SUPREME COURT OF NAMIBIA JUDGMENT INDEX

2017

COMPILED BY:pRISCILLA NANDE – RESEARCH ASSISTANTTHOMAS KASITA- RESEARCH ASSISTANT

Table of Contents

ADMINISTRATIVE LAW.........................................................................................................................2

APPEAL.....................................................................................................................................................8

APPLICATION FOR CONDONATION..................................................................................................8

COMPETITION LAW...............................................................................................................................9

CONSTITUTIONAL LAW......................................................................................................................10

CONTRACT............................................................................................................................................13

CRIMINAL LAW.....................................................................................................................................16

COSTS.....................................................................................................................................................16

DELICT....................................................................................................................................................18

INTERPRETATION OF STATUTES....................................................................................................19

LABOUR LAW........................................................................................................................................21

LEGAL ETHICS......................................................................................................................................22

POCA.......................................................................................................................................................23

PRACTICE..............................................................................................................................................24

RECUSAL................................................................................................................................................25

REVIEWS................................................................................................................................................28

1 | P a g e

ADMINISTRATIVE LAW

Administrative law : Appellant, Auas Diamond Company (Pty) Ltd, had been a holder of an Exclusive Prospecting Licence (EPL) issued under the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act) for a 3-year period from 1997 to 2000 – Before the expiry period, the appellant applied for a renewal of the EPL to run from 2000 to 2002 – The respondent, the Minister of Mines and Energy (the Minister), who is responsible for the administration of the Act was prepared to renew the EPL for the first time – In terms of the applicable legislation, the Minister may impose terms and conditions to the application of an EPL. Such terms and conditions once imposed must be accepted by an applicant, failing which the application lapses – The Minister imposed terms and conditions on the appellant’s renewal application. The renewal, including the terms and conditions had been accepted by a Mr Prins Shiimi, claiming to be a representative of the appellant. However, the appellant subsequently contended that Mr Shiimi had no authority to act on its behalf at the time he purported to accept the terms and conditions – The appellant consequently applied for a second renewal of the EPL to the Minister, which application was refused – Aggrieved by the refusal of its second renewal application, the appellant launched an application in the High Court to review and set aside the Minister’s decision. The Minister opposed the application. In his opposition, the Minister raised two points in limine, namely that the appellant had failed to disclose a right or cause of action and that the appellant delayed in instituting the review proceedings – After hearing argument, the review application was dismissed with costs. The court found that as the first renewal had not been accepted by the appellant, it lapsed by operation of law and there was nothing to renew when the appellant applied for a second renewal. In relation to the second point in limine, the court declined to decide the question whether or not the review application was unreasonable delayed – On appeal, the issues for determination remained unchanged. The first issue relates to the finding of the court below that the appellant failed to disclose a valid cause of action. The second relates to the finding of the appellant’s alleged unreasonable delay in instituting the review proceedings – The Supreme Court agreed with the findings of the court below that as the first renewal had not been accepted by the appellant, it lapsed by operation of law and that there was nothing to renew when the appellant had applied for a second renewal. The court concluded that the second renewal application would have been granted on the basis of the validity of the first renewal. The effect of the lapsing of the first renewal is that no second renewal could occur – The first renewal application having had lapsed, the appellant thus retained no residual rights to apply for the second renewal – In upholding the reasoning of the court below, the Supreme Court further found that as the High Court had correctly held that there was nothing to review in the absence of a valid first renewal of the EPL, the question whether or not the review

2 | P a g e

application was unreasonably delayed had become immaterial – As the appeal has failed, there were no good reasons why the costs should not follow the result. The Minister was accordingly granted the costs of the appeal. Auas Diamond Company (Proprietary) Limited v Minister Of Mines and Energy (SA 1/2007) [2017] NASC (19 April 2017).

******************************************************

ADMINISTRATIVE LAW: On 3 December 2015 the Permanent Secretary in the Ministry of Works and Transport (the Ministry) sent a letter to the first respondent (Anhui) to inform the latter that it had been allocated a tender to upgrade and expand the Hosea Kutako International Airport (the airport) near Windhoek for a sum exceeding U$ 447 million. Within approximately a week, a series of news reports appeared in the print media alleging irregularities on the part of the Namibia Airports Company (NAC), as well as bribery and corrupt practices and alleging that more cost effective bids had been ignored and generally questioning the scale of expenditure. Following these reports, the President of Namibia issued a media release on 22 December 2015, referring to these allegations and stating that the award had been terminated and that he would instruct the Minister of Works and Transport (the Minister) to invoke s 9 of the Airports Company Act, 25 of 1998 (the Act) to direct the NAC to discontinue all activities relating to the project –Anhui urgently sought the review of the Minister’s decision to act under s 9 and certain declarators. The application was opposed and the government respondents (the President and the Ministers of Finance and Works and Transport) brought a counter application to set aside the award as encapsulated in the Permanent Secretary’s letter of 3 December 2015 –The High Court set aside the Minister’s decision to direct the discontinuation of all activities relating to the project but declined to grant the declarators sought by Anhui and also declined the Government’s counter application to set aside the award –The government respondents (the appellants) appealed against the judgment and orders of the High Court –At issue in this appeal is whether the order setting aside the Minister’s decision should have been granted and whether the High Court should have granted the counter application to set aside the award by the Permanent Secretary –The Supreme Court found that the letter 3 December 2015 in its own terms amounted to an award of the project by the Permanent Secretary on behalf of the Ministry to Anhui. The letter was to be understood and viewed in the context of a letter by the Permanent Secretary on the same date to the NAC, stating that the Government of Namibia had approved the project. As implementer of capital construction projects financed by the Government, the Ministry had been mandated to award the contract to the successful tenderer Anhui –The court found that it was thus established that an award had been made in the letter of 3 December 2015. It was common cause that the Tender Board Act, 1996 had not been followed which was required for valid procurement in capital projects involving the Government. Nor had Treasury approval been granted under the State Finance Act. The failure to follow the

3 | P a g e

procedures in the Tender Board Act meant that the award was invalid and had to be set aside –The High Court should have granted the counter application and set aside the award. That court’s order was to be corrected to reflect that –Counsel for the appellants conceded that the Minister’s instruction to the NAC (to discontinue all activities in relation to an airport upgrade) made at the President’s behest was invalid but argued that the court should not set it aside –The court found that the Minister’s instruction was invalid in several separate respects amounting to comprehensive non-compliance with the provisions of the Airports Company Act invoked by both the President and the Minister. The general powers of the President and Cabinet would not save the directive from invalidity –The default position is to set aside an invalid act and refer the matter back to the functionary in question. The court found that no coherent reasons were raised as to why the defective directive should not be set aside. On the contrary, its public interest setting – relating to public procurement of a large scale - required that statutory provisions be scrupulously complied with. Good governance and transparency required this. The court also referred to the compelling public interest in vindicating the Constitution and the rule of law by setting aside invalid administrative action –The court found that the High Court was correct in setting aside the Minister’s directive –It follows that the appeal succeeded in part (resulting in the setting aside of the award in the letter of 3 December 2015) and failed in part (with the appeal against setting aside the Minister’s directive being dismissed).- President of the Republic of Namibia v Anhui Foreign Economic Construction Group Corporation Ltd (SA 59/2016) [2017] NASC (28 March 2017)

********************************************

AMINISTRATIVE LAW: The Rössing Pension fund (the fund) was established by Rössing Uranium Ltd (Rossing) in 1975 to provide pension and other benefits for its permanent employees –Since 1993, fund members had benefited from a surplus by not having to make contributions. The surplus had over the years been a source of dissatisfaction amongst members. Members had an expectation that the surplus should be paid out to them in the form of cash. But this is contrary to a Namibia Financial Institutions Supervisory Authority (Namfisa) ruling to the effect that pension pay outs could only be made upon the termination of an employment contract –The Pension Funds Act, 24 of 1956, (the Act) does not contain any guidelines as to how surpluses in pension funds are to be distributed. The rules of the fund were revised in 2002 to include rule 19.4.2 which dealt with the distribution of a surplus in the fund. It provided that in the event of a substantial surplus, the trustees should make recommendations to the employer for the distribution of the surplus. The rule further provided that the employer would then make the final decision on the distribution of the surplus within the limitations of the Act and the trustees would implement that decision –The board of trustees of the fund comprised four elected representatives of members of the fund and

