2018 Supreme Court Judgment Index

2018

COMPILED BY: NICOLE JANUARIE – SENIOR LEGAL OFFICER, SUPREME COURT

ContentsAPPLICATIONS.............................................................................................................................2

CIVIL PRACTICE AND PROCEDURE..........................................................................................3

COMPANY LAW..........................................................................................................................16

COMPETITION LAW...................................................................................................................20

CONSTITUTIONAL LAW............................................................................................................23

CONTRACT LAW........................................................................................................................29

COSTS........................................................................................................................................38

CRIMINAL LAW AND PROCEDURE..........................................................................................39

DELICT........................................................................................................................................42

LAW OF SUCCESSION..............................................................................................................46

MATRIMONIAL LAW...................................................................................................................52

POCA...........................................................................................................................................53

PROPERTY LAW........................................................................................................................54

REVIEWS....................................................................................................................................56

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APPLICATIONS

Leave to appeal and reviews: The appellant brought an urgent application in the High Court seeking, amongst others, the reconnection of water supply to an immovable property belonging to the first respondent which the appellant and his family continued to occupy despite the fact that it had been sold to the first respondent. This relief was directed at the second respondent as the responsible service provider of water supply in the city. The court heard and dismissed the application on the basis of an earlier order made by the court barring the appellant’s spouse, to whom the appellant is married to in community of property, from bringing any further legal proceedings against the second respondent pending the discharge of a costs order granted against her. In dismissing the application, the High Court held that the earlier order remained in force and as the appellant had not complied with it, the urgent application could not be heard.

On appeal, the parties were in agreement that the order appealed against was interlocutory in nature and that in terms of section 18(3) of the High Court Act 16 of 1990, the appellant required leave from the court a quo to appeal the order and if leave was refused by that court, this court should have been approached by way of a petition for leave to appeal. There was a further concession on the part of the appellant that the satisfaction of the costs order granted against his wife would have been borne out of the joint estate, and that an appeal against such a costs order would require leave in terms of s 18(3) of the High Court Act. The court on appeal endorsed the concessions made by the appellant.

The appellant’s second part of the appeal is a purported ‘review’, imploring the Supreme Court to exercise its review jurisdiction in terms of s 16 of the Supreme Court Act 15 of 1990. The appellant alleges that the court a quo committed an irregularity in dismissing his application without affording him an opportunity to ventilate his case. The appellant further alleges that the decision of the court a quo constituted an irregularity in the proceedings in that it merely extended the operation of the order granted against his wife to him in the absence of an enquiry to determine whether the costs were paid or not.

On appeal held that interlocutory orders and orders as to costs are not appealable as of right and that leave to appeal against such orders must first be obtained from the court a quo and if that court refuses to grant leave, then leave should be obtained from this court. As no leave had been obtained, the appeal stands to be struck from the roll.

Held, further that it is settled that the review jurisdiction of this court would be invoked mero motu if it comes to the court’s attention that an irregularity had occurred in the proceedings of the court a quo. Held, that on the facts of the case, the appeal court was not persuaded that the High Court committed an irregularity and thus the request for the appeal court to invoke its review powers was declined.

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Appeal accordingly struck from the roll. Beukes v Benade (SA 15-2009) [2018] NASC (13 April 2018)

CIVIL PRACTICE AND PROCEDURE

Appeal – condonation and reinstatement: The preliminary issue in this appeal is an application for condonation for late prosecution and reinstatement of appeal. The condonation application is opposed on the basis that the appeal is deemed to have been withdrawn and that the inordinate delay has not been satisfactorily explained.

Court on appeal held that public importance of the issues on appeal and the overwhelming prospects of success on appeal tilt the balance in favour of considering prospects of success and not summarily dismissing the appeal.

Road Fund Administration (RFA) is created under the Road Fund Administration Act 18 of 1999 (the Act) to ensure safety of Namibia’s public roads network and to see to it they are safe and economically efficient. To achieve that object, RFA is empowered under s 18(1) of the Act to impose a range of road user charges, including a levy on every litre of petrol and every litre of diesel sold by wholesalers at any point in Namibia and included in the selling price of such product. RFA is also given power under s 18(1) (d) to refund consumers who do not use a petroleum product on public roads.

RFA published a Notice setting out the requirements to be satisfied by those consumers seeking refund for fuel purchased but not used on public roads. The requirements to be fulfilled in terms of the Notice require that claims must be submitted within three calendar months from the date of purchase of the petroleum product and must be accompanied by such further information or documents as RFA may request. Pursuant to the Notice, RFA issued a claim form ‘RFA/R3’ requiring that all claims for refunds be accompanied by original VAT invoices, and further that claims submitted after three calendar months will not be considered.

The respondent (Skorpion) submitted two separate claims on RFA/R3. Both claims were rejected by RFA. Claim 1 was rejected because the claim was not accompanied by original invoices and claim 2 on the basis that it was submitted after three months. Skorpion instituted action proceedings for the payment of the amounts represented by the claims alleging that claim 1 was accompanied by original invoices contrary to RFA’s assertion otherwise and that although claim 2 was submitted late, it was unfair and unreasonable and further contrary to Art 18 of the Constitution, to reject the claim without affording the Skorpion an opportunity to satisfy RFA that claim was proper and that there was good reason why that claim was submitted late. In response, RFA pleaded in the court a quo that the requirements for claims were mandatory and that it could not relax them.

The court a quo held that it was not necessary to decide the factual disputes that had arisen as the matter could be disposed of on RFA’s admitted policy and practice not to entertain any non-compliant claim regardless of the circumstances. The court a quo’s

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reasoning is that the levies collected for non-on-road use belonged to the consumers, such as Skorpion, entitling it to claim and consequently creating a right in such a claimant to be given a hearing before a claim is rejected. The court a quo thus held that RFA has power under paragraph 7(8) of the Notice to make inquiries and to ask for documents to test the authenticity of a claim and to lean more in favour of honouring a claim than rejecting it. It is on this basis that the court a quo decided that RFA’s inflexible enforcement of the requirements of the subordinate legislative scheme is in breach of Art 18 of the Constitution and that since referring the matter back to RFA to reconsider the claims afresh will not be proper in the circumstances of the case, Skorpion would be entitled to the refunds claimed. Accordingly, Skorpion made out the case for the award of compensation under Art 25(4) of the Constitution.

Held on appeal that it is a misdirection for the court a quo to have resort to the Constitution without considering if the matter could be resolved by applying the common law; that the two claims had to be considered separately in order to establish if Skorpion had discharged the onus in respect of each claim.

In respect of claim 1, court on appeal held that since claim 1 involved mutually destructive versions, the court a quo should have made credibility findings to consider where the probabilities lie, and that since Skorpion’s version that the claim was submitted with original invoices was not proved, the claim should have been dismissed on that basis.

In respect of claim 2, court on appeal reiterates that the general principle is that an administrative authority has no inherent power to condone failure to comply with peremptory requirements, unless such power has been granted to them. Court held that as an administrative actor, RFA could only relax the three months deadline if the legislative scheme made allowance for that. That since the subordinate legislative scheme was couched in mandatory language and spelled out that non-compliant claims will not be considered, it would be beyond RFA’s competence to relax the three month’s deadline or to investigate the reasons why claim was submitted late.

Court on appeal held that it was a misdirection to hold that moneys subject to refund claims was the property of claimants, and that the High Court’s justification for audi was therefore premised on an incorrect foundation. That, in any event, Skorpion failed to prove that it had a good reason for the late submission of the claim and that RFA, in rejecting the claims, breached Art 18 of the Constitution.

Appeal allowed, and judgment and order of High Court set aside and both claims dismissed, with costs, a quo and in the appeal. Road Fund Administration v Skorpion Mining Company (Pty) Ltd (SA 38 - 2016) [2018] NASC (13 July 2018)

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Appeal – condonation and reinstatement: This is an appeal against the granting of a final winding-up order in relation to the Small and Medium Enterprise Bank Limited

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granted by the High Court on 29 November 2017. Reasons were provided on 4 December 2017.

The appellants are two minority shareholders and opposed the winding-up application brought by the Bank of Namibia (BoN) on the basis of non-compliance with section 351 of the Companies Act 2004 (the Act) and provisions of the Banking Institutions Act 2 of 1998 (BIA).

Condonation and reinstatement of appeal - Appellants applied for condonation and the reinstatement of the lapsed appeal as required by rule 17(1) of the Supreme Court Rule for the late filing of their heads of argument. In opposition to this application, respondent claimed that the record was also lodged out of time. Appellants lodged the record on 2 March 2018, more than 3 months after the order was handed down on 29 November 2017 but within the required period if calculated from the date when the reasons were provided, namely 4 December 2017. Rule 8(2)(b) requires a record to be filed within three months of the date of judgment or order appealed against.

In relation to the record, the court found that the matter of Wirtz v Orford relied on by respondent in arguing the three month period ran from the date of the order is distinguishable and the rules of court have since been amended to require appellants to specify grounds of appeal in a notice of appeal (which was not the case at the time of the Wirtz judgment). This court found that the judgment appealed against was provided on 4 December 2017 for purposes of rule 8(2)(b). There was thus no need for application for condonation and reinstatement for the filing of the record.

Appellants argued that the late filing of their heads of argument was due to an erroneous belief by their legal practitioner that the date of hearing of their appeal was 9 November 2018 and not the actual date of 9 October 2018; hence their application for condonation for non-compliance with the rule and for reinstatement of the appeal in terms of rule 17(2).

In applying Rally for Democracy and Progress v Electoral Commission of Namibia, the court found that this explanation is not unreasonable, but this explanation only satisfies one leg of the two pronged enquiry. The court held that appellants need to satisfy the court that there are reasonable prospects of success in the merits of the appeal for condonation and reinstatement to be granted.

On the merits, appellants’ argument focussed on a constitutional argument and procedural points of non-compliance with statutory provisions.

Constitutional argument - in support of their argument, appellants cited articles 95(j) and 98 of the Constitution. Appellants contended that, by virtue of the SME Bank’s objective to serve small and medium enterprises which are under served by the existing commercial banking sector and to uplift previously marginalised and disadvantaged communities, it is of necessity for the statutory provisions in the winding-up process of the SME Bank to be interpreted in light of Arts 95(j) and 98 of the Constitution.

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Appellants further argued that, even though these principles of State policy are not legally enforceable by virtue of Art 101, they should inform the statutory interpretation of the provisions raised in the procedural attacks upon the exercise of BoN’s powers under the BIA and that a winding-up application should only have been a last resort and that BoN was obliged to exhaust less far reaching remedies before doing so in view of the principles of State policy which enjoined government to pursue policies which raise the standard of living and in pursuit of economic growth and prosperity, as striven for by SME Bank.

Held; the Constitution and the values enshrined in it form the starting point in interpreting statutory provisions. An interpretation of a provision consistent with advancing and giving effect to the values enshrined in the Constitution is to be preferred where a statute is reasonably capable of such interpretation.

Held that; although Art 101 provides that, regard is to be had to the principles of state policy as cited by the appellants in the interpretation of laws, the provisions contained in BIA and the Act are not based upon the principles expressed in Arts 95(j) or 98. Those provisions accordingly do not apply.

It is held that; the BIA vests extensive supervisory and regulatory powers in BoN, including a wide range of powers directed at remedial action as well as the power to apply for the winding-up of any banking institution; and the Act provides for the incorporation, management and liquidation of companies.

It is further held that; BoN has a statutory duty to perform its supervisory functions and exercise its wide ranging powers in respect of banks in order to fulfil its important objective of maintaining a sound monetary, credit and financial system in Namibia and sustain the liquidity, solvency and functioning of that system. It does so in order to further another of its statutory objectives, namely the maintenance of monetary stability. A foundational principle of the Constitution embodied in Art 1(1) is that the Namibian State is founded upon the rule of law. This requires that BoN performs the statutory duties vested in it.

Abuse of proceedings – appellants maintained that the winding-up of the SME Bank should have been the measure of last resort after other remedial measures open to Bon had been exhausted and there was short service.

The court held that; this argument might have carried some weight if appellants had made out a case that the winding-up application constituted an abuse. Respondent, on its papers showed it was preceded by a series of steps, spanning several months. At each step appellants failed to provide satisfactory responses which led to BoN’s winding-up application.

The court further held that, although the short service and notice of the application upon appellants would at first blush seem oppressive, the court was mindful of the fact that BoN was concerned about a run on SME Bank by depositors who were already calling

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up their deposits. Hence the matter being brought in the court a quo as an urgent application.

It further held that; the court a quo was correct to find that the SME Bank was insolvent and that it was just and equitable for it to be wound-up. The BoN’s winding-up application did not constitute abuse of process.Non-compliance with Section 351(4) of the Act – appellants argued that s 351(4), a peremptory provision of the Act requiring lodging of an application of winding-up first with the Master of the High Court before it is presented to the court, had not been complied with – which according to appellants results in the application being a nullity and invalid; and that the provisional order should have been discharged even when a Master’s certificate was issued on 4 July 2017 stating that the application was lodged. Reference to Wallis JA in EB Steam Company (Pty) Ltd v Eskom Holdings Soc Ltd where it was found that ‘that the requirements of lodging a copy of the application (and providing security) are peremptory’.

The issue to be determined in this instance was whether a less than perfect compliance results in the invalidity of the application (as is the case in this instance)?

It is held that; the consequence of strict non-compliance would need to be determined with reference to the scope and object of the provision in question – Torbitt v International University of Management.

Held that; the purpose of section 351(4) is to alert the Master to the application and provide that office with the opportunity to file a report to court upon it. Respondent had fulfilled this underlying purpose.

It is held that; the court a quo cannot be faulted for finding substantial compliance with section 351(4) and confirming the rule because a copy of a signed notice of motion and founding affidavit had been lodged when the application was presented to court. The annexures and every affidavit confirming facts stated in the founding affidavit were not lodged but were served a day later and a day before the application was first called in court. The Master was satisfied that this amounted to lodging the application for the purpose of s 351(4) and certified this and made a report to the court on the strength of the incomplete papers.

It is further held that; if the court a quo was dissatisfied with respondent’s compliance with section 351(4), the consequence would be to postpone or refuse the application until compliance had occurred had the Master complained that the annexures and confirmatory affidavits had not been lodged.

Non-compliance with section 58(5) of BIA – it is held that; any concerns the appellants have with appointment of provisional liquidators is not relevant in determining whether or not a final order of winding-up should have been granted. The court a quo was correct in finding that if the appellants were aggrieved with those appointments, it was open to them to take the appointments on review.

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The court thus holds that; there is no merit in these grounds of appeal. Appellants’ appeal enjoys no prospects of success and that condonation and reinstatement should not be granted.

It is further held that; because no issues of substance concerning the basis for winding-up were raised by appellants, and that their procedural points were without merit and merely served to delay the winding-up process of the SME Bank, costs in this court should likewise be borne by the appellants.

Condonation and reinstatement refused and the matter is struck from the roll with costs. Metropolitan Bank of Zimbabwe Ltd and Another v Bank of Namibia (SA77-2017) [2018] NASC (23 October 2018)

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Appeal – frivolous and vexatious: In the High Court, the first respondent brought an application under section 16 of the Supreme Court Act seeking an order directing the Supreme Court to review its own decision. The presiding Judge a quo amongst others took the view that such an application was fatal for lack of compliance with section 12 of the Supreme Court Act; that the High Court was not competent to direct the Supreme Court how to exercise the s 16 review jurisdiction; that the matter was res judicata; and further dismissed an application for his recusal on the basis that it had no merit.

First respondent appealed against the order of the High Court on the ground that the presiding judge ought to have recused himself because he was junior to the Chief Justice who was cited as a first respondent in the proceedings in the High Court. The second respondent (Permanent Secretary of Judiciary) in that appeal moved the Supreme Court in terms of rule 6(1) of the Rules of that court to summarily dismiss the appeal in terms of s 14(7)(a) of the Supreme Court Act on the grounds that it was frivolous or vexatious or otherwise without any prospect of success.

The first respondent objected to that application on the ground that it was brought outside 21 days as required by rule 16 (1)

While upholding the first respondent’s objection,

Held that it is competent for the Supreme Court to invoke s 14(7)(a) mero motu.

Held that –there is no fine dividing line between the jurisdictional criteria of s 14(7)(a) and that the common denominator between them is that objectively viewed such an appeal so unmeritorious that no court can grant a remedy for it under the law.

Held further that – an appeal without any prospect of success is an exercise in futility and therefore frivolous and since its only purpose is to annoy it is vexatious.

