Court name
High Court Main Division
Case name
Katjizeu and Others v Government of Republic of Namibia and Others
Media neutral citation
[2013] NAHCMD 17
Judge
Ndauendapo J












Reportable





REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





Case
No: A 235-2009





JUDGMENT








In
the matter between:





KARANDATA
KATJIZEU & 31 OTHERS
......................................................APPLICANTS


and


THE
GOVERNMENT OF REPUBLIC OF NAMIBIA ...............................1st
RESPONDENT


MINISTER
OF AGRICULTURE, WATER AND FORESTRY ................2ND
RESPONDENT


MINISTER
OF SAFETY AND SECURITY
.............................................3RD
RESPONDENT


MINISTER
OF JUSTICE OF THE REPUBLIC OF NAMIBIA ................4TH
RESPONDENT






Neutral
citation:
KARANDATA KATJIZEU & 31 OTHER S v THE GOVERNMENT
OF THE REPUBLIC OF NAMIBIA & 3 OTHERS
(A 235/2009) [2013]
NAHCMD 17 (29 January 2012)







Coram: NDAUENDAPO
J


Heard:
10-23 January 2011, 8-17 June 2011, 11-22 July 2011, 12-13 March 2012
17-18 September 2012


Delivered:
29 January 2013





Flynote:
Law of Evidence—Admission as to the number of cattle
confiscated—Law on admissions restated—Respondents bond
by admission—No full and satisfactory/reasonable explanation
provided for admission—Respondents bond.





Summary:
The applicants invaded Nyae Nyae conservancy (Tsunkwe) with a number
of cattle. The respondents confiscated the cattle. In the interdict
application, (to prevent the cattle from being disposed of)
applicants stated that their cattle were 2177. Respondents admitted
the number. Dispute about the number of cattle impoundment.
Applicants argued that the respondents were bound by the admission.
Respondent filled an affidavit explaining that the admission was a
bona fide mistake and applied to court to have it withdrawn. Held,
admission not fully explained nor reasonable explanation for
admission. The application to withdraw admission refused.





______________________________________________________________________


ORDER


______________________________________________________________________


[1]
The respondents are ordered to pay the applicants N$3 245690.00, for
the balance of 995 cattle impounded by respondents, with interest at
rate of 20% from the 17 July 2010 to date of payment.





[2]
Respondents are ordered to pay the costs of the applicants as
follows:





2.1
for the hearing on 10-23 January 2011, costs to include one
instructing and two instructed counsel.


2.2
for the hearing on 8-17 June 2011, costs of one instructing and one
instructed counsel.


2.3
for the hearing on 11-22 July 2011 costs of one instructing counsel.


2.4
for the hearing on 12-13 March 2012 costs of one instructing counsel.


2.5
for the hearing on 17-18 September 2012 cost of one instructing
counsel.








______________________________________________________________________


Judgment


______________________________________________________________________


Ndauendapo
J





[1]
Introduction





During
May 2009, the applicants, who were born in Botswana and are
descendants of the Ovaherero people, who were born in the then
Germans Suid West Africa and who fled to Botswana during the 1904
uprising between the Germans and Ovaherero people entered the
Nyae-Nyae conservancy area with a large number of cattle, goats,
sheep and donkeys. They came from Otjomuinguindi, Gam area. They left
Otjomuinguindi because their animals were dying of a poisonous plant
(cymosium dichapetalum). After they entered Ongura, in the Tsumkwe
constituency, the Namibian police arrested the applicants and
impounded their cattle. The first respondent then took a decision to
confiscate and depose of the livestock of the applicants. The
applicants then brought a review application (to review the decision
to confiscate their cattle). The matter was then settled between the
parties and the respondents agreed to pay the applicants compensation
for their cattle. However, the parties could not reach an agreement
on a number of cattle confiscated. On 14 July 2010 the agreement was
made an order of court. Paragraph one of the court order stated as
follows:





1
the Court notes that the matter has been settled except for one
issue. 2. That the only issue between the parties is referred for
hearing oral evidence, namely to determine the number of livestock
seized by the respondent,

apart
from the livestock admitted by the respondents
.’





