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CIVIL INDEX TO HIGH COURT UNREPORTED HIGH JUDGMENTS DELIVERED COURT CIVIL JUDGMENT INDEX DURING 2013

2013

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COMPILED BY: MS. LOTTA AMBUNDA JUDICIAL RESEARCH ASSISTANT DIRECTORATE: REGISTRAR OF HIGH AND SUPREME COURT

THE HIGH COURT JUDGMENT INDEX 2013 THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2013. THE INDEX IS COMPILED TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT AUTHORITIES. THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGEPRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.

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Table of Contents
SUBJECT INDEX ................................................................................................................................ 7 ABSOLUTION FROM THE INSTANCE ........................................................................................... 7 ADMINISTRATIVE LAW ..................................................................................................................... 7 APPLICATIONS ................................................................................................................................... 9 CASE MANAGEMENT RULES ....................................................................................................... 10 CONSTITUTIONAL LAW ................................................................................................................. 11 CONTEMPT OF COURT.................................................................................................................. 13 CONTRACT ........................................................................................................................................ 14 COSTS ................................................................................................................................................ 16 DEFAMATION .................................................................................................................................... 16 DEFAULT JUDGMENT..................................................................................................................... 17 ETHICS ............................................................................................................................................... 17 EJECTMENT ...................................................................................................................................... 18 JURISDICTION .................................................................................................................................. 18 INTERPRETATION OF STATUTES............................................................................................... 18 INQUEST ............................................................................................................................................ 19 JUDICIAL CASE MANAGEMENT RULES .................................................................................... 20 LAW OF DELICT ............................................................................................................................... 20 LAW OF EVIDENCE ......................................................................................................................... 23 LAW OF PROPERTY........................................................................................................................ 23 LOCUS STANDI ................................................................................................................................ 24 MATRIMONIAL .................................................................................................................................. 24 CONSOLIDATED PRACTICE DIRECTIVES ................................................................................ 27 PRACTICE AND PROCEDURE ...................................................................................................... 27 RES JUDICATA ................................................................................................................................. 35 REVIEW .............................................................................................................................................. 35 SECURITY FOR COSTS ................................................................................................................. 36 SPOILATION ...................................................................................................................................... 36 VINDICATION .................................................................................................................................... 36 WARRANTS ....................................................................................................................................... 37 CASE SUMMARIES .......................................................................................................................... 37 Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare (A 163/2012) [2013] NAHCMD 179 (27 June 2013). ........................................................................................... 37

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Ardea Investments (Pty) Ltd v Namibia Ports Authority (I 553/2009) [2013] NAHCMD 107 (19 April 2013) .................................................................................................................................... 38 Aurecon Namibia (Pty) Ltd v The Roads Authority (A 250/2012) [2013] NAHCMD 21 (28 January 2013). ................................................................................................................................... 40 Beukes v Brockerhoff (I 2625/2012 [2013] NAHCMD 54 (19 February 2013) ......................... 40 Burow v Itula (I 545/2011)[2013] NAHCMD 26 ( 31 January 2013) .......................................... 41 BV Investments 264 CC v FNB Namibia Holdings Ltd (I 471/2010) [2013] NAHCMD 29 (15 February 2013)................................................................................................................................... 41 Chaune v Ditshabue (A 5/2011) [2013] NAHCMD 111 (22 April 2013) .................................... 42 Christian v The Chairperson of the Disciplinary Committee (A 199/2012) [2013] NAHCMD 177 (21 June 2013). .......................................................................................................................... 42 DJV Construction CC v Geldenhuys (I 842/2011) [2013] NAHCMD 158 (11 June 2013) ..... 43 Du Plessis v Namene (I 235-2009) [2013] NAHCMD 112 (25 April 2013) ............................... 43 Du Toit v Dreyer (I 1751/2007) [2013] NAHCMD 64 (08 March 2013) ..................................... 44 Enghali v Nghishoono (A 195/2007) [2013] NAHCMD 93 (8 April 2013).................................. 44 Expedite Aviation cc v The Minister of Works and Transport (A 168/2013) [2013] NAHCMD 184/2013 (30 May 2013). ................................................................................................................. 45 Farmer v Kriessbach (I 1408/2010 I 1539/2010) [2013] NAHCMD 128 (16 May 2013) ..... 45 Hamutenya v Gameb (A 33/2013) [2013] NAHCMD 45 (20 February 2013) ........................... 46 Hamutenya v Shipanga (A 204/2012) [2013] NAHCMD 164 (13 June 2013) .......................... 46 HAW Retailers CC t/a Ark Trading v Tuyenikelao Nikanor t/a Natutungeni Pamwe Construction CC (A 151/2008) [2013] NAHCMD 121 (17 April 2013)....................................... 46 Herbert v Britz N.O. (I 2188/2006) [2013] NAHCMD 39 (14 February 2013) ........................... 47 Hoebeb v Hoebes ((P) I 1035/2011) [2013] NAHCMD 57 (4 March 2013) .............................. 48 Hoeseb v Hoeseb (I 3140/2009) [2013] NAHCMD 116 (30 April 2013).................................... 48 In re: Outjo Inquest 30 of 2012; In re: Outjo Inquest 48 of 2012 (CR 1-2013; CR 2-2013) [2013] NAHCMD 1(7 January 2013). .............................................................................................. 48 Iyambo v Minister of Safety and Security (I 3121/2010) [2013] NAHCMD 38 (12 February 2013).................................................................................................................................................... 49 Jeandre Development CC v Moolman (I 3221/2010) [2013] NAHCMD 172 (20 June 2013) 50 Johannes JA Gabrielsen v Crown Security CC (I 563/2007) [2013] NAHCMD 124 (13 May 2013) .................................................................................................................................................... 50 Kamuhanga v The Master of the High Court of Namibia (A 381/2010) [2013] NAHCMD 144 (30 May 2013) .................................................................................................................................... 51 Kandando v Namibia Medical Care (I 2047/2010) [2013] NAHCMD 86 (4 April 2013). ......... 51 Kagwe v Kagwe (I 1459/2011) [2013] NAHCMD 71 (30 January 2013) ................................... 53 Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013) ...................................... 53 Kanime v The Ministry of Justice (A 166/2011) [2013] NAHCMD 73 (19 March 2013).......... 54 4|Page

Kasita v Iipinge (I 1321/2011) [2013] NAHCMD 72 (14 March 2013) ....................................... 55 Katjaimo v Katjaimo (I 2266-2009) [2013] NAHCMD 98 [15 April 2013]. ................................. 55 Katjizeu v The Government of the Republic of Namibia (A 235/2009) [2013] NAHCMD 17 (29 January 2012). ............................................................................................................................ 56 Kotze v Kotze (I 2572/2011) [2013] NAHCMD 96 (9 April 2013) ............................................... 56 Kurtz v Kurtz (A 115/2012) [2013] NAHCMD 178 (27 June 2013) ............................................ 56 Labuschagne v Scania Finance Southern Africa (Pty) Ltd (I 3572/2011) [2013] NAHCMD 143 (30 May 2013) ............................................................................................................................ 57 Lucian Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford (I 303/2006) [2013] NAHCMD 22 (28 January 2013) ..................................................................................................... 57 Lderitz Tuna Exporters (Pty) Ltd v Cato Fishing Enterprises CC (I 3961/2011) [2013] NAHCMD 166 (18 June 2013) ......................................................................................................... 58 Malumbano v Government of the Republic of Namibia (I 317-2012) [2013] NAHCMD 113 (25 April 2013) .................................................................................................................................... 58 Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise Operations (Pty) Ltd (A 171/2013) [2013] NAHCMD 156 (07 June 2013) .................................................... 59 Miljo v Minister of Safety and Security (A 51/2013) [2013] NAHCMD 126 (17 May 2013) .... 59 Moussa v The Prosecutor-General (A 92/2013) [2013] NAHCMD 103 (15 April 2013) ......... 60 Municipality Council Of Windhoek v Telecom Namibia Limited (A 151/2007) [2013] NAHCMD 56 (1 March 2013). .......................................................................................................... 60 Nambala v Anghuwo (I 3570/2010) [2013] NAHCMD 97 (9 April 2013). .................................. 61 Nampost Limited v Hiwilepo (I 3253/2007) [2013] NAHCMD 18 (29 January 2013) ............ 62 Nel v Burger (A 80/2013 [2013] NAHCMD 106 (11 April 2013) ................................................. 62 Nghikofa v Classic Engines CC (I 887/2010) [2013] NAHCMD 27 (30 January 2013) .......... 63 Ntinda v Hamutenya & Others (I 1181/2012) [2013] NAHCMD 150 (6 June 2013). ............... 63 Nufesha Investments CC v Namibia Rights and Responsibilities Inc. (A 337/2012) [2012] NAHCMD 112 (28 December 2012) ............................................................................................... 64 Nujoma v Nujoma (I 3838/2011) [2013] NAHCMD 88 (5 April 2013). ....................................... 65 OBM Engineering & Petroleum Distributors CC v Total Namibia (Pty) Ltd (I 3625/2007) [2013] NAHCMD 20 (28 January 2013) ......................................................................................... 65 Oka Investments (Pty) Ltd v The Chair of the Tender Board for the City of Windhoek (A 66/2013) [2013] NAHCMD 89 (5 April 2013). ................................................................................ 66 Oryx Development Group (Pty) Ltd v Government of the Republic of Namibia (A 1635/2011) [2013] NAHCMD 129 (20 MAY 2013)............................................................................................. 67 Otto v Ekonolux (I 3094/2012) [2013] NAHCMD 165 (14 June 2013). ..................................... 67 Patrick Inkono v The Council of the Municipality of Windhoek (A 55/2013) [2013] NAHCMD 140 (28 May 2013) ............................................................................................................................ 68 Parcel Force (Pty) Ltd v Nambat & Logitech CC (I 3935/2010) [2013] NAHCMD 81 (28 March 2013). ...................................................................................................................................... 69 5|Page

Pienaar v The Prosecutor-General (A 72/2013) [2013] NAHCMD 85 (2 April 2013). ............. 70 Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013). ......................................................... 70 Sinfwa v Shipahu (I 1326/2011) [2013] NAHCMD 127 (16 May 2013) ..................................... 71 Smith v Mediva Fisheries (Pty) Ltd and Another (I 429/2012) [2013] NAHCMD 152 (06 JUNE 2013) .................................................................................................................................................... 71 Standard Bank Namibia Limited v Kamwi (I 2149/2008) [2013] NAHCMD 63 (7 March 2013) .............................................................................................................................................................. 72 Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 68 (12 March 2013).................................................................................................................................................... 73 Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 131 (17 May 2013) .................................................................................................................................................... 73 The Government of the Republic of Namibia v Jansen (I 2617/2010) [2013] NAHCMD 171 (20 June 2013) ................................................................................................................................... 73 The Municipal Council of Windhoek v Hansen (A 317/2011) [2013] NAHCMD 14 (25 January 2013) .................................................................................................................................... 74 The Prosecutor General v Uuyuni (POCA 4/2012) [2013] NAHCMD 67 (12 March 2013) .... 74 Van der Berg v Ashilungu (I 574/2011) [2013] NAHCMD 151 (6 June 2013) .......................... 76 Van Wyk v Old Mutual Life Assurance Company Namibia (I 3209/2009) [2013] NAHCMD 53 (19 February 2013) ............................................................................................................................ 76 Van Wyk v van Wyk (I 3793/2012) [2013] NAHCMD 125 (14 May 2013) ................................ 76 Voigts v Voigts (I 1704/2009)[2013] NAHCMD 176 (24 June 2013) ......................................... 77 Wellco Truck and Trailer Repairs CC v WW Construction CC (I 3794/2008) [2013] NAHCMD 8 (17 January 2013) .......................................................................................................................... 78 Wylie v Villinger (A 42/2012) [2012] NAHCMD 69 (13 February 2013) .................................... 78

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SUBJECT INDEX

ABSOLUTION FROM THE INSTANCE Absolution from the instance Trustees sued by trust creditors in their personal capacities Argued that in law trustees cannot be held liable in their personal capacities by trust creditors. Held that in principle trustees can be held personally liable depending on the facts. Herbert v Britz N.O. (I 2188/2006) [2013] NAHCMD 39 (14 February 2013) Absolution from the instance - Application for absolution in defamation action on grounds that it was not established that there was a reference to certain plaintiffs in a newspaper article the test as to whether there is reference to plaintiffs restated. University of Namibia v Kaaronda (I 1838/2010) [2013] NAHCMD 4 (16 January 2013). Absolution from the instance Test whether there is evidence upon which a Court may find for the plaintiff Where plaintiff relies on actual authority granted by defendant to person representing it, it is incumbent to establish that actual authority exits If the existence of a Close Corporation is placed in issue, the founding papers must be produced When specific damages are claimed absolution from the instance will be granted if plaintiff is in possession of relevant evidence which he does not produce. Goamub Quick Security Services CC v Grinaker LTA Namibia (Pty) Ltd (I 167/2012) [2013] NAHCMD 190 (10 July 2013).

ADMINISTRATIVE LAW Administrative law - Administrative action - What constitutes - Decision to recommend removal of a person as a senior traditional councillor - Such being administrative action and thus reviewable. Chaune v Ditshabue (A 5/2011)[2013] NAHCMD 111 (22 April 2013) Administrative law - Administrative action - Procedural fairness - Reasonable opportunity to make representations - Whether the mere fact that affected individual present at meeting where his removal was discussed amounts to an opportunity to be heard. Person unaware that the meeting is intended as opportunity for making of representations, and decision-makers not disclosing concerns that might lead them to adverse decision - Opportunity not given. Chaune v Ditshabue (A 5/2011)[2013] NAHCMD 111 (22 April 2013). Administrative law - Administrative action - Review - Domestic remedies - Duty to exhaust internal remedies before instituting legal proceedings - Requirement not
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absolute - jurisdiction of Court to review administrative action deferred only if and to extent that contract, governing relationship between the parties creates, either expressly or impliedly, obligation first to exhaust internal remedies even then court retaining a discretion to condone the failure to exhaust internal remedies were this might be inappropriate or inadequate for instance or where such process would also be tainted by a material irregularity which might vitiate the entire process complained of and in which circumstances it would make no sense to defer the decision on the merits of this matter until the internal remedies have been exhausted. Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013) Administrative law - Administrative action - Review - Domestic remedies - Duty to exhaust internal remedies before instituting legal proceedings - Requirement not absolute - If a domestic tribunal fails to act in accordance with natural justice, the person affected by their decision can always seek redress in the courts. Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013) Administrative law - Administrative act - Invalidity of - Consequences of invalidity Until invalid administrative action set aside by court in proceedings for judicial review, it exists in fact and it has legal consequences that cannot simply be overlooked. Expedite Aviation cc v The Minister of Works and Transport (A 168/2013) [2013] NAHCMD 184/2013 (30 May 2013). Administrative law - Administrative act - Invalidity of - Consequences of invalid decision taken by Permanent Secretary would Minister be entitled to disregard the Permanent Secretarys decision and replace same with his own as a result of being the nominal head of the Director of Civil Aviation who should have made the decision in the first place Court holding that he was not so entitled and that the decision of the Permanent Secretary even if irregular - would have to stand until set aside in proceedings for judicial review until such time it continued to exist in fact and would have legal consequences - Expedite Aviation cc v The Minister of Works and Transport (A 168/2013) [2013] NAHCMD 184/2013 (30 May 2013).

Administrative law Judicial review Judicial review of decision of an administrative official (the first respondent) Conduct of the rest of the respondents is not subject to judicial sought to be reviewed in the present proceeding Grounds of review are those set out in Article 18 of the Namibian Constitution which encompass common law grounds Applicant failed to discharge the onus cast on her to satisfy the court that
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good grounds exist to review the decision of the first respondent Consequently, application dismissed with costs. Kamuhanga v The Master of the High Court of Namibia (A 381/2010) [2013] NAHCMD 144 (30 May 2013). Administrative law - Waiver - Reliance on waiver - Party alleging waiver bears onus to prove waiver - Must prove that party had knowledge of right abandoned; that abandonment was express or implied or by conduct; that such abandonment was conveyed to other party, expressly, or impliedly or by conduct. Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013).

APPLICATIONS Applications The applicant sought a referral to trial in 2 applications under Rule 6(5)(g). Power of court to dismiss applications when a dispute of fact should have also been anticipated discussed. Applicants founding affidavit raising sketchy averments in support of relief and applicant failed to reply to answering affidavit. Court exercising discretion to decline to refer matters to trial and dismissed applications. Lubbes Auto Centre CC v Druppel Investments CC and Lubbes Auto Centre v Grout Investments CC (A 17/2011 and A 16/2011) [2013] NAHCMD 59 (6 March 2013). Applications Application for an order to remove illegal structures situated on respondents Erf Principles relating to how a court will deal with a dispute of fact where denials are bald and unsubstantiated, alternatively not genuine or bona fide when onus on respondent restated Waiver Principles relating to proof of waiver and onus restated Practice annexures to affidavits, principles relating to how annexures are to be identified and referred to restated. The Municipal Council of Windhoek v Hansen (A 317/2011) [2013] NAHCMD 14 (25 January 2013) Application for recusal of judge Service - Applicants application for recusal not served on respondent the latter entitled to service and having an interest in its outcome application struck from the roll. Opposed application under Rule 8 (2)(b) of the Supreme Court rules. No heads of argument filed by the applicant. Matter struck from the roll with costs and not to be enrolled by him until he pays the respondents taxed costs. Christian v Namibia Financial Institutions Supervisory Authority (A 196/2012) [2013] NAHCMD 99 (12 April 2013). Application for recusal Principles restated Double requirement of reasonableness Apprehension of bias not reasonable nor reasonability held Application dismissed.

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Januarie v Registrar of High Court & others (I 396/2009) [2013] NAHCMD 170 (19 June 2013). Application - Application for expungement of trade marks under Act 48 of 1973. Preliminary point raised of non-compliance with s 65 of Act 48 of 1973 which requires prior notice for an application to the registrar of trade marks. Preliminary point without a factual basis and also bad in law. Answering affidavit late. Application for condonation refused because of a weak explanation and unmeritorious defences to application. Defence of priority use not established. Trade marks registered without sufficient cause under s 33 of Act 44 of 1973 and conflict with s 36 (1) of that Act. Application expunge trade marks from register granted. Elisenheim Property Development Company (Pty) Ltd v Guest Farm Elisenheim & Others (A 295/2012) [2013] NAHCMD 187 (5 July 2013).

CASE MANAGEMENT RULES Case management rules - Sanctions in terms of Rule 37(16) When to be imposed After defaulting in various respects with the case management rules and various noncompliances with case management rules court ordering hearing for purposes of determining the lawfulness or not of such non-compliances At such hearing and after considering the explanations offered by the defendants legal practitioner court finding that no lawful excuse for any of the non -compliances had been established Court then proceeding to consider what sanctions to be imposed Court finding that the ultimate issue to be determined was which of the possible sanctions would befit the occasion in the sense that such sanction would also be just In this process court finding that it was clear that the court - in most instances would - as a point of departure - avoid imposing a sanction that would, so- to- speak, shut the doors of the court to a litigant Court thus departing from this premise History of matter however showing that a previous punitive costs order de boni propriis had no deterrent effect given the subsequent serial non-compliances with the courts rules and orders by defendants legal practitioner Punitive costs order thus no longer an option Question thus arising whether defendants legal practitioners remissness in the matter should be attributed to his client or not? Court finding that the limit beyond which a litigant cannot escape the results of his legal practitioner's lack of diligence or the insufficiency of the explanations tendered had been reached and that to hold otherwise might have a disastrous effect upon the observance of the rules of this court, the courts orders and the objects and purpose of the case management process in general Court therefore imposing the sanctions contemplated in Rule 37(16)(iii) of the Rules of Court Court also ordering the defendants legal practitioner to bear the resultant costs de bonis propriis at the
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same time referring the conduct of defendants legal practitioner to the Law Societ y of Namibia for investigation. Namhila v Johannes (I 3301/2011) [2013] NAHCMD 50 (28 January 2013).

