Court name
High Court Main Division
Title

Penderis v De Klerk () [2020] NAHCMD 392 (28 August 2020);

Media neutral citation
[2020] NAHCMD 392
Case summary:

Urgent application – Requirements of Rule 73 (4) – Premise in urgent applications that allegations of fact made by the applicant are assumed to be correct reiterated.

Administration of Estates Act – Requirements of section 53 (a) – Consequences of non-compliance therewith by Executor – Such Executor to be removed by the Court in terms of section 54 of the Act.

Meaning of undesirable in section 53 (a) discussed. Appointment of Executors – Such powers vest exclusively in the Master and not the court – This court only has powers to remove Executors in terms of section 54.

Fugitive from Justice – What constitutes a fugitive – Requirements to be met for one to be declared a fugitive from justice – Consequences of being declared a fugitive from justice – No locus standi in judicio to either initiate or oppose proceedings – Effect thereof – The matter is to be dealt with on the basis of the papers filed by the applicants.

Headnote and holding:

The 1st respondent, who is a director of DHC, was appointed as an executor for the estates; Estate Late Aaron Mushimba, 1424/2014; Estate Late Danilo Fernando Reviglio, 1617/2019; and Estate Late Adrienne Betty Penderis, 1743/2019. In or about November 2019, the Namibian public was consumed by certain revelations relating to the fishing industry in Namibia. The allegations which suggest impropriety, including alleged acts of bribery and corruption, money laundering and other alleged crimes came to be dubbed as the fishrot scandal. The 1st respondent was alleged to have been involved in the so-called fishrot scandal.

In January 2020, the 1st respondent, at the height of the allegations, left Namibia and has been out of the Republic since then. His whereabouts are not disclosed and even the court is in the dark as to where exactly he is nor are the reasons why he left disclosed. He left in his wake with the estates referred to, uncompleted.

The applicants allege that because of the 1st respondent’s absence from Namibia, and his inability to be hands-on in the finalisation of the estates, he should be removed as an executor. They state that they believe that the 1st respondent left Namibia because of the ‘fishrot scandal’ and has no intention to return to Namibia any time soon.

The applicants allege further that there are suspicious activities that they have established which raise eyebrows and suggest some impropriety on the part of the 1st respondent.

The 1st respondent maintains that he is co-operating with the local authorities and denies that his absence is because he is a fugitive from justice as alleged. He maintains that he has not been charged and is not a fugitive therefor.

He states that he has appointed agents to finalise the outstanding parts of the estates in question.

The applicants seek the removal of the 1st respondent on the grounds that it is ‘undesirable’ for him to continue in the office of executor, particularly in the light of his absence from the Republic and the allegations of impropriety and conflict of interest levelled against him. The applicants brought this application on an urgent basis and same was opposed.

Held: the approach to urgent applications is that the court, in dealing with a matter alleged to be urgent, must proceed from the premise that the allegations of fact made by the applicant in the matter are issued to be correct.

Held that: It is accordingly clear that an executor may not leave the jurisdiction for a period in the excess of 60 days without first having obtained permission from the Master and in writing to be so absent. Failure to so comply is a serious violation of the provisions of the Act.

Held further that: There is no provision in the law that allows the Master to grant ex post facto permission to executors to recognise their absence from the Republic. That permission, is, properly regarded, pro non scripto.

Held: the 1st respondent has been absent from the Republic for a period of six months and without authority in terms of the law. This renders it ‘undesirable’ for the 1st respondent to continue occupying the office of executor.

Held further: that it is not desirable that the estates have remained unfinished for such a long period of time and the wishes of the beneficiaries cannot be completely ignored.

Held that: The absence from the Republic, unexplained as it is and also being detrimental to the beneficiaries, is sufficient basis to relieve the 1st respondent from his duties as executor of the estates in question in terms of section 54 of the Administration of Estates Act.

Held further that: this court is ill equipped in assessing the fitness and propriety of a person being appointed as Executor. That an office properly placed and resourced to perform that task, is that of the Master.

Held: that for a person to be declared a fugitive, it must be shown to the satisfaction of the court on a balance of probabilities that the said person has deliberately left the jurisdiction and placed him or herself beyond its reach in order to avoid or evade any legal action or proceedings that might be instituted using the State’s coercive powers.

Held further that: there must thus be a causal link between the flight or disappearance and the legal action or legal or criminal processes of the State.

Held that: it is not necessary that some coercive powers of the State, e.g. criminal charges or a warrant of arrest, should have been put in motion for a person, who spirits him or herself away from the jurisdiction to be regarded as a fugitive.

Held further that: the definition given in the Lesotho High Court case of Matsela v Commander Lesotho Defence Force[1], namely that a fugitive from justice is a person who escapes or hides from justice, is the more acceptable definition.

Held that: Each case must turn on its facts, the fact that the 1st respondent is implicated in the scandal alleged and the secretive impromptu nature and timing of his departure, the non-disclosure of his whereabouts and other matters, leaves the court entitled, on the balance, to regard him as a fugitive.

Held: that on a balance of probabilities, that the 1st respondent is a fugitive from justice.

Held that: the proper approach to follow is that of the strong, trailblazing and still persuasive Mulligan judgment where the court may refuse to allow its processes to be accessed by a person who is a fugitive from the law, whether as an applicant or a respondent.

Held further that: the doctrine should be exercised carefully and particularly in the light of the constitutional imperatives, which ordinarily grant access to persons and the right to have their disputes determined by an independent court or tribunal.

Held that: It is in the gravest of cases that the court may, in its inherent discretion, disentitle a fugitive from accessing the courts to vindicate his or her rights or other legal interests.

Held further: that the reasons proffered for the absence should carry some weight in determining whether the court should exercise its discretion in that person’s favour.

Held that: The 1st respondent’s duty to the court requires uberimma fides and, he has not complied with that requirement in this application and this is an issue the court views in a particularly serious light.

Held further that: in the circumstances of this case, the 1st respondent lacks the locus standi in judicio and that the matter should as a result, proceed on the basis of the papers filed by the applicants and where necessary, the relevant respondents.

The court accordingly granted the application by the applicants with costs.

 


[1] (CIV/APN/504/98 [1997].

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

CASE NO: HC-MD-CIV-MOT-GEN-2020/00203

 

In matter between:

 

JOHAN ANDRE PENDERIS                                                    1ST APPLICANT

 

PHILLIPUS VILJOEN ELLIS                                                   2ND APPLICANT

 

ADOLPHINE MUSHIMBA                                                       3RD APPLICANT

 

JUNE WAILLING                                                                    4TH APPLICANT

 

DESIREE REVIGLIO                                                              5TH APPLICANT

 

DANILO MIWA REVIGLIO                                                      6TH APPLICANT

 

DOMINIQUE GUISEPHINE REVIGLIO                                   7TH APPLICANT

 

 

and

 

 

MARÉN BRYNARD DE KLERK                                         1ST RESPONDENT

 

THE MASTER OF THE HIGH COURT OF NAMIBIA         2ND RESPONDENT

 

PIETER DANIEL THERON                                                 3RD RESPONDENT

 

BORRIS ERASMUS                                                            4TH RESPONDENT

 

STOAN HORN                                                                     5TH RESPONDENT

 

CELESTE COETZEE                                                          6TH RESPONDENT

 

PETRUS GERHARDUS STRAUSS                                    7TH RESPONDENT

 

NORMAN TJOMBE                                                             8TH RESPONDENT

 

 

Neutral Citation:     Penderis v De Klerk (HC-MD-CIV-MOT-GEN-2020/00203 [2020] 392 NAHCMD (28 August 2020)

 

CORAM:        MASUKU J

 

Heard:           5 August 2020

Delivered:     28 August 2020

Reasons:      3 September 2020

 


ORDER


 

 

  1. The Applicants’ failure to comply with the prescribed time periods and service and enrolling the matter as one of urgency in terms of the provisions of Rule 73(4), is hereby granted.
  2. The First Respondent’s failure to file his supplementary affidavit timeously, is hereby condoned.
  3. It is declared that the First Respondent has no locus standi in judicio to oppose this application on account of him being held to be a fugitive from justice.
  4. It is declared that it is undesirable for the First Respondent to continue to act as an executor in the following estates, duly registered with the Master of the High Court:
    1. Estate Late Aaron Mushimba, 1424/2014;
    2. Estate Late Danilo Fernando Reviglio, 1617/2019; and
    3. Estate Late Adrienne Betty Penderis, 1743/2019.

 

  1. In consequence of the provisions of paragraph 3 above, the First Respondent is ordered forthwith to return the letters of executorship of the deceased estates mentioned above to the Office of the Master of the High Court.
  2. The Master of the High Court is directed to appoint suitable persons in the place and stead of the First Respondent as soon as is practicable but no later than four (4) weeks from the date of this judgment.
  3. The First Respondent is ordered to pay the costs of this application, in respect of the Applicants, upon the employment of one instructing and two instructed legal practitioners and in relation to the Fifth, Sixth and Seventh Respondents, upon the employment of one instructing and one instructed legal practitioner.
  4. The First Respondent is ordered to pay the costs of the application under Case No. HC-MD-CIV-EXP-2020/00202 consequent upon the employment of one instructing and one instructed legal practitioner.

The matter is removed from the roll and is regarded as finalised.   

 


JUDGMENT


 

 

MASUKU J:

 

Introduction

 

 

[1]        The role and duties of legal practitioners pervade the entire span of human life. Strictly speaking, the role of the law in human life commences before the cradle and ends after the grave. In this regard, the law, like Divinity and medicine, deals with the human being from conception, during life and after death.

