2016 HIGH COURT

CIVIL JUDGMENT
INDEX
THIS INDEX INCLUDES BOTH REPORTABLE AND NON
REPORTABLE HIGH COURT CIVIL JUDGMENTS OF THE HIGH
COURT, 2016

Compiled By: Mrs Lotta. N. Ambunda-Nashilundo

Chief Legal Officer: High Court, Office of the Judiciary

Contents
ABSOLUTION FROM THE INSTANCE.................................................................................................8
ADMINISTRATIVE LAW..........................................................................................................................9
ADMINISTRATION OF ESTATES.......................................................................................................11
APPEAL...................................................................................................................................................12
COMMERCIAL LAW..............................................................................................................................13
COMPANY LAW.....................................................................................................................................14
CONDONATION.....................................................................................................................................16
CONSTITUTIONAL LAW.......................................................................................................................17
CONTEMPT OF COURT.......................................................................................................................19
CONTRACT LAW...................................................................................................................................20
COSTS.....................................................................................................................................................25
DEFAMATION.........................................................................................................................................28
DELICT.....................................................................................................................................................28
EXEPTION...............................................................................................................................................29
INTERPRETATION OF STATUTES....................................................................................................32
INTERPLEADER....................................................................................................................................36
JOINDER.................................................................................................................................................36
LAW ON EVIDENCE..............................................................................................................................37
LEGAL ETHICS......................................................................................................................................38
LOCUS STANDI.....................................................................................................................................39
MATRIMONIAL.......................................................................................................................................41
PLEADINGS............................................................................................................................................42
POCA.......................................................................................................................................................45
PRACTICE AND PROCEDURE...........................................................................................................46
PRESCRIPTION.....................................................................................................................................50
PROLIFERATION OF ACTIONS..........................................................................................................51
PROPERTY LAW...................................................................................................................................52
RECUSAL................................................................................................................................................54
RESCISSION OF JUDGMENT/ORDER..............................................................................................56

1
RES JUDICATA......................................................................................................................................58
REVIEWS................................................................................................................................................58
RULES OF COURT................................................................................................................................62
SPOLIATION...........................................................................................................................................65
SUMMARY JUDGMENT.......................................................................................................................68
URGENT APPLICATIONS....................................................................................................................68
CASE SUMMARIES.....................................................................................................................................72
Alfred N.O v Haikali (I 63-2012) [2016] NAHCNLD 47 (30 June 2016).......................................72
Amukugo v Town Council of Ondangwa (A 01-2016) [2016] NAHCNLD 56 (07 July 2016)....72
Amupanda v Swapo Party of Namibia (A 215/2015) [2016] NAHCMD 126 (22 April 2016).....72
Angula v Minister of Environment and Tourism (I 76/2015) [2016] NAHCMD 371 (23
November 2016).................................................................................................................................73
Anhui Foreign Economic Construction v Minister of Works and Transport (A21-2016)[2016]
NAHCMD265 (9 September 2016)...................................................................................................73
Arandis Lubrication Services CC v Erongo Industrial Supply Services CC (I 3616-2014) [2016]
NAHCMD 253 (7 September 2016)..................................................................................................75
Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A 26-2016) [2016]
NAHCMD 194 (7 July 2016)..............................................................................................................75
Ayoub v Transnamib Holdings Limited & Another (A 34-2016) [2016] NAHCMD 158 (3 June
2016)....................................................................................................................................................76
BV Investment 264 cc & Another v Louw (I 1428/2016) [2016] NAHCMD 233 (12 August
2016)....................................................................................................................................................77
BV Investment Six Hundred and Nine CC v Kamati (I 1074-2013) [2016] NAHCMD 216 (22
July 2016)............................................................................................................................................78
Bednarek & Others v Hannam & Another (I 2615/2013) [2016] NAHCMD 12 (03 February
2016)....................................................................................................................................................78
Beukes & Another v The President of the Republic of Namibia & Other (A 427/2013) [2016]
NAHCMD 77 (16 March 2016)..........................................................................................................79
Brink & Another v Erongo All Sure Insurance & Others (I 3249/2015) [2016] NAHCMD 200 (8
July 2016)............................................................................................................................................79
Buchholz v Ewert (A 140/2011) [2016] NAHCMD 37 (25 February 2016)..................................80
Chico/Octagon Joint Venture Africa v Roads Authority (HC-MD-CIV-MOT-GEN-2016/00210)
[2016] NAHCMD 385 (8 December 2016).......................................................................................81
China Habour Engineering Company Limited // Erongo Quarry and Civil works (PTY) Ltd.
(A355/2015) [2015] NAHCMD 18 (10 January 2016)....................................................................81

2
Christian ta Hope Financial Services (A 35-2013) [2016] NAHCMD 188 (30 June 2016)........82
Cirilo v Ian Copley t/a Welding Works & Renovations (I 11042014) [2016] NAHCMD 160 (6
June 2016)...........................................................................................................................................83
Cloete v Haitengu & Another (I 1611/2015) [2016] NAHCMD 178 (22 June 2016)...................83
Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of Windhoek (A
421/2013) [2016) NAHCMD 45 (29 February 2016)......................................................................84
Demtschuk v Rentokil Initial 1927 PLC (A 332/2014) [2016] NAHCMD 348 (10 November
2016)....................................................................................................................................................85
Donatus v Muhamederahimvo & Others; Donatus v Ministry of Health and Social Services (I
2304/2013; I 1573/2013) [2016] NAHCMD 49 (2 March 2016)....................................................85
Dörgeloh v Dörgeloh (I 2662/2014) [2016) NAHCMD 131 (28 April 2016)................................86
Du Plessis v Akuenje and Another (I 3505/2012) [2016] NAHCMD 295 (30 September 2016).
...............................................................................................................................................................86
Dreyer v Dreyer (I 3883/2014) [2016) NAHCMD 115 (21 April 2016).........................................87
Eckleben v Mobile Telecommunications Limited (I 920/2012) [2016] NAHCMD 46 (09 March
2016).....................................................................................................................................................87
Egerer v Executrust (Pty) Ltd (A248-2015) [2016] NAHCMD 221 (22 July 2016).....................89
Electoral Commission of Namibia v Registrar of the High Court of Namibia (A 322/2015)
[2016] NAHCMD 293 (29 September 2016)...................................................................................90
Elias Andreas v Namutenya (I 130/2014) [2016] NAHCNLD 08 (12 February 2016)...............90
Erastus M. Naango v Petrus Kalekela (A 172/2014) [2016] NAHCMD 383 (06 December
2016).....................................................................................................................................................90
Epango Fishing (pty) Ltd vs Erongo Marine Enterprises (Pty) Ltd (I 2582/2015) [2016]
NAHCMD 324 (21 October 2016).....................................................................................................92
FIS Life Assurance Company Limited // The Registrar of Long-Term Insurance and Seven
Others (A326/2015) [2016] NAHCMD 129 (20 April 2016)...........................................................93
Fire Tech Systems CC v Namibia Airports Company Limited (A 330-2014) [2016] NAHCMD
220 (22 July 2016)..............................................................................................................................94
Former Members of the Rössing Pension Fund v Rössing Pension Fund & Other (A
234/2014) [2016] NAHCMD 155 (1 June 2016).............................................................................95
Gaya v Rittmann N.O (A 78/2015) [2016] NAHCMD 388 (12 December 2016)........................95
Global Earthmoving CC v Glenn Investments CC (I 1391-2015) [2016] NAHCMD 245 (31
August 2016).......................................................................................................................................97
Government of the Republic of Namibia v Matjila (A 351/2015) [2016] NAHCMD 63 (8 March
2016)....................................................................................................................................................97

3
Greencoal (Namibia) (Pty) Ltd v Laicatti Trading Capital Inc (A 273-2014) [2016] NAHCMD 1
(15 January 2016)...............................................................................................................................98
Hamilton and Partners v Steenkamp & Others (I 2892-2015) [2016] NAHCMD 314 (13
October 2016).....................................................................................................................................99
Hatutala v Hatutala (A 82-2016) [2016] NAHCMD 203 (14 July 2016).....................................100
Hayley Fay v Regal Real Estate (I 2714-2015) [2016] NAHCMD 202 (12 July 2016)............100
Highland Farming CC v Casper Hendrik Rossouw (A 57/2015) [2016] NAHCMD 302 (04
October 2016.....................................................................................................................................101
Hilifilwa v Mweshixwa (I 3418/2013) [2016] NAHCMD 166 (10 June 2016).............................102
Iginasius Andreas Mwira v Hildergard Ermel Mwira (Born Gaeses) (I 2354/2011) [2016]
NAHCMD 299 (28 October 2016....................................................................................................103
I-Chuan Kuo v Sphia Investments CC & Another (I 2543/2015) [2015] NAHCMD 341 (10
November 2016)...............................................................................................................................103
JB Cooling and Refrigeration CC v Dean Jacques Willemse t/a Windhoek Armature Winding
and Others (A 76/2015) [2016] NAHCMD 8 (20 January 2016).................................................104
JB Cooling and Refrigeration CC v Stefanutti Stocks Construction (Namibia) (Pty) Ltd (A
122/2016) [2016] NAHCMD 135 (29 April 2016)..........................................................................106
Josephat Boois V Assistant Commissioner Nangolo & 3 Others (HC-MD-CIV-MOT-GEN-
2016/00312)[2016] NAHCMD 369 (18 November 2016)............................................................106
Kai-Uwe Denker // Ameib Rhino Sanctuary (Pty) Ltd and 4 Others (A 41/2014) [2016]
NAHCMD 82 (11 March 2016)........................................................................................................107
Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and
Resettlement (A 21/2015) [2016] NAHCMD 118 (21 April 2016)...............................................107
Kambazembi Guest Farm CC ta Waterberg Wilderness v The Minister of Land Reform (A
184-2016) [2016] NAHCMD 193 (7 July 2016)............................................................................108
Kambazembi Guest Farm CC T/A Waterberg Wildnerness v The Minister of Land Reform and
5 Others (A197/2015) [2016] NAHCMD 366 (17 November 2016)............................................108
Kamwi v Siluzungila (A 347/2015) [2016] NAHCMD 273 (19 September 2016)......................113
Kandombo v The Minister of Land Reform (A 352/2015) [2016] NAHCMD 3 (18 January
2016)..................................................................................................................................................113
Katjivena v Prime Minister of the Republic of Namibia (A 265/2014) [2016] NAHCMD 146 (18
May 2016)..........................................................................................................................................114
Kaura v Taxing Master of the High Court (A 121/2015) [2016] NAHCMD 138 (10 May 2016).
.............................................................................................................................................................115
Kaune v Registrar of Deeds (I3124-2012) [2016] NAHCMD 241 (22 August 2016)...............116

4
Kayla Trading Enterprises CC v Okavu Renaissance Investments CC (I 41-2015) [2016]
NAHCNLD 55 (30 June 2016).........................................................................................................117
Ken Investments Close Corporation v Rouwans Investments CC (A 297/2015) [2016]
NAHCMD 51 (3 March 2016)..........................................................................................................117
Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (Registration Number:
2010/0314) (A 273/2014) [2016] NAHCMD 31 (22 February 2016)..........................................118
Leopard Tours Car and Camping Hire CC v Dannecker (I 2909-2006) [2016] NAHCMD 260 (9
September 2016)..............................................................................................................................119
Ludeke v Andries Louw T/A Andries Louw Developers (I 1359/2011) [2016] NAHCMD 177 (17
June 2016).........................................................................................................................................119
Ludik v Keeve & Another (A 316/2015) [2016] NAHCMD 4 (20 January 2016).......................120
Maletzky v The President of the Republic of Namibia (A 176/2014) [2016] NAHCMD 50 (3
March 2016)......................................................................................................................................121
Maletzky // Kavetu and Others (A 59/2016) [2016] NAHCMD 57 (4 March 2016)...................122
Martucci & Others v Colcellini & Another (I 2295/2015) [2016] NAHCMD 149 (18 May 2016).
.............................................................................................................................................................123
Martucci v Mountain View Game Lodge (Pty) Ltd (I 2295-2015) [2016] NAHCMD 217 (22 July
2016)..................................................................................................................................................124
Mashozhera v The Chairperson of the Immigration Selection Board (A 207/2015) [2016]
NAHCMD 38 (25 February 2016)...................................................................................................124
Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise Operations
(Pty) Ltd and two others (A 171/2013) [2016] NAHCMD 329 (28 October 2016)....................125
Minister of Land and Resettlement v Dirk Johannes Weidts & Another (I 1852/2007) [2016]
NAHCMD 7 (22 January 2016).......................................................................................................126
Nakale v The Minister of Justice (A 331/2012) [2016] NAHCMD 98 (7 April 2016).................126
Namibia Farm Workers Union (NAFWU) v Angula (A 290-2015) [2016] NAHCMD 252 (8
September 2016)..............................................................................................................................127
Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia
Institutions Supervisory Authority and Registrar of Stock Exchanges (HC-MD-CIV-MOT-GEN-
2016/00233) [2016] NAHCMD 365 (17 November 2016)...........................................................128
Namibia Tantalum Mining (Pty) Ltd v The Minister of Mines and Energy (A 310/2014) [2016]
NAHCMD 17 (11 February 2016)...................................................................................................128
Namibian Association of Medical Aid Funds v Namibian Competition Commission (A
348/2014) [2016] NAHCMD 80 (17 March 2016).........................................................................129
New Era Investment (PTY) LTD v Ferusa Capital Financing Partners cc & 4 Others (HC-MD-
CIV-MOT-GEN-2016/00342) [2016] NAHCMD 380 (02 December 2016)................................129

5
Nghihepavali v Ministry of Agriculture Water and Forestry (I 26-2014) [2016] NAHCNLD 51
(30 June 2016)..................................................................................................................................130
Nowases v Evangelical Lutheran Church (HC-MD-CIV-MOT-GEN-2016-00221) [2016]
NAHCMD 231 (9 August 2016).......................................................................................................131
Oceans 102 Investments CC v Strauss Group Construction CC & Another (A 119/2016)
[2016] NAHCMD 274 (19 September 2016).................................................................................131
Offshore Development Company v Deloitte and Touche (I 1111-2006) [2016] NAHCMD 191
(30 June 2016...................................................................................................................................132
Okorusu Fluorspar (Pty) Ltd & Another v Tanaka Trading CC and Another (I 2055/2013)
[2016] NAHCMD 16 (05 February 2016).......................................................................................133
Olenga v Spranger (I 3826/2011) [2016] NAHCMD 330 (28 October 2016)............................133
Ovambanderu Traditional Authority v Nguvauva (A 172-2016) [2016] NAHCMD 235 (18
August 2016).....................................................................................................................................134
Peter v Jacobs (A 100/2013) [2016] NAHCMD 11 (28 January 2016)......................................135
Premier Construction CC v Lombardt NO (A 282/2015) [2016] NAHCMD 322 (20 October
2016)..................................................................................................................................................135
Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016] NAHCMD 104
(8 April 2016).....................................................................................................................................136
Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016] NAHCMD 311
(7 October 2016)...............................................................................................................................136
Ramirez v Frans (I 933/2013) [2016] NAHCM 376 (25 November 2016).................................137
Roads Authority v Kuchling (A 188/2015) [2016] NAHCMD 32 (22 February 2016)...............138
Road Contractor Company Limited v Jorge (I 3287/2014) [2016] NAHCMD 296 (30
September 2016)..............................................................................................................................139
Selex Sistemi Integrati SpA v Chairperson of the Tender Board of Namibia (A 69-2009) [2016]
NAHCMD 228 (8 August 2016).......................................................................................................140
Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard (A 276/2014) [2016]
NAHCMD 117 (21 April 2016).........................................................................................................141
Shitiveni v National Housing Enterprise Ltd (A 158/2015) [2016] NAHCMD 150 (19 May
2016)..................................................................................................................................................141
Shekunyenge v Principal of St. Joseph’s Roman Catholic High School Dobra (HC-MD-CIV-
MOT-GEN-2016/00269) [2016] NAHCMD 308 (6 October 2016)..............................................142
Skorpion Mining Company (Pty) Ltd v Road Fund Administration (I 2063-2014) [2016]
NAHCMD 201 (12 July 2016)..........................................................................................................142
South African Poultry Association & 5 Others v The Minister of Trade and Industry and 3
Others (A 326/2015) [2016] NAHCMD 199 (8 July 2016)...........................................................143

6
Telecom Namibia Limited v Communications Regulatory Authority of Namibia (A 448/2013)
[2016] NAHCMD 292 (29 September 2016).................................................................................144
Total Namibia (Pty) Ltd v OBM Engineering & Petroleum Distributors CC (I 3625/2007) [2016]
NAHCMD 169 (14 June 2016)........................................................................................................145
The Council of Itireleng Village Community & Another v Felix Madi & 27 Others (A 201/2015)
[2016] NAHCMD 114 (19 April 2016).............................................................................................145
The Deputy-Sheriff Windhoek v Nedbank Limited (I 3891/2011) [2016] NAHCMD 342 (4
November 2016)...............................................................................................................................148
The Master of the High Court of Namibia v Willem George Titus (A 216/2015) [2016]
NAHCMD 384 (08 December 2016)..............................................................................................149
The Njagna Conservancy Committee v The Minister of Lands and Resettlement (A 276-2013)
[2016] NAHCMD 250 (18 August 2016)........................................................................................150
The Prosecutor-General // New Africa Dimensions CC And Two others (POCA 10/2012)
[2016] NAHCMD 123 (20 April 2016).............................................................................................151
Thomas Wyss vs Leevi Hungamo & 6 Others (A 189/2015) [2016] NAHCMD 264 (13
September 2016)..............................................................................................................................153
Tjihero v Kauari (I 2845-2012) [2016] NAHCMD 187 (29 June 2016).......................................155
Taljaard v Onguma Game Ranch (PTY) LTD (A 89/2015) [2016] NAHCMD 333 (28 October
2016)...................................................................................................................................................156
Trustco Group International (Pty) Ltd v Atlanta Cinema Capital CC & Others (I 370/2012)
[2016] NAHCMD 297. (30 September 2016)................................................................................156
Tungeni Africa Investments (Pty) Ltd v Namibia Water Ski Club & Others (I 2735/2015) [2016]
NAHCMD 232 (12 August 2016)....................................................................................................157
Uvanga v Steenkamp & Others (I 1968/2014) [2016] NAHCMD 378 (2 December 2016).....159
Vita Royal House v The Minister of Land Reform & 10 Others (A 109/2015) [2016] NAHCMD
339 (7 November 2016)...................................................................................................................159
Van Niekerk v Auto Tech Truck & Coach CC & Another (A19/2015) [2016] NAHCNLD 31 (12
May 2016)..........................................................................................................................................160
Van Schalkwyk v Dias (I 1048-2011) [2016] NAHCMD 226 (29 July 2016).............................161
Van Straten NO v Desert Fruit (Pty) Ltd (A 38-2014 and A 91-2015) [2016] NAHCMD 224 (28
July 2016)..........................................................................................................................................162
Van Straten v Bekker (I 6056-2014) [2016] NAHCMD 243 (25 August 2016).........................162
Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7 October 2016).............163
Virtual Technology Services (Pty) Ltd v The Chairperson of the Namibia Student Financial
Association Fund Board & Another (A 56/2016) [2016] NAHCMD 72 (11 March 2016).........164
Viviers v Ireland & Another (I 3757/2012) [2014] NAHCMD 148 (18 May 2016).....................165

7
Wildlife Ranching Namibia v Minister of Environment and Tourism (A 86/2016) [2016]
NAHCMD 110 (13 April 2016).........................................................................................................165
Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia (A 224/2015) [2016] NAHCMD 97 (7
April 2016).........................................................................................................................................166
ZZZ Trading Enterprises CC v Yanica Constructions CC (A 115/2016) [2016] NAHCMD 152
(27 May 2016)...................................................................................................................................166
Zamnam Exclusive Furniture CC v Josef Stephanus Lewis and Cornelia Catharina The
Trustees for the time being of The Lewies Family Trust (I 4268/2010) [2016] NAHCMD 298
(30 September 2016).......................................................................................................................167

8
ABSOLUTION FROM THE INSTANCE

PRACTICE – Application for absolution from the instance – Applicable principles

revisited. Bednarek & Others v Hannam & Another (I 2615/2013) [2016] NAHCMD 12
(03 February 2016); Neves v Arangies (I 3785-2012] [2016] NAHCMD 271 (05 September
2016); Andreas Angula v Minister of Environment and Tourism (I 76/2015) [2016]
NAHCMD 371 (23 November 2016).

CIVIL PROCEDURE – Test for absolution from the instance revisited – Special plea of
prescription considered – Special plea of proliferation of actions considered. Okorusu
Fluorspar (Pty) Ltd & Another v Tanaka Trading CC and Another (I 2055/2013) [2016]
NAHCMD 16 (05 February 2016).

CIVIL PROCEDURE – Application for absolution from the instance – LAW OF

CONTRACT – Consensus ad idem – proof of oral contract and requirements for locatio
condictio operis. The plaintiff claimed an amount of N$ 104, 086.82 allegedly due from
the defendant arising out of an oral contract for provision of services. The law applicable
to applications for absolution from the instance visited and held that – the court should
not substitute its decision for that of a reasonable person; that an application from the
instance can be granted where the plaintiff fails to prove all the elements of the claim or
where the evidence led is so unreliable, vacillating or of so romancing a character that
no court acting reasonably, may accept it; that applications for absolution should not be
granted lightly, unless there are compelling reasons for doing so. Held – that the
contract between the parties was not one for purchase and sale of goods but one of
provision of services, namely, the locatio condictio operis. Held further – that on the
balance, the plaintiff had met the threshold requirements for the refusal of the
application for absolution from the instance. Application dismissed with costs. Soltec CC
v Swakopmund Super Spar (I 160-2015) [2016] NAHCMD 159 (3 June 2016).

Action – Absolution from the instance – In a claim for specific performance based on a
written deed of sale which has a suspensive condition, plaintiff required to present some
evidence on the basis of which a court, applying its mind reasonably to such evidence
could or might (not should or ought to) find for the plaintiff. Plaintiff further having failed
to set out material facts on which his claim for refund of the “purchase price” is based,
absolution from the instance granted to the defendants with costs. Van Schalkwyk v
Dias (I 1048-2011) [2016] NAHCMD 226 (29 July 2016)

Trial - Absolution from the instance at close of plaintiff's case-farmer who progressed to
become a commercial farmer, died without leaving a will. His estate included, livestock,

9
cash, immovable property and motor vehicles. Kaune v Registrar of Deeds (I3124-2012)
[2016] NAHCMD 241 (22 August 2016).

CIVIL PROCEDURE – Application for absolution from the instance – principles

governing the application – whether the court has to consider the strength and quality of
the plaintiff’s evidence at this stage. Olenga v Spranger (I 3826/2011) [2016] NAHCMD
330 (28 October 2016).

PRACTICE - Application for absolution from the instance – Rule 64 of the High Court
Rules (tender) – Defendant did not tender mora interest and costs as plaintiff’s claim of
payment was disclosed on a certain date – Mora interest becomes due and payable
from date of service of summons - Once a defendant admits that certain amounts are
due and payable as of a certain date, mora interest will accrue ex lege from the date
these amounts became due and payable. Wildlife Assignment International (pty) Ltd vs
Herbert Wolfgang Henle t/a Namib Game Services (I 3249/2014) [2016] NAHCMD 327
(26 October 2016)

ADMINISTRATIVE LAW

Administrative law - Decisions of functionary - Legality of - Appeal Board refusing to

condone application for late filing of notice of appeal. Having regard to provisions
regulation 14 of the Appeals Regulations promulgated in terms of s 35 of the Namibia
Financial Institutions Supervisory Authority Act, 2001 - Appeal Board having no power
to condone late filling of notice of appeal - Power to condone late filling of notice of
appeal vesting in Chairperson of the Appeal Board - Appeal Board acting ultra vires.
Administrative law - Decision of functionary - Powers of functionary - Power to condone
failure to comply with peremptory requirement - Reiterated that administrative
authorities lacking power to condone failure to comply with peremptory requirement
unless afforded discretion to do so - Where functionary's power and authority derived
from legislation, existence of discretion to be derived from construction thereof. FIS Life
Assurance Company Limited // The Registrar of Long-Term Insurance and Seven
Others (A326/2015) [2016] NAHCMD 129 (20 April 2016).

Administrative law - Administrative act - What constitutes - Action amounting to

exercise of public power or performance of public function - Court to have regard to
source of power exercised, nature of such power, subject-matter, whether it involves
exercise of public duty, - Decision of Trustees of a Trust Fund constituting

10
administrative action and thus subject to review by High Court. Former Members of the
Rössing Pension Fund v Rössing Pension Fund & Other (A 234/2014) [2016] NAHCMD
155 (1 June 2016).

Administrative law – Distribution of - Actuarial surplus in a pension fund - Where

pension fund rules make provision for dealing with surplus - such dealing subject to
limitations imposed by the Pensions Funds Act, 1956 – Only trustees having power to
decide how the surplus funds to be distributed – Decision by Employer amounting to
usurpation of trustees powers and thus unlawful. Former Members of the Rössing
Pension Fund v Rössing Pension Fund & Other (A 234/2014) [2016] NAHCMD 155 (1
June 2016).

Administrative Law – Section 10 (4) of the National Housing Enterprise Act, No 5 of

1995 as amended provides for the appointment of any suitable staff member of NHE to
act if the post of the chief executive officer became vacant – board appointing one of the
directors as acting chief executive officer- Court held the NHE as a creature of statute
has no power other than those vested upon it by its constitutive statute- appointment
declared invalid. Applications and motions – Administrative Law – Section 10 (4)
provides that if the post of the chief executive office became vacant the board shall
appoint any suitable staff member to act as chief executive officer. The appoint
appointing one of the directors as acting chief executive officer. Held that NHE as a
creature of the statute has no power other than those powers vested upon it by its
constitutive statute and the repository of public powers can exercise no power and
perform no functions beyond that conferred upon it by law - An administrative act that
has not been authorised by the law is invalid – Consequently the appointment of a
director is declared invalid. Titus v The National Housing Enterprise (A 9-2016) [2016]
NAHCMD 225 (29 July 2016).

Practice - Citation of parties - Review - of a decision of an administrative body - Citation

of respondent - Requirements of Rule of Court 76 (1) - Chairman of the administrative
body in his or her representative capacity to be cited - Separate citation of the
administrative body itself not required. Fire Tech Systems CC v Namibia Airports
Company Limited (A 330-2014) [2016] NAHCMD 220 (22 July 2016)

Administrative law - Administrative action - Review of - Discretion of court - Court may

decline to set aside invalid administrative act - Role of effluxion of time and
considerations of practicality. Fire Tech Systems CC v Namibia Airports Company
Limited (A 330-2014) [2016] NAHCMD 220 (22 July 2016)

11
Administrative law – Review - Setting aside of award of tender - Consequences - Such
to be fully considered – Interest of all parties to be considered - In casu, award not set
aside, despite imperfect administrative process. Fire Tech Systems CC v Namibia
Airports Company Limited (A 330-2014) [2016] NAHCMD 220 (22 July 2016)

Administrative Law - administrative body and administrative power defined – review

powers of the court – the audi rule. Skorpion Mining Company (Pty) Ltd v Road Fund
Administration (I 2063-2014) [2016] NAHCMD 201 (12 July 2016).

Administrative Law – Failure of Minister to exercise discretion – Minister failing to

exercise discretion pertaining to conditions of intervening in decisions of Namibia
Airports Company and abdicating decision to the President – A discretionary power
vested in one official or body - may not be usurped by another-whether the former is
subordinate to the latter or not – Minister thus having acted unlawfully. Anhui Foreign
Economic Construction v Minister of Works and Transport (A21-2016)[2016] NAHCMD
265 (9 September 2016)

ADMINISTRATION OF ESTATES

Will - Construction - of -involves ascertaining the intention of the testator-Modus-a

qualification or obligation added to a gift or a testamentary disposition. Egerer v
Executrust (Pty) Ltd (A248-2015) [2016] NAHCMD 221 (22 July 2016).

Administration of Estates- Role of Executrix in dealing with estate property. Brink &
Another v Erongo All Sure Insurance & Others (I 3249/2015) [2016] NAHCMD 200 (8
July 2016).

Administrative of Estates — Administration of Estates Act 66 of 1965 — Removal of

Executor from office — Section 54 —May be removed from office — by master — If he
fails to perform satisfactorily any duty imposed upon him – Executor may resist his
removal by application to court - When the Master seeks the removal of an executor —
The Master must afford the executor an opportunity to apply to court to overrule and set
aside her decision.— The Court has to consider whether the decision of the Master is
based on reasonable grounds, and is just and fair under the circumstances. The Master
of the High Court of Namibia v Willem George Titus (A 216/2015) [2016] NAHCMD 384
(08 December 2016).

12
Administration of Estate - Application to have an executrix removed from office -
Master of the High Court relying on a marriage certificate submitted to her by the
deceased’s concubine who married the deceased without the applicants marriage to the
deceased having been dissolved – Master functus officio – Court holding that such
marriage void ab initio – Second respondent’s appointment reviewed and set aside –
Applicant appointed as executrix of the late husband’s estate with the power of
assumption. Hausiku v The Master of the High Court (A 13/2016) [2016] NAHCMD 392
(15 December 2016).

Administration of estates – The Master — Review of Decision — The Master is an

administrative official entrusted with judicial functions — The Master is required to
comply with the requirement imposed by article 18 of the Namibian Constitution — The
Master must act fairly and reasonably, and in compliance with the law. Article 18 of the
Namibian Constitution — The Master must provide reasons for her decisions in all
cases where a party is aggrieved by a decision of the Master, unless it would not be in
the public interest for her to provide the reasons — An unsubstantiated decision of the
Master is akin to no decision at all in the spirit and purport of article 18 of the Namibian
Constitution. Administration of estate — Executor — Removal from office— Executor
may be removed from office as executor if it undesirable that he continues as executor
in the estate — Grounds for undesirability — The lengthy delays in the finalisation of
estate and the non-compliance with statutory requirements. Gaya v Rittmann N.O (A
78/2015) [2016] NAHCMD 388 (12 December 2016).

APPEAL

Appeal – In what cases – Court referring matter to trial in terms of rule 67(1)(b) of the
rules of court – Referral of matter to trial not appealable – Such order simple
interlocutory order – Such order does not dispose of any issue or any portion of issue in
the main action or suit, neither does it irreparably anticipate or preclude some of the
relief that would or might be given at hearing or trial. Appeal – In what cases – Court
referring matter to trial in terms of rule 67(1)(b) of the rules of court – Applicants
applying for leave to appeal the referral order – Referral of matter to trial is not
appealable being a simple interlocutory order not disposing of any issue or any portion
of issue in the main action or suit, neither does it irreparably anticipate or preclude some
of the relief that would or might be given at hearing on trial – In the circumstances
application for leave to appeal referral order dismissed with costs. Van Straten NO v
Desert Fruit (Pty) Ltd (A 38/2014 and A 91/2015) [2016] NAHCMD 349 (10 November
2016).

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Appeal – Appeal against a judgement of the Magistrate Court – Contractual dispute
involving repairing of oven for business use – Issue on appeal whether there was an
express contract and instructions to fix the oven – Court a quo being faced with two
mutually destructive versions – No credibility findings made on the evidence – where
no or insufficient findings have been made by the trial court, the court of appeal has to
do the best with the material before it – Court of appeal can however weigh up the
evidence in order to come to a different conclusion but should be guided by the findings
of the court a quo – Appeal court found that the magistrate misdirected himself both on
fact and law since the findings were one sided, not grounded on facts, based on wrong
legal principles of delict instead of applying relevant principles for contractual disputes –
Court a quo findings could not be sustained. Appeal court setting out the approach for
the courts when faced with two destructive versions – Principles reinstated – Appeal
court held that the evidence of the appellant is more plausible and probable and had
proved its case on a balance of probabilities that there was an expressed agreement in
terms of which the respondent gave instructions for the oven to be repairing – Court of
appeal rejecting respondent’s version from the evidence as being evasive, contradictory
and not satisfactory, highly improbable and untrue – Judgment of the court a quo set
aside and substituted an the appropriate order. Quality Bake Engineering v Bodega
Pizzeria (CA 38/2016) [2016] NAHCMD 394 (15 December 2016).

COMMERCIAL LAW

Trade and Trademark - Trade - Passing-off - What constitutes - Reputation associated

with certain name - Where applicant’s reputation associated with name under which
product marketed - Minimum requirements for success in interdict proceedings for
passing-off involving use of name where applicant alleging false representation by
respondents about name used by applicant - applicant required to prove (1) own
reputation in relation to name epitomising product and (2) that his name, or the
descriptive words used by him, have acquired a secondary meaning and are associated
in the minds of the public with the applicant's products or business, and with that of no
one else. Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman
Franchise Operations (Pty) Ltd and two others (A 171/2013) [2016] NAHCMD 329 (28
October 2016).

Patents and trademarks – Application to vary entry in Register of Trade Marks by

expunction from the Register – In 1998 the applicant Demtschuk registered trade name
Rentokil as a defensive trade name in terms of the Companies Act 61 of 1973 (as
amended) – Court held that any reputation attaching to the name Rentokil in Namibia

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has been built by Demtschuk in the rendering of pest control and connected services –
On a fair conspectus of the evidence the court held that the prolonged, extensive and
demonstrably largely undisturbed use of the name over a long period of time by
Demtschuk has come to be regarded as identifying the distinctive services rendered by
Demtschuk on an extensive and varied scale – Court satisfied that Rentokil was
connected to particular reputation attaching to services rendered by Demtschuk – Such
reputation damaged by Rentokil Initial registering Rentokil as a trade mark in its favour
in 2003 – Accordingly, court held that that entry was made without sufficient cause
within the meaning of s 33(1) of Act 48 of 1973 – As respects the counter application
court held that the respondent Rentokil Initial (applicant in reconvention) seeking
protection for a foreign trade mark must rely on the common law protection of passing of
– Court held respondent’s reliance on passing off cannot succeed because it has failed
to establish that it trades in Namibia in the sense that it has a going business in Namibia
and has customers and therefore will suffer damages if it is not granted the relief sought
– There is nothing that respondent in reconvention (Demtschuk) has done or not done
or likely to do which is likely to harm Rentokil Initial in the patrimonial sense in Namibia
– Court concluded that it is respondent in reconvention (Demtschuk) which has
established the reputation in Namibia attaching to the trade name and it is applicant in
reconvention (Rentokil Initial) whose use of the mark in Namibia was likely to deceive
and thus cause confusion and injury, actual or probate, to the reputation and goodwill of
Demtschuk’s business of pest control and connected services in Namibia – In the result
Demtschuk’s application granted with costs and Rentokil Initial’s counter application
dismissed with costs. Demtschuk v Rentokil Initial 1927 PLC (A 332/2014) [2016]
NAHCMD 348 (10 November 2016).

COMPANY LAW

Section 64 – Provisions of section 64 of the Close Corporations Act relating to reckless

trading considered and discussed. Okorusu Fluorspar (Pty) Ltd & Another v Tanaka
Trading CC and Another (I 2055/2013) [2016] NAHCMD 16 (05 February 2016)

Company – Winding up – Applications for – Grounds – On the basis of the ‘just and
equitable’ provision – Ambit of ground – Company, in instant case, in substance a
partnership – Circumstances justifying dissolution of partnership also justifying winding
up of company – Court satisfied applicant has established specific grounds sufficient for
the granting of a provisional winding up order – Principles in, eg, Ebrahim v Westbourne
Gallaries Ltd and Others [1972] 2 All ER (House of Lords) applied – Companies Act 28

15
of 2004. Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (Registration
Number: 2010/0314) (A 273/2014) [2016] NAHCMD 31 (22 February 2016).

Company – Winding up – Application for – Grounds – On the basis of the ‘unable to

pay its debts’ provision – Company unable to pay its debts when it is unable to meet
current demands placed on it in its day-to-day activities in the ordinary course of
business – Court will make an order for compulsory winding up of company where on
the totality of the evidence interested parties would be protected only by a fully
independent investigation of the company’s affairs in compulsory winding up – Where
on the papers there is prima facie case (ie a balance of probabilities) in favour of
applicant, provisional order of winding up should normally be granted – Kalil v Decotex
(Pty) Ltd and Another 1988 (1) SA 945 (A) applied – Companies Act 28 of 2004. Laicatti
Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (Registration Number: 2010/0314)
(A 273/2014) [2016] NAHCMD 31 (22 February 2016).

Company - Shares - Rectification of register - Application for rectification of the register

in terms of s 122 of the Companies Act, 2004 - The power given to the court under the
section is a discretionary one - The discretion to be exercised by the court, only if court
is satisfied of the justice of the case. Kai-Uwe Denker // Ameib Rhino Sanctuary (Pty)
Ltd and 4 Others (A 41/2014) [2016] NAHCMD 82 (11 March 2016).

Insolvency – Sequestration – Provisional order of sequestration – When granted –

Applicant must establish to prima facie degree three matters – That applicant has
established a claim against respondent in amount in excess of N$100, that respondent
has committed act of insolvency or is insolvent and that there is reason to believe that it
will be to advantage of creditors of the respondent if estate of respondent is
sequestrated – In instant case court satisfied that the three matters have been
established to prima facie degree – Consequently, application for provisional
sequestration granted. Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard
(A 276/2014) [2016] NAHCMD 117 (21 April 2016).

Company Law- Liability of directors, auditors and company officials - Act 51 of 1951.
Offshore Development Company v Deloitte and Touche (I 1111-2006) [2016] NAHCMD
191 (30 June 2016).

Voluntary association - Power to sue and be sued - Right of unincorporated body to

sue or be sued in own name depending upon nature and purpose of body, as well as
constitution - Association can sue in own name if proved that it possesses
characteristics of legal persona or universitas - To be universitas association to have
perpetual succession and capacity to acquire rights apart from members. The Njagna

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Conservancy Committee v The Minister of Lands and Resettlement (A 276-2013) [2016]
NAHCMD 250 (18 August 2016).

Voluntary association – Unincorporated voluntary association – A church –

Jurisdiction of court to intervene in affairs of a church (first respondent) – Court held that
it has jurisdiction to intervene in the internal dispute of first respondent – Court’s power
to intervene is founded on its jurisdiction to protect contractual rights – Court held
further that first respondent’s Constitution constitutes the written contract expressing
terms on which members associate together and with first respondent – Court rejected
submission by counsel that the canons, doctrine and liturgy of first respondent
constitute the terms of such contract – Court held that people who join an
unincorporated voluntary association and subscribe to its Constitution and other rules
should be taken to intend to be bound by them and should be entitled to invoke the
courts in appropriate circumstances to have their disputes settled no jurisdiction to
intervene in the affairs of first respondent – Court found that the applicants have not
approached the court to adjudicate on matters of doctrine, canons and liturgy but on
applicants’ contractual rights which are civil rights. Amupanda v Swapo Party of
Namibia (A 215/2015) [2016] NAHCMD 126 (22 April 2016) applied. Nowases v
Evangelical Lutheran Church (HC-MD-CIV-MOT-GEN-2016-00221) [2016] NAHCMD
231 (9 August 2016).

COMPANY LAW- Amendment of founding statement of Close corporation- Legal

requirements- Civil Procedure- locus standi of close corporation where proceedings are
instituted at the instance of one member to the exclusion of other members. Arandis
Lubrication Services CC v Erongo Industrial Supply Services CC (I 3616-2014) [2016] NAHCMD
253 (7 September 2016).

CONDONATION

Condonation – Application for upliftment of Automatic Bar – Rule 54(3) read with rule
55 of the Rules of court – Party to show good cause for the delay and that there is a
bona fide defence to the claim – plea to counterclaim and replication filed 9 days late –
Explanation given not necessarily satisfactory – Defence of prescription, if proved,
would constitute a defence to the claim in reconvention. Application for condonation
granted. Angula v LorentzAngula Inc (I 599/2015) [2016] NAHCMD 78 (17 March 2016)

Rule 55 – Application for condonation. Rule 103 – applications for rescission of

judgment and/or setting aside or varying an order of court – Certificate in terms of Rule

17
130. Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016]
NAHCMD 104 (8 April 2016).

Practice - Applications and motions - Application for condonation for late filing of notice
to oppose - Respondent exceeding time line set by court order by a few hours - Court
holding that as the history of the matter showed a serious resolve on the respondent’s
part to oppose the main application and to be heard on the merits thereof and as there
were prospects of success and as the delay and the degree of non-compliance was not
significant and as the prosecution of the main application was in no manner whatsoever
delayed by the late filing of the notice of intention to oppose the court would not shut the
doors of the court in the face of the respondent - Application for condonation granted.
Namibia Financial Institutions Supervisory Authority v Hendrik Christian t/a Hope
Financial Services (A 35/2013) [2015] NAHCMD 87 (21 May 2014); Bruna & another v
Yersin & 4 others (A 3785/2012] [2016] NAHCMD 335 (02 November 2016).

Rule 55 – Application for condonation. Rule 103 – applications for rescission of

judgment and/or setting aside or varying an order of court – Certificate in terms of Rule
130. LEGAL ETHICS – a legal practitioner should act as an officer of the court and
avoid partaking of his or her client’s cause in such a manner that affects his or
performance of his or her duty to court. Quenet Capital (Pty) Ltd v Transnamib Holdings
Limited (I 2679/2015) [2016] NAHCMD 104 (8 April 2016).

CONSTITUTIONAL LAW

Constitutional law – Rule 5 of rules of court – Constitutionality of – Court held that

upon authority of Kauesa v Minister of Home Affairs and Others 1994 NR 102 where it
is contended that a regulation is unconstitutional, the party so contending bears the
onus of persuading the court that the said regulation is not reasonably justified in a
democratic State, and not the State to show that it is – Court held further that there is no
good reason why the Kauesa onus should not apply to rules and regulations which are
delegated legislation – Applicant contending that rule 5 offends the anti-discrimination
provisions of art 10 of the Namibian Constitution and therefore unconstitutional – Court
held that inherent in the meaning of ‘discrimination’ in art 10 is an element of unjust or
unfair treatment brought about principally by unjustified and illegitimate treatment –
Court found that applicant has failed to discharge the Kauesa onus – Consequently,
court dismissed the application. Maletzky v The President of the Republic of Namibia (A
176/2014) [2016] NAHCMD 50 (3 March 2016).

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Applications and motions – Constitutionality of Section 35 of the Close Corporations
Act 26 of 1988 – Consent of remaining members required when disposing off a
deceased member’s interest in a close corporation - Not infringing upon a person’s right
enshrined in Article 16(1) of the Constitution to acquire and dispose off property – A
member during his life time has the option to dispose of his member’s interest as he
wishes by making ‘other arrangements’ in the form of a testamentary disposition.
Section 58 of the Agricultural (Commercial) Land Reform Act 6 of 1995 – Prior
ministerial consent required before foreign nationals may enter into an agreement in
terms of which a foreign national is acquiring a right of occupation or possession in an
agricultural land for a period more than 10 years or an indefinite period – Failure to
obtain such consent shall result in the agreement being invalid – Application dismissed.
Thomas Wyss vs Leevi Hungamo & 6 Others (A 189/2015) [2016] NAHCMD 264 (13
September 2016).

Constitutional Law – provisions of Art. 18 and 25 (4) – joinder of Attorney-General and

Ministers. Skorpion Mining Company (Pty) Ltd v Road Fund Administration (I 2063-
2014) [2016] NAHCMD 201 (12 July 2016).

Constitutional law – Taxation – Regulatory levy – Distinction between a tax and a

regulatory charge – Regulatory levy required to defray first respondent’s expenses –
Court held that while subsec (1) of s 23 authorizes imposition of regulatory levy, subsec
(2)(a) of s 23 authorizes imposition of tax in violation of art 63(2)(b) of the Namibian
Constitution as no relationship is created between the charges contemplated under that
provision and the regulatory scheme, being collecting of levy for defraying first
respondent’s expenses – Court held therefore that the applicant has demonstrated that
the levy has the attributes of a tax and the first respondent has not demonstrated that
the levy is connected to the regulatory scheme – Such relationship will exist when the
revenues are tied to the costs of the regulatory scheme and costs are actual or properly
estimated cost of regulating first respondent (among others) – In instant case court
found that no relationship exist or could exist between the levy contemplated in s 23(2)
(a) of Act 8 of 2009 and the regulatory scheme – Consequently, court held that the
charges provided in s 23(2)(a) have the attributes of tax and therefore not Constitution
compliant – Accordingly, constitutional challenge to s 23(2)(a) upheld and the provision
declared unconstitutional. Telecom Namibia Limited v Communications Regulatory
Authority of Namibia (A 448/2013) [2016] NAHCMD 292 (29 September 2016).

Constitutional law - Legislation - Interpretation of -Interpretation of - Of constitution of

a State - Not to be given narrow, mechanistic, rigid and artificial interpretation - Rather
to be interpreted so as to enable it to play creative and dynamic role in expression and

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achievement of ideals and aspirations of nation. - Where legislative provision
reasonably capable of meaning placing it within constitutional bounds, it should be
preserved. Constitutional law - Constitution – Namibian Constitution - Parliament -
Powers of - Parliament subject in all respects to provisions of Constitution and has only
the powers vested in it by Constitution expressly or by necessary implication. Meaning
of Article 63(2)(b) of the Namibian Constitution. Constitutional law - Constitution -
Namibian Constitution - Parliament - Powers of - Power to delegate legislative authority
- Though Parliament may delegate authority to make subordinate legislation within the
framework of a statute under which the delegation is made, it may not assign plenary
legislative power to another body or abdicate its law making authority. Kambazembi
Guest Farm CC T/A Waterberg Wildnerness v The Minister of Land Reform and 5
Others (A197/2015) [2016] NAHCMD 366 (17 November 2016).

