Tobiko v University of Namibia (HC-NLD-CIV-ACT-CON-2022/00033) [2025] NAHCNLD 42 (8 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: HC-NLD-CIV-ACT-CON-2022/00033

In the matter between:

OIDAMAE TOBIKO PLAINTIFF

and

UNIVERSITY OF NAMIBIA DEFENDANT

Neutral citation: Tobiko v University of Namibia (HC-NLD-CIV-ACT-CON-2022/00033) [2025] NAHCNLD 42 (08 April 2025)

Coram: MUNSU J

Heard: 11-15 March 2024, 05 February 2025

Delivered: 07 April 2025

Reasons: 08 April 2025

Flynote: Contract – Breach of contract – Claim for payment – Plaintiff relying on tacit agreement – Plaintiff must prove that there was an agreement.

Summary: The plaintiff sued the defendant for payment of a sum of money allegedly owed to him by the defendant in terms of an alleged agreement entered between the parties and allegedly breached by the defendant. The plaintiff’s case was that during January 2016, the parties entered into an oral agreement in terms of which the plaintiff was contracted by the defendant on an annual contract as a part-time adjunct lecturer. It was common cause that the plaintiff was retained by the defendant for the subsequent years until 2020. The parties signed annual contracts separately for the years 2016 to 2020. Such contracts were however, only signed after teaching would have commenced. The parties did not sign any contract in 2021. The plaintiff claimed that a tacit contract came into existence between the parties on or about January 2021 on the same terms, that the plaintiff would commence teaching the defendant’s students as usual in January 2021, and that the defendant would remunerate him for his services rendered. It was the plaintiff’s case that he duly complied with his obligations in terms of the contract. On 30 April 2021 the plaintiff, in writing, notified the defendant of the termination of the contract and further demanded payment for the four (4) months, January to April 2021. The defendant denied liability, contending that it did not employ the plaintiff for the year 2021. If further stated that the plaintiff was not selected to lecture in 2021and no offer was made to him. It was the defendant’s further case that the parties did not sign a contract in 2021 and the plaintiff did not perform any work.

Held, that a party relying on a tacit agreement must allege and prove unequivocal conduct that establishes on a balance of probabilities that the parties intended to, and did in fact, contract on the terms alleged.

Held, that in deciding whether a tacit contract was concluded, the law objectively considers the conduct of both parties and the circumstances of the case generally.

Held, that the plaintiff’s contention that he was contracted on the same terms and conditions as the previous years did not align with his own testimony and that of the defendant to the effect that adjunct lecturers would be informed during November/December that they would teach the following year.

Held, that the plaintiff did not allege that he was informed by the defendant that he would teach in 2021.

Held, that the plaintiff did not present a single piece of evidence to show that he rendered service to the defendant.

Held, that the plaintiff was unsure about whether the students he claimed to have taught were fifth or sixth year students, which was unusual.

______________________________________________________________________

ORDER

______________________________________________________________________

1. The Plaintiff’s claim against the Defendant is dismissed with costs.

2. The matter is removed from the roll: Case finalised.

_____________________________________________________________________

JUDGMENT

______________________________________________________________________

MUNSU J

Introduction

[1] The plaintiff instituted action against the defendant for payment in the amount of N$ 67, 100, arising from alleged breach of an oral agreement entered between the parties. The defendant entered appearance to defend the matter.

[2] The plaintiff is Dr Oidamae Tobiko, a Medical Doctor (Specialist General & Laparoscopic surgeon). He is a resident of Nairobi, Republic of Kenya.

[3] The defendant is the University of Namibia (‘UNAM’), a public institution established in terms of the University of Namibia Act, 18 of 1992. Its principal place of business is situated at 340, Mandume Ndemufayo Avenue, Pionerspark, Windhoek, Namibia.

Particulars of claim

[4] The plaintiff alleged that on or about 18 January 2016, the plaintiff entered into an oral agreement with UNAM, in terms of which:

1. The plaintiff was contracted by UNAM on an annual basis as a part-time Senior Lecturer at UNAM’s Oshakati Campus for the period 18 January 2016 to April 2021.

2. The plaintiff would render his personal services as a lecturer as soon as the medical students of UNAM commenced with classes in January of each year and thereafter, the parties would sign a written contract of service during the months of April or May of the same year.

