High Court Main Division

Review application – Communal Land Reform Act, 5 of 2002 – Land Appeal Tribunal – Scope of appeal tribunal powers conferred to it by Section 39 of the Act – New evidence during the appeal hearing – New evidence ultra vires the provisions of the Act.

Motion proceedings — Interdicts — Requirements for mandatory interdict — A clear right — Actual or reasonable apprehension of injury — Absence of satisfactory remedy — Applicant has failed at the first hurdle and has not established that it has a clear right — Application dismissed.

Estates – Subsequent last will and testament – Validity thereof –Common law – Presumption that testator/testatrix was of sound mind and competent when he or she executed the will, until the contrary is proven – Testamentary incapacity – Dementia and Alzheimer’s disease – Onus to prove testamentary incapacity – Person who alleges a reason why the will is invalid must prove his case.

Applications and motions – Review application – Administrative action –Article 18 of the Namibian Constitution Act 1 of 1990 – Fuel retail licence of the applicant cancelled in terms of regulation 30 of the Petroleum Products Regulations 2000 – The Minister is an official and as such his powers are limited by statute and he can only do what he has authority to do according to the statute – Minister further elected to cancel the retail licence in terms of regulation 30 which regulation does not provide for the cancellation of fuel retail licences  – The Minister’s decision to cancel the retail licence was tainted by previous irregularities and no reasons for the decision was provided.

Law of Delict – Defamation – Necessity for the plaintiff to set out the evidence regarding the damages claimed in the witness’ statement – Effect of failure to do so – Civil Procedure - Whether the court may grant absolution from the instance at the end of the trial.

Civil proceedings – Applications – Motions – Criminal Procedure Act 51 of 1977 (CPA) – Sections 6(a), 20 and 31 of the CPA – Whether a withdrawal of a case by the prosecution against the accused, in terms of s 6(a) has the same effect as when a case is struck from the roll by the court – What is the legal consequence in respect of a article that had been seized by the police in terms of s 20 of the CPA and was still under the police’s custody subsequent to the case being struck from the roll by the presiding officer?

Interlocutory – Amendment of pleadings – Plaintiffs sought to amend their particulars of claim – The defendants opposed the intended application – Court found that the proceedings are still at infancy stage and no prejudice will be caused to the defendants which cannot be cured by a costs order – The issue of non-joinder was not properly raised as a ground for lack of locus standi by the plaintiffs, and can still be raised as a special plea – Intended amendment upheld – The plaintiffs are ordered to compensate the defendants for wasted costs and any prejudice caused.  

Criminal Procedure – Appeal against sentence – Assault with intent to do grievous bodily harm read with the provisions of the Domestic Violence Act 4 of 2003 – Appellant was convicted on his own plea of guilty – sentence too harsh under the circumstances – Court entitled to interfere with the sentence imposed by the court a quo – Appeal against sentence succeeds.

Review – Applicant seeking review and setting aside of a decision of a Town Council revoking its earlier decision to sell certain immovable property to him – Court finding that decision to revoke an earlier decision was not reasonable in the circumstances – Court setting aside the Town Council’s decision to revoke the earlier decision.

Criminal Procedure – Appeal – Powers of Court of Appeal on appeal – No substantive reasons by trial court on conviction judgment – Constituting a misdirection – consequences – Court of appeal to decide evidence afresh – Not duty of court of appeal.

Criminal Procedure – Evaluation of evidence – Single witness evidence and mutually destructive versions principles restated.

Criminal Procedure– Evaluation of evidence – Section 208 on Single witness evidence – S v Noble 2002 NR 67 (HC) – Caution must be exercised when evaluating the uncorroborated evidence of a single witness –The court must be satisfied by the credibility of the witness’ evidence and it should constitute proof of the guilt of the appellant beyond a reasonable doubt.