CONTEMPT OF COURT

See: Kaapala v Beukes (I 3242/2015] [2016] NAHCMD 179 (16 June 2016).

Contempt of Court – Applicant prima facie in contempt of a number of court orders

granted by another judge in a related case – court holding that it was not necessary in
such circumstances to act immediately against the applicant in the protection of the
authority and integrity of the court or the maintenance of the orderliness of proceedings.
Court however considering itself duty- bound not to ignore the seemingly blatant
disregard by the applicant of the courts orders, which were clearly binding on him at all
times. As the applicant’s actions could not simply be overlooked it was deemed
appropriate to refer the matter to the Prosecutor- General for her to decide whether or
not the applicant should be prosecuted in the ordinary course for contempt. Christian ta
Hope Financial Services (A 35-2013) [2016] NAHCMD 188 (30 June 2016).

Abuse of court process - This Court has an inherent duty to protect both itself and
members of the public against abuse of a legal process. Applicant had been allowed to
remain in the country for the purposes of attending the hearing of his appeal before the
Labour Commissioner. The appeal was heard and he lost it. He, however, remained in
the country and started filing endless applications against various people and an
educational Institution which had attempted to remove him from its premises where he
was previously employed. These various applications were found to be vexatious and
frivolous which was tantamount to an abuse of court process. This type of conduct was

20
not allowed. Tambaoga Shirichena v Namibia Training Authority (LCA 04/2016) [2016]
NAHCNLD 81 (23 September 2016).

CONTRACT LAW

Law of Obligations - A party which undertakes to take remedy a certain anomaly is

expected and should carry out that obligation unless it can show some reasonable
excuse for such failure. The fact that the same council has changed its structure or that
the previous office that had made an undertaking had no authority is not an excuse.
Plaintiff succeeded. Applicant was allocated a certain property by 1 st respondent. At the
sametime 1st respondent allocated it to 3rd respondent. However, 1st respondent went
ahead to demarcate it in order for the two parties to occupy it. After the demarcation, 3 rd
respondent erected certain structures which offended applicant. First respondent by
letter threatened 3rd respondent to remove the offending structures. Third respondent
did not comply. Applicant approached the court to compel 1 st respondent to carry out its
threat. First respondent opposed it on the basis that the dispute was a private matter
and that their official had no authority to do act on its behalf. This excuse was not
acceptable and 1st respondent was ordered to remove the offending structures as they
had a legal obligation to do so. Ankambo Emmanuel Kambonde v Helao Nafidi Town
Council (A 28/2014) [2016] NAHCNLD 07 (12 February 2016).

Building and construction – Construction contract – Internal adjudication and

arbitration clauses – Contract providing for establishment of Dispute Adjudication Board
(DAB) and arbitration – Any party to contract entitled to refer dispute to DAB – Dispute
on preliminary issues – Court found that DAB has not made a decision on dispute
referred to it – In that event, there must be cogent or convincing grounds entitling court
to intervene and stop internal adjudicating process and order referral of the interim
decision to arbitration – Court found that DAB has not misconceived its duty under the
reference when it made an interim decision on preliminary issues – Court found further
that DAB did not breach any procedural rules in terms of the agreement and did not
violate common law rules of natural justice – Court held that DAB was entitled to make
the interim decision – Interim decision does finally dispose of the dispute under the
reference – Decisional process under DAB has not come to an end with the making of
the interim decision – Court concluded that DAB’s refusal to permit referral of the interim
decision to arbitration does not amount to a violation of the procedural duty to act fairly
and to adopt procedures suitable to the dispute, avoiding unnecessary delay and
expense – Consequently, court concluded that applicant has not established any
contractual right which the court may protect by stopping the internal adjudicating

21
process and referring the interim decision to arbitration – Court held that what the
applicant now seeks will produce the very consequence the applicant’s counsel fears,
namely, unnecessary delay and expense. Roads Authority v Kuchling (A 188/2015)
[2016] NAHCMD 32 (22 February 2016); NA Construction v Prestige Properties CC (I
4144/2010] [2016] NAHCMD 337 (04 November 2016).

Law of obligations– Contract of employment – Employee under fiduciary duty to act in

employer’s interest - Breach of duty resulting in loss and damage actionable - The
defendant as the plaintiff’s CEO stands in a special relationship with it - He is not only
under its direction and control; he supervises the work of his subordinates - There is an
implied duty on an employee of a statutory body such as the plaintiff to comply with the
prescripts of the law. Helao Nafidi Town Council v Shivolo (I 2493/2010) [2016]
NAHCMD 62 (8 March 2016).

Contract - Claim for money lent and advanced and services rendered – Defendant in
breach of payment – Defendant counterclaimed in personal capacity – Defendant’s
counterclaim based on invoices of Close Corporations – Defendant’s counterclaim
dismissed because it is inconsistent with s 63(a) of the Close Corporation Act, No 26 of
1988. Mollendorff v Tredoux t/a Swakop Trucking (I 3812/2012)[2016] NAHCMD 76 (16
March 2016); Standard Bank Namibia Limited v Gertze (I 3614-2013) [2016] NAHCMD
186 (23 June 2016)

Contract -Repudiation - What constitutes - Test for repudiation not subjective but
objective - Repudiation not a matter of intention, but of perception of reasonable person
placed in position of aggrieved party - Test is whether such notional reasonable person
would conclude that proper performance will not be forthcoming - Whether innocent
party entitled to resile from agreement ultimately depending on nature and degree of
impending non-or malperformance -Conduct from which inference of impending non-or
malperformance to be drawn must be clear cut and unequivocal - Repudiation requires
anxious consideration and not lightly to be presumed. Eckleben v Mobile
Telecommunications Limited (I 920/2012) [2016] NAHCMD 46 (09 March 2016)

Contract - Suspensive condition - Condition in contract requiring some act to be

performed in order that an obligation under the contract can come into existence -
Parties not fixing time for performance of obligations of one of the parties - Court will
imply a term that performance to take place either within a reasonable time or within
time agreed to by the parties. Viviers v Ireland & Another (I 3757/2012) [2014]
NAHCMD 148 (18 May 2016).

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Contract – Lien - McLaren NO v The Municipal Council of Windhoek (A 110-2009)
[2016] NAHCMD 161 (8 June 2016).

Law of Contract – breach of contract – principle of election – damages for breach of

contract. Cirilo v Ian Copley t/a Welding Works & Renovations (I 1104-2014) [2016]
NAHCMD 160 (6 June 2016)

Contract - Work and labour - Building contractor - Primary duty of - Cracks in badly
excavated foundation - Liability of building contractor - Onus. Work and labour - Building
industry - Standard of skill required by members thereof - Failure to adhere thereto
constituting negligence. Negligence - What constitutes - Failure to adhere to general
level of skill and diligence possessed and exercised by members of litigant's profession
constituting negligence. Contract - Implied term - When term has to be implied - Breach
of contract - Damages - Plaintiff must allege and prove nature and method of
calculation. Ludeke v Andries Louw T/A Andries Louw Developers (I 1359/2011) [2016]
NAHCMD 177 (17 June 2016).

Legality of Contract - A contract which is tainted with illegality and/ or is against public
policy is unenforceable. – The court will pierce the veil to see the real intention of the
party that sought to benefit from the other party. – The court has inherent jurisdiction to
look into the claim even where defendant did not defend the action. – Application for
default judgment dismissed. – Defendant ordered to pay what he has utilized from the
claim and not the costs. Plaintiff lent money to defendant. The agreement was to
continue in perpetuity. Defendant defaulted and an application for default judgment was
applied for. No appearance to defend was entered. The loan agreement was tainted
with illegality and was against public policy. The loan was designed to evade the laws
governing money lending and defendant was to continue servicing the loan in
perpetuity. The court used its discretion to look into the intention of the plaintiff (lender).
Plaintiff was not forthcoming with more information. Application was dismissed and an
appropriate order was made. Van Zyl v Bekker ta RMS Prepaid (I 91-2016) [2016]
NAHCNLD 59 (22 July 2016); Pioneerspark Dam Investments CC v The Municipal
Council of Windhoek (I 1096/2015] [2016] NAHCMD 373 (25 November 2016).

Law of Contract – written lease agreement – oral parts alleged – whether oral parts of
agreements alleged are efficacious – the parole evidence rule – whether applicable in
the case - exceptions of application of parole evidence rule considered – propriety of
termination of lease agreement – whether the plaintiff suffered damages as a result. BV
Investment Six Hundred and Nine CC v Kamati (I 1074-2013) [2016] NAHCMD 216 (22
July 2016).

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Contract: Joint Venture partnership in the form of locatio conductio rei and locatio
conductio operis. Global Earthmoving CC v Glenn Investments CC (I 1391-2015)
[2016] NAHCMD 245 (31 August 2016).

Law Of Contract- simulated transactions - illegal and unenforceable - severability of

agreements. Brink & Another v Erongo All Sure Insurance & Others (I 3249/2015) [2016]
NAHCMD 200 (8 July 2016).

Contract - Suspensive Sale of Cattle – Contract – Cancellation – Purchaser in breach –

Court held that where the contract lays down a procedure for cancellation that
procedure must be followed, otherwise the purported cancellation will be ineffective.
Sale - Of goods - When ownership passes - Credit sale - Ownership of cattle reserved
until purchase price paid - Seller not receiving payment as agreed and claiming return of
cattle from purchaser, contending that in terms of the agreement it consequently
retained ownership. Highland Farming CC v Casper Hendrik Rossouw (A 57/2015)
[2016] NAHCMD 302 (04 October 2016)

LAW OF CONTRACT – oral agreement for services rendered and oral agreement of
letting and hire. Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7
October 2016).

LAW OF CONTRACT – effect of wrong citation of party on validity of an agreement.

Enviro-Fill Namibia (Pty) Ltd v Municipality of Tsumeb (I 6045/2014) [2016] NAHCMD
318 (18 October 2016).

Contract – Agreement to transfer property (a house) (‘the transfer agreement’) –

Specific performance sought – Transfer agreement providing that implementation of
terms of agreement suspended until moratorium on transfer of the property was lifted in
terms of earlier agreement between applicant and the late Hendricks (represented now
by first respondent in nomine officii) (‘GRN agreement’) – Court held GRN agreement
did not altogether prohibit transfer of the property – The late Hendricks could transfer
the property to a purchaser within the moratorium period if Minister’s consent was
obtained or after lifting of moratorium without Minister’s consent – Transfer agreement
pursuing second option – Court accordingly held that the transfer agreement is not an
illegal contract if interpreted together with the GRN agreement; it is a legal and
enforceable contract – Consequently, court held applicant has made out a case for the
grant of an order of specific performance. Premier Construction CC v Lombardt NO (A
282/2015) [2016] NAHCMD 322 (20 October 2016).

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Contract – Breach of contract – Specific performance – Specific Performance
cornerstone of our law of contract – Court’s discretion to refuse specific performance is
limited– Impossibility of performance is a defence not a ground to except to plaintiff
proposed amendment: Partnership – Joint Venture Agreement– Obligations of partners
– Obligations are owing to each partner to perform in terms of the agreement– A partner
can claim proceeds of the partnership from the other partner or partnership– A
partnership not a separate entity from the partners:. I-Chuan Kuo v Sphia Investments
CC & Another (I 2543/2015) [2015] NAHCMD 341 (10 November 2016).

Law of Contract – Terms of an Agreement – Interest due and payable by defaulting

party – Liability for the payment of interest through delay in the performance of his
obligation or duty by the defendant may arise in one or two ways. Interest may be due
from the nature of the case, where for instance, the time for performance is fixed either
by agreement or the law (mora ex re); or where in the absence of such agreement, the
defendant has been called upon to perform his obligation – Issue of when interest
became payable – Legal costs – Costs is a matter wholly within the discretion of the
Court – Each party is successful, therefore no order as to costs. Central Import Export
Corporation CC vs Shatona (I 3783/2013) [2016] NAHCMD 368 (18 October 2016).

Law of contract – Terms of an agreement – conduct of the parties inconsistent with

contractual terms – RECTIFICATION – requirements for rectifying an agreement –
SPECIFIC PERFORMANCE – whether party is entitled to specific performance –
ABSOLUTION FROM THE INSTANCE – Applicable test. Ramirez v Frans (I 933/2013)
[2016] NAHCM 376 (25 November 2016).

Law of contract - Plaintiff, a Swiss national, conducted negotiations through email with
defendants for the rental of a car to go on safari in Namibia – Plaintiff involved in an
accident with rented car while driving off-road and claiming that the defendants
misrepresented to him that he had insurance when in reality he did not – Plaintiff made
to pay for damage to car by defendants on the basis that the risk occurring was not
covered – Plaintiff seeking to recover as against second and third defendants (husband
and wife) personally alleging that they represented that they were a partnership and
breached the Close Corporations Act 26 of 1988 and the Short-Term Insurance Act 4 of
1998. Held that plaintiff made out case that second and third defendants represented to
him that he enjoyed insurance and that the defendants assumed to have offered
insurance to cover loss arising from plaintiff’s driving of vehicle – Plaintiff bore onus to
prove that the negligent conduct on his part was not responsible for the loss but the
misrepresentations; plaintiff failing to discharge onus; Held further that plaintiff
established alternative claim of unjust enrichment but only against the first respondent
close corporation as plaintiff failed to allege and proof personal liability of the second

25
and third defendants either under the Close Corporations Act or the Short-Term
Insurance Act. Dannecker v Leopard Tours Car & Camping Hire CC (I 2909/2006)
[2016] NAHCMD 381 (5 December 2016).

Contract - Contract of Purchase and Sale: Breach of implied warranty against latent
defects. Onus on the plaintiff to prove the latent defect. Plaintiff instituted an action
against the defendant for repayment of the purchase price, damages as well as
interests, arising from an oral agreement of purchase and sale, on the basis that the
merx, that is, a generator which was sold by the defendant to the plaintiff had a latent
defect and was not functioning, and therefore not fit for the purpose for which it was
bought. Held that plaintiff had to establish on admissible evidence that the generator
had a latent defect. Held further that in view of the contradiction in the evidence of
plaintiff’s own witnesses as to whether the generator could generate any power at all,
plaintiff was required to present expert evidence regarding the latent defect and the
generator’s maximum power output, if any. Held accordingly, that since no expert
evidence was presented, plaintiff has failed to discharge the onus which rested on him
on a balance of probability. New Success Investment CC v Johan Taljaard t/a Renov
Namibia (I 963/2015) [2016] NAHCMD 389 (15 December 2016).

COSTS

Costs - A legal practitioner who fails to attend court without reasonable cause when
ordered to do so cannot escape being levelled with costs de bonis propriis. Applicants
applied for and were granted an interim order. Respondents did not fully comply with
the order due to them being difficult. Their legal practitioner appointed a correspondent
who also found it difficult to make them fully comply with the order and could not explain
further. An order was made for the instructing legal practitioner to personally attend
court in order to explain the non-compliance by his clients. He deliberately disobeyed
the order for him to attend and chose to write an affidavit explaining his failure to
appear. The reasons were not justifiable. He was found to have been in contempt of
court. The final order was granted and he was ordered to pay costs de bonis propiis.
Tjimaka Tjavara v Tjimuine (A 17/2015) [2016] NAHCNLD 14 (29 February 2016).

Costs - Where a disputed application is settled on a basis which disposes of the merits,
except insofar costs are concerned, the universal rule that a party who succeeds should
be awarded costs, cannot apply. Court must, with material at its disposal, make a

26
proper allocation as to costs. A court must have regards to all the affidavits filed on the
merits of the application and must decide which party incurred unnecessary costs
through his or her failure to take steps or through taking wholly unnecessary steps, and
may consider any other relevant factors. Herwolf Property Holdings CC v Yeung Tai
Good and Trading CC (A 96/2013) [2016] NAHCMD 121 (20 April 2016).

Costs - On legal practitioner and own client basis - When a court entitled to award costs
on such basis. The Prosecutor-General // New Africa Dimensions CC And Two others
(POCA 10/2012) [2016] NAHCMD 123 (20 April 2016); Riruako v The University of
Namibia & 4 Others (A 129/2010) [2016] NAHCMD 168 (14 June 2016).

Costs – Taxation – Review of taxation – Grounds for review based primarily on

common law grounds and on grounds wider than common law grounds – Court held
that court ought not to interfere with taxing officer’s exercise of discretion where
applicant in his or her request to taxing officer to state a case did not set forth grounds
of objection advanced at taxation and did not include any finding of fact by the taxing
officer – In that event there would be no grounds placed before the court upon which
court may determine that taxing officer has exercised his or her discretion wrongly –
Principles in Pinkster Gemeente van Namibia v Navolgers van Christus Kerk SA 2002
NR 14 applied. Kaura v Taxing Master of the High Court (A 121/2015) [2016] NAHCMD
138 (10 May 2016).

Costs - Applicant aware of dispute of fact nevertheless approached the court running
the risk of an adverse cost order. Respondent statements were incorrect and inflated.
Both parties could have limited the issues by opting for appropriation. No order made as
to costs. Van Niekerk v Auto Tech Truck & Coach CC & Another (A19/2015) [2016]
NAHCNLD 31 (12 May 2016).

Civil Procedure - Award of costs in respect of amendments/exceptions. Offshore

Development Company v Deloitte and Touche (I 1111-2006) [2016] NAHCMD 191 (30
June 2016); In respect to amendments, see Luhl v Solsquare Energy (Pty) Ltd (I 2512-
2013] [2016] NAHCMD 237 (16 August 2016).

COSTS - Application of Rule 32 (11). Brink & Another v Erongo All Sure Insurance &
Others (I 3249/2015) [2016] NAHCMD 200 (8 July 2016).

COSTS – whether lay litigants representing themselves are entitled to costs – if so

what type of costs are claimable. The plaintiff instituted a claim for eviction of the
defendants from property purportedly belonging to him. The defendants entered their
notice of intention to defend the action on the basis that the property in question did not
belong to the plaintiff and hence they were not illegally occupying same. The plaintiff

27
then withdrew the action and indicated that each party would pay its own costs, an issue
the defendants contested. Held - that a lay person, suing personally, cannot recover
costs. He is entitled only to recover disbursements. Held – further that disbursements as
expenses other than counsel fees that have been necessarily, and properly, incurred by
a person claiming such disbursements. Furthermore such expenses must be actual and
must have been necessarily and properly incurred by the lay litigant for the purpose of
instituting, proceeding with or defending proceedings. In conclusion, the court awarded
costs limited to actual disbursements reasonably incurred by the defendants in the
course of defending the proceedings. Ananias v Negonga & Others (I 3164/2015) [2016]
NAHCMD 306 (4 October 2016); Pienaar vs Tsoeu (I 2848/2013) [2016] NAHCMD 313
(12 October 2016).

Costs – Postponement – Court’s time wasted by postponement. United Africa Group

(pty) Ltd v Uramin Incorporated (I 2527/2014) [2016] NAHCMD 300 (21 September
2016).

Costs - Constitutional litigation - Proper approach - Primary consideration being

whether order will promote advancement of constitutional justice - Court to have regard
to whether litigation undertaken to assert constitutional right and whether litigation
undertaken in improper fashion - Whether parties acting in own or in public interest
irrelevant. Kambazembi Guest Farm CC T/A Waterberg Wildnerness v The Minister of
Land Reform and 5 Others (A197/2015) [2016] NAHCMD 366 (17 November 2016).

Costs – Taxation of bills of costs – rule 75 – a stated case for review of Taxing Officer’s
decision – Rule 32 (11) – whether it applies to cases where a special plea has been
raised and decided in terms of the ceiling of costs applicable thereunder. Taxing Officer
– should not, in stating a special case, adopt a litigious posture but should confine his
task to formulating the special case and filing a report – should not get embroiled in
argument in an effort to justify the decision sought to be impugned. Uvanga v
Steenkamp & Others (I 1968/2014) [2016] NAHCMD 378 (2 December 2016).

Costs – Punitive Costs – Court disapproving conduct aimed at wasting courts’ time and
resources and contrary to the overriding objective of the rules of court, ie for the
resolution of real issues speedily, efficiently and cost effectively – Court holding that
legal practitioners owes the duty to the court first and then to their clients. Hausiku v
The Master of the High Court (A 13/2016) [2016] NAHCMD 392 (15 December 2016).

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DEFAMATION

Law of Defamation – Defamatory remarks made to prominent members of society and

to the media through media statements – Plaintiff is the Inspector-General of NAMPOL
– Statements made accusing the plaintiff of being a liar and perjurer – Defence that the
statements made are true and in the public interest – Test to be applied by the courts in
Defamation cases – Proof of defamatory statements raised the rebuttable presumption
that such statements are wrongful and intentional – The plaintiff need not allege nor
prove the falsity of the defamatory statement and need not allege anything more than
his or her existence in a particular society where it is alleged that his or her reputation
was damaged in the eyes of the community at large – In order to rebut the presumption
of wrongfulness, a defendant may show that the statement was true and that it was in
the public benefit for it to be made; or that the statement constituted fair comment; or
that the statement was made on a privileged occasion – Defendant failed to prove that
such statements privileged or that public policy justifies the publication – Statements
found to be defamatory – Defence not succeeding – Quantum of damages reduced to
be aligned with previous awards. Ndeitunga v Kavaongelwa (I 3967/2009) [2016]
NAHCMD 99 (11 April 2016).

DELICT

Delict – Defamation – meaning and elements – defences – public interest, privilege,

truthfulness. Bednarek & Others v Hannam & Another (I 2615/2013) [2016] NAHCMD
12 (03 February 2016).

Damages – Quantum – See Shivute v Endjala (I 1876/2014] [2016] NAHCMD 13 (19

November 2015).

Delict – Vacarious liability of employer - An employee who is clearly mandated to work

within certain guidelines but decides to deviate from the scope of authority of his or her
employer and the deviation is remotely detached from his mandate – is solely
responsible for his or her deeds. – An employer cannot be held vicariously liable for
those deeds. – In that determination the court applied both subjective and objective
tests and held that the employer was not vicariously liable for his employees’
wrongfulness. Nghihepavali v Ministry of Agriculture Water and Forestry (I 26-2014)
[2016] NAHCNLD 51 (30 June 2016).

29
Damages - Law Of Delict – motor vehicle collision – damages. Road Contractor
Company Limited v Jorge (I 3287/2014) [2016] NAHCMD 296 (30 September 2016).

Damages - Veld fire. Negligence. Onus on the plaintiff to establish the case as
pleaded and as per the pre-trial order. Du Plessis v Akuenje and Another (I 3505/2012)
[2016] NAHCMD 295 (30 September 2016).

Delict – Claim for money illegally converted pursuant to an alleged misrepresentation.

The plaintiff sued the defendant for payment of an amount which he claimed was paid
by him as a result a fraudulent misrepresentation. The defendant denied making such
misrepresentation and alleged that he was coerced whilst in police custody to avail his
bank account details and to allow the money paid by the plaintiff to be deposited in his
account. Held – though there was no evidence that the defendant made any
communication with the plaintiff and as such made the alleged misrepresentation, the
evidence pointed inexorably to the defendant participating fully in the deposit of the
money into his account and subsequent withdrawal thereof. He also participated in the
distribution of the money and got himself a share. Held further – that although aware of
the tainted nature of the money in question, he had an opportunity to report to other
persons about the illegal enterprise but did not do so, hence his defence that he acted
under compulsion was rejected out of hand. The court found that the plaintiff had made
a case for the payment of the amount claimed and the defendant’s defence was thus
dismissed. Nangolo v Stoffberg (I 3000/2014) [2016] NAHCMD 315 (14 October 2016).

LAW OF DELICT – Negligence – Damage to a vehicle as a result of a veld fire. Angula v

Minister of Environment and Tourism (I 76/2015) [2016] NAHCMD 371 (23 November 2016).

EXEPTION

Practice – Pleading – Exception to defendant’s plea – Failure to disclose a defence,

alternatively vague and embarrassing – Exception upheld with costs – Defendant
granted leave to amend her plea. Hochobeb v Dunn (I 1772/2013) NAHCMD 20 (12
February 2016).

Procedure – Rule 57 – Exception – On grounds that particulars of claim do not disclose

a cause of action – Special plea of Locus standi in judicio. Cloete v Haitengu & Another
(I 1611/2015) [2016] NAHCMD 178 (22 June 2016).

Exception – Laws applicable to exceptions - A pleading is only excepiable on the basis

that no possible evidence led on the pleading can disclose a cause of action or defence

30
– Practice of Close Corporations as architects – Whether the relevant minister
prescribed the kinds of work reserved for architects - The legislature prohibits the
carrying out of architectural or surveying work for gain by entities other than natural
persons, unless an exemption was granted - The exception to the Plaintiff’s Particulars
of claim are upheld with costs. Claud Bosch Architects v Auas Business Enterprises
Number 123 (Pty) Ltd (I 2333-2011) [2016] NAHCMD 195 (7 July 2016)

Practice – Rules of Court – Rule 57 – exception – pleading vague and embarrassing –

two stage approach to exceptions. Provisions of rule 45 (7) - LAW OF CONTRACT –
difference between agency and mandate – LEGISLATION – Provisions of s.2 of
Formalities in Respect of Contracts for the Sale of Land Act No. 71 of 1969, (the ‘Act’)
and applicability to contracts of mandate. Hayley Fay v Regal Real Estate (I 2714-2015)
[2016] NAHCMD 202 (12 July 2016).

CIVIL PROCEDURE – Exception in terms of rule 57 – whether non-joinder can be

raised as an exception and not as a plea in abatement – joinder of parties – joinder for
convenience and joinder of a necessary party – the applicable tests. Quenet Capital
(Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016] NAHCMD 311 (7 October
2016)

EXCEPTION - Practice - Where an exception is taken on the grounds that no cause of

action is disclosed or is sustainable on the particulars of claim - Two aspects are to be
emphasised - Firstly, for the purpose of deciding the exception, the facts as alleged in
the plaintiff’s pleadings are taken as correct - A pleading is only excepiable on the basis
that no possible evidence led on the pleading can disclose a cause of action - An
exception is generally not the appropriate procedure to settle questions of contractual
interpretation - In cases of doubt - evidence may be admissible at the trial stage relating
to surrounding circumstances which evidence may clear up the difficulties - Whether a
deviation from the performance of an obligation as required by a written agreement
does not amount to a variation of the contract - As far as the reliance on the non-
variation clause is concerned, it is apparent that it does not in all cases prevent
conclusions of further agreements. Rani Traders cc & 5 others v Woerman Brock & Co
(Pty) Ltd (I 3889/2014) [2016] NAHCMD 223 (27 July 2016).

Principles - An exception can successfully be raised under two circumstances; where

the summons and/or particulars of claim is vague and embarrassing and if the
summons and/or particular of claim lack averments which are necessary to sustain an
action or defence. However where they have been couched with sufficient particularity,
the court is reluctant to grand it. Plaintiff advanced a loan to 1 st defendant and 2nd
defendant stood as a co-principal debtor and guarantor. First defendant defaulted in his
installments and plaintiff sued 2nd defendant for the recovery of the same. Second

31
defendant applied for an exception on the basis that plaintiff should have followed the
preliminary procedure of negotiations as stipulated in the SME loan agreements.
Second defendant was aware of his indebtedness and cannot be allowed to wriggle out
of his obligation on the basis of technicalities. Fides Bank Namibia Limited v Shilongo (I
239/2013) [2016] NAHCNLD 21 (07 March 2016).

Divorce proceedings - Exception - Res judicata - Foreign decree of divorce. In this

matter, the parties got married in 1994, in Arizona, Unites States of America. Both
parties lived in Namibia, until the plaintiff left Namibia in 2006, for a visit to the United
States. During her time of absence, defendant filed for divorce in Namibia. Plaintiff
defended the divorce proceedings, and in addition thereto instituted her own divorce
proceedings against defendant in the District Court of Linn County Kansas, United
States of America, in September 2007. Plaintiff’s divorce action was finally granted 1
December 2011, awarding the custody of their then minor child to plaintiff and property
within the state of Kansas to the plaintiff (the foreign court’s order). Subsequent to the
above, Plaintiff instituted the current action to make the foreign court’s order an order of
the High Court of Namibia and for the issuance of an order whereby defendant forfeits
the benefits derived from their marriage concluded in community of property,
alternatively, division of the joint estate, and ancillary relief. Held that the parties are
finally divorced in terms of the foreign court’s order, and cannot divorce twice. The
division of the matrimonial estate is intrinsically linked to the dissolution of the marriage.
Johnston v Johnston (I 5086/2014) [2016] NAHCMD 331 (28 October 2016).

Exception hearing – Rule 57 of the Rules of High Court - Grounds for Exception – No
Cause of Action. The first defendant brought an exception on the basis that the
plaintiffs’ main and alternative claims did not disclose a cause of action in terms of the
written agreement signed between the parties. Exception against main (delictual) claim
abandoned. Exception against the alternative claim based on the written agreement
proceeded on the basis that the “effective date” did not arise and therefore the warranty
in the written agreement that the second defendant will be the owner of the immovable
property on the effective date, resulted therein that no actionable breach was
committed. Lee v Kambueshe (I 4084/2015) [2016] NAHCMD 332 (28 October 2016).

Exception- No cause of action on the basis of the parol evidence rule, alternatively
vague and embarrassing. Masshire Equipment Services (Pty) Ltd t/a Coastal Hire
Ongwediva v Shimbundu (I 234/2016) [2016] NAHCMD 334 (31 October 2016).

Rules of Practice – Rule 57 read with Rule 45(5) of the High Court Rules - Exception -
On the grounds that the plaintiff’s particulars of claim do not contain the necessary
averments to sustain a cause of action – And fails to disclose a cause of action against
the defendant. Epango Fishing (pty) Ltd vs Erongo Marine Enterprises (Pty) Ltd (I
32
2582/2015) [2016] NAHCMD 324 (21 October 2016); Michael Steward No & 1 Other //
Engelbrecht (A 08/2015) [2016] NAHCMD 361 (11 November 2016).

INTERPRETATION OF STATUTES

Immigration – Permanent residence – Requirements for – Applicant averring he

satisfied the requirement that he has such qualifications, education and training and
experience as are likely to render him efficient in business he intended to pursue –
Averment made by applicant’s counsel during hearing of matter – Copy of application
applicant made to first respondent’s Board not placed before court for the court to
determine if such information was placed before the Immigration Selection Board – In
any case court found that applicant was an illegal immigrant within the meaning of Act 7
of 1993, subsec 1, read with sebsec 2 of s 39 – For that reason Board not competent to
authorize issue of permanent resident permit to applicant in terms of Act 7 of 1993 – It
will be offensive of the Act as it would defeat the object of the Act and thwart the
intention of the Legislature if the Board was ordered to authorize the issue of a
permanent resident permit to the applicant – Consequently, the application was
dismissed with costs. Mashozhera v The Chairperson of the Immigration Selection
Board (A 207/2015) [2016] NAHCMD 38 (25 February 2016).

Competition Act 2 of 2003 – Competition in the Namibian market – In terms of

Competition Act 2 of 2003 – Object of Act is to safeguard and promote competition in
the Namibian market – Court held Namibian Association of Medical Aid Funds (NAMAF)
and its constituent members (ie Funds) established in terms of the Medical Aid Funds
Act 23 of 1995 are ‘undertakings’ within the meaning of s 1 of that Act – They carry on
business for gain within the meaning of s 1 of Act 2 of 2003 – Meaning of business ‘for
gain’ explained – NAMAF and constituent Funds subject to application and force of Act
2 of 2003 – Meaning of ‘non-commercial socio-economic objective’ within the meaning
of s 3(1)(b) of Act 2 of 2003 considered – Meaning of ‘activities of statutory body’
explained – Court held further that although the applicants are established by statute
(Act 23 of 1995) they are ‘undertakings’ and they have not been exempt from the
application and force of Act 2 of 2003 by that Act – Court further held that the issuing
and publication of ‘benchmark tariff’ in respect of medical services by first applicant are
unlawful as they are offensive of the anti-competition provisions of Act 2003 –
Consequently, such activity is not exempt from application and force of Act 2 of 2003
though carried out by a statutory body in terms of s 3(3) of Act 2 of 2003 –
Consequently, application dismissed with costs. Namibian Association of Medical Aid
Funds v Namibian Competition Commission (A 348/2014) [2016] NAHCMD 80 (17
March 2016).

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High Court Act, 1990 – Section 18 (3) considered. RULES OF THE HIGH COURT –
Rule 121. CIVIL PROCEDURE – Collateral constitutional challenge considered. The
applicant applied for leave to appeal a judgment of this court to the Supreme Court on
the basis that this court erred in refusing to consider a collateral challenge in relation to
a constitutional issue. Held – the constitutional collateral challenge was raised after
litigation between the parties had ceased and was therefore no longer open to be raised
by the applicant for the court’s determination at that stage. Held – that the applicant
should have raised the constitutional issue at the inception of the proceedings and not,
as was the case, in response to an application for leave to execute the High Court’s
order after litigation between the parties had come to an end. Held further – that parties
should avoid the proliferation of proceedings by suing once and for in proceedings
relating to the same subject matter between the parties. Held – that the applicant should
have cited the Government as a party in the proceedings and that the ‘invitation’
allegedly extended to the Attorney-General, as an interested party does not suffice.
Held further – that the act complained of, namely the applicant’s eviction cannot be
described as ‘coercive action’ within the meaning of the case law, as the eviction was in
pursuance of an order of court and not the exercise of administrative power by a public
authority. The application for leave to appeal was dismissed with costs. Dirk Johannes
Von Weidts & Another v Minister of Land and Resettlement (I 1852/2007) [2016]
NAHCMD 92 (4 April 2016).

Nature conservation Ordinance, 1975 – Sale of game or game meat or the skins of
any game which is obviously under the age of one year – Prohibition of – But exemption
to prohibition of such sale in terms of s 47(1)(a) and (b) of the Nature Conservation
Ordinance 4 of 1975 – Exemption provided by proviso in s 47(1) – Proviso establishes
dualism between ‘a farm’ and ‘a piece of land’ – Therefore requirements which the
owner or lessee of ‘a farm’ must satisfy in order to qualify for the exemption are totally
different from requirements the owner or lessee of ‘a piece of land’ must satisfy in order
to qualify for the exemption – An interpretation which subjects the owner of ‘a farm’ to
the requirements prescribed for ‘a piece of land’ is wrong – It does great violence to the
English language and the rule of syntax – More important; it sets at naught the intention
of the Legislature – Court found therefore that the last minute limitation placed on the
permits issued on 29 March 2016, and without giving the third applicants audi was ultra
vires and unlawful – Consequently, court held that third applicant was entitled to launch
the urgent application and the court was justified in granting the relief sought by third
applicant. Wildlife Ranching Namibia v Minister of Environment and Tourism (A
86/2016) [2016] NAHCMD 110 (13 April 2016)

Pensions Funds Act, 1956 – Pension - Defined benefit fund – Locus standi of former
members - Whether former members identifiable - ‘Person aggrieved' signifying
34
someone whose legal rights infringed and having a legal grievance. Former Members of
the Rössing Pension Fund v Rössing Pension Fund & Other (A 234/2014) [2016]
NAHCMD 155 (1 June 2016).

Combating of Domestic Violence Act, Act 4 of 2003 - A party who is offended but
has no relationship with the alleged offender cannot obtain relief under the Combating
of Domestic Violence Act, Act 4 of 2003. – There should be a relationship between the
parties and there should be a violation of a right. – Appeal upheld. Appellant who is
related to respondents was sued under the Combating of Domestic Violence Act, Act 4
of 2003. Appellant was issued with an interim protection order which was not legally
proper in the circumstances. Appeal is upheld. Aindongo v Nestor (CA 03-2014) [2016]
NAHCNLD 65 (29 July 2016).

Road Fund Administration Act, 18 of 1999 - Skorpion Mining Company (Pty) Ltd v
Road Fund Administration (I 2063-2014) [2016] NAHCMD 201 (12 July 2016)

High Court Act, 1990 - Court - Jurisdiction - Exclusion of by statute, - Approach by

Court - Aggrieved party given certain statutory remedies - The mere fact that the
Legislature has provided an extra-judicial right of appeal is not sufficient to imply an
intention that recourse to a Court of law should be barred until the aggrieved person has
exhausted his statutory remedies. The Njagna Conservancy Committee v The Minister
of Lands and Resettlement (A 276-2013) [2016] NAHCMD 250 (18 August 2016).

Communal Land Reform Act, 2002 - Procedures for obtaining customary land rights
and rights of leasehold in respect of land situated in communal land are set out in the
Act - Onus of proof on plaintiff to show that a person have not acquired customary land
rights - But onus on defendant to rebut prima facie case made out by plaintiff. The
Njagna Conservancy Committee v The Minister of Lands and Resettlement (A 276-
2013) [2016] NAHCMD 250 (18 August 2016).

Communal Land Reform Act, 2002 - Any allocation of a customary land right made by
a Chief or a Traditional Authority under s 22 has no legal effect unless the allocation is
ratified by the relevant communal land board in accordance with s 22. The Njagna
Conservancy Committee v The Minister of Lands and Resettlement (A 276-2013) [2016]
NAHCMD 250 (18 August 2016).

Communal Land Reform Act, No 5 of 2002 – Application – Application by a

Traditional Authority for eviction orders against illegal settlers in the communal area
without permission granted by the Traditional Authority in terms of section (29) (4) of the
Communal Land Reform Act, No 5 of 2002 – Individual Councillor has no right or power

35
to give permission to a non-resident person to occupy a portion of a commonage –
Permission must be in writing and must be ratified by the Communal Land Board –
Eviction orders granted. Vita Royal House v The Minister of Land Reform & 10 Others
(A 109/2015) [2016] NAHCMD 339 (7 November 2016).

Agricultural (Commercial) Land Reform Act No 6 of 1995 - Applications – Eviction

from a commercial farm – Applicant alleging that the lease agreement is in
contravention of section 58 (1) (b) (ii) of the Agricultural (Commercial) Land Reform Act
No 6 of 1995 (“the Act)” for the reason that the respondent company is a foreign
national – Applicant bears the onus to prove that the respondent is a foreign national –
Applicant failing to prove that the respondent is a foreign national within the meaning of
the Act – Court dismissed the application. Taljaard v Onguma Game Ranch (PTY) LTD
(A 89/2015) [2016] NAHCMD 333 (28 October 2016)

Airports Company Act, 1998 - What constitutes jurisdictional facts - Jurisdictional fact
– Constitutes a fact the existence of which is contemplated by the Legislature as a
necessary pre-requisite for the Minister to exercise the statutory power conferred upon
him - The power itself is a discretionary one - Even though the jurisdictional fact exists
the Minister is not bound to exercise it - If the jurisdictional fact does not exist, then the
power may not be exercised and any purported exercise of the power would be invalid –
Jurisdictional facts contemplated in s 9(1) and (5) of the Airports Company act were
non-existent – Exercise of power by Minister therefore unlawful. Anhui Foreign
Economic Construction v Minister of Works and Transport (A21-2016)[2016] NAHCMD
265 (9 September 2016).

Local Authorities Act, – Provisions of S3,6 AND 31A of the Local Authorities Act.
Enviro-Fill Namibia (Pty) Ltd v Municipality of Tsumeb (I 6045/2014) [2016] NAHCMD
318 (18 October 2016).

Correctional Service Act 9 of 2012—Treatment of inmates — The Act does not permit
prison warders or officers to abuse inmates by forcibly and without reasonable
justification, confiscate property lawfully acquired by inmates. Josephat Boois V
Assistant Commissioner Nangolo & 3 Others (HC-MD-CIV-MOT-GEN-2016/00312)
[2016] NAHCMD 369 (18 November 2016)

Statute - Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995) – Validity
of section 76 to 80 – Validity of Land Valuation and Taxation Regulations- promulgated

36
under the Act. Kambazembi Guest Farm CC T/A Waterberg Wildnerness v The Minister
of Land Reform and 5 Others (A197/2015) [2016] NAHCMD 366 (17 November 2016).

Statute - Communal Land Reform Act, 2002 – Application to interdict and restrain
respondents’ from unlawfully evicting the applicants from an area of communal land.
Statute Communal Land Reform Act, 2002 -Rights that may be allocated in respect of
communal land under the Communal Land Reform Act, 2002 - are divided into
customary land rights and rights of leasehold – Section 18 of the Communal Land
Reform Act, 2002 prohibiting erection of fence without approval under that Act. Erastus
M. Naango v Petrus Kalekela (A 172/2014) [2016] NAHCMD 383 (06 December 2016)

INTERPLEADER

Interpleader – in Fraudem Creditoris - Forms of constructive delivery -constitutum

possessorium. The Deputy-Sheriff Windhoek v Nedbank Limited (I 3891/2011) [2016]
NAHCMD 342 (4 November 2016).

JOINDER

Practice - Parties - Misjoinder or non-joinder- Test of a direct and substantial interest in

subject-matter of litigation the decisive criterion. Ludik v Keeve & Another (A 316/2015)
[2016] NAHCMD 4 (20 January 2016).

Interlocutory – Joinder of Parties – Rule 40 of the High Court Rules - A party may be
joined in a proceeding where whenever the dispute arising between them or any of
them on the one hand and the plaintiff or any of the plaintiffs depends on the
determination of substantially the same question of law or fact which - The reason for
joinder is usually convenience, time, effort and costs are saved by joining parties or
causes in one action instead of brining separate actions. This is an application for the
second to fourth Respondents to be joined to the proceedings between the Applicants
and the First Respondent, pending under case number 1099/2015 in which the
Applicants instituted legal proceedings against the First Respondent seeking damages
arising from injuries caused to the second Applicant when a gate at the First
Respondent’s premises fell on his back. The Second to Fourth Respondents are hereby
joined to the proceedings between the Applicants and the First Defendant. Van Wyk v
Wustrow (I 1099-2015) [2016] NAHCMD 185 (27 June 2016).

37
Applications and motions – Applications – Points raised in limine - Non-Joinder –
Misjoinder – Application struck from the roll with costs. Kamwi v Siluzungila (A
347/2015) [2016] NAHCMD 273 (19 September 2016).

LAW ON EVIDENCE

EVIDENCE – the duty of counsel to put client’s case to opposing witness in cross-
examination and result of failure to do so. Contradiction of witnesses’ evidence on
issues not material and how it is to be dealt with. Cirilo v Ian Copley t/a Welding Works
& Renovations (I 11042014) [2016] NAHCMD 160 (6 June 2016).

Onus of Proof - He who asserts must prove and in a civil trial the said proof is on a
balance of probabilities which is a lessor burden than in a criminal trial. A party who
embarks on self-help cannot be allowed to succeed as such actions are illegal. Where
plaintiff proves that defendant took cattle under his custody, defendant should return
them or compensate him accordingly. The principle of rei-vindicatio was successfully
applied with costs. Alfred N.O v Haikali (I 63-2012) [2016] NAHCNLD 47 (30 June
2016); Suncica Hessel-Enke v Sindlgruber (I 1139-2013] [2016] NAHCMD 205 (15 July 2016).

Evidence – Cross-examination – Cross examination of witness where written witness

statements are served in terms of the rules of court – Court held that written witness
statement not admitted in terms of the rules of court does not constitute witness’s
evidence in-chief in terms of the rules of court – Such witness statement not part of the
record – Court held further that procedure for admitting witness statement in terms of
the rules of court, rule 93(4), conduces to aspects of the rule of law as buttressed by art
12 of the Namibian Constitution – Consequently, to allow cross-examiner to cross-
examine witness on an unadmitted written witness statement will be an affront to the
rule of law and the Namibian Constitution – Cross-examiner cannot, and should not
therefore be allowed to, cross-examine a witness on such unadmitted written witness
statement without none – Procedure for making such written statement part of the
record is to apply it to have it admitted as an exhibit through the witness. Tjihero v
Kauari (I 2845-2012) [2016] NAHCMD 187 (29 June 2016).

Law Of Evidence – cross-examination – duty to put one’s case to the opposite party’s
witnesses and the implications of failure to do so – eliciting hearsay evidence from the
opposing party’s witnesses and effect thereof. Skorpion Mining Company (Pty) Ltd v
Road Fund Administration (I 2063-2014) [2016] NAHCMD 201 (12 July 2016).

38
EVIDENCE – The parole evidence rule and how it impacts on the defence of an
unliquidated counterclaim. First National Bank of Namibia Ltd v Ben-Tovim (I 1183-
2015) [2016] NAHCMD 196 (7 July 2016).

LAW OF EVIDENCE – Court’s approach where the parties adduce mutually destructive
versions. Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7 October
2016).

LAW OF EVIDENCE – Proper approach where the evidence adduced is disparate and
irreconcilable. BV Investment Six Hundred and Nine CC v Kamati (I 1074-2013) [2016]
NAHCMD 216 (22 July 2016).

LAW OF EVIDENCE – Admissibility of communications marked - ‘without prejudice’ –

Prematurity of motion to strike out. Hamilton and Partners v Steenkamp & Others (I
2892/2015) [2016] NAHCMD 314 (13 October 2016).

