Court name
High Court
Case name
Gravato NO and Another v Redelinghuys
Media neutral citation
[2012] NAHC 6
Judge
Parker J





CASE NO












Reportable’








SUMMARY








CASE
NO.: A 401/2009













IN
THE HIGH COURT OF NAMIBIA













In
the matter between:













VICTOR
MANUEL FERREIRA GRAVATO N.O AND ANOTHER v DIRK JOHANNES VAN
DYK REDELINGHUYS













PARKER
J








2012
January 20


_______________________________________________________________________



Practice
-
Applications and motions – By
agreement between the parties the Court allowing applicants to file
replying affidavit – Court finding that the replying affidavit
does not contain new matter, as averred by the respondent –
Court concluding that the matter complained of by the respondent is
evidence adduced by the applicants to meet the challenge put forth by
the respondent in his answering affidavit – Consequently, Court
ruling that the applicants, replying affidavit stays and is admitted
as part of the applicants’ evidence in these proceedings.








Prescription
-
Defence of – Prescription Act (Act 68
of 1969), s 17(2) – Interpretation and application of –
Court finding that the respondent does not invoke prescription in his
papers but prescription is rather raised in respondent’s
counsel’s submission – In the circumstances of the case,
Court refusing to exercise its discretion in favour of allowing
counsel to raise prescription in his submission on the basis that to
allow it would occasion irredeemable prejudice to the applicants.







Prescription
-
Domicile of choice – Acquisition of –
Court accepting textual authority and Botswana case law that the
animus manendi requirement
of domicile may consist of an intention to reside permanently or for
unlimited time in the country of choice and it does not require an
intention never to change the new country of domicile – In
instant case, Court finding that, on the facts, the respondent’s
domicile as at time of his sequestration is in South Africa.











Held,
the rule of practice that ‘new matter’ may not be raised
in replying affidavit should not be applied blindly and mechanically,
without due regard to the facts and circumstances of the particular
case; and this is, above all, apart from the Court deciding at the
threshold whether what is contended as ‘new matter’ is,
in truth, new matter.








Held,
further, that the animus manendi requirement of domicile may
consist of an intention to reside permanently or for unlimited time
in the country of choice and it does not require an intention never
to change the new country of domicile; and that this proposition of
law indicated the direction in which the Roman-Dutch common law
should develop.








CASE
NO.: A 401/2009













IN THE HIGH COURT OF
NAMIBIA













In the matter between:








VICTOR MANUEL FERREIRA
GRAVATO N.O …...............................First
Applicant



DR MATHOLE SEROFO
MOTSHEKGA N.O ….............................Second
Applicant



and



DIRK
JOHANNES VAN DYK REDELINGHUYS
…..................................Respondent








CORAM:
PARKER J








Heard on: 2011 November
23



Delivered on: 2012
January 20



_________________________________________________________________








JUDGMENT



_________________________________________________________________







PARKER
J
: [1] The applicants brought application
on notice motion for relief set out therein. The respondent moved to
reject that application. The rule nisi sought in the notice of motion
was granted on 27 November 2009, with the return date of 29 January
2010. Subsequently, on diverse dates the rule nisi was extended, the
last date being 15 November 2010 when the matter was scheduled to be
heard; and, as I understand it, the reason for the extension of the
rule nisi was to enable the applicants to file their replying
affidavit which they have now done. I shall return to the issue of
the applicants’ replying affidavit in due course. Some 11 days
previous to 15 November 2010, by agreement between the parties, a
Notice of Removal from the Roll was filed by the applicants’
legal representatives who by so doing inadvertently allowed the rule
nisi to lapse without applying for the rule nisi to be extended.






[2]
The next scenario in the course of this matter is
the filing on 31 August 2011 by the applicants’ legal
representatives of a notice of motion in which the applicants sought
an order primarily to revive the rule nisi which had lapsed on 15
November 2010, as aforesaid, and extending the rule nisi to 30
September 2011. After a status hearing the following order was issued
on 19 September 2011 in terms of rule 6 (5C) of the Rules:







1.
As respects the 30 May 2011 Condonation Application; by agreement
between the parties, the late filing of the applicants’
replying affidavit is condoned, and there is no order as to costs.








2.
As respects the 31 August 2011 rule nisi revival application; by
agreement between the parties, the rule nisi which lapsed on 15
November 2010 is revived and the rule nisi extended to 30 September
2011, and there is no order as to costs.