 

[2]        In particular reference to the latter, the melodramatic words expressed in Victorian language by Barrister Samuel Warren of the Lincoln Inns some 150 years ago, become acutely poignant. Asked to lecture on the moral, social and professional duties of lawyers, the learned Barrister said the following, in part:

 

            ‘Whatever be our talents or acquirements; whatever our tempers or dispositions, whether we be virtuous or profligate, we may have to take you into our confidence, and open to you the most secret recesses of our hearts . . . Whenever our honour, our life our liberty, our property, and those of our families, are endangered or outraged, to you perforce we must fly in our extremity; living or dying – yes I say dying, for we descend into the grave, in reliance on the discretion and integrity with which you have undertaken to carry into effect our wishes on behalf of those loved ones whom we are leaving behind us; whom we fain shelter, as far as we may, from calamity and the world’s reverses, by providing for them out of the produce of a life’s labour, anxiety and privation; and we look to do all this, through the instrumentality of your judicious and conscientious exertions.’

 

[3]        Three persons, Mr. Aaron Mushimba, Mr. Danilo Fernando Reviglio and Ms. Adrienne Betty Penderis exited this world on diverse dates, into the celestial jurisdiction, between 2014 and 2019. They left their acquirements and lives’ toil, for the benefit of and for ultimate distribution to those they either appointed in their lifetime, or to those whom the law determined should benefit therefrom.

 

[4]        Mr. Marèn de Klerk, the 1st respondent herein, was appointed to be the executor of their respective estates. He was tasked with performing the exacting duties that lawyers are expected to, after death of the deceased, as eloquently described by Barrister Warren immediately above. It would appear that matters in those estates have, in the past weeks, headed in the southern direction.

 

[5]        The applicants have, as a result, approached this court on an urgent basis, essentially seeking the removal of Mr. Marèn De Klerk, a legal practitioner, and thus an officer of this court, as the executor in the three separate estates of the deceased mentioned above. The removal is sought on the grounds that it is, for one reason, or the other, ‘undesirable’ that he continues to remain in office to execute the exacting demands of that revered office of trust.

 

[6]        For his part, Mr. De Klerk does not take the applicants’ allegations supinely. In his defence, he has emerged from the war chamber, guns blazing. He takes the view that there are no reasonable or sufficient grounds at law for the court to hold or find that it is ‘undesirable’ for him to continue performing the duties of the office.

 

[7]        The remit of this court, in the circumstances, is to determine, with reference to the papers filed and the requirements of the law, who among the protagonists, sits ensconced on the correct side of the applicable law. Where appropriate, the demands of justice and principle, will be placed in the equation in making the determination required.

 

The parties

 

[8]        The first applicant, Mr Johan Andre Penderis and the second applicant, Mr. Phillipus Viljoen Ellis, are major male persons who are trustees of an entity called the ‘Mushimba Family Trust’, which was founded by the deceased Mr. Aaron Mushimba on 19 January 2013. This Trust is heir to 50% of the estate of the late Mr. Mushimba, who proceeded to the celestial jurisdiction on 31 August 2014.

 

[9]        The third applicant is Mrs. Adolphine Mushimba, an adult female. She is the widow to the deceased and was married to him in community of property. The fourth applicant is Ms. June Walling, a major adult female cited in her capacity as the trustee of an entity known as the ABP Trust. She is resident in the United Kingdom. This trust is the sole heir to the estate of the late Adrienne Betty Penderis. It suffices to mention that the first, fourth applicant and the first respondent, are the trustees of the ABP Trust.

 

[10]      The fifth applicant is Ms. Desiree Reviglio, a major female and widow of the late Mr. Danilo Fernando Reviglio. The sixth applicant is Mr. Danilo Miwa Reviglio, a major male and son to the late Mr. Danilo Reviglio. The seventh applicant is Ms. Dominique Giusephine Reviglio, a major female and daughter of the deceased Mr. Reviglio. She is, together with the fifth and sixth applicants, heirs to the estate of their father, Mr. Danilo Reviglio. They represent all the heirs of the said estate.

 

[11]      The 1st respondent, who has already been referred to above, is a major adult legal practitioner of this court. He is a shareholder and director of the law firm De Klerk, Horn and Coetzee Incorporated. The firm practises from Windhoek. It is significant to state that the whole case revolves around the first respondent as he was appointed as an executor in the three estates mentioned above, namely the Mushimba, Penderis and Reviglio estates. It is important to mention that he is also a trustee of the Mushimba Family Trust, and as mentioned above, of the ABP Trust as well.

 

[12]      The 2nd respondent, is the Master of the High Court of Namibia. She is cited in regard to her powers vested by section 2 of the Administration of Estates Act, 1965.[2] (‘the Act’). The third and fourth respondents, respectively, are Messrs. Pieter Daniel Theron and Boris Erasmus, who are legal practitioners of this court. No relief is sought against them. Their role in the case will be evident as the judgment unfolds.

 

[13]      The fifth, sixth and seventh respondents are Mr. Stoan Horn, Ms. Celeste Coetzee and Mr. Petrus Gerhardus Strauss, who are, together with the first respondent, the directors and shareholders of De Klerk Horn and Coetzee Inc. No relief is sought against the fifth to seventh respondents. They were cited for whatever interest they may have in the application.

 

[14]      The eighth respondent, is Mr. Norman Tjombe, an adult male legal practitioner of this court. No relief is sought against him either. He, like the other respondents specifically mentioned above, was cited and joined in the application for any interest he may have. I should particularly mention that his name is suggested, as an appropriate replacement of the 1st respondent should the court grant the order for his removal in relation to the Mushimba Family Trust in particular.

 

[15]      For purposes of convenience, I will refer to the applicants as they have been described above. Having said this, it is necessary to mention that it is chiefly the first two applicants who are principal actors moving the application. They have to that end, filed founding affidavit and further affidavits authorised by the court in the matter.

 

[16]      The 1st respondent, Mr. De Klerk, will be referred to as such. The Master of the High Court will be referred to as ‘the Master’. The fifth to seventh respondents will be referred to as the DHC respondents. This is for ease of reference, without any sting or suggestion to the effect that the 1st respondent no longer forms part of that entity. Mr. Tjombe will be referred to as such.

 

The relief sought

 

[17]      As intimated earlier in this judgment, the main relief sought is for the removal of the 1st respondent as executor of the three estates mentioned above, namely the Mushimba, Penderis and Reviglio estates. For purposes of completeness, the relief sought is couched in the following language:

 

            ‘1. Condoning the Applicant’s failure to comply with the prescribed time periods and enrolling the application as an urgent application.

 

2. Declaring the First Respondent undesirable to act as executor in the following deceased estates duly registered with the Second Respondent under the respective Master’s Reference numbers as indicated and removing him from that position:

2.1       Estate Late Aaron Mushimba, 1424/2014;

2.2       Estate Late Danilo Fernando Reviglio, 1617/2019; and

2,3       Estate Late Adrienne Betty Penderis, 1743/2019.

 

3. Ordering the First Respondent to return forthwith each of the letters of executorship issued in respect of each of the estates, to the Second Respondent.

 

4. Ordering the Second Respondent to appoint the following persons as executors of the deceased estates referred to in 2 above:

4.1 For the Estate Late Aaron Mushimba, 1424/2014, the Eighth Respondent or such other person as the Second Respondent may deem fit;

4.2 For the Estate Late Danilo Fernando Reviglio, 1617/2019, the Fifth and/or Sixth Respondents or such other person as the Second Respondent may deem fit;

4.3 For the Estate Late Adrienne Betty Penderis, 1743/2019, the Fifth and/or Sixth Respondents or such other person as the Second Respondent may deem fit.

 

5. Removing the First Respondent as Trustee of the ABP Trust.

 

6. Declaring the First Respondent incapable, during the period of his life of holding office as an executor.

 

7. Ordering the First Respondent to pay the costs of both this application and that of the preceding application for edictal citation.’

 

[18]      The application is primarily predicated on the affidavit of the 1st applicant, Mr. Penderis. It is, where necessary, supported by confirmatory affidavits by one or the other applicant or respondent, where appropriate.

 

Resignation

 

[19]      It is pertinent to mention this early in the judgment, that during the course of the proceedings, the first respondent fell on his sword, so to speak, and tendered his resignation as the trustee of the ABP Trust. This was done by letter dated 28 July 2020. For this reason, save the issue of costs, the order relating to his removal as a trustee estate will no longer form part of the issues for determination by this court. This therefor renders paragraph 5 of the notice of motion, cited above, no longer necessary, to determine in its current state.

 

Background

 

[20]      It is necessary for the reader, to place the matter and the present application in proper perspective. Most of the issues giving rise to the application can be said to be largely common cause. I will deal with them in extremely broad-strokes because many of them are neither important nor vital for the court to deal with when proper regard is had to the real issues in contention.

 

[21]      In this regard, I should readily align myself with Mr. Corbett for the applicants, that although a great deal of disputes have arisen, resulting in the indiscriminate throwing of vitriol, the court’s eyes must be fixed on the ‘prize’ namely, the real issues in dispute and which are critical for the court to determine in deciding whether the relief applied for should be granted or not’ or whether some of the relief can be properly granted, to the exclusion of other relief sought.

 

[22]      The case has, as expected, thrown up a lot of what the parties’ representatives referred to as ‘sideshows’, during argument. Foremost among these was the division within DHC, between the first respondent and his co-directors. These fractious effects do not stop there. It seems that even some of the employees of DHC have been sucked into the bowels of the dispute. These and other issues shall be placed into the correct pigeonhole, namely, as sideshows. The court will not be side-tracked into dealing with them, as they marginally matter, if at all, when proper regard is had to the real issues that bring the parties before court. I should be faithful to my word and focus in this regard.   

 

[23]      The issues which appear to give rise to the present dispute can be summarised as follows: At different times, the 1st respondent, who is a director of DHC, was appointed as an executor of the estates mentioned above. In the Mushimba matter, it is important to mention that he was appointed as an executor testamentary, meaning that he was appointed as an executor by the deceased during his lifetime, in his last Will and Testament.

