High Court Main Division

Practice – Judgment and orders – Applicant seeking an order declaring a judgment of this court as ‘void ab initio’ – Applicant laying no valid factual basis for seeking such an order – Court holding that it is improper for a litigant to ask for such an order in the circumstances – Court further finding that applicant has set out to abuse the court’s process – Application dismissed with costs on the punitive scale.

Criminal Law – Criminal Procedure – Combating of Rape Act 8 of 2000 – Rape – Coercive circumstances – Incest – Contravening s 15 of the Prevention of Organized Crime Act 29 of 2004 –Trafficking – For sexual exploitation – Assault by threat.

Practice — Motions — Urgent applications — Applicant must explicitly set forth the reasons why the matter is urgent, and reasons why substantial redress cannot be obtained in due course — Applicants seeking to interdict first respondent’s mining activities pending a decision in terms of s 42 of the Environmental Management Act 7 of 2007 whether to suspend or cancel an Environmental Clearance Certificate issued on a disputed mining claim and pending finalisation of a review application seeking to set aside the decision to grant a mining licence and Environmental Clearance Certificate to first and sixth respondents — Court satisfied in present case that application is urgent.

Practice — Parties — Locus standi — Applicants launched their applications as duly registered conservancies in terms of s 24A of Nature Conservation Ordinance of 1975 with environmental and sustainable development obligations, and as parties to joint venture and partnership agreements to create tourism and protection of wildlife in conservancies where competing mining rights were granted — Applicants showed that they are rights bearing entities and are interested parties in the present case.

Motions — Prerequisites for interim interdict applicable in interdict pendente lite — Prima facie or clear right — Balance of convenience — Irreparable harm — No other remedy — Applicants must also satisfy court of prospects of success — Court satisfied in present case that applicants had prima facie right and good prospects of success for part of the interim relief sought and mandamus granted.

Evidence – Onus of proof – The defendant alleging an agreement different from that pleaded by the plaintiff bears the onus to prove such agreement – The defendant failed to prove acquisition of member’s interest under section 33(1)(b) of the Close Corporations Act 26 of 1988 which involves member’s interest acquisition, through the adjustment of interests, by the potential new member from the existing member/s without consideration to them while there is an agreement between all of them inter se of the adjustment.

Pleadings – Replication – Not necessary for replication as the plaintiff’s answer to the plea was not a confession and avoidance.

Evidence – Onus of proof – The defendant alleging she performed by payment bears the onus to prove the payments alleged by her – The defendant failed to discharge that onus.

Purchase contract – Breach – The defendant’s failure to pay the purchase consideration – Material – The plaintiff entitled to cancel – Demand and cancellation by summons – The plaintiff’s subsequent conduct showed intention not seeking payment but cancellation.

Criminal Procedure – Leave to appeal to the Supreme Court – Sentences – Condonation for the late filing of his leave to appeal application – Onus on the applicant – Non-compliance with rule 115(2) of High Court Rules – Prospects of success are very low –  Leave to appeal application is dismissed.

Court – High Court – Power – Stay proceedings – Interest of justice not part of common law grounds to stay proceedings – No case made for need to develop common law grounds to include interest of justice ground.

Criminal Procedure — Sentence — Accused persons charged and convicted of high treason and various offences under the Arms and Ammunition Act 7 of 1996, as amended, and under the Immigration Control Act 7 of 1993, as amended.

Accused are first offenders previously — Convicted and punished for high treason — Served six years of the sentence — Court taking into account mitigating factors of the accused — The circumstances under which the offences were committed — The period spent in detention waiting for the finalization of trial — The nature of the offences convicted of — The interests of society — Sentenced to varying sentences coupled with an order in terms of s 10 (8) read with  ss  5 and 6 of the Arms and Ammunition Act 7 of 1996, as declaring the accused unfit to possess an arm for an undetermined period from date of sentencing.

Review – Record of proceedings – Rule 76(2)(b) – Documents, evidence, arguments and other information relating to the matter under review that was before the decision maker when making the decision – Includes ‘every scrap of paper throwing light, however indirectly, on what the proceedings were, both procedurally and evidentially’ – Deliberations relevant to the decision also included.

