Court name
High Court Main Division
Case number
I 1285/2015
Case name
Nghimtina v Nghimtina
Media neutral citation
[2020] NAHCMD 304

Nghimtina v Nghimtina (I 1285/2015) [2020] NAHCMD 304 (21 July 2020);

Case summary:

Civil Procedure – Noting of an appeal to the High Court of a decision of a receiver as agreed to between the parties in a settlement agreement – High Court Act and Rules not providing for such an appeal – Court not having jurisdiction to hear an appeal agreed to between the parties – Parties, by agreement, cannot confer such jurisdiction on this Court – Clause conferring such jurisdiction is an ineffective appellate provision which cannot be given effect to.

Headnote and holding:

This matter relates to an appeal noted by the appellant (defendant in the main action) against an entire ruling made by a receiver dealing with the proprietary rights of the parties pursuant to their divorce.

The parties were married to each other in 2006 out of community of property. It appears from the pleadings filed that the parties were married out of community of property with the accrual system. The respondent (plaintiff in the main action) instituted divorce proceedings in 2015 and the divorce was finalised (through a settlement agreement) between the parties during 2016. The parties in respect of the proprietary claims, by agreement, appointed Adv Ramon Maasdorp (the receiver) to calculate their accruals if found to be due in terms of the parties’ antenuptial contract.

In terms of clause 8.6 of the settlement agreement the parties agreed that any of the parties shall have the right to appeal the decision of the receiver by filing a notice of appeal to the managing judge within 10 days from his decision.

The receiver, in accordance with the agreement, apparently dealt with the matter and found against the appellant. The appellant, relying on para 8.6 of the settlement agreement filed an appeal in this Court against the ruling and decision by the receiver. The Court then directed the parties to file written submissions to answer the following question – in respect of which section and/or rule the appellant brings the appeal before this Court. 

Held that the High Court Rules as well as the High Court Act currently does not make provision for an appeal to a managing judge against a decision of a receiver appointed by agreement between the parties.

Held that this Court does not have jurisdiction to hear an appeal agreed to between the parties and that parties, by agreement, cannot confer such jurisdiction on this Court. The clause conferring such jurisdiction is therefore an ineffective appellate provision which cannot be given effect to.

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

RULING

 

Case No.: I 1285/2015

 

In the matter between:

 

JOSEPHINE TUNOMUKWATHI NGHIMTINA (BORN KAMPOLO       APPELLANT/

               DEFENDANT     

                             

and

 

ERIKKI NGHIMTINA                                                                                 RESPONDENT/

                                         PLAINTIFF

 

Neutral Citation: Nghimtina v Nghimtina (I 1285-2015) [2020] NAHCMD 304 (21 July 2020)

 

Coram:           PRINSLOO J

Heard:            29 June 2020

Delivered:     21 July 2020

Reasons:      24 July 2020

 


ORDER


 

1.         The appeal is hereby struck from the roll with costs.

 


JUDGMENT


 

PRINSLOO, J

 

Introduction and background

 

[1]        The matter before me relates to an appeal noted by the appellant (defendant in the main action) against an entire ruling made by a receiver dealing with the proprietary rights of the parties pursuant to their divorce.

 

[2]        To put the parties’ submissions and the Court’s ruling in context, it is necessary for the Court to discuss what brought about this appeal.

 

[3]        The parties[1] were married to each other in 2006 out of community of property. It appears from the pleadings filed that the parties were married out of community of property with the accrual system. The respondent (plaintiff in the main action) instituted divorce proceedings in 2015 and the divorce was finalised (through a settlement agreement) between the parties during 2016.

 

[4]        The parties in respect of the proprietary claims, by agreement, appointed Adv Ramon Maasdorp (the receiver) to calculate their accruals if found to be due in terms of the parties’ antenuptial contract.

 

[5]        In terms of clause 8 of the settlement agreement the parties agreed to the following:

 

‘8.        That Advocate Ramon Maasdorp (or such other person as agreed to between the parties in writing should he be unwilling to act in such capacity) be appointed as receiver to calculate the accrual due and for that purposes:

            8.1       . . .;

            8.2       . . .;

            8.3       . . .;

            8.4       . . .;

            8.5       . . .;

            8.6       That any of the parties shall have the right to appeal the decision of the receiver by filing a notice of appeal to the managing judge within 10 days from his decision.’

 

[6]        The receiver, in accordance with the agreement, apparently dealt with the matter and found against the appellant. I say ‘apparently’ and this will become clearer during the course of the judgment.

 

[7]        The appellant, relying on para 8.6 of the settlement agreement filed an appeal in this Court on 10 March 2020 against the ruling and decision by the receiver, Adv Maasdorp handed down on 26 February 2020.

