authorised by such enabling legislation or instrument. Court found that the Minister
acted outside the power vested upon him by the enabling legislation when he
purported to appoint the current directors of Meatco and that such appointment
cannot be considered to be overly formalistic as contended by the Minister.

Held further: Audi - There are no signs to indicate that when the Minister purported to
act in terms of s 5(4) he never gave a hearing to the interest groups whose rights
vested (in them) by ss 3 were about to be adversely affected by his decision. By not
doing so, the Minister failed to comply with the audi principle and further did not act
fairly nor transparently.

Held further: The Minister failed to apply his mind to the relevant issues in
accordance with the directives of the statute. In fact, the Minister was more
concerned with form than with substance. Court found that the Minister was functus
officio when he purported to appoint the current board whilst his illegal decision was
still standing; furthermore that the Minister acted ultra vires the provisions of s 5 (3)
 129

and (4) when he purported to appoint the current directors of Meatco. He further
failed to act fairly and reasonably as required by Article 18 of the Constitution, and his
decision therefor is liable to be reviewed and set aside.

Nottingham Incorporated v Rockview Investment Number Seventy (Pty) Ltd

and VXK Investments Thirty (Pty) Ltd (A 16/2016 and A 17/2016) [2018]
NAHCMD 278 (28 August 2018)

Summary: The applicant, an American registered corporation under receivership,

brought an application to wind up the respondents, based on their inability to pay a
debt, the cause of action being an arbitral Award made an order of court in favour of
the applicant. The principal debtor conceded that it is insolvent. The surety raised a
number of technical defences inter alia lack of locus standi; absence of authorization
by the deponent to the founding affidavit; that the founding affidavit has not been
properly authenticated; and that its offer of settlement to pay off the debt was
protected by the ‘without prejudice’ rule.

The surety also raised a defence on merits that the applicant’s cause of action
against the principal debtor had prescribed.

Court held: On the evidence before it, it was satisfied that, the deponent to the
applicant’s founding affidavit, was duly authorised to bring the proceedings.

Held further: The court will exercise jurisdiction over any incola who is either
domiciled or resident within its jurisdiction and that the court will exercise this power
no matter where the cause of action arose or whether the plaintiff or applicant is a
pregrinus.

Held further: An admission of insolvency by a party should not be precluded from

disclosure based on the ‘without prejudice’ rule. As a matter of public policy, an act of
insolvency should not be afforded the same protection which is afforded to settlement
negotiations. Therefore the offers of settlement made by the respondents to the
applicant following receipt of letters of demand fall within the exceptions to the
‘without privilege’ rule. Accordingly, the offer made by the respondents to the
applicant constitutes an admissible evidence of an act of insolvency.

Held further: The judgment obtained against a principal debtor covered by a

suretyship agreement, constitutes a new cause of action and that the surety is liable.
In other words, prescription against the surety commences running independently of
the original debt, from the date of the judgment.

Held further: For the foregoing reasons, the applicant has made out a case that the
respondents are unable to pay their debts and must therefore be wound-up into the
hands of the Master of this Court.
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Offshore Development Company v Deloitte & Touche (I 1111/2006) [2018]

NAHCMD 299 (25 September 2018)

Summary: Practice – Trial – Special case in terms of rule 63 of the rules of court –
Counsel for plaintiff and counsel for defendant by agreement submitted to the court a
special case in terms of rule 63 for adjudication on in terms of that rule – Agreed
separated issues determined after plaintiff’s evidence – Separated issues concerned
whether plaintiff lost N$65m in an investment adventure for which its auditors being
the defendant could be held liable on the basis of defendant having breached its
contractual obligations in relation to its audit of defendant’s financial statements for
the year ending February 2003 – Court found that on the facts third entities used
defendant as a conduit through which they moved their moneys to what turned out to
be bogus and fraudulent investees – Court concluded that the moneys belonged to
those third entities and it was their investment – The investment was not defendant’s
– Defendant could not lose what it had not itself possessed and therefore could not
claim what it itself had not lost – Consequently, separated issues determined in
favour of defendant – Whereupon plaintiff’s claim dismissed with costs.

Olivier v Olivier (I 1784/2016) [2018] NAHCMD 223 (20 July 2018)

Summary: The Plaintiff instituted an action against the Defendant for payment of
N$ 256.711.01. That amount constitutes the balance amount, after payment of
mortgage bond, from the proceeds of a sale from an immovable property, to which
the Plaintiff was entitled in terms of a Final Order of Divorce. The Defendant alleged
that the Plaintiff’s claim has prescribed. The court held that the claim originates from
a court order and has not prescribed.

Ombudsman v The Station Commander (HC-MD-CIV-MOT-GEN-2017/00042)

[2017] NAHCMD 366 (08 December 2017)

Summary: On 10 February 2017 the Ombudsman of the Republic of Namibia,

acting in terms of the powers vested in him by Article 91(e) of the Namibian
Constitution, on urgent basis, approached this Court seeking an order compelling the
Station Commanders of four police stations situated in Windhoek namely: the
Katutura, Seeis, Wanaheda, and Windhoek Police Stations, to produce to this Court
47 persons who were detained by the Namibian Police at the mentioned police
stations, for the purpose of enquiring into the lawfulness of the detention of those
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persons. The 47 persons were being detained by the Namibian Police at the
mentioned police stations on the instructions of the Chief Immigration Officer.

The application by the Ombudsman was prompted by an investigation which was

conducted by his office, and which unraveled the unlawful detentions of persons who
are considered prohibited immigrants. It was revealed during the said application that
the concerned immigration official had no regard for the constitutionally guaranteed
rights of the said detainees. Furthermore that there was no evidence that the
detainees had ever been informed of their rights to legal representation.

In the affidavit deposed to by the Ombudsman, it is alleged that the immigration

officials failed to conduct the statutory investigations that are necessary to enable
them to decide whether or not a person is in fact an illegal immigrant, alternatively
and on the assumption that such investigations were conducted by the immigration
officials, the investigations were not dealt with and disposed of within the period of 14
days as prescribed in the Act.

This resulted in the Court on 13 February 2017 issuing a rule nisi calling upon the
respondents to show cause on the 17 February 2017, why the Court must not order
the 47 persons to be released by 17 February 2017. The government attorney
anticipated the rule nisi conceding that the detention of the 47 persons was not in
accordance with the Immigration Act, 1993 and the Constitution of Namibia. On 15
February 2017 the Court ordered the 47 persons to be released and also ordered the
immigration officials who were involved with the arrests and detention of the 47
persons to show cause, by not later than 8 March 2017, why the immigration officials
must not personally pay the costs of the litigation.

Held that the general rule is that costs follow the course, but to justify an order for
costs de bonis propriis some proof of malice on the part of the person acting in a
representative capacity was necessary.

Held further that, on the facts of this matter that it is the institutional incompetence of
the Ministry of Home Affairs which lead to the disregard of constitutional obligations
and infringement of peoples’ rights and that the respondents must, jointly and
severally the one paying the others to be absolved, pay the applicant’s costs of this
application the costs to include the costs of one instructing and one instructed
counsel.

Ongwediva Town Council v Jonas (HC-NLD-CIV-MOT-GEN-2018/00001) [2018]

NAHCNLD 22 (12 March 2018)

Summary: Applicant, by urgent application sought to restrain and interdict

respondent from proceeding with some construction on the said property.
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Respondent resisted this move on the basis that applicant must compensate him first.
As applicant is the lawful owner of the land or is a holder of it in trust on behalf of the
State, which bestowed the right on it, it has a right to prevent unlawful occupation.

Respondent had started building structures on the property as he believed the land is
his as it belongs to his family. The property had been expropriated by the State and
given to applicant in trust. Respondent argued that it cannot halt the construction as
he has not been compensated. Compensation does not entitle respondent to refuse
to vacate the property. Respondent is in unlawful occupation. Should he require
compensation, he can proceed separately. The Application succeeds.

Ongwediva Town Council v Kavili (HC-NLD-CIV-ACT-DEL-2017/00228) [2018]

NAHCNLD 35 (16 April 2018)
__________________________________________________________________________________

Summary: Applicant (the plaintiff) sued respondents (the defendants) for ejectment
based on its ownership of a piece of property. Respondents opposed and raised a
question of disputed facts. The court held that where a dispute of facts is genuine, the
case cannot be resolved on the papers. Matter referred to trial.

Ongwediva Town Council v Shithigona (HC-NLD-CIV-MOT-GEN-2017/00017)

[2018] NAHCNLD 78 (06 August 2018)

Summary: Applicant set the matter down for hearing. Respondents filed
documents which non-compliance with the rules. Applicant advised them but they
ignored to rectify same only to do so two days before the hearing. Respondents
sought a postponement with costs on the ordinary scale. Their conduct was not
acceptable. Matter was postponed, but, respondents were ordered to pay costs at a
punitive scale.

Opuwo Town Council v Dolly Investments CC (HC-MD-CIV-ACT-CON-

2017/03148) [2018] NAHCMD 309 (24 September 2018)

Summary: The parties in this matter entered into a building contract agreement –
What came up for consideration by this court is the special plea of arbitration raised
by the defendant as a defence against the plaintiff’s damages claim against the
defendant for breach of contract – The plaintiff is of the view that the arbitration
clause is worded in a discretionary nature whereas the defendant submits that the
dispute must proceed to arbitration, staying the present proceedings.
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Opuwo Town Council v Dolly Investments CC (HC-MD-CIV-ACT-OTH-

2017/03148) [2018] NAHCMD 389 (23 November 2018)

Summary: Appellant filed an application for leave to appeal against the judgment
delivered by this court dated 24 of September 2018 and the reasons released on the
27th of September 2018. The appellant raised four grounds of appeal, which in a
nutshell indicate that this court erred in upholding the arbitration clause wherein the
plaintiff submits the concerned agreement was repudiated by the respondent.

The appellant was ultimately of the view that this court misdirected itself by
entertaining an order for specific performance by forcing the parties to comply with
the terms of their agreement and thereafter order the alleged dispute to direct
arbitration, which is contrary to the agreement between the parties. On this score, the
appellant avers that this court effectively wrote a new agreement between the parties.

The respondent is of the view that this court considered the intention of the parties
when they entered into the agreement and avers that this court correctly concluded
that arbitration clauses and referral to alternative dispute resolution aim at affording
the parties the opportunity to resolve their dispute expeditiously and cost effectively.
The respondent avers that this court exercised its discretion correctly and referred the
matter to arbitration and further that even though the arbitration clause was not
positively complied with, the parties can still be referred directly to arbitration.

Held – arbitration is a process whereby the parties to the dispute enter into a formal
agreement that an independent and impartial third party, the arbitrator, chosen
directly or indirectly by the parties, will hear both sides of the dispute and make an
award which the parties undertake through the agreement to accept as final and
binding.

Held – Where a contract is dissolved or cancelled by mutual consent, the rights and
obligations of both parties to the contract are brought to an end and neither party is
left with any claim against the other arising from the contract. Any submission to
arbitration contained in the contract is generally speaking also dissolved or cancelled.
However, even in the case of consensual termination of a contract which includes an
arbitration clause, the arbitration clause will still be operative in relation to disputes
which arose out of or in relation to the agreement, and where both parties had
intended that the arbitration clause should operate even after the agreement itself
was at an end in relation to that class of dispute.

Held further – In dealing with an application for leave to appeal, I do not believe that
another court might come to a different conclusion on the grounds raised. In my view,
 134

the applicant was unable during the hearing of this application to demonstrate that
there are prospects of success on appeal on the grounds raised.

Paulus v Tuhafeni (CA 02/2017) [2018] NAHCNLD 40 (23 April 2018)

Summary: Applicant and respondent’s daughter were customarily married and had
5 children. She died and left behind five minor children. Applicant gave custody to
respondent who then started receiving a social grant, upon realising this new
development, he forcibly took the children away from her. The court upon hearing
evidence, granted custody to the respondent. He appealed this decision. The Social
Worker reported that applicant was not a suitable parent. The appeal court adopted
this report. Appeal is dismissed.

PDS Holdings (BVI) Ltd v Minister of Land Reform (HC-MD-CIV-MOT-GEN-

2017/00163) [2018] NAHCMD 129 (16 May 2018)

Summary: The applicant obtained an order declaring an agricultural commercial

farm executable (the farm) – After the sale in execution was advertised, the Minister
of Land Reform informed the deputy-sheriff that the State intended to exercise its
preferent right in terms of the Act, to purchase the farm – The deputy-sheriff
proceeded to sell the farm to third parties at an auction without first formally offering it
to the State – Thereafter the Minister continued to negotiate the purchase price of the
farm with the registered owner to the exclusion of the deputy-sheriff who is the owner
in terms of the amendment to the Act.