Discovery – Other documents – Rule 76(6) – An applicant must have a genuine and rational belief founded on some factual basis (not a mere suspicion) that other documents, reasonably identified and relevant to the decision under review and considered by the decision maker, are in the decision maker’s possession (not any respondent’s) – An applicant must show the relevance of the other documents to the impugned decision – Application refused – The applicants failed to establish their alleged belief, facts why the court should go behind the respondents’ oath and that the requested documents are relevant to the decision under review – Requested documents potentially involve integrity of executive’s operation – Sarfu warning heeded – Restraint exercised against disclosure – Document not reasonably identified refused.

Evidence – Discipline in motion proceedings – All evidence necessary to support case must be in the founding affidavit.

Costs – Rule 32(11) – Facts and circumstances considered in adverse cost order against unsuccessful party – Unnecessarily voluminous papers – Irrelevant matter included in founding affidavit – Unnecessary duplications in founding affidavit – Argumentative matter in replying affidavit – Issues not delineated in heads of argument.

Criminal procedure – Trial – Charges – Murder, housebreaking with intent to commit robbery with aggravating circumstance, rape – Alternatively violating a dead human body, conspiracy to commit an offence.

Criminal Law – Conspiracy – Section 18(2)(a) of the Riotous Assemblies Act 17 of 1956 – Offence committed when person conspires with another person to aid or procure the commission of an offence.

Criminal Law – Robbery – Offence committed when theft is accompanied with violence – Accused persons murdered the deceased persons for the reasons to steal their properties after their resistance – Verdict on Robbery with aggravating circumstances appropriate under the circumstances.

Criminal Procedure – Duplication of convictions – Discussed and applied.

Criminal law – Doctrine of common purpose – Each accused playing a role in the commission of the offences – Act of one accused imputed to the other.

Criminal law – Doctrine of recent possession – A court entitled to infer that the possessor committed the offence (s)

Criminal Procedure − Sentence – Committed in a domestic setting − Murder – Assault with grievous bodily harm – Breaching protection order – Malicious damage to property − Serious offences – 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 application – Rules 73(3) and (4) requirements restated – Test when determining urgency – Must assume the applicant’s factual allegations as to the merits are correct – Urgency enquiry separate from principles applied in merits enquiry – Merits enquiry moves debate to another level.

Interim interdict – Trite requirements restated – Test when determining interim interdict preventing exercise of statutory public power by state organ pending review – Prima facie right, though open to some doubt, sufficient – Take the applicant’s facts together with the respondent’s facts which the applicant cannot dispute and consider whether, having regard to inherent probabilities, the applicant should (not could) on those facts obtain final relief – The respondent’s facts set up in dispute are considered to see if serious doubt is thrown on the applicant’s case in which case they cannot succeed – In the absence of mala fides being alleged the interdict will not be granted readily, only in exceptional circumstances and a strong case is required – In addition to common law interim interdict requirements, separation of powers doctrine to be considered (the OUTA[1] standard) – Court barred from meddling in executive or legislative matters unless constitutionally mandated and there is proof of unlawfulness, fraud or corruption – Only granted in clearest of cases and if constitutionally appropriate to do so – The applicants failed to establish a prima facie right – Unnecessary for court to consider the remaining interim interdict requirements.

Civil – Motion – General – Urgent Application ­– Public Procurement Act 15 of 2015 – The Central Procurement Board of Namibia – The requirement for final interdict – Substantial redress with respect to urgency – Specific performance.

Public Procurement Act – Section 54 of the Public Procurement Act – Section 55(5)(b) provides that, after the board or public entity has made a decision on an application under subsection (4A) and no application for review is made under section 59(1), the accounting officer or the Chairperson of the Board, where the board is procuring on behalf of a public entity, must award the procurement contract to the successful bidder.

Delict – Wrongful arrest and detention and assault – Arresting of plaintiff for words uttered to errant driver to disobey police command but utterances not obeyed by driver – Plaintiff’s utterances not amounting to obstruction of performance of official police duties – Arrest arbitrary and unlawful and subsequent detention unlawful – Assault in the course of arrest proved.

Contract – Defendant alleging that he signed an acknowledgment of debt at the time when blank spaces on a printed form were not filled in – A person who signs an incomplete agreement must be taken to have intended, in the absence of allegations to the contrary, that the agreement shall be made complete by filling in the blank spaces – The court holds defendant bound by the terms of the acknowledgment of debt.

