All courts

Declaratory order – Attachment unlawful – Separate Legal Personality – Insolvent estate of member or shareholder – The deputy sheriff attached properties in possession of a juristic person as part of the property in the insolvent estate on the erstwhile member or shareholder of that juristic person. The attachment declared to be unlawful and invalid and set aside.

Civil Procedure – Reviews – Requirement – Must be brought within a reasonable time – Where delay – Determine whether the delay was unreasonable – Statutory Interpretation – Principles – Essentially one unitary exercise – Statutory power – Administrative action – Notice – Incorrectly stated – Conditions for its exercise observed – Action not invalidated – Costs – Public interest – Biowatch principle applicable.

Practice – Civil procedure – Summary judgment – High Court Rule 60(2) – Requirements for verifying affidavits – How and whether they are met – Relevance of the ‘swear positively to the facts’ requirement – Rule 60(2)(a) – Apart from the amount, if any, claimed, the cause of action (the facta probanda), howsoever disclosed in the particulars of claim, must be verified without exceeding the limit of a plaintiff’s case at summary judgment stage and without exposing a defendant to undue process – Verifying the facta probantia may leave the cause of action, howsoever disclosed in the particulars of claim, unverified – Perfect particulars of claim without a valid summary judgment application cannot result in summary judgment.

Application to declare immovable property specially executable – Property not primary home of the judgment debtor ­­­­­­– Opposition based on part-payments and alternative property not yet sold.

Civil trial – Payment for goods supplied and delivered – Defendant denies liability and claims that the money sued for is not due from him – Law of Evidence – Determination of disputed facts and the formula to be applied – Onus of proof revisited.

Held: that in a civil trial, the onus is on the plaintiff to prove that he or she is entitled to the relief sought, on a balance of probabilities.

Held that: where there are disputed facts, the court should employ the formula applied in Stellenbosch Farmers Winery Group Ltd v Martel & Cie SA and Other 2003 (1) SA 11 (SCA) and that its application depends on the peculiar facts of the matter.

Held further that: in the instant case, the plaintiff managed by adducing admissible evidence, to prove that the defendant was liable to pay its claim.

Held: that a juxtaposition of the evidence shows that the plaintiff’s witnesses’ evidence was largely acceptable and cogent.

Held that: the evidence of the defendant, by and large, had inherent improbabilities and was not supported by objective facts and thus liable to be rejected.

Held further that: in relation to the amount claimed, the plaintiff had relied on the evidence of a witness who did not have personal or institutional knowledge of the transactions between the plaintiff and the defendant. His evidence was thus hearsay and amounted to speculation.

Whereas the court found that the plaintiff had established the defendant’s liability, it failed to prove the amount owed by admissible evidence.

Absolution from the instance thus granted.

Action – Claim for the return of listed items confiscated upon arrest and in terms of the provisions of the Criminal Procedure Act 61 of 1977 – Criminal proceedings against the plaintiff struck from the roll – Items withheld on the basis that the Prosecutor-General (‘the PG’) will institute proceedings soon – Test from PG v Namoloh applied – No basis in law to keep the items in the absence of pending criminal case.

Amendment – Application for leave to amend plea and to introduce a counter-claim – Delay – To be granted unless the respondent is prejudiced, and the prejudice cannot be cured by an appropriate order as to costs. Issue Estoppel – Special Plea – Determination of special plea not a basis for issue estoppel on the merits.

Criminal Procedure – Sentence – Appellant convicted on a count of murder dolus eventualis – Sentenced to sixteen (16) years’ imprisonment two (2) years suspended – Condonation application –  Delay of almost 8 years excessive and inordinate – Reasons for delay inadequate – No prospects of success on appeal – No misdirection by court a quo in imposition of sentence – Condonation dismissed.

Civil Procedure – The plaintiff brought an application for condonation for failure to file a plea – The court considered the requirements for success in such applications and held that an applicant must explain the delay on affidavit and also show that they have a bona fide defence to such claim –The court found that there was no reasonable explanation for failure to file a plea was disclosed in the papers. The application was dismissed with costs

Practice – Rule 52 – leave to amend – Rule 1(3) – Rule 19 – application for leave to amend – application necessitated by objection to proposed amendment – application launched, only seeking costs if opposed – application not opposed – plaintiff in heads of argument contending application to be dealt with as if opposed and seeking cost orders against defendant not sought in founding papers – defendant objecting, seeking costs order against plaintiff. Objections to proposed amendments to be taken reasonably and responsibly.  Application for leave to amend granted, each party to pay its own costs.

Defamation – Claim for damages – Defamatory statements made via WhatsApp platform – Defendant alleging that plaintiff engages in sexual relations with married men, infects people with sexually transmitted diseases, and practices witchcraft – Such statements defamatory.

Evidence – Failure to cross – examine witnesses on point in dispute – Unfair to leave the witness’ testimony unchallenged when intended to suggest that witness not speaking the truth and court should not believe him – Party calling such witness is entitled to assume unchallenged witness testimony accepted as correct – Witness’ to be afforded opportunity to defend his version.