3. The plaintiff would be entitled to an annual compensation in the sum of N$ 201, 300 at 20 (twenty) hours per week.

[5] The plaintiff claims that, as a result of the above, a tacit contract came into existence on or about January 2021 between the parties, in the following terms:

1. The plaintiff would commence teaching the medical students as usual in January 2021;

2. UNAM would remunerate the plaintiff for his services rendered.

[6] The plaintiff further alleged that on the 30^th of April 2021, he wrote and delivered to UNAM, a written notice of termination of the contract and further demanded payment of the sum of N$67, 100 for the services rendered during the four-month period from January to April 2021.

[7] The plaintiff claims that he complied with his obligations in terms of the contract, however, UNAM breached the material terms of the agreement by refusing to pay him the sum of N$ 67, 100 for services rendered. In the premises, the plaintiff claims payment of the said amount.

UNAM’s plea

[8] UNAM had raised a special plea that the plaintiff’s claim is one for alleged outstanding salaries for services rendered in terms of an employment contract. As such, the dispute between the parties was subject to adjudication in accordance with the procedures set out in the Labour Act, 2007, i.e. the plaintiff should have referred a ‘labour dispute’ to the office of the Labour Commissioner. The court dismissed the special plea in a judgment handed down on 02 May 2023.¹ The matter proceeded to trial.

[9] In its plea on the merits, UNAM denied the alleged oral agreement of 18 January 2016. It further pleaded that for the period 2016 to 2020, UNAM employed the plaintiff as a part time adjunct lecturer on annual employment contracts which were entered into separately for each year. UNAM denied having employed the plaintiff for the year 2021.

[10] UNAM further pleaded that the terms of remuneration in any given year were based on the work and number of hours the plaintiff was required to perform and could change from year to year.

[11] Additionally, UNAM pleaded that, as a rule, towards the end of the year in November/December, the persons identified as suitable lecturers for the following year would be informed and would receive offers stipulating the subject to be taught and the hours to be ‘worked’.

[12] It was further pleaded that the formal contract of employment would be signed the following year by both parties and filed with UNAM’s Human Resources Department.

[13] UNAM went on to plead that the plaintiff was not selected to lecture in 2021 and no offer containing the terms of employment was extended to the plaintiff. UNAM further asserted that the parties did not sign a contract in 2021 and the plaintiff did not perform any work pursuant to any employment agreement with UNAM for 2021. Accordingly, UNAM denies that it is indebted to the plaintiff.

The issues

[14] The issues for determination were neatly captured by counsel for UNAM, viz;

1. Whether the plaintiff and UNAM entered into an oral or tacit agreement that the plaintiff would teach UNAM students in 2021;

2. Whether the plaintiff rendered services to UNAM in terms of the agreement; and

3. Whether the plaintiff is entitled to payment.

The plaintiff’s evidence

[15] Three witnesses, including the plaintiff testified on behalf of the plaintiff’s case. The plaintiff testified that during April 2015, he came to Namibia on full time employment with the Ministry of Health and Social Services (‘Ministry of Health’) stationed at Oshakati Intermediate Hospital. On 18 January 2016, he was contracted by UNAM on an annual contractual basis as a senior adjunct surgery lecturer. The contract had always been renewed until April 2021 when he notified UNAM of the termination of the contract.

[16] It was his testimony that he taught UNAM’s medical students for four (4) years from January of each year, and thereafter would sign a written contract of service during the months of April or May upon same being made available by UNAM. He asserted that because the contract would be availed for signature only after four (4) months of the commencement of teaching, a tacit contract came into existence on or about January 2021 between the parties.

[17] He recounted that in January 2021, medical students were posted to his surgical firm (Firm 2), situated at the surgery department of Oshakati Intermediate hospital.

[18] The plaintiff claims to have duly complied with his obligations in terms of the contract in that:

1. He held an induction meeting with the medical students on the day of their arrival at his surgical Firm 2 to ensure that they settle in as quickly as possible.

2. He prepared bedside teaching sessions, tutorial and lectures in Ward 3A, 6A and ICU at the Oshakati Intermediate Hospital as required by UNAM during the period January to April 2021, although the new contract had not yet been availed for signature. The Attendance register of the medical students he taught were submitted to Dr Celestine Mbangtang based at Oshakati Intermediate Hospital on the instruction of UNAM.

[19] The plaintiff went on to state that during May 2021, he had to take up another commitment that required him to leave the country and therefore, he was unable to continue teaching and had to terminate the agreement on or about 14 May 2021, and further demanded payment for services rendered during the period January to April 2021 in the amount of N$67,100. He stated that UNAM breached the material term of the contract by refusing to pay him the aforesaid amount.

