supreme court of namibia judgment index 2020

NICOLE JANUARIE – SENIOR LEGAL OFFICER, HIGH AND SUPREME COURT

Table of Contents

ADMINISTRATIVE LAW.........................................................................................................................3

CIVIL PROCEDURE..............................................................................................................................13

CRIMINAL LAW.....................................................................................................................................25

ELECTROL LAW...................................................................................................................................29

INSOLVENCY LAW...............................................................................................................................32

LAW OF DELICT....................................................................................................................................34

MOTOR VEHICLE ACCIDENT............................................................................................................38

POCA.......................................................................................................................................................39

PROPERTY LAW...................................................................................................................................41

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ADMINISTRATIVE LAW

Review – decision by the Ministry to revoke its pay roll deduction facility – The Ministry of Finance operated a scheme in terms of which the respondent, upon registration as a micro lender, could recover from the Ministry’s payroll debts owed to it by its students who were civil servants and to whom study materials were being provided on credit. A deduction code was created by the Ministry in favour of the respondent following an application for it. On 23 September 2002, the respondent addressed a letter to Namibia Financial Institutions Supervisory Authority (NAMFISA) informing it that the respondent was not a micro lender as debts owed to it by its students were recovered on a basis akin to a hire purchase. NAMFISA agreed with the mere say so by the respondent that it was not a micro lender. It informed the respondent that it regarded the respondent as a credit grantor. NAMFISA later informed the respondent that the respondent had been deregistered as a micro lender. This development resulted in the Ministry revoking the pay roll deduction facility previously granted to the respondent.

The respondent then brought a review application in the High Court seeking the setting aside of the decision by the Ministry to revoke its pay roll deduction facility. The decision was set aside as unlawful and unconstitutional.

On appeal, the Supreme Court had to decide, amongst others, whether the decision to cancel the respondent’s registration as a micro lender was done procedurally; whether the decision to cancel the respondent’s registration as a micro lender was an administrative decision or not; whether given the discretionary nature of the review remedy, the respondent’s ‘opportunistic’ conduct in its deregistration as a micro lender disqualified it from benefiting from the exercise of a discretionary power; alternatively whether the discretionary power should be exercised in favour of the respondent as the respondent allegedly unreasonably delayed launching the review application, and whether the payroll deduction facility was lawfully cancelled.

Held, that the cancellation of the respondent’s registration as a micro lender was not done procedurally as it did not comply with the procedure set out in Government Notice 136 of 6 August 2002, which in peremptory terms required giving an opportunity to the person or entity affected by the decision to be heard.

Held, that the decision to cancel the respondent’s registration as a micro lender was an administrative decision taken by an administrative functionary on behalf of a public body which was bound by Article 18 of the Namibian Constitution to act fairly, reasonably and to comply with the law.

Held, that although the respondent’s conduct was opportunistic, this consideration was more relevant to the issue of costs as it was extricable from the issue of delay. As to the argument based on unreasonable delay, held that the review application was timeously launched and there was therefore no need to determine the issue of the exercise of discretion.

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Held, that the appeal was dismissed, but to register the court’s displeasure with the respondent’s conduct, no order as to costs was made in its favour. Permanent Secretary in the Ministry of Finance of Namibia v OLGN Finance CC (SA 2/2006) [2020] NASC (7 May 2020)

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Review – decision to appoint appellant as Chief of the Ombuku Traditional Community – This appeal concerns the review and setting aside of an administrative decision designating the appellant as Chief of the Ombuku Traditional Community (Community). The Minister of Urban and Rural Development had designated the appellant as Chief in terms of the Traditional Authorities Act 25 of 2000 (Act). The first respondent, a brother to the appellant, had also applied for designation seemingly because he was a legitimate leader and that there was no recognised Chief.

The appellant, the first son of the late Chief who died in 1982, was installed as Chief to succeed his father. During his reign as a sitting Chief he unsuccessfully applied, in terms of the repealed Traditional Authorities legislation, to be recognised as Chief. During 2014 the appellant reapplied to be recognised in terms of the Act. The Minister appointed a Committee to investigate the existence of the Community and its jurisdictional area. During the investigation issues regarding the dispute between the appellant and first respondent, his half-brother, surfaced. The latter had also applied in 2015 to be recognised as Chief. In his application for designation it was stated that there was no sitting Chief. The Minister, having considered the report of the Investigating Committee that had been appointed to investigate the existence of the Community and its area of jurisdiction and also having considered that the appellant was a sitting Chief, designated him as Chief.

In the review application brought in the High Court, the first respondent asserted that the appellant had been removed by the Community and was appointed in his stead. Successfully a quo, the first respondent challenged the Ministerial decision on the bases that he was the legitimate leader of the Community because the appellant had been removed by the Community in terms of customary law and was appointed in his place; the Minister acted ultra vires her powers because the requirements set out in ss 4 (dealing with the requirements for the institution of a person from a royal family as Chief of the Community) and 5(1) (dealing with the requirements for the application to the Minister for designation) of the Act had not been complied with. It was contended that the appellant was not a legitimate Chief because he had been removed by the Community in terms of the applicable customary law and that there was discrepancy regarding what was stated in the prescribed Form in terms of s 5 and what the appellant stated in his opposing papers, regarding the alleged applicable customary law as well as the fact that the person who applied for designation had no authority to do so. The decision was challenged also on the grounds that his right to fair and reasonable administrative action in terms of Art 18 of the Namibian Constitution and the common law principles of natural justice – audi alteram partem had been violated because he

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was not consulted. It was contended further that the person who applied for the designation of the appellant had no authority to do so.

On appeal the appellant correctly submitted, among other things, that the designation of a chief is not exclusively a customary law issue because the process is also regulated by the Act and maintained that the Minister’s decision passed muster and was in accordance with the applicable customary law of the Community. He maintained that even though the first respondent was not entitled to be consulted he was indeed consulted. The first respondent’s opposition was based on similar contentions a quo.

On appeal the Court determined whether the court a quo misdirected itself on the facts and the law when setting aside the impugned administrative decision to designate the appellant as Chief of the Community.

Held that a review court should not exercise its review power by substituting its own discretion for that of the administrative official whose decision is reviewed. The review court is entitled to set aside the impugned decision or action if it satisfied that the requirement of procedural fairness – the incident of natural justice – was not met and that the administrative official failed to exercise its discretion or, if it did, was actuated by improper motives or that an irregularity appears on the record.

Held that the court a quo failed to discharge its review function and that the approach to the review was misguided. It misdirected itself on the facts that the first respondent was the legitimate Chief of the Community and that he was not heard when the impugned decision was taken by the Minister.

Held that the legitimacy of the first respondent as Chief or acting Chief was not a matter for determination before the court a quo and that the Court a quo lost sight of certain relevant considerations including that the appellant was the chosen Chief following the bereavement of his father; that he remained a sitting Chief until his designation; that his removal was not in accordance with the applicable customary law and the Act. Held further that, the court a quo relied on irrelevant considerations.

The Court upheld the appeal. It set aside the decision a quo and replaced it with a decision dismissing the review application. Kapika v Kapika (SA 17/2018) [2020] NASC (20 July 2020)

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Review – irregularity in proceedings – review of proceedings of the High Court conducted on 23 January 2013. Ohorongo Cement (Pty) Ltd, has requested the court to review the proceedings of the High Court in which it says it was unfairly treated when it wanted to intervene in the case brought by Jack’s Trading CC, a rival of Ohorongo in the cement distribution business at the time, against the Minister of Finance and the Commissioner for Customs and Excise. Ohorongo argued that it was not given an

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opportunity to present its case fully before the High Court converted an agreement made by the parties in Jack’s Trading application into an order of court. In Ohorongo’s application, the Supreme Court had to decide whether there was an irregularity in the proceedings of the High Court requiring it to review those proceedings. The court held that instances constituting an irregularity in the proceedings had been established and the concerned proceedings of the High Court therefore had to be reviewed and set aside. Ohorongo Cement (Pty) Ltd v Jack's Trading CC (SCR 1/2013) [2020] NASC (20 May 2020)

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Review – Minster’s decision under s 44 of the Minerals Act – cancellation of mining claims – The appellant launched a review application in the court a quo seeking to review the Minister of Mines and Energy’s (the Minister) decision under section 44 of the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act) cancelling mining claims (number 70056 and 70057) registered in his name on 7 February 2017. The Minister had issued an exclusive prospecting licence (EPL) 6334 to the appellant on 26 September 2016. Prior to this, the Minister, on 10 February 2016 alerted the third respondent that its mining claims (number 66988 and 66993) had expired - the third respondent’s mining activities in respect of those claims were at the time being conducted by the fourth respondent. This was soon followed by the Minister issuing an EPL 6738 to the third respondent, which on 24 February 2016 applied for the registration of the mining claims it had held before. The third respondent addressed the Mining Commissioner that the ‘erroneous’ plotting of coordinates by the Ministry on its system had caused an overlap between the appellant’s registered claims and one of the claim areas applied for (and previously held) by the third respondent. Appellant was informed to desist from mining activities pending advice from the Attorney-General. On 31 August 2017, the Minister gave the appellant a notice of his intention to cancel the appellant’s mining claims under s 44 of the Act – he afforded the appellant the opportunity to make representations on the issue. On 18 October 2017, the Minister approved the third respondent’s mining claim number (69776 to 69781) – and notified the appellant of the cancellation of his claims.

The appellant’s case was that the Minister did not have the power under s 44 of the Act to cancel his mining claims. He alleged that the power to cancel vests in the Mining Commissioner. The respondents filed a counter application premised upon s 125 of the Act (in that, the granting of the claims to the appellant was in conflict with s 125). This counter application was conditional upon the appellant succeeding with his review application. Appellant argued that the term ‘shall’ in s 125 should not have a peremptory meaning, he also contended that s 125, properly interpreted, does not prohibit the overlapping of claims, particularly where they relate to different minerals. He further contended that the respondents are precluded from relying upon a ground not cited by the Minister as a basis for the cancellation of the appellant’s claims.

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The court a quo found and set aside the cancellation on the grounds that the power to cancel in s 44 is vested in the Mining Commissioner. This issue was not appealed against by the respondents.To be determined by this court is whether the court a quo erred in granting the counter application relying on s 125 and in an explanatory affidavit filed by the Mining Commissioner irregularly.

Explanatory affidavit - After respondents filed a counter application, the matter proceeded to case management - the court a quo made an order directing a number of prehearing steps to be conducted by specific dates. The Minister and Mining Commissioner were directed to file the record of decision making by 2 March 2018 and deliver their answering affidavits by 6 April 2018 – they did not file an answering affidavit within the prescribed time – rather, they filed an affidavit explaining the decision making process and how errors were made in the capturing of coordinates in the system (the explanatory affidavit). This affidavit was filed two and a half weeks before the hearing and after all affidavits were exchanged. Exercising its discretion, the court a quo received the explanatory affidavit of the Mining Commissioner and declined appellant’s application to have the explanatory affidavit struck from the record on grounds of being in conflict with the court order and the provisions of rule 54 of the High Court Rules.

Held, by exercising its discretion, the court a quo correctly found that the explanatory affidavit was of importance in clarifying the issues before it.

Held that, the court retains a discretion to exercise its inherent powers to regulate proceedings before it, especially with reference to receiving evidence provided that it does not give rise to unfair and unjust results.

Held, the power of a court on appeal to interfere with the exercise of a discretion in an instance where a court exercises its discretion to exercise its powers to regulate its own procedures is strictly circumscribed.

Held, this is an exercise of a discretion in a ‘strict or narrow sense’ where a court of appeal will only interfere if the court below ‘exercised its discretion capriciously or upon a wrong principle or has not brought its unbiased judgment to bear on the question, or has not acted for substantial reasons or materially misdirected itself.’