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Held that – only judges appointed in terms of Articles 79 and 80 of the Constitution are competent to preside in a matter involving the Chief Justice even if in terms of hierarchy subordinate to the Chief Justice; that an appeal seeking to achieve a contrary result is caught by s 14(7)(a);

Held further that – the section 16 review powers of the Supreme Court are exercisable only by the Supreme Court and that the High Court is not competent to direct it to do so; and that an appeal seeking a contrary result is also caught by s 14(7)(a)

Held – that the issue which the first respondent seeks to ventilate on appeal is res judicata and therefore not justiciable and similarly caught by s 14(7)(a)

Held that – since the relief sought by the first appellant is not known to law the appeal is non-justiciable and therefore liable to be dismissed, with costs. The Permanent Secretary of Judiciary v Somaeb (SA 14 - 2018) [2018] NASC (3 July 2018)

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Appeal – leave: Appeal as of right or with leave against an order of the Labour Court striking the appellant’s application for leave to appeal from the roll.

Section 14(1) of the Supreme Court Act 15 of 1990 provides that a party has a right of appeal to the Supreme Court from any judgment or order of the High Court. Section 14(2)(b) provides that legislation may limit, grant or exclude such right or which prescribes the proceedings which have to be followed in the exercise of that right.Section 18(2)(b) of the High Court Act 16 of 1990 provides that an appeal from any judgment or order of the High Court in civil proceedings shall lie, where the High Court sat as a court of appeal, if leave is granted by the court, which has given the judgment or order.

Leave to appeal was not granted by the Labour Court, neither was leave refused. The application was struck from the roll. Striking the application from the roll was an order of the Labour Court given as per appeal court and the appealability of such order is qualified by the provisions of s 14(1) of the Supreme Court Act read together with s 18(2)(b) of the High Court Act as well as s 14(2)(b) of the Supreme Court Act.

Leave to appeal was not sought from the Labour Court against the order striking the application for leave to appeal from the roll. Leave should have been sought against that order. If leave had been sought and was refused, the appellant would have been entitled to petition the Chief Justice in terms of s 14(6) of the Supreme Court Act.

Appeal not properly before this court and struck from the roll. Namdeb Diamond Corporation (Pty) Ltd v Coetzee (SA 8-2017) [2018] NASC (1 August 2018)

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Appeal – onus of proof: The onus in civil proceedings rests on the plaintiff to prove its case on a preponderance of probabilities.

In order to determine whether a plaintiff has discharged this onus, the trial court, where there are two irreconcilable versions, must make findings on the credibility of factual witnesses, their reliability and the probabilities. The trial court must embark upon an exercise to test the plaintiff’s allegations against the general probabilities as well as to test the defendant’s allegations against the general probabilities in order to determine if the balance of probabilities favour the plaintiff’s case.

The court a quo made no credibility findings neither did it consider the probabilities. The court a quo could only have accepted the evidence on behalf of the plaintiff if it had rejected the evidence on behalf of the defendant. The court a quo never rejected the evidence presented on behalf of the defendant.

It is an elementary rule for the production of opinion evidence that an expert witness must lay the basis for the methodology used and processes undertaken in reaching an opinion.

All evidence must be taken into account in considering whether plaintiff has discharged the onus, including the undisputed testimonies of factual and expert witnesses on behalf of the defendant. The court a quo failed to do so.

There was failure by plaintiff to call witnesses who could easily have refuted the evidence by the defence’s witnesses. In such an instance, a court may draw a negative inference that the failure to call such witnesses was done because the witnesses would not have supported the plaintiff’s case. The failure to call a witness may thus strengthen the case of the opposite side on an issue in dispute.

A seller’s liability for latent defects is imposed by law and is not dependent upon any contractual consensus between the parties. It is an implied warranty against latent defects in contracts of sale. The implied warranty cannot assist the buyer where no latent defect was proved as in the present instance.

Held on appeal that plaintiff failed to prove its claims on a preponderance of probabilities.

The appeal succeeds and the orders of the court a quo are set aside and the claims are dismissed with costs. Burgers Equipment Spares Okahandja CC v A Nepolo t-a Double Power Tech. Service (SA 9-2015) [2018] NASC (17 October 2018)

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Appeal – recusal application: This is an appeal brought by Henle against the judgment of the court a quo dismissing a recusal application with costs.

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The respondent instituted an action against the appellant in the court a quo claiming the following; (1) payment of R641 595 and US$142 988 for the export of 9 elephants to Mexico; and (2) payment of US$340 624 for an aborted attempt to export game to Saudi Arabia; (3) mora interest and costs on the amounts. Appellant also had a conditional counterclaim premised on the court a quo upholding respondent’s second claim. Respondent’s second claim was withdrawn at the commencement of the trial and as a consequence appellant’s counterclaim fell away. Appellant admitted to the first claim, but pleaded set off against a payment allegedly owed to him flowing from a transaction involving buffaloes. After the close of pleadings and when the trial date was set, appellant filed a tender in terms of rule 64 of the High Court rules. He tendered the amounts of respondent’s first claim, ‘excluding interest and costs’. Respondent closed its case and proceeded to seek an order for costs and interest (without leading any evidence). Appellant at this point made an application for absolution from the instance with costs. The court a quo dismissed this application with costs. The matter was again set down for continuation of trial to start on 8 May 2017. On 19 April 2017, appellant brought an application for the judge a quo to recuse himself because according to appellant, the judge had prejudged the issue of the interest payable in the absolution judgment without affording appellant the opportunity to present evidence as to why he should not be ordered to pay mora interest. This recusal application was dismissed with costs. Appellant noted an appeal against the recusal application.

This notice was filed in this court and the court a quo as required by rule 7 of this court (the previous rule 5 of this court). Respondent insisted that the matter continue in the court a quo because appellant’s filing of the Notice of Appeal was invalid as appellant did not obtain leave to appeal from the court a quo. An application to stay the proceedings was brought by appellant in the court a quo which the court a quo granted with a cost order against the respondent. Respondent counter-appeals this cost order with leave of the court.Arguments on appeal revolved around the issues of leave to appeal, counter-appeal, recusal and the question of costs.

Leave to appeal – the issue between the parties was not whether the judgment dismissing the recusal application was appealable, but whether leave to appeal was required or whether appellant could appeal as of right. The test to decide whether leave to appeal must be obtained is contained in Di Savino and other supporting decisions and requires a two-step consideration of the case in question. The first step is to determine whether a judgment or order is appealable. As it was common cause that the judgment dismissing the recusal application was appealable, the first step needed no further consideration. The second step is to determine whether the judgment or order that is sought to be appealed against is interlocutory or final. If interlocutory, leave needs to be obtained, and, if final an appeal lies as of right. The general definition of ‘interlocutory’ contained in South Cape Corporation (Pty) Ltd v Engineering Managament Services (Pty) Ltd is still relevant in our jurisdiction. Under this premise, the refusal of the recusal application is an interlocutory order. It did not dispose of any

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portion of the relief sought by appellant, it merely confirmed the competency of the judge a quo to proceed with the matter.

Held that, the order refusing a recusal application is interlocutory and appellant had to obtain leave to appeal from the court a quo, consequentially, the appeal stands to be struck from the roll with costs.

Counter-appeal – court a quo had to consider whether a valid appeal was noted in the absence of obtaining leave to appeal. This was also not the only consideration relevant to the stay application. Other considerations included the effect of a piecemeal adjudication matter, the prejudice to the respective parties and the prospects of success on appeal.

Held that, the considerations relevant to a stay including the fact that there were no prospects of success on appeal did not justify the stay order.

Held that, the stay order and the stay application should have been dismissed with costs. Counter appeal upheld. Henle t-a Namib Game Services v Wildlife Assignment International (SA 41 -2017, 67 - 2017) [2018] NASC (27 March 2018)

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Rule 108: The issue for determination in the court a quo as well as on appeal was whether the provisions of rule 108 of the High Court rules apply in an application for an order declaring, immovable property belonging to a judgment debtor specially executable.

The court a quo answered the question in the affirmative. Rule 108 provides that the registrar may not issue a writ of execution against immovable property unless a nulla bona return has been made and where a court has on application declared the immovable property specially executable.

Where the immovable property is the primary home of the judgment debtor, a court may not declare such immovable property executable unless the execution debtor had personally been informed of an application intended to be made to have the immovable property declared executable and the execution debtor had been informed to provide reasons to court why such an order should not be made.

A court having regard to all the relevant circumstances including less drastic measures than a sale in execution of the primary home, may order the immovable property specially executable or may decline to do so.

In terms of the common law movables first have to be exhausted before recourse could be had to the land except when the plaintiff has a hypothec or a pledge. Thus where immovable property has been specially bonded, the judgment creditor has a substantial

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limited real right to such property and is entitled to first execute against the immovable property and only to the extent of any shortfall afterwards against the movables.

Rule 108(1) of the High Court rules by providing in peremptory terms execution against movables first reverses the sequence of execution and is in conflict with the common law in so far as it relates to the right to execute against hypothecated immovable properties.

In the event of a conflict between the common law on the one hand and a rule of court on the other hand, the presumption is strongly against the common law being cut down by the rule. A rule of court is not presumed to take away prior existing rights unless it appears expressly from the legislation. Where a rule of court is not a rule for the conduct of proceedings but a substantive rule of law it is ultra vires and is of no legal force or effect.

It is accepted that there must be judicial oversight where a claim is in respect of the foreclosure of a bond in terms of the provisions of rule 15(3). Where immovable property is the primary home of a judgment debtor a court must consider viable alternatives, ie less drastic measures than a sale in execution.

Formalism in the application of rules of court is discouraged. Rules of court are not an end in themselves to be observed for their own sake but are there to provide the inexpensive and expeditious completion of litigation before the courts; to facilitate the real issues in dispute justly and speedily.

A creditor may include a prayer in a summons, for a writ of execution against property specially hypothecated, in the event of the matter going by default. This would obviate the need to prepare another application at additional cost and waste of time.

A court is not precluded from exercising judicial oversight already at the stage where a creditor approaches the court for default judgment in respect of the capital amount outstanding with an additional prayer for an order to have the immovable property declared specially executable.

In the absence of any abuse of process or bad faith a judgment creditor will normally be entitled to enforce a judgment by executing against bonded immovable property.

The first respondent in this appeal had been informed personally of the intention of the appellant to apply to court for an order to declare the relevant immovable property specially executable. First respondent in the court a quo made submissions why the property should not be ordered specially executable. A nulla bona return was rendered in respect of the movable property of the first respondent. The respondent never settled the debt as promised. The first respondent never made an allegation that the appellant abused court process or that appellant acted in bad faith.

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The court a quo should have declared the immovable property specially executable since there was no viable alternative or less drastic measure other than a sale in execution.

The appeal succeeds and the order of the court a quo striking the matter from the roll is set aside and substituted with one declaring the immovable property of the first respondent specially executable. Standard Bank Namibia Limited v Shipila (SA 69-2015) [2018] NASC (6 July 2018)

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Special plea: This is an appeal related to the dismissal of a special plea by the Government of the Republic of Namibia (appellant), in respect of the respondent’s, (Fillipus Junias) claim for malicious prosecution.

Respondent was arrested on 27 July 2010 by Sgt Amatundu of the Namibian Police in connection with the rape and murder of the late Ms Magdalena Stoffels. He remained in custody for a period of 191 days when the charges against him were withdrawn. On 8 May 2013, he instituted the present action against the appellant for damages for wrongful arrest (claim 1), unlawful detention (claim 2) and malicious prosecution (claim 3). Appellant raised special pleas in the court a quo, raising non-compliance with s 39 of the Police Act against each of the three claims. Respondent had instituted the claims more than 12 months after the cause of action had arisen as is required by s 39. The court a quo upheld the special pleas in respect of claims 1 and 2, but dismissed the special plea against claim 3. The court reasoned that a claim of malicious prosecution is in a different category to claims 1 and 2. According to the court a quo prosecution is malicious or otherwise at the instance of the Prosecutor-General and not the Namibian Police and that compliance with s 39 would not be required

The question was raised as to whether leave to appeal is required in an appeal against the dismissal of a special plea akin to prescription in the form of non-compliance with s 39 of the Police Act 1990.

Leave to appeal – appellant referring to authorities decided at a time when the s 20(2)(b) of the then applicable Supreme Court Act, 1959 argued that the special plea is a self-contained defence which is conclusive of the issue and is thus not interlocutory as the court a quo could not revisit its decision on that special plea.

These authorities were no longer applicable following a new system emerging in South Africa with the introduction of Act 105 of 1982 which diminished the distinction between simple interlocutory orders and other orders.

Di Savino was applied. It had found that a wide meaning is to be accorded to interlocutory orders and thus includes all orders upon matters ‘incidental to the main dispute, preparatory to, or during the progress of the litigation’ – and not merely, what have been described as “simple” or “pure” interlocutory orders. In developing Namibia’s

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own jurisprudence, this court in Di Savino interpreted section 18(3) of the High Court Act, 1990 to the effect that interlocutory orders are not appealable except with leave.

Held that, a wide and general meaning of interlocutory orders would refer to all orders incidental to the main dispute, preparatory to or during the progress of litigation and include those which have a final and definitive effect upon the main action but which do not finally dispose of the main action.

Held that, interlocutory orders which are appealable require leave to appeal.

It is further held that, the order of the court a quo, although appealable, was interlocutory in nature. This means that leave was required and appellant failed to acquire that. In the circumstance, the appeal stands to the struck from the roll. Government of the Republic of Namibia v Junias (SA 50 - 2016) [2018] NASC (6 April 2018); Municipal Council of Windhoek v Pioneerspark Dam Investment CC (SA 78-2016) [2018] NASC (22 June 2018)

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Urgent application – interim interdict: Appellant appealed against the dismissal by the court a quo of an urgent spoliation application seeking an order to restore its possession of three building sites as well as a separate order interdicting the first and second respondents from commencing or continuing with any construction work on those sites pending an action or arbitration to be instituted against the first respondent for specific performance of building contracts entered into between the appellant and first respondent. The issues to be determined are whether the appellant have established an entitlement to the spoliation order and whether it should have been granted the interim interdict sought.

Spoliation – in spoliation proceedings, an applicant must on a balance of probabilities prove peaceful and undisturbed possession of the property in question and an unlawful deprivation of that possession by the respondents. Appellant contended that, although it had suspended work on the sites in April 2015 because of first respondent’s inability to pay, appellant retained a presence on the site and intended to resume work as soon as first respondent was able to make payment of outstanding amounts. The nature of the possession claimed by appellant is that of a builder’s lien. Employees of second respondent entered the sites on or around 7 October 2016 to work on those building sites which the appellant was contracted to complete. First respondent failed to explain how second respondent lawfully took possession of the sites when appellant was still contractually in possession of sites by virtue of the handover of possession and had not terminated its possession.

Applying the principles outlined by Innes, CJ in Scholtz v Faifer 1910 TS 243, it would follow on all the facts before court that the appellant was disturbed by the first and second respondents in the exercise of its possession of the sites. Once the sites were handed over to the appellant and it continued with the building works, it was

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unquestionably in possession of the sites. The works were thus under the appellant’s control and the first respondent could not remove it from the site as long as it performed and remained on site and tendered to perform under the contracts. After the work was suspended by reason of the first respondent’s inability to pay for works duly performed, the appellant remained on site with the view to resume the works as soon as the first respondent was once again able to meet its obligations. This was not a case, as referred to by Innes, CJ, where a contractor was warned that if it did not continue the works, another contractor would be appointed so as to put the appellant on its guard to assert more control over the site. On the contrary, the appellant tendered to continue once the admitted amount owing to it had been paid. And it stayed on site, remaining ready to continue upon payment. Despite seeking to hold the first respondent liable for the cost of security guards, their presence was under the appellant’s control and assisted it in exercising sufficient control to exercise its lien and certainly to remain in possession of the sites. It was understandable that it sought to hold the first respondent liable for payment of the costs of the security guards, given the reason for the suspension was first respondent’s inability to pay due amounts – and for future work. Importantly the appellant did not terminate its possession. Nor is this alleged by the first respondent.

Held, appellant sufficiently established control and possession as well subsequent dispossession for the purposes of securing spoliation relief.

Interim interdict – the well-established requisites for an interim relief were referred to: a party must establish a prima facie right, a well-grounded apprehension of harm if the interim relief were not to be granted, that the balance of convenience favours granting interim relief and finally that the appellant did not have an adequate alternative remedy. These requisites are not considered in isolation and interact with each other. In this instance, appellant failed to establish a reasonable apprehension of harm if it were granted a spoliation order. Its possession would be restored and the harm sought to be interdicted would not arise. This requisite thus not established.

Held – appeal against the dismissal of the application for interim interdict fails. New Era Investment (pty) Ltd v Ferusa Capital Financing Partners CC (SA 87-2016) [2018] NASC (6 July 2018)

COMPANY LAW

Close corporation: This appeal is concerned with the interpretation to be given to a prohibition contained in s 13(1)(b) of the Architects and Quantity Surveyors Act, 13 of 1979 (the Act). This section prohibits any person other than a natural person from performing architectural work for gain. At issue is whether an agreement between a non-natural person in the form of a close corporation to provide architectural services to a client would be unenforceable as a result of the prohibition.

