Supreme Court - 2024 August

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.