Held that, public interest is served by the receipt of the affidavit so that the real issues can be determined with reference to the full factual position. Had the appellant sought leave to deal with the explanatory affidavit after its receipt by the court below, and that had been refused, the position would be entirely different. But the failure of any attempt to seek to address the affidavit particularly after its receipt renders the claim of prejudice on appeal as contrived and lacking in any real substance.

Section 125: Interpretation - The issue concerning s 125 is whether it precluded the granting of the appellant’s claims given the fact that the third respondent applied for

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mining claims before the appellant had done so. Section 125 requires the consideration of applications in their sequence.

Held, the ordinary meaning of the terms employed by the legislature in the statutory scheme of s 125 meant that ‘shall’ is to have a mandatory meaning.

Held, the intention of s 125 is to place a clear statutory obligation upon the respective repositories of the powers to consider applications in the sequence they are made and received. The use of the term ‘all’ with reference to those applications in s 125 reinforces this approach.

Held, not only does the use of the term ‘shall’ ordinarily signify an intention to make the obligation embodied in s 125 mandatory, but the context and purpose of the provision reinforces this.

Held, the purpose of this provision within the context of the Act is to provide for transparency and certainty in the manner in which and the wide and far reaching powers vested in the Minister and Mining Commissioner are to be exercised in allocating rights to Namibia’s natural resources.

Held that, the use of the term ‘shall’ in s 125 takes its ordinary peremptory meaning, given the statutory context and legislative intention for the provision. It further follows that conduct in conflict with it (by not following the sequence in considering applications) will result in invalidity. The conclusion reached by the High Court in this regard is beyond reproach.

Appeal is dismissed with costs. Koujo v Minister of Mines and Energy (SA 48/2018) [2020] NASC (30 July 2020)

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Review – quantitative restrictions – The Dairy Producers Association, representing the interests of producers of dairy products in Namibia made an application to the Minister of Trade and Industry for the Minister to institute interim measures controlling the importation of dairy products into Namibia. The application to the Minister was necessitated by the increase in the importation of dairy products in the country and resulted in lower prices for some of those products, which made it difficult for the Namibian produced dairy products to compete with imported products.

After initial consultations with interested parties and the promise of further consultations, which never took place, Government Notice 245 in Government Gazette 5285 of 16 September 2013 was published informing the public that a decision had been made by the Minister prohibiting the importation into Namibia of specified dairy products without an import licence.

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Aggrieved by the restrictive measures implemented, companies such as Matador, Clover and Parmalat, alleging that their businesses had been adversely affected by the measures, brought review applications in the High Court seeking the decision of the Minister to be reviewed and set aside. They also sought an order declaring ss 2 and 3 of the Import and Export Control Act 30 of 1994, in terms of which the decision was allegedly taken, unconstitutional.

The High Court found the decision to impose the quantitative restrictions of the importation of certain dairy products to be invalid and set the decision aside. This order was informed by the conclusion that the Minister applied the wrong Act (the Import and Export Control Act, instead of the Dairy Products Act 30 of 1961). The court a quo further reasoned that even if the Minister acted correctly by applying the Import and Export Control Act, the decision would still be unlawful, because it was taken by the Cabinet and not by the Minister as required by the Import and Export Control Act. Further, the High Court found that because the decision amounted to an administrative action, the Minister was obliged to comply with Art 18 of the Namibian Constitution, ie procedural fairness, a duty he owed to the affected companies, but he failed to do so.

On the constitutional challenge, the High Court did not find it necessary to decide the issue as the dispute had been decided on review grounds.

On appeal to this court, certain preliminary issues were raised. This included whether the appeal was properly lodged in this court as well as whether the company Parmalat had locus standi in this matter.

Held per Shivute CJ (Mainga JA and Hoff JA concurring):

That the former issue lacks substance in that, although the notice of appeal did not bear the office and address of the Registrar of this court in terms of the Rules, the notice was stamped by the Registrar of this court. In other words, there was substantial compliance with the Rule. On the latter preliminary issue, this court held that Parmalat lacks the necessary locus standi in this matter premised on the basis that it has no direct and substantial interest in the matter.

Turning to the merits of the appeal, the issues for adjudication were whether the Minister applied the correct legislation; whether the decision taken amounted to administrative or executive action; whether the Minister took the decision or he unlawfully abdicated from the responsibility to take the decision; whether Matador, Parmalat and Clover have the right to procedural fairness and if so, whether the Minister acted in a procedurally fair manner; whether the Minister applied his mind when the decision was taken to impose the quantitative restrictions; whether the court a quo erred when it failed to pronounce itself on the constitutional challenge; and whether the impugned decision and s 2 and s 3 of the Import and Export Control Act are unconstitutional.

Held per Shivute CJ (Mainga JA and Hoff JA concurring):

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That the Minister applied the correct legislation, the Import and Export Control Act.

That the impugned decision amounted to an executive action, because it involves the formulation of a policy to impose restrictions on selected imported dairy products.

That the High Court was correct not to decide the constitutional challenge and that this court too declines to decide the issue, reasoning that it was undesirable to do so as a court of first and final instance as a party dissatisfied with the court’s decision would have no recourse to the appeal process.

Held per Mainga JA (Hoff JA concurring):

That the decision was taken by the Minister and not by the Cabinet.

That the Minister had the legal authority to determine a question affecting the rights of Matador and Clover. He was therefore, required to observe the principles of natural justice when exercising the authority. Here where he made a decision without all the information necessary for the decision, the decision was irrational and it was correctly set aside.

That continuous restrictions that have no basis, was not in the best interest of the consumer, SACU and our international relationship at large.

That the Minister failed to give audience to Matador and Clover. His decision lacked transparency and adversely impacted upon the right to be heard.

That the whole process leading up to the publication of the Notice was flawed and therefore the decision of the Minister was irrational and Government Notice 245 of Government Gazette 5285 of 16 September 2013 was correctly set aside by the High Court. Minister of Trade and Industry v Matador Enterprises (Pty) Ltd (SA 44/2014) [2020] NASC (19 March 2020)

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Review – registration under section 5A of Income Tax Act 24 of 1981 – First respondent made an application to the Minister of Finance to be registered as a manufacturer pursuant to the provisions of section 5A of the Income Tax Act, 24 of 1981 (the Act). The Commissioner of Inland Revenue, an official in the Ministry of Finance, disapproved the registration application. First respondent brought an application in the court a quo for the review and setting aside of the decision disapproving the application for registration as a manufacturing enterprise for purposes of the Act and for a declaratory order that the process of producing white-metal and crushed matte from slag amounts to a manufacturing operation. First respondent succeeded in both respects, hence this appeal.

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The court a quo found that the appellants’ interpretation of sections 1 and 5A of the Act was wrong and amounted to an error in law and that it offended Article 18 of the Namibian Constitution and was invalid. The court a quo upheld the review and set aside the decision. It did not consider the further review grounds. The court a quo also granted the declaratory order sought.

On appeal, the appellants argued that the first respondent’s review application was stillborn in the court a quo. Even if the first respondent had established that the operation amounted to manufacturing activity for the purpose of s 1 of the Act, the first respondent still needed to meet the requisites for registration embodied in s 5A (3)(a) and (b) - in that it will be beneficial to the Namibian economy by way of net employment creation, net value addition, replacement of imports or an increase in net exports and also represents an investment in a new manufacturing activity or a substantial expansion of an existing one. The appellants argued that all the requirements of s 5A were to be met for registration and that the first respondent was required to make out a case in the review application that it had done so in order to qualify to review the decision to disapprove the application.

First respondent argued that the appellants’ decision that the process did not amount to a manufacturing operation was flawed because it was not reached with the concurrence of the Minister of Industrialisation, Trade and SME Development and was ‘far wrong and highly unreasonable’; that a determination as to whether the process is a manufacturing operation was an essential prerequisite to an application for registration under s 5A; that determination, was reviewable and the declaratory order was sought and given to address that. First respondent further argued that compliance with the other requirements of s 5A was not the issue and that the first respondent could yet meet those requisites after the determination concerning whether the activity was a manufacturing one had been corrected.

Held, in order to qualify for registration, an applicant must satisfy the Minister, acting in concurrence with the Minister of Trade that its operation or intended operation amounts to manufacturing activity and that the requirements in s 5A have been met.

Held, an applicant for registration must meet all of these requisites in order to secure registration and thus qualify for the benefits which accompany registration.

Further held, that the application for registration attached to the founding papers – whose disapproval is sought to be reviewed – thus does not meet the statutory requisites for such applications. Even if the first respondent were to have established that its process was a manufacturing operation as defined in s 1, the first respondent does not on the papers meet the requisites for an application for registration under s 5A (3)(a) and (b) of the Act.

Held that, an application for registration is a composite one. An applicant must meet all the statutory requirements. Section 5A does not contemplate separate phases for determination, each of which can be reviewed. The piecemeal determination of

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administrative action, as proposed by first respondent, is untenable and cannot be countenanced and is in any event entirely in conflict with its own conduct in reviewing the decision to turn down the registration application (which the first respondent had applied for). The declaratory order granted to avoid referring the matter, cannot stand as a consequence.

Held, the appeal succeed with costs. Minister of Finance v TCIMS Industrial (Namibia) (Pty) Ltd (SA 43/2018) [2020] NASC (31 March 2020)

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Review – unreasonable delay – The appeal arises from the order of the court a quo reviewing and setting aside a tender award made by the Namibia Airports Company (NAC), to China State Engineering Construction Corporation (Southern Africa) (Pty) Ltd (China State) for the construction of taxiways and apron at the Ondangwa Airport. In the court a quo, China State contested the merits of the review on both procedural and substantive grounds. Similarly, in the notice of appeal against the High Court’s judgment and order, China State challenged the High Court’s finding that the NAC had made out a case for review. In the High Court, the new board of the NAC sought to review and set aside a tender awarded to China State by the former board principally because of non-compliance with the company’s procurement policy. The self-review was challenged on procedural and substantive grounds, including an objection in limine that there was an unreasonable delay in seeking the review.

The High Court was satisfied that there was no unreasonable delay and that, in the event it was found to be wrong in that conclusion, it was a proper case for condonation to be granted for the late prosecution of the review. The High Court concluded that the NAC made out a case for the relief it sought and set aside the decision and resolutions taken by the old board on 23 June 2016, awarding the tender to China State, with costs.

The notice of appeal impugned the High Court’s decision in all respects in which that court found against China State. At the hearing, the appellant only challenged the High Court’s finding that there was no unreasonable delay, and if it was wrong condoning such delay.

On appeal to the Supreme Court:Held that the NAC failed to demonstrate that all the steps taken by it after the new board assumed office prior to the actual launch of the review application were necessary, and that, accordingly there was unreasonable delay in institution of review proceedings.

Held that, as regards the High Court’s condonation of the unreasonable delay, for the appeal court to interfere, it must be satisfied that the High Court exercised its discretion improperly.

Held that the High Court did not misdirect itself and that for the reasons given a quo and others the present was a proper case for condonation. The manner in which the award

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was made leaves the reasonable observer with an uneasy feeling that the process involving the spending of public funds was not transparent.

