High Court Main Division - 2025 January

Delict – Action for pain and suffering following stillbirth due to medical negligence – Conduct – Negligence coupled with concurrent breach of contract – Causation (factual and legal) – Damages – Emotional shock and trauma, inconvenience and discomfort – Award separated between spouses married in community of property – Spouses’ personal rights and not rights of joint estate.

Jurisdiction – Disputes between and within voluntary associations whose statutes, whereby they and their members are bound, prescribe internal processes before recourse to court – If the dispute’s very nature does not require the court’s intervention, just cause must be shown for the court to exercise jurisdiction – Just cause not shown – Court declines to exercise jurisdiction.

Voluntary association – Authority to institute motion proceedings – What evidence required – Founding affidavit deponent relies on the chairperson office of the voluntary association from which he was removed and which removal was not reviewed and set aside – No evidence to conclude institution of proceedings was authorised by the voluntary association – Founding affidavit deponent must personally pay costs but not the costs of opposing first respondent who failed to provide evidence authorising opposition.

Appeal – Criminal law – Grounds of appeal to be formulated clearly and specifically – Obstructing course of justice – Concealing a dead body –

Court a quo committed no error in concluding that the said offence was proven – Appeal dismissed.

Practice — Trial — Absolution from the instance at close of the plaintiff's case —  Court must bring own judgment to bear on evidence adduced — Court must establish, prima facie viewed, whether there was evidence relating to the  elements of the claim — Court must accept the truth of plaintiff’s evidence unless incurably and inherently improbable and unsatisfactory.

Criminal procedure — Arrest — Wrongful arrest and detention — Requirements for lawful arrest — Reasonable suspicion — What constitutes — Plaintiff in violation of regulation 6(5) read with regulation 8(3) of Stage 2: State Of Emergency - Covid-19 Regulations: Namibian Constitution under government gazette number 7203 of 4 May 2020  —  Arrest justified in terms of s 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977.

Pleadings – Amendment – Particulars of claim – Cannot object to an averment already in the particulars of claim – If read holistically (as it should), the particulars of claim contain supporting allegations for the conclusions sought to be introduced – Allegations sought to be introduced are not contradictory – New cause of action (being different from new claim) may be introduced as the right enforced and relief claimed are the same or substantially the same – Belated amendment, which did not include a change of front, allowed to ventilate the real issues in dispute after plausible and reasonably satisfactory explanation (although open to criticism) provided and the court finding that the application is not mala fide or an abuse of process and the defendants’ prejudice is not such that costs (if awarded) cannot compensate.

Civil practice – Special plea of prescription – Raised by defendant against plaintiff’s claim for payment of an invoice in respect of professional services rendered – The invoice dated 2 March 2018 is for the period of 2014 to 2017, while combined summons were served on 27 October 2022 – Plaintiff claimed interruption of the prescription period – Prescription found to have been interrupted – Special plea dismissed.

Civil Procedure – Application – Urgent application – Rule 73(3) and (4) – Whether the applicant complied with ideal prescripts of Rule 73 – Requisites of interim interdict restated.