High Court Main Division - 2025 July

Parole – Parole of an offender sentenced to life imprisonment – Offender released on parole subject to conditions that he is placed under ‘Intensive Supervision Level’ and that he must report at the nearest correctional facility or nearest police station for a ‘face-to-face session’, twice a month, for the rest of his life – Applicant brought the present application seeking the review and setting aside of the parole conditions – Court finds that the applicant has not established basis for the relief he seeks – Application dismissed.

Legislation – Child Care and Protection Act No 3 of 2015 (‘the Act’) – Proof of parentage – Application for review and setting aside of a decision by the children’s court holding that applicant is not the father to two minor children – Applicant claiming to be father to the minor children inspite of existence of DNA results to the contrary – Court holding that the applicant’s application has no merit – Application dismissed.

Appeal – Sections 56 and 57 of the Nursing Council Act 8 of 2004 (‘the Act’) – Civil Procedure – The duties and objects of the Nursing Council of Namibia include safeguarding and protecting members of the public against errant registered and enrolled persons and to firmly deal with errant registered and enrolled persons – The statutory objects of the Nursing Council as the primary custos morum (guardian of morals) of the nursing profession is to protect and safeguard members of the public against registered and enrolled persons – Appeal upheld with costs.  

Motion Proceedings – Parties – Locus standi – Local authorities – Township established in terms of the Local Authorities Act has no legal personality and accordingly no locus standi in judicio – Section 6(3) of the Local Authorities Act clothes the governing Council as the body to sue and be sued – Such body not before court – Point in limine on locus standi and non-joinder succeeds. 

Special plea – Locus standi of plaintiff in terms of section 430 of the Companies Act 28 of 2004 – Company has no locus standi as applicant in these proceedings, as this is only available to an applicant who is the Master, liquidator, judicial manager, creditor, member or contributory of the Company.

Civil Procedure – Agreement between parties – Bond of security – Neither transferable nor negotiable – Shall remain in operation and effect – Execution of the judgments stayed – Repudiation of the agreement – Instructions in terms of rule 107 – Deputy Sheriff an officer of this court

Civil Procedure – Employees abuse of positions of trust to misappropriate funds from the plaintiff – Doctrine of common purpose in criminal matters is not applicable but the normal explanation for common purpose is found in this matter.

Practice – Rescission or variation – Rule 103 – Four instances in which a court of first instance may rescind or vary its own order – The four instances restated.

Civil procedure – Divorce – Restitution of conjugal rights – On the return date, the court is required only to grant a final decree of divorce and the ancillary relief as sought by the plaintiff – The defendant may contest the ancillary relief only – This is done by showing cause on affidavit, under oath, and not by entering an appearance to defend – Once the ancillary relief is contested, the court may postpone the matter to determine the ancillary only – A final order of divorce must be granted.

Practice — Judgments and orders — Rescission — Default judgment — Rule 103 of High Court rules.

Practice — Judgments and orders — Rescission — Order sought and granted in error in absence of party affected thereby — Not necessary to show good cause for rescission of judgment in terms of High Court Rule 103(1)(a) — Court should rescind judgment erroneously granted in absence of party without further enquiry — Court need not only have regard to record but also to affidavit.

Practice - Pleadings - Plea - Defendant averring that it has no knowledge of certain allegations made by plaintiff - Defendant failed to make a single averment setting out its defences despite it being apparent that it had knowledge of events - Plaintiff accordingly succeeded in its claim.

Admiralty law – Admiralty jurisdiction of the High Court – Applicable law in disputes over ownership and fraud where two jurisdictions are implicated – Mortgages over registered vessel – Proof of fraudulent contract of sale – Validity of the mortgage – Unsuccessful where the presumption of ownership is not discharged.

Review – Decision of the Prosecutor-General to arraign and prosecute the applicant – Relief sought to set aside the decision on the basis of irrationality and no reasonable or probable cause to have made such a decision – Motion proceedings subject to Plascon Evans rule – Applicant failing to dislodge the respondents version that there was reasonable and probable cause to decide to prosecute the applicant.

Civil Procedure – Burden of proof – Balancing probabilities – Mutually destructive versions – Probabilities prevail when all factors equipoised – Expert evidence – Unjustified enrichment – Requirements – Elements will depend on the type of enrichment claim – Defendant’s liability – Confined to the amount of his or her actual enrichment – Onus to prove all the facts or elements is on the plaintiff

Civil action – Law of contract – Whether or not the plaintiff is entitled to professional services rendered – Claim of quantum meruit – Claim for remuneration in respect of performance in terms of a contract where remuneration is not specified – Quantum meruit claim finds application where there is an express or implied promise to pay, but the contract is silent about the amount.

Motor vehicle collision – Damages claimed arising from motor vehicle accident – Claim for negligence on the part of the defendant – Rear-end collision attracts presumption of negligence – res ipsa loquitur maxim applicable – Evidential burden shifts to the defendant to disprove negligence – Failure to discharge the evidential burden created by the presumption of res ipsa loquitur, will entitle the plaintiff to succeed.

Civil Procedure – Reviews –  Administrative action – General principle – Act fairly and reasonably – Fair procedures which are transparent – Administrative functionary – Obligation – Give reasons for a decision

Urgent application and interim interdict requirements restated – Rule nisi granted returnable for the respondents to show cause why the substantive orders should not be granted on return date, respondent failed to show cause why the decisions of the first  and second respondents should not be reviewed - rule nisi confirmed.

Civil Procedure – Summary Judgment – The principles applicable thereto – Whether the court can grant the defendants unconditional leave to defend in respect of the entire application, where a dispute is raised only in respect of interest – The effect of the overriding objects of rule 1(3) on summary judgment.

Application – Urgency – Requirements for urgency – Inordinate delay – The applicants had delayed for a period of over a year in bringing an application on an urgent basis to seek an interdict. The matter struck from the roll for lack of urgency.