4 | P a g e

as well as four trustees appointed by the employer. On 18 March 2011 a committee was created by the trustees of the fund to consider the distribution of the surplus –In October 2011, the trustees, formulated a position concerning the distribution of the surplus. Acting under rule 19.4.2, the trustees recommended to Rössing during November 2011 that an equal three way distribution of 33.33% each in respect of members (which included pensioners), Rössing and former members should be made –The Rössing Board considered the trustees’ recommendations on 24 February 2012, but decided otherwise on how the surplus should be apportioned, deciding upon a split of 52% for members, 33% for Rössing and 15% for former members –As a result of the Rössing Board decision, a group of former members of the Rössing Pension Fund (the respondents) challenged, by way of a review application, the decision taken (which they contended was by the trustees) to distribute a surplus in the fund as well as the legality of a rule of the fund which permitted that. The application was opposed by both the fund and the principal employer Rössing Uranium Limited (the appellant) –The High Court reviewed and set aside the decision (of the trustees) on the basis that the trustees had in essence abdicated their decision-making function to the Rössing. The court found that the sole responsibility for the management of the fund vested with the trustees and that it was impermissible for them to act as a ‘rubberstamp’ for Rössing’s decisions and act under its dictation. Rössing and the fund appealed against this finding of the High Court –The issues to be determined on appeal are whether the relief sought against the trustees as decision maker was competent, whether the decision to distribute the surplus constituted administrative action for the purpose of Art 18 of the Namibian Constitution and whether the former members established that the trustees of the fund or the employer had acted unlawfully –The Supreme Court held that former members had not established that the fund and the employer had acted unlawfully. The trustees of the fund had acted in accordance with the rules of the fund, which provided that the final decision concerning a surplus distribution lay with the employer. The trustees had made recommendations to the employer to distribute the surplus. The decision to distribute the surplus in the ratio impugned in the proceedings was made by Rössing as employer and not by the trustees. It was thus not competent to seek to review a decision of the trustees –The Supreme Court also held that the decision to distribute the surplus did not constitutes administrative action for the purpose of Art 18 because of the nature of the functions and powers and exercised by the trustees and the employer in doing so. The appeal succeeds. (Rossing Uranium Ltd & Another // Former Members of the Rossing Pension Fund (SA 30/2016) and (SA 32/2016) [2017] NASC (30 June 2017).

**********************************************************

Administrative Law – Remedies: This appeal arises from a tender for the provision of catering services to government school hostels countrywide. The Tender Board invited

5 | P a g e

suitably qualified entities to submit tenders for the supply of foodstuffs to school hostels in each of the eight designated regions. The appeal concerns the rendering of catering services to hostels in Ohangwena / Oshikoto educational region. It was a condition of the tender that a successful tenderer would be required to provide catering services for five years commencing on 1 April 2009 and ending on 31 March 2014 – Several tenders were received, including that of the appellant. Having been considered by the relevant Ministerial Committee, and after recommendations had been made, the Tender Board awarded the tender to a company named Conger Investments (Pty) Ltd t/a Atlantic Food Services, which is not a party to these proceedings – After being advised of this decision of the Tender Board, the appellant brought an application in the High Court to review and set aside the decision of the Tender Board and joined the rest of the respondents to the application. The appellant also sought for an order that the tender for this region be awarded to it. The respondents opposed the application. The High Court found that the tender awarded to Conger Investments (Pty) Ltd was tainted by administrative irregularities and was unfair. It set aside the tender award but refused to award the tender to the appellant –Dissatisfied with the setting aside of the tender, the respondents appealed to the Supreme Court. The appellant, also dissatisfied with the decision of the court a quo refusing its request for the tender to be awarded to it, noted a cross-appeal against that part of the judgment. After hearing argument, the Supreme Court dismissed both the appeal and the cross-appeal, with the consequence that the award of the tender remained set aside and meaning that the order of the court a quo remained unchanged. The Supreme Court further directed that the tender be referred back to the Tender Board for reconsideration – The Tender Board gave effect to the directives of the Supreme Court and eventually awarded the tender to the appellant. The notice to the appellant informing it of the successful award did not state the term of the tender. Instead, the appellant was informed that the period would be indicated in the contract. The appellant brought another review application in the High Court this time seeking, amongst others, an order that the tender awarded to it was for a five year period reckoned from 10 January 2014 to 10 January 2019. The High Court found that the Tender Board was directed by the Supreme Court to reconsider the original tender and not one for a longer term. Dissatisfied with the judgment and order of the High Court, the appellant has now appealed to this Court –The Court held that the High Court was correct in finding that the Tender Board was directed to re-consider the original tender and not one for a longer term. Appeal dismissed with costs. Free Namibia Caterers v Chaiperson of the Tender Board of Namibia and 3 others (SA 44 – 2015) [2017] NASC (28 July 2017)

**********************************************************

Article 18: The respondents were dismissed during June 2011 from their positions as traditional councillors of the Oukwanyama Traditional Authority on grounds of

6 | P a g e

misconduct in that they conducted meetings with members of the community outside their areas of jurisdiction concerning matters of the Oukwanyama and at times of rest (onghata) contrary to tribal law and against the wishes of the first appellant, the queen of the Oukwanyama. The decision made by the first appellant in her capacity as ‘chief’ of the Oukwanyama Traditional Authority was challenged by way of review in the High Court on the basis that it was made without the respondents being afforded a hearing contrary to Art 18 of the Constitution – The appellants had in the answering papers complained about the lack of specificity as regards the complaint based on Art 18 – The High Court observed that the particularity of the extent to which Art 18 was allegedly breached was not obvious from the founding papers and relied on the annexures attached to the affidavits to sustain the allegations maintained by the respondents. The court a quo held that the notices sent to the respondents advising of an impending investigation which later formed the basis for their dismissal, did not measure up to the required standard of procedural fairness and reasonableness, in that the respondents: were not informed of the charges that they would face, the true nature of the forum at which they were to appear which only subsequently was established to be disciplinary in nature, and were not afforded ample time for preparation before appearing before the investigation committee. The court a quo set aside the dismissals based on inferences drawn from annexures but not specifically relied on in the founding affidavit; and ordered reinstatement of the respondents – Held that Art 18 implicates the right to fair administrative justice and the duty to act reasonably; that the respondents bore the onus to allege the specific Art 18 ground and to make out the case for review – Held that audi alteram partem is flexible and its application will depend on the circumstances of each case; that the particular circumstances of the case may oust audi or significantly attenuate its operation. Accordingly, the respondents failed to discharge the onus and failed to put forward a proper factual basis in their papers to vitiate the decision to terminate their services based on the denial of audi. Held further that the court a quo was bound by the discipline of motion proceedings: affidavits must contain all the averments necessary to sustain a cause of action or a defence and the court is not entitled to rely on grounds not raised in the founding affidavit – Held further that where reliance is placed on material contained in annexures, the deponent must clearly state what portions in the accompanying annexures he or she relies on. What is required is the identification of the portions in the annexures on which reliance is placed and an indication of the case which is sought to be made out on the strength of those portions. It does not suffice to simply ‘incorporate’ annexures as part of one’s case – Held that the allegations of breach of Art 18, without more, did not sustain the conclusions reached by the court a quo. Appeal upheld with costs. Nelumbu v Shikumwah (SA 27/2015) [2017] NASC (13 April 2017)

7 | P a g e

APPEAL

Leave to appeal from the High Court: In this matter an appeal was noted against the judgment and order of the High Court dismissing an application for condonation for the late delivery of the appellant’s heads of argument and striking the appeal off the roll. The application for condonation was made in the course of an appeal in a civil case in that court against a decision of a magistrate’s court – Without obtaining leave from the High Court, the appellant lodged the appeal in the Supreme Court seeking to overturn the decision of the High Court – Section 18(2)(b) of the High Court Act 16 of 1990 provides in effect that a judgment or order of the High Court sitting as a court of appeal in a civil case is not appealable as of right. Leave to appeal must first be sought and obtained from the High Court. If such leave is refused an appeal to the Supreme Court is possible only once leave to appeal is granted by the Supreme Court itself – It was argued on behalf of the appellant that the appellant did not require leave to appeal to the Supreme Court as the High Court had decided the condonation application as a court of first instance. The Court held that the appellant indeed required leave to appeal and that in the absence of the High Court granting such leave or the Supreme Court granting it in case the High Court refuses to do so, the appeal is not properly before this court. The matter was accordingly struck off the roll – As the appeal was prosecuted with the assistance of the Directorate of Legal Aid, no order as to costs was made. ( Mentoor v Usebiu (SA 24-2015) [2017] NASC (19 April 2017)