CONSTITUTIONAL LAW Constitutional Law - Constitutionality of the Prevention of Organized Crime Act 29 of 2004 (POCA) Preservation order brought Ex parte Pleading not specifically and clearly setting out the foundation of the cause of action Overall and statutory context of POCA emphasized Chapter 6 aimed at asset forfeiture and remedy directed at the proceeds and instrumentalities of crime and not the person Civil proceedings as opposed to criminal proceedings and can be instituted simultaneously with criminal prosecution of the accused Evidence must disclose that the property in question is an instrumentality of an offence referred to in schedule 1 or the proceeds of unlawful activities Applicants challenge three fold: forfeiture order against Article 12, 16 and le 8 of the Namibian Constitution Court holding that civil forfeiture orders requires prove on a balance of probabilities and not beyond a reasonable doubt as in criminal cases Article 12, 16 and 8 therefore not engaged Application dismissed with costs. Shalli v The Attorney General (POCA 9/2011) [2013] NAHCMD 5 (16 January 2013) Constitutional law - Application for confirmation of a provisional preservation order granted in terms of Section 51(2) of The Prevention of Organized Crime Act 2004 Provisional order granted ex parte and in camera against Article 12 of the Namibian Constitution. The Prosecutor General v Uuyuni (POCA 4/2012) [2013] NAHCMD 67 (12 March 2013). Constitutional law - Urgent application For leave to bring an urgent application for a stay in execution of the applicants home Applicants had been interdicted from instituting further proceedings against first respondent applicants relying on Articles 25(2) and 12(1) of the Constitution Court holding that in circumstances of the casewhere the to be interdicted event, was already overtaken by events - no infringement of Articles 25(2) or 12(1) would occur if the application were to be refused and any such refusal would also not, in such circumstances, deny the applicants access to justice application accordingly dismissed with costs. BV Investments 264 CC v FNB Namibia Holdings Ltd (A 99/2013) [2013] NAHCMD 130 (17 April 2013). Constitutional law - Constitutional defence - Constitutional practice High Court respondents sought to attack the constitutional validity of a default judgment granted by clerk of the magistrates court and the subsequent execution process as a result of which applicant obtained title to the property from which she now sought the
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respondents eviction no basis for constitutional challenge of the Magistrates Court Act 1944 and Rules however laid in the papers - parties, seeking to challenge the constitutionality of legislation however need to set out a proper basis therefore in their founding papers in which the constitutional provisions relied upon should be identified - a basis should then also be set out then as to how the to be impugned legislation infringes the constitutional right in question - this would include the placing of evidence before the court where required - the placing of all relevant information is necessary in order to warn the other party of the case it will have to meet, so as to allow it the opportunity to present facts or material and legal argument to meet that case respondents constitutional challenge not satisfying these requirements Constitutional defence - Constitutional practice High Court also lay persons not absolved from the duty - when raising a constitutional challenge - to properly specify the constitutional provisions relied upon and to place evidence in support of their challenge before the court respondents also failing in this regard - Constitutional defence - Constitutional practice High Court Non- Joinder - where the constitutionality of legislation is challenged it is normally also considered appropriate to cite the Government, in the person of the Attorney- General or the relevant ministry or statutory agency charged with the administration of the legislation in question respondents also failing to join necessary parties court not upholding constitutional defence also for that reason. Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013).

Constitutional law - Regulation of labour hire in terms of amended s 128 of Labour Act 11 of 2007 and Employment Services Act 2011 - Whether regulation contrary to art 21(1)(j) of Constitution, freedom to carry on economic activity court applying three step enquiry prescribed in Africa Personnel Services v Government of Namibia: the first is to determine whether the challenged law constitutes a rational regulation of the right to practice or to trade; if it does, then the next question arises which is whether even though it is rational, it is nevertheless so invasive of the right to practise that it constitutes a material barrier to the practice of a profession, trade or business. If it does constitute a material barrier to the practice of a trade or profession, occupation or business, then the government will have to establish that it is nevertheless a form of regulation that falls within the ambit of art 21(2). Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare (A 163/2012) [2013] NAHCMD 179 (27 June 2013) Constitutional law - Regulation of labour hire in terms of amended s 128 of Labour Act 11 of 2007 and Employment Services Act 2011 - Applicant in business of providing agency work applicant challenging amendment legislation on the ground that regulation contrary to art 21(1)(j) of Constitution, freedom to carry on economic activity Court adopting a deferential role in the acceptance that economic regulation usually
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involves policy choices by the government and the Legislature. Once it is determined that those choices were rationally made, there would be no further basis for judicial intervention. The courts cannot sit in judgment on economic issues. They are illequipped to do this and in a democratic society it is not their role to do so. Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare (A 163/2012) [2013] NAHCMD 179 (27 June 2013) Constitutional law - Regulation of labour hire in terms of amended s 128 of Labour Act 11 of 2007 and Employment Services Act 2011 - Applicant in business of providing agency work Applicant challenging amendment legislation on the ground that regulation contrary to art 21(1)(j) of Constitution, freedom to carry on economic activity Court finding that the challenged law constitutes a rational regulation of the right of a labour hire agency to practice or to trade Court also holding that regulation was not so invasive of the labour hire entities right to trade or carry on business so that it constitutes a material barrier to the practice of that profession, trade or business respondents accordingly absolved from having to establish that amendment legislation is nevertheless a form of regulation that falls within the ambit of art 21(2) of the Constitution - Regulation of labour hire in terms of the amended s 128 of Labour Act 11 of 2007 and Employment Services Act 2011 accordingly held not to be in conflict with art 21(1)(j). Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare (A 163/2012) [2013] NAHCMD 179 (27 June 2013).

CONTEMPT OF COURT Contempt of court Applicant sought committal for contempt of court of the second respondent for failure to produce record of proceedings Only first respondent, being the Appeal tribunal, may produce the record as the chairmanship might have altered Requirements to prove grounds of contempt reinstated Relief sought untenable matter removed from the roll. Erasmus v Minister of Lands and Resettlement (I 04/2012) [2013] NAHCNLD 21 (18 April 2013). Contempt of court Civil contempt of court Civil contempt of court is proved where act complained of is done willfully and is done in derogation of the courts dignity or due administration of justice. Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 68 (12 March 2013). Contempt of Court Civil contempt of court Civil contempt Sentence Purpose of sentence is to enforce a judgment or an order of court That being the case a suspended sentence on condition that the defaulting party complies with the judgment or order is appropriate. Practice Judgment or order of the court Such is valid and
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enforceable until set aside by a competent court Non-compliance with an order of court is offensive of Article (12)(1) of the Namibian Constitution. Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 131 (17 May 2013)

CONTRACT Contract Action by a building contractor for balance due to him for building works. Plaintiff not establishing a contractual basis for his claim. Olivier v The Defence Force Foundation (I 2460/2010) [2013] NAHCMD 80 (27 March 2013). Contract - Application to rectify written agreement alleged to be ambigious Words used by the parties in the agreement to be given their ordinary meaning unless that would lead to an absurdity Application refused. OBM Engineering & Petroleum Distributors CC v Total Namibia (Pty) Ltd (I 3625/2007) [2013] NAHCMD 20 (28 January 2013) Contract Breach of contract - Claims for breach of agreement to repair tipper trailer. Merits and quantum separated. Breaches established a balance of probabilities. Martran (Pty) Ltd v Oosthuizen (I 1227/2008) [2013] NAHCMD 12 (23 January 2013) Contract Building contract Court rejecting defendants contention that agreement between the plaintiff and defendants was reduced in writing in the form of a Quotation Court rather accepted plaintiffs contention that the agreement between the parties to construct a house was an oral agreement Court finding that plaintiff has proved the terms of the oral agreement whereby the defendants agreed to construct their house themselves and the plaintiff agreed to assist them by giving them technical assistance when solicited and to place its accounts with his suppliers at the disposal of defendants who will pay for such account as asserted by the plaintiff The court accepted evidence of the terms of the oral agreement Court further accepted plaintiffs evidence that N$228 703,61 is due, owing and payable by the defendants to the plaintiff in terms of the parties oral agreement Consequently, court gave judgment for the plaintiff in that amount. Jeandre Development CC v Moolman (I 3221/2010) [2013] NAHCMD 172 (20 June 2013) Contract Compromise What constitutes Effect is that it bars bringing of proceedings on original cause of action Compromise must be properly concluded to have this effect In context of public body like defendant this means that defendant must have had power to conclude compromise In casu defendant did not have statutory power to enter into settlement agreement to pay compensation for claims not arising from section 10 of Motor Vehicle Accidents Fund Act, 2001 (Act 4 of 2001)
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Compromise null and void ab initio. Mbambus v Motor Vehicle Accidents Fund ( I 32992007) [2013] NAHCMD 2 (14 January 2013). Contract Compromise Transactio Nature and legal effect of In casu the compromise embodied in the 21 September 2012 order extinguishes and supersedes the subsequent order of 25 February 2013 Accordingly, the court must give effect to the 21 September 2012 order. Farmer v Kriessbach (I 1408/2010 I 1539/2010) [2013] NAHCMD 128 (16 May 2013). Contract - Compromise Transactio Nature, purpose and legal effect of In casu compromise settled by the parties extinguishes ipso jure the cause of action being delict which the plaintiff pleads The plaintiff does not plead contract which the compromise brought about in the stead of delict which may have existed previously between the parties Accordingly the plaintiffs action based on delict dismissed with costs. Sinfwa v Shipahu (I 1326/2011) [2013] NAHCMD 127 (16 May 2013) Contract Clause providing for consent to be given in writing This provision entrenched by general non-variation clause Landlord and tenant Lease Alleged oral consent given for substitution of tenant Effect. Lida Marie CC v OPortuga Restaurant CC (I 2425-2010) [2013] NAHCMD 109 (23 April 2013). Contract Formation of Signature Signature binds signatory upon the caveat subscriptor rule unless circumstances exist to make the rule inapplicable. Standard Bank Namibia Limited v Kamwi (I 2149/2008) [2013] NAHCMD 63 (7 March 2013) Contract Plaintiff sued the defendant for N$ 62 072.46 for money lent and advanced in respect of a study loan/bursary awarded to defendant Term of the bursary agreement that defendant had to work for the number of years her studies were paid for, or failure to do that, she had to pay back Defendant denied having signed a bursary agreement with plaintiff, in the alternative unenforceable contract as she was a minor and unassisted when she entered into agreement Claim upheld. Nampost Limited v Hiwilepo (I 3253/2007) [2013] NAHCMD 18 (29 January 2013). Contract Purchase and sale of Agricultural land Foreigner Ministers consent required Certificate of waiver not a requirement at that point Consent not obtained Agreement null and void ab initio Both parties contributed to the illegality - Par delictum rule applicable Restitution allowed of purchase price only and not interest. Du Toit v Dreyer (I 1751/2007) [2013] NAHCMD 64 (08 March 2013).

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Contract Repudiation - Contractual claim for repudiation alternatively enrichment in the event of the contract found to be illegal in and conflict with s 6(4) of the Credit Agreements Act, 1980. The court found that both requisites in s 6(4) must be present before illegality arises. The court found that the disputed agreement was a sale agreement and that it was repudiated and awarded damages. Muller v Snydewel (I 702/2010) [2013] NAHCMD 162 (13 June 2013).

COSTS Costs Unjust and unreasonable to mulct a particular party with costs where blameable conduct of both parties caused undue delay in the expeditious disposal of the case. Wellco Truck and Trailer Repairs CC v WW Construction CC (I 3794/2008) [2013] NAHCMD 8 (17 January 2013). Costs Plaintiff not having gained substantial success court departing from rule of practice that costs follow the event. Iyambo v Minister of Safety and Security (I 3121/2010) [2013] NAHCMD 38 (12 February 2013). Costs Costs may not follow event where a party has not been successful substantially in its claim. DJV Construction CC v Geldenhuys (I 842/2011) [2013] NAHCMD 158 (11 June 2013). Costs First respondents points in limine argued fully by both counsel and there is delivered a fully reasoned judgment In those circumstances costs should not be ordered to be determined in due course or to be in the cause. Hamutenya v Shipanga (A 204/2012) [2013] NAHCMD 164 (13 June 2013). Costs Award of costs Costs not to follow event where successful partys counsel disobeyed a court order for filing of heads of argument. Kurtz v Kurtz (A 115/2012) [2013] NAHCMD 178 (27 June 2013).

DEFAMATION Defamation What constitutes Defendants publishing notice in Die Republikein alleging that first plaintiff, a clinical biochemist, was practising under false pretences as a medical doctor and inter alia, committing a criminal offence contrary to the relevant legislation - Court holding that statement defamatory of first plaintiff Onus of proof Once defamation proved, rebuttable presumptions come into play - Defendants having full onus to prove defences raised Defences Truth and public benefit It is lawful to publish a defamatory statement, provided the publication is for the public benefit The
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defendant must prove that the statement is substantially true This does not require proof of each and every fact relied upon Defences Privilege Defendant must show social interest, relationship between parties, relevance of statement to situation Defences - Reasonable publication In appropriate circumstances a non media defendant may raise the defence of reasonable publication on the basis of a persons right to freedom of speech enshrined in Article 21 of the Constitution - The same principles listed in Trustco Group International Ltd and Others v Shikongo 2010 (2) NR 377 (SC) apply. Kandando v Namibia Medical Care (I 2047/2010) [2013] NAHCMD 86 (4 April 2013). Defamation - What is and what is not actionable - Whether words complained of defamatory - Test in exception to claim is whether reasonable person of ordinary intelligence might reasonably understand words to convey meaning defamatory of plaintiff - Such reasonable person taken to understand words in their natural and ordinary meaning - Account to be taken not only of what words expressly say, but also of what they imply - Implied meaning to be distinguished from innuendo. Ntinda v Hamutenya & Others (I 1181/2012) [2013] NAHCMD 150 (6 June 2013).

DEFAULT JUDGMENT Default judgment - Application to declare default judgment void Not launched in terms of Rule 31, 44, or the common law If launched in terms of common law, delay of one year between date default judgment was granted and date application launched in any event unreasonable. Dispute of fact in motion proceedings Principles restated. Van Wyk v Old Mutual Life Assurance Company Namibia (I 3209/2009) [2013] NAHMD 53 (19 February 2013).

ETHICS Ethics Fraudem legis Simulated transaction, for a person to induce a cession to create in his favour a right of action in order to circumvent the provisions of the legal practitioners Act 15 of 1995. Maletzky v Hope Village (I 3274/2011) [2013] NAHCMD 16 (25 January 2013) and Maletzky v Zaaluka (I 492/2009)[2013] NAHCMD 9 (18 January 2013). Ethics - Legal practitioner Rights and duties Authority of legal practitioner. Legal practitioner and client relationship similar to that of principal and agent. Authority to appear on behalf of litigant implies authority to settle case Counsel should always act bona fide and in client's interest. Parcel Force (Pty) Ltd v Nambat & Logitech CC (I 3935/2010) [2013] NAHCMD 81 (28 March 2013).
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EJECTMENT Ejectment - Application for ejectment from premises by owner of the premises Principles applicable to such applications restated - The respondent asserted that it had exercised an option to purchase the premises, but its lease had expired and it was unable to show a basis for its further occupations of the premises - The court in any event found that the option had lapsed and furthermore that the steps to exercise the options were not effective. Agricultural Bank of Namibia v Witvlei Meat (Pty) Ltd (A 98/2012) [2013] NAHCMD 75 (20 March 2013).

JURISDICTION Jurisdiction - Jurisdiction High Court Inherent jurisdiction High Court has an inherent jurisdiction to also stay civil proceedings pending the outcome of other civil proceedings - in this regard the court has a discretion, which must be sparingly exercised on strong grounds, with great caution and in exceptional circumstances discretion is a judicial discretion of the Court to be exercised inter alia with due regard to the parties conflicting rights and interests and the incidence of convenience and prejudice - this power is exercised by the court to prevent an abuse of its process in the form of vexatious litigation - and if an action is already pending between the same parties on the same cause of action Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013). Jurisdiction High Court Inherent jurisdiction - in so far as the courts have assumed an equitable discretion to grant a stay of proceedings - courts would exercise any such discretion in the recognition that the courts do not just simply administer a system of equity in the abstract, as distinct from a system of law, and that also in Namibia - when considering the 'equities of a case, in the broad sense - the courts will always be desirous to administer equity in accordance with the principles of the Roman-Dutch law and in accordance with Namibian law - and if the courts cannot do so, in accordance with those principles, they cannot do so at all. Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013).

INTERPRETATION OF STATUTES Interpretation of Statutes Statute Interpretation Close Corporation Act, s 2(3) and s 26(5) - Court finding that while the application of s 2(3) is limited by the application of other provisions (including s 26(5)) s 26(5) is not so limited and its application is peremptory The intention of the Legislature is to pierce the veil of incorporation and to make members personally liable for outstanding debts of the close
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corporation upon date of its deregistration Piercing of veil of incorporation is therefore by operation of law. Standard Bank Namibia Limited v Kamwi (I 2149/2008) [2013] NAHCMD 63 (7 March 2013) Interpretation of Statutes - Interpretation of Regulations Conflicting provisions Regulation 6 of the Local Authorities Tender Board Regulations dealing with powers and functions of Tender Boards providing that Tender Board may cancel any agreement concluded by the Tender Board on behalf of a local authority, but that the local authority must take the final decision in respect of the cancellation Regulation 27 of the Regulations providing that in specific instances of a persons non -compliance with the title of the tender or agreement, or delay in performance or unsatisfactory performance the Tender Board may cancel the agreement Two conflicting provisions in same Regulation The established rule of interpretation for resolving such a conflict is that the latter of the two provisions prevails or governs Accordingly the local Tender Board authorised to cancel agreement if delay or unsatisfactory performance occurs. Oka Investments (Pty) Ltd v The Chair of the Tender Board for the City of Windhoek (A 66/2013) [2013] NAHCMD 89 (5 April 2013).

INQUEST Inquest - The magistrate of Outjo held inquests into the circumstances and cause of death of two persons in terms of the Inquests Act, 1993 (Act 6 of 1993) - The magistrate submitted the records of these inquests for review by the High Court or a judge thereof in terms of section 21 of the Inquests Act - The Court considered the provisions of section 18 and 21 of the Inquests Act. Section 18(1) is concerned with a situation where there is reason to believe that an unnatural death has occurred, but there is no body available for a post-mortem examination to be held in terms of section 4 of the Inquests Act - If the evidence proves beyond a reasonable doubt that a death has occurred, the magistrate must record such a finding and proceed to make certain other findings in terms of section 18(2), read with 18(3) - The purpose of section 21 is to provide a statutory mechanism in certain cases whereby a presumption of death may be given legal effect without the need to approach the High Court for such an order in the normal course by way of application under the common law In both these inquests a body was available and a post-mortem examination was held It was therefore not necessary for any finding in terms of section 18(1) to be made The Court found that it is not clear why the magistrate considered it necessary to submit the inquest records for review, as there is no need to presume that the persons in question are dead It is only in cases where no body is available and the magistrate has made (i) a finding in terms of section 18(1) that a death has occurred; (ii) a finding in terms of section 18(2)(a) about the identity of the deceased; and (iii) a finding in terms of section 18(2)(c) about
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the date of death, that section 21 requires submission of the inquest record for review These matters should not have been submitted for review under section 21 of the Inquests Act No orders were made The inquest records were merely returned to the magistrate Section 18 and 21 of the Inquests Act, 1993 (Act 6 of 1993) discussed. In re: Outjo Inquest 30 of 2012; In re: Outjo Inquest 48 of 2012 (CR 1-2013; CR 2-2013) [2013] NAHCMD 1(7 January 2013).

JUDICIAL CASE MANAGEMENT RULES Judicial Case Management - Case management order putting defendant on notice that sanction under rule 37(16) of the rules of court would be invoked if defendant failed to comply with order In subsequent proceeding court invoking rule 37(16) in virtue of defendants failure to comply with order to provide fuller and better trial particulars that is sufficient in terms of 21(4), read with 21(6), of the rules of court. Wellco Truck and Trailer Repairs CC v WW Construction CC (I 3794/2008) [2013] NAHCMD 8 (17 January 2013).