Labour Law - Appeal against Arbitration award - Arbitrator finds dismissal substantively fair - No approval given by the Minister to the first respondent to implement a fourth shift - Appellant within his right to refuse to work unlawful shift- Arbitrator erred in finding that dismissal was substantively fair- Arbitrator’s award set aside - Appellant to be reinstated and compensated.

Civil Procedure - Costs – Wasted costs – Section 364 of the Companies Act 28 of 2004 (‘the Act’) – To the effect that once the resolution to voluntarily wind up a company is taken, and duly registered with BIPA, legal proceedings are stayed – Vacation of trial dates and costs related thereto.

Delict – Action for damages – Evaluation for quantum to be derived from evidence provided by plaintiff – Evidence required to quantify damages-Principles of proof of damages apply – Actio legis aquiliae damages that flow from the loss of property – Actio iniuriarum non-patrimonial loss through an injury to a personality right– Action for pain and suffering – Non-patrimonial loss in the form of pain and suffering.

Civil Procedure – Rule 45(9) of the High Court provides for assessment of quantum of damages – The court may grant absolution if not satisfied that plaintiff adduced evidence for assessment of quantum for damages.

Civil Procedure – Costs – Circumstances in which wasted costs are granted – Considerations taken into account therein – Attorney and client costs – Circumstances in which such costs are granted.

Legislation - Powers, Privileges and Immunities Act of Parliament Act 17 of 1996, ('the Act') - Whether the courts are totally excluded from dealing with all matters involving Parliamentary 'domestic affairs' - Standing Rules and Orders and Internal Arrangements of the National Assembly аnd compliance therewith in matters of disruptive behaviour - The effect of a failure to comply with the said Rules and whether that failure grants the court the right to intervene when approached by a Member of Parliament affected thereby - Constitutional Law - Articles 1, 5, 79(2) and 80(2) of the Constitution and their impact on s 21 of the Act.

Civil procedure – Special Plea – Prescription – Section 13(1) and section 16 of the Prescription Act 68 of 1969 – Section 39(1) of the Police Act 19 of 1990 – The implication of section 13 of the Prescription Act vis-à-vis the provisions of section 39 of the Police Act – Acting in pursuance of the Act – Acting in the course and scope of employment – Bruni N.O. v Inspector General of Police.^[1]

Civil Procedure – Rules of Court – Urgent applications – Rule 73 – Requirements to be met by applicant for urgency – Urgent applications in interlocutory matters arising where some main proceedings are pending before a judge already docket-allocated the matter – Interim interdict – Requirements to be met by applicant therefor.

Practice – Absolution from the instance – Plaintiff instituted a contractual claim for damages based on breach of contract – Test for absolution from the instance restated – Absolution should be granted where plaintiff has not established its case and proceeding with a trial constitutes a waste of time – Plaintiff prima facie established that there was a tacit agreement between the parties and further that Stacks exercised the option to buy the vehicle – Absolution from the instance refused.

Applications — Reviews and motions — Supply of pharmaceutical products — Public Procurement Act 15 of 2015 — Procedural fairness — Audi alteram partem rule — Article 18 of the Namibian Constitution.

Legislation — Prevention of Organised Crime Act 29 of 2004 (POCA) — Warrant of Arrest — Rescission of the order preserving the property — Section 99 of POCA — A person who may be classified as a fugitive from justice may not participate in any proceedings under chapter 5 and 6 of POCA for as long as he or she remains a fugitive from justice.

Civil Procedure – Urgent application – Rule 73(4) – Considerations taken into account in hearing a matter on an urgent basis – Interim interdict – Requisites to be satisfied by applicant therefor – Company Law – Companies Act 28 of 2004 – Requirements for calling directors’ meetings and period of notice required – Consequences where those time limits have not been observed – Law of costs – Circumstances in which costs on the attorney and client scale are granted

Unlawful arrest and detention and assault – Cause of action – Actio iniuriarum coupled with special features for unlawful arrest and detention.

Vicarious liability – Government – Police officer acting in his capacity as such within the scope of his employment.

Damages – General – Assessment.

Interest – Unliquidated damages claim.