COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
FROM THE INSTANCE)
no: I 2909/2006
20 FEBRUARY 2015
the matter between:
TOURS CAR & CAMPING HIRE
citation: Dannecker v Leopard Tours Car & Camping Hire CC (I
2909/2006)  NAHCMD 30 (20 February 2015)
26 February 2014, 13 March 2014 and 4 August 2014
20 February 2015
Practice and Procedure – Absolution from the instance –
Test - Not whether the evidence led by the
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a court,
applying its ‘mind reasonably’ to such evidence, could or
might find for the plaintiff. If plaintiff had made out a case and
defendant’s defence peculiarly within his/her knowledge,
absolution not appropriate remedy - Court must, in adjudicating
absolution application, guard against defendant who seek to avoid
testifying under oath to explain uncomfortable questions.
The application for absolution from the instance is hereby dismissed
with costs, such costs to include the costs of one instructing and
one instructed counsel;
The matter is postponed to 3 March 2015 at 14h15 for status
hearing and for the allocation of dates for the continuation of
The plaintiff sues the defendants, jointly and severally, for the
repayment of moneys paid for damage caused to a vehicle he had hired
for use while on a safari in Namibia. He had booked the vehicle from
his homeland, Switzerland, on-line having taken an interest therein
based on a prospectus published on the internet by ‘Leopard
The prospectus, amongst others, promised to those intending to hire
its vehicles a:
quality and the best service at a reasonable price’ from ‘among
the leading companies in this line of business , and that we are your
first choice when it comes to spending a carefree holiday in southern
to many other providers, Leopard Tours does not pursue a confusing
extra-charge policy with hidden extras.’
then proceeds to offer in respect of the vehicles offered for hire:
COVER- all types of insurance: ‘CDW’, ‘TLW’,
‘ACDW’ and reduction of excess to a minimum-‘ACDW’
with approx. 95% cover’. (Emphasis is theirs).
The plaintiff alleged in his particulars of claim, inter
alia, that the first defendant, represented by the second and third
defendants; alternatively the second and third defendants personally
(as a partnership), represented to him through the on-line prospectus
that the tariff he had to pay for renting a car from the defendants
was a ‘super insurance cover’ ‘providing 95%
protection and a reduction of the excess to € 148.90’. He
claims that he relied on this representation when he entered into a
hire contract with the defendants (in the alternative) for the hire
of a 4 x 4 vehicle at a daily rate of € 148, 90. He further
alleges that when the defendants made the representation regarding
the insurance cover aforementioned, they knew it to be false as they
knew that an insurance cover was not in existence to cover the
plaintiff in the manner promised; in the alternative he alleges that
the representation was negligently made and that the first defendant
was at all relevant times not insured as a short-term insurer. He
alleges further that the representations were made to induce him to
enter into the vehicle rental agreement.
The plaintiff relies on misrepresentation because of the following
He took delivery of the vehicle and went
with it on safari. He was satisfied that the insurance promised
covered him fully for the damage the car sustained when it was
overturned by a flood which came down on the vehicle when he got
stuck in a river;
The defendants held him personally
liable for the damage to the car and demanded payment from him in the
amount of N$ 168 963-41 on the pretext that he was not covered by the
insurance because he drove the vehicle through a river while the
rental contract he signed stated he should not;
He established after the event that the
first defendant was not registered as an insurer under the Short-Term
insurance Act, 1998 (Act No. 4 of 1998) (the Act) and, therefore,
could not have offered any insurance to the plaintiff as represented
but falsely, alternatively negligently, did so.
When the defendants exacted payment of
the damages for the car, the defendants represented that he had
breached the terms of the rental contract when in reality no such
insurance cover existed. Had such representation not been made, he
would not have made the payment for the damage to the defendants.
In addition to the cause of action based on misrepresentation, the
plaintiff alleges that he discovered after paying for the damage to
the vehicle that the defendants repaired and renovated the vehicle at
a cost substantially lower than the N$ 168 963.44 claimed by the
defendants from and so paid by him.