**************************************************

APPLICATION FOR CONDONATION

Condonation- Condonation application - non-compliance with the provisions of rules of court – rules 5(5), 8(2), 8(3) and 11(1) – Legal principles applicable restated. Condonation application must be lodged without delay and applicant must provide a full, detailed and accurate explanation for the delay – Factors relevant in determining condonation application: the extent of non-compliance, reasonableness of explanation offered, bona fides of the application, prospects of success on the merits of the case, importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgment, the prejudice suffered by other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in the administration of justice – These factors are not individually determinative, but must be weighed, one against the other, nor will all the factors necessarily be

8 | P a g e

considered in each case – A court may decline to consider prospects of success on the merits of an appeal where non-compliance with the rules has been glaring, flagrant and inexplicable – Cumulative effect of the non-compliance to be considered In casu – no acceptable explanation for some periods of delay and no explanation at all in respect of other periods of delay – Condonation application refused in spite of the possibility of prospects of success in respect of merits of appeal. Gomes v Meyer (SA 33/2014) [2017] NASC (12 April 2017)

****************************************************

COMPETITION LAW

Competition Act, 2 of 2003 (the Act) – Anti-competitive conduct – The issue raised in this appeal is whether the Competition Commission established under the Competition Act, 2 of 2003 (the Act) has jurisdiction over registered medical aid funds for the purpose of s 23 of the Act which prohibits anti-competitive conduct between undertakings as defined in the Act. The Namibian Association of Medical Aid Funds (NAMAF), established under the Medical Aid Funds Act, 23 of 1995 (the MAF Act) and medical aid funds registered under the MAF Act applied to the High Court for an order declaring that they are not undertakings as contemplated by the Act and that the Commission would consequently not have jurisdiction over them – The Commission had conducted an investigation under the Act and notified NAMAF and the funds that their conduct of setting prices for medical services by setting benchmark tariffs after collective negotiations amounted to a contravention of s 23 which proscribes concerted practices between undertakings which directly or indirectly fix purchase or setting prices – On appeal, the Supreme Court found that whilst funds are businesses in the form of enterprises and are statutorily enjoined to apply sound business principles in their operations, this is to protect their members’ interests by ensuring the solvency of funds. Being a ‘business’ did not mean that a fund’s economic activity is market related for the purpose of achieving a gain or reward. The MAF Act precluded funds from distributing a surplus and rendered them non-profit concerns. The social solidarity nature of funds in the context of the protective legislation governing and tightly regulating them and the statutory purpose of promoting funds meant that funds are not businesses carried on for gain or reward for the purpose of the definition of undertaking in the Act, which was also considered in the context of the purpose of the Act to promote and safeguard competition to provide consumers with competitive prices and product choices – The Supreme Court concluded that medical aid funds are not undertakings within the meaning of the Act and that the Commission does not have jurisdiction over them. As the constituent funds are not undertakings, it also followed that NAMAF also did not fall within that definition. The appeal was upheld and the High Court’s decision reversed on

9 | P a g e

appeal. Namibian Association of Medical Aid Fund v Namibia Competition Commission (SA 18 - 2016) [2017] NASC (19 July 2017)

CONSTITUTIONAL LAW

Motor Vehicle Accidents Fund Act 4 of 2001: The appellant instituted action against the Motor Vehicle Accident Fund (‘the Fund’) for compensation after being blinded in a collision with a motor vehicle. The alleged damages or losses suffered by the appellant exceeds N$9 million. The compensation payable by the Fund is however capped in terms of the Regulations published by the Minister under the Motor Vehicle Accidents Fund Act 4 of 2001 (the Act) resulting in appellant not being able to recover all his damages or losses from the Fund –The appellant attacked the aforesaid capping averring that the Act constituting the Fund was unconstitutional in that it authorised the capping contrary to Arts 8 and 10 of the Namibian Constitution (the Constitution) and that failure to specifically categorise a different cap for persons with disabilities amounted to discrimination; alternatively, it impacted on the dignity of disabled persons by failing to recognise that disability fall within the concept of ‘social status’ as used in Art 10(2) of the Constitution –The appellant, in the alternative, attacked the Regulations issued pursuant to the Act which put the capping in place averring that the delegation of legislative functions to the Minister amounted to an impermissible delegation; that the Regulations were arbitrary, ultra vires and did not specifically provide for disabled persons and thus contrary to Arts 8 and 10 for the same reasons articulated in respect of the constitutional challenge against the Act –The court held that neither the Act nor the Regulations were contrary to Arts 8 and/or 10 of the Constitution as there was no differentiation between or discrimination against equally positioned persons and was thus not necessary to decide whether disability could be said to fall within ‘social status’ as used in Art 10(2) –The court held further that as far as the challenges to the Regulations were concerned, the delegation by the legislator to the Minister was properly circumscribed in the Act and amounted to a permissible delegation. The Minister acted in a reasonable and rational manner when he determined the capping as it is within the powers delegated to the Minister.The appeal was dismissed with costs. - Visser v Ministry of Finance (SA 89 - 2014) [2017] NASC ( 6 April 2017)

*****************************************************

Stock Theft Act 12 of 1990: The first and second respondents in this appeal, with separate substantive applications approached the High Court seeking orders declaring the minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 (the Act) unconstitutional and invalid. They contended that the minimum

10 | P a g e

sentences prescribed by the impugned provisions violated Articles 8(2)(b) and 10(1) of the Namibian Constitution. The Prosecutor General (appellant in this court) opposed both applications and argued that the impugned provisions were not unconstitutional. The Prosecutor General further argued that the constitutional challenge brought by the first and second respondents was inappropriate. The Attorney-General and the Government of the Republic of Namibia, on the other hand, conceded that the impugned provisions violated Article 8(2)(b) but denied that both subsections challenged violated Article 10(1) of the Constitution. The court a quo granted the declarator and struck the words "for a period not less than twenty years" and "for a period not less than thirty years" from sections 14(1)(a)(ii) and 14(1)(b) of the Act – On appeal, the Prosecutor General argued that it was not necessary or appropriate for the court a quo to decide the constitutional issue as the first and second respondents had the right to appeal against their sentences. Regarding the impugned provisions, the Prosecutor General submitted that the sections under attack do not violate Articles 8(2)(b) and 10(1) of the Constitution. The Prosecutor General further argued that the order fashioned by the court a quo failed to take into account the doctrine of separation of powers. The first and second respondents, on the other hand, contended that they were entitled to approach the court a quo with their respective applications. On the second issue, they maintained that the sentencing benchmark were inconsistent with Articles 8(2)(b) and 10(1) of the Constitution. They further contended that as both sections of the Act are unconstitutional and invalid, the order of the court a quo ought to be confirmed by this court – Court on appeal held that the court a quo was entirely correct in entertaining the constitutional challenge by the first and second respondents despite that they also had the right to appeal against their sentences – Court on appeal further held that that the minimum sentences under attack are unconstitutional because of their disproportionality. The court further held that in view of the findings relating to the unconstitutionality of the impugned provisions, there is no need to refer back the impugned provisions to the legislature for possible correction. Instead, Parliament in its discretion may craft a solution. Appeal dismissed with costs. Prosecutor General v Protasius Daniel and 3 Others (SA 15 – 2011)[2017] NASC (28 July 2017)

******************************************************

The Medicine Related Substances Control Act 13 of 2003 - The Medicine Related Substances Control Act 13 of 2003 (MRSCA) requires that in order to sell medicine to his or her patients, a doctor must apply for and be granted a license by a Council established under the Act. Before 2008 doctors did not require to be licensed to sell medicine to patients. The MRSCA empowers the Namibia Medicines Regulatory

