High Court Main Division - 2025 May

Law of Contract – Validity and enforceability of an agreement – Enforcement of a penalty clause – Agreement allegedly concluded contrary to provisions of a legislation and authorisation of the signatory and effect thereof – Agreement found to be invalid and unforceable – Plaintiff’s claim dismissed with costs.

Application for review – Foreign national prohibited from acquiring land under s 58 of the Agricultural (Commercial) Land Reform Act 6 of 1995 (the Act) – Whether  or not a foreign national is allowed to lease agricultural land in Namibia – Allegations of attempts by government officials to circumvent s 58 of the Act by leasing agricultural commercial land to a foreign national for 99 years and whether such lease is tantamount to granting ownership – Award of costs where the application is launched in the public interest. 

Rule Nisi – Urgent application – Interim interdict against Namibia Defence Force where applicant’s name was removed from list of candidates for training-Interim interdict granted.

Practice — Applications and motions — Urgent applications —A party is required to explicitly set forth in the founding papers, the reasons why a matter is urgent and why substantial redress cannot be obtained in due course — No urgency where urgency is self created — Fact that undertakings were sought but not timeously or favourably responded to is not an excuse to bring an application at the last minute

Practice – Rescission of judgment –   Applicant to show good cause for failure to defend action and prospects of success – Service of summons on domicilium citandi et executandi-Applicant’s domicilium citandi changed – Failure to notify respondent of change in domicilium citandi not a defence/good cause-Application dismissed.

Civil proceedings – Application to compel – Rule 28 – Discovery of all relevant documents – Assessment of relevance is objective and not subjective – Reasonable grounds for believing that the documentation in the opposing party’s possession –  Documents need not be set out – Documents sought were listed in detail – Application to compel must succeed.

Motion Proceedings – Urgent application – Requirements for urgency – Applicant to set out the twin requirements for urgency as stipulated in High Court Rule 73(4).

Criminal procedure – Evidence – Right to remain silent – Consequences thereof in the face of evidence calling for an answer.

Criminal procedure – Evidence – Single witness – Court must be satisfied that the witness is credible – Evidence – Application of the doctrine of common purpose – Principles restated.

Motion Proceedings – Urgent application – Requirements for urgency – It is the duty of an applicant to set out explicitly in the founding papers the circumstances that renders the matter urgent and why the applicant will not be afforded substantial redress as at hearing in due course – This requirement underscores the level of disclosure that must be made by an applicant – A deponent to an affidavit in which urgency is claimed or alleged, must state the reasons alleged for the urgency clearly and in detail, leaving no room for confusion or doubt – This denotes a very high, honest and comprehensive standard of disclosure, which in a sense results in the deponent taking the court fully in his or her confidence, neither hiding nor hoarding any relevant and necessary information relevant to the issue of urgency.

Contract – Levies claim – Upheld under contractual relationship between the homeowners’ association (HOA) and the defendants – The statutory defence under the Water Resources Management Act 11 of 2013 (the Act) dismissed on factual and legal bases – HOA not abstracting water or using water in bulk from water resource, nor is it a water services provider – The statutory defence does not impact the contractual relationship between the HOA and the defendants, but it may impact the contractual relationship between the HOA and the developer and the contractual relationship between them and the company maintaining and upholding the water supply chain for the estate – The defendants are not parties to those contracts – Privity of contract – Issues that may arise from those contracts are not before court – No viable illegality defence raised against the board decision imposing the levies or any of the contracts.

Civil Practice – Summary judgment – Rule 60 of the High Court Rules, 2014 – Requirements to be met by applicant for summary judgment – The contents of 60an affidavit filed in respect of an application for summary judgment, as required by rule 60(2) discussed – The need for an applicant for summary judgment to state the exact amount sought in an application for summary judgment – The propriety of seeking an order for cancelling an agreement and whether it falls within the rubric of rule 60(1) of the High Court Rules discussed.

Civil Procedure – Piercing of the corporate veil – Section 65 of the Close Corporation Act, 26 of 1988.