The quintessence of the plaintiff's claim against the defendants is
that they were not entitled to the payment he made to them in respect
of damages occasioned to the hired vehicle. According to the
plaintiff, his understanding of the car rental agreement was that he
had full cover and that his having driven through a river, which at
the time was running at a depth of 20cm, was not excluded by the
contract. However it later transpired that the insurance cover did
not, according to the defendants, include the damage caused to the
car as a result of the alleged breach of the rental agreement which,
according to the defendants, prohibited him from driving it through
riverbeds or through water. The plaintiff alleges that he made the
payment to the defendants in the bona fide and reasonable belief that
he owed the amount demanded.
It was only in their plea to the plaintiff’s particulars that
the defendants allege that the alleged contracting party (first
defendant) had no insurance cover with a registered insurer but was
‘self-insured’. The plaintiff’s case is that if he
had known the full facts, he would not have paid for the damage to
the car as he was made to believe that he was fully indemnified in
respect of the damage by the insurance offered in the prospectus and
which he accepted. In the alternative the plaintiff relies on unjust
enrichment (condictio indebiti) of the defendants.
The defendant’s plea is manifold:
That the second and third defendants were misjoined as they did not
contract with the plaintiff;
That the plaintiff breached the terms of the rental agreement which
prohibited him from driving the rented vehicle through riverbeds or
That the fact that the first defendant was not a short-term insurer
is irrelevant as it did not demand monthly contributions and/or other
levies or contributions and excess payments from the plaintiff which
could have the effect that the defendants acted contrary to and/or in
violation of the Act;
That the claim in the alternative, for recovery of the amount on the
ground that the defendants were enriched, had prescribed.
The plaintiff testified personally and called one witness, Mr Lange
(Lange), to testify on his behalf. A great deal of the facts narrated
by the plaintiff in evidence relates to facts that are common cause
and contained in documentary evidence, i.e. a prospectus published
on-line by the defendants seeking customers from overseas intending
to go on safari in Namibia and desiring to rent cars for the purpose,
the email correspondence between the parties and the car rental
agreement which the plaintiff signed in Namibia before he took
possession of the car rented from the defendants.
In an on-line advertisement
the plaintiff came across representations offering ‘all-inclusive
rates’ in respect of vehicles for hire. Regarding insurance,
the advertisement made the following representation in so far as it
is relevant to what is now before me:
there is no insurance company in Namibia which offers a
“zero-excess”. It is thus not possible either to insure a
vehicle under a “0-excess” scheme without any excess’.
(The emphasis is theirs).
On 2 February 2004, the plaintiff sent an email to
‘firstname.lastname@example.org’ addressed ‘Dear Hausner
family’ and in reference to the offer of a vehicle for his
intended safari in Namibia, stated the following:
consider your offer as being very interesting and above all
“commented on fairly”. I will not hide from you the fact
that we hold two offers by competitors, the price of one of whom is
slightly below yours. The other one is so much cheaper…that
one can only suppose it to be unsound.’
After making reference to the specific price offered by Leopard
Tours, the plaintiff states the following in his email message to the
defendants as an indication of his minimum requirements:
price includes absolutely everything (the highest possible insurance
cover) with the lowest excess admissible in Namibia, no extra charges
A reply was received to the above email on the same date from
‘Leopard Tours (mailto:email@example.com)
penned by second defendant ‘Barbara Hausner’, writing on
behalf of ‘Leopard Tours Car and Camp Hire’. The
plaintiff apparently having accepted the rate offered by Leopard
Tours, the second defendant in that reply advises the plaintiff of
payment arrangements as follows:
order to make the booking a fixed one, we request payment of a
deposit of 10% of the rental fee, for which purpose we have set up an
account also in Switzerland’.
In a further email of 13 February 2004, the second defendant again
writing on behalf of ‘Leopard Tours Car and Camp Hire’,
confirmed plaintiff’s booking and gave two alternative account
numbers in Germany and Austria into which the plaintiff had to make
the deposit of 10%. The account beneficiary is given as ‘Hausner’
– the surname of second and third defendants.
On 25 February 2004, the plaintiff sent an email to ‘Hausner
family’ advising of a direct deposit into the Germany account
given by the second defendant.