The applicant which as a vested interested party in the sale of the farm brought an
application in which it sought certain orders, inter alia, declaring and confirming that
the sale agreement between the deputy-sheriff and the purchasers at the public
auction was valid. Alternatively, an order that the State purchase the farm at the price
offered by the purchasers. In further alternative, in the event the State declining to
purchase the farm at the said price, ordering the Minister to issue the deputy-sheriff
with a certificate of waiver in terms of the Act.

The applicant further alleged that, as a party with a vested interest in the proceeds of
a sale in execution of the farm, the delay by the Minister to exercise the State’s
preferent right, unduly prejudiced the applicant’s right to execute its judgment through
the sale of the farm which had been declared by the court to be executable in
satisfaction of applicant’s judgment.

It was contended on behalf of the Minister that the purchase agreement in respect of
the sale in execution of the farm, concluded between the deputy-sheriff and the
purchasers was null and void due to the fact that the farm had not been offered to the
 135

State for sale in terms of the Act and therefore the Minister was entitled to continue to
negotiate the purchase price with the registered owner to the exclusion of the deputy-
sheriff. Furthermore, while admitting the delay in finalising the sale process, it was
denied on behalf of the Minister that the delay was due to the Minister’s actions or
omissions’.

Held that, the Minister has no legal right or statutory power to recognise the
ownership of the farm by the registered owner contrary to the statutory provisions
which vested the ownership of the farm in the deputy-sheriff and which empowers the
deputy-sheriff to deal with the farm.

Held further that the deputy-sheriff was under a statutory obligation to formally offer
the farm for sale to the State and that the deputy-sheriff’s omission or failure to offer
the farm to the State constituted a non-compliance with the peremptory provisions of
the Act. The deputy-sheriff was thus ordered to formally offer the farm for sale to the
State.

Held further that the contract of the sale of the farm between deputy-sheriff and the
purchasers was not null and void as contended on behalf of the Minister: and that the
contract was merely unenforceable until the deputy-sheriff has formally offered the
farm for sale to the State and has thereafter been furnished with a certificate of
waiver by the Minister or the State has decided to purchase the farm.

Pennypinchers Timbercity Windhoek v Kohler (I 3045/2015; HC-CIV-ACT-DEL-

2016/3653) NAHCMD 232 (26 July 2018)

Summary: The plaintiffs instituted action against the defendant in two separate
matters. The first matter emanated from the Windhoek Branch of Pennypinchers and
the second matter from the Ongwediva Branch.

In respect of the Windhoek matter the plaintiffs had two claims. The first claim was
based on a written acknowledgment of debt wherein the defendant acknowledged his
liability in respect of funds he misappropriated and in respect of the second claim, it
was alleged that the defendant misappropriated funds after extensive investigations
took place.

In respect of the Ongwediva and Windhoek matter, the defendant’s alleged

misappropriation of the capital claims were settled between the parties and the court
entered judgment in favour of the plaintiffs. The only issues remaining were the issue
of interest and costs.

The plaintiff argued that the court should first and foremost determine whether the
claims were liquidated or unliquidated claims. In respect of the claim 1 in the
Windhoek matter, the plaintiff argued that whereas it is based on an
 136

acknowledgement of debt, it would therefore constitute a liquidated claim. The

plaintiff however conceded that the remaining are unliquidated claims as it could not
be ascertained without an extensive investigation, ie. it was not determined by prompt
and speedy determination. With respect to interest, it was thus submitted that it must
be calculated from date of service of summons and in the remaining claims, interest
should be calculated from date of judgment.

On the issue of costs, the plaintiff argued that the court should be guided by the
relevant principles regarding costs.

The defendant submitted with respect to the interest, he is serving a long term
imprisonment, and therefore the interest should be stayed until date of his release as
he would suffer substantial prejudice if the interest would be allowed to run from the
dates as submitted by opposing counsel. The defendant further submitted that the
interest should be at a rate of 15% and not 20% as claimed by plaintiff.

On the issue of costs, the defendant submitted that he approached the plaintiff’s
counsel on various occassions in an attempt to settle the matter and therefore the
court should not allow the costs as claimed by plaintiff.

Held – that generally a debtor, in the absence of an agreement to the contrary, has to
pay interest on an amount of money owed by him from the moment he is in mora and
it also applies in regards to a liquidated amount of damages or satisfaction and the
interest becomes part of the compensation.

Held – the interest rate is governed by the Prescribed Rate Interest Act 55 of 1975
which is currently set at 20% per annum and the Act applies ex lege and the parties do
not have to have any agreement on this issue.

Held further – that in respect of the issue of costs and although costs are generally
awarded to a successful litigant, it is clear that in light of the foregoing discretion, it
cannot be regarded as an immutable rule that costs will always automatically follow
the winning party. Rather, and in keeping with judicial discretion, a presiding officer
may in fact base a cost-award exclusively upon the equities of the action. The test in
making a cost-ruling is always to enquire what is just in the circumstances.

Prieska Tjapaka N.O. v Tjapaka (I 4079/2014) [2018] NAHCMD 41 (26 February

2018)

Summary: Absolution of the instance. Test to be applied

Held, In Stier v Henke 2012 (1) NR 370 SC at 373, paragraph 4, the Namibian
Supreme Court adopted and restated the test to be applied when an application for
absolution of the instance is considered. It is incumbent on a court, applying its mind
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reasonably to the evidence presented by the plaintiff, to be satisfied whether such

evidence could or might result in a finding favourable to the plaintiff.

I am seized to pronounce on the dispute before me and in the absence of evidence

by the first and third defendants, I am not inclined to make definitive findings, save to
find at this stage that I could or might find that first defendant acquired Farm
Sannaspost No 224 as the nominee of the late Stefanus Tjapaka.

Rashed v The Inspector-General of the Namibian Police (HC-MD-CIV-MOT-GEN-

2018/00130) [2018] NAHCMD 165 (13 June 2018)

Summary: The applicant was arrested at Hosea Kutako International Airport after
being found in possession of a large amount of foreign currency (equivalent of N$
642 580). He was arraigned before the Windhoek Regional Court where he was
charged with the contravention of certain provisions of the Prevention of the
Organised Crime Act and the Regulations of the Exchange Control Act. He was later
acquitted and the trial court ordered that the money seized be returned to him. After
the order was not complied with, the applicant moved an urgent application for the
release of the money and for a declarator that the respondents were in contempt of
the court order.

Held – that the High Court may, in exercise of its inherent jurisdiction grant an order
enforcing the Regional Magistrate Court’s decision as that court did not have the
wherewithal to do so as he apparently had a right which is constitutionally protected
and that the court could not in good conscience turn him away remediless.

Held further – that the applicant was prima facie entitled to the order in light of the
favourable order in his favour. The Prosecutor-General did not file an application for
stay of execution of the order and the court found that for that reason, the trial court’s
order was bound to be complied with and that the application for leave to appeal did
not stay the effect of the order.

Held – that the 3rd respondent’s attempt to file a counter-application as an annexure

to the answering affidavit was irregular, as the application was not properly filed in
terms of the rules and could thus not be entertained.

Held further – that the application for intervention by the Minister of Finance
irregularly filed as it was not filed in compliance with rule 73 relating to urgency and
further did not comply with rule 32 (9) and (10).

Held further – that an application for intervention in terms of rule 41 is an interlocutory

application to be made to the managing judge as it is interlocutory in nature and
effect.
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Held that – before making application in terms of rule 41, the applicant should first
comply with the provisions of rule 32 (9) and (10) and that failure to do so results in
the application being struck from the roll.

Held further – that there is no evidence that the respondents acted contumaciously
and that their non-compliance with the order was mala fide.

The court concluded that on the papers, as the applicant had an order in his favour,
which was on the face of it valid, no case had been made by the respondents as to
why the application could not be granted as prayed. The application was accordingly
granted as prayed.

Redecker v Tjipueja (A 15/2016) [2018] NAHCMD 264 (31 August 2018)

Summary: Two neighbouring farmers locked down in a dispute regarding the validity
and binding effect of a dividing fence erected on an alleged give-and-take line agreed
upon by previous owners. Jurisdiction of the High Court.

Held, the Court has original jurisdiction to adjudicate the dispute and to consider
declaratory and interdictory relief despite the provisions of section 25 and the second
schedule of the Fencing Proclamation 1921.

Held, an agreed give-and-take dividing fence between two farm owners constitutes a
boundary fence,

Held, the dividing fence so erected has a permanent nature which is not affected by
change in ownership of one or both the owners of the neighbouring farms.

Redelinghuys v Coffee-Lind (I 11/2014) [2018] NAHCMD 368 (31 October 2018)

Summary: An oral purchase agreement was concluded between the plaintiff and the
second defendant, in term of which the plaintiff purchased 5% shareholding in
Lightweight Energy Panels Africa (Namibia) (Pty) Ltd ( herein after referred to as
‘LEPA’) from the second defendant for a purchase price of N$ 250 000. The
agreement was entered into and payment was made as a result of representations
made by the first defendant to the plaintiff. The plaintiff further alleged that the
conclusion of the said share purchase agreement was as a result of representations
made to the plaintiff by the first defendant.

The plaintiff pleaded that the said representations made to her were to the knowledge
of the first defendant and/or the second defendant false in all material respects.
Alternatively the representations were wrongful in that the first defendant and/or the
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second defendant owed the plaintiff a legal duty not to make misrepresentations or
misstatements and to render candid advice to the plaintiff, and was made negligently
(the first defendant and/or the second defendant having failed to take reasonable
care in establishing the correctness of the representation and the facts underlying
same); and caused the plaintiff patrimonial loss.

In regard to the alleged misrepresentations, the plaintiff pleaded that as the first
defendant made the representations, she intended the plaintiff to act thereon and to
enter into an agreement and make the payment. The plaintiff was therefore induced
by the representations, whereas, had she known the true facts, she would not have
entered into the agreement and made the payment. Thus, as a result of the first
defendant’s misrepresentation, the plaintiff cancelled the agreement and the first
defendant is liable to pay the amount of N$ 250 000 to the plaintiff.

In her plea, the first defendant admitted that she received the amount in question
from the plaintiff but pleaded that she was acting in her capacity as agent for or on
behalf of the second defendant and therefore denied that the plaintiff was
impoverished or that she, the first defendant, was enriched.

The second defendant as well denied that she made any representation to the
plaintiff prior to concluding the agreement between the plaintiff and the second
defendant and in the event of the court finding that the first defendant made
representations, which she denied, that she did so in her capacity as agent for the
second defendant and that she act on his instruction.

At the closing of the plaintiff’s case, the defendants moved for an application for
absolution from the instance primarily on the basis that the plaintiff failed to prove its
claims as prayed for and that the evidence led and concessions made during cross-
examination did not support the allegations made in her particulars of claim as
amended. In resisting the application for absolution, the plaintiff averred that she had
prima facie established that first defendant made false representation (active and or
passive) which were material to and induce the plaintiff to conclude the purchase of
share (pursuant to an investment) and further that that the reasonableness of the
plaintiff’s action is based on her relationship with the first defendant and even if the
court find that she acted with naivety, it should be born in mind that it is not the
plaintiff’s naivety that is on trial.

Held – One of the requirements which must be met by a person relying on

misrepresentation is that the representation was false in fact.

Held – From the concessions made by the plaintiff, it is clear that she was unable to
satisfy the requirement in respect of the factual falsity of the representations.
Held further – The plaintiff, without exercising due diligence as the expert in the
construction industry, committed herself to the venture by purchasing the shares of
the second defendant and then wished to bow out of the venture within a few weeks,
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without giving the venture a fair opportunity to become operational. The plaintiff then
claimed material breach on the part of the second defendant.

Held further that – There are no merits in the claim of plaintiff that the first defendant
and/or the second defendant made misrepresentation to her prior to the purchasing
of the shares. The plaintiff conceded that the second defendant believed the
truthfulness of the statements that she made.

Held further that – the evidence of the plaintiff does not support her claim in any way
as pleaded in the amended particulars of claim. In fact it is diametrically opposed
thereto.

Rixi Investment CC v Khomas Civil Construction CC (HC-MD-CIV-MOT-REV-

2017/04534) [2018] NAHCMD 395 (3 December 2018)

Summary: Respondent issued summons against applicant, the latter claiming that it
had no knowledge of the court process as service was effected on another party. As
a consequence, applicant did not enter a notice to defend and default judgment was
granted against it.