[20] Dr Ruben Nailonga is the head of surgery at the Oshakati Intermediate Hospital. He testified that he worked together with the plaintiff in the surgery department. He further stated that he was also contracted by UNAM as an adjunct lecturer responsible for teaching medical students. He confirmed that he witnessed the plaintiff being involved in teaching UNAM medical students during the period of January to April 2021.

[21] Dr Hamidu Mwanga is also a Medical Doctor in the surgery department of the Oshakati Intermediate Hospital. He was similarly contracted by UNAM as an adjunct surgery lecturer. He stated that he witnessed the plaintiff being involved in teaching UNAM students during the period January to April 2021.

UNAM’s evidence

[22] Five witnesses testified on behalf of UNAM. Dr Jacob Shehaama is a Medical Biological Scientist Doctor employed by UNAM. He testified that, among his duties, is to coordinate academic activities at UNAM’s two northern campuses (Hifikepunye Pohamba and Oshakati). It is also part of his duties to work with Executive Deans of Faculties to ensure that a sufficient academic structure is established for all programmes on campuses.

[23] The witness further stated in his testimony that on 09 July 2021, he received an email from the plaintiff regarding payment for the 2021 academic year. Additionally, he stated that he received another email from the plaintiff on the 30^th of August 2021 together with a letter from Dr Ruben Nailonga, the head of surgery at the Intermediate Hospital, Oshakati. In the aforesaid email, the plaintiff requested UNAM to expedite his salary payment, while the accompanying letter by Dr Nailonga, confirmed that the plaintiff had been teaching UNAM students.

[24] In his reply, the witness informed the plaintiff, first, that the teaching of medical students at any teaching hospital is the responsibility of all those working in the teaching hospital as assigned by their supervisors, second, UNAM signed contracts with eligible adjuncts each year, third, the appointment of adjunct lecturers did not go to everyone involved in teaching but based on eligibility and availability of resources, fourth, UNAM did not have a contract signed with the plaintiff for the 2021 academic year, and for that reason, the witness was unable to support the plaintiff’s request for payment.

[25] He continued by saying that, if the plaintiff taught students, he failed to notify the witness in writing when he left his employment, and similarly neglected to hand over any files or notes. He emphasised that UNAM is an institution that gets audited, and that payment is only done based on existing contracts and proof of work done.

[26] Dr Celestine Mbangtang, is a medical doctor (surgeon) employed as senior lecturer at UNAM’s School of Medicine, stationed at Oshakati Intermediate Hospital. He is the head of the surgery department of UNAM’s School of Medicine and the immediate supervisor of all lecturers. According to him, it is within his personal knowledge and responsibility to know those appointed as adjunct lecturers and the subjects assigned as well as the timeslot.

[27] It was his testimony that the plaintiff was not contracted as an adjunct lecturer for the academic year 2021, nor as an independent contractor or a part-time employee of UNAM. He went on to say that the plaintiff was not included in the schedule for lecturers for 2021. He presented the lecture timetable for April and May 2021, which does not reflect the plaintiff’s name.

[28] The witness continued by saying that the didactic surgery lectures for year 5 students for 2021, which the plaintiff claims to have taught, started in March 2021 and were delivered via zoom due Covid-19, and the plaintiff was not included in the scheduled timetable.

[29] Mr Andreas Nanyemba is employed by UNAM as a Human Capital Practitioner. He testified that part of duties is to ensure that employment contracts with adjunct lecturers who are employed on a part-time basis are duly signed and recorded. This is to ensure that the adjunct lecturers are paid for the services rendered.

[30] The witness testified that he was copied in the emails between the plaintiff and Dr Sheehama. He pointed out that independent service providers are contracted through UNAM’s procurement department.

[31] Regarding the plaintiff’s claim that contracts were always signed after several months of teaching, the witness stated that such contracts went hand in hand with a formal appointment as a part-time lecturer.

[32] The witness emphasised that Oshakati Intermediate Hospital was the plaintiff’s duty station during his employment with the Ministry of Health, which means that he would come into contact with UNAM medical students in the course of work.

[33] He went on to state that the plaintiff was on numerous occasions requested to provide proof of an existing contract with UNAM for 2021, as well as proof of services rendered, however, he failed to do so. The witness stressed that there was no contractual relationship for employment between the plaintiff and UNAM, nor were there any services rendered by the plaintiff in the year 2021. Consequently, the witness concluded that UNAM is not indebted to the plaintiff.

