| MASUKU, J:
Introduction
The court is called upon in this matter, to consider special pleas raised by the defendant in respect of three separate claims instituted against her by the plaintiff. In order to place the matter in a proper historical perspective for the reader to understand the context in which this decision arises, I will set out the relevant background in the succeeding paragraphs of this ruling.
The parties
The plaintiff is Mr Justus Nderura, an adult Namibian male, who resides in the Erongo Region, Republic of Namibia. The defendant, on the other hand, is Ms Helena Nderura, a female adult residing in Windhoek, Republic of Namibia. I will refer to Mr Nderura, as ‘the plaintiff’ and to Ms Nderura, as the defendant. When the occasion arises for the court to refer to the plaintiff and the defendant collectively, they shall be referred to as 'the parties'.
Mr Ikanga appeared for the plaintiff, whereas Mr Shimakeleni represented the defendant. The assistance rendered by counsel on both sides, is appreciated.
Background
The plaintiff instituted action proceedings against the defendant and in which three claims arise. In respect of the first claim, the plaintiff claims payment of an amount of N$36 985,43, being an amount necessarily to be paid by the plaintiff in order to effect renovations on his immovable property, namely, Erf 1219 Omongo Street, Wanaheda, Windhoek. The plaintiff alleges that the defendant, upon vacating the house situated on the said premises, left the house in a deplorable state. In claim 2, plaintiff claims payment of N$76 780,59, being municipal services rendered to the defendant on the property, which the defendant enjoyed but neglected or refused to pay and for which the plaintiff was held responsible. The last claim is for payment of N$18 756,55, being a penalty imposed on the plaintiff by the Municipality of the City of Windhoek, (‘CoW’), as a result of the defendant tampering with and illegally by-passing the electric cables installed on the property.
In her defence to the claims, the defendant raised two special pleas. The first is one of res judicata and the second is one of prescription. This ruling is accordingly dedicated to the question of whether these special pleas, or any one of them, has substance and must be upheld. I deal with those defences presently, beginning with the plea of res judicata. I may mention, for the sake of completeness, that the defendant did, however plead, over on the merits. It is unnecessary, for present purposes, to consider the defendant's plea on the merits.
Res judicata
In relation to the above special plea, the defendant averred that the plaintiff has previously instituted action proceedings against her on the same facts and the same cause of action. This was under case number HC-MD-CIV-ACT-OTH-2019/0532. This case was presided over by Mr Justice Miller and he delivered judgment in the said case on 15 February 2023.
Mr Shimakeleni argued that proper regard had to the particulars of claim, it becomes plain that the cause of action forming the subject of the earlier proceedings related to the same parties, was based on the same cause of action and in respect of the same subject matter or thing. It was in his submission, clear that the plaintiff cannot be allowed in the circumstances, to resuscitate those proceedings and call the defendant to answer to the same allegations as in the previous case.
The court was provided with a copy of the judgment of Mr Justice Miller. What is plain from the said judgment, is that the plaintiff sued the defendant for ejectment from the premises, which form the subject matter of the current proceedings. The plaintiff further sought an order that the defendant pays the municipal bills, plus all interest accrued on the outstanding amount of the property in question.
The defendant's defence in respect of the eviction, was that the property in question was donated to her by the plaintiff in 1988. As a result, so averred the defendant, the plaintiff was not entitled to the order of eviction he sought from the court. In respect of this particular defence, the court found that the parties, in effecting the donation alleged, did not do so in writing. In this regard, the provisions of the Land Act 68 of 1987, were quoted as authority for the proposition that any alienation of land must be in writing and signed by the parties thereto, or their agents, as the case may be.
Further relying on the case of Tjihero and Another v Kauari and Another, the court found that the agreement between the parties, if it existed, was not in writing and therefor, not in compliance with the prescripts of the law. The court accordingly found that the donation allegedly made by the plaintiff to the defendant, was accordingly of no force or effect. The defendant's defence of a donation was thus dismissed. It accordingly follows that the claim for the eviction of the defendant from the premises, succeeded.
The court further upheld the defendant’s counterclaim. It found that the plaintiff was liable to pay to the defendant an amount of N$184 290, which constituted payments made by the defendant to the Namibia Housing Enterprise, in the bona fide belief that she was the owner of the property in question. The court found that because the agreement between the parties was not valid at law, the plaintiff was obliged to repay the said amount to the defendant.
At the end of the day, the court granted an order for the ejectment of the defendant from the premises and also issued an order for the plaintiff to pay the defendant they aforesaid amount of N$184 290, with interest thereon. Finally, the court ordered that each party should pay its own costs, since there was a measure of success and failure on the part of the protagonists.
With the foregoing history of the matter in mind, the question for determination is whether Mr Shimakeleni, for the defendant, is correct that the claims by the plaintiff in this matter were the subject of the determination of the court in their previous proceedings referred to immediately above. Mr Ikanga argued to the contrary, without much force or conviction, in my assessment.