Subsequent to this, respondent issued a writ of execution for the attachment of

applicant’s movable properties. The applicant became aware of the combined
summons as well as the writ of execution after receipt of a message from Standard
Bank Namibia that an amount of N$ 546, 475.000, standing to the applicant’s credit
was on hold and not accessible to it. Owing to the aforementioned, applicant then
instructed its legal practitioners to bring an application for a rescission of the default
judgment, and an order to have the writ of execution set aside and to defend the main
action.

Held: that the requirements for the granting of an application for rescission were: (1)
the defaulting party must give a reasonable explanation for his default: if it appeared
that his default was willful or due to gross negligence, the court should not come to
his assistance; (2) his application for rescission must be bona fide and not merely
made with an intention of delaying the plaintiff's claim; (3) he must show that he has a
bona fide defence to the plaintiff's claim: it was held that it is sufficient if he makes out
a prima facie defence in the sense of setting out averments which, if established at
trial, would entitle him to the relief sought. Furthermore, an applicant need not deal
fully with the merits of the case and produce evidence that the probabilities are
actually in his favour.

The court was then of the view that in the circumstances, the application for
rescission must be granted.
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Sadok v Eagle Night Watch Security CC (I 2642/2015) [2018] NAHCMD 18 (08

February 2018)

Summary: Plaintiff instituted delictual claim for general damages for pain and
suffering and loss of amenities of life against the defendant. The plaintiff instituted the
action against the defendant based on vicarious liability. The plaintiff averred that the
two employees of the defendant acted within the course and scope of their
employment and that they unlawfully assaulted the plaintiff whom as a result of the
assault sustained physical injuries. The defendant pleaded that the action of the
defendant’s two employees were justified.

Held, the court held, that the evidence of the plaintiff is improbable due
inconsistencies witnesses testifying on behalf of the plaintiff.

Held, the court further held, that the approach that a court must adopt to determine
which version is more probable is to start from the undisputed facts which both sides
accept, and add to them such other facts as seem very likely to be true.

Schkade v Gregory N.O (HC-MD-CIV-MOT-GEN-2017/00030) [2018] NAHCMD

235 (9 August 2018)

Summary: This is an application wherein the Applicant challenges the validity of a

Will on grounds that the deceased signature on the disputed Will is forged – The
Respondents hold the firm view that the signature is not forged and that the
medication the deceased was on due to his infirmity as well as the stage to which the
cancer had developed at the time the disputed Will was executed and the signature
may not resemble the deceased’s previous signatures. The Applicant has submitted
a report by a handwriting expert, which confirms the allegation of forgery. The
Respondents on the other hand have in their corner the witnesses who witnessed the
disputed Will in the presence of the deceased and of each other. The Respondents
raised three points in limine namely; firstly, that the application was a review
application and should have been brought in terms of Rule 76 and not Rule 65;
secondly, that there was an inordinate or unreasonable delay in bringing this
application and thirdly, that there are disputes of fact which cannot be resolved on
application proceedings and that the applicant ought to have proceeded by way of
action proceedings.

Held; that the application was brought in terms of the correct Rule of court as it seeks
a declarator that the Will accepted by the Master was invalid;
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Held further; that the application is not for review but for a declaration that the Will is
invalid and therefor was an application to which the issue of inordinate delay
applicable to applications for review does not apply;

Held; there were clear disputes of fact from the onset, which cannot be decided solely
on the papers without more. In this regard, the applicant ought to have foreseen that
these disputes could not be resolved on application proceedings.

Held further; that the provisions of Rule 65(7) requiring an applicant in connection
with matters in connection with a deceased estate are peremptory and non-
compliance therewith is fatal and may result in the application being struck from the
roll.

In the result, the application was struck from the roll with costs and regarded as
finalised.

Seelenbinder v Fischer (2018/00128) [2018] NAHCMD 135 (21 May 2018)

Summary: The applicant and the first respondents were the members of the 2 nd
respondent and each held 50% members’ interest in the 2 nd respondent. Relations
between the applicant and the respondent deteriorated to very low levels. The 1 st
respondent then approached the court seeking an order that the applicant resign from
the 2nd respondent. The court granted the order, together with directions as to how to
deal with the dissolution of the 2 nd respondent. The applicant continued to attend at
the premises of the 2 nd respondent. In November 2017, the 1 st respondent changed
the locks to the premises unilaterally but gave the applicant as spare key thereto. In
April 2018, the applicant was denied access to the premises and he approached the
court on an urgent basis seeking restoration of possession of the premises of the 2 nd
respondent.

Held – that although the matter was urgent, and fitted in the scheme of rule 73 (3),
the respondents had been afforded a very limited period of time within which to
oppose the relief sought and that this is to be avoided.

Held further – that although the applicant had not complied with the peremptory
provisions of rule 32 (9) and (10), he had attempted to do so but was hamstrung by
the absence of the respondents’ legal practitioner from the city. The non-compliance
was accordingly condoned and the matter was allowed to proceed.

Held – that although the 1st respondent had complained about certain depositions in
the respondent’s answering affidavit being irrelevant and liable to being struck out
therefor, a consideration of the matter as a whole suggested that the facts relied on
founded the 1st respondent’s defence and should therefor be allowed. Further that the
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court being manned by a trained lawyer would not side tracked by irrelevant matter, if
any and which would be consigned to the proper pigeonhole.

Held further – that an applicant for a mandament van spolie had to allege and prove
that he was in peaceful and undisturbed possession of the premises and that he was
illicitly ousted therefrom without a court order. Found that on the evidence, the
applicant was in peaceful of the property but had been ousted from that possession
without an order of court.

Held – that on the facts of the matter, the unilateral changing of the locks to the
premises by the 1st respondent did not serve to oust the applicant from possession,
thereby reducing his interest merely to access. Held that although locks were
changed, he continued to attend to the premises regularly and without let or
hindrance and therefor continued to exercise his right of possession.

Held further – that legal practitioners should ensure that they do no allow the bad
blood existing between clients to affect them in the performance of their duties to the
court. Punctilious courtesy should remain their guiding light in their dealings with the
court and each other.

Held – that courts normally grant costs on the punitive scale in spoliation matters and
this is done in order to register the message that people are not allowed to take the
law into their own hands.

The application for spoliation was thus granted with costs on the punitive scale.

Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard (A 276/2014)
[2018] NAHCMD 148 (07 June 2018)

Summary: Insolvency – When granted – A creditor having established 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 – Respondents not raising any matter
which would disentitle applicant to a final order – Consequently final order of
sequestration granted – On return date of provisional sequestration order – Court
found that respondents alone bear the onus of showing cause why they should not be
placed under final order of sequestration – Court found that none of the matters
raised by respondents in their affidavit amounted to ‘to show cause’ – Consequently,
court granted final order of sequestration of respondents’ estates.
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Shipo v Erastus (HC-NLD-CIV-ACT-OTH-2017/00179) [2018] NAHCNLD 36 (16

April 2018)

Summary: Plaintiff issued summons against defendant which was defended.

Defendant then filed a counter-claim. Plaintiff despite being ordered to file a plea,
failed to do so under the belief that the filing of a special plea by plaintiff brings the
need for the filing of a plea to the counter-claim to a halt. Held that plaintiff was
barred as he failed to do so, despite a court order that he should file a plea to the
counter-claim. Default judgment was granted.

Shivute v Moses (HC-NLD-CIV-ACT-OTH-2018/00219) [2018] NAHCNLD 140 (11

December 2018)

Summary: Plaintiffs issued summons against defendants whom they alleged had
stated in public that they were directly responsible for and forthwith involved in the
untimely death of Mrs Liina Nekwaya. They alleged that this was said during the
burial of the said Nekwaya. As such, their reputations were injured and their esteems
were lowered in that village.

Shuudeni vs Minister of Environment and Tourism (HC-MD-CIV-ACT-DEL-

2017/01042) [2018] NAHCMD 107 (20 April 2018)

Summary: The plaintiff instituted an action for damages against the first and second
defendant for payment in the amount of N$ 30 096.86, plus interest on the aforesaid
amount at the rate of 20% per annum, calculated from the date of judgment to the
date of final payment.

The plaintiff drove his motor vehicle, a 2015 Ford Ranger with registration number N
104472W, at the time of the collision, whereas the second defendant, who is
employed by the Ministry of Environment and Tourism, was acting within the course
and scope of his employment with first defendant, driving a 2013 Toyota Pickup,
registration number GRN 3829. The issue of quantum was agreed upon between the
parties and the trial concerned primarily on the question of liability.

The plaintiff submitted that its version is more probable than that of the second
defendant and should be accepted. The plaintiff submitted that the negligence should
be solely attributed to the second defendant.

The defendants submitted that the plaintiff’s and the second defendant’s versions,
gave rise to mutually destructive versions of the incident. The defendants submit that
the version of the plaintiff and that of the second defendant’s differ so radically from
 145

each other that the conclusion that one of them must be a complete fabrication is
almost inescapable. In this light, the defendants submit that the plaintiff’s version is
fatally improbable, illogic and untrue for a number of reasons. They further submit
that the second defendant’s version is more probable and a more acceptable account
of how the collision could have occurred as compared to that of the plaintiff.

Held – 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.

Held – Once the plaintiff proves an occurrence giving rise to an inference of

negligence on the part of the defendant, the latter must produce evidence to the
contrary, he must tell the remainder of the story, or take a risk that judgment be given
against him.

Held further – When a driver wishing to reverse, he must keep a proper lookout, give
an indication of his intention to reverse, execute his manoeuvre at the opportune
moment having regard to other traffic, when it is absolutely safe to do so.

Sinco Investments Twenty Six (Pty) Ltd v M & P Investments CC t/a Quality
Pharmacy (Registration number: cc 2009/5335) (I 638/2016) [2018] NAHCMD 15
(5 February 2018)

Summary: Plaintiff’s explanation for its delays unacceptable. Condonation refused.

Defendants’ sanctions application excessive.

Sky Dancer CC v Windhoek Flight Training Centre (I 1238/2016) [2018] NAHCMD

138 (14 May 2018)

Summary: Section 13(1) of the Prescription Act, Act 68 of 1969. ‟Superior force” in
the circumstances of this case.

Soltec CC v Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 251 (20

August 2018)

Summary: The plaintiff and the defendant entered into an oral contract for the
installation of an invertor box and switch gear at its premises. The plaintiff led
evidence to show that it had done the work as agreed between the parties. The
defendant denied liability and claimed that it was not liable as the work allegedly done
by the plaintiff had been covered under an agreement it had made with a German
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outfit called Calyxo. In addition, the defendant filed a counterclaim for costs
associated with the use of a forklift used by the plaintiff, in terms of an alleged oral
agreement. As the trial progressed, the defendant withdrew the counterclaim but
persisted with its defence on the plaintiff’s claim.

Held – that the plaintiff, on a mature consideration of the evidence, had proved that it
had done the work, pursuant to an agreement made inter partes.

Held further – that although the plaintiff did not perform well as a witness, as he
appeared confused and at times contradictory, that performance could not be
attributed to him being a witness who was intent on lying to the court and that as
such, his credibility was not affected as the probabilities showed that the work was
done by the plaintiff as claimed.

Held – that the fact that a witness has lied in respect of one matter is his or her
evidence, does not necessarily have to result in the court jettisoning that witness’
evidence in its entirety.

Held further – that the defendant, on the other hand, was a witness who lied
deliberately under oath and conjured up a counterclaim against the plaintiff, which in
fact did not exist and that the court had to punish to show its displeasure.

Held – that the defendant appeared not to have understood the impact and extent of
the work that had to be done, particularly that it was outside the scope of the work
that was done by Calyxo and for which the defendant had paid.

Held further – that the defendant, on account of conjuring a non-existent defence,

was liable to pay costs on the punitive scale as it had abused the court’s processes
for a nefarious purpose.

The court granted the plaintiff’s claim with punitive costs.

Soltec CC v Swakopmund Super Spar (I 160/2015) [2018] NAHCMD 265 (31

August 2018)

Summary : The plaintiff instituted proceedings against the defendant for payment
of money arising from a contract for services rendered in terms of an oral agreement.
At the close of the plaintiff’s case, the defendant moved an application for absolution
from the instance, which the court dismissed with costs. In argument, the question for
determination was whether the cap of N$ 20 000 stipulated in Rule 32(11) applies to
an application for absolution from the instance. In other words, the question was
whether an application for absolution from the instance, is an interlocutory
application, which admits of the application of the provisions of Rule 32(11), in
particular.
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Held – that the policy reason for promulgating rule 32(11), was to try and limit the
costs associated with interlocutory matters and to cap them in order to encourage the
parties to litigate on the real issues for determination.

