Kahatjipara v First National Bank of Namibia Limited (HC-MD-CIV-ACT-CON-2019/05422) [2025] NAHCMD 253 (16 May 2025)

Case Title:

Johanna Kahatjipara Applicant

and

First National Bank of Namibia Limited Respondent

Case No:

INT-HC-LEA-2025/00247

HC-MD-CIV-ACT-CON-2019/05422

Division of Court:

High Court (Main Division)

Heard before:

Honourable Lady Justice Prinsloo

Date of hearing:

29 April 2025

Delivered on:

16 May 2025

Neutral citation: Kahatjipara v First National Bank of Namibia Limited (HC-MD-CIV-ACT-CON-2019/05422) [2025] NAHCMD 253 (16 May 2025)

Results on merits:

The order:

1. The application for leave to appeal is struck from the roll.

2. No order as to costs.

Reasons for orders:

PRINSLOO DJP:

Introduction

[1] On 30 January 2025, I delivered a ruling following an application for condonation filed by the defendant, who sought condonation for the late filing of their answering affidavit. Condonation was granted as sought, and the court issued an order in the following terms:¹

‘1. The defendant’s noncompliance with the court order dated 8 August 2024 is hereby condoned and the answering papers filed of record are hereby accepted.

2. There shall be no order as to cost.

3. The matter is postponed to 13 February 2025 at 1500 hours for a status hearing to assign hearing dates for the applicant's interlocutory applications.’

[2] The plaintiff, Ms Johanna Kahatjipara, as the respondent in the condonation application, was aggrieved by the outcome of the application. As a result, she filed an application for leave to appeal, which is the subject of this ruling.

The parties

[3] For ease of reference, I intend to refer to the parties in the current application as they are in the main action.

[4] The plaintiff is Ms Johanna Kahatjipara, an adult female residing in Windhoek. The defendant is First National Bank, a public company with limited liability, duly incorporated under the laws of the Republic of Namibia and registered as a banking institution under the Banking Institutions Act 2 of 1996.

[5] The applicant is conducting the proceedings without the assistance of a legal representative.

Background

[6] I do not intend to dwell too much on the merits of the condonation application. The condonation application arose from the late filing of the defendant’s answering affidavit, which was submitted two days past the deadline. In support of the application, the defendant filed comprehensive papers. The plaintiff opposed the application for condonation. However, after considering the arguments presented and the papers filed of record, the court was satisfied that condonation should be granted as sought.

The application in casu

[7] The plaintiff filed her application for leave to appeal against the aforementioned order on 20 February 2025. In her extensive application for leave to appeal, the plaintiff not only addressed the principles governing the appealability of interlocutory rulings or orders but also sought to set out her grounds of appeal and advanced arguments in support of said grounds.

[8] The plaintiff is aggrieved by the fact that the court granted the defendant condonation. I replicate the grounds of appeal verbatim as it is set out under para 5 of the application for leave to appeal as follows:

‘5. The Court erred in Granting condonation despite fabrication of evidence

5.1 The Applicant presented uncontested evidence that

5.2 The Respondent fabricated the Rule 32(9) engagement email and attempted to pass it off as genuine.

5.3 The Respondent submitted multiple falsified emails on 11, 12, and 13 September 2024, each inconsistent with the others.

5.4 A forensic analysis in terms of section 25 of the Electronic Act 4 of 2019 (BK Report) showed metadata anomalies and document manipulation and it was dismissed as the court assessed that the Applicant and her daughter are not IT expert, making disregard statutory law in terms of Section 25 which provides the following provisions of the Electronic act

5.5 Section 25(12,13,14) of the very Electronic and Transaction Act 4 of 2019 states the following:

“No expert evidence is required to prove the operation or functionality of software that is commonly used on personal computers or other computational devices that are commonly used by persons that are not experts in the field of computer science or a related field”

5.6 The respodnent not challenge the Applicant forensic report with its own expert evidence or even the working knowledge of the Respondent legal practitioner in terms of section Section 25(12,13,14) of the very Electronic and Transaction Act 4 of 2019

5.7 The Retracted the fraudulent screenshot it had submitted on 30 October 2024, thereby confirming the Plaintiff’s allegations of fabrication

5.8 Justice Prinsloo ignored the uncontested nature of this evidence and instead focused six paragraphs on admonishing the Plaintiff for making "scathing allegations," rather than addressing the actual fabrication’

[9] I will return to the grounds of appeal shortly.

[10] The defendant did not file any papers in opposition.

Rules regulating the application for leave to appeal

[11] The procedure and the requirements when seeking leave to appeal are set out in rule 115 and PD 36, respectively. Rule 115 provides as follows:

‘(1) When leave to appeal from a judgment or order of the court is required, the person seeking leave to appeal may, on a statement of the grounds for the leave to appeal, request leave to appeal at the time of the judgment or order.’ (emphasis provided)

[12] Every application for leave to appeal must contain concise and sufficient information necessary to enable the court to determine whether or not to grant the application. This requirement ensures that the court has adequate information to make an informed decision about the appeal's merits.

