REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK | |||
EX TEMPORE JUDGMENT | |||
Case Title: Joseph Goveia Applicant and Eric Barnard Respondent | Case No: HC-MD-CIV-MOT-GEN-2024/00200 | ||
Division of Court: | |||
Heard on: 17 April 2025 | |||
Delivered on: 17 April 2025 | |||
Released on: 22 April 2025 | |||
Heard before: Honourable Lady Justice Ambunda AJ | |||
Neutral citation: | Goveia v Barnard (HC-MD-CIV-MOT-GEN-2024/00200) [2025] NAHCMD 190 (22 April 2025) | ||
The order:
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Reasons for order: AMBUNDA AJ: [1] This application was set down on the opposed motion roll on 17 April 2025. The court heard arguments and the parties presented their versions before court, whereafter this court ordered the dismissal of the application with costs. The court indicated that reasons will be released on 22 April 2025. Here are the reasons why the application was dismissed with costs. [2] The applicant, a male person of Namibian descent, brought an application against the respondent seeking relief which this court was unable to comprehend after a thorough perusal of all pleadings before this court. The notice of motion filed on record on 6 May 2024 contains the following relief sought which is incomprehensible: ‘1. Applicant is private individual subject to the civil commerce/Public law merchant, require the court to consider the application in terms of “common law civil commerce or English law, supported by public law merchant, and to uphold the rule of law/presumption. Maxims of equity as: Equity follows the law, at para 22(35),(36),(37); 2.Applicant brought forth a prima farcie case before this court, and requires the respondent to respond by counter-affidavits by a rebuttal affidavit of truth, supported by evidence, rebuttal point-by-point to applicants’ affidavit, with prima farcie defenses accompanies by documentary evidences/proofs, at para 22(25),(26),(27),(35),(37); 3.Applicant requires this court to find the facts and execute on the law of tort, delict, and execute the common law of England / English law, in reference to the principles and rules of equity before this court and to uphold eternal, unchanged principles of law, rule of law, Natural Law and Moral Law, which are fundamental maxims of commerce, precepts in commercial law, private law agreement of the parties, at para 22(25),(26),(27),(28),(30),(31), (32), (33); 4.Applicant require judgement in equitable estoppel by confession of judgement, on his administrative remedy, as a proof of right or claim, since the respondent is in default / dishonor, and is defaulted on his duty to respond, at para 22(11),(12), (13), (14), (18), and (Cf, compare High Court rule 32(9),(10), 62(1), (2)); 5. Applicant has invoked the principle of acquiescence by silence , and require the court to execute, governing law of the private contract, is the agreement / stipulation by principles of admission and confession of the parties supported by the Public Law Merchant and applicable maxims of law established by silence, acquiescence and tacit agreement, at para 12 (c), (d), ( e) , ( f) , 22 (15), (16), (28), (29), (30), (31), (32),(33), (34), ( Cf, compare High Court Rule 32 (9), (10), 62 (1), (2)), and see Annexure A, B, C, D. Maxims of equity as: Equity suffers no right without a remedy; 6. Respondent Eric Barnard, under his own full commercial capacity with clean hands in equity, and is now required to testify under his sworn full commercial liability that, at para 23 (5), 22 (24), (25), (26), (27): a) Joseph is JOSEPH GOVEIA ? ; at para 22 (11), (12), (13),(14), (18); b) Joseph is one and same as JOSEPH GOVEIA ? c) Proof of claim that the living agent Eric Barnard is not an agent of the Crown? d) Is the living agent Eric Barnard is not sworn to uphold Namibian Legislation?; and e) Is living agent Eric Barnard is not aware of the laws against mis-representation? 7. Respondent is only a party affected by this applicant's affidavit of motion, is to speak and act for himself, and is solely responsible for responding with his own affidavit of truth, which no one else can do for him, at para 22 (25), (26), (27), (34); 8. This is a private jurisdiction / equitable, no third party interference allowed ( Cf, compare refer to section: 41 (m) , 83 and 84 of Legal Practitioner Act, of 1995 ) ; any intervention by a third party for respondent, applicant is alternatively require of evidence of Oath of fidelity as well as the policy number and name and address of the underwriter of the bond, of the third party, at para 23 (7). Maxims of equity as: Equity denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men; 9. Applicant has placed the facts and law before this honorable court; 10. Applicant's judgement is a matter of conclusion of the Law - English Law / common civil commercial law, supported by public law merchant / public municipal, at para 22 (25), (26), (27), (28), (29), (30), (31), (32), (33), (34), (34), (35), (36), (37); (28), (29), (30), (31), (32), (33), (34), (34), (35), (36), (37); 11. Applicant require the court to order respondent