When
the matter came before me, I referred the matter for oral evidence as
agreed between the parties on the limited issue, namely, the number
of cattle confiscated. Before I made that ruling, senior counsel for
applicants raised a Point in limine.





Mr
Frank SC together with Mr Denk appeared for the applicants and Mr
Hinda together with Mr Mostert appeared for the respondents.





The
parties





[2]
The first applicant is Karandata Katjizeu an adult male
subsistence farmer who resides in Tsumke, Republic of Namibia. The
other thirty one (31) applicants are also adult male
subsistence farmers their full names appear in the review application
under case no A235/2009 and are herein incorporated for ease of
reference.





The
first Respondent is the Government of the Republic of Namibia
herein represented by its Cabinet, constituted in terms of article 35
of the Namibia Constitution, c/o the Government Attorneys, 2nd
Floor, Sanlam Building, Independence Avenue, Windhoek, Republic of
Namibia.





The
Second Respondent is the Minister of Agriculture, Water and
Forestry of the Republic of Namibia
who is cited herein in his
capacity as such, c/o the Government Attorneys, 2nd Floor,
Sanlam Building, Independence Avenue, Windhoek, Republic of Namibia.





The
Third Respondent is the Minister of Safety and Security of the
Republic of Namibia
who is cited herein in his official capacity
as the head of the Namibia Police Force, c/o the offices of the
Government Attorney, 2nd Floor, Sanlam Building,
Independence Avenue, Windhoek, Republic of Namibia.





The
Fourth Respondent is the Minister of Justice of the Republic of
Namibia
, who is cited herein in her official capacity as such,
c/o the offices of the Government Attorneys, 2nd Floor,
Sanlam Building, Independence Avenue, Windhoek, and Republic of
Namibia.





[3]
Point in Limine





At
the commencement of the hearing, senior counsel for applicants
submitted, that Mr Ndishishi, on behalf of the respondents (second),
admitted the number of cattle confiscated by the respondents and that
the respondents are bound by that admission.


In
the interdict application
1
served on the
respondents on 17 November 2009, Mr Katjizeu, in the supporting
affidavit, stated that
the
total number of livestock confiscated as per annexure K1 is 2177
cattle, 100 goats’ and 49 sheep.’





In
his answering affidavit, Mr Ndishishi, on behalf of the second
respondent stated the following:





It
is indeed correct that the police seized the cattle as set out in
annexure “K1” to the applicants’ paper. The
respondent confiscated the said cattle in June 2009’. The
admission was made on 23 November 2009.





[4]
On 19 July 2010 Mr Ndishishi, on behalf of the second respondent,
filed an application for condonation for the late filing of the
answering affidavit to the review application. In this affidavit Mr
Ndishishi stated that:





the
second respondent’s answering affidavit in the urgent
application was drafted by my legal representatives in great haste
and over a weekend. When I saw the figure of 2177 in the founding
affidavit, I trusted that it was correct. I had no basis to doubt the
correctness of the figure and I did not make any enquiries as I did
not deem it necessary. I also did not have personal knowledge of the
number of cattle, as I did not see it at any stage and I also did not
count the cattle. In fact, I was unaware of such admission until it
was recently pointed out to me. I can assure the Court that I made
the admission inadvertently and that it is a bona fide mistake. I
humbly request the court to accept my explanation and allow me to
withdraw same on the strength of my explanation as set out herein
before. To deny me the opportunity to withdraw the inadvertent
admission will have severe financial consequence for the state”





[5]
Senior counsel for applicants submitted that the attempt to explain
the admission and to seek leave to withdraw same was not satisfactory
and reasonable and the court should not grant leave to withdraw the
admission. It should stand and the respondents should be bound by it,
he contended. In support of his submissions senior counsel for
applicants referred this Court to various authorities. I will refer
to those authorities when I deal with the legal position.


Senior
counsel for the respondents submitted that leave should be granted to
withdraw the submission as it was a bona fide mistake. He
submitted that Mr Ndishishi gave a full and satisfactory explanation
as to how the admission came to be made. In support of his
submissions senior counsel referred this Court to the matter of
President Versekenigs Maatskappy Bpk V Moodles 1964 (4) 109 and
Brummond v Brummond’s Estate 1993 (2) SA 494 (NM).