Held further – that although the sub rule is couched in peremptory terms, the court
may, in appropriate cases, e.g. where the parties are litigating at full stretch; where
the matters are complex and the parties are litigating with equality of arms, the cap
stipulated may, in the exercise of the court’s discretion, be departed from.

Held further – that an interlocutory application is one that is incidental to or

contiguous or peripheral to the main issues up for decision.

Held – that absolution from the instance is an application moved after the close of the
plaintiff’s case and half-way through the trial on the real merits of the matter. For the
reason that the action on the merits would have commenced and oral evidence led,
an application for absolution is not an interlocutory application to which rule 32 in
general applies and rule 32(11), in particular applies.
Held further – that by the time the application for absolution from the instance is
reached, depending on the case, witnesses would have been called, and in some
cases, many witnesses. It would therefore be improper and an unjust reward for a
legal practitioner who has been successful in the application to be confined to the cap
stipulated in rule 32(11).

Somaeb v Standard Bank (Pty) Ltd (HC-MD-CIV-MOT-GEN-2017/00443) [2018]

NAHCMD 406 (14 December 2018)

Summary: The applicant brought an application seeking the setting aside of the
transfer of a certain erf from the 1 st respondent and registering same to in his name.
He alleged that the sale of the property, which had been transferred to him had been
marred with irregularities and fraudulent activities by the Deputy-Sheriff.

Held – that the applicant was guilty of misjoinder, as he had cited an entity referred to
as “Standard Bank (Pty) Ltd as the first respondent, yet such an entity does not exist
and no judgment can be enforced against it.

Held further – that the applicant had taken an inordinate period of time to launch the
proceedings and that the interest in finality of proceedings operated to his detriment
as he had been aware of the claim but did nothing about it for a long time,
notwithstanding court judgments commenting about the need to him to act.

Held – that the matter had been previously settled by decisions of the court and the
applicant did not have the right to reignite those dead embers of the case.
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Held further – that the inference to be drawn from the applicant’s conduct was that he
was harassing the 1st respondent with the persistent litigation he was pursuing
against it.

The application was dismissed with costs.

Somaeb v The Chief Justice (HC-MD-CIV-MOT-GEN-2017/00102) [2018]

NAHCMD 57 (7 March 2018)

Summary: The applicant brought an application against the Chief Justice in his
capacity as head of Judiciary – Section 12 of the Supreme Court Act, 1990 stipulates
that no process shall be issued against the Chief Justice or any other judge of the
Supreme Court except with the consent of the Chief Justice or in his absence the
next available senior judge of the Supreme Court – Applicant failed to obtain such
consent – Court held that without proof of such consent the application could not be
considered by the court – Furthermore, that the exception res judicata applied and
that the High Court has no jurisdiction to order the Supreme Court on how to regulate
its proceedings – Application struck from the roll with costs.

So‒Oabes v The Minister of Health and Social Services (HC-MD-CIV-ACT-CON-

2016/03412) [2018] NAHCMD 163 (21 May 2018)

Summary: The Plaintiffs instituted an action for medical negligence against the
Defendants. The Combined Summons were served on the Defendants. The
Defendants entered appearance to defend. The Plaintiffs set the matter down for
Default judgment twice, which applications were removed from the roll twice. The
Plaintiffs never re-enrolled the matter, but have filed an application to compel
discovery under the same action so removed. The Defendants subsequently entered
appearance to defend. The Defendants contended that, the summons have lapsed
and even if they had not lapsed, the application before this court, is not properly
before court and that the application to compel should be dismissed.

Held: the Combined Summons has not lapsed, as same were served on the
Defendants within six months, from the date of issue;

Held: further that the Plaintiffs had taken further steps, namely: had set the matter
down for default judgment, after service, within six months of services of the
summons.

Held: the application to compel discovery is struck from the roll, as it is not properly
before court.
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Southern Sun Africa v Sun Square Hotel (Pty) Ltd (A 66/2016) [2018] NAHCMD
105 (23 April 2018)

Summary: The First Applicant, a Mauritian company, and a registered proprietor of

SUN SQUARE logo trademark in South Africa, seeks relief against the First
Respondent by way of interdict on the basis of the common law delict of passing-off.
The Second Applicant, a South African company and an owner of the copyright in
original artistic works in the ‘SUN SQUARE’ logo, registered in South Africa, seeks
relief against the First Respondent by way of copyright infringement, damages and
royalties. The First Respondent opposes the application. The court granted relief in
favour of the Applicants.

S T v P T (I 5066/2014) [2018] NAHCMD 162 (12 June 2018)

Summary: The plaintiff sought for a relief to bring an application have the order for
restitution of conjugal rights granted to the defendant be rescinded and set aside.
However, due to delays caused by issues surrounding the withdrawal and
appointment of legal practitioners of record, the application to rescind the restitution
of conjugal right’s order was not properly done before this court.

The plaintiff’s erstwhile legal practitioner made submissions that she was of the view
that her withdrawal as legal practitioner of record was done properly and the
appointment of the offices of Dr Weder Kauta and Hoveka properly substituted her as
legal practitioners of record.

The plaintiff also filed an affidavit explaining that indeed, the erstwhile legal
practitioner of record informed him of her intentions to withdraw and that the offices of
Dr Weder Kauta and Hoveka would replace her mandate. The plaintiff further
submitted that due to the lack of activity on his instructions and/or the matter, he
decided to take matters into his own hands by instructing the offices of Ueitele and
Hans Inc. to further deal with his matter.

The defendant is however of the view that the erstwhile practitioner of record’s
withdrawal was improperly and not in terms of the rules of court and further that the
offices Ueitele and Hans Inc. had no authority to approach and contact the offices of
the defendant’s legal practitioners in dealing with this matter.

Held – It is not for this court to punish the plaintiff for the poor execution of his wishes
on the matter when the legal practitioners appointed could not do so.

Held further that – It must also be borne in mind that this matter involves the status of
the parties and this court cannot do injustice to a party wherein the default in any
nature is not of his or her own doing.
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Standard Bank Namibia v Apisay (HC-MD-CIV-ACT-CON 2017/02741) [2018]

NAHCMD 273 (7 September 2018)

Summary: The Plaintiff lent money to the Defendant. The loan was secured by a
mortgage bond over immovable property. The Defendant allegedly defaulted on due
payment of monthly installments owing under the loan. The Plaintiff claims by
summons the outstanding capital amount, with interest together with costs. There is
no indication in the summons whether the loan agreement is in writing or oral. No
loan agreement is attached to the summons but the Plaintiff attached copy of the
mortgage bond. Court refused to grant default judgment.

Standard Bank Namibia Limited v Heita (I 161/2016) [2018] NAHCNLD 137 (04
December 2018)

Summary: Applicant/plaintiff advanced a loan of N$846 761.77 to

respondent/defendant which she failed to repay resulting in summons being issued
against her and subsequently a default judgment was entered against her. A writ was
obtained and upon service on the judgment debtor it was found that she did not have
any attachable movable assets hence a nulla bona return of service was issued by
the Deputy Sherriff.

In terms of rule 108, the judgment creditor, who now becomes the execution creditor
gave the execution debtor a 30 day notice to furnish it with reasons why the
immovable property should not be declared specially executable. The execution
debtor advanced a reason which is not legally recognisable and therefore the court
had no alternative, but, to declare the property specially executable.

Standard Bank Namibia Limited v Nekwaya (HC-MD-CIV-ACT-CON-2017/01164)

[2018] NAHCMD 172 (15 June 2018)

Summary: The plaintiff issued summons, claiming amongst other relief an order
confirming the cancellation of the agreement, forfeiture of payments made by the
defendant to the plaintiff in terms of the instalments sales agreement and an order
directing the defendant to immediately restore the vehicle to the plaintiff.
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The defendant indicated that he intends to defend the action instituted by the plaintiff.
Being of the opinion that the defendant does not have a bona fide defence to its claim
the plaintiff, acting in terms of Rule 60 of this Court’s rules, the plaintiff applied for
summary judgment. The plaintiff’s application for summary judgment was struck from
the roll on two occasions due to non-compliance with Rule 32 (9) and (10).

The plaintiff placed the application for summary judgment back on the roll for a third
time. The defendant raised two preliminary objections the first being that the plaintiff
failed to file its heads of arguments within the time set by the Court and its application
for the condonation of the late filing of the heads of arguments was an interlocutory
application and had to comply with Rule 32 (9) and (10).

The second preliminary objection being that, because the application for summary
judgment was struck from the roll, the plaintiff had to do a ‘formal’ act to place the
matter back on the roll. The defendant argued that the plaintiff did not perform any
formal act to place the matter back on the roll and there was as such no application
for summary judgment before Court.

Held that as a general rule a process will only be pending either when it was issued
by the registrar or when it was served on the other party. Once the application was
struck from the roll, it was no longer before the court and some formal act to again
bring it before the court was necessary either by issuing it or serving it or the court
gives other directions regarding the prosecution of such application, or the parties
otherwise agree.

Held further that in the present instance, the directions given by the managing judge,
on 1 November 2017 and the request by the parties in their separate status reports of
10 November 2017 for the managing judge to set down the application for summary
judgement for a hearing constitute the ‘formal act’ envisaged in the Swakopmund
Airfield CC v Council of the Municipality of Swakopmund matter and the defendant’s
point in limine must therefore fail.

Held further that the relief to confirm the cancellation of the agreement is not based
on a liquid document and is therefore not a relief that can be prayed for in summary
judgment proceedings.

Held further that the defendant has “fully” disclosed the nature and grounds of his or
her defence and the material facts upon which it is founded and I will thus refuse the
application for summary judgment.

Standard Bank Namibia Limited v Ngashikuao (HC-MD-CIV-ACT-CON-

2016/02264) [2018] NAHCMD 282 (4 September 2018)
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Summary: Plaintiff and defendant signed an instalment sales agreement in terms

whereof the Defendant purchased a 2010 Nissan Navara 2.5 Diesel, with engine
number YD25196099T and chassis number MNTVCUD40 Z002443. The total
amount payable by defendant for the said vehicle was N$ 235 309.68, including VAT,
which was payable in 54 monthly instalments. The first instalment was due 1 January
2014. By June 2014, the Plaintiff failed to pay its monthly instalments and became in
arrears with the plaintiff. The plaintiff sent out a letter of demand, and despite
demand, the defendant remained in breach. As a result the plaintiff cancelled the
agreement and sold the car on auction and subsequently brought this action before
court seeking the outstanding amounts.

The defendant opposed the action on grounds that, firstly, there was an insurance
agreement between the parties, the defendant insured the vehicle against risk or
loss, damage, destruction or mechanical breakdown under a Motorite insurance plan
and paid the applicable insurance premiums to the plaintiff together with or inclusive
of the monthly instalments. When the vehicle experienced severe mechanical
problems in June 2014, the plaintiff failed or neglected to effect payment despite the
fact that the defendant’s monthly instalments and premiums on the Motorite plain was
fully paid up. Plaintiff was therefore unduly enriched by defendant’s continued
payment of the monthly instalment and/or the insurance premiums as per the
Motorite plan. Secondly, that clause 12.2.2 of the agreement entitled the plaintiff to
retain all monies paid by the defendant to it, the defendant plead in that such a term
is in contravention with section 6(1)(g) of the Credit Agreement Act. Thirdly that
defendant did not receive the letter of demand as he moved from that address, and
thirdly that Mr. Christian, who testified on behalf of the plaintiff, was not present at the
time of the signing and conclusion of the credit agreement.

Court held: There is no dispute that the instalment sale agreement was validly
entered into between the parties and sure enough, no argument arises from that. I
tend to regard that the instalment sale agreement and the Motorite plan are two
separate agreements. In all fairness, an insurance policy is but a necessity for both
parties to cover for eventualities and mitigate losses in specific circumstances,
however, it is not an obligation carried by the seller but the purchaser.

Held further: The deeming provision concerning registered post is triggered when the
notice is sent. This is so whether the domicilium address is occupied or in use or not.
It effectively means that, it is valid delivery whether or not the party receives it.

Held further: The defendant’s conduct by failing to make monthly instalment

payments in terms of the agreement between the parties amount to a clear breach of
contract. Court is satisfied that the failure to pay any one of the instalments on due
date was to be regarded by the parties as a sufficiently serious breach of the
agreement as to accelerate payment of the full amount due under the agreement
and, hence, such a default must surely have been intended to be a material breach of
the contract thereby paving the way for the plaintiff, in compliance with the default
procedures (particularly by giving notice of its intention to cancel), to cancel the
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agreement. The defendant was not entitled to withhold any payment to the plaintiff on
the grounds pleaded. The insurance agreement was not between the plaintiff and the
defendant and the plaintiff had no obligation to effect and/or pay for mechanical
repairs to the vehicle by virtue of the insurance policy pleaded.