to pay monetary compensation / damages, the sum certain N$50,000,000.00 (fifty million Namibian dollars); over to applicant, at para 22 (11), (12), (13), (14), (18), and 22 (28), (29), (30), (31), (32), (33); 12. Applicant require the court to release the Order of the Court to JOSEPH GOVEIA, at para 22 (28), (29), (30), (31), (32), (33), (34); 1 13. Applicant requires the respondent to pay the cost of the court; [3] On the date of hearing the application, I pointed out to the applicant that the founding affidavit was never filed since 2024 with the notice of motion to set out the facts and basis for the relief sought. The applicant indicated that he didn’t know that the founding affidavit needed to be filed on the system after it was taken to the Deputy Sheriff for service on the respondent. Despite the fact that the court was not convinced by such an explanation and noting that the court would have been within its powers to strike the matter from the roll for non-compliance with rule 65(1), the court exercised its discretion and allow the founding affidavit to be provided and to be considered on the hearing date. [4] Counsel for the respondent was generous enough to upload the copy of the served founding affidavit for the court’s consideration on the same day and also handed up a hard copy in court. [5] The founding affidavit is framed in a similar wording and language as the relief sought in the notice of motion as quoted above. The applicant describes himself as ‘Joseph’ only. He insisted that he is Joseph only ‘original principal, grantor, private individual, lawful private person, incorporated with first Christian name Joseph for and on behalf of JOSEPH GOVEIA, who is a minor, minority, age of minority, male person, crown, a person of unsound mind, an infant without recourse, without prejudice’. [6] The applicant further stated at paragraph 9 of his founding affidavit that ‘Joseph a principal for applicant is both the victim /Injured party of the harm and a beneficiary of the relief, has claimed original jurisdiction standing, and the relief is based on substance/substantial interest not legal abstract, academic hypothetical; we respectfully submits that applicant has the requisite locus standi to bring this application and to pray for the relief set forth in the accompanying founding affidavit in support of the motion application’ [7] In an attempt to set out the facts on which the claim is based, the Applicant makes even more confusing allegations in paragraph 12 and 13 of the founding affidavit and further stated in paragraph 18 that his cause of action is based on ‘trespass; violation of our natural rights under Natural law, fraud dealing not honest, deceit by estopped, or misrepresentation of defamation of character, they cause a deprivation of applicants rights by respondents’ action(s)’. The applicant claims that he is entitled to the relief sought as an ‘injured party due wrongful act by wrong-doer, respondent, trespass on our rights and harm the reputation of applicant’. [8] During arguments, the Court enquired from the applicant as to what his claim was as against the respondent since the pleadings are confusing. After several enquiries from the court, it became evident that the applicant was employed at B2 Gold mine and was dismissed from his employment. The applicant’s case which he wishes to advance was to seek a witness statement from the respondent to explain why he was referred to as ‘Joseph Goveia’ during the employment terminating process, which the applicant insisted that the respondent, and others, were involved. The applicant’s case before court is accordingly also to seek damages for defamation against his character because he was referred to as ‘Joseph Goveia’, while his name is merely ‘Joseph’. These arguments were explained to tie in with the relief sought under prayer 6 of the Notice of Motion as quoted above. According to the applicant therefore, the respondent must explain and must take the stand to explain to the court why he referred to the Plaintiff as ‘Joseph Goveia. Accordingly, because of such conduct of the part of the respondent, the applicant’s reputation was injured, and defamed, entitling him to claim and be awarded damages in the amount of 50 Million. The opposition to the Application [9] The respondent is Mr Eric Barnard, employed as a General Manager at Oshikoto Mine at B2 Gold Namibia (Pty) Ltd. He deposed to the answering affidavit and indicated that he does not know the applicant and have never met or dealt with the applicant. Accordingly, his first encounter with the applicant was when he was served with the summons in the action instituted by the applicant under case number HC-MD-CIV-ACT-CON-2023/02689. [10] The respondent raises three points in limine which Mr Vliege for the respondent submitted should be a basis on which this court should dismiss the Application. Before I summarize the points in limine, the court is grateful to Mr Eric Barnard in assisting the court by setting out the historical and background facts in an attempt to understand the history of the applicant’s case.