 

[24]      In or about November 2019, the Namibian public was consumed by certain revelations relating to the fishing industry in Namibia. The revelations were produced by wikileaks and aired on Al Jazeera. Allegations which suggest impropriety, including alleged acts of bribery and corruption, money laundering and other alleged crimes were aired and widely disseminated in Namibia. Certain individuals were arrested in the aftermath. The entire scenario has since been colloquially referred to in Namibia as the ‘Fishrot scandal’. The 1st respondent, it must be pertinently mentioned, was alleged to have also been involved in the so-called fish rot scandal.

 

[25]      In January 2020, the 1st respondent, at the height of the allegations, left Namibia and has been out of this Republic since then. His whereabouts are not disclosed and even the court is in the dark as to where exactly he is nor are the reasons why he left disclosed. He left in his wake, so to speak, the estates referred to uncompleted.

 

[26]      The applicants allege that because of the 1st respondent’s absence from Namibia, and his inability to be hands-on in the finalisation of the estates, he should be removed as an executor. They state that they believe that the 1st respondent left Namibia because of the ‘fish rot scandal’ and has no intention to return any time soon to Namibia.

 

[27]      The applicants have also levelled allegations of impropriety, particularly fraud and conflict of interest against the 1st respondent in the performance of his duties as an executor. This was in relation to the Mushimba estate in particular where there was a purchase of shares in an entity known as Edelweiss by Overo. It is alleged that certain pages of the agreement recording the purchase price of the shares and the non-refundable deposit were deliberately falsified. It is also alleged that the initials on page 5 of the document differ.

 

[28]      It is also alleged that in relation to an entity called Agripo, which is the last remaining asset in the Mushimba estate, there is need to liquidate the entity and to distribute the proceeds. The applicants allege that there are suspicious activities that they have established which raise the eyebrows and suggest some impropriety on the part of the 1st respondent.

 

[29]      In fairness to him, the 1st respondent denied the allegations of impropriety on his part and has furnished some explanations regarding his conduct that is brought under spotlight in these proceedings. In relation to the allegations that he has placed himself beyond the reach of Namibian State agencies, the 1st respondent maintains that he is co-operating with the local authorities and denies that his absence is because he is a fugitive from justice as alleged. He maintains that he has not been charged with any offence and is not a fugitive therefor.

 

[30]      He states that he has appointed agents to finalise the outstanding parts of the estates in question, namely, Mr. Pierre Erasmus of P. D. Theron and Associates. He expresses his frustration at what he alleges is the refusal by the remaining directors of DHC to hand over the relevant files relating to the estates to Mr. Erasmus. In any event, he deposes that most of the estates are nearing completion, one being 95% complete. He thus states that it would not be proper or advisable to have him removed as the end winding up of the estates is almost nigh.

 

[31]      I need not burden the judgment any further with the numerous other allegations and counter-allegations that decorate the papers. In order to deal with the real issues, I proceed to deal with the legal contentions by the parties as seen in the papers.

 

[32]      It is important to mention, before venturing into the merits of the application that there are certain points of law in limine that were raised by the 1st respondent. These are, however, overtaken by a point of law raised by the applicants and the DHC respondents regarding the locus standi in judicio of the 1st respondent.

 

Points in limine

 

[33]      The 1st respondent raised certain points of law in limine, namely that the application is not urgent and that the applicants failed to comply with the mandatory provisions of rule 73(4) of this court’s rules.

 

[34]      Secondly, the 1st respondent took the view that the applicants have barked up the wrong tree, as it were, in approaching the court by way of application. It was his contention that the matter is eminently not suited for application proceedings but for action proceedings. The court was thus implored to dismiss the application on that basis.

 

[35]      Lastly, the 1st respondent took issue with the locus standi in judicio of the 4th applicant Ms. June Wailling. It was in this regard submitted that the applicants allegedly cited her in her capacity as a trustee of the ABP Trust but there was no affidavit filed of record by Ms. Wailling. It was further denied that APB Trust authorised the proceedings, the 1st respondent further questioned the locus standi of the applicants to bring the application on behalf of the Reviglio heirs. During argument, Ms. Campbell for the 1st respondent, advised the court that she could not, in good conscience pursue that point. It was thus abandoned, probably correctly so.

 

[36]      The court commends Ms. Campbell for her virtuous and ethical approach in this regard. Officers of the court should not be heard or seen to blow hot air just to amuse or please their clients in fruitless endeavours and meandering legal chatter. They have a higher calling than merely doing bidding for their clients. They rather owe a duty to the court and which ranks higher than that owed to clients.

 

[37]      It is fitting to mention that there is another legal question that was brought to the table by the applicants and the DHC respondents, in particular, in their papers. This is the point that the 1st respondent has no locus standi to oppose these proceedings, as he is a fugitive from justice. As such, because he has placed himself beyond the reach of the court, the court’s processes cannot be properly enlisted, in the circumstances, to give effect to his rights and interests.

 

[38]      I am of the considered view that because of its possibly debilitating effect on the proceedings in the sense that if upheld, the latter point may bring the entire proceedings as far as the 1st respondent is concerned, to a screeching halt, it is appropriate that this issue be decided anterior to all the other issues raised by the 1st respondent in limine. I therefor proceed to deal with that issue immediately below.

 

First respondent’s locus standi

 

[39]      Before embarking on a decision on this issue, it is important first of all to point out that the argument is not that the 1st respondent has no locus standi in the classical sense, to oppose the proceedings. There can be no question that in the ordinary order of things, he has locus standi as the proceedings are geared to remove him from the office of executor in the mentioned estates. Surely, a person in his position should and ordinarily does have the right to oppose such proceedings.

 

[40]      The issue is raised particularly in the light of the remarks in Simplex (Pty) Ltd v Van der Merwe NNO.[3] There, the court stated as follows:

 

            ‘Locus standi in iudicio is an access mechanism controlled by the court itself. The standing of a person does not depend on authority to act. It depends on whether the litigant is regarded by the court as having a sufficiently close interest in the litigation.’

 

[41]      The point, however, is that because of his alleged actions, namely placing himself beyond the reach of the jurisdictional hands of this court and the Namibian authorities, he has become a fugitive and that this court should decline to lend its machinery in the enforcement of any of the 1st respondent’s rights. It is in this limited context that the issue of locus standi must be considered to turn in this case.

 

[42]      In his spirited address, Mr. Barnard for the DHC respondents argued and forcefully too, with all the powers of persuasion at his command, that the applicant is a fugitive from justice because he spirited himself privily from this jurisdiction in order to avoid the perilous consequences of the ‘fishrot scandal’.

Having done so successfully, the court should not allow him to put his hands to the plough of opposing the proceedings by remote control, so to speak.

 

[43]      Great store, in this regard, was laid by Mr. Barnard on a number of cases, chiefly spearheaded by the inimitable judgment of De Waal J in Mulligan v Mulligan.[4] In that case, the court stated that a fugitive from justice is ‘not only not amenable to the ordinary criminal and civil processes of the Court, but, as far as this Court is concerned, it cannot call upon him to appear in person to give evidence under oath; it cannot order his arrest in case the facts testified to in his affidavit are proved to be false, whereas on the other hand he will be able to invoke the authority of the Court to incept criminal proceedings for perjury proved to have been committed by his opponent. . .’

 

[44]      The court ended this treatise on a very high note, stating that, ‘Were the Court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would, moreover, be conniving at and condoning the conduct of a person who through his flight from justice, sets the law and order in defiance.’ This is the tough approach and stance Mr. Barnard implored this court to adopt. There are other cases in which the Mulligan DNA can be seen, that Mr. Barnard also moved the court to follow.

 

[45]      Ms. Campbell, for her part, argued that Mulligan has aged and is in human terms, more than an octogenarian. On proper calculation, Mulligan would have turned 95 years old this year. Because of its age, she further argued, it no longer represents good law, especially considering its rigidity. She was at pains to point out that even if a person may be a fugitive, he or she should still be allowed to access the fountains of justice and to drink from those pure wells.

 

[46]      She pointed out further that since age-old Mulligan, there have been very few cases in recent times that have walked in the steps of Mulligan, adopting the tough stance adopted in that case. It was also her contention that when proper regard is had to the authorities cited by Mr. Barnard, the persons who were on the receiving end of the bar to access the courts were applicants. She argued with vigour that where a person like the 1st respondent has been dragged to court, as in the case, it would be odious for the court to disbar that person from being able to place its defence or opposition to the court.

 

[47]      Needless to state, Mr. Barnard, in reply stuck to his guns and was unyielding in his approach. He pointed out cases like Escom v Rademeyer[5] where the court remarked, ‘I do not wish to be understood to hold that the principle in question can never be invoked against the defendant or respondent who happens to be a fugitive from justice.’ It was thus his final submission that the status of the litigant, whether an applicant or a respondent is not determinative as to whether they should be barred if they are fugitives. What is sauce for the goose, he submitted, must be sauce for the gander.

 

[48]      I am of the view that it is necessary, first of all, to determine what a fugitive from justice is. Once that has been done, it is in my considered view necessary to determine whether the 1st respondent, as submitted by both the applicants and the DHC respondents, is indeed a fugitive. If the return to that question is in the affirmative, the ultimate question will be whether the 1st respondent lacks locus standi, as discussed above, to oppose the present application. This enquiry will also consider the correctness of Ms. Campbell’s argument that the Mulligan rule, if I may call it that, applies only to fugitive applicants or plaintiffs, but not to fugitive respondents or defendants. 

 

What is a fugitive?

 

[49]      I would prefer, in answering this question, to rely on the authorities. According to the Shorter Oxford Dictionary, the word fugitive means, one who ‘has taken flight, esp. from duty, justice, an enemy, or a master’. It is clear that the definition given, is general in nature and scope and may not help to resolve the quandary in the instant case.