11 | P a g e

Council (Council) to grant a license if in ‘public need and interest’ and if the doctor has the ‘required competence’. The MRSCA does not spell out the criteria needed for the granting of a license and what is meant by ‘required competence’. The doctors challenged the licensing scheme as being unconstitutional, amongst others, for the lack of guidelines to be applied by the Council in considering a license application – The court upholds the doctors’ complaint that the MRSCA’s licensing scheme is void for vagueness. The court declares the relevant provisions of the MRSCA creating the licensing scheme unconstitutional. The court, however, rejects the doctors’ proposition that they have a constitutional right to sell medicine to patients without a license. The court is satisfied that there is a legitimate governmental purpose in regulating the sale of medicine by doctors to patients in order to prevent over-prescription or unnecessary prescription of medicine to maximise profit without regard to the actual needs of the patients – Being substantially successful, the doctors are granted costs. Medical Association of Namibia and Others v Minister of Health (SA 80/2013) [2017] NASC (9 February 2017)

****************************************************************

Criminal Procedure Act 51 of 1977: Appellant was convicted in the High Court of murder solely on the single evidence of a confession which the appellant had made to a justice of the peace. The appeal was against conviction only directed at the admissibility of the confession. The attack on the confession was two pronged, first that the requirements of s 217(1), (that the confession was made freely and voluntarily by the appellant whilst in sound and sober senses and without having been unduly influenced thereto) were not met and secondly that appellant’s rights to legal representation were not explained and therefore that the admission of the confession infringed the appellant’s right to a fair trial granted by Art 12(1)(a) and (f) of the Constitution –Held that the alleged confession on which the trial court relied for its conviction was not a confession as the statement did not amount to unequivocal acknowledgement of guilt, rather it was an admission in terms of s 219A –Held, further that on the evidence the requirements of s 217(1) or that of s 219A as the court found the statement to be an admission were met –Held, further that while the justice of the peace warned the appellant of his right to legal representation, he failed to record the response of the appellant to the warning and he was a poor witness in his oral evidence on that point, he could not recall whether the appellant wanted a legal representative of his own choice or that funded by the State –Held, further that a court has a discretion to allow or exclude unconstitutionally obtained evidence or evidence in conflict with the constitutional right for reasons of public policy. No strictly exclusionary rule is adopted in exercising the court’s inherent power in ensuring a fair trial –Held, further that it is now settled law that an accused person under arrest depending on the facts of each case, in particular the personality and the characteristics of the particular accused should be comprehensively informed of his/her right to legal representation, which includes the

12 | P a g e

right to apply for legal aid –Held, further that failure to inform the accused properly of his right to consult there and then with a legal representative violates a fundamental right of the accused –Held, further that in as much as there is no hard and fast rules possible in regard to adequacy of warnings related to legal representation, the least that the justice of the peace should have done is to record the appellant’s reaction to the warning –Held, further that the statement of the confession speaks for itself, the justice of the peace failed to meaningfully advise the appellant of his right to legal representation –Held, further that the admission of the confession relied on by the trial court to convict the appellant infringed the appellant’s right to a fair trial granted by Art 12(1) of the Constitution –Held, further therefore that the admission of the confession had to be excluded –Held accordingly that the appeal by the appellant against his conviction had to succeed and both the conviction and sentence had to be set aside. Engelbrecht v S (SA 05-2012) [2017] NASC (14 July 2017)

**************************************************

CONTRACT

LAW OF LEASE- The appellant, plaintiff a quo, appeals against the High Court’s decision dismissing a claim for damages arising from an alleged breach of a lease agreement. The claim was for unpaid rent for the unexpired portion of the lease agreement. The grounds for terminating the lease agreement advanced by the respondents are that the appellant failed to maintain the property leased in terms of an oral agreement and the terms of the lease and that the property could not be utilised for the purpose it was leased. Evidence showed that the exterior of the property was in a very bad condition –The court a quo made factual and credibility findings. In a nutshell, it found that the general state of the property was not up to standard and the termination of the lease by the respondents was justified. On appeal, the factual and credibility findings are challenged –On appeal, the court emphasised that an appeal court will not readily disturb the findings of a trial court on credibility and findings of fact because of the advantageous position the trial court finds itself. Appeal court upholding the conclusion that the leased property was unfit for the purpose it was rented; that sufficient notice had been given to the appellant to rectify and put right the interference with the respondents’ use and enjoyment of the property; that the respondents were justified in terminating the lease agreement and that appellant’s witness was a less credible witness than the respondents’ –The court commented on the record of appeal in respect of appeals in trial matter and laid down guidelines in this regard. Appeal dismissed with costs. (BV Investment Six Hundred and Nine CC v Letty Kamati (SA 48/2017) [2017] NASC (17 July 2017)

13 | P a g e

************************************************************

Law on Lease: The respondent purchased a property situated at Plot 91 Nonidas, Swakopmund during April 2010, from the erstwhile owner’s estate at a public auction. The late owner Mr Neumann had erected various structures on the property and he had let a small room in the tower to the appellant, for the purpose of setting up a telecommunications base station. The lease agreement commenced on 1 August 2006 on a monthly tenancy of N$3000 for a fixed period of 10 years, which would have expired on 31 July 2016 with an option to renew for a further period of 10 years. The lease agreement was initially concluded orally between the late Mr Neumann and the appellant. It was later during July 2007 reduced to writing. It was a condition of sale of Plot 91 Nonidas that the purchaser would inherit the lease agreement. When the respondent purchased the property, he took over the agreement as it was. Shortly after the respondent had acquired the property, he discovered that the radiation intensity emitted by the antennas installed at the premises by the appellant was in excess of twenty times the International Commission for Non Ionizing Radiation Protection (ICNIRP) maximum and constituted a very serious health risk to the public and the respondent’s personnel who accessed the sun downer platform. Respondent engaged the appellant’s Schmidt-Dumont, a project co-ordinator for radio networks then. Respondent’s suggestions were to either raise the antennas to a safe height or relocate to an artificial palm tree or enter into a new contract and he insisted on his suggestions. During these communications, appellant terminated the lease agreement on or about 25 January 2011 providing the respondent with two months termination notice that was until 31 March 2011. Thereafter the appellant discontinued paying any rental to the respondent in terms of its obligations under the lease agreement. Respondent refused to accept the termination. He sued appellant in the High Court for the remainder of the contract period, the escalation and interest added on in the amount of N$326 644,73, the claim based on appellant’s unilateral and unlawful termination of the agreement. Appellant appealed against the decision of the High Court dismissing its defence of the premises let by appellant not being identified or identifiable and its alternative defences of repudiation of the agreement by the respondent, as a result of what the appellant termed as unreasonable demands and supervening impossibility of performance for the reason that the erstwhile owner created a sun downer platform which reduced the safe height level of the antennas contrary to the agreement and the use of the sun downer by the respondent. The defences were repeated or relied on, on appeal – Held that the premises a small room in tower which is the subject of a written lease agreement is clearly identified or identifiable. A valid lease agreement was therefore concluded – Held that the agreement between the parties provided for relocation after the permanent tower became available, relocation was therefore contemplated or foreseeable. The demands made by respondent to relocate the antennas were not unreasonable and therefore did not exhibit a deliberate and unequivocal intention no longer to be bound by

14 | P a g e

the contract or did not repudiate the contract – Held further that the appellant failed to prove that the performance of its obligation in terms of the contract was rendered impossible. Appellant should have enforced the terms and conditions of the contract or explore viable alternatives with the respondent before it terminated the contract. Appeal dismissed. (Mobile Telecommunication Ltd v Eckleben (SA 16/2016) [2017] NASC (1 June 2017)