The plaintiff took possession of the car on 1 November 2004. He did
so after signing the rental agreement which shows that Leopard Tours
was a close corporation. On the reverse side of the agreement, which
plaintiff testified under oath he did not read, the following
representation is made:
vehicle is insured in terms of the Motor Vehicle Insurance Act and
under an Insurance Policy…’
Having taken possession of the vehicle, the plaintiff took off on the
ill-fated safari. At some point on his journey he drove through a
riverbed and the vehicle got stuck. A flood then came and overturned
the vehicle. The second and third defendants came to recover the
vehicle and returned it to Windhoek. They at the time had the
plaintiff’s passport in their possession, presumably as
security for the return of the rented vehicle. The defendants
demanded payment of the cost of recovery and anticipated repairs of
the vehicle from the plaintiff, failing which, the evidence of the
plaintiff shows, it was made clear to him that his departure from
Namibia may not be possible. He then made arrangements with his bank
in Switzerland to pay the payment demanded.
The defendants justified their demand for payment from the plaintiff
on a clause in the rental agreement which, on the front page, stated
renter has got insurance cover with certain amounts of excess as
pointed out above in this contract and in paragraph 8 of standard
terms and conditions, renter is still liable for full damage to
the Leopard Tours vehicle if caused by negligence or road conditions
not suitable for the vehicle, or driving in riverbeds and through
water, or driving on any terrain or roads which have no road
numbers.’ (My underlining doe emphasis)
The plaintiff testified that he on reading the prospectus assumed
that Leopard Tours was a family business and that he did not gain the
impression that it had a separate legal identity from the second and
third defendants. He added that the email correspondence between him
and the second and third defendants made no mention of the fact that
a separate legal entity was involved. He also relies on the fact that
he made payment of the deposit into the account to the second and
third defendants and not that of a body corporate. The tax invoice
given to him also does not make any reference to a body corporate.
Lange who was called by the plaintiff also testified that he was
under the impression that Leopard Tours was not a body corporate.
The plaintiff also testified that when he and Lange met with the
third defendant they were made to understand that the plaintiff was
covered fully for any damage to the vehicle. The plaintiff also lays
great store for the allegation in support of the misrepresentation by
the fact that the second and third defendant throughout remained
silent about the fact, as they now allege, that they were
The plaintiff testified that he would not have concluded the car
rental agreement had he been informed of the true facts about the
kind of insurance the defendants allege he enjoyed and that they were
‘self-insured’, rather than being insured with an
At the end of the plaintiff’s case, the defendants brought an
application for absolution from the instance in terms of the old rule
40 (6) on the grounds:
By way of special plea, that the second and third defendants are
mis-joined because they are being sued in their personal capacities
while the plaintiff allegedly knowingly contracted with Leopard
Tours CC, a body corporate with a legal identity separate and
distinct from the second defendants’;
That the proved facts and the surrounding circumstances demonstrated
that the damage to the motor vehicle arose from a cause excluded by
the contract between the plaintiff and the first defendant;
That prescription operates against the plaintiff’s alternative
claim seeking repayment of the moneys paid in connection with the
vehicle as, according to the plaintiff, the defendants repaired the
damaged vehicle at a cost substantially less than the amount they
received from the plaintiff for its repair.
If I understand the defendant’s defence, which they say remains
unraveled by the plaintiff’s evidence viewed against the
backdrop of the pleadings, is as follows:
There is no prima facie evidence that second and third
defendants contracted in their personal capacities with the plaintiff
and that the prospectus on the strength of which he initiated the
contact for the rental of the car, represented ‘Leopard Tours
CC’ and provided its registration number.
The particulars of claim alleged that the plaintiff was induced by
the defendants representing that they had short-term insurance when,
in fact, they did not; whereas the plaintiff’s evidence
suggests that the reason he contracted with the defendants is that
they offered, and he accepted, an all-inclusive insurance (Volkasco).
The defendants argue that the contract which the plaintiff signed
made no mention of Volkasco or the first defendant being short-term
insured and that, consequently, the plaintiff could not have been
misrepresented to by something the defendants never said;
The contract which the plaintiff signed specifically told him that he
would be liable for all damages occasioned to the rented vehicle if
he drove through riverbeds or in water and that, in that respect, it
becomes a moot point whether or not the first defendant had any
insurance cover at all in respect of the rented vehicle.