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The appellant is a close corporation called Claud Bosch Architects CC, and plaintiff in the court below. Its sole member, Claud Bosch, was at all material times a duly qualified and registered architect as contemplated in the Act. The respondent (defendant) was a client of the plaintiff who engaged it to provide architectural services in respect of a project entailing the design, supervision of construction and development of a restaurant, hotel and parking area complex in Windhoek. In its action, the plaintiff claimed a sum from the defendant as outstanding in terms of the agreement. In the alternative, plaintiff claimed that sum by way of enrichment in the event the court a quo found that the agreement between the parties is invalid and/or unenforceable. The defendant excepted to these claims. The principle laid out in Van Straaten v Namibia Financial Institutions Supervisory Authority and Another finds application in the determination of exceptions.

In determining the exception, the High Court followed the decision of the High Court in the Nkandi matter, were Masuku AJ (as he then was) held that the maxim ex turpi cause non oritur actio admits no exception. That court held that with reference to the prohibition contained in s 13 of the Act (where an exception was also taken against a claim for architectural services by a non-natural person), any contract entered into in violation of s 13(1)(b) would render the ensuing contract unlawful and unenforceable. Masuku AJ, further held that the Act prohibited the carrying out of architectural work for gain by entities other than natural persons, unless an exemption was granted. The court in the Nkandi matter ultimately found that work carried out by the plaintiff was in violation of the prohibition contained in s 13 and the agreement was unenforceable.

The plaintiff argued that the decision in Nkandi was incorrect. It argued that it had not contravened the provisions of the Act by not itself having performed the work, because s 13 meant that reserved work itself must be performed by a registered architect (a natural person) and that it was pleaded that the work was performed by a duly registered architect.

The defendant on the other hand argued that the prohibition contained in s 13 follows upon the requirement contained in s 11 which provides that only natural persons can be registered as architects. It argued that the decision in Nkandi was correct and applied to this matter.

The principles of interpretation of statutes and texts recently summarised in Namibia Association of Medical Aid Funds and Others v Namibia Competition Commission and Another applied. The context in which a document is drafted and its purpose are relevant to interpreting the meaning of words used. The primary purpose of the Act in this case is to provide for registration of architects (and quantity surveyors) with the Council and to require that only registered architects can perform the kind of work reserved for architects under s 7(3)(b) of the Act.

Questions arising are whether the legislature intended that an agreement to provide architectural services by a non-natural person is prohibited by s 13 of the Act by reason

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of the prohibition contained in s 13(1)(b) and further whether the legislature intends that they are void and unenforceable.

Held, the legislative purpose of s 13, determined in this context, is to expressly prohibit an unregistered person from performing reserved work for gain in s 13(1)(a). Under s 13(1)(b) a non-natural person is prohibited from performing reserved work and holding itself out to do so. This latter prohibition is to be read with s 11 which expressly contemplates that only natural persons can register as architects under the Act.

Held, applying the approach in Standard Bank v Van Rhyn, it could not have been the intention of the legislature where a non-natural person has agreed to provide architectural services this would result in the further penalty of invalidity of the agreement, where the work is performed by a registered architect, even if this were to conceivably fall foul of s 13(1)(b). A greater inconvenience and impropriety would follow from doing so, resulting in the defendant escaping its liability to pay for work duly performed by a registered architect.

Held, the court in Nkandi erred by failing to take into account the approach in Standard Bank v Estate Van Rhyn which has been consistently followed in determining the effects of acts done in conflict with statutory prohibitions. Further, the decisions in Cool Ideas 1186 CC v Hubbard and another relied upon in Nkandi, are distinguishable.

Held, the court a quo accordingly erred in following the Nkandi matter. The exception against the main claim should not have been upheld and the appeal succeeds. Claud Bosch Architects v Auas Business Enterprises 123 (SA 41 - 2016) [2018] NASC (6 February 2018)

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Trade-marks: Around 1998, the first respondent registered the name ‘Rentokil’ as a defensive name for his business after making enquiries with the Registrar of Companies to establish whether there was a business or company registered under that name. As per the Companies Register, the first respondent established that no company was registered under that name. He however, made a further search in the telephone directory wherein he discovered a telephone number with a business registered under ‘Rent-O-Kill’. The first respondent contacted an unknown person whose telephone number appeared in the directory and established that the individual had ceased to operate under Rent-O-Kill name and had no intentions of using the name in future. Hence, the first respondent commenced his business under the name Rentokil to provide pest control services amongst other services in Namibia.

In 2001, the appellant, a company registered in South Africa sent a letter of demand through its lawyers to the first respondent demanding the latter to stop using the trade name Rentokil and alleging that such use was without consent or authority. In March 2003, the appellant applied for registration of the trade mark ‘Rentokil’ but it was only registered in May 2010. More than a decade after sending the first letter, the appellant

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wrote to the first respondent in January 2014 demanding that the latter stop using the name and remove same from its official documents and threatening legal action.

The first respondent then made an application for expungement of the trade mark of the appellant from the Trade marks Register in terms of section 16 of the Trade Marks in South West Africa Act 48 of 1973 and because of the alleged no-use for more than 5 years. The appellant opposed this application and brought a counter-application claiming that the first respondent was passing off their business by use of the trade name Rentokil.

The court a quo found that evidence on which the appellant intended to rely constituted inadmissible hearsay statements. It also found that first respondent commenced with the use of the name Rentokil in connection with his business at a time when appellant conducted no business in Namibia and had no reputation in Namibia. The court a quo also held that the case for non-use had been established. An order was thus made to expunge the trade mark of the appellant from the Trade marks Register. The court a quo also found that the first respondent established that his use of the name Rentokil predated that of appellant in Namibia and did not affect the reputation of appellant in this country. Accordingly, the court a quo granted the application for expungement and dismissed the counter-application with costs.

Dissatisfied with this judgment, the appellant noted an appeal in this court against the whole judgment of the court a quo. On appeal, the appellant contended that, it had developed a reputation and goodwill through extensive promotion and use of its Rentokil name and trade mark in Namibia. The first respondent argued that the Namibian market for pest control services is a small one in which he has been active since 1998 and that he was the only entity in the market that used the name Rentokil.

Counsel for the appellant submitted that the first respondent unlawfully built up its reputation by use of the Rentokil trade mark as this trade mark already had a reputation in this country belonging to the appellant. Accordingly, he contended that the conduct of first respondent is ‘contra bonos mores’ and hence the reputation he might have had is not lawful and deserving of protection.On the contrary, counsel for first respondent argued that the first respondent had lawfully built up a reputation through the use of this mark and became the common law proprietor of the mark.

This court found that the market for pest control in this country is a small one and that as at 17 March 2003, the first respondent had dealings with the biggest abattoir in Namibia, the Government, Namibian Scientific Society, and the hospitality market. He had already commenced business under this name and for a number of years already advertised in the Namibian telephone directory. Therefore the first respondent was thus at the relevant time the only player in this segment of the market under this mark in Namibia and had been advertising and working in this market. This court further found that the first respondent adduced sufficient evidence to establish a reputation under the mark ‘Rentokil’ in Namibia. Furthermore, that a

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registration of the mark ‘Rentokil’ by another would be likely to cause deception and confusion as to the proprietor of the mark. The court found that the appellant had no physical presence in Namibia. It took no steps up to 2001 to prevent the first respondent from doing business under this name. They did nothing for more than a decade until 2014.

The court held that hearsay evidence which does not meet the established exception to the hearsay rule is inadmissible and the reliability or relevance thereof makes no difference to this rule.

This court further held that there was no basis for accepting that the appellant’s international businesses could establish or contribute to the establishment of a reputation for the trade mark in Namibia by 1998.

Further held, that the appellant failed to establish that it has any reputation in Namibia which the first respondent unlawfully adopted.

Held that inaction by appellant from the application for registration of their trade mark in March 2003 up to forwarding the letter of June 2014 to first respondent is indicative of the fact that it had no reputation in Namibia worthy of protection.

Held that the first respondent is entitled to the main relief sought in his application to expunge the appellant’s trade mark from the Trade mark Register.

Held that the respondent is the common law proprietor of the trade mark Rentokil in Namibia and the appeal is accordingly dismissed with costs. Rentokil Initial 1927 PLC v Michael Demtschuk t-a Rentokil and 4 Others (SA 88-2016) [2018] NASC (10 October 2018)

COMPETITION LAW

Trade restrictions: The first appellant is the South African Poultry Association (SAPA). The other appellants are South African concerns engaged in the poultry industry and are members of SAPA. They approached the court a quo to set aside a trade measure, embodied in Government Notice No 81, entitled ‘Restrictions on importation of poultry products into Namibia’s Import and Export Control Act, 1994’ published in Government Gazette No 5167, on 5 April 2013. This measure restricts the importation of poultry products into Namibia and was issued by the Minister of Trade and Industry. This measure is aimed at protecting Namibia’s fledgling poultry industry. The appellants applied to the court a quo to declare that the measure ultra vires and unlawful by reason of the failure to comply with or consider international treaty obligations. They also challenged the measure on procedural and substantive grounds and contend that the measure amounts to an illegality.

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The application was opposed by the Minister and the Government of Namibia as well as by Namibia Poultry Industries (Pty) Ltd (NPI), the beneficiary of the measure. The respondents raised preliminary points against the appellants’ application. These included attacking the appellants’ standing and contending that the appellants had unduly delayed in bringing the review application. The court a quo decided to hear argument on the preliminary issue of delay without hearing argument on the merits. It upheld the delay point and dismissed the application with costs.

The appellants appealed against this judgment and invited this court to deal with the merits if this court were to find that the court a quo misdirected itself on the delay question.

The question of delay - The period of the delay in question spanned from the date of publishing of the Government Gazette on 5 April 2013, to 17 April 2014 when the appellants served their review. The appellants attended a consultative meeting arranged by the Permanent Secretary of the Ministry of Trade on 17 January 2013 regarding NPI’s infant industry protection (IIP) application under the Southern African Customs Union (SACU). A notice to restrict import quantities under the Act was instead issued on 5 April 2013. SAPA contended that the process was procedurally unfair and the granting violated both the protocol of the SADC Agreement and the SACU treaty.

Diplomatic intervention was sought through the South African Department of Trade and Industry on the issue in October 2013. SAPA was informed by Department officials that bilateral discussions would take place in early November 2013 between Namibia and South Africa. The quantitative measures were not discussed at that meeting, but a task team was appointed during the talks to investigate the objections. SAPA was advised that this investigation would take at least until the end of March 2014 at the earliest. The appellants then took advice and prepared the application from late November 2013.

The appellants argued that the preparatory steps leading up to the instituting the review did not amount to an unreasonable delay. It was not inordinate or egregious and contended that the court a quo misdirected itself in the exercise of its discretion by failing to condone the delay and consider the merits of the application. The appellants contended that the principle of legality and the interests of justice demanded that the court below should have also taken into account the merits of the application. They argued that an ultra vires notice amounted to a trade measure having a continuing unlawful effect and placed Namibia in breach of its international law obligations.

The government respondents and NPI argued that the court a quo’s decision was correct to finding that there was unreasonable delay and declining to condone it. They submitted the court a quo could not be faulted in its application of accepted principles to the facts of the case. They contended that unexplained delay of 6 months from the date of publishing the notice and engaging the South African Department in October 2013 was fatal for the appellants and rendered the delay unreasonable. They further submitted that the appellants did not demonstrate a capricious exercise of the court a quo’s discretion in declining to condone the delay. They also argued that the appellants’

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review was without any reasonable prospects of success, and referred to the prejudice to the respondents. It was contended that a review of an international trade measure in a domestic court under international trade treaties were not justiciable in national courts and meant that there were no prospects of success. They submitted that international treaties which contradict national legislation would not, to that extent, form part of Namibian law under the Constitution (as provided for by Art 144). The respondents submitted that the impugned measure was in any event authorised by s 2 of the Act and was not inconsistent with the treaty prohibition contended for by the appellants.

Legal principles governing delay – Two enquiries are to be determined: the first is an objective one and is whether the delay was on the facts unreasonable. The second is whether the delay should be condoned. As stated in Keya v Chief of the Defence Force and others, the first enquiry is a factual one and does not involve the exercise of a discretion. It entails a factual finding and a value judgment based upon those facts. The second enquiry involves the exercise of a discretion. There is a narrow ambit of an appeal, against the exercise of a discretion. This court would only interfere with the exercise of that discretion when it is found not to have been exercised judicially by the court a quo.

Was the delay unreasonable – Despite the assertion by SAPA concerning steps taken (that it had made ‘best efforts’ to resolve its grievance against the measure ‘by diplomatic means’), there was no explanation forthcoming concerning the six months period following the publication of the notice until the diplomatic approach in October 2013. After receiving draft application papers from counsel in December 2013, the appellants were tardy in finalising their papers and serving them in April 2014.

Held, the court a quo correctly found that SAPA’s contention in reply that it had made ‘best efforts’ to resolve its grievance against the measure ‘by diplomatic means’ during this period was factually unsupported and thus untenable. The unexplained delay rendered the delay unreasonable.

Held, the court a quo did not misdirect itself in its value judgment upon the factual finding made, that the delay was in the circumstances unreasonable.

Exercise of the court’s discretion to refuse condonation – it is well established that where non-compliance with rules is found to be egregious or ‘glaring’, ‘flagrant’ and ‘inexplicable’, this court will not consider the prospects of success in determining a condonation application see Kruger v Transnamib Ltd (Air Namibia) and others. The court a quo did not find that the delay was so egregious that a consideration of the merits was not warranted. The court a quo considered a variety of factors particularly the prejudice to the parties, which the court a quo found to be material for the respondents and far less significant for the appellants. It concluded that condonation should not be granted.

Held, in deciding whether or not to grant condonation after finding that a delay is unreasonable, the criterion to be applied under common law is the interests of justice.

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Factors to be considered include the nature of the impugned decision, the merits of the challenge, prejudice to the respective parties, the extent and cause of the delay and the importance of the issue raised.

Held, public interest is generally served by bringing certainty and finality to administrative action or the exercise of public power of the kind in question.

Held, the merits are however a fundamental factor to be considered by a court in such an enquiry. The failure to do so, as occurred in this appeal, results in the application of a wrong principle in the exercise of the court’s discretion which was not exercised judicially as a consequence. It follows that the court a quo decision on condonation is to be set aside.

Further held that, public interest would be served by the ventilation and determination of the application of Art 144 of the Constitution and the extent, if any, to which international treaties can be enforced in domestic courts.

Held, condonation for the unreasonable delay should have been granted. The matter remitted to the High Court for further case management concerning setting the matter down for argument. South African Poultry Association and 5 Others vs Minister of Trade and Industry and 3 Others (SA 37 – 2016) [2018] NASC (17 January 2018)

CONSTITUTIONAL LAW

Criminal sentences: The appellants in this case were sentenced to long fixed terms of imprisonment of 67 and 64 years for two counts of murder, one count of housebreaking with intent to rob and robbery with aggravating circumstances, and two counts of housebreaking with intent to steal and theft.

At issue in this appeal is the question whether inordinately long fixed terms of imprisonment which could extend beyond the life expectancy of an offender, constitute cruel, inhumane or degrading treatment or punishment in conflict with Art 8 of the Namibian Constitution which entrenches the right to human dignity.

The Attorney-General was invited to intervene in the appeal by virtue of his functions under Art 87 of the Constitution and place evidence before the court concerning the application of the Correctional Services Act, 9 of 2012 (‘the Act’) and make submissions at the appeal hearing. The Attorney-General filed an affidavit in which he contended that while punishment by courts is aimed at deterrence, prevention and rehabilitation, any punishment or term of imprisonment which ‘takes away all hope of release from an offender should be contrary to the values and aspirations of the Namibian Constitution and more specifically the inherent right to dignity afforded to such incarcerated offender’ and maintained that after the abolition of the death penalty, a sentence of life imprisonment is the most severe form of punishment a court can impose on an accused.

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The Act provides for a range of rehabilitaion programmes to address the needs of offenders to contribute to their successful re-intergration into society and mechanisms for the release of offenders.

In terms of s 115 applicable to the appellants, they would only become eligible for consideration of parole after serving two-thirds of their respective terms. In the case of first, second and fourth appellants, this would be after 44 and a half years and in the case of the third appellant after 42 and a half years. In contrast, s 117 read with the regulations, provides that in the case of offenders sentenced to life imprisonment, the most onerous and serious sentence, eligiblity for parole would arise after 25 years. The court stressed that parole is not automatic and that the National Release Board must be satisfied that offenders meet the other requirements for parole as well before release on parole can be recommended.

