High Court Main Division

Applications and motions – Urgent applications – Relocation – Mother, who is the primary caregiver, seeking court permission to relocate to Botswana with her minor child, without obtaining consent or signature of the father of the minor child – Mother granted permission to relocate with the minor child.

Flynote:       Civil procedure – Short notice – Interpretation of agreement – When one interprets a document, it must be presumed that each word used was inserted for a purpose, as superfluity or tautology of language is not presumed.

Agricultural land – Section 58 of the Agricultural (Commercial) Land Reform Act 6 of 1995 – Foreign nationals prohibited from owning commercial land.

Pledge – A pledge is a limited real right of security in a movable asset, created by delivery of the asset to the pledgee pursuant to an agreement between himself and the owner of the asset – It is sought to secure the fulfilment of an obligation due to the pledgee by the pledgor, or some third party – A pledge does not entail ownership of a property, but merely security for the pledgee.

Motion Proceedings – Review – Customary Law – Traditional Authority – Traditional Authorities Act 25 of 2000 – Section 8 setting out procedure for succession of a Chief upon death or removal of a Chief or Head of a traditional community – Chief’s Council established in terms of s 9(1) and does not dissolve upon death of a Chief of traditional community as the Chief’s Council.

Customary law – The designation has to be done in accordance with the customary law of the community – The authorised members of a traditional community may designate one person from the royal family of the traditional community – A party relying on customary law must prove or establish such customary law  – Failure to qualify expert on norms, customs and traditions is fatal.

Constitutional law – Article 10(1) and (2) of the Namibian Constitution – Constitutionality issue raised prematurely – Article 18 –  Minister did not act arbitrarily, irrationally and contrary to Article 18 of the Constitution

Motor vehicle accident — Accident reconstruction — Expert evidence.

Criminal Procedure – Murder – Read with the Combating of Domestic Violence Act 4 of 2003 – Accused pleaded not guilty to one count of Murder – Accused convicted as charged.

Practice — Trial — Absolution from the instance at close of plaintiff's case — Test restated — Test is whether a prima facie case exists upon which a reasonable court might find in favour of plaintiff. 

Delict — Specific forms — Pure economic loss — Negligent misstatement by valuator — Money lender relying on valuation of an immovable property by the defendant, a qualified valuator, prepared for and submitted by an applicant for loan finance to lend money to a third party — Third party not repaying loan and  property sold at execution for a fraction of the valued amount. — Misstatement negligent and to a certain extent cause of loss but not wrongful.

Delict — Elements — Unlawfulness or wrongfulness — Policy considerations to be used in determining wrongfulness — Degree of negligence not such consideration — Valuators cannot be liable to each and every money lender that considers same — No other due diligence exercised by the money lender in considering the loan.

Civil Procedure – Rule 100 – application for absolution from the instance at the close of plaintiff’s case – Whether a court acting reasonably can be satisfied that plaintiff established a prima facie case requiring an answer from the defendant.

Civil Procedure – Summary judgment in terms of rule 60 – Whether the standard is higher in relation to the defence in the summary judgment application  and the condonation application in relation to prospects of success – Condonation application – Opposing papers filed two hours after close of business – Condonation application opposed by the plaintiff – Prejudice suffered by the plaintiff.

Contempt of court – Unlawful and intentional disobedience of a court order is a crime that violates the dignity, repute and authority of the court  which the rule of law, a founding value of the Constitution of the Republic of Namibia, requires to be maintained together with the court’s capacity to carry out its functions – Elements to be proved beyond reasonable doubt if a criminal sanction is sought – The order, service or notice, non-compliance, willfulness and mala fides – If the first three elements are proved, the respondent bears an evidential burden to the fourth element and should he fail to establish a reasonable doubt therein, contempt of court is established beyond reasonable doubt – Civil remedies’ standard of proof is a balance of probabilities.

Court orders – Stand until set aside by a court of competent jurisdiction – Until then, they must be obeyed even if they may be wrong and notwithstanding the effect they may have on others’ interests.