[34] Mr Reginald Izaks is UNAM’s Director of Human Capital Directorate. His testimony corroborated that of Mr Nanyemba. He testified about the correspondences between the plaintiff’s legal representative and UNAM. In the aforesaid correspondences, UNAM denied having contracted the plaintiff as an adjunct lecturer for the academic year 2021. The plaintiff was invited to provide proof, however, he was unable to do so other than merely stating that there was no contract signed as written agreements were only provided during or after April of each year.

[35] It was the witness’s evidence that, as an independent contractor, the plaintiff should have been able to provide the contract, and to take note of the hours and work done. Over and above, the plaintiff must have been able to explain how his services as an independent contractor were procured.

[36] Ms Veronica Mungonena is a procurement manager at UNAM. She testified that as a statutory body, which falls into the category of public enterprises, UNAM is bound to follow the Public Procurement Act, 2015 for purchases of goods and services. She recounted that lecturing, which is UNAM’s core function is not a service that is commonly sourced via the procurement process from independent contractors. She further stated that lecturers, including part-time lecturers are employees and are appointed through the human capital department and paid through payroll with their unique employee number.

[37] In addition, she stated that a search in the records at the procurement department revealed that at no point in time was the plaintiff contracted as an independent contractor, service provider or consultant to UNAM.

Submissions by the parties

[38] The plaintiff contended in his written heads of argument that he had a tacit agreement with UNAM in terms of which he would teach students for the academic year 2021 on the same terms and conditions as the previous years. He maintained that he taught UNAM students during the months of January to April 2021 for which he is entitled to payment.

[39] On the other hand, it was submitted on behalf of UNAM that there was no agreement between the parties for the 2021 academic year. It was further argued that the plaintiff, in any event, was unable to show that he rendered any services to UNAM entitling him to payment.

Discussion

[40] UNAM took issue with the fact that the plaintiff, in his evidence, distanced himself from the claim he put forth in the stated case that he was an independent contractor, and instead said that he was a part-time lecturer. While it’s true that the plaintiff appeared to approbate and reprobate on the issue, what was clear is that he throughout maintained that he was not an employee of UNAM. In his papers he used the terms independent contractor and part-time lecturer interchangeably.

[41] The issue of whether or not the plaintiff was an employee of UNAM featured predominantly in the parties respective cases. This question, in my opinion, was crucial primarily for deciding whether the plaintiff ought to have referred the matter to the Labour Commissioner for adjudication in accordance with the Labour Act, 2007. Having being resolved, this matter would only be significant, in my view, if the nature of the parties' relationship has a bearing or would be relevant in deciding a particular issue for determination. Briefly, the following can be said: UNAM had raised a special plea that the plaintiff should have referred the matter to the Labour Commissioner for adjudication. The plaintiff disagreed, contending that he was not an employee of UNAM but an independent contractor.

[42] Without leading evidence, the parties chose to have the matter resolved by way of stated case. They presented a written statement of facts agreed upon by themselves and formulated questions of law to be decided by the court. The court then considered the stated case and rendered its opinion on the legal questions based solely on the agreed facts. It is important to note that the court was bound by the agreed facts and could not have considered any other facts outside those agreed by the parties.

[43] While the presence or absence of supervision and control is an important factor to indicate the existence of a master-and-servant relationship, it seems to me that UNAM was comfortable to merely rely on the appointment letters, and contracts signed between the parties to show that the plaintiff was an employee of UNAM. However, such documents were silent on one or more of the following:

1. The manner in which the plaintiff’s work was subject to the control or direction of UNAM;

2. Whether or not the plaintiff’s hours of work were subject to the control or direction of UNAM;

3. The number of hours the plaintiff was required to work in a month;

[44] Although adjunct lecturers are generally considered employees rather than independent contractors, the level of control the institution has over the adjunct’s work, and the extent to which they are integrated into the institution’s activities, are key factors in determining whether they are an employee or contractor. In this regard, it was not enough for UNAM to merely rely on the words ‘part-time senior lecturer’ or ‘contract of employment’ without elaborating on their practical meaning in as far as supervision and control of the plaintiff was concerned.