LEGAL ETHICS

LEGAL ETHICS – a legal practitioner should act as an officer of the court and avoid
partaking of his or her client’s cause in such a manner that affects his or performance of
his or her duty to court. Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I
2679/2015) [2016] NAHCMD 104 (8 April 2016).

LEGAL ETHICS – Duty of legal practitioners to assist the court and to cite relevant
cases in argument. Cloete v Haitengu & Another (I 1611/2015) [2016] NAHCMD 178
(22 June 2016).

LOCUS STANDI

Practice — Applications and motions—Locus standi—Minimum requirement for

deponent of founding affidavit to state authority — If there is any objection to the
authority to bring the application, such authorisation can be provided in the replying
affidavit; - Even if there was no proper resolution in respect of authority, it can be taken
and provided at a later stage and operates retrospectively. JB Cooling and Refrigeration

39
CC v Dean Jacques Willemse t/a Windhoek Armature Winding and Others (A 76/2015)
[2016] NAHCMD 8 (20 January 2016).

Practice - Parties - Locus standi - Party having derivative right and no direct interest
has no locus standi - Such standing cannot be acquired by invoking provisions of art 18
of Namibian Constitution. Maletzky // Kavetu and Others (A 59/2016) [2016] NAHCMD
57 (4 March 2016).

Practice — Applications and motions — Locus standi — applicant also challenging

authority of respondent’s legal practitioner to bring the condonation application on
behalf of his client in the absence of a confirmatory affidavit from the client – Given the
wide ranging powers and authority conferred by resolution passed by the respondent, it
became clear that the bringing of any interlocutory application also fell within the ambit
of the power and authority granted to the legal practitioner thereby – Court also held
that it was not in respect of all interlocutory applications that a confirmatory affidavit,
from a client, confirming the authority, of a legal practitioner, to bring an interlocutory
application on behalf of the client, would be required. The necessity for this would be
dictated by the facts and circumstances of the case. In this instance, the respondent’s
legal practitioner had slipped up. He had instructions to oppose the main application.
He had filed the requisite notice to oppose late, he thus had to get his house in order
and bring a condonation application to rectify this remissness. Surely in such
circumstances a confirmatory affidavit by the client was not required. Namibia Financial
Institutions Supervisory Authority v Hendrik Christian t/a Hope Financial Services (A
35/2013) [2015] NAHCMD 87 (21 May 2014).

Practice – Parties – Locus standi – Of first applicant to bring application on her behalf
and on behalf of the other applicants – Respondent challenging locus standi of first
applicant – Court confirming Roman law actio popularis not part of Namibian law – In
instant case, court finding that on the facts and in circumstances of the case present
application does not constitute actio popularis – Consequently, court rejected
respondents point in limine on applicant’s locus standi in judicio. Applications and
motions – Application for declaratory orders – Question to answer was whether lawful
for respondents to make deductions from applicants’ salaries for salaries respondents
received retrospectively – Where payment of approved salaries was with effect from a
particular date but pending the happening of an event the critical date on which one’s
right to the new salaries inured is the ‘with effect from’ date not date on which the
pending event occurred – To contend otherwise is to wrongfully conflate the time at
which the right inured with the time at which payment, for all manner of reasons, can be
effected – In the instant case the critical date was 1 December 2009 and applicants’

40
rights to the approved revised salaries was 1 December 2009 – Consequently,
respondents had no power in law to make, and continue to make, deductions from
applicants’ salaries for alleged unlawful retrospective payment of the salaries –
Respondents’ action is ultra vires and unlawful – Consequently the right thing to do is to
grant declaratory order and, a priori, interdictory relief and directions sought. Katjivena v
Prime Minister of the Republic of Namibia (A 265/2014) [2016] NAHCMD 146 (18 May
2016).

Practice – Applications and motions – Locus standi – Minimum requirement for

deponent of founding affidavit to establish authority to institute motion proceedings – In
challenging the authority so established respondent must adduce cogent and
convincing evidence that deponent has no authority – In instant case deponent clearly
establishing his authority supported by resolution by applicant trade union – Court held
that deponent satisfied the minimum evidence requirement and requirement that
deponent must establish his or her authority in founding affidavit – Court found
respondents’ challenge to authority unconvincing and weak – Consequently, challenge
to deponent’s authority to institute the motion proceedings rejected. Principles in
Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd 2011 (1) NR 298 (HC); and
Pinkster Gemeente van Namibia v Navolgers van Christus Kerk van SA and Another
1998 NR 50 (HC) applied. Namibia Farm Workers Union (NAFWU) v Angula (A 290-
2015) [2016] NAHCMD 252 (8 September 2016).

Locus standi in judicio . Brink & Another v Erongo All Sure Insurance & Others (I
3249/2015) [2016] NAHCMD 200 (8 July 2016)

MATRIMONIAL

Settlement agreement - A party who signs a handwritten agreement but refuses to

sign a typed one cannot be allowed to resile from it without just cause. Agreement is
legally binding. Plaintiff sued defendant for divorce. This action was defended. The
matter was referred to mediation where an agreement was reached. Due to time
constraint it was handwritten and signed by the parties including their legal practitioners.
The matter was set down for a Restitution of Conjugal Rights, but plaintiff refused to
sign the typed version of the agreement. There was no reasonable excuse given.
Another legal practitioner was appointed amicus curiae for him but to no avail. There
was no lawful impediment why the agreement should not be enforceable. Festus
Nghipona vs Nghipona (I 41/2014) [2016] NAHCNLD 09 (12 February 2016)

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Restitution Order - In a divorce matter where a Restitution of Conjugal Rights has
been granted together with ancillary relief the defendant is entitled to contest the said
ancillary relief as she should have her day in court. Plaintiff sued defendant for divorce.
A Restitution of Conjugal Rights was granted with ancillary relief. Defendant consented
to the divorce, but, contested the ancillary relief. Plaintiff argued that she cannot revisit
the ancillary relief as this was res judicata. Defendant had not been heard by the court.
Held that the matter was not res judicata. Held that defendant was entitled to her day in
court. Samuel Andreas v Kauluma (I 73/2015) [2016] NAHCNLD 10 (12 February 2016).

Husband and wife – Divorce – Malicious and constructive desertion – Plaintiff

instituting divorce proceedings on the grounds of malicious and construction desertion –
Alleging adultery as one of the grounds – Husband and wife – Defendant in
counterclaim alleging malicious and constructive desertion as grounds for divorce –
Plaintiff moved out of common bedroom and obtained a protection order against
defendant – Plaintiff’s action dismissed – Defendant granted restitution order with
ancillary relief. Dreyer v Dreyer (I 3883/2014) [2016) NAHCMD 115 (21 April 2016).

Husband and wife – Marriage out of community of property accrual system applicable
– Defendant (husband) applied to Court for an order to exclude certain assets from the
accrual – Defendant (applicant) alleging that the assets to be excluded from the accrual
are a donation from the employer - Held that the applicant failed to discharge the onus
on a balance of probabilities that the assets sought to be excluded from the accrual are
a donation. Dörgeloh v Dörgeloh (I 2662/2014) [2016) NAHCMD 131 (28 April 2016)

Family Law- Divorce – Action for adultery based on contumelia and loss of consortium
– whether still sustainable in the modern era. Van Straten v Bekker (I 6056-2014) [2016]
NAHCMD 243 (25 August 2016).

Divorce proceedings – s 5(1) of Matrimonial Affairs Ordinance – spousal maintenance

granted. In this matter the parties had a partial settlement in mediation in terms of
division of assets and requested a ruling pending the divorce on the issue of spousal
maintenance. Held, that rehabilitative spousal maintenance can be determined without
hearing the grounds of divorce. Negongo v Negongo (I 3179-2015) [2016] NAHCMD
230 (9 August 2016).

Husband and Wife –Divorce– Claims by Plaintiff-Counterclaim by Defendant –

Malicious Desertion – Married in community of property. Husband and wife –
Proprietary consequences – Forfeiture of benefits of marriage in community of property
- Making of specific forfeiture order requires evidence of value of estate at time of
divorce and of all contributions made by spouses – Evidence not sufficient to make such

42
order. Iginasius Andreas Mwira v Hildergard Ermel Mwira (Born Gaeses) (I 2354/2011)
[2016] NAHCMD 299 (28 October 2016).

Regime - A party who chooses to marry in community of property and signs a

declaration in terms of section 17of the Native Administrative Proclamation Act, Act
15/1928 of and conducts himself as being married in community of property should be
treated as such. He/she cannot be allowed to claim the opposite when the relationship
turns sour. The parties were married in community of property and signed a declaration
as required by section 17 (6) of the Native Administrative Proclamation Act, Act
15/1928. They continued to conduct their marriages as such. Plaintiff issued summons
for divorce and claimed that the marriage was out community of property. Evidence
pointed to the contrary. The court held that the marriage was in community of property.
Shambwila v Shambwila (I 182/2014) [2016] NAHCNLD 91 (17 November 2016).

PLEADINGS

Practice – Pleadings - Amendment of plea to introduce special plea. Amendment

lodged just before date of trial – Delay in seeking amendment of pleadings – Such
applications at advanced stage of proceedings frustrate the overriding principle of
judicial case management. Managing Judge should be slow to allow any late
interlocutory proceedings, which might delay final determination of case – Exceptional
circumstances. – Legal practitioners appear to not have properly assisted the defendant
– Defendant obtaining new legal representation who picked up an important issue which
he wished to raise via special plea by the introduction of same in a notice of amendment
– Defendant at the outset tendering wasted costs on an attorney and client scale –
Although the actions of the defendant left much to be desired, the attitude and conduct
of his legal practitioners was such that the blame for his dilatoriness could not be placed
on his doorstep. National Fresh Products (Pty) Ltd v Mundjele (I 2658-2014) [2016]
NAHCMD 2 (18 January 2016); Tjoklits Investment CC vs Aquarius Investments No.191
Cc and another (I 1569/2013) [2016] NAHCMD 360 (8 November 2016).

Amendment - Notice of Motion - Amendment of - Substitution of the name of the right

respondent for that of the wrong one - Application for amendment always in order
unless made mala fide or prejudicial to other party - Courts gradually moving away from
overly formal approach - Mere fact that citation or description of party happening to be
of non-existent entity not per se rendering notice of motion void - Citation of second

43
respondent nothing more than misdescription - Application for amendment allowed.
Ludik v Keeve & Another (A 316/2015) [2016] NAHCMD 4 (20 January 2016).

Amendment of - Application opposed on ground that claim prescribed – Court

confirming that, in appropriate circumstances, an intended amendment, could be
refused if such amendment would introduce a new claim, which had become prescribed
– court holding further that for purposes of deciding whether a debt has become
prescribed it would first be necessary to identify ‘ … what the `claim' was in the broad
sense of the meaning of that word.’ In the further exercise - where a court is then called
upon to decide whether a summons or a counter claim interrupts prescription - it will
become necessary to compare all the allegations and the relief claimed in the
summons, with the all the allegations and relief claimed in the amendment, to see if the
debt is, substantially, the same or not and whether the claim would “relate” to the same
set of material facts, that beget the plaintiff’s rights of action.’

In addition the principles, pertaining to amendments, in general are to be kept in mind,

in terms of which the court will allow an amendment where the main issue between the
parties remains the same - as the aim is to achieve - through the amendment - that the
true issues are formulated onto the record, in order to do justice between the parties.

The technique, to be employed, for purposes of deciding whether the claims, relate to
the same set of facts, that beget the plaintiff’s right of action, is to firstly to embark on a
comparison of the allegations and relief, claimed in the original conditional counter-
claim, with the averments and the relief, claimed in the intended amendment. In this
regard it should be taken into account that the fact, that there are differences between
the facta probanda, necessary to prove the original cause of action, and those,
necessary to prove the amended claims, do not invariably have to lead to the
conclusion that the original claim does not interrupt prescription. It also being relevant
in this regard to determine whether the original right of action and relief claimed is the
same, or substantially the same, as in the amendment.

In casu – the analysis of the pleadings - exposed that the differences between the
original counter-claim and those claims, which the applicant sought to introduce, were
so substantial, so as to translate the additional claims, into different, or substantially
different rights of action.

The analysis also showed that the facta probanda, necessary to prove the original
counter- claim, were vastly different from those, that underpinned the two new claims,
which the applicant sought to introduce, by way of amendment. Court therefore holding
that the additional claims simply did not relate, sufficiently, to the same set of material
facts that begot the applicant’s original right of action. Application for the amendments
44
accordingly refused. Standard Bank Namibia Limited v Hartzenberg and others (I
1351/2012) [2015] NAHCMD 137 (11 July 2014).

Pleadings – Amendment - propose amendment falls in the category of an amendment

that is ‘less significant – No prejudice to the defendant. Hakkiesdoorn Estate (Pty) Ltd //
Wessels Farming CC (I 1222/2014) [2016] NAHCMD 172 (16 June 2016).

Amendment - An application to amend pleadings or documents can be made at any

stage of proceedings before judgment on good cause shown. A party who fails to fully
instruct its Legal Practitioner but allows him to proceed on inadequate instructions up to
Mediation stage which fails and thereafter seeks to amend documents cannot be
allowed to do so without good cause shown. Applicant applied for amendment of
documents which was opposed by respondent. The matter had progressed to an
advanced stage when another Legal Practitioner took over and proceeded to mediation.
When Mediation failed, Applicant then applied for the amendment of documents on the
basis that she had not fully instructed her Legal Practitioner. This was not a good
ground for a good cause which should be shown in order to amend on this type of
application. Sunnyside Trading Enterprising CC v Ipumbu (I 11-2014) [2016] NAHCNLD
35 (22 April 2016).

Averments - A party who fails to make necessary averments in order to enable the
other party plead will not be allowed to use such pleadings. Special plea and exception
upheld. Summons were issued, were defended and defendant filed a counter-claim.
The counter-claim failed to make necessary averments for plaintiff to plead. In the
process plaintiff sought to introduce new evidence through heads of argument. Plaintiff
applied for both a special plea and exception. The said averments were necessary to
plead and the evidence sought to be introduced was inadmissible. Applicants
succeeded. Alfred NO v Haikali (I 63-2012) [2016] NAHCNLD 61 (22 July 2016).

Rules of court- Amendments of pleadings - rule 52 (4) as read with 52 (5) of the rules
of the Court- Exceptions rule 57. Offshore Development Company v Deloitte and
Touche (I 1111-2006) [2016] NAHCMD 191 (30 June 2016).

Rule 59 (9) - Amendment of pleadings – Non joinder – whether it constitutes a ground

for the court to refuse an otherwise good application for amendment. Trustco Group
International (Pty) Ltd v Atlanta Cinema Capital CC & Others (I 370/2012) [2016]
NAHCMD 297. (30 September 2016).

Practice – Pleadings – Amendment – exception- Court will normally lean in favour of

granting amendments –Amendment would be declined where it would render pleadings
excipiable- onus on excipient that proposed amendment discloses no cause of action. I-

45
Chuan Kuo v Sphia Investments CC (I 2543/2015) [2015] NAHCMD 341 (10 November
2016)

POCA

Prevention of Organised Crime - Civil recovery of property in terms of chapter 6 of the

Prevention of Organised Crime Act, 2004 (No. 29 of 2004) - Chapter 6's primary focus
not on wrongdoers, but on property used to commit offence or which constitutes
proceeds of crime - Criminal conviction not condition precedent to forfeiture and
property may be forfeited even where no charge pending - Guilt or wrongdoing of
owners or possessors of property not primarily relevant to proceedings. Prevention of
Organised Crime - Maxim - Omnia praesumuntur rite esse acta - simply presumes that
formal procedural steps that are required to take a valid administrative act or decision
have been complied with. Prevention of Organised Crime - Preservation of property
order - Chapter 6 of Prevention of Organised Crime Act, 2004, - Property subject to
order-'Proceeds of unlawful activity' defined as property derived, received or retained,
directly or indirectly, in connection with or as result of unlawful activity - Applicant for
order to show link between unlawful activity and property. The Prosecutor-General //
New Africa Dimensions CC And Two others (POCA 10/2012) [2016] NAHCMD 123 (20
April 2016).

PRACTICE AND PROCEDURE

Effect of plea - A special plea does not deal with merits but brings to light prevailing
circumstances which are not apparent which if proved have the effect of halting an
action by plaintiff. A debt as defined under the Prescription Act 68 of 1969 has a
general and wide meaning which includes a vindicatio. Plaintiff and defendant entered
into a verbal contract wherein they were agreed to swap cars. This did not materialise.
Plaintiff however fulfilled his part of the contract but defendant did not. Defendant was
in possession of Plaintiff’s motor vehicle. Plaintiff instituted proceedings against
defendant to recover the said motor vehicle but this was after the expiry of three years
to which defendant raised a special plea. The special plea was upheld. Eradius
Mokaxwa v Iikela (I 95/2015) [2016] NAHCNLD 03 (29 January 2016).

Practice - A party who institutes proceedings against another is expected to prosecute

the said proceedings at a reasonably expected speed. The same speed is expected of
defendant/respondent. Litigation process is no longer litigant/lawyer driven, but, court

46
driven. A party which fails to comply with the rules stands the risk of having its claim or
defence dismissed. Claim was dismissed for lack of seriousness on the part of the
plaintiff. Plaintiff issued summons, against defendant. The matter was docket allocated.
The parties did not show an interest in the finalisation of the matter as they continued to
ignore the court orders. The claim was dismissed for lack of seriousness on plaintiff’s
part. Marwa and Associates Land Surveyors v Helao Nafidi Town Council (I 181/2014)
[2016] NAHCNLD 13 (29 February 2016).

Practice – Applications and motions – Applicants seek orders that court not competent
to grant – Court not competent to give advice to litigants – Court not competent to order
mandamus generally to public authorities to obey the Namibian Constitution – Court not
competent to order respondents to grant bail when they have no power to grant bail.
Nakale v The Minister of Justice (A 331/2012) [2016] NAHCMD 98 (7 April 2016)

Practice - Applications and motions – Ex parte application – but interested party having
been served with application - such party indicating that it wished to oppose ex parte
application – such party also bringing two applications in terms of Rule 30 to set aside
ex parte application as an irregular proceeding - effect of failure by such party to
formalise its locus standi in the ex parte application by bringing an application for leave
to oppose the ex parte application in terms of High Court Rule 6(4)(b) – Court holding
that a party does not become a party to proceedings in which it has not been cited
merely by virtue of the filing of a notice of opposition and in the absence of being
formally joined as a party to pending proceedings. The Rules of Court prescribe the
route to be followed. In motion proceedings a party, wishing to intervene, can utilise
Rule 6(4)(b) – A party to such proceedings can raise the in limine objection of non- or
misjoinder – the rules also regulate the procedural steps to be taken in this regard in
action proceedings. The non-compliance with the Rules of Court can be condoned – but
this was neither the applicable scenario here, nor was such condonation applied for. As
no leave to oppose was ever granted to such party on application, supported by an
affidavit, setting out the nature of its interest and the grounds upon which it desired to
be heard, court holding that it followed that such party was not properly before the court
– its Rule 30 applications were thus irregular in circumstances in which the court could
also not hear such party - court thus declining to entertain such applications in the
circumstances. Practice - Applications and motions – application for a variation of an
order regulating procedure to be followed before the court – such order an interlocutory
order - which could be varied on good cause shown – application for variation granted.
Hendrik Christian t/a Hope Financial Services (A 35/2013) [2016] NAHCMD 111 (18
September 2013).

Practice - Arbitration – Award made by the Arbitrator in terms of the Arbitration Act,
1965 – Respondent not agreeing with the terms of the award – Opposition to give a
47
further opportunity for the award to include and solve all disputes – No legal basis for
such relief sought – ss 23-33 of the Act not complied with – Application granted.
NAMSOV Fishing Enterprices (Pty) Ltd v Merit Investment Eleven (Pty) Ltd (I
3472/2013) [2016] NAHCMD 120 (21 April 2016)

Practice - Voluntary association – Unincorporated voluntary association – Political

party – Jurisdiction of court to intervene in affairs of political party (1 st respondent) –
Court held that the foundation of jurisdiction of court to interfere at instance of members
(applicants) of a political party improperly expelled in order to reinstate them is the right
in contract – Courts power to intervene is therefore founded on its jurisdiction to protect
rights of contract – Court held further that the 1 st respondent’s Constitution,
supplemented by the Code of Conduct and Disciplinary Proceedings constitutes the
written contract expressing terms on which members associate together in and with the
1st respondent. Amupanda v Swapo Party of Namibia (A 215/2015) [2016] NAHCMD
126 (22 April 2016)

Practice – Applications and motions – Interlocutory application – Court held that the
relief sought by the applicant is an interlocutory order through and through – It matters
tuppence whether the order concerns an application to review and set aside a decision
of respondents and a constitutional challenge in the main application – Accordingly,
court held that the instant application is an interlocutory application and therefore
subject to the rule 32(9) and (10) of the rules of court – Court held further that whether
rule 32(9) and (10) has been complied with is a question of fact – And court found that it
has not been established factually that rule 32(9) and (10) has been complied with –
Applying Mukata v Appolus (I 3396/2014) [2015] NAHCMD 54 (12 March 2015) court
held that non-compliance with rule 32(9) and (10) is fatal – Consequently, court upheld
the point in limine and struck the application from the roll with costs – Principle of
publicum ius privatorum pacis mutari non potest applied. Kambazembi Guest Farm CC
t/a Waterberg Wilderness v The Minister of Lands and Resettlement (A 21/2015) [2016]
NAHCMD 118 (21 April 2016).

Applications and motions – Rule nisi – Revival of in terms of rule 86 of the rules of
court – Rule nisi discharged in absence of applicant on the return day – Court held that
applicant must satisfy the court that good grounds (that is, cogent and convincing
grounds) exist to revive a discharged rule nisi. ZZZ Trading Enterprises CC v Yanica
Constructions CC (A 115/2016) [2016] NAHCMD 152 (27 May 2016).

Practice - Declaration of rights — when granted — Court to approach the question of a

declarator in two stages. 'First, is the applicant a person interested in any existing,
future or contingent right or obligation. Secondly, and only if satisfied at the first stage,
48
the court decides whether the case is a proper one in which to exercise its discretion.
An existing dispute is not a prerequisite for jurisdiction under s 16(c) of the High Court
Act No 16 of 1990. There must, however, be interested parties on whom the declaratory
order will be binding. The absence of an existing dispute may, of course, incline the
court, in the exercise of its discretion, not to grant a declarator. Christian ta Hope
Financial Services (A 35-2013) [2016] NAHCMD 188 (30 June 2016).

Practice - A party who mounts an application for an interdict when it is aware of the
existence of a dispute of facts, but, choses to bring it under motion proceedings will not
succeed – Party must show that it has a clear right – there exists an injury committed or
reasonably apprehended – absence of a similar remedy – a joinder is required where
the party concerned has a direct and substantial interest. It is not necessary to join the
Registrar of Deeds as he is required to transfer properties without court orders – non-
joinder is not fatal in the circumstances – courts will not insist on joinder of a party who
may be affected by an order if such a party has no right (s) conflicting with those of
applicant. Points in limine raised were upheld. Application dismissed with costs and
matter referred to trial. Amukugo v Town Council of Ondangwa (A 01-2016) [2016]
NAHCNLD 56 (07 July 2016).

Practice – Applications and motions – Dispute of fact – When material disputes which
have arisen are such as would give rise to a variety wide spectrum of substantial factual
enquiries motion proceedings not appropriate – More appropriate to order parties to trial
– Where affidavits contain all necessary averments and define the issues sufficiently
clearly pointless to order filing of pleadings – Accordingly, to save time and expense
advisable to order affidavits to stand as pleadings which have closed. Principles in
Hadiaris v Freeman and Freeman 1948 (3) SA 720 (W) applied. Van Straten NO v
Desert Fruit (Pty) Ltd (A 38-2014 and A 91-2015) [2016] NAHCMD 224 (28 July 2016).
Applications and motions – Rule nisi – On return date of rule nisi issued on 31 March
2016 respondents entitled to show cause why the order which is in the form of a rule
nisi should not be made final – That reasonably includes showing that the order should
not have been granted in the first place because there was no proper case made out on
the papers for that order – Court found that in instant case there is nothing in the
applicant’s papers contradicting fourth respondent’s clearly emphatic assertion that he
donated the property in question to first respondent voluntarily and while he was in good
physical and mental health – Applicants has not made out a case for the confirmation of
the rule nisi – On the facts Court concluded that it will therefore be unjust and
unreasonable to confirm the rule nisi – Consequently, rule nisi discharged and
application dismissed with costs. Hatutala v Hatutala (A 82-2016) [2016] NAHCMD 203
(14 July 2016).

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Practice – Final interdict – When to be granted – Applicant must prove a clear right,
act of interference or threatened interference with the right, and that applicant cannot
obtain adequate redress in some other form of ordinary relief – Court finding that the
applicant has established its right granted by the Traditional Authorities Act 25 of 2000
and there was an act or threatened act of interference with the Act and the applicant
cannot obtain adequate redress in some other form of ordinary relief – Court held that
where a statute has vested powers in a statutory body to carry out certain functions and
perform certain duties the court should not take any decision that is likely to thwart,
without lawful justification, the statutory body in carrying out such functions and from
performing such duties. Ovambanderu Traditional Authority v Nguvauva (A 172-2016)
[2016] NAHCMD 235 (18 August 2016).

Civil Procedure – Citation of parties in pleadings – whether a municipality is a legal

persona capable of suing and being sued in law. Enviro-Fill Namibia (Pty) Ltd v
Municipality of Tsumeb (I 6045/2014) [2016] NAHCMD 318 (18 October 2016).–

CIVIL PROCEDURE – Amendment of pleadings – Rule 52 - applicable principles – the

effect of the amendment of pleadings after the close of the case for the plaintiff. The
plaintiff sued the 1st defendant for eviction from certain premises which she claims she
purchased from the 2nd defendant. The 1st defendant defended the proceedings and
also filed a counterclaim. The trial proceeded in earnest and at the close of the case for
the plaintiff, the 1st defendant intimated that he intended moving an application for
amendment of both his plea and counterclaim. The plaintiff and the 2 nd defendant
opposed the proposed amendment.

Held – that an applicant for amendment craves an indulgence from the court and for
that reason, an amendment cannot be granted merely for the asking.
Held – that the 1st defendant had failed, on affidavit to make a compelling and
persuasive case for the granting of the amendment at such a late stage of the
proceedings.
Held further – that the scale and nature of the amendment was massive and would
introduce new causes of action and require other parties to be joined in the
proceedings.
Held – that the prejudice to be suffered by the other parties if the amendment is granted
is evident, including the need to file fresh pleadings; call witnesses, some of whom may
no longer be available; documentary information required to meet the 1 st defendant’s
counterclaim may no longer be available. This was held to be so considering that the

50
parties had finalized the pleadings and had the court’s imprimatur on the issues in
dispute for determination in the pre-trial order. The application for amendment was
refused with costs. Billy v Mendonca (I 3945-2013) [2016] NAHCMD 391 (16 December
2016)

PRESCRIPTION

PRESCRIPTION – It was argued that the plaintiff sought to amend its particulars of
claim during a period when the period of three years had elapsed and that the amended
claim had for that reason prescribed. Held – the amendment did not serve to introduce a
new cause of action and that the claim, which had only been expatiated upon on
amendment had not prescribed. Held further – the issuance of the summons in the first
instance had served to interrupt the running of prescription. The special plea of
prescription was therefor dismissed. Okorusu Fluorspar (Pty) Ltd & Another v Tanaka
Trading CC and Another (I 2055/2013) [2016] NAHCMD 16 (05 February 2016); JJJ
Transport & Another v Shaanika (I 1707/2015] [2016] NAHCMD 236 (12 August 2016);

Prescription – Extensive prescription of a debt arising from an overdraft facility – Time

limit set out in the Prescription Act 68 of 1969 still applicable – Prescription to run for
three years from the date that the debt become due – Interruption by part payment –
Special plea of prescription dismissed since part payments were made before the
expiration of a period of three years – Plaintiff proved established on a balance of
probabilities. NEDBANK v Pro-Housing CC (I 2119/2012) [2016] NAHCMD 33 (24
February 2016).

Prescription- Claim for a declaratory order or interdict susceptible to prescription.

Locus standi - legal proceedings on behalf of a voluntary association with legal
personality must be instituted in the name of the association and not in the name of the
council of such association. The Council of Itireleng Village Community & Another v
Felix Madi & 27 Others (A 201/2015) [2016] NAHCMD 114 (19 April 2016)

Prescription – Section 39 of the Police Act of 1990 - The plaintiff was arrested without
warrant on the 27th of July 2010 in Windhoek. He was further detained at the Windhoek
Correctional Facility for 191 days until the charges were withdrawn against him on the
13th of May 2011. The Plaintiff instituted his first action against the defendant after one
year and some months after his date of arrest, and later withdrew it. He instituted
another action against the same defendant in that he was unlawfully arrested, detained,
consequently that he has suffered damages in that regard. The defendant raised a

51
special plea of prescription in terms of Section 39 of the Police Act of 1990. The
question that this Court had to decide was whether the plaintiff’s claims are prescribed
in terms of section 39 of the Police Act. Fillipus vs Government of the Republic of
Namibia (I 1598-2013) [2016] NAHCMD 238 (18 August 2016).

Interlocutory application – Leave to amend plea - By inserting a special plea of

prescription – Prescription delayed in certain circumstances if the creditor is a minor or
is insane or under curatorship – Contingency agreements – not applicable in Namibia
according to the Rules of the Law Society – Court held - Whether or not the plaintiff had
the mental capacity to instruct his counsel, or whether or not the institution of the
proceedings was ratified, it need not be determined at this stage. This is an interlocutory
application for leave to file a plea of prescription and leave to call witnesses whose
names did not appear in the pre-trial order. Loubser v De Beers Marine Namibia (Pty)
Ltd (I 341/2008) [2016] NAHCMD 227 (4 August 2016).

PROLIFERATION OF ACTIONS

Proliferation of Actions - It was argued that by initially suing the 1 st defendant and
obtaining judgment against it, the plaintiff was guilty of proliferating actions by suing the
2nd defendant for substantially the same relief. Held – the plaintiff had sued both
defendants at the same time and for the same relief albeit on different grounds. Held
further – that the proliferation of trials must be unwarranted in the circumstances of the
case. Held - The claim against the 2 nd defendant did not amount to a proliferation of
actions and the actions instituted were rendered necessary by the actions of the
defendants. The special plea was accordingly dismissed. Okorusu Fluorspar (Pty) Ltd &
Another v Tanaka Trading CC and Another (I 2055/2013) [2016] NAHCMD 16 (05
February 2016)

PROPERTY LAW

Land – Agricultural land – Sale of – Application of the Agricultural (Commercial) Land

Reform Act 6 of 1995, s 17(1) – State has a preferrent right to purchase all agricultural
land – Whenever owner of such land intends to sell such land he or she must give first
refusal to the State – As a matter of law and common sense the owner of such land is
not capable of giving such first refusal to the State where the owner has already
directed his or her will of selling the land towards performing an act of selling to a

52
purchaser other than the State by entering into an agreement to sell the land with such
purchaser – By so acting, the owner has acted in contravention of Act 6 of 1995, s 17(1)
the interpretation and application of s 17(1) of Act 6 of 1995 is extremely crucial as it lies
at the heart of the scheme of the legislation and it is one provision that gives life and
meaning to the object of the Act and the intention of the Legislature – Agreements
entered into by contracting parties in contravention of the common law or legislation are
not enforceable, and are void. Buchholz v Ewert (A 140/2011) [2016] NAHCMD 37 (25
February 2016)

Landlord and tenant - Written lease - Validity of - one of the essentialia of a lease
agreement is that the property, which is the subject matter of the agreement, must be
clearly identified or identifiable. Eckleben v Mobile Telecommunications Limited (I
920/2012) [2016] NAHCMD 46 (09 March 2016).

Sale of land - Foreign national holding 50% in a company registered in Namibia -

Company in which a Namibian national does not hold controlling interest acquiring
commercial agricultural land - No consent sought from Minister - The acquisition of the
commercial agricultural land is thus in contravention of s58 of the Agricultural
(Commercial) Land Reform Act, 1995 - The Minister responsible for Land Reform must
accordingly deal with the commercial agricultural land so acquired as contemplated in s
60 of Agricultural (Commercial) Land Reform Act, 1995. Kai-Uwe Denker // Ameib
Rhino Sanctuary (Pty) Ltd and 4 Others (A 41/2014) [2016] NAHCMD 82 (11 March
2016).

Ejectment - Action for - Necessary averments - Plaintiff need only allege ownership of
property and occupation thereof by defendant - Onus on defendant to prove lawful
occupation, onus discharged by defendant's evidence to effect that agreement between
parties permitting occupation - Ejectment refused. Viviers v Ireland & Another (I
3757/2012) [2014] NAHCMD 148 (18 May 2016)

Rei vindicatio – Requirements – The Court would require something to show that
notwithstanding the right that the applicant has given to the respondent, the respondent
no longer has a right to remain in possession. Van Niekerk v Auto Tech Truck & Coach
CC & Another (A19/2015) [2016] NAHCNLD 31 (12 May 2016).

Vindication - Rei vindicatio - Requirements for - Applicant must prove, in addition to

ownership of article, that article still in existence, that defendant in possession thereof at
commencement of action and that it is clearly identifiable. Highland Farming CC v
Casper Hendrik Rossouw (A 57/2015) [2016] NAHCMD 302 (04 October 2016).

53
Usufruct – Usufruct registered in the title deed when farmland was transferred and
registered in the name of the donee. Usufruct in favour of donor of farmland registered
in title deed. Stipulated that usufruct is to be ceded to donor’s wife at the death of the
donor. Plaintiff (wife of donor) was married out of community of property with the donor.
Neethling v Brink N.O. (I 2921/2014) [2016] NAHCMD 154 (27 May 2016).

Law of Property - Defendant sold property to plaintiff. Defendant had no authority to

do so as he had not acquired ownership from the previous owner. A party can only sell
and pass transfer to the other when he has a right to the said property. Since defendant
had no right to sell the property, the agreement between defendant and the initial owner
of the property was cancelled by lapse of time. Plaintiff’s claim against defendant for his
refund of the purchase price succeeded. Defendant purportedly bought land from one
Laina, but, did not fully pay the purchase price. Before he could take title, he sold it to
plaintiff when he had no right to do so. Plaintiff paid defendant N$45 000, but, was
unable to take title as defendant was not capable of transferring the property since he
was not the owner. Annanias Iita v Kamati (I 92-2014) [2016] NAHCNLD 43 (22 June
2016).

Law of Property - Applicants bought rights of habitatio and usus in fixed property run
as a retirement scheme – Applicants seeking access to financial records of a retirement
scheme but not of Close Corporation which is owner of the property – Retirement
scheme not a legal persona – Applicants also seeking to prohibit owner of property from
making additions to residential units and other amenities on property on the basis that it
would alter the conceptual design of the retirement scheme as advertised before
purchase of rights of habitatio and usus as a tranquil and peaceful retirement village.
Held, retirement scheme not a legal persona and therefore not having financial records
court can order to be disclosed; such right also not recognised and contractual
relationship between parties. Held, The pre-contractual undertakings through
advertisement brochure not binding on owner of property; the agreement executed by
applicants also not supporting applicant’s case. Held, court reiterating that replying
affidavits should not contain new causes of action; should be the shortest affidavit and
not be unduly prolix. Garbade v Licht Properties CC (A 348/2013) NAHCMD 377 (1
December 2016).

RECUSAL

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Judge – Recusal – On grounds of appearance of bias – Test for – In considering
application for recusal, as starting point court presumes that judicial officers are
impartial in adjudicating disputes – Flowing from this, applicant for recusal bears onus of
rebutting presumption of judicial impartiality – Additionally, presumption not easily
dislodged, requiring cogent or convincing evidence for presumption to be rebutted – Not
only must person apprehending bias be reasonable person, but apprehension itself
must in the circumstances be reasonable – Mere apprehensiveness on part of litigant
that the Judge would be biased is not enough – Court held that where the only evidence
on a substantial matter (as opposed to a procedural proceeding) as the recusal of a
judge is that of a legal representative of the applicant, who is a stipendiary witness,
such witness cannot be a reasonable and objective person in the recusal proceeding –
His or her evidence cannot be cogent or convincing. Greencoal (Namibia) (Pty) Ltd v
Laicatti Trading Capital Inc (A 273-2014) [2016] NAHCMD 1 (15 January 2016).

Recusal - Application for recusal – entitlement of a respondent and legal practitioners to

participate in a recusal application – In the context of a recusal application the applicant
had inter alia raised an objection in regard to the entitlement of the respondent to
oppose the recusal application, which he perceived to be personal in nature and only
between him and the judge. The Court held that a respondent has a general right to
participate and be heard in a recusal application not only by virtue of the general
entitlement of a party to pending proceedings to be heard at all stages of the
proceedings but also because such party continues to retain a recognisable interest in
the outcome of a matter in which it has become a party. The court held further that, on
the specific facts of the matter, where the applicant had also imputed unethical and
untoward conduct on the part of the respondent’s legal practitioners that this was an
attack on their personal integrity, as legal practitioners, on its own, that entitled them to
a response. The court thus held that the recusal issue revolving around the events of 22
July 2015 were thus not simply between the court and the applicant. When the
respondent’s instructing legal practitioner then filed an answering affidavit, on the
merits, on behalf of the respondent, he did so also to defend his- and instructed
counsels professional integrity which, co-incidentally, also vindicated the actions of the
court. As officers of the court, counsel, in any event had a duty to respond to the
recusal application – and - in particular – this imposed on them the duty to put the
record straight, thereby enabling the court to make independent findings on the facts.
Court thus holding that the filing of the answering affidavit in the recusal application by
the respondent’s legal practitioners was in the circumstances neither reckless nor
irresponsible and that such conduct was duty- bound – also by virtue of their role as
officers of the court. Christian t/a Hope Financial Services v Namibia Financial
Institutions Supervisory Authority (A 35/2013) [2015] NAHCMD 65 (10 February 2016)

55
Application for recusal – communication by a party’s legal practitioners with the court
in the absence of the other party - One of the grounds on which the application for
recusal was founded was based on alleged discussions which the presiding judge
allegedly had, with respondent’s counsel, prior to a set hearing in a court room in the
absence of the applicant – On the evidence the court found that there had been no such
discussions and that the judge was merely in the process of checking whether the
recording mechanism in the court was functioning properly and that he did not
communicate with respondent’s counsel other than by acknowledging their greetings.
On the application of the applicable legal test to this factual matrix the court held that
this ground of recusal had to fail. Court holding further that no reasonable objective and
informed person would, on the underlying facts, i.e where a Judge simply for unrelated
reasons happens to be in a courtroom and is merely greeted by the parties, reasonably
apprehend that the court has not or will not bring an impartial mind to bear on the case.
To find otherwise would be absurd as then any form of greeting or acknowledgement of
each other’s presence, for instance also if the Judge would by chance meet counsel in
the street or in the corridors of the court and acknowledge such counsel’ presence
through a greeting, in the absence of the other party, would be able to found a recusal
application. Court holding further that the conclusion that had to be drawn was that
applicant’s advanced apprehension was not that of a reasonable person and that this
advanced ground was contrived and was simply not a reasonable one. Court
concluding, also after considering the other grounds of recusal, that the application had
no merit and thus had to be dismissed with costs. Christian t/a Hope Financial Services
v Namibia Financial Institutions Supervisory Authority (A 35/2013) [2015] NAHCMD 65
(10 February 2016).

RESCISSION OF JUDGMENT/ORDER

Rescission - a party who reacts to a law suit after it has been properly served with
summons, a default judgment granted and only reacts when his property is attached
must convince the court that he was not aware of that summons. He cannot easily do
so when summons were served on a resident of his home/property bearing his second
surname. A party applying for a rescission of judgment must pay security of costs
unless respondent has waved its rights for such costs. Non-compliance of this rule
renders the application a nullity. Application for recession of judgment is dismissed.
First applicant was served with summons which were served upon a major bearing his
surname. No appearance to defend was filed. A default judgment was granted and
property was attached. He only reacted after attachment. He applied for a rescission of
judgment on the basis that he was not aware of the summons. He failed to comply with
rules of court, regarding security of costs and the need for a supporting affidavit.

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Application for rescission was dismissed. Aupapa Paulus v Ashipala (I 226/2013) [2016]
NAHCNLD 22 (07 March 2016).

Practice - A party who applies for a rescission of judgement must fulfil all the
requirements. Where a Legal Practitioner is at fault and also fails to give a reasonable
explanation for non-appearance in court, the application will fail. Applicant must be
candid with Court so that a Court can make an informed decision. The Applicant applied
for a rescission of judgement and writ of execution. The Legal Practitioner failed to
appear in court. The matter was set down and no reasonable explanation was given.
Application was dismissed with costs as the Applicant was in wilful default. Iipumbu v
Iipumbu (A 22-2015) [2016] NAHCNLD 60 (22 July 2016).

Practice - Rescission of Judgment by Default. Three modes of rescission. Rule 16,

Common Law and Rule 103 of the Rules of the High Court of Namibia. Common
denominator in respect of Rule 16 rescission and common law rescission. Good cause
and sufficient cause. Both include a prima facie defence. Rule 103(1)(a) requires, in the
circumstances of the subject case, an application by the applicant, within a reasonable
time to rescind the default judgment erroneously sought or granted in the absence of
the applicant. Kambanda v First National Bank of Namibia (I 4050-2014) [2016]
NAHCMD 192 (6 July 2016).

Practice – Applications and motions – Rescission – Judgments and orders –

Application in terms of rule 103(1)(a) of the rules of court – Order sought and obtained
in motion court – But motion court is for the hearing of unopposed matters – Matter
moved in motion court as if it was instituted ex parte – But applicant was cited as
defendant but was not served with papers or heard – Court held that it is an essential
principle of our law that the court should not make an order that may prejudice the rights
of a person who has not been cited as a party to the proceedings, or who has been
cited as a party but has not been served with process and has not been heard – In such
a case the order will be brutum fulmen – Accordingly court held that the 24 July 2015
order sought and granted in the motion court in the absence of applicant is brutum
fulmen and so erroneously sought and erroneously granted – Consequently, application
for rescission of the 24 July 2015 order granted with costs. Namibia Farm Workers
Union (NAFWU) v Angula (A 290-2015) [2016] NAHCMD 252 (8 September 2016)

Rescission - Where a party obtained a default judgment through citing wrong rules the
court may exercise its judicial discretion and rescind the judgment. Where both
applicant and respondent are culpable in their non-compliance with the rules each party
should pay its own costs. Application for rescission succeeded. Applicant applied for a

57
rescission of judgment on the basis of respondent’s citation of a wrong rule.
Respondent conceded. Further that both parties failed to comply with the Rules of
court. Point in limine was upheld. Application succeeded as failure to grant would have
allowed respondents to snatch a judgment based on a technicality. Each party pay its
own costs. Elia Shuudifonya v Jackson (I 139/2015) [2016] NAHCNLD 83 (07 October
2016).

Rescission - An applicant who applies for a rescission of judgment must file a founding
affidavit as he is the one who knows his facts – the legal practitioner should file a
supporting affidavit not the other way round. Applicant must present facts which will
establish a good cause in order for his non-compliance to be excused. Lack of bona
fides is an indication that there is no bona fide defence. Where a legal practitioner is
requested by another legal practitioner to stand-in for him and fails to attend court he
must depose to an affidavit in order to explain why he failed to do so, thus avoiding the
court from concluding that, the default by applicant’s was unlawful. The applicant’s
legal practitioner should file an affidavit confirming and admitting his lack of diligence,
negligence and recklessness. Application was dismissed. Applicant failed to attend
mediation and status hearing. Applicant was not co-operative when called upon to sign
affidavit. He blamed his legal practitioner and the instructed legal practitioner for his
demise. A default judgment was entered against him with costs. Applicant applied for a
rescission of judgment. He did not comply with the rules of court regarding non-
compliance and no reasonable explanation was given. Application was dismissed with
costs. Nikodemus Mumbandja v Nehale (I 126/2014) [2016] NAHCNLD 84 (07 October
2016).

Rescission - The application in casu is for the rescission of a final judgment and
re-instatement of a defence which was struck on 29 October 2015 in terms of Rule
53(2)(b) and (c). Final judgment and striking of a defendant’s defence granted in his
absence without notice concerning the very nature of the order granted.
Defendant/applicant personally received notice during the previous appearance that
costs should be argued and that he must attend a pre-trial conference. Imbili v Nepela
(I 1984/2014) [2016] NAHCMD 340 (10 November 2016).

RES JUDICATA

Principles - Res judicata can successfully be raised against plaintiff’s claim – provided
that defendant can prove that the new claim is based on the same facts, same cause of
action and between the same parties. Where it is not proved – defendant can not
succeed. Elias Andreas v Namutenya (I 130/2014) [2016] NAHCNLD 08 (12 February

58
2016); Coetzee vs Eva Salt Traders and four others (I 2728/2012) [2016] NAHCMD 359
(8 November 2016).

Interlocutory application – Matter brought under the same case number as that of the
action case - To set aside order of court – Effect of order given by court - Question of
res judicata. This is an application brought by the Applicant to seek an order from the
Honourable Court that the judgment granted by this Honourable Court on 29 November
2013 be set aside and that the Respondent’s action instituted against the First and
Second Applicants under case number I 905/2013, be dismissed. Ekonolux CC and
Another v Shadjanale (I 905/2014) [2016] NAHCMD 173 (16 June 2016).

