High Court Main Division - 2025

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.

Applications and Motions – Urgent applications – Trite principles that applicant must satisfy both requirements of rule 73(4) of the rules of court for the matter to be heard on an urgent basis – The Applicant failed to satisfy the requirements under rule 73(4) - The applicant have failed to set out the circumstances which render this application urgent as well as why the applicant will not be afforded substantial redress at a hearing in due course.

Rescission – Ex parte orders – Rule 103(1)(a) – Ex parte orders are not final despite their form not including a rule nisi or a return date – Proper interpretation of ‘any order or judgment’ envisaged in rule 103(1)(a) includes simple interlocutory orders – Facts permitting, rescission of ex parte orders may be brought under rule 103(1)(a) notwithstanding their provisional nature and the procedures provided under rules 72(4) and 72(7) – The phrase ‘granted in the absence of any party affected thereby’ in rule 103(1)(a) entails two requirements namely a party’s absence and an error by the court – Ex parte orders granted on proper procedure for ex parte applications mandated by the court rules and supported by the cases’ nature and which remain provisional while the affected parties could return to court to have the ex parte applications considered in their presence but opted not to are not orders sought or granted in their absence for the purpose of rule 103(1)(a) – Orders to which parties were procedurally entitled when they were issued cannot be rescinded under rule 103(1)(a) absent the existence of facts at that time of which the court was unaware that would have precluded them being granted.

Costs – Review of taxation – Rule 75(1) – Legislature’s intention – To provide a remedy for party dissatisfied with a taxing officer’s ruling to any item or part of an item objected to at the taxation or disallowed mero motu by the taxing officer – Exception to rule considered but declined.

Applications – Application for leave to file further affidavits – Civil Procedure

– Rule 66(2) of the High Court Rules – An applicant seeking leave to file further affidavits must provide a satisfactory explanation – There must be special circumstances pleaded – there must be no possibility of prejudice – A reasonable explanation has been tendered by the applicants – PG will be able to deal with contents of affidavits, aiding the court in fully assessing the forfeiture application – Little prejudice suffered – Applicants have met the requirements of rule 66(2).

Administrative Law – Urgent applications – Applicant must satisfy the requirements of rule 73 (4) of the rules of court for the matter to be heard on an urgent basis – The tests for an application for stay of execution– real and substantial justice–underlying causa of the judgment in question is being disputed–Interpretation of section 26 (3) and (4) of the Immigration Control Act 7 of 1993.

Practice – Motion proceedings – Point in limine – It is necessary to allege that the deponent of the affidavit has the authority to oppose the application – Failure to make such an averment is fatal to the opposition.

Civil Practice – Applications and motions – Urgent application – Requirements of urgent application restated.  

Review Application – Administrative Law – Urgent applications ­­­­­­­­­­– Applicant must satisfy the requirements of rule 73(4) of the rules of court for the matter to be heard on urgent basis – Interpretation of s 55 of the Public Procurement Act 15 of 2015–The applicant aggrieved by the decision of the 1^st respondent and seeks to review and set aside its decision to cancel the entire bidding process in respect of the supply and delivery of foodstuff to government school hostels – Whether there was non-compliance with the statutory provision in respect of the Notice of Selection.