Review – Procurement – Review Panel’s decision to dismiss statutory review – Consultants’ decision to unilaterally withdraw notice to bidder selected for award – Review Panel’s misdirected approach to adjudicating the statutory review resulted in fundamentals being overlooked, the main issue for review being ignored and a misdirected outcome – The consultants’ selection notice exists in fact and has ‘legal consequences’, not necessarily ‘lawful consequences’ – Whereas no collateral challenge to the selection notice is raised, for the moment and until the right person in the right proceedings seeks the right remedy, the statutory processes proceed based on the selection notice existence in fact having legal consequences – Court directs the next process, being the award of the contract, to be undertaken, but whereas the court did not in the instant proceedings decide whether the selection notice is lawful, that direction is subject to the rights of the right person in the right proceedings seeking the right remedy.

Criminal Procedure – Appeal – Plea of guilty – Pre-trial procedural irregularities – Right to legal representation and Judges’ Rules – Whether such rights explained before pointing out – Whether admissibility of evidence challenged at trial – Constitutional rights under Article 12 of the Namibian Constitution – Whether guilty plea entered voluntarily and knowingly – Whether prior convictions properly considered in sentencing – Whether sentence induces a sense of shock.

Evidence – Pointing out – Communication by conduct – Must be made freely and voluntarily – Failure to raise admissibility at trial – No trial-within-a-trial held.

Sentencing – Consideration of previous convictions – Lapse of time between offences – Whether accused to be treated as first offender – Sentencing discretion – Uniformity and proportionality of sentence – No misdirection found – Sentence not shocking.

Summary judgment – Rule 60 of the rules of court – Requirements that the opposing affidavit must (a) firstly fully disclose the nature and the grounds of the defence and the material facts upon which it is founded, and (b) such facts must disclose a defence that is bona fide and good in law.

Costs – Courts ultimately have discretion to impose costs – Substantive relief sought in the urgent application settled between the parties, except the issue of costs.

Practice – Absolution from the instance – Plaintiff instituted action proceedings where she claimed damages for movable properties including livestock and equipment against the defendants – Based on the contention that the first defendant unlawfully removed the said properties as her inheritance from the Will of her late husband while such Will could not include the said properties – The plaintiff further claimed damages emanating from the first defendant laying criminal charges against her which led to her harassment by the police and causing her a heart and anxiety attacks – She also claimed legal expenses that she paid for her protection from criminal prosecution – Test for absolution from the instance restated – Absolution should be granted where plaintiff has not established its case – Plaintiff failed to established her case – Absolution from the instance granted with costs.

Motion Proceedings – Urgent application – Requirements for urgency – Financial hardship and illegal actions of the respondent not a ground establishing urgency – Exceptional circumstances need to be established before urgent relief may be granted.

Civil Procedure – Review – Prosecutor-General's decision to prosecute is reviewable.

Law of Contract – Declarator regarding a certain clause to a contract to be regarded as having been part of the contract – Civil Procedure - Jurisdiction discussed – Locus standi in judicio – Principles of the law of contract explored, including the parole evidence rule, caveat subscriptor and interpretation of contracts.

Civil Procedure – Rules of the High Court of Namibia – Rule 93(3) – Application to file a supplementary witness statement – Principles to be taken into account in deciding whether or not to grant the application discussed – Suggestions on how the court can consider dealing with documents delivered pursuant to a subpoena duces tecum enumerated.

Criminal law – Murder – Mens rea – Doctrine of common purpose – Not necessary to prove – Prior agreement – Causal connection between act of accused and death of deceased – Conduct of one accused – Imputed to the other – Doctrine applied where two or more perpetrators act together – Prerequisites – Presence, awareness of crime committed, common cause with co-accused, some action on part of perpetrator, mens rea and intention to harm or to kill.

Evidence – Circumstantial evidence – Court not required to consider every fragment individually to determine how much weight it had to afford to it – Court to consider cumulative effect – All fragments made collectively to determine whether accused person’s guilt has been proven beyond reasonable doubt.

Evidence – Extra curial admissions – If proved to be voluntarily made by the person making them – Such admissions admissible in evidence against the author only – Court to decide on the weight to be attached.

Spoliation – Mandament van spolie – Requirements – Applicant required to prove that he was in peaceful and undisturbed possession of the thing and that he has been unlawfully dispossessed of such possession by the respondent.