The plaintiff’s evidence makes clear that he paid the
defendants because he feared not being allowed to leave Namibia if he
did not pay, yet in his pleadings the assertion is made that had he
known the fact that the defendants had no insurance cover for the
car, he would not have paid them. In amplification it is said, that
the plaintiff made arrangements to pay the defendants at a time that
he was fully aware that the defendants had self-insurance.
The plaintiff’s alternative claim for repayment because the
defendants repaired and renovated the car at substantially less cost
than what they exacted from him, is sought to be debunked on the
evidence of Lange that he knew not that the defendants in fact
repaired the vehicle at a lower cost. It is said that no evidence has
been led that prima facie supports the allegation that the
cost at which the vehicle was repaired is less than what the
plaintiff paid the defendant’s for its repair.
Mr Strydom on behalf of the plaintiff argued that the evidence so far
adduced on behalf of the plaintiff indicates that the plaintiff had
dealings with the second and third defendants in their personal
capacities. As for the misrepresentation, he relies on the
defendants’ failure to disclose the so-called self-insurance
for the inference that they intended to mislead potential customers,
including the plaintiff, about the nature of insurance they would
receive for renting a vehicle from the defendants. Counsel
argued that the prospectus and the surrounding circumstances amply
demonstrate that the defendants wanted potential customers to believe
they would be fully covered for any damage caused to the vehicle and
that the plaintiff so believing concluded the rental agreement and
would not have done so if he was made aware of the true facts.
test for absolution at end of plaintiff’s case
relevant test is not whether the evidence led by the plaintiff
established what would finally be required to be established, but
whether there is evidence upon which a court, applying its mind
reasonably to such evidence, could or might (not should or ought to)
find for the plaintiff. The
reasoning at this stage is to be distinguished from the reasoning
which the court applies at the end of the trial; which is: ‘Is
there evidence upon which a Court ought to give judgment in favour of
The following considerations are in my view relevant and find
application in the case before me:
Absolution at the end of plaintiff’s case ought only to be
granted in a very clear case where the plaintiff has not made out any
case at all, in fact and law;
The plaintiff is not to be lightly shut out where the defence relied
on by the defendant is peculiarly within the latter’s knowledge
while the plaintiff has made out a case calling for an answer (or
rebuttal) on oath;
trier of fact should be on the guard for a defendant who attempts to
invoke the absolution procedure to avoid coming into the witness box
to answer uncomfortable facts having a bearing on both credibility
and the weight of probabilities in the case;
the plaintiff’s evidence gives rise to more than one plausible
inference, anyone of which is in his or her favour in the sense of
supporting his or her cause of action and destructive of the version
of the defence, absolution is an inappropriate remedy;
most importantly, in adjudicating an application of absolution at the
end of plaintiff’s case, the trier of fact is bound to accept
as true the evidence led by and on behalf of the plaintiff, unless
the plaintiff’s evidence is incurably and inherently so
improbable and unsatisfactory as to be rejected out of hand.
law to the facts
The plaintiff was required to and made payment of the contract amount
for the car rental into a bank account belonging to the second and
third defendants. It becomes immediately apparent that not only was
the payment not made into an account of the entity referred to as
Leopard Tours and which purports to be registered in Namibia and
would be liable to payment of tax under the laws of Namibia, but it
was paid into a foreign account of persons (second and third
defendants) who have since stated in the pleadings before court that
they are not the contracting parties and, on that basis, seek
absolution from the instance at the end of plaintiff’s case.
The first defendant, as a Close Corporation, was proven by the
plaintiff to be in breach of the law governing close corporations in
material respects. The law imposes certain duties on those carrying
on business under a close corporation. It must, in transacting
business, refer to itself in printed material by the abbreviation
‘CC’. The abbreviation ‘CC’ (in capital
letters) must be subjoined to the English name the close corporation
uses. If the name of a close
corporation is used without the abbreviation ‘CC’ in
capital letters, a member involved in such transaction shall be
personally liable to a person who contracts with the close
corporation unaware that he or she contracted with the close
corporation. All notices,
advertisements, letters and invoices of a close corporation must have
the name of the close corporation and its registration number
mentioned in legible characters.