[5]
The legal position





In
Law of Evidence issue 6, 2008, LexisNexis, Schmidt and
Rademeyer state the following:





An
admission must be made expressly or by implication. Because it may
have serious consequences for the person making the admission, it
must appear clearly and unambiguously that an admission was in fact
made…a court was bound by an admission while it was on
record.”





The
Authors go on to state that:





An
amendment will be granted if:





(a)
there was a reasonable explanation why the admission was made; and


(b)
the amendment does not prejudice the opposition in such a way that it
cannot be rectified by an appropriate order of costs.


A
reasonable explanation can indicate only that a bona fide mistake was
made.”





In
Beck’s Theory and Principles of Pleading in Civil Actions, 6
th
Edition it was stated that:





An
admission puts no point in issue at all but operates to eliminate the
admitted fact from the issue to be tried. Its effect was to bind the
party making it and he or she was bound to the extent of its
inevitable consequences or necessary implication unless these are
specifically stated to be denied. Thus the admission of an
undertaking includes an admission of liability thereon unless the
liability was specifically denied.


An
admission in plea once made can be withdrawn only with leave of
Court. In general the Court will require evidence of the
circumstances under which the admission was made before it will allow
the withdrawal. Evidence to justify a withdrawal must show a
reasonable basis for making the reasonably mistaken admission and a
reasonable basis as to why a withdrawal ought to be permitted.”





Water
Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994 (2) SA 588 at 605
H-I





“…Such
an admission was binding upon the party making it, i.e prohibits any
further dispute of the admitted facts by the party making it in
evidence to disprove or contradict it.”





Brummund
v Brummund’s Estate 1993 (2) SA 494 (NM): at 495 the court held
that:





where
a party in motion proceedings wishes to withdraw an admission made in
his Affidavit he is obliged to give a full and satisfactory
explanation on Affidavit as to how the admissions came to be made and
if they were made in error,

to
apply formally for their withdrawal. It is insufficient to instruct
Counsel to state from the Bar that the mistake has been made and that
the admissions should be ignored.”





President-Versekeingsmaatskappy
Bpk v Moodley 1964 (4) SA 109 (TPD)the court held that:





‘…But,
though the approach is the same, the withdrawal of an admission is
usually more difficult to achieve because it involves a change of
front which requires full explanation to convince the court of the
bona fides thereof, and it is more likely to prejudice the other
party, who had by the admission been led to believe that he need not
prove the relevant fact and might for that reason have omitted to
gather the necessary evidence.





[7]
Application of the law to the facts





[5]
In this case the admission by Mr Ndishishi was clear and unambiguous.
To state as Mr Ndishishi stated, that the ‘number of cattle
impounded was not the issue and therefore not really relevant to the
urgent application; is besides the point. The number of cattle
impounded was very relevant. The figure of 2177 cattle was clearly
stated in the papers of the applicants, it appeared twice in the
papers and therefore the admission was a specific one.





[8]
Mr Ndishishi stated that: ‘the urgent application was
drafted by my legal representatives in great haste and over a
weekend. When I saw the figure of 2177 in the founding affidavit, I
trusted that it was correct. I had no basis to doubt the correctness
of the figure and I did not make any enquiries as I did not deem it
necessary’.





It
is not clear what is meant by ‘the urgent application was
drafted by my legal representatives in great haste and over a
weekend’. If they made the admission, Mr Ndishishi (and
therefore the second respondent) is bound by that and there is no
explanation from the legal representatives why the admission was
made. In SOS at 490 C-D Kinderdoff International V Effie
Lentin Architects 1993 (2) SA 481.
The court held that:
‘where a case is conducted by a client’s legal
representative, such representatives are in charge of proceedings.


A
litigant is bound in the conduct of its case by counsel (within the
limits of counsel’s brief) and by admissions which the legal
representatives may make in pleadings or in the drafting of
affidavits, unless satisfactory reasons are given to show that such
persons had no right to make such admissions.’