The realistic hope of release after 25 years if the other requirements for parole are also met means that life imprisonment in Namibia does not infringe an offender’s right to dignity protected under Art 8 as held in S v Tcoeib and accords with the approach in South Africa (in S v Nkosi and S v Siluale en ’n ander), Zimbabwe in Makoni and the European Court for Human Rights (in Vinter and other v UK).

Held, the phenonemon of what academic writers have termed ‘informal life sentences’ where the imposition of inordinately long terms of imprisonment of offenders until they die in prison, erasing all possible hope of ever being released during their life time is ‘alien to a civilised legal system’ and contrary to an offender’s right to human dignity protected under Art 8 of the Constitution.

Held, the absence of a realist hope of release for those sentenced to inordinately long terms of imprisonment would in accordance with the approach of this court in Tcoeib and other precedents offend against the right to human dignity and protection from cruel, inhumane and degrading punishment.

Held, the effective sentences of 67 years in this case mean that first, second and fourth appellants would be eligible for consideration of parole after 44 and a half years and in the case of the 3rd appellant 42 and a half years, given his 64 year sentence.

Held further that, the sentences in this case amount to informal life sentences imposed upon the appellants as they have no realistic prospect of release in the sense of fully engaging in society again – if at all - during their life times. The appellants would only become eligible for consideration for parole at the ages of over 80 years in the case of the first appellant, 69 and a half years in the case of the second appellant, 77 and a half years old for the third appellant and 66 and a half years for the fourth appellant.

It is thus held that, these sentences, by effectively removing from all of the appellants the realistic hope of release in the sense referred to during their life times, amount to cruel, degrading and inhuman or degrading treatement or punishment and infringe their

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right to human dignity enshrined in Art 8. Those sentences were set aside and replaced by sentences of life imprisonment in respect of counts 1 and 2, to be served concurrently with each other and with the further terms of imprisonment imposed on them. Gaingob v The State (SA 7 and 8 - 2008) [2018] NASC (6 February 2018)

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Land: The appellant launched a number of constitutional applications in the court a quo in which its main attack was directed against ss 76 to 80 of the Agricultural (Commercial) Land Reform Act, 6 of 1995 (‘the Act’) which provide for the imposition of land tax. The appellant also challenged the legality of the regulations made under that Act (issued under Government Notice 120 of 18 June 2007) and sought to have them declared inconsistent with Arts 63(2), 8, 10, 12(1)(a), 18 and 22 of the Namibian Constitution and therefore invalid, the rate of tax as well as recent assessments of land tax. A full bench of the High Court found that the land tax imposed under these sections passes constitutional muster and dismissed the challenges to the regulations and other decisions taken pursuant to them. The appellant appeals against these findings.

The statutory scheme and constitutional imperative for land reform in Namibia is to be seen within the context of ‘the ravages of inequality brought about by Namibia’s colonial past’. In addressing the issue there was wide consultation by the Namibian Government in the national land conference in 1991. The resulting Act was aimed to bring about reform in ownership and access to agricultural land in Namibia in 1995. Amendments to the Act in 2000 and 2001 established the Land Acquisition and Development Fund and land tax respectively as a means to fund the land reform and transformation process.

Appellant argued that the land tax regime in the Act, brought about by ss 76 and 77, amounted to an impermissible delegation of legislative power to the executive branch of government in the person of the Minister. Appellant contended that this is in conflict with the doctrine of separation of powers upon which the Constitution is based and in direct conflict with Art 63(2)(b) of the Constitution.

Respondents argued that the appellant’s approach failed to take into account Art 63(2)(b) properly construed and the nature of the tax scheme imposed under the Act. They submitted the key features of the scheme bringing about land tax were designed by Parliament, including the formula as to how the tax liability is calculated. What was left to be determined by the Minister was the rate within the formula which was to be approved by way of resolution by the National Assembly. They further argued that, the wide wording in Art 63 should be considered in the light of what was stated by this court in Du Preez v Minister of Finance that taxation is to be understood as being ‘imposed by the legislature or other competent authority.’

Held that, s 76 does not conflict the constitutional principle of separation of powers and Art 63(2)(b) which accords the National Assembly the power ‘to provide for revenue and taxation’. The National Assembly exercised its own powers and provided for land tax in s 76, which Art 63(2)(b) expressly authorised it to do so. The tax is based upon the

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unimproved site value of agricultural land multiplied by a rate. The Minister only determines the rate in the formula, subject to approval by resolution of National Assembly. The unimproved site value is to be determined in accordance with a procedure set out by the Minister in the regulations.

The court concluded that Parliament cannot be expected to deal with all details of implementing legislation and involve itself in the minute details of the tax and that there was nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to the Minister to address the administration and collection of the tax.

The approach of the High Court is thus correct.

With regard to the challenge against s 76B being an impermissible delegation in conflict with the constitutional principle of equality and Art 22(b) of the Constitution.

It is held that, Art 23(2) of the Constitution authorises parliament to enact legislation to provide indirectly for the advancement of previously disadvantage persons. This s 76B does by empowering the Minister upon application to exempt such landowners from land tax. The challenge to s 76B accordingly failed.

The regulations challenged by the appellants set out how the land tax is to be administered. They provide for the valuation of agricultural land, the appointment, powers and duties of a valuer and the process of valuation, objections against values included in a provisional valuation roll, the establishment, powers and duties of the valuation court appointed to consider and determine objections against valuations, appeals from that court to the High Court, the validity of the valuation roll and alternations to it. The regulations also provide for the furnishing of returns and the assessment of land tax, rebates and interest on tax, its recovery and the service of notices. Appellant in essence argued reg 4(4), reg (7)(a) and (b), reg 4(9)(b), reg 4(13) and reg 6(8), reg 13(1), reg 14(1) and (3), reg 15(b) offended against constitutional provisions or principles relied upon or the common law.

It is held that, appellant failed to show how each of these impugned regulations offended against constitutional provisions and principles relied upon or common law. The challenges were found to be without merit and the approach of the court a quo upheld.

It is further held that, the multiple further applications brought under the different case numbers were also without merit and the court a quo did not err in dismissing them.

Held further that, in exercising the court’s discretion with respect to costs, this court found it unnecessary to decide whether to adopt the general rule developed by the South African Constitutional Court as confirmed in Biowatch Trust v Registrar, Genetics Resources namely that in constitutional litigation, an unsuccessful litigant asserting constitutional rights ought not ordinarily to be ordered to pay costs. This was because of

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the manner in which the multiple applications were pursued which amounted at the minimum to be within the category of manifestly inappropriate and thus outside the scope of Biowatch. The conduct and unnecessary proliferation of this litigation are to be discouraged, resulting in considerable costs and judicial time being spent upon it.

It is thus held that, the appeal is dismissed with costs (the costs are to include the costs of one instructing and two instructed counsel). Kambazembi Guest Farm CC v Minister of Lands and Resettlement (SA 74-2016) [2018] NASC (27 July 2018)

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Liability of a judicial officer - The appellant was tried and convicted in the Magistrate’s Court, Windhoek, by the second respondent after his case had been postponed several times. At some stage during the proceedings in the Magistrate’s Court, the State had closed its case but the magistrate appeared not to accept that, prompting the prosecutor to lead further evidence.

The appellant was then convicted and sentenced to over three years imprisonment. His appeal to the High Court succeeded and the conviction and sentence were set aside and he was released.

The High Court remarked in its judgment on appeal that the manner in which the second respondent conducted the trial was a ‘disgrace’ and a ‘failure of justice’ and that it was the magistrate, not the prosecution, who was determined to secure the conviction of the appellant.

The appellant issued summons against the Government of Namibia represented by the Minister of Justice in his official capacity; the magistrate, the Magistrates Commission, and the Attorney-General, seeking compensation against them, jointly and severally, the one paying, the others to be absolved. The cause of action is that the magistrate’s conduct of the trial of the appellant was wrongful and unlawful and deprived him of his liberty otherwise than in according with procedures established by law, as contemplated by Art 7 of the Namibian Constitution.

The State respondents pleaded that they were not liable for the conduct of the judicial branch which is guaranteed independence under the Constitution; that judicial officers are not in the employ of the State and that, at common law, the State is immune from suit for the actions of the judicial branch.

After pleadings closed, the parties invited the High Court, by stated case, to determine if the State was liable for the wrongful and unlawful conduct of the second respondent, on the assumption that in the conduct of the trial of the appellant the magistrate acted mala fide, maliciously and fraudulently.

The full bench of the High Court was divided.

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The majority of two held that the independence of the judiciary and the separation of powers militated against holding the State liable for the conduct of the judicial branch. The majority took the view that as an aggrieved person the appellant had recourse against the second respondent in her personal capacity and that it was not necessary or appropriate to make the State liable for her conduct as the State had no power of control over her performance of the judicial function. The claim was dismissed.

The minority of one held that the existence of a remedy against the individual member of the judiciary was no bar to recognising a remedy in public law against the State. That Art 5 of the Constitution obligates the judiciary to respect and uphold the rights and freedoms guaranteed by the Constitution. That Art 25(3) and (4) of the Constitution empower the court to forge new remedies in public law to give full effect to constitutionally guaranteed rights and freedoms. That recognising State liability for judicial misconduct is necessary to vindicate such rights. The minority therefore resolved the question of State liability in favour of the appellant.

On appeal by the appellant to the Supreme Court, held that the existence of a remedy against the actual wrongdoer is an important consideration whether or not to recognise State liability for the actions of the members of the judiciary. Held further that recognising a new remedy in public law against the State for such conduct is not necessary and that such liability may undermine the independence of the judiciary and possibly create a greater mischief than not doing so.

Appeal dismissed and no order as to costs. Visagie v Government of the Republic of Namibia (SA 34-2017) [2018] NASC (3 December 2018)

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Tax: Section 23(2)(a) of the Communications Act 8 of 2009 (the Act) authorises the Communications Regulatory Agency (CRAN) to by regulation impose a levy to ‘defray’ its ‘expenses’ as contemplated under s 23(1) of the Act, for the purpose of regulating the telecommunications, postal and radio spectrum industries. CRAN by regulation published on 13 September 2012 imposed a levy of 1.5% on gross income of telecommunications providers, including the first respondent (Telecom). Telecom refused to honour the levy and challenged s 23(2)(a) and the regulation made under it in the High Court, alleging that the regulation impermissibly had retroactive effect, and s 23(2)(a) either constituted an unconstitutional tax without representation, or constituted an unconstitutional delegation by parliament of plenary legislative power.

The High Court upheld the constitutional challenge holding that s 23(2)(a) of the Act was a tax as it went beyond what s 23(1) authorised; there was no connection between the regulatory scheme and the charges levied based as it was on a percentage and without actual or properly estimated costs of regulation. The order of invalidity took effect from the moment the Act came into force as no order was made delaying the order of invalidity. Costs were ordered against CRAN.

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On appeal by CRAN to the Supreme Court:

Held: The High Court misdirected itself on the applicable test for determining if a charge is a tax or a regulatory levy; that even if a charge has all the attributes of a tax but is connected to a regulatory scheme, it will not be a tax.

Held: The Act represents a complex and complete regulatory framework for the affected industries with substantial benefits and privileges to those granted licenses to operate under it; and, therefore, there is a relationship between the scheme and those being regulated.

Held: The pith and substance of the Act (or its dominant purpose) is to regulate behaviour and the raising of revenue is only incidental. The levies imposed are intended for the carrying out of the policies of the legislation and need not be directly linked to the costs of regulation.

On appeal, court considered if s 23(2)(a) was unconstitutional on the alternative ground that it granted uncircumscribed plenary legislative power to CRAN.

Held: Although a levy of 1.5% on annual turnover was not per se unconstitutional, as it was within the international norm as shown in evidence and in cases considered, the absence of clear (or any) guideline or limit for its exercise failed to remove the risk of an unconstitutional exercise of discretionary power by CRAN, and rendered the section and regulation made thereunder unconstitutional. But order of invalidity made to operate only from date of judgement.

Held: That for the period preceding the taking effect of order of invalidity, CRAN can only exact payment from Telecom such amounts as are due after the regulation came into force.

As regards costs, held that the litigation enriched Namibia’s constitutional jurisprudence and none of the parties was frivolous; and therefore it was an appropriate case for each party to bear its own costs; both in the High Court and on appeal.

Appeal allowed and order of the High Court corrected appropriately. Communications Regulatory Authority of Namibia v Telecom Namibia Ltd (SA 62 - 2016) [2018] NASC (11 June 2018)

CONTRACT LAW

Contract – damages: The appellant and respondent entered into a written contract on the 8 October 2009, whereby the latter undertook to effect certain building works to the appellant’s guesthouse. Between 9 October 2009 and 21 September 2010, the respondent executed certain of the building works as per the agreed contract and the

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quantity surveyors issued five valuation certificates for payments to the respondent. Appellant paid less on certificate no. 2 and disputed certificate no. 5 and it was returned for revaluation. While the building works were still in progress, the appellant allegedly cancelled the contract and the respondent accordingly sued the appellant for the total amount of N$827,548.63 together with interest at the rate of 20% per annum from 23 March 2011 to date of payment. The appellant counter-claimed, claiming penalties and damages.

The court a quo dismissed both counter-claims with costs in favour of the respondent. In respect of the claim for damages, the court a quo held that the manager of the appellant, who was the only witness called to testify on all the counter-claims, lacked the necessary competence to testify as an expert witness on such claims. With respect to the claim for penalties, the court a quo found that in terms of clause 19 of the contract, penalties only become payable upon issuance of a certificate by an architect to the effect that in the opinion of such architect the work should reasonably have been completed within the time provided for, and no such architect was employed to perform such functions and no such certificate was issued either by the architect or by the manager of the appellant, who testified that he himself performed the role of the architect as provided for by the clause. It is against this backdrop that the appellant now appeals to this court.

It is clear from the submissions by counsel for the appellant that the only issue remaining in dispute is that of penalties and costs in that regard, meaning that the issue of damages has been abandoned.

Held that the parties contracted on the basis of clause 19 and the interpretation thereof is clear.

Held, that it was common cause that no certificate was issued as required by clause 19. Appellant cannot claim penalties in terms of clause 19 without having met the obligations imposed by the said clause.

Held further that the appellant failed to inform Mr Gudi of the respondent and the quantity surveyor that no architect would be required as per the contract and that Mr Schmidt of the appellant would fulfill the role of such architect.

Held further that the court a quo was correct in finding that Mr Schmidt lacked the necessary expertise to formulate the necessary opinion required in terms of clause 19 and that Mr Schmidt, being the son of the owner of the appellant or the manager of the appellant, was an interested party, not a professional and it is highly unlikely that respondent would have then agreed that appellant could be a judge in his own cause.

Held further that all other issues raised by counsel was not necessary to consider as the interpretation of clause 19 was a decisive factor in the appellant’s case.

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Held further that costs should follow the cause. Prestige Properties CC v NA Construction CC (SA 73-2016) [2018] NASC (3 April 2018)

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Joint and several liability: The appellant is a foreigner who entered into a car hire agreement with the first respondent, a close corporation. The second and third respondents are the members of the first respondent. The appellant sued the first respondent, alternatively the second and third respondents jointly and severally, in the court a quo for repayment of N$168 963, 41 and N$ 28 653, 00 in respect of damages he allegedly caused to a vehicle hired for use on a safari in Namibia. The court a quo found that the respondents made material representations regarding the insurance offered to the appellant. However, the court a quo rejected the submission by the appellant alleging that the second and third respondents should be held liable jointly and severally with the first respondent under the Close Corporation Act, because that was not the case of the appellant. The court a quo further found that the appellant failed to discharge his onus in proving that the respondents’ insurance covered the loss to the vehicle arising from him driving through a riverbed on an unmarked road, not authorized by the appellant. Regarding the appellant’s alternative claim of unjust enrichment, the court a quo found that the respondents failed to produce proof of repairs to the damaged vehicle and that first respondent therefore was enriched at the appellant’s expense. In respect of the claim of N$28 653, the court a quo found that the appellant’s arguments were meritless as this amount was clearly itemized by the respondents as expenses they incurred in order to extract the vehicle from the riverbed. Lastly, on the issue of whether the second and third respondents should be held jointly and severally liable with the corporation for the amount of N$168 963,41, the court a quo found no basis for such liability on the case as pleaded.

Aggrieved, the appellant now appeals against the finding of the High Court that second and third appellants were not liable, jointly and severally with first respondent in respect of the claim based on enrichment. Subsequently, the respondents cross-appealed against the finding of the High Court, that the respondents have been enriched at the expense of the appellant.

The appeal in this court was to be heard on 1 June 2018. However on that day the appellant’s legal representative raised the issue that the respondents failed to tender security for costs in terms of rule 14(2). The court accordingly decided to postpone the matter to a date to be arranged with the registrar for the respondents to address the point belatedly taken without any forewarning. The respondents were directed to file a condonation and reinstatement application explaining their failure to file the said security and why their cross-appeal should be heard. The matter was postponed and subsequently heard on 13 July 2018.