[13] The focus should be on the pertinent legal issues and preventing the court from being burdened with extraneous information.

[14] Masuku J in Iipinge v Indongo Auto (Pty) Ltd t/a Indongo Toyota² made the following remarks on the importance of grounds of appeal:

‘[21] What grounds of appeal should do, is to inform the court fully, of the bases upon which it is alleged or argued that the Supreme Court may come to a different conclusion than this court. In this connection, the manner in which this court is alleged to have erred must be manifest from the grounds of appeal. So critical are these grounds that they should be detailed in such a way that the trial court can, merely from reading them be able, in some cases, without more, to decide whether the application has merit.

[22] In drafting the grounds of appeal, the applicant must be careful not to draw conclusions of law and then argue that those conclusions are the bases upon which another court may come to a different conclusion. When regard is had to the applicant’s grounds of appeal as recorded in his founding affidavit, it becomes clear that the applicant does not detail the particular respects in which the court is alleged to have erred. Wide and generalised allegations, devoid of the necessary detail will not do in such cases. Maudlin sympathy for the applicant’s case by the court does not suffice either.’

[15] The plaintiff’s grounds of appeal, in my view, fall far short of the criteria set out above. The plaintiff also makes wide and generalised allegations and draws conclusions on which she bases the contention that another court would come to a different conclusion. The plaintiff, through her application for leave to appeal, attempts to introduce issues that are far removed from what purports to be the grounds of appeal.

[16] It is also worth mentioning that the plaintiff does not take issue with the court's reasoning regarding the merits of the condonation application, but solely bases the grounds of appeal on the preliminaries of rules 32(9) and (10) of the rules of the High Court.

Appealability of the order

[17] In my view, the two issues arise for determination in this application. The first is whether the order is appealable. The second is whether an appeal would have reasonable prospects of success, even if the order were appealable.

[18] It is common cause that the ruling that is the subject matter of the current application is interlocutory in nature and the meaning of s 18(3) of the High Court Act 16 of 1990 (‘High Court Act’), which reads as follows:

‘(3) No judgment or order where the judgment or order sought to be appealed from is an interlocutory order or an order as to costs only left by law to the discretion of the court shall be subject to appeal save with the leave of the court which has given the judgment or has made the order, or in the event of such leave to appeal being refused, leave to appeal being granted by the Supreme Court.’

[20] The plaintiff is aware that the appealability of the order of 30 January 2025, which grants condonation in favour of the defendant, is an issue. However, she asserts that an interlocutory order may be appealable if it has a final effect on the parties’ rights or if it causes irreparable harm. In the current instance, the granting of condonation to the defendant constitutes a final effect on her substantive rights, warranting appellate intervention.

[21] In her application, the plaintiff avers that the granting of the condonation in favour of the defendant was final in effect because:

a) It legitimised the defendant’s fabricated rule 32(9) email, despite the defendant later retracting its own evidence.

b) It directly affected the fairness of the proceedings by condoning procedural misconduct.

c) It prejudiced the plaintiff by failing to penalise forgery, fabrication, and procedural ambush tactics.

d) The ruling is not a mere procedural step but a final determination on a key procedural irregularity, warranting Supreme Court intervention.

[22] In Central Technical Supplies v Paragon Investment JV China Huayun Group,³ Angula AJA (as he then was) held as follows:

‘[53] I consider the legal position set out in Pitelli to be persuasive and as a correct statement of the law applicable in this jurisdiction. It resonates with the law as set out in Di Savino and Vaatz, which can be summarised as follows: the decision must be final in effect and not susceptible to alteration by the court of first instance. It must be definitive of the rights of the parties, ie it must grant definitive relief. A judgment or order is not final for the purpose of appeal merely because it takes effect. It is only final when the proceedings of the court of first instance are completed and that court is not capable of revisiting that order. The order is not appealable because it is capable of being rescinded by the court that granted it. The test of appealability is whether the judgment was final or provisional. Provisional in the sense that it is capable of being revisited.’

[23] Superimposing the requirements for appealability of a judgment or order on the current facts, it is clear that granting condonation to the defendant to file an answering affidavit in an interlocutory application cannot definitively determine the plaintiff’s rights. The interlocutory application in question, which pertains to the qualifications of the defendant's experts, is still pending. The plaintiff and the court must consider the application on its merits and make a determination; as mentioned earlier, the findings on the merits of the condonation application remain unchallenged.

[24] The court dealt in detail with the complaints by the plaintiff as to the alleged conduct of the defendant’s legal representative and the issue of the rule 32(9) and (10) proceedings, and I do not intend to repeat it for the purpose of these proceedings.

Conclusion

[25] I believe the plaintiff’s grounds of appeal are fundamentally flawed, and for that reason alone, the application for leave to appeal should be struck from the roll. Nevertheless, the bottom line is that the ruling is not appealable.

Costs

[26] The application was not opposed by the defendant and will, therefore, not make an order as to costs.

[27] My order is set out above.

Judge’s signature

Note to the parties:

Not applicable.

Counsel:

Applicant

Respondent

In person

J Vermeulen

Ellis Shilengudwa Inc.,

Windhoek