 

[50]      In Escom v Rademeyer[6], Stegmann J dealt with the meaning of a fugitive from justice with reference to the Mulligan case. He said, ‘In that passage it appears that a “fugitive from justice” may be accepted as being one who is “wilfully avoiding the execution processes of the Court of the land” or as one who is avoiding the processes of the law through flight out of the country (voluntary exile) or hiding within the jurisdiction of the Court.’

 

[51]      In the Zimbabwean Supreme Court case of Mawere v Minister of Justice, Legal and Parliamentary Affairs,[7] the court, in dealing with the concept of a fugitive from justice, reasoned as follows:

 

            ‘There is evidence to show that the appellant left Zimbabwe sometime ago and is now a citizen of the Republic of South Africa. There is no evidence to show that he deliberately put himself beyond the reach of the law. There is no evidence to show that he intended to go into hiding when he left Zimbabwe. It may well be that he was aware of some unlawful acts on his part when left Zimbabwe, but there is no evidence to link his departure with the acts that led to his specification.

For this court to hold that he is a fugitive from justice it would have to be shown that he left Zimbabwe with the intention to flee and deliberately put himself beyond the jurisdiction of this court to avoid any legal action that might be brought against him, or that he is in hiding within the jurisdiction of Zimbabwe.’ (Emphasis added).

 

[52]      In Baron Camilo Agasim-Pereira of Fulwood v Johnmic Media Investments Ltd[8] Chetty J, following the Escom matter, described a fugitive as and stated that ’In general, however, a fugitive from justice is one who evades arrest or prosecution by fleeing the jurisdiction’.

 

[53]      It would therefor appear that for a person to be declared a fugitive, it must be shown to the satisfaction of the court, on a balance of probabilities, that the said person has deliberately left the jurisdiction or is in hiding within the jurisdiction, and has thereby effectively placed him or herself beyond the court’s reach, in order to avoid or evade any legal action or proceedings that might be instituted, including using the State’s coercive powers, such as a warrant of arrest or criminal charges. There must thus, in my view, be a causal link between the flight or disappearance of the person and the legal action or criminal processes instituted or apprehended by the State.

 

[54]      The question that will have to be determined is whether the 1st respondent does fit any of the descriptions above. What can be stated without fear of contradiction is that he is not within the confines of this jurisdiction. That is common cause.

 

[55]      In order to decide whether the 1st respondent can appropriately be referred to as a fugitive from justice, as described in the above judgment, it will be necessary to have full regard to the allegations and facts placed before court, both in the affidavits and the argument. It suffices to mention that for his part, the 1st respondent denies that he is a fugitive. He states that this is so because no warrant of arrest has been issued against him. He alleges, as will be seen later, that he is co-operating with the authorities of this jurisdiction.[9]

 

[56]      The first issue that must be mentioned in this regard, is that the 1st respondent is indeed implicated in the so-called fish rot scandal and the Anti-Corruption Commission has stated so in clear terms.[10] His name appears in some of the activities alleged. This must not, I caution, be a basis in any degree, for the court being understood to have imputed any liability to him or pronouncing a certitude of his guilt. The presumption of innocence, as provided by the Constitution in Art. 12(1)(d), applies. After the fishrot expose in November 2019, the 1st respondent abruptly left Namibia in January 2020, where he is ordinarily resident. He left DHC Incorporated and of which he is a director.

 

[57]      It is also clear that when he left, some of his professional work was left unattended and this includes the estates that form part of the orders sought in this judgment. In particular, there is a review application relating to Agripo, a private company of which the 1st respondent is the director. According to the applicants, this company plants crops on property leased from the Government and which lease the relevant Minister has terminated. The last day, from the affidavits, is 20 August 2020, which it is common cause, has since passed at the delivery of this judgment.

 

[58]      The 1st respondent initiated proceedings for the review of the Minister’s decision. The application for review has not been lodged although papers were drafted and it so appears, ‘expertly’ by Mr. Barnard, as he claimed. There is a real fear expressed by the applicants that the application for review, which I understand has been prepared but not lodged, may be dismissed for egregious delay. Seeing that the date has passed, this may be water under the bridge and it would appear that the 1st respondent’s absence has contributed to this ugly eventuality.

 

[59]      The 1st respondent states on oath that he was booked into a facility that is unnamed in South Africa for what is alleged to be a medical condition that is not disclosed either. There is a medical certificate from a Dr. Human that was sent to the DHC respondents indicating that the 1st respondent was booked from 17 to 24 January 2020 for ‘Acute medical condition of a sensitive nature’. He had, according to the 6th respondent, left in January 2020 for pressing family commitments and to return the following week but did not.[11] It would appear that the 1st respondent was at some discharged in February 2020 but remains in South Africa at an unnamed location.

 

[60]      He alleges, and it must be stated, that it is unclear whether that there was an attempt or attempts on his life. No details are given regarding the said attempt(s). No location is given or what exactly it is that happened. What appears certain, is that this was in South Africa. He gives a case number of the report he made to a police station that is unnamed and there is no statement from the investigator confirming the allegations made by the 1st respondent.

 

[61]      The 1st respondent claims that he is afraid of returning to Namibia because some powerful persons may exterminate him. Again, no information or detail in this regard is given. Mr. Corbett for the applicants queried this and stated that he does not understand why the 1st respondent does not want to return to Namibia as it is not his case that there is or has been any attempt on his life in this country. It was his argument as well that the 1st respondent should be coming home and that Namibians are allowed, notwithstanding the COVID 19 pandemic, to return home, subject to being quarantined for specified periods.

 

[62]      I am of the considered view that there are no clear reasons advanced by the 1st respondent for his sudden departure to South Africa, which is where he is touted to be. I say touted because there is nothing before the court placed by him to say directly to the court where he really is. There is also no indication, if there is any medical or psychological problem that he is facing, that he cannot get competent treatment in this country. This both Mr. Corbett and Mr. Barnard emphasised. It is true that the 1st respondent may ordinarily be entitled to privacy of medical information. When issues escalate to the level they have in these proceedings, a waiver, even if only to the court, may be helpful to him and assist the court in assessing the exact situation confronting him.

 

[63]      It must be mentioned that the applicants had to go to some lengths in managing to serve the application on the respondent. He did not co-operate, necessitating that they obtain leave to serve him by way of substituted service. An officer of this court, would have been expected to do better in this regard.

 

[64]      Although the 1st respondent claims that he is co-operating with the officials in this country, he has nothing to show for that. To the contrary, the Director-General of the ACC, issued a letter, bearing a date stamp of 24 July 2020,[12] which states that the 1st respondent is implicated in the fishrot scandal. The said letter mentions that charges that may be levelled against him, including corrupt practices, tax evasion, money-laundering and racketeering. An interview of Mr. Noa, the Director-General of the ACC, with The Namibian newspaper, is attached as ‘CC2’.[13] He states that the matter has been referred by him to the Prosecutor-General for a decision as to which charges to prefer against him.

 

[65]      I am of the considered opinion that it is not necessary that some coercive powers of the State, e.g. criminal charges or a warrant of arrest, should necessarily have been put in motion for a person, who spirits him or herself away from the jurisdiction, to be regarded as a fugitive. If that were the case, people who have ‘eyes and ears’ within the law enforcement agencies, may be notified in advance of an impending arrest or charges, compelling them to leave.

 

[66]      Because the charges or warrant of arrest would not have been issued at the time they leave, they would not be regarded as fugitives even if all the facts point to them having left to avoid being served and processed in terms of the law. This is in my view a wrong approach. As long as an event takes place and which appears to have a sufficient and reasonably strong causal connection to the flight or disappearance of a person from the jurisdiction, that should, in my considered view suffice. It is for that reason that I used the words ‘instituted or apprehended’, in para [53] above.

 

[67]      I am of the considered view that the definition given in the Lesotho High Court case of Matsela v Commander Lesotho Defence Force[14], namely that a fugitive from justice is a person who escapes or hides from justice, may be a more acceptable definition. It is wide enough to encompass those who may not yet had the compulsive powers of the State unleashed against them but who may have gained the distinct impression that it is only a matter of time and that they should spirit themselves away from the jurisdiction and reach of the court precipitately.

 

[68]      Each case must turn on its peculiar facts. In this case, the fact that the 1st respondent is implicated in the scandal alleged and the secretive, impromptu nature and timing of his departure, the non-disclosure of his whereabouts and other matters mentioned earlier, leave the court entitled, on the balance of probabilities, to regard him as a fugitive, as argued by the applicants and the DHC respondents.

 

[69]      I take particular notice of the fact that the 1st respondent is not an ordinary litigant, entitled to make decisions that he considers beneficial to him in isolation of issues with wider societal and legal ramifications. He is an officer of this court, first and foremost. He describes himself as such in the affidavits he filed. There is thus a certain standard of behaviour and particularly disclosure that his status as an officer, exacts on him. He does not disclose, even to the court where he is and why he is not returning to Namibia. Allegations of his health, attempts on his life, why he is not returning to Namibia and just his exact whereabouts, are as scanty as can be.

 

[70]      To the extent that he may have been fearful, rightly or wrongly, for his life and limb, I am of the view that he should have disclosed this to the court. This may have been done in a separate affidavit, in which he, as an officer, would take the court fully in his confidence, and disclose all the material issues surrounding his departure, his whereabouts and details about his return or otherwise. As we stand, the 1st respondent does not even give an address of his particulars as a respondent in these proceedings, which are a mandatory requirement of the rules of this court.[15]

 

[71]      His story, as told in his papers, raises more questions than answers. In this regard, and having anxious regard to the circumstances considered above, I am satisfied, on a balance of probabilities, that the 1st respondent is a fugitive from justice and I so find. I do this with a truly heavy heart but also with a full heart, given the paucity of information he gives and the probabilities that he has left seriously uneven against him.

