Supreme Court - 2024

The respondent (as the plaintiff in the court a quo) issued summons against the appellant (the defendant in the court a quo) seeking general damages resulting from a breach of contract. In its particulars of claim, the respondent alleged that the appellant breached an agreement with the respondent dated 8 April 2014, in terms of which the appellant would pursue further studies to obtain a PhD qualification for a period of one year as from 01 January 2014 to 31 December 2014. The aforesaid breach was as a result of the appellant resigning from employment with the respondent during 2016, before completion of her PhD qualification and without having completed her bonding period – in violation of the agreement signed on 8 April 2014.

The respondent averred that appellant breached the agreement in that she failed or neglected or both failed and neglected to repay the respondent the financial assistance provided to her during her period of studies for the year 1 January 2014 until 31 December 2014, despite various demands. As a result of the appellant’s breach, the respondent suffered damages in the amount of N$624 032.05.

The court a quo found that the appellant did indeed breach the contract and that the respondent was entitled to the relief claimed. The appellant, aggrieved by the finding of the court a quo, noted an appeal to this court on 19 May 2022, against the whole of the judgment and order (including the cost order) of the court a quo.

Held that, the court a quo was correct in finding that appellant breached the agreement when she resigned from the respondent’s employment without having successfully completed her PhD studies.

Held further that, the failure by the appellant to serve the respondent for a period of 12 months in terms of the agreement resulted in a loss to the respondent and that such loss was in fact directly caused by the appellant’s failure to serve the respondent for a period of twelve months after she successfully obtained her PhD.

Held further that, the respondent’s claim for damages is one flowing naturally and generally from the appellant’s breach of contract and one which the law should presume to have been contemplated by the parties as a probable result of the breach.

Held further that, the breach caused by the appellant falls fairly and squarely within the category of loss for which general damages are awarded and the court a quo was therefore correct in holding that the respondent was entitled to the damages claimed.

Consequently the appeal is dismissed with costs.

This is an appeal from the court a quo wherein the appellants brought an application to declare rule 31(5)(a) of the repealed rules of the High Court unconstitutional and declare the default judgment granted by the registrar under rule 31(5)(a) invalid and null and void.

During or about 2001, Erf 4479, Khomasdal, Windhoek, was declared specially executable by the registrar of the High Court, who was empowered to do so by the now repealed rules of the High Court. Subsequently, the property was sold in execution on 24 March 2005 to Mr and Mrs Benade. During 2005 the first application was brought, seeking to set aside the sale in execution.

After that, the application by the appellants was dismissed in March 2006, the appellants appealed to the Supreme Court, but as a result of the non-compliance on the part of the appellants, the Supreme Court struck the application and the appeal was further not prosecuted.

During the year 2011, the appeal was declared to have lapsed. Successively, during or about 2013/2014 the appellants sought similar relief from the High Court, whereby, the Court dismissed the appellants’ application.

That is the background upon which this current appeal of the whole judgment of the Court a quo is premised.

Held that, the functus officio principle lends finality to the conduct of proceedings by marking a definitive endpoint to it.

Held that, the High Court does not have the authority to review or overturn its own decisions, nor does it have appellate jurisdiction over its own decisions.

Held that, the learned judge's finding that there was an unreasonable delay in launching the applications is sound.

Held that, the judge a quo correctly held that the High Court had fully and finally exercised its jurisdiction and could not alter or correct its order even with the benefit of hindsight.

Held that, one recognised exception to the functus principle is the rescission of a judgment, and the appellants did not apply for rescission of the judgment.

Held that, the High Court is functus officio in respect of the dispute between the appellants and the respondents.

Held further that, time is even more of the essence in a case where a constitutional challenge is launched concerning the constitutionality of a statute or rules of court.

Held that, if the appellants were aggrieved with the conduct of the respective legal practitioners, which they clearly are, they have recourse to the Body to which legal practitioners are accountable, ie the Law Society of Namibia.

Held further that, launching a personal attack on legal practitioners who are merely representing their clients and pursuing their mandate is unacceptable.

Held that, there is no reason to shield the appellants from a cost order in this appeal, and there is no basis for deviating from the normal rule that the costs should follow the result.

Held that, the appeal is accordingly dismissed with costs.

This is an appeal of certain orders of the Labour Court sitting on an appeal from an award given by an arbitrator, instituted by the appellant who was employed as Chief Executive Officer of the Namibia Students Financial Assistance Fund (NSFAF) from March 2013 until her dismissal on 7 February 2020. Prior to her dismissal and on 16 April 2018, the appellant was suspended from her position pending an investigation into charges for which she was facing a disciplinary hearing. On 6 February 2020, the respondent’s Board resolved to dismiss the appellant without finalising the disciplinary hearing, citing delays attributed to the appellants conduct from the date of suspension to the date of dismissal, which according to the respondent made it impossible to bring the disciplinary hearing to finality.