A failure to comply with these provisions renders a member criminally
The second and third defendants' application is undermined by the
following undisputed or common cause facts:
the deposit for the car rental was made into their personal account
held in Germany on 25 February 2004;
the tax invoice received by the plaintiff does not state that the
first defendant was a separate legal entity.
the advertisement of the first defendant on the on-line prospectus
did not use the abbreviation ‘CC’ in capital letters and
the registration number was not stated.
In all the email correspondence leading up to the rental agreement
the second and third defendant make no reference to the fact they
were acting on behalf of a body corporate and always did so in their
There is therefore evidence, quite apart from the plaintiff's own
evidence, that during conversations with them he formed the
impression that he was dealing with them in their personal
There is prima facie evidence therefore for drawing the inference
that the plaintiff thought he was contracting with the second and
third defendants as a family business. Besides, all these factors
provide a disincentive for the first and second defendants to enter
the witness box. But that is no good reason for seeking absolution.
Plaintiff’s case is two-fold at this stage of proceedings.
First, he maintains that the defendants had offered him, and he
accepted, full risk cover in respect of the rented car and that the
kind of risk that occurred was not excluded under such cover. He
bases that on the way in which the prospectus stated the insurance
and the discussion he and Lange, his only witness, say they had with
the third defendant when they picked up the vehicle. Their evidence
is that during that discussion, third defendant assured them that all
risks were covered.
In the view I take of the matter on the question of ‘self-insurance’
and the potential for misrepresentation, I do not find it necessary
to deal specifically with the conflicting evidence on whether or not
the plaintiff was made to understand that he was receiving full risk
The car rental agreement between the parties was predicated on the
understanding that the plaintiff enjoyed insurance cover for his use
of the car. It is not in dispute that the defendants represented to
him that he indeed enjoyed insurance. That much is clear from the
references from the prospectus.
It emerged during the course of plaintiff's case that the defendants
had no insurance policy with a short term insurer in respect of the
rented vehicle and that, as suggested by their counsel, in the plea
and during course of the trial, they were self-insured. Not only is
such a concept alien to me and requires explanation from them as part
of their case, but, it is common cause, that was (a) not conveyed to
the plaintiff when the agreement was being consummated, (b) its scope
and extent is not fully pleaded, and (c) is prima facie a breach of
the Act which prohibits the offering of any short term insurance by
any person who is not registered.
Section 2(1) of the Act states that:
person shall…carry on short-term insurance business in Namibia
unless such person is registered to carry on such business.’
The Act defines a short-term insurance business as:
transaction in connection with the business of assuming the
obligations of any insurer…under any class of short-term
insurance business specified in Schedule 1 ...’
The definitions section excludes from a short-term insurance business
the activities of an association of persons established for the
purpose of rendering aid to its members or their families and
registered under the Friendly Societies Act of 1956 including any
transaction connected with, and subsidiary to, any business other
than insurance or reinsurance which is so exempted by the Registrar
of Short-Term insurance. It appears to me that the first defendant,
if it offered insurance and wished to place itself beyond the reach
of the prohibition to conduct an insurance business on the basis of
being ‘self-insurance’, needed the registrar’s
determination that it was excluded. There is no evidence before me
that it is so excluded. The defendants on-line (a public forum)
represent themselves as among the best the best in the business and
publicly solicit custom for the rental of camping vehicles and as
part of that offer insurance which includes an excess. The plaintiff
was not their or the last client.
Therefore, even on the basis that it offered self-insurance (whatever
that means), there is prima facie evidence that it conducted an
unregistered short-term insurance business.
Self-insurance is not a common practice or a term of art; and since
its scope and effect is not clear from the defendant’s plea,
the defendants have an obligation, as argued by counsel for the
plaintiff, to disclose all material facts incidental to the type of
insurance they offered to the plaintiff. For if such thing does not
exist, how could the plaintiff breach its terms? One can’t
breach a non-existent obligation. The evidential burden rests on the
defendants to show there was an insurance of the nature alleged; its
terms and their acceptance by the plaintiff and resultant breach by
In addition, the plaintiff’s evidence, which on the authorities
I must accept as true, is that the defendants represented to him that
he was covered by insurance according to the applicable laws of
Namibia. A reasonable inference in his favour is that he assumed that
such insurance was compliant with the only applicable legislation,
the Short-Term Insurance Act, which in any event prohibits the
offering of insurance by an unregistered person. If that result is
reached, the representation was, as alleged, fraudulent or negligent.