3.
Counsel for the parties are called upon to attend a further status
hearing in chambers at 09h00 on 30 September 2011 for the purpose of
determining a suitable date for the hearing of the main application.’






[3]
The present proceedings are a hearing of the main
application, that is, a hearing to determine whether to confirm the
rule nisi and make a final order. The key issue which it is the
burden of the Court to determine is what the domicile of the
respondent was at the date of his sequestration by a competent court
in South Africa.






[4]
Both parties accept the principle of law that this
Court has discretion to recognize a foreign trustee (or liquidator)
so long as the insolvent (or the company) is domiciled in the
country, the competent court or tribunal of which issued the order
sequestrating the estate (or liquidating the company).
In
casu
, the applicants contend in the
founding affidavit (made by Victor Manuel Ferreira Gravato (the first
applicant)), an insolvency practitioner in South Africa, that the
sequestration of the respondent was made by the competent court of
the respondent’s domicile, South Africa.






[5]
The respondent takes issue with this piece of
evidence in the founding affidavit – and evidence it is (see
Stipp and Another v Shade Centre and
Others
2007 (2) NR 627 (SC); Tranet
Ltd v Robenstein
2006 (1) SA 591 (SCA))
– on the basis that the applicants only make a ‘bald
allegation’ that ‘the sequestration order of 20 March
2008 was granted by the Court of the respondent’s domicile and
they ‘provide no facts to substantiate’ what the
respondent characterizes as ‘this bald allegation’. Thus,
according to the respondent, no factual allegations are made in the
founding affidavit and that it is in the replying affidavit that the
applicants allege certain facts. And so, Mr. Barnard, counsel for
respondent, submits, ‘The respondent has no opportunity to
refute and explain this new matter raised for the first time in the
replying affidavit.’ Mr Dicks, counsel for the applicants,
argue contrariwise. As I see it; Mr. Barnard’s submission is,
with respect, disingenuous, and at best
petitio
principii
. Mr Barnard submitted that
the so-called ‘allegations do not justify an inference that the
respondent was domiciled in South Africa at the time (of his
sequestration) and further that these ‘allegations further do
not refute the facts stated by the respondent to show that he was in
fact domiciled in Namibia at the time’. If these are the
contentions of the respondent why would the respondent want to have
an ‘opportunity ... to refute and explain’ the ‘bald
allegations’? To refute and explain what, if I may ask? That
which is ‘bald’, as the respondent contends? That which
‘do not refute the facts stated by the respondent to show that
he was in fact domiciled in Namibia at the time’, as the
respondent contends?






[6]
With respect, on the facts, I do not accept Mr
Barnard’s submission that that statement is a ‘bald
allegation’. To start with, I will not characterize a statement
made by a deponent in an affidavit in application proceedings as an
‘allegation’: it is a statement of fact, given on oath,
that is, a piece of evidence, upon which the applicant relies for
relief in application proceedings within the meaning of rule 6 (1) of
the Rules of Court. In the instant case, it is a statement of fact
given on oath by the first applicant. He states that the contents of
his affidavit (i.e. the founding affidavit) ‘are within my
personal knowledge (unless otherwise stated or is apparent from the
content)’. The deponent does not ‘allege’; the
deponent states on oath that it is within his personal knowledge that
‘the sequestration order of 20 March 2008 was granted by the
Court of the respondent’s domicile ...’ I therefore, with
respect, fail to see in what manner that statement is ‘bald’.
In my opinion, a statement such as this one in an affidavit, may or
may not be ‘bald’, depending upon what the statement
seeks to convey. The word ‘bald’ (‘plain’ or
‘blunt’ (
Concise Oxford
English Dictionary
, 11 edn)) should,
therefore, not be thrown into every circumstance imaginable in a
clichéd manner. That statement is not plain or blunt; it is
replete with full meaning and sufficient information, to the extent
that it was capable of eliciting the respondent’s challenge as
appears in the respondent’s answering affidavit.






[7]
This brings me to the next level of the enquiry;
that is, to determine whether, as Mr Barnard submits, the evidence in
the replying affidavit constitutes ‘new matter’. As I
observed in
Alexander Forbes Group
Namibia (Pty) Ltd v Heinz Werner Ahrens
Case
No. LC75/2010 (Unreported) at pp 12-13, ‘the rule of practice
that “new matter” in a replying affidavit may not be
permitted should not be applied blindly and mechanically, without due
regard to the facts and circumstances of the particular case.’
This is, above all, apart from the Court deciding at the threshold
whether what is contended as ‘new matter’ is, in truth,
new matter. In the instant case, the applicants (through Gravato)
state on oath that in their personal knowledge the sequestration
order was granted by the Court of the respondent’s domicile;
that is to say, the domicile of the respondent was at all material
times South Africa.