The respondent, dissatisfied with the arbitration award which found in favour of the appellant, appealed to the Labour court which held that the dismissal of the appellant was without a fair and valid reason and without a fair procedure being followed. However, it set aside the arbitrator’s award which reinstated the appellant and replaced it with an order directing the respondent to pay the appellant the monthly remuneration she would have received from 8 February 2020 until 15 July 2021.

On appeal to this Court is the finding of the Labour court relating to the order setting aside appellant’s reinstatement as well as an order backdating appellant’s payment of monthly remuneration to 15 July 2021. The main issue for determination in this Court is whether or not the Board’s decision of 06 February 2020 dismissing appellant was null and void on the basis that the Board was not properly constituted in terms of the NSFAF Act, therefore giving rise to other ancillary relief relating to reinstatement and payment of remuneration. The respondent noted a cross- appeal, directed against the court a quo’s finding that the dismissal of the appellant was without a fair and valid reason and without a fair procedure being followed. The respondent also attacked the court a quo’s decision ordering it to pay the appellant compensation.

Part of the issues raised by the respondent was whether or not the Minister of Higher Education, Technology and Innovation was obliged to state in the appointment letter of an additional member, the particular purpose for such appointment, and whether an additional member who was statutorily prohibited from voting at board meetings, but who voted to dismiss the appellant resulted in the decision of the Board being unfair and null and void.

Held that, a decision of the majority of the voting members of the board present at a meeting constituted a decision of the board. The fact that a member who was not entitled to vote, voted to dismiss the appellant at a properly constituted board meeting, did not invalidate the votes of the majority of the members entitled to vote at the meeting. The decision taken was therefore validly taken and at a properly constituted board meeting.

Held that, the fact that the purpose for which an additional member had been appointed was not reflected in the letter of appointment did not invalidate the appointment of the additional member and the decision taken to dismiss the appellant cannot for that reason alone be null and void.

The evidence presented during the arbitration proceedings on behalf of the respondent described the relationship with the appellant as ‘unbearable’, acrimonious’, disruptive and uncooperative’, no trust in the leadership of the appellant’. The appellant herself stated that the animosity and hatred towards her by the board were ‘acutely raw’.

Held that, the relationship of trust and confidence between the appellant and the respondent had irretrievably broken down based on substantially the conduct of the appellant in the circumstances of this case, which made the continuation of the employment relationship impossible.

Another issue was whether a medical report was required in addition to a medical certificate in order to determine the appellant’s ability to attend the disciplinary hearing.

Held that, in respect of the medical certificate tendered in support of an application for a postponement of the disciplinary hearing, the employer is not required to confine itself to a medical certificate but is entitled to request a medical report from a doctor as proof of illness, especially in the case where the sick leave has been granted for an extended period. This would apply not only in the case of the employee’s physical inability to perform normal work activities but also to his or her mental ability.

Held further that, the respondent acted reasonably and in accordance with its policies by demanding to be provided with a medical report or for appellant to be subjected to an examination by a psychiatrist of its choice, since it was important to establish whether the appellant was genuinely incapacitated and that the medical certificate was not employed as a delaying tactic by the appellant.

Held that, the breakdown in the relationship between the appellant and the respondent provided a valid and fair reason for the dismissal of the appellant and renders the dismissal substantively fair.

Consequently, the appeal is dismissed and the cross-appeal is upheld with costs.

On 8 May 2012, the appellant applied to the first respondent for a second stock exchange licence. On 9 September 2014, the application was declined following the exchange of numerous correspondence over a period of at least two years. The appellant avers that the decision was unlawful, that first respondent was not functus officio after 9 September 2014 because it still requested further documents from the appellant after 9 September 2014 thereby creating the impression that it would still assess the application when presented with the requested information.

Held that, the decision of 9 September 2014 was lawful. The appellant failed to provide by 9 September 2014, documents and/or information required in terms of s 8 of the Stock Exchanges Control Act 1 of 1985 (SECA) Act for the granting of a Stock Exchange Licence, this despite such information being requested already on 21 November 2012.

Held that, upon communicating the decision of 9 September 2014, the first respondent became functus officio.

Held that, there was no conflict of interest on the part of the first respondent, particularly when regard is had to the conduct of the parties throughout the application evaluation process.

Held that, the appellant caused significant delay in instituting the application a quo. However, the first respondent’s contribution to the delay cannot be overlooked as he continued to request further information or documents after 9 September 2014. Such requests were in any event ultra vires the Act as he had no power in terms of the Act to revisit his decision of 9 September 2014.

