Introduction

1. The applicants in this application are the plaintiffs in the main action. The trial commenced on 10 September 2024 but grounded to a halt when the plaintiffs wanted to call a witness who appeared to be an expert witness, but there was no compliance with rule 29 of the Rules of Court.

2. For purposes of convenience, I will refer to the parties as they are in the main action.

The application

3. The plaintiffs are seeking leave to call a witness that they indicate is being subpoenaed. However, during the previous hearing, it was determined that this witness must testify as an expert witness. A report was filed on behalf of this witness, but there was no compliance with the provisions of rule 29. Non-compliance with this rule could lead to the witness's opinion being deemed inadmissible, which would significantly impact the plaintiffs' case.

4. In their Notice of Motion dated 13 September 2024, the plaintiffs sought the following relief:

‘1. That the Applicants are granted leave to call Albert Peter Brockerhoff as an expert witness (valuator) as envisaged in terms of Rule 29 (1) of the Rules of the High Court;

2. That the applicants are granted leave to file and serve an expert witness statement of Albert Peter Brockerhoff in terms of rule 29 of the Rules of the High Court that he is permitted as an expert witness at the continuation of the trial in this matter;

3. Condonation in respect of the non-compliance as far as it relates to the intended late filing and serving of the expert summary expert witness statement and Rule 29 of the Rules of the High Court;

4. Further and/or alternative relief as this Honourable Court may deem fit.’

Discussion

5. An expert has been defined as a person with the status of authority (in a subject) by reason of special skill, training or knowledge, a specialist. An expert witness has also been described as ‘one who has made the subject upon which he speaks a matter of particular study, practice or observation: and he must have a particular and special knowledge of the subject’.¹

6. However, a person who takes on the role of an ‘expert witness’ has a different function. The job of an ‘expert witness’ is not simply to articulate their client’s position, it is to assist the decision maker (a court, tribunal, or other similar body) with the information about the specialized area necessary, before a decision can be made.

7. Expert witnesses are regulated by rule 29 of the Rules of Court. The relevant subsections for purposes of the current application are ss (1) and (2) which provide as follows:

‘(1) A person may not call as a witness any person to give evidence as an expert on any matter in respect of which the evidence of an expert witness may be received unless –

(a) that person has been granted leave by the court to do so or all the parties to the suit have consented to the calling of the witness; or

(b) that person has complied with this rule.

(2) A party to any proceedings is entitled to call an expert witness at the trial if –

(a) the name of the expert, his or her field of expertise and qualifications are included in the case management report required in terms of rule 24;

(b) a summary of such expert’s opinion and reasons therefore are included in the report required in terms of rule 24; and

(c) the expert has indicated at the end of the report required in terms of rule 24 that he or she honestly believes that the facts stated in his or her report are true.’ (My emphasis).

8. The court in Iilonga v King Price Insurance Company of Namibia Limited,² held as follows:

‘There are two requirements to be met in terms of rule 29(2)(a) and (b). Firstly, the evidence must be in the nature of an opinion and the reasons therefor must be provided. Secondly, it must be given by a person who is an expert. It must also include the facts or data on which the opinion is based. The facts or data would include those personally or directly known to or ascertained by the expert witness, e.g., from general scientific knowledge, experiments, or investigations conducted by him or her, or known to or ascertained by others of which he or she has been informed in order to formulate his or her opinions, e.g., experiments or investigations by others, or information from text-books, which are to be duly proved at the trial.’

9. The plaintiffs subpoenaed Mr Brockerhoff, and the defendants were aware of the existence of the report by Mr Brockerhoff, which was provisionally admitted into evidence during the evidence of the first plaintiff, Mr Kauari. There can thus be no prejudice, should leave be granted that he testifies.

10. The plaintiffs explained in detail the difficulties they experienced in securing the attendance of Mr Brockerhoff, which is undisputed.

11. The defendants raised a number of objections to the calling of the expert witness, one of which is that the plaintiffs had four years to indicate their intention to call Mr Brockerhoff as an expert witness but never did and only indicated in the pre-trial report that he would be subpoenaed as a witness and then failed to do so in terms of the court order.

12. Having considered the plaintiffs' founding affidavit, I must agree with the defendants that the explanation for the delay is far from perfect, and a lot can be said about what should and should not have been done. Unfortunately, this matter saw a number of different legal practitioners coming and going. The current counsel came on record at the eleventh hour, and they tried to rescue the matter for their clients both ways. I do not intend to penalise the plaintiffs for the poor decisions of their previous counsel.

13. As previously pointed out, Mr Brockerhoff's report is already before the court, albeit provisionally. When he testifies regarding the valuation of the purported improvements, his evidence can be tested through cross-examination. It is not for Mr Brockerhoff to determine whether there was enrichment or impoverishment. That is for the court to determine. His purpose in testifying is to confirm the report, be subjected to cross-examination, and then allow the court to determine the exact value of the structures.

14. Therefore, having considered the arguments advanced on behalf of the parties and in order for justice to prevail between man and man, the plaintiffs should be granted leave to file the relevant report and expert summary, whereafter, the court would make a determination whether the witness is indeed an expert. At this stage, the court cannot grant prayer 1 in the Notice of Motion because the court was not being placed in the position to determine if Mr Brockerhoff is indeed an expert for the purposes of rule 29, and neither were the defendants.

15. Once the report has been filed, the court can proceed and deal with that report in terms of rule 29(4)³ to declare the witness an expert.

16. The final issue to be dealt with is the issue of costs. Both parties are legally aided, and I decline to make any order as to the cost of the current application.

[17] In the result, I make the following order:

1. The applicants are granted leave to file and serve an expert witness statement of Albert Peter Brockerhoff in terms of Rule 29 of the Rules of the High Court.

2. Condonation is granted with respect to the non-compliance as far as it relates to the intended late filing and serving of the expert summary or expert witness statement and rule 29 of the Rules of the High Court.

3. No order as to costs.

4. The Interlocutory application is removed from the roll: Case Finalized.

__________________________

J S Prinsloo

Judge

APPEARANCES:

APPLICANTS: H R Ketjijere

Of Brockerhoff & Associates Legal Practitioners,

Windhoek

RESPONDENTS: F Gaes

Of Uanivi Gaes Inc.,

Windhoek