***********************************************************

Essentilia of Contract: In the High Court, the respondent (plaintiff) instituted action against the appellants (defendants), alleging that the appellants were indebted to it in the amount of N$131 707,38 the said amount being the balance on the loan advanced to the appellants as a result of a written agreement between the parties. In support of its claim, the respondent attached a copy of the mortgage bond to its pleadings. The respondent alleged that the appellants failed to pay the monthly instalments in terms of the agreement as a result of which the full outstanding amount on the loan became due and payable –The appellants defended the action and denied any liability to the respondent. The appellants in the main denied that the respondent was the holder of the mortgage bond. The appellants also pleaded that they have repaid the loan amount including interest. The appellants, further pleaded that any amount plus interest that might still be owed, was a less than the amount claimed – The matter went to trial, and after evidence had been presented by both parties, the respondent was successful and obtained the relief of an amount of N$177 743,46 plus interest on that amount at the rate of 13,75 per cent per year. Aggrieved by this outcome, the appellants noted an appeal to this court – On appeal, the respondent took a point in limine, arguing that the appeal had been set down irregularly as the appeal was deemed to have lapsed and that condonation should have been obtained before the appeal could have been set down for hearing. The court held that this was not an instance where the appeal had lapsed and granted condonation –The appellants on appeal raised various grounds, which were directed at some alleged irregularity on the part of the trial judge – As regards the claim, the court held that the evidence established, on a preponderance of probabilities, the agreement between the parties which had not been put in dispute on the pleadings, except in regard to the interest to be paid on the amount borrowed. The appellants did not deny the fact that money had been borrowed from the respondent. The court further held that the balance still remaining after such payments by the appellants was established during the trial – The court held that although irregularities had been committed during the trial that prejudice to the other party was a requirement to have the effect contented for. The court held that the appellants had not been

15 | P a g e

prejudiced by the irregularities and dismissed the appeal. (Mukapuli v Swabou Investments (Pty) Ltd (SA 49/2011) [2017] NASC (23 June 2017)

****************************************************

CRIMINAL LAW

Doctrine of Common purpose – Interference with decision of a lower court – Appellants made the contentions that the High Court erred in convicting the appellants under the doctrine of common purpose. The Supreme Court held that the body of evidence adduced during the trial court was sufficient to convict the appellants and that the convictions were thus justified. The Supreme Court reasoned that the appellants were the only witnesses present and they chose to give explanations which were rejected as false, so the trial court’s reasoning by inference in finding that the appellants murdered the deceased and actively collaborated with each other to commit the offences in question pursuant to the existence between them of a common purpose was sound. The Supreme Court found no basis to interfere with the findings of fact of the court below. Jackson v S (SA 10-2015) [2017] NASC (13 February 2017)

**********************************************************************

Bail – The Supreme Court summarily laid down the principles that judicial officers must consider when dealing with bail applications, namely that judicial officers have to take into account the seriousness of the offence, the probabilities of a conviction, the nature of the probable sentence, and the ability to put up bail. All these factors go to the likelihood whether the accused will stand trial, which is the main consideration in deciding the bail issue. The appellant in this matter was primarily charged with nine counts of fraud for which he was granted bail but he later withdrew the bail money. After he was released on bail he allegedly committed further thirty-three offences of fraud and eleven offences of contravening 30(1) of the Immigration Control Act. The Supreme Court concluded that the High Court correctly dismissed the appeal to admit the appellant to bail but it erred when it granted him leave to appeal in that, where prospects of success are absent leave should be refused, but where prospects exist after a well-considered conclusion on the facts, leave to appeal ought to be granted. Pienaar v S (SA 13-2016) [2017] NASC (13 February 2017)

******************************************************************

COSTS

16 | P a g e

Denial of costs to successful party- This appeal emanated from a hotly contested action tried in the High Court before Damaseb JP. At the centre of the dispute was a contract concluded between the appellant, on one hand and the first and second respondents on the other, whereby the latter two agreed to sell to the appellant their entire beneficial interest in the third respondent – The appellant was at the time of concluding the contract, and still is, a foreign national holding South African citizenship while the respondents were, and continue to be, Namibian citizens – The domestic law of Namibia restricts the alienation of agricultural land to foreigners. In purporting to conclude the contract aforementioned, the parties failed to abide by the requirements of that law, thereby vitiating the contract ab initio – the appellant felt entitled to resort to his legal right to justice. He consequently instituted the court proceedings from which the current appeal emanates. In his particulars of claim he basically demanded restitution of the N$672 000 which he had so far paid towards the purchase price of the flat, plus interest thereon and his costs in convention – The trial judge granted judgment in favour of the appellant and ordered restitution of the principal amount of N$672 000 but, despite his success in this regard, the appellant was denied both interest and costs – The grounds of appeal raised one single issue only, viz, whether or not it was proper for the court below to deny the appellant, who is said to be the successful party, his costs which in this case were in two categories. In the first category were costs relating to his claim for restitution, and the second pertained to his reputedly successful contest against the counterclaims in which the proponents had persisted at length during the trial but only to abandon them very belatedly in midstream – It is settled law that a trial court has a discretion as to whether to award costs or not to a party, and if it has to make an award, to which of the parties to the proceedings. That discretion, however, has to be exercised judicially and not capriciously or arbitrarily. The general rule, however, is that costs follow the event that is to say that the successful party gets his or her costs. Put adversely, the unsuccessful party is, as a general rule, mulcted in costs. This being the general rule, an appellate court will be slow to interfere with the trial judge’s decision in the manner the costs were awarded. Such interference cannot be justified on the mere feeling that if the appellate judge had been presiding at the trial he or she would have made a different costs order. The power to interfere can only be exercised if it is found that the trial judge did not act judicially, or when the appellate court is of the view that the order denying the costs is vitiated by a misdirection, or if the trial judge acted capriciously or arbitrarily – the trial judge made the observation that both sides in this litigation had amended their pleadings so many times and altered their stances to suit the development of the evidence, and this resulted in a situation whereby the case which was eventually adjudicated on was different from what it was initially. This would appear to explain why an action which began in 2005 was only concluded in 2013, that is close to eight years later – The learned Judge-President was alive to the rule that the power to award costs was vested in his discretion is evident. He so directed himself at the very outset. Having done so, he then went on to state his reasons to

17 | P a g e

justify denial of the same from the appellant notwithstanding that he was the successful party vis-a-vis the claim in convention. He also considered the overall conduct of the parties, in particular the appellant. His undoubted conclusion was that the appellant’s conduct militated against an award of costs in his favour. It is my deep conviction that the judge did exercise his powers judicially in this regard, and not in any way capriciously or arbitrarily – In the result the appeal is dismissed with costs. (Du Toit v Dreyer (SA 22/2013) [2017] NASC (27 February 2017)

DELICT

Damages – The issue raised in this matter concerned the proof of damages in a delictual claim –The respondent, a cigarette manufacturer in Botswana, dispatched a consignment of 579 boxes of cigarettes to a duty free concern in Oshikango. After the consignment entered Namibia, customs officials impounded the consignment because the respondent’s clearing agent had wrongly declared that the consignment was destined for consumption in Namibia. On the following day the respondent withdrew the initial declaration and replaced it with one correctly stating that the cigarettes were sold in bond and destined for a bonded warehouse –The customs officials decided to impose a penalty in excess of N$800,000 before the consignment could be released. Despite demand, they refused to release the consignment –The respondent instituted an action at the High Court against the Minister of Finance and the Commissioner of Customs and Excise for the return of the cigarettes alternatively their value represented by the selling price as reflected in the accompanying invoice (Botswana Pula 928,000). At the trial, the respondent called an expert who testified that he had taken samples of the cigarettes just over a year after their detention and said they were worthless given the limited 6 months shelflife of cigarettes. Another witness confirmed the terms of the sale to the duty free concern in Namibia – Customs officials testified that the Customs and Excise Act, 20 of 1998 authorised the detention and imposition of the penalty – The High Court found that the customs officials were not so authorised and found that the detention was unlawful and awarded damages reflecting the purchase price – On appeal, the only issues raised concerned the proof of damages. The award was challenged on the grounds that a causal link between the delict and the damage to the cigarettes was not established in that the respondent had not established the condition of the cigarettes prior to the time of the delict. The appellants also disputed that the respondent had not proven the value of the cigarettes at the time of the delict – The court found that there was no reason for the High Court not to accept that the value of the cigarettes at the time of the detention was the purchase price reflected in the accompanying invoice in respect of their sale to the duty free entity in Namibia. The appellants did not dispute that the sale was in the ordinary course of business and