On a proper consideration of the issues and the law applicable, I am of the considered opinion that it is plain, when regard is had to the previous particulars of claim by the plaintiff and those in the present matter, that the plaintiff amongst other relief, sought the payment of municipal bills from the defendant. It will be clear from what I have recorded above, that Miller AJ did not grant the plaintiff's claim for the payment of the municipal bills against the defendant.
It is also common cause that there was no appeal or review mounted against the order issued by the learned judge in this regard. This, thus leaves this matter, as being one that was fully and finally determined by this court. The plaintiff cannot be allowed, in the circumstances, to bark up the same tree twice. I accordingly find that the special plea in relation to the municipal bills claimed by the plaintiff, offends against the principle of res judicata. As such, I am of the considered opinion that the special plea raised in respect of claim 2, must accordingly succeed as that claim is res judicata.
In respect of claim 1, the plaintiff alleges that at the time when he obtained the order for the ejection of the defendant and the property in question was restored to him, he found the property damaged and that an amount of N$36 985,43 was necessary for him to bring the property to its pristine condition. Since this claim relates to damage allegedly caused during the occupancy of the property by the defendant, it is plain that this is not an issue that was subjected to judicial scrutiny in the matter before Mr Justice Miller. For that reason, the special plea of res judicata, does not apply in respect of this particular claim, in my considered view.
I am of the considered opinion that the same considerations should apply to claim 3. In this particular claim, the defendant is accused of having illegally tampered with the electricity supply, thus attracting a penalty of N$18 756,55 from the CoW. It is explained that this surcharge on the property would have been discovered when the plaintiff took back occupation of the property, after the judgment of Mr Justice Miller, evicting the defendant from the property.
The bill issued to the plaintiff by the CoW, which is attached to the plaintiff's particulars of claim, is dated 25 February 2023. This is plainly some 10 or so days after the judgment of Mr Justice Miller, referred to earlier, was delivered. It is accordingly clear that the issue of the payment in relation to the illegal connection of electricity did not form part of the claims that the plaintiff subjected to the adjudicative scrutiny of Mr Justice Miller. I accordingly find that the plea of res judicata, does not apply to claim 3. The said plea, is thus dismissed.
Mr Shimakeleni, in his able argument, referred the court to the principle enunciated in the case of Somaeb v Standard Bank, where the court dealt with the principle of res judicata. At para 18, the court reasoned as follows:
'[18] In Okorusu Fluorspar (Pty) Ltd v Tanaka Trading CC, this court dealt with the plea alibi pendens and res judicata. In doing so, the court placed reliance on Evins Shield Insurance Co Ltd, where Corbett JA said the following: "The object of this principle (res judicata) is to prevent repetition of lawsuits, the harassment of a defendant by a multiplicity of actions and the possibility of conflicting decisions. . . The principle of res judicata, taken together with the "once and for all" rule, means that a claimant for Aquilian damages who has litigated finally is precluded from subsequently claiming from the same defendant upon the same cause of action additional damages in respect of further loss suffered by him. . . The claimant must sue for all his damages, accrued and perspective, arising from one cause of action, in one action and, once that action has been pursued to final judgment, that is the end of the matter.'
I am the last to quibble with the pure and stainless statement of the applicable jurisprudence in this regard. The remaining question however, is whether the other claims by the plaintiff, do fall within the domain of the principles of the once and for all and res judicata. I am of the considered opinion, as recounted above, that properly considered, the plaintiff could not have foreseen, at the time that he lodged the previous proceedings before Mr Justice Miller, that the defendant would first allegedly, damage the property.
It is clear logic that he would have had the first opportunity to inspect the premises after he had been granted the relief of eviction by Mr Justice Miller. For that reason it would be harsh in the extreme, to visit the plaintiff with the once and for all principle, in the particular circumstances of this case.
I am of the further considered opinion that the same reasoning applies with equal force in relation to the claim regarding the alleged interference with electrical supply, by the defendant. This is so because the plaintiff would only have known of the alleged illegal by-passing of electric wires and installations, after he was given access to and occupation of the premises by the order of Mr Justice Miller. It would have been unfair, impractical and unduly onerous to expect the plaintiff to have had prophetic foresight that the defendant would by-pass the electrical installations at the house, as alleged and therefor sue her in advance ie, before seeing the exact state of affairs, once access to the property was delivered to him by the judgment of Mr Justice Miller.
In view of the foregoing, I come to the considered conclusion that the defendant's special plea of res judicata, coupled with the once and for all principle, apply in relation to claim 2 of the particulars of claim. Res judicata does not, however, apply to both claims 1 and claim 3. In the result, the defendant’s special plea is dismissed in relation to claims 1 and 3. It is, however sustained in relation to claim 2.