Although the condonation application remained unopposed, the court held that a litigant seeking condonation bears the onus to satisfy the court that there is sufficient cause to warrant the grant of condonation and that such application should be lodged without

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delay. Based on the authority of Kleynhans v Chairperson of the Council for the Municipality of Walvisbay and others, this court found that although security was offered on 1 June 2018 and the wasted costs were tendered by the respondents, the application resurrecting the cross-appeal was filed five weeks later and the explanation tendered in respect of the delay was neither sufficient nor satisfactory and a flagrant disregard of this court’s rules. The application to reinstate the cross-appeal is therefore refused.

The only issue for determination on appeal is whether the second and third respondents should be held jointly and severally liable for repayment of the amount of N$168 963,41. The appellant submitted that it was not necessary for him to have pleaded that the respondents acted in violation of the Close Corporation Act, as the violation was evident from the facts and the documents filed of record. However, counsel submitted that if it was at all necessary to plead same, an amendment to the plea should be granted, because there would be no prejudice to the respondents. This was so as the appellant in his evidence reiterated the fact that at all times he was not aware that he was dealing with a separate legal entity, but rather gained the impression that he was trading with a family business due to the fact that none of the documentation exchanged between the parties contained the correct name of the entity together with the capital abbreviation “CC”. On behalf of the respondents it was contended that it was never the appellant’s case and if the appellant intended on relying on the alleged contravention of a provision in the Close Corporation Act, he should have pleaded it in clear terms with reference to the specific provisions in the Act.

Held that the court a quo correctly came to the conclusion that one of the prime functions of pleadings is to clarify the issues between the parties and to enable the other party to know what case he has to meet.

Held that the appellant should have specifically and unambiguously pleaded the provisions the respondents violated in the Close Corporation Act, and on which he relied to hold the second and third respondents personally liable with the first respondent jointly and severally, and not have left it to be inferred from documents filed and/or discovered by the parties.

Held that the appellant had ample opportunity to amend its pleadings when he placed the facts before the court a quo, especially considering the fact that during cross-examination of the respondents, they admitted to transgressions of the Close Corporation Act.

Held that the argument that the appellant did not know exactly with whom he was transacting, holds no merit.

The appeal is accordingly dismissed. Dannecker v Leopard Tours Car and Camping Hire CC (SA 79-2016) [2018] NASC (31 August 2018)

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Leases: The fourth appellant (Ramatex) is a Namibian subsidiary company of a Malaysian company that was established with the main aim of establishing a textile industry in Namibia through a staggered investment in infrastructure and equipment over a period of time, at a cost of millions of Namibian dollars and which would create thousands of job opportunities for Namibians.

As a result of this understanding, Ramatex and the Municipal Council of Windhoek (the City) entered into a lease agreement for a period of 99 years at a once off rental amount of N$1188 for the entire period. The City undertook to provide municipal services and spent just in excess N$87 million in this regard. Ramatex on the other hand took occupation of the site, constructed a number of warehouses, brought equipment on site and commenced with operations. The expenditure incurred in establishing its business on the site was around N$500 million.

Ramatex undertook to comply with all laws and regulations relating to the manufacturing and handling of hazardous material, to comply with and execute sound environmental practises and ‘within a reasonable time’ comply with an international environmental standard described as ‘ISO 14 000’.

In about 2008, Ramatex commenced to scale down its operations. Ramatex started disposing off its assets and informed the Namibian authorities of its unequivocal intention to discontinue with its business in Namibia. In March 2008 it gave notice to all its employees that they would be retrenched as the company would cease all its operations the next day.

The City in March 2008, wrote letters to Ramatex putting the company on terms to rectify certain alleged environmental breaches it claimed to be material breaches, the non-remediation whereof it was stated, would lead to cancellation of the contract. In a further letter, delivered to Ramatex’s registered address, the City maintained that the cessation of operations by Ramatex also constituted a material breach. Per letter dated 21 April 2017 the City informed Ramatex that it cancelled the agreement, based amongst others, on ‘the discontinuance of your textile and garment factory operations.’

On 8 May 2008, Ramatex was placed under provisional liquidation, which was subsequently confirmed in June and the first to the third respondents were appointed as liquidators. On 9 May 2009 the liquidators informed the City that it elected to continue with the lease and the City’s attitude was that no valid lease was in force at the time. The liquidators filed an application in the High Court in which they sought a declarator to the effect that the said lease was valid and of full force and effect. The application was dismissed with costs and hence the appeal before this court.

Held – that the general principle in leases is that where the property leased is stated to be used only for a specific purpose, this does not mean that there is an obligation to conduct the stated business for the full duration of the lease. To impose such an obligation the lease must expressly or implicitly contain such terms.

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Held – that tacit terms contended for on behalf of the City that cessation of environmental friendly textile industry would terminate lease not established. This would be contrary to the express term that lease would not terminate on insolvency, was not pleaded, and ignored the general principle mentioned above.

Held – that annexure D, which was in essence the agreed schedule of operations between the parties, although not attached to the lease agreement, was identified and hence could be relied upon in considering the parties’ rights and obligations in terms of the lease. The identification of the document does not offend against the parol evidence rule and although the identified document may have posed problems of interpretation this did not mean it should be ignored.

Held – that tacit term pleaded that Ramatex should establish an environmentally friendly textile industry cannot be imported into contract as the ‘schedule of operations’, annexure “D” to the lease expressly dealt with Ramatex’s obligations and tacit term thus not expedient, reasonable or necessary.

Held – that authority given to employee to set proceedings in motion to cancel the agreement implicitly authorized the actual cancellation of the agreement.

The court thus concluded that on 21 April 2008 when the City cancelled the lease agreement based, inter alia, on the cessation by Ramatex of its operations, it was entitled to do so based on the repudiation of the lease agreement by Ramatex.

Held – that the decision by the City to cancel the lease did not constitute administrative action and hence that no review lay against this decision. The appeal was dismissed with costs. Mclaren Ian N.O and 3 Others v Municipal Council of Windhoek and 2 Others (SA 33 – 2016) [2018] NASC (17 January 2018)

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Special plea – res judicata: C instituted action against V on the basis of a deed of suretyship, the latter signed in favour of a corporation that borrowed money from C and which amount was allegedly owing to C.

When no notice of intention to defend was filed C obtained default judgment against the corporation, V and another surety.

V launched an application to rescind the default judgment. The papers in the rescission application were finalised, but before the application could be heard, C and V concluded in an agreement to the following effect:

C would abandon the judgment, V would file a notice to defend the action which thereafter would proceed in the ordinary course. C would amend his particulars

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of claim to address the issues of a technical nature raised in the rescission application by V and the relevant pleadings would follow thereafter.

In the process of finalising the pleadings V issued a third party notice alleging that the third parties (appellants) had to indemnify him against any amount that C would be granted should his action against V be successful. The third parties thus became parties in the suit between C and V and also filed their pleadings. In a late amendment to their plea the third parties raised a plea of res judicata averring that the abandoned judgment (as it was not rescinded) was still in place. The third parties submitted that they were, through their relationship with V, privies to the judgment. The abandonment simply meant that C waived his rights to enforce the default judgment and as they were not parties to the agreement they were not bound by the agreement. The abandonment according to the third parties also meant that C had to institute action afresh under a new case number as the default judgment stood as a final judgment.

V in a late amendment to his plea then also raised a plea of res judicata. It was however conditional upon the third parties plea of res judicata being upheld. In addition they made common cause with the third parties that summons had to be instituted afresh.

The court a quo dismissed the special plea of the third parties (with the consequence that V’s conditional plea also fell away). The third parties, with leave of the court a quo, appealed against this order.

Held that the High Court (court a quo) had the inherent jurisdiction to govern its own procedure. That C and V acted in terms of their agreement when they partook in the further exchange of pleadings. That the third parties likewise partook in the procedure without demur up to their late amendment to raise the issue of res judicata and summons that had to be issued afresh. That the judge a quo was correct to continue with case management in these circumstances as it was in line with the main objective of case management to finalise the matter on the real issues and as speedily and cost effectively as possible. Should there be reason for it the court a quo can add a numeral or letter to its final order to distinguish this order from the default judgment initially granted.

Held further that for the third parties to be able to raise a defence of res judicata they had to be parties to the judgment. This they were not. They were not parties to the agreement between C and V and C was not a party to the agreement between the third parties and V. There was no basis on which C could sue them directly or on which he could execute the judgment against them directly. Their liability to V arises from a contract, containing an indemnity and which has nothing to do with C as he was not a party thereto and that the third parties cannot be deemed to be the same person as V vis-à-vis C so as to render them privies (parties) to the default judgment.

In the result the appeal is dismissed. Martinus Hermanus Mans NO and 2 Others v Llewellyn Coetzee and 2 Others (SA 14 - 2017) [2018] NASC (30 October 2018)

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Suspensive conditions: It is common cause that the appellant and the first respondent entered into a deed of sale on 29 September 2005, in terms of which the first respondent sold immovable property to the appellant for an amount of N$600 000. The deed of sale however rested on a suspensive condition requiring that the appellant obtain a loan for the purchase price of the property from a registered commercial bank by no later than 17h00 on 30 September 2005.  Should the appellant fail to do so, the agreement would lapse and the first respondent would be obliged to refund all monies paid to him, together with the legal interest. The bank declined to grant the loan resulting in the lapse of the agreement.

However the contention of the appellant was that a further oral agreement was entered into by the parties, seemingly reviving the lapsed agreement. Under that oral agreement the appellant would pay the purchase price of the property in monthly installments. 

Also common cause is that the parties entered into a further written agreement concluded on 30 April 2008, in terms of which the same property would be sold by the appellant to the Angolan Consulate in Rundu, but he would have to pay an additional N$260 000 to the first respondent in installments within a period of six months. Thereafter, the first respondent would transfer the property to the Angolan Consulate. During cross-examination in the High Court it was canvassed with him that the amount was meant to be partially occupational rent and partially payment towards the purchase price. There was however no clarity as to which portion of the amount was payment towards the purchase price. The appellant pleaded that the first respondent however failed to transfer the property to the Consulate or to him notwithstanding that he had paid the amount stipulated. For that reason the first respondent was in breach.

Although acknowledging the agreements concluded on 29 September 2005 and on 30 April 2008 and on the terms alleged, the first respondent disputes that payments had been made according to the terms of any of the agreements. His position lies on the basis that the original agreement had lapsed on the 30 September 2005, when no payments had been made and he had cancelled the second agreement of 30 April 2008. He then sold the property to second respondent. He thus disputed any claim for specific performance and declined any tender by the appellant.

Aggrieved, the appellant instituted proceedings in the court a quo seeking specific performance, and (alternatively) the repayments of all amounts he claimed he had paid to the first respondent together with interest.

After the appellant had closed his case in the court a quo, both respondents applied for absolution from the instance.  The court a quo found in favour of both respondents and granted the applications, holding that there was no basis for a refund of direct or indirect payments made and appellant failed to even allege a basis upon which the relief was sought. The appellant accordingly instituted appeal proceedings before this court.

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Although the appellant initially appealed against the whole judgment of the court a quo, having accepted the High Court ruling granting respondents absolution from the instance in respect of his claim for specific performance, he subsequently confined his appeal against the court’s ruling only in so far as it had granted absolution in relation to the refund question in the context of the court’s finding that he failed to plead the material facts in support of his claims for a refund.

Held that the court a quo correctly found that restitution could not take place when the first agreement had lapsed as no payment were made during the time that the first agreement was in place.

Held that the first and second agreements entered into by the parties had to be read together and the oral agreement entered into after the first written agreement had lapsed and stipulating that payments are to be made in installments had the effect of substituting the lapsed agreement.

Held that the second agreement was unconditional and could not lapse with the first as it did not even exist when the first agreement had lapsed.

Held that the court a quo erred in finding that no payments were made under the second agreement despite the evidence tendered by the appellant. The appellant is prima facie entitled to be placed in the position he would have been in had he been able to sell the property to the Angolan Consulate.

Held that it cannot be said that a court could not or might not have put the first respondent on his defense in respect of the claim for a refund. Absolution should therefore not have been granted in relation to the question of the refund. 

Held that the matter is sent back to the court a quo to decide the refund question.

The appeal therefore succeeds with costs, such costs to include the costs of one instructing and one instructed counsel. Van Schalkwyk v Dias (SA 45-2016) [2018] NASC (13 April 2018)

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Suspensive conditions: The appellant sought an order against the judgment by the court a quo. In the order the main claim by the appellant had been dismissed and the counterclaim by the defendant had been granted.

The appellant is the registered owner of the immovable property and the respondents were and are still in occupation of the property since 1 February 2008.

The appellant’s claim was twofold, (a) rei vindicatio as owner in respect of immovable property, and (b) a claim for enrichment for occupation. The respondent’s defence and counterclaim was based on an agreement of sale in respect of the property and transfer

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of the immovable property. The respondents claimed registration of the immovable property and if the agreement had lapsed, the repayment of the deposit paid, N$1 100 000.

The appellant answered to the counterclaim pleading that the agreement had lapsed due to non-fulfilment of suspensive conditions. The written agreement did not provide for a date by which the suspensive conditions, were to be complied with. However the parties orally and tacitly extended agreed deadlines on a number of occasions.

By January 2010, the respondents had stopped paying occupational rent and it is alleged by the appellant that by 8 April 2010 he had decided to not give further extensions. His lawyer addressed a letter to the appellant putting him on terms and further correspondence followed. In the court a quo, the court had found that the final letter addressed to the respondent created an impression that the appellant had extended the period within which the suspensive condition had to be fulfilled to 18 June 2010.

On appeal the issues for determination were fundamentally similar. Firstly the Court found in favour of the appellant who brought an application for condonation based on the late lodging of the record and late filing of security and an order that the appeal to be re-instated. The Court reasoned that the appellant had a very arguable case and prospects on appeal which further advanced his case for reinstatement.

In upholding the reasoning of the court a quo, the Court found that where parties do not agree to a timeframe within which a condition must be fulfilled then it is implicit that a reasonable time is envisaged. Based on the evidence of appellant, the Court held that he was still willing to await the outcome of the FNB finance application and that the letter of 18 June 2010 that requested the respondents to provide proof that they have the finances in place on that date extended the deadline to 18 June 2010. Therefore the appeal against the judgement of the court a quo was dismissed.

The Court further dealt with the issue regarding the occupational interest payable pending the transfer of the property to the appellant. There was a dispute whether the interest had increased by agreement from N$ 10 000 to N$ 20 850 per month. In its findings, the Court held that the version of the appellant was more probable, the N$20 850 had been calculated on the basis of what the monthly costs of N$1,7 million finance from the bank would have been. Therefore the respondents were found to be liable for occupational interest as from January 2010 when they had stopped paying the increased amount, up to the date of transfer of the property into the respondents’ names. Paul Viviers v Johan Barrington Ireland and Another (SA 24-2016)[2018] NASC (3 May 2018)

COSTS

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Appeal against cost order: the general rule that costs follows the event not applicable in those instances where a litigant applies to court for condonation of the non-compliance with the provisions of the rules or of a statute. In such a case where an indulgence is granted the applicant may be ordered to pay the costs (even on the scale of attorney and client) which can reasonably be said to be wasted because of the application provided that the opposition to such application for postponement is in the circumstances reasonable and not vexatious or frivolous.

An order to pay the wasted costs may be ordered where the applicant for the indulgence was at fault or in default. This general rule may be departed from where a litigant was forced to apply for a postponement as a result of the conduct of an opposing party. In such an instance a court may order each party to pay his or her costs, or may make no order as to costs, or order that wasted costs be costs in the cause.

On appeal: The opposing parties blamed each other for the necessity to apply for an application for a postponement of the trial. Appellant blamed the respondents amongst others, for failing to timeously discover documents relevant for preparation for trial. The respondents amongst others blamed the appellant for non-compliance with the rules of court and for an inordinate delay in launching the application for postponement. A court in considering an appropriate cost order must take into account all the circumstances, and must consider the contentions by both litigants in the interest of fairness. Where a court, in its judgment, considered only the allegations of one of the litigants, such fact amounts to a misdirection, justifying interference on appeal.

Punitive cost order against appellant on attorney own client scale set aside and substituted with order that the order for costs of the postponement stand over for determination at the conclusion of the hearing of the action. United Africa Group (Pty) Ltd v Uramin Incorporated and 2 Others (SA 9-2017) [2018] NASC (23 November 2018)

CRIMINAL LAW AND PROCEDURE

Appeal: The appellant appeared in the court a quo on two counts, namely rape and indecent assault. The first count alleged that the appellant unlawfully and intentionally had sexual intercourse with the complainant, a three-year-old girl. The second count alleged that the appellant wrongfully, unlawfully, indecently and lasciviously assaulted the same complainant, by having intercourse with her per anus. The appellant pleaded not guilty to both counts but was convicted on the first count and sentenced to 14 years’ imprisonment. The trial court acquitted the appellant on the second count.