 

[72]      The timing, and abrupt manner of his departure, following allegations of his links to the fishrot scandal, considered in tandem with him leaving his firm without notice and leaving some clients in the lurch, as the applicants, speaks volumes about the nature and purpose of his departure.

 

[73]      The secrecy surrounding his whereabouts and the sporadic but inconsequential mini disclosures he makes leave a bitter aftertaste, considered in the context of what he does not disclose, some of which is basic, particularly considered from the perspective that he is an officer of this court. He does not say why he left Namibia and does not say when he will return. His is just an indeterminate and unexplained absence, which entitles the court, from the facts, to declare that the 1st respondent is indeed a fugitive from justice.

 

[74]      I am not called upon to make any credibility findings but his allegations in para 176 of his answering affidavit, to the effect that his email address was not operational for a month leaves a lot to be desired.[16]  Expert evidence was tendered by the applicants and which remains unchallenged, that this allegation by the 1st respondent is palpably false as his email address was fully functional. I say nothing more on this issue. This finding is mentioned in the light of the unsatisfactory explanations he gives for the matter not having been resolved earlier.

 

First respondent’s locus standi

 

[75]      I now turn to consider the question, having found that the 1st respondent is a fugitive in the circumstances, whether he is entitled to be heard. I will undertake a brief review of the cases that the court was referred to in argument, together with some other relevant cases that the court came across during its research in dealing with this rather novel situation.

 

[76]      In Mulligan v Mulligan, the court reasoned that because the applicant had placed himself beyond the reach of the law, by fleeing the country, he could not therefore claim the protection of the law. The learned Judge proceeded to say the following at p 167:

 

            ‘Moreover, it is totally inconsistent with the whole spirit of our judicial system to take cognisance of matters conducted in secrecy. It is true the applicant is entitled to present his petition through a solicitor, but, nonetheless, while disclosing his whereabouts to his solicitor, he withholds that information from the Court and from his opponent. As a fugitive from justice, he is not only not amenable to the ordinary criminal and civil processes of the Court, but, as far as this Court is concerned, it cannot call upon him to appear in person to give evidence on oath; it cannot order his arrest in case the facts testified to in his affidavit are proved to be false, whereas on the other hand he will be able to incept criminal proceedings for perjury proved to have been committed by his opponent. And, in this case, he would be able to invoke the authority of the Court to arrest his opponent if she were suspected of flight with the property sought to be interdicted. Such a litigant might, moreover, conceivably be the cause of this Court’s being unable to arrive at any decision on the facts sought by him to be determined, if, during the hearing of the application, were the Court to find that justice could not be done unless he was called to give evidence on oath before it. Were the Court to entertain a suit at the instance of such a litigant it would be stultifying its own processes and it would, moreover, be conniving at and condoning the conduct of a person who, through his flight from justice, sets the law and order in defiance.’

 

[77]      In Attorney-General v Spencer and Another,[17] the respondents, Spencer and Georgiou had been found guilty by the regional court for attempted extortion. They appealed to the High Court in Zimbabwe. On the date of hearing of the appeal, the 1st respondent did not appear and it later transpired that he had since left the jurisdiction of Zimbabwe and had thus breached the conditions of bail.

 

[78]      The High Court ordered the matter to be argued on the merits and the court, in an ex tempore judgment, noted that the 1st respondent had estreated his bail and left the country. It nonetheless upheld the 1st respondent’s appeal. The State appealed to the Supreme Court against that order.

 

[79]      Gubbay CJ, writing for the majority of the court, stated as follows:

 

            ‘I entertain not the slightest doubt that in proceeding to hear the appeal and in making the orders it did, the High Court fell into error. The well-established principle is that a person seeking to establish his rights in a court of law must come with clean hands. A fugitive from justice is one who has deliberately put himself beyond the reach of the law by going into hiding or fleeing the country. The law denies its protection to such persons. See Mulligan v Mulligan 1025 WLD 164 at 167; Maluleke v Du Pont NO & Anor 1966 RLR 620 (A) at 624A; S v Neill 1982 (1) RLR 142 (H) at 145 E-F. To do otherwise would be to stultify the process of the law. The High Court appreciated that it had no discretion to hear the appeal of the second respondent. Undoubtedly, his action of fleeing signified that he was not prepared to accept or abide by the judicial process of the country. He had set the law in defiance.’

 

[80]      The court continued and held that, ‘It is my view that these decisions support the submission advanced in this matter that where the information available to the State points to the probability that an appellant has unlawfully left the jurisdiction prior to the hearing of the appeal, or is in hiding, he is deemed to be a fugitive from justice . . . Until the first respondent was found and had made some efforts to purge his contempt, of the bail order he had no right to obtain from the court the relief sought by way of the appeal.’ 

 

[81]      It would appear that there are further cases where this approach has been adopted regarding persons who are regarded as fugitives. The question whether this ought to also apply to respondents, was considered by Stegmann J in the Escom case.

 

[82]      At p 662 D of Escom, the learned Judge said the following:

 

            ‘I do not wish to be understood to hold that the principle in question can never be invoked against a defendant or a respondent who happens to be a fugitive from justice, It may very well be that a fugitive who is a defendant does not enjoy the right ordinarily enjoyed by a defendant to institute a claim in reconvention. He may suffer other disadvantages in respect of procedural, and even substantive rights, ordinarily enjoyed by a litigant. It is not necessary for me to deal with the question on so broad a basis. I hold that whatever the disadvantages that may be suffered by a fugitive from justice seeking to answer process of the court issued against him, they do not deprive him of the right to ask for such time as the Court may deem fit in the circumstances, to enable him to provide an answer he has been called upon to give. I hold that the respondent, although a fugitive from justice, he has locus standi to at least approach the Court for an extension of time in which to comply with the requirements of the rule nisi.

 

[83]      It is apparent, from reading that judgment, that the court came to the conclusion that the fact that a person who is a fugitive is a respondent or defendant, does not ordinarily matter insofar as he or she has no locus standi. What the court said is that in the peculiar circumstances of that case, it could not deny the respondent the right to seek an extension within which to show cause why the rule nisi should not be confirmed.

 

[84]      I can say that Mr. Barnard referred the court to a number of cases that deal with the principle and it is not necessary to deal with them all in any degree of detail. These include Botes v Goslin,[18] Maluleke v Dupont, NO and Another,[19] S v Nkosi,[20] Chetty v Law Society, Transvaal.[21] This latter case supported the view that it does not matter whether the person in question who is a fugitive is an applicant or a respondent. It is doubtful whether the latter judgment would still stand given the reason that Mr. Chetty gave for his decision to leave the Republic of South Africa. He stated that he feared harassment at the hands of the Security Police during the apartheid era. They were a nightmare to many.

 

[85]      The last case referred to by Mr. Barnard, was Harris and Others v Rees and Others.[22] In that judgment, Horn J gave a rousing approval of Mulligan and this puts paid Ms. Campbell’s argument that Mulligan has lost its lustre and should be discarded as law in similar fashion as salt that has lost its taste and thus fit to be trampled upon.

 

[86]      The learned Judge expressed himself as follows on this issue after quoting the lapidary remarks which appear at para [44] of this judgment:

 

            ‘These are indeed weighty words which cannot simply be ignored, and certainly these principles should form the bases of the test, of the locus standi of a fugitive from justice, to litigate. The principles enunciated in Mulligan have stood the test of time and have been followed in cases such as Maluleke v Dupont and Another 1967 (1) SA 574 (RA); and HERF V Germani 1978 (1) SA 440 (T). As a general statement of the law on this aspect, the comments of De Waal J in Mulligan v Mulligan cannot be faulted. However, I do believe that, when a court has to consider the right of a person to approach the court for relief, in circumstances where such a person can either be categorised as a fugitive from justice or a person who has deliberately placed himself beyond the jurisdiction of the court, in having regard to the principles enunciated in Mulligan v Mulligan, it will have to deal with each case on its own facts. I say this for the reason that, to close the doors of the court to a litigant, will always be a serious thing to do. . . The Mulligan v Mulligan principles must also be read against the background of the Constitution. The right of a party to have access to the courts is a strongly embedded constitutional right which should not be deviated from.’

 

[87]      The learned Judge proceeded to consider the case of Minister of Home Affairs v Bickle[23]. In this case, the respondent Mr. Bickle dealing with the said case, the learned Judge stated as follows at 300-301:

 

            ‘In this case, the Zimbabwean Appeal Court, while not disavowing the principles enunciated in Mulligan v Mulligan, adopted a pragmatic approach and considered the matter on its own facts. It had regard to factors such as: that Bickle had not committed any crime for which he was still to be convicted; that no judicial process had been issued against him or was contemplated; that any executive process had been issued against him; that he left Zimbabwe unlawfully or even surreptitiously; that his continued absence from Zimbabwe was not unlawful; that he did not hide or sought to withhold information of his whereabouts; or that it has been shown that Bickle would not be amenable to judicial process which may follow. The learned judge of appeal also pointed out that in England the courts did not deny a declared outlaw access to the courts without exception.’

 

[88]      I will revert to the remarks of Mr. Justice Horn in a moment. What I intend doing at this juncture, before announcing my thoughts and judgment on whether the 1st respondent has locus standi, in this matter, is to consider briefly the state of the law in one or two other jurisdictions on this very point. The learned Mr. Justice Horn mentioned, as quoted above, that in England, the courts do not issue an absolute bar to an outlaw.

 

The approach in England

 

[89]      The recent position in England, as I have found it, is in the cases of Polanski v Conde Nast Publications Ltd[24] and Rowland and Another v Bock and Another[25]. In Polanksi, the question to be determined, was whether a fugitive from justice could pursue litigation in England from France, whence he had since become resident. He had wanted to institute proceedings in England and to tender evidence via a video conference link.