Standard Bank of Namibia Ltd v Schameerah Court Number Seven CC (I

3939/2015) [2018] NAHCMD 378 (27 November 2018)

Summary: Contract – Home Loan agreement and Access Bond Facility agreement –
Breach and enforcing of – Recovery of monies lent and advanced by plaintiff Bank –
Certificate of balance indicating outstanding balance of amount claimed – Court
finding first defendant and second defendant liable jointly and severally to pay
amount claimed together with interest thereon – Plaintiff on the one side and first and
second defendants on the other side concluded Access Bond Facility agreement and
Home Loan agreement – Court found second defendant by deed of suretyship bound
himself jointly, severally and in solidum with first defendant as surety and co-principal
debtor to plaintiff for repayment of the amount claimed together with interest – Court
found further that dispute between plaintiff and defendants respecting third defendant
is res judicata with the default judgment granted against third defendant – Finding
dispositive of counter claim apparently instituted by second defendant.
Stantoll Properties CC v Johannes (HC-NLD-CIV-MOT-GEN-2018/00005) [2018]
NAHCNLD 23 (7 March 2018)

Summary: The land in dispute has always been occupied by respondent and his
forefathers. The State expropriated it and bestowed it to the Council. The Council
then sold part of the land to applicant who started developing it. Respondent
prevented applicant from continuing with its construction of a shopping Mall on the
basis that, Ongwediva Town Council has not yet compensated it. It was held that
applicant had fulfilled all the requirements for an interdict and that applicant had
nothing to do with the compensation due to respondent, therefore, applicant is
entitled to construct its shopping Mall, thereat.

Steyn v Stanley (HC-MD-CIV-ACT-DEL-2017/01216) [2018] NAHCMD 400 (7

December 2018)

Summary: Plaintiff’s sheep was discovered dead on Plaintiff’s farm. It was

observed that the sheep died in consequence of dog-bites. A spoor from the scene
of the attacked sheep led to the neighbouring farm owned by the Defendant. The
Defendant’s two dogs were found with snouts covered in blood. Court held that the
dogs that killed Plaintiff’s sheep are dogs owned by the Defendant. However, the
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Defendant is only liable for damages caused by the dogs to the extent as proved by
the evidence.

Stuttafords Stores Namibia (Pty) Ltd v Commissioner of Inland Revenue (HC-

MD-CIV-CON-2017/01798) [2018] NAHCMD 203 (4 July 2018)

Summary: Approximately January 2002, the plaintiff conducted business in Namibia

as a registered Value Added Tax (VAT) vender and conducted taxable activity as
defined in section 4(1) of the Value Added Tax Act, Act 10 of 2000.

During the financial year ending in 2002, the plaintiff received a tenant allowance in
the amount of NAD 2,691,547.00 from the lessor to fit out the shop. The said amount
was expended to fit out the shop leased from the lessor and the said amount was
reflected in the plaintiff’s financial statements for the year ending 2002 as a receipt of
capital nature.

The plaintiff submitted its income tax return and financial statements for the year
ending 2002 as prescribed but was only assessed in December 2004. In the said
assessment the first defendant treated the tenant’s allowance as income instead of
capital. Despite not accepting that same was income and not capital the plaintiff still
had assessed loss of N$327,497.00.

It is the plaintiff’s case that since the commencement of the business in 2002 to the
end of financial year 2008, the plaintiff made assessed losses. The said losses were
assessed by the first defendant for purposes and as envisaged by the Income Tax
Act.

In light of the fact of the first defendant’s refusal to accept the amount of NAD
2,691,547.00 (tenant’s allowance) as capital and not income, the plaintiff gave
authorization to PWC to file an objection against the first defendant’s assessment of
the plaintiff’s 2002 income. The said objection was lodged in writing with the second
defendant on 10 February 2005 in terms of section 71 of the Income Tax Act 24 of
1981.

Due to the fact that the plaintiff’s objection and/or file was misplaced at the said
offices, the objection was never considered by the second defendant as envisaged by
s 71 of the Income Tax Act and the plaintiff was never informed of the outcome of the
objection.

Plaintiff pleaded that due to the second defendant’s failure to comply with the
obligations as set out in s 71(4) of the Income Tax Act and its failure to inform the
plaintiff of the outcome thereof, the plaintiff was unable to lodge an appeal to the
Income Tax Tribunal, in which instance the plaintiff pleaded that it would have been
 155

successful with its contention that the tenants allowance of NAD 2,691,547.00 was
capital in nature and not revenue. In the alternative, the plaintiff pleaded that in the
event of being unsuccessful in the Income Tax Tribunal, the plaintiff would have been
successful in the special court for income tax appeals and further in the alternative
that the plaintiff would be successful in the Supreme Court of Namibia.

However, despite the second defendant’s failure to attend to the objection filed on
behalf of the plaintiff for years, the first defendant, subsequent to the financial year
end for 2009, made a claim against the plaintiff for an amount of NAD 835,547.00.
This amount was purportedly claimed in terms of the Income Tax Act which included
penalties and interest calculated on the basis that for financial year of 2009, the
plaintiff short paid the first defendant.

Plaintiff pleaded further that the claim in respect of the 2009 financial year without the
determination of the plaintiff’s objection in respect of the 2002 financial year is ultra
vires the first defendant’s powers and therefor constitutes a nullity.

Fast forward to 2016, on 03 March 2016 the plaintiff represented by Mr. Steyn agreed
with the first and second defendant’s director, Mr Chris Claasen that the plaintiff may
again submit an objection to the 2002 assessment of the amount of NAD
2,691,547.00 to motivate the capital nature of the return. It was agreed that the
objection will considered on an urgent basis and if the plaintiff’s objection is upheld,
the first defendant will immediately re-assess the plaintiff’s income for year 2009.

In accordance with the agreement reached between the parties, the objection,
including the application for condonation for late filing thereof was filed on 14 March
2016. On 26 May 2016 further correspondence was directed to the Director of the
first and second defendant with reference to the meeting in March 2016 and the letter
dated 14 March 2016. However, despite Mr Claasen acknowledging that the first
defendant could not find the plaintiff’s file and that he did not know whether the
plaintiff’s objection was ever considered and that the objection might have been lost
and despite his invitation to plaintiff to file a new objection, pending the search for the
file, the new objection was not considered but rejected as being out of time.

Plaintiff pleaded that the rejection of the objection lodged by Mr. Steyn was
unreasonable in the circumstances and as a result a breach of the first and second
defendants’ obligations envisaged in Article 18 of the Constitution and constitutes a
nullity.

On 22 November 2016 the first defendant again demanded payment in the amount of
N$828,494.28 from the plaintiff for income tax (NAD 126,546.60) and tax (NAD
796,699.34) and income tax (NAD 0 but penalties and interest NAD 68,039.45),
which was set out in detail in the particulars of claim.
 156

In the letters of demand the first defendant claimed penalties and interest and also
threatened to take coercive action against the plaintiff as envisaged in s 83 and 91 of
the Income Tax Act and s 31 and 36 of the Value Added Tax, Act 10 of 2000.

Plaintiff further avers that the aforesaid demand was made in spite of the fact that the
first defendant had full knowledge that the plaintiff disputed the amount claimed in
paragraph 33.1 of particulars of claim throughout and that the plaintiff never received
assessments in respect of the amounts claimed in paragraphs 33.2 and 33.3 of the
particulars of claim. Plaintiff pleaded it would have been entitled to object to
assessment if received.

On 13 December 2016 plaintiff’s representative, Mr Steyn, responded to the

defendants’ letter of demand and drew the defendants’ attention to a number of
issues. Subsequently, the plaintiff’s legal representatives issued a letter of demand
on 24 March 2017. In return, the first defendant in a replying correspondence dated
30 March 2017 invoked a set-off as envisaged by s 38(2) of the VAT Act against the
VAT refund for income tax, employee tax and value added tax on import.

In the said correspondence, the first defendant’s acting director admits the amount
due to plaintiff. The amount due (NAD 3,820,385.57) is also supported by a
consolidated statement of account obtained by the first defendant and therefor the
plaintiff pleaded that any set-off would be null and void for reasons advanced above.

The defendants submit that from the particulars of claim, it is clear that the claim by
the plaintiff is for a refund of tax, as a tax vendor, as contemplated in s 38(1)(a) of the
Value Added Tax Act 10 of 2000 (‘the Act). The said claim is for payment of VAT
refunds arising from input credits exceeding output VAT and such refunds of VAT are
done in term of the provisions of s 38 of the Act. In terms of the provisions of s 38(2)
of the Act, a tax return indicating an excess input tax over output tax constitutes a
claim for refund and where the first defendant is satisfied that such a refund is
justified, a refund is made.

The defendants further argued that on 24 March 2017, the plaintiff represented by its
legal practitioners of record, demanded payment of an accumulated tax refund by
means of a letter, annexure “J” to the particulars of claim. This first defendant
rejected the claim for refund by means of a letter dated 30 March 2018, attached as
annexure “K” to the particulars of claim.

It was further argued that in light of the rejection of the plaintiff’s claim for refund, s
38(9) limits the options available to the plaintiff and it reads as follows:

‘(9) A person claiming a refund under this section who is dissatisfied with a decision
referred to in subsection (8) may challenge the decision only under Part VIII of this
Act.’
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The use of the word ‘only’ by the legislature is emphasized by Mr. Barnard and it was
submitted that the intention of the legislator was exactly as the words indicate in as
much as the challenge can only be by means of the procedure as set out in Part VIII
of the Act.

The plaintiff however was of the view that it complied with the provisions of the Act by
filing its returns and subsequent objection timeously. The first defendant failed to or
neglected to deal with the objection. Despite this irregularity, the first defendant then
claimed the amount of NAD 835,547.00, which decision together with a number of
decisions was ultra vires.

Held – tax refund in terms of s 38 of the Value Added Tax Act is the ultimate result
that plaintiff would like to achieve however, this result cannot be obtained until such
time that the assessments have been done, objections dealt with and the claims by
the defendants has been resolved.

Held further – if regard is had to the relevant sections in the VAT Act and the Income
Tax Act, it is evident that the Commissioner or Minister, depending on the nature of
the objection, must notify the vendor/taxpayer in writing of his/her decision, with the
decision being the operative word in this instance.

Held further that – To enable the plaintiff to appeal against the objection decision, it
inevitably means there had to be a decision. There was however no decision taken in
respect of the plaintiff’s objection due to the fact that the plaintiff’s was lost. Therefor,
the plaintiff had no recourse to the forums of first instance as set out in the VAT Act
and Income Tax Act.

Held further that – the issues raised in this matter legal issues in nature and
consequently, the High Court has jurisdiction over the matter. Furthermore, the
special tax court and the tax tribunal are creatures of statute and as a result, do not
have the jurisdiction to consider and grant review relief.

Taranah Logistics CC v Super Cool Trading CC (I 2382/2015) [2018] NAHCMD

62 (22 March 2018)

Summary: As a result of a collision between two interlink truck and trailer

combinations both parties had suffered damages. As the quantum of the damages so
suffered had been agreed, the parties required the court to determine the issue of
negligence and with it the related question of contributory negligence, if applicable.
Each part called only one witness in support of its case. The plaintiff relied on the
evidence of an expert witness only and the defendants on the eye witness testimony
of the driver of its truck and trailer combination. After considering the evidence of the
driver the court found that his direct evidence was so improbable that it impugned his
credibility materially. After the court then considered whether or not the expert's
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opinion as to what may and may not have occurred could and should persuade the
court to his view the court found that it could. As the court was thus persuaded to the
expert’s view that the collision was caused by the second defendant, who had moved
over into the lane of the oncoming plaintiff’s truck and trailer combination, therefore
crossing the center line of the road, at an angle, and that the impact between the two
interlink truck and trailer combinations therefore occurred in the lane of plaintiff’s
vehicles, the court found that the collision was caused mainly by the negligence of
the second defendant, the driver of the first defendant’s truck and trailers. The court
also found that the plaintiff had discharged its onus of proof and proved its case on a
balance of probabilities.

As, on the un-contradicted evidence of the second defendant, the plaintiff’s deceased
driver had not dimmed the lights of his truck, which caused the second defendant to
be blinded, the court found further that the collision was also caused partly by the
driver of the plaintiff’s truck, who blinded the second defendant, by not dimming his
lights, thus causing the foreseeable disorientation of the second defendant who then
failed to continue to travel in his correct lane of travel. . The court thus apportioned
the respective degrees of negligence of the parties on a ratio of 90% to 10% in favour
of the plaintiff.

