High Court Main Division

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for the purpose of rule 103(1)(a) – Orders to which parties were procedurally entitled when they were issued cannot be rescinded under rule 103(1)(a) absent the existence of facts at that time of which the court was unaware that would have precluded them being granted.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.

Civil Procedure – Summary judgment – The requirements to be met by applicant therefor – Rule 60(2) and what is required of deponent to affidavit in support of summary judgment – Does it suffice for a deponent to an affidavit in support of summary judgment to state that he or she believes that the defendant has no bona fide defence, as opposed to stating their opinion on that question? – Authority to institute summary judgment proceedings necessary to be proved in the founding affidavit – Importance of filing a recent certificate of indebtedness in support of application for summary judgment.

Criminal Procedure – Bail – Appeal against refusal by magistrate to admit appellants to bail on new facts – Interference by appellate court only permissible when satisfied that magistrate was clearly wrong – State opposing bail on grounds indicated in the application – Seriousness of the offence – Public Interest – Interest of justice – Likelihood of committing similar offences – State has a strong case against appellant – Court to balance interest of justice against deprivation of freedom of the appellant – Strength and circumstances in which offence committed important factors to consider – Appeal court finding magistrate’s decision wrong and further that interests of justice will not be prejudiced if bail is granted – Objection to be met by appropriate conditions.

Criminal Procedure – Appeal – Against sentence – Interference by court of appeal – Such interference only justified where sentence vitiated by irregularity or misdirection – Sentencing essentially falling within discretion of trial court – Court to balance interest of individuals, society and purposes of sentencing – No merit in the appellant’s assertion that the court a quo disregarded his personal circumstances – No misdirection by the court a quo when exercising its judicial function. 

Evidence – Plea of guilty in terms of s 112(2) statement of the Criminal Procedure Act 51 of 1977, as amended (‘CPA’) – Court having satisfied itself that all elements of the offence were admitted – Appellant accordingly convicted as charged.

Civil trial – Law of Contract – Oral agreement alleged for leasing of a jackhammer – Law of Evidence – The approach to disputes of fact and dealing with the probabilities – Civil Procedure – The need to include issues for determination in the pre-trial order, that are covered by the pleadings.

Criminal Procedure – Appeal – Against conviction and sentence – Proof beyond reasonable doubt required in criminal cases – Such burden discharged by the State – Contradictions – State witnesses’ evidence contradictory – Contradictions per se do not render evidence unreliable – Witnesses rarely give identical evidence – Nature of contradictions, their number, importance and their bearing on other parts of witness’ evidence taken into account – Differences not material when considered against the totality of evidence – Evidence – Evaluation on appeal – Findings of credibility – No irregularities or misdirection present – Court of appeal normally not rejecting findings by court a quo – No misdirection on the factual finding – No reason for appeal court to interfere with the conclusion arrived at by the court a quo – Appeal against conviction dismissed.

Appeal – Sentence – Minimum prescribed sentences in terms of the Combating of Rape Act 8 of 2000 applied – No substantial and compelling circumstances found to exist – Court not allowed to deviate from minimum prescribed sentences – Court found that there were coercive circumstances in that the appellant applied physical force and used a knife as well as threats to coerce the complainant into having sexual intercourse – Personal circumstances of the appellant not the only consideration when sentencing – Appeal against sentence dismissed.

Civil trial – Eviction of defendants from property previously alleged to have been communal land – Legislation – Schedule 5(3) of the Constitution, the Deeds Registry Act 47 of 1937 and the Local Authorities Act 23 of 1992 – Principle of subsidiarity applied – The conversion of communal land to town and townlands and the effect on land use rights previously exercised thereon.

Defendant lessee’s breach of a material term of lease agreement – Defendant failing to pay water bill leading to disconnection of water supply to the leased property – Lessee vacating property upon expiry of lease – Plaintiff lessor claiming contractual damages for the breach.

Delict – Legal duty – What constitutes – Plaintiffs instituting action as inmates held at the Windhoek Central Correctional Facility (WCCF) – Cause of action is related to their treatment at the WCCF.     

Criminal Procedure − Sentence – Committed in an employer-employee setting − Murder – Robbery with aggravating circumstances – Reckless driving – c/s 80(1) read with ss 1, 50, 80(2) (3), 86, 106 -109 of the Road Traffic and Transport Act 22 of 1999 –  Driving without a driving licensec/s 31(1) (a) read with ss 1, 50, 86 and 105 - 109 of the Road Traffic and Transport Act – Driving and/or occupying the driver’s seat of a motor vehicle whilst under the influence of intoxicating liquor- c/s 82(1) (a) read with ss 1, 50, 86 and 105 -109 of the Road Traffic and Transport Act – Serious offenses – Sentence – Remorse – Counsel for accused submitting that accused sorry for what he did and asking for forgiveness – Accused not testifying under oath – No genuine remorse shown. Ruthless killing − Accused not showing remorse.

Criminal Procedure – Multiple convictions – Cumulative effect of sentences to be considered – Section 280(2) of the Criminal Procedure Act 51 of 1977.

Urgent Applications–Rule 73(4)– Applicant must satisfy the requirements of rule 73 (4) of the rules of court for the matter to be heard on an urgent basis – Lack of funds not sufficient reason for delay particularly where steps taken to obtain funding is not set out – A deponent on behalf of a juristic person must establish authority to act on its behalf in the founding affidavit.

Maintenance Act 9 of 2003 – Section 5(c) – Being satisfied that the person fails or neglects to provide reasonable maintenance is a conclusion to be drawn from the facts on the evidence adduced – Section 16(2) – The nature of a maintenance enquiry is dictated by the case circumstances and facts established by the evidence adduced and the issues arising therefrom.

Arbitration – Recognition and enforcement of a foreign arbitral award – Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977.

Company – Winding up – Companies Act 28 of 2004 – Section 350 – Where an arbitral award has not yet been recognised and enforced in terms of applicable legislation, s 350 has no application.

Civil procedure – Contract law – Absolution from the instance – The defendant and the plaintiff were unable to agree on a price –The defendant insisted on a price specified in the bill of quantities to be reduced to a substantially lower price – In the result, the plaintiff was not appointed as a sub-contractor in view of the failure to agree upon a price for the work to be done – The probabilities favour the evidence of Mr Tenete and the court prefers his version over that of Mr De Wet.

Criminal Procedure – Condonation – Late filing of notice of appeal – Appellant convicted on 13 July 2022 and appeal out of time with almost 2 years –explanations – Court found explanation not reasonable and acceptable – No prospects of success – Condonation dismissed.