The appellant applied for leave to appeal against his conviction and sentence. The trial court refused, but this court on petition granted leave to appeal. However, during the hearing of the matter, the appellant abandoned his appeal against sentence and proceeded only against conviction.

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On appeal, the appellant raised three principal grounds against his conviction: (a) he contended that the charge did not contain sufficient particulars of the date and time of the alleged offence; (b) that the extent of the injuries to the complainant makes it doubtful that he could have raped the complainant; and (c) that the cautionary rule relating to a single witness was not properly applied when the trial court considered the evidence of the complainant.

This court endorses the trial court’s findings that it was not only alive to the risks associated with the evidence of a single and youthful witness, but also appropriately exercised caution in considering the evidence of the complainant. In relation to the ground that the charge sheet lacked particularity to the specific date(s) and time(s) on which the alleged incident(s) of the sexual intercourse occurred, this court finds that the alleged defect(s) were cured by evidence led during trial as contemplated by s 88 of the Criminal Procedure Act, 1977.

On a holistic evaluation of the state’s evidence, this court is of the view that the trial court was correct in convicting the appellant on the evidence of the complainant, the corroborating evidence of the mother of the complainant and the older sister of the complainant. The appeal is accordingly dismissed. HD v S (SA 13-2007) [2018] NASC (1 March 2018)

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Appeal: This is an appeal against the decision of the High Court/ trial court which acquitted the respondent, a former judge of appeal of the Supreme Court of Namibia, of all the eight charges and the alternative counts, preferred against him. The case against the respondent which has spun approximately 13 years, is that he unlawfully transported the two minor children (complainants) from Katutura to his residence without the authority of their parents; unlawfully supplied them with alcohol to stupefy so as to molest them sexually or unlawfully supplied alcohol to them and performed certain sexual acts or indecent assault or immoral acts with or against them. The State also alleged that, while at his house, the respondent forced the complainants to watch pornographic videos.

In his plea explanation in terms of section 115 of the Criminal Procedure Act, 1977, the respondent reasoned that he did not have an unlawful or nefarious purpose for taking the children to his plot except for the noble intention of feeding them. The complainants had told him that they were hungry and that their mothers were at the Single Quarters. According to the respondent, the complainants appeared dirty and neglected. He stated that his intention was to give the children food and thereafter return them to their homes. The respondent also explained that he only returned the children to their homes the following day because he had taken alcohol and some medication that made him to fall asleep until about midnight on the night in question.

The respondent did not testify at the trial. At the end of the prosecution case he applied to be and was discharged in terms of section 174 of the CPA of all the charges. The

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State successfully appealed to the Supreme Court. In upholding the appeal the Supreme Court set aside the discharge and remitted the matter to the trial court. At the end of the entire case the trial court found that the State failed to prove the guilt of the respondent beyond reasonable doubt and acquitted him. This is the decision that was the subject matter of the appeal.

The appeal court had to determine whether the trial court misdirected itself on the facts and the law and whether it was entitled to interfere with the trial court’s findings of fact. Additionally, the court was asked to decide whether to dismiss the appeal because of the prolonged delay in the prosecution of the case and on the basis of the irregularities which allegedly violated the respondent’s fair trial rights.

In deciding this case, both the trial court and the appeal court relied on the evidence adduced by the State witnesses and the respondent’s plea explanation as well as documentary evidence that was plagued with serious irregularities.

In the trial court, it was held that the State’s evidence in relation to the alleged crimes did not measure up to standard. The court held that the evidence of the complainants was contradictory and mutually destructive. It held that the documentary evidence in the form of the original medical report was highly suspicious and unreliable because it had been tampered with and no explanation for the tampering was proffered by the State.

It was further held that the investigation process was riddled with irregularities - some of which the trial court described as deliberate attempts by the police to fabricate a case against the respondent.

The Supreme Court, having considered the issues, the law, the evidence, the approach of trial court and its assessment of the evidence, held that the trial court followed the correct approach by cautioning itself not to approach the evidence on a fragmented fashion but to approach it holistically. It found that the trial court was, correctly, mindful of the dangers attendant upon the uncritical acceptance of the evidence of the complainants because of a number of elements, including their imaginativeness and suggestibility that require their evidence to be scrutinised with care.

It is further held that the trial court was correct to conclude that because of the material discrepancies in the evidence of the State witnesses which remained uncorroborated− it could not be faulted in finding that the guilt of the respondent had not been proved beyond reasonable doubt.

On whether the trial court ignored the only reasonable inference to be drawn−that the respondent intentionally removed the complainants from the Single Quarters to violate parental authority−it is held that the inference sought to be drawn is not consistent with the facts ventilated during the trial.

It is further held that there is no evidence to suggest that the respondent foresaw or ought reasonably to have foreseen the consequences of his action and that, even

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assuming that his explanation was wanting and that his actions bordered on negligence, his explanation cannot be rejected merely because it was improbable on those grounds. It is sufficient that his version, considered against the evidence as a whole, is reasonably possibly true in substance in which case his version should be accepted.

It is further held that as this case concerned the alleged sexual molestations on young children and the supply of alcohol to them, corroboration in the form of DNA testing was vital. The court found that, had the investigative team complied with the forensic science standards mentioned in the evidence of the State witnesses like Dr Behr and Dr Ludik, some form of corroboration might have been established. In the absence of such corroboration, the court held, the allegations of an unlawful sexual act or indecent act or indecent assault and the unlawful supply of alcohol against the respondents are devoid of any semblance of the truth.

It is further held that the contention that the trial court misdirected itself on the facts and the law is devoid of merit.

It is further held that, neither the Constitution of the Republic of Namibia, 1990 nor the Police Act, 1990 empower the police to investigate any crime against any person, whether that person is a judge or any person in a position of authority, in a picky or choosy manner for the purpose of securing a conviction of an accused person.

Furthermore, it is held that the importance of the fair trial right in the Constitution is to ensure, among other things, that innocent people are not wrongly convicted. This is so because of the adverse effect which wrong convictions might have on the liberty, dignity and possibly other interest of the accused. Anything short of these constitutional imperatives may not only bring the system of criminal justice into disrepute but may also result in a travesty of justice. State v Teek (SA 12-2017) [2018] NASC (3 December 2018)

DELICT

Defamation: The appellants were the defendants in an action for damages for defamation, the respondent had brought in the amount of N$500 000,00 plus interest at the rate of 20% per annum from the date of judgment to date of payment plus cost of suit. The trial court awarded damages to the respondent in the amount of N$80 000,00 with interest at the rate of 20% per annum from date of judgment to date of payment plus costs of suit. Appellants appealed against the whole judgment and the respondent has cross-appealed against the quantum order, seeking an increase in the award to an amount of N$150 000,00.

The first appellant is the company that publishes “The Namibian Newspaper”, the second appellant the editor then and the third appellant the author of the article which is the source of the defamation action. The article alleged that the respondent the Head of training and standards at Air Namibia put pressure on Ralph Brammer, a flight instructor

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and examiner accredited to the Directorate of Civil Aviation (DCA), to falsify information on a DCA form to get the necessary certification for the South African citizen (Mndawe) to fly Air Namibia’s domestic Beechcraft 1900 fleet and that the persistent pressure led to the sudden resignation of the flight instructor at the national airline. The article further amongst other things alleged that the DCA initially granted Mndawe the papers necessary to fly in Namibia but the validation certificate was withdrawn when the DCA was notified that Mndawe was not in possession of a valid South African pilot’s licence; that Mndawe’s flying skills were sub-standard and that she would be required to undergo additional practical flight examinations before she would be permitted to fly in Namibia; the respondent instructed Brammer to transfer information from an unrelated form to the DCA form, which would have created the impression that Mndawe had completed the required practical flight test as requested by the DCA; that respondent insisted that the practical flight examination could be skipped and told Brammer to copy the initial recommendations for Mndawe’s employment to the DCA form; that respondent insisted that the DCA was willing to accept the outdated and invalid practical flying test results; that had Brammer agreed with the request from respondent, it would have been deemed highly illegal and it would not have been approved by the DCA.

On appeal the appellants bore the onus to establish a defence which excluded either wrongfulness or intent. Appellants contended that they believed that the publication of the article was of high public interest and understood the publication to be protected by the right to freedom of speech (Art 21(1)(a). In publishing the article the appellants took into account that investigative journalism plays a vital role in holding public figures and public institutions accountable and in conformity with acceptable standards. Appellants further contended that the appeal also concerns striking the correct balance between the often conflicting rights of freedom of expression and freedom of the press, on the one hand, and the rights of the individual to the protection of his or her unimpaired reputation or good name, and the right to privacy and dignity by the Namibian Constitution and that the matter should be determined having in mind the constitutional framework and protections embodied in Art 21(1)(a) and the competing rights of the individual to dignity. The appellants denied that the article was defamatory, wrongful or published with intention to defame the respondent and pleaded further in the alternative raising four defences, namely, truth in the public benefit, fair comment, qualified privilege and reasonable publication.

Held, that the right to freedom of speech versus the right to dignity is a vexed issue in our jurisdiction and in democracies like ours; the right of freedom of expression in a democracy cannot be overstated; accordingly, the media need to be aware that their task of disseminating information in the public realm must be done responsibly with integrity.

Held, further, that in order to establish whether the article complained of is defamatory, the test is objective. The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once.

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Held, further, that on the question as to whether the article was defamatory that the first two paragraphs of the article, an ordinary reader would have gained the impression that the respondent was corrupt.

Held, further, that paragraphs 14, 15 and 17 would have informed the reader as to the nature of the falsification required by the respondent, casting him in a worse light as the said paragraphs create the impression that the information Brammer was required to transpose was invalid, outdated and unrelated to the practical flying test.

Held, further, that paragraphs 6 to 13 of the article the corruption of the respondent would have been understood to be seriously aggravated in that the respondent used or attempted to have used his position to obtain a licence for a person who has no licence to fly and/or whose flying skills are sub-standard or non-existent.

Held, further, that the request by the respondent to Brammer to transpose the information from the one document to the other did not amount to falsification, for the reason that the respondent copied in his supervisor and Van Niekerk of the DCA, which negatives any intent on the part of the respondent to intend on falsifying information and also from all communication between the respondent and Brammer, no request existed to add or to subtract from the information to be transposed.

Held further that the respondent’s repeated requests to transpose the information did not amount to pressure or persistent pressure.

Held, further, that the trial court was correct in holding that the article was defamatory of the respondent.

Held, further, that almost every paragraph of the article was inaccurate, the article is therefore substantially untrue, accordingly the defences of public benefit and truth and qualified privilege cannot succeed.

Held, further, that in Modiri v Minister of Safety and Security 2011 (6) SA 370 (SCA) at 376B-E, para 12, it was held that if a defamatory statement is found to be substantially untrue, the law does not regard its publication as justified.

Held, further, regarding the defence of reasonableness, that in Trustco Group International v Shikongo 2010 (2) NR 377 (SC) at 391E it was held ‘that in order to raise this defence, the appellants must establish that the publication was in the public interest, and that, even though they cannot prove the truth of the facts in the publication, it was nevertheless in the public interest to publish’.

Held, further, that the issue of irregularities in issuing pilots’ licences is in the public interest and will always be.

Held, further, that in Government of the Republic of South Africa v Sunday Times Newspaper and another 1995 (2) SA 221(T) at 227I-228A it was held that it is the

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function 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.

Held, further, that in Trustco Group International at 399H and 400E-F it was held that in considering whether the publication of an article is reasonable one of the important considerations will be whether the journalist concerned acted in the main in accordance with generally accepted good journalistic practice; courts should not hold journalists to a standard of perfection; judges must take account of the pressured circumstances in which journalists work and not expect more than is reasonable of them; at the same time, courts must not be too willing to forgive manifest breaches of good journalistic practice; good practice enhanced the quality and accuracy of reporting, as well as protecting the legitimate interests of those who were the subject matter of reporting; there was no constitutional interest in poor quality or inaccurate reporting so codes of ethics that promote accuracy affirm the right to freedom of speech and freedom of the media, as well as serving to protect the legitimate interests of those who were the subject of reports.

Held, further, that while the appellants’ plea elaborate in sufficient detail the steps the third appellant took prior to publication of the article, which steps the third appellant also confirmed in her testimony, but the third appellant’s attempts did not amount to or the third appellant did not in all instances do what is reasonable to verify certain information to avoid errors in the article, for example, the investigation was triggered by Mndawe’s flying skills, particularly whether she had a pilot’s licence, but third appellant failed to contact her.

Held, further, that regarding quantum in Dikoko v Mokhatla 2006 (6) 235 (CC) at paras 93-95, it was held that the assessment of sentimental damages properly reside within the province of the trial court; an appellate court will only interfere when the trial court has misdirected itself in the sense that it has awarded high or low damages on the wrong principle or when in the opinion of the appellate court the award is so unreasonable as to be grossly out of proportion to the injury inflicted.

Held, further, that in determining whether the award of damages by the trial court should be interfered with, the question is whether the N$80 000,00 under the circumstances is grossly disproportionate to the injury suffered as a result of the defamation; what is always material to an award is the extent to which the harm that was caused was mitigated by the defendant; the appellants were alerted to the inaccuracies in the article and were called on to retract and/or apologise but they chose not to do so; monetary award for harm of the nature suffered by the respondent is not capable of being determined by an empirical measure; awards made in other cases might provide a measure of guidance of a generalised form.

Held, further, that the trial court considered awards made in other cases in this jurisdiction; the reasons by the trial court granting the award are sound; the award is consistent with other awards; it is not grossly disproportionate to the injury suffered.

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Held, further, that the appeal fails and the cross-appeal by the respondent seeking to increase the award also fails.

Held, further, that on the question of costs, notwithstanding the fact the cross-appeal also failed, the respondent should be entitled to full costs, as the cross-appeal did not take the parties’ time; while the dispute between the parties is a vexed one the issues on appeal were more defined and costs of one counsel should be appropriate.

The decision of the trial court confirmed on appeal. Free Press of Namibia (Pty) Ltd v Nyandoro (SA 32-2015) [2018] NASC (1 March 2018)

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Negligence: The respondent successfully instituted an action in the High Court in which he claimed damages based on the negligence of medical staff employed by the appellant. The court a quo was required to decide only the issue of negligence.

The appellant and the respondent each called one expert witness.The approach to expert evidence enunciated in Michael & another v Linksfield Park Clinic (Pty) Ltd endorsed namely that the determination of negligence and reasonableness involve the examination of the opinions and the analysis of the reasoning of the expert witnesses and to what extent their opinions advanced are founded on logical reasoning.

The court must be satisfied that the expert witness ‘has considered comparable risks and benefits and has reached a defensive conclusion’.

It is wrong to decide a case by simple preference where there are conflicting views on either side, both capable of logical support.

The negligence of a medical practitioner must be proved in view of the particular circumstances prevailing at the time. The standard of care expected from a general practitioner is not the same as that which is expected from a specialist.

Court a quo accepted expert evidence on behalf of plaintiff/respondent in view of the fact that the witness was a specialist in vascular surgery. The witness on behalf of defendant/appellant not expert in vascular surgery, but expert as orthopaedic surgeon. Injury sustained by plaintiff/respondent both of vascular and orthopaedic nature. Court a quo failed to consider what impact the orthopaedic injury would have had on the salvageability of the respondent’s leg. The mind of expert on behalf of plaintiff/respondent was not directed to the question of comparable risks and benefits in view of the evidence of expert witness called on behalf of defendant/appellant.

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The onus is on plaintiff to prove negligence on a preponderance of probabilities. Where at the conclusion of a case the evidence is evenly balanced onus is not discharged. The issues of factual causation and legal causation are considered.

Held on appeal – plaintiff/respondent did not prove negligence by defendant/appellant or its employees, and on assumption of negligence, that such negligence in the circumstances caused the amputation of respondent’s lower right leg.

Appeal succeeds. Minister of Health Social Services v Kasingo Ivan (SA 46-2014) [2018] NASC (6 July 2018)

LAW OF SUCCESSION

Appointment of executor: Mrs Selma Hausiku, the second respondent, instituted motion proceedings in the High Court in which she sought an order reviewing and setting aside the appointment of Ms Irene Mpasi, the first appellant, as the executrix of the estate of the late Sitentu Daniel Mpasi. Mrs Hausiku sought further orders, amongst others, that the appointment of Ms Mpasi should be declared null and void; that she should be removed from the office of the executrix; and that one Martha Sitentu, the third respondent, should be appointed instead as the executrix of the estate. Both Mrs Hausiku and Ms Mpasi claim to have been each legally married to the late Chief Sitentu Daniel Mpasi.