18 | P a g e

found nothing to suspect the contrary. Evidence as to the correctness of the value given for the cigarettes had also not been disputed. There was also no evidence to suggest that the cigarettes upon departure and prior to being impounded were anything other than in a condition to be sold. Once the cigarettes were detained and their release refused and became worthless after their detention, a clear casual link was established between the delict and the respondent’s loss – As the record was filed slightly out of time, the application to condone that failure to comply with the rules and to reinstate the appeal was refused because the appeal was without merit and did not enjoy any prospects of success. Minister of Finance and Another v Benson Craig (Pty) Ltd (SA 10 – 2016) [2017] NASC (26 July 2017

*********************************************************

INTERPRETATION OF STATUTES

Communal Land Reform Act, 2002 - The appellant (Ohangwena Communal Land Board) and the respondent (Tileinge Wapulile) had been embroiled in a protracted dispute over the fence around Odjele Grazing Farm. After unsuccessful engagement with the respondent the appellant invited the respondent to its headquarters at Eenhana during October 2012. On respondent’s arrival he was served with a letter headed ‘Notification order to remove the fence’. The notification required the respondent to remove the perimeter fence around the Odjele Grazing Farm within 30 days of receipt of the letter. Subsequent to the notification, respondent contacted his legal representatives and the Ondonga Traditional Authority that had granted the respondent the right to occupy the Grazing Farm. The Chief invited the Minister of Lands and Resettlement to his Palace and the Minister was requested to stop the removal of the fences. With the interventions of the Chief and his lawyers and the fact that the 30 days notification had expired without any action from the appellant, respondent thought all was well. On 26 July 2013 officials from the Ministry of Lands accompanied by Police officers arrived at the respondent’s farm and started dismantling the fence – Respondent, on 6 August 2013 made an urgent application to the High Court for an order interdicting the appellant from dismantling his fences and disposing the material used for the erection of such fences on Odjele Grazing Farm which farm fall within the communal area of the Ondonga traditional community. Respondent is a subject of that community. The farm was allocated to the respondent by the Ondonga Traditional Authority in the late 1980’s. That allocation of the farm was confirmed on 7 August 1996 in a letter from the Ondonga Traditional Authority which states that the Authority ‘gave permission’ to respondent ‘to own the farm known as Odjele Grazing Farm on 2 September 1988. Relying on ss 18 and 28(2)(b) and (3) of the Communal Land Act 5 of 2002 (the Act),

19 | P a g e

the respondent alleged that the removal of the fence around his grazing farm was unlawful. He maintained that he had applied to the relevant board (Oshikoto Communal Land Board) in terms of s 28(2) for the recognition and registration of the right in respect of the occupation of the farm and for the authorisation for the retention of the fence existing on the farm – It is common cause that the Grazing Farm is situated in Ohangwena Region and therefor falls under the jurisdiction of the appellant. Respondent had not applied to the appellant for authorisation for the retention of the fence existing on the farm, notwithstanding reminders to that effect by the appellant. It was also common cause that the Minister of Lands and Resettlement acting in terms of s 28(3) extended the time periods contemplated in s 28(2) from time to time. In GN 19 the Minister extended the period with effect from 1 March 2014 indefinitely. Respondent’s case in the High Court was founded amongst other things, on the ground that he had applied to the relevant board (Oshikoto Communal Land Board) during 2005/2006 and he was still awaiting for the reply and that the period for making applications contemplated in terms of s 28(2) had not yet expired at the time the appellant dismantled his fence. Section 18 prohibits the erection of fences on land in a communal land area. The exemptions from this prohibition made by the Minister in terms of the Regulations (26 and 27(3) published in GN 37 of 1 March 2003 are fencing in homesteads, cattle pens, water troughs or crop fields. Section 28(1) protects any existing customary land right held by a person in respect of the occupation or use of communal land, unless such person’s claim to the right is rejected upon application contemplated in s 28(2) or such land reverts to the State by virtue of s 28(13) – On 9 August 2013 the High Court issued a rule nisi, incorporating an interim interdict. On 15 November 2013, by virtue of the provisions of s 28 and the fact that, at the time the respondent’s fence was dismantled the period of making applications contemplated in s 28(2) had not expired, amongst other things, the High Court confirmed the rule and granted the relief as prayed for by respondent – On appeal the question arose whether the operation of s 18 is suspended in the period when an application for retention of a fence in terms of s 28(2) has not been made, although such an application may still be made because the time for making of such applications has not yet elapsed – The court recognised the tension between the provisions of ss 18 and 28 and held that the provisions of s 18 are not suspended, the prohibition remains operative whenever there is no application pending before the relevant Board – Held that the Minister can only extend the period within which the applications may be made, the obligations to apply in terms of s 28(2) remains, in force –Held that the prohibition in s 18 persists in the absence of an application before the relevant Board; notwithstanding the extension of time granted by the Minister – Held that the respondent did not have an application pending before the relevant board (Ohangwena Communal Land Board) when the appellant dismantled his fence and the appellant cannot be faulted for having dismantled the fence – Held that consequently the respondent’s application (interdict) should have been refused in the High Court – Held that the order of the High Court set

20 | P a g e

aside and replaced with the following order –The rule nisi discharged. Appeal succeeded with costs. Chairman Ohangwena Communal Land Board N.O v Tileinge Wapulile (SA 81/2013) [2017] NASC (8 June 2017)

**********************************************************

Labour Act 11 of 2007 – the phrase ‘within 30 days of the conclusion of arbitration proceedings the arbitrator must issue an award . . .’ as it appears in s 86(18) of the Labour Act 11 of 2007 found by the court a quo to be peremptory, requiring strict compliance, and award issued outside time period declared null and void ab initio – The cardinal rule of construction is that words of a statute must be given their ordinary, literal or grammatical meaning if the words are clear and unambiguous, unless it is apparent that such literal construction would lead to manifest absurdity, inconsistency, injustice or would be contrary to the intention of the legislature – Impossible to lay down any conclusive test as to when legislative provision is directory and when it is peremptory – It is the duty of a court to arrive at the real intention of the legislature by considering the object and scope of the relevant statute – Peremptory provisions merely because they are peremptory will not by implication, be held to require exact compliance where substantial compliance with them will achieve the object of the legislature. The modern approach manifests a tendency to incline towards flexibility – Where a statutory duty is imposed on a public body or public officers and the statute requires that such duty shall be performed in a certain manner or a certain time or under specified conditions, such prescription may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirement were essential or imperative – On appeal found that the word ‘must’, should in view of semantic and jurisprudential guidelines developed by the courts, be interpreted as permissive, requiring only substantial compliance in order to be legally effective. - Torbitt v The International University of Management (SA 16-2014) [2017] NASC (28 March 2017)

*****************************************************************

LABOUR LAW

Unfair Dismissal: The appellant was dismissed from his position as a ‘duty controller’ of Air Namibia after being found guilty of negligent handling of the employer’s petty cash box containing money; disregarding company rules and procedures on passenger checking-in, and irregularly issuing boarding passes to passengers. He succeeded at the arbitration but on appeal the Labour Court set aside the award against which the

21 | P a g e

appellant now appeals –On appeal, the appellant argued that the Labour Court had no jurisdiction to interfere with the factual findings of the arbitrator as it was not a ‘question of law’ as contemplated in s 89(1)(a) of the Labour Act 11 of 2007. The appellant further argued that the employer had not rebutted the presumption of unfair dismissal contained in s 33(4)(a) and (b) of the Labour Act. The employer argued that the court a quo was justified in interfering with the decision of the arbitrator –Court on appeal held that a finding is perverse if: (a) it is based on inadmissible or irrelevant evidence, (b) it fails to take into account all the relevant evidence, and (c) it is against the weight of the evidence in that it cannot be supported by the evidence on the record. Accordingly, the finding would not be perverse and appellate interference would not be justified just because, on the same facts, the superior tribunal could have come to a different conclusion –Court on appeal further held that in respect of the charges relating to the petty cash box, the arbitrator’s findings fell within a range of reasonable inferences open to a trier of fact and was thus not perverse; that in respect of it, the Labour Court improperly assumed jurisdiction in terms of s 89(1)(a) –As regards the charges of dishonesty and disregard of company rules and regulations, held that the evidence establishes, on a preponderance of probabilities, that the appellant was the source of the boarding passes handed to people who had no right to have them. Accordingly, the arbitrator misdirected himself and ignored the golden rule of fact-finding that all relevant evidence must be properly accounted for to justify a conclusion of fact – Labour Court’s conclusion that the arbitrator’s finding one which no reasonable arbitrator would have come to and therefore appealable, upheld. Appeal dismissed. Andima v Air Namibia (Pty) Ltd (SA 40 - 2015)[2017] NASC (12 May 2017)

