High Court Main Division

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.

Civil Procedure - Law of costs - Wasted costs and costs in the cause – Interlocutory proceedings and costs attendant thereto in terms of rule 32(11) – Whether the court may, in its discretion depart from rule 32(11) – Considerations to be taken into account in departing from the provisions of rule 32(11).

Law of property – Ownership – Eviction – Rei vindicatio – Registration of title over the property sufficient to prove ownership – Effect of the challenge to the causa that underlines the registration – The applicability of s 30 of the Administrates of Estates Act 66 of 1965 – The cancellation agreement of the sale in execution and its impact on the pending registration of the property – Intention of the owner to transfer property to another person – Application upheld.

Civil Action – Claim for outstanding levies due in terms of the Agronomic Industries Act 20 of 1992 ('the Act') – Whether the plaintiff made a case for the payment of levies due under the  Act – The need to present clear and concise relief prayed for in particulars of claim.

Urgent application in terms of s 50A of the Prevention of Organized Crimes Act, (‘the Act’) – Unexplained wealth − The Prosecutor-General (‘PG’) sought an urgent ex parte relief to preserve the assets pending further investigation, as the assets were at risk of being dissipated – The observance of the right to be heard of the person in possession of the property sought to be declared unexplained wealth.

Civil trial – Admissions in plea and the contents of the pre-trial order limit issues that may be raised at trial – Court declines to adjudicate matter on issues outside the pre-trial order.

Civil trial – Loan default case – Indebtedness onus on the plaintiff – Production of certificate of indebtedness – Not a liquid document – Has evidential value – The defendants are entitled to dispute the certificate of indebtedness – Prima facie evidence means prima facie proof of the indebtedness – Without further evidence from the defendants the prima facie proof becomes conclusive, and the plaintiff’s onus is discharged – Whether the onus is discharged depends on the nature of the case and the relative ability of the parties to contribute evidence on the indebtedness issue – Agreement to a certificate of indebtedness clause impacts on that question – Purpose of certificate of indebtedness clause – Certificate of indebtedness clause gives the certificate of indebtedness agreed evidential value and calls for an answer by the defendants – If the plaintiff went as far as it reasonably could in producing evidence and that evidence calls for an answer, prima facie proof was produced, and, without an answer from the defendants, it becomes conclusive, and the plaintiff’s onus is completely discharged – Doubtful or unsatisfactory answers and suspicions leaving the court guessing as to the indebtedness equals no answer and fail to destroy the prima facie proof, which then amounts to full proof – On the defendants’ failure to disturb the prima facie proof, it becomes conclusive, and the defences that the plaintiff failed to comply with section 25(4) of the Electronic Transactions Act 4 of 2019 (the Act) for certain computer-generated documents and that those documents were not the best evidence fall away.

Condonation – Application – Must meet two requirements – An acceptable explanation – Prospects of success – Local Authority – Public interest – Value of information – Size of the property in dispute – Condonation granted

Delict – Action for pain and suffering following stillbirth due to medical negligence – Conduct – Negligence coupled with concurrent breach of contract – Causation (factual and legal) – Damages – Emotional shock and trauma, inconvenience and discomfort – Award separated between spouses married in community of property – Spouses’ personal rights and not rights of joint estate.

Jurisdiction – Disputes between and within voluntary associations whose statutes, whereby they and their members are bound, prescribe internal processes before recourse to court – If the dispute’s very nature does not require the court’s intervention, just cause must be shown for the court to exercise jurisdiction – Just cause not shown – Court declines to exercise jurisdiction.

Voluntary association – Authority to institute motion proceedings – What evidence required – Founding affidavit deponent relies on the chairperson office of the voluntary association from which he was removed and which removal was not reviewed and set aside – No evidence to conclude institution of proceedings was authorised by the voluntary association – Founding affidavit deponent must personally pay costs but not the costs of opposing first respondent who failed to provide evidence authorising opposition.

Appeal – Criminal law – Grounds of appeal to be formulated clearly and specifically – Obstructing course of justice – Concealing a dead body –

Court a quo committed no error in concluding that the said offence was proven – Appeal dismissed.

Practice — Trial — Absolution from the instance at close of the plaintiff's case —  Court must bring own judgment to bear on evidence adduced — Court must establish, prima facie viewed, whether there was evidence relating to the  elements of the claim — Court must accept the truth of plaintiff’s evidence unless incurably and inherently improbable and unsatisfactory.

Criminal procedure — Arrest — Wrongful arrest and detention — Requirements for lawful arrest — Reasonable suspicion — What constitutes — Plaintiff in violation of regulation 6(5) read with regulation 8(3) of Stage 2: State Of Emergency - Covid-19 Regulations: Namibian Constitution under government gazette number 7203 of 4 May 2020  —  Arrest justified in terms of s 40(1)(a) and (b) of the Criminal Procedure Act 51 of 1977.

Pleadings – Amendment – Particulars of claim – Cannot object to an averment already in the particulars of claim – If read holistically (as it should), the particulars of claim contain supporting allegations for the conclusions sought to be introduced – Allegations sought to be introduced are not contradictory – New cause of action (being different from new claim) may be introduced as the right enforced and relief claimed are the same or substantially the same – Belated amendment, which did not include a change of front, allowed to ventilate the real issues in dispute after plausible and reasonably satisfactory explanation (although open to criticism) provided and the court finding that the application is not mala fide or an abuse of process and the defendants’ prejudice is not such that costs (if awarded) cannot compensate.

Civil practice – Special plea of prescription – Raised by defendant against plaintiff’s claim for payment of an invoice in respect of professional services rendered – The invoice dated 2 March 2018 is for the period of 2014 to 2017, while combined summons were served on 27 October 2022 – Plaintiff claimed interruption of the prescription period – Prescription found to have been interrupted – Special plea dismissed.

Civil Procedure – Application – Urgent application – Rule 73(3) and (4) – Whether the applicant complied with ideal prescripts of Rule 73 – Requisites of interim interdict restated.

Criminal Law and Procedure – Bail – Appeal against refusal of bail in lower court – Appellant burdened with onus to prove, on balance of probabilities, that he will stand trial and not abscond – The court of appeal should not interfere or set aside the decision of the court a quo to refuse bail unless it is satisfied that the decision of the magistrate is wrong.

Criminal Procedure – Bail on new facts – Such facts must be new.

Purchase order for rental of earth moving equipment – Cancellation.