The late Chief Sitentu Daniel Mpasi died on 17 December 2014. Following his passing, Ms Irenia Mpasi launched an application with the Master of the High Court for her appointment as the executrix of the deceased’s estate. She was accordingly appointed in that position.

Aggrieved by the decision to appoint Ms Mpasi, Mrs Hausiku brought an application in the High Court seeking the relief referred to above. Ms Mpasi in her capacity as the executrix and in her personal capacity opposed the application but did not file an opposing affidavit. Instead, she filed a notice in terms of rule 66(1)(c) of the Rules of the High Court raising three issues that she contended were points of law.

After hearing argument on behalf of the parties, the High Court found that the three points raised by Ms Mpasi were factual and not legal points. They were accordingly dismissed. In addition to the dismissal of the three points, the High Court ordered the removal of Ms Mpasi from office as the executrix of the estate and appointed Mrs Hausiku instead. Dissatisfied with the findings and decision of the High Court, Ms Mpasi appealed against the decision to this court.

On appeal, it was argued on behalf of Ms Mpasi that the High Court had no powers to appoint an executor. It was contended that the court a quo acted contrary to the doctrine of separation of powers by assuming powers entrusted to the Master, the first respondent, to appoint executors. Ms Mpasi further argued that Mrs Hausiku had not

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put sufficient evidence establishing that she was the lawful surviving spouse of the late Chief Sitentu Daniel Mpasi.

On behalf of Mrs Hausiku on the other hand, it was argued that the High Court was justified in interfering with the decision of the Master and in appointing Mrs Hausiku the executrix of the estate. It was further argued that the High Court was correct in finding that she had put up sufficient evidence establishing that she was the lawful surviving spouse of the deceased.

On appeal this court held that while the High Court had powers to remove an executor, to review, to set aside or vary appointments made by the Master in terms of the Administration of Estates Act 66 of 1965, it had no statutory or common law powers to appoint an executor. In light of this finding, the appointment of Ms Mpasi was set aside, and the matter referred back to the Master with the direction to appoint an executor or executrix of the estate of the late Sitentu Daniel Mpasi in accordance with the law.

The court agreed with the findings of the High Court that the allegations contained in the founding papers remained uncontroverted. The court also agreed with the findings of the High Court that Mrs Hausiku had proved the validity and existence of her marriage to the deceased despite the alleged contradictions in some of her evidence. As the appellants had not been entirely successful, each party was ordered to pay her own costs on appeal. The order of costs made in the review application in the High Court was confirmed. Mpasi N.O. v Master of the High Court (SA 86-2016) [2018] NASC (17 August 2018)

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Contract: The appellants instituted an action in the High Court against the respondents seeking an order declaring an agreement between the late Mr GS Neethling (the deceased) and the first respondent illegal and unenforceable. The appellants also sought an order cancelling the usufruct registered over the farm in favour of the first respondent. The farm is registered in the name of the deceased but in terms of the deceased’s last will and testament, it is to be inherited by the second appellant. The appellants claimed that the agreement is simulated and entered into with the intention to circumvent the provisions of the Agricultural (Commercial) Land Reform Act 6 of 1995. The first respondent excepted to the claim on the bases that the second appellant lacked standing to institute the claim and that the claim itself lacked averments necessary to sustain a cause of action.

After hearing argument from the parties, the court a quo upheld the exception on the basis of the two grounds raised by the first respondent. Dissatisfied with the result of their case in the High Court, the appellants appealed to this court against that decision.

On appeal, it was argued on behalf of the appellants that there was no rule of law prohibiting an executrix from entering into an agreement with a legatee to institute declaratory proceedings as co-plaintiffs. The appellants correctly conceded that the law

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authorised the executrix to act on behalf of the estate in all matters concerning the estate, including instituting legal proceedings on behalf of the estate. The appellants further argued that this general rule should not be applied without considering its impact on the overriding principle of access to justice. On the other hand, the first respondent argued that there existed no exceptional circumstances in the case to warrant granting standing to the second appellant. The first respondent on the contrary argued that allowing the second appellant to have locus standi in the circumstances of the case would offend against the well-established principle and set a bad precedent. It was contended on behalf of the first respondent, as it was done in the High Court, that the particulars of claim lacked material facts to sustain a cause of action.

This court accepted that section 13 of the Administration of Estates Act 66 of 1965 authorises only a person who has been granted letters of executorship by the Master of the High Court to liquidate and distribute assets of a deceased’s estate. This provision has not been constitutionally challenged and the court endorses that our law only allows the authorised executor/executrix to administer the affairs of the estate. However, there is no rule or principle which prohibits an executor from joining forces with a legatee to institute legal proceedings to recover a specific asset of the estate.

This court found that it is trite law that only the executor is legally recognised as the person to represent the estate of the deceased and that no legal proceedings can be instituted against a deceased’s estate, or for the recovery of, or laying claim to, any assets belonging to such estate without joining the executor of the estate as a party to the suit. However, this rule is not absolute and there exist exceptions to it.

This court held that the circumstances of the present case are exceptional in that the executrix and the legatee joined forces in the action to assert the legatee’s constitutionally entrenched right of access to court. This is different from a situation where an heir or legatee ‘goes on a frolic of his or her own’ and institutes proceedings to vindicate an asset of the estate without the consent and/or cooperation of the executor. The court held further that it would be in the interests of justice to allow the legatee in the present case to participate in the proceedings and to assist the court in making an informed decision on the matter before it. Additionally, the court held that the rule that only the executor was authorised to liquidate and distribute a deceased’s estate was formulated to protect vulnerable heirs and to avoid duplication of suits by heirs in circumstances where there are conflicts between the executor and heirs.

For policy considerations, particularly in our constitutional dispensation, the right of access to justice should be enforced by allowing members of the society to access courts of law to assert their rights when there is an apprehension of infringement of such rights. The first respondent did not allege or show that it would suffer prejudice should the second appellant be permitted to participate in the proceedings. Hence, the High Court erred in holding that the second appellant lacked standing to participate in the action.

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This court further found that the appellants’ particulars of claim were not execipiable because they had set out the ‘material facts’ necessary to sustain a cause of action. The court was satisfied that the appellants’ particulars of claim had prima facie met the requirements of rule 45(5) of the Rules of the High Court which requires pleadings to contain clear and concise statements of the material facts on which the pleader relies with sufficient particularity to allow the opposite party to reply. The court found that it is unnecessary to make a determination whether the agreement was simulated and entered into in fraudem legis.

The appeal was upheld with costs and the matter remitted to the High Court to be placed under judicial case management process. Brink NO v Erongo All Sure Insurance CC (SA 46-2016, 69-2016) [2018] NASC (22 June 2018)

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Property: The appellant (acting in both his capacities as the sole intestate heir and executor of his father’s estate) brought an application against seven respondents in the High Court. The appellant sought an order declaring a portion of section 35 (a) and the entire section 35(b) of the Close Corporations Act 26 of 1988 (the Act) to be unconstitutional. The appellant further prayed for an order declaring that he is entitled to be the full and unfettered owner of the 49% member’s interest in the third respondent which was held by his late father, as the ab intestatio heir. Furthermore, the appellant sought an order directing the fourth respondent to transfer the 49% member’s interest to him in winding up the deceased estate. Thus, the crux of the matter in the court a quo was essentially, (a) whether a deceased estate has constitutional rights; (b) whether the association agreement is illegal and invalid for being in contravention of the provisions of section 58 (1) (b) of the Agricultural (Commercial) Land Reform Act; and, (c) whether certain portions of section 35 of the Act are unconstitutional.

After hearing argument, the court a quo dismissed the application and held that a deceased estate is not a legal persona and therefore has no legal rights but enjoys statutory protection through the provisions of the Administration of Estates Act of 1965. The court a quo further held that the association agreement which gave the deceased rights of occupation without the ministerial consent, was illegal and void ab initio for contravening section 58 of the Land Reform Act. The judge a quo further reasoned that there was nothing which suggested that section 35 of the Act violated or limited the deceased’s right to dispose property in terms of section 16 of the Namibian Constitution.

The court then held that the upon the deceased’s death, appellant as the intestate heir, was not vested with the dominium of the member’s interest which the deceased held in the Close Corporation. Appellant merely acquired a personal right against the executor for the transfer of such right or equivalent of the value of such right. The court concluded that the appellant as an intestate heir had no constitutional right to inherit a specific asset, such as the deceased’s member’s interest in the instant matter.

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Aggrieved by the order and judgment of the court a quo, the appellant launched an appeal to this court. On appeal, the issues for determination were fundamentally similar. The respondents also noted a counter appeal against a portion of the order of the High Court, but later elected to abandon the counter appeal.

In upholding the order of the court a quo, the Supreme Court found that the deceased knew when he acquired his membership interest that it came with restrictions, one of which was that it could not be freely bequeathed or transferred without the consent of his co-members. His right of disposal in respect of the property (his membership) was acquired with this limitation and hence can only be disposed within the confines of this limitation. Article 16 does not grant one the right to dispose without regard to the existing impediments inherent in the property when one bequeaths the property. Thus, this court found that the court a quo did not err in its findings that there was no breach of Art 16.

This court further found that section 35 of the Act simply ensures that the restriction on the disposal of membership interest is regulated upon death of a member. The deceased never had an absolute right to dispose of his membership during his life and this position is simply maintained. The restriction on disposal of the membership interest was part of the nature of the right acquired and s 35 imposes no further restrictions. It follows that there was no infringement of any right of the deceased, executor or the heir. As the appeal has failed, there were no good reasons why the costs should not follow the result. However, the appellant are also entitled to wasted costs of the abandoned counter appeal. Wyss v Hungamo (SA 60-2016) [2018] NASC (23 April 2018)

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Wills and trusts: A wealthy testator (the late Mr Wolfgang Albrecht Emil Egerer since deceased) had, by contract with his wife, created a trust naming the wife (the first appellant), his sons and the grandchildren as trust capital beneficiaries. The trust nominated him and the first appellant as the first co-trustees. The late Mr Egerer by his last will and testament also nominated first to third respondents as additional trustees to assume the office of trustee after his death, purporting to act in terms of a power contained in the trust deed stating that he could ‘appoint trustees of his choice in his will or during his lifetime to act in the place of a deceased trustee or to fill a vacancy’ arising from resignation or removal by fellow trustees or a trustee becoming disqualified in circumstances stated in the trust deed ‘and appoint additional trustees’.

The late Mr Egerer in his will instituted the trust as heir to the residue of his estate. He also in the will made monetary awards (the special bequests) to certain individuals (third, sixth and seventh respondents) to be paid from the ‘capital’ to be realised after the assets of the trust had been reduced to cash.

The nomination of the trustees and the special bequests were challenged by the appellants in the High Court as being ultra vires the trust deed. The nomination of the trustees was challenged on the ground that the testator exceeded his power under the

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trust deed which only permitted him to nominate one replacement trustee and that although the empowering provision stated that he could appoint ‘trustees’ (in the plural), in context that meant he could appoint one trustee only to fill a vacancy arising either through death, resignation or if a trustee became disqualified or removed in the circumstances set out in clause 5.6 of the trust instrument.

The special bequests were impugned on two alternative grounds. The first, that the persons for whose benefit they were made were not in the employ of the Egerer Family Trust and therefore failed on that ground alone - the testator having stipulated that the benefit for the sixth and seventh respondents as employees only applied if on the date the trust terminated they were still in the employ of the trust; in the case of the third respondent if she survived the date of termination of the trust and on the trust’s termination she is still its trustee. Alternatively, that the late Mr Egerer was not competent under the trust instrument to assign trust capital to persons other than those named as ‘capital beneficiaries’ under it.

The High Court dismissed the relief sought on either ground, with the costs of all parties to the litigation to be borne by the estate of the late Mr Egerer. The appellants appealed the order on the substantive relief while the respondents cross-appealed the order of costs on the ground that the estate was not a party to the proceedings and should not have been condemned in costs.

On appeal, held that the power to appoint trustees in the trust deed was wide enough to empower the testator to appoint additional trustees and not just one trustee to fill a vacancy. Appeal dismissed in that respect. The appeal in respect of the special bequests to third, sixth and seventh respondents allowed on basis that on the ‘vesting date’ all assets of the trust to be reduced to cash would constitute ‘trust capital’ over which the testator no longer retained control and thus could not alienate as he pleased as he had divested himself over it.

As for the cross-appeal, held that although the late Mr Egerer’s estate was not formally cited as a party, its centrality to the dispute was referenced in the founding affidavit of the first appellant a quo, demonstrating that the dispute related to the estate and was the product of the testator’s will. Over all, justice of the case demanded that the costs of all the parties, both in the High Court and on appeal, be paid from the late Mr Egerer’s estate. Egerer v Executrust (Pty) Ltd (SA 42-2016) [2018] NASC (6 February 2018)

MATRIMONIAL LAW

Marital regime: In the court a quo, the appellant instituted divorce proceedings against the respondent wherein the appellant sought a divorce decree, the restitution of conjugal rights failing which, a decree of divorce and orders relating to the custody and maintenance of the minor children. The respondent defended the action and filed a counterclaim seeking similar orders including maintenance in the sum of N$2 500 per

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month in respect of the minor children. Prior to the hearing in the court a quo, parties agreed that the matter would proceed only on the one issue of whether their marriage was in community of property or out of community of property. The parties further agreed that other issues would be determined at a later stage. This position was communicated to the judge a quo.

Despite the agreement, the court a quo not only determined that the parties were married in community of property but also granted a final order of divorce, awarded the custody and control of the minor children to the respondent subject to the appellants reasonable access. The court also ordered the appellant to pay N$2 500 per month per child for child maintenance which maintenance had to increase at the rate of 10% annually. The court further granted an order relating to the division of the estate and a costs order against the appellant.

Disgruntled with the judgment and orders of the court a quo, the appellant timeously noted an appeal against the judgment. However, the appellant failed to comply with the rules of this Court resulting in the appeal being regarded as withdrawn. The appellant thus filed a condonation application for the non-compliance with the rules and sought the reinstatement of the appeal.

This court held, for the condonation application to succeed, the appellant must give a reasonable explanation for the delay and satisfy this court that there are reasonable prospects of success on appeal.

This court found that the court a quo committed irregularities by deciding issues that were not placed before it by agreement by the parties. In the light of irregularities committed by the court a quo it would not serve justice not to reinstate the appeal.

An important question before this court was whether the court a quo was wrong in its finding that the proprietary consequences of the marriage between the parties was that of a marriage in community of property.

This court held that every marriage is presumed to be in community until the contrary is proven. However, a community of profit and loss does not exist where same is excluded by an ante nuptial contract or where s 17(6) of Proclamation 15 of 1928 applies.

Held, an agreement on the matrimonial property regime is valid and enforceable inter partes.

Held, a judge a quo has advantages which this court does not have in that he has the opportunity to hear and see witnesses and observe their demeanour. As such, an appeal will not overrule the finding of facts unless it is clear that the judge was wrong.

This court found that evidence of Pastor Avia corroborated that of the respondent in all material respects rather than the version of the appellant.

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The order of the court a quo is set aside and substituted by an order that the marriage between the parties is a marriage in community of property and of profit and loss. As a result, the appeal being partially successful, the appellant is ordered to pay costs occasioned by the hearing to determine the proprietary consequences of the marriage between the parties and no order is made in respect of the costs on appeal.

In the result, parties are to approach the Registrar of the High Court (Northern Local Division) to request a status hearing from the managing judge to give directions as to the further progress of the matter. Shambwila v Mundjulu (SA 77 - 2016) [2018] NASC (27 July 2018)

POCA

Forfeiture order – section 61 of POCA: This is an appeal against a judgment and order of the High Court, declaring certain property forfeited to the State in terms of the Prevention of Organised Crime Act 29 of 2004 (POCA). The forfeiture order was granted on the basis that the preserved property is the proceeds of unlawful activities in terms of POCA. The property in question consists of moveable assets belonging to the first appellant, and certain business establishments controlled by the second and third appellants.

On appeal, the appellants contended that the court a quo misdirected itself in concluding that the property concerned had been shown to be proceeds of unlawful activities. The appellants also argued that the approach to be adopted in resolving disputes of fact in this matter is that applied in action proceedings. Disputing the respondent’s contention that the property in question is the proceeds of unlawful activities, the appellants contended that the items supplied to the Ministry of Agriculture, Water and Forestry (the Ministry) were not covered in the term tender awarded to an entity called Continental Spares CC (not party to this proceedings). The appellants argued further, that the items contracted by the appellants were granted exemption from the operation of the now repealed Tender Board Act, 1996. The appellants also submitted that the decisions of the officials of the ministry soliciting for quotations and awarding a tender to the first appellant were administrative in nature and as they had not been set aside in proceedings for judicial review, they remained valid.