******************************************************

LEGAL ETHICS

APPEAL: Appeal to Supreme Court. Clear from record that lawyers representing parties in court a quo not acting diligently to further their clients’ interests in that their case was initially managed as if it was an action instead of an application – Record on appeal contained documentation that was not part of the application in the court a quo including the discovery affidavits and discovered documents which were not only inapposite in application proceedings but also not part of the application in the court a quo LEGAL ETHICS – Heads of argument on appeal filed late and reasons for such late filing proffered on behalf of the legal representative for appellant such as to suggest the possibility of unprofessional conduct – Conduct of legal representatives the reason for deviation from the normal costs order where parties were ordered to pay their own

22 | P a g e

costs and certain costs disallowed or limited. (Helao Nafidi Town Council v Kambode (SA 9/2016) [2017] NASC (12 May 2017)

POCA

Fraud and Money Laundering: The respondent had enquired from the Namibian Defence Force (NDF) about the possibility in providing accommodation services to the NDF, as he had indicated that he 'had a guest house' that could be utilised for such purposes. Having been invited to do so, he submitted a quote in the amount of N$2 652 810, which was accepted – After submitting the said documents, later on inquiry the Ministry of Trade and Industry confirmed that the close corporation was instead, registered in the name of the respondent’s mother, Mrs Eunike Hamutenya, but by then, the payment had already been made into his Standard Bank account – On 18 September 2014, it turned out that an electronic payment in the amount of N$1 061 124 had been made from the Government of Namibia State account for the Ministry of Defence into a Standard Bank account held in the name of Sydney Hassan & Sons Trading CC. A day later, on 19 September 2014, a cheque for N$800 000 with reference as 'salary', was electronically transferred into a First National Bank account held in the name of Tulinane P S Hiskia, who turned out to be the respondent’s minor son. On that same day, a cheque for N$250 000 was cashed on the Standard Bank account of the CC, with a positive balance of only N$1491,15 remaining – Having approached the High Court to be heard on an urgent basis, the Prosecutor-General (the PG), on 10 October 2014, obtained a provisional preservation of property order, on an ex parte in respect of the positive balance of N$800 000 on the First National Bank account which was in the respondent's minor son’s name and in terms of s 51(2) of the Prevention of Organised Crime Act, 29 of 2004 (POCA) – On the return date, the respondent, in limine, raised a procedural defence that the rule nisi must be discharged in that the appellant had failed to comply with the mandatory provisions of reg 7(b) read with s 91(1) and (2) and s 100 of the POCA. Regulation 7 requires that applications under several sections in the Act including s 51 should be brought on 7 days' notice to a respondent or any other person who may require notice – Having reconsidered the issues including the requirements for such an application, the High Court upheld the procedural point and discharged the rule nisi, refusing to confirm the provisional order. Principally, the court’s basis for the refusal was that the PG had not complied with the prescribed procedures stipulated in reg 7 of the POCA – Following the decision in Uuyuni, the Supreme Court held that the approach to the interpretation of the

23 | P a g e

relationship between ss 51(2), 91(2) and reg 7(b) should indeed be that the regulation would not apply in the case of the s 51(2) application. If it held otherwise, this would be in direct conflict with the dictum in Uuyuni which remains the authority regarding the ex parte nature of the application for a property preservation order in terms of s 51(2) of the POCA – The Supreme Court was of the view that reasonable grounds had been shown for the belief that the property, being the positive balance in the First National Bank account of the respondent’s minor son, had constituted the proceeds of unlawful activities, in particular, fraud and money laundering. The test in s 51(2) had therefore been met and once this is the case, it is peremptory that an order for the preservation of property be granted – In the result, the appeal against the order of the High Court is upheld. Based on the findings and the conclusion arrived at in this matter, the costs in this case must follow the result. - The Prosecutor-General v Onesmus (SA 25 - 2015) [2017] NASC (19 June 2017).

**********************************************************

PRACTICE

Procedure - Raising a point for the first time on appeal - Namsov Fishing Enterprises (Pty) Ltd (the respondent) and Merit Investments Eleven (Pty) Ltd (appellant), entered into a sourcing fee agreement which included an arbitration clause. A disagreement pertaining to payments for fishing quota exploitation rights arose between the parties – Namsov instituted an action against Merit for payment of the sums of N$ 7,360 000 and N$ 3,750 000. Merit resisted an application for summary judgment by relying upon the arbitration clause in their sourcing fee agreement. The matter proceeded to arbitration. The parties agreed upon an arbitrator and the terms of arbitration. This was confirmed in writing in a letter by Namsov’s lawyers to Merit’s lawyers – The arbitrator appointed to adjudicate the dispute between the parties made an award in favour of Namsov for payment of those sums. Namsov then applied to the High Court to make the award an order of court in terms of section 31 of the Arbitration Act 42 of 1965. The application was opposed on the basis that the award did not dispose of all obligations between the parties. The High Court rejected this defence – On appeal, Merit no longer pursued its defence in the High Court but raised a new point for the first time, namely that Namsov had not established a written arbitration agreement in its application papers as required by s 31 of the Arbitration Act – The court reiterated the test for raising a point for the first time on appeal. It must be covered by the pleadings and its consideration should raise no unfairness to the other side. The court found that these requirements were not met and that there was also no basis for the point on the facts –The court found that Merit’s answering affidavit in the application

24 | P a g e

confirmed the terms of the arbitration agreement set out in the letter by Namsov’s lawyers. A written agreement need not have all the parties’ signatures, but be reduced to writing. Merit’s opposition in the High Court accepted the existence of a valid arbitration agreement. Furthermore, Merit would have had to deal with the arbitration clause relied upon it for the referral to arbitration and why the recordal of the terms of the arbitration as set out in Namsov’s lawyer’s letters was not a proper record of the agreement to arbitrate, particularly given the fact that Merit had participated in the arbitration and raised no point there or in the High Court as to a lack of jurisdiction by the arbitrator – The court found that the new point raised on appeal was contrary to Merit’s pleaded position on the facts and further found that a written agreement to arbitrate as contemplated by the Arbitration Act was established by Namsov – In a concurring judgment, the Deputy Chief Justice found that the primary case relied upon in argument by Merit did not support the point taken on appeal for the first time. He also held that once the parties had accepted the High Court had jurisdiction, it was not for the presiding judge to second-guess them and make his own enquiry into the issue as to the true facts concerning jurisdiction. He held that the High Court was on the fact entitled to assume jurisdiction on the facts of the case. Merit Investment Eleven (Pty) Ltd v Namsov Fishing Enterprise (Pty) Ltd (SA 23/ 2016) [2017] NASC (24 March 2017)

**********************************************************

Defective record: The lodging of a defective record amounts to non-compliance with rule 5(5) resulting in the lapsing of an appeal. Rules of court are adopted in order to ensure fair and expeditious resolution of disputes in the interests of all litigants, including lay litigants, and to ensure the fair administration of justice generally –The consequence of non-compliance with rules 8(2) and 8(3) is that the appeal is deemed to have been withdrawn and may be struck from the roll. Non-compliance with rules 5(5), 8(2), 8(3) by a litigant necessitates the lodging of an application for condonation as well as reinstatement of the appeal –The appellant never applied for the reinstatement of his appeal, never provided security for costs and filed no proper record. These failures constitute insurmountable barriers to this appeal. No prospects of success on the merits found –Where non-compliance with the rule is glaring, flagrant and inexplicable court may not consider the prospects of success on the merits –The registrar may in terms of rule 5(16) refuse to accept copies which do not in his or her opinion comply with the provisions of rule 5.- Somaeb v Standard Bank Namibia Ltd (SA 24-2014) [2017] NASC ( 27 February 2017)