[8]
The first applicant is an insolvency practitioner
in South Africa, as I have said previously, and from his affidavit it
seems to me clear that he has had personal knowledge of the papers
that were placed before the ‘Supreme Court of South Africa
(Transvaal Provincial Division)’, presently ‘the North
Gauteng High Court, Pretoria’ (‘the South African Court’)
during the sequestration proceedings and from that it is his evidence
that ‘the sequestration order of 20 March 2008 was granted by
the Court of the respondent’s domicile’. Thus, as Mr
Dicks submitted, ‘No wonder then that when this (present)
application was launched, there being no indication to the contrary,
the applicants stated ... that the respondent was sequestrated by the
court of his domicile.’ Thus, according to the applicants,
little did they think that the respondent would be so audacious as to
deny in a truly comparable Court in Namibia that he was domiciled in
South Africa as at the date of his sequestration; something which the
respondent did not aver in his papers before the South African Court.






[9]
Be that as it may, the respondent delivered, as I
have said previously, an answering affidavit in which he challenged
the applicants’ evidence that he was domiciled in South Africa
at all relevant times respecting his sequestration. In effect, as Mr
Dicks submits, the respondent invited the Court not to accept the
applicants’ evidence that the respondent was domiciled in South
Africa, as aforesaid. In my opinion, the next allowable available
opportunity open to the applicants in the present proceedings to
challenge the respondent’s answer is by way of a replying
affidavit. Has the applicants introduced new matter in their replying
affidavit? I think not. In my opinion, it ‘is simply evidence
which supports material already contained in the founding affidavit:
evidence adduced by the applicant to meet a challenge laid down by
the respondent in the answering affidavit (
Gerhard
Geldenhuys v Tula’s Plumbing
Case
No. A16/2004 (Unreported) at p12; see also
Namibia
Development Corporation v Aussenkehr Farms (Pty) Ltd
2010
(2) NR 703 (HC))’. Accordingly, I rule that the replying
affidavit stays, and its contents are admitted as part of the
applicants’ evidence in these proceedings.






[10]
I pass to consider whether on the facts the
respondent was domiciled in South Africa as at the date of his
sequestration. The applicants say he was. And why do the applicants
say so? This is what I have to enquire into in order to determine
whether the applicants have on the balance of probabilities (see
Ley
v Ley’s Executors and Others
1951
SA 186 (A)) established that the respondent had as at the date of his
sequestration the intention to reside (
animus
manendi
) indefinitely (the third
Pollock category, see Forsyth,
Private
International Law
, 4th
edn (2003): p 131) in South Africa.






[11]
In Botswana, according to Forsyth, the courts have
accepted that
animus manendi
may consist of ‘an intention to reside
permanently or for unlimited time in the country of choice. It does
not [require] an intention never to change the new country of
domicile’. And Forsyth writes further, ‘This effective
acceptance of Pollock’s third category of intention as
sufficient for the acquisition of a domicile of choice indicated the
direction in which the Roman-Dutch common law should develop
(Forsyth,
Private International Law,
ibid: p 134-5)’. And in determining whether a person has
acquired a domicile of choice or not, regard must be had to the
actions, life, statements and conduct of such person (
Ochberg
v Ochberg’s Estate and Another
1941
CPD 15). Furthermore, the mere
ipse
dixit
of the respondent, as an
interested party, should be carefully scrutinized (see
Massey
v Massey
1968 (2) SA 199 (T)). And, in
my opinion, that is more so in the circumstances of the instant case
where now before the Namibia High Court the respondent contends that
he was domiciled in Namibia at the time of his sequestration when the
respondent did not so contend before the South African Court, as I
have found previously.