[11] In short, applicant was employed as a Geotechnical Field Technician on a fixed term contract by Oshikoto Mine at B2Gold Namibia (Pty) Ltd from 01 December 2017 - 31 December 2018. He was offered another employment opportunity for the period of 15 March 2020 - 15 May 2020. The applicant acordingly refused to sign the contract of employment upon reporting for work on 17 March 2020, and rather insisted that he will not work until 16h30 as per the agreement and further signed the agreement as: ‘by Jospeh: Goveia agent of Joseph Goveia without prejudice cc1-308 all rights reserved’1. After several confusing interactions with the applicant, a certain Mr Fillemon who works for B2Gold and who confirmed these allegations, recommended for the termination of the applicant’s contract of employment. The applicant referred a dispute to the office of the Labour Commissioner during 20 October 2020 on the grounds of a Unilateral change of terms and conditions and for breach of contract.2 At the arbitration proceedings, the applicant accordingly insisted that he was acting on behalf of a deceased person, Joseph Goveia, and that after refusing to lead evidence on anything relevant to the dispute, the applicant left the arbitration venue without the merits of the referral being considered. Accordingly, no ruling was made by the arbitrator to date. [12] The applicant instituted action proceedings against the respondent and others under case number HC-MD-CIV-ACT-CON-2023/02689, wherein an exception was raised and upheld that the particulars of claim do not disclose a cause of action. This is therefore a second round of litigation against the respondent by the applicant, without any merit, which is confusing and deficient. Counsel for the respondent argued that this application faces the same fate to be dismissed merely on this ground and on the points in limine raised by the respondent.
[13] The respondent raised three points in limine: firstly, that there is no cause of action established in that the applicant fails to disclose any recognizable cause of action in this application; secondly, that the applicant has no locus standi to bring this application as he refers to himself as a minor or as an agent, without properly establishing any form of agency or a properly identifiable principal. Thirdly, the respondent maintains that the relief sought is not sustainable in that the damages claim of N$ 50 000 000.00 is not explained or quantified but a figure pulled out of thin air. [14] The application was dismissed on the basis of the points in limine raised by the respondent as will be explained below. No cause of action [15] Rule 65(1) requires that every application be brought on notice of motion, supported by an affidavit setting out the facts on which the applicant relies for relief. A founding affidavit is a pleading and therefore rule 45 of the rules of court equally applies as to the nature, format and requirements of pleadings to be filed with the court. [16] Rule 45(5) requires that every pleading’s numbered paragraphs must contain a clear and concise statement of the material facts on which the pleader relies for his or her claim, defence or answer to any pleading, with sufficient particularity to enable the opposite party to reply and in particular set out, inter alia, the nature of the claim, including the cause of action, as are necessary to enable the opposite party to identify the case that the pleading requires the opposite party to meet. The allegations therein must therefore be dealt with specifically and not evasively or vaguely.3 [17] Rule 45(9) and (10) further requires that a plaintiff suing for damages must set them out in such a manner as will enable the defendant to reasonably assess the quantum thereof. A party suing for damages for personal injury must specify the nature and extent of the injuries and the nature, effects and duration of the disability alleged to give rise to such damages. [18] Counsel for the respondent argued that the applicant has not complied with any of these peremptory requirements and this court agrees with that. [19] The applicant’s papers are confusing from all angles. The relief sought does not make sense, in fact, it is unclear as to what this court was expected to do or what order to give to the applicant. The founding affidavit did not assist the court in setting out allegations that are clear and understandable so as to sustain a cause of action or a case to be met by the respondent. From the questioning of the court during arguments, the applicant made it even worse by making incoherent arguments and not stating facts that can at least establish a sense of a determinable application. From the applicants position in court, bringing a respondent to court for referring to the applicant by his nationally identifiable name can never establish a cause of action. In fact, the applicant has not established that the respondent was part of the employment termination process and at what point the alleged misrepresentation and defamation was made by the respondent. [20] Prinsloo J indicted in the action by the same Applicant against the respondent under case number HC-MD-CIV-ACT-CON-2023/026894 that the pleadings were confusing. This application suffers the same fate. The pleadings are not only confusing, but incomprehensible to any normal human being reading it. This court is no exception. [21] This court adopts the approach of Schimming-Chase J in Hunibeb v The Commissioner General Raphael Hamunyela of the Namibian Correctional Service 5 in the disposal of this application: ‘[5] It is trite law that an applicant must make out his case in his founding affidavit. If scant material or incomprehensible facts are set out in the founding affidavit, the applicant runs the risk of the application being dismissed. In Nelumbo and Others v Hikumwah and Others 2017 (2) NR 433 (SC), the Supreme Court had the following to say on this aspect: ‘[41] Since affidavits constitute both the pleadings and the evidence in motion proceedings, a party must make sure that all the evidence necessary to support its case is included in the affidavit: Stipp and Another v Shade Centre and Others 2007 (2) NR 627 (SC) at 634G-H. In other words, the affidavits must contain all the averments necessary to sustain a cause of action or a defence. As was stated in Swissborough Diamond Mines (Pty) Ltd and Others v Government of the Republic of South Africa and Others: “It is trite law that in motion proceedings the affidavits serve not only to place evidence before the Court but also to define the issues between the parties. In so doing the issues between the parties are identified. This is not only for the benefit of the Court but also, and primarily, for the parties. The parties must know the case that must be met and in respect of which they must adduce evidence in the affidavits.” As the adage goes, in motion proceedings you stand or fall by your papers.’