Action Proceedings – Seeking damages in terms of unjust enrichment and Article 18

of the Namibian Constitution – Special Plea of lack of jurisdiction, res iudicatae and
prescription raised – Special plea of res iudicatae is upheld. Owoses-Louw and Another
v Khomas Regional Council (I 1069/2015) [2016] NAHCMD 301 (3 October 2016).

REVIEWS

Review - When application for review to be brought - To be brought within reasonable

time in absence of statutory period of prescription - Such question one of fact, and not
discretion – Such fact to be decided in light of all the relevant circumstances. Review -
From Magistrates’ Court — Applicant seeking to review and set aside proceedings in
Magistrates’ Court in terms of s 20 of High Court Act 16 of 1990 — Court finding in
lower court took into account inadmissible opinion evidence — Court setting aside
proceedings in Magistrates’ Court. JB Cooling and Refrigeration CC v Dean Jacques
Willemse t/a Windhoek Armature Winding and Others (A 76/2015) [2016] NAHCMD 8 (20
January 2016).

Delays - Delay in bringing review proceeding – Court to determine whether delay was
unreasonable – If delay unreasonable court to consider whether unreasonable delay
has been explained to satisfaction of court – Where there is no explanation for the
unreasonable delay there is nothing for court to consider whether to condone the delay
– Where review application has been dismissed on the basis of unexplained
unreasonable delay in instituting the application court should refuse to grant order of
mandamus as alternative relief to the relief of review – To order mandamus in such
circumstances would have the effect of setting at naught the order dismissing the review
application – That would result in absurd consequences and would not condone to due
administration of justice. Namibia Tantalum Mining (Pty) Ltd v The Minister of Mines and
Energy (A 310/2014) [2016] NAHCMD 17 (11 February 2016).

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Review – Of act of administrative body – Delay in instituting proceedings – Whether
delay was unreasonable – Applicant launching review proceedings some five years
after his dismissal as a magistrate despite the delay having been raised in respondents’
legal representatives’ letter to applicant’s legal representatives – Court held that since
applicant had been legally represented throughout and since applicant has placed
before the court no explanation for the delay, it would be unjudicial, unreasonable and
unjust for court to condone the unreasonable delay, particularly where there is no
application to consider in that regard – Consequently, application dismissed with costs.
Peter v Jacobs (A 100/2013) [2016] NAHCMD 11 (28 January 2016).

Practice – Review application – Locus standi – Party must have real and substantial
interest in the outcome of the case – Applicant failing to persuade the Court of direct
and substantial interest in the outcome of the case – at best the applicant established
financial or commercial interests in the advertising business offered by the first
respondent from time to time – Review application dismissed with costs. Continental
Outdoor Media (Pty) Ltd v The Municipal Council for the City of Windhoek (A 421/2013)
[2016) NAHCMD 45 (29 February 2016).

Review – Application to review decision of administrative body and administrative

official – Court not competent to review and set aside decisions of private individuals –
Court competent to review decision of administrative bodies and administrative officials
only – In instant case court competent to review decision of first respondent (an
administrative body) and fifth respondent (an administrative official – Court held
administrative body or administrative official bears no onus to justify its action carried
out in terms of the applicable statute; onus rests upon the applicant for review to satisfy
court that good grounds exist to review the conduct complained of – Such grounds
should be common law grounds or grounds in terms of art 18 of the Namibian
Constitution – Court held further that the absence of opposition does not by itself entitle
the applicant to judgment, as if by default – Court found that applicant has failed to
discharge the onus cast on it – Consequently, application dismissed with costs –
Principles in Immanuel v Minister of Home Affairs and Others 2006 (2) NR 687 (HC);
and Christian v Metropolitan Life Namibia Retirement Annuity Fund 2008 (2) NR 753
(SC) applied. Shitiveni v National Housing Enterprise Ltd (A 158/2015) [2016] NAHCMD
150 (19 May 2016).

Review – Delay in instituting review proceedings – Whether delay was unreasonable –

Applicant launching application to challenge applicant not being selected in a tender
process as preferred bidder and not being awarded the tender – Court found that there
has been unreasonable delay in instituting the application and no cogent and convincing

60
and sufficient facts have been placed before the court to explain to the satisfaction of
the unreasonable delay – Consequently, court refusing to condone the unreasonable
delay – Court held that generally prejudice to the other party was not a prerequisite
before an application can be dismissed on ground of unreasonable delay – Held further
that prejudice was however a relevant consideration in such matter and the existence of
prejudice will be material if established. Principles in Keya v Chief of the Defence Force
2013 (3) NR 770 (SC); and in Namibia Grape Growers and Exporters Association and
Others v The Ministry of Mines and Energy and Others 2004 NR 194 applied. Arandis
Power (Pty) Ltd v The President of the Republic of Namibia (A 26-2016) [2016]
NAHCMD 194 (7 July 2016).

Review — Delay in instituting review proceedings — Whether delay was unreasonable

— Applicant launching review proceedings twelve months after notice placing
quantitative restrictions upon the import of certain poultry products into Namibia was
published. South African Poultry Association & 5 Others v The Minister of Trade and
Industry and 3 Others (A 326/2015) [2016] NAHCMD 199 (8 July 2016).

Review - When application for review to be brought - To be brought within reasonable

time in absence of statutory period of prescription - Such question one of fact, and not
discretion - Delay of nearly 9 years in bringing application for review of assessment to
pay land tax grossly unreasonable. Kambazembi Guest Farm CC T/A Waterberg
Wildnerness v The Minister of Land Reform and 5 Others (A197/2015) [2016] NAHCMD 366 (17
November 2016).

Review – Tender – Application to review decision of 1 st respondent (a parastatal

enterprise) – In what cases – First respondent (decision maker) bears no onus to justify
its decision – Applicant for review to satisfy court that good grounds exist to review
conduct complained of – Court rejecting applicant’s ground that decision unreasonable
and unfair because 1st respondent took into account extraneous and irrelevant factors –
Court held that it is up to decision maker who knows what he or she desires to achieve
to decide what information or facts to collect and what weight of importance to put on
each information or facts placed before it when deciding – It would be unjustifiably
presumptuous for anyone else, including the court, to prescribe to the decision maker
what information to collect and what weight of importance and relevance to place on
each piece of information collected – If it did that, court would be overstretching without
justification the court’s power to control administrative decision making – It is only when
it is established that the decision is so unreasonable that no reasonable administrative
body or official could ever come to it that the court can interfere – Court held that in
instant case the reason for the decision is good not fanciful and it has not been
established that the decision is unreasonable and unfair – Therefore court not entitled to
interfere and set aside the decision – Consequently, application is dismissed with costs.

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Principles in New Era Investment (Pty) Ltd v Roads Authority and Others 2014 (2) NR
596 (HC); Associated Provincial Picture Houses Ltd v Wednesday Corporation [1948]
KB 233 (CA) applied. Chico/Octagon Joint Venture Africa v Roads Authority (HC-MD-
CIV-MOT-GEN-2016/00210) [2016] NAHCMD 385 (8 December 2016).

Review – Decision of the land appeal tribunal, established in terms of s 39 of the

Communal Land Reform Act, 5 of 2005 – Court granting condonation for the late
bringing of the review application – Grounds for review – points in limine – That appeal
tribunal acted ultra vires its power by holding a hearing, whereas it has no power to
conduct a hearing; by calling witnesses; and by conducting an investigation whereas it
has no power to do so - Furthermore that appeal tribunal failed to apply the procedure
contain in reg. 25 (1) of the regulations promulgated under the Communal Land Reform
Act, 2002, alternatively that it condoned the fifth respondent late filing of the appeal
whereas the tribunal had no authority to do so because the provision of reg. 25 is
peremptory; that no application was made by the fifth respondent or any other person to
condone the late filing of the appeal; and that the appeal tribunal failed to inform the
applicant of his right to legal representation – Court held, the regulation firstly stipulates
the procedure for lodging of an appeal, secondly it proceeds to stipulate the procedure
for appointment of the appeal tribunal by the Minister and thirdly it stipulates the action
to be taken by appeal tribunal - Held that the appeal was lodged beyond the period of
30 days stipulated by Regulation 25 after the decision appealed against had come to
the attention of the respondents and; consequently the appointment of the appeal
tribunal by the Minister was irregular in that, having received the appeal which had been
lodged outside the prescribed time period, firstly the Permanent Secretary should have
drawn the Minister attention to the fact that the appeal was lodged out of time and
Minister should not have proceeded to appoint the appeal tribunal before the irregularity
attended upon the lodging of the appeal had been rectified; and in any event, the appeal
tribunal failed to hear the appeal within the period of 30 days after it had received the
appeal from the Minister – Decision reviews and set aside. Mbala vs Kazavanga N.O (A
53-2016) [2016] NAHCMD 393 (15 December 2016).

RULES OF COURT

Rule 121 (2) regarding the application for leave to execute a judgment pending appeal
revisited; elements to be satisfied by applicant for leave to execute restated. -
PRACTICE – undesirability of raising constitutional issues for the first time on appeal
restated. Minister of Land and Resettlement v Dirk Johannes Weidts & Another (I
1852/2007) [2016] NAHCMD 7 (22 January 2016)

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Rule 28 (8) on discovery and Rule 53 on sanctions for non-compliance with court
orders or directives considered and applied. Donatus v Muhamederahimvo & Others;
Donatus v Ministry of Health and Social Services (I 2304/2013; I 1573/2013) [2016]
NAHCMD 49 (2 March 2016).

Rule 5 - Statute – Rules – Rules of court – Judge-President having discretionary

powers under s 39 of the High Court Act No. 16 of 1990 to make rules (with approval of
the President) for regulating the conduct of proceedings of the High Court – Such rules
are to ensure the proper dispatch and conduct of the business of the court – Court
found that rule 5 of the rules made by the Judge-President serves important legal and
social purposes, namely, to protect the public against charlatans masquerading as legal
practitioners and to maintain and enhance the integrity and effectiveness of judicial
process and due administration of justice – As to when statute in the form of enabling
legislation or delegated delegation has amended the common law – Court held that
courts require clear and unequivocal language to effect a change to the common law –
Court held further that legislation (or delegated legislation) must not be presumed to
alter the common law. Maletzky v The President of the Republic of Namibia (A
176/2014) [2016] NAHCMD 50 (3 March 2016)

Rule 41 - Application for consolidation of applications – Implications of rule 70 (2) on

applications for consolidation - Filing of heads of argument by parties to legal
proceedings. Beukes & Another v The President of the Republic of Namibia & Other (A
427/2013) [2016] NAHCMD 77 (16 March 2016).

Rule 38 (2) and rule 32(9) - In relation to costs of arbitration considered. Rule 32 (9) in
relation to interlocutory matters also discussed. The applicant filed an application for
payment of costs occasioned by the respondent’s failure to attend mediation. Held –
that costs for mediation are to be costs in the cause and are not to be claimed as the
matter progresses unless the parties otherwise agree. Held further – that the said
application being interlocutory in nature, the applicant should in any event have
complied with the mandatory provisions of rule 32 (9) and (10) which calls for the
attempt to amicably resolve interlocutory proceedings. The application for costs at this
stage dismissed with costs. Malenko v Coetzee (I 3557/2013) [2016] NAHCMD 88 (1
April 2016)

Rule 59 - Applications for security for costs at the instance of a peregrinus when sought
against another peregrinus. Meaning of filing applications for security for costs as soon
as reasonably practicable after commencement of proceedings. Martucci & Others v
Colcellini & Another (I 2295/2015) [2016] NAHCMD 149 (18 May 2016).

Rule 59- Security for costs- Liability to pay security for costs- Determination of
quantum- whether it is proper for it to be done by a judge- Delay in filing a demand for

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security for costs. Martucci v Mountain View Game Lodge (Pty) Ltd (I 2295-2015) [2016]
NAHCMD 217 (22 July 2016).

Rule 26 (10), Rule 27 (3) and Rule 53 considered and applied. Hilifilwa v Mweshixwa
(I 3418/2013) [2016] NAHCMD 166 (10 June 2016).

Rule 32 - Interlocutory application – Compliance with rule 32 of the High Court Rules –
Application brought under the same case number as that of the action case - law
pertaining to settlement agreements – Whether such settlement agreements can put an
end to the entire proceedings. Total Namibia (Pty) Ltd v OBM Engineering & Petroleum
Distributors CC (I 3625/2007) [2016] NAHCMD 169 (14 June 2016).

Rule 32(9) and (10) - A party not in compliance Rule 32 (9) and (10) should not set the
matter down for hearing. – Party acknowledges non-compliance and seeks court’s
indulgence to comply – Party tendered wasted costs. – Such conduct is expected as it
is a sign of professionalism. – Further affidavit attached to court record without leave
from the court. – such affidavit(s) should only be filed with leave from court and such
leave will be granted in special circumstances. – Filling of such affidavit disallowed.
Application is dismissed. Kayla Trading Enterprises CC v Okavu Renaissance
Investments CC (I 41-2015) [2016] NAHCNLD 55 (30 June 2016).

Rule 32 - Order refusing absolution of the instance – interlocutory in nature – three

attributes indicative of an interlocutory nature when considering appealability - s18 (3) of
the High Court Act, 16 of 1990 (the Act) – Rule 32 (11) of the Rules of the High Court –
cost limitation for interlocutory proceedings. Leopard Tours Car and Camping Hire CC v
Dannecker (I 2909-2006) [2016] NAHCMD 260 (9 September 2016).

Rule 57- Rule 57 in relation to an exception. Brink & Another v Erongo All Sure Insurance
& Others (I 3249/2015) [2016] NAHCMD 200 (8 July 2016).

Rule 32 – Application for directions in terms of Rule 32 - Rule 26 (6) – issues to be

included in the proposed pre-trial order – whether issues not recorded in the pleadings
may be included in the pre-trial order if considered relevant - Overriding principles of
Judicial Case Management revisited. Zamnam Exclusive Furniture CC v Josef
Stephanus Lewis and Cornelia Catharina The Trustees for the time being of The Lewies
Family Trust (I 4268/2010) [2016] NAHCMD 298. (30 September 2016).

Rule 15 - Rule 15 in relation to judgment by default- PLEADINGS – Rule 45-

noncompliance with rule- cause of action – necessary averments- unproved allegations
made against an uncited party- declaration of certain actions or conduct illegal/unlawful

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without recourse to court. BV Investment 264 cc & Another v Louw (I 1428/2016) [2016]
NAHCMD 233 (12 August 2016).

PRACTICE OF COURT - RULES OF COURT – Rule 60 – Summary judgment –

whether filing of a supplementary affidavit without leave of court is permissible -
Considerations of prejudice to parties main objective of court – Rule 32 (9) (10) –
compliance therewith. Hamilton and Partners v Steenkamp & Others (I 2892/2015)
[2016] NAHCMD 314 (13 October 2016).

Rules of Court - Rule 63 - This is an application in terms of Rule 63(6) of the High
Court Rules, in which the defendants seek an order that the issues of locus standi and
prescription be separated from the remainder of the issues, and for such issues to be
determined first and that the remaining issues be ordered to be stayed pending the final
determination of the separated issues. Walvisbay Salt Refiners (pty) Ltd vs Blaauw’s
Transport (pty) Ltd (I 3668/2014) [2016] NAHCMD 312 (11 October 2016).

Rules of court – Rule 80 – Requirements for admission as a legal practitioner of the

High Court – Applicant not complying with the requirements as stated in s 4 and 5 of the
Legal Practitioners Act, 1995 – Intervention by the Law Society of Namibia as an
interested party – Application defective in all respects, application struck from the roll.
Kamwi v The Law Society of Namibia (A 2/2016) [2016] NAHCMD 319 (19 October
2016).

Rule 53: Mocram Investments CC v National Youth Services and 2 Others (I 440/2014)
[2016] NAHCMD 338 (4 November 2016).

Practice – Irregular proceedings in terms of rule 61 of rules of court – Two stage

enquiry – If step found to be irregular, court to determine whether opposing party
prejudiced – Court not entitled to condone irregular step if no good cause is shown –
Aussenkehr Farms v Namibia Development 2012 (2) NR 671 applied. Namibia Financial
Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Institutions
Supervisory Authority and Registrar of Stock Exchanges (HC-MD-CIV-MOT-GEN-
2016/00233) [2016] NAHCMD 365 (17 November 2016).

Rules of court – Rule 66 – Point of law raised by respondents instead of filing opposing
papers – Such ‘points’ raised not question of law but factual and raised seven months
after the notice of intention to defend was filed – Contrary to rule 66(1)(c) requiring such
notice to be filed within 14 days after the notice of intention to defend has been filed –
No application for condonation – ‘Points of law’ rejected for lack of merits – no evidence
presented to contradict the applicants case – Application granted. Hausiku v The Master
of the High Court (A 13/2016) [2016] NAHCMD 392 (15 December 2016).

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SPOLIATION

Spoliation - Mandament van spolie - Possessor need not be physically present to be in

possession - Respondents changing locks on premises leased by appellants -
Respondents not at liberty to take law into own hands. Ludik v Keeve & Another (A
316/2015) [2016] NAHCMD 4 (20 January 2016); Ayoub v Transnamib Holdings Limited
& Another (A 34/2016) [2016] NAHCMD 158 (3 June 2016).

Spoliation - Urgent application for spoliation – principles governing spoliation

considered and applied principles and procedure when dealing with an occupier of
Government land which has been allocated to a beneficiary under the Government
Resettlement Program outlined. Kandombo v The Minister of Land Reform (A 352/2015)
[2016] NAHCMD 3 (18 January 2016).

Spoliation — Mandament van spolie — In what cases — Incorporeal — Applicant and

respondent both having access to a quarry site — Respondent denying applicant
access to the quarry site — Respondent depriving appellant of possession — Spoliation
operating in respect of incorporeal things — Remedy also available to quasi-possessors
- Respondent taking law into his own hands by depriving applicant access to quarry site.
China Habour Engineering Company Limited // Erongo Quarry and Civil Works (PTY)
Ltd. (A355/2015) [2015] NAHCMD 18 (10 January 2016).

Spoliation - Urgent application for a spoliation order. Termination of a lease agreement

and ownership of the property raised by the respondents as defence to an application
for a spoliation order. Government of the Republic of Namibia v Matjila (A 351/2015)
[2016] NAHCMD 63 (8 March 2016).

Spoliation – Mandament van spolie – Applicant must prove he or she had peaceful and
undisturbed possession of the thing at time of illicit deprivation of such possession –
General maintenance of law and order is of infinitely greater importance than mere
rights of particular individuals to recover possession of property – Maxim spoliatus ante
omnia restituendus est is applied. Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia
(A 224/2015) [2016] NAHCMD 97 (7 April 2016).

Applications – Spoliation orders – Builder’s Liens – A lien is dependent on continuous

possession - There must be physical control or occupation (detentio) and the intention
of holding and exercising possession (animus possidendi) - Intention alone is
insufficient – Symbolic possession in order to exercise a right of retention is likewise
insufficient and cannot substitute actual or effective possession. Oceans 102
Investments CC v Strauss Group Construction CC & Another (A 119/2016) [2016]
NAHCMD 274 (19 September 2016)
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Mandamus – Application to direct registrar (taxing officer) to state a case for the
decision of a judge – Delay of some five years before instituting proceedings for
mandamus – Court found delay to be unreasonable – Applicant failed or refused to give
explanation for the delay – Consequently, court held it would not be possible to condone
the unreasonable delay, and, indeed, it would be unjudicial, unjust and unreasonable to
condone the unreasonable delay – Mandamus being a discretionary remedy court may
withhold it even if the substantive grounds for grant of the remedy have been made out
– In instant case, in virtue of the unreasonable delay to bring the application for an order
of mandamus, and in virtue of the applicant having failed or refused to give explanation
for the unreasonable delay and the court having failed to condone the unreasonable
delay, and the 2nd to 19th respondents having been prejudiced by the unreasonable
delay to institute the mandamus application, the court refused to exercise its discretion
in favour of granting the remedy of mandamus – Consequently, application is dismissed
with costs. Electoral Commission of Namibia v Registrar of the High Court of Namibia (A
322/2015) [2016] NAHCMD 293 (29 September 2016).

Urgent Applications – Spoliation orders – Onus of proof – Applicant bears the onus to
prove that he or she was in possession and that an act of spoliation was committed by
the respondent - These two facts have to be proved on a balance of probabilities: a
prima facie case will not suffice, the mandament van spolie being a final court order –
Applicant failing to discharge the onus of proof – Application dismissed. Caribeana Jazz
Pizza & Beer Garden CC v LA Tangeni Trading CC (HC-MD-CIV-MOT-GEN-
2016/00285) [2016] NAHCMD 336 (2 November 2016).

Civil Procedure — Urgent application for spoliation – principles governing spoliation

considered and applied — Urgency — delay in bringing the application was created by
the prison warders or officers who used threats and intimidation to prohibit an inmate to
access the courts — Access to Court— Courts have a duty to enforce rights of inmates
to be treated with dignity and humanely. Josephat Boois V Assistant Commissioner
Nangolo & 3 Others (HC-MD-CIV-MOT-GEN-2016/00312)[2016] NAHCMD 369 (18
November 2016).

Mandament van spolie — Effective possession and control — Suspension of building

construction works — The applicant as contractor engaged to build low cost housing
placing security guards on site for the safety of the property during suspension of works
— Lack of evidence as to the nature and extent of the applicant’s possession of
property — Court holding that due to scantiness of direct evidence that there was
sufficient exercise of physical control by the applicant of the property, there was no
effectual possession — The applicant must show that it exercised effective control over
the property. — Spoliation order refused. Applications — Spoliation orders — Builder’s

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Liens — A lien is dependent on possession — There must be physical control or
occupation (detentio) and the intention of holding and exercising possession (animus
possidendi) —Possession in order to exercise a builders lien is not sufficient — There
must be an intention to exercise a builders lien over the property — The intention must
be continuous and actual or effectual possession is a requisite. Builder’s lien — Security
— Builder’s lien is security for work done—contractual lien limited to the terms of the
contract — In a building contractual relationship a party may exert a lien over the
property for damages or losses arising due to the suspension of works— A builder’s lien
may be exercised over the building or structures which the applicant has actually
constructed. Builder’s lien — Possession of entire property — The applicant claiming a
builder’s lien over the entire property— Court finding that from the papers it was not
clear which portion of the property applicant had occupied or exercised control to the
exclusion of the respondent— The applicant bears the onus to prove on balance of
probabilities that it was in possession of the entire property — Court holding that the
applicant did not discharged the onus. Dispute resolution mechanism — Interdict
pending the institution of proceeding for specific performance — The dispute should be
resolved as provided for in the contract — Court cannot entertain the Interdict as the
dispute has as yet not been declared as provided for in the dispute resolution
mechanism in terms of the contract — The parties are required to exhaust such dispute
resolution mechanism before approaching court for an interdict. New Era Investment
(PTY) LTD v Ferusa Capital Financing Partners cc & 4 Others (HC-MD-CIV-MOT-GEN-
2016/00342) [2016] NAHCMD 380 (02 December 2016).

SUMMARY JUDGMENT

Summary judgment – Defendant may survive summary judgment if triable issues are
raised. Heinrich Willem Kurtz // Hernandez Rosell Mercedez (I 3113/2015] [2016]
NAHCMD 86 (04 March 2016). See further The Government of the Republic of Namibia
v Riruako (I 3722/2014] [2016] NAHCMD 40 (16 February 2016).

Civil Practice – Summary judgment – Rules of Court- Rules 60, 32 (9) and (10) and
rule 108 - defence of interference with contractual relations. First National Bank of
Namibia Ltd v Ben-Tovim (I 1183-2015) [2016] NAHCMD 196 (7 July 2016).

Elements - Application for summary judgment in terms of rule 60. Application was
opposed. Respondent/Defendant acknowledges the loan agreement between the
Applicant/Plaintiff but raises the defence that he had conveyed to one of the
Applicant/Plaintiff’s employee of his inability to pay and was informed that proof needed

68
to be provided that he lost his job due to the fact that the insurance taken on the
revolving credit plan would settle the outstanding debt. Subsequently it was confirmed
by an employee of plaintiff that his indebtedness was settled. He was not listed at ITC
and could obtain a Home Loan from another financial institution. Does the
Respondent/Defendant have a reasonable defence?. Standard Bank Namibia Ltd v
Karumbu (I 2764-2015) [2016] NAHCMD 242 (23 August 2016).

Rules of Court – Rule 60 – Application for summary judgment-eviction from leased

property. Tungeni Africa Investments (Pty) Ltd v Namibia Water Ski Club & Others (I
2735/2015) [2016] NAHCMD 232 (12 August 2016).

URGENT APPLICATIONS

Urgent application – Applicant to bring the matter as soon as he becomes aware of

the issue to be determined – should not unduly- delay in bringing the application -
Application brought two and a half years after main action instituted – No explanation
tendered – Application dismissed. Adriaan Pienaar v Rachel Amanda Tsoeu (I
2848/2013] [2016] NAHCMD 39 (12 February 2016).

Applications and motions – Urgency – Application brought ex parte and on urgent

basis – Court held that it is trite that good faith is sine qua non in ex parte applications –
Applicant owes a duty of utmost good faith to the court to make full and proper
disclosure to the court – Failure to disclose all relevant facts to the court should lead to
dismissal of application – The court does not hold itself bound by the order obtained in
the rule nisi under the consequent misapprehension of the true position – A respondent
is entitled to anticipate the return day of a rule nisi so long as he or she delivers the
requisite 24 hours’ notice – Court held that the only limitation on that entitlement is the
delivery of a 24 hours’ notice in terms of rule 72(7) of the rules of court. Ken
Investments Close Corporation v Rouwans Investments CC (A 297/2015) [2016]
NAHCMD 51 (3 March 2016).

Applications and Motions - Urgent application for interdictory order pending a review
application to review and set aside an award of a contract to provided services. Virtual
Technology Services (Pty) Ltd v The Chairperson of the Namibia Student Financial
Association Fund Board & Another (A 56/2016) [2016] NAHCMD 72 (11 March 2016).

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Applications and motions – Urgent applications – Applicant must satisfy the
requirements of rule 73(4) of the rules of court for the matter to be heard on urgent
basis – Furthermore, no urgency where urgency is self-created. Salt v Smith 1990 NR
87; and Bergman v Commercial Bank of Namibia and Another 2001 NR 48 applied. JB
Cooling and Refrigeration CC v Stefanutti Stocks Construction (Namibia) (Pty) Ltd (A
122/2016) [2016] NAHCMD 135 (29 April 2016); see further Oceans 102 Investments
CC v Strauss Group Construction CC & Another (A 119/2016) [2016] NAHCMD 139 (10
May 2016).

Practice – Applications and motions – Urgency – No undue delay or remissness by

applicant – Case for commercial urgency made out. Dispute of fact – Oral evidence – In
what cases – Found that the issue in dispute was narrow and referring to oral evidence
may tip the scales in favour of the applicant as the calculations appeared to be inflated.
Van Niekerk v Auto Tech Truck & Coach CC & Another (A19/2015) [2016] NAHCNLD
31 (12 May 2016).

Urgency - A party seeking the court’s indulgence for an urgent application must satisfy
the well known legal requirements. – A party who fails to act timeously and only does so
at the 11th hour will not get assistance from the court. – Anybody with a direct and
substantial interest in a matter should be cited in the hearing of a disciplinary matter. –
A permanent Secretary should not be made part of the proceedings in a disciplinary
hearing. Applicant was notified of her disciplinary hearing a month before the hearing.
She however, chose to ignore the need to respond and tried to stop the hearing on the
11th hour. She failed to meet the requirements of an urgent application. She failed to cite
the Presiding Officer although she made certain allegations against him. She cited the
Permanent Secretary which was not necessary. Application was dismissed with costs.
Nepembe v Chairperson of the Magistrates Commission (A 05-2016) [2016] NAHCNLD
50 (30 June 2016)

Applications and motions – Urgent Applications – Rule 73(4) requirements - Court

held that urgency should not be self-created. Applications and motions – Urgent
Applications – Where an applicant is seeking the court’s indulgence and has created the
emergency, through culpable remissness or inaction, he cannot succeed on the basis of
urgency – Consequently application struck from the roll with costs for lack of urgency.
Wepex Management (Pty) Ltd v Pupkewitz Holdings (Pty) Ltd (A 99-2016) [2016]
NAHCMD 183 (27 June 2016).

Applications and motions – Urgency – Requirements for prescribed by rule 73(4) of

the rules of court – Applicant must set out explicitly the circumstances relating to
urgency and reasons why applicant claims he or she could not be afforded substantial

70
redress in due course – And applicant must make out a case for urgency in founding
affidavit – Respondents bears no onus, none at all, to establish the opposite, namely,
lack of urgency – Respondents only need to answer to applicant’s averments that the
application be heard as a matter of urgency – Besides the court having found
disingenuousness on the part of the applicant in the proceeding court should refuse to
come to the aid of the applicant by granting him the indulgence he craves –
Consequently, application is refused. Kambazembi Guest Farm CC ta Waterberg
Wilderness v The Minister of Land Reform (A 184-2016) [2016] NAHCMD 193 (7 July
2016).

Applications and motions – Urgency – Requirements set out in rule 73(4)(a) and (b)
of the rules of court – No urgency where urgency is self-created – In instant case court
found that any urgency is due to culpable remissness of applicants – Consequently
court refused to condone the non-compliance with the rules or hear the application as a
matter of urgency. Nowases v Evangelical Lutheran Church (HC-MD-CIV-MOT-GEN-
2016-00221) [2016] NAHCMD 231 (9 August 2016).

Application - Urgent Application –Interdicting respondents’ from taking further action in

the furtherance of the award of the tender to the third respondent – Pending the
finalization of the application for review– No Prima Facie right established in founding
papers – Tender properly awarded - Application dismissed. Selex Sistemi Integrati SpA
v Chairperson of the Tender Board of Namibia (A 69-2009) [2016] NAHCMD 228 (8
August 2016).

Practice – Applications and motions – Urgent applications – Applicant must satisfy

the requirements of rule 73(4) of the rules of court for the matter to be heard on urgent
basis – In instant case applicant unjustifiably spurned the statutory domestic remedies
that are cheap, expeditious and effective and yet failed to satisfy the requirements in
rule 73(4) – In that event court held applicant should not expect the court to grant him
the indulgence he seeks by hearing the matter as one of urgency – Consequently, court
refused the application with costs on the basis that rule 73(4) have not been satisfied.
Shekunyenge v Principal of St. Joseph’s Roman Catholic High School Dobra (HC-MD-
CIV-MOT-GEN-2016/00269) [2016] NAHCMD 308 (6 October 2016).

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CASE SUMMARIES

Alfred N.O v Haikali (I 63-2012) [2016] NAHCNLD 47 (30 June 2016)

Summary: Plaintiff sued defendant for the return of his deceased father’s cattle.
Evidence led proved that defendant together with his father formally demanded the
return of defendant’s father’s cattle from plaintiff’s mother after plaintiff’s father’s death.
Defendant with his entourage went to plaintiff’s mother’s residence in Angola and
forcibly took the cattle to Namibia. There is no evidence that plaintiff was in possession
of defendant’s father’s cattle. Despite defendant’s denial, it is evident that defendant
was actively involved in the taking of the deceased’s cattle and as such is liable. The
principle of rei-vindicatio was applied successfully.

Amukugo v Town Council of Ondangwa (A 01-2016) [2016] NAHCNLD 56 (07 July

2016).

Summary: Applicant applied for an interdict. Applicant had previously made an

urgent application seeking similar relief. Matter was dismissed as there were disputed
facts. Respondents raised points in limine being (1) dispute of facts. (2) failure to fulfil
requirements for an interdict and (3) non-joinder. Applicant indeed was aware of the
disputed facts as per the previous judgment. Applicant failed to fulfil the requirements
for an interdict. The issue of non-joinder was held to be a non-issue. Respondent could
not succeed as the Registrar of Deeds can transfer properties without a court order.
Application was dismissed and referred to trial with affidavits filed to stand over as
pleadings.

Amupanda v Swapo Party of Namibia (A 215/2015) [2016] NAHCMD 126 (22 April
2016)

Summary: Voluntary association – Unincorporated voluntary association – Political

party – Jurisdiction of court to intervene in affairs of political party (1 st respondent) –
Applicants deprived of their membership of 1 st respondent (a political party) – Applicants
challenged expulsion as unlawful – Court found that expulsion of applicants violated
natural justice rule of audi alteram partem and in breach of rules in 1 st respondent’s
Constitution and Code of Conduct and Disciplinary Procedures and therefore in breach
of contract – Consequently, court declared decision to expel applicants ultra vires and
unlawful – Accordingly, court set aside expulsion of applicants but refused to reinstate

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them in positions they held in 1 st respondent before their expulsion on the basis that it
would be unreasonable and inequitable to make such order.

Angula v Minister of Environment and Tourism (I 76/2015) [2016] NAHCMD 371 (23
November 2016).

Summary: The plaintiff, the owner of a public transport vehicle, sued the defendant
for the damage caused by fire to the said vehicle at Etosha National Park. It was alleged
that the defendant’s employees negligently prevented the plaintiff’s driver from escaping
the fire by instructing him to drive at the prescribed speed when it was dangerous to do
so and by instructing him to drive behind the defendant’s employee at a point where the
fire was raging.

Held – that the evidence adduced by the plaintiff’s witness showed that the vehicle
drove off the road into the veld where it caught fire as a result of smoke that engulfed
the vehicle, thus blurring the driver’s vision. This it was held was because the plaintiff’s
driver drove the vehicle through the smoke with open windows.

Held – further that although his vision was impaired by the smoke, he did not stop the
vehicle, but continued to drive into the dark smoke resulting in the vehicle veering off
the road into the veld where it was engulfed by fire.

Held – that other vehicles than the plaintiff’s drove on the same road and at the same
time but did not encounter the plaintiff’s misfortune, thus pointing inexorably in the
direction of the plaintiff’s driver having been negligent in his decision-making and his
driving.

Held – further that in the light of the evidence adduced by the plaintiff at the close of his
case, as recounted above, no court, acting reasonably can find for the plaintiff. For the
above reasons the application for absolution from the instance was sustained.

Anhui Foreign Economic Construction v Minister of Works and Transport (A21-

2016)[2016] NAHCMD265 (9 September 2016).

Summary: The applicant in this matter approached this court seeking the following
relief: (a) An order reviewing and setting aside the decisions and actions of the Minister
of Works and Transport and the President of the Republic of Namibia to cancel all the
activities relating to the upgrade and expansion of the Hosea Kutako International
Airport; (b) an order declaring the Minister of Works and Transport’s action taken in
terms of s 9(1)(b) of the Airports Company Act, 1998 unlawful and invalid; and (c) An

73
order declaring the award, on 3 December 2015, by the Namibia Airports Company to
the applicant for the contract to upgrade or expand the Hosea Kutako International
Airport as valid.

The first, second and fourth respondents opposed the application. Simultaneously with
the filling of their answering affidavit, the respondents filed a notice of motion for a
counter application in terms of which they seek an order declaring the purported award
on, 3 December 2016, by the fifth respondent to the applicant of the contract for the
upgrade and expansion of Hosea Kutako International Airport as unlawful and null and
void and setting the same aside.

Held that the services that were required were the upgrade and expansion of the Hosea
Kutako International Airport and that it was within the mandate of the Namibia Airports
Company to establish, develop, provide, maintain, manage, control or operate, in
accordance with sound and generally accepted business principles, any aerodrome, in
Namibia. The court found that the services for the upgrade and expansion of the Hosea
Kutako International Airport had to be sourced or procured by the Namibia Airports
Company in accordance with the Airports Company Act, 1998 and the Namibia Airports
Company’s Procurement Procedures.

Held that it was the Minister of Works and Transport who instructed the Namibia
Airports Company to discontinue the process relating to the upgrade and expansion of
the Hosea Kutako International Airport.

Held further that before the Minister could exercise his power to issue a directive to the
Namibia Airports Company he must be satisfied that one or more of the conditions set
forth in section 9(1) obtain, and that the procedural step prescribed in s 9(5) have been
executed. The court found that the jurisdictional facts set out in s 9 of the Airports
Company Act, 1998 were non-existent and that the Minister could not exercise the
power conferred on him by that section. The exercise of the power was therefore
unlawful.

Held furthermore that it is an accepted principle of our public law that a discretionary
power vested in one official may not be usurped by another, whether the former is a
subordinate to the latter or not. If a person in whom the power is vested, does not
exercise the power vested in him or her the failure to exercise the power constitutes
unlawful abdication.

Held furthermore that the Minister was guided by the views of the President and that
this was a clear case of a failure to exercise one's own discretion which is what the
Minister of Works and Transport was by law called upon to do. The failure by the
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Minister of Works and Transport to act in accordance with the law is a contravention of
the principle of legality.

Arandis Lubrication Services CC v Erongo Industrial Supply Services CC (I 3616-

2014) [2016] NAHCMD 253 (7 September 2016).

SUMMARY: The plaintiff sued the defendant for payment of certain monies allegedly
due as a result of an alleged breach of contract. In response, the defendant, in part
brought a special plea in which it alleged that the plaintiff did not have the standing to
bring the proceedings because the said proceedings were not properly authorised, in
that one of its members instituted legal proceedings against it, without authorization of
the other two members.

Held that - the expression locus standi in judicio in our law is not used in one sense
only. On the one hand it can mean an ‘interest to sue’ and on the other it may refer to
the capacity of a litigant to sue.
Held further that - being a legal persona, a corporation cannot do anything, ‘except by
human agency’. It is only through such agency, i.e. if the natural person acts under its
authority, that it can sue.
Held that – the provisions of section 15 of the Close corporation’s Act dealing with
amendments of a founding statement are peremptory in nature and failure to comply
with them is fatal and results in any purported change or amendment of the statement
not in conformity with the letter of law ineffectual.
In conclusion the court held that plaintiff was not properly before court in that the other
two members did not authorize the other to bring legal proceedings against the
defendant. The defendant’s special plea was therefore upheld and the said member
was ordered to pay costs of these proceedings, namely the costs of one instructing and
one instructed Counsel.

Arandis Power (Pty) Ltd v The President of the Republic of Namibia (A 26-2016)
[2016] NAHCMD 194 (7 July 2016).

Review – Delay in instituting review proceedings – Whether delay was unreasonable –

Applicant launching application to challenge applicant not being selected in a tender
process as preferred bidder and not being awarded the tender – Court found that there
has been unreasonable delay in instituting the application – Applicant instituting
application to review preferred-bidder-decision some 16 months after that decision
came to applicant’s attention and to review the award-of-the-tender-decision 12 months
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after decision was known by the applicant – Court found that delay in instituting
application was unreasonable – Court found that applicant has not put forth any cogent
and convincing and sufficient facts satisfactory to the court to explain the unreasonable
delay – Court found that the explanation concerning unlawful interference by the
Minister and other named members of the Executive in the tender process was unlawful
and cannot be legitimate ground for the unreasonable delay – Court concluded that if
the court accepted the unlawful interference by the Executive as ground for the
unreasonable delay and condoned the unreasonable delay and entertained the
application it would be setting a very dangerous precedent – Consequently, court
dismissed the application on the basis of unreasonable delay.

Ayoub v Transnamib Holdings Limited & Another (A 34-2016) [2016] NAHCMD 158
(3 June 2016).

Summary: Spoliation application seeking for an order compelling the respondents to

restore peaceful and undisturbed possession ante omnia to the water supply. Spoliation
is a possessory remedy applicant has to prove he have had possession. Water not
capable of being possessed. Applicant is accordingly not entitled to a spoliation order.
Application dismissed.

Held on the facts of this matter that the respondent had a functioning padlock affixed to
the chain on the door of the pump room on 6 February 2016.

Held on the facts of this matter that the applicant’s employee, Goeieman, and other
people did not have accesses to the pump room and that the only person who had
access to the pump room was the respondent’s employee, Kalimbo.

Held on the facts of this matter that it was the applicant and not Goeieman who gave
the new padlock to Kalimbo.

Held that spoliation is a possessory remedy. The applicant had never had possession of
the water and could therefore not found his claim on loss of physical possession. Water
is not capable of being physically possessed. Accordingly, the applicant had not been
despoiled or dispossessed of the water. Spoliation is not aimed at the protection of
rights in the widest sense but its aim is the restoration of factual possession of a
movable or an immovable thing. This protection also extends to incorporeal things.

Held on the facts that the supply of water to the applicant had not been terminated or
interfered with by the respondent.

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Held that in so far as the applicant attempted to found his claim on his rights arising
from the lease agreement between the parties to enforce such right, spoliation cannot
be extended so as to compel the performance of contractual right, because to do so
would extend the remedy beyond its legitimate application and usefulness. Accordingly,
the application was dismissed with costs.

BV Investment 264 cc & Another v Louw (I 1428/2016) [2016] NAHCMD 233 (12
August 2016).

SUMMARY: The Plaintiffs filed an application for judgment by default against the
defendant. The 2nd plaintiff who appeared in person alleged that the defendant
participated in an illegal auction, in which she bought “non-existent property”, belonging
to the latter and furthermore, illegally transferred the said property into her name and
subsequently registered herself in the said property as a tenant. The 2 nd plaintiff avers
that as a result of this conduct, he suffered loss, in the form of rental income, which is
the relief sought from this court.

Held that- justice requires that even when a case is not defended, the court should
decline to grant an order, if it is defective for non-compliance with rules of court or
where essential allegations are missing.

Held further that – particulars of claim must set out averments of material facts that,
taken as a whole, establish a cause of action. However, considering the fact that the 1 st
plaintiff is a person unlettered in law, there is a need to consider the particulars of claim
with a level of benevolence and to consider them holistically in order to determine
whether they do establish a cause of action.

Held further that- where serious allegations of professional misconduct are made
against an uncited party, it would be ill-fitting for the court to make an order in the
circumstances where the bases of the prayers sought are allegations which are
unproved and yet detrimental to such a party who has not been called to defend
themselves.

Held further that- it is the exclusive responsibility of the Courts to declare certain actions
unlawful or illegal and not that of any other person, including the plaintiff. Furthermore,
the rule of law requires that no power be exercised unless it is sanctioned by law and
that no decision sanctioned by law may be ignored based purely on a contrary view held
by a party.

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In conclusion, the court found that the plaintiffs’ pleadings were defective in that they did
not disclose a cause of action. The application for judgment by default was dismissed
with no order as to costs.

BV Investment Six Hundred and Nine CC v Kamati (I 1074-2013) [2016] NAHCMD

216 (22 July 2016).

Summary: The Plaintiff sued the defendants for breach of a purported written
agreement, in that the latter prematurely terminated the said agreement and failed to
pay rent for the months after termination running to the end of the contract. The sum
sued for also included a penalty amount as per the agreement as well for water
consumption.
Held – that evidence adduced by the defendant showed that an oral agreement had
also been entered into by the parties.
Held further- that the parole evidence rule would be inapplicable in the instant case, in
light of the finding that an oral agreement had been established by the defendants.
Held further - that to come to a conclusion on the disputed issues, a court must make
findings on the credibility of the various factual witnesses; their reliability; and the
probabilities.
Held further – that where parties intend to enter into a written agreement, such would
only be valid and create obligations on the parties’ once in writing and signed by both
parties.
Held further – that the exterior of the premises as presented by the plaintiff were not fit
for the business purposes intended by the defendant’s and hence the latter was justified
in terminating the purported agreement as they did.
In conclusion, court found that the parole evidence rule is in applicable to the instant
case for the reason that the parties’ also concluded an oral agreement.

Bednarek & Others v Hannam & Another (I 2615/2013) [2016] NAHCMD 12 (03
February 2016).

Summary: The 1st and 2nd plaintiffs instituted two claims against the defendants for
defamation. The first claim arose from the contents of an e-mail authored by the 1 st
defendant. The 1st defendant applied for absolution from the instance on the grounds
that the said statement was not defamatory either in the primary or secondary sense.
Held – that applications for absolution from the instance are not granted when there is
evidence upon which a court, acting reasonably cannot find for the plaintiff. Held – the

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contents of the e-mail are not defamatory in either the primary or secondary sense.
Application for absolution granted with costs. In respect of the second claim, based on
words allegedly defamatory of all the plaintiffs and allegedly uttered by the 2 nd
defendant, the court found that the words, applying the standard of a reasonable
person, were prima facie defamatory of the plaintiffs and that the 2 nd defendant can only
advance the defences of truth and public benefit and privilege once she takes the
witness’ stand. Held that there was, at the close of the plaintiffs’ case evidence, on
which the court, acting carefully, could find for the plaintiff. The application for absolution
from the instance refused with costs.

Beukes & Another v The President of the Republic of Namibia & Other (A
427/2013) [2016] NAHCMD 77 (16 March 2016).

Summary: The 5th respondent filed an application in terms of rule 41 for the
consolidation of the above application with another application No. A 83/2014. The
application was opposed by the applicants, who on the date of hearing indicated their
change of heart. Held – although rule 41 is couched in terms that refer to action
proceedings, the same considerations apply with regard to applications for consolidation
via the application of rule 70 (2) – Held – in granting or refusing applications for
consolidation, the court exercises a discretion that should be applied judicially and
judiciously – Held further - applications for consolidation hinge on two main
considerations, namely the balance of convenience and absence of substantial
prejudice – Held further – that ‘convenience’ as used in the rule in question does not
only mean expediency, efficacy and desirability but also includes fairness, justice and
reasonableness. Held – that due to the applications sought to be consolidated referring
to the same parties and substantially the same cause of action, considerations of
convenience called for the consolidation of the applications.