Criminal Procedure – Mutually destructive versions – Court must have good reason to accept one version over the other and not only consider the merits and demerits of the testimonies of witnesses – Court also to consider the probabilities present – Evidence must neither be considered in isolation but be looked at holistically - Stellenbosch Farmers’ Winery Group Ltd & Another v Martell ET Cie and Others.

Criminal Procedure – No onus rest on appellant to convince the court of the truth of any explanation even if that explanation is improbable – What is required is for the court to be convinced that the explanation is not only improbable, but false beyond reasonable doubt – R v Difford 1937 AD 370 at 373 – It is sufficient if the court is satisfied that there is a reasonable possibility that it may be substantially true – The approach the court must follow to decide whether the defence case, considered with the entire body of evidence, is reasonably possibly true is outlined in S v Radebe.

Appeal – Evidence – Identity evidence by a single witness – The testimony of the complainant not clear in respect of his opportunity to observe the perpetrator without the mask – No description of perpetrator – Court a quo ought to have treated his testimony with circumspection Evidence – Evaluation of - Court a quo erred by not treating evidence with circumspection – The cumulative effect of the unsatisfactory aspects of complainant’s evidence and shortcomings in the manner the identification was done makes it unsafe to rely on identification evidence for a conviction.

Motor vehicle accident — Damages — Expert witnesses — Expert Evidence — Opinion evidence.

Judicial Review – Administrative Action – Application for special examination on account of work – University refused the application on the basis of insufficient evidence – Applicant aggrieved by the University’s refusal and approached the court to set aside that decision and direct the University to arrange special examinations on a suitable date at no additional cost.

Criminal Procedure – Combating of Immoral Practices Act 21 of 1980 as amended – Combating of Domestic Violence Act 4 of 2003 – Limited powers of court of appeal – Court not entitled to interfere with the sentence imposed by the court a quo.

Civil procedure – Action – Agreement of sale – Mutually destructive versions – Inadmissible hearsay evidence – Failure to call a witness whose evidence is crucial – Voetstoots.

Legislation – Prevention of Organised Crime Act 29 of 2004 (‘the Act’) – Forfeiture of property order in terms of s 59 – Issues to be taken into consideration by the court in deciding whether or not to grant a forfeiture of property order – Whether the fact that an application for forfeiture of property order relieves the court of carefully scrutinising the application.

Contract – Interpretation of – Contract for provision of commercial and legal advisory services providing that plaintiff shall be entitled to 20 per cent of the value of commercial agreement secured by the plaintiff on behalf of the defendants – Contract further providing that the plaintiff is entitled to N$45 000 per month for services rendered – Whether on the proper interpretation of the contract, plaintiff is entitled to 20 per cent of the commercial agreement or N$45 000 per month for services rendered – Court finding that the plaintiff is not entitled to 20  per cent of the commercial value of the agreement.

Civil Procedure–Action struck from the roll twice and deemed finalized due to the noted non-appearance by the plaintiff’s counsel–On second occasion, plaintiff argues that the legal practitioner was present – Matter appeared for inactivity in terms of r 132– Application for reinstatement– requirements to be met by applicant therefor – Rules of Court – Rule 32(9) and (10) and r 65 – whether non-compliance therewith is fatal to the application for reinstatement, in light of the fact that the matter was struck due to the erroneously noted non-appearance by the plaintiff’s counsel.

Civil Procedure − Exceptions-Amended Particulars of Claim − Vague and Embarrassing − No cause of action disclosed-Exceptions upheld − Amended Particulars Excipiable.

Civil Procedure- Rule 132(7) − Inactive case − Reason to the satisfaction of managing judge to be provided − Reason provided − Not in the interest of justice to strike the application − Application enrolled.