[12]
I shall now proceed to apply the aforegoing
principles and approaches to the facts of this case; and in doing so
– I must say – I do not find any use,
pace
Mr Barnard, for the Plascon-Evans
rule (in Plascon-Evans
Paints v Van Riebeeck Paints
1984 (3)
SA 623 (A)). Mr Barnard submits that ‘from 1988 to July 2006
the respondent spent the majority of his time in South Africa but
continued farming activities in Namibia and attended to those farming
activities physically on continuous basis’. Mr Barnard submits
further that the ‘respondent attended in Namibia for continuous
periods of approximately three months per year and further one week
every two months’; whatever that means in terms of time frame.
Be that as it may, in my view, the respondent could not have in ‘1988
to July 2006, spent the majority of his time in South Africa’
and at the same time ‘continued farming activities in Namibia
and attended to these farming activities
physically
on a continuous basis
.’
(Italicized for emphasis) In any case, from his own evidence it seems
to me clear that in ‘1988 to July 2006’ the respondent
was ordinarily resident indefinitely in South Africa and he carried
out farming activities continually in Namibia during that period,
and, significantly, that indefinite residence in South Africa was
lawful (see
Government of the Republic
of Namibia v Getachew
2008 (1) NR1) on
account of the fact that the respondent holds both South African
citizenship and Namibian citizenship. Therefore, in my opinion, it
matters not on what passport the respondent travelled to and from
Namibia and South Africa. What is important is that all this fits the
domicile requirements adverted to previously: In 1988, the respondent
acquired a domicile of choice in South Africa. The fact that ‘in
1988 to July 2006’ the respondent
continually
travelled to Namibia in order to
continually attend
physically to farming activities during that period does not derogate
from the fact that he was domiciled in South Africa. (Italicized for
emphasis) The principles set out previously does not say that when X
acquires a domicile of choice in country B, X’s intention to
remain indefinitely in country B is excluded just because X leaves
country B occasionally and stays in another country, country D,
continually for certain periods; and it is of no moment what X
physically does whenever X is in country D during those periods. In
any case, the following pithy submission by Mr Barnard demolishes any
contention by the respondent that he was at the time of his
sequestration not domiciled in South Africa. Mr Barnard submits, ‘the
respondent was born and (he) grew up in Namibia but (he) moved to the
Republic of South Africa when (he became) an adult. The respondent
was factually resident in the Republic of South Africa for ‘
an
indefinite period
but not
permanently
and only intermittently’;
indefinite period but not
permanently’
, Mr Barnard says.
(Italicized for emphasis) If the respondent had no intention of
limiting the period of his residence in South Africa, that is, if he
had the intention of residing in South Africa for an indefinite
period, as Mr Barnard submits; with the greatest deference to Mr
Barnard, I do not see any merit in Mr Barnard’s argument that
the respondent had no intention of residing in South Africa
‘permanently’? The
animus
manendi
requirement of domicile is
fulfilled in respect of X where X has the intention to reside
permanently or for an unlimited time (i.e. ‘for an indefinite
period’) in the country of choice (Forsyth,
Private
International Law,
ibid, p 131 and the cases there cited). In the face of all this, I do
not, with respect, need to have recourse to the
Plascon-Evans
rule to be able to decide, as I have done, that on
the papers the evidence is clear and sufficient that as at the date
of his sequestration the respondent was on the facts and in law
domiciled in South Africa.






[13]
Does the fact that in the beginning of July 2006
the respondent moved back to Namibia ‘on a permanent basis’
– ‘on a permanent basis’, the respondent contends –
change the conclusion I have made? I think not. If the respondent,
after acquiring a domicile of choice in South Africa, as I have
found, had the intention thereafter to abandon that domicile and
thereafter had the intention to reside for an indefinite period in
Namibia, why would he do the following? Why would the respondent
state in his answering affidavit that from July 2006 he had no
address to return to in South Africa and yet he had stated in an
affidavit he had deposed to on 10 May 2007 in proceedings before the
South African Court that he resided at 55 George Street, The Strand,
Western Cape Province (South Africa)? What was so difficult for him,
if it was, indeed, the truth, for the respondent to state on oath
then that he had moved to Namibia and he had the intention to reside
in Namibia for an unlimited time? Of course, I accept Mr Barnard’s
submission that a person’s residence in country X on its own
and without more does not constitute that person’s domicile in
country X. But, of course, as respects the issue of domicile,
residence is important: it constitutes the
factum
requirement of domicile, and in the
instant case the respondent’s aforementioned statements in
those affidavits fulfil the
factum
requirement; and the animus
manendi
requirement is fulfilled by
such of the actions, statements and conduct of the respondent that I
have described previously (see
Ochberg v
Ochberg’s Estate and Another
supra).






[14]
For all the aforegoing reasoning and conclusions,
it is with firm confidence that I find that the applicants have
established on a preponderance of probabilities that when the
sequestration order was made by the South African Court the
respondent was domiciled in South Africa; and accordingly, I hold
that the sequestration of the respondent was made by the competent
court of the respondent’s domicile. The law and the facts of
this case inevitably compel this