Held further – that lay litigants are not exempted from filing heads of argument, even if
these will not be of the same standard drafted by legal practitioners. Held further –
heads of argument play an important role in assisting the court and the other side to
know the argument and case law to be relied upon and therefore serves to curtail the
time needed for hearing the case and ultimately delivering judgment. Application for
consolidation granted with no order as to costs.

Brink & Another v Erongo All Sure Insurance & Others (I 3249/2015) [2016]
NAHCMD 200 (8 July 2016)

Summary: The 1st defendant filed an exception on the basis that the Plaintiff’s
particulars of claim lack averments necessary to sustain an action against it. The

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defendant also contested the 2 nd plaintiff’s locus standi to sue in this case on the basis
that the executrix was appointed and is in charge and seized with all matters and affairs
of the estate at the present moment, until distribution.

Held - that only if no possible evidence led on the pleadings can disclose a cause of
action, will the particulars of claim be found to be excipiable.

Held further - where there is any property that is the subject of any action after the death
of the deceased, the party authorized to deal therewith, is the executor or executrix,
who in terms of the law takes charge of the administration and eventual distribution of
the assets and settling the debts of the estate.

Held further –that delving into the intricate and involved matters of severability and
illegality of the agreement at the stage of an exception would yield some injustice.
Therefore the defendant should file its plea and deal with these issues, which may
ultimately be the subject of determination at the trial.

Held further- that plaintiff’s failed to allege the basis upon which it could reasonably be
concluded that the agreement in question was simulated.

Held further- that these allegations would appear ex facie the particulars of claim and
not in the heads of argument.

Held further- that despite the limit on costs placed by rule 32 (11), Court should be
allowed the discretion to order in appropriate cases a departure from the provisions of
this subrule. Furthermore there must be a measure of flexibility allowed as matters differ
in terms of nature and complexity.

Buchholz v Ewert (A 140/2011) [2016] NAHCMD 37 (25 February 2016)

Summary: Land – Agricultural land – Sale of – Application of the Agricultural

(Commercial) Land Reform Act 6 of 1995, s 17(1) – State has a preferrent right to
purchase all agricultural land – Whenever owner of such land intends to sell such land
he or she must give first refusal to the State – As a matter of law and common sense
the owner of such land is not capable of giving such first refusal to the State where the
owner has already directed his or her will of selling the land towards performing an act
of selling to a purchaser other than the State by entering into an agreement to sell the
land with such purchaser – By so acting, the owner has acted in contravention of Act 6
of 1995, s 17(1) – Applicants (owners of the land) entered into a deed of sale with the
first and second respondents without having ‘first offered such land for sale to the State’

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in contravention of s 17(1) of Act 6 of 1995 – The contracting parties having entered into
the deed of settlement in contravention of the legislation the deed of sale is not
enforceable and is void – Having so contravened that statutory provision the applicants
(purchasers) sought an order directed to the first and second respondents (the sellers)
to apply for the issue of a certificate of waiver from the Minister – Court found that the
court was not competent to make such order – Consequently, court dismissed the
application with costs.

Chico/Octagon Joint Venture Africa v Roads Authority (HC-MD-CIV-MOT-GEN-

2016/00210) [2016] NAHCMD 385 (8 December 2016).

Summary: Review – Tender – Application to review decision of 1 st respondent (a

parastatal enterprise) – In what cases – First respondent (decision maker) bears no
onus to justify its decision – Applicant for review to satisfy court that good grounds exist
to review conduct complained of – Court rejecting applicant’s ground that decision
unreasonable and unfair because 1 st respondent took into account extraneous and
irrelevant factors – Court held that it is up to decision maker who knows what he or she
desires to achieve to decide what information or facts to collect and what weight of
importance to put on each information or facts placed before it when deciding – It would
be unjustifiably presumptuous for anyone else, including the court, to prescribe to the
decision maker what information to collect and what weight of importance and relevance
to place on each piece of information collected – If it did that, court would be
overstretching without justification the court’s power to control administrative decision
making – It is only when it is established that the decision is so unreasonable that no
reasonable administrative body or official could ever come to it that the court can
interfere – First respondent’s Technical Evaluation Committee (TEC) evaluated all
tenders which qualified – TEC made recommendations to 1 st respondent’s Board
Tender Committee (BTC) to award tender to applicant – BTC rejected the
recommendations and based on good reasons awarded tender to third respondent –
Court found the reasons to be good and further that applicant has not established that
the BTC acted unfairly or unreasonably or that it was biased – Consequently, court
declined to interfere with the decision and set it aside – Court accordingly dismissed
application with costs.

China Habour Engineering Company Limited // Erongo Quarry and Civil works
(PTY) Ltd. (A355/2015) [2015] NAHCMD 18 (10 January 2016).

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Summary: This application was brought on an urgent basis for a mandament van
spolie order in which the applicant claimed that on 6 November 2015 respondent denied
applicant access to the quarry site by instructing all persons performing quarry
operations to stop such operations including the operation of the equipment, prohibited
the applicant to access the quarry site and demanded that the keys required to operate
the equipment be surrendered to the officers or employees of the respondent.

The, applicant and first respondent started doing business with each other during the
year 2013. A loan agreement was concluded on 18 December 2013 in terms of which,
applicant would grant first respondent a loan in the amount of US$ 8.5 mil. The loan
was to enable the first respondent to construct and operate a quarry. Further
agreements were concluded between the parties on 25 April 2014.

During June 2015, the respondent purported to cancel the agreements. As a result of
the purported cancellation of the agreements, the respondent denied the applicant
access to the quarry site. During the period between June 2015 and November 2015,
the parties entered into negotiation discussions in respect of the cancelled agreements
and applicant’s access to the quarry site was restored during the negotiation period, the
negotiation discussions, however, broke down during October 2015 and first respondent
through its employees on 6 November 2015 denied applicant access to the quarry site
and consequently to the equipment set out in paragraphs 2.2 to 2.20.

Held, an incorporeal right cannot be possessed in the ordinary sense of the word. The
possession is represented by the actual exercise of the right. Consequently refusal to
allow a person to exercise the right will amount to a dispossession of the right. In
spoliation proceedings the applicant need not prove that he has the right; what is
relevant is whether or not he has exercised the right.

Held further that, it is inconsequential as to how one characterizes or describes the right
that had been exercised by the applicant, it came to an abrupt stop and that constitutes
a deprivation perpetrated by the respondent, and this without invoking an order of a
court of law. It is a classic case of taking the law into one's own hands and this is what
the remedy of mandament van spolie aims to prohibit.

Christian ta Hope Financial Services (A 35-2013) [2016] NAHCMD 188 (30 June
2016)

Summary: The applicant had originally brought an application certain declaratory relief
aimed at the revival of a default judgement which had been granted in his favour, but

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which was subsequently rescinded by agreement. The applicant thereafter litigated
excessively and vexatiously against the respondent who then brought and was granted
a permanent stay in respect of a number of cases. The court granting the permanent
stays also directed that the applicant could only litigate against the respondent with prior
leave. In spite of these orders the applicant launched the present directly related
application for declaratory relief without prior leave. The court thus dismissed the
application for these grounds. In any event no declaratory relief court be granted these
circumstances.

Cirilo v Ian Copley t/a Welding Works & Renovations (I 11042014) [2016] NAHCMD
160 (6 June 2016).

Summary: The plaintiff and defendant entered into an oral contract for the provision
of balustrades. The plaintiff paid the entire amount quoted but the defendant did not
deliver the balustrades on time. Plaintiff sued for cancellation of the contract; restitution
and damages. Defendant alleged there was no time frame set for delivery of the
balustrades.

Held – the defendant, even if his version were to be believed, failed to deliver the
balustrades within a reasonable time. Held – the defendant breached the contract by
failing to deliver the balustrades on time and that the breach was material such that
termination of the contract was condign.

Held further – that the damages suffered by the plaintiff as a result of having to provide
for accommodation and travel was within proximately related to the contract and that
damages were therefore payable to the plaintiff.

Held – that failure to put the defendant’s case to the plaintiff’s results in the court
declaring that witness’ evidence an afterthought. Held further – that the contradiction in
witnesses’ evidence does not necessarily mean the evidence must be discarded if the
contradictions are on issues that are not material.

Prayers for termination of the contract, restitution and damages granted together with
interest and costs.

Cloete v Haitengu & Another (I 1611/2015) [2016] NAHCMD 178 (22 June 2016).

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Summary: The plaintiff instituted a claim for the removal of fences allegedly erected
by the Defendants on a farm co-owned by the plaintiff, the defendants and some other
persons not cited in the proceedings. The 2 nd defendant, in addition to pleading over,
also raised two special pleas of non-joinder and lack of locus standi in judicio. He further
raised an exception on the grounds that the plaintiff’s particulars of claim lacked
averments necessary to sustain an action. The special plea of non-joinder was
abandoned as the plaintiff filed an application for joinder. In respect of the special plea
of locus standi - held – that as co-owner of the farm in question, the plaintiff had a real
and substantial interest in the litigation and in the cause of action and therefore had the
standing to bring the suit. Held further that in the circumstances of this case, it was not
necessary to provide documents of title to have standing to sue in relation to landed
property. In respect of the exception – held that the exception must be raised directly in
a notice in terms of rule 57 and should not be raised for the first time in heads of
argument. Held further – that the procedure adopted by the 2 nd defendant denied the
plaintiff due notice regarding the exception and further robbed the plaintiff of an
opportunity to address the cause of the complaint before the exception could be
launched. Held that – in cases where an exception is upheld, the proper procedure is to
grant the losing party an opportunity to amend its pleading and not to dismiss the action
or the defence. Held further – that legal practitioners should read cases carefully and
fully and ensure that when they cite cases, those cases are authority for the legal
propositions alleged. Held further – that as far as possible, legal practitioners should
direct the court to the exact portions of the judgment referred to and not allow the court
to read through a morass of what may be irrelevant, in search of what may be relevant
for the purpose of the case in question. The special plea of lack of standing to sue and
exception were dismissed with costs.

Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of
Windhoek (A 421/2013) [2016) NAHCMD 45 (29 February 2016).

Summary: The second applicant (Eshisha Media Networks CC) brought an

application to review and set aside the decisions taken by the first respondent (The
Municipal Council for the City of Windhoek) to approve the upgrading of prime lights to
LED billboards – The question arose whether the second applicant has locus standi to
bring such an application – The Court found that the second applicant does not have
locus standi and dismissed the application with costs because the applicant failed to
persuade the Court that it has direct or substantial interest in the outcome of the case.

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Demtschuk v Rentokil Initial 1927 PLC (A 332/2014) [2016] NAHCMD 348 (10
November 2016).

Summary: Patents and trademarks – Application to vary entry in Register of Trade

Marks by expunction from the Register – In 1998 the applicant (in convention)
Demtschuk had registered the name Rentokil as a defensive trade name in terms of the
Companies Act 61 of 1973 (as amended) – Applicant did so only after conducting
reasonable enquiries at the Companies Office which revealed that no entity traded
under that name in Namibia – Since 1998 Demtschuk has carried out pest control and
connected services in Namibia in names that includes Rentokil – Court concluded that it
is Demtschuk which has established the reputation in Namibia attaching to the trade
name Rentokil and it is applicant in reconvention (Rentokil Initial) whose use of the mark
in Namibia was likely to deceive and thus cause confusion and injury, actual or probate,
to the reputation and goodwill of Demtschuk’s business of pest control services and
connected services in Namibia – In the result Demtschuk’s application is granted with
costs and Rentokil Initial’s counter application is dismissed with costs.

Donatus v Muhamederahimvo & Others; Donatus v Ministry of Health and Social

Services (I 2304/2013; I 1573/2013) [2016] NAHCMD 49 (2 March 2016).

Summary: In a claim for damages arising out of an alleged negligent medical

treatment of the plaintiff by the defendants, when called upon make discovery in terms
of rule 28, the defendant, under Case No. I 1573/2013, the Ministry of Health and Social
Welfare, filed a discovery affidavit that was considered by the plaintiff to have been
deficient. The court, at the instance of the plaintiff, and with the defendant not objecting
thereto, ordered the defendant, pursuant to the provisions of rule 28 (8), to discover
certain documents under oath. The defendant, in an answering affidavit denied its
liability to discover same, claiming that it had already indicated the non-existence of
these documents previously. The defendant also took issue with the applicability of rule
28 (8) in the present circumstances. Held – the defendant had failed to comply with the
order on the discovery. Held further – that although the plaintiff had not fully complied
with all the requirements of rule 28 (8), there was no prejudice to the defendant as a
result and that a proper case had been made for the invocation of rule 28 (8). Held
further – that the defendant is to comply with orders of court even if it forms the view
that same may be incorrect. Held – for the defendant’s non-compliance with the court’s
order, the defendant was liable to be sanctioned in terms of rule 53 of the rules of court.
Held further – that the order to strike out the defendant’s defence for non-compliance
with a court order or directive, was one to be issued in consideration of all attendant
facts and in line with the dictates of fairness and justice and that all matters, in relation

85
to sanctions, must turn on their own facts and circumstances. Held further – that
notwithstanding the defendant’s aforesaid non-compliance, an order for the defendant
to pay costs occasioned by the non-compliance was condign in the circumstances. The
defendant was further ordered to pay the costs of the hearing.

Dörgeloh v Dörgeloh (I 2662/2014) [2016) NAHCMD 131 (28 April 2016)

Summary: The applicant (defendant) and the respondent (plaintiff) were married to
each other out of community of property (Ante-nuptial Contract) but with accrual in place
– After the divorce initiated by the respondent (plaintiff) and during the process of giving
effect to contents of the Ante-nuptial Contract, the applicant (defendant) by notice of
motion sought an order from Court to exclude erven 334, 335, 450 and erf 592 from the
accrual on the ground that the erven are a donation from the employer – However, the
Court found that the applicant failed to discharge the onus to proof on a balance of
probabilities that the erven were a donation and dismissed the application with costs on
attorney and client’s scale.

Du Plessis v Akuenje and Another (I 3505/2012) [2016] NAHCMD 295 (30

September 2016).

Summary: A fire started on farm Tripoli No. 546 and fanned by a north wind spread in a
southerly and south westerly direction across farms St Remo No 543, Bonnievale No.
702 and eventually died out on farm Chamanoudon No. 549 after a concerted effort by
a great number of farmers to put it out.

Plaintiff is the owner of Chamanoudon and instituted action against the defendants for
damages allegedly arising from the destruction caused on the plaintiff’s farm by the fire.
First defendant was, at the time the fire occurred, the registered owner of Tripoli.
Second defendant was at the time, a lessee of the Tripoli, and also is a son of the first
defendant.
Plaintiff founded the relief both on the acts or omissions of the defendants and also on
the acts or omissions of the alleged employees and or agents of the defendants for
which plaintiff sought to hold the defendants vicariously liable. Plaintiff alleged that the
employees and/or agent of the defendants acted recklessly or negligently in causing a
veld fire to start on defendants’ farm which then spread to the plaintiff’s farm. Plaintiff
alleged that the fire was caused by the employees or agents of the defendants who
drove a vehicle recklessly or negligently over long grass while hunting causing it to
overheat and igniting the fire and further failing to take precautionary measure such as
to take along water or a fire extinguisher. Plaintiff further relied on the alleged

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negligence of the defendants, as a result of which the fire allegedly spread to the
plaintiff’s farm. In particular, plaintiff relied on the fact that no fire breaks were scraped
along the boundaries of the defendants’ farm as a result of which the fire spread to the
plaintiff’s farm.

The first defendant had let the farm to the second defendant some seven years before
the fire, and did not have any presence on the farm.

Held: that the onus was on the plaintiff to establish the case which was set out in the
particulars of claim and as per the pre-trial order.
Held: further that in fact, there is no evidence before the court in terms of which any of
the persons who went hunting at Tripoli on 23 July 2011 where identified as an
employee of the first defendant or an agent of the first defendant.

Held: further that it was not established on the evidence that the person who allegedly
drove the vehicle was an employee of the defendants or an agent of the defendants or
that the hunt was authorized by the defendants and that the defendants can for this
reason not be held vicariously liable for the damages caused by the fire.

Held: further that absence of the firebreaks was not, on the application of the condition
sine qua non test, the cause of the fire spreading to the plaintiffs farm as the evidence
showed that even where there were fire breaks, the fire still managed to spread.

Dreyer v Dreyer (I 3883/2014) [2016) NAHCMD 115 (21 April 2016).

Summary: Husband and wife, the plaintiff instituted divorce proceedings against the
defendant on the grounds of malicious and construction with adultery as a third ground
– In view of the fact that the plaintiff left the common bedroom and obtained a protection
order against the defendant forcing him out of the common house of the party, the court
dismissed the plaintiff’s action, condoned defendant’s adultery and granted him a
restitution order with ancillary relief.

Eckleben v Mobile Telecommunications Limited (I 920/2012) [2016] NAHCMD 46

(09 March 2016)

Summary: During April 2010 the plaintiff purchased a property, from a deceased’s
estate, at a public auction. It was a condition of the sale that the purchaser of the
property will have to take over a lease agreement in respect of the property. The lease
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agreement was first concluded, orally, between the deceased and the defendant on 01
August 2006 and reduced to writing on 05 July 2007. In terms of the lease agreement
the owner of the property let to the defendant a ‘small room in tower’ for the purposes of
erecting and installing equipment and antennas. The lease agreement would expire on
31 July 2016.

On 25 January 2011 the defendant gave the plaintiff two months written notice of its
intention to terminate the lease agreement. On 17 April 2012 the plaintiff issued
summons claiming payment in the sum of N$ 326 644, 73 from the defendant as
damages for alleged breach of contract.

The defendant filed a notice to defend the claim and the plaintiff responded by filling an
application for summary judgment. The defendant opposed the application for summary
judgment on the basis that the lease agreement was invalid and unenforceable
because, so the affidavit read; the leased premises were not identified or identifiable
from the lease agreement. In the light of the defense disclosed by the defendant the
plaintiff gave notice in terms of Rule 28(1) of his intention to amend his particulars of
claim. The defendant objected to the proposed amendments, necessitating a formal
application in terms of Rule 28(4). The plaintiff was granted leave to amend his
particulars of claim. After the plaintiff was granted leave to amend his particulars of
claim the defendant pleaded to the plaintiff’s amended particulars of claim.

In its plea the defendant admitted the conclusion of the lease agreement as well as its
terms, but pleaded that the lease agreement is not valid because the “premises” which
formed the subject matter of the lease agreement is not identified or identifiable. In the
alternative the defendant pleaded that, should the court find that the agreement is valid
and enforceable, the plaintiff repudiated the agreement. The defendant pleaded in the
further alternative that the agreement became voidable because of a supervening
impossibility, namely as a result of the radiation and consequent health risk, the
performance by the plaintiff in terms of the lease agreement and the use of the
premises by the defendant had become impossible.

Held that where immovable property which is the subject of a written lease agreement
the property must be clearly identified or identifiable. The court found that the phrase
'small room in tower' in the context of the lease agreement is sufficiently precise. The
lease agreement was therefore valid.

Held furthermore that, at the time of concluding the lease agreement the parties foresaw
that the antennas and the equipment would be relocated and that the affixing of the
antennas to the tower was a temporary measure and this does not convey to the
reasonable person that the plaintiff was indifferent to the terms of the lease agreement.

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As such the plaintiff did not attempt to enforce an agreement contrary to its terms and
thus did not repudiate the lease agreement.

Held further that, there was no marked change in the circumstances which prevailed at
the time when the parties concluded the lease agreement which affected performance
by the parties. When the lease agreement was concluded the parties envisaged that a
sundeck will be constructed from which a restaurant will be operated. Once the
restaurant was constructed the antennas will be relocated. Court was accordingly of the
view that defendant was bound by the agreement. Defendant failed to performance in
terms of the agreement leading to the breach of contract .

Egerer v Executrust (Pty) Ltd (A248-2015) [2016] NAHCMD 221 (22 July 2016).

Summary: During September 2015 the three applicants launched an application out
of this court in terms of which they sought an order declaring: the nominations and
appointments of the first respondent, the second respondent and the third respondent
as trustees of a Trust known as the Egerer Family Trust as void; that the first applicant
and the fifth respondent are the only current trustees of the Egerer Family Trust and
clauses 2.9, 2.9.1, 2.9.2 and 2.9.3 of the Will of the late Wolfgang Albrecht Emil Egerer
dated 2 December 2014, and the “special bequests” therein contained, are
unenforceable, invalid, and of no force and effect.

Held that interpreting a will involves ascertaining the intention of the testator. The
intention of the testator is the most important aspect of the law of succession and runs
like a golden thread through this branch of the law.

Held further that the golden rule for the interpretation of testaments is to ascertain the
wishes of the testator from the language used, the court is bound to give effect to those
wishes.

Held further that the trust inherited all the movables and immovable assets that
belonged to the late Egerer on certain conditions.

Held further that the qualification to which the inheritance by the Trust was subjected,
amounts to a valid and legal modus which the court must give effect to it.

Held furthermore that the late Wolfgang Albrecht Emil Egerer’s clear intention was to
benefit some of his faithful employees and he has named those employees.

Held that the applicants’ claim cannot succeed and the application must be dismissed .

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Electoral Commission of Namibia v Registrar of the High Court of Namibia (A
322/2015) [2016] NAHCMD 293 (29 September 2016)

Summary: Mandamus – Application to direct registrar (taxing officer) to state a case

for decision of a judge – Court found there has been delay of some five years – Court
concluded the delay was unreasonable – Court found that applicant has failed or
refused to give adequate and satisfactory explanation for the delay – Court held that the
unreasonable delay prejudiced 2nd to 19th respondents as they are unable to execute the
costs order, to which execution they are entitled, thereby violating their constitutional
right to just and speedy conclusion of the case – In virtue of the unreasonable delay to
bring the application for an order of mandamus, and in virtue of the applicant having
failed or refused to give explanation for the unreasonable delay and the court having
failed to condone the unreasonable delay, and the 2 nd to 19th respondents having been
prejudiced by the unreasonable delay to institute the mandamus application, the court
refused to exercise its discretion in favour of granting the remedy of mandamus –
Consequently, application is dismissed with costs.

Elias Andreas v Namutenya (I 130/2014) [2016] NAHCNLD 08 (12 February 2016).

Summary: Plaintiff had issued summons at Ondangwa Magistrate Court against

defendant in his official capacity as chairperson of Omaalala - Onambutu Local Water
Committee and the matter was settled when plaintiff was paid a certain amount of
money in final settlement. Plaintiff in this matter sued defendant for defamation and
defendant applied for a special plea as res judicata on the basis that the matter was
finalised at the magistrate court. Plaintiff argued that defendant was now being sued in
his personal capacity. There being no evidence that indeed the matter was previously
determined on the same fact, same cause of action and between the same parties. The
special plea was dismissed.

Erastus M. Naango v Petrus Kalekela (A 172/2014) [2016] NAHCMD 383 (06

December 2016)

Summary: During July 2014 the applicants, by way of a notice of motion, commenced
proceedings in this Court in which they sought the following orders: (a) Interdicting and
restraining the first and second respondents from unlawfully evicting the applicants from
an area of communal land which the respondents have fenced off and which is
approximately 3600 hectares in extent (that area is known as Oshana shEtemba); (b)
Interdicting and restraining the respondents from interfering in any way with applicants’
grazing and residential rights on the communal land known as Oshana shEtemba; and

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(c) Directing the respondents to restore to the applicants undisturbed possession of the
communal grazing area and access to the watering points outside of the area of
Oshana shEtemba. The respondents opposed the applicants’ application and
simultaneously filed a counter application. In the opposing affidavit the respondents
raised a point in limine, namely that the applicants failed to join Mr Andreas Nangolo as
party to the proceedings.

Held that it is true that the failure to join an interested party in proceeding is fatal to the
claim, the failure to cite Mr Andreas Nangolo as a party to these proceedings cannot, in
the court’s view, be fatal. The Court found that Ms Kalekela, in her answering affidavit,
states that Nangolo was a relative of her husband who was asked by her husband to
assist with the fencing off of the area and the rehabilitation of the ‘farming area.’ It thus
follow that Mr Nangolo was in the area not in pursuance of his own interests but that of
the respondents. The point in limine raised by the respondents accordingly fails.

Held furthermore that in order to succeed in obtaining an interdict, the applicants do not
have to prove that they will in fact be evicted or that they have been evicted from the
area that they occupy. All that they need to satisfy the court of, is that they have a right
and that they hold a reasonable apprehension that the respondents may interfere with
that right.

Held further that the denial by Ms Kalekela that she threatened to evict the applicants
from the area is far-fetched and the court rejects it. The applicants have been
threatened with eviction from the Oshana shEtemba and are entitled to interdict the
threatened eviction provided that they can prove that they have a clear right to reside at
Oshana shEtemba.

Held further that the applicants aver that they were allocated the right to reside and
graze their cattle in the area in dispute by the late ‘Elenga’ Mr Toteya Willibard
Mwandingi. This is an averment which the respondents cannot genuinely dispute
because only the traditional councillor Mr Toteya Willibard Mwandingi can deny that he
has granted the applicants customary land rights.

Held further that the Ondonga Traditional Authority was served with the application and
affidavits in this matter and has chosen not to file any pleadings. The court found that
the applicants are in terms of s 28(1) entitled to enjoy the customary land rights in
respect of Oshana shEtemba.

Held furthermore that the Act makes it clear that no right conferring freehold ownership
is capable of being granted or acquired by any person in respect of any portion of
communal land. It thus follows that the document by the Ondonga Traditional Authority
in so far as it purports to confer ownership of Oshana shEtemba to the respondents is
invalid.

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Held further that the Act does not recognize any right to a ‘farming area’. The Act only
recognizes a right to a residential unit and a right to a farming unit and the right to lease
hold, the size of a farming unit is furthermore limited to 50 hectares only. The argument
by Mr Kamanja that, the area (Oshana shEtemba) in dispute is not part of a
commonage but a farming area, is therefore a fallacy.

Held furthermore that the respondents have therefore failed to prove that they have the
right, to the exclusion of other members of the Ondonga traditional community, to reside
and utilize (for grazing purpose) Oshana shEtemba.

Held that the respondents have not alleged that they have obtained permission to erect
a fence as contemplated in s 18 (1). Neither have the respondents indicated that they
intend to pursue an application under s28 read with s18. It therefore follows that the
erection of the fence in a communal land (in this case in Oshana shEtemba) is unlawful
and that the court cannot condone the illegal fencing off of communal land because
such actions or activities are inimical to rule of law which is at the very heart of the
constitutional dispensation in this country.

Held further that by admitting to having fenced off large tracks of communal land the
denial by the respondents that they have interfered with the applicants’ rights does not
create a bona fide dispute of fact. The act of fencing off land is clear interference with
the free movement of both humans and animals. The court is therefore satisfied that the
applicants have succeeded in proving that the respondents have interfered with their
rights to beneficially exploit their residency of Oshana shEtemba.

Held furthermore that applicants are entitled to an order interdicting the respondents
from in any way interfering with the applicants’ grazing and residential rights on the
communal land area known as Oshana shEtemba.

Held furthermore that that the appropriate remedy is an order directing the respondents
to remove the fence that they have erected around Oshana shEtemba for if that fence is
removed the applicants will have free and undisturbed access to the grazing area and
water points in and around Oshana shEtemba.

Epango Fishing (pty) Ltd vs Erongo Marine Enterprises (Pty) Ltd (I 2582/2015)
[2016] NAHCMD 324 (21 October 2016)

Summary: This is an interlocutory application in terms of Rule 32 of the High Court

Rules, in which the defendant seeks to except the plaintiff’s particulars of claim on the
grounds that the plaintiff has no locus standi to recover monies due to Inland Revenue,

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the invoices by the plaintiff were presented in contravention of certain sections of the
VAT Act and that the agreements relied by the plaintiff are in contravention with certain
sections of the VAT Act. An agreement was entered into between the parties, which to
that effect the plaintiff was registered as a taxpayer in terms of the Act and the
defendant according to the agreement was liable to pay all payable tax including VAT.

Court held: It is incumbent upon an excipient to persuade this court that upon every
interpretation which the pleading can reasonably bear, no cause of action is disclosed.

Court held: If evidence can be led which disclosed a cause of action alleged in the
pleading that particular pleading is not excipiable. Thus, a pleading is excipiable on the
basis that no possible evidence led on the pleading can disclose a cause of action or
defence.

Court held: The agreement concluded between the plaintiff and the defendant is
according to the particulars of claim, a valid and enforceable agreement. In these
circumstances, it supports the cause of action. The exception is dismissed.

FIS Life Assurance Company Limited // The Registrar of Long-Term Insurance

and Seven Others (A326/2015) [2016] NAHCMD 129 (20 April 2016).

Summary: This matter was brought on an urgent basis in terms of which an order was
sought to stay the implementation of a decision by the first respondent, to cancel
applicants license to trade as a funeral insurer, pending an application to review (a) the
decision, by the first respondent, dated 16 June 2015, cancelling its license and
registration as an insurer and (b); the decision by the fourth respondent, dated 6
November 2015, to refuse an application, by the applicant, for the condonation of its late
filing of the appeal against the first respondent’s decision of 16 June 2015.

Whenever a public body or public official acts, the body or official must determine the
scope of its powers. The body or official must ascertain whether the prescribed
conditions for acting exists and it must determine the permissible limits of its authority.
An inquiry of this nature involves an investigation into questions of fact and law. It
follows that where the body or official commits an error of fact or law in the exercise of
its power the court may by way of review correct the error of fact or law.

Regulation 14 of the appeal regulations grants the chairperson of the appeal board
powers to condone any non-compliance and any person other than the chairperson
exercising this duty will be acting ultra vires the set regulations.

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Held that the fourth respondent has no inherent powers to condone the applicant’s
failure to comply with the peremptory requirements, thus making its decision invalid.
That power rested with the third respondent.

Fire Tech Systems CC v Namibia Airports Company Limited (A 330-2014) [2016]

NAHCMD 220 (22 July 2016)

Summary: On the 8th January 2014 under Tender No. NAC/OPS/35/2013 the
Namibia Airports Company called for tenders for the supply, delivery, installation and
commissioning of hold baggage, carry-on baggage scanners, metal detectors and
provision of after sales services for a period of two years. A total of nineteen companies
(this includes Fire Tech systems CC, the applicant in this matter) responded to the
invitation and submitted tenders to provide the goods and services requested by the
Namibia Airports Company. On the 24th February 2014 the board of directors of the
Namibia Airports Company resolved to award the tender to a close corporation named
IBB Military Equipment and Accessories Supplies CC.

Aggrieved by the fact that the tender was awarded to IBB military Equipment and
Accessories Supplies CC the applicant, on the 27 th November 2014, launched these
proceedings for the court to review and set aside the award of the tender to IBB military
Equipment and Accessories Supplies CC. The Namibia Airports Company and the
fourth respondent opposed the application. In the opposition of the application the
respondents raised two points in limine namely that the applicant allegedly delayed in
instituting the review proceedings and that the applicant unnecessarily cited the
Chairperson of the Namibia Airports Company’s Tender and Technical Committee and
the Namibia Airports Company itself.

Held that in the circumstances of this matter, the applicant did not unreasonably delay in
the institution of the review application.

Held further that where the review proceedings relate to the decision or proceeding of
an administrative body (whether the administrative body is a juristic person or not) and
that body is presided over by a chairperson, Rule 76(1) requires the notice of motion to
be directed to the chairman of the administrative body in the sense that he or she must
in his or her representative capacity be cited as a party to the proceedings. The
application against the Namibia Airports Company’s Tender and Technical Committee
and the Namibia Airports Company was accordingly dismissed.

Held further that the decision by the Namibia Airports Company to disqualify fourteen
tenderers was capricious and irrational and cannot be fair and that the decision to

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award the tender to the fourth respondent is not fair and it was in contravention of
Article 18 of the Namibia Constitution and amounts to an unlawful administrative act.

Held further that administrative officials and bodies have an obligation to justify their
decisions and that reasons for those decisions must be recorded and if required be
given to those affected by the decision because one can only account for one’s decision
by giving reasons for the decision.

Held further that the applicant’s option to speedily approach this court for relief was
greatly hampered by the Namibia Airports Company when it withheld information from
the applicant and that the scope of granting an effective relief to vindicate the
applicant’s infringed rights has drastically been reduced.

Held furthermore that this court has a discretion to decline to set aside an invalid
administrative action;

Former Members of the Rössing Pension Fund v Rössing Pension Fund & Other
(A 234/2014) [2016] NAHCMD 155 (1 June 2016).

Summary: The applicants’ brought an application to review and set aside the decision
of the Trustees of the Rössing Pension Fund to distribute the surplus funds in
accordance with an actuarial formula which the applicants argue that the Trustees acted
in accordance with the dictates of Rössing thereby effectively emasculating the
Trustees of their powers. Both the first and second respondents admit that the decision
as to how the surplus funds will be allocated and distributed was that of Rössing but
denied that such decision was in contravention of the Fund’s rules.

Held, that the accepted principle of our public law is that a discretionary power vested in one
official may not be usurped by another. If an official in whom the power to act is vested fails to
do so and any other person or body makes the decision; such decision flowing therefrom is
unlawful and of nullity and qualifies to be reviewed and set aside.

Gaya v Rittmann N.O (A 78/2015) [2016] NAHCMD 388 (12 December 2016).

Summary: The applicant is a granddaughter in the estates of her grandparents and

she brought an application for the review and setting aside a decision by the Master no
to remove the respondent as executor in the estate of her grandmother after her
application to the Master was refused. The respondent is applicant’s uncle and the son
of the deceased. In addition to the review application, the applicant brought an

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application for the removal of the executor in terms of section 54(1)(a)(v) of the
Administration of Estate Act 66 of 1965. The first respondent (the respondent) opposed
to the application and raised several points in limine. The applicant alleged, amongst
others, that the respondent has taken 21 years and 9 years to finalise the estate of the
grandfather and grandmother respectively. Furthermore, the respondent did not comply
with the statutory provisions and failed to effectively administer the estates in general.

Held that the Master, being an administrative official entrusted with judicial functions, is
required to comply with the requirement imposed by article 18 of the Namibian
Constitution. In that respect, the Master must act fairly and reasonably, and in
compliance with the law.

Held that Article 18 of the Namibian Constitution demands from the Master that she
provides reasons for her decisions in all cases where a party is aggrieved by a decision
of the Master, unless it would not be in the public interest for her to provide the reasons.
An unsubstantiated decision is akin to no decision at all in the spirit and purport of
article 18 of the constitution. Held further that in this respect, and in the absence of a
record of her decision and the reasons for arriving at the decision she took, this court is
obliged by article 18 of the constitution to hold that the Master did not have fair and valid
reasons for her decision.

Held that the respondent and his agent have not acted in the manner that promotes
transparency in respect of the assets of the estate. The delay in finalising the estate is
unacceptably too long.

Held furthermore that, the respondent did not comply with many statutory requirements
in the administration of the estate, such as filing acknowledgement of receipts and
advertisement of the estate for creditors to lodge their claims. There is also the issue
that no bank account was opened and this failure was not condoned by the Master.

Held that in the circumstances, it cannot be said the respondent is suitable to continue
as executor and must accordingly step aside for another executor to be appointed by
the Master.

Global Earthmoving CC v Glenn Investments CC (I 1391-2015) [2016] NAHCMD

245 (31 August 2016)

Headnote: Defendant was awarded a tender to construct bituminous and gravel roads
in Okakarara. Defendant entered into a contract of letting and hiring of equipment with

96
the plaintiff, to execute the work. It was then was unable to execute the remainder of the
work and further was unable to pay the amount due to plaintiff for the letting and hiring
of equipment.

The parties then agreed that plaintiff would assist with the execution of the works by
providing contract manager, the site supervisor and site foreman, and both plaintiff and
defendant would provide equipment to the project, for which each would issue invoices
to the joint venture and further that plaintiff would manage the contract to try and ensure
successful completion of the work.

These terms were contained in an email addressed by the plaintiff to its legal
practitioners, but also copied to the defendant, with instructions that the agreement in
those terms be drawn up for signature of both parties. Such an agreement was never
signed, but the parties proceeded to execute the works, on the terms as set out in the
emails.

Plaintiff maintained that a joint venture existed between the parties, whereas the
defendant maintained that such a joint venture did not exist and that plaintiff was rather
a subcontractor to the defendant.

Held, that the agreements between the parties was in the form of two contracts, one
being locatio conductio rei and the other locatio conductio operis, which together
constituted a joint venture, that is a partnership to execute the work, so as to secure
payment from the Okakarara Town Council and to share the profits on a 50/50 basis.

Government of the Republic of Namibia v Matjila (A 351/2015) [2016] NAHCMD 63

(8 March 2016).

Summary: The applicants are occupying a proper registered in the name of a Trust in
terms of an oral lease agreement entered into on or about 2008 and are further conduct
avocational training center for people with disabilities. On about the same time
discussions took place between the parties with the aim of transferring the property to
the applicants but such process stalled during 2009. On 25 June 2015 the trustees,
through the Trust’s legal practitioner gave notice of termination of the lease and further
advised that the property has been sold and that the Trust was under obligation to
handover the vacant property to the purchaser and therefore the applicants must vacate
the property by the end of November 2015. The Attorney- General responded to the
letter pointing out that the Government shall not vacate its own property. On 5

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December 2015 the first and the second respondent attended at the property and
ordered the applicants employees or people who were occupying the property on behalf
of the applicants to vacate the property; they then proceeded to cut the padlocks
securing access to the premises and the buildings, with a bolt cutter and replaced it with
their own padlocks and then placed security guards on the premises whose aim was to
prohibit access to the premises by the applicants and/or their employees. On 7
December 2015 the applicants’ legal practitioner of record addressed a letter to the
respondents’ legal practitioner of record requesting him to advise the respondents to
stop and desist with their conducts. The legal practitioner for the respondents’
responded saying that the lease between the parties has been terminated and
accordingly his clients were thus entitled to lock the gates and place guards at the
gates. The applicants then launched this applications seeking for a spoliation order.

Held that by its own nature spoliation is urgent. In the instant matter the self-admitted
conducts of the respondents constitutes the taking the laws into their own hands by
changing the padlocks to the premises thereby denying the applicants and their
employees access to the property without due process of law. Furthermore the people
affected by the respondents conducts were the physical challenge and as such most
vulnerable member of the society who were locked out from their only place of abode
without access to their personal belonging.

Held further, that the applicants have successfully discharged the onus on them and
have established that they were in a peaceful and undisturbed possession of the
property.

Held further that by changing the padlocks to the doors or gates property the
respondents wrongfully and unlawfully despoiled the applicants’ possession of the
premises and their movables on the premises without due process of law. Accordingly
the applicants are entitled to an order restoring the status quo ante.

Greencoal (Namibia) (Pty) Ltd v Laicatti Trading Capital Inc (A 273-2014) [2016]
NAHCMD 1 (15 January 2016)

Summary: Judge – Recusal – On grounds of appearance of bias – Tests for – In

considering application for recusal, as starting point court presumes that judicial officers
are impartial in adjudicating disputes – Flowing from this, applicant for recusal bears
onus of rebutting presumption of judicial impartiality – Additionally, presumption not
easily dislodged, requiring cogent or convincing evidence for the presumption to be
rebutted – Not only must a person apprehending bias be a reasonable person, but
apprehension itself must in the circumstances be reasonable – Mere apprehensiveness

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on part of litigant that the Judge would be biased is not enough – Court found that
evidence of a legal practitioner, as legal representative of such person alleging
appearance of bias, was not cogent or convincing to rebut presumption of bias on the
part of Judge – In instant case, the legal practitioner who deposed to the founding
affidavit is a stipendiary witness – Such witness cannot be a reasonable and objective
person in the circumstances – Court found that submissions by legal practitioners’ client
rehearsed in the founding affidavit of legal practitioner were irrelevant and have no
probative value – Court concluded that the application for recusal was a ruse to set at
naught the order of court setting down the hearing of the provisional winding up
application and thereby delay such hearing – Court found that evidence of legal
practitioner of applicant was not cogent or convincing enough to rebut presumption of
judicial impartiality – Court, accordingly, concluded that applicants have failed to
discharge the onus cast on them – Consequently, court dismissed application.

Hamilton and Partners v Steenkamp & Others (I 2892-2015) [2016] NAHCMD 314
(13 October 2016).

SUMMARY: The Plaintiff moved a summary judgment application against the

defendants for an amount of N$ 43 125, for services rendered. The defendants filed an
opposing affidavit and later sought to introduce a supplementary affidavit to the
opposing affidavit, without applying for leave of court. They also sought to introduce
communication with the plaintiff in a bid to settle the matter as evidence. Held – that civil
procedure as set out in the rules of court stipulates the sets of affidavits that may
ordinarily be filed. Although authorities referred to relate to ordinary motion proceedings,
they cannot be jettisoned in summary judgment applications merely because they
ordinarily relate to motion proceedings. Furthermore, what is important, is the principle
that where a specific number of sets of affidavits has been set by the rules, that must be
obeyed and that any party seeking to file further affidavits must first seek leave from the
court before doing so. Held – further that the provisions of rule 32 (9) and (10) are
peremptory and non- compliance with same is ordinarily fatal. There is no better way of
enforcing compliance therewith, than by refusing to entertain interlocutory applications
brought in contravention of the foregoing rule. Held – that communication marked
‘without prejudice’ written in a genuine effort to resolve the issues between the parties
cannot be used against the writer as evidence. Held – further that the argument that the
application to strike out was premature and should have been heard with the main
application was dismissed. In conclusion the court dismissed the defendants’
application to file the supplementary affidavit and ordered the defendants to pay the
costs of the application.

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Hatutala v Hatutala (A 82-2016) [2016] NAHCMD 203 (14 July 2016).

Summary: Applications and motions – Rule nisi – On return date of rule nisi issued
on 31 March 2016 respondents entitled to show cause why the order which is in the
form of a rule nisi should not be made final – That reasonably includes showing that the
order should not have been granted in the first place because there was no proper case
made out on the papers for that order – Court found that in instant case there is nothing
in the applicant’s papers contradicting fourth respondent’s clearly emphatic assertion
that he donated the property in question to first respondent voluntarily and while he was
in good physical and mental health – Applicants sought and obtained a rule nisi –
Applicants sought to interdict and restrain first respondent from selling and transferring
property Erf No. 6829, Extension 16, Katutura, Windhoek, to any person pending the
institution of action – Applicants sought also to interdict and restrain first respondent
from interfering with applicants’ right to occupy the property – Fourth respondent is
owner of the property – Fourth respondent filed affidavit wherein he states that he
donated the property to first respondent voluntarily and while he was in good physical
and mental health – Applicants’ attempt to file an amended notice of motion whereby
they prayed for an order to subject fourth respondent to psychiatrist evaluation was
rejected by the court – Court reasoned that on the return date of the rule nisi the only
burden of the court was to either confirm or discharge the rule nisi – Court reasoned
that what applicants wanted to do was to fish for evidence that did not exist when
applicants instituted the urgent application for interim relief – Consequently, it is a clear
and strong indication that applicants have not made out a case in the foundings papers
(as they should) for confirmation of the rule nisi – Consequently, rule nisi discharged
and application dismissed with costs.

Hayley Fay v Regal Real Estate (I 2714-2015) [2016] NAHCMD 202 (12 July 2016).

SUMMARY: The plaintiff sued the defendants for payment in respect of a contract for
sale of land which the plaintiff claims the defendants sold as a result of it finding the
defendants a buyer. The 2nd and 3rd defendants excepted to the plaintiff’s particulars of
claim on the basis that same were vague and embarrassing for two reasons, namely
that the capacity in which the said defendants were cited was not disclosed. Further that
the particulars of claim did not allege that the contract was in writing contrary to the
provisions of the Act.
Held – where it is alleged that a pleading is vague and embarrassing, a two-stage
approach is envisaged by the rules of court, namely a notice calling upon the party filing
the pleading sought to be impugned, to remedy the defect and secondly, the exception
itself, if the defect has not been remedied within 10 days.

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Held – the defendants did not follow the two-staged approach and their exception was
bad. Court however condoned the failure and held that the plaintiff did not suffer any
prejudice as a result of the defective notice of exception.
Held – that the plaintiff’s particulars of claim made the necessary allegations regarding
the capacity in which the 2nd and 3rd defendants were cited.
Held further – that there is a difference between a contract of agency and one of
mandate in that in the latter, the mandatory does not have the power to perform a
juridical act on behalf of the principal but which an agent can. Held further – that the
contract in question being a mandate, the provisions of s. 2 of the Act did not apply to
the transaction in question. Both exceptions were dismissed with costs.

