REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
Case no: HC-MD-CIV-ACT-OTH-2018/01695
In the matter between:
THEODORE KLEINHANS PLAINTIFF
MINISTER OF SAFETY AND SECURITY DEFENDANT
Neutral citation: Kleinhans v Minister of Safety and Security (HC-MD-CIV-ACT-OTH-2018/01695)  NAHCMD 353 (12 August 2020)
Coram: TOMMASI J
Heard: 8, 9 11 & 12 June 2020.
Delivered: 12 August 2020
Having heard the evidence and arguments from the respective counsel for the plaintiff and defendant –
IT IS ORDERED THAT:
- The plaintiff’s claim is dismissed with costs.
- The matter is removed from the roll and regarded as finalized.
 The plaintiff herein claims damages suffered as a result of the defendant’s negligence in issuing a clearance certificate for a vehicle which the plaintiff bought on 17 March 2010 and for failing to inform the plaintiff on/or about 23 November 2010 that the vehicle was stolen. The parties to this matter provided the court with a stated case and therein agreed to the facts as set out below which are common cause.
 During March 2010 the plaintiff bought a Toyota Corolla from a certain Mr D M Nabot. The defendant issued a vehicle and owners identification certificate, commonly referred to a clearance certificate, on 17 March 2010. On the strength of this document the vehicle was registered in the name of the plaintiff.
 On 21 June 2014 the plaintiff sold the same vehicle to a certain Mr Mapove for the amount of N$43 000. On 24 July 2014 Mr Mapove presented the vehicle to the defendant for verification and for the issuance of a clearance certificate. It was then established that the vehicle had been reported stolen in Lusaka between 02 – 03 December 2009 i.e just before the plaintiff bought it from Mr Nabot. The vehicle was, according to, Deputy Commissioner Sam, only recorded as stolen on the Interpol database on 23 November 2010 i.e after plaintiff obtained a clearance certificate.
 The Defendant seized the motor vehicle and it remained in the defendant’s custody from July 2014 to date hereof.
 On 24 June 2016 Mr Mapove issued a summons against plaintiff claiming a refund of the purchase price. The defendant was joined as a defendant in that matter on an application brought by the plaintiff herein. The parties to that action agreed that judgment in favour of Mr Mapove against plaintiff would be granted for the refund of the purchase price i.e N$43 000 with interest and cost of suit. It was further agreed that the defendants in that case (plaintiff and defendant herein) would continue with the action between the two parties.
 The plaintiff then issued summons under the current case number.
 The Defendant raised special pleas in abatement i.e prescription and res judicata. The defendant however did not persist with these special pleas since this matter flows from the previous matter and it was agreed between the parties that this case would be a continuation of the previous case.
 The plaintiff avers that he was never informed that the vehicle was stolen and that the defendant in fact issued a clearance certificate for the vehicle. He used the vehicle for four years and inter alia crossed the border between Namibia and South Africa several times during this period. The vehicle was checked at each crossing of the border but the plaintiff was not informed that the vehicle was stolen despite the fact that the defendant had information to this effect since 23 November 2010.
 Firstly it is Plaintiff’s claim that defendant was negligent to issue the clearance certificate on 17 March 2010 and secondly by failing to inform him that the vehicle was stolen, having received information to this effect on 23 November 2010. Plaintiff claims that he suffered damages in the sum of N$43 000, which represents the payment made to Mr Mapove, interest on this amount and cost of the previous suit filed by Mr Mapove, as a result of defendant’s negligence. He further claims that the claim against Mr Nabot prescribed as a result of defendant’s failure to inform him timeously.
 The defendant’s defence is simply that, at the time the clearance certificate was issued on 17 March 2010, the defendant did not have the information that the vehicle was stolen. This information only came to defendant’s knowledge on 23 November 2010 i.e eight months after the clearance certificate was issued. Defendant further averred that despite the fact that the information was placed on the Interpol database on this date, the defendant became aware of this fact only on 24 July 2014 when a hit alarm was produced on the Interpol system.
 Defendant denies that it is indebted to plaintiff in the sum of N$43 0000 plus interest and costs. The defendant tendered the return of the vehicle to plaintiff at the beginning of the trial, however the plaintiff rejected this offer.