 

[90]      The court in Polanski held that ‘our law knows no principle of fugitive disentitlement.’ In particular, at p953, the court held as follows:

 

            ‘Despite his fugitive status, a fugitive from justice is entitled to invoke the assistance of the court and its procedures in protection of his civil rights. He can bring or defend proceedings even though he is, and remains a fugitive. If the administration of justice is not brought into disrepute by a fugitive’s ability to have recourse to the court to protect his civil rights even though he is and remains a fugitive, it is difficult to see why the administration of justice should be regarded as brought into disrepute by permitting the fugitive to have recourse to one of the court’s current procedures which will enable him in a particular case to pursue his proceedings while remaining a fugitive.’ 

 

[91]      In the Rowland case, the court came to a similar conclusion as in Polanski. The court reasoned regarding the admission of evidence via video link that ‘full access to the court for justice in a civil matter should not be at the price of a litigant losing his liberty and facing criminal proceedings’. The court in both cases took the view that the reasons proffered by the litigant for failing to be within the jurisdiction, should be given appropriate weight.  

 

The United States

 

[92]     It would appear, from the brief research allowed by the time constraints in urgent applications that the United States, unlike England, but the same as South Africa and Zimbabwe, as established in the cases discussed above, recognises the fugitive disentitlement doctrine. This is provided for in the U.S. Code § 2466. It applies where non United States citizens who are fugitives seek to further ‘a claim in any related civil forfeiture action or a claim in third party proceedings in any related criminal forfeiture action.’ Accordingly, it appears that a fugitive may not approach the courts for assistance if that person is not a citizen of the United States of America.

 

Denouement – whither the First Respondent’s fate?

 

[93]      Having considered the varying approaches to the issue of the fugitive disentitlement doctrine, to borrow from the United States, it seems to me that an approach as stated in the case law cited from the Region, is the proper approach to follow in such cases. English law is markedly different in this regard and I am not persuaded to follow it to the extent that it differs from the regional approach, if I may refer to it as such. Simply put, the regional approach appears to be that of following the strong, trailblazing and still persuasive Mulligan judgment. In this regard, the court may refuse to allow its processes to be accessed by a person who is a fugitive from the law, whether as an applicant or a respondent.

 

[94]      Mulligan can, in the premises, be regarded as having taken firm root in our soils as the majestic Baobab tree. That judgment has, like good wine,  matured with age. In this regard, it appears that Mulligan written and spiced with strong preservatives that have survived the vicissitudes of time and judicial epochs without number.

 

[95]      That said, it must however be mentioned, as correctly observed by Horn J, in the Harris case, that the doctrine should be exercised carefully and particularly in the light of the constitutional imperatives, which ordinarily grant access to persons and the right to have their disputes determined by an independent court or tribunal. It is therefor in the gravest of cases that the court may, in its inherent discretion, disentitle a fugitive from accessing the courts to vindicate his or her rights or other legal interests.

 

[96]      In this regard, I would venture to add, it is not appropriate to lay down inflexible rules as those of the Medes and the Persians for the court. It is however, necessary to add that each case must of course, be dealt with in the light of its own peculiar circumstances. In this connection, the court, it would appear to me, exercises a discretion, which must, as in all other instances, be exercised judiciously. To attempt to create a numerus claussus of the circumstances and the considerations may result in trumping that inherent discretion.

 

[97]      In this particular context, I would cite with approval the words of Horn J in the Harris case at p 300 where the learned Judge said:

 

            ‘What all this tells us is that, even should a litigant fall within the category classified as a fugitive from justice, it does not follow as a matter of course that the doors of the courts will be closed to him. I am of the view that the court hearing the application, and having regard to all the relevant factors concerning the litigant’s flight or absence from the jurisdiction of the court, will be, in exercise of its inherent discretion, entitled to hear the litigant, notwithstanding his absence from the court’s jurisdiction.’

 

[98]      In dealing with the present matter, I have previously, in contending with the issue of whether the 1st respondent should be regarded as a fugitive or not, considered issues that render the court comfortable in its classification of the 1st respondent as a fugitive. Some of these may be repeated at this point for their relevance to the conclusion on whether the 1st respondent should, on the facts, and the court, exercising its inherent discretion, be non-suited on the lack of locus standi.

 

[99]      Firstly, there is authority to the effect that the motive behind the person leaving the state or jurisdiction is irrelevant.[26] I am, however, of the considered opinion that the reason proffered for the absence should carry some weight in determining whether the court should exercise its discretion in that person’s favour. In the instant case, the 1st respondent does not give an explanation for his absence from the Republic. Furthermore, the abruptness of his departure and its implications on his Co-Directors and clients, particularly the estates in question, is not explained.

 

[100]   Furthermore, the 1st respondent does not inform the court of his whereabouts. In this particular regard, the 1st respondent did not comply with the provisions of rule 6 aforesaid. He also does not, as is mandatory in affidavits, state his present address and this appears, in all probability, to be intentional.[27] Only he and probably his legal team are aware of his exact whereabouts. The applicants and the other respondents, like the court, are engulfed in a cloud of darkness in this regard. In this particular connection, the court in Mulligan[28] pronounced itself on such conduct, as quoted in full in para [76] above.

 

[101]   The learned Judge concluded, and correctly, in my view, that the fugitive is not amenable to the ordinary criminal and civil processes as the court cannot call upon him or her to appear in person to adduce evidence on oath. In like manner, it cannot order his or her arrest if he or she has committed perjury on affidavit, which is a live option for the court in relation to the other party. Lastly, the court held that unlike his or her opponent, the fugitive could invoke the authority and powers of the court to arrest the opponent, when he or she is not subject to the court’s jurisdiction.

 

[102]   These observations apply with equal force to the 1st respondent in casu. In argument on the 1st respondent’s behalf, it was submitted that the application be dismissed on the basis that it contains disputes of fact which may not be resolved on the papers. I will not comment on this at this stage. What is however, important, is that in terms of the rules of court,[29] if the court were inclined to agree with the 1st respondent in this regard, the court has a discretion to refer the disputed issues to oral evidence.

 

[103]   In this regard, the court may ‘direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end, may order any deponent to appear personally or grant leave for him or her or any other person to be subpoenaed to appear and be examined and cross-examined as a witness’.[30] It is clear, that the court is, because of the 1st respondent’s absence, would unable to resort to these powers.

 

[104]   The offer by Ms. Campbell for the 1st respondent to testify via zoom, (which drew loud laughter from the rest of the legal practitioners) provides cold comfort in the circumstances. Issues of demeanour and credibility may not be easy to detect in the novel medium. I would, speaking for myself, require the 1st respondent to be present in person for that purpose. This would enable me to properly adjudicate the dispute. His presence before court, would conduce to the ease of the making of credibility findings, where appropriate.

 

[105]   At the risk of repeating myself, it should be mentioned that the 1st respondent is an officer of the court, a senior one at that. His duty to the court requires uberimma fides, namely, utmost good faith. He has not complied with that requirement in this particular application. This is an issue the court views in a particularly serious light. 

 

[106]   It should also be mentioned in this regard, as noted previously in the judgment that the 1st respondent does not say when he is returning to the Republic. If this was disclosed, one could be able to say probably without fear of contradiction that he habours an animus revertendi, i.e. the intention to return to Namibia. In this regard, he has given agency to P. D. Theron and Associates to wind up the Reviglio estate. All these are factors that the court is of the view should serve to deny him locus standi in this matter.

 

[107]   In view of the foregoing considerations, I am of the considered opinion  that the strong case made in this application, notably by the DHC respondents, in particular, for the 1st respondent to be non-suited for lack of locus standi, must be sustained. I am accordingly of the considered view that in the circumstances of this case, the 1st respondent lacks the locus standi in judicio, as explained at the commencement of this judgment.

 

Effect of no locus standi

 

[108]   It would appear to me that having found that the 1st respondent does not have locus standi in this matter, for the reasons advanced above, the matter should then proceed on the basis of the papers filed by the applicants, and where necessary, by the relevant respondents. The applicants still bear the onus to satisfy the court that they are entitled to the relief sought in the notice of motion.

 

[109]   I should, at this juncture mention that the DHC respondents, in particular, filed an application for striking out certain paragraphs from the 1st respondent’s additional affidavits, filed with leave of court. This was on the grounds that same were beyond the scope of issues specifically allowed in the order granting leave. There was another application for the striking out of certain portions of the 1st respondent’s answering affidavit as well. This was on the ordinary grounds that same were either vexatious, irrelevant or scandalous, within the meaning of the Vaatz judgment.[31]

 

[110]   In view of the finding that the 1st respondent lacks locus standi, I come to the conclusion that because the 1st respondent’s case has thus not left the starting blocks. It would accordingly serve no useful purpose for the court to pronounce on the application to strike out because it presupposes that there is a lis properly so called that the respondent has a right at law to contest. I will for that reason make no order regarding the applications to strike out. This is because to engage in a determination thereof would be tantamount to an academic exercise.

 

Urgency

 

[111]   It is true that a lot has been stated in this judgment already. This may cause one to forget that this matter was brought on urgency by the applicants. In terms of rule 73(4) of this court’s rules, an applicant for enrolment of the matter as one of urgency, must explicitly state on affidavit and the court be satisfied that (a) there are reasons why the matter should be enrolled as one of urgency are disclosed; and (b) that the applicant cannot be afforded substantial relief at a hearing in due course if the matter is not heard as one of urgency.

 

[112]   It must be mentioned that the approach to urgent applications is that the court, in dealing with a matter alleged to be urgent, must proceed from the premise that the allegations of fact made by the applicant in the matter, are correct.[32] The court will follow that beaten track in this matter.

 

[113]   The applicants explain that their intention initially, was to avoid litigation. In this regard, their legal practitioners extended an olive branch to the 1st respondent, but the latter was of a different mind-set. In this regard, the 1st respondent was given an advance copy of the proposed application, with the licence that he could point out any errors in the allegations of fact in advance but he did not wish to participate in that friendly enterprise.