Held that public interest is best served by reopening the entire process to competitive public bidding so that assurance is had that public resources are expended in the most cost-effective way. Court accordingly allows the appeal only in so far as the High Court found that there was unreasonable delay, but confirms that court’s conclusion that (a) the case had been made out to condone such delay and (b) to review and set aside the award made by the old board to China State. China State Engineering Construction Corporation v NAC (SA 28/2019) [2020] (7 May 2020)

CIVIL PROCEDURE

Appealability – urgent application in court a quo dismissed – Appellants approached the court a quo on 20 December 2018 on an urgent and ex parte basis for a mandament van spolie to compel the respondent to restore the use of a road to them which they used to gain access to their places of residence – which road allegedly fell within the jurisdiction of the tenth appellant. A rule nisi was granted with a return date of 23 January 2019. The rule nisi was extended to 12 February 2019, 2 April 2019 and finally to 17 April 2019. The court a quo on 17 April 2019 delivered judgment in which the rule nisi issued on 20 December 2018 was discharged and the application dismissed with costs. The court a quo found that the matter was not urgent (as the urgency was self-created) and that the appellants did not establish that they were in peaceful and undisturbed possession of the road in question. The appellants are appealing against that order.

This court must determine whether urgency as an issue is appealable.

It is held that, clearing the procedural hurdle was a prerequisite for the matter to be dealt with on the merits - if this decision is upheld there is no need to deal with the decision on the merits as then the ratio on the merits is superfluous to the procedural point under consideration and hence can be regarded as an obiter dictum. The appellants can then, if so advised, institute an application afresh to have the possession of the road restored to them as the ratio of the court a quo being obiter dictum and not ratio decidendi in respect of the dismissal of the application will not prevent the applicants from such a course of action.

Held that, the decision to discharge the rule and dismiss the application is not a final one as the matter can always be revisited in the normal course. In fact, it is not even a judgment or order. It is a ruling and thus not appealable.

It is further held that, the order of the court a quo should have discharged the rule and struck the application from the roll instead of dismissing it.

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It is held that, the court a quo’s ruling that the application did not muster the requirements for urgency it was not a judgment or order but a ruling, and the order given consequent to this finding is thus not appealable.

Held that, the appeal is struck from the roll with costs, inclusive of the costs of one instructing and one instructed legal practitioner. Beukes v Kubitzausboerdery (Pty) Ltd (SA 18/2019) [2020] NASC (1 July 2020)

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Arbitration – exhausting internal remedies outlined in constitution – A dispute arose between the Namibia Premier League (the NPL) and the Normalisation Committee (the NC) from a decision made by the NC to not relegate three teams at the bottom of the league. Arbitration proceedings were instituted by the NPL in terms of Article 63 of the Namibia Football Association (the NFA) Constitution against this decision. In response, the NC responded to the referral of the dispute to arbitration by pointing out that the Arbitration Tribunal envisaged in Art 63 upon which the NPL sought to rely was never established as the NPL knew (The NFA advised/directed the NPL to address its complaint to the Court of Arbitration for Sport (the CAS). The NPL never approached the CAS.); that the decision sought to be set aside had been endorsed by Federation Internationale de Football Associations (the FIFA) and was final and warned the NPL that if it did not implement the directive relating to the teams that would constitute the NPL for the upcoming season, the NC would have no option but to invoke sanctions which could entail suspension and/or expulsion.

Meetings were held between the representatives of the two bodies in an attempt to resolve the dispute. These talks came to nought with the NPL sticking to their position that the NPL’s Constitution barred it from accepting teams in its league that have been relegated. The persistent and continued disregard by the NPL of the NC’s directive led to the suspension of the NPL with immediate effect as per the NC’s letter dated 2 October 2019. Despite attempts by the NPL to reverse its suspension, this could not be done. The NPL approached the court a quo on an urgent basis to among others, set aside its suspension.

The court a quo in essence held that the NPL had through its membership in the NFA agreed not to resort to the court in respect of its disputes with the NFA but to utilise the mechanisms and tribunals referred to in the Constitution of the NFA for the resolution of such disputes and hence that the court’s jurisdiction to hear the matter had been ousted based on articles contained in the Constitution of the NFA – including Articles 10.3 and 64.1 which contain an undertaking by its members not to approach ordinary courts ‘unless the FIFA, CAS or the NFA regulations provide for or stipulate recourse to ordinary courts’. The court a quo thus dismissed the application. It is against this order that the current appeal lies.

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Held that, the fact of internal remedies does not oust the jurisdiction of the court. Where such remedies exist the court normally insist that parties adhere to such remedies. The court thus declines to exercise its jurisdiction where appropriate remedies exist and, as mentioned, the court will exercise its jurisdiction where just cause is shown in any particular instance. In the present matter the internal remedies are provided for in the NFA Constitution and whether one approaches the matter from the private law perspective or an administrative law perspective would make no difference. Either those internal remedies are adequate in the circumstances or they are not. It was for the NPL to show they were not, and further, it was for the NPL to persuade a court to exercise its jurisdiction in the matter.

Further held that, the onus was on the NPL to establish good cause for the court a quo to ignore the Constitution of the NFA and to assume jurisdiction contrary to what was agreed to by the parties. This onus was not discharged by the NPL.

Held that, the NPL at its own peril failed to address its complaint to the CAS. The allegation that the NC refused to have any dispute arbitrated is not correct. The fact is that the NPL never referred the dispute to the CAS as it is enjoined by the Constitution of the NFA. The NPL further failed to provide an explanation why it did not do so.

Held that, the appeal is dismissed with costs, such costs to include the costs of one instructing and two instructed legal practitioners. Namibia Premier League v Namibia Football Association (SA 71/2019) [2020] NASC (19 February 2020)

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Condonation – late filing of appeal – This appeal concerns an interdict and restraining order against the appellant. On 14 September 2012 the boundaries of the respondent were altered to include Omatando area or farm Ongwediva Townlands Extension 1156 by Proclamation No. 238 of 2012, which included Omatando area within which appellant held a piece of land. On 8 July 2017, the respondent held a meeting with the residents of Omatando and informed them that it will be formalizing Farm Ongwediva Townlands Extension 1156 and that the residents should not erect any structures thereon. Despite this meeting, the appellant commenced putting up structures on the plot he allegedly owned, which plot was now owned by the respondent. The respondent averred that the structures so built by the appellant have not been approved, therefore they are illegal. In addition, such said structures have been erected in the middle of a public road, thereby obstructing access to the road. He was instructed to stop any further construction on the plot, however he decided to ignore same. The respondent, having no other option, lodged an urgent application in the court a quo seeking an interdict against the appellant restraining him from carrying on any construction on the respondent’s property, vacate the same, demolish any and all structures already constructed on the plot at his own cost and bear the costs of the respondent’s application on a punitive scale. The appellant opposed the application alleging that he had purchased the plot in question from one, Karolina Mulongeni in August 2010 for N$35 000 and such piece of land was allocated to him by the Village

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Headman, Mr Johannes Mulongeni in terms of s 20 of the Communal Land Reform Act 5 of 2002 (CLRA). He believes that he owns the plot and the respondent should have compensated him in terms of Art 16(2) of the Namibian Constitution read with s 16 of the CLRA.

The court a quo held that the plot in question belongs to the respondent. As far as compensation was concerned, the court a quo noted that, that was a separate action. The court a quo as a result granted the respondent’s application with punitive costs, as between attorney and own client.

This appeal was lodged way out of time. The appellant applied for condonation for the late lodging of the appeal. The explanation offered by the appellant’s legal practitioner in her affidavit was that she was under the impression that the record was to be filed within three months from the date the notice of appeal was filed, instead of the date when the judgment or order was granted.

Held, that a litigant seeking condonation bears the onus to satisfy the court that there is sufficient cause to warrant the grant of condonation, it is not a mere formality.

Held that the explanation tendered by the legal practitioner offered no satisfactory explanation for her remissness for not complying with the rules of this court and that her degree of negligence went so far that the appellant cannot escape the results of his legal practitioner lack of diligence.

Held that there are no prospects of success as the appellant’s reliance on Art 16(2) of the Constitution and s 16 of the CLRA is misplaced. Application for condonation refused with costs. Appeal struck from the roll. Jonas v Ongwediva Town Council (SA 16/2018) [2020] NASC (27 January 2020)

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Contempt of court – The appellant and the first respondent are both trade unions operating in the public service. Both unions compete for members (teachers). Members would regularly resign from one union to join the other. When a member resigns, the union from which the member resigns is expected to cease deductions of membership fees from the salary of the concerned former member. Appellant claimed that the first respondent had deliberately been failing to stop deductions from the salaries of teachers who had resigned from it and had joined the appellant despite having been made aware of the resignations. As a consequence, the appellant instituted proceedings in the Labour Court against the first respondent to resolve the dispute. The parties reached a settlement agreement that was later made an order of court. Due to what appellant perceived to be a blatant refusal by the first respondent to comply with the court order, the appellant brought an application in the Labour Court on notice of motion for an order, amongst others, convicting the second and third respondents (who were responsible for the administrative functions in first respondent) of contempt of court and for the imposition on them of an ‘appropriate criminal sanction.’ The respondents opposed the application and claimed that the members whose dues they

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failed to stop deducting from their salaries had not resigned from the first respondent in compliance with constitutional and administrative procedures effecting a valid resignation. The appellant’s response to respondents’ averments was to generally deny that the factual issues were correct, without offering an alternative construct, if any.

Both parties sought condonation from the court for the late filing of the bond of security; the power of attorney and the heads of argument on the part of the appellant, an application for condonation was made on behalf of the appellant. The respondents failed to file the power of attorney on behalf of the second and third respondents on time and the condonation application for the neglect was moved from the bar only after the omission was brought to the attention of the respondents’ legal practitioner.

On appeal, the Supreme Court, applying the principles set out in Fakkie v CCII (Pty) Ltd 2006 (4) SA 326 (SCA), had to decide whether the appellant has proved the elements of contempt of court beyond reasonable doubt and whether the respondents have shown that they were not wilful and mala fide in disobeying the court order.

Held, as the abridgement of the notice of set down in this matter may have contributed to the lapse in the proper observance of the rules of court, condonation for the failure to comply with the various rules of court without having to consider the principles ordinarily applicable to applications for condonation for the failure to comply with court rules should be granted.

Held, this exceptional dispensation, however, is not intended to be a precedent nor should it be misconstrued as such. It cannot be emphasised enough that the rules of court are important mechanisms for the smooth running of the court and it is imperative that legal practitioners intending to practice at the Supreme Court should study the rules thoroughly to ensure that they apply them correctly. After all, there are only a few key rules that the practitioner should be familiar with and observe to file an appeal in the Supreme Court correctly thereby avoiding costly and sometimes fatal consequences for non-compliance.

Held, there is reasonable doubt whether the non-compliance of the settlement agreement was wilful and mala fide.

Held, it is reasonable to infer that the decision not to comply with the court order was either taken on legal advice or at any rate was based on a different understanding or interpretation of the agreement.

Held that, contempt of court has not been established beyond reasonable doubt and that the court below was correct in its dismissal of the application. Teachers Union of Namibia v Namibia National Teachers Union (SA 26/2019) [2020] NASC (7 May 2020)

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Costs – error with court order – In this matter the appeal was struck from the roll ‘with costs inclusive of the costs of one instructing and one instructed legal practitioner’. The legal practitioner of the appellants in a letter to the registrar pointed out that the costs order was an error as appellants were legally aided litigants and that the respondent, for this reason, did not seek a costs order. As no prejudice or injustice was suffered by anyone the court ordered that the order contained in paragraph 39 of the judgment of 1 July 2020 is altered to read: ‘The appeal is struck from the roll.’ Beukes v Kubitzausboerdery (Pty) Ltd (SA 18/2019) [2020] NASC (20 July 2020)

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Declaratory order – s 9 of Police Act – unlawful discharge – Appellant received a notice of his discharge (dated 3 March 2016), from the Namibian Police Force in terms of section 9 of the Police Act 19 of 1990 (the Act). The discharge followed after he absented himself from his official duties for a continuous period exceeding 30 days without leave during the period of 18 January 2016 to the date of the notice. Correspondences commenced between the parties including a letter headed ‘appeal against termination of employment’ seeking the appellant’s reinstatement. On 4 April 2016, the Inspector-General (I-G) responded that the appellant absented himself from his duties for the period in question – as a result he was deemed to have been discharged by operation of law. The I-G invited the appellant to ‘appeal’ against his decision (not to reinstate him). That ‘appeal’ was dismissed by the Minister on 5 December 2016. On 5 December 2017, appellant brought civil proceedings against the Namibian Police under s 39 of the Act to challenge the legality of the discharge notice by seeking a declaratory order to the effect that appellant’s discharge was unlawful, invalid and of no effect. His case was that he reported for duty during the period in question and that he was not absent without leave and that he should be reinstated. He further argued that the respondent failed to prove the jurisdictional facts posited by s 9 and that the I-G accordingly had no power to issue the notice. Further, appellant argued that there should have been an enquiry and he should have been afforded the opportunity to address evidence concerning the question of his absence.