 The court must therefore determine whether:
(a) The defendant was negligent to issue the clearance certificate of the vehicle on 17 March 2010;
(b) The defendant was negligent not to inform the plaintiff that the vehicle was stolen when the alleged theft was registered in the Interpol data base on 23 November 2010;
(c) The information that the vehicle was stolen was only available to the defendant on 24 July 2014.
 It is evident that the defendant had access to information (Interpol data base) that the vehicle was stolen on 23 November 2010 and it cannot be said that it was only available to the defendant on 24 July 2014. Having concluded thus, the only two issues remaining are the issues stipulated in (a) and (b) above.
 Mr Grobler, counsel for the plaintiff submitted that the defendant ought to have informed the plaintiff that the vehicle was a stolen vehicle when it was placed on the Interpol data base. He submitted that the court may infer from the circumstances that there was a duty upon the defendant to disclose this information to the plaintiff once this came to hand. He referred this court to Van Straten NO and Another v Namibia Financial Institutions Supervisory Authority and Another 2016 (3) NR 747 (SC).
 Mr Khupe on behalf of the defendant submitted that there could be no negligence in the issuance of the clearance certificate on 17 March 2010 because the defendant did not have the information that the vehicle was stolen at the time. He further submitted that the defendant could have claimed damages from Mr Nabot who sold him the vehicle as that claim has not yet prescribed. He argued that the plaintiff failed to discharge the onus to prove that the defendant had the legal duty to inform the plaintiff that the vehicle was stolen. He pointed out that the only opportunity the defendant had to utilize the information was when the vehicle was presented for a second clearance certificate in July 2014.
 The plaintiff’s claim is a delictual claim for pure economic loss premised on the negligence of the defendant i.e it issued a clearance certificate when the defendant ought not to have done so; and the defendant had a duty to disclose information to plaintiff when it was made known to them but negligently omitted to do so.
 The Motor Vehicle Theft Act 12 of 1999 defines a clearance certificate as a certificate issued by the police confirming the lawful owner of a specific motor vehicle. Section 6 (3) provides as follow:
‘Every person who purchases a motor vehicle shall-
(a) in the case of a motor vehicle purchased in Namibia, if a clearance certificate has not been produced to him or her at the time of such purchase, present the motor vehicle, together with the document of identification or the declaration or certificate contemplated in subsections (1) and (2), respectively, to a member of the police within three days of the date of such purchase for verification by the police; or
(b) in the case of a motor vehicle purchased outside Namibia and imported into Namibia-
(i) produce such document of identification or such declaration or certificate to the Controller of Customs and Excise, as defined in section 1 of the Customs and Excise Act, 1998 (Act 20 of 1998), at the port of entry into Namibia for endorsement by such Controller; and
(ii) within three days of the date of such importation, present the motor vehicle, together with such endorsed document of identification or declaration or certificate, to a member of the police for verification by the police, and, if so verified, the police shall issue a clearance certificate to such person.’
 On 17 March 2010 when the police officers issued the clearance certificate they acted in accordance with the above section. It was not the plaintiff’s case that defendant failed to properly consider the documentation which was presented to the officials of the defendant. Once the requirements had been met, the defendant was mandated to issue a clearance certificate. Furthermore the clearance certificate issued on 17 March 2010 reads as follow:
‘I certify that the motor vehicle/engine has not been reported stolen to the Namibian Police.’
 This certificate correctly reflected the status of the vehicle at the time. There was no report that the vehicle was stolen. The officers properly discharged their mandated function in a reasonable manner and it cannot be said that the official in the employ of the defendant acted negligently when he/she issued the certificate.
 The second leg of the plaintiff’s claim of negligence is that the police ought to have informed the plaintiff that the vehicle is stolen when they received the information i.e after 23 November 2010 but omitted to do so. It appears that the plaintiff is of the view that the defendant ought to have determined that the vehicle is stolen during the four years he had the vehicle in his possession and had crossed the Namibian Border to enter into South Africa and re-entered Namibia from South Africa.
 The defendant is required to act in accordance with legislation when performing its functions. The defendant, in terms of the Vehicle Theft Act, must issue a clearance certificate if the requisite documents are produced and the vehicle is presented for verification and may refuse to issue an clearance certificate in terms of section 6 (3)A if the vehicle is found to be stolen. Section 8 of the Vehicle Theft Act read with the provision of the Criminal Procedure Act, 51 of 1977 makes provision for search and seizure of vehicles if the police/peace officer has reasonable grounds for believing that any person is driving or is in possession or control of a motor vehicle which has been stolen. These provisions provide the framework for the defendants to “inform” the owner/possessor of the fact that the vehicle is stolen.