A conclusion made all the more plausible because no self-insurance
was mentioned in the prospectus or in the discussions the plaintiff
had with the defendants before he took possession of the rented
I do not find any merit in the suggestion that the plaintiff could
not have been misled by the offer of insurance in the terms he
alleges because, on his own version, he did not look on the reverse
side of the rental agreement where that representation is made. The
state of mind of the person making a representation is just as
relevant as the state of mind of the representee.
Lord Herschell said in Derry
that to establish fraudulent misrepresentation, the plaintiff only
need establish absence of an honest belief in what the representor
states. A representor who pretends to have knowledge when in truth
she knows that she is ignorant can’t be said to have an honest
belief in a statement putting forth what she pretends to know.
It is apparent from the on-line prospectus and the correspondence
between the parties that the second and third defendants wanted the
plaintiff to believe that they were offering him ‘the best
possible insurance cover’ for the vehicle he was going to hire
and that the insurance they offer is the best in the business. They
knew he wanted the best possible insurance cover because he told them
so. On their version now, the best possible insurance cover which
they could offer was ‘self-insurance’. Yet nowhere in the
prospectus or the correspondence with the plaintiff do they make any
reference to it – a concept which only they seem to know and
which, at best, remains nebulous. They also knew that the plaintiff
was considering alternatives to their offer. Would a person seeking
the best possible insurance and who was not prepared to take the
cheapest because it seemed unsound
accept a form of insurance that is out of the ordinary and not
disclosed to him by the defendants. I think not!
The defendants clearly represented to the plaintiff that they were
offering him insurance in the conventional sense. The fact that he
did not look at the reverse side of the rental contract is neither
here nor there. The fact that such a statement appears in the rental
agreement is proof of the intent they acted with, which was to make
the plaintiff believe that they were offering him insurance under the
laws applicable in Namibia. As we know now, that was false.
The plaintiff has therefore made out a prima facie case for
the allegation that the defendants made a false representation about
the insurance they were offering him.
It does not assist the defendants to say, as suggested by their
counsel in argument that the Act was not applicable to the
self-insurance they offered because they were not in the business of
taking premiums. It is a contradiction in terms to refer to an
insurance contract which does not involve a premium. It has been
said that a premium:
the consideration required of the assured in return for which the
insurer undertakes his obligations under the contract of
fact, the Act defines ‘premium’ to mean ‘the
consideration given or to be given in return for an undertaking to
provide policy benefits and includes a deposit premium’. A
policy is in turn defined to as ‘a valid written short-term
insurance contract, irrespective of the form in which the rights and
obligations of the parties thereto are expressed or created, and
includes a guarantee policy’. A policy benefit is then defined
as ‘one or more sums of money, services, or other benefits’.
It has been held that:
contract of insurance, then, must be a contract for the payment of a
sum of money, or for some corresponding benefit such as the
rebuilding of a house or the repairing of a ship, to become due on
the happening of an [uncertain] event’.
If I find that the defendants did not have in place a valid insurance
cover for the benefit of the plaintiff in respect of the car rental
agreement, they would have misrepresented to the plaintiff. If there
was no insurance contract in place, on what basis could the plaintiff
be held liable for the damage occasioned to the vehicle? All these
are issues that can only be determined at the end of the whole case
and after the defendants had given their versions. I do not wish to
elaborate further on the many concerns I have about the defendants’
case given they have not yet testified.
If the fact of the defendants being self-insured was disclosed to the
plaintiff, it may well have been decisive of the question whether he
would have assumed the risk of renting the defendants’ vehicle
and his preparedness to pay the rental amount and the so-called
excess. In fact, in his
evidence, which I must accept as true, he said he would not have
contracted with the defendants if he knew that what was offered was
not insurance in the conventional sense but ‘self-insurance’.
This, the most important defence of the defendants, is peculiarly
within their knowledge. The defendants must answer to it.
Fraud if established unravels everything. If
it is proved that the defendants made a fraudulent misrepresentation
that unravels everything. The parties in such a circumstance must, as
far as possible, be placed in the position they would have been in
but for the misrepresentation.