[45] The policies, rules and regulations of UNAM as well as the operations of the department that the plaintiff was subject to were not disclosed to the court. Whereas the documents showed that the plaintiff had a supervisor, UNAM was silent on the role of such supervisor towards the plaintiff. Only at trial the court learned, for instance that the supervisor, who was an employee of UNAM, would draw up a timetable, and would assign work, subjects or topics to adjuncts, along with timeslots for them.

[46] The plaintiff on the other hand made it clear in the stated case that he was not subject to the control or direction of UNAM. He was also clear that he was not an integral part of UNAM. The other factors, such as whether the plaintiff was dependent on UNAM, whether the tools of trade he used were provided by UNAM and whether he only worked for UNAM were not favourable to UNAM’s case. Additionally, the agreement between the parties never contained any reference to the kind of basic conditions of employment such as leave of absence, sick leave or vacation leave etc.

[47] Since all other considerations were against UNAM on the issue, UNAM must have realised that it could only prove that the plaintiff was an employee of UNAM by concentrating on the supervision and control test, which it did not do.

[48] It is our law that the trier of fact must look at the substance of the relationship between the parties and not merely its form.² The substance in this regard, was the agreed facts provided by the parties from which the court was to decide the questions of law. Based on the agreed facts, the court found that the relationship between the plaintiff and UNAM lacked the essential elements of an employer-and-employee relationship. As the matter proceeded to trial, the question for determination is whether the plaintiff made out a case for the relief sought.

[49] It is trite that he who alleges must prove. The court put it as follows in Dannecker v Leopard Tours Car and Camping Hire CC:³

‘[44] It is trite that he who alleges must prove. A duty rests on a litigant to adduce evidence that is sufficient to persuade a court, at the end of the trial, that his or her claim or defence, as the case may be should succeed. A three-legged approach was stated in Pillay v Krishna 1946 AD 946 at 951-2 as follows: The first rule is that the party who claims something from another in a court of law has the duty to satisfy the court that it is entitled to the relief sought. Secondly, where the party against whom the claim is made sets up a special defence, it is regarded in respect of that defence as being the claimant: for the special defence to be upheld the defendant must satisfy the court that it is entitled to succeed on it. As the learned authors Zeffert et al South African law of Evidence (2ed) at 57 argue, the first two rules have been read to mean that the plaintiff must first prove his or her claim unless it be admitted and then the defendant his plea since he is the plaintiff as far as that goes. The third rule is that he who asserts proves and not he who denies: a mere denial of facts which is absolute does not place the burden of proof on he who denies but rather on the one who alleges. As was observed by Davis AJA, each party may bear a burden of proof on several and distinct issues save that the burden on proving the claim supersedes the burden of proving the defence.

[50] It was established in evidence that the plaintiff was employed as a medical doctor by the Ministry of Health, stationed at Oshakati Intermediate Hospital, which is a teaching hospital. Additionally, the court learned that by virtue of being a teaching hospital, the medical staff, including doctors, specialists and consultants are required to teach students, interns (local and international) as well as junior doctors.

[51] The evidence was further that not every medical doctor employed by the Ministry of Health at Oshakati Intermediate Hospital was appointed as an adjunct lecturer. For instance, there was a year that Dr Mwanga was not appointed. However, it was common cause that every adjunct lecturer had to be employed by the Ministry of Health. It became evident that the reason the plaintiff wrote to UNAM terminating his services was because his contract of employment with the Ministry of Health ended in April 2021. He could therefore not be able to teach UNAM students.

[52] There was evidence presented of contracts of employment between the parties for the previous years 2016 to 2020. However, for 2021, none was presented. The plaintiff hinges his claim on a tacit agreement.

[53] A party relying on a tacit agreement must allege and prove unequivocal conduct that establishes on a balance of probabilities that the parties intended to, and did in fact, contract on the terms alleged.⁴ It must be proved that there was an agreement. In deciding whether a tacit contract was concluded, the law objectively considers the conduct of both parties and the circumstances.⁵ In this regard, the court must be able to conclude from all the relevant proven facts that a contract came into existence.

[54] The plaintiff claimed that the fact that the students were sent to his duty station meant that he had to teach them and UNAM had to pay him. The first difficulty with the plaintiff’s assertion is that, nowhere was it stated that the students were sent to him specifically, rather, they were sent to the Intermediate Hospital Oshakati, a teaching hospital. Accordingly, the arrival of students at the hospital did not mean that the plaintiff was contracted to teach them.