Respondents opposed the application on the merits and raised a preliminary point of non-compliance with s 39 of the Act which requires the institution of proceedings within 12 months of a cause of action arising. Their case was that the appellant’s cause of action arose on 3 March 2016 or at the latest on 4 April 2016 and that he had not instituted the proceedings within 12 months of those dates as required by s 39. Respondents argued that the application should be dismissed on that ground alone.

The court a quo found that the cause of action arose on 3 March 2016 when the appellant received his notice of discharge or on 4 April 2016 when the I-G conveyed to him that he would not be reinstated. It further found that in terms of s 39, the appellant was required to institute proceedings within 12 months from either of those dates, but instead filed on 5 December 2017. The court rejected the argument that appellant was entitled or obliged to exhaust statutory (internal) remedies under s 3A(1)(b) of the Act

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before he could institute civil proceedings. The court held that in terms of s 39, appellant’s claim had become prescribed and dismissed the application.

The issue for determination before this court is whether the appellant’s cause of action against the Namibian Police expired under s 39 of the Act.

Held that, with reference to the decision in Njathi v Permanent Secretary, Ministry of Home Affairs no hearing is contemplated or necessary before the coming into operation of the deeming provision set out in s 24(5)(a) of the Public Service Act 13 of 1995. This fundamental approach applies with equal Force to the provisions of s 9 of the Police Act in this matter.

Held that, the consequence of a discharge under s 9 follows by operation of law and not as a consequence of the exercise of any discretion on the part of the Inspector-General.

Held that, when the Minister considered the ‘appeal’ directed to him, he dealt with it as if it were an appeal under s 8. The Minister’s decision on the ‘appeal’ has no effect in law and the misconstrual of the Minster’s powers is irrelevant to these proceedings.

Held that, the appellant’s cause of action, as was also pleaded, arose on 3 March or 4 April 2016.

Held that, appellant instituting proceedings on 5 December 2017 was not within the 12 month period of the cause of action as required by s 39 of the Act. That provision is peremptory in requiring that the institution of proceedings within 12 months of the cause of action arising. This is quite apart from the fact that 5 December 2017 is in any event not within 12 months of 5 December 2016 in accordance with the civilian computation of time under the common law. In order to be within 12 months, the proceedings would need to have been instituted by 4 December 2017 as the 12 month period from 5 December 2016 would end on 4 December 2017.

It is held that, the appeal is dismissed with costs. Khariseb v Ministry of Safety and Security (SA 68/2018) [2020] NASC (1 July 2020)

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Domicile of choice – section 27 of the Immigration Control Act 7 of 1993 – The immigrant respondents entered Namibia on valid work permits issued in terms of s 27 of the Immigration Control Act 7 of 1993 (the ICA) and lawfully resided in the country for over two years. The High Court found that they did so with the intent to reside in Namibia for an indefinite period of time. The Immigration Selection Board sought to deport them from Namibia under the coercive machinery (arrest, detention and removal of prohibited immigrants) of Part VI of the ICA on the ground that their work permits had expired and they were unlawfully in the country.

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The respondents challenged their intended removals on the basis that, having severed their ties to their homelands (South Africa and Germany respectively); having formed the intent to make Namibia their new home and making financial investments here, they had acquired domicile in Namibia in terms of s 22(1)(d) of the ICA. The High Court agreed and granted them declarations to that effect. The appellants appealed to the Supreme Court on the ground that the High Court misdirected itself in holding that s 22(1)(d) of the ICA had not changed the common-law definition of domicile of choice which was acquired by proving: (a) lawful physical presence and (b) the intent to reside in Namibia indefinitely. The respondents relied on s 22(2) of the ICA which provides that domicile will not arise where the person relying thereon resided in Namibia ‘only by virtue of’ a work permit.

On appeal to the Supreme Court:Held that s 22(1)(d) read with s 22(2) had indeed changed the common law such that if an immigrant resides in Namibia ‘only’ on the strength of a work permit, they could not acquire domicile in Namibia.

Held that the adverb ‘only’ in s 22(2)(b) could not be interpreted in a way that extinguished the sovereign state’s prerogative to control immigrants’ entry into and residence in the country; that the conclusion reached by the High Court had that effect but also undermined the purpose and regulatory scheme of the ICA.

High Court’s judgment and order therefore set aside and appeal allowed, with costs. Minister of Home Affairs and Immigration v Prollius (SA76/2017) [2020] NASC (19 March 2020)

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Interpretation – regulation 10(c) – This appeal involves the interpretation of regulation 10(c) of the regulations, inter alia, relating to clinical biochemists made in terms of s 59 of the Medical and Dental Act 10 of 2004. Appellant holds the view that the use of the word ‘may’ in reg 10(c) allows him to examine and conduct tests on a patient who approaches him directly while the respondents maintain that appellant can only examine and conduct tests on a patient referred to him by a medical practitioner, as requested by that medical practitioner in the referral.

During October 2009, the secretariat of the first respondent (registrar and the assistant) and a legal consultant from the Ministry of Health and Social Services (MOHSS) had a consultative meeting with the appellant. At that meeting, they sought written views from the appellant what the scope of practice for clinical biochemists should entail. He could not provide his written view immediately as he had to travel. During his absence the first respondent came up with drafts. When appellant returned during March 2010 the drafts were made available to him and he was invited to another meeting where he made his views known.

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Subsequent to that meeting, he received by email the revised regulations which were to be recommended to the Minister for his approval and signature and later to be gazetted into law. The revised regulations met appellant’s approval.

Once the regulations were published on 16 June 2010, reg 10(c) was no longer couched in its original form, which appellant had sanctioned. Regulation 10(c) in its original form read:

‘A specialist clinical biochemist may treat without a referral any person who approaches him or her directly for a consultation.’

The promulgated reg 10(c), the subject matter of this appeal reads:-

‘A specialist clinical biochemist may examine and conduct tests on a patient referred to him or her by medical practitioner, as requested by that medical practitioner in the referral.’

After some serious consideration, he resolved that there was no difference between the enacted reg 10(c) and the draft reg 10(c) as the word ‘may’ was discretionary and not mandatory. In other words, he could still practice his profession as provided by the original or draft reg 10(c). Notwithstanding that resolve, he continued to engage the first respondent on the interpretation of reg 10(c), but first respondent remained fixed on the wording of reg 10(c).

On 5 July 2010, appellant wrote to the Minister seeking an amendment to reg 10(c). In that letter he made comparisons with other professions, where specialists are allowed to consult patients directly. The Minister declined the invitation and among other things stated that appellant’s comparisons with other unrelated professions was farfetched and that before he signed the recommendations from the first respondent he had submitted the draft regulations to the Ministry’s highest policy making body (PMDRC) for a thorough scrutiny and that the first respondent had prerogative powers to alter the recommendations. On 29 September 2010, appellant wrote to the Ombudsman’s office to complain about the first respondent. After its own investigation, the Ombudsman’s office informed the appellant that the first respondent made out a good case and closed their file. In the letter to the Ombudsman’s office, the first respondent made it clear that it did not enter into an agreement with the first respondent to recommend everything he proposed on the scope of practice of clinical biochemists as appellant never dealt with the first respondent, but with its secretariat.

About 3 October 2017, appellant approached the High Court in terms of rule 76 of that court to review and seek an order declaring the interpretation of the first respondent on the scope of practice of specialist clinical biochemists as unlawful, irrational and invalid, alternatively declaring the process followed by the first respondent leading up to the enactment of reg 10(c), which altered the original reg 10(c), unlawful.

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The respondents raised two preliminary points, namely unreasonable delay in instituting the review proceedings and the incompetent relief sought pertaining to the interpretation of the regulations.

On 3 May 2018, the High Court dismissed the application with costs on the first preliminary issue of unreasonable delay without dealing with the merits.

In the present case, appellant filed his notice of appeal out of time when it was filed on 6 June 2018. Rule 7(1) requires the notice of appeal to be filed within 21 days or such longer period as may be allowed on good cause shown after the judgment or order appealed against has been pronounced. No condonation application for the non-compliance was filed. The record was filed just on time on 2 August 2018. But appellant failed to enter into good and sufficient security for the first respondent’s costs of appeal before the record was lodged with the registrar as per rule 14(2) and failed to comply with rule 14 (3)(a) and (b). On 14 August 2018, the registrar wrote to appellant informing him that his appeal was deemed to have been withdrawn. Appellant deposited good and sufficient security after a year on 19 August 2019. No condonation application was filed, the application was filed 6 months later on 20 February 2020. No reasonable explanation for non-compliance was offered. Worse still, appellant omitted to seek reinstatement of the appeal.

The court reiterated the principles governing condonation applications and held that there was no reasonable explanation for non-compliance with rule 14. In fact, there was no appeal before court and condonation was not warranted.

Regarding the prospect of success, the court held that there were no prospects of success. The wording of reg 10(c) was clear and unambiguous, and it had to be given its literal or grammatical meaning, which is, appellant or any specialist clinical biochemist can only examine and conduct tests on a patient referred by a medical practitioner, as requested by that medical practitioner in the referral.

On the alternative argument, the court held that the process followed by the first respondent leading up to the enactment of reg 10(c) could not be faulted.

The court struck the appeal from the roll with costs. Kandando v Medical and Dental Council of Namibia (SA 29/2018) [2020] NASC (7 May 2020)

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Interpretation – section 65 of the Customs and Excise Act – The Attorney-General approached the Supreme Court to interpret the provisions of section 65 of the Customs and Excise Act as a court of first and last instance. The Attorney-General asserted that the interpretation of the Customs and Excise Act raised a constitutional question relating to the rule of law and may be referred by the Attorney-General to the Supreme Court for

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adjudication under the powers vested in the Attorney-General by Articles 87(c) and 79(2) of the Namibian Constitution.

In the petition of the Attorney-General, the court had to decide whether the interpretation of the legislation in question could be linked to the protection and the upholding of the Constitution so as to clothe the court with the power to decide the matter as a court of first instance as opposed to a court of appeal.

Having found that the issues relating to the interpretation of the law in question raised constitutional, urgent and essential matters that should be decided by the court as a court of first instance, the court found that the interpretation of section 65 of the Customs and Excise Act proffered by Jack’s Trading and upheld by the High Court was incorrect. The court held further that the correct interpretation was that subsections (1) and (8) of section 65 of the Act in question are two separate mechanisms that may be used by the Minister of Finance to introduce new duty or tax on specific imported goods. Ohorongo Cement (Pty) Ltd v Jack's Trading CC (SCR 1/2013) [2020] NASC (20 May 2020)

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Spoliation – This appeal stems from events that started with Fischer giving Seelenbinder a notice to retire (allegedly in terms of an agreement between the parties) as a member of Fischer Seelenbinder Associates CC (FSA) a civil engineering practice in which Fischer and Seelenbinder were equal members. An application in the court a quo by Fischer saw the court give judgment on 17 November 2017 which upheld Fischer’s contention, and ordered that Seelenbinder ‘must retire from (FSA) by 31 March 2016’. The court gave further orders as to the valuation of Seelenbinder’s member’s interest as at that date and ordered that Seelenbinder be paid the amount of his member’s interest as determined as well as his loan account.