Tcims Industrial (Namibia) (Pty) LTD v Minister of Finance (HC-MD-CIV-MOT-

REV-2017/00448) [2018] NAHCMD 188 (28 June 2018)

Summary: Revenue – Income Tax – meaning of ‘manufacturing activity’ in Income

Tax Act 24 of 1981, s 1 – Words given wide meaning – The essence of
manufacturing is that what is made shall be a different thing from that out of which it
is made – Therefore ‘manufacturing activity’ involves final product being made either
manually and /or mechanically or by way of other process – Act 24 of 1981 laying
down that degree of ‘transformation’ required that process of ‘physical’ or ‘chemical’
transformation of materials should result in ‘new product’ – Throw-away slag
transformed by chemical process into economically valuable and saleable crushed
matte and white-metal – Court concluding that process in applicant’s operation
amounts to manufacturing activity within meaning of s 1 of Act 24 of 1981 – First
respondent’s decision based on first respondent’s misinterpretation of s 1 constituting
reviewable error of law – First respondent’s decision did not accordingly comply with
requirement of relevant legislation and therefore unlawful and invalid – Court finding
further that first respondent taking a decision in terms of s 5A(3) of Act 21 of 1981
without ‘concurrence’ of 3rd respondent, abrogated art. 18 of the Namibian
Constitution for failure to comply with requirement of relevant legislation. Court found
that from slag which is rubbish is transformed by chemical process to crushed matte
and white metal – Crushed matte and white metal have economic and saleable value
unlike slag – Consequently, applicant’s operation constituted manufacturing activity –
Court found because third respondent is responsible for industrialisation, trade and
small-scale manufacturing enterprise development the intention of Legislature is that
 159

his/her ‘concurrence’ is mandatory – Failure to obtain such occurrence before

deciding is a reviewable error of law and is fatal – Consequently, court set aside the
two decisions – Court found that because of the hard and unyielding attitude of 2 nd
respondent whose recommendation 1 st respondent accepted holus bolus there was
no justification to refer the matter back to 1 st respondent to reconsider it – Court found
that decision now does not involve technical knowledge and court is not ill-equipped
to take the decision – Accordingly, court made a declaration sought in para 2 of the
notice of motion.

Teek v The Minister of Justice (I 3304/2015) [2018] NAHCMD 52 (13 March 2018)

Summary: Plaintiff based his action upon damages he could have obtained against
former foreign Supreme Court Acting Justices in the High Court of Namibia. Held,
the High court of Namibia could not have had or assumed jurisdiction over the foreign
Justices.

Teek v Walters (HC-MD-CIV-ACT-DEL-2016/02863) [2018] NAHCMD 376 (23

November 2018)

Summary: The plaintiffs instituted action against the defendants claiming payment in
the amount of N$ 6 000 000 (six million Namibian Dollars) for an alleged defamatory
statement made in a plea on behalf of the first defendant under a different case in
I3265/2013.

The plaintiffs allege that the statement was made with malice and with the intention to
defame the plaintiffs’ good character and reputation. The plaintiffs further allege that
the above statement carries an additional connotation that the plaintiffs are “corrupt
and dishonest; crooks, criminals, not law abiding citizens and without moral fibre”. It
is further the plaintiffs stance that the words “true beneficiary” imputes the innuendo
and that it should be understood to mean that the plaintiffs fraudulently conspired and
colluded to conceal or hide the real identity of the true beneficiary or owner of the
shareholding in Old Man Fishing CC from the Ministry of Fisheries and Marine
Resources, the public or other persons.

The defendants admitted in their plea that the statement in issue indeed appears in
the first defendant’s plea in case I3265/2013, however the first defendant denies that
the statement is defamatory or it was made wrongfully or maliciously. The first
defendant pleads that the statement was made in response to the allegations made
in the particulars of claim filed in case I3265/2013 that the second plaintiff is the
legitimate shareholder member in Old Man Fishing CC and that she had suffered
damages as a result of the alleged conduct of the first defendant.
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Held – It is trite law that defamation is defined as the wrongful and intentional
publication of defamatory words or conduct that refers to a plaintiff.

Held – Once a plaintiff establishes that a defendant has published a defamatory

statement concerning himself/herself, it is presumed that this publication is both
wrongful and intentional. A defendant wishing to avoid liability for defamation must
raise a defence which rebuts either the requirement of wrongfulness or intention.

Held further – that there is no link between the plea filed by the defendants in case I
3265/2013 and the newspaper article published 9 years prior. No reasonable person
reading the statement would understand the plaintiffs to be “corrupt and dishonest;
crooks, criminals, not law abiding citizens and without moral fibre” or that they
fraudulently conspired and colluded to conceal or hide the real identity of the true
beneficiary or owner of the shareholding in Old Man Fishing CC.

Held further that – During the trial in this matter, there was no evidence presented to
proof that any readers of the statement complained of understood the words in that
sense.

Held further that –the statement alleged to be defamatory was not one communicated
to various people but directly to the parties involved in court proceedings via a plea to
the particulars of claim as prescribed by the rules of this court. In the result, this court
can find no evidence that the statement was made with malice and with the intention
to defame the plaintiffs’ good character and reputation.

Held further – Even if this court agrees with the plaintiffs that the statement is
defamatory, then the statement published by the defendants in the course of judicial
proceedings is a privileged occasion.

Held further that – In light of the nature wherein the statement was made, it cannot be
that the said statement was defamatory but an answer to the claim only. Further, the
plaintiffs adduced no evidence indicating that the statement caused a violation of the
plaintiff’s rights or interests neither infringement of any kind.

Teichmann Plant Hire (Pty) Ltd v RCC MCC Joint Venture (I 1216/2015) [2018]
NAHCMD 2 (17 January 2018)

Summary: This is an opposed application for leave to amend the plaintiff’s particulars
of claim. The plaintiff instituted an action against the defendant in respect of a works
contract and a hire contract. However, the plaintiff applied for leave to amend its
particulars of claim just before the pre-trial hearing. The defended objected thereto. In
terms of this amendment, the plaintiff wishes to introduce new agreements into the
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pleadings, which agreements are based on the same claim. The defendant’s bases
for objection were manifold, including that the explanation for the lodging of the
application is weak and that the wasted costs incurred by it thus far as well as the
prejudice that it will suffer, if leave to amend was granted. Further, that the reasons
given in support of the application for leave to amend, were not reasonable enough to
warrant the grant of leave to amend.

Held; the court has discretion to grant or refuse an application for leave to amend.

Held; in our adversarial system a party may not be compelled to hold on to a version,
which no longer represents his or her true case or interests.

Held; in the instant case, the interests of justice and the overall objectives of judicial
case management require that the application for amendment should be granted.

Texeira v 4 Fourz Automotiv CC (I 3244/2014) [2018] NAHCMD 233 (6 August

2018)

Summary: The plaintiff and the defendant entered into a contract for the repair by
the defendant of the former’s vehicle, following a car accident. The plaintiff claimed
payment of N$ 500 000 for the fair market value of a new vehicle in the light of the
defendant’s alleged failure to repair the vehicle, resulting in the plaintiff cancelling the
agreement. This court, in an application for absolution from the instance, granted the
application, leaving open the plaintiff’s claim for repayment of the deposit of N$ 70
000.

Held – that there is a case that the defendant did some work on the plaintiff’s vehicle
and for which it is entitled to compensation by the plaintiff.

Held further – that on the undisputed evidence adduced, the defendant spent time on
the vehicle which translates to a figure between the amounts of N$ 25 000 and N$ 35
000. The court, in its quest and best effort to do justice between the parties, in the
absence of direct evidence, granted the defendant an amount of N$ 30 000 and
ordered the defendant to return to the plaintiff an amount of N$ 40 000 to the plaintiff
plus the vehicle in question.

The Board of Incorporators of The African Episcopal Church v Kooper (I

3244/2014) [2018] NAHCMD 5 (24 January 2018)
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Summary: The plaintiffs sued the defendants for eviction on the property described
as Erf 140 Hoachanas, alleging they were the owners, alternatively, bona fide
possessors of the said property. The defendants, at the close of the plaintiffs’ case
moved an application for absolution from the instance, claiming that the plaintiffs had
not led any evidence to show that they owned the property and were as such, entitled
to an order evicting the defendants. They also claimed that the plaintiffs had not
shown that they had the requisite legal capacity to institute the proceedings for
eviction.
Held - the courts should be extremely chary in granting applications for absolution
from the instance unless the interests of justice so demanded.
Held that – the plaintiffs had alleged that they were the bona fide possessors of the
property and that even if they may not have shown that they were the owners, it
would be improper to grant the application for absolution from the instance.
Held – that the defendants were no entitled to raise the issue of the plaintiffs’ capacity
to bring the proceedings because the issue of capacity had not been raised in the
pre-trial order and that in any event, the defendants had unilaterally withdrawn the
exception in which they had raised the issue of capacity to sue.
Held further – that the court does not lightly allow issues not raised in the pre-trial
order to be ventilated at trial for the dislocation that occasions to the trial and
preparation both for the parties and the court.
Held – that where it becomes necessary for any of the parties to have the pre-trial
order varied, strong and cogent reasons must be advanced for same.
Held that – on the balance, the plaintiffs had at the least, made a case based on
bona fide possession that would require the defendants to state their defence in the
witness box.
In the premises, the court came to the conclusion that the application for absolution
from the instance should be dismissed with costs and accordingly did so.

The Buildhard Services (Pty) Ltd t/a E Hard-Build Centre v Chrechen Muukua (I
1586/2016) [2018] NAHCMD 120 (08 May 2018)

Summary: The plaintiff sued the defendant for an outstanding amount on the
account due and payment by the third party (a builder) who was building her
(defendant) house which she (defendant) undertook in writing to pay. The defendant,
after the evidence of the plaintiff was led and its case closed, applied for absolution
from the instance. However, the court found and held that there is evidence on
record upon which this court applying its mind reasonably could or might find for the
plaintiff and dismissed the application with costs.
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The Central Procurement Board v Nangolo N.O. (HC-MD-CIV-MOT-REV-

2017/00441) [2018] NAHCMD 357 (9 November 2018)

Summary: The applicant, a body formed in terms of the Procurement Act (the ‘Act’)
awarded a tender to the 3rd respondent. The tender had been processed in terms of
the repealed legislation and the technical and financial processes had been
processed by the time the Act came into force. The applicant’s decision to award the
tender was taken on review and the Review Panel upheld the review and ordered the
applicant to start de novo, holding that it was not functus officio and to was to among
other things, consult with the Policy Unit in the appointment of the evaluation
committee. Aggrieved by this decision, the applicant approached this court, seeking
an order reviewing and setting aside the decision of the Review Panel.

Held – that there was nothing wrong or untoward with the applicant taking legal
proceedings against the Review Panel, another functionary established in terms of
the Act. In a constitutional State, good constitutional citizenship encourages the
resort to the courts for relief and frowns upon self-help.

Held further – that the applicant was entitled to have been served with the application
for review and that failure to serve the applicant with the application for review
rendered the review a nullity.

Held – that the applicant was also not granted a proper of fair opportunity to make its
representations to the Review Panel, thus causing failure of justice, thus rendering
the judgment issued by the Review Panel liable to be set aside as its right to be
heard had been violated.

Held further that – the Review Panel was not entitled to call Mr. Swartz to attend the
review hearing in the absence of a proper invitation to the applicant. As such, the
applicant was never invited nor properly represented at the review proceedings.

Held – that where tenders had been initiated under the repealed law, they could be
dealt with in terms of the repealed law if all that was left was for to announce the
successful tenderer. To do otherwise, it was held, would result in the loss of time and
money both for the public institutions and the tenderers.

Held further – that the ‘standstill period’ ushered in by s. 55 (5) of the Act is illusory in
view of the fact that while an application for review is launched within the period
legislated, the launch of the review does not serve to suspend the award. In this
regard, even if an award is found to have been irregularly awarded, the provisions of
s. 60 (c) allows decisions or actions bringing a procurement contract into existence
not to be set aside.
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Held – that the Review Panel had not set aside the tender awarded by the applicant
and for that reason, the award stood and for that reason, the applicant had become
functus officio in the matter.

Held further – that in terms of s.60 (c) of the Act, the Review Panel could not set
aside a decision or action whose effect is to bring into force a procurement contract
or the framework agreement into force.

Held – that consultation means that there must be some conference and exchange of
opinions between the party required to consult and the party to be consulted. In this
regard, where there is consultation after, the party required to consult need to not
obtain the concurrence of the party to be consulted.