Civil procedure – High Court Rules 32(9) and (10) – Non-compliance – Condonation application – Dismissed – No bona fide, reasonable and acceptable explanation for the default – Nothing done to remedy the default while knowing about it since 21 May 2025 – Such conduct constitutes seeking an exemption from rule 32(9) instead of condonation – The non-compliance and subsequent conduct flagrant and gross – Leave to amend application’s prospects of success thus not considered – Rule 32 complements rule 52 from when parties desire to pursue amendments subjected to valid objections – Rules 32(9) and (10) must be complied with before leave to amend applications are brought – Condonation, in the manner sought, would deliver the much-needed ethos of the High Court Rules echoed through rule 32(9) a knockout punch creating a platform for litigants not seeing eye to eye to sideline compliance with that rule – The law will not be bent to suit the players – Although applicants have the duty to seek amicable resolutions of intended interlocutory proceedings, all parties and their legal practitioners have the duty to limit interlocutory proceedings, not just the party bringing them – Parties, not doing their part to limit interlocutory proceedings, only to complain about an unresolved interlocutory proceeding on the hearing date, should not be rewarded for such unbecoming conduct through a cost order – Parties to pay their own costs.

Pleading — Amendment — Where proposed amendment will render a pleading excipiable. Such an amendment not to be allowed.

Criminal Procedure – Sentence – Appeal against sentence – Appellate court's interference limited – Misdirection – Sentence disturbingly inappropriate – Murder with dolus eventualis – Use of knife in public space – Unprovoked attack – Need for deterrent and retributive sentence – Appeal against sentence is upheld.

Criminal Procedure – Appeal against conviction and sentence – Leave to appeal – Application lodge out of time – Condonation – Reasonable and satisfactory explanation – Prospects of success on appeal – Explanation provided is satisfactory – No prospects of success on appeal.

Civil claim for damages as a result of alleged assault –The onus of proof in civil cases – Law of evidence and how the court determines factual findings where there are disputes of fact – Divergence between the pleadings, the evidence in a witness’ statement and evidence adduced under cross examination

Criminal procedure – Notice of appeal filed late – Condonation – Court will take cumulative circumstances into account – Grants condonation as the prospects of success were good – Appeal against sentences for dealing in dangerous dependence producing substances and dependence producing substances – Custodial sentence –  Appeal partly succeeds.

Criminal Procedure – Appeal – Conviction – Duplication of convictions – Application of same evidence test and single intent test – Convictions on fraud, forgery, and uttering, arising from same facts and intent – Duplication found – Convictions on forgery and uttering set aside.

Criminal Procedure – Appeal – Credibility of witnesses – Trial court’s rejection of accused’s version – No misdirection – State witnesses found credible – No basis to interfere with factual findings.

Sentence – No appeal against sentence – Sentence considered in light of partial success on appeal – Sentence found to be lenient and consistent with comparable cases – Sentence confirmed.

Application – Declaration of validity and enforceability of a marriage – Consequences of a purported marriage with a married person – Meaning of what constitutes void ab initio and a nullity – The marriage of the applicant found to be valid and enforceable – Application upheld.

Criminal Procedure – Application in terms of section 174 of the Criminal Procedure Act 51 of 1977 – Discharge of accused in terms of s 174 – Applicable test considered and applied – Whether there is evidence on which a reasonable court acting carefully may convict – Principles restated – Approach to circumstantial evidence to be considered – Inferences may be drawn from proven facts in the end   ̶ Application dismissed.

Parole – Parole of an offender sentenced to life imprisonment – Offender released on parole subject to conditions that he is placed under ‘Intensive Supervision Level’ and that he must report at the nearest correctional facility or nearest police station for a ‘face-to-face session’, twice a month, for the rest of his life – Applicant brought the present application seeking the review and setting aside of the parole conditions – Court finds that the applicant has not established basis for the relief he seeks – Application dismissed.

Evictions – Communal land – Section 24 and 26 – Allocation – Ratification of customary land rights.

Legislation – Child Care and Protection Act No 3 of 2015 (‘the Act’) – Proof of parentage – Application for review and setting aside of a decision by the children’s court holding that applicant is not the father to two minor children – Applicant claiming to be father to the minor children inspite of existence of DNA results to the contrary – Court holding that the applicant’s application has no merit – Application dismissed.

Appeal – Sections 56 and 57 of the Nursing Council Act 8 of 2004 (‘the Act’) – Civil Procedure – The duties and objects of the Nursing Council of Namibia include safeguarding and protecting members of the public against errant registered and enrolled persons and to firmly deal with errant registered and enrolled persons – The statutory objects of the Nursing Council as the primary custos morum (guardian of morals) of the nursing profession is to protect and safeguard members of the public against registered and enrolled persons – Appeal upheld with costs.