Shortly prior to the handing down of the judgment, Fischer changed the locks to the entrance of the FSA offices. This meant Seelenbinder no longer had his own keys to access the offices at will. He could and did enter the offices during normal business hours, albeit intermittently, through pressing the doorbell and waiting for the receptionist to open the door for him. Armed with the court order of 17 November 2017, Fischer insisted that Seelenbinder vacate his office at FSA, but the latter refused to do so. Letters were exchanged between the legal practitioners of the parties. The upshot of this exchange of letters was that neither party was persuaded by other party and Seelenbinder continued to use his office at FSA. In essence Seelenbinder’s stance was that he remained a member until he received payment in respect of his membership and his loan account; whereafter he would vacate the premises of FSA.

On 23 April 2018 when Seelenbinder went to the offices of FSA in the afternoon, the receptionist refused to open the door and informed Fischer of Seelenbinder’s presence whereafter Fischer indicated to Seelenbinder that he would no longer be granted access

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to the offices of FSA. Seelenbinder launched a spoliation application on an urgent basis in the court a quo. The court a quo granted an order compelling Fischer to restore the possession of the offices to Seelenbinder and a punitive cost order - ordering that Fischer pay the costs of the spoliation application on an attorney and client scale inclusive of the costs of one instructing and two instructed legal practitioners. This is the judgment that is the subject matter of the current appeal.

On appeal, the court must determine whether Seelenbinder’s continued possession of the offices was such that he exercised the necessary direct physical control over the office he worked from?

Held that, access to the offices was an incident of the possession and control of such offices. The access was not something that could be separated from the possession and control of the offices and of the office of Seelenbinder of which, on the evidence, he was at all times the sole occupier.

Held that, Seelenbinder had possession of the office, with the intention of securing a benefit for himself. This is sufficient for the purpose of the mandament van spolie.

Held that, the court a quo did not authorise Fischer to evict Seelenbinder or authorise him to execute the retirement judgment in this specific manner and hence Fischer cannot rely on this to justify or defend his spoliation of Seelenbinder.

Held that, Fischer’s approach to claim counter spoliation against Seelenbinder about five months after the 17 November 2017 judgment is simply too late to qualify as a counter spoliation. He should have acted much earlier – but instead he decided to resolve the matter by bringing a rule 103 application.

Held that, the circumstances of the matter did not justify the punitive cost order in the court a quo. The nature of the spoliation coupled with the fact that the spoliation was committed on the advice of his legal practitioners and taking cognisance of Seelenbinder’s dogged determination in insisting on his joint possession in the face of the order that he had retired as an active member nearly two years earlier distinguishes this from the cases of self-help (without seeking advice) where the person(s) despoiled are seriously and adversely affected.

Held that, the appeal fails on the merits and succeeds against the punitive cost order. Fischer v Seelenbinder (SA 31/2018) [2020] NASC (8 June 2020)

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Summary judgement – liquidated amount in money – The appeal arises from an order of the High Court granting summary judgment against the appellant. The respondent instituted action against the appellant (its employee) suing for the costs of repair to its company vehicle. The appellant defended the action and the respondent

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moved for an application for summary judgment which the appellant opposed asserting that the claim was not based on a ‘liquidated amount in money’.

Satisfied that the summary judgment application met the requirements of rule 60(1)(a) and (b), the High Court concluded that the appellant did not raise a triable issue or bona fide defence and accordingly granted summary judgment.

Dissatisfied with the High Court’s judgment and order, the appellant noted an appeal, pertinently raising the issue that since the respondent’s claim as formulated was not for a liquidated amount in money, it was incompetent for the High Court to grant summary judgment. The respondent conceded as much on appeal and abandoned the judgment prior to the hearing of the appeal.

On appeal:Held that in our practice, a claim for patrimonial loss arising from the repair of a vehicle on account of negligent conduct by a defendant does not meet the test of ‘liquidated amount in money’ within the meaning of rule 60(1)(b) and that accordingly the High Court misdirected itself in finding to the contrary.

Held that the jurisprudence on summary judgment as concerns a liquidated claim is fairly well settled and ought to have been cited to the learned judge a quo but was not, resulting in the misdirection which is now common cause.

Held that counsel has a duty both to the client and the court. The latter duty compels counsel to cite to the court all authorities that are relevant to the dispute, both those that favour the client and those that favour the opponent. In the present case, counsel failed in his duty to the court, resulting in an erroneous judgment being entered against the appellant.

Held that the High Court had become functus officio after it made the incorrect order for summary judgment and that summary judgment is therefore no longer a live issue before that court. The Supreme Court alone has jurisdiction to consider the question of costs consequent upon the setting aside of the High Court’s order. Held furthermore that attorney client costs are permissible only where costs on ordinary scale would not constitute sufficient recompense for the expense to which the innocent party has been put.

Held that the court a quo should have refused the application for summary judgment and granted a special costs order as contemplated under rule 60(11)(a) and (b). The appellant is entitled to stay of the respondent’s action until the costs are fully paid.

Held that because of good prospects of appeal and importance of not allowing a wrong precedent to stand, the present was a proper case to grant condonation for late filing of appellant’s heads of argument to reinstate the lapsed appeal.

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Held that the appellant was entitled to a punitive costs order on appeal because the respondent persisted to oppose the appeal when it was untenable to do so.

Summary judgment set aside with costs both a quo and in the appeal and matter remitted to the High Court and action stayed until appellant’s costs are paid. Gariseb v Ultimate Safaris (Pty) Ltd (SA 51/2018) [2020] NASC (6 July 2020)

CRIMINAL LAW

Murder – burden of proof – Appellant was found guilty of murder with direct intent of his wife by the High Court on 23 January 2018. He was sentenced to 18 years imprisonment with 10 years suspended on certain conditions. Appellant’s application for leave to appeal was refused in the court a quo and he petitioned this court. This court granted him leave to appeal on 23 October 2018, however his appeal was confined to the issue as to whether there was a reasonable possibility that the deceased committed suicide.

In the court a quo, appellant had a two pronged defence. Firstly, he denied that he shot the deceased and secondly, in the event that it were to be established beyond reasonable doubt that he had shot the deceased, he pleaded a lack of criminal liability due to temporary non-pathological insanity caused by excessive alcohol consumption combined with the prescribe scheduled drugs he was taking. Appellant has maintained that he could not recall the shooting and that the deceased could have shot herself.

To be determined in this court is whether the State discharged the burden of proof of establishing the guilt of the appellant beyond reasonable doubt. This is in relation to the discrepancies of terms of the alleged admission, as direct evidence, made by the appellant to his son-in-law Mr Leeb (as the State’s key witness) on that fateful night in a telephone conversation. In his evidence, Mr Leeb - while noticing that the appellant was very drunk – stated that the appellant said to him ‘I have shot your mother. I had enough of that’. Under cross-examination, Mr Leeb acknowledged that there was a discrepancy between the statement he (in his evidence) attributed to the appellant to those contained in two prior statements made by him – the first on 10 April 2010 and the second on 14 April 2010. In the first statement, words attributed to the appellant were ‘Ek het nou genoeg gehad en het nou klaar gemaak met jou ma’ (‘I have now had enough and now finished with your mother’). Later in the course of the phone call, according to the first statement, the appellant upon an enquiry as to whether he was serious, stated that he ‘is serious and that he shot his wife’. Mr Leeb’s second statement differs in as much as the statement of having shot the deceased is made at the outset and does not follow an enquiry as to whether he was serious. Mr Leeb conceded that the appellant was very drunk – this was corroborated by most State witnesses who encountered the appellant at the scene. Mr Leeb stated in re-examination that when the appellant phoned him, he spoke ‘confusingly’. He conceded in cross-examination that he could have said that ‘your mother was shot’, which the appellant alleged he could have said.

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Held per Mainga JA:

That although Hermanus Leeb’s evidence was not wholly satisfactorily, he remains an honest and credible witness, had no axe to grind with his father in law, and had no reason whatsoever to implicate him in the commission of the offence. After all appellant’s version is contradictory, the one moment he says, he recalls what he told him, and then says he cannot exactly recall what he told him.

That the words ‘Your mother was shot’ required further enquiries, like, who shot her and therefore the words are inconsistent with the words ‘I had enough of that’, which is the evidence of Hermanus Leeb. The words ‘I had enough of that’ are consistent with the assaults he endured from the deceased over the years.

That the alleged discrepancies in the two statements of Hermanus Leeb are not existent, it is the same words stated differently or different words that carry the same meaning

That the appellant was the only one who knew where he hid the keys of the safe. His version that deceased saw where he removed the keys when they returned from Upington, rejected for the reason that regard had to the constant fear of his wife he lived under, it is improbable that he could have left the keys where the deceased allegedly saw they were removed.

That an argument ensued. There was evidence aliunde that whenever the deceased was under the influence of liquor, she was very aggressive and that day could not have been exceptional. After all the police officers who testified about that he informed them that they were watching the televised burial of Eugène Terre’Blanche, would not have known of that fact, or suck it from their thumbs except that the is the one who informed them.

That the liquor he had taken at the time of the incident is exaggerated as it is not supported by the evidence. There was only one half full bottle found on the table in the kitchen. The state of intoxication he was found in later, there exists a possibility that after the incident he drank further.

That the evidence of Dr Marx is not conclusive. His evidence is that there exists a possibility that the liquor and the tablets he had taken could have caused a temporal loss of memory at some point during that day.That proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to defect the course of justice. Miller v Minister of Justice (1947) ALL ER 372 at 373.

That there is no obligation upon the crown to close every avenue of escape which may be said to be open to an accused. R v Mlambo 1957 (4) SA 727 AD at 738A-B. In this case appellant is the only surviving witness of the incident.

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That viewing the evidence holistically, the appellant was the one who shot the deceased.

That the fact that the court a quo, expressed itself incorrectly on the circumstantial evidence test, does not make its conclusion bad in law.

That there is no evidence on record that suggests that the appellant should be entitled to the benefit of the doubt.

That there is no possibility that the deceased could have committed suicide.

Mainga JA would have dismissed the appeal.

Held per Smuts JA (Hoff JA concurring):

That these statements and concessions, taken with the totality of the evidence including the appellant’s evidence and the application of the cautionary rule with regard to the only direct evidence in the form of the alleged admission, give rise to a reasonable doubt and the reasonable possibility that the deceased could have committed suicide, thus entitling the appellant to an acquittal.

That the terms of the admission are of crucial and material importance being the only direct evidence of the actus reus tendered by the State. Contradictions as to its terms by the single witness to that alleged admission cannot be brushed aside.That contradictions do not necessarily lead to the rejection of a witness’s evidence as a credibility issue. They may simply be indicative of an error.

That the credibility of Mr Leeb is not the issue but rather the reliability of his evidence of the terms of an alleged admission and in fact whether he made an error or could have been mistaken as to its terms.

That caution is to be followed in evaluating the evidence of a single witness – see S v Noble 2002 NR 67 (HC) and R v Mokoena 1932 OPD 79.

That the lack of clarity concerning the terms of the alleged admission, and the doubt which this gives rise to, are to be considered together with the appellant’s explanation of denying the shooting and postulating suicide.