LAW OF DELICT Law of Delict - Common law delict of passing off Not sufficient to establish only that the respondent is using a name or mark similar to that of the applicant, which results in confusion that the business of the respondent is that, or is associated with that of the applicant Incumbent upon the applicant to establish also that as a result thereof the applicant suffers damage or is likely to suffer damage. Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise Operations (Pty) Ltd (A 171/2013) [2013] NAHCMD 156 (07 June 2013). Law of delict Damages - Civil trial Claim against first defendant based on delict for damages arising from theft from employer Claim upheld - Claim against second defendant based on contract for undertaking to pay amount stolen by first defendant Held that no agreement reached as plaintiff did not accept offer to pay, but made a counter-offer, which was not accepted by second defendant Claim dismissed. Basson Enterprises t/a Shoefix v Basson and another (I 23-2011) [2013] NAHCMD 70 (13 March 2013). Law of Delict Damages - Civil trial Claim for damages arising from motor vehicle collision Robot controlled intersection Plaintiff executing right turn when light turned red Second Defendant failing to stop when light turned red Duties of drivers in such situation set out Both drivers held to be negligent and contributing to collision

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Apportionment of damages ordered Plaintiffs claim reduced by 20%. Namene v Mhani and another (I 2543-2010) [2013] NAHCMD 92 (5 April 2013). Law of Delict - Damages Quantum of damages Value of cattle killed Evidence of value given by owner Not called as an expert witness Evidence of value disputed Not best evidence available Value of mahangu millet bartered for meat in mitigation of damages No evidence of such value Court not able to calculate damages Absolution from the instance granted. Abner v K L Construction and Another (I 16762011) [2013] NAHCMD 139 (27 May 2013). See also, Kambwale v PG Glass Namibia (Pty) Ltd & Another (I 1185/2011) [2013] NAHCMD 161 (12 June 2013) Law of Delict - Delict Plaintiffs action based on unlawful arrest and detention by defendants Ministrys police officials Plaintiff brought before a magistrate within 48 hours after arrest and detention in compliance with the Namibian Constitution Defendant therefore conceding liability Court asked to determine quantum of damages only. Iyambo v Minister of Safety and Security (I 3121/2010) [2013] NAHCMD 38 (12 February 2013). Law of Delict - Delict Plaintiff suing defendants for wrongful arrest; and wrongful detention and malicious prosecution Plaintiff was arrested, detained and charged with an offence under the Anti-Corruption Act but found not guilty by the Magistrate Plaintiff not proving claim Claim, therefore, dismissed. Malumbano v Government of the Republic of Namibia (I 317-2012) [2013] NAHCMD 113 (25 April 2013). Law of Delict - Negligence failure to keep a proper look out what constitutes plaintiff and defendant involved in accident plaintiff suing for damages damages plaintiff contributing to the accident negligence of defendant greater than that of plaintiff. du Plessis v Namene (I 235-2009) [2013] NAHCMD 112 (25 April 2013). Law of Delict - Negligence Motorists Statutory duty of driver driving on a road to show reasonable consideration for other persons using the road. Van der Berg v Ashilungu (I 574/2011) [2013] NAHCMD 151 (6 June 2013). Law of Delict Claim for damages in the amount of N$ 400 000.00 for post surgical medical complications Onus rests on the plaintiff Failed to prove negligence on the part of the surgeon Claim dismissed. Bezuidenhout v Nel (I 3107/2010) [2013] NAHCMD 134 (17 May 2013). Law of Delict Claim on motor vehicle collision Counterclaim - requirement to prove pre-collision and post collision value of the motor vehicle not proved by either party
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absolution from the instance granted in respect of both parties. Shitaleni v Ndeyapo (I 68/2012) [2013] NAHCNLD 27 (24 April 2013). Law of Delict - Delictual claim against an employer of a security guard that, on the uncontested facts, gratuitously shot and seriously injured the plaintiff. Vicarious liability of an employer in a claim premised on the facts such as in this case discussed. The Court found the employer vicariously liable for damages arising from the delictual acts of the security guard. Court holding, in this respect, that our law recognises that were a delictual claim is based on an unlawful delictual conduct consisting of a positive act causing physical damage to another person or property such invasion is prima facie wrongful. Further the Court, in the context of the disputed quantum of damages and in view of the defendants failure to place in issue certain quantum claimed by the plaintiff, reiterated the importance of the institution of cross-examination in particular that if a point in dispute is left unchallenged in cross-examination the party calling the witness is entitled to assume that the unchallenged witnesss testimony is accepted as correct. In this respect, with reference to The President of the Republic of South Africa and Others v South Africa Rugby Football Union and Others, 2000 (1) SA 1 CC at par 61 to 63, the Court also adopted the South African Constitutional Courts dicta that the institution of cross-examination not only constitutes a right but it also imposes certain obligations such as that when it is intended to suggest that the witness is not speaking the truth on a particular point it is required to direct the witnesss attention to that fact by question put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his/her character. Johannes JA Gabrielsen v Crown Security CC (I 563/2007) [2013] NAHCMD 124 (13 May 2013). Law of Delict - Negligence - What constitutes - Motor vehicle collision - Defendant colliding with plaintiff's stationary vehicle - General duties of - Should take account of codes and conventions governing movement of traffic on public roads - Failure to do so often giving rise to unexpected and dangerous situations - Driving of motor vehicle in modern traffic conditions requiring substantial degree of skill and experience. Smith v Mediva Fisheries (Pty) Ltd and Another (I 429/2012) [2013] NAHCMD 152 (06 JUNE 2013). Law of Delict - Motor collision Motorists on national roads- Where a vehicle rams into another vehicle from behind, there is prima facie evidence of negligence on the part of the driver of that vehicle. Otto v Ekonolux (I 3094/2012) [2013] NAHCMD 165 (14 June 2013).

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LAW OF EVIDENCE Law of Evidence Admission as to the number of cattle confiscated - Law on admissions restated Respondents bond by admission No full and satisfactory/reasonable explanation provided for admission Respondents bond. Katjizeu v The Government of the Republic of Namibia (A 235/2009) [2013] NAHCMD 17 (29 January 2012). Evidence Burden of proof Court determining which party bears the onus of proving certain assertions made in the proceeding. Jeandre Development CC v Moolman (I 3221/2010) [2013] NAHCMD 172 (20 June 2013).

LAW OF PROPERTY Law of Property - Donations - Local Authorities Act, 23 of 1992 Section 30(1)(t) requires prior approval of Minister when local authority disposes of immovable property Section 30(1)(z)(ii) requires prior written approval of Minister when local authority makes any donation In casu local authority donated undeveloped land to first defendant without such prior written approval Donation null and void Subsequent transfer of land into name of first defendant also null and void. Minister of Regional and Local Government, Housing and Rural Development v Northland Development Project Ltd and others (I 1119-2009) [2013] NAHCMD 145 (31 May 2013). Law of property - Lease Agreement between third respondent and first and second respondent Terms of the agreement not to keep more than 77 cattle or 498 sheep and goats within his property and shall not allow any such animals not owned by him/her on the property A further term that the lessee shall not sub lease, cede, assign, mortgage or hypothecate the property or part thereof or deal with it in any manner without prior written consent of the lessor First respondent entered into a private agreement with applicants to supply water to the applicants live stock Breach of original lease agreement Further breach of s 64 (1) of the Agriculture land Reform Act 1995 (Act 6 of 1995) Counter application by second and third respondent for ejection granted. Enghali v Erastus Nghishoono (A 195/2007) 2013 NAHCMD 66 (1 March 2013). Law of property - Landlord and tenant Eviction from land not forming part of the leased property and which defendant occupies without statutory permission. The Government of the Republic of Namibia v Jansen (I 2617/2010) [2013] NAHCMD 171 (20 June 2013)

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Law of Property - Possession - Requirements There must be the physical control or occupation The detentio of the thing; and there must be the animus possidendi The intention of holding and exercising that possession - Possession of the key would be equivalent to possession of the building. Nufesha Investments CC v Namibia Rights and Responsibilities Inc. (A 337/2012) [2012] NAHCMD 112 (28 December 2012). Law of property Respondent erected pay phone booths on land registered in the name of the applicant (Land reserved for public purposes) - Without an agreement Applicant seeking a declaration that respondent has no right to do so without an agreement Land reserved for public purpose Public thing Phone booths erected for public purpose on land reserved for that purpose-No agreement required. Constitutional Law Section 24 of the Post and Telecommunications Act 19 of 1992 authorizing respondent to enter land registered in the name of applicant reserved for public purpose to erect pay phone booths without an agreement with applicant and without paying compensation. In conflict with article 16 of the Constitution? Held, article 16 protects the right to acquire, own and dispose of property. Held further, no limitation on the enjoyment of property by applicant as the phone booths are erected for the use of the pubic on land reserved for public purposes The very purpose for which land is reserved. Municipality Council Of Windhoek v Telecom Namibia Limited (A 151/2007) [2013] NAHCMD 56 (1 March 2013). Law of property - The plaintiff Registered owner of portion 7 (a portion 6) of Farm Tugab No 21 in possession of the defendants Claiming delivery of same The defendants alleging acquisition of usufruct - The Court, refuses the plaintiffs action and finds in favour of the defendants. Katjaimo v Katjaimo (I 2266-2009) [2013] NAHCMD 98 [15 April 2013].

LOCUS STANDI Locus standi Defendants raised a special plea of lack of locus standi on the part of the plaintiff Plaintiff avers on pleadings that they are beneficiaries under the first will and under common law Will executed in 1977 held to be the only valid will of the deceased - Plaintiff would have benefited under the 2004 will and not the 1977 will Plaintiff has no interest and cannot derive any benefit from the 1977 will Absolution from the instance granted with costs. Husselman v Saem (I 2068/2010) [2013] NAHCMD 65 (08 March 2013).

MATRIMONIAL
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Matrimonial - Action for divorce - on grounds of constructive desertion - Plaintiff must prove three aspects in the preliminary proceedings for a restitution order first - that the court has jurisdiction second - that there has been and still is a marriage; - and third that there has been malicious desertion on the part of the defendant - The onus of proving both the factum of desertion and the animus deserendi rests throughout upon the plaintiff - The restitution order will not be made if after issue of summons the defendant returns or offers to return to the plaintiff, for in that case there is no longer desertion In order to discharge the onus plaintiff must prove conduct which one must not expect in the ordinary course of marriage more particularly such conduct need not to have amounted to a matrimonial offence such as cruelty or adultery but it must exceed in gravity such behaviour vexatious and trying though it maybe, as every spouse bargains to endure when accepting the other for better or for worse. The ordinary wear and tear of conjugal life does not itself suffice. Action for divorce Plaintiffs self- admitted adultery Condonation therefore - Two main considerations will influence the court in deciding whether the plaintiffs adultery sho uld be condoned They are firstly, the respective blame-worthiness of the parties; secondly, the interest of the community at large to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of union which has utterly broken down The court is in no way fettered in the exercise of its discretion. Kagwe v Kagwe (I 1459/2011) [2013] NAHCMD 71 (30 January 2013). Matrimonial Civil appeal against magistrates order Interim protection order struck from the roll by magistrate on the return day because it was not signed. Appeal against this ruling upheld. The original order was sought and granted ex parte. The need for compelling circumstances stressed for granting ex parte orders. Enslin v Enslin (CA 59/2012) [2013] NAHCMD 51 (26 February 2013). Matrimonial - Divorce proceedings Marriage in community of property Plaintiff seeking specific forfeiture order in respect of immovable properties Applicable legal principles re-stated Absolution from the instance granted. Hoeseb v Hoeseb (I 3140/2009) [2013] NAHCMD 116 (30 April 2013). Matrimonial - Obiter Divorce Namibian divorce law outdated Potentially goes against Article 8 of the Namibian Constitution Seems to violate a persons dignity to be required to remain married, with all the obligations which go with marriage, where one clearly does not intend to continue with the marital relationship Urgent reform of divorce laws needed. Voigts v Voigts (I 1704/2009)[2013] NAHCMD 176 (24 June 2013) Matrimonial Divorce Plaintiff suing on the basis of adultery Both parties have entered into adulterous relationships with third parties Plaintiffs adultery needs to be
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condoned first No adultery if plaintiff had thereafter condoned the defendants adultery No desertion if the plaintiff is the one who left the common home Constructive desertion established through the defendants callous conduct - defendant offer for restitution of conjugal rights not genuine Plaintiffs adultery condoned RCR granted. Voigts v Voigts (I 1704/2009)[2013] NAHCMD 176 (24 June 2013). Matrimonial - Husband and wife Matrimonial property regime Marriages governed by Proc 15 of 1928 Such marriages presumed to be out of community of property However, parties can within one month prior to celebration of the marriage jointly declare before the marriage officer that they wish to be married in community of property In that event the marriage will be in community of property. Husband and wife Maintenance of one spouse by the other Spouse asking for spousal maintenance must establish he or she is in need of such maintenance. Kasita v Iipinge (I 1321/2011) [2013] NAHCMD 72 (14 March 2013). Matrimonial - Husband and wife - Gifts between - Necessity for husband to prove that it was a donation properly so called - Necessity to prove motive was pure liberality. Kotze v Kotze (I 2572/2011) [2013] NAHCMD 96 (9 April 2013). Matrimonial - Husband and wife Divorce based on adultery Counterclaim Adultery condoned by the defendant may not be relied upon - Refusal of marital rights and malicious desertion by defendant constitute no defence to admitted adultery by plaintiff final order of divorce granted in favour of defendant - Divorce Proprietary consequences Specific forfeiture order granted in favour of defendant, subject to repayment of contributions made by plaintiff. H v H (I 675-2011) [2013] NAHCMD 123 (7 May 2013). Matrimonial - Husband and Wife Divorce Delicts Action for damages for adultery, loss of consortium and contumelia principles restated. Damages measure of factors to be taken into account Although society views adultery with less disapprobation, marriage remains the cornerstone of society Plaintiff experiencing disintegration of her marriage, after first defendant commenced relationship with second defendant who was callous and unrepentant in her continuation of the relationship with the first defendant despite pleas from the plaintiff to terminate the relationship. She further sent insulting text messages to the plaintiff who was humiliated by the contents of the messages. Award of N$40,000.00 damages for contumelia and loss of consortium. van Wyk v van Wyk (I 3793/2012) [2013] NAHCMD 125 (14 May 2013). Matrimonial - Return date of a rule nisi in divorce proceedings (RCR) Defendant wishing to show cause why the rule should not be confirmed and why a final divorce
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order should not be granted in respect of ancillary issues relating to the estate of the parties Court initially granting defendant opportunity to file papers Defendant instead requesting further particulars to the particulars of claim Duties of officer of court To not mislead a court on effect of any incorrectly worded court order after undertaking made to another judge that answering papers would be filed. Nujoma v Nujoma (I 3838/2011) [2013] NAHCMD 88 (5 April 2013).

CONSOLIDATED PRACTICE DIRECTIVES Practice Directive 26(2)(b) - If opposed interlocutory matter cant be heard it must be removed from the roll - special power of attorney - not prerequisite for valid or proper notice of opposition in motion proceedings. BV Investments 264 CC of FNB Namibia Holdings Ltd (I 471/2010) [2013] NAHCMD 29 (15 February 2013).

PRACTICE AND PROCEDURE Practice and procedure Applications and motions Applicant required to make out a case for the relief sought in the founding papers Applicant cannot remedy paucity of information in founding affidavit in replying affidavit Such the position also where urgent relief sought. Interim interdict Prima facie right Degree of proof required restated. Interim interdict pending institution of review, alternatively action proceedings Prerequisites, prima facie right, well grounded apprehension of irreparable harm, balance of convenience favouring applicant, no other satisfactory remedy. Oka Investments (Pty) Ltd v The Chair of the Tender Board for the City of Windhoek (A 66/2013) [2013] NAHCMD 89 (5 April 2013). Practice and procedure Application for further particulars Rule 21(1) of the rules of court explained- scope and limit thereof Principles of requests for further particulars reinstated Courts discretion- applicant must show that without such particulars, cannot plead Requested particulars not necessary for plea Application dismissed. Amunyela v Arovin Property Developers (I 2486/2011) [2013] NAHCMD 146 (31 May 2013). Practice and procedure Applications and motions Points in limine raised by the first respondent Points concern non-service of process and non-joinder of certain trustees Court found that when it granted a rule nisi in an earlier proceeding the court had condoned the applicants non-compliance with the rules Court found further that that order was a final order and the court has no jurisdiction to set aside its own order,

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but certain exceptions not present in casu Court dismissing points in limine with costs. Hamutenya v Shipanga (A 204/2012) [2013] NAHCMD 164 (13 June 2013).
Practice and procedure Applications and motions Irregular proceedings in terms of

rule 30 notice of objection filed after the respondents filed the notice of intention to defend- objection towards the fact that the Government has not provided any proof of authority to appear on behalf of the first respondent such step not permitted in terms of the rules of court irregular proceedings Such issue to be dealt with in limine in the affidavits rule 30 application succeeds. Christian v The Chairperson of the Disciplinary Committee (A 199/2012) [2013] NAHCMD 177 (21 June 2013). Practice and procedure - Applications and motions - Urgent application - Abridgment of times prescribed and acceleration of hearing - Good cause - What constitute Possible financial prejudice - Not entitled to preference. Aurecon Namibia (Pty) Ltd v The Roads Authority (A 250/2012) [2013] NAHCMD 21 (28 January 2013). Practice and procedure - Applications and motions Urgent application Applicant seeking an order for release from further detention awaiting trial for criminal offences Court not competent as court of first instance to grant such relief where applicant applied for bail on two separate occasions and the lower court refused to admit applicant to bail Decisions of lower court valid until set aside by a competent court on review or appeal Constitutional law Applicant seeking order that the respondents (the Prosecutor-General and certain magistrates of the lower court) withdraw criminal charges against him in a criminal proceeding Court not competent to grant such order where set-down trial date of the applicants criminal trial has been ordered already by the trial court. Moussa v The Prosecutor-General (A 92/2013) [2013] NAHCMD 103 (15 April 2013). Practice and procedure - Applications and motions Urgent application Requirements for in terms of rule 6(12)(b) Explanation of requirements in Salt and Another v Smith 1990 NR 87 relied on In instant case requirements not satisfied by the applicants Nevertheless the court heard the application on urgent basis because on the papers the application is totally lacking in merits Court dismissed the application with costs after hearing it. Enghali v Nghishoono (A 195/2007) [2013] NAHCMD 93 (8 April 2013). Practice and procedure Applications and motions Urgent application Requirements for Salt and Another v Smith 1990 NR 87 relied on. Hamutenya v Gameb (A 33/2013) [2013] NAHCMD 45 (20 February 2013).