 The evidence shows that the vehicle was presented for verification on two occasions and when the information was available, the defendant refused to issue the clearance certificate. There was however no evidence adduced by the plaintiff that the police officers at the border or elsewhere within the country conducted a search to determine whether the vehicle was stolen. The plaintiff in fact conceded that the officers at the Namibian border generally do not check the vehicle to determine whether it is stolen. In the absence of evidence that such a search was conducted it cannot be said that there had been an opportunity for defendant to “inform” the plaintiff that the vehicle was stolen but negligently failed to do so.
 It was suggested by Mr Grobler that the defendant ought to have checked whether the vehicle which was reported stolen in Lusaka, did not somehow made its way to Namibia. Mr Grobler relies on the statement of the Head of Interpol, Namibia, Mr Immanuel Sam as support for his argument. The following can be gleaned from his statement: the Crime Information Division of Windhoek Police Station forwarded a clearance document to Interpol, National Central Bureau Division on 17 March 2010 for the concerned vehicle. A search was conducted on the data base on stolen vehicles. The search revealed that no stolen vehicle was registered on the data base which corresponded with the concerned vehicle. The same procedure was followed in July 2014 and a positive hit was generated on the Electronic Automated Search Facility. A secondary check at the National Central Bureau revealed that the vehicle was stolen in Lusaka during 02-03 December 2009. The Zambian Police only inserted these details on the Interpol data base on 23 November 2010.
 The evidence once again shows that the defendant uses the data base to search for stolen vehicle upon an application for a clearance certificate. There is no evidence that this data base is used by the defendant for any other purpose.
 In Van Straten NO and Another v Namibia Financial Institutions Supervisory Authority and Another Smuts JA (Shivute CJ and Hoff AJA concurring), at page 769, para 84 and 85 stated the following:
‘It has been emphasised that the starting point in the law of delict is that negligent conduct giving rise to loss is not actionable unless it is also wrongful. Aquilian liability provides an exception to this rule. Liability for the loss arises if the act or omission of the defendant had been wrongful and negligent and caused the loss in question. Where the negligent conduct manifests itself in a positive act which causes physical harm to the person or damage to property of another, the culpable conduct is prima facie wrongful.
With negligent omissions causing pure economic loss, the position is different. Wrongfulness is not presumed and would depend upon the existence of a duty not to act negligently. Whether such a duty exists is a matter of judicial determination according to criteria of public and legal policy consistent with the norms articulated in the Namibian Constitution. Stated differently, whether the legal convictions of the community in the light of constitutional norms require that the omission to act be regarded as wrongful.’
 This court is also guided by what the case of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) where Nugent J, at page 411, para 12, stated the following;
‘Negligence, as it is understood in our law, is not inherently unlawful - it is unlawful, and thus actionable, only if it occurs in circumstances that the law recognises as making it unlawful. Where the negligence manifests itself in a positive act that causes physical harm it is presumed to be unlawful, but that is not so in the case of a negligent omission. A negligent omission is unlawful only if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm.’
 It is indeed so that the defendant had the information that the vehicle was stolen. The conduct complained of is that the defendant did not communicate this information to the plaintiff timeously. The evidence adduced suggests that the defendant’s agency (NCB) uses the information stored on its data base to track stolen vehicles at the point when there is an application for a clearance certificate. Save for this process, there is no evidence that the information contained on the Interpol Data Base is used or ought to have been used to communicate any change in the status of vehicles that has already been cleared. The defendant has a general duty to investigate stolen vehicles. In this instance there are no facts placed before this court upon which it may infer that defendant had a duty, upon receipt of the information, to investigate the reports from member countries and thereafter notify owners/possessors of vehicles locally that the vehicles are stolen.
 The plaintiff thus failed to establish on a balance of probability that the defendant had a duty to act but failed to do so or that the general omission to investigate vehicle theft which is reported from other countries is sufficient to give rise to a legal duty.
 In the premises the following order is made:
- The plaintiff’s claim is dismissed with costs.
- The matter is removed from the roll and regarded as finalized.
M A TOMMASI
PLAINTIFF: Z Grobler
Of Grobler & Co
DEFENDANT: M Khupe
Of the Office of the Government Attorney