Court name
High Court Main Division
Case name
Kaaya v Schameerah Court Body Corporate
Media neutral citation
[2013] NAHCMD 297
Judge
Damaseb JP













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case no: A 57/2013



In the matter between:








GODWIN P KAAYA
.....................................................................................
APPELLANT



and



SCHAMEERAH COURT BODY
CORPORATE .......................................RESPONDENT













Neutral citation:
Kaaya v Schameerah Court Body Corporate (A 57/2013) [2013]
NAHCMD 297 (21October 2013)








Coram: DAMASEB, JP








Heard: 21 October
2013



Delivered: 21
October 2013 (ex tempore)








Flynote: Civil
appeal against judgment of magistrate’s court. Court during
argument, and based on parties’ concessions, amply set out its
reasons for orders to made ex tempore. Appeal partially successful.










ORDER





I make the following
order:









  1. The appeal succeeds in
    part and the judgment and order of the court a quo are hereby set
    aside, and replaced by the following order:




1.1. Claim 1 succeeds and
the plaintiff is awarded damages in the amount of N$7 500.00



1.2. Claim 2 is
dismissed.



1.3. The defendant is
liable to pay 50% of plaintiff’s taxed costs, on party and
party scale.









  1. The respondent shall be
    liable for 50% of appellant’s taxed costs on appeal, on party
    and party scale.











JUDGMENT










Damaseb, JP:








[1]
Having considered the record and the written and oral submissions of
the parties’ respective counsel, I am satisfied, for the
reasons
1
I amply set out during
argument, and based on the concessions made by counsel during such
argument, that the proper order the learned magistrate should have
made at the conclusion of the trial was: (i) to allow plaintiff’s
claim1, and (ii) to dismiss plaintiff’s claim 2, with a limited
order of costs in favour of the plaintiff (appellant on appeal).








Costs



[2] Counsel for the
respondent (defendant in the court below) on appeal submitted that
given the conclusion to which I have now come as regards the appeal,
the proper order, as regards costs, be that each party pays its own
costs.








[3] The genesis of the
present dispute is the respondent’s admitted failure to perform
its contractual obligations, which necessitated the appellant to
institute proceedings to seek legal redress. The defendant’s
opposition of plaintiff’s Claim 1 was, in my view,
unmeritorious. Although I am satisfied that plaintiff’s Claim 2
disclosed no cause of action recognised under our common law, the
admitted embarrassment caused to him by the defendant’s
admitted failure to comply with its contractual obligations is a
weighty factor in the exercise of my discretion as far as costs go.
Therefore, although plaintiff’s Claim 2 was doomed to fail from
the start, he was entitled to proceed to court to ventilate his legal
rights in so far as the defendant failed to do that which it was
contractually bound to. I am therefore satisfied that the appellant
is entitled to 50% of his costs, both a quo and on appeal.








[4] I make the following
order:









  1. The appeal succeeds in
    part and the judgment and order of the court a quo are hereby set
    aside, and replaced by the following order:











    1. Claim 1 succeeds and
      the plaintiff is awarded damages in the amount of N$7 500.00.



    2. Claim 2 is dismissed.



    3. The defendant is liable
      to pay 50% of plaintiff’s taxed costs, on party and party
      scale.




  1. The respondent shall be
    liable for 50% of appellant’s taxed costs on appeal, on party
    and party scale.
























----------------------------------



P T Damaseb



Judge-President























APPEARANCES








PLAINTIFF: Mr Kangueehi



Of Hengari, Kangueehi &
Kavendjii Inc.








DEFENDANT: Mr Andima



Of Van der Merwe-Greeff
Andima Inc.




1Which
reasons constitute the basis for the orders I make.