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Practice and procedure Applications and motions Urgent application Requirements for Case to be made out in founding affidavit indicating that the requirements under rule 6(12)(b) have been met. Nghikofa v Classic Engines CC (I 887/2010) [2013] NAHCMD 27 (30 January 2013); Kaune v Kaune (A 112/2013) [2013] NAHCMD 117 (30 April 2013) Practice and procedure Applications and motions Urgent application Requirements for in terms of rule 6(12)(b) of the rules. Pienaar v The ProsecutorGeneral (A 72/2013) [2013] NAHCMD 85 (2 April 2013). Practice and procedure Applications and Motions Urgent applications Principles relating to urgent applications dealt with. Interdict Interim interdict Prerequisites for relief restated Prima facie right, danger of irreparable harm, balance of convenience favouring applicant, no alternative remedy. Nel v Burger (A 80/2013 [2013] NAHCMD 106 (11 April 2013). Practice and procedure - Applications and Motions Urgent applications Law relating to interim interdicts and discretion of the court restated Applicants applying on an urgent basis for an order preventing second respondent from removing property from certain premises controlled by applicant in terms of a search and seizure warrant. Search warrant authorised on 26 February 2013, urgent application launched on 5 March 2013 after an aborted ex parte attempt by applicant on 28 February 2013. The applicants made out a case for urgency. The warrant authorised in terms of sections 20 and 21 of the Criminal Procedure Act, No 61 of 1977, indicated that certain property was to be seized on the basis of reasonably held grounds for believing that the property will afford evidence as to the commission of a criminal offence. Although there is a great deal of acrimony between the parties and a dispute as to ownership of the property, it was clear ex facie the papers that no criminal offence was committed. The third and fourth respondents did not even lay charges against the applicants. In an attempt to obtain the return of their property, third and fourth respondents acted improperly. Miljo v Minister of Safety and Security (A 51/2013) [2013] NAHCMD 126 (17 May 2013). Practice and Procedure Applications and motions urgent application - Urgent application for the review and setting aside, with immediate effect, of a ruling of the internal disciplinary panel of a school refusing the applicants minor child legal representation at a disciplinary hearing court accepting that proceedings, in which the rights of children are involved, are sui generis and invoke a special jurisdiction bestowed on the court to look after the interests of children and that a pedantic approach requiring an applicant seeking urgent relief to meticulously explain the reason for every delayed action in coming to court as inappropriate in most cases, unless the
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circumstances and facts of such delay are palpably so unreasonable and so oppressive that the court would refuse to come to the assistance of such an applicant on an urgent basis As it could not be said that the applicant has acted unreasonably overall and as the common cause facts pertaining to this matter showed that the parties were agreed that the disciplinary process against the minor child should be determined as expeditiously as possible - and as it was not only desirable - but also in the interest of all parties and the minor child, centrally involved in this matter - that the disciplinary process against the minor be finally resolved, or be as close as possible to completion, as soon as possible by the time that school would start again court in view of the overriding considerations pertaining to the matter exercising its discretion in favour of entertaining the application on an urgent basis. Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013). Practice and procedure - Applications and motions - Urgent application For leave to bring an urgent application for a stay in execution of the applicants home applicants had been interdicted from instituting further proceedings against first respondent - the sale in execution, which the applicants had intend to stop, had however already occurred, at the time that the application for leave was heard court holding that it clearly and obviously served no purpose to grant the applicants leave to bring any such application after the fact and to grant to the applicants the indulgences sought, in circumstances, which would render the bringing of the intended application futile, as the to be interdicted event, was already overtaken by events. In the circumstances the courts discretion to grant the relief sought could not, and should not, be exercised in favour of the applicants Application accordingly refused. BV Investments 264 CC v FNB Namibia Holdings Ltd (A 99/2013) [2013] NAHCMD 130 (17 April 2013) Practice and procedure - Motions and Applications Urgent Applications Principles of Urgency reiterated No reasonable explanation as to why the urgent application was brought one full court day before the advertised sale Urgency not made out on the papers. Tjikune v Meuwessen NO (A 177/2013) [2013] NAHCMD 157 (07 June 2013). Practice and procedure Applications and motions Urgent applications Requirement of Rule 6(12)(b) of Uniform Rules of Court that applicant must show that he or she cannot be afforded substantial redress at hearing in due course Case to be made out in founding affidavit. Practice Applications and motions In terms of Rule 6(5)(e) the court may in its discretion permit the filing of further affidavits. Respondent delivered a supplementary affidavit after the matter was heard. It was simply placed on court file without leave of the court. Supplementary affidavit accordingly not considered.

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Patrick Inkono v The Council of the Municipality of Windhoek (A 55/2013) [2013] NAHCMD 140 (28 May 2013) Practice and procedure Applications and motions Urgent application Applicants failing to satisfy the requirements for urgency and unable to show that they could not be afforded redress at a hearing in due course applicants thus failing to satisfy requirements for the hearing of an urgent application as set by Rule 6(12)(b) of the Rules of Court application accordingly struck from the roll. Nakale v The Public Prosecutor, Litubezi (A 331/2012) [2012] NAHCMD 116 (21 December 2012). Practice and procedure Application to amend Action based on the determination of ownership of raft such issue already determined by the court in 2008 by the court such issue became moot and not open to any party to re-visit in light of the courts prior judgment amendment to the particulars of claim allowed only to such an extent. Loots v Schmidt (I 1426/2011) [2013] NAHCMD 28 (31 January 2013). Practice and procedure - Application to amend Withdrawal of admission Court will require a sales factory explanation for withdrawal of admissions and court to consider prejudice to the other side Applicants failed to provide a satisfactory application Application for amendment dismissed. Ondangwa Hardware CC v Ndahafo & Filhos (I 4162/2011) [2013] NAHCMD 100 (15 April 2013). Practice and procedure - Application to amend Principles restated Withdrawal of admission Adequate explanation provided Amendment granted Respondents criticised for unduly argumentative opposing affidavit. Moongold Properties CC v The Estate Agents Board (I 982/2011) [2013] NAHCMD 30 (4 February 2013). Practice and procedure - Application to amend Plaintiffs particulars of claim excipiable Principles on exception reinstated Amendment granted. Wesbank Transport (Pty) Ltd V MMD Mineral Sizing (Africa) (Pty Ltd (I 671/2011) [2013] NAHMD 55 (28 February 2013) Practice and procedure - Application to compel the Master to accept a will Non joinder of intestate heirs raised mero motu by court with the applicant further affidavits filed Despite the need to identify the intestate heirs, the application as amplified failed to do so Application refused by reason of non joinder. Maritz v Master of the High Court Windhoek, Namibia (A 226/2012) [2013] NAHCMD 6 (16 January 2013).

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Practice and procedure Calculation of days in terms of Practice Directive 4(1), whether calendar days or court days applicable. Hoebeb v Hoebes ((P) I 1035/2011) [2013] NAHCMD 57 (4 March 2013). Practice and procedure Exception On ground that pleading is vague and embarrassing Basic requirements restated Pleading is vague and embarrassing if either meaningless or capable of more than one meaning - It is embarrassing if it cannot be gathered there from what grounds are relied upon which results in an insufficiency in law to support the whole or part of the action or defence - An exception based on the fact that a pleading is vague and embarrassing strikes at the formulation of the cause and action and not its legal validity and an excipient will therefore only succeed if he or she can show serious prejudice in the event that the allegations are not expunged - The court will in deciding exception apply a step by step approach. Ardea Investments (Pty) Ltd v Namibia Ports Authority (I 553/2009) [2013] NAHCMD 107 (19 April 2013). Practice and procedure Interlocutory application to interdict respondent from executing claim against first applicant, and for an order declaring that the respondents claim has been set off against the claim of the first applicant. Res judicata Requirements restated First applicant obtained default judgment in magistrates court against respondent. Respondent obtained costs order in its favour against first applicant in the High Court. Respondent alleged that judgment debt in magistrates court substantially paid. First applicant raised defence of res judicata on the basis that respondents application for rescission of the default judgment in the magistrates court was unsuccessful. The question the court had to decide, namely whether the first applicant can set off its debt to respondent against respondents debt to it, is not res judicata. It is not the same subject matter or based on the same ground of action. HAW Retailers CC t/a Ark Trading v Tuyenikelao Nikanor t/a Natutungeni Pamwe Construction CC (A 151-2008) [2013] NAHCMD 121 (17 April 2013). Practice and procedure - Interlocutory application for stay of action pending the removal of third respondent as legal practitioners for first and second respondents or pending an appeal in another application involving the parties. Defences of res judicata and issue estoppel raised. Requirements set out conflict of interest referred to and discussed. Witvlei Meat (Pty) Ltd v Fatland Jaeren AS (I 2044/2010) [2013] NAHCMD 76 (20 March 2013). Practice and procedure - Judgments and orders - Rescission of judgment - Late filing of application - Applicant must seek condonation - Must give reasonable explanation for late filing of rescission application. Requirements for - Applicant should not be in wilful default; he should not use such application as a delaying tactic; he must make out a
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bona fide defence. Nambala v Anghuwo (I 3570/2010) [2013] NAHCMD 97 (9 April 2013). Practice and procedure Judgments and orders Rescission of judgment Distinction between applications in terms of Rule 31(2)(b), Rule 44(1)(a) and common law restated Applications in terms of Rule 31(2)(b) requiring good cause, bona fide defence and prospects of success at trial Rule 44(1)(a) not encompassing such requirements Applications under the common law requiring sufficient cause vesting the court with a wider discretion. Rule 44(1)(a) not applicable on the facts as applicant could not show that the default judgment was erroneously sought or irregularly granted in its absence As regards Rule 31(2)(b) and the common law, applicant not satisfying court with regard to good cause or sufficient cause. Applicant was in willful default. Its conduct gave rise to the inference that there was no bona fide defence and that the application for rescission was also not bona fide. Lderitz Tuna Exporters (Pty) Ltd v Cato Fishing Enterprises CC (I 3961/2011) [2013] NAHCMD 166 (18 June 2013). Practice and procedure Application in terms of rule 30 - Request for further particulars filed later than 15 days as required in terms of the rules- irregular proceedings irregular proceeding substantially prejudiced the applicant by the delay Pleading stage not clear so as to determine the way forward application dismissed. Neves v Arangies (I 3785/2012) [2013] NAHCMD 135 (20 May 2013). Practice and procedure Parties - Joinder of - defendant applying to join a codefendant - Court has a discretion to direct that a third party be joined as a defendant purely on the grounds of convenience especially in order to save costs or to avoid multiplicity of actions even if the third respondent is not a necessary party. Lucian Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford (I 303/2006) [2013] NAHCMD 22 (28 January 2013). Practice and procedure - Pleadings - Exceptions - Exception to particulars of claim as disclosing no cause of action - Pleading only excipiable if no possible evidence led on the pleadings could disclose a cause of action. Practice - Pleadings - Exception - On ground that pleading vague and embarrassing - Approach to be adopted - Such exception not to be allowed unless excipient seriously prejudiced if offending allegations not expunged - Validity of agreement and question whether purported contract might be void for vagueness not readily falling to be decided by way of exception. Oryx Development Group (Pty) Ltd v Government of the Republic of Namibia (A 1635/2011) [2013] NAHCMD 129 (20 MAY 2013).

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Practice and procedure - Practice compliance with Practice Directive 37 Citation of foreign case law Parties failing to comply with Practice Directive Court analysing rationale for Practice Directive and importance for complying therewith Court concluding that Practice Directive was ultimately put in place as a safeguard and to ensure the achievement of the proper adjudication of all cases in accordance with applicable Namibian legal authorities As this premise was not given in the present instance Court refusing to hear matter Matter accordingly removed from the roll to enable counsel to comply with Practice Directive in question . Westcoast Fishing Properties v Gendev Fish Processors Limited (A 228/2012) [2013] NAHCMD 185 (28 June 2013) Practice and procedure Summary judgment Application for ejectment of defendants from certain immovable property in terms of Rule 32(1)(d) Default of appearance Defendants failing to appear at hearing of application for summary judgment despite receiving notice of application for trial date and notice of set down duly delivered at the address nominated in defendants notice of intention to defend Application heard in defendants absence. Beukes v Brockerhoff (I 2625/2012)[2013] NAHCMD 54 (19 February 2013). Practice and procedure Summary judgment Opposed Presence of a bona fide defence and not to cause delay Summary judgment dismissed. Stucos Builders and Cement Suppliers CC v Lubbes Auto Centre CC (I 220-2013) [2013] NAHCMD 118 [30 April 2013] Practice and procedure Summary judgment by default Application for rescission of in terms of rule 44(1)(a) of rules of court When granted There is the rule of practice that though an applicant brings an application under rule 44(1) (a) the application may be determined under the common law Court held that the court may consider such application under the common law only if the circumstances permit it. Labuschagne v Scania Finance Southern Africa (Pty) Ltd (I 3572/2011) [2013] NAHCMD 143 (30 May 2013). Practice and procedure - Trial Notice of offer without prejudice in terms of rule 34 of rules of court Such notice should not be served on the registrar. Dispute as to total indebtness of the defendant (employer) to the plaintiff (contractor) arising from a building contract Plaintiff refused or failed to explain to defendant how the total amount was arrived at Consequences of such failure or refusal to explain. DJV Construction CC v Geldenhuys (I 842/2011) [2013] NAHCMD 158 (11 June 2013).
Practice and procedure Judgments and orders Rescission of order Application in terms of rule 44(1)(a) of the rules Court finding that there was irregularity in the
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proceedings and the court was not legally competent to grant the order sought to be rescinded Consequently the court concluded that the order was erroneously sought and erroneously granted, and accordingly granted the application. Kurtz v Kurtz (A 115/2012) [2013] NAHCMD 178 (27 June 2013).

RES JUDICATA Res judicata Requirements restated First applicant obtained default judgment in magistrates court against respondent. Respondent obtained costs order in its favour against first applicant in the High Court. Respondent alleged that judgment debt in magistrates court substantially paid. First applicant raised defence of res judicata on the basis that respondents application for rescission of the default judgment in the magistrates court was unsuccessful. The question the court had to decide, namely whether the first applicant can set off its debt to respondent against respondents debt to it, is not res judicata. It is not the same subject matter or based on the same ground of action. HAW Retailers CC t/a Ark Trading v Tuyenikelao Nikanor t/a Natutungeni Pamwe Construction CC (A 151/2008) [2013] NAHCMD 121 (17 April 2013).

REVIEW Review Review in terms of rule 53 Applicant seeking to review his dismissal as magistrate Review brought 11 months after dismissal. Kanime v The Ministry of Justice (A 166/2011) [2013] NAHCMD 73 (19 March 2013). Review - Time delay - Applicant seeking review of decisions relating to exclusive prospecting licences under Minerals (Prospecting and Mining) Act, 33 of 1992 Twenty-seven months after applicant gained knowledge of decisions Held on the facts that delay unreasonable Discretion exercised not to condone unreasonable delay. Samicor Diamond Mining (Pty) Ltd v Minister of Mines and Energy and others (A 2362011) [2013] NAHCMD 41 (19 February 2013). Review - Review of tender board decision Standing of applicant challenged Challenge discussed and dismissed Review grounds including material non-failure to apply the mind in the sense of discloses to Tender Board The court finding that these non disclosures precluded the Tender Board from properly applying its mind to the tender. CSC Neckartal Dam Joint Venture v The Tender Board of Namibia & Others (A 109/2013 and A 76/2013) [2013] NAHCMD 186 (4 July 2013).

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SECURITY FOR COSTS Security for costs Security for costs in terms of rule 47 Respondent a resident of the United Kingdom Having no fixed property within the area of Jurisdiction of the court Respondent ordered to furnish security for costs. Burow v Itula (I 545/2011)[2013] NAHCMD 26 (31 January 2013). Security for costs - Application for security for costs in respect of an incola plaintiff on the basis of being a nominal plaintiff. The plaintiff is an executor of a deceased estate. That estate would not be able to pay the costs of the first defendant if successful in his defence. Security granted but costs of application refused by reason of the way in which application was brought. Oehl N.O. v Nolte (I 4161/2011) [2013] NAHCMD 13 (24 January 2013)

SPOILATION Spoilation - Mandament van spolie - Applicant must prove peaceful and undisturbed possession at time of deprivation of possession - Phrase meaning sufficiently stable or durable possession for the law to take cognizance of it Counter-spoliation only possible where despoiled possessor acts forthwith (instanter) and provided that in so acting he or she does not commit a breach of the peace. Wylie v Villinger (A 42/2012) [2012] NAHCMD 69 (13 February 2013). Spoilation Mandament van spolie - Applications and motions Urgent Application Mandament van spolie Court finding that a case has been made out for the relief sought Matter heard on urgent basis and granted an order of the restoration of the quiet and undisturbed possession to the immovable property to the applicant - Pending the final determination of case number I 3124/2012. Kaune v Kaune (A 112/2013) [2013] NAHCMD 117 (30 April 2013). Spoilation - Urgent application for spoliation and eviction brought by traditional authority Principles relating to urgent applications restated Application for spoliation refused because applicant could not show deprivation of possession by reason of respondents occupation predating its possession and control Applicant found to be in possession after handover of farms by the Government Respondents could not establish any right to be on the farms. Eviction order granted. Zeraeua Traditional Authority v Mathe & Athers (A 169/2013) [2013] NAHCMD 163 (13 June 2013).

VINDICATION

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Vindication - Actio rei vindicatio - The applicant had proved that she was the registered owner of the property in question from which she sought the eviction of the respondents, who admittedly remained in unlawful occupation thereof - In such circumstances it became incumbent on the respondents to allege and establish their right to continue to occupy and hold the property against the owner In this regard respondents raising various defences Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013).

WARRANTS Warrant of seizure - Search warrant issued and items seizes- application for the return of such items Pending the review of the decision to order the search Matter heard as urgent Nature and understanding of warrant Intelligibility requirement not met Principles stated in Fillemon v The magistrate of Oshakati, delivered on 27 July 2012. Cross-Border Vehicle Trade CC v The Magistrate for Walvis Bay (A 186/2013) [2013] NAHCMD 169 (19 June 2013) CASE SUMMARIES

Africa Labour Services (Pty) Ltd v The Minister of Labour and Social Welfare (A 163/2012) [2013] NAHCMD 179 (27 June 2013). Summary: The applicant, a labour hire business, applied to strike down s 128 of the Labour Act 2007, as amended by the Labour Amendment Act No 2 of 2012, as being unconstitutional and contrary to art 21(1)(j). The respondents contended, inter alia, that the amendment legislation constituted ordinary labour legislation which passed the deferential test of rationality review and that the amendment legislation was not a material barrier to the practice of the regulated business of labour hire. Held: That the scheme which was created by the new section 128 was indeed a response to the APS case. It is also a response which is connected to - and is indeed aimed at the curing of the perceived mischief - in that it obviously attempts to close the gap in the existing legislative framework, which has allowed the circumvention of the Labour Act, in the past. The amendment legislation achieves the abovementioned goals in its own peculiar way. That is a far cry from being irrational. On the contrary nothing in these sections indicates in my view that the regulation is not rational, even though it might amount to an overkill. Held: From the analysis of the legislative structure created by the amendment legislation complained of the conclusion must be drawn that it is not so invasive of the applicants article 21(1)(j) rights that such restrictions are to be regarded as an

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impermissible material barrier to the applicants business. In such circumstances it did not become incumbent on the respondents to justify them. Held: Although the particular manner in which the regulation of labour hire was structured exposed that many facets of such regulation could have been moulded in a different or even better fashion - and in the circumstances and while dealing with the question of freedom of economic activity - it became particularly important to keep in mind that the courts in most modern democratic countries proceed from the premise that it is not for the courts to dictate economic policy and regulation. Held: As the language employed in sub-section (10) revealed that the Ministers power to make regulations is discretionary - the failure to promulgate regulations prior to the putting into operation of the Act could thus not be regarded as an ultra vires act by the first respondent which would entitle the applicants to have the Act set aside. The application did therefore have to be dismissed with costs.