*************************************************************

25 | P a g e

RECUSAL

Recusal - Application for recusal of trial judge – test restated – applicant must show not only that the apprehension is that of a reasonable person but that it is also based on reasonable grounds – There is a clear distinction between instances where the bias arises as a result of outside factors and instances where a litigant complains of the conduct of the trial judge. Instances where bias was claimed as a result of the conduct of the judge during the trial itself were rare – The view that it is rare to successfully raise the exceptio recusationis as a result of the conduct of a presiding officer during trial proceedings is the general rule and does not exclude the possibility of exceptions – An example of such an exception is where a judge had previously expressed himself or herself in regard to an issue or the credibility of a witness which was still live and which was of importance in the matter before him or her – Trial judge expressed strong views and prejudged an issue which was still live and of importance to the defence of the appellants – Impartiality of a judge goes to the heart of the matter and is fundamental to a fair trial. Impartiality requires a mind open to persuasion by the evidence and the submissions of counsel. Lack of impartiality may well form the basis of an apprehension of bias – The test is not whether the judicial officer was in reality impartial or is likely to be impartial but it is the reasonable perception of a party as to his or her impartiality that is important – In casu, concern that the judge a quo would come to the same conclusion in the event that the validity of disputed documents are to be argued in future during the course of the trial, was a valid and justified concern – Apprehension of bias in the circumstances of this case was that of reasonable individuals and such apprehension was based on reasonable grounds. The judge a quo should have recused himself. Lameck v S (SA 15 - 2015) [2017] NASC (19 June 2017)

**********************************************************

Recusal – Previous Conviction - The trial judge in this case recused herself when it became apparent to her that the respondent (the accused), being tried before her, was in the meantime convicted of another unrelated and undisclosed offence. The judge invited counsel to address her on whether or not she should recuse herself. Although invited to do so, the accused did not express a view whether or not the judge should recuse herself. It is clear from the record that the offence the accused was apparently convicted of was never disclosed to the judge. Prosecuting counsel did not support the judge’s recusal but the accused’s counsel did, hence the appeal by the State –The trial judge concluded that her knowledge of the accused’s status as a convict made her uncomfortable and that it infringed on his right to a fair trial as contemplated in Art 12(1) of the Namibian Constitution; that her discomfort in presiding in the matter caused the accused to entertain a reasonable apprehension that she would be biased against him –

26 | P a g e

On appeal, court held that there is in our law no absolute rule that merely upon becoming aware that an accused is a convicted criminal the trial judge must recuse himself or herself. A recusal will be justified if it becomes apparent to the trial judge that the previous conviction has a striking similarity to the case before court or the conviction in question appears proximate in time and place to the one before the trial judge. The guiding principle must always be the imperative to avoid potential prejudice to the accused –Court further held that the notion that knowledge of an accused’s conviction, regardless of its seriousness or similarly, has the effect of rendering a trial inherently unfair is one that cannot be supported. The considerations which weigh heavily in a jury system do not find application in Namibia where professional judges and magistrates try facts and are guided by (a) what is admissible evidence and (b) a very high standard of proof (beyond reasonable doubt) in a criminal trial –The court further held that the trial judge misdirected herself and the recusal was not justified in the circumstances of this case. The appeal succeeds and the case remitted to the trial judge to finalise the trial. S v S H (SA 29 - 2016) [2017] NASC (19 July 2017)

************************************************************

Reasonable apprehension of Bias: This appeal is against the judgment of the High Court dismissing an application brought by the appellant and tenth respondent to review and set aside criminal proceedings before the magistrate’s court. The criminal trial forming the subject matter of this appeal has not been finalised as it has been interrupted during the course of the trial by a recusal application – Appellant and tenth respondent were arraigned in the magistrate’s court on various charges under the Anti-Corruption Act, 8 of 2003. Both accused tendered pleas of not guilty and gave no plea explanations. The trial was presided over by the first respondent. The State led evidence to establish that the appellant had not paid the costs involved in the installation of the pool at his residence. At the conclusion of the State's case both accused applied for discharge on all charges to which they had pleaded not guilty. The magistrate dismissed the application and postponed the trial to a later date for continuation – When the trial resumed, the appellant called one witness, Mr. Mckay, an ex-policeman and detective who appellant had asked to do certain investigations on his behalf. The witness during his testimony produced statements that he had procured from certain persons. Some of the statements procured by Mckay contained allegations that the first respondent (presiding officer) and the prosecutor were plotting to find the appellant guilty of the charges he was facing. In the light of these allegations, appellant and tenth respondent brought an application for the recusal of the first respondent alleging that they may not receive a fair trial – After hearing arguments, the first respondent (presiding officer) dismissed the application on the basis that the appellant

27 | P a g e

and tenth respondent have failed to establish facts to prove that there existed reasonable apprehension of bias on their part. Dissatisfied with this ruling, the appellant and tenth respondent brought a review application in the High Court to set aside the decision of the first respondent. The High Court dismissed the review application and remitted the matter back to the magistrate’s court to proceed with the criminal trial against the appellant and tenth respondent. It is their dissatisfaction that culminated into this appeal – On appeal, the appellant argued that the investigation by an official of the Anti-Corruption Commission was flawed. In this respect the appellant contended that the official failed to take a statement from the owner of the entity (Mr Kühn) that had installed the pool who corroborated the versions of the appellant and tenth respondent. The appellant further argued that the prosecutor should not have proceeded with the trial as the Prosecutor-General was unaware of the corroborating version by Mr. Kuhn at the time she made her decision to proceed with the prosecution. Regarding the recusal, the gist of appellant’s argument was basically that the statements presented were sworn statements that indicated untoward conduct of the first respondent and this in itself was sufficient to create a reasonable apprehension of bias – Court on appeal held that the concern raised against the investigation process assuming an irregularity was established, was not of such a nature so as to constitute a vitiating irregularity. The refusal by the Prosecutor-General to terminate the proceedings against the appellant and tenth respondent could thus not be faulted – Court on appeal further held that the statements containing the alleged untoward conduct of the first respondent amounted to inadmissible hearsay evidence and concluded that the appellant and tenth respondent failed to establish the facts necessary for them to either infer bias or a reasonable apprehension of bias. The appeal dismissed with costs. Aupindi Tobias v Magistrate Helvi Shilemba and 9 Others (SA 7-2016) [2017] NASC (14 July 2017)

*****************************************************************

REVIEWS

Irregularities by the court a quo: In the High Court, the applicant (plaintiff) instituted action against the first respondent (defendant) based on a partly oral and partly written agreement dating back to June 2005. The first respondent defended the action but did not file its plea. It however elected to serve and file an exception against the applicant’s particulars of claim on the basis that the particulars did not disclose a cause of action, alternatively were vague and embarrassing – After hearing arguments on behalf of the parties, the court upheld the exception and afforded the applicant 14 (fourteen) days to remove the cause of complaint. Disgruntled by this decision, the applicant brought an application in terms of section 16 of the Supreme Court Act 1990 to review the

28 | P a g e

proceedings of the High Court and to correct or set aside that part of the judgment dealing with the cause of the complaint and the order made by the court on 19 April 2013. Section 16 gives this court powers to review proceedings of the lower court if they are tainted by an irregularity – The applicant contended that the basis on which the presiding judge upheld the exception was not raised as a ground of exception by the first respondent. The first respondent, although not taking part in the proceedings of this court, admitted in its answering affidavit that the decision of the lower court was wrong as it considered and decided a matter not raised by the parties. The alleged irregularity is also acknowledged by the presiding judge in response to an invitation by the court – The court is satisfied that an irregularity occurred in the High Court’s proceedings necessitating the review of the proceedings of that court. The court holds that the lower court’s judgment constitutes an irregularity in the proceedings as contemplated in s 16 of the Act – The order of the lower court made on 19 April 2013 is set aside and substituted with an order dismissing the first respondent’s exception with costs. The court remits the matter to the lower court to be placed under judicial case management process. Ardea Investments (proprietary) Limited v Namibian Ports Authority and Others (SA 4/2013) [2017] NASC (28 March 2017)

29 | P a g e