Highland Farming CC v Casper Hendrik Rossouw (A 57/2015) [2016] NAHCMD 302

(04 October 2016

Summary: The applicant on 18 March 2015 commenced proceedings in this court by

way of a notice of motion in which it claimed: (a) Confirmation that the agreement of 5
March 2012 concluded between the applicant and the respondent was cancelled. (b) An
order directing the respondent to deliver the head of cattle with ear tag identification
numbers as set out in annexures “C”, “D” and “E” to the applicant’s founding affidavit to
the applicant. (c) If the respondent fails to deliver the cattle with ear tag identification
numbers as set out in annexures “C”, “D” and “E” to the applicant’s founding affidavit
then and in that event the applicant sought an order authorizing the applicant or the
Deputy Sheriff for the District of Grootfontein or both the applicant and the deputy sheriff
for the District of Grootfontein to collect the head of cattle with ear tag identification
numbers as set out in annexures “C”, “D” and “E” to the applicant’s founding affidavit
from the farms Gemsboklaagte, Steenboklaagte and Okaura respectively.

Held that where the contract lays down a procedure for cancellation, that procedure
must be followed, otherwise the purported cancellation will be ineffective. The court
found that the agreement made it a precondition that where a party to the agreement
breaches the agreement that party must first be given notice to rectify the breach prior
to the remedy of cancellation being invoked. The court further found that the letter
dated 15 December 2014 is by no stretch of imagination a notice contemplated under
clause 6 of the agreement and that the purported cancellation of the agreement was
therefore ineffective.

Held further that it is well established that dominium can by agreement be retained by
the seller in a credit sale until payment is made. The court found that in this matter the
credit sale from the applicant to the respondent contained a term reserving applicant's

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ownership until it received full payment for the cattle. The respondent would therefore
not become owner of the cattle until the applicant was paid for them.

Held furthermore that the applicant bears the onus to prove that the cattle were
identifiable and still in the possession of the respondent. The court found that the
applicant’s affidavit falls short of placing the evidence before court to indicate that at the
date of the trial the cattle being vindicated were identifiable and that they were still in the
possession of the respondent.

Hilifilwa v Mweshixwa (I 3418/2013) [2016] NAHCMD 166 (10 June 2016)

Summary: At the close of the case for the plaintiff, the plaintiff applied for an order
dismissing the defendant’s counterclaim on the basis that the latter had failed or
neglected to file its proposed pre-trial order setting out the disputes and issues put up
for trial. Held that – the duty to prepare and file the proposed pre-trial order falls on both
parties and it is when the other party does not cooperate that the one party may prepare
a one-sided proposed order and apply to the court to impose sanctions on the erring
party.
Held that – the plaintiff did not itself set out what the issues and disputes are in the
counterclaim and that it was therefore in equal guilt with the defendant in that regard. It
was also noted that at no stage did the plaintiff apply to court for sanctions to be
imposed by the court on the defendant for the alleged failure to comply.
Held that – where there is a counterclaim, there is no division of labour, resulting in the
plaintiff having to prepare a pre-trial order in respect of the claim in convention and the
defendant having to prepare one in respect of the claim in reconvention. Both parties
have to participate and issue one pre-trial order in respect of the entire case, both the
main claim and the counterclaim.
Held further that – both parties should, in terms of rule 27 (3), even at this stage prepare
the pre-trial order in order to delineate the issues for determination in advance of the
postponed trial.
Held that – an order dismissing a defence or claim is not easily granted and that good
practice normally dictates that it should on notice to the other side so as to enable that
side to also prepare and assist the court in making an appropriate order. The plaintiff’s
application was dismissed and there was no order as to costs as both parties were
found to have been in default regarding the filing of the pre-trial order in respect of the
counterclaim.

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Iginasius Andreas Mwira v Hildergard Ermel Mwira (Born Gaeses) (I 2354/2011)
[2016] NAHCMD 299 (28 October 2016

Summary: This case concerns divorce proceedings instituted by the plaintiff

(husband) against the defendant (wife) based on allegations of malicious desertion. The
wife has entered a notice of intention to defend the action and in return instituted a
counterclaim, also claiming an order for restitution of conjugal rights and failing
compliance therewith, a decree of divorce also on the basis of malicious desertion.

The main questions which arise for decision are: (a) which party has succeeded in
discharging his or her onus of proving malicious desertion which would result in the
granting of a restitution order, (b) who between the plaintiff and the defendant must be
awarded the custody and control of the minor child, and (c) how the joint estate is to be
dealt with.

Held that the allegations by the defendant against the plaintiff’s alleged misconduct lack
details and specifics and are based on speculations and hearsay. The court thus found
that the plaintiff has discharged the onus resting on him and that the defendant’s
conduct amounts to malicious desertion of the plaintiff and she so deserted him with the
intention to bring an end to the marital relationship between the parties.

Held further that in order for the court to make a specific forfeiture order evidence of the
value of the estate at the time of the divorce and all contributions made by the spouses
is required.

Held furthermore that the evidence before court is not sufficient for the court to make a
specific forfeiture order.

Held furthermore that there is a legal duty upon both parents to equally maintain their
minor children and that an amount of N$ 500.00 per month per child will be a fair
amount for the defendant to contribute to the maintenance of the minor child.

I-Chuan Kuo v Sphia Investments CC & Another (I 2543/2015) [2015] NAHCMD 341
(10 November 2016)

Summary: On or about 27 August 2013, the first defendant, a Close Corporation,

represented by second defendant as member of first defendant, entered into a business
Joint Venture agreement ( “JV”) to develop property belonging to first defendant into 21
sectional units named as ‘Palnic Square’. In terms of the JV agreement, first defendant
was to make the property known as Erf 316 Prosperita (“the property”) available to the

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JV, whilst the plaintiff would provide financial contribution (“capital investment”) towards
the JV for the construction of the 21 units.

On 30 June 2016 with the view to cure his particulars of claim from the complaint,
plaintiff gave notice to amend. The defendants objected to the amendment and opposed
the application for leave to amend.

The defendant raised two grounds of objection that the proposed amendment renders
the pleadings excipiable and discloses no cause of action.

Held that the plaintiff must plead the terms of the contract, compliance with any
antecedent obligations and non-compliance by the defendant of the terms of the
contract in order to succeed with a claim for specific performance. Held further
defendants on the other hand, are required to plead that they have complied with their
obligations or undertakings made in terms of the contract.

Held that it is not a matter of mere allegation that profits were made, it is a matter of
evidence. The plaintiff is not required to plead that there were profits made and the
objection that the plaintiff must ‘plead and prove that there were profits made’ from the
JV failed.

Held that first defendant as a JV partner is one and the same party to the agreement,
and is obliged to account to its partner for all the proceeds of the partnership. Held
furthermore that plaintiff can claim his shares of the business venture from his partner
who was particularly entrusted with the management and financial control of the JV, and
in that regard, it is manifestly clear for plaintiff to look at first defendant for the financial
answerers he seeks.

Held that plaintiff’s particulars of claim are not rendered excipiable simply because
defendants allege that it is impossible for them to perform under the agreement.
Defendant’s contestation that the terms of the agreement are impossible to give effect
to in law does not constitute a bar to plaintiff’s claims as amended. Held furthermore
that impossibility of performance can be raised as a defence. The fact that such a
defence can be raised cannot render the plaintiff’s claim excipiable.

JB Cooling and Refrigeration CC v Dean Jacques Willemse t/a Windhoek

Armature Winding and Others (A 76/2015) [2016] NAHCMD 8 (20 January 2016).

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Summary: These are reasons for the order I made on 15 October 2015 in the review
application the applicant brought to review and set aside the whole judgment delivered
in the Magistrates’ Court for the District of Windhoek by Magistrate Nandago on 8
January 2015. The judgment by the magistrate was in favour of the first respondent.

During October 2010, the first respondent instituted action to recover certain amounts
from the applicant which were due for services rendered by the first respondent to the
applicant. The applicant stated that he had to take the compressors to South Africa for
the reparation and rewiring. It was only after that that they started functioning properly.
Applicant argues that the first respondent did not repair and rewire the compressors in a
professional and workmanlike manner.

During the proceedings in the court a quo, none of the parties filed expert notices as
required by rule 24 of the Magistrates’ Court Rules and none of the parties called an
expert witness to testify.

A Ms Van Zyl had deposed to and signed the supporting affidavit attached to the notice
of motion. She is employed as a financial manager by the applicant and states that she
was duly authorized to bring these proceedings.

The applicant alleged in its founding affidavit that during the trial, the magistrate allowed
and accepted inadmissible, incompetent and irrelevant opinion evidence by the first
respondent’s witness, Mr. Shisande and Mr. Hainyanyula in respect of the compressors.
Only the second respondent opposed the application. In her opposition, second
respondent raised three points in limine: (1) Ms Van Zyl’s authority to institute the
proceedings; (2) the alleged failure by applicant to comply with rule 76 and (3) the
alleged delay by the applicant to institute the review proceedings.

Held, it is immaterial whether the resolution authorizes Ms Van Zyl to launch the
application or ratifies her action of launching the application. In the matter of Ganes and
Another v Telecom Namibia Ltd Streicher JA held that the deponent to an affidavit in
motion proceedings need not be authorised by the party concerned to depose to the
affidavit. It is the institution of the proceedings and the prosecution thereof which must
be authorised. The first point in limine accordingly fails.

Held further that, the second point in limine is meritless and must fail.

Held furthermore that, the length of time that had lapsed between the cause of action
arising and the launching of the review is not by itself an indication of unreasonable
delay. The court found that the launch of the review application on 9 April 2015 would
not have prejudice any of the respondents nor did it have a negative impact on the
finalization of the matter.

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Held furthermore that, the evidence on which the second respondent relied to find that
the repairs of the compressors were done in a professional and workmanlike manner is
not direct evidence based on the witnesses personal knowledge but were inferences
drawn by the witnesses from other facts and was thus opinion evidence. That opinion
evidence was irrelevant and therefore inadmissible, it did not matter how credible or
reliable the witnesses were.

JB Cooling and Refrigeration CC v Stefanutti Stocks Construction (Namibia) (Pty)

Ltd (A 122/2016) [2016] NAHCMD 135 (29 April 2016).

Summary: Practice – Applications and motions – Urgent applications – Applicant

must satisfy the requirements of rule 73(4) of the rules of court for the application to be
heard as one of urgency – In instant case court found that applicant ought to have taken
the necessary steps with speed and promptness to protect its interests so soon after 21
November 2015 but it did not – Court concluded urgency was self-created – Court
finding that applicant has failed to satisfy the rule 73(4) requirements – Consequently,
application struck from the roll with costs.

Josephat Boois V Assistant Commissioner Nangolo & 3 Others (HC-MD-CIV-MOT-

GEN-2016/00312)[2016] NAHCMD 369 (18 November 2016).

Summary: The applicant who is currently serving a prison sentence in the Hardap
Correctional Facility approached this court by way of an urgent application seeking the
following relief: (a) that his non-compliance with the rules of this court be condoned and
the matter be heard on an urgent basis, (b) that the respondents return all his properties
(i.e television set, dvd and speakers) which were confiscated from him, (c) that the
respondents bring all dockets of the disciplinary hearing which they have opened
against the applicant to court. The first respondent opposed the application.

Held that the delay in bringing the application was created by the prison warders or
officers who used threats and intimidation to prohibit applicant to have his case heard.
The matter was heard as urgent because applicant provided a satisfactory explanation
for his action.

Held that the applicant had enjoyed full and undisturbed use and possession of the TV
and DVD for 3 months, when it was unlawfully taken from him. Held further that the
respondents bear the onus to show that the applicant committed an offence, entitling

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respondents to dispossess applicant of his property. The respondent failed discharge
the onus.

Held furthermore that the, applicant provided sufficient evidence that he was the owner
of the goods which were in his lawful possession when they were forcibly and without
justification removed from his possession. Accordingly he is entitled to an order
restoring the status quo ante.

Held that applicant as an inmate is entitled to the treated with dignity and humanly and
prison warders or officers are not authorised to abuse applicant by forcibly and without
reasonable justification, confiscate his property lawfully acquired by applicant.

Kai-Uwe Denker // Ameib Rhino Sanctuary (Pty) Ltd and 4 Others (A 41/2014)
[2016] NAHCMD 82 (11 March 2016).

Summary: The applicant brought an application seeking the court to make an order
declaring that the transfer of one share in Ameib Rhino Sanctuary Trust (Pty) Ltd from
applicant to the Michael Viljoen Trust was unlawful and therefore invalid. Applicant
furthermore, seeks an order directing Ameib Rhino Sanctuary Trust (Pty) Ltd to,
pursuant to s 122 of the Companies Act, 2004, rectify the register of members by
deleting the entry indicating the transfer of the one share (in Ameib) to the Michael
Viljoen Trust.

The 5th respondent and the trustees of the Michael Viljoen Trust opposed the application
and launched a counter application, in which counter application they seek an order
directing that the land owned by Ameib Rhino Sanctuary Trust (Pty) Ltd be dealt with in
accordance with s 60 of the Agricultural (Commercial) Land Reform Act, 1995. In the
alternative they seek an order placing Ameib under provisional liquidation in the hands
of the Master of the High Court.

Held that, it is unconscionable and unjust that Denker must take money from somebody
and thereafter attempt to wrestle control of the company from that person. In the
circumstances court was not persuaded that justice and equity require that an order for
rectification of the register should be made.

Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands

and Resettlement (A 21/2015) [2016] NAHCMD 118 (21 April 2016).

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Summary: Practice – Applications and motions – Interlocutory application – Applicant
launched an application to review and aside a decision of respondents and a
constitutional challenge application – Meanwhile applicant brought application to compel
respondents to deliver reasons for the decision, taken by respondents and to produce
certain documents – Court found that the fact that ‘the reasons and documentation’
sought concern ‘a case for constitutional review’ matters tuppence – Court found
application was for an interlocutory order through and through and therefore was an
interlocutory application – Consequently, rule 32(9) and (10) applied – Court found that
it has not been established factually that rule 32(9) and (10) was complied with –
Consequently, court upheld point in limine and struck the application from the roll with
costs.

Kambazembi Guest Farm CC ta Waterberg Wilderness v The Minister of Land

Reform (A 184-2016) [2016] NAHCMD 193 (7 July 2016).

Summary: Applications and motions – Urgency – Requirements for prescribed by rule

73(4) of the rules of court – Applicant must set out explicitly the circumstances relating
to urgency and reasons why applicant claims he or she could not be afforded
substantial redress in due course – And applicant must make out a case for urgency in
founding affidavit – Court found that the applicant failed to satisfy the requirements for
urgency prescribed by rule 73(4) of the rules – Court concluded further that the
applicant having been found to be disingenuous in the proceeding court should refuse
to come to the aid of such applicant by granting him the indulgence he craves – The
applicant urged the court to take it that in the present proceeding the Agricultural
(Commercial) Land Reform Act 6 of 1995 and the regulations made thereunder are
Constitution compliant and valid – Yet applicant has instituted at least three applications
which are still pending in the court in which the constitutionality and validity of the very
Act and the very regulations are challenged – Court held that either an Act and
regulations made thereunder are valid or they are not and they cannot be valid on
Monday or May and be invalid on Tuesday or June – Court found applicant’s conduct to
be disingenuous and calculated to delay conclusion of the numerous cases before the
court on the same or similar issues and involving the same parties – Consequently,
application is refused.

Kambazembi Guest Farm CC T/A Waterberg Wildnerness v The Minister of Land

Reform and 5 Others (A197/2015) [2016] NAHCMD 366 (17 November 2016).

Summary: On 22 August 2013 the applicant launched an application (under case

number A 295/2013) in this court in terms of which it, amongst other reliefs, it sought an

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order to have sections 76 to 80 of the Agricultural (Commercial) Land Reform Act, 1995
and the regulations made under that Act (issued under Government Notice 120 of 18
June 2007) declared inconsistent with Article 63(2), 8, 10, 12(1)(a), 18 and 22 of the
Namibian Constitution and therefore invalid. The Minister of Land Reform gave notice
that it will oppose that application.

Whilst that application was still pending before this court the applicant, citing the same
respondents, brought another five applications being: (a) An application brought under
case number A 21/2015 in terms of which application the applicant seeks an order
reviewing and setting aside of the land tax assessment for the financial year 2013/2014
and which was payable on 28 February 2015, and in the alternative, to have the
decision to assess such taxes, declared invalid and unconstitutional. (b) An application
brought under case number A 197/2015 in terms of which application the applicant
seeks an order reviewing and setting aside of the land tax assessment for the financial
year 2014/2015 and which was payable on 30 August 2015 and in the alternative to
have the decision to assess such taxes declared invalid and unconstitutional. (c) An
application brought under case number A 234/2015 in terms of which application the
applicant seeks an order declaring the amendment of Regulation 17(3) of the
regulations made under the Agricultural (Commercial) Land Reform Act, 1995 (issued
under Government Notice 120 of 18 June 2007) void. (d) An application brought under
case number A 158/2016 in terms of which application the applicant seeks an order
declaring the amendment of Regulation 17(3) void and also declaring the assessment
for the payment of land tax for the financial year 2015/2016 null and void. (e) An
application
brought under case number A 184/2016 in terms of which application the applicant
seeks an order declaring the notice issued by the first respondent dated 1 June 2016, in
terms of regulation 64 of the regulations a nullity.

Held that the Constitution is located in a history which involves a transition from a
society based on division, injustice and exclusion from the democratic process to one
which respects the dignity of all citizens, and includes all in the process of governance.
As such, the process of interpreting the Constitution must recognise the context in
which we find ourselves and the Constitution's goal of a society based on democratic
values, social justice and fundamental human rights.

Held further that when a Court interprets and applies a constitution, a 'purposive' and it
requires that a Court has regard to 'the legal history, traditions and usages of the
country concerned, if the purposes of its constitution must be fully understood. That
notwithstanding, the words used, the legal history, the traditions/usages, norms, values
and ideals must never tilt the scales in favour of any practice or interpretation that

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defeats the ultimate aim and purpose of the Constitution, namely the attainment of the
fundamental values (i.e. a democratic, equitable society and justice for all) which the
Constitution is designed to achieve.

Held further that the National Assembly, by section 76 of the Act, did what it was
empowered to do by Article 63(2) of the Constitution, namely enabling or allowing or
giving its express consent to the Minister responsible for Land Reform to raise revenue
for the purpose of funding land reform. The court also found that the powers conferred
on the Minister responsible for Land Reform to raise revenue under s 76 of the Act can
only be performed within the limits set by the Act and are therefore regulatory and not
plenary. Section 76 does therefore not violate the principles of separation of powers as
contained in our Constitution.

Held further that in a modern State detailed provisions are often required for the
purpose of implementing and regulating laws and Parliament cannot be expected to
deal with all such matters itself. The court found that there is nothing in the
Constitution, which prohibits Parliament from delegating subordinate regulatory
authority to other bodies. The power to do so is necessary for effective law-making. It is
implicit in the power to make laws for the country and that under our Constitution
Parliament can pass legislation delegating such legislative functions to other bodies.
The court was of the view that there is, however, a difference between delegating
authority to make subordinate legislation within the framework of a statute under which
the delegation is made, and assigning plenary legislative power to another body.

Held further that s 76B does not delegate to the Minister the power to legislate or to
make law but confers on the Minister the authority or discretion to execute the law made
by Parliament. 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 Act and
that there was nothing in the Constitution which prohibits Parliament from delegating
subordinate regulatory authority to the Minister. Section 76B was therefore held not to
be unconstitutional. The court further found that sections 77 to 80 of the Act are not
inconsistent with the Constitution.

Held further that the doctrine of vagueness is founded on the rule of law, which, as
pointed out earlier in the judgment, is a foundational value of our constitutional
democracy. It requires that laws must be written in a clear and accessible manner. It
concluded that what is required is reasonable certainty and not perfect lucidity. The
court found that Regulations 4(2) and (4) do with reasonableness certainty convey to
the Minister and the public what is expected of them. The court thus concluded that

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Regulations 4(2) and (4) cannot be said to be vague and are therefore not inconsistent
with the Constitution.

Held further that Regulations 4(9)(b), (13) and (14) were enacted on the authority of
Parliament and expressly authorise the valuer to further delegate the powers conferred
on him or her by the regulations . The court further found that Regulations 4(9)(b), (13)
and (14) do not violate the delegatus delegare non potest’ principle and are not
inconsistent with the common law, the rule of law or the Constitution.

Held further that the valuation court is a court of law but a tribunal. Tribunals, the court
held are informal investigative or quasi-judicial bodies which deal almost exclusively
with administrative law, and usually on a highly specialized level and that a tribunal, by
definition, should possess the following characteristics: the ability to make final, legally
enforceable decisions. Secondly, be independent from any departmental branch of
government. Thirdly, the nature of the hearings conducted in tribunals should be both
public and of a judicial nature, while not necessarily subject to the stringent formalities
of a court of law. Fourthly, tribunal members should be in possession of specific
expertise, in the field of operation of the tribunal as well as judicial expertise. Fifthly,
there should be a duty on tribunals to give clear reasons for their decisions, and lastly
that there should be a right of appeal to a higher court on disputes regarding points of
law. The court found that the valuation court established by the Taxation Regulations
conforms to all these characteristics and is thus a tribunal as contemplated Article 12(1)
(a) of the Constitution and that Regulation 8 of the Taxation Regulations is not
inconsistent with the Constitution.

Held further that Article 12(1)(a) of the Constitution simply entitles a person to have his
or her civil obligations determined in a fair manner by a competent and independent
tribunal. The court further found that the central principles governing the proceedings of
administrative tribunals are flexibility and fairness, which are both emphasized at
common law. It was held that Regulation 13(1), simply restates the principle of flexibility
and thus fortifies the right to a fair hearing. Regulations 13(1), 14(1) and 14(3)(b) were
found not to be inconsistent with the Constitution.

Held further that Regulation 15 clearly does not place any impediment in the way of any
aggrieved person to approach the High Court for review of the valuer’s exercise of his or
her discretionary powers nor was there anything in in that Regulation which suggests

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that the inherent jurisdiction of the High Court to grant appropriate relief is excluded.
The court therefore rejected the suggestion that Regulation 15(b) is inconsistent with
the Constitution.

Held further, that the delay of nearly 9 years in some instance and 11 years in other
instances is grossly unreasonable and that the delay in this matter is a sufficient ground
on its own to refusing to hear the application for the review of the administrative
decision and actions impugned by the applicant.

Held further with respect to the application launched under case number A 21/2015 that
the allegation that the Minister failed to comply with the rule of law, constitutional
legality, including rationality is a hollow statement, as it does not tell the Minister or
direct the court as to how the assessment (which is sanctioned by law) contravenes the
rule of law, constitutional legality or how the assessment is irrational. The court
concluded that it was impossible for it to make a decision as to the breach of the rule of
law or constitutional legality alleged without having been apprised of the facts on which
the allegation is based. The court furthermore concluded that the applicant has failed to
discharge the onus resting on it to prove that the assessment to pay land tax for the
period 2013/2014 was in breach of the rule of law, constitutional legality or is irrational.

Held further that there is no general rule that all provisions with respect to time are
necessarily obligatory, and that failure to comply strictly therewith results in the
nullification of all acts done pursuant thereto. The real intention of the legislature should
in all cases be enquired into and the reasons ascertained as to why the legislature
should have wished to create a nullity. The court found that a value - coherent and
purposive interpretation of the Regulation points to the conclusion that it is also possible
to interpret the Regulations as providing for a valuation roll which was approved by the
valuation court to remain valid beyond the five year period set out in the Regulations
until it is superseded (the synonym for superseded is succeeded) by another main
valuation roll approved by the valuation court. The court thus found that the Minister of
Land Reform did not act ultra vires when he used the 2007 to 2013 to assess land tax
for the 2013/2014, 2014/2015, 2015/2016 financial years. The accordingly dismissed
the applications launched under case number A 21/2015, A 197/2015, A 234/2015, A
158/2016 and A 184/2016.

Held finally that in exercising the court’s discretion with respect to cost, the court will
take into consideration the general rule applied by the South African Constitutional

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Court namely that in constitutional litigation, an unsuccessful litigant ought not,
ordinarily, to be ordered to pay costs. The court found that in this consolidated matters
the only application which involved genuine and substantive constitutional
considerations is the application brought under case number A 295/2015. The
remaining five applications did not, in the court’s, opinion involve constitutional matters
and for that reason, the unsuccessful applicant was ordered to pay the costs in those
applications.

Kamwi v Siluzungila (A 347/2015) [2016] NAHCMD 273 (19 September 2016)

Summary: Applications and motions – Applications – Applicant filed an application

seeking for an eviction order against the respondents and their family members. The
land concerned is a communal land. Two points in limine raised on behalf of the
respondents, namely that of non-joinder and misjoinder.

Held that - a party with a legal interest in the subject matter of the litigation and whose
rights might be prejudicially affected by the judgment of the court, has a direct and
substantial interest in the matter and should be joined as a party.

Held that – a deceased person cannot be joined as a party to proceedings. The right
person to be cited as a party to the proceedings is the executor of the deceased estate.

Held that – the applicant should and was obliged to join the State in whom ownership of
communal land vest. In addition the applicant should also have joined the Communal
Land Board and the Chief or the Traditional Authority in whose area of jurisdiction the
Communal Land concerned is situated.

Kandombo v The Minister of Land Reform (A 352/2015) [2016] NAHCMD 3 (18

January 2016).

Summary: The applicant occupies a farming piece of land (the Plot) which he alleges
was allocated to him during 2000 by an official from the Ministry of Land Reform (the
Ministry). He has ever since been farming thereon, initially with cattle, sheep and goats
but later only with sheep and goats. During December 2015, officials from the Ministry
accompanied by police officers, together with representatives from the beneficiary
organization to whom the Plot has been allocated, arrived at the Plot without notice to

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and in the absence of the applicant and ordered the farmworker of the applicant to
vacate the Plot including his animals. The farmworker complied. The applicant then
approached the court on urgent basis with, notice to the respondents, seeking for a
spoliation order in the form of a rule nisi. He alleged that the matter is urgent, because
his farmworker is sleeping in the open exposed to elements and his animals are without
water and food. He alleges that he has been in peaceful and undisturbed possession of
the Plot and has been wrongful dispossessed thereof by the respondents.

The respondents opposed the application disputing that it was urgent; disputing that the
Plot had been allocated to the applicant; asserting that the applicant was in unlawful
occupation of the Plot; pointing out that the Plot has been allocated to a beneficiary who
must take occupation immediately. Finally they denied that they unlawfully deprived the
applicant possession of the Plot, because the farmworker voluntarily vacated the Plot
taking with him the applicant’s animals.

Held; that on the facts of this matter, the matter was sufficiently urgent justifying the
court to hear it as urgent;

Held further, that the applicant successfully established that he was in peaceful and
undisturbed possession of the Plot and the respondents wrongfully removed him from
such possession or occupation without due process of law; and

Held further, that the conducts of the respondents amounted to acts of self-help
entitling the court to grant the spoliation order.

Katjivena v Prime Minister of the Republic of Namibia (A 265/2014) [2016]

NAHCMD 146 (18 May 2016)

Summary: Practice – Parties – Locus standi – Of first respondent to bring application

on her own behalf of other applicants – Application for interdictory order and declaratory
orders – First applicant stating in founding affidavit that she brought application on her
own behalf and authorized to bring the application on behalf of others – The others
confirming such of first applicant’s authority by confirmatory affidavits – Court finding
that all applicants having the same interest and application based on the same facts,
the same statutory provisions and the same principles of law – Court finding that it is
commonplace in the practice of the court for one applicant to bring application on his or
her own behalf and on behalf of other applicants having the same interest, and where
the same statutory provisions and principles of law are applicable and foundation of
such applicant’s authority laid in founding affidavit and such authority confirmed by the

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other applicants by confirmatory affidavits – In that event such application not
constituting Roman law actio popularis – Consequently, court rejected respondents’
preliminary objection to first applicant’s locus standi in judicio.

Applications and motions – Application for declaratory orders – Question to answer was
whether lawful for respondents to make deductions from applicants’ salaries for salaries
respondents received retrospectively – Where payment of approved salaries was with
effect from a particular date but pending the happening of an event the critical date on
which one’s right to the new salaries inured is the ‘with effect from’ date not date on
which the pending event occurred – To contend otherwise is to wrongfully conflate the
time at which the right inured with the time at which payment, for all manner of reasons,
can be effected – By a letter dated 25 January 2010 the Prime Minister approved
revised salaries for categories of staff in first respondent’s Ministry with effect from 1
December 2009 – Payment of new salaries subject to promulgation of an amendment to
Act 17 of 1996 and approval from Treasury – Court found that the critical date on which
applicants’ right to the new salaries inured is 1 December 2009 and not the date on
which the amendment was effected or Treasury approval obtained – Consequently,
applicants were entitled as of right to the new salaries retrospective to 1 December
2009 – Accordingly respondents acted ultra vires and unlawfully when they made
deductions and continued to make deductions from applicants’ salaries for alleged
unlawful retrospective payment of salaries – Consequently the right thing to do was to
grant declaratory orders and, a priori, the interdictory relief and directions sought.

Kaura v Taxing Master of the High Court (A 121/2015) [2016] NAHCMD 138 (10
May 2016).

Summary: Costs – Taxation – Review of taxation – Grounds for review based

primarily on common law grounds and on grounds wider than common law grounds –
Court held that court ought not to interfere with taxing officer’s exercise of discretion
where applicant in his or her request to taxing officer to state a case did not set forth
grounds of objection advanced at taxation and did not include any finding of fact by the
taxing officer – In that event there would be no grounds placed before the court upon
which court may determine that taxing officer has exercised his or her discretion
wrongly – In instant case applicants aver they were dissatisfied with ruling of the taxing
officer on items 6, 12, 13 and 17 in the respondents’ bill of costs – Applicants requested
taxing officer to state a case for decision of a judge – Court found that in their request,
applicants failed to set out the items together with grounds of objection advanced at the
taxation and also failed to include any finding of fact by the taxing officer –
Consequently, court not in a position to determine whether taxing officer exercised his
discretion wrongly – In that event court not prepared to interfere with the rulings of the

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taxing officer on the items applicants were dissatisfied with – Consequently, application
dismissed.

Kaune v Registrar of Deeds (I3124-2012) [2016] NAHCMD 241 (22 August 2016).

Summary: On 30 June 1988 Mr. Phillipus Kaune, a communal farmer who

progressed to become a commercial farmer, died without leaving a will. His estate
included livestock, cash, immovable property and motor vehicles. The late Kaune was
survived by his widow, and twenty four children. One of his sons is the plaintiff in this
matter. The plaintiff instituted action in this court in which he sought: (a) an order
declaring that he (i.e. the plaintiff) is, in terms of the Otjiherero customary law,
alternatively Otjiherero custom the lawful heir to Farm Uithou (b), declaring that the
appointment of Petrus Van Straten, on 12 August 2010, as the executor in the Estate of
the late Kaune as invalid: (c) an order authorizing and directing the Registrar of Deeds
to, in accordance with the Deeds Registries Act, 1937, register Farm Uithou in the name
of the plaintiff; and (d) cost of the action.

Held that because the plaintiff relies on a statement or a wish allegedly expressed by
his late father that he is to inherit the Farm the onus is on the plaintiff to, at the trial,
prove that his late father made the statement or expressed the wish that he, the plaintiff
is to inherit the Farm if the father predeceases the plaintiff. The second fact which the
plaintiff must prove is that he did in accordance with Otjiherero Customarily law
alternatively Otjiherero custom and tradition inherit the Farm.

Held further that at the stage of an application for absolution, the plaintiff, as in the
present circumstances need not show that as a fact or that on the balance of
probabilities, the Court will find that his father, the late Kaune, made the statement or
expressed the wish that on his death the plaintiff must inherit the Farm. All the plaintiff
has to do is to show that there is sufficient admissible evidence which shows that a
reasonable Court might find that the late Kaune made the statement or expressed the
wish that if he, the late Kaune, predeceases the plaintiff the plaintiff must inherit the
Farm.

Held that there is no admissible evidence before court that the late Kaune made the
statement or expressed the wish that if he, the late Kaune, predeceases the plaintiff the
plaintiff must inherit the Farm and that plaintiff did not place a single piece of evidence
before court as to what the practice in Otjiherero custom or what the Otjiherero
customary law in respect of inheritance or success is.

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Held further that the plaintiff did not put any shred of evidence before court as to how, in
the Otjiherero custom and tradition, ownership in respect of the immovable property
passes from one person to another;

Held furthermore that the appointment of Mr van Straten is a valid administrative act
performed by the Master.

Held further that no reasonable court could or might give judgment in plaintiff’s favour
and the defendants are therefore absolved from the instance.

Kayla Trading Enterprises CC v Okavu Renaissance Investments CC (I 41-2015)

[2016] NAHCNLD 55 (30 June 2016).

Summary: Applicant filed for an interlocutory application to be granted opportunity to

file a further affidavit. Respondent opposed the application and raised two points in
limine, that applicant did not comply with rule 32 (9) and (10) of the Rules of court and
has attached inadmissible evidence. Applicant admitted to non-compliance of the rules
and has asked court’s indulgence to comply. Applicant further argued that the attached
affidavit was merely to gain court’s confidence in their claim. Compliance of the rules
strictly encouraged by the said provisions and leave from court should be sought and
granted before attaching or adducing further evidence. Court upheld the points in limine
and application is dismissed with costs.

Ken Investments Close Corporation v Rouwans Investments CC (A 297/2015)

[2016] NAHCMD 51 (3 March 2016).

Summary: Applications and motions – Urgency – Application brought ex parte and on

urgent basis – Court held that it is trite that good faith is sine qua non in ex parte
applications – Applicant owes a duty of utmost good faith to the court to make full and
proper disclosure to the court – Failure to disclose all relevant facts to the court should
lead to dismissal of application – In instant case applicant had failed to disclose certain
relevant facts to the court when it brought the urgent ex parte application – Applicant did
not disclose to the court the fact that it was the applicant, in terms of the Project Finance
Agreement entered into between applicant and the first respondent, who was
responsible for managing the finances in respect of the project awarded to the first
respondent, particularly the fact that in that behalf, applicant did have control over first
respondent’s bank account – Applicant, furthermore, did not disclose to the court the
fact that applicant, in breach of the agreement, made transfers of substantial sum of
money to third parties, including applicant’s family members – Court found that in the
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result applicant acted in material breach of his bounden duty to act in utmost good faith
in the urgent ex parte application proceeding – Court concluded therefore that the
applicant has failed to make out a case for the confirmation of the rule nisi –
Consequently the rule nisi was discharged and the application dismissed with costs.

Laicatti Trading Capital Inc v Greencoal (Namibia) (Pty) Ltd (Registration Number:
2010/0314) (A 273/2014) [2016] NAHCMD 31 (22 February 2016).

Summary: Company – Winding up – Application for – Grounds – On the basis of the

‘just and equitable’ provision – Ambit of ground – Company, in instant case, in
substance a partnership – Circumstances justifying dissolution of partnership also
justifying winding up of company – Court satisfied applicant has established specific
grounds sufficient for the granting of a provisional winding up order – On the papers it is
sufficiently established that the relationship of mutual trust and confidence and friendly
cooperation between the equal shareholders in company has broken down irretrievably
– Furthermore, there has been breach of good faith parties owed to each other – Court
accordingly held that first applicant has made out a case for provisional winding up
order – Companies Act 28 of 2004.

Summary: Company – Winding up – Application for – Grounds – On the basis of the

‘unable to pay its debts’ provision – Company unable to pay its debts when it is unable
to meet current demands placed on it in its day-to-day activities in the ordinary course of
business – Court will make an order for compulsory winding up of company where on
the totality of the evidence interested parties would be protected only by a fully
independent investigation of the company’s affairs in compulsory winding up – Where
on the papers there is prima facie case (ie a balance of probabilities) in favour of
applicant, provisional order of winding up should normally be granted – In instant case
purpose of the rule nisi sought is to give interested parties interim protection and for
them to be heard – Second, third and fourth applicants (‘these applicants’) are
liquidators of insolvent holding company – Second respondent is a 50 percent
shareholder of insolvent holding company and director thereof at the material time –
Liquidators’ investigations revealed an unexplained shortfall on holding company’s
books in the amount of N$4,7 million – Court found that assets of insolvent holding
company diverted by second respondent by way of questionable and unauthorized
transactions to the company (first respondent) through intervention of second
respondent – Some of these payments to company constituted disposition without value
in terms of s 26 of the Insolvency Act 24 of 1936, read with s 344 of the Companies Act
28 of 2004 – Court found further that company’s failure to pay certain proved
indebtedness is due to its inability to pay and therefore company is commercially

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insolvent – Court found no evidence that there has been any revenue flow into
company or that funding has been sourced for company – Court found further that only
when liquidators of company has investigated company that the full picture of
questionable and unauthorized dealings in the company, including the role of the
second respondent in them, would emerge – On the totality of the evidence court found
there is a prima facie case (ie a balance of probabilities) in favour of applicant –
Consequently court concluded applicants have made out a case for the grant of a
provisional winding up order.

Leopard Tours Car and Camping Hire CC v Dannecker (I 2909-2006) [2016]

NAHCMD 260 (9 September 2016).

Summary: Defendants in the main dispute, brought an application for absolution of the
instance at the end of the plaintiff’s case. It was dismissed with costs; the main dispute
is still pending. Plaintiff submitted their bill of costs to the taxing master; same was
approved in the amount of N$127,274.62, and was followed by the issuance of a
warrant of execution against defendants.

This application sought to set aside the warrant of execution, based thereon that the
cost restriction of N$20 000 contained in rule 32(11), is applicable in respect of the cost
of the proceedings refusing absolution of the instance and hence the taxed bill of cost
was not a competent order of the taxing master.

Held, the proceedings in the application for absolution of the instance was not definitive
of the rights of the parties. It did not dispose of a substantial portion of the relief claimed.
It is interlocutory in nature.

Held, because of its interlocutory nature, the cost of proceedings resorts under the
restriction in terms of rule 32 (11).

Held, the cost order in the amount of N$127,274.62, made by the taxing master was not
a competent order. It is set aside and so is the warrant of execution and all court
process issued pursuant thereto.

Ludeke v Andries Louw T/A Andries Louw Developers (I 1359/2011) [2016]

NAHCMD 177 (17 June 2016).

Summary: During August 2010 the plaintiffs commissioned the defendant to construct
a house for them. The realization of the plaintiffs’ dream to own a house was shattered
and delayed during December 2010 when the house that they had commissioned for

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construction displayed some structural defects and had to be demolished. It is as a
result of the shattered and delayed dream and the consequential financial losses which
the plaintiffs allege they have suffered that the first plaintiff, Mr. Dewald Christo Ludeke,
on 13 May 2011, issued combined summons against the defendant, claiming damages
in the amount of N$ 504 812 and interest on that amount at the rate of 20% per annum
reckoned from the date of judgment.

The plaintiffs claim is based on contract. The defendant entered notice to defend the
plaintiffs claim, he denies liability on the basis that the agreement between him and the
plaintiffs contained an implied term that the materials (i.e. the erf) provided by the
plaintiffs must be fit for the purposes for which they are intended. Defendant furthermore
counterclaimed, claiming damages in the amount of N$ 125 000 (in respect of claim 1)
and N$ 25 218, alternatively in the amount of N$ 20 218 (in respect of claim 2). Held
that the parties agreed that the terms set out in the document admitted into evidence as
Exhibit B form part of their agreement and one such term was that the defendant would
excavate the trenches for the foundation on firm natural ground. Held further that the
defendant undertook and promised the plaintiffs that he would excavate the foundations
for the house on firm and natural ground. The court thus concluded that where there is
an express provision dealing with a particular matter there is no room for an implied
term dealing with the same matter.Held furthermore that the defendant has not shown
the standard of workmanship to the general level of skill and diligence possessed and
exercised at the same time by the members of the branch of the profession to which
(he) belongs. That the failure of the defendant to show that level of workmanship
constitutes negligence. Held furthermore that the plaintiffs’ loss was one flowing
naturally and generally from the defendant’s breach of contract and one which the law
should presume to have been contemplated by the parties as a probable result of the
breach. Held furthermore that the defendant’s counterclaim against the plaintiff cannot
succeed and the plaintiff is entitled to recover the damages that he has suffered.

Ludik v Keeve & Another (A 316/2015) [2016] NAHCMD 4 (20 January 2016).

Summary: The respondents had leased Erf 4239, 76 Riverside Avenue, Kramersdorf,
Swakopmund, Namibia, to the applicant. At the termination of the applicant did not hand
over the keys of the property to the respondents. On 4 November 2015 the respondents
went to the property replaced the keys to the property and changed the frequencies of
the remote controls to the property. Applicant applied for a spoliation order against the
respondents. Respondents opposed the application and also raised two points in limine,

Held, that since the second respondent as described in the amended notice of motion is
clearly recognizable from the original notice of motion, the amendment sought by the

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applicant amounts to no more than the 'clarification of a defective pleading' and not the
introduction of a new legal entity as the second respondent the applicant's application
for the amendment must thus succeed.

Held, further the right of a defendant to demand the joinder of another party and the
duty of the court to order such joinder or to ensure that there is waiver of the right to be
joined (and this right and this duty appear to be co-extensive) are limited to cases of
joint owners, joint contractors and partners and where the other party has a direct and
substantial interest in the issues involved and the order which the Court might make.
These circumstances were absent in this matter.

Held, furthermore that that the remedy of mandament van spolie is aimed at every
unlawful and involuntary loss of possession by any possessor, and its object is no more
than the restoration of the status quo ante as a preliminary to any inquiry or
investigation into the merits of the respective claims of the parties to the thing in
question.

Held, furthermore that the applicant was in peaceful and undisturbed possession of the
property on 4 November 2015 when the respondents resorted to self-help and changed
the locks and alarm frequencies to the property accordingly, the respondents performed
an act of spoliation.

Maletzky v The President of the Republic of Namibia (A 176/2014) [2016] NAHCMD

50 (3 March 2016).

Summary: Statute – Rule 5 of rules of court – Applicant contending that rule 5

amends the common law on one’s right to freedom to contract and pursue cession –
Court rejected applicant’s contention on the basis that such amendment can be effected
only by clear and unequivocal language – But there is no clear or unequivocal language
in rule 5 tending to show that rule amends the common law in respect of one’s right to
freedom to contract and to pursue cession – Court found that applicant has failed to
prove that which he asserts – Accordingly, court rejected applicant’s contention that rule
5 is ultra vires the power of the second respondent (the Judge-President) to make rule 5
under s 39 of the High Court Act 16 of 1990 – Consequently, court dismissed the
application with costs. Constitutional law – Rule 5 of rules of court – Constitutionality of
– Where it is contended that a regulation is unconstitutional, the party so contending
bears the onus of persuading the court that the said regulation is not reasonably
justified in a democratic State, and not the State to show that it is – Applicant contends
that rule 5 unreasonably discriminates against ‘cessionaries’ – Court found that rule 5
serves important legal and social purposes – The rule serves to protect the public

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against charlatans, all charlatans without exception, masquerading as legal practitioners
– Additionally rule 5 is there to protect, maintain and enhance the integrity and
effectiveness of the judicial process and due administration of justice – Having so found
the court concluded that applicant has failed to discharge the Kauesa onus that rule 5
offends the anti-discrimination provisions of art 10 of the Namibian Constitution –
Consequently, court dismissed the application with costs.

Maletzky // Kavetu and Others (A 59/2016) [2016] NAHCMD 57 (4 March 2016).

Summary: The applicant brought this matter on an urgent basis seeking an order (a)
restraining the respondents from enforcing the court order, in case No. I 3022/2015,
granted on 18 February 2016 in favour of the first respondent pending the hearing of an
application for the rescission or setting aside that order; and (b) directing the applicant
to file the application for rescission of judgment or the setting aside of the aforesaid
court order.

When the matter was set down for hearing of 26 February 2016, first and third
respondent indicated that they will oppose the applicant’s application and the hearing
was thus postponed to 3 March 2016. A certain Ngaringombe (who was the registered
owner of an immovable property, situated in the Town of Okahandja, being erf 762,
Nau-Aib Okahandja) concluded, on 17 September 2008, a written deed of sale with a
certain Sylvia Urikhos. On 4 November 2009 Urikhos in turn concluded a deed of sale
with the applicant in terms of which she sold the erf to the applicant.

During April 2015, Mr. Ngaringombe concluded a deed of sale with a certain Ms Kavetu
(the first respondent) in terms of which he sold the property to her (the first respondent).
The property was transferred and registered in Ms. Kavetu’s name during July 2015. At
the time the property was registered in Ms Kavetu’s name, a certain Ms Marichen
Maletzky was in occupation of the said property allegedly at the instance of the
applicant. Ms. Maletzky was requested by the first respondent, in her capacity as owner,
of the property to vacate the property. When first respondent failed to receive
occupation of the property she, under Case No. I 3022/2015, instituted action against
Ms. Maletzky for her eviction from the property. On 17 February 2016 the first
respondent obtained an order from this court directing that Ms. Maletzky be evicted from
the property forthwith. It is the order which directs that Ms. Marichen be evicted from the
property which the applicant is seeking to interdict the first respondent from executing.

Held, the ordinary common-law principle is that a litigant must have a direct and
substantial legal interest in the outcome of the proceedings. A financial interest will not
suffice. There are exceptions to this rule aimed at preventing the injustice that might

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arise where people who have been wrongfully deprived of their liberty are unable to
approach a court for relief.

Held furthermore that the interest which the applicant has in this matter is simply a
financial interest.

Martucci & Others v Colcellini & Another (I 2295/2015) [2016] NAHCMD 149 (18
May 2016).