 

[114]   The applicants further state that the matter is urgent also for the reason that there is the issue relating to Agripo that was mentioned earlier in the judgment and in respect of which a notice of cancellation of the lease was served. The notice would have expired on 20 August 2020 as mentioned and this would occasion great prejudice to the Mushimba estate in view of the large investment of about N$ 50 million, poured into the project. The allegations in this connection, speak to commercial urgency, which is also recognised in our law.[33]

 

[115]   I am satisfied on the whole that the matter is one worthy of being granted the dispensation of determination on an urgent basis. The applicants, have, in my considered view, met the mandatory requirements of rule 73(4) in particular. I am particularly persuaded that the attempts to resolve the matter amicably by the applicants should not be held against them in a matter such as this, which involves estate property. I note in this regard that the respondents, including the 1st respondent, were afforded a liberal period of time within which to file their papers. As such, there can be no justifiable allegation of prejudice to them or their interests.

 

[116]   All in all, I am satisfied that this is a matter worthy of being accorded urgent treatment in line with rule 73(4) as stated above.

 

Removal of the First Respondent as Executor

 

[117]   When one has proper regard to the applicants’ papers, it appears, as earlier intimated, that they, in the main, seek the removal of the 1st respondent as executor on the grounds that his occupation of the office, has become ‘undesirable’, within the meaning of the Administration of Estates Act, 1965, (‘the Act’). In this regard, there are three main bases for the application.

 

[118]   First, it is the fact of the applicant’s absence from the Republic, which has persisted for the last seven months – and still counting, at the time of writing this judgment. The second basis, are allegations of fraud levelled against the 1st respondent. Numerous discrepancies are alleged in this regard. These attach in particular, to Estate Mushimba, specifically the entity referred to as Edelweiss. Third, are allegations of conflict of interest on the 1st respondent’s part.

 

[119]   In substantiation of the fraud allegations, the applicants attached an affidavit from Mr. Shahil Morar, a shareholder in an entity called Overo Investments (Pty) Ltd, which purchased shares in Edelweiss. He alleges that he signed an agreement for the sale of the shares in the 1st respondent’s presence at the latter’s offices. He was later to learn that certain pages of the agreement he had signed had been replaced and there was an interference with the initials to the agreement on the replaced pages. This alleged fraud is placed at the 1st respondent’s door.

 

[120]   Whatever the merits of this complaint are, I am of the considered view that this medium, being motion proceedings, is not suited to dealing with and properly resolving issues that relate to fraud as alleged. Allegations of fraud are often easy to lay but difficult to prove. I do not wish to pre-empt the proceedings, but it does appear that there are allegations of interference with the initials. If that is indeed true, clearly the evidence on a handwriting expert would be necessary to resolve that particular issue.

 

[121]   I am accordingly of the view that it is not prudent to deal with this particular ground for declaring the 1st respondent undesirable as the nature of the enquiry is ill-suited for this question. A case in point is Schade v Gregory where a Last Will and Testament was sought to be set aside by the court, on allegations of fraud. Because the proceedings were brought on application, the court dismissed the application, stating that action proceedings were appropriate for the nature and type of the allegations made. I would therefor decline to deal with this aspect in the current proceedings.

 

[122]   The question that I need to decide is whether on the other ground, namely absence from the Republic, the applicants have made a good case. In this regard, it is imperative to consider the relevant provisions of the Act. Mr. Corbett stated that the application is brought in terms of s 54(1)(a) of the Act, whose contents I will reproduce below. 

 

[123]   The said provision, entitled, ‘Removal from office of executor’, has the following rendering:

 

            ‘An executor may at any time be removed from office –

 

  1. by the Court –

 

(v) if for any other reason the Court is satisfied that it is undesirable that he should act as executor of the estate concerned.’

 

[124]   It is important to mention in this regard that besides the court, which is this court, removing the executor, the Act also grants the Master, power to remove the executor. We are not concerned with the exercise of the powers of removal by the Master in the instant case. I will, for that reason, not advert to the provisions applicable to the Master.

 

[125]   Should there be any doubt about this court’s power to remove an executor, the position was affirmed by the Supreme Court in Mpasi NO v Master of the High Court[34] in the following language:

 

            ‘Undoubtedly, our High Court which is the court with the requisite jurisdiction in terms of the Act, has the power to remove an executor from office pursuant to s 54(1)(a). Similarly, s 95 of the Act empowers the court on appeal or review to confirm, set aside or vary the appointment by the Master. There is, however, no provision in the Act for appointment of an executor by the court. As no such authority can be derived from the common law either, it follows that the High Court has no such power. The power in question is vested in the Master. In light of this conclusion, I agree with counsel for the Ms Mpasi that the court a quo erred in appointing Mrs Hausiku. Consequently, the appointment of Mrs Hausiku ought to be set aside and the matter remitted to the Master with the direction to appoint an executor/executrix in accordance with the law.’

 

[126]   The determination by the Supreme Court above, puts paid any doubts about this court’s powers. I should pertinently mention that I will, later in this judgment, revert to the last issue mentioned above by the Supreme Court, regarding the powers of this court to appoint executors as it is one of the prayers in the applicants’ notice of motion.

 

[127]   The main task of this court, in determining this application, is to decipher what interpretation is to be ascribed to the word ‘undesirable’ as employed by the legislature in the above provision. This must be the case because the definition section does not give any clue as to what the legislature intended by the use of that word.

 

[128]   It would appear to me that the word ‘undesirable’ was intended by the legislature to be elastic in nature and to cater for a myriad of circumstances in which the court makes a value judgment on the nature of the conduct and particularly its seriousness, both of which would, considered jointly, justify a decision to remove the executor or executrix by the court on application, at the instance of an aggrieved party.

 

[129]   The word ‘undesirable’, in its ordinary parlance, may imply something that is ‘not wanted or desirable because it is harmful, objectionable, or unpleasant’. In considering the word in the context of this judgment, one may say that this court may remove an executor or executrix if he or she engages in some conduct that is harmful, detrimental, objectionable, deleterious, unpleasant to the estate and the interests of the beneficiaries or incongruous with the duties of the office.

 

[130]   The learned author Meyerowitz[35] states that an executor may be removed for his absence from the Republic when such absence hampers the administration of the estate. In this regard, it is stated that it must be shown that there are certain duties which in the said case, have to be performed but may not be so performed because of the executor’s absence.

 

[131]   The question of absence from the Republic, must also be viewed from the prism of s 53(a) of the Act. The said provision stipulates that ‘An executor shall not be absent from the Republic for a period exceeding 60 days unless –

(a) the Master has before his departure from the Republic granted him permission in writing to be absent;

(b) he complies with such conditions as the Master may think fit to impose; and

(c) he has given such notice of his intention to be so absent as the Master may have directed.’

 

[132]   It is accordingly clear that an executor may not leave the jurisdiction for a period in the excess of 60 days without first having obtained permission from the Master in writing to be so absent. To the extent that I may have regard to the 1st respondent’s version, it is clear that he has been absent from the Republic for more than six months. Significantly, there is no evidence that he obtained any written permission from the Master before he left the jurisdiction. This is a serious violation of the provisions of the Act. 

 

[133]   Mention was made of the fact that the 1st respondent obtained ex post facto authorisation from the Master for his absence. To the extent that this is the case, it is however very clear that the ex post facto permission is a notion that is foreign to the Act. There is no provision in the Act that allows the Master to grant ex post facto permission to executors, to belatedly recognise their absence from the Republic. That belated permission is, properly regarded, pro non scripto. The Master should have known better.

 

[134]   The estates in this matter have been pending for some time and remain uncompleted. From the Master’s report, it appears that the Estate Late Mushimba, for instance, was reported in September 2014 and remains not finalised to date. It would appear further from the Master’s report that the second and final liquidation and distribution account was lodged in March 2016 but it has to date not been advertised. Against this backdrop, the applicant has been absent from the Republic for a period of six months and without authority in terms of the law. This, in my view, renders it undesirable for him to continue occupying the office of executor.

 

[135]   Meyerowitz, quoted above, opines that it must be shown that there must be duties to be performed and which may not be so performed because of the executor’s absence. In this case, the point of the matter is that the estates have stalled because of the 1st respondent’s absence. The files relating to the estates, which are necessary, for finalising the estates remain in Namibia. It is thus clear as noonday that he cannot, being absent from the Republic, be able to effectively and properly, wind up the estates. This is undesirable within the meaning of the Act.

 

[136]   Furthermore, it must be mentioned that the 1st respondent, probably in appreciation of his untenable position, in the Reviglio matter, purported to appoint P. D. Theron as his agents.[36] In this regard, he gave then extremely wide powers as his agents to wind up the said estate. This itself, is recognition that he cannot, himself be present to finalise the estates, which he was appointed to do. He has, in this regard, impermissibly, in my view, given them power which he himself does not have, e.g. to apply to the Master to appoint an Executor.[37] Mr. Corbett argued that this was impermissible abdication of responsibility and not delegation. I agree.

 

[137]   As noted elsewhere in the judgment, the reasons for the 1st respondent’s departure from the Republic remain unclear as much as they are tenuous. Why he is not returning, also remains a mystery. More importantly, when it is that he will return, is also a matter not of surmise, but of complete darkness. There are simply no details in this regard. It is not desirable that these estates have remained unfinished for such a long period of time. In this regard, the wishes of the beneficiaries, I am of the considered view cannot be completely ignored, especially in the light of the events described above.