[9]
Mr Ndishishi does not fully explain why he trusted that the number of
cattle was correct since he did not count the cattle nor did he had
personal knowledge of the number of cattle. On what was the trust
based? The allegations that he had no basis to doubt the correctness
of the figure and did not deem it necessary to make any enquiries are
also difficult to fathom. I say so because prior to the admission
being made, the number of cattle that were confiscated were in the
range of 1020,1210 or 1262 and not exceeding 2000 and he was aware or
should have been aware of that. Mr Ndishishi was the Permanent
Secretary of the Ministry of Agriculture, Water and forestry and on
12 May 2009, prior to the admission being made, a meeting was held by
the Ministry of Information and Communication Technology and
according to the ‘draft minutes’ the purpose of the
meeting was: ‘Discussion on the invasion of livestock in the
Nyae Nyae Conservancy by farmers from the Gam constituency. Mr
Ndishishi attended that meeting. Under the heading ‘Namibia
Police statistics & legal implication’, it is stated that:
A total of 1020 animals were
impounded.





[10]
In a confidential report forwarded to the Permanent Secretary
Ministry of Agriculture, water and forestry (Mr Ndishishi,) by Mr
Ua-Njarakana and titled, ‘report on the fact finding mission on
the invasion of Nyae Nyae conservancy by some Gam Farmers it was
stated that a total of
1210 cattle were recorded
to have entered the NNC by Sunday 17
thMay.
This report was also forwarded to Mr Ndishishi prior to the
admission being made.





In
another document styled ‘AGENDA MEMORANDUM TO CABINET’
(on the letter head of Ministry of Agriculture, Water and forestry
stamp dated 5 June 2009, under the heading ‘Background &
discussion’ 3.1 it is stated that ‘until today 4th
June 2009, a total number of 1262 animals are involved.’





[11]
From the above documents it is clear that Mr Ndishishi was aware or
should have been aware that according to the police and the report of
the fact finding mission the cattle impounded were either 1020 or
1210 or 1262 and not 2177 that he admitted and now wants the Court to
grant him leave to retract. He does not fully explain why he admitted
to the number of 2177, whereas the figures of the impounded cattle
from the police and the fact finding mission were either 1020 or
1210. Based on the figures of the police and the fact finding mission
he should have doubted the figure stated by the applicants and should
have made inquiries about the number of 2177.





[12]
I agree with the submission by senior counsel for applicants that to
say that he made the admission inadvertently and that it was a bona
fide mistake, whilst he had information about the number of cattle
impounded prior to making the admission, is unreasonable and
unacceptable. Senior counsel for applicants correctly submitted that:


with
that information it is totally incredulous for Mr Ndishishi to say
that he had no reason to doubt and check the figure of 2177.’





[13]
Having regard to the above, I am not satisfied that a full and or
satisfactory and reasonable explanation was given as to why Mr
Ndishishi made the admission. Leave to withdraw the admission is
refused and the respondents are therefore bound by the admission by
Mr Ndishishi. In the light of my ruling, I do not deem it necessary
to consider the viva voce evidence adduced before me.





In
the result, I make the following order.





[1]
The respondents are ordered to pay the applicants N$3 245 690.00 for
the balance of 995 cattle impounded by respondents, with interest at
a rate of 20% from the 17 July 2010 to date of payment.





[2]
Respondents are ordered to pay the costs of the applicants as
follows:





2.1
for the hearing on 10-23 January 2011, costs to include one
instructing and two instructed counsel.


2.2
for the hearing on 8-17 June 2011, costs of one instructing and 1
instructed counsel.


2.3
for the hearing on 11-22 July 2011 costs of one instructing counsel.


2.4
for hearing on 12-13 March 2012 costs of one instructing counsel.


2.5
for the hearing on 17-18 September 2012 cost of one instructing
counsel.




































































_______________


NDAUENDAPO
J


Judge














APPEARANCE








FOR
THE APPLICANTS SC FRANK


A
DENK


P
KAUTA


OF
DR WEDER, KAUTA & HOVEKA











FOR
THE RESPONDENTS C MONSTERT


G
HINDA





INSTRUCTED
BY THE ATTORNEY GENERAL OFFICE









1An
application brought by the applicants interdicting the respondents
from disposing of the livestock of applicants