High Court Main Division

Building contract, final payment certificate issued by principal agent – Bill of Quantities wrong and exceeds agreed contract sum.

Criminal Procedure – Late filing of appeal against sentence – Condonation – Requirements – Applicant must give acceptable and reasonable explanation for the delay and show prospects of success – No misdirection in the sentence imposed by court a quo – No prospects of success on appeal –  Condonation application dismissed.

Application for stay of proceedings – Application to stay made by way of motion – Discretion of court – Discretion sparingly exercised on strong grounds, with great caution and in exceptional circumstances – this court has inherent jurisdictions to stay proceedings pending the outcome of other proceedings.

Applications – Administrative Review – Local Authorities Act 23 of 1992 – Whether the Council made a decision – Whether the applicant is entitled to the alternative relief of mandamus.

Civil – Action – Delict – Constitutional Damages – Unlawful arrest – Burden of proof for unlawful arrest – Infringement of Constitutional Rights – Guideline in determining the quantum of damages. 

Property – Town Planning Scheme – Consent Usages – Consent granted to operate Guesthouse and conference facility to respondent – Respondent hosting events and functions, contrary to consent use – Applicant seeking to interdict to host events and functions contrary to consent use of property – Requisites for interdict met – Granted.

Noise – Emanating from hosting event and functions – Noise Control Regulations – Applicant seeks interdict – Ambient noise level – No Legislative framework – Interdict refused.

Civil action – Claim for damages resulting from money allegedly misappropriated by employees – Civil Procedure – Absolution from the instance – Rule 100 – Principles applicable to absolution from the instance discussed – Rule 28 – Necessity to identify documents or recordings discovered at case management conference if disputed – Legislation – Application of Electronic Transactions Act 4 of 2019 and repeal of Computer Evidence Act of 1985 discussed.

Criminal procedure – Notice of Appeal – Notice should set out grounds of appeal clearly and specifically – Rule 67(1) of Magistrates’ Court Rules –  Defective notice of appeal – Once a nullity it remains a nullity.

Criminal procedure ― Appeal against ― Sentence ― Interference by court of appeal – Such interference justified where a court a quo committed a serious misdirection or irregularity ― Misdirection occurred during sentence of first appellant as he was not sentenced on count 4 on which he was convicted ― No misdirection or irregularity occurred during sentence of first and second appellants’ in respect of counts 1, 2 and 3  – Serious misdirection occurred in sentencing of the third appellant who was sentenced on count 4 for N$ 823 100 whilst the amount in question was N$ 23 100 – Appeal court found sentence imposed on third appellant disturbingly disproportionate and interfered with that sentence – Court a quo committed an illegality when it convicted and sentenced the first appellant on charges that were withdrawn

Law of costs – Rules of the High Court on costs in interlocutory matters, rule 32(11) – Whether the granting of an order for eviction whilst an action for breach of contract is progressing amounts to an interlocutory application – Definition of interlocutory matters given.

Company – Provisional winding up – Application for – Grounds – On the basis of the ‘just and equitable’ provision – Ambit of ground – Court finding circumstances justifying dissolution of partnership also justifying winding up of the first respondent company – Court satisfied a case of justice and equity has been made out.

Applications and motions – Urgent application – Interdict – Requirements for interim interdict satisfied – Administrative law– Review – Applicant has a well-grounded apprehension of irreparable harm if interim relief is not granted – The failure by the Environmental Commissioner to take into account the applicant’s representations before granting the Environmental Clearance Certificate is a violation of the applicant’s rights guaranteed under Article 18.

Murder – Criminal Law – Accused indicted on one count of murder read with the provisions of the Combating of Domestic Violence Act 4 of 2003 – Self-defence raised – Test and requirements restated.

Civil procedure – Interim interdict – Requirements restated – Representation made by the Town Council considered – Improbability of the different versions tendered on the same issue by the Council – Audi alteram partem rule revisited.

Insurance  –  Motor vehicle policy - Repudiation of claim under insurance contract –  Whether the damage of the first accident was significant damage which ought to have been revealed to the defendant – Whether, if the defendant knew about the previous accident and subsequent repairs, it would have insured the vehicle with the same benefits as it did – Whether it would have done so without inspecting the vehicle – The duty was on the plaintiff to offer the information regarding the ownership of the vehicle and the major repairs – The claim of the plaintiff is dismissed and the counterclaim is granted.

Criminal Procedure – Appeal – Against conviction and sentence – Appellants convicted of various offences under the Anti - Corruption Act 8 of 2003 – Appellants sentenced to an effective period of three years imprisonment – Grounds of appeal relied on are not clear – Point in limine raised by respondent – No grounds of appeal against conviction – Point in limine upheld in part.

Criminal Law – Trial within a trial – Admission of a confession – Objection thereto – Rights not explained – Assaulted – Forced – No basis for objection – Admissible.

Criminal Procedure – Sentence – ‘Cyber’ crimes – Alarming increase of these crimes in Namibia – Conclusion drawn from large number of cases coming before courts – Court may take judicial notice of the increasing prevalence of ‘cyber’ crimes committed in its jurisdiction.

Criminal Procedure – Sentence – Principle of individualisation – Sentence must be tailored in such way that it fits the particular accused before court –Accused’s – Accused did not plead guilty neither did he testify in mitigation to show his remorse – Accused’s blameworthiness increased – Custodial sentence inescapable.

Appeal – Proceedings before the Valuation Court – Local Authorities Act 23 of 1992 – Whether the Valuation Court committed irregularities – Court finding that irregularities were committed in the proceedings – The court exercised its review jurisdiction mero motu and set aside the proceedings.

Criminal Law: Discharge of accused in terms of section 174 of the Criminal Procedure Act 51 of 1977. Criminal Procedure – Trial – Discharge of accused at close of States case in terms of s 174 of Criminal Procedure Act 51 of 1977 – Approach by court and guidelines set out in S v Nakale and S v Teek followed.

Appeal – Appeal against conviction and sentence – Contravention of s 27(3) of the Nature Conservation Amendment Act 3 of 2017 – Contravention of s 30(1) read with ss 1, 30(1)(b), 30(1)(c), 85, 89 and 89A of Ordinance 4 of 1975 as amended, and further read with ss 90 and 250 of the Criminal Procedure Act 51 of 1977 – Definition of hunt – Possession of suspected stolen meat – Section 51 – Charged and convicted of the incorrect section under the Ordinance – Irregularity vitiating entire proceedings – Conviction set aside.

Appeal – Appeal against sentence – Previous conviction on similar charge – Nature Conservation Act, as amended – Section 3A – Cumulative effect of sentence imposed, to be considered – Failure thereof amounts to misdirection, warranting interference.