That applying this test to the facts of this matter, the weakness in the State’s case resting upon an admission lacking in clarity where it is conceded that the hearer could have been materially mistaken and there being a reasonable possibility that the appellant’s version may be true, it follows that the State has not proven the appellant’s guilt beyond reasonable doubt and that he was entitled to an acquittal – see S v HN 2010 (2) NR 429 (HC).

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The majority concluded that the appeal succeed and the appellant’s conviction and sentence be set aside. Barnard v State (SA 59/2018) [2020] NASC (7 May 2020)

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Permanent stay of prosecution – The first respondent is a police officer against whom the Prosecutor-General (PG) withdrew criminal charges of corruption and extortion after the case had been pending in the Magistrate’s Court for about 6 years. The charges were withdrawn after the magistrate refused the State a further remand. The PG took no further steps after the withdrawal and about four years after the charges were withdrawn the first respondent brought proceedings in the High Court for permanent stay of prosecution on the ground that he was not tried within a reasonable time as contemplated in Art 12(1)(a) and (b) of the Namibian Constitution. Although satisfied that the first respondent contributed to the delay in material respects prior to the withdrawal and had not suffered trial related prejudice arising from the delay, the High Court found that there was actionable unreasonable delay by the PG in not reinstituting charges after the withdrawal and that there were exceptional circumstances justifying permanent stay.

On appeal to the Supreme CourtHeld that the withdrawal of charges in terms of s 6(a) of the Criminal Procedure Act 1977 had the consequence that the first respondent was no longer an accused as contemplated in Art 12(1)(b) of the Constitution, and therefore it was incompetent for the High Court to grant permanent stay as such an order can only extend to a person who is an accused.

Held order of stay set aside and replaced with one dismissing application and no order as to costs both a quo and on appeal. Prosecutor-General v Namoloh (SA 4/2019) [2020] NASC (19 August 2020)

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Review – section 16 of the Supreme Court Act – sentence – The accused was arraigned in Okahao Magistrate Court on a charge of stock theft. He was charged with theft of three goats to the value of N$2400. He pleaded guilty to the charge and after being questioned pursuant to s 112(1)(b) of the Criminal Procedure Act (CPA) to ensure that he admitted all the elements constituting the charge, he was accordingly convicted. After his conviction, the accused in evidence in mitigation indicated that he was single, 31 years old, illiterate, a father of one child, employed earning N$700 per month and suffered from eye problems. He stated in response to the questioning in terms of s 112(1)(b) that his motive for the theft was that he wanted money for ‘December and the new year to buy food’. All the goats were retrieved, so the complainant suffered no loss. The prosecutor submitted that a sentence of imprisonment of two years would be appropriate. The magistrate however sentenced the accused to 18 months imprisonment on 3 June 2019.

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The matter was forwarded to the High Court pursuant to s 304 of the CPA as an automatic review. The High Court set the sentence aside and remitted the matter to the magistrate and in effect directed her to increase the sentence.

The matter has been referred to this court by the Registrar of the High Court at the request of the judge who authored the judgment setting the sentence aside and directing a more severe sentence as this judge had been informed that the High Court did not have the power to increase the sentence where a matter came before that court on automatic review pursuant to s 304 of the CPA.

The order of the High Court setting aside the sentence of the accused and directing the magistrate to impose a more severe sentence is herewith set aside.

The original sentence imposed on the accused of 18 months imprisonment on 3 June 2019 is reinstated and the accused (if in custody) shall be deemed to have commenced his period of imprisonment on 3 June 2019. S v Matine (SCR 2/2020) [2020] NASC (28 July 2020)

ELECTROL LAW

Section 97 of the Electoral Act 5 of 2014 – the use of voting machines – On 17 October 2014, the then Minister responsible for regional and local government published a notice in the Government Gazette putting into operation the Electoral Act 5 of 2014 (the Act). The Minister determined that the Act would come into operation on the date of the publication of the notice in the Gazette. However, such promulgation, according to the Minister, excluded the provisions of subsections (3) and (4) of section 97 of the Act. Section 97 makes provision for the use of voting machines in elections. The subsections that were excluded from coming into operation with the rest of the section provide that the use of voting machines was subject to the simultaneous utilisation of a verifiable paper trail and that where the results of the voting machines and the results of the paper trail did not agree, the paper trail results were to be accepted as the election outcome for the polling station concerned. The partial promulgation of the Act meant that elections conducted after the Act came into operation would take place by way of voting machines, but without a verifiable paper trail.

In this case, the applicants were all candidates in the 2019 Presidential election, held together with the election of members of the National Assembly, on 27 November 2019. The elections took place without a verifiable paper trail. The applicants approached the Supreme Court with the application for the court to set aside the 2019 Presidential election and order fresh elections ‘without undue delay’. The application was brought in terms of section 172 of the Act, which says, in effect, that any challenge relating to the return or outcome in a Presidential election must be decided by the Supreme Court as a court of first and final instance.

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The applicants argued that for the result of the Presidential election to be set aside, the court should first set aside the decision of the Minister to partially put into operation section 97 of the Act. The applicants alleged that the selective implementation of section 97 amounted to a breach of the constitutional principles of separation of powers, democracy and the rule of law.

They also asked that the decision of the Electoral Commission of Namibia (ECN) to use electronic voting in the election without a paper trail be set aside.

The applicants also referred to a number of alleged irregularities relating to the use of Electronic Voting Machines (EVMs) during the election and to concerns relating to the safe custody of EVMs before the election.

The respondents opposed the application on the merits and raised certain preliminary points of law. They argued that the court did not have jurisdiction and the competency to set aside the decision of the Minister and to set aside the decision of the ECN to use EVMs without a paper trail. They asserted that section 172 of the Act does not authorise the Supreme Court to grant relief relating to the Minister’s decision as a court of first instance and final recourse as such decision is not related to the Presidential election. The applicants should have gone to the High Court, which according to the respondents is the correct place to decide the issues raised by the applicants.

The respondents also argued that the applicants unreasonably delayed launching proceedings reviewing the Minister’s decision. They said that the decision was made in 2014; the applicants had known about it since then. Some of the applicants participated in the 2014 elections as Presidential candidates, but did not challenge the legality of that election. It was also the respondents’ position that the issue of the lawfulness of conducting elections with EVMs but without a paper trail had already been tested and determined by the High Court in Maletzky & others v Electoral Commission of Namibia & others 2015 (2) NR 571 (HC). They submitted that this judgment was not appealed against. It remained the law on that issue until such time that it had been set aside by the Supreme Court. The ECN was therefore entitled to rely on it.

On the issue of alleged irregularities, the respondents argued that no credible evidence proving irregularities was established by the applicants. The allegations based on the custody of the EVMs and the beeping sounds emitted by the EVMs during the election have been dealt with by witnesses who had first-hand information on the issues raised by the applicants. The version of the respondents has not been contradicted. It is not far-fetched or untenable. As such, it should be accepted by the court.

Having considered the application, the Supreme Court held that the applicant’s challenge falls within the provisions of section 172 of the Act. Therefore, the Supreme Court has jurisdiction to entertain the application.

The court further held that the narrow approach to the interpretation of section 172 proposed by the respondents was not consistent with the use of the wide word ‘any’ in

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the section. The position is also contrary to the constitutional values the electoral law seeks to promote.

It was also held, that although the applicants should have challenged the Minister’s decision well before elections, given the important constitutional issues being raised in the application, the matter must be heard and the issues decided.

It was accordingly held that the Minister’s determination was unconstitutional and invalid and was therefore set aside. The use of the phrase ‘subject to’ in section 97(3) meant that the use of EVMs under section 97(2) is conditional upon complying with section 97(3) and (4) of the Act. The court reasoned that section 97 was a composite and integrated provision and as such, subsections (3) and (4) were required to be put into operation together with the first two subsections.

As to the allegations of irregularities, the court held that there was no evidence of irregularities or of the impact the alleged irregularities has had on the Presidential election.

In determining the appropriate relief, the court took into account Article 25 of the Namibian Constitution and other relevant factors and declined to set aside the election and direct a rerun.

About the costs of litigation, the court reasoned that although the applicants did not persuade the court to set aside the Presidential election and to order a fresh election, they have vindicated an important constitutional principle of separation of powers. As such, they were entitled to costs. However, as they were only partially successful, they were not awarded a full measure of their costs. Instead, they were awarded two-thirds of the costs. Itula v Minister of Urban and Rural Development (A 1/2019) [2020] NASC (5 February 2020)

INSOLVENCY LAW

Winding-up – The High Court simultaneously ordered the winding-up of Rockview Investment Number Seventy One CC (the appellant) and a related entity VXK Investments Thirty (Pty) Ltd (VXK) – entities registered in Namibia - in accordance with a liquidation application instituted by Nottingham Incorporated (Nottingham). Nottingham was a corporation incorporated in the state of Georgia in the United States of America (USA). VXK and Nottingham entered into a sale of shares agreement. The appellant stood suretyship and was joint principal debtor for certain of VXK’s obligations under this sale agreement. Subsequent to the sale agreement, Nottingham was placed under receivership by a court in Georgia, USA. The court appointed receiver (in the name of Nottingham) instituted the arbitration proceedings against VXK (in South Africa), arising from the sale of shares agreement and made the resultant award an order of court in South Africa and later in Namibia. The receiver thereafter successfully instituted liquidation proceedings against the appellant and VXK.

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The appellant is appealing the High Court’s winding-up order. In the court a quo, appellant raised a number of preliminary and technical points and a defence on the merits.

On appeal however, the issues narrowed to whether the respondent had standing (locus standi in judicio) to bring the application and whether the defence raised on the merits meets the threshold of establishing that the respondent’s claim is bona fide disputed and on reasonable grounds.

Appellant argued that the founding affidavit and court order did not establish standing for the receiver to bring the winding-up proceedings on behalf of Nottingham. It further argued that for the receiver to bring these proceedings, recognition was a prerequisite – reference was made to the case of Miller & others NNO v Prosperity Africa Holdings (Pty) Ltd 2019 (4) NR 905 (SC). In the absence of recognition, appellant argued that it was not competent for the receiver to institute proceedings on behalf of the respondent. On the issue of the defence raised, appellant argued that its suretyship was only in respect of the obligation to deliver granite to the value of US$2 500 000 (as a portion of the purchase price) and the respondent failed to place orders or to receive granite from VXK as per clause 4.3 of the sale of shares agreement (the defence of frustration). Appellant submitted that Nottingham was in breach of its obligation to VXK and frustrated VXK’s ability to deliver granite under clause 4.3.

Respondent argue that the court order appointing the receiver provided authority for the bringing of the application. It argued that the decision in Miller is distinguishable on the facts (in Miller, the company’s capacity and that of its directors was curtailed by the liquidation – only the liquidators could act on behalf of the company). Respondent submitted that the appointment of a receiver did not alter Nottingham’s juristic status. It was thus Nottingham and not the receiver who instituted the arbitration proceedings and that the award was owing to Nottingham and not to the receiver. It further argued that it was Nottingham who approached the court to liquidate the appellant and not the receiver who would have brought the application in his own name nomine officio. The respondent further argued that the defence of frustration had been rejected by the arbitrator in the proceedings against VXK (the appellant was however not party to those proceedings).

Held that, the receiver was appointed to manage the affairs of Nottingham, and acting in that capacity, the receiver launched these proceedings. As stated in Miller, once a company is liquidated, its capacity to act is curtailed and its directors and management can no longer represent it, with the consequence that the liquidators (or receivers) are required to do so subject to the powers conferred upon them (by court order and applicable legislation).