 

[8]        The matter was set down for status hearing on 26 March 2020 and 24 April 2020 however due to the nation lockdown because of the COVID – 19 virus the matter could not be heard on those dates and it was then postponed to 14 May 2020. When the matter appeared on 14 May 2020 the Court directed the parties to file written submissions to answer the following question – in respect of which section and/or rule the appellant brings the appeal before this Court.

 

 

Parties’ submissions

 

[9]        As per the Revised Roadmap for the High Court dated 4 May 2020 the parties filed an agreement to abide by their papers, there was therefore no oral arguments advanced and the judgment is based on the written submissions.

 

Appellant

 

[10]      Mr Jones, counsel for the appellant, in his written submission conceded that the appeal was not launched in terms of any specific Rule of Court. He further submits that the case has not been finalised yet and as such is still subject to the process of case management as provided for by the Rules of Court.

 

[11]      Mr Jones submits that the making of the settlement agreement an order of court, the Court sanctioned and authorised the process provided for in clause 8, including clause 8.6. The Court then, as a result and as entitled to do so, determined its process and that ‘the rules are for the court not the court for the rules’.  

 

[12]      Counsel submits that as a result of the agreement the appellant had a right of appeal to this Court and that the issue forming the subject of the appeal is a crisp legal question which can be dealt with easily by the Court as proposed and agreed to by the parties in the settlement agreement.

 

[13]      Counsel conceded that he could not find any authority which specifically deals with the question of whether or not parties may agree to appeal a decision by a receiver appointed in terms of a settlement agreement to the High Court. He also submits that he was unable to find any authority that would prohibit this Court from dealing with the appeal in the circumstances in terms of which it is lodged.

 

[14]      Mr Jones submits that the procedure of appointing a receiver and the receiver’s powers can be akin to arbitration proceedings in that the parties, by agreement, appointed an arbitrator to deal with the proprietary issues between them and the Court sanctioned this approach. If it is recognised that the process and the subsequent ruling by the receiver is similar to an arbitration and an arbitration award, then the procedures provided for in the Arbitration Act[2] are not far-fetched from what the parties had agreed to and now seek to enforce and the said Act can apply to the current issue brought before this Court. Counsel referred the Court to sec 33 of the Act which provides for a review mechanism of arbitration awards and submits that appeals and reviews all form part of the same family, the difference being that a review incorporates evidence not contained in the official record and an appeal being limited to the four corners of the record.

 

Respondent

 

[15]      Mr Namandje, counsel for the respondent, on the other hand submits and contends that the decision of the receiver is final as the High Court, with due regards to the provisions of Article 80 of the Namibian Constitution, sec 2 of the High Court Act[3] and Rules 115, 116 and 119 of the Rules of Court, does not have appellate jurisdiction over the matter. The parties, although agreed upon, cannot don the Court with appellate jurisdiction it does not have in law. 

 

[16]      Mr Namandje submits that Article 80(3) of the Namibian Constitution provides that the jurisdiction of the High Court with regard to appeals shall be determined by an Act of Parliament and that it therefor follows from the above that if it is to be determined whether or not the High Court can exercise appellate competency and jurisdiction over the matter it should be found in the relevant Act of Parliament where such jurisdiction should be found. If there is no such Act of Parliament than that is the end of the matter.

 

[17]      Counsel also referred the Court to sec 2 of the High Act dealing with the jurisdiction of the High Court in general. The said section provides that ‘the High Court shall have jurisdiction to hear and to determine all matters which may be conferred or imposed upon it by this Act or the Namibian Constitution or any other law’. In addition counsel also referred to sec 16 which provides that:

 

            ‘The High Court shall have jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within Namibia and all other matters of which it may according to law take cognisance, and shall, in addition to any powers of jurisdiction which may be vested in it by law have power –

  1. To hear and determine appeals from all lower courts in Namibia;

 

[18]      Counsel submits that as contemplated in Article 80 of the Namibian Constitution, the High Court Act (Act of Parliament) makes provision for the appellate competency and jurisdiction of the High Court. There is therefore no provisions in the High Court Act on the basis on which the current appeal, on a matter taken out of the main proceedings in Court by the parties to the receiver, could be competently heard and determined as an appeal by this Court .

 

[19]      Mr Namandje further referred the Court to Rule 116 which makes provision for appeals from lower courts as well as Rule 119 which deals with appeals from any legislation. Rule 119(1) states that:

 

            ‘Notice of an appeal to the court from the decision of a statutory body must, unless otherwise provided in an applicable law, be delivered within 20 days after the date of such decision, but where the reasons for the decision of the body are given on a later date the notice may be delivered within 20 days of that later date.’