Prescription
The other special plea raised by the defendant relates to prescription. In this particular regard, the defendant avers that the plaintiff’s claims have prescribed and are therefore unenforceable at law against her. The court is accordingly required to closely consider the sustainability of this special plea in relation to the said claims. I accordingly proceed to consider the contentions in relation to this particular legal question below.
In his heads of argument, Mr Shimakeleni relied for the contention that the plaintiff's claim has prescribed on the contents of paragraph 7 of the plaintiff's particulars of claim. For the sake of completeness, I quote the contents of the paragraph:
'When the late Victoria Nderura passed on in 1997, the defendant naturally took over the affairs of the property, using rent money to pay off the home loan.'
In her special plea, the defendant averred as follows in relation to paragraph 7 quoted above:
'At paragraph 7 of its particulars of claim, Plaintiff avers that the Defendant took over the affairs of the property in 1997. The Plaintiff's claim has prescribed in terms of Section 11 of the Prescription Act as no action was instituted within three years from 1997.'
Section 11 of the Prescription Act 68 of 1969, prescribes the periods of prescription. The said provision in s 11 (d), provides that in relation to other debts, the period of prescription shall be three years. It is common cause that the plaintiff’s debt claimed in this case, does not relate to the debts applicable in terms of the provisions of s 11 (a), (b) or (c). It qualifies as ‘any other debt’.
I am of the considered view that the defendant completely misses the mark in this particular contention on prescription. I say so for the reason that in determining whether or not prescription applies in this matter, it is important for the defendant to have regard not to any random date that is mentioned in the particulars of claim, but to the causes of action in respect of which relief is sought against the defendant. In the latter connection, the court must have regard to the three claims lodged by the plaintiff against the defendant and in this connection consider the date by which the plaintiff would have known that he has a choate claim against the defendant.
At the risk of boring the reader, it should be mentioned that claim 1, relates to the state of the property in which the plaintiff claims he found it after the order of eviction had been obtained. It is his case that he found the property in a dilapidated and uncomely state. It will be clear that the plaintiff could only have had occupation of the property after the judgment of Mr Justice Miller. This was delivered on 15 February 2023. That being the case, it becomes clear to me that the cause of action did not arise in 1997, as the defendant mistakenly states. It arose after the judgment of Mr Justice Miller when the plaintiff took over occupation of the premises. This must have been after 15 February 2023. It is plain, that being accepted, that the plaintiff's claim has not prescribed as the period of 3 years mentioned in para 27 above, had not lapsed. The plea of prescription in relation to claim 1, must therefor, fail.
I now turn to claim 2. It will be recalled that in dealing with the question of res judicata, the court was of the considered opinion that this claim could not be sustained because of the invocation of the res judicata principle. For that reason, this claim does not arise for determination because it has become exterminated, so to speak, by the application of the res judicata and once and for all principles. I will accordingly, say no more of that claim.
Last, but by no means least, I deal with claim 3. This claim, as indicated earlier, relates to averrals by the plaintiff that when he took over occupation of the premises in question, he was confronted with a bill of N$18 756,55. This is a bill that he claims he had to settle. It was forwarded to him by the CoW. The plaintiff claims that this bill resulted from illegal actions by the defendant in respect of which she attempted to bypass the electricity cables at the house, in contravention of the relevant applicable laws.
It stands to reason that the plaintiff would have discovered these anomalies alleged after he was granted vacuo possessio of the premises by Miller AJ's judgment of 15 February 2023. This fact will immediately indicate that the plaintiff would have come to know of this particular cause of action after the judgment in question, when he would have taken possession of the premises in question. When a simple arithmetic calculation is made, it will be clear that the cause of action arose after 15 February 2023, well before the 3 year prescription period kicks in. A computation of time will accordingly show that the plea of prescription does not hold water in relation to this particular claim. It is plain that the plaintiff's cause of action did not arise in 1997, as alleged in the special plea. This special plea is accordingly dismissed as one without merit.
Costs
I now turn to the question of costs. It is plain, from the foregoing conclusions that there has been a level of failure and success in relation to both parties. Costs will normally be granted to the successful party, who is not allowed to be out of pocket for his or her travails in court. In the instant case, as alluded shortly above, both parties have had a measure of success and failure. On the balance, however, I am of the considered opinion that the plaintiff has had a fair measure of success. As a result, the proper order to issue in relation to costs, is that the defendant must pay the plaintiff’s costs.
Order
Having regard to the conclusions reached above, the following order would commend itself as being appropriate to the entire case:
The defendant's special plea of res judicata, is upheld in respect of claim 2, but is dismissed in so far as it relates to claims 1 and 3 of the particulars of claim. The defendant’s special plea in respect of prescription, is dismissed. The defendant is ordered to pay the plaintiff’s costs. The parties are ordered to file a proposed draft order, indicating the further conduct of the matter on or before 9 June 2025. The matter is postponed to 12 June 2025 at 08:30, for a status hearing.
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