Summary: The plaintiffs and the defendants are Italian citizens who are engaged in
litigation in Namibia regarding a motor vehicle collision in which the plaintiffs’
breadwinner died. The respondents lodged a claim for maintenance and loss of support
against the defendants. The law relating to security for costs and the applicable
principles revisited.

Held – the law relating to security for costs was primarily designed to protect incola
defendants against claims instituted against them by foreigners. Held – the court
exercises a discretion in granting or refusing applications for security for costs and
which discretion must be judicially exercised in line with the dictates of justice and
fairness to all the parties.

The words ‘entitled to demand security’ in terms of rule 59 examined and classes of
persons ‘entitled’ to demand security in terms of the rule listed.

Held further – although applications for security for costs by peregrinii defendants
against peregrinii plaintiffs are a common feature in shipping and admiralty cases, there
is nothing that prevents the court, in appropriate cases, to order a peregrinus plaintiff
from supplying security for the costs of a peregrinus defendant.

Held further – the court exercises its discretion in granting or refusing such applications
and must evenly balance the interests of justice and fairness in respect of both sets of
litigants.

Held – that in the present case, the claim was for maintenance and support, particularly
of minor children and it would not be proper to order security as that may serve to
hamper the plaintiffs from pursuing their claim. Held further – since all the parties were
Italian citizens, the defendants did not stand to suffer prejudice if the claim was
dismissed as they could apply for satisfaction of the costs order in Italy, a common
country of domicile for all the parties.

Held – that it is unnecessary, in the circumstances, to consider whether or not the

application for security for costs was lodged as soon as it was reasonably practicable

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after the commencement of proceedings in light of the order refusing to grant the
application for security for costs. Held further – the court does not normally consider the
lateness of the application for security for costs to stand as a fatal bar. Application was
dismissed with costs.

Martucci v Mountain View Game Lodge (Pty) Ltd (I 2295-2015) [2016] NAHCMD
217 (22 July 2016).

SUMMARY: The defendant, an incola of this court filed an application for security for costs
against the plaintiffs who are resident in Italy for an amount of N$ 300 000. The plaintiffs
contested their liability to furnish such security as well as the amount, claimed on the basis that
there was a delay on the part of the defendant to file such an application , despite its’ intention
to do so at case management stage.

Held- that the issue of security for costs involves two aspects, firstly, of liability to pay such
costs, which is within the purview of this court’s determination. Secondly, that the matter of the
nature, form and amount of security is ordinarily a matter exclusively for the decision of the
Registrar. The court further held that Judges of this court, particularly in the judicial case
management era, handle diverse, complex and multifarious responsibilities, legal and judicial
tasks and it would be unfair and insensitive to have to burden them with determining the amount
of security to the precision of the dollar and cent required in this matter unless special
circumstances exist, in which case the court can pronounce itself.

Held further- that delay in filing the demand for security is not in itself is not an automatic bar to
an application for security. Furthermore, where an intimation is made of the desire to bring such
an application in the case plan, the party against whom security is intimated to be demanded is
thereby placed on the qui vive and may not just wish or ‘silence’ the intimated demand away.
They should enquire if the other party still intends to pursue the said step and put them on
notice that if they do not do so, they may waive their right to do so.

The court found that the plaintiffs are liable to furnish security for costs to the defendant and that
the amount payable is to be determined by the Registrar of this court. Held further- that plaintiffs
are liable for the costs of opposing this application. Lastly, the court held that should the plaintiff
fail to furnish such security, the proceedings will automatically be stayed.

Mashozhera v The Chairperson of the Immigration Selection Board (A 207/2015)

[2016] NAHCMD 38 (25 February 2016).

Summary: Immigration – Permanent residence – Requirements for – Applicant

averring he satisfied the requirement that he has such qualifications, education and
training and experience as are likely to render him efficient in business he intended to

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pursue – Averment made by applicant’s counsel during hearing of matter – Copy of
application applicant made to first respondent’s Board not placed before court for the
court to determine if such information was placed before the Immigration Selection
Board – In any case court found that applicant was an illegal immigrant within the
meaning of Act 7 of 1993, subsec 1, read with sebsec 2 of s 39 – For that reason Board
not competent to authorize issue of permanent resident permit to applicant in terms of
Act 7 of 1993 – Applicant failed to place before court the prescribed application he
submitted to the first respondent’s Board – Court therefore not in position to determine
whether information now placed before he court in counsel’s submission about applicant
being likely to earn sufficient means to maintain himself and his family was placed
before the Board for the Board’s consideration – Court found that the applicant was an
illegal immigrant and was therefore precluded from being issued with any of the permits
prescribed by Act 7 of 1993, including permanent residence permit, just as an illegal
immigrant could never so long as his or her residence in Namibia remained unlawful
acquire citizenship of Namibia – Consequently, application dismissed with costs.

Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise
Operations (Pty) Ltd and two others (A 171/2013) [2016] NAHCMD 329 (28 October
2016)

Summary: On 30 May 2013 the applicant in this matter launched an urgent

application in this Court in which application the applicant amongst other things sought
an order: (a) Interdicting the respondents from trading under the name of "Talisman"
and from using the name "Talisman" in any way in its trading name in the Republic of
Namibia in a manner that will cause confusion with the business of the applicant; (b)
Interdicting the respondents from utilising the name "Talisman" presently used by the
applicant in any of their advertising materials in the Republic of Namibia; (c) Interdicting
the respondents from advertising their business in any way in the Republic of Namibia
by use of the name "Talisman". The respondents opposed the application.

Held that the onus is on the applicant applying for a final interdict to establish on a
balance of probability the facts and evidence which prove that he has a clear or definite
right in terms of substantive law.

Held further that the incidence of the burden of proof (i.e. the duty that is cast upon a
litigant to adduce evidence that is sufficient to persuade at the end of the trial that the
claim should succeed) once established, never shifts. The applicant had the duty to
satisfy the court that its claim must succeed.

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Held further that the applicant failed to place factual evidence from which the court
could deduce that the trade name ‘Talisman’ has been the subject of exposure in
Namibia and that members of the public believe that it enjoys the reputation which is
worthy of protection at common law.

Held furthermore that the court was not satisfied that the applicant has discharged its
burden and proven that the applicant has established a reputation in Namibia with the
name ‘Talisman Plant & Tool Hire’.

Held that it is not sufficient for the applicant merely to prove that the respondents have
adopted a name for its business similar to the name used by the applicant and where an
applicant uses his own name or mere descriptive words in naming his business, an
interdict will not easily be granted unless the applicant can show that his name, or the
descriptive words used by him, have acquired a secondary meaning and are associated
in the minds of the public with the applicant's products or business, and with that of no
one else.

Minister of Land and Resettlement v Dirk Johannes Weidts & Another (I

1852/2007) [2016] NAHCMD 7 (22 January 2016)

Summary: The applicant was a successful party in a trial before this court and was
therefor granted leave to evict the 1 st respondent from a farm. The 1 st respondent
appealed against the decision of this court. In the interregnum, the applicant applied for
leave to execute the judgment the appeal notwithstanding. The court revisited the
elements that an applicant for leave should satisfy. Held – that the applicant had
satisfied the elements for leave to execute the judgment. Held further –that in dealing
with such applications, the court must disabuse its mind on the matter and bring an
unbiased and impartial reasoning to bear on the application, eschewing its previous
judgment from clouding the issues raised on appeal. Held further – that it is generally
undesirable for a party to raise a constitutional matter on appeal for the first time,
compelling the appellate court to sit in the composite capacity of being the court of first
and last instance. Application for leave to appeal granted with costs.

Nakale v The Minister of Justice (A 331/2012) [2016] NAHCMD 98 (7 April 2016)

Summary: Practice – Applications and motions – Applicants seek orders that court
not competent to grant – Court not competent to give advice to litigants – Court not
competent to order mandamus generally to public authorities to obey the Namibian
Constitution – Court not competent to order respondents to grant bail when they have
no power to grant bail – Originally five applicants brought the application – Key
grievance is that their criminal trial has been ongoing since 2005 – The five applicants

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had applied for bail in the lower court – Only first applicant was admitted to bail – Upon
refusal of lower court to admit second to fifth applicants to bail the remedy open to
applicants was to appeal from that decision – Applicants submitted to court they have a
right to appeal or not to appeal from that decision and they exercised their right not to
appeal – In that case court not competent to interfere with decision of lower court in the
absence of an appeal from that decision or application to review that decision –
Consequently, court dismissed the application.

Namibia Farm Workers Union (NAFWU) v Angula (A 290-2015) [2016] NAHCMD

252 (8 September 2016).

Summary: Practice – Applications and motions – Locus standi – Minimum

requirement for deponent of founding affidavit to establish authority to institute motion
proceedings – In challenging the authority so established respondent must adduce
cogent and convincing evidence that deponent has no authority – Deponent established
his authority to institute the motion proceedings on behalf of applicant trade union in the
founding affidavit – Deponent stating who he was, being General Secretary of applicant
union, and exhibiting a resolution of applicant, granting him such authority – Court found
that respondents have not placed convincing and cogent evidence before the court
challenging deponent’s averments on his authority – Accordingly, court found
respondents’ challenge weak – Consequently, court rejected the challenge of lack of
standing of deponent to founding affidavit.

Summary: Applications and motions – Rescission – Judgments and orders –

Application in terms of rule 103(1)(a) of the rules of court – Order sought and obtained
in motion court – But motion court is for the hearing of unopposed matters – Application
moved in motion court as if it was instituted ex parte – And applicant was cited as
defendant but was not served with papers or heard – Counsel for first respondent
brought application to make a settlement agreement an order of court in the motion
court – Application was granted in the absence of applicant trade union –Applicant is a
registered trade union and first respondent was its General Secretary until the latter part
of 2012 – The settlement agreement was allegedly entered into to settle certain dispute
between first respondent and applicant – Court found that the applicant who is to
cooperate in carrying out the order was cited but not served with papers and not heard
– Court found that on the facts of the case, particularly the long-standing bitter rivalries
among office bearers within the first applicant and numerous instances of accusations
and counter accusations of improper conduct on the part of certain office bearers, that
ought to have prompted counsel not to bring the application to make the settlement
agreement order of court in the motion court – Counsel ought to have known there are
substantial and material dispute of fact in the case – Accordingly, court concluded the

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24 July 2015 order was erroneously sought and erroneously granted in the absence of
applicant – Consequently, rescission application granted.

Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the
Namibia Institutions Supervisory Authority and Registrar of Stock Exchanges
(HC-MD-CIV-MOT-GEN-2016/00233) [2016] NAHCMD 365 (17 November 2016).

Summary: Practice – Irregular proceedings in terms of rule 61 of the rules of court –

Two stage enquiry – If step found to be irregular, court to determine whether opposing
party prejudiced – Court not entitled to condone irregular step if no good cause is shown
– Applicant in main application instituted proceedings attacking administrative action of
an administrative official – Applicant instituted application under rule 65 – Court found
that that was irregular in terms of rule 61 – Applicant should have (without a choice)
instituted proceedings under rule 76 which is crafted to govern all review applications –
Upon true construction of rule 76 court found rule maker intended disobedience of the
rule to be visited with a nullity – Court found that no good cause has been shown for
court to condone the non-compliance with the rule – Accordingly, court found that the
rule 61 succeeds – Consequently, court struck and set aside the main application.

Namibia Tantalum Mining (Pty) Ltd v The Minister of Mines and Energy (A
310/2014) [2016] NAHCMD 17 (11 February 2016).

Summary: Delay in bringing review proceeding – Court to determine whether delay

was unreasonable – If delay unreasonable court to consider whether unreasonable
delay has been explained to satisfaction of court – Where there is no explanation for the
unreasonable delay there is nothing for court to consider whether to condone the delay
– Court found that there has been unreasonable delay in instituting the review
application and no explanation has been given for the unreasonable delay –
Consequently, court dismissed the review application – Applicant prayed for an order of
mandamus as alternative to the order to review some of the same decisions which
formed the subject of the review application – Court concluded that to grant the
mandamus sought would have the effect of setting at naught the order dismissing the
review application – That would result in absurd consequences and would not condone
to due administration of justice – Consequently, court dismissed the review application
and refused to grant an order of mandamus.

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Namibian Association of Medical Aid Funds v Namibian Competition Commission
(A 348/2014) [2016] NAHCMD 80 (17 March 2016).

Summary: Applicants being NAMAF (1st applicant) and its constituent members (2 nd
to 10th applicants) contend that being statutory bodies established pursuant to Act 23 of
1995 they are not subject to Act 2 of 2003 – Court found that each of the applicants is
an ‘undertaking’ within the meaning of s 1 of Act 2 of 2003 and they have not been
exempt from the application and force of Act 2 of 2003 by that Act – Consequently, they
are subject to Act 2 of 2003 – Court found further that the issuing and application of
‘benchmark tariff’ by 1st applicant (NAMAF) in respect of medical services is an activity
not designed to achieve a non-commercial socio-economic objective within the meaning
of s 3(1)(b) of Act 2 of 2003 – Court found further that such activity is unlawful because
it offends the anti-competition provisions of Act 2 of 2003 – Therefore the activity is not
one which Act 2 of 2003, s 3(3), exempts from its application and force – Consequently,
application dismissed with costs.

New Era Investment (PTY) LTD v Ferusa Capital Financing Partners cc & 4 Others
(HC-MD-CIV-MOT-GEN-2016/00342) [2016] NAHCMD 380 (02 December 2016).

Summary: The applicant and the respondent entered into a building contract in terms
of which the applicant was contracted to construct low cost houses on the property in
Swakopmund presumably belonging to the NHE or Government. The applicant alleged
that it had possession of the property to construct the houses and in fact commenced
construction when the first respondent, due to cash flow problems was unable to meet
its financial obligations towards the applicant. As a result thereof, the works were
suspended initially by the applicant, and subsequently on instruction of NHE. During the
period of suspension applicant secured the property by guarding the premises. The
respondent paid the applicant some of the money owing to the Plaintiff but a balance
remained unpaid. The parties could not agree on the amount due to the applicant. After
the negotiation failed, the respondent contracted the second respondent to complete the
construction on the property. The applicant claimed that it was exercising its builder’s
lien over the property when it was spoliated from the property by the first and second
respondent who commenced construction on the houses partially constructed by the
applicant. This amongst others, prompted the applicant to bring this application.

The application is opposed by the first respondent who is the contract holder with the
National Housing Enterprise (NHE) to construct low cost houses in Swakopmund.
Second respondent is a company contracted by first respondent to complete the

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construction works on the said property. First and second respondent are alleged
spoliators of the property from applicant.

The applicant seeks two separate but distinct reliefs in respect of the property. In the
first respect, applicant is seeking a spoliation order, and in the second respect, an order
interdicting the respondents from commencing or continuing with any building
construction works on the property.

Held that in order for the applicant to succeed in its application for mandament van
spolie it must adduce evidence that there was sufficient exercise of physical control by
the applicant on the property to constitute actual or effectual control. Held further that
when the property is too wide, the applicant is required to demonstrate how it exercised
control over the property.

Held that the applicant, on the conspectus of the common cause and the undisputed
facts, did not establish it was in possession of the site by having its employees on the
property. The employees were on site to guard the premises for the primary purpose to
secure the safety of the site from outside threats.

Held further that the applicant did not have exclusive possession of the property as the
respondent occupied a part of the property to complete the constructions of the mass
housing project

Held a builders’ lien is applicable over the buildings or structures which the applicant
has built and not over the entire property. The onus is upon the applicant to prove that
its lien extends over the entire property.

Held further that the applicant lost possession of the property already in October 2016,
before the alleged spoliation took place.

Held further that clause 26 of the contract provides for adjudication and arbitration of the
dispute and that the applicant ought to engage the dispute resolution mechanism first
before approaching the court for an interdict under the circumstances of this case.

Nghihepavali v Ministry of Agriculture Water and Forestry (I 26-2014) [2016]

NAHCNLD 51 (30 June 2016)

Summary: First defendant was the employer of 2 nd and 3rd defendants, who, when
they were managing a veterinary road block, prevented plaintiff from taking his cattle to
what they perceived to be their tribal area. The prevention was based on tribal reasons.
Second and third defendants made a tribal statement against plaintiff, which statement
he viewed as defamatory. Plaintiff sued 1 st – 3rd defendants. First defendant excepted
on the grounds that the said remarks were outside the scope and authority of their

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employment in view of the well laid down guidelines of their employment. It was argued
that their utterances were remotely connected to their work and were detached from
their duties. Application for exception succeeded with costs.

Nowases v Evangelical Lutheran Church (HC-MD-CIV-MOT-GEN-2016-00221)

[2016] NAHCMD 231 (9 August 2016).

Summary: Applications and motions – Urgency – Requirements set out in rule 73(4)(a)
and (b) of the rules of court – No urgency where urgency is self-created – In instant
case court found that any urgency is due to culpable remissness of applicants –
Applicants were aggrieved by decision of second respondent and they requested
second respondent to withdraw that decision, failing which they would approach the
court for redress – It became clear in the beginning of April 2016 that second
respondent would not withdraw decision – Applicants did not follow up their threat by
acting with speed and promptness – Consequently, court found that any urgency in the
application was due to the culpable remissness of applicant – Accordingly, court refused
to condone non-compliance with the rules or hear the application as a matter of
urgency.

Summary: Voluntary association – Unincorporated voluntary association – A church –

Jurisdiction of court to intervene in affairs of a church (first respondent) – Court held that
it has jurisdiction to intervene in the internal dispute of first respondent – Court’s power
to intervene is founded on its jurisdiction to protect contractual rights – Court held
further that first respondent’s Constitution constitutes the written contract expressing
terms on which members associate in and with first respondent – Court rejected
submission by counsel that the canons, doctrine and liturgy of first respondent
constitute the terms of such contract; and so, the court has no jurisdiction to intervene in
the affairs of first respondent – Court found that the applicants have not approached the
court to adjudicate on matters of doctrine, canons and liturgy but on applicants’
contractual rights which are civil rights – Applicants instituted application to declare
certain decisions of second respondent to be unlawful in terms of the first respondent’s
Constitution – Having found that the court has jurisdiction to intervene in the internal
affairs of first respondent, court proceeded to consider question of urgency – Court
having refused to condone non-compliance with the rules or to hear the matter on
urgent basis, court did not consider merits of the case.

Oceans 102 Investments CC v Strauss Group Construction CC & Another (A

119/2016) [2016] NAHCMD 274 (19 September 2016)

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Summary: The applicant and the respondent entered into a written building agreement
in terms of which the respondent undertook to construct residential units on the
applicant’s property for a consideration set out in the agreement. The respondent then
took possession of the property and commenced with the construction works. The
applicant failed to pay the respondent in respect of the work done. The respondent then
cancelled agreement and removed all its goods from the building site and informed the
applicant that its removal of the goods should not be seen as relinquishing its lien over
the property. Thereafter the property was occupied by vagrants. The applicant then
received complaints from the neighbours. Thereafter the applicant employed a security
company which posted guards on the property. The respondent then erected boards
outside the boundaries of the property indicating that it was exercising lien over the
property. The boards were removed by the applicant’s guards. A stand-off over the
boards ensued between the guards. That prompted the applicant to launch this
application alleging inter alia that it has been despoiled of its undisturbed and peaceful
possession of the property. In opposition to the application the respondent contended
that it never relinquished its builder’s lien in that its intention throughout was that it
retained possession of the property through its lien over the property.

Held that – a builder’s lien is dependent on continuous possession. There must be

physical control or occupation. An intention of holding and exercising possession alone
is insufficient.

Held further that - symbolic possession in order to exercise a right of retention is

likewise insufficient and cannot substitute actual or effective possession.

Held further - on the facts that respondent lost its lien over the property when it moved
and left the property on 10 May 2015.

Held further - that on the facts of the matter the applicant succeeded in proving that it
was in peaceful and undisturbed possession of the property and that the respondent
committed spoliation when it sent security guards to prevent the security guards placed
on the property by the applicant to exercise possession and control over the property on
behalf of the applicant.

Offshore Development Company v Deloitte and Touche (I 1111-2006) [2016]

NAHCMD 191 (30 June 2016

SUMMARY: The defendant filed an application to amend his plea in terms of rule 52 (2)
and rule 52 (5) of the rules of this court. Plaintiff opposed the amendment on the basis

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that it would render the defendant’s plea excipiable for the reason that the averments in
the proposed plea are void in terms of s.247 of the Company’s Act 61 of 1973. Held -
that amendment may be granted at any stage of a proceeding and court has a
discretion in the matter, to be exercised judicially. Held further- that a court may permit
an amendment, even if it would render the pleading excipiable if exceptional
circumstances exist. Held further- that only if no possible evidence can be led on the
pleadings can an exception that the pleading does not disclose a cause of action or
defence be upheld. Held further- that s.248 gives the court a discretion, in appropriate
circumstances, to excuse officers of a company including auditors from liability for
negligence, default, breach of trust or duty, wholly or partly, if the court is convinced that
they have acted honestly and reasonably in the circumstances.
Further held that the effects of s.248 can only be decided once evidence is led and not
at exception stage, hence it would only be fair and just to allow the amendment and
consequently dismiss the exception. Lastly, costs follow the event. As such the
defendant is ordered to pay costs occasioned by the amendment including those of
instructing and instructed counsel. Application for amendment allowed and exception
dismissed.

Okorusu Fluorspar (Pty) Ltd & Another v Tanaka Trading CC and Another (I
2055/2013) [2016] NAHCMD 16 (05 February 2016)

Summary: The plaintiff sued the 2nd defendant for payment of N$ 741 949-54 as a
result of alleged reckless trading by the 2 nd defendant in his capacity as a member of
the 1st defendant, a close corporation. At the close of the case for the plaintiff, the 2 nd
defendant moved an application for absolution from the instance on the grounds that
there was no evidence led to the effect that the 2 nd defendant had traded recklessly
within the meaning of s.64. Held – the plaintiff had in its statement on oath made
allegations of reckless trading by the 2 nd defendant and which were not challenged in
cross-examination. Held further – that some questions and objective facts apparent
from the plaintiff’s witness point to elements of reckless trading requiring an answer
from the 2nd defendant. Application for absolution dismissed with costs.

Olenga v Spranger (I 3826/2011) [2016] NAHCMD 330 (28 October 2016).

Summary: The plaintiff claims U$ 850 000 from the defendant in respect of monies
allegedly deposited by the plaintiff into the defendant’s business account. The plaintiff
alleged that the monies were paid into the said account for the purpose of developing
landed property owned by the plaintiff in Swakopmund. When the plaintiff decided to no

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longer proceed with the project and demanded the money to be paid back to him, the
defendant denied liability.

Held – that the standard to be applied at the end of the plaintiff’s case is whether there
is evidence upon which a court properly directed, may find for the plaintiff. Held further
that in the ordinary course of events, applications for absolution from the instance are
granted sparingly.

Held – that the evidence, properly considered, proves that there were business dealings
between the parties and that money was deposited into the defendant’s account as a
result of an oral agreement between the parties.

Held – further that although there may have been some inconsistencies in the plaintiff’s
case, for the purpose of deciding whether an application for absolution from the
instance should be granted, the court does not ordinarily carefully weigh the plaintiff’s
evidence with nice calipers as it would do at the end of the trial. It must proceed on the
basis that the plaintiff’s evidence is true and only in very exceptional circumstances
jettison the plaintiff’s evidence on account of its unreliability.

The application for absolution from the instance was dismissed and the defendant was
put to his defence.

Ovambanderu Traditional Authority v Nguvauva (A 172-2016) [2016] NAHCMD 235

(18 August 2016).

Summary: Practice – Final interdict – When to be granted – Applicant, a traditional

authority in terms of the Traditional Authorities Act 25 of 2000, instituting application to
interdict and restrain first respondent from carrying out acts that in their view interfered
with statutory right of applicant – First respondent sought to lay a wreath on the grave of
her late husband without the involvement of applicant – Applicant is the traditional
authority of the community of which first respondent is – The grave in question is that of
first respondent’s late husband – Consequently, the grave and the grave site are a
cultural site of the community and was sacred to the community – Court found that the
applicant was responsible for maintaining and preserving the site – Applicant was also
responsible for supervising and ensuring the observance of the customary law of the
community – In that case it was the traditional authority to facilitate, in terms of tradition
and traditional values, of the community, the first respondent’s laying of a wreath on the
grave of her late husband at the grave site – The first respondent cannot proceed to
enter the grave site in disregard of the right of the applicant – Consequently, court

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granted final interdictory order to restrain and interdict the first respondent from laying
the wreath without reference to the traditional authority.

Peter v Jacobs (A 100/2013) [2016] NAHCMD 11 (28 January 2016).

Summary: Review – Of act of administrative body – Delay in instituting proceedings –

Whether delay was unreasonable – Applicant informed of dismissal as magistrate in
December 2007 but applicant launched review application in April 2013 – The delay of
some five years was raised in a letter from respondents’ legal representatives to
applicant’s legal representatives – Applicant persisted in launching and pursuing the
application – Nothing was placed before the court to explain the delay – It would,
therefore, be unjudicial, unreasonable and unjust for court to condone the delay,
particularly where there is no condonation application to consider – Consequently, court
refused to condone the unreasonable delay – Application dismissed with costs.

Premier Construction CC v Lombardt NO (A 282/2015) [2016] NAHCMD 322 (20

October 2016).

Summary: Contract – Agreement to transfer property (‘the transfer agreement’) –

Specific performance sought – Transfer agreement providing that implementation of
contract suspended until five years have passed when purchaser would be entitled to
transfer property – In terms of earlier sales agreement between one Hendricks
(deceased) and Government of the Republic of Namibia (GRN) as seller (the GRN
agreement) Hendricks could not transfer property until five years have elapsed or before
expiration of the period with consent of Minister – Late Hendricks entering into the
transfer agreement to transfer the property to applicant and agreement providing that
transfer would be effected five years after date of conclusion of the sales agreement
between late Hendricks and GRN (the GRN agreement) – Applicant performed its
obligation under the contract with the late Hendricks – Applicant now suing for specific
performance of agreement – Executor of the estate of Hendricks (first respondent)
resisting specific performance on the basis that the transfer agreement is illegal – First
respondent alleging that transfer agreement contrary to the terms of the GRN
agreement – Court finding that GRN agreement not prohibiting altogether transfer of the
property by Hendricks – Hendricks could so transfer within five years of conclusion of
the GRN agreement so long as Minister’s consent was obtained and he could so
transfer without such consent after the lifting of the five-year moratorium – Transfer
agreement pursued second option – Court finding contract between late Hendricks and
applicant (transfer contract) to be legal and enforceable and further that the applicant

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had performed its obligation under the contract – Consequently court granted order of
specific performance directed at first respondent.

Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016]

NAHCMD 104 (8 April 2016).

SUMMARY: The applicant filed an application for condonation of its failure to attend a
case planning conference, culminating in the court striking out its defence. Held – in
applications for condonation, an applicant had to present a reasonable and acceptable
explanation for its non-compliance with the rules or a court order and to show that it has
a bona fide defence to the claim. Held – the applicant failed to deal at all with the issue
of its defence and that for that reason the application should fail. Held further – that
even if the application for condonation were to succeed, it would be of no assistance to
the applicant because the order striking its defence was left unshaken. Held – the
applicant should have filed an application in terms of rule 103 for rescission of the court
order. Held further – that rule 103 applies not only at the post-trial stage but also in
instances where an order that is alleged to be erroneously sought or granted has been
granted by the court. Held further – that legal practitioners, as officers of the court
should avoid partaking in the emotions of their clients’ causes and should bring an
unbiased and professional judgment to bear on the cases they present to court. Held
further - that counsel should ensure that when they file a certificate in terms of rule 130,
that the contents thereof are true and correct. Legal practitioners warned not to merely
pay lip service to the requirements of the said rule. Application for condonation
dismissed with costs and applicant granted leave to file a fresh application to deal with
the order sought to be set aside.

Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I 2679/2015) [2016]

NAHCMD 311 (7 October 2016)

Summary: Plaintiff sued the defendant for damages in the amount of N$ 68 500 000,
allegedly for unlawfully terminating a lease agreement. The defendant raised an
exception to the plaintiff’s particulars of claim on the basis that a necessary party,
namely the Minister responsible for transport, on whose directive the said lease
agreement with the plaintiff was allegedly terminated, was not cited as a party.
Furthermore, the court had to ascertain whether it was a proper course to raise the
issue of an alleged non-joinder of a party to proceedings by way of an exception.

Held – that the issue of non-joinder of a party can be raised by way of an exception.
Held further that the procedure of an exception applies to circumstances wider than

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what would be regarded as the traditional bases of excepting and this may include
issues of joinder and locus standi in judicio. It was the court’s view that rule does not
provide an exhaustive numerus claussus of issues amenable to being moved by way of
an exception.

Held - that a third party who has, or may have a direct and substantial interest in any
order the court might make in proceedings or if such order may not be sustained or
carried into effect without prejudice to that party, is a necessary party and should be
joined in the proceedings, unless the court is satisfied that such a person has waived
the right to be joined.

Held further – that such a person is entitled to demand joinder as a party as of right and
cannot be required to establish in addition that a joinder is equitable or convenient. In
fact when such person is a necessary party in this sense the court will not deal with the
issues without the joinder being effected and no question of discretion or convenience
arises.

Held – that the Minister as a necessary party to the proceedings had a direct and
substantial interest in the matter and as such it would be wrong, insensitive and unfair to
saddle the excipient with the onerous duty to answer questions that properly belong to
the office of the Minister. For that reason, the court found that it was proper that the
minister be joined as a necessary party to the proceedings. The defendant’s exception
was upheld with costs.

Ramirez v Frans (I 933/2013) [2016] NAHCM 376 (25 November 2016).

SUMMARY : The plaintiff filed a telephonic bid for the property on sale at an auction,
which was accepted and she signed a written agreement of sale in relation thereto and
also paid some money as a deposit. Later, she also secured a loan from a financial
institution, the 5th defendant, for the purchase of the property. The 1 st and 2nd defendants
later cancelled the sale on the grounds that the plaintiff had failed to abide by some of
the conditions of the agreement of sale. As a result, the property was sold to a third
party.

To vindicate her rights to the property in question and which she claims were violated by
the 1st and 2nd defendants’ cancellation of the sale, the plaintiff approached this court
seeking the following relief: an order rectifying clauses 2.1. and 2.4 of the written
agreement; an order directing the 1 st and 2nd defendant to pass transfer of the said
property to the plaintiff, and alternatively that the 3 rd and 4th defendants pay the plaintiff

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the amount of N$ 105 225, which she had paid as a deposit for the purchase of the said
property; and lastly costs of suit.

Held - that when absolution from the instance is sought at the close of plaintiff’s case,
the test to be applied is not whether the evidence led by the plaintiff establishes what
would finally be required to be established, but whether there is evidence upon which a
Court, applying its mind reasonably to such evidence, could or might (not should, nor
ought to) find for the plaintiff.

Held - that although the agreement between the parties was prescriptive in certain
respects, the conduct of the parties particularly that of the 1 st and 2nd defendants who
were the authors suggested that the relevant clauses being relied on by the defendants
could not apply. This was particularly so, for the reason that same were never followed
from inception, and in all fairness, it would be unjust for the defendants to seek to
invoke said clauses merely at their convenience. More importantly, the defendants
continued to deal with the plaintiff as if nothing was amiss.

Held – further that a claimant for rectification of a written agreement must essentially
prove a common intention which the parties intended to express in the written contract,
but which through a mistake they failed to express. Held further that the plaintiff failed to
prove that the parties made a common mistake which warranted rectification as
pleaded.

In conclusion, the court found that the application for absolution from the instance in
respect of the claim for rectification should succeed. The balance of the application in
relation to the other prayers sought was dismissed.

Roads Authority v Kuchling (A 188/2015) [2016] NAHCMD 32 (22 February 2016).

Summary: Building and construction – Construction contract – By agreement

between applicant (employer) and contractor (fourth respondent) any party to the
construction contract may refer dispute to a Dispute Adjudicating Board (DAB)
established, and members thereof appointed, by agreement between the parties to the
contract – Upon receiving dispute referred to it DAB took some interim decision on its
jurisdiction, scope of the dispute and some procedural matters – Court found that the
DAB was entitled to make the interim decision on the preliminary issues – The DAB did
not misconceive its duty under the reference and did not breach any procedural rules
under the agreement or rules of natural justice – Applicant brought application for an
order to refer DAB’s interim decision to arbitration – Rule nisi was granted by agreement

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between the parties – Upon the return day court found that the interim decision has not
brought finality to the dispute under the reference and so the decisional process under
the DAB has not come to an end – Court found further that the applicant has failed to
establish that the DAB has violated procedural rules under the agreement when it
refused to permit its interim decision to be referred to arbitration – The DAB’s refusal
cannot be considered as violating its procedural duty to act fairly and to adopt
procedures suitable to the dispute, avoiding unnecessary delay and expense –
Consequently, court concluded that applicant has not established any contractual right
which the court may protect by stopping the internal adjudicating process and referring
the interim decision to arbitration – Court found that what the applicant now seeks will
produce the very consequence the applicant’s counsel fears, namely, unnecessary
delay and expense – Consequently, rule nisi discharged and application dismissed with
costs.

Road Contractor Company Limited v Jorge (I 3287/2014) [2016] NAHCMD 296 (30
September 2016).

SUMMARY: The plaintiff’s driver and the defendant were involved in a motor vehicle
collision as a result of which the plaintiff allegedly suffered damages in restoring its
vehicle to its pristine condition. The defendant, for his part, also filed a claim in
reconvention in respect of the damages suffered by him for the repair of his vehicle,
damages for pain and suffering, medical costs and loss of earnings by his sister who
looked after him during his impairment suffered as a result of the collision.

Held – that in the light of the evidence led, the plaintiff’s witnesses acquitted themselves
well and their evidence was corroborated in material respects by the objective facts and
certain relics from the collision.

Held – that the defendant’s vehicle veered from its lane of travel and encroached onto
the plaintiff’s lane of travel and hence the collision. It was accordingly held that the
defendant was negligent and failed to drive his vehicle with care and attention in the
circumstances.

Held further – that the defendant failed to prove the plaintiff’s liability for the damage to
his vehicle and the other claims resulting from the collision.

Held further – that the plaintiff had, by the use of expert testimony, proved the damages
suffered as a result of the collision caused by the defendant’s negligence.

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The plaintiff’s claim was thus granted with interest and costs. The defendant’s claim in
reconvention was dismissed.

Selex Sistemi Integrati SpA v Chairperson of the Tender Board of Namibia (A 69-
2009) [2016] NAHCMD 228 (8 August 2016).

Summary: The applicant approached the court on an urgent basis, seeking an order
inter alia, interdicting the first, second and third respondents from performing any
conduct in furtherance of the award of the tender in respect of the supply of equipment
to the third respondent. The court appreciated the urgency of the application as it
concerned the supply and installation of radar equipment before the 2010 Soccer World
Cup which was to be hosted by South Africa. The purpose of such supply and
installation of radar equipment was the improvement of air security within the Namibian
border during the World Cup. The applicant alleged it had the lowest tender and thus
had a legitimate expectation to be awarded the tender. The respondents in response
alleged that the Tender Board was not bound to accept the lowest or any tender. In
support of their position the first respondent referred to Section 15(6) of the Tender
Board Act, 16 of 1996, Regulation 5(2)(a) of the Regulations to the Tender Board Act
and the tender documents.

Held; that in terms of the Section 15(6) of the Tender Board Act, 16 of 1996,
Regulation 5(2)(a) of the Regulations to the Tender Board Act and the tender
documents which the applicant ought to have been aware of, the Tender Board was not
bound to accept the lowest or any tender and the applicant could not have had any
legitimate expectation to be awarded the tender, even if their bid was the lowest.

Held; the rumours of potential bribery were not a consideration in the Tender Board’s
decision. The decision was based on the fact that the successful tenderer had the
highest tender index and was the preferred tenderer in terms of clause 29.3 of the
Instructions to Bidders. The applicant thus, did not have any right to be heard in that
regard.

Held; further that, the applicant failed to establish a prima facie right in respect of the
subject matter in the main action which it sought to protect with the interim relief.

Held; In light of the above, the application for an order for an interim interdict was
refused.

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Serengetti Tourism (Pty) Ltd t/a Etosha Mountain Lodge v Baard (A 276/2014)
[2016] NAHCMD 117 (21 April 2016).

Summary: Sequestration – Provisional order of sequestration – When granted –

Applicant must establish to prima facie degree three matters – That applicant has
established a claim against respondent in amount in excess of N$100, that respondent
has committed act of insolvency or is insolvent and that there is reason to believe that it
will be to advantage of creditors of the respondent if estate of respondent is
sequestrated – Applicant relying on Acting Assistant Deputy Sheriff’s nulla bona return –
Upon service of writ of execution on first respondent and on second respondent through
first respondent, and upon demand that they pay the debt, first respondent answered
‘they’ could not pay debt or part thereof – Court found that respondents’ answer
unequivocably and unambiguously indicated respondents’ failure to satisfy the judgment
– Court found further that there was evidence that debtors were in receipt of income of
which substantial portion are likely to become available to creditors – Court found
further that there is a reasonable prospect that the trustee, by invoking the machinery of
the Insolvency Act 24 of 1936, will reveal or recover assets which will yield a pecuniary
benefit for creditors – Court concluded it was satisfied that applicant has discharged the
onus cast on it to establish the requirements for the grant of provisional sequestration
order – Consequently, court granted a provisional sequestration order.

Shitiveni v National Housing Enterprise Ltd (A 158/2015) [2016] NAHCMD 150 (19
May 2016).

Summary: Application to review decision of administrative body and administrative

official – Court not competent to review and set aside decisions of private individuals –
Court competent to review and set aside decision of administrative bodies and
administrative officials only – In instant case court competent to review decision of first
respondent (an administrative body) and fifth respondent (an administrative official) only
– Court held administrative body or administrative official bears no onus to justify its
action carried out in terms of the applicable statute; onus rests upon the applicant for
review to satisfy court that good grounds exist to review the conduct complained of –
Such grounds should be common law grounds or grounds in terms of art 18 of the
Namibian Constitution – Court held further that the absence of opposition does not by
itself entitle the applicant to judgment, as if by default – Applicant brought an application
to review and set aside decision of second respondent to sell property to third
respondent and decision of third respondent to donate that property to fourth
respondent – Court not competent to review and set aside decisions of these three
respondents on the basis that they are not administrative bodies or administrative

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officials (ie public authorities) – Court competent to review and set aside decision of
first respondent (an administrative body) and fifth respondent (an administrative official)
only – But applicant failed to discharge the onus cast on him to satisfy the court that
good grounds exist to review the conduct complained of – Consequently, court
dismissed application with costs.

Shekunyenge v Principal of St. Joseph’s Roman Catholic High School Dobra (HC-
MD-CIV-MOT-GEN-2016/00269) [2016] NAHCMD 308 (6 October 2016)

Summary: Practice – Applications and motions – Urgent applications – Applicant

must satisfy the requirements of rule 73(4) of the rules of court for the matter to be
heard on urgent basis – In instant case applicant unjustifiably spurned the statutory
domestic remedies that are cheap, expeditious and effective and yet failed to satisfy the
requirements of rule 73(4) – In that event court held applicant should not expect the
court to grant him the indulgence he seeks by hearing the matter as one of urgency –
Applicant had been expelled from school and/or hostel – First respondent undertook to
revert to applicant’s mother on 22 July 2016 – Having not heard from first respondent
the applicant sought legal advice on 25 July 2016 – But application was brought some
30 days after 25 July 2016 – And yet the Education Act 16 of 2001, ss 57 and 58
provides a cheap, expeditious and effective domestic remedies that could be granted by
administrative officials who are not part of the decision takers (first, second and third
respondents) – Having failed to pursue the domestic remedies and having failed to
satisfy the peremptory requirements under rule 73(4)(a) and (b) court was not prepared
to grant the indulgence sought by the applicant by hearing the matter on the basis of
urgency – Consequently, court refused the application with costs on the ground that
applicant failed to satisfy the requirements of 73(4)(a) and (b) of the rules of court.

Skorpion Mining Company (Pty) Ltd v Road Fund Administration (I 2063-2014)

[2016] NAHCMD 201 (12 July 2016)

SUMMARY: The plaintiff sued the defendant for payment of two refunds amounting to
N$ 1 065. 653. These two claims were in relation to road usage in terms of the Road
Fund Administration Act. The defendant rejected the two claims by the plaintiff on the
basis that the first claim was not accompanied by original invoices as required. The
second claim was rejected for late filing. The defendant opposed the relief sought on the
basis that it had followed the prescriptions of the relevant law in so rejecting the two
claims.
Held – that the RFA is an administrative body exercising administrative functions within
the meaning of Art. 18 of the Constitution of Namibia.
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Held – the procedures followed by the defendant in rejecting the claims were not fair
and not reasonable within the meaning of Art. 18 of the Constitution of Namibia. Held
that the regulations and relevant statutory regime had to comply with audi principle,
which was presumed to apply unless Parliament excludes it in clear and unambiguous
terms.
Held further – the RFA had a duty, in dealing with claims for refunds to apply its
regulations and policy in a manner that conduces to the success of the claims than one
geared to deny the claimants.
Held that – the RFA had a duty to put in place mechanisms for appeal against rejection
of refunds and have an independent body to adjudicate in those cases as it had an
interest in the rejection of claims.
Held further – that there was no need to cite the Minister of Finance and other Ministers
for the reason that the relief claimed did not seek to challenge the constitutionality of the
enabling legislation but rather the manner of the implementation thereof.
The plaintiff’s claims were granted as prayed with interest and costs.

South African Poultry Association & 5 Others v The Minister of Trade and
Industry and 3 Others (A 326/2015) [2016] NAHCMD 199 (8 July 2016)

Summary: On 5 April 2013, the Minister of Trade and Industry (I will in this judgment
refer to him as “the Minister”) caused Government Notice No 81 of 2013 titled
“Restrictions on Importation of Poultry Products into Namibia: Import and Export Control
Act, 1994” to be published in Government Gazette No 5167 of 2013. In terms of this
notice, the Minister, invoking s 2 of the Import and Export Control Act, 30 of 1994 (I will,
in this judgment, refer to this piece of legislation as “the Act”) placed quantitative
restrictions upon the import of certain poultry products into Namibia. The notice issued
on 5 April 2013 was amended by a notice published on 29 November 2013.

The applicants, alleging that the process followed by the Government of Namibia when
it imposed the import quota was procedurally unfair and that the Government of
Namibia violated the Protocol to the SADC Agreement and also the SACU Agreement,
launched review proceedings out of this court on 17 April 2014 seeking an order
reviewing and setting aside Government Notice No. 81 of 2013 as amended by
Government Notice No. 321 of 2013.

The Minister and the third respondent oppose the application, in their affidavits filed in
opposition to the relief sought by the applicants, the Minister and the third respondent
raised a few preliminary points.

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Held, that it was common knowledge that no statutory prescriptions existed and
therefore the common law required that review proceedings would be instituted within a
reasonable time: this rule stemmed from the consideration that there must be some
criterion to bring finality to a matter.
Held, further, that the test which the Court had to apply was of a dual nature, namely
whether the proceedings were instituted after expiration of unreasonable time and if so,
whether the unreasonable delay should be condoned.
Held, further, that the Court had a judicial discretion in respect of condoning an
unreasonable delay: it was furthermore a matter of public interest that review
proceedings should be brought within a reasonable time, and the delay over a period of
six months in the circumstances of this matter was unreasonable, especially in the
absence of an explanation.
Held, accordingly, that an unreasonable time had elapsed before the application had
been launched. The point in limine was upheld and application for review dismissed.

Telecom Namibia Limited v Communications Regulatory Authority of Namibia (A

448/2013) [2016] NAHCMD 292 (29 September 2016).

Summary: Constitutional law – Taxation – Regulatory levy – Distinction between a

tax and a regulatory charge – Regulatory levy required to defray first respondent’s
expenses – Court held that while subsec (1) of s 23 authorizes imposition of regulatory
levy, subsec (2)(a) of s 23 authorizes imposition of tax in violation of art 63(2)(b) of the
Namibian Constitution as no relationship is created between the charges contemplated
under that provision and the regulatory scheme, being collecting of levy for defraying
first respondent’s expenses – Court held therefore that the applicant has demonstrated
that the levy has the attributes of a tax and the first respondent has not demonstrated
that the levy is connected to the regulatory scheme – Such relationship will exist when
the revenues are tied to the costs of the regulatory scheme and costs are actual or
properly estimated cost of regulating first respondent (among others) – In instant case
court found that no relationship exist or could exist between the levy contemplated in s
23(2)(a) of Act 8 of 2009 and the regulatory scheme – Section 23(2)(a) authorizes the
making of regulations which provide for the imposition of charges based on the
percentage of income of first respondent (among others) without reference to costs of
regulating the first respondent (among others) – Court concluded that the charges
contemplated in s 23(2)(a) bear no relationship with the regulatory scheme, being the
collection of levies to defray cost of regulating applicant (among others) and costs are
actual or properly estimated cost of regulating first respondent (among others) –
Consequently, court concluded that the applicant has demonstrated that the levy has
the attributes of tax and the first respondent has not demonstrated that a relationship

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exists between the levy and the regulatory scheme – Court held further that where there
is no connection between the regulatory scheme and the charges levied, the court will
scrutinize the facts to ensure that the Constitution is not circumvented by legislative or
administrative action – Court held further that the charges provided in s 23(2)(a) have the
attributes of tax and therefore not Constitution compliant – Accordingly, constitutional
challenge to s 23(2)(a) upheld and the provision declared unconstitutional.

Total Namibia (Pty) Ltd v OBM Engineering & Petroleum Distributors CC (I

3625/2007) [2016] NAHCMD 169 (14 June 2016).

Summary: This is an application brought by the applicant to seek an order from the
Honourable Court that the meeting envisaged in clause 11 of settlement agreement
between the parties dated 7 October 2010 be held for the purposes set out in that
agreement and such to restrain the Respondent from taking any steps to have a warrant
of execution issued based on the Supreme Court Judgment relief sought set out above
– Court held: the Court is satisfied that the Applicant is entitled to bring application on
these papers.

The Council of Itireleng Village Community & Another v Felix Madi & 27 Others (A
201/2015) [2016] NAHCMD 114 (19 April 2016)

Summary: The parties to these proceedings are members of the Tswana traditional
community residing on a piece of land situated at Epukiro. Epukiro is also referred to as
Itireleng in Setswana. Many years ago the Roman Catholic Church bought a farm as it
wanted to take care of the community living in the vicinity of the farm by providing the
community with amenities and facilities such as water etc. Later on the Church and the
community entered into a written lease agreement in terms of which the community was
allowed to formally reside on the farm. Subsequent thereto the lease was converted
into a notarial deed of servitude of use and habitation. During 1983 a constitution was
drafted with the aim to organize and regulate the administration and affairs of the
community. When the Traditional Authorities Act, 2000 came into operation the
community was recognized a traditional authority with the leaders appointed in terms of
the Traditional Authorities Act. It would appear that association established in terms of
the constitution and the traditional authority established in terms of the Traditional
Authorities Act operated in parallel.

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During 2005 allegation of theft were made against the members of the council as a
result of which the members were suspended pending the finalization of investigation.
An interim committee was appointed pending the outcome of the investigation. After the
investigation was completed in 2008, the suspended members of the council were
reinstated however the member of the interim committee did not vacate their positions.
There is conflicting versions by the parties why the interim committee members did not
vacate their positions.

The applicants allege that a sum of N$159 510.90 was unlawfully withdrawn from the
association’s bank account on 25 November 2011 and paid into the bank accounts of
some of the respondents.

The constitution of the association provides that a new council including the headman
who serves as chairperson of the council must be elected after every three years. A
new council was elected on 4 July 2010 and after the expiry of the three years period a
further new council was elected on 11 August 2013.

The applicants are seeking for number of declarators and interdicts all inter-related, the
cumulative effect whereof is that the applicants are still the duly elected members of the
council; that the respondents be interdicted not purport to act either as elected
members and/or as chairperson, and/or headman. They are further inter alia asking for
access to the hall belonging to the community and for payment of association’s money
in the sum of N$159 510.90 allegedly misappropriated by the respondents.

The respondents have raised two points in limen firstly that the applicants claims have
prescribed in that the applicants’ rights to claim whether for the money or declarators
and interdicts arose three years before the present proceedings were served on the
respondents; and secondly that the applicants lack locus standi.

Held that, generally, a debt arises if the applicant/plaintiff wants to enforce a right to
take legal steps in order to undo a certain factual and legal reality created by the actions
of the defendant which created that legal reality to the prejudice of the potential
applicant/plaintiff.

Held that the right to claim for a declarator or interdict is a personal right and fall in the
wide meaning of the word ‘debts’ as envisaged by the Prescription Act and right that
such is susceptible to extinctive prescription.

Held that in this matter the debt arose when the respondents became aware or when
they are reasonably expected to have become aware of their right to apply for the
declarators or interdicts to undo the factual and legal reality created by the actions of
the respondents and that such right is susceptible to prescription.

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Held that the applicants’ right to claim for the payment of the sum of N$159 510.90
arose on 25 November 2011 when the said sum was allegedly misappropriated by
some of the respondents. The proceedings to claim payment of the said amount was
served on 20 February 2015 upon the respondents which is more than three years after
the claim arose and the claim has therefore prescribed;

Held that the applicants’ right to claim for the declarator sought in prayer 1 arose at the
latest 4 July 2010 when the first respondent was elected as chairperson of the
association which is more than three years before the proceedings in this matter were
served on the respondents on 20 February 2015 and the claim has therefore
prescribed;

Held that the applicants’ right to claim for the declarator sought in prayer 2 arose at the
latest on 4 July 2010 when the community elected new council, which is more than
three years when the proceedings in this matter were served on the respondents on 20
February 2015 the right to claim has therefore prescribed.

Held that the applicants’ rights to claim for interdicts sought in prayers 3, 4 and 5 arose
at the latest on 4 July 2010 when the elections of a new council and a chairperson took
place which is more than three years when the proceedings in this matter were served
on the respondents on 20 February 2015, the right to claim has therefore prescribed.

Held that the applicants’ right to claim for a declarator sought in prayer 6 arose on 31
October 2009 when the second applicant received a letter dismissing him as the
chairperson of the council, which is more than three years when the proceedings in this
matter were served on the respondents.

Held that the claims in prayers7, 8 and 10 have not prescribed.

Held that the council does not have the legal standing or right to institute legal
proceedings in its own name. The council represents the association and as an agent it
cannot institute legal proceedings in its own name. The legal proceedings should have
been instituted in the name of the association.

Held that the purported resolution of the council passed on 20 November 2011
comprising of the individuals listed in annexure ABM1 upon which reliance is placed by
the applicants for authority to bring this application is not a valid resolution for the
reason that such individuals were no longer elected members of the council at the time
the purported resolution was adopted; that an elected council was in office at the time
the alleged resolution was adopted. Accordingly the applicants lack the locus standi to
bring this application for want of validity of the said resolution.

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Held that the second applicant can only act as headman appointed in terms of the
Traditional Authorities Act. The Act does not give the power to such a headman to bring
legal proceedings in his own name, acting as a councillor. Furthermore that a traditional
authority does not have the power over the affairs of the association. It follows
therefore that even in that alleged capacity the second applicant lacks locus standi to
bring this application.

Held that the second applicant has failed to make out a case that he has the locus
standi to bring the application in his capacity as member of the association.

The Deputy-Sheriff Windhoek v Nedbank Limited (I 3891/2011) [2016] NAHCMD

342 (4 November 2016).

Summary: This matter is an interpleader raised in the execution of a judgment debt.

The second claimant claims that he is the owner of the goods in dispute against the first
claimant, who attached the disputed goods pursuant to a writ of execution issued
against the movable assets of the judgment debtor.

Second claimant and judgment debtor entered into an ‘Offer to Purchase’, dated the 24
February 2011, in terms of which the second claimant bought the judgement debtor’s
house – the Eros property. The ‘Offer to Purchase’ provides that the transaction
includes movable items listed in Annexure 1. The goods in dispute forms part of the
movable items listed in Annexure 1.

On the same day, 24 February 2011, second claimant and judgment debtor entered into
a lease agreement in terms of which the judgment debtor would lease the Eros property
from the second claimant. On 7 October 2013, Izaan Kotze or nominee, wife of the
judgment debtor, bought the Eros property back from the Lindsay Woodward Trust, the
vehicle through which second claimant held beneficial ownership of the Eros property at
the time.

Held that transactions involving the Eros property were not in fraudem creditoris.

Held that the goods in dispute was delivered by way of constitutum possessorium.

Held, that on a balance of probabilities there was nothing dishonest or unlawful about
the transactions. The transactions were not clouded with an air of unreality – the
transactions were plausible, second claimant coming to the assistance of his friends,
but not without curtailing his risks and gaining some commercial benefits for himself.

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The Master of the High Court of Namibia v Willem George Titus (A 216/2015)
[2016] NAHCMD 384 (08 December 2016).

Summary: The applicant approached this court by way of a notice of motion for an
order restraining the first respondent, the Master of the High Court, from removing him
as an executor in the estate of the late Adriaan Titus, Estate number 410/2005. The
Applicant was duly appointed as executor on 30 July 2013. The fourth respondent, the
applicant’s brother is the only respondent who opposed the application.

Held that where the Master takes a decision to remove the executor there must be a
causal relationship between her findings of fact and her decision whether or not to
remove the executor. It is therefore a judicial act which she performs in connection with
the removal of the executor from office.

Held that the Master conceded that the letter of demand sent to the applicant might
have been delayed and might not have reached the applicant. The applicant, on the
other hand, confirmed that the letter of demand did not reach him. The Master does not
object to relief sought by the applicant. The court found that the applicant did not comply
with the letter of demand because he did not receive the demand.

Held that the court recognizes that the deceased estate cannot be finalized unless the
sale of the farm is concluded. If the heirs do nothing about the offer to purchase the
farm nothing can be expected in finalizing of the estate because no L&D account can be
filled. The Master gave this court no indication of her stance on applicant’s offer, a
crucial administrative duty of the Master.

Held that the applicant cannot be blamed for failing to file an L&D account in the resent
circumstances. Consequently, the finalizing of the estate cannot be blamed solely on
the applicant. The Master and the beneficiaries are equally responsible for the delay
caused in the finalization of the estate. Held further that the court is satisfied that the
applicant did not in terms of section 54(1)(b)(v) make himself liable of not complying
with the lawful request of the Master.

Held that taking into account that this proceedings do not constitute a review application
by the applicant, it is thus not the right forum by the respondent to challenge the
appointment of the applicant as executor. Held further it is not open for the respondent
to challenge the validity of the applicant’s appointment. In any event, the respondent

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did not place irrefutable facts before this court in order for the court to entertain the
respondent’s collateral challenge.

Held that due to the escalation in value of the farm, the heirs benefited from not
accepting the offers made by the applicant. Applicant is the only beneficiary who
expressed an interest in the purchase of the farm.

Held that the real prejudicial conduct in this estate is that of the beneficiaries, who are
non-responsive to the offers made by the applicant to purchase the farm. It is their
conduct that detrimentally contributed to the delay in the finalization of the estate. Held
finally, that the court does not regard the applicant as undesirable to continue to act as
an executor in the deceased estate.

The Njagna Conservancy Committee v The Minister of Lands and Resettlement (A

276-2013) [2016] NAHCMD 250 (18 August 2016).

Summary: On 13 August 2013 the N#jagna Conservancy Committee commenced

proceedings in this Court by way of a notice of motion in terms of which it sought the
following orders: Restraining the fifth to the thirty sixth respondents from occupying
areas situated within the N#jagna Conservancy which they are presently occupying;
Directing the fifth to the thirty sixth respondents to forthwith remove the illegal fences
they have erected within the area of the N#jagna Conservancy; Directing the fifth to the
thirty sixth respondents to give vacant possession of the areas which they occupy to the
applicant; and Directing the second and third respondent to, as contemplated in s 44(3)
& (4) of the Communal Land Reform Act, 2002 cause the removal of the fifth to the thirty
sixth respondents’ fences and livestock from the area of the N#jagna Conservancy.

The majority of the fifth to thirty sixth respondents, opposed the application, in the
opposing affidavits the respondents raised three points in limine, namely that the High
Court does not have the jurisdiction to hear this matter, that the applicant does not have
the necessary locus standi to institute this proceedings and that the application is
defective because the applicant omitted to attach the management and zoning plans to
its application.
Held that where a statute provides for an extra judicial remedy (such as in s 39(1) of the
Communal Land Reform Act, 2002) the Courts will hold that the court’s jurisdiction to
hear a civil dispute is only ousted if this is a necessary implication of the statute
concerned.

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Held further that the implication of the ouster of the Court's jurisdiction must be a
necessary one before it will be held to exist, for there is always a strong presumption
against a statute being construed so as to oust the jurisdiction of the Court.
Held further that the N#jagna Conservancy Committee possess the characteristics of a
corporation or a universitas and has therefore proven that it has the power to bring this
application to court and sue in its own name.
Held furthermore that s 43(2) does not make it absolutely clear that it was aimed at
changing the common law rule which confers upon a person who has a direct and
substantial interest in a matter or who is aggrieved by the actions of another to
approach this court for the court to determine his or her civil rights.
Held furthermore that all the respondents mentioned in paragraph 1 of the order, except
the 29th respondent, have failed to rebut the allegations made by the applicant that they
(those mentioned respondents) unlawfully occupied the areas within the conservancy.

The Prosecutor-General // New Africa Dimensions CC And Two others (POCA

10/2012) [2016] NAHCMD 123 (20 April 2016)

Summary: The Prosecutor General brought an urgent ex parte application in the High
Court, in terms of which she sought an order under s 59 of POCA, 2004 against the
respondents, prohibiting them from dealing with certain property specified in the
application. The property in question consisted of moveable assets belonging to the
respondents, and certain close corporations controlled by the second and third
respondents.

The Prosecutor General and the investigating officer deposed to the founding affidavits
in support of the application, in which they asserted that the second and third
respondents and certain staff members of the Ministry of Water Agriculture and Forestry
committed some fraudulent activities, contravened the Tender Board Act, 1996 and the
State Finance Act, 1991 to induce the conclusion of a procurement agreement between
the first respondent and the Ministry, they furthermore sought to demonstrate that the
proceeds generated from that agreement fell within the definition of 'proceeds of
unlawful activity.'

On 29 June 2012 an order (the 'preservation of property order') was granted as prayed.
During November 2012 the Prosecutor General applied for a forfeiture order under s 61
of the Prevention of Organised Crime Act, 2004. The respondents opposed the
application for the forfeiture order and denied that the preserved property is the
proceeds of unlawful activities and further denied that there are reasonable grounds for
the applicant’s belief to that effect. In their opposition of the forfeiture application the

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respondents raised two preliminary points. The first preliminary point raised by the
respondents is that the applicant’s founding papers are allegedly irregular in that the
applicant filed more than one founding affidavit. The second preliminary point is the
alleged non joinder of certain parties.

Held that the first point raised in limine is baseless because, on 28 May 2014, the court
made an order granting the applicant leave to amplify her founding affidavit and that the
applicant could only amplify the founding affidavit by filling a supplementary affidavit.
The second point in limine (the non-joinder point) misses one fundamental aspect and it
is the fact that proceedings under chapter 6 of POCA, 2004 are not concerned with the
wrong doers themselves but focuses on the property that has been used to commit an
offence or which constitutes the proceeds of crime.

Held, further, that, the onus of proving that the ‘preserved property’ is the proceeds of
unlawful activities rests on the applicant. In order to establish that property constituted
the 'proceeds of unlawful activity', the applicant had to establish a connection or link
between the alleged unlawful activity and the property concerned. In terms of the
definition there had to be evidence that the property was derived, received or retained,
directly or indirectly, in connection with or as a result of the unlawful activity.

Held furthermore that the respondents in the answering/opposing affidavit (deposed to

by Shilongo) do not in any proper sense put in issue most of the pertinent facts set out
by the applicant. Instead, the answering/opposing affidavit is replete with repeated
allegations of dishonesty, malice and other serious unlawful conduct including
foolishness, levelled against the applicant. Those allegations (i.e. that the applicant
acted in contravention Article 12 of the Constitution, dishonestly, untruthfully and
maliciously) in the answering affidavit as conclusions of law, are at best for the
respondents inferences, "secondary facts", with the primary facts on which they depend
omitted.

Held furthermore that the presumption of regularity simply presumes that formal
procedural steps that are required to take a valid administrative act or decision have
been complied with. The presumption is rebuttable and can be rebutted in any
proceedings which are pending before a court and not only by review proceedings.

Held furthermore that Mr. Freyer misrepresented to the Ministry that the regions
required engines and equipment related to water supply when those engines and the
equipment were in fact not needed or required or ordered by the regional officers. The
misrepresentations by Mr. Freyer caused prejudice to the Ministry in that the Ministry
paid more than N$ 8 000 per engine for those engines, paid for transport in excess of
N$ 693 626 in respect of the delivery of the engines and equipment related to water
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supply and also incurred expenses of purchasing the engines and the equipment
related to the supply of water when there was no need to incur those expenses. This is
fraud. The court was also satisfied that one of the reasonable inferences that can be
drawn from the Shilongo and Shikage’s misrepresentation is that the misrepresentations
were calculated to induce the Ministry to effect payment to the first respondent to enable
the first respondent to purchase the engines and the equipment In pursuance to the
misrepresentations the Ministry to its prejudice effected payment. This is fraud.

Held furthermore that the evidence adduced by the applicant proved on a balance of
probabilities that the fraud, corruption, the contravention of the Tender Board Act, 1996
and the contravention of the State Finance Act, 1996 induced the conclusion of the
agreements between the first respondent and the Ministry and as consequence the
preserved property is the proceeds of unlawful activities and should therefore be
forfeited to the State.

Held furthermore that the unsupported allegations of abuse of process and of engaging
in vexatious activities directed at a repository of public functions in exercising public
powers itself constitute an abuse and warrant censure. They are to be discouraged by
appropriate costs orders when this form of abuse occurs.

Thomas Wyss vs Leevi Hungamo & 6 Others (A 189/2015) [2016] NAHCMD 264 (13
September 2016).

Summary: Applicant’s father, a foreign national, was during his life time a member of a
Close Corporation which owns agricultural land. He owned 49% member’s interest.
The members had concluded an association agreement which stipulates how their
members’ interest would be disposed e.g. through testamentary disposition. The
association agreement also granted the applicant’s father dwelling rights and hunting
rights on the farm. No prior ministerial consent had been obtained by the parties
pursuance to the provisions of section 58 Agricultural (Commercial) Land Reform Act,
1995, before the conclusion of the of the agreement. The deceased died intestate
whereupon the applicant became the sole heir ab intestatio to his father estate
consisting of, inter alia, the 49% deceased member’s interests. The remaining
members refused to agree to the transfer of the deceased member’s interest to the
applicant pointing out that in terms of the association agreement the deceased ought to
have made provision for the disposition of his member’s interests through testamentary
disposition but failed to do so. Furthermore the respondents, as the remaining
members, relied on the provisions of section 35 of the Close Corporation Act, 1988
which vests them with a pre-emptive right, for their refusal to grant consent the applicant

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as executor of his father’s estate to have the deceased member’s interest transferred to
the applicant in his capacity as heir. Applicant then brought an application seeking an
order that as an heir ab intestatio he is entitled to the full and unfettered ownership of
the 49% member’s interest held by his late father in the Close Corporation; an order
directing the executor to transfer the deceased member’s interest to the applicant in his
capacity as heir; and an order declaring that certain portions of section 35 of the Close
Corporations Act are unconstitutional as they infringe upon the executor’s right to
dispose of the deceased estate’s property as well as the heirs’ right to receive his
inheritance.

Held that - a deceased estate is not a legal persona and therefore has no legal rights.

Held further that - the deceased’s estate, between the death of the deceased and the
appointment of the executor, enjoys statutory protection through the provisions of the
Administration of Estates Act of 1965 and by extension constitutional protection.

Held further that - the association agreement which gave ‘a dwelling right’ which was in
essence an ‘a right of occupation’, to the deceased—who was a foreign national, to
occupy an agricultural land for a period in excess of the period prescribed by the Land
Reform Act—without prior Ministerial consent was in contravention of the provisions of
Section 58 (1) (b) and for that reason the association agreement was illegal and void ab
initio.

Held further that - the applicant was entitled to inherit all of the deceased’s member’s
interest which had vested upon him at the death of his father on 30 January 2014 which
was prior to the repeal of Section 62 of the Land Reform Act.

Held further that - during his lifetime the deceased’s right to own and dispose his
property was not interfered with or limited by the provisions of Section 35 of the Close
Corporation Act, 1988; that the deceased had the right to make other arrangements as
stipulated both in the association agreements and in Section 35: and that on the facts
before court the applicant had failed to prove in which manner Section 35 violated the
deceased’s right during his lifetime to dispose of his property.
Held further that - given the nature of the office of an executor which has been
described as sui generis, an executor does not possess an unfettered and exclusive
property right or beneficiary right in respect of the property of the estate, envisaged in
Article 16(1).
Held further that - on the facts before court, the applicant failed to prove in what manner
the provisions of section 35 interfered with, violated and limited the executor’s
constitutional right to own, possess and dispose of estate property.

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Held further that - upon the death of the deceased, the applicant, as intestate heir, was
not vested with the dominium of the member’s interest held by the deceased in the
Close Corporation, but merely acquired a personal right against the executor for the
transfer of such right or equivalent of the value of such right. The applicant’s dominium
is his personal right against the executor, represented by the residue value of the
estate. The applicant as an intestate heir has no constitutional right to inherit a specific
asset, such as the deceased member’s interest.
Held further that - the fact that the differentiation between the testamentary heir and
intestate heir is not discriminatory as it serve a rational purpose which is connected to a
legitimate object. The rational purpose found its expression or recognition in the fact
that the Legislature has made two statutes, the Wills Act 1953, and the Intestate
Succession Act, 1934 each dealing separately with each institution of succession.

Tjihero v Kauari (I 2845-2012) [2016] NAHCMD 187 (29 June 2016).

Summary: Evidence – Cross-examination – Court held that written witness statement

not admitted in terms of the rules of court does not constitute witness’s in-chief evidence
in terms of the rules of court – Such witness statement not part of the record – Court
held further that procedure for admitting witness statement in terms of the rules of court,
rule 93(4), conduces to aspects of the rule of law as buttressed by art 12 of the
Namibian Constitution – Consequently, to allow cross-examiner to cross-examine
witness on an unadmitted written witness statement will be an affront to the rule of law
and the Namibian Constitution – Cross-examiner cannot, and should not, therefore be
allowed to, cross-examine a witness on such unadmitted written witness statement
without none – Procedure for making such written statement part of the record is to
apply it have admitted as an exhibit through the witness – Defence witness is served
witness statement but before taking to the witness box replaced the first witness
statement with a second witness statement – Second witness statement was admitted
as constituting witness’s in-chief evidence in terms of the rules of court – Plaintiff
counsel dashed into cross-examining the defence witness on the first witness statement
which was not part of the record – Court ruled that cross-examiner could not cross-
examine the witness on the inadmissible written witness statement which did not
constitute the witness’s evidence in-chief in terms of the rules – Procedure for making
such previous witness statement part of the record is to apply to have it admitted as an
exhibit through the witness.

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Taljaard v Onguma Game Ranch (PTY) LTD (A 89/2015) [2016] NAHCMD 333 (28
October 2016)

Summary: The applicant, an owner of a commercial agricultural land concluded a

lease agreement with the respondent, a Namibian registered company for the lease of a
commercial farm for a period of ten years and 11 months with an option to renew the
lease agreement for another period of ten years and 11 months. The farm is an
agricultural commercial land within the meaning of the Act. The respondent took
occupation of the farm. Before the expiry of the initial lease period, the respondent
exercised its option to renew the lease agreement. The applicant refused to accept the
renewal contending that the lease agreement was in contravention of the section 58 of
the Act, furthermore that in the event of a renewal, such renewal would be in
contravention of the section 58 because the respondent is a foreign national in that the
majority of the shareholders of the respondent are not Namibian citizens. Accordingly
the applicant applied for an eviction order from the farm against the respondent on the
ground that the lease agreement under which the respondent took occupation has
expired and has not been renewed and by further placing reliance on the provisions of
section 58 of the Act.

Court held: The applicant bears the onus to prove that the respondent is a foreign
national within the meaning of the Act;

Court held: The applicant has failed to prove that the respondent is or was at any time
during the currency of the lease agreement a foreign national; and that section 58 (1)
(b) (ii) of the Act is applicable to the lease agreement entered into between the parties.
Accordingly the applicant has failed to prove that the lease agreement is invalid.

Court held: The option to renew was validly exercised and the lease agreement was
validly renewed and is of force and effect.

Trustco Group International (Pty) Ltd v Atlanta Cinema Capital CC & Others (I
370/2012) [2016] NAHCMD 297. (30 September 2016).

SUMMARY: The defendants filed an application in which they sought to amend their
pleadings. The Plaintiff opposed the proposed amendments on the basis that they are
vexatious, prejudicial and amount to an abuse of the court processes. In that regard, it
was contended that the said amendment came after litis contestatio and more
importantly, more that fifteen years after the commencement of the litigation inter
partes. The Plaintiffs further argued that if the amendment sought is sanctioned, the
amended plea will be excipiable because the administrative decision sought to be
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impugned stands as it has not been challenged at all, let alone successfully by the
defendants.

Held that - the court may, during the hearing, at any stage, before judgment, grant leave
to amend a pleading or document on such terms as to costs or otherwise as the court
considers suitable or proper.’

Held further that - the court is granted a discretion which it has to exercise judiciously
and in full and close consideration of the attendant circumstances of the matter.

Held further that- in making the judgment call in that regard, it is for the court to consider
the interests of justice in the context of the entire matter and particularly to consider
whether there is any prejudice not curable by an appropriate order as to costs that
results to the other party as a result of granting the amendment proposed.

Held that - the party opposing the amendment must not only indicate that the proposed
amendment will be excipiable but further state in what manner to enable the court, if
convinced thereby, to deal with the application for amendment as though it was an
exception.

Held further that - judicial case management does not invest the court with power to
micro-manage issues of preparation and of evidence gathering, including the identity of
the witnesses to be called by the parties.

Held that - the issue of joinder, standing alone, does not, in terms of any authority cited,
nor one I am aware of, constitute sufficient basis for refusing an application for
amendment, which it must be stated, is a separate species from one of joinder.

In conclusion the court allowed the applicants the amendment sought and ordered them
to bear the costs necessitated by the amendment, including one of instructing and
instructed counsel.

Tungeni Africa Investments (Pty) Ltd v Namibia Water Ski Club & Others (I
2735/2015) [2016] NAHCMD 232 (12 August 2016).

SUMMARY: The plaintiff sued the defendants for ejectment from property it is leasing
from Namibia Wildlife Resorts. It alleges that the defendants have no legal basis to
occupy the property and as such it seeks an ejectment order as well as costs of suit.
The defendants contend that the plaintiff has no right to eject them from the property as

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the plaintiff is a sub- lessee in respect of property belonging to the Government of the
Republic of Namibia (GRN), with whom the defendants had a valid lease agreement
which ended due to effluxion of time. The defendants contend further that they made
improvements on the property and for which they should be compensated thus
constituting a lien over the property in question. These were the bases on which the
summary judgment was opposed.

Held that - before a Court will exercise its discretion in favour of a defendant in
summary judgment proceedings, there must be some factual basis, or belief, set out in
the affidavit resisting summary judgment, which will enable the court to say that there
was some reasonable possibility, that something will emerge at the trial, and that the
defendant would still be able at the trial to establish its defences.

Held further that – the allegation that the defendants claim to have a lease agreement
with the GRN, though disputed, may, if carefully considered, raise what may be
regarded a triable issue. It was therefore not necessary for this court to deal with the
defendants’ main defences raised in the affidavit resisting summary judgment.

Held further that – there is a related claim by the defendants against the GRN, which
would render it to some extent unfair for the court in the current proceedings, to give in
to the plaintiff’s entreaties and to grant summary judgment. The court held that this was
so for the reason that, if the defendant’s claim against the GRN is proved at trial, it puts
them in a stronger position than the plaintiff regarding their occupation of the property.
On the other hand, if summary judgment is granted as prayed, the defendants would be
denied the opportunity and right to defend the counterclaim for ejectment launched
against them by the GRN as they would already have been evicted in terms of an order
of court in the current proceedings.

On this basis, the court concluded that it was proper for it to grant the defendants leave
to defend and to have both case at hand and the related matter proceed in tandem as
they involve the same parties and essentially raise, at least in part, the substantially the
same issues.

Testimony to this was that both matters had already been consolidated by an order of
court.

The application for summary judgment was thus refused and costs thereof were ordered
to be dealt with at the main trial.

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Uvanga v Steenkamp & Others (I 1968/2014) [2016] NAHCMD 378 (2 December
2016).

SUMMARY: The plaintiff, in an action instituted against the plaintiff and the third parties,
successfully deflected a special plea raised by the defendant alleging that he did not
have the locus standi in judicio to institute the proceedings. The special plea was
dismissed with costs. When the costs came up for taxation, the Taxing Officer was of
the persuasion that the proceedings determining the special plea were interlocutory in
nature and for that reason, the ceiling of costs applicable to interlocutory matters
applied, as contained in rule 32 (11).

Held – a special plea may be either dilatory or peremptory and that in the instant case,
the said plea was peremptory as it sought to quash the proceedings altogether. Held
further that for that reason the special plea is not an interlocutory to which rule 32 (11)
applied.

Held further – that in the instant case, evidence was actually led by the plaintiff in order
to deflect the special plea and that it would be unjust for a plaintiff, who is compelled by
a special plea to lead evidence, to be only confined to costs available to interlocutory
proceedings.

Held – the Taxing Officer should avoid getting caught in the dust of the conflict by
making cause with one party or justifying his or her decision by filing heads or
documents which are argumentative in nature. He or she must formulate the stated
case, where required and then file a report and leave the matter to the court to decide
whether he or she was correct in the determination. Held further – that a Taxing Officer
is similarly placed with a Magistrate whose decision is being taken on review. They
should not allow that process to degenerate and acquire an adversarial posture.

Held further – that if the Taxing Officer assumes an adversarial position, that may serve
and justify the court, in appropriate cases, to mulct them in costs, which is otherwise an
aberration. The decision of the Taxing Officer was thus reviewed and set aside. No
order was made as to costs.

Vita Royal House v The Minister of Land Reform & 10 Others (A 109/2015) [2016]
NAHCMD 339 (7 November 2016).

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Summary: The applicant brought this application in which it seeks orders to evict the
respondents form a communal area under its jurisdiction. According to the applicant,
between the years 2002 and 2015 the respondents moved and settled permanently into
the communal area without permission having been granted to them by the applicant in
terms of section 29 (4) of the Communal Land Reform Act, 2002. Initially some of the
respondents were granted temporary grazing rights during the drought period. After the
expiry of the temporary grazing right, they were requested to leave the area but failed
and/or refused to vacate the area. Other respondents simply moved into the area and
settled without the necessary permission from the applicant. The respondents opposed
the application on varied grounds. Some of the respondents contend that they were
granted permission by the Chief, others by the traditional councillors and others by the
members of the community and others even by the applicant or by a Traditional
Authority adjacent to the applicant’s area.

Court held: The respondents did not have valid permissions as envisaged by section
29(4) of Communal Land Reform Act, 2002, which entitled them to permanently reside
in the communal area under the jurisdiction of the applicants;

Court held: Accordingly that the respondents were in unlawful occupation of the area
under the applicant’s jurisdiction; and

Court held: That the applicant had made out a case against the respondent and
therefore was entitled to eviction orders against the respondents.

Van Niekerk v Auto Tech Truck & Coach CC & Another (A19/2015) [2016]
NAHCNLD 31 (12 May 2016).

Summary: The applicant entered into an agreement with first respondent to repair
two trailers and a truck. A dispute between the parties arose when the applicant
inspected his vehicles. The applicant paid the 1 st respondent by cheque with the words
“under protest” written on the reverse side of the cheque. The cheque was promptly
cancelled by 2nd respondent. The respondent insisted on full payment for not only the
principal debt but also the ancillary debt. After consultation with his legal practitioners
the applicant paid an amount which still did not adequately cover the principal and
ancillary debt. The 1st respondent insisted that payment on the outstanding balance and
applicant approached the court on an urgent basis for the restoration of his property.
The respondent raised two points in limine: (1) that the matter was not urgent; and (2)
that there was a dispute of fact which could not be resolved on the papers before court.
The court dismissed the points in limine and ordered that the matter be referred for oral
evidence. The court held that the amount paid was sufficient security for the release of

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two of the vehicles and dismissed the application in respect of the restoration of the
truck. The court made no order as to costs.

Van Schalkwyk v Dias (I 1048-2011) [2016] NAHCMD 226 (29 July 2016)

Summary: Plaintiff instituted action against the defendants in a claim of specific

performance, that is, transfer and registration of certain unmovable property which is
presently registered in the name of the second defendant. Plaintiff alleged in his
particulars of claim that the said immovable property had been sold to him by the first
defendant, and that he had paid the purchase price in full or tenders whatever amount
of the purchase price remains outstanding against transfer of the said property to
plaintiff. Plaintiff alleges further that subsequent to the purchase and sale agreement
having been concluded between him and the first defendant, the first defendant entered
into a further purchase and sale agreement with the second defendant in respect of the
same immovable property and then gave transfer to the second defendant. Plaintiff
then alleges that the defendants entered into that agreement, in order to frustrate the
transfer of the property to the plaintiff, that is, they unlawfully colluded and acted
fraudulently. Plaintiff thus prays for retransfer of the property from the second
defendant to first defendant and a further transfer thereof to plaintiff, subject to refund
by the first defendant to the second defendant of the purchase price, and costs
associated with transfer and retransfer.

Without setting out material facts on the basis of which he claims, plaintiff, included a
further prayer for refund of all the amounts he has paid or which were paid on his behalf
by a third party towards the reduction of the purchase price.

At the closure of the plaintiff’s case, both defendants have applied for absolution from
the instance, with costs.

Held that plaintiff was required, but failed to provide some evidence on the basis of
which a court acting reasonably might or could find that he has elected to waive the
suspensive condition in the deed of sale requiring that a loan, to be secured by a
mortgage bond to be registered against the property be obtained and that he has
communicated that election prior to the expiry of the date on which the contract would
lapse.

Held further that plaintiff has failed to provide evidence on the basis of which a
reasonable court looking at such evidence might find that second defendant had
knowledge or ought to have had knowledge of the purchase and sale agreement

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between plaintiff and the first defendant, on or prior to the date on which he took
transfer of the property.

Held further that plaintiff has failed to alleged material facts on which his cause of action
for the relief claimed for the refund of the monies paid to the first defendant toward the
reduction of the purchase price is founded and further failed to demonstrate that such
payments where indeed made in terms of the specific deed of sale.

Held accordingly that both defendants are absolved from the instance with costs.

Van Straten NO v Desert Fruit (Pty) Ltd (A 38-2014 and A 91-2015) [2016] NAHCMD
224 (28 July 2016).

Summary: Applications and motions – Dispute of fact – Court finding that genuine
and material dispute of fact exist on significant aspects of case – The dispute revolves
around the existence or otherwise of a so-called ‘oral or tacit lease agreement’ which is
relevant to three applications instituted by first and second respondents – Synthetic
approach proposed by Christie, The Law of Contract in South Africa, 5 th ed, p 82 to
establish proof of tacit agreement cannot be applied in motion proceedings – Court
found there are good reasons why proceedings for rectification of the ‘oral or tacit lease
agreement should be by action and not by application – Court found that the affidavits
contain all necessary averments and define the issues sufficiently clearly –
Consequently, pointless to order filing of pleadings – To save time and expense
advisable to order affidavits to stand as pleadings which have closed.

Van Straten v Bekker (I 6056-2014) [2016] NAHCMD 243 (25 August 2016).

SUMMARY: The plaintiff a married woman sued the defendant for loss of consortium
and contumelia. She alleged that after the husband met the defendant, his attitude and
affection towards her changed. He started staying away from home and refused to
afford her marital privileges. Furthermore, the defendant on occasion passed snide
remarks at her. On one occasion she fell gravely ill but her husband neglected to offer
her support. He subsequently asked her to sign a divorce settlement, as he could no
longer continue living with her as husband and wife, as the substratum of the marriage
on his part, had dissipated.
Held that- the action of contumelia and loss of consortium had lost their lustre, as they
are no longer in consonance with the constitutional values of privacy, dignity and
equality.

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Held further that- there were other means available to society for protecting the family
other than through the claim based on adultery.

Held further that – Society no longer views the act of adultery with the same degree of
disapprobation, as has always been the case.

Held further that – that the role of the guilty spouse in the disintegration of the marriage
is often underplayed, giving prominence to the role of the third party, when the guilty
spouse may have been the one who initiated the extra-marital affair.

Van Zyl Du Plessis v Tjirimuje (I 997/2014) [2016] NAHCMD 310 (7 October 2016).

SUMMARY: The plaintiff sued the defendant for an amount of N$ 89 790 in respect of
mechanical services rendered by the plaintiff, allegedly for repairing the defendant’s
truck. The defendant ,on the other hand averred that the parties entered into an oral
agreement in terms of which he let his truck and trailer to the plaintiff at the rate of N$20
000 per month. He further averred that the plaintiff was to pay for the costs of
roadworthiness of both the truck and the trailer and that the defendant would
compensate the plaintiff for the costs of the roadworthiness by granting the plaintiff a
grace period of six months’ use of the truck and trailer without payment of the N$20 000
mentioned above.
The plaintiff denied the existence of the oral agreement in question and accordingly
denied liability of the defendant’s counterclaims.

Held – that where facts are in dispute, it is necessary to make credibility findings and to
come to a conclusion on the inherent probabilities of a particular version. Plaintiff have
failed on a balance of probability, to show that the agreement between the parties was
for them to service the defendant’s vehicles for a price.

Held further – that a person who relies on a contract of hiring and letting, must show
that the agreement contains the following elements, (a) an undertaking to deliver the
thing; (b) an agreement for the lessee to temporarily have use and enjoyment of the
thing; and (c) an undertaking by the lessee to pay rent. has made out a case for the
agreement and the damages he suffered as a result of the plaintiff keeping the vehicles
and not remitting any payments to him.
The court accordingly dismissed the plaintiff’s claim as well as the defendant’s second
claim in respect of the amount purportedly spend on repairing the truck and the trailer.

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The defendant’s claim in respect of claim 1 was upheld and the plaintiff was ordered to
pay the defendant an amount of N$ 260 000 with interest on the aforesaid amount at
the rate of 20% per annum as well as costs of the suit.

Virtual Technology Services (Pty) Ltd v The Chairperson of the Namibia Student
Financial Association Fund Board & Another (A 56/2016) [2016] NAHCMD 72 (11
March 2016).

Summary: The applicant was one the tenderers who submitted tenders for the
provision services for payment of money by the Fund, into the bank accounts of the
students receiving financial assistance from the Fund. The applicant is aggrieved that
the contract was not awarded to it and alleged that this was due to flawed process
adopted by the first responded which was contrary to the original tender terms.
Applicant launched the application seeking for an interim order against the respondent
interdicting the respondents from further implementing the contract pending the
outcome of the review proceeding simultaneously launched with the application for
interdict. The application was opposed by the first respondent who raised three points
in limine. The first point in limine was that there has been a mis-joinder in that first
respondent, the chairperson of the board of the Fund should not have been cited as a
party to the proceeding, for the reason that the Fund itself, as a juristic person, should
have been sued. Against this point; the applicant contended that it was permissible to
sue the chairperson by virtual of the provision of Rule 76 (1). The second point in limine
was similarly mis-joinder in that it was not the second respondent to whom the contract
was awarded by the Fund, but that the contract was awarded to a different company
within the second respondent’s group of companies. This point was conceded by the
applicant. The third point in limine was of non-joinder is that the company which was
awarded the contract has not be joined as a party to the proceedings. This point was
equally conceded by the applicant.

Held that where a party or entity to the proceedings whose decision is sought to be
reviewed and set aside is a juristic person then in that event such party or entity must
be cited as a party to the proceedings and the provisions of Rule 76(1) are not
applicable.

Held accordingly that a wrong person, being the chairperson of the board of the Fund
instead of the Fund itself, which is a juristic person, has been brought before court.

Viviers v Ireland & Another (I 3757/2012) [2014] NAHCMD 148 (18 May 2016).

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Summary: The plaintiff and defendants entered into written agreement, by which the
former undertook to sell to the latter an immovable property, situated at 16 Moses
Tjitendero Street, Olympia, Windhoek. The written agreement concluded by the parties
contained suspensive conditions. The plaintiff claimed that the suspension conditions
contained in the agreement were not fulfilled within a reasonable time and in
consequence, the agreement lapsed. Plaintiff consequently sought an order to eject the
defendants from the property. In their defense, the defendants claimed that they have
fulfilled the suspensive conditions within the time allowed by the plaintiff and a valid
agreement is therefore in place. The defendants on the other sought the transfer of the
immovable property into their names.

Held, that in order to eject a defendant from immovable property plaintiff needed to
allege only that he was the owner thereof and that the defendant was in occupation of
the property: where defendant admitted occupation but contended that it was lawful the
onus would rest on defendant to prove that fact.

Held further that the defendants took occupation of the property in terms of an
agreement for the sale and purchase of the property and that the the suspensive
conditions contained in the agreement for sale and purchase of the property were
fulfilled within the time agreed to by the parties.

Held furthermore that the plaintiff is under an obligation to pass transfer of the property
into the names of the defendants against payment of the balance of the purchase price.

Wildlife Ranching Namibia v Minister of Environment and Tourism (A 86/2016)

[2016] NAHCMD 110 (13 April 2016)

Summary: Nature conservation – Sale of game or game meat or the skins of any
game which is obviously under the age of one year – Prohibition of – But exemption to
prohibition of such sale in terms of s 47(1)(a) and (b) of the Nature Conservation
Ordinance 4 of 1975 – Exemption provided by proviso in s 47(1) – Proviso establishes
dualism between ‘a farm’ and ‘a piece of land’ – Therefore requirements which the
owner or lessee of ‘a farm’ must satisfy in order to qualify for the exemption are totally
different from requirements the owner or lessee of ‘a piece of land’ must satisfy in order
to qualify for the exemption – An interpretation which subjects the owner of ‘a farm’ to
the requirements prescribed for ‘a piece of land’ is wrong – It does great violence to the
English language and the rule of syntax – More important; it sets at naught the intention
of the Legislature – Court found therefore that the last minute limitation placed on the
permits issued on 29 March 2016, and without giving the third applicants audi was ultra
vires and unlawful – First and/or second respondents issued on Tuesday, 22 March

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2016 permits to third applicant to enable third applicant to conduct auction of game on
its ‘farm’ the following Saturday, 2 April 2016 – First or/and second respondents
revoked the permits and replaced them with new ones on 29 March without giving third
applicant audi which third applicant was entitled to – Court found that the limitation
placed on the 29 March permits was ultra vires and unlawful apart from those
respondents acting unfairly and unjustly when they denied the third applicant audi –
Consequently, court held that third applicant was entitled to launch the urgent
application and the court was justified in granting the relief sought by third applicant.

Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia (A 224/2015) [2016] NAHCMD
97 (7 April 2016).

Summary: Spoliation – Mandament van spolie – Applicant must prove he or she had
peaceful and undisturbed possession of the thing at time of illicit deprivation of such
possession – Applicant as lessee took possession of property and occupied it – In the
course of events while applicant was still in possession applicant and respondent
entered into a ‘Deed of Purchase’ for sale of property to applicant – As at 26 June 2015
the applicant had failed to satisfy a material suspensive condition but continued to
occupy property – On 5 August 2015 a deputy sheriff not armed with an order of the
court chased applicant’s employees and security guards from property and removed all
locks and replaced them with new ones – Court found that deputy sheriff acted as agent
of respondent and acted upon the behest and instructions of the respondent – Court
concluded that respondent did illicitly deprive the applicant of its peaceful and
undisturbed possession of the property – Consequently, court concluded that applicant
had established spoliation of the property by the respondent – Accordingly, application
succeeded – Spoliation order granted against the respondent.

ZZZ Trading Enterprises CC v Yanica Constructions CC (A 115/2016) [2016]

NAHCMD 152 (27 May 2016).

Summary: Applications and motions – Rule nisi – Revival of in terms of rule 86 of the
rules of court – Applicant must satisfy the court that good grounds (that is, cogent and
convincing grounds) exist to revive a discharged rule nisi – In instant case court found
that instructed counsel who had moved application for rule nisi was more than aware of
the return day and yet did not appear – And if such instructed counsel was not available
any legal practitioner from the law firm which instructed the instructed counsel, admitted
and enrolled and authorized to appear in the court could have appeared to do the case
himself or herself and, if he or she could not, give reasons for his or her inability to do
the case, or could have on good cause shown asked for extension of the rule nisi to

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allow the instructed counsel to appear on the extended return day – Applicants’ legal
practitioners did neither – Court found that applicants have failed to satisfy court that
good grounds exist to revive the discharged rule nisi – Consequently application
dismissed with costs.

Zamnam Exclusive Furniture CC v Josef Stephanus Lewis and Cornelia Catharina

The Trustees for the time being of The Lewies Family Trust (I 4268/2010) [2016]
NAHCMD 298 (30 September 2016).

SUMMARY: The parties sought directions from the court on the content of the proposed
pre-trial order. The applicant argued that ‘all issues of fact’ as referred to in rule 26(6) of
the rules of court should not be confined to the issues outlined and contained in the
pleadings, but should include issues that are relevant even if not contained in the
pleadings. The respondent on the other hand argued that issues to be included in the
proposed pre-trial should be limited to those pleaded, and nothing more.

Held that – pleadings are designed to mark the exact boundaries of the issues that the
court will be required to determine at trial. Therefore parties are required to plead their
respective cases fully and concisely so as to leave the opponent and the court in no
doubt as to the exact nature and scope of the case and the evidence that may be
required to establish the claim or the defence as the case may be.

Held further that – the elasticity introduced by the inclusion of the so-called ‘relevant’
matters which do not form part of the pleadings and more critically, which do not
constitute part of what are the ‘real issues’ between the parties would be inimical to the
just, speedy and efficient resolution of disputes as required by rule 1(3) of the rules of
this court.

In conclusion the court held that parties may not include issues for pre-trial under rule
26 if those are not included in the pleadings. The applicant was ordered to pay the costs
of the application.

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