 

[20]      He placed emphasis on the words ‘statutory body’ and submits that an appeal created by Rule 119 is one which dons the High court with an appellate jurisdiction against the decision of a certain statutory body created by a particular Act of Parliament as contemplated in Article 80(3) of the Namibian Constitution. He argues that there is currently no statutory provisions in Namibia in terms whereof this Court can hear and determine the appellants appeal against the decision of a receiver. The appeal to this Court, although professedly agreed upon by the parties in the settlement agreement, is a complete nullity.  

 

[21]      Mr Jones however on the contrary argues that ss 2 and 16 does not limit the Court’s jurisdiction to hear matters as the starting point is for a Court’s inherent jurisdiction to determine its own process. He further argued that the mere fact that the Rules, High Court Act or the Namibian Constitution does not grant the Court specific appeal jurisdiction to deal with this specific appeal, despite the Court having sanctioned its own procedure, and the rules being wide to accommodate the procedure, does not lead to the conclusion that this Court’s jurisdiction is limited  or that the Court does not have jurisdiction to adopt its own procedure for hearing and disposing off the appeal after having pronounced itself on the issue.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           

[22]      Mr Namandje further argues that the agreement by the parties as per clause 8.6, which was probably based on a wrong advice, does not bind the Court as the Court is not bound by an agreement that is in conflict with the law especially when it comes to a question of an appellate jurisdiction.

 

[23]      Mr Namandje submitted that this Court cannot assume appellate jurisdiction merely because of its value judgment or because it thinks that it will not be fair or equitable on the appellant. He referred to Shikale NO v Universal Distributors of Nevada South Africa (Pty) Ltd and Others[4] where it was held that:

 

            ‘[46]     What the learned judge a quo appears to attempt to do in the above concluding part of her judgment is to apply equitable considerations as against the clear evidence to the contrary. She seems not to have been aware that this was impermissible for a court to do. In Moser v Milton 1945 AD 517 Trindall JA said at 527 – 528:

 

                        “In our system of law, KOTZE, JA, pointed out in Weinerlein’s case (at p. 295), equity does not prevail as distinct from and opposed to the law; and equitable considerations do not entitle the Court to enforce a contract which a statutory enactment declares to be of no force or effect . . . .” (See Weinerleinv Goch Buildings Ltd 1925 AD 282 at 295.].’ 

 

[24]      Counsel therefore concluded that the Court must stuck the appeal from the roll with costs.

 

Discussion of the position in our law

 

[25]      As enunciated above, the appellant noted an appeal in this court against an entire ruling made by Adv Maasdorp, appointed as a receiver in terms of a settlement agreement that was made an order of court, to deal with the proprietary rights of the parties pursuant to their divorce. The appellant not being happy with the said ruling of the receiver noted an appeal in terms of clause 8.6 of the settlement agreement, which provided that the parties shall have the right to appeal the decision of the receiver by filing a notice of appeal to the managing judge within 10 days from his decision.

 

[26]      The Court, after having cite of the notice of appeal raised the following question for determination: In respect of which section and/or rule the appellant brings the appeal before this Court. It is with regard to this question that this Court makes the following findings.  

 

[27]      At the onset I must say that the question raised by this Court is one which has not been specifically dealt with in our jurisdiction. Moreover, there is no authority in the matrimonial context regarding the question of whether a receiver’s decision can be appealed against in the format that the appellant currently brings her appeal before this Court.

 

[28]      As both counsel rightly points out, the High Court Rules as well as the High Court Act currently does not make provision for an appeal to a managing judge against a decision of a receiver appointed by agreement between the parties.

 

[29]      Mr Jones, as alluded to above, submits that the case has not been finalised yet and as such is still subject to the process of case management as provided for by the Rules of Court. I however disagree with counsel in this regard for the simple reason that the bonds of marriage were dissolved between the parties and the parties signed a settlement agreement incorporating ancillary issues which agreement was made an order of court and in effect finalised the matter and removed it from the roll. Although the order does not contain the words ‘finalized and removed from the roll’ I believe it was not the intention of the managing judge to have the matter on the roll indefinitely as all the issues between the parties were resolved. In this regard I refer to the case of Brookstein v Brookstein[5] were it was held as follows:

 

            ‘[11]     It is necessary for the determination of the first issue to examine the legal consequences of a settlement agreement being made an order of court. At the stage when the respondent instituted the delictual action against the appellant, the parties’ marriage had been dissolved in terms of the court order which incorporated their settlement agreement. The effect of the settlement agreement being made an order of court ‘is to change the status of the rights and obligations between the parties. Save for litigation that may be consequent upon the nature of the particular order, the order brings finality to the lis between the parties; the lis becomes res judicata (literally, “a matter judged”). It changes the terms of a settlement agreement to an enforceable court order….’1

 

[30]      Even though the Brookstein matter relates to an appeal of a decision of arbitrators relating to a delictual claim that was referred to arbitration arising as a result of the proprietary consequences, the portion referred to above is important in the sense that a settlement agreement which is made an order of court brings finality to the issues between the parties, which as a result finalises the matter.