[22] The applicant’s founding affidavit does not contain the necessary averments to sustain a cause of action. It did not set out the basis upon which he prayed for the relief as set out in his notice of motion. Much of the relief sought is entirely incompetent if not incomprehensible. The applicant has fallen on his own papers. [23] The applicant’s position in argument that the amount of 50 million was a generous number from his side as he could put any amount he wants was not justified and not quantified to show how he arrived at that amount. Furthermore, the Applicant’s determination is at odds with what is required by rule 45(9) and (10).
[24] The respondent’s first and third points in limine are therefore upheld. No locus standi to bring this application [25] The applicant refers to himself as acting on behalf of Joseph Goveia. From paragraph 3 and 4 of the founding affidavit, it is stated that ‘Joseph Goveia is a ‘minor, age minority, male person, crown, a person of unsound mind, an infant without recourse’. In paragraph 9, the Applicant indicates that he is the ‘principal for Applicant who are both victim and beneficiary of the relief sought’ and this allegation persisted from paragraphs 12 in an attempt to indicate that the Applicant entered into the employment contract with B2Gold Namibia during 2020 on behalf of ‘Joseph Goveia’. The rest of the language used refers to ‘our natural rights’ and ‘harm to the reputation of the Applicant’. [26] The applicant during argument insisted that he does not know who the applicant is as indicated on the court’s papers. He insisted that he was merely ‘Joseph’. The capacity in which the applicant comes to court is not only confusing from his arguments in court, but also from the papers filed of record. It is unclear whether the applicant is a minor or an agent of an unidentified principal. The allegation of agencies by the applicant cannot be sustained as the fact of agency and authority of such an agent was not established. It beats logic why the applicant, identified by his national identity document attached to the court papers would distance himself from such identity and would bring the respondent to court for referring to him as such. [27] The court is therefore not convinced that the applicant is an agent of any Joseph Goveia. From the national identity attached to the founding affidavit, the applicant is Joseph Goveia who is before court, and is not a minor or a different person. The applicant has not only failed to established agency on the basis of which he brought this application before court, the applicant also does not establish what standing he has in suing the respondent now before court. The second point in limine raised by the respondent should therefore be upheld. [28] It is based on the above reasons that the application was dismissed, with costs. Costs should follow the event. This is the second time that the respondent is subjected to meritless, confusing litigation by the applicant and was made to incur costs in defending yet another round of meritless and confusing litigation by the applicant. The respondent in these instances is surely entitled to recover his costs occasioned by the application. [29] The order made is:
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Judge’s signature: | Note to the parties: Not applicable | ||
Counsel: | |||
APPLICANT: J Goveia In person | RESPONDENTS: S Vlieghe Of Koep & Partners, Windhoek | ||
1 The signature page appears on annexure A, being the Applicant’s contract of employment, to the answering affidavit.
2 Annexure C to the answering affidavit.
3 Rule 45(6) of the rules of Court.
4 Goveia v Bernard (HC-MD-CIV-ACT-CON-2023/02689) [2024] NAHCMD 154 (5 April 2024)
5 (HC-MD-CIV-MOT-GEN-2021/00210) [2022] NAHCMD 210 (21 April 2022).