Ardea Investments (Pty) Ltd v Namibia Ports Authority (I 553/2009) [2013] NAHCMD 107 (19 April 2013) Summary: The plaintiff in its particulars of claim relied on a partly oral and partly written agreement. In relation to the oral portion of the agreement the plaintiff set out a cause of action based on a contract of deposit (depositum). The written portion of the agreement annexed to the particulars of claim did not support the cause of action pleaded in the particulars of claim because it related to a contract for the provision of berthing space by the defendant. The defendant delivered a request for further particulars with a notice in terms of Rule 23(1) calling for the removal of the cause of complaint. The plaintiff sought to remove the cause of complaint in the further particulars by annexing the correct written portion of the agreement. The plaintiff specifically stated in its further particulars that the incorrect written portion of the agreement had been initially annexed. The defendant then proceeded to set the exception down. Four grounds of exception were raised. The first ground of exception related to the incorrect agreement initially attached. The fourth ground of exception was that the correct agreement had been impermissibly attached in the further particulars contrary to the provisions of Rule 28 which required the plaintiff to amend the particulars of claim. The third exception related to the correct agreement attached to the further particulars in particular to a provision in that agreement that the rates to be charged by the defendant for the storage of the plaintiffs goods should be confirmed in writing and that the defendant intended that there be no consensus between the parties until written acceptance of the offer was received, which was not dealt with in the particulars of claim. The second ground of exception was that the plaintiff purported to rely on a different agreement relating to
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different transactions. It was further argued that the parties to the agreement were also different. Held In respect of the first ground of exception, it was clear that the agreement initially attached to the particulars of claim did not support the plaintiffs claim as pleaded. However, the plaintiff sought to attach the correct written portion of the agreement. The contention that the particulars of claim were vague and embarrassing because the correct written portion of the agreement was impermissibly attached to the further particulars as the procedure in Rule 28 was not followed cannot be sustained. That was a purely procedural objection that should have been raised as an irregular proceeding in terms of Rule 30. This the defendant did not do. In any event the attachment of the correct agreement to the further particulars created no prejudice to the defendant. Not every noncompliance with a rule of court automatically creates prejudice. The dictum in China State Construction Engineering Corporation (Pty) Ltd v Pro Joinery CC 2007 (2) NR 675 (HC) at para [14] and [15]. and Gariseb v Bayerl 2003 NR 118 (HC) at 121I-122B in relation to applications in terms of Rule 30 applied. Held With regard to the third ground of exception, the failure to indicate in the particulars of claim whether the rate had been confirmed in writing did not render the pleading vague and embarrassing. It did not render the particulars meaningless or capable of more than one meaning nor could it be said that it could not be gathered what grounds were relied upon by the plaintiff is support of its claim. It could also not be said that the lack of written confirmation of storage rates meant that the defendant intended that there be no consensus between the parties until a written acceptance of the offer is received. The issue related merely to acceptance of rates. In any event, it can be implied from paragraph 4.3 of the particulars of claim together with the correct written portion that the rate was agreed, and if not, this aspect could be dealt with in the defendants plea. Again there was no prejudice to the defendant. Held As regards the second ground of exception, bearing in mind that the court found that the correct agreement was permissibly attached, the written portion of the agreement together with the particulars of claim did not create a different agreement or a different transaction. Ex facie the pleadings are the fact that a partly oral and partly written agreement is pleaded, there is sufficient correlation between the particulars of claim and the written portion that can be clarified in evidence. However, as regards the parties to the agreement, it is clear from the written portion that the document was addressed to the same person alleged to have represented the plaintiff in the conclusion of the agreement in the further particulars. But the document was addressed to the same person as the managing director of a different entity and not the plaintiff. It was accordingly not
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clear with which entity the plaintiff concluded the agreement. The pleading was clearly capable of more than one meaning and the defendant was prejudiced as a result. Thus the second ground of exception succeed in this aspect only and the plaintiff was directed to remove the cause of complaint within 14 days.

Aurecon Namibia (Pty) Ltd v The Roads Authority (A 250/2012) [2013] NAHCMD 21 (28 January 2013).

Summary: The applicant and the first respondent concluded an agreement (on 17 November 2000) in terms of which the applicant had to render services to the respondent for the detailed design, documentation, site supervision and contract management for the Windhoek - Okahandja passing lanes and other improvements. The agreement regulated two phases of the services to be rendered, namely the design phase, and the contract management and site supervision phase. The applicant executed the first phase of the agreement and only the second phase was still to be implemented. It is, however, common cause that as from June 2005 the applicant was not in the financial position to implement the second phase of the agreement. The agreement was thus dormant for a period of over six years. During 2012 the first respondent revised the services that need to be render for the upgrade of the Okahandja Windhoek roads. It informed the applicant that it is cancelling the agreement concluded during November 2000, called for new tenders to render services with respect to the upgrade of the Okahandja Windhoek roads. Applicant disputed the first respondents right to cancel the agreement and thus sought to interdict the first respondent from awarding tender with number RA/CS-CR/06-2012 or any other tender for the detailed investigation, detailed design, tender documentation, contract management and site supervision for TR 901: Windhoek to Okahandja (from MO0049 TO TO107/TO701) and the rehabilitation and upgrade to 4 lanes / 3 lanes to any other party Held That in the circumstances of this case the commercial interest of the applicant in this matter is not of such a nature as to render the matter urgent. Held Mere lip service to the requirements of Rule 6 (12) (b) will not do and an applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter be set down.

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

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Summary: Plaintiffs applied for ejection of the defendants from certain immovable property in terms of Rule 32(1)(d). It was common cause between the parties that the plaintiffs were the registered owners of the property. Defendants raised a counterclaim in their opposing papers for monies they alleged to be due, owing and payable to them by plaintiffs but did not lay any basis in law why they should continue to reside on the property pending finalisation of their counterclaim. Summary judgment accordingly granted.

Burow v Itula (I 545/2011)[2013] NAHCMD 26 ( 31 January 2013) Summary: The respondent has sued the applicant and another for defamation and is claiming damages in the amount of N$ 5 000 000 (five million Namibian Dollars). The applicant has requested the court to order the respondent to furnish security for costs, as he is a resident of the United Kingdom without fixed property within the area of jurisdiction of this court. Respondent has contested liability to give security but was ordered by the court to provide security for costs as requested by the applicant and his action for defamation stayed pending the furnishing of the security.

BV Investments 264 CC v FNB Namibia Holdings Ltd (I 471/2010) [2013] NAHCMD 29 (15 February 2013) Summary: The applicants launched an interlocutory application for an order declaring that the High Court judgment, heard on 30 November 2010 and delivered on 12 January 2011, be declared void. This application was set down on an unopposed basis on the Motion Court roll. One day before Motion Court a notice to oppose the application was delivered on behalf of the first respondent and on the Motion Court date a notice to oppose the application was delivered on behalf of the second and third respondents. Second applicant indicated that the application was unopposed because the notices to oppose delivered on behalf of the respondents were defective due to the fact that special powers of attorney were not filed on behalf of the respondents. The second applicant further submitted that as juristic persons, special powers of attorney should have been simultaneously filed as a result of which it was submitted that the application was not opposed. Held It is a well-established practice that Motion Court is convened specifically to deal with unopposed matters. When a matter becomes opposed it is not heard at Motion Court but is set down for hearing on another date. With regard to an interlocutory application such as that lodged by the applicants, it is usually heard on the following Tuesday or on a date to be determined by the Registrar. In this
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regard, Practice Directive 26(2)(b) provides that the Presiding Judge must not postpone any interlocutory matter at the request of a party or all the parties. If the matter cannot be heard, it must be removed from the roll. Held further that in motion proceedings when a notice to oppose is delivered on behalf of a juristic person, it is not a prerequisite to file a special power of attorney for a valid or proper notice of opposition.

Chaune v Ditshabue (A 5/2011) [2013] NAHCMD 111 (22 April 2013) Summary: The applicant was elected as a traditional councillor of the Bakgalagadi Traditional Authority on 25 August 2007. His appointment as traditional councillor was made known by publication of that fact in the Government Gazette of 27 March 2008. On 02 October 2009, Chief Hubert Tidimalo Ditshabue convened a meeting of the Bakgalagadi Traditional Authority. That meeting was attended by members of the Bakgalagadi Traditional Authority and at that meeting the removal of the applicant as traditional councillor was discussed and a decision taken to recommend to the Minister of Regional, Local Government and Housing that the applicant be dismissed as a traditional councillor. The participants at the meeting were unaware that the meeting is intended to serve the purpose of enabling applicant to make representations why he should not be removed. Held that, the exercise of the power to remove the applicant as a traditional councillor constitutes administrative action and is thus reviewable. Held further that where a person has a right to be heard before a decision is taken, it is important that, whatever the form of the hearing or the subject-matter of the hearing, an opportunity to make representations must be made clear to the affected parties in order that the right to make representations may be effective. Held further that the meeting of 02 October 2009 did not constitute a sufficient opportunity for the applicant to make representations to the second respondent concerning his possible removal and the reasons therefor.

Christian v The Chairperson of the Disciplinary Committee (A 199/2012) [2013] NAHCMD 177 (21 June 2013). Summary: This is an application in terms of rule 30 of the rules of court. The defendants entered their appearance to defend the action instituted by the plaintiff. In the rule 30 application, the defendant, now the applicants, allege that the plaintiff, now the respondent, filed a document titled Notice of objection which transpired that it was
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an objection raised by the plaintiff that the Government attorneys did not provide proof that they are, in terms of the rules, allowed to represent the first defendant. The court observed that the plaintiff is a lay man and may not be familiar with the rules of court. However, the court emphasized on the important aspect of observing the rules of court and stated that any procedure that is not provided for in the rules results in an irregular proceeding and where the defendants has suffered prejudice because of such irregular proceeding, as in this case, such proceeding will be set aside.

DJV Construction CC v Geldenhuys (I 842/2011) [2013] NAHCMD 158 (11 June 2013) Summary: Practice Trial Notice of offer without prejudice in terms of rule 34 of rules of court Notice served on the registrar and included in court papers that were paginated and indexed Such notice should not be served on registrar Both parties equally blamed for oversight Accordingly court refused to award costs against the plaintiff. Costs Judgment granted for plaintiff Court refused to apply the general rule that costs follow the event because the plaintiff has not been successful substantially in its claim arising from the building contract. Summary: Practice Trial Dispute as to total indebtedness of the defendant (employer) to the plaintiff (contractor) arising from building works carried out by the plaintiff under the contract Plaintiff failed or refused to explain to the defendant how the plaintiff arrived at the total amount still owed by the defendant to the plaintiff on the contract Plaintiff only gave such explanation in his evidence in court Court held that it was too late in the day for the explanation to have relevance and credibility Court rather accepted the version of the defendant about the amount she owed that was communicated to the plaintiff before the trial and confirmed in her examination-in-chief-evidence and tested under cross-examination during the trial Accordingly, court granted judgment for the plaintiff but only in the amount admitted by the defendant (less retention money) and accepted by the court.

Du Plessis v Namene (I 235-2009) [2013] NAHCMD 112 (25 April 2013) Summary: The plaintiff was driving from north to south in a street divided into two lanes one each going in an opposite direction. He drove a distance of 220 steps without looking in his rear mirrors for traffic behind him. At the intersection, he stopped at a stop sign and indicated that he was turning to the right when the defendants vehicle hit his vehicle from behind. The defendant drank beer before driving and alleges that the plaintiffs vehicle cut in front of him from the pavement on the right hand side of the street while he was driving from north to south. It happened suddenly giving him no time to apply brakes, and as a result, therefore, a collision occurred between his vehicle and
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the vehicle of the plaintiff. Court rejects the defendants version and accepts the version of the plaintiff and found in favour of the plaintiff. However, the plaintiff had also contributed to the collision.

Du Toit v Dreyer (I 1751/2007) [2013] NAHCMD 64 (08 March 2013) Summary: Contract Purchase and sale of agricultural land Purchaser foreigner in terms of the Agricultural (Commercial) Land Reform Act 6 of 1995 Section 58,59 applicable Ministers prior consent had to be obtained before any acquisition of controlling interest in a company or corporation passed to a foreign national Agreement entered into in February 2003 before amendment of Act making certificate of waiver necessary also where controlling interest passed to foreigner in corporation, but such requirement not necessary at time agreement concluded When agreement concluded no ministerial consent obtained Agreement therefore illegal and void ab initio Court finding both parties contributed to illegality and therefore what applied was par delictum rule and not turpus causa Restitution intergrum not applicable Plaintiffs turpitude greater than defendants Court allowing restitution to plaintiff to do justice between man and man but only to extent of purchase price Interest at prescribed rate denied as doing so would enforce illegal contract Costs not allowed to either party because of reprehensible conduct by both in conduct of litigation plaintiff also denied costs because of his disrespect for laws of land.

Enghali v Nghishoono (A 195/2007) [2013] NAHCMD 93 (8 April 2013) Summary: Applications and motions Urgent application Requirements for in terms of rule 6(12)(b) of the rules of court Explanation of requirements in Salt and Another v Smith 1990 NR 87 relied on Applicants failed to satisfy requirements of rule 6(12)(b) of the rules Nevertheless the application was heard because on the papers the application is extremely lacking in merits Relief sought, if granted, has the effect of the court in the instant proceeding setting at naught the previous orders of the court (per Ndauendapo J and Van Niekerk J) and that would be in derogation of due administration of justice when the applicants have willfully refused to comply with the order by the court (per Ndauendapo J) whereupon the applicants were found guilty of civil contempt by the court (per Van Niekerk J) and an order made that they be detained in prison until they comply with the order made by Ndauendapo J Consequently court dismissed the application with costs after hearing it.

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Expedite Aviation cc v The Minister of Works and Transport (A 168/2013) [2013] NAHCMD 184/2013 (30 May 2013). Summary: Applicant sought an order directing the 1st respondent to forthwith exercise his discretionary powers to decide whether permission should be granted to the applicant to land its Bell helicopter at an inspected site at the Windhoek Show Grounds and for such helicopter to remain static at such site during the duration of the Namibian Tourism Expo and thereafter to allow such Bell helicopter to take off from such site at the conclusion of such Tourism Expo Permanent Secretary in the 1st Respondents Ministry had refused such permission which should have been granted by the Director of Civil Aviation Held: That in the absence of proceedings setting aside the Permanent Secretarys decision such decision could not be disregarded and had to be considered valid until set aside. Held: That also Minister as nominal head of the Director of Civil Aviation and by virtue of his powers of delegation could not just second-guess Permanent Secretarys decision just because he may take the view that the Permanent Secretarys decisions in this regard were wrong and simply, through the stroke of the pen, correct them according to his perceptions Court holding that he was not entitled to do so. Held: In the circumstances of the case and where the decisions regarding the planned activities relating to the applicants Bell helicopter thus continued to stand - and were to be regarded as legally valid - in the absence of any review challenging these decisions court not prepared to grant the relief that was sought by the applicant application accordingly dismissed with costs. Farmer v Kriessbach (I 1408/2010 I 1539/2010) [2013] NAHCMD 128 (16 May 2013) Summary: Compromise Transactio By agreement between the parties the court made an order on 21 September 2012 Upon counsel for the plaintiff failing to draw the courts attention to that order the court made a subsequent order on 25 February 2013 The court held that the 21 September 2012 order made on the basis of a compromise extinguishes ipso jure and supersedes the 25 February 2013 order The holding is justified on the basis that the court has a duty to ensure the implementation of the 21 September 2012 order Accordingly the court decided to give effect to the 21 September 2012 order.

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Hamutenya v Gameb (A 33/2013) [2013] NAHCMD 45 (20 February 2013) Summary: In casu applicant did not appear in person or by counsel when applicant set the matter down for hearing of application on 15 February 2013 resulting in application being removed from the Roll. On restoring application on the roll some three court days later applicant did not explain why she failed to appear for the hearing on 15 February 2013. Relying on Hewat Beukes t/a MC Bouers & Others v Luderitz Town Council and Others Case No. A 388/2009 (Unreported), court finding that this is not a deserving case where the court should grant indulgence to the applicant and hear the matter on urgent basis. Held that applicant has not satisfied the requirements in rule 6(12)(b) of the rules of court. The court further held that urgency is self-created. Application dismissed for lack of urgency. Hamutenya v Shipanga (A 204/2012) [2013] NAHCMD 164 (13 June 2013) Summary: Applications and motions Points in limine raised by first respondent First point concerns non-service of process on respondents and the second non-joinder of certain trustees In an earlier proceeding when a rule nisi was granted the court had made an order condoning the applicants non-compliant with the rules, including the non-service and non-joinder Court found that para 1 of that order which condoned the non-compliance with the rules is a final order and the court has no jurisdiction to set aside that order Court held that, bar certain exceptions, a judge of the court may not sit in judgment over a decision of another judge of the court on essentially the same facts and issues between the same litigants Court held further that in the present proceeding none of the exceptions to this principle (eg the courts power to rescind its own judgment) is applicable Accordingly points in limine dismissed with costs. Summary: Costs First respondent raised points in limine Court instructed counsel to argue those points before the merits of the application were heard Court held that since the points were argued fully by both counsel and a fully reasoned judgment has been delivered it is reasonable and fair that in those circumstances costs are not ordered to stand over for determination in due course or to be in the cause.

HAW Retailers CC t/a Ark Trading v Tuyenikelao Nikanor t/a Natutungeni Pamwe Construction CC (A 151/2008) [2013] NAHCMD 121 (17 April 2013). Summary: The first applicant applied to set off the respondents claim in respect of a costs order made against it against monies owing by the respondent to the first applicant in respect of a default judgment granted in favour of the first applicant in the
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magistrates court. The respondents claim against applicants was N$64,601.85, the first applicants aliquot share being N$32,300.92. The amount for which default judgment was obtained against the respondent was N$173,753.81. The respondent, some considerable time after the default judgment was granted applied for rescission of that judgment. As part of the allegations in support of the rescission, respondent alleged that N$150,000 had already been paid, leaving a balance of N$23,753.81. The court dismissed the application for rescission on the grounds that a reasonable explanation for the default had not been provided by the respondent. The court also found that the respondent had not provided sufficient proof of payment of the N$150,000 as alleged. However, a later application for default judgment (in respect of the same parties and the same cause of action and debt) by the first applicant clearly indicated that an amount of N$150,000 had been paid. It was submitted on behalf of the first applicant that the issue of whether or not the N$150,000 had been paid was res judicata, and the respondents application for rescission was unsuccessful. Furthermore, it was submitted that the second application for default in the lesser amount was null and void, because it was granted in error by the Clerk of the Magistrates court after the first applicant abandoned that application. Thus the judgment for the greater amount stood. Held For purposes of establishing whether the amounts claimed by the respondent should be set off against the claim of the first applicant, res judicata did not come into play. The cause of action in this court and the subject matter is not the same even though the parties are the same. The defence of res judicata accordingly failed. Held It was clear on the papers that the respondent paid N$150,000 in respect of the default judgment, leaving a balance of N$23,753.81. Thus the first applicant still owed the respondent N$8,547.11 which it was ordered to pay.

Herbert v Britz N.O. (I 2188/2006) [2013] NAHCMD 39 (14 February 2013) Summary: The plaintiff sued the trustees of a trust in their personal capacities. The action was based in delict on the basis that the trustees owed the plaintiffs as creditors of the trustees a duty of care and that they were negligent in the discharge of those duties. It was argued that in Namibian law trustees do not owe trust creditors a duty of care. The Court held that in principle trustees can depending on the facts be held liable in their personal capacities. When trusts engage in commercial operations, trustees may have the same duties of care as directors of companies. Held that at the stage of an application for absolution from the instance, the test is whether a reasonable court may (not should or ought to) find in favour of the plaintiff.
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Held that on the facts absolution from the instance refused.

Hoebeb v Hoebes ((P) I 1035/2011) [2013] NAHCMD 57 (4 March 2013) Summary: Practice Directive 4(1) of the Consolidated Practice Directives provides that in divorce actions, a restitution order must be served not less than 14 days prior to the first restitution date. The practice directive does not refer to calendar days or normal days. It is trite that the practice directives are published as an ancillary mechanism to the Rules of court and are to be read together with the Rules of court in the absence of any provision to the contrary. Rule 1 of the Rules of court defines a court day as any other day than a Saturday, Sunday or public holiday, and provides further that only court days shall be included in the computation of any time expressed in days prescribed by the rules or by any order of court. Thus, for purposes of obtaining a final order of divorce, the calculation of the days between service of the restitution order and the first return date are court days.

Hoeseb v Hoeseb (I 3140/2009) [2013] NAHCMD 116 (30 April 2013) Summary: The plaintiff and the defendant were married in community of property Plaintiff instituted divorce proceedings claiming inter alia a specific forfeiture order in respect of three immovable properties forming part of the joint estate The defendant sought an order for absolution from the instance in respect of the forfeiture order The court restated the applicable legal principles and found that based on the pleadings and the evidence adduced the plaintiff was in law not entitled to such an order Absolution from the instance granted.

In re: Outjo Inquest 30 of 2012; In re: Outjo Inquest 48 of 2012 (CR 1-2013; CR 2-2013) [2013] NAHCMD 1(7 January 2013). Summary: The magistrate of Outjo held inquests into the circumstances and cause of death of two persons in terms of the Inquests Act, 1993 (Act 6 of 1993). The magistrate submitted the records of these inquests for review by the High Court or a judge thereof in terms of section 21 of the Inquests Act. The Court considered the provisions of section 18 and 21 of the Inquests Act. Section 18(1) is concerned with a situation where there is reason to believe that an unnatural death has occurred, but there is no body available for a post-mortem examination to be held in terms of section 4 of the Inquests Act. If the evidence proves beyond a reasonable doubt that a death has occurred, the
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magistrate must record such a finding and proceed to make certain other findings in terms of section 18(2), read with 18(3). The purpose of section 21 is to provide a statutory mechanism in certain cases whereby a presumption of death may be given legal effect without the need to approach the High Court for such an order in the normal course by way of application under the common law. In both these inquests a body was available and a post-mortem examination was held. It was therefore not necessary for any finding in terms of section 18(1) to be made. The Court found that it is not clear why the magistrate considered it necessary to submit the inquest records for review, as there is no need to presume that the persons in question are dead. It is only in cases where no body is available and the magistrate has made (i) a finding in terms of section 18(1) that a death has occurred; (ii) a finding in terms of section 18(2)(a) about the identity of the deceased; and (iii) a finding in terms of section 18(2)(c) about the date of death, that section 21 requires submission of the inquest record for review. These matters should not have been submitted for review under section 21 of the Inquests Act. No orders were made. The inquest records were merely returned to the magistrate.