Practice – Summary judgment – Principles restated – First claim for payment of goods sold and delivered and levies payable under a marketing licence agreement which first defendant breached – Second claim for reimbursing plaintiff for discharging first defendant’s debt to a third party – Third claim for declaring immovable property executable under a mortgage bond passed by first defendant in favour of plaintiff over property as security for payment of money that may at any time be or become due and owing to plaintiff arising from any cause whatsoever – Defence that part of claim one prescribed is a bona fide defence – Defence that a notarial deed of lease concluded prior to, and leading to, conclusion of the marketing licence agreement is an agreement contrary to s 23 or 26 of the Competition Act 2 of 2003 and therefore unenforceable considered.

Jurisdiction – Court – Over private law disputes for contraventions of the Act – Depends upon proper construction of the Act – Section 52 does not oust court’s jurisdiction, nor reserve jurisdiction exclusively to Competition Commission –Court arguably retained original jurisdiction for such disputes – If procedures under the Act are inadequate, affected person could arguably be allowed to approach court directly dependent on facts and circumstances of case and nature of dispute and relief – Court could arguably hear matter as first instance court even though Commission not approached and Commission did not decide the prohibition was infringed – Court arguably has jurisdiction to declare agreement infringing the Act unenforceable if procedures under the Act are inadequate – Court cannot find claim for N$7 556 029,74 is unanswerable – On papers before court, if first defendant is correct that the lease contravenes the Act, that could constitute a bona fide defence to the claim for N$7 556 029,74 – Unnecessary to decide defence that the particulars of claim are possibly technically defective.

No defence against claim for reimbursement – Case made on negotiorum gestor or extended negotiorum gestor for liquidated amount in money – Reimbursement claim valid and secured by bond – No defence to claim declaring property executable following undisputed reimbursement claim – Plaintiff occupies property – Property not first defendant’s primary home or leased to third party as home – Summary judgment granted in part.

Practice — Execution — Interpleader — Onus of proof —Sufficiency of evidence — The onus of proof in an interpleader suit is on the claimant.

Practice — Interpleader — Claimant not required to set out claim with the precision required in pleadings, but claimant must furnish sufficient particulars of the claim to enable the court to make a determination.

Marriage — Proprietary rights — The death of a spouse terminates a marriage in community of property and, thus, terminates the consequences of marriage.

Motion proceedings — Medicines and Related Substances Control Act 13 of 2003 — Pharmacy Act 9 of 2004 — Medicines and Related Substances Control Act 101 of 1965 —  Right to compound and sell any specific medicine ­— Regulations relating to medicines and related substances — Regulation 19(2).

Practice – Applications and motions –  Rule 121 of the High Court Rules – Section 9 of the Public Service Act 13 of 1995 – Leave to execute the judgment – High potential of sustaining irreparable harm if the relief is not granted – Respondent has slim prospects of appealing the matter successfully.

Practice – Applications and motions – Urgency – High Court Rule 73(4) – High Court Rule 73(4) – provisions peremptory – Interim interdict – Requirements are well established – Defective papers – Urgency self-created.

Civil law- Audi alteram partem principle  ̶  Court may interfere in internal processes if audi has not been given to a person  ̶  The allegations that the applicants must answer to are broad and vague. The court of the view that the applicants must be provided with some of the requested documents in order to answer to the allegations and heard the matter on an urgent basis.

Civil Procedure – Rules of Court – Summary judgment – Requisites to be satisfied by applicant – Settlement agreements – Their effect on proceedings instituted.

Practice – High Court r 54(3) – Failure to deliver pleading timely, ipso facto barred ex lege – Rule 56 – Court may, on application for relief from adverse consequence of default, supported by evidence, on good cause shown, condone non-compliance – To apply for condonation without delay – To succeed with condonation application, required to meet two requirements of good cause – Reasonable and acceptable explanation and satisfying court there is reasonable prospect of success - Explanation must be full, detailed and accurate – Balancing exercise of two requirements and factors.

Statute – Interpretation – High Court r 56(2) – Application must be supported by evidence – Not interpreted to mean applicant must prove its reasonable prospect of success or provide evidence for it – Court has discretion to condone non-compliance – Court exercising its discretion must be satisfied there is reasonable prospect of success.