In the result the appeal is dismissed with costs, such costs to include the costs of one instructing and one instructed legal practitioner.

This is an application in terms of s 14(7)(a) of the Supreme Court Act 15 of 1990 read with rule 6 of the Rules of the Supreme Court after the applicant sought a summary judgment to evict the respondent from Portion 23 of farm Oamitis No. 53 (the plot) and to recover associated costs.

A lease agreement was signed on 25 April 2020, allowing the respondent to use the the plot for residential and agricultural purposes, with a monthly rental amount of N$8 450 payable in advance. The respondent also agreed to cover stamp duty costs. The respondent failed to make timely rental payments and did not pay the stamp duties.

Despite receiving notice, the respondent failed to rectify the breaches, prompting the applicant to cancel the lease and seek eviction.

The respondent claimed inadequate water supply, justifying withholding rent. The respondent also filed three counterclaims: damages for unlawful water disconnection, rent remission due to insufficient water supply, and compensation for improvements made to the plot if evicted. The court a quo found no bona fide defence or triable issues in the respondent’s opposition and granted summary judgment in favour of the applicant, ordering eviction, ex post facto stamping of the lease agreement, and awarded costs to the applicant. The matter was postponed for case planning regarding the respondent's counterclaims.

On appeal, the respondent argued that the judge erred in law and fact by granting the summary judgment.

Rule 6 application

The applicant sought dismissal of the appeal, arguing it lacked merit and prospects of success. The applicant contended that the respondent had no valid defence and failed to provide proof for water insufficiency or rent remission. Clauses from the lease agreement were cited to support the claim of the respondent’s breach and the justification for eviction and lease cancellation.

Held, the issues raised by the respondent, including the need to interpret certain clauses of the lease agreement, warranted a full trial instead of granting summary judgment.

Held, the appeal is not without merit and has reasonable prospects of success on appeal.

The application under s 14(7)(a) of the Supreme Court Act 15 of 1990 read with rule 6 of the Supreme Court Rules is dismissed with costs, including those of one instructing and one instructed legal practitioner.

This is a review application in which the applicants (the defendants in the High Court) sought an order setting aside the order of the court a quo due to an irregularity in the proceedings. The facts are briefly as follows: The then plaintiffs, now respondents, instituted an action against the defendants to declare an agreement between the parties null and void ab initio and for the return of the portion of the purchase price already paid. In the alternative, the plaintiffs alleged that the construction of the property was not done in a proper and workmanlike manner and as the defendants refused to remedy the defective work, they were entitled to cancel the agreement which they did.

The defendants filed a plea denying the allegations by the plaintiffs. They denied that they were in breach of the agreement and asserted that the plaintiffs still owed an outstanding amount on the purchase price. The defendants filed a counterclaim claiming the amount outstanding on the purchase price (ie N$490 000) and alleging damages to the tune of N$429 000 because the plaintiffs allegedly prevented them from converting and utilising the property for student accommodation.

When the matter was ripe for hearing the defendants did not appear at the trial and the court a quo granted the plaintiffs default judgment for their main relief. It is this order that the defendants seek to set aside in this review. This Court granted the defendants leave to launch a review pursuant to s 16 of the Supreme Court Act 15 of 1990.

The court limited the review grounds to the following facts and circumstances: ‘(i) Was an irregularity in the proceedings established by virtue of the fact that the counterclaim was not expressly dealt with in the pre-trial order; (ii) What is the effect of no order being made in respect of the counterclaim on such claims; (iii) Was it an irregularity in the proceedings to not make an order in respect of the counterclaim; (iv) Can the counterclaim still be pursued in view of the fact that no order was made in respect thereof; (v) Does the rescission application launched by applicants in July 2023 provide an adequate alternative remedy and (vi) What is the status of the mentioned rescission application’.

Held that, this Court will not exercise its review jurisdiction where it is not established that the alleged irregularity in the proceedings in the High Court ‘. . . resulted or is likely to result in an injustice or other form of prejudice being suffered’ which cannot be addressed by other available remedies.

Held that, the omission by the court a quo to deal with the counterclaim amounted to an irregularity in the proceedings. Unless the counterclaim was abandoned, it still has to be dealt with at trial.

Held that, the rescission application brought by the defendants is still pending in the High Court. The question that arises is whether the rescission application is an effective alternative remedy to the review being sought in this Court?

Held that, the rescission application provides an adequate remedy to prevent an injustice to the defendants. If the application succeeds, the order of 9 May 2023 will be set aside and the pre-trial formalities can be finalised so that the matter (both the claim-in-convention and the claim-in-reconvention) can be heard. The managing judge or the trial judge can then determine how the matter should proceed taking cognisance of rule 63(6) of the Rules of the High Court and determine whether this is a case where this rule should be utilised and if finding in favour of the plaintiffs in respect of the issue dealt with in terms of this rule further determine whether the judgment in respect of the claim-in-convention should be stayed pending the adjudication of the counterclaim.