 

[31]      Although it was argued by Mr Jones that the Court in making the settlement agreement an order of court sanctioned and authorised the process provided for in clause 8.6 and therefore determined its process, the Court is of the view that an appeal that is brought before this Court in the current manner is not tenable. This is because the Rules do not provide for the manner and procedure in terms of which this matter can be adjudicated upon by this Court.

 

[32]      Earlier on in the judgment I indicated that the receiver apparently dealt with the matter and found against the appellant.  The reason why I said ‘apparently’ is because the record of proceedings and the ruling by the receiver relating to the issue at hand has not been filed. Even if it were to be argued and accepted that this Court has jurisdiction to hear the appeal, which the Court is of the view that it doesn’t have, this this Court cannot adjudicate the matter as there is nothing filed on which to determine whether the receiver erred in law. 

 

[33]      The only closest authority that this Court could find that touched on the issue currently before this Court is the case of Wunderatzke v The Motor Vehicle Accident Fund of Namibia.[6] The applicant in that matter sustained injuries in a motor vehicle accident. He thereafter instituted an action against the Motor Vehicle Accident Fund (the Fund), cited as the first respondent in the application. That action eventually settled and the settlement agreement was made an order of court.  In terms of the settlement, the Fund agreed to pay the applicant certain amounts and gave an undertaking in respect of future medical costs.  The respondents’ claim for future loss of earnings and loss of earning capacity could not be agreed upon.  In terms of the settlement agreement, the parties agreed that this issue would be submitted to an expert for determination. The expert (cited as the second respondent) subsequently made a determination for loss of earning capacity. The settlement agreement provided that neither party would be entitled to review or appeal the determination except on an error of law, in which event the dissatisfied party could appeal on that point of law to the High Court.

 

[34]      The applicant was however unhappy with the determination made by the expert and sought to note an appeal to the High Court in terms of the settlement agreement.  That ‘appeal’ was opposed by the Fund and the matter was allocated to a judge in case management. But when the matter proceeded to case management, Miller, AJ questioned whether it was possible to appeal against the determination to the High Court and questioned whether this court had jurisdiction to entertain such an appeal by agreement between the parties. The applicant was subsequently advised that this court would not have jurisdiction to hear such an appeal. The matter was removed from the roll by agreement.

 

[35]      Smuts, J as he then was agreed with the approach followed by Miller, AJ that the parties could not by agreement confer jurisdiction on this Court which it would not otherwise have, which approach was also accepted by counsel for the applicant.

 

[36]      In the current matter before me it would appear that when the parties were preparing the settlement agreement they were under the mistaken belief that this Court would have jurisdiction to hear the appeal. This appears from clause 8.6 of the agreement. Having regard to the above authority and what was said by Miller AJ and confirmed by Smuts J I fully associate myself with the decision made therein in that that this Court does not have jurisdiction to hear such an appeal agreed to between the parties and that parties, by agreement, cannot confer such jurisdiction on this Court. Clause 8.6 of the settlement agreement is therefore an ineffective appellate provision which cannot be given effect to.

 

[37]      The lack of appellate jurisdiction should however not mean that the applicant does not have a remedy in law. Although it does, the current manner in which the appeal is brought is not the correct modus. The remedy is not found in an appeal made to this Court in the current manner as agreed between the parties. I therefore hold that the appeal should be struck from the roll.

 

Costs

 

[38]      The issue of costs is one which is in the discretion of the Court. However, the general rule is that the successful party should be awarded costs, unless good reasons exist to justify a departure therefrom. There is no such good or any other reasons placed before me to depart from the general rule. Therefore, the successful party, in this instance, the respondent is entitled to costs.

 

Order

 

[39]      As a result of the above discussion my order is as follows:

            1.         The appeal is hereby struck from the roll with costs.

 

 

____________________

J S Prinsloo

Judge

 

 

APPEARANCES

 

APPELLANT:                                                JP Jones assisted by J Van Zyl

                          Instructed by Etzold-Duvenhage

                                                                      Windhoek

 

DEFENDANT:                                              S Namandje                                                 

                                                                     Of Sisa Namandje & Co Inc.

                                                                     Windhoek

 

 

 


[1] Appellant was the defendant in the main action and the respondent was the plaintiff.

[2] 42 of 1965.

[3] 16 of 1990.

[4] 2015 (4) NR 1065 (SC).

[5] (20808/14) [2016] ZASCA 40 (24 March 2016).

[6] (A 312/2013) [2013] NAHCMD 295 (18 October 2013).