Held further that - the applicant was not required by the law to consult with the Policy
Unit before appointing an evaluation committee. That requirement, it was noted, was
prescribed by the regulations only in respect of a controlling officer.

The application for review was therefore granted as prayed.

The Director General of the Namibia Central Intelligence Service v Haufiku (HC-
MD-CIV-MOT-GEN-2018/00107) [2018] NAHCMD 174 (18 June 2018)

Summary: The third respondent, an independent newspaper, intended to publish an

exposé on alleged corrupt activities and transgression of the State Finance Act in the
Namibia Central Intelligence Service. When informed of the third respondent's
intentions, the applicants – the Director-General of the NCIS and the Government
launched an urgent application to interdict the publication of the intended article. The
interdict was sought on the strength of the Namibia Central Intelligence Service Act,
Act No 10 of 1997 and on the provisions of the Protection of Information Act, Act 84
of 1982 which prohibited the possession and publication of classified information and
on the basis that the publication would expose and this threaten be harmful to the
operations of the security service. The respondents, being the journalist and editor in
question, and the publishing entity inter alia relied in their defence on the freedom of
speech and expression and the media guaranteed by art 21(1)(a) of Namibian
Constitution. In the absence of a constitutional challenge the court had to give
recognition to the fact that the applicants had established the clear rights contended
for based on the relied on statutes. As on the other hand the respondents had
established their constitutional art 21(1)(a) rights, subject to the art 21(2) limitations
the court had to embark on a balancing exercise. The court however refused to grant
the sought interdict as the court found that the applicants had failed to establish the
second requirement for interdictory relief, ie. that the applicants had failed to establish
that an injury was actually committed or reasonably apprehended. The application
was accordingly dismissed.
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Held: That the failure of the applicants’ to allege factual matter ‘informing the secrecy,
sensitivity and classification (as well as the perceived compromise to national
security) on the information and publication they seek to interdict.’ materially,
detracted from the veracity of the applicants’ case.

Held: That the actions of the NCIS are subject to judicial oversight as the NCIS
operates in the context of a democratic state founded on the rule of law which rule
subjects all public officials and all those exercising public functions, whether openly or
covertly, in the interest of the State, to judicial scrutiny, this would include all
operatives and functionaries of the NCIS. The agency has been established to serve
that state and thus remains accountable to the judiciary.

Held further: that the courts are well equipped to deal with security issues where the
court could, for instance, exercise its inherent powers to regulate a preliminary in
camera procedure, if required, for purposes of establishing whether any information
required in judicial proceedings should be kept secret contrary to the open justice
principle in the interests of national security or whether or not such information could
be placed into the public domain.

Held: as applicant sought to interdict the publication of an article that was intended to
expose the alleged misuse of public funds and corruption the question arose whether
or not the law – and in this instance the relied upon statutory provisions could be
used – to cover up potentially illegal- and in this case alleged corrupt activity? The
court answered this question with an emphatic ’no’. On these considerations the court
would also exercise its limited discretion against the applicants.

Held: Article 21(2) of the Constitution allows for reasonable limitations of the Article
21(1)(a) rights and freedoms. Any limitation that would lend itself to unlawful
purposes could clearly not be considered as reasonable. In such scenario the relied
upon art 21(1)(a) of the respondents would have to prevail.

Held in addition: that on the application of the public domain doctrine the law should
not deny the Namibian public the right to be informed more fully, through the intended
newspaper article, of the matters which had already become freely available through
the publicly accessible court record and court documents, the public- and live
television broadcast of the hearing and the radio broadcasts and newspaper articles
reporting on this case prior and after the hearing, which articles were also published
nationwide in all the main newspapers of this country and even beyond Namibia’s
borders

Held also: that the import of the public domain doctrine into the law pertaining to
interdicts would be that, in such circumstances, it can no longer be said that there
can be any reasonable apprehension of an injury or harm, as the injury has already
occurred ie. in this case it would be meaningless or moot as it would make no sense
to interdict information which is to form the substance of a newspaper article in
respect of which that substance is already in the public domain. As the applicants
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could thus not prove the second requirement pertaining to final interdicts the
application had to be dismissed with costs.

The Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-

MOT-EXP-2016/00275) [2018] NAHCMD 36 (16 February 2018)

Summary: Applications and motions – Affidavits – Court may in its discretion

permit the filing of further affidavits – Respondent seeking leave to file a further
affidavit – Court concluding that further affidavits allowed only in special
circumstances or if the court considers such cause advisable – Court further
expecting an explanation as to why the filing of further affidavits is necessary –
Respondent failing to adduce evidence to this effect – As a consequence, court of
the view that Respondent failed to establish that special circumstances exist –
Application dismissed with costs.
The Namibian Competition Commission v Puma Energy (Namibia) (Pty) Ltd
(HC-MD-CIV-MOT-EXP-2016/00275) [2018] NAHCMD 356 (8 November 2018)

Summary: The Namibian Competition Commission had applied for- and was granted
a warrant to enter and search the premises of Puma Energy Namibia Pty Ltd for
purposes of establish whether or not Puma was engaged in prohibitive practices as a
result of a complaint received. The High Court authorized the applied for search and
issued an appropriate warrant for such purpose in terms of Section 34 of the
Competition Act 2 of 2003. The warrant was granted by order granted ex parte and in
camera.

After holding that Puma was entitled to a reconsideration of the order as if the order
was first being applied for the court upheld a point in limine to the effect that the
acting secretary of the commission was not authorized to apply for the warrant in
question, which finding then meant that the warrant fell to be set aside on that basis.

Thomas v K & G Bricks CC (I 1883/2015) [2018] NAHCMD 221 (19 July 2018)

Summary: The Plaintiff instituted action against the Defendants for payment of
money in respect of profit-share derived from a tender awarded by the Municipal
Council of Henties Bay to K&G Bricks/Tatamutsi and Sons Construction Joint
Venture, on 03 September 2014.

Prior to the award of the aforesaid tender, the 1 st Defendant and the 2nd Defendant
had on 05 August 2014 entered into a joint venture agreement with the Plaintiff in
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which they agreed to carry out certain obligations in anticipation of the award of the
tender to their joint venture.

The Plaintiff is not a party to the joint venture that was ultimately awarded the tender
in question. The Plaintiff also did not discharge any of the reciprocal obligations as
set out in the Joint Venture he entered into between the 1 st the 2nd Defendants. After
the plaintiff closed his case the Defendants applied for absolution from the instance.
Court granted absolution in favour of the Defendants.

Thomas v Thomas (I 93/2015) [2018] NAHCNLD 75 (30 July 2018)

Summary: First plaintiff during his lifetime, was married to second plaintiff in
community of property. First plaintiff bought plots upon which he developed for
commercial purposes. This he did using his own financial resources being helped by
second plaintiff. He, however, died. Defendant who was his brother together with
other members of his family decided to deprive second plaintiff of their plot leaving it
to be taken over and run as a going concern by defendant.

Defendant continues to run it to date to the total exclusion of second plaintiff and her
children. Both plaintiffs issued out summons against him to which he defended and
he filed a counter-claim for the eviction of second plaintiff. Second plaintiff proved her
right to the plot and was supported by various witnesses including the Master of the
High Court and Oshakati Town Council who both confirmed that the plot in question
belonged to first plaintiff.

It was held that second plaintiff was entitled to inherit the said plot as the widow, as
determined by the Master of the High Court. Plaintiffs succeeded in their claim.

Timotheus v Abed (CA 34/2017) [2018] NAHCMD 130 (17 May 2018)

Summary: This is an appeal, against an order by a Magistrate refusing to rescind a

judgment granted by default against the appellant – The application was brought on
the ground, inter alia, that the default judgment was void ab origine and the
Magistrate misdirected herself on the facts and law.
Court held: The Magistrate misdirected herself both on the facts and on the law by
holding that the application was brought in terms of rule 49(1), whereas it was clearly
stated that the application was brought to rescind a default judgment as contemplated
by rule 49(11).

Court held further: The Magistrate Court as well as the Clerk of the Court are both
creatures of the Act: they have no power other than those powers vested upon them
by the Act. The Clerk of the Magistrate Court has no power in terms of the Act to
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grant a judgment by default in the circumstances where an action becomes

defended. The Clerk of the Court’s power to grant default judgement is limited to
applications for default judgments made in undefended matters. It is for this reason
that the purported default judgment was void ab origine. The Clerk of the Court was,
in terms of the rules, under an obligation to have notified the respondent that the
matter has become defended and therefore judgment by default could not be
granted.

Tjirovi v Minister for Land and Resettlement (HC-MD-CIV-MOT-REV-2017/00086)

[2018] NAHCMD 56 (19 March 2017)

Summary: The applicant sought an order reviewing and setting aside the
Minister’s decision to, in terms of the Agricultural (Commercial) Land Reform Act,
1995 published on 9 December 2016, allot Portion 1 of Portion A of Farm Karaam
152, Single Unit, Hardap Region to Bernadette Skrywer-Boois, and an order allotting
Portion 1 of Portion A of Farm Karaam Number 152, Single Unit, Hardap Region to
him. In the alternative to this order the applicant sought an order directing the
Minister to reconsider afresh his decision to allot Portion 1 of Portion A of Farm
Karaam, Single Unit, Hardap Region.

The Minister opposed the application, in his affidavit in support of the opposition the
Minister raised a point in limine, the point in limine being that in terms of s 41(8A) of
the Agricultural (Commercial) Land Reform Act, 1995 as amended, an applicant who
is aggrieved by the decision of the Minister not to allot a farming unit to him, may
within 30 days from the date of notice of the Minister’s decision, appeal against such
decision to the Lands Tribunal. Since the applicant did not appeal to the Lands
Tribunal, he is non - suited to launch the current proceedings, contended the
Minister.

Held that where a statute created an internal remedy, it was a matter of statutory
interpretation as to whether that remedy had first to be exhausted before recourse
could be had to a court.

Held that the language of s 41(8A) cannot be said to, expressly or by necessary
implications, prohibit access to court for it does not state that no party may approach
a court for relief until the appeal has been completed. It simply states that a party
may appeal to the Lands Tribunal. The section, in the court’s view provides a party
with a choice whether to appeal or seek other judicial remedy.

Held that the Lands Tribunal, when considering an appeal against the Minister’s
decision, is limited to consider whether the decision was correctly taken or not. The
Tribunal does not have the power to review the process followed by the Minister in
order to establish whether the decision was taken following a fair procedure or not.
The court is therefore of the view that the appeal provided for in s 41(8A) will not, in
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the circumstances of this case, provide the applicant effective relief and to that extent
the applicant may approach the Court without having to first exhaust the appeal route
provided for in that section. The point in limine accordingly failed.

Held that the Minister’s powers to allot a farming unit was dependent on the
recommendation of the Commission, in other words, such a recommendation is a
jurisdictional fact.

Held that before the Minister is entitled to exercise his power (as conferred upon him
by s 41(3) of the Act) to allot a farming unit he must be satisfied that one or more of
the conditions set forth in s 41(3) and (6) obtain, and that the procedural step
prescribed in s 41(2) and (3) have been executed. It thus follow that one of the
possible grounds upon which the exercise of the power granted by s 41(3) may be
assailed in a Court of law is the absence of one or more of the conditions listed in
subsection (3) of section 41. The Court therefore found that the Minister could not
make an allotment of a farming unit where there is no recommendation by the
Commission.

Held that the purpose of judicial review is to scrutinize the lawfulness of

administrative action in order to ensure that the limits to the exercise of public power
are not transgressed and not to give the courts the power to perform the relevant
administrative function themselves. As a general principle, therefore, a review court,
when setting aside a decision of an administrative authority, will not substitute its own
decision for that of the administrative authority, but will refer the matter back to the
authority for a fresh decision.

Held that in the present case no imputations of bad faith or bias are made against the
Minister and no direct charge of bad faith or bias is elaborated upon anywhere on the
papers nor was it done in argument. The whole file of correspondence was disclosed
and, it contains nothing which in any way savours of bad faith or bias. In the
circumstances, said the court, it would be wrong for the Court to decide the issue
itself.

Tjoklits Investments CC v Aquarius Investments No. 191 CC

(I 1569/2013) [2018] NAHCMD 322 (15 October 2018)

Summary: Rule 32(11). Plaintiff, the unsuccessful parties' costs was limited by
Taxing Officer.

Held, Rule 32(11) cap only the costs awarded to the successful party.

Tobias v Hausiku (HC-NLD-CIV-APP-AMC-2018/00002) [2018] NAHCNLD 41 (23

April 2018)
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Summary: Appellant was aggrieved by the court order granted by the court a quo
that he should pay N$400 per month per child. He has three (3) minor children with
the respondent. He takes home N$7000± and she is not employed. He argued that
he has 3 other children to look after. Children have since grown up since the previous
order. Appellant failed to show a misdirection or irregularity on the part of the court a
quo. The appeal was dismissed with costs.