Iyambo v Minister of Safety and Security (I 3121/2010) [2013] NAHCMD 38 (12 February 2013). Summary: Delict Plaintiffs action based on unlawful arrest and detention by defendants Ministrys police officials Plaintiff brought before a magistrate four days after arrest and detention in violation of Article 11(3) of the Namibian Constitution Defendant having admitted liability only question remaining being quantum of damages In assessment of damages court taking into account circumstances surrounding arrest of plaintiff and treatment of plaintiff by arresting police officials, period of unlawful detention being four days, plaintiffs loss of freedom of movement and loss of esteem among members of the local community where plaintiff worked as a primary school teacher and amount of damages awarded recently by the court for unlawful arrest and detention Court in the result awarding damages of N$12 000,00 as against N$150 000,00 claimed by plaintiff. Summary: Costs Party entitled to costs must have gained substantial success Substantial success measured according to the nature of relief claimed and granted and whether claim sounding in money excessive and grossly disproportionate to the amount granted In instant case court awarding damages for N$12 000,00 as against plaintiffs claim of N$150 000,00 Grounds therefore exist to justify departure from the general rule that costs follow the event Accordingly court making order that each party pays its own costs.

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Jeandre Development CC v Moolman (I 3221/2010) [2013] NAHCMD 172 (20 June 2013) Summary: Contract Building contract Court rejecting defendants contention that a Quotation issued by the plaintiff at the defendants special request constituted a written contract Court rejected as unproven defendants plea that the agreement between them and the plaintiff respecting the building of their house is a written contract (in the form of a Quotation) conclusive as to the terms of the transaction and be regarded as the exclusive memorial of the transaction respecting the building of the house A concomitant factual finding a priori is that the parties concluded an oral agreement. Summary: Evidence Burden of proof Court held that burden lies on the party that asserts but if a party sets up a special defence, the onus of proving that defence is on that party who raises it In the present case the defendants are not content with denying the existence of an oral agreement as asserted by the plaintiff and they have set up a special defence of the existence of a Quotation which they say is conclusive as to the terms of the transaction respecting the building of the house Court found that the defendants failed to discharge the burden cast on the defendants Consequently, court rejected their plea that the Quotation constitutes a written contract respecting the building of their house. Johannes JA Gabrielsen v Crown Security CC (I 563/2007) [2013] NAHCMD 124 (13 May 2013) Summary: Delictual claim against an employer of a security guard that, on the uncontested facts, gratuitously shot and seriously injured the plaintiff. Vicarious liability of an employer in a claim premised on the facts such as in this case discussed. The Court found the employer vicariously liable for damages arising from the delictual acts of the security guard. Court holding, in this respect, that our law recognises that were a delictual claim is based on an unlawful delictual conduct consisting of a positive act causing physical damage to another person or property such invasion is prima facie wrongful. Further the Court, in the context of the disputed quantum of damages and in view of the defendants failure to place in issue certain quantum claimed by the plaintiff, reiterated the importance of the institution of cross-examination in particular that if a point in dispute is left unchallenged in cross-examination the party calling the witness is entitled to assume that the unchallenged witnesss testimony is accepted as correct. In this respect, with reference to The President of the Republic of South Africa and Others v South Africa Rugby Football Union and Others, 2000 (1) SA 1 CC at par 61 to 63, the Court also adopted the South African Constitutional Courts dicta that the institution of cross-examination not only constitutes a right but it also imposes certain
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obligations such as that when it is intended to suggest that the witness is not speaking the truth on a particular point it is required to direct the witnesss attention to that fact by question put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness box, of giving any explanation open to the witness and of defending his/her character.

Kamuhanga v The Master of the High Court of Namibia (A 381/2010) [2013] NAHCMD 144 (30 May 2013) Summary: Administrative law Judicial review of decision of the first respondent being an administrative official within the meaning of Article 18 of the Namibian Constitution Act sought to be reviewed is the exercise of discretion by the first respondent in terms of the Administration of Estates Act 66 of 1965 Grounds for judicial review of acts of administrative bodies and administrative officials are those set out in Article 18 of the Namibian Constitution and they encompass common law grounds In casu the conduct of the rest of the respondents is not sought to be reviewed Court concluded that the applicant has failed to satisfy the court that good grounds exist to review the decision of the first respondent which is exercise of discretion under the Administration of Estates Act 66 of 1965 Accordingly, the court dismissed the application.

Kandando v Namibia Medical Care (I 2047/2010) [2013] NAHCMD 86 (4 April 2013). Summary: The defendants published a notice in Die Republikein alleging that the first plaintiff, a qualified and duly registered clinical biochemist was practising under false pretences as a medical doctor as he consulted on the basis of attentive diagnosis, prognosis and especially pathology services which he attempted to claim from medical aid funds. It was further alleged the first plaintiff was not a medical specialist in the field of pathology, that he acted in contravention of section 17 of Act 10 of 2004, that his qualifications allowed him to practice on the level of clinical biochemistry in an accredited laboratory and that he was not entitled to use the title medical doctor nor was he permitted to claim under the auspices of general practitioner and specialist pathologist. The first plaintiff alleged that he had been defamed as the allegations in the notice were understood by readers of the notice in the newspaper to mean that he was dishonest, not qualified to practice as he did and that he was committing a criminal act. The first plaintiff also alleged that the contents of the notice were false and that since publication of the notice he was unable to carry out his profession as a clinical biochemist. In
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addition to the first plaintiffs claim for damages to his reputation and dignity in the amount of N$500,000.00 he further claimed special damages in an amount of N$153,732.83 comprising an investment ceded to a banking institution as security for a loan advanced to second plaintiff, arrear rental, chemical reagents, school fees and an insurance premium. The second plaintiff also claimed loss of income as a consequence of the defamatory publication in the amount of N$3,5 million. The defendants admitted that the statement was intended to convey to the reader exactly what its contents contained but denied that the statement was unlawful. The defendants relied on the defences of truth and public benefit, qualified privilege and reasonable publication. With regard to the defence of reasonable publication the defendants submitted that an appropriate case had been made out for this defence to be applied to non-media defendants. Held, the statement was defamatory of the first plaintiff. On the evidence, the defendants were unable to show that the statement was either substantially true, or that what was conveyed to the public, namely that the first plaintiff was practising as a medical doctor under false pretences and committed a criminal offence was to the public benefit in the circumstances. The defendants failed to prove their right to communicate the defamatory matter, in relation to the extent of the contents of the publication, or the publics right to receive the communication. Thus the statement was not reasonably germane and relevant to the privileged occasion. The privilege was exceeded in that the statement went far beyond what was necessary to have been communicated in order to be reasonably germane and relevant. Held, as to the defence of reasonable publication in light of the constitutional right to freedom of speech, there was no reason why the defendants should not be permitted to rely on this defence as non-media defendants, as the question was left open in Trustco Group International Ltd and Others v Shikongo 2010 (2) NR 377 (SC), and it is well established that the list of possible defences to a defamation action is not exhaustive. However the defendants failed to prove that the publication was reasonable. In fact, the publication was also considered negligent and interfered unreasonably with the first plaintiffs right to dignity. Held, further, as regards the first plaintiffs claim for damages for injury to his dignity and reputation, relying on the principles set out in Buthelezi v Poorter 1975 (4) SA 608 (W), the first plaintiff was awarded damages in the amount of R40,000.00. As regards the first plaintiffs second claim for special damages, it was clear that apart from the claim for chemical reagents (which the first plaintiff was not entitled to because the second plaintiff was not licensed to operate a medical laboratory in terms of the Hospital and Health Facilities Act) the losses
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were all expenses that would have been incurred by the first plaintiff in any event, and quite irrespective of the notices. These expenses would have been paid by the generation of income by the second plaintiff. The first plaintiffs claim for special damages was accordingly dismissed. As regards the second plaintiffs claim for loss of income in the amount of N$3,5 million it was apparent from the evidence as well as the testimony of the defendants expert (the plaintiffs correctly conceding that their experts evidence did not assist the court in any way) that there was a clear lack of causation because the second plaintiffs services failed to add value. Once an illness or disease had been detected through the first plaintiffs tentative diagnosis, treatment by a medical practitioner was required. More importantly the evidence showed that the second plaintiff was at the inception of the notice already in a precarious financial situation. Thus the second plaintiffs claim for loss of income was also dismissed.

Kagwe v Kagwe (I 1459/2011) [2013] NAHCMD 71 (30 January 2013) Summary: The plaintiff had sued the defendant for divorce - The action was defended and the defendant filed a plea and counterclaim - The counterclaim was dismissed as a result of the defendants non-compliance with an order compelling the defendant to respond to a request for further particulars - The matter proceeded thereafter to trial Main question which arose was whether the plaintiff had succeeded in discharging his onus of proving constructive desertion which would result in the granting of a restitution order - The secondary question which arose was whether the court should condone the plaintiffs adultery. Held, that plaintiff had succeeded in discharging his overall onus in respect of some of the relied upon grounds of divorce. Held, that on the aspect of the respective blameworthiness between the parties no evidence had been placed on the record which explained why and in what circumstances the adultery had been committed. What however plays an important part in this regard is that the defendant herself, as the affected party, has belatedly condoned the plaintiffs conduct. Held, that it was an important consideration that where there were no reasonable prospects for the resumption of a joint and further harmonious married life it could not be in the interest of public policy to insist on the maintenance of a union which only one partner seemingly wishes to perpetuate and the other not. Held: that in the circumstances the condonation sought should be granted.

Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May 2013)


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Summary: Applicant had purchased Erf No 3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek, Republic of Namibia, at a sale in execution pursuant to a default judgment which had been granted in the Magistrates Court, held at Windhoek, under case no 7041/2007, between the National Housing Enterprise (plaintiff) and the first respondent (defendant). The property was subsequently registered in the applicants name. The respondents were the previous registered owners of the property in question - which they continued to occupy - and refused to vacate. The only defence squarely raised by respondents on the papers was a defence of lis pendens. In heads of argument and orally from the bar respondents also raising a constitutional defence that the default judgment as a result of which their property had been sold at a sale in execution was invalid because the judgment which had been granted in terms of the Magistrates Court Act and Rules was unconstitutional respondents also urging court to stay current application. Held Applicant had made out a case on the actio rei vindicatio. In such circumstances it became incumbent on the respondents to allege and establish their right to continue to occupy and hold Erf No 3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek, against the owner. Held As respondents had not pleaded their constitutional challenge as is required and having failed to join the necessary parties, constitutional challenge had to fail on the papers on those grounds. Held As respondents had failed to prove the elements of the defence of lis pendens defence not upheld and the discretion to stay the present application - which comes into play, if the requirements of lis pendens have been established did not come into play. Held In so far as the court had an inherent jurisdiction to grant a stay of the present application such discretion should not be exercised in favour of respondents on the facts of the matter application granted with costs.

Kanime v The Ministry of Justice (A 166/2011) [2013] NAHCMD 73 (19 March 2013). Summary: Review interms of rule 53 entails that review applications are to be brought within a reasonable time. The applicant sought to review the decision dismissing him as magistrate and an order of his reinstatement. Applicant stating that the hearing took place in his absence and when he required legal representation and his lawyer was not available. He alleges that the hearing therefore is in breach of articles 18, 12 of the Constitution as well as s 26(5) of the Magistrates Act, 3 of 2003. Responden ts case is that the applicant had unnecessarily prolonged the hearing though postponements and was granted enough time and disclosure to defend himself against the charges. The
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fact that applicants lawyer absent from proceedings is not due to any unlawful or unreasonable conduct on the part of the respondents. In any event, review unreasonably delayed causing prejudice to respondents. Held that the delay is unreasonable in the circumstances and no proper foundation laid for condonation. The court is satisfied that the applicant was afforded sufficient time to arrange legal representation and to prepare for hearing and that the non-cooperation between applicant and his insurer and legal representatives is no valid reason for not proceeding with hearing as such is a contractual issue between applicant and his lawyers. Application dismissed.(See also Supreme Court judgment of Ebson Keya v Chief of the Defence Force and 3 Others, SA 7/2009, delivered on 13 March 2013).

Kasita v Iipinge (I 1321/2011) [2013] NAHCMD 72 (14 March 2013) Summary: Husband and wife Matrimonial property regime Marriages government by Proc 15 of 1928 Such marriages presumed by operation of law to be out of community of property However, such marriage will be one in community of property if within a time lag of one month prior to (ie previous to) the celebration of the marriage the parties jointly declare before the marriage officer that they wish their marriage to be in community of property In casu the parties jointly made such declaration Court holding that anytime previous to the celebration of the marriage in s 17(6) of the Act means a time lag of one month prior to the celebration of the marriage Consequently, the court concluding that the parties marriage is one of community of property Principle in Nakasholo v Nakasholo 2007 (1) NR 27 applied Court therefore making an order that the joint estate be divided equally between the parties. Summary: Husband and wife Maintenance of one spouse by the other Spouse asking for spousal maintenance must establish he or she is in need of such maintenance Court applied principle in Neil Roland Samuels v Petronella Samuels Case No. I 902/2008 (Unreported) Court finding that the defendant needed the spousal maintenance However since the court has ordered the plaintiff to immediately pay 50 per cent of the money the plaintiff was paid by the Omuthiya Town Council for expropriating the matrimonial home (ie N$255 169,50), the court found it would be unreasonable and unfair to order the plaintiff to pay maintenance to the defendant.

Katjaimo v Katjaimo (I 2266-2009) [2013] NAHCMD 98 [15 April 2013].

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Summary: Registered owner of Farm Tugab West No 21 has sued the defendants for delivery of the farm which is in their possession. The defendants counterclaimed and alleged that they have been allowed by the plaintiff to stay on the farm as if they were co-owners of the farm; in the alternative that they have acquired a lifelong usufruct to stay on the farm: Court refuses the plaintiffs claim and finds in fa vour of the defendants on the alternative claim.

Katjizeu v The Government of the Republic of Namibia (A 235/2009) [2013] NAHCMD 17 (29 January 2012). Summary: The applicants invaded Nyae Nyae conservancy (Tsunkwe) with a number of cattle. The respondents confiscated the cattle. In the interdict application, (to prevent the cattle from being disposed of) applicants stated that their cattle were 2177. Respondents admitted the number. Dispute about the number of cattle impoundment. Applicants argued that the respondents were bound by the admission. Respondent filled an affidavit explaining that the admission was a bona fide mistake and applied to court to have it withdrawn. Held, admission not fully explained nor reasonable explanation for admission. The application to withdraw admission refused.

Kotze v Kotze (I 2572/2011) [2013] NAHCMD 96 (9 April 2013) Summary: The plaintiff (wife) instituted action against the defendant (husband) for restitution of conjugal rights and failure therewith an order of divorce. The defendant counterclaimed, in claim two of his counterclaim he alleged that he donated 50% members interest in and to a certain Close Corporation known as Crocodile Park Close Corporation, Registration Number CC 1997/1392 to the plaintiff. He contended that this was a prohibited donation which he had subsequently revoked and is seeking an order directing the plaintiff to transfer the 50% members interest in and to Crocodile Park Close Corporation to him.

Kurtz v Kurtz (A 115/2012) [2013] NAHCMD 178 (27 June 2013) Summary: Practice Judgments and orders Rescission of order Application brought in terms of rule 44(1)(a) of the rules to rescind application granted in the absence of the applicant Court finding that there was a clear error in the set down hearing date obviously resulting in the absence of the applicant at the hearing Court found that the respondents counsel bore a duty to have drawn the attention of the court to this material matter Court also found the court was not legally competent to grant
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the order against the trust when the trust was not a party to the proceeding Court concluded that the applicant has succeeded in establishing that the order was erroneously granted Consequently, court held that the order should be rescinded without further enquiry and it is not necessary for the applicant to show good cause for rule 44(1)(a) to apply.
Summary: Costs: Award of costs In instant case successful applicants counsel failed to file heads of argument timeously Court found that para 20(6) of the practice directions should be invoked Consequently, in exercise of its discretion court refused to order that costs should follow the event Court accordingly made no order as to costs.

Labuschagne v Scania Finance Southern Africa (Pty) Ltd (I 3572/2011) [2013] NAHCMD 143 (30 May 2013) Summary: Practice Summary judgment by default Application for rescission brought in terms of rule 44(1)(a) of the rules of court When granted There is the rule of practice that an application though brought under rule 44(1) (a) may be determined under the common law Court holding that rule of practice is a general rule through and through and so it does not apply mechanically in every circumstance imaginable In casu the circumstances are such that that rule of practice is not applicable or appropriate Relying on authority of Naftalie Nathanael Gaoseb and Another v Standard Bank of Namibia Limited and 5 Others Case No. A 150/2010 the court held that the applicant has not established that the summary judgment was granted erroneously Consequently, the application is dismissed.

Lucian Martin v Diroyal Motors Namibia (Pty) Ltd t/a Novel Ford (I 303/2006) [2013] NAHCMD 22 (28 January 2013) Summary: The plaintiff (first respondent in this application) had claimed damages from the first defendant (second respondent) and second defendant (applicant) resulting from a collision between three vehicles, one vehicle was driven by the first defendant, the second vehicle was driven by the second defendant and the third vehicle was driven by an employee (who is sought to be joined as third defendant) of the plaintiff. In his plea the second defendant had pleaded, inter alia, that the collision was caused through the negligence of the third respondent, which 'together with that of the second defendant had operated jointly and simultaneously'. In an application by the second defendant for an order as against the plaintiff and third respondent that the latter be joined as a third defendant, only the third respondents objected to such joinder.

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Held

that, in the circumstances, the court had a discretion to permit the joinder, notwithstanding that the third respondent did not have a direct and substantial interest in the proceedings and notwithstanding that his rights would not be affected by the judgment of the court if he were not joined. Held further, that it would be eminently convenient, and in accordance with the interests of justice, if the third respondent were to be joined as a third defendant on such terms as would enable and require the Court to decide, inter alia, whose negligence caused the collision and, if it was the negligence of both the second and third respondent, their respective degrees of fault.

Lderitz Tuna Exporters (Pty) Ltd v Cato Fishing Enterprises CC (I 3961/2011) [2013] NAHCMD 166 (18 June 2013) Summary: The applicant applied for rescission of default judgment some 3 months after it was granted. Applicant sought to argue that the judgment should be rescinded in terms of Rule 44(1)(a) because the particulars of claim were excipiable (vague and embarrassing) on the grounds of non-compliance with Rule 18(6). Applicant did not deny the terms of the agreement pleaded. Its defence was based on additional terms. As regards the question of good cause, the applicants explanation for its failure to apply timeously for rescission until it became aware of the default judgment was accepted, albeit with some reservation. However for a significant period of time after the writ of execution was served on the applicant there was inaction on the part of the applicant. This inaction was not properly explained, if at all. This was not a case where blame could be laid at the doors of the applicants legal practitioners. The applicant on the facts simply did not evince a serious intention to timeously provide instructions to its lawyers for purposes of explaining the reasons behind the default and for applying for rescission. The applicant was accordingly in wilful default. The approach approved in inter alia Minister of Home Affairs; Minister Ekandjo 2008 (2) NR 548 (SC) at 581C-I, to the effect that the correct approach is not to look at the adequacy or otherwise of the reasons for the failure in isolation, but that the explanation must be considered in the light of the nature of the defence and all the circumstances of the case was adopted. The court held that the conduct of the applicant gave rise to the inference that there was no bona fide defence and that the application for rescission was not bona fide either. Application accordingly dismissed with costs.