Held that, the receiver brought the winding-up application on behalf of Nottingham. Whether or not the application was brought in the name of Nottingham or in the name of the receiver nomine officio, this court would have regard to substance and require that

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the receiver first obtain recognition by the High Court in order to do so. This was not done. In the absence of recognition, the receiver does not have standing to bring these proceedings.

Held that, the institution of winding-up proceedings against the appellant on behalf of Nottingham is also not authorised by the court order. The receiver relies upon the court order for the authority to bring the proceedings and in the absence of it being supplemented by an appropriate power, these proceedings cannot be said to be authorised by the court order.

Held, on the issue of locus standi, this court finds that, the respondent has not established locus standi in judicio to bring the winding-up application and that the application should have been dismissed for this reason.

It is held that, the fundamental principle developed from the common law that a person is not permitted ‘to improve his condition by his own wrongdoing’.

Held that, this defence was raised by VXK in the arbitration proceedings and dismissed by the arbitrator.

Held that, the appellant was not party to those arbitration proceedings and the arbitrator’s findings between Nottingham and VXK are not binding upon the appellant and are irrelevant for a consideration of the defence raised in respect of the appellant’s indebtedness to the respondent’s claim.

That, there are thus prospects that the appellant would in any event meet the low threshold of establishing a bona fide dispute of indebtedness on reasonable grounds.

The appeal succeeds with costs. Rockview Investment Number Seventy One CC v Nottingham Incorporated (SA 53/2018) [2020] NASC (11 August 2020)

LAW OF DELICT

Damages – malicious continuation of prosecution – The Minister of Safety and Security, the Prosecutor-General and the government appealed to the Supreme Court against the decision of the High Court giving judgment in favour of Mr Chunga for alleged malicious continuation of Mr Chunga’s prosecution. Mr Chunga was one of the persons arrested and prosecuted for high treason, murder and other crimes arising from attacks in and around Katima Mulilo on 2 August 1999. Mr Chunga was discharged at the end of the State’s case following a protracted criminal trial in the High Court. After his discharge, Mr Chunga sued the government and the Prosecutor-General for damages for malicious prosecution, alternatively for the continuation of his prosecution. The High Court dismissed the claim for malicious prosecution, but allowed the alternative claim for malicious continuation of prosecution without reasonable and

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probable cause. The High Court found that the prosecution should not have continued to prosecute Mr Chunga as there was no evidence implicating him.

In the Supreme Court, the governmental appellants argued that the High Court erred in approaching the evidence in a civil trial as if it was evaluating evidence in criminal case. It was argued that the witness statements implicating Mr Chunga led the prosecution team to honestly and reasonably believe that Mr Chunga possessed and executed a common desire with other people he was jointly charged with.

Mr Chunga, on the other hand, submitted that the prosecutorial team lacked reasonable and probable cause and an honest belief in his guilt, especially after the prosecutorial team had assessed the witnesses’ evidence in November 2010 and found it necessary to instruct the police to further investigate accused persons but no evidence was found against Mr Chunga. Therefore, there was no evidence to have had continued prosecuting him. He also argued that the prosecutors’ opposition to his application in terms of s 174 of Criminal Procedure Act for a discharge at the conclusion of the State’s case was evidence of malice on their part.

Held, the requirement of reasonable and probable cause has both an objective and subjective element. Objectively, the information available to the prosecution must be sufficient for a reasonable person to conclude that the plaintiff had committed the crime or offence charged.

Held, subjectively, the prosecutor must have had an honest belief in the plaintiff’s guilt, but ‘honest belief’ is not the same as the belief on the part of a judge who sits in the judgment of an accused person in a criminal trial. The requirement is based on good faith and professional assessment by a prosecutor of the information at his or her disposal.

Held, the High Court and Mr Chunga conflated the civil and criminal standards which are different. Facts required to establish the actual guilt of the accused in the criminal case are different from those required to establish a reasonable bona fide belief in the guilt of the plaintiff in a civil case.

Held, the information at the disposal of the prosecution included also allegations in witness statements implicating Mr Chunga. Therefore the prosecution did not lack reasonable and probable cause to continue with his prosecution merely because Mr Chunga was not identified during the criminal trial. Appeal upheld. Minister of Safety and Security v Chunga (SA 1/2018) [2020] NASC (7 May 2020)

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Damages – malicious continuation of prosecution – This appeal is against a judgment and order granted by the High Court in favour of Mr Simon Elvin Kauhano (the respondent) against the second appellant, the Prosecutor-General (the PG) and the third appellant, the Government of the Republic of Namibia (the Government). The

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decision against these appellants followed on a claim for malicious continuation of prosecution without reasonable and probable cause.

The High Court held that the PG maintained the prosecution of the respondent maliciously and without reasonable and probable cause beyond November 2007. It also held that the Government was vicariously liable for the conduct of the public prosecutors who conducted the criminal proceedings against the respondent. The court then ordered that the two appellants were liable to the respondent for damages.

In this court, the appellants argued that the court a quo misdirected itself when it held that the PG and her team lacked reasonable and probable cause and acted with malice when the prosecution of the respondent was maintained beyond November 2007. It was also contended that on the evidence on record, the PG and her team had an honest belief in the guilt of the respondent. The information contained in the witness statements established reasonable and probable cause to maintain the prosecution of the respondent.

The respondent supported the judgment of the court a quo and submitted that the prosecution was aware that witnesses had failed to identify the respondent in court and that there was no inculpatory evidence against him. Despite this, the prosecution of the respondent was maintained until his discharge. This conduct showed that the PG and her team did not have an honest belief in the guilt of the respondent.

Held, that the submissions as well as contentions made on behalf of the respondent were based on the wrong approach to assessing evidence in a claim for malicious prosecution.

Held, that the test for determining the conviction of an accused person in a criminal trial was inherently distinct in nature from that employed in cases of malicious prosecution.

Held, that the criminal court focused on the question whether the evidence established the guilt of the accused beyond reasonable doubt whereas the civil court in a claim for malicious prosecution was pre-occupied with the question whether on the facts and evidence on record, the prosecution had been instituted and/or maintained without reasonable and probable cause and actuated by malice.

Held, that the information contained in the witnesses’ statements on the basis of which a decision to prosecute the respondent was taken, if found to be true, indeed established a reasonable and probable cause for the institution and maintenance of the prosecution. The appeal succeeded. Minister of Safety and Security v Kauhano (SA 56/2018) [2020] NASC (20 May 2020)

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Damages – malicious continuation of prosecution – The respondent, Mr Rosco Matengu Makapa, together with 125 co-accused persons were arrested and charged

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with several offences including high treason, murder, attempted murder, sedition and malicious damage to property for their alleged role in the event that took place in Katima Mulilo on 2 August 1999, where several State installations were attacked by a group of people. The purpose of the attack was the apparent secession of the then-Caprivi (now Zambezi) region from the rest of Namibia. At the close of the State's case in the criminal proceedings, Mr Makapa was discharged in terms of section 174 of the Criminal Procedure Act 51 of 1977. Mr Makapa, following his discharge, instituted an action against the appellants (defendants in the High Court) for damages suffered as a result of alleged unlawful arrest and subsequent malicious prosecution respectively. Mr Makapa claimed N$30 436 850,68 in damages from the appellants. The main claim was amended to introduce an alternative claim for the wrongful and malicious continuation of the prosecution. After hearing arguments on behalf of the parties, the High Court dismissed the main claim of malicious prosecution, but upheld the alternative claim arising from an alleged ‘malicious continuation of the prosecution without reasonable and probable cause.’ The court did not decide the constitutional claim for the reason that the claim based on maliciously continuing with the prosecution had succeeded.

Disgruntled by this decision, the appellants noted an appeal to the Supreme Court against that decision of the High Court. The appellants argued first that there was no need to develop the common law and secondly, that the High Court erred in finding that the prosecutorial team lacked reasonable and probable cause to continue with the prosecution of the respondent. The appellants further argued that the High Court was wrong to infer malice from the actions of the PG and Mr July, the lead prosecutor in the criminal case.

The Supreme Court agreed with the appellants’ arguments and found that at all times during the prosecution, there was reasonable and probable cause to continue the proceedings against Mr Makapa. The Supreme Court also found that there was no need for the High Court to have developed the common law. This court further found that the High Court adopted the wrong standard in assessing the evidence to determine whether or not the appellants had a reasonable and probable cause to maintain the prosecution up to the discharge stage. The standard of evidence required to establish reasonable and probable cause in a civil claim for malicious prosecution is not the same standard of evidence required to establish guilt in a criminal case. The Supreme Court evaluated the information available to the prosecutorial team at the time and concluded that they had reasonable and probable cause to manintain the prosecution and showed no evidence of malice. As to the alternative claim for constitutional damages, the Supreme Court declined to decide this issue as a court of first and final instance. It referred it back to the High Court for detemination. Minister of Safety and Security v Makapa (SA 35/2017) [2020] NASC (5 February 2020)

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Damages – malicious continuation of prosecution – The respondent was amongst the 125 people who were arrested following the violent and fatal attacks in Katima Mulilo in 1999. During these attacks, people were killed and properties were destroyed. The respondent was said to have been involved as an organiser and supporter of the United Democratic Party and was indicted together with approximately 122 accused persons on 278 high treason charges. He was prosecuted in what became known as the Caprivi Treason trial and later discharged in terms of s 174 of the Criminal Procedure Act.

Following the discharge, the respondent instituted a delictual action against the appellants claiming damages for malicious instigation of prosecution. Alternatively to that claim, the respondent sought damages for malicious continuation of the prosecution. He also sought constitutional damages for the alleged breach of certain constitutional rights.

Regarding the main claim, the High Court considered the evidence available to the State as constituting reasonable and probable cause and absolved the Minister. It also concluded that there was a probable and reasonable cause for the prosecution to initiate the proceedings. The court held that the prosecution did not act with malice. It did not decide the constitutional claim. Regarding the alternative claim the court, however, found for the respondent, hence this appeal.

On appeal this court held that, due to certain fundamental flaws a quo, it is entitled as a court of appeal, to interfere with the portion of the judgment of the High Court specifically with regard to whether that court misdirected itself on the facts and the law. Relying on this court’s earlier decisions in Minister of Safety and Security & others v Mahupelo (SA 7/2017) [2019] NASC 2 (28 February 2019) (Mahupelo) and the applicable legal principles, the court held that the respondent failed to establish reasonable and probable cause regarding his alternative claim.

As to the further alternative claim for the alleged violations of various constitutional right, the court, on appeal, held that for the same reasons pronounced in Mahupelo the matter should be remitted to the High Court. Accordingly, the court upheld the appeal in part, referred the question regarding the constitutional claim back to the High Court and made no order as to costs. Minister of Safety and Security v Mutanimiye (SA 47/2017) [2020] NASC (5 February 2020)

MOTOR VEHICLE ACCIDENT

Chain reaction motor vehicle collisions – This matter started off as an appeal and a cross-appeal against the findings and orders made by the court a quo. The case before the court a quo concerned what is commonly referred to as a ‘chain reaction’ motor vehicle collision when three or more vehicles hit one another in a series of rear-end collisions that are caused primarily by the force of the first collision. In the present

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matter, the chain collision took place when a minibus driven by the first respondent collided with the rear-end of the third respondent’s (cross-appellant’s) stationary Mercedes Benz motor vehicle driven by the third respondent, which force of collision propelled the Mercedes Benz into the rear-end of the appellant’s stationary BMW motor vehicle. Both the BMW and the Mercedes Benz motor vehicles were at the traffic lights waiting for the lights to change in their favour.

The appellant appealed against the finding by the court a quo which found that the first respondent was not negligent towards her and that his negligent driving did not cause damages to her. The court thus dismissed her claim and ordered the appellant to pay the first and second respondents’ costs.

