High Court Main Division

 Legislation – Prevention of Organised Crime Act 29 of 2004, (‘POCA’) – Condonation – Section 60(1) of POCA – Applicant applying for condonation for failure to timeously give written notice of intention to oppose the making of a forfeiture order within the time limit contained in s 52(3) read with s 52(4) of the POCA — Application for condonation lodged out of time — Court does not have inherent power to condoning non-compliance with time period stipulated in s 60(1).

Appeal – Late filing of notice of appeal – Application for condonation – Non-compliance with rule 67 of the Magistrates’ Court Rules – Court in determining application for condonation – Two requirements – First leg – Acceptable and reasonable explanation for cause of delay – Second leg – Prospects of success – Basis to be led – Explanation for late noting of appeal not reasonable and acceptable – No prospects of success on appeal – Application for condonation is refused.

Criminal Procedure – Appeal – Sentence – Appellant convicted of two counts of housebreaking with intent to steal and theft – Sentenced to effective nine years imprisonment – Previous conviction on similar offence – No misdirection on the part of magistrate in imposing the sentence – Appeal dismissed.

Applications and motions – Members of the National Assembly withdrawn from the Assembly purportedly on the ground that they have ceased to have qualifications which rendered them eligible to be members of the Assembly in terms of article 48(1)(a) of the Constitution –  Court finds that first respondent was entitled to withdraw the second and third applicants from the National Assembly in terms of article 48(1)(b) of the Constitution – Reference to an incorrect article does not render the withdrawal unconstitutional – Applicants` application dismissed with costs.

Summary judgement – On summary judgement, monetary claims brought together with the relief to declare the immovable property executable – Prescripts of rule 60 on Summary Judgement considered on whether an order declaring the immovable property executable can be granted at summary judgment stage.

Criminal Procedure – Appeal against sentence – Dealing in dangerous dependence-producing drugs (Cannabis) – Section 2 of Act 41 of 1971 – Sentence of 6 years’ imprisonment – First offender – Guilty plea under s 112(2) of Act 51 of 1977 – Whether sentence induces a sense of shock or is disproportionate – Sentencing discretion of trial court – No material misdirection found – Appeal dismissed.

Civil action for damages – Inmate kept in single cell or solitary confinement for a period of 31 days without reason and without any disciplinary hearing – Such confinement alleged to have constituted inhuman and degrading treatment – Deprivation of the right to associate with fellow inmates and right to exercise in terms of section 205 of the Correctional Service Act – Such confinement alleged to have contributed to emotional and physiological harm – Damages sought in the amount of N$100 000 – Evidence and probabilities not establishing any unlawful or wrongful conduct of the defendants - Claim dismissed.

Criminal law – Murder – Self defense – Requirements – Naftali approach to weighing private defense – Accused’s version supported by state’s evidence – Dolus eventualis – components of dolus eventualis as set out in Humphreys – Intention not proven, but accused went overboard in his defence – Accused ought reasonably to have realized that his conduct was excessive and he was thus negligent in his actions – Convicted of competent verdict of culpable homicide.

Criminal Procedure – Sentence – Murder with direct intent – Committed in context of domestic violence – Deceased assaulted with an axe in the face and head – Accused pleaded self defence which was rejected by court – Act committed in presence of two minor children – Sentencing objectives of retribution and deterrence weigh more and the interest of the accused and rehabilitation recede to the background.

Practice —  Judgments and orders — Default judgment —  Rescission of — Under common law  —  Grounds for —   An applicant must show good gause by giving a reasonable explanation for the default and must show a bona fide defence to the claim which prima facie has some prospects of success — The Court's discretion extends beyond the grounds provided for in Rule 103.

Practice — Applications and motions — Affidavits — Application to file further set of affidavits — Rule 66(2) — Reasonable explanation must be provided  — Applicant’s reasons vague and unsupported — insufficient evidence provided for the court to exercise its discretion.

Civil trial - Damages from a motor vehicle collision - Application for absolution from the instance and the principles applicable thereto - Failure to lead evidence on damages allegedly suffered and the effect thereof - The failure by the plaintiff to prove that he complied with the terms of the written insurance contract - Failure to call witnesses and the inference drawn therefrom.

Civil Procedure – Absolution from the instance – The plaintiff must make out a case that on the evidence led, a court applying its mind reasonably, could or might (not should nor ought to) find for the plaintiff in respect of the elements of the claim, failing which, a court may grant absolution at the end of the plaintiff’s case.

Criminal Procedure – Trial – Application in terms of s 174 of the CPA – Test to be applied – Whether there is evidence on which a reasonable court acting carefully may convict – No specific formula or test to be applied to all cases when deciding whether or not to discharge – Each case to be decided on its own merit.

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.