Malumbano v Government of the Republic of Namibia (I 317-2012) [2013] NAHCMD 113 (25 April 2013)

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Summary: Delict Plaintiff sued defendants for wrongful arrest and detention and malicious prosecution Plaintiff was arrested, detained and charged by the officials of the Anti-Corruption Commission with an offence under the Anti-Corruption Act for which the plaintiff was found not guilty in the Magistrates Court In this Court, the plaintiff failed to prove his claim for the wrongful arrest, detention and malicious prosecution therefore, the claim is dismissed.

Mega Power Centre CC t/a Talisman Plant and Tool Hire v Talisman Franchise Operations (Pty) Ltd (A 171/2013) [2013] NAHCMD 156 (07 June 2013) Summary: The applicant trades under the name and style of Talisman Tool Hire in Windhoek As from 01 June 2013 the second respondent conducts business under the name Talisman Hire The applicant relying on the common law delict of passing-off seeks interdictory relief . Held that the similarity between the names in the context in which the businesses are conducted is likely to confuse the public to believe that the business of the second respondent is that of or associated with the applicant. Held further that the applicant had established a reputation in the use of the name Talisman. Held further, that it was incumbent upon the applicant to establish in addition that as a consequence the applicant is suffering or likely to suffer damages. Held that the applicant did establish the requirement of damage. The application is dismissed with costs.

Miljo v Minister of Safety and Security (A 51/2013) [2013] NAHCMD 126 (17 May 2013) Summary: The applicants launched an urgent application for a rule nisi calling upon the respondents to show cause why inter alia the second respondent and anybody acting on his behalf should not be prevented from removing certain movable property under the control and care of the second applicant pending the finalisation of a deceased estate. The rule nisi also called for an order directing the respondents not to interfere with the rights, title and interest of the first applicant as executrix of the deceased estate. Both orders were sought to operate as interim interdicts pending the return date. The applicants also applied for a rule nisi calling on the respondents to show cause why the third and fourth respondents should not be ordered to return any movable property of the deceased which they allegedly removed, and directing the deputy sheriff to take
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control of the aforesaid property. The search warrant was issued on 26 February 2013. The urgent application was launched within a reasonable time, on 5 March 2013 after an earlier aborted attempt to apply for the same relief on an ex parte basis on 28 February 2013. The grounds for the issue of the search warrant were apparently that there was a reasonably held belief that the property would afford evidence as to the commission of an offence. On the papers there was no evidence of the commission of a criminal offence with regard to the taking into possession of and storage of the movable property. This was done in terms of a court order in the applicants favour granted in August 2011. The third and fourth respondents alleged in their papers that they applied for a search and seizure warrant because of financial constraints. Sections 20 and 21 of the Criminal Procedure Act make it clear that a search and seizure warrant can only be obtained if there are reasonably held grounds relating to the commission of a criminal offence. On third and fourth respondents own version, that was not the case and the warrant was improperly obtained. The interim interdicts were granted. As regards the other relief sought to be finalised on the return date, the applicants failed in any meaningful way to identify or properly set out which property they wanted returned to the estate. In the result, this portion of the relief sought was dismissed.

Moussa v The Prosecutor-General (A 92/2013) [2013] NAHCMD 103 (15 April 2013) Summary: The applicant as trial-awaiting accused person who sought an order to the released from further detention. The applicants two separate applications to be admitted to bail were refused by the lower court The court qua court of first instance is not competent to grant such order Any such order would set at naught the decisions of the lower court which are valid and would not be in tune with the due administration of justice. Constitutional law Applicant sought the relief that the respondent (the Prosecutor-General and certain magistrates of the lower court) be ordered to withdraw criminal charges in a case he is facing Court refused to make such order Court held that the court cannot make such order without violating Article 88(2) of the Namibian Constitution where there is no justification for the making of such order.

Municipality Council Of Windhoek v Telecom Namibia Limited (A 151/2007) [2013] NAHCMD 56 (1 March 2013). Summary: The applicant brought an application for declaratory relief to enforce Lease agreements entered into between itself and respondent and determination that respondent cannot erect phone booths on land registered in applicants name without
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the latters agreement. The respondent conceded to be obliged to honour existing lea se agreements, but disputed that it is obliged to enter into an agreement to erect phone booths on land of applicant reserved for public purposes. Respondent of the view that it is authorised by section 24 of Act 19 of 1992 to enter land reserved for public purposes and to erect phone booths without an agreement with applicant and without paying compensation. Applicant of the view that, if respondent is authorised by section 24, then that section is in conflict with article 16 of the Namibian Constitution. Held, section 24 of Act authorizes respondent to enter any land reserved for public purpose to erect phone booths without any agreement. Held, further the land on which phone booths are erected is land reserved for public purpose and thus not necessary to expropriate it as it is already held for that purpose. Held, further, section 24 not in conflict with article 16. Article 16 only protects the right to acquire, own and dispose of property. Held, further section 24 does not infringe the right of applic ants to enjoy its property, because the pubic phone booths are erected on land designated/reserved for the public purposes and for public use.

Nambala v Anghuwo (I 3570/2010) [2013] NAHCMD 97 (9 April 2013). Summary: The applicant approached this Court by way of notice of motion with an application for condonation of the late filing of an application for rescission of the judgment by default granted against him on 14 April 2011. This application has its origin in an action instituted as far back as 18 October 2010 by the respondent, in which action he claimed payment of the amount of N$ 84 569.59, interest on the amount of N$ 84 569.59 at a rate of 20% per annum as from 30 July 2010 to date of payment and costs of suit. The applicant did not defend the action, the respondent set down the matter, applied for and on 14 April 2011 obtained default judgment. On an application for rescission of judgment. Held, that in view of the applicants inaction and dont care attitude it is difficult to envisage circumstances in which the judgment was erroneously granted. That the default judgment was not granted erroneously and the application cannot be brought under Rule 44(1) (a). Held, further that the relief granted in terms of Rule 31(2) (b) is by way of an indulgence and that it is therefore imperative that the applicant must provide an acceptable explanation how the default came about to enable the Court whether or not to grant the indulgence.

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Held, further, the explanation for failure to bring the application for rescission within the time period stipulated in Rule 31(2) (b), must be made in an application for condonation. Such an application should, of course, have been brought pursuant to Rule 27. Held, further, that service of the summons on the applicant as contemplated in Rule 4(1) (a) (ii) was not defective service. Held, further, that it is difficult, if not impossible, to find that good cause has been shown for granting the indulgence sought.

Nampost Limited v Hiwilepo (I 3253/2007) [2013] NAHCMD 18 (29 January 2013) Summary: The plaintiff sued the defendant for N$62 072.46 for money lent and advanced in respect of a study loan or bursary awarded to defendant. The terms and conditions of the bursary award were inter alia that the plaintiff will pay for her studies and in return she will work for the plaintiff on completion of her studies for the number of years her studies were paid for. Plaintiff complied with its obligations. Defendant after completing her studies failed to comply with her obligations as she resigned prematurely. Defendant denies that she was given a bursary with conditions attached. In the alternative, she pleaded that if court finds that she was awarded a bursary, the contract is unenforceable as she was a minor at that stage and she was unassisted when she entered into the agreement. Held, that she was indeed a warded a bursary subject to certain terms and conditions as contained in the human resources policy documents. Held further that, on balance of probabilities she was assisted when she entered into the contract with plaintiff. Held further on balance of probabilities plaintiffs version more probable then that of defendant.

Nel v Burger (A 80/2013 [2013] NAHCMD 106 (11 April 2013) Summary: Applicant launched an urgent application for an order interdicting the first and second respondents from proceeding with their actions instituted against the third respondent and from engaging in proceedings in terms of section 228 of the Companies Act, 28 of 2004 to remove the first respondent as a director of the third respondent, pending finalization of arbitration proceedings scheduled to take place on 14, 15 and 16 May 2013. It was common cause that the applicant had a 40% shareholding and the first respondent a 60% shareholding in the third respondent. It was also clear that the

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arbitration proceedings would ultimately deal with the rights and interests of the applicant and the first respondent on the third respondent. Held, the applicant had made out a case for urgency on the papers. The applicant had also proved a clear right as well as the other requisites for interim relief on the papers. The relief sought in the application was accordingly granted.

Nghikofa v Classic Engines CC (I 887/2010) [2013] NAHCMD 27 (30 January 2013) Summary: Practice Applications and motions Requirements for in terms of rule 6(12)(b) Requirements are circumstances relating to urgency which have to be explicitly set out and giving reasons why the applicant could not be afforded substantial redress in due course Court finding that applicant has not satisfied the two requirements in rule 6(12)(b) Court could therefore not justify grant of the indulgence sought Consequently court refusing application Dicta in Salt and Another v Smith 1990 NR 87 at 88H and in Labour Supply Chain Namibia (Pty) Ltd v Awaseb at 323H 324B applied.

Ntinda v Hamutenya & Others (I 1181/2012) [2013] NAHCMD 150 (6 June 2013). Summary: The plaintiff is the editor of a Newspaper called Namibia Today. He alleges that he has been defamed by an article and a letter which were published in the The Namibian and The Namibian Sun newspapers respectively by the words: (i) Ntinda (plaintiff) was one of the people who actively participated in the establishment of the RDP (ii) Ntindas report is thus based on the pain of a guilty conscience . (iii) Thus he tries to soothe or calm that pain by raising false and absurd issues with a view to get at me (iv) Asser knows full well that there are people in this country who knows that he was one of the people who actively participated in the establishment of the RDP and (v) He is, therefore suffering from the pain of guilty consciousness. I suspect that he has not, on his own, revealed this fact to his SWAPO colleagues. The plaintiff avers that when considered in context the words were intended and understood to mean that: (a) he is dishonorouble and a traitor; (b) he is a coward and without moral fibre; (c) he is a person of ill repute; (d) he lacks the necessary integrity and is undignified; and (e) he is disloyal to the Swapo Party. The fourth and fifth defendants noted an exception to the plaintiff's particulars of claim as disclosing no cause of action, on the grounds that the statements complained of by the plaintiff are

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not reasonably capable of conveying the meanings attributed to it by the plaintiff and even if they were so capable, they are not defamatory. Held, that where exception is taken to the plaintiff's declaration, the test of what constitutes a defamatory matter is different from that at the trial stage. At the exception stage all the Court is called on to decide at this stage is whether a reasonable person of ordinary intelligence, having read the defendant's words and having knowledge of the circumstances might reasonably understand these words as defamatory. Held further, that a defamatory matter was one which injured the person to whom it referred by lowering him in the estimation of reasonable persons of ordinary intelligence or right-thinking members of society generally and whether the statement, proved by plaintiff, is defamatory is determined objectively by the Court by analyzing the statement, its meaning and effect thereof and ultimately assess whether it tends to lower the plaintiff in the estimation of right -thinking members of society generally. Held further, that when assessing whether the publication is defamatory or not the Constitutional values play a very important role. Held further, that looking at the words uttered by first defendant and published by the fifth respondent, it is difficult to see how a reasonable, right thinking individual of normal intelligence might find the words to injure the plaintiff in his good name and reputation and thus being defamatory of him. No disparaging remarks that go against plaintiffs character are made and no ridicule is leveled at the plaintiff. Held further, that the words used did not lower the plaintiff in the estimation of right thinking members of society and that the words used were incapable of a defamatory meaning in the sense alleged by the plaintiff in his particulars of claim. Nufesha Investments CC v Namibia Rights and Responsibilities Inc. (A 337/2012) [2012] NAHCMD 112 (28 December 2012) Summary: The applicant was a building contractor who had entered into an agreement with the first respondent (represented by the second respondent) to perform certain renovation and construction work on the first respondent's property. When a dispute arose between the parties, the second respondent grabbed the keys of the building from the applicants representative and barred the applicants representative from entering the property.

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Held, that a real, genuine and bona fide dispute of fact could exist only where the court was satisfied that the party who purported to raise the dispute had, in his affidavit, seriously and unambiguously addressed the fact said to be disputed. Held, further, it is common cause that the renovations of the property had reached a stage that the doors were placed in a position that they may be locked up, and possession of the key would be equivalent to possession of the building. Held further .that on the facts, the applicant was dispossessed when the second respondent grabbed the keys from applicants representative and barred applicant from accessing the property.

Nujoma v Nujoma (I 3838/2011) [2013] NAHCMD 88 (5 April 2013). Summary: On the return date of a rule nisi in divorce proceedings, the defendant who wanted to deal with certain ancillary issues before the order was made final was given leave to do so. The legal practitioner representing the defendant undertook to file papers within one week. The divorce order indicated that leave to defend was granted. The defendants legal practitioner then filed a request for further particulars. When the matter came before motion court again before another judge the defendants legal practitioner represented to the presiding judge that ex facie the order, the defendant had been given leave to defend the action. This was done in full knowledge of the undertaking made to the judge who dealt with the matter earlier that answering papers would be filed in one week. At the later hearing the legal practitioner conceded that he was aware that it was a return date of a rule nisi and that the legal principles required that answering papers should be filed. This was found to be a breach of the duties of an officer of the court. The court granted a final divorce order encompassing the division of the parties estate on the terms set out in the restitution order. Co sts were awarded on an attorney and own client scale and the rule nisi reinstated and confirmed. The principles in Gariseb v Bayerl 2003 NR 118 confirmed as regards reinstatement of rule nisi.

OBM Engineering & Petroleum Distributors CC v Total Namibia (Pty) Ltd (I 3625/2007) [2013] NAHCMD 20 (28 January 2013) Summary: The plaintiff and defendant concluded a written agreement Defendant claims that the words source documents and verified source documents was intended to exclude delivery notes Agreement therefore ambigious,

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Held that determining what the intention of the parties was, requires of the Court to give the words used their ordinary meaning unless that would result in some absurdity The intention of the parties is to be gathered from how it is expressed in the agreement. Held that in casu giving the words used their ordinary meaning no ambiguity arises Application refused.

Oka Investments (Pty) Ltd v The Chair of the Tender Board for the City of Windhoek (A 66/2013) [2013] NAHCMD 89 (5 April 2013). Summary: The applicant launched an urgent application for an interim interdict preventing respondents from implementing a notice to cancel an agreement with the applicant concluded subsequent to a tender award in terms of which the applicant was to provide fuel, pending the finalisation of proceedings to be instituted against the respondent. The notice was issued by the first respondent on behalf of the second respondent. The applicant was not yet clear at the stage the application was launched whether the proceedings to be instituted were review proceedings or action proceedings, especially in view of the Supreme Court decision of Permanent Secretary of the Ministry of Finance and Others v Ward 2009 (1) NR 314 (SC) to the effect that whether an action amounted to an administrative act would depend on the nature of the power exercised, the source of the power, the subject matter, whether it involved the exercise of a public duty and how closely related it was to the implementation of legislation. Both parties relied on the provisions of the Local Authorities Tender Board Regulations published in Government Notice 73 of 12 April 2011. Regulation 6 provides that the first respondent may cancel any agreement concluded with the second respondent, but that the second respondent must take the final decision in respect of the cancellation. Regulation 27 provides that the first respondent may, in the event of a persons non-compliance with the title of the tender or agreement or delay in performance or unsatisfactory performance cancel the agreement. No provision is contained in Regulation 27 requiring the second respondent to make the final decision in such an event. Held, it appeared that Regulation 6 is of general application and Regulation 27 of specific application in the instances therein referred to, but the provisions are also conflicting. Insofar as the conflict is irreconcilable, the principles relating to statutory interpretation set out in R v Brener 1932 OPD 45 at 51 are to be applied, namely that in the event of a conflict, the later of the two provisions prevails, and the first respondent was authorised to cancel an agreement concluded on behalf of the second respondent.

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Held further, in establishing whether the applicant showed a prima facie right to specific performance it had to show that the breach of contract was prima facie not material, and that cancellation was not warranted. The applicant failed to set out such a case in its founding papers and sought to remedy the paucity of information provided in the replying affidavit. The respondents proved the first respondents right to cancel on the facts, and the application was accordingly dismissed.

Oryx Development Group (Pty) Ltd v Government of the Republic of Namibia (A 1635/2011) [2013] NAHCMD 129 (20 MAY 2013) Summary: The plaintiff instituted action for damages against the defendant arising from an alleged breach of contract by the defendant. The terms of the alleged agreement were contained in various letters. The defendant excepted to the particulars of claim on seven grounds, four of the grounds of exceptions went to the alleged failure of the plaintiff to make averments necessary to sustain a cause of action. The other three grounds of exception were on the basis solely that the particulars of claim were vague and embarrassing. Held that the failure to sign the particulars of claim is an irregularity but not a ground of exception. Held further that evidence can be led at the trial as regards the place where the letters where posted thus disclosing the place where the agreements were concluded and that it is untenable to contend that an exception is the only remedy available to an aggrieved party in a case where the provisions of rule 18(6) have not been fully complied with. Held further that a plaintiff who relies on a contract as intended in Rule 18 (6), and who fails to state the place where the contract was concluded does not render the plaintiff's claim excipiable and that the question whether or not an agreement was oral or in writing is not a fact that needs to be proven to entitle the plaintiff to succeed in its claim. Held further that the question whether a purported contract may be void for vagueness do not readily fall to be decided by way of an exception.

Otto v Ekonolux (I 3094/2012) [2013] NAHCMD 165 (14 June 2013). Summary: On 16 January 2009 Mr Alfons Otto, the first plaintiff, had been driving on a national road (the B2 main road) between Karibib and Okahandja. He alleged that as he approached the intersection on the B2 main road and District Road No. 1988 at
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around midday, he slowed down the vehicle (a bakkie) and simultaneously switched on his right indicator as the turn-off to the Kanzimba Lodge was to the right of the B2 main road. As he was slowing down he cannot say with certainty how far he was from the Kanzimba turn-off (i.e. the turn off to the right into District Road 1988), he looked in his right side mirror to see if there was any traffic approaching. At that juncture he noticed a bus in the mirror, coming over the crest of an incline on the road. He slowed down further with the aim to turn to the right. When he looked in his rear mirror again he noticed that the bus was very close behind the bakkie and travelling at a very high speed. At that point he was still in the left lane of the B2 main road. The next moment the bus collided into the rear of the bakkie he was driving. The second defendant, Mr George Jhr, on the other hand testified that as they (i.e. the bus and the bakkie) approached the intersection he saw the bakkie slowing down and he also reduced the bus speed a little bit. He saw the bakkie putting on its left indicator he then turned the bus more to the white broken line; to ensure that he overtook the bakkie his right side indicator was on at that point. He then testified that at that moment the bakkie started to move back from the left to right and he suddenly saw the bakkie right in front of him and he pulled the bus to the right side to avoid the accident, but it was late and he hit the bakkie on its right rear side. Held that the two versions of the plaintiff and the defendant are mutually destructive. The approach then is that the plaintiff can only succeed if he satisfies the Court on a preponderance of probabilities that his version is true and accurate and therefore acceptable and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. Held further that in a case where a vehicle rams another vehicle from behind, as here, there is prima facie evidence of negligence on the part of the driver of that vehicle. This prima facie inference of negligence called for an explanation by Jhr. Held further that the Court finds the plaintiffs version of the events more probable than the version of the defendant and that it is the plaintiff, not the defendants, who has proven his claim on a balance of probabilities.

Patrick Inkono v The Council of the Municipality of Windhoek (A 55/2013) [2013] NAHCMD 140 (28 May 2013) Summary: When an applicant approaches the court in application proceedings on an urgent basis, the applicant is required to show good cause why the time periods provided for in Rule 6(5) should be abridged and why the applicant cannot be afforded
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substantial redress at a hearing in due course. The applicant should make out a case of clear urgency in the founding papers. The applicants alleged urgency was related to a notice by the respondent that eviction proceedings would be commenced against him should he not vacate certain immovable property. It was clear on the papers that the applicant had not be served with any process dealing with the institution of any eviction proceedings either in the High Court or the Magistrates Court. The applicant approached the court on 24 hours notice for certain relief that was clearly premature as well as for an order interdicting the respondent from evicting the applicant. The applicant had not made out a case for urgency in the founding papers. Application accordingly dismissed with costs. The respondent delivered a supplementary affidavit after the court reserved judgment seeking to place additional matters in evidence. Rule 6(5)(e) establishes clearly that the filing of further affidavits in applications is only permitted with the indulgence of the court. The supplementary affidavit was simply delivered and placed on the court file without leave of the court. No application was made for leave to place additional facts before court. Supplementary affidavit accordingly ignored.