The third respondent (cross-appellant) filed a cross-appeal against the court a quo’s finding that it was his negligent driving that caused the collision between the Mercedes Benz motor vehicle and the appellant’s BMW motor vehicle and ordered him to pay the appellant’s claim including costs. Prior to the appeal being heard, the appellant withdrew her appeal and tendered the respondents’ costs. Accordingly, only the cross-appeal remained before court.

Held that the court a quo misdirected itself and erred in law and fact in its application of the principle of res ipsa loquitur – the facts speak for themselves – in finding that the third respondent (cross-appellant) was negligent and that his negligence caused his Mercedes Benz motor vehicle to collide with the rear-end of the appellant’s BMW.

Held further; that on the proper application of the res ipsa loquitur principle, the presumption of negligence which arises upon the application of this principle did not operate against the third respondent (cross-appellant) but against the first respondent whose minibus collided with the third respondent’s stationary Mercedes Benz. It was the first respondent upon whom the evidential burden rested to negate the presumption of negligence against him.

Held further that on the evidence before court a quo, the court should have found that the first respondent had failed to satisfactorily explain his conduct and thus failed to discharge the evidential burden on him created by the presumption.

Held accordingly that the cross-appeal succeeded, but that there will be no order of costs both a quo and in the cross-appeal due to the fundamental errors committed by the court a quo. Dausab v Hedimund (SA 24/2018) [2020] NASC (7 May 2020)

POCA

Forfeiture application – The Prosecutor-General of Namibia (the appellant) filed an appeal in this court against the decision of the High Court declaring her application for a forfeiture order in respect of certain properties of the respondents in terms of section 51

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of the Prevention of Organised Crime Act 29 of 2004 (POCA) a nullity and struck it from the roll with costs.

In the High Court, the appellant launched an urgent ex parte application for a preservation of property order in terms of s 51 of POCA, which was granted by the court on 24 December 2015. Having duly served the respondents with the preservation order, the respondents delivered to the appellant a written notice of their intention to oppose the granting of a property forfeiture order on 4 February 2016. In their notice to oppose, the respondents elected to have 13 Pasteur Street, Windhoek West as their chosen address at which they would receive further notices relating to any further proceedings affecting the properties as required under s 52(5) of POCA.

On 29 April 2016, the appellant launched her application for the forfeiture of the respondents’ properties in terms of s 59(2) read with s 61 of POCA. The respondents raised several points in limine. Firstly, the respondents submitted that the appellant failed to comply with s 65(1) of POCA in that when she launched the property forfeiture application, the respondents were not issued with the notice of her intention to do so by the Deputy-Sheriff or the Police. Secondly, the respondents submitted that the notice of the appellant’s intention to proceed with the application for the property forfeiture was not delivered to the address of the respondents’ legal representative, which was their chosen address in terms of regulation 4(8) of the POCA regulations. Ultimately, the question before the court revolved around the issue of whether the application for the preservation of the properties and the application for their subsequent forfeiture are two separate, distinct procedures, each with its own case identity, thus raising the question whether the forfeiture application was a new application, separate from that of the property preservation application and whether the appellant had to invoke rule 65(1) of the High Court Rules.

Before determining the appeal against the decision of the High Court, this court was ceased to deal with the preliminary issues raised by the appellant‘s application for condonation for the non-compliance with rules 5 and 21(1) of the Rules of the Supreme Court. Those rules concern the late submission of the appellant’s bundle of authorities and her failure to lodge the bundle of authorities simultaneously with the heads of argument in the main matter respectively.

Ad the condonation applicationHeld that an application for condonation is not there for the asking merely on the basis that a respondent is not opposed to it being granted. Courts will condone non-compliance with their rules, exercising their discretion based on a number of judicially established factors in the context of the surrounding circumstances of a case.

Held that an application for condonation must be submitted as soon as the delay has come to notice. If not, a reasonable, accurate and acceptable explanation for the delay must be provided.

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Held that the prospects of success is an additional consideration in determining whether condonation will be granted.

Held that the appellant’s legal representative and the explanation for their non-compliance with the rules was not reasonable, however as soon as the legal representative realized her error she treated the matter with utmost urgency thereby mitigating the negative impact of the lateness of the bundle of authorities.

Held that although the High Court did not address the merits of the main matter, the prospects of whether this court is likely to overturn the decision of the High Court in relation to the interlocutory question of the applicability of rule 65(1) in the property forfeiture application must be considered in the determination of the application for condonation in this matter.

Ad the points in limineHeld that the property forfeiture proceedings in the context of the application of rule 65 of the High Court rules manifest in a single, but two-stage procedure constituted first by the process that preserves the property, followed by the process forfeiting it to the State.

Held that the High Court was therefore wrong in considering the forfeiture application as a distinct, separate procedure from that of the preservation application.

Held that the High Court was therefore wrong in striking the forfeiture application from the roll. 

Held further that this court refrains from considering the application for the forfeiture of the properties, remitting that matter back to the High Court for a decision.

The appeal is upheld. Prosecutor-General v Paulo (SA 73/2017) [2020] NASC (24 June 2020)

PROPERTY LAW

Eviction – customary land rights – s 28 of the Communal Land Reform Act 5 of 2002 – The plaintiff instituted an action against the defendants in the High Court for an eviction order from a land that he has the right to occupy pursuant to a customary land right recognised in terms of s 28 of the Communal Land Reform Act 5 of 2002 (‘the Act’). The defendants raised a special plea. They raised two defences: (a) with reference to s 43 of the Act and regulation 35, the defendants claimed that the plaintiff did not have locus standi to institute the claim against them and (b) on the merits, a defence that necessary and useful improvements had been made to the land in question by the defendants to the value of N$800 000 and that until payment in this amount had been made by the plaintiff, no eviction could take place (in other words the defendants aver they are entitled to exercise a retention lien pending payment for the improvements). The defendants filed a counterclaim against the plaintiff. They claimed

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for the N$800 000 they alleged was spent to make improvements on the land in question. Plaintiff defended the counterclaim by claiming that the defendants are precluded from claiming for the alleged improvements by virtue of s 40.

The court a quo upheld defendants’ special plea relating to plaintiff’s lack of locus standi as he was not a Chief nor did he act for the Traditional Authority. Plaintiff’s claim was thus dismissed. Likewise, in respect of the counterclaim, the court a quo upheld the plaintiff’s point that the defendants were not entitled to compensation. The result was that both the claim and counterclaim were dismissed with costs.

The court a quo referred to High Court cases that dealt with customary law land rights preceding this one – ie in Kanguatjivi v Kanguatjivi, the issue locus standi was not questioned nor was s 43 of the Act or reg 35 raised by the defendant. The court never considered the impact of these legislative instruments. The decision in the Kanguatjivi matter was thus per incuriam and not much relevance to its decision was based on the impact of the mentioned legislation/regulation. In Ndevahoma v Shimwooshili & others, the court found that the plaintiff in that case lacked locus standi to evict the defendant. The court based its findings on two reasons: (a) that an ejection order can only be granted to an owner of the property and (b) that s 43 of the Act limits such proceedings for eviction to Chief, Traditional Authorities or the Land Boards. Although the court a quo referred to both decisions, it followed the reasoning in the Ndevahoma case in its decision.

This court must determine the following issues: whether the plaintiff has the locus standi to institute eviction proceedings against the defendants; how the applicable sections of the Act are to be interpreted and whether the defendants can exercise a retention lien and claim for improvements made on the land?

In the context of the Act, it is clear and just as an important objective that, what was intended was to provide holders of customary land rights security of tenure and by way of registration, a public register of their title is kept so as to avoid any confusion as to their rights. Common law provides a vindicatory action to a possessor, the only way to interpret s 43 of the Act so as to do away with this common law right is to insert the word ‘only’ in front of s 43(2) to make it read ‘only a Chief or a Traditional Authority or the Land Board concerned’ may evict a person who occupies land without it being allocated to such person. Whereas the Act vests the relevant Chief, Traditional Authority or the Land Board with locus standi as the statutory appointed administrators of communal land to evict persons who occupy land not allocated to them, it does not mean that other persons who have the right to evict such persons are no longer vested with such a right.

Held that, the plain meaning of s 43 does not give the Chief, Traditional Authority or the Land Board the sole right to evict persons from land not allocated to them. The only change to the common law is that it gives the Chief, Traditional Authorities and the Land Board locus standi to bring eviction proceedings in respect of land they are neither the owners nor the possessors of. As mentioned, there are other persons who may have

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such rights under common law and there is no indication in the Act that the intention was to abolish their common law rights.

Held that, to grant a person a right which is registered and then say that such person cannot personally protect that right seems to be an absurdity.Held that, to make the right dependent on the decision of a functionary is to water down the right to such an extent that it goes against the grain of the Act which seeks to establish a register of right holders with the concomitant security of tenure.

Held that, s 43 of the Act does not prevent a person who has a right to communal land allocated to him or her from protecting such right through the use of a vindicatory action available to possessors under common law.

Held that, reg 35, criminalises conduct that is supposedly contrary to s 43 of the Act (which means that the institution of eviction proceedings by the plaintiff may accordingly constitute a criminal offence) and same is invalid as it creates an offence contrary to the Act. As found above, s 43 does not prevent persons who hold recognised customary law land rights from launching eviction proceedings against occupiers of their allotments. Regulation 35 creates an offence where there is no offence in the Act.

Held that, reg 35 is ultra vires the provisions of the Act on the basis of this interpretation and is declared invalid.

It is held that, the plaintiff has locus standi to seek eviction of the defendants from the property he possesses pursuant to the common law and that the Act does not prohibit this. The decisions in the Ndevahoma case and in the court a quo were wrong on this issue.

Defendants resisted the eviction claim in their plea based on the right to retain the property until they are compensated an amount of N$800 000 for necessary and useful improvements they allegedly made to the land. Plaintiff pleaded that the defendants are precluded by s 40 of the Act from claiming such compensation – and also denied in the plea to the counterclaim that the alleged improvements had been made.

This reliance on s 40 of the Act is clearly a legal issue which could be determinative of the defendants’ claim if it was decided against the defendants. The court a quo was thus entitled to deal with it separately from the merits pursuant to the High Court Rule 63(6) which provides for directives to hear issues separately where this is convenient. In fact an exception should have been taken on this basis as it is purely a legal question.

The position in s 40 reiterates the position with regard to improvements in respect of communal land that existed under the Bantu Areas Land Regulations No. R 188 of 1969 prior to the promulgation of the Act. Under s 40, improvements cannot be claimed from the Chief, Traditional Authority, the Land Board or the State. Compensation is thus excluded from the State or any of the statutory functionaries who act to execute the

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State policy as contemplated in the Act. Does this mean improvements can be claimed from the holder of the right as it is submitted by the legal practitioner for the defendants?

With regard to the retention lien and claim for improvements, the court held that the principle of accession provides that the improvements become part of the land and hence the property of the land owner. This is one of the original modes of acquisition of ownership in accordance with the maxim superficies solo cedit. Thus, where a house or other structure is built or affixed to land it becomes part of the land and hence the owner of the land becomes the owner of such building or structure according to the doctrine of inaedificatio. Thus, in the present context, the State becomes the owner of such improvements on communal land ex lege by virtue of the doctrine of inaedificatio.

Held that, on the pleadings, there is no basis in law to allow the defendants’ claim for the improvements they allegedly made to the property which forms the subject matter of the plaintiff’s customary rights.

Held that, the court a quo erred by relying on s 40 to decide the matter against the defendants as s 40 finds no application – the counterclaim was not directed at the Chief, Traditional Authority, the relevant Land Board or the State. Joseph v Joseph and Joseph v Joseph (SA 44/2019 and SA 18/2020) [2020] NASC (30 July 2020)

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