Uutoni v Freedom Square Investments Twenty Four CC (HC NLD-CIV-

ACT-CON-2017/00253) [2018] NAHCNLD 51 (11 June 2018)

Summary: Plaintiff issued out summons against defendant for payment of the sum
of N$170 000 based on the dishonoured cheques issued by the defendant.
Plaintiff/applicant applied for summary judgment on the basis of the said dishonoured
cheques. Respondent/defendant opposed the application and argued that the said
cheques had been made good by certain payments and attached proof of such
payment to its opposing affidavit. Application for summary judgment was accordingly
dismissed.

Van Schalkwyk v Dias (I 1048/2011) [2018] NAHCMD 396 (4 December 2018)

Summary: The plaintiff claims a refund only against the first defendant, due to failure
of a purported purchase and sale agreement which was entered into between the
plaintiff and the first defendant in respect of Erf 1582, Tutungeni Township, Rundu
(the property), and pursuant to which plaintiff paid certain amounts to the first
defendant. After absolution was granted by this court, the Supreme Court on Appeal
reversed the decision as regards the prayer for refund as between the plaintiff and
the first defendant.

The Supreme Court confirmed this court’s finding that the initial written agreement
had lapsed due to non-fulfilment of a suspensive condition, but proceeded on the
assumption that an oral agreement and a subsequent written agreement which were
both entered into after the initial written agreement had lapsed were valid and
enforceable and that if the plaintiff made full payment under the oral agreement, he
could enforce it. The Supreme Court further held that where a suspensive condition
fails, the parties revert the position which they had been in before the contract was
concluded. Accordingly, moneys paid to the first defendant had to be paid back.

However, this court is of the view that the Supreme Court’s judgment was rendered,
per incuriam when it proceeded on the assumption that the oral agreement and the
subsequent written agreement were valid and enforceable and had either been
cancelled by the first defendant or performance in terms thereof had become
 171

impossible due to transfer of the property to an innocent third party. The error
occurred due to incomplete record of the judgment on this court being placed before
the Supreme Court. Because the Formalities In Respect of Sale of Land Act, 1969
(Act 71 of 1969) has not been complied with, both oral agreement and the
subsequent written agreement are void ab initio, and no question of cancellation or
damages due to non-performance, arises.

Plaintiff had made payments pursuant to the agreements which were found to be
void ab initio.

Court held that plaintiff entitled to a refund on the basis of unjustified enrichment
(condictio indebiti) and even if the issue of refund was not canvassed in the pleadings
and on the strength of the Supreme Court decision in Kashela v Katima Mulilo Town
Council and Others, a formulation of the issue in the pre-trial order is binding on the
parties and also on the Court, whether or not it was set out in the pleadings.

Van Wyk v Chibueze (I 755/2016) [2018] NAHCMD 305

(26 September 2018)

Summary: A motor vehicle accident occurred on 25 October 2014 between plaintiff's

vehicle and that of defendant's. Both vehicles damaged. How the conflicting
versions are to be resolved.

Van Zyl (Snr) v Namibia Affirmative Management and Business (Pty) Ltd (HC-
MD-CIV-MOT-GEN-2018/00337) [2018] NAHCMD 350 (5 November 2018)

Summary: The applicants are members of a company called NAMAB which was
involved in the business of tourism and lodge development. It had a number of
directors. As time went on, there were problems with some of the directors who
began doing acts that sabotaged the core business of the company, including
booking tours in competition with the company. Some funds placed in the hands of
the said directors were not properly accounted for, thus causing disruptions in the
running of the business. Attempts to resolve these amicably failed. The applicants
then approached the court seeking an order interdicting the members who were
alleged to run the company business in an untoward manner from continuing with
their roles pending the convening of a meeting where a new board of directors would
be appointed.
 172

Held – that a case for urgency, particularly commercial urgency had been made by
the applicant, In regard, all the requisites of rule 74(3) and (4) had been met by the
applicants.

Held further – even if a matter is urgent, the court will still expect its officers to attend
the matter with the requisite degree of meticulousness. Papers filed before the court
should not be slovenly or sub-standard.

Held – that the applicants had the locus standi to bring the application they did in
terms of s.260. Section 260, it was held, applied in different situations viz where a
member contends that the company’s acts or omissions of the company are
unreasonably prejudicial, unjust or inequitable or where a member complains that the
business of the company is being run in a manner that is unreasonably unjust,
prejudicial or inequitable. The court found that the applicants had brought their
application in terms of the latter.

Held further – that the standard applied by the court in invoking the provisions is
where it ‘appears’ to the court that the prejudicial conduct is being perpetrated,
meaning that the standard is lower and need not be proof beyond reasonable doubt.
In this regard a prima facie but not a conclusive case need not be made by an
applicant.

Held – the allegations made by the applicants were such that it appeared to the court
that a case for the invocation of the provisions of s. 260 had been made. The
provisions of s. 274 as argued by the respondents, were inapplicable.

Held further that - the respondents’ contention that the shareholders’ agreement
governing the parties’ relationship was invalid because it had not been signed by
some parties, could not hold as the parties had acted in terms thereof and the
respondents were thus estopped from arguing that the agreement is invalid.

Held that – no case had been made by the applicants for the granting of a
mandamus against the Minister for the reason that he had not been properly notified
in terms of the relevant agreement of the change in the company’s agreement that
was required.

The court found that a case had been made under s.260 and accordingly granted the
applicants the relief they sought. The opposing respondents were ordered to pay the
costs.

Visser v Auto Tech Truck and Coach CC (HC-MD-CIV-ACT-CON-2017/04585)

[2018] NAHCMD 359 (8 October 2018)
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Summary: The Applicant applied for rescission of default judgment granted by this
court upon his failure to file a plea. The Applicant attributes this failure to fault on the
part of his erstwhile legal representative. No confirmatory affidavit by the said legal
representative filed confirming her contribution in the failure to file a plea. In the
circumstances, no reasonable explanation was given for the failure. Appeal
dismissed.

Voigts v Voigts (I 924/2016) [2018] NAHCMD 55 (16 March 2018)

Summary: The plaintiff failed to comply with a court order dated 08 June 2017 and
the court ordered the plaintiff to file an affidavit to show cause why sanctions as
contemplated in Rule 53 and 54 of the Rules of Court should not be imposed.

The plaintiff submitted in her affidavit that the failure to comply with the court order
was due to the fact that the parties were engaged in settlement negotiations, with the
hopes that the matter would be finalized as a result thereof. The defendant, however,
unequivocally denied the alleged settlement negotiations and the plaintiff eventually
accepted that there were no hopes of reaching a settlement. It thereafter took the
plaintiff a period of four months to file an application for condonation for non-
compliance with the relevant court order. The reasons advanced by the plaintiff are
firstly, that her counsel was only available in January 2018 and as a result could not
file her witness statements nor seek condonation for the late filing thereof, and
secondly, financial constraints.

The plaintiff conceded that there were previous non-compliance with court orders and
submitted that the reason for the non-compliances was that she was working in
remote areas and could not always be reachable via electronic media and cellular
phone.

The defendant however, was of the view that the non-compliances of the plaintiff
became a trend since the date of instituting this action and in May 2017 already the
defendant requested the court to strike the plaintiffs claim and particulars of claim
because of the non-compliances.

Held that it seemingly did not occur to the plaintiff and her legal practitioner that her
non-compliances were non-compliances with the court’s case management orders,
which would have necessitated an immediate and prompt application in terms of Rule
55, in order to be released from the binding effects of the applicable case
management orders.

Held further that there can be no argument that the plaintiff’s default was intentional
as she instructed her legal practitioner not to file her witness statement contrary to
the court order.
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Held further that courts are slow in shutting the doors of justice on a litigant and that
is clear from the two previous instances where the court indeed granted condonation
for non-compliances.

W W B v Johannes Aipanda N O (I 402/2014) [2018] NAHCMD 22 (09 February

2018)

Summary: Plaintiff instituted action against defendant for divorce based on

malicious and constructive desertion, and in the alternative that defendant suffered
from incurable insanity and was declared of unsound mind and incapable of
managing is own affairs. She relief of sought an order for specific forfeiture of benefits
arising from the marriage in community of property, in respect of the immovable
property situated in Windhoek and alternatively the plaintiff in addition sought an
order declaring the value of the improvements made to the traditional homestead
situated at to be considered as part of the joint estate where division will be
considered.

Held, that a specific forfeiture order is an order where a particular res is forfeited to
the plaintiff. When such a specific forfeiture order is sought, a court requires a litigant
to set out all the relevant information.

Held, further that section 2(b) of the Divorce Laws Amendment Ordinance provided
that the court shall not, as against the defendant, order any forfeiture of benefits
arising out of the marriage if the defendant suffered from an incurable mental illness.

Held, the court held further that a customary land right may not be allocated to more
than one person jointly, and thus it shall not form part of the joint estate.

Worker Freight Services (Pty) Limited v Transwide Freight CC (I 1823/2016)

[2018] NAHCMD 384 (29 November 2018)

Summary: The matter and the parties to the suit were referred to mediation by the
case managing judge in terms of rule 38 read with the provisions of rule 39 of the
High Court Rules. During the mediation, however, the mediator appointed by the
court to mediate in the dispute, conducted the mediation similar to arbitration
proceedings by allowing the mediation proceedings to continue in absence of a
representative of a party to mediation and declaring the third defendant not liable and
excused it from the proceedings. That power the mediator does not have. His duty
was only to assist the parties to resolve their dispute not to act as if he were their
legal representative. That being the case, the court held that the mediator defied
rules and practice directives regulating mediation proceedings. Held further that due
to the non-compliance with the rules, the report filed by the mediator caused
confusion because it did not state whether the mediation was successful or not
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successful. As a result, therefore, court held that no oral agreement was concluded
by the parties and dismissed the claim with costs.

Zest Investments Seventy-Three CC v Municipal Council of Windhoek (I

166/2016) [2018] NAHCMD 186 (22 June 2018)

Summary: The First Defendant sold certain immovable property to the Plaintiff in
terms of a written agreement of sale. In terms of the agreement, the Plaintiff was
obliged to furnish the First Defendant with a bank guarantee payable against
registration of transfer of the property. The Plaintiff furnished the First Defendant with
a letter of undertaking from a law firm undertaking to pay the purchase price “subject
to availability of funds” The court held that a letter of undertaking or bank guarantee
payable “subject to availability of funds” is not a guarantee contemplated in terms of
the written agreement between the parties. The court held further that the First
Defendant was entitled to cancel the agreement due to failure by the Plaintiff to
provide a guarantee payable against registration of the transfer of the property.
Plaintiff’s claim dismissed with costs.

Zone Four Electrical Contractors CC v The Kunene Regional Council (HC-MD-

CIV-ACT-CON-2017/02972) [2018] NAHCMD 111 (26 April 2018)

Summary: The plaintiff and the first defendant concluded a written agreement
for the construction of electrical infrastructure in Otuzemba, Opuwa. In terms of the
agreement, the plaintiff was appointed as the contractor and would carry out the work
as set out in the agreement. Further in the agreement, the fifth defendant was
appointed as the principal agent for the project and would oversee the progress of the
project on behalf of the first defendant. The total remuneration in terms of the
agreement that would be paid to the plaintiff once the project was completed would
be NAD 5,232,214.30.

Upon completion of the project, the fifth defendant would issue interim, penultimate
and final payment certificates in regards to the progress of the works, for payment of
the sum stated in the relevant certificate due to the plaintiff payable by the first
defendant within the period stated in the relevant certificate. The afore-pleaded
certificates, once duly issued, represent acknowledgments of debt.

The plaintiff duly complied with the terms of the agreement and finalized the project.
The fifth defendant (acting as agent for the first defendant) issued a final payment
certificate in the amount of NAD 286,867.17 (annexure ZF to the particulars of claim).

The first defendant breached the terms of the agreement and final payment
certificate, in failing to pay the plaintiff the amount of NAD 286,867.17.
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The first defendant in its defence argues that the plaintiff failed to comply with the
peremptory provision as set out in Rule 45(7) to attach the written contract relied
upon, which renders the plaintiff’s claim and/or summons defective as it constitutes
an irregular proceeding.

Held – the defence raised in terms of Rule 45(7) is purely technical and has no
merits.

Held – Summary judgment procedure is not intended to shut the defendant out from
defending his claim however it is very clear that it has no sustainable defence in this
matter.