Parcel Force (Pty) Ltd v Nambat & Logitech CC (I 3935/2010) [2013] NAHCMD 81 (28 March 2013). Summary: In the present matter the legal practitioner representing the respondents entered into settlement negotiations on behalf of respondents with the legal practitioner representing the applicantThe legal practitioners representing the parties concluded a settlement agreement and when the matter was called for the case management conference the legal practitioners informed the court that a settlement has been reached and that that agreement will be made an order of court. When the matter was called for the settlement to be made an order of court the applicants legal practitioner instead moved an application for order that he parties have concluded a settlement agreement. The respondents legal practitioner on the other hand indicated that no agreement was reached because the respondents were not aware of the details/conditions attached to the settlement. The matter was then postponed to another date for the court to hear arguments as to whether an agreement was reached or not. Held that the lawyer and client relationship is no more than that of principal and agent. As such it is trite that when an agent acts within his apparent or ostensible authority, the principal is bound thereby even if he or she has given private or secret instructions to the agent limiting the authority. Held further when both Mr Kutzner and Ms. Williams acted as agents (imbued with the necessary authority) for the applicant and respondents respectively when they conducted negotiations to settle the respondents claims. There is therefor e no
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doubt that Ms. Williams had the necessary mandate to negotiate on behalf of the respondents and to bind them Held furthermore that Ms. Williams or the respondents did not testify nor did Ms. Williams argue that she was expressly instructed not to effect a settlement. It was found that the contrary was actually the case; she had the full power to settle the matter. Her basis of denying the settlement was that the respondents did not know the additional conditions. Held that the question of whether or not the respondents knew about the additional conditions is irrelevant and immaterial.

Pienaar v The Prosecutor-General (A 72/2013) [2013] NAHCMD 85 (2 April 2013). Summary: In urgent applications, the requirements for the circumstances relating to urgency and the reasons why an applicant could not be afforded substantial redress in due course must be explicitly set out in compliance with rule 6(12) (b) of the rules of court. In instant case, applicant has not met the two requirements. Consequently, the court refused the application on the grounds that the applicant has failed to satisfy the two requirements.

Sasman v The Chairperson of the Internal Disciplinary Panel of the Windhoek International School (A 66/2013) [2013] NAHCMD 115 (04 April 2013). Summary: Urgent application for the review and setting aside, with immediate effect, of a ruling of the internal disciplinary panel of the Windhoek International School refusing the applicants minor child legal representation at a disciplinary hearing applicants contending that panel should have afforded applicants minor child the right to legal representation as the minor child would otherwise not enjoy a fair hearing due to the nature of the charges brought - the degree of factual legal complexity of the matter - the potential seriousness of the consequence of an adverse finding - the age of the minor child - the age of the witnesses - the fact that there is a qualified attorney to adjudicate on the matter - respondents contending on the other hand that application was not urgent that the available internal appeal remedies should have been exhausted first that applicants had waived their right to insist on legal representation for their minor child during such proceedings by again participating in the disciplinary hearing which they had refused to attend on legal advice that the disciplinary panel had not acted mala fide, ultra vires or breached the rules of natural justice and had thus exercised its discretion properly as a result of which the court should refrain from interfering in the matter As proceedings, in which the rights of children are involved, are sui generis and invoke a special jurisdiction bestowed on the court to look after the interests of
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children Court however exercising discretion in favour of entertaining application on an urgent basis As the contractual framework, governing the relationship between the parties, did not require the parties to exhaust all internal remedies first and as the court would in any event also have the power to condone a failure to exhaust internal remedies and in certain circumstances were the validity of the entire disciplinary process was in question - Court holding that it would make no sense to defer the decision on the merits of this matter until the internal appeal avenue had been exhausted Court thus not upholding special defence that internal remedies should first have been exhausted On the facts of this matter Court however finding that the applicants - through their conduct in again participating in the disciplinary proceedings which they had left indicating that they would only continue to participate therein if legally assisted and which subsequent conduct was plainly inconsistent with the right relied upon in this application had waived such right Respondents accordingly discharging onus in proving this defence - As the effect of the waiver was that it has extinguished the right, relied upon by the applicants in this matter, it followed that no relief could be granted on the basis thereof application accordingly dismissed with costs.

Sinfwa v Shipahu (I 1326/2011) [2013] NAHCMD 127 (16 May 2013) Summary: Compromise Transactio In an action arising from a collision of two motor vehicles driven by the parties the plaintiff pleaded delict But on the same day the collision occurred the parties agreed that the defendant should repair the plaintiffs motor vehicle Court finding therefore that a compromise was settled by the parties and it extinguished ipso jure the cause of action being delict which the plaintiff pleaded and he did not reserve his right to rely on delict which may have existed previously The court held that the compromise has the effect of res judicata Consequently the court concluded that the plaintiffs action based on delict should fail Accordingly the court dismissed the plaintiffs action with costs.

Smith v Mediva Fisheries (Pty) Ltd and Another (I 429/2012) [2013] NAHCMD 152 (06 JUNE 2013) Summary: Plaintiff, driving her own vehicle, had been involved in a collision with a truck driven by the defendant. Plaintiff claimed damages in respect of the damage to her motor vehicle. The reason for the accident, the plaintiff says, was that the defendant overtook stationary vehicles and when he had to return to his lane of driving collided with the plaintiffs vehicle which was also stationary and waiting for the dark smoke of
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cloud hovering in front of her to recede. The defendants version on the other hand is that the plaintiff overtook stationary vehicles and when she returned to her lane of driving the fire flames were approaching the surface of the road forcing the plaintiff to veer back to the right lane without ascertaining that it was save for her to do so and in the process she collided with the truck he was driving. Held that the two versions of the plaintiff and the defendant are mutually destructive. The approach then is that the plaintiff can only succeed if she satisfies the Court on a preponderance of probabilities that her version is true and accurate and therefore acceptable and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff's allegations against the general probabilities. Held further that the Court finds the plaintiffs version of the events more probable than the version of the defendant. Held further that in view of the fact that the Court accepted the plaintiffs version of events the Court concluded that when the defendant overtook the stationary vehicles he either miscalculated the place where he had to return to his lane of driving or his vision was impaired by the dark cloud of smoke hovering over the road and that he did not notice the plaintiffs vehicle. The Court therefore found that the defendant failed to keep a proper lookout on the road ahead of him and that he failed to avoid the collision when it was reasonably expected of him to avoid the collision and that the defendant was negligent and that such negligence was the sole cause of the collision.

Standard Bank Namibia Limited v Kamwi (I 2149/2008) [2013] NAHCMD 63 (7 March 2013) Summary: Statute Interpretation Close Corporation Act, s 2(3) and s 26(5) - Court finding that while the application of s 2(3) is limited by the application of other provisions (including s 26(5)) s 26(5) is not so limited and its application is peremptory The intention of the Legislature is to pierce the veil of incorporation and to make members personally liable for outstanding debts of the close corporation upon date of its deregistration Piercing of veil of incorporation is therefore by operation of law. Summary: Contract Formation of Signature Signature indicates the signatorys intention to be bound The caveat subscriptor rule applies and is based on the doctrine of quasi-mutual assent This rule does not apply where signatory was misled as to the nature of the document or as to its contents Court finding that defendant does not

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contend he was misled into signing Annex C (attached to the combined summons) Court therefore concluding that defendant is bound by Annex C. Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 68 (12 March 2013). Summary: Contempt of court An act done in derogation of the courts dignity or in derogation of due administrative of justice is civil contempt if done willfully In instant case respondent/judgment debtor refused or failed to obey a court order General principle underlying civil contempt in The Minister of Education and the Government of the Republic of Namibia v The Interim Khomas Teachers Strategic Committee and All Persons Forming Part of the Collective Body of First Respondent and Others Case No. LC 166/2012 (Unreported) applied Upon applying the general principle court found that the respondent/judgment debtors refusal or failure to obey the 31 July 2012 is contempt of court Accordingly, respondent/judgment debtor found guilty of contempt of court. Standard Bank Namibia Limited v Maletzky (I 3956/2009) [2013] NAHCMD 131 (17 May 2013) Summary: Contempt of court Civil contempt Sentence Purpose of civil contempt is to enforce the order made by the court on 31 July 2012 The sentence is suspended on condition that the judgment debtor (defaulting party) complies with the order in the manner prescribed by this court. Summary: Practice Judgment or order of the court A party is not entitled to refuse to comply with a judgment or an order of the court on the basis that in that partys opinion the judgment or order is void ab origine and therefore in law a nullity Any contention to the contrary is offensive of Article 12(1) of the Namibian Constitution which guarantees the right of a party in whose favour an order has been made to enforce it Such order remains valid and enforceable until or unless set aside by a competent court.

The Government of the Republic of Namibia v Jansen (I 2617/2010) [2013] NAHCMD 171 (20 June 2013) Summary: Landlord and tenant Eviction of defendant (lessee) from land not forming part of leased property Defendant (lessee) occupying the plaintiffs (lessors) land that adjourns leased property but which falls outside the leased property Court finding that
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defendants occupation without the plaintiffs written permission is illegal as the occupation contravenes s 18(1)(a) of the Nature Conservation Ordinance 4 of 1975 Court concluding that plaintiff has proved its claim and so ordered defendant from the land in question.

The Municipal Council of Windhoek v Hansen (A 317/2011) [2013] NAHCMD 14 (25 January 2013) Summary: The applicant municipality applied for an order directing the respondent to remove, alter or pull down illegal structures on the respondents erf, which structures were not built according to approved building plans and which also had been constructed on top of the applicants main sewer line. The respondent denied that there were illegal structures present on his erf, and alleged that the applicant had waived its rights to apply for the aforesaid relief because the parties had agreed that instead of removing the structures the respondent would maintain the sewer line at his own costs. Held The respondent had not laid any basis or facts in support of its contention that the applicant had waived its rights. Respondents bald denial that there were illegal structures in light of indications on annexures containing the building plans, which structures had not complied with the approved building plans not sufficient to raise a real and genuine dispute of fact. Application accordingly granted.

The Prosecutor General v Uuyuni (POCA 4/2012) [2013] NAHCMD 67 (12 March 2013) Summary, On return date respondent contending that applicant had not made out a case for matter to be heard in camera, alternatively that no case had been made out for the matter to be heard in camera on the grounds as provided for in Article 12(1)(a) of the Namibian Constitution Rule nisi submitted to be a nullity Applicant arguing that an ex parte and in camera hearing was expressly authorised by section 98(1) of POCA that the Constitution authorised in camera hearings in specific circumstances and that the National Assembly had determined through the enactment of Section 98(1) of POCA that ex parte proceedings under the Act were one of those circumstances and that it was not open to the respondent to challenge the validity of Section 98(1) on various grounds and that applicant had ultimately acted within the parameters provided for by Section 98(1) of POCA. After interpreting Section 98 of POCA Court holding that the section permissively and only in directory terms required that all ex parte hearings, contemplated in POCA, may be held behind closed doors if the requirements for the exclusion of the public set by sub-section (2) (and by the
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Constitution) have been met, whereas all other proceedings, contemplated in POCA, must be held open to the public . Court accordingly not upholding submissions made on behalf of applicant. The further questions whether or not the applicant had - on the facts - acted within the parameters provided for by Section 98 of POCA and the Constitution and whether or not the court which had granted the rule nisi in this instance had correctly allowed the hearing before it to take place behind closed doors to be determined with reference to the test formulated in the South African case of Ghomeshi-Bozorg v Yousefi 1998 (1) SA 692 (W) at 698 as adopted by this court in Prosecutor General v Lameck and Others and as recently approved in Prosecutor General v Kanime . Held Applicant had not met the requirements set by section 98(2)(a) as the bringing of the application, without notice to the respondent, had already satisfied the interests of justice, which, in this instance, did not also require the exclusion of the public on the facts of this case Held As nothing was shown on the papers which warranted the extra-ordinary departure from the general rule as to the exclusion of the public at the initial hearing for reasons also of morals, the public order or national security as is necessary in a democratic society it had to be concluded that also the requirements of Article 12(1)(a) of the Constitution were not met. Held That in the circumstances of this case the in camera hearing in this matter was never warranted and should never have occurred. Held That where a court finds on an afresh re-consideration of all the facts on a return day of a rule nisi that a fundamental requirement of the law has been breached that this would also warrant the discharge of any interim order granted in breach thereof. Held Amongst the factors which a court will be entitled to take into account in the exercise of its discretion will be the extent to which a fundamental rule and basic requirement of our system of justice has been breached. Held Having already found that no case been made out for the departure from the overall requirements set by section 98 but also that, in casu, the particular requirements set by s 98(2) had not been met and that the rule nisi in this instance had been granted in violation of the fundamental requirements set by the Constitution - court considering itself not bound - on an afresh consideration of the overall position - by a rule nisi granted in violation of one of the most fundamental requirements, deeply embedded in the law, that justice must be seen to be done.Held Court finding that the exclusion of the public at the initial hearing of this matter, inclined it to refuse to exercise its discretion in favour of confirming the interim order granted in this instance.
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Held The rule nisi is accordingly discharged. Van der Berg v Ashilungu (I 574/2011) [2013] NAHCMD 151 (6 June 2013) Summary: Negligence Motorists Duty of a driver under s 81 of the Road Traffic and Transport Act 22 of 1999 A driver driving on a road has a duty to show reasonable consideration for other persons using the road In the instant case, while the plaintiff took reasonable evasive measures to avoid the collision while driving in his rightful traffic lane the defendant had no such presence of mind and took no such evasive measures Defendant breached his statutory duty under the Act 22 of 1999 Court according found that the negligence of the defendant was the sole cause of the collision and dismissed the defendants counterclaim Accordingly judgment granted for the plaintiff with costs.

Van Wyk v Old Mutual Life Assurance Company Namibia (I 3209/2009) [2013] NAHCMD 53 (19 February 2013) Summary: The applicant applied to declare a default judgment granted by the registrar void, alternatively for an order setting it aside on the grounds that the applicant was not personally served with the combined summons. Applicant sought to impeach the return of service indicating that he was personally served because he did not reside at the address where personal service was effected. The Court held applying the PlasconEvans Rule that the dispute of fact raised on the papers regarding service of the combined summons would be resolved in favour of the respondent because there was no genuine dispute of fact raised and because the respondents statements were far fetched and untenable.

Van Wyk v van Wyk (I 3793/2012) [2013] NAHCMD 125 (14 May 2013) Summary: Plaintiff instituted an action for divorce against first defendant on the grounds of his adultery with second defendant. In her second claim, the plaintiff sued the second defendant for damages on the grounds of her alleged adultery with the first defendant. The defendants did not defend the action. It appeared from the plaintiffs evidence that she had a happy marriage with a man who cared for her emotionally, physically and financially until the affair with the second defendant commenced. The second defendant was a friend of the couple who attended the wedding of the plaintiff and first defendant. The plaintiff requested the second defendant to stop her relationship with the first defendant on a number of occasions. The second defendant
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sent text messages to the plaintiff intimating that the first defendant spent money on her and that the first defendant preferred her because the plaintiff is fat. The first defendant lost interest in the plaintiff and asked for a divorce after admitting his affair some time after it commenced and withdrawing entirely from the plaintiff. Plaintiff instituted proceedings thereafter. Held, the plaintiff proved her grounds of divorce based on adultery with the second defendant. A final order was granted. Held, as regards the claim for damages against the second defendant: the concept of a claim for damages for adultery may be seen by some as outdated and it may well be that society views with less disapprobation than in the past, the commission of adultery. However, marriage remains the cornerstone of our society. The court recognises this and must apply the law taking cognisance of factors to be considered in awarding damages in actions of this nature. The plaintiff requested the second defendant to cease seeing her husband on a number of occasions. However, the affair continued quite brazenly and the first defendant lost interest in the plaintiff not long after the affair began, but he only admitted some time later that he was involved with the second defendant. Second defendant aggravated matters by sending insulting text messages to the plaintiff causing her humiliation. This behaviour of the second defendant was viewed as aggravating. The court accordingly awarded the plaintiff N$ 40,000.00 damages for the loss of consortium and contumelia.

Voigts v Voigts (I 1704/2009)[2013] NAHCMD 176 (24 June 2013) Summary: The plaintiff and the defendant were married to each other since 1985. The plaintiff brought a divorce action based on the defendants admitted adultery. However, the plaintiff had also committed adultery with another woman, Ms NS (hereinafter referred to as NS) and as such asked for the court to condone his adultery. The adultery ground of divorce could not succeed since he had voluntary sexual contact with the defendant after knowing that she has committed adultery with another man, Mr EH (hereinafter referred to as EH). Such conduct in the eyes of the law obliterates all wrong in the adulterous acts of the defendant. The only remaining ground was constructive and/or malicious desertion from the defendant. The onus is on the plaintiff to prove both the factum of desertion and the animus desiderandi on the part of the defendant. Such ground could not be established since he left the common home to stay with the other women which makes him the deserter and not the defendant. On the question of whether the defendant showed no love and affection, the defendant acted with a clear intention to discontinue with the marriage through her continuance to meet EH, the
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same man whom she committed adultery with, without the plaintiffs knowledge and approval and such callous conduct goes against her tender of conjugal rights being genuine. Summary: Namibia divorce law which requires an innocent deserted spouse to accept back the deserter if the latter tenders restitution bona fide, regardless of whether or not the innocent party has lost love and affection for the deserter, or has not interest in being further married to the deserter in light of the desertion, is an anachronism and in need of urgent reform. Wellco Truck and Trailer Repairs CC v WW Construction CC (I 3794/2008) [2013] NAHCMD 8 (17 January 2013) Summary: Practice Judicial case management Order granted to compel defendant to provide fuller and better trial particulars Court finding that trial particulars delivered by defendant not sufficient within the meaning of rule 21(6) of the rules of court Court finding further that defendant has not complied with the order Court holding that in instant case rule 21(4) and (6) should be read intertextually with rule 37(16) and applied together When the two sets of rules are so read and applied together it merges that defendants non-compliance with the order amounts to the order being contumaciously set at naught and it also prejudices plaintiff in preparing for trial Consequently, granting of relief to strike defendants plea and defence and dismiss defendants counterclaim is justified and reasonable. Summary: Practice Costs Court finding that blameable conduct of plaintiff and defendant contributed to undue delay in the expeditious disposal of the case Where both parties are blameable for the delay it is fair and just that no party is mulcted in costs. Wylie v Villinger (A 42/2012) [2012] NAHCMD 69 (13 February 2013) Summary: The applicant occupied a piece of land (erf 1605, Extension 7, Swakopmund, Republic of Namibia) situated in the municipal area of Swakopmund. The second respondent is the lawful owner of the erf. The second respondent, alleging that the applicant is in unlawful occupation of the erf, instructed the third and fourth respondents to disconnect the water and electricity supply to the erf. The applicant thereafter approached the court on an urgent and ex parte basis and obtained a spoliation order in the form of a rule nisi. On the return day the first and second respondents opposed the confirmation of the rule on the grounds that the procedure

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followed by the applicant was irregular, that the matter was not urgent and that the second respondents action were counter spoliation. Held whilst it is correct that the effect of the interim relief provided for in the rule nisi had the effect of immediately restoring possession of the items concerned and incorporeal rights to the applicant, this does not mean that a final order of spoliation was granted on an ex parte basis. The principles laid down in the cases of Clegg v Priestley and Amalgamated Engineering Union v Minister of Labour do not find application in this matter. Held further that the matter was in fact sufficiently urgent at the time that it was brought to justify the non-compliance with the rules of Court and to have been heard as an urgent one. Held further, that all that is required from an applicant in spoliation proceedings is for her or him to establish that he or she was in peaceful and undisturbed possession of the thing in question at the time he or she was deprived of possession. Held, further, that the actions of the second respondent were a clear manifestation of a self-help which the remedy of spoliation is designed to prevent.

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