On appeal held that the grounds raised in support of the appeal were without merit and the appeal was dismissed with costs. The court reasoned that, the allegations in support of the forfeiture order were made in motion proceedings and this being so, the contention by the appellants as to the principles applicable in resolving disputes of fact could not be correct. As to the alleged exemption by the Tender Board, the documentary evidence before court illustrated that the items supplied by the first appellant were not exempted by the legislation regulating the procurement of goods and services on behalf of the government nor was the decision to award the tender made by the body authorised to procure same on behalf of the government. The court further held that the engine types that were supplied by the first appellant to the ministry were

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the same engine types on the annual tender awarded to Continental Spares CC and provision of these similar engines by the first appellant to the ministry, not only undermined the agreement between Continental Spares CC and the government but was also prejudicial to the government in financial terms as the ministry paid more per engine supplied by the first appellant than it could have paid had the engines been supplied by Continental Spares CC.

As to costs, the court held that the unsupported allegations of abuse of process and of engaging in vexatious activities directed at the respondent as a repository of public powers in exercising public functions constituted an abuse and warranted censure. The court confirmed the special costs order made by the High Court against the appellants. New Africa Dimensions CC v Prosecutor-General (SA 22-2016) [2018] NASC (8 March 2018)

PROPERTY LAW

Communal Land – The appellant’s late father was allocated a piece of land in 1985 in the then Caprivi Region (now the Zambezi Region) by the Mafwe Traditional Authority (MTA) on communal land. Following independence on 21 March 1990, all communal lands in Namibia became the property of the State of Namibia by virtue of Art 124 read with Schedule 5(1) of the Namibian Constitution but, in terms of Schedule 5(3) of the Constitution, subject to, amongst other, the ‘rights’, ‘obligations’ and ‘trusts’ existing on or over that land.

Appellant’s father was still alive at the time of independence and continued to live without interference on the land (the land in dispute) allocated to him by the MTA with his family, including the appellant.

In 1995, the Government of Namibia which by certificate of State title owned the communal land of which the land in dispute was part, transferred a surveyed portion of it to the newly created Katima Mulilo Town Council (KTC) in terms of the Local Authorities Act 23 of 1992 (LAA). The appellant’s father was still alive then and continued to live on the land as aforesaid. He died in 2001 with the appellant as only surviving heir who continued to live on the land - according to her as ‘heir’ to the land in terms of Mafwe customary law.

Whilst the appellant was living on the land in dispute, KTC as new registered title holder of the land rented out certain portions of it to fourth to eighth respondents, and subsequently offered to sell those rented portions to fourth to eight respondents in varying amounts.

The appellant issued summons in the High Court (Main Division) claiming that KTC was unjustly enriched (to her prejudice) by unlawfully renting out the land in dispute. She also claimed that, by offering to sell the land, KTC unlawfully ‘expropriated’ her land ‘without just compensation’ ‘at market value’. The appellant relied for those allegations

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on Art 16(1) of the Constitution which guarantees property rights and Art 16(2) which provides that property may only be expropriated upon payment of just compensation. She also relied on s 16(2) of the Communal Land Reform Act 5 of 2002 (CLRA) which states that land may not be removed from a communal land area without just compensation to the persons affected.

The appellant therefore claimed as damages the rental amounts received by KTC as claim one and under claim two the amount for which the lands were offered for sale as being reasonable compensation for the ‘expropriation’.

KTC pleaded that the appellant was not entitled to the relief sought because at independence and also upon transfer of the land to KTC the land in dispute ceased to be communal land and the appellant could not claim any communal land tenure right in that land. KTC, having become the absolute owner of the land could deal with it as owner without any encumbrance thereon.

The High Court agreed with KTC and dismissed the appellant’s claim with costs, holding in the main that in terms of s 15(2) of the CLRA the land in dispute ceased to be communal land and that no communal land right claimed by the appellant could exist therein. The court a quo also held that if the appellant had any right to compensation it would be enforceable only against the Government of Namibia and not KTC and that, in any event, such a claim was prescribed.

On appeal, held that the issue of compensation was not put forward by the parties in their stated case to the court and therefore should not have been decided. Also, held that since prescription was not pleaded by the respondents it could not have been invoked against the appellant.

Held further that Schedule 5(3) of the Constitution creates a sui generis right in favour of the appellant and those similarly situated over communal lands succeeded to by the Government of Namibia and such right continued to exist even when transferred to a local authority such as KTC.

In rejecting the respondents’ argument to the contrary, held that such right did not need to be registered in terms of s 16 of the Deeds Registries Act 47 of 1937 to be enforceable.

Also, held that a right created by Schedule 5(3) of the Constitution did not necessarily have to be vindicated in terms of Art 16(2) of the Constitution because the framers of the Constitution must have intended a remedy to be fashioned by the courts to give effect to the right created by the schedule. In other words, where there is a right, there must be a remedy.

Appeal allowed with costs in favour of the appellant and matter remitted to the High Court for the adjudication of the appellant’s claim of unjust enrichment and

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compensation. Anges Kahimbi Kashela v Katima Mulilo Town Council and 7 Others (SA15-2017) [2018] NASC (16 November 2018)

REVIEWS

Review: This appeal brought by Arandis Power (Pty) Ltd concerns the review of a multibillion dollar tender award for the erection of a power plant by the power parastatal, Namibia Power Corporation (Pty) Ltd (fourth respondent). The tender was awarded to Xaris Energy (Pty) Ltd (fifth respondent). The review application in the court a quo was dismissed with costs on the basis that the appellant had unduly delayed in bringing the review application.

A series of events occurred before the appellants launched the review application in the High Court on 3 February 2016. After the tender bidding process had run its course, NamPower informed appellant (Arandis) on 21 October 2014 that it had been selected as the reserve bidder for the tender whilst Xaris was informed that it has been appointed as the preferred bidder on 24 October 2014. On 30 March 2015, NamPower resolved to award the tender to Xaris (Arandis was not informed of this decision, it was however posted on NamPower’s website on 15 April 2015). In the meantime, on 13 April 2015, the Minister of Mines and Energy ‘directed’ NamPower in writing to postpone the award of the contract. NamPower complied with this directive. On 15 May 2015, the putting on hold of the award was reported by the media and on 29 June 2015, the President of Namibia confirmed this in a media release. On 8 July 2015, Arandis requested a meeting with the Minister of Mines and Energy. This meeting took place on 17 August 2015 and according to Arandis, the Minister confirmed that the tender has been put on hold and the decision regarding the tender no longer vested with NamPower, but with the Office of the President. On 22 December 2015, the Minister announced in a media release that: ‘The Government has deemed it fit to announce that NamPower shall be empowered to proceed negotiating with Xaris Energy (Pty) Ltd on the 200 MW’ (power plant) subject to certain conditions. Appellant only became aware of the press release when it opened its offices on 18 January 2016. On the same day, Arandis addressed letters to the Minister, the Attorney-General and NamPower questioning the decision set out in the press release and the tender evaluation process. Shortly afterwards, Arandis’ Managing Director met with senior advisors in the President’s office on 26 January 2018 and also consulted with its legal practitioner on the same date. On 28 January 2016, the Minister reverted that the matter had been referred to the Attorney-General. Appellant prepared a review application which was launched on 3 February 2016 in which urgent interim relief was also sought and set down for 12 February 2016. The review application was heard on 7 and 8 June 2016. The court a quo on 7 July 2016 delivered its judgment, dismissing the application with costs, upholding the opposing respondents’ point that Arandis had delayed unduly in bringing its review – for some 16 months after the decision was taken. The court a quo found that Arandis had been aware of the preferred bidder decision on 21 October 2014 already and ought to have challenged that decision within a reasonable time after that. The court a quo found that the launching of the application on 3 February 2016 amounted to an unreasonable day. The

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court further found that Arandis had failed to place sufficient facts before the court to condone its delay.

During the course of the review proceedings, NamPower made certain concessions, namely the tender award to Xaris was made outside the period of tender validity and that Xaris’s tender did not comply with the tender requirements. When making these concessions NamPower withdrew its opposition and indicated that it would abide the decision of the court. This appeal is only opposed by Xaris.

Argument on appeal revolved around the issues of leave to appeal, mootness, unreasonable delay, the awarding of the tender outside the validity period, non-compliance with the tender requirements and the remedy.

Leave to appeal – Xaris took the point that the order of the court a quo is of an interlocutory nature because the court only dealt with the point of delay which entailed a condonation application, consequently making it interlocutory in nature and that leave to appeal was required. The principles in Di Savino finding application, this court concluded that even though the delay point was raised as a preliminary point, the order of the court a quo was not interlocutory in nature because it finally disposed of the review application.

Held, the review application was dismissed with costs and finally disposed of. The successful invocation of the delay rule thus constitutes a defence which finally disposes of a review – as would a preliminary point that the impugned decision does not constitute administrative action and is thus not reviewable.

Mootness – Xaris referred to recent correspondence in which it appeared that the tender had been cancelled by NamPower. Xaris however intended to enforce their award. The validity of the award is the subject of this appeal. That means that the appeal is by no means moot. There is thus a live and existing dispute between the parties to this appeal concerning the validity of the tender award which is the issue raised in this appeal.

Unreasonable delay – the court a quo decided that NamPower was functus officio once it made the decision of preferred and reserved bidder status and that was when the delay clock started. Appellant argued that as it is clearly contained in the RFP terms of the tender that the determination of these statuses on 21 and 24 October 2014 did not constitute acceptance of tender or award of the tender to Xaris and that NamPower could discontinue negotiations with Xaris and proceed with Arandis at any stage. The tender was awarded on 30 March 2015 and posted on its website on 15 April 2015, it was later put on hold pending an investigation by the Cabinet until 22 December 2015.

Held, that it is well settled that the question as to whether an applicant has unduly delayed instituting review proceedings entails a dual enquiry. The first is an objective one and concerns whether the time taken to institute proceedings was on the facts unreasonable. That enquiry is factual and does not involve the exercise of a discretion.

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It entails a factual finding and a value judgment based on those facts. If the court finds that the delay is unreasonable, the second enquiry arises and is whether a court would in the exercise of its discretion grant condonation for the unreasonable delay. As has been repeatedly stated, each case is to be determined on its own facts as to whether the delay is unreasonable or not.

Held, the court a quo’s decision concerning preferred and reserved bidder status being sufficient to trigger the appellant’s duty to institute a review was incorrect.

It is further held that, it is necessary to assess the reasonableness of the delay. In this case, the decision to award the tender was made on 30 March 2015 (which gave rise to the duty to institute a review of that decision), however this decision only came to the knowledge of the appellant on 15 April 2015, and was followed by a series of events involving a cabinet investigation and putting the tender on hold until the announcement of 22 December 2015. It was not reasonable for the appellant to await the outcome of the cabinet or ministerial investigation before instituting a review.

Held further that, only after the investigation was completed and the Minister announcing that he had instructed that the tender would go ahead that the appellant was required to institute its review within a reasonable time, which the court found that the appellant did on 3 February 2016 soon after the announcement on 22 December 2015. The approach in Keya in the High Court and Radebe find application.

Remedy – respondent argued in reference to the decision in SAPA that, if this court finds that the court a quo erred in its finding the appropriate remedy would be is to refer the matter back to the High Court. Appellant contended that this court could consider the merits and set aside the tender award (appellant essentially confined itself to raising two review grounds on appeal as to why the award should be set aside, namely that the tender was awarded outside the validity period and secondly that Xaris’ bid did not comply with the tender requirements).

Awarding of the tender outside the validity period – The NamPower’s Tender and Compliance Policy governs compliance with tender requirements. Clause 14.8 provided that ‘Tenders shall be valid for the period stipulated in the specific terms of reference of the Tender from the closing date of the Tender to allow NamPower adequate time to finalise the Tender award.’ The further sub-clauses of clause 14 permit an extension of the tender validity period on good cause shown to the satisfaction of the Tender Board. The RFP in this case provided that tender proposals are valid for a period of 6 months. The tender closing date was set at 12 September 2014. This meant that tender proposals were only valid until 11 March 2015, unless the tender validity period were extended. No extension occurred and the NamPower board made its decision to award the tender on 30 March 2015 – after the validity period had expired and against clause 33 of the policy which expressly requires NamPower to award tenders within the validity period.

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Held that this policy was applicable to NamPower’s procurement and tendering process, and is compulsory to all NamPower employees as emphasised by clause 11 of the NamPower’s Tender and Procurement Policy.

Held that, the award of the tender to Xaris outside the validity period, in the absence of any extension, rendered it invalid.

It is further held that, given the invalidity of the award on this ground, it was not necessary for the count to consider whether the award was invalid by reason of Xaris not complying with the tender requirement relating to the capacity of the proposed power plant.

The appeal thus accordingly succeeds. Arandis Power (PTY) Ltd v President of the Republic of Namibia (SA 40 - 2016) [2018] NASC (16 March 2018)

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Review: The first respondent lodged an urgent application in the court a quo to, amongst other things, stop a sale in execution of immovable property scheduled by the applicant for 9 June 2016. The matter became opposed, but due to time constraints on the applicant in filing papers, the parties were restricted to arguing the issue of urgency only before the presiding judge.

After hearing arguments on the issue of urgency, the presiding judge ordered a stay in execution and granted the parties an opportunity to exchange pleadings and resume on 20 July 2016 for a case management conference. The reasons for the learned judge’s order was premised on the principle of equity.

Aggrieved by the order of the court a quo, the applicant lodged an application to this court seeking to review and set aside the proceedings of the court a quo in terms of section 16 of the Supreme Court Act. The application remained unopposed and the grounds for review was mainly based on the fact that the presiding judge in the court a quo gave a ruling on the merits of the matter, while arguments before him was restricted to the issue of urgency only.

Held, that an irregularity was committed by the learned judge in the court a quo when he failed to make a decision whether the matter was urgent or not, and proceeded to grant relief on an equitable basis.

Held, that the learned judge departed from the basic principle of Rule 73(4) of the Rules of the High Court and pronounced himself on an issue that was not before him thereby rendering the proceedings reviewable.

Held further on the issue of costs, that due to no opposition, there is no order as to costs.

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The order in the court a quo is reviewed and set aside. Bank Windhoek Limited v Mofuka (SCR 1-2016) [2018] NASC (3 April 2018)

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Review – additional witness statements: The applicants brought an application under section 16 of the Supreme Court Act 15 of 1990 seeking an order reviewing and setting aside a decision of the High Court made on 5 December 2016. The application stems from an action instituted by the applicants (plaintiffs) against the respondents (defendants) for damages as a result of a motor vehicle collision.

The matter was dealt with in the judicial case management process and after numerous postponements, it proceeded to trial. At the commencement of the trial, the respondents requested an inspection in loco of the accident scene which was granted. After the inspection in loco the parties produced a report which was by agreement handed in at court. The applicants sought leave to file supplementary witness statements in respect of two witnesses they intended calling at trial. The managing judge granted the request and postponed the matter.

The applicants in addition to filing the said supplementary witness statements filed the statement of an additional witness, a further witness statement of first applicant, a supplementary note relating to video footage and a rule 36 (1) notice relating to the introduction of video material. The respondents objected to the introduction of these additional witness statements and the video material.

When the matter was called for status hearing on 5 December 2016, the managing judge requested the parties to make submissions in respect of the contentious additional witness statements and the rule 36 notice. After hearing argument on behalf the parties, the court held that the additional witness statements, supplementary reports and a notice purporting to introduce a video clip would not be allowed as evidence during the trial.

Dissatisfied with this decision, the applicants requested this court to invoke its review jurisdiction so as to review and set aside the decision of the court a quo. In terms of s 16 of the Supreme Court Act, this court has jurisdiction to review lower courts’ decisions and those of administrative bodies or tribunals.

The applicants contend that their fundamental right to a just and fair hearing was violated by the court on 5 December 2016. The applicants claim that the managing judge ought not to have proceeded on that date with the hearing on the admissibility of the additional witness statements and the notice purporting to introduce a video clip as they were not given sufficient time to prepare and make submissions in that respect.

The court is satisfied that an irregularity had occurred in those proceedings justifying the exercise of this court’s review jurisdiction as contemplated in s 16 of the Supreme Court Act. The court is further satisfied that the decision of the court a quo constitutes an

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irregularity in the proceedings and thus reviewed and set it aside. However, the court after considering that the case had dragged on with one postponement after the other, and as it was in as good a position as the trial court to determine the issues, dealt with the issues relating to the additional witness statements, reports and video clip and refused leave to the applicants to file them.

The court remits the matter to the court a quo in order to determine the way forward in finalising the matter. No order as to costs is made in respect to the review application. Rainier Arangies v Unitrans Namibia (Pty) Ltd (SCR 1 - 2018) [2018] NASC (27 July 2018)

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