Consequently, the review application stands to be dismissed with costs.

The appellant is the president of the Namibian Gymnastics Federation (NGF) and a parent of two gymnasts. The appellant issued summons against a fellow sports administrator (the respondent) who, in a complaint to the gymnastics governing body, accused the appellant of conduct unbecoming of her office as president; nepotism for favouring (as a judge) her own gymnast daughters during competitions; and conflating her role as a parent of gymnasts and as president. The appellant had previously been given a written warning by a responsible committee for favouring her daughters as a judge in a competition.

On 3 May 2019, the appellant had made it known that her daughters would no longer be participating in gymnastics in Namibia and that she would be training them herself and effectively withdrew them from the gymnastics club she owned.

A training camp for gymnasts was planned to take place in May 2019 at Walvis Bay and an invitation was sent to all the gymnastics clubs with a maximum of 20 participants. The venue was subsequently changed and the number of participants was also increased from 20 to 25. The training camp’s change of venue from Walvis Bay to Swakopmund sparked the appellant’s interest and she then, by email to Ms Bierbach, a witness for the respondent, asked that her daughters be included in the training camp. This request was refused by the respondent as the project manager.

When the request was refused, the appellant went to the training camp on 5 May 2019 and accused the organisers of discriminating against her daughters. She then announced that she was going to call an official meeting to address her unhappiness about the refusal. The respondent took the view that it was improper for the appellant to call an official meeting to deal with a private grievance. The appellant proceeded to call the meeting but the respondent refused to attend and instead wrote a complaint to members of the executive council and two other persons in the gymnastics community against the appellant – amongst others, accusing the appellant of nepotism and conduct unbecoming of a president.

In the particulars of claim in an action for defamation, the appellant alleged that the sting in the publication was that she practised nepotism and was a dishonest person. The respondent denied that she defamed the appellant and maintained that the statements were substantially true and were in any event protected by qualified privilege. The High Court sustained both defences and dismissed the claim, with costs.

On appeal, the appellant, relying on nine grounds of appeal, challenged the High Court’s judgment and order – making sweeping and generalised complaints against the High Court’s findings and conclusions without demonstrating in what way the trial judge misdirected herself.

Held on appeal, that this Court will not interfere with a trial court’s findings of fact except on very limited bases. The applicable test restated. An appeal against a trial court’s collateral findings of fact must demonstrate a structural error, error of approach, error of law, a miscarriage of justice or the trial judge’s failure to take advantage of being steeped in the atmosphere of the trial.

This Court is not satisfied that the grounds of appeal meet the test for appellate interference.

Appeal dismissed, with costs.

This is an application pursuant to Art 81 of the Namibian Constitution. The applicants were convicted and sentenced by the Magistrates’ Court in Windhoek for contravening ss 27(1) and 54(e) of the Immigration Control Act 7 of 1993. The applicants brought an appeal against their convictions and sentences in the High Court and while their appeal was still pending, they launched a review application in the High Court to have their convictions set aside alleging that there were ‘irregularities in the proceedings’ at the magistrate’s court. On 4 September 2020, the High Court sitting as a court of appeal dismissed their appeal. The review application succeeded and the High Court set aside their convictions and sentences. The governmental respondents then appealed to the Supreme Court against the setting aside of the convictions and sentences. This Court upheld the appeal and made an order reinstating the convictions and sentences of the applicants as imposed by the magistrates’ court on 1 March 2024.

According to the applicants, their Art 81 application is brought on the basis that theirs is an exceptional case aimed at correcting an injustice in that the judgment of this Court ‘resulted in an indefensible and manifest injustice done’ to them hence the Supreme Court must invoke its power to revisit its decision.

The applicants argued that the dismissal of their appeal in the High Court and in this Court abolished their inalienable right of access to the court.

Held that, there is no merit to this point. The applicants had the right to pursue both an appeal and a review but because of the principle in Liberty Life Association of Africa v Kachelhoffer NO & others 2001 (3) SA 1094 (C) which was accepted in Schroëder & another v Solomon & others 2009 (1) NR 1 (SC), they had to ensure that the review was dealt with prior to the appeal. They simply had to seek a stay or postponement of the appeal pending the finalisation of the review application. The applicants were not precluded from any right of access to the court they might otherwise have had. They simply had to manage the process and the fact they did not is simply their (or their lawyers’) making.

No case has thus been made out for the Supreme Court to invoke Art 81.