Practice – Condonation – Alarmingly many condonation applications reflect need for transformation – High Court r 17(2) – Court has the primary responsibility to control and manage cases – Court should set transformation in motion through implementation of the law – Court may on application, made without delay, supported by evidence, on good cause shown, condone non-compliance with court order while considering, amongst others, the circumstances set out in r 56 – Requirements for good cause, both to be met on papers submitted, restated – Need not ‘prove’ a reasonable prospect of success or provide evidence of it, but court has discretion to condone non-compliance, and if essential information enabling court to assess prospects of success is not set forth, court may conclude a party did not show a reasonable prospect of success.

Practice – Rules of court – Summary judgment – Rule 60(2) – Rule 60(6) – No further evidence may be adduced except as stated in the subrules – Where additional evidence is adduced in summary judgment proceedings, the court may disregard this additional evidence – This does not bar the plaintiff from proceeding with the summary judgment application.

Practice – Summary judgment – Extraordinary and drastic application –Defendant must put forward a triable and arguable defence which may succeed at trial – In this instance, no particularity was proffered to court on the defendant’s defence(s).

Rule 103(1)(a) — Rescission of order erroneously granted in absence of party affected thereby — Superannuation — Execution only in prescribed circumstances.

Practice — Summary Judgment — Declaring immovable property specially executable —  Limited procedure provided for under rule 60 — Application for summary judgment and an application to declare immovable property specially executable cannot be brought in one application or together.

Law of Persons — Divorce proceedings — Validity of a marriage — He who asserts, proves, and not he who denies — Births, Marriages and Deaths Registration Act 81 of 1963 — Marriage Act 25 of 1961.

Appeal from Magistrates’ court – Eviction ‒ Vindicatory claim – Appellant failed to produce title deeds to confirm ownership of immovable property – Magistrate dismissed claim on the basis that ownership of the immovable property was not proved – Appellant contends that ownership of the immovable property was not disputed – On appeal court finding that ownership of immovable property needs to be alleged and proved by production of title deed – Magistrate’s decision upheld – Appeal dismissed.

Applications and motions – Urgent application – Requirements for an urgent application – Members of National Assembly withdrawn from the Assembly on the ground that they have ceased to have qualifications which rendered them eligible to be members of the Assembly – Court holding that the applicants have not satisfied the requirements for an urgent application – Application struck from the roll for lack of urgency.

Criminal Law – Charges – Double Murder – Possession of a firearm without a licence – possession of ammunition – Unauthorised supply of a firearm and ammunition – Attempting to defeat or obstruct the course of justice.

Criminal Procedure – Sentence – Triad factors, objectives of punishment considered and restated.

Criminal Procedure – Sentence – Mercy – Not to be earned or demanded – Punishment to be blended with a measure of mercy only in deserving cases – Remorse – Lack thereof – Moral blameworthiness – Degree thereof – Crucial factors in sentencing.

Criminal Procedure – Sentence – Age of accused – One of several factors for consideration – Not determining factor.

Criminal Procedure – Sentence – Life expectancy – S v Gaingob discussed – Stare decisis – Parole – Not a factor for consideration in sentencing.

Criminal Procedure – Sentence – Life imprisonment – Discretionary – When appropriate – Extreme circumstances.

Practice – Judgments and orders – Summary judgment – when granted – principles to be applied. Magistrates court – Civil proceedings – Summary judgment – Rule 14(2) of the Magistrates court rules made under Act 32 of 1944 requires an application for summary judgment to be delivered at most, within seven days after notice of intention to defend – Application for extension of period under Rule 60(5)(b) must be a substantive application in terms of Rule 2(1)(b) before the magistrate can exercise his or her discretion to condone the  delay – The rules must be strictly complied with.

Civil Procedure – Summary judgment in terms of rule 60 – Requirements to be met by applicant – Types of claims subject to rule 60(1) – Rule 32(9) and (10) – Whether failure to comply strictly therewith in the context of this matter, should lead to striking out the application for summary judgment – Law of Contract – Circumstances in which a contract can be resiled from on grounds that duress was applied before entry into the contract - Law of Trusts – Whether a trustee can enter into an agreement without evidence that the other trustees support that agreement.

Contract – Proof of – Onus on party alleging existence of contract to prove such allegation – Court finding valid oral agreement existed between the parties.

Bid for reinstatement to bail on new facts – applicant, a Windhoek prison trial awaiting inmate in terms of section 68(3) of Act 51 of 1977 as amended − said new facts found to be merely ordinary circumstances every prison inmate and family members expected to endure during such incarceration. Bid to be re admitted to bail declined.