[55] Secondly, the plaintiff’s contention does not align with his own testimony and that of UNAM to the effect that the adjunct lecturers would be informed during November/December that they would teach the following year. In his replication to the plea, the plaintiff stated that ‘the defendant did not always inform the plaintiff of an offer to continue lecturing the following year by way of letter but by conduct and verbal communication’.⁶ This is important because nowhere did the plaintiff allege that he was informed by UNAM that he would teach in 2021.

[56] The past contracts relied on by the plaintiff to claim the existence of a tacit agreement show that they were signed between the months of January and March. There was none signed beyond March. Thus, given the history and timeline of his past contracts, one would have expected him to query the whereabouts of the contract when he did not receive it at the end of March 2021. This he conceded, acknowledging that for 2021 he would have received the contract by March. Suffice it to state that the past contracts were fixed term contracts that ran from January to December of a particular year.

[57] Despite his claim that he taught UNAM students, the plaintiff did not present a single piece of evidence to show that he rendered service to UNAM. According to him, the records of attendance registers, logbooks would be kept by UNAM and he did not retain copies. He accepted that he could compel UNAM to discover the documents but did not do so. According to his witness, Dr Nailonga, he keeps a copy of his preparation material for tutorials, and that he would be able to produce same if asked.

[58] Few issues appeared unusual, first, the plaintiff was unsure about whether the students he claimed to have taught were fifth or sixth year students. Second, his UNAM supervisor Dr Mbangtang who was also stationed at the teaching hospital was unyielding that the plaintiff never taught UNAM students for the period in question. When it was put to his witness Dr Nailonga that Dr Mbangtang, who also took part in the teaching of students, would have seen the plaintiff teaching students, he replied that ‘he was not there all the time’. These are individuals who were based at the same hospital where the plaintiff claims to have taught for four (4) months, but they never came across each other.

[59] According to the plaintiff, UNAM should have paid him on his mere say so, even though he never provided any proof of the work he did. He admitted that he was repeatedly informed that he would not receive payment unless he produced a contract, but he failed to do so. Dr Mwanga, his witness, boldly claimed to have seen the plaintiff's contract for 2021 on Dr Sheehama's table. He also asserted that the plaintiff's name was listed on the timetable. He claimed to have seen it from the WhatsApp communication. Remarkably, this crucial evidence did not feature in his witness statement, nor was it presented to the court. This is notwithstanding the fact that UNAM had made it clear from the beginning that the plaintiff had not rendered any services to it. It is inconceivable that the witness would withhold this information and only mention it at trial. The plaintiff could have been aware of it, and would have discovered it.

[60] Conversely, the plaintiff's name was absent from the April 2021 timetable that Dr Mbangtang provided. However, since the witness admitted that not all of the adjunct lecturers' names were listed on the schedule, this piece of evidence is not to be given much weight.

[61] It is improbable, in my view, that the plaintiff would be unable to come across a single piece of evidence that would support his case. As it was shown earlier, his witness Dr Nailonga informed the court that he would be able to provide documentation of the work he renders to UNAM. In particular, he stated that UNAM sends out timetables each month that include the names of adjunct lecturers. According to him, this is done by email to all adjunct lecturers. Not a shred of evidence was presented by the plaintiff, despite having had time to prepare his case.

[62] If the plaintiff was indeed contracted for 2021, I could not see why UNAM would dispute this. For the five years that he was an adjunct lecturer, no similar issue arose. The plaintiff’s reliance on past contracts did not assist his case, thus, it was incumbent on him to provide proof of the work he did, which he failed to do. His statements alone, as well as those of his witnesses, are insufficient evidence. They lacked specificity and were only broad assertions that he taught students. The plaintiff bore the burden of proof, and in my opinion, he failed to discharge the onus on him. Accordingly, his claim stands to be dismissed.

Costs

[63] The general rule is that costs follow the event. I find no reason why this rule should not be applied in this matter. UNAM asked for costs on a punitive scale. I do not find this to be an appropriate case to mulct the plaintiff with punitive costs.

The order:

[64] For these reasons, I make the following order:

1. The Plaintiff’s claim against the Defendant is dismissed with costs.

2. The matter is removed from the roll: Case finalised.

________________

D C MUNSU

JUDGE

APPEARANCES:

PLAINTIFF: M Nyambe

Of Mukaya Nyambe Incorporated

Ongwediva.

DEFENDANT: U Katjipuka

Of Nixon Marcus Public Law Office

Windhoek.