 

[138]   In an undated letter bearing the Master’s stamp dated 18 March 2020, the Master wrote a letter to DHC Inc. in relation to the Estate Mushimba in which she mentions among other issues stated that it is public knowledge in Namibia that the 1st respondent ‘is now a fugitive of justice’. She required an undertaking that DHC Inc. would take over the role of executorship of the estate.[38]

 

[139]   It would seem that the Master was also in the dark about the 1st respondent’s absence. She then sought to have confirmation with DHC Inc. that they would take over the executorship and not leave of the estate in the lurch. It is undesirable for a person in the 1st respondent’s position of trust, to simply disappear and leave the estates, some of which have been outstanding for an inordinate period, in the lurch. I am of the view that the application to have him removed in terms of s 54 of the Administration of Estates Act, is fully justified in the circumstances.

 

[140]   This conclusion renders it unnecessary for the court to deal with another basis raised by the applicant’s namely, a conflict of interest between the 1st respondent’s personal and official duties as the executor. The absence from the Republic, unexplained as it is prolonged, and also being detrimental to the beneficiaries, it appears to me, is sufficient basis to relieve the 1st respondents from his duties as executor of the estates in question, namely Estates Mushimba and Reviglio.

Prayer 6.

 

[141]   The applicants also pray for an order that the 1st respondent be declared incapable during his lifetime, of holding office as an executor. I am of the view that this is a far-reaching prayer and does not, in my mind have sufficient motivation or basis in the papers, to enable the court to take such a drastic and profession-ending decision. This is so because even if found to have acted improperly, a person may be able to show the court some years later that he or she has reformed and transformed and is again fit to be allowed to hold such office. This order, if granted, would appear to make the process of reformation unnecessary, as the 1st respondent would have been faced with that fait accomplii and for life.

 

[142]   Happily, and correctly so Mr. Corbett indicated to the court that he was abandoning the said prayer. That approach is eminently correct and I shall say nothing more of this issue at all as the prayer was abandoned by the applicants.

 

Prayer 4

 

[143]   In this prayer, the applicants prayed to the court, having removed the 1st respondent as the executor in the three estates, to appoint certain named persons to take over as executors. I am of the considered view that such a prayer is incompetent and cannot be granted.

 

[144]   I say so for the reason that in the Mpasi judgment, the Supreme Court, in the last parts of the excerpt quoted above in para [125] above, made it abundantly clear that this court has power to remove an executor but has no power to appoint persons to take over the office. This it was said, is because the Act simply does not give this court the power to do so. This power resides exclusively in the Master. The Mpasi judgment of this court was overturned on appeal on this very aspect, as the court took the bull by the horns and appointed another person. I am not willing to fall into the same trap. As they say, once bitten, twice shy.

 

[145]   It appears to me that this court is ill equipped in assessing the fitness and propriety of a person being appointed. An office properly placed and probably resourced to perform that task, is that of the Master. I would therefor decline to grant the order prayed for. The Master may, in her discretion proceed and consider whether the persons suggested are suitable. She must, in this regard, use her powers to come to a decision on those persons or others that she may find are suitable for the task.

 

Costs

 

[146]   The ordinary rule that applies in matters of costs is trite. The costs follow the event. It is obvious in this matter that the applicants, together with the DHC respondents’ argument has carried the day. There is, in the circumstances, no reason why the ordinary rule should not apply in this case. If there has been any success by the 1st respondent, especially regarding the prayers that were not granted, such is only a drop in the ocean, proclaiming substantial success for the applicants and the DHC respondents.

 

[147]   It was drawn to the court’s attention that the applicants changed representation mid-stream such that there were at the end, two sets of instructing legal practitioners who were involved in the matter. That is a matter for the taxing officer to deal with and I need not burden this judgment with this issue at all. Because the issue of the striking out of certain portions of the 1st respondent’s affidavits was overtaken by events, I will order no costs in relation thereto. 

 

[148]   It is my fervent hope that as an officer of the court, the 1st respondent will not engage in the fears expressed by De Waal J in Mulligan, where the fugitive litigates from outside the jurisdiction, causing others to incur costs which he does not settle. Because of their absence from the jurisdiction, the costs levied cannot be enforced locally.

 

[149]   Last but by no means least, there is the application granted by Mr. Justice Geier on 3 July 2020 for the service of this application on the 1st respondent by substituted service.[39] He ordered that costs for that application should be costs in the cause. I am of the view that there is no reason why the costs for that application should not be awarded to the applicants as I hereby do.

 

Conclusion

 

[150]   Having regard to the entire conspectus of the matters submitted for adjudication, I am of the view that the applicants’ application, together, where appropriate, with that of the DHC respondents in so far as locus standi should succeed. In the final analysis, I am satisfied that this is a proper case for the removal of the 1st respondent as an executor in the estates mentioned above.

 

[151]   Finally, the court wishes to express it’s deep debt of appreciation to counsel on all sides for performing their duty to court in the most admirable fashion. In this regard, the animosity that manifests itself in many cases and which at times appears to grip legal practitioners as well, and be a constant companion in highly contested and emotive cases as this one could have been, was starkly absent. This redounded to the better and smoother resolution of this matter. To deal with the complex legal issues is difficult enough. When emotions of legal practitioners are added to that mix, it becomes a toxic atmosphere that renders the court’s work even more difficult.

 

Order

 

[152]   In the premises, the order that commends itself as appropriate in the circumstances of this matter follows below:

 

  1. The Applicants’ failure to comply with the prescribed time periods and service and enrolling the matter as one of urgency in terms of the provisions of Rule 73(4), is hereby granted.
  2. The First Respondent’s failure to file his supplementary affidavit timeously, is hereby condoned.
  3. It is declared that the First Respondent has no locus standi in judicio to oppose this application on account of him being held to be a fugitive from justice.
  4. It is declared that it is undesirable for the First Respondent to continue to act as an executor in the following estates, duly registered with the Master of the High Court:
    1. Estate Late Aaron Mushimba, 1424/2014;
    2. Estate Late Danilo Fernando Reviglio, 1617/2019; and
    3. Estate Late Adrienne Betty Penderis, 1743/2019.

 

  1. In consequence of the provisions of paragraph 3 above, the First Respondent is ordered forthwith to return the letters of executorship of the deceased estates mentioned above to the Office of the Master of the High Court.
  2. The Master of the High Court is directed to appoint suitable persons in the place and stead of the First Respondent as soon as is practicable but no later than four (4) weeks from the date of this judgment.
  3. The First Respondent is ordered to pay the costs of this application, in respect of the Applicants, upon the employment of one instructing and two instructed legal practitioners and in relation to the Fifth, Sixth and Seventh Respondents, upon the employment of one instructing and one instructed legal practitioner.
  4. The First Respondent is ordered to pay the costs of the application under Case No. HC-MD-CIV-EXP-2020/00202 consequent upon the employment of one instructing and one instructed legal practitioner.
  5. The matter is removed from the roll and is regarded as finalised.

 

___________

T. S. Masuku

Judge

 

 

 

APPEARANCES:

 

APPLICANTS:                                A. Corbett SC, with Him H. Garbers-Kirsten

Instructed by:                                    Koep & Partners,

             Windhoek

 

 

1ST RESPONDENT:                        Y. Campbell

Instructed by:                                    P. D. Theron & Associates,

             Windhoek

 

5TH – 7TH RESPONDENTS            T. Barnard

Instructed by:                                    DHC Inc.,

             Windhoek

 

 

 

 


[1] (CIV/APN/504/98 [1997].

[2] Act No. 66 of 1965.

[3] 1996 (1) SA 111 (W) at 113h).

[4] 1925 WLD 164.

[5] 1985 (2) SA 654 (T).

[6] 1985 (2) SA 654 (T), at p658.

[7] (Civil Appeal No. 158/05 ((Civil Appeal No. 158/05)) [2008] ZWSC 12 (10 September 2008).

[8] Case No. 3607/2004.

[9] Para 9 of the 1st respondent’s additional affidavit, p 604.

[10] Page 463 of the record, marked Annexure ‘J1’.

[11] Para 14, p 533 of the record of proceedings.

[12] Page 463 of the record of proceedings, marked Annexure ‘J1’.

[13] Article entitled ‘ACC Hunts for Fishrot lawyer linked to N$90m’, dated 4 February 2020 at p 551 of the record. It bears a picture of the 1st respondent.

[14] (CIV/APN/504/98 [1999] LSHC 20 (04 March 1999).

[15] Rule 6(4)(a).

[16] Page 265 of the record.

[17] Judgment No. S.C. 94/2000, Crim. Appeal No. 197/99.

[18] 1987 (2) SA 716 (C), per Van Den Heever J, (as she then was).

[19] 1967 (1) SA 574 (RA).

[20] 1963 (4) SA 871 (T).

[21] 1983 (1) SA 777 (T).

[22] 2011 (2) SA 294 GSJ); 2011 (2) SA 294.

[23] 1983 (2) SA 457 (ZS) per Fieldsend CJ.

[24] [2005] 1 All ER 945.

[25] [2002] 4 All ER 370.

[26] Drew v Thaw 235 US 432 at 439, (1914).

[27] P 321 of the record, para 1 of the 1st respondent’s answering affidavit.

[28] Ibid p 167.

[29] Rule 67(1)(a).

[30] Rule 67(1)(a).

[31] Vaatz v Law Society of Namibia 1990 NR 332 (HC) at 334.

[32] Shetu Trading CC v The Chair of the Tender Board of Namibia.

[33] Petroneft International Glencore Energu UK v Minister of Mines and Energy and Others 2012 (2) NR 781 (SC).

[34] (SA 86-2016) [2018] NASC (17 August 2018); 2018 (4) NR 909.

[35] Law and Practice of the Administration of Estates, 5th ed p100.

[36] Special Power of Attorney dated 21 March 2020, p 564 of the record of proceedings.

[37] Ibid, clause 6 of the power of attorney.

[38] Annexure ‘JP 19’, p 174 of the record of proceedings.

[39] HC-MD-CIV-MOT-EXP-2020/00202.