It is trite that where the representee was not to blame for his or
her inability to restore wholly or at all, justice may require that
he not be made to restore.
Lange’s failure to support the allegation that the defendants
fixed the car at a cost lower than what they received from the
plaintiff in that case becomes irrelevant because they will in any
event have to establish just how much they spent on the repair of the
vehicle to justify any excess above which the plaintiff would not be
The inquiry always is, as the authors of Lawsa suggest: ‘How
much worse off is the representee financially as a result of the
I have come to the conclusion that the application for absolution
must fail on either ground advanced by the defendants. One should not
lose sight of the test to be applied at this stage ie not whether the
evidence led by the plaintiff establishes what would finally be
required to be established, but whether there is evidence upon which
a court, applying its ‘mind reasonably’ to such evidence,
could or might find for the plaintiff.
I may well come to a different conclusion at the end of the whole
case, but at this stage certain explanations are required from the
The prescription point was not pursued in argument by the defendants
and for that reason I do not deal with it.
In the premise, I make the following order:
The application for absolution from the instance is hereby dismissed
with costs, such costs to include the costs of one instructing and
one instructed counsel;
The matter is postponed to 3 March 2015 at 14h15 for status
hearing and for the allocation of dates for continuation of trial.
J A N STRYDOM
INSTRUCTIONS OF ANDREAS VAATZ & PARTNERS, WINDHOEK
C J MOUTON
INSTRUCTIONS OF MUELLER LEGAL PRACTITIONERS,
In light of what I say later on, this representation is significant.
Vide exhibits record, p. 12.
Labuschagne v Namib Allied Meat Company (Pty) Ltd (I 1-2009) 
NAHCMD 369 (1 December 2014), para ; Stier and Another v Hanke
2012 (1) NR 370 (SC).
Ruto Flour Mills (Pty) Ltd v Anderson (2) SA 307 (T) at 309E-F.
Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt)
1971 (4) SA 90 (RA) at 92.
Mazibuko v Santam Insurance Co Ltd & Another 1982 (3) SA 125 (A)
Antlatic Continental Assurance Co of SA v Vermaak 1973 (2) SA 335
(A) at 527.
Section 22(1) of the Close Corporations Act, No. 26 of 1988.
Ibid, section 23(1) (b).
This requires some explanation because income earned in Namibia is
taxable under Namibian law: Income Tax Act, 1982 (as amended).
See paras 2 and 10 of this judgment.
Item 7 of Schedule 1 includes under short-term insurance: ‘Effecting
and carrying out short-term insurance contact primarily designed to
cover the interest of any natural person against –
(b) loss or
damage to any motor vehicle used on land , including liability risks
arising from the use of such vehicle…and the risk pf
pecuniary loss to the person insured attributable to the incurring
of legal costs’.
See footnote 1 and para 10 of this judgment.
(1889) 14 A.C. 337 (HL) at 374, adopted in R v Meyers 1948 (1) SA
375(A) at 382. See also Hamman v Moolman 1968 (4) SA 340 (A) at
Principles of the Law of Contract
edt) Duban: Butterworths, p 259.
See para 11 of this judgment.
Lewis v Norwich Union Fire Insurance Co.  A.C. 509.
Prudential Insurance Company v Inland Revenue Commissioners  2
K.B. 658 at 665.
Compare Mutual & Federal Insurance Co Ltd v Oudshoom
Municipality  ALL SA 324(A), 1985 (1) SA 419 (A) 435.
Trotman v Edwick 1951 (1) SA 443(A); De Jager v Grunder 1964(1) SA
446(A); Ranger v Wykerd 1977(2) SA 976(A).
LAWSA, Vol. 5, para 134 at p.63 and authorities cited at footnote 7.
Lawsa supra and also see Bill Harvey’s Investment Trust (Pty)
Ltd v Oranjegezicht Citrus Estates (Pty) Ltd 1958 (1) SA 479(A) and
Scheepers v Handley 1960 (3) SA 54 (A).
Claude Neon Lights (SA) Ltd v Daniel 1979 (4) SA 403 at 409G-H;
Bidoli v Ellistron t/a Ellistron Truck & Plan 2002 NR 451 (HC)