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IN THE SUPREME COURT OF NAMIBIA CASE NO: SA|27|2023

In the matter between:

PROPERTY ESTATES PROPRIETARY LIMITED APPELLANT

and

JOHN SMITH RESPONDENT

NOTICE OF APPEAL

____________________________________________________________________

BE PLEASE TO TAKE NOTICE that the Appellant hereby notes an appeal against the
judgement handed down on 06 February 2023 in the High Court CASE NUMBER: HC-
MD-CIV-MOT-REV-2023|00405 dismissing Appellant`s application and awarding costs
against the Appellant.

KINDLY TAKE FURTHER NOTICE that the grounds whereupon the Appellant predicates
his appeal are as follows:

1. The learned judge erred in fact or law in finding that the plaintiff had not discharged the
onus of proving that the defendant's occupation of the property was wrongful and
unlawful, where there was sufficient evidence before the court to support such a finding.
2. The learned judge erred in law in failing to take into account the fact that the defendant
had failed to provide any evidence in support of his claim that his occupation of the
property was not wrongful and unlawful.
3. The learned judge erred in law in dismissing the plaintiff's claim without considering all the
evidence before the court, and without giving adequate reasons for his decision.
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4. The learned judge erred in law in awarding costs against the plaintiff, where the plaintiff
had a bona fide claim and there was no evidence of bad faith or improper conduct on the
part of the plaintiff.
5.
6. Such further and other grounds of appeal as may be raised during the course of the
appeal.

The appellant prays that the appeal be allowed, the judgement of the court a quo be set
aside and substituted with an order granting the plaintiff's claim, and that the costs of the
appeal and of the court a quo be awarded to the plaintiff.

DATED at ___________________ this ______day of ___________________.

__________________[

Brilliant Brilliant

Brilliant Incorporated,

West Business Park, 56 Old Swabou Building

Ground Floor Office No. 5. Windhoek

.
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IN THE SUPREME COURT OF NAMIBIA CASE NO: SA|27|2023

In the matter between:

PROPERTY ESTATES PROPRIETARY LIMITED APPELLANT

and

JOHN SMITH RESPONDENT

HEAD OF ARGUMENTS

_____________________________________________________________________

A. INTRODUCTION

1. This application seeks inter alia to have the judgement of Judge Wisdom J dated 06
February 2023 set aside on the basis that the decision was irrational and unfair in which
he dismissed the plaintiff's claim for ejectment of the defendant from a property situate at
7 Squadron Road, Windhoek.

B.THE FACTUAL BACKGROUND

2. The Plaintiff is PROPERTY ESTATES (PROPRIETARY) LIMITED a company dully

registered and incorporated with limited liability in accordance with the Company Law of
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the Republic of Namibia, with its principal place of business situate within the area of
jurisdiction of this Honourable Court at Property House, 6 Wealth Street, Windhoek.
3. The defendant is John Smith an adult male businessman of full legal capacity residing
within the area of jurisdiction of this Honourable Court at 7 Squadron Road, Windhoek.
4. The plaintiff is the registered owner of the property situate at 7 Squadron Road,
Windhoek.
5. The Plaintiff is in wrongful and unlawful occupation of the said property.
6. The defendant admits the allegations stated above
7. The defendant admits that he is in occupation of the said property.
8. It is factual that the defendant declines to furnish the further particularity sought.

C. THE LAW

9. In interpreting a statutory provision, our courts have held that the context in which the
words are used is of paramount importance and must be taken into account.

10. In a case of Kavezeri v Kavezeri  12016/02421) [2018] NAHCMD the Court Held that – in
order to eject a defendant from immovable property, a plaintiff need only allege that he is
the owner of the immovable property and that the defendant is in occupation of the
immovable property.
11. The plaintiff presented evidence that he was the registered owner of the property and that
the defendant was in occupation thereof. The defendant did not provide any evidence in
support of his claim that his occupation of the property was not wrongful and unlawful.

12. The learned judge erred in law in finding that the plaintiff had not discharged the onus of
proving that the defendant's occupation of the property was wrongful and unlawful, where
there was sufficient evidence before the court to support such a finding.