Condonation – Effect of mediation referral on duty to launch condonation application without delay – High Court r 38(3) – No further proceedings must take place until an order based on mediator’s report – Matter is only referred to mediation at the mediation referral proceedings, not at the initial mediation referral proceedings – Statute – Interpretation – Rule 38(3) – Interpreted to mean as from the mediation referral order, no further proceedings must take place – In this instance, without deciding a condonation application is a proceeding under r 38(3), proceedings suspended from 7 August 2023 to 18 September 2023 – Periods that require explanation together with explanation for default – Explanations for default and delay in launching application considered and weighed as well as prospect of success and relevant factors  – On conjunctive weights case made for relief sought.

Practice – High Court r 32(11) applies to condonation application even though r 32(9) and (10) do not – Rationale for r 32(11) rings true in condonation application – To limit opposition to condonation application, thereby limiting opposed interlocutory proceedings and costs in litigation and facilitating speedy disposal thereof – Party succeeding in defence to condonation application considered successful party under r 32(11).

Prevention of Organised Crime Act 29 of 2004 (POCA) – Section 29(1)(a) and 29(3)(c) of POCA analysed – Application for removal of a curator bonis – Application for appointment of a curator bonis to replace the one to be removed restraint order – Payment of fees of the curator bonis in restraint applications discussed. 

Civil Procedure – Summary judgment – The overriding objectives of judicial case management applied – Procedure to follow when a defendant raises a dispute of fact in summary judgment proceedings.

Practice – Applications and motions – Applicant required to make out its case in the founding affidavit which must contain sufficient facts upon which a court may find in the applicant’s favour – Applicant’s founding affidavit lacking such facts – Applicant’s application dismissed.

Practice – Urgent application – Condonation – Non-compliance High Court Rules – Dispense with forms and service – Unspecified – Condonation sought in a blanket manner and from the bar is incompetent and procedurally irregular.

Practice – Urgent application – Rule 73(3) sets demand – Nature and extent of urgent procedural relief sought, and urgent disposal of case, must, as far as practicable, be in terms of rules – Rationale – Give effect to objective of procedural fairness – Nature and extent of urgent procedural relief sought must be commensurate with the need of the case and supported by the facts, failing which court may refuse to dispense with forms and service – Urgent application procedure does not entitle disregard of all forms and service – Rule 73(4) – requirements to engage urgent application procedure restated.

Practice – Parties – Necessary party omitted from notice of motion – Necessary party not party to proceedings – Citation of party in founding affidavit cannot remedy omission from notice of motion – Rule 65(1) – Application initiating new proceedings commences with the issue of a notice of motion, not with the deposition of a founding affidavit – Rule 65(2) – Notice of motion must be addressed to a party where it is necessary to give such party notice of the application.

Statute – Interpretation – Urgent application – Rule 73(3) – Court’s power to dispense with service – Not power to dispense with service altogether unless urgent ex parte application supported with facts – Cannot condone non-service – Nullity.

Practice – Urgent application – Service – Purpose of service – Includes benefit of explanation of meaning and nature of process – Service effected by legal practitioner by email – Condonation from bar – Cannot condone possible non-service – Facts must support form of service sought – Rule 9(1)(c) – Proof of service by affidavit – Application initiated new proceedings – Service required by deputy sheriff in the prescribed manner unless facts support condonation for non-compliance – No explanation why physical service not effected – Flagrant non-compliance with rules – Service must be effective – No proof notice of application received – If received, no benefit of explanation of meaning and nature of process – fourth to seventeenth respondents and necessary party not served – Alternatively not served adequately – No case made for court to dispense with the prescribed service – Court exercises discretion against applicant – Refuses condonation – Refuses notice of motion prayer one.

Civil Practice − Summary judgment − Respondents to disclose bona fide defence to avoid summary judgment-Respondents did not disclose a bona fide defence − Summary judgment granted.