In Chetty V Naidoo 21974 (3) SA 13 (A)

13. it has been established that the plaintiff is owner of the property and the defendant is in
possession, then the onus is on the defendant to prove that she has the right to occupy
the property.
1
2016/02421) [2018] NAHCMD
2
1974 (3) SA 13 (A)
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14. The plaintiff had thus discharged the onus of proving that the defendant's occupation of
the property was wrongful and unlawful, and the learned judge erred in failing to take this
into account.
15. The learned judge erred in law in dismissing the plaintiff's claim without considering all the
evidence before the court, and without giving adequate reasons for his decision.
16. The plaintiff had presented sufficient evidence to demonstrate that the defendant's
occupation of the property was indeed wrongful and unlawful, and the learned judge erred
in failing to consider this evidence and in failing to provide adequate reasons for his
decision.
17. The plaintiff had presented sufficient evidence to demonstrate that the defendant's
occupation of the property was indeed wrongful and unlawful, and the learned judge erred
in failing to consider this evidence and in failing to provide adequate reasons for his
decision
18. In Beukes v Brockerhoff (I 2625/2012 [2013] NAHMD 54 (19 February 2013) Where it was
held that :
Plaintiffs applied for ejection of the defendants from certain immovable property in terms of Rule
32(1)(d). It was common cause between the parties that the plaintiffs were the registered owners
of the property. Defendants raised a counterclaim in their opposing papers for monies they
alleged to be due, owing and payable to them by plaintiffs but did not lay any basis in law why they
should continue to reside on the property pending finalization of their counterclaim. Summary
judgment accordingly granted

19. The learned judge erred in law in awarding costs against the plaintiff, where the plaintiff
had a bona fide claim and there was no evidence of bad faith or improper conduct on the
part of the plaintiff.
20. The award of costs was thus unreasonable and unjust, and the learned judge erred in
failing to exercise his discretion properly in this regard.
21. The appellant respectfully submits that the learned judge erred in law in dismissing the
plaintiff's claim for ejectment of the defendant from the property situate at 7 Squadron
Road, Windhoek.

22. D. CONCLUSION

23.
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56. The 1 st respondent submits that the decision was arrived in fairly and within the limits of justice
and legality.

57. The Act is open to interpretation and does not exclude the 1 st respondent from referring the
matter for further investigations to enable him to make a fair and just decision.

E. COUNSEL HEREBY CERTIFIES, THAT:

(a) where Counsel relied on foreign law, Counsel was unable after diligent
search, to find Namibian authority on the proposition of the law under
consideration; and

(b) where foreign authority is cited, Counsel has satisfied himself that there is
no Namibian law, including the Namibian Constitution, that precludes the
acceptance by this Honourable Court of the proposition of law that the foreign
authority is said to establish.

WHEREFORE, THE APPELLANT PRAYS FOR A DISMISSAL OF

THE
APPLICATION WITH COSTS.

THUS SIGNED AND DATED AT WINDHOEK ON

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Y OF OCTOBER 2018.

GOVERNMENT ATTORNEY
Respondents' Legal Practitioners
2nd Floor, Sanlam Centre
Independence Avenue
WINDHOEK, NAMIBIA
(Ref: J. Ncube)

TO: THE REGISTRAR OF THE HIGH COURT

THE HIGH COURT BUILDING
WINDHOEK, NAMIBIA

AND TO: MULUTI AND PARTNERS

LEGAL REPRESENTATIVE FOR THE
APPLICANT
WINDHOEK, NAMIBIA

AND TO: SIBEYA ATTORNEYS

LEGAL REPRESENTATIVE FOR THE SECOND

LEGAL REPRESENTATIVE FOR THE SECOND

RESPONDENT
WINDHOEK, NAMIBIA
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List of Authorities

Kavezeri v Kavezeri (HC-MD-CIV-ACT-OTH-2016/02421) [2018] NAHCMD 205 (06 July 2018)

Beukes v Brockerhoff (I 2625/2012 [2013] NAHMD 54 (19 February 2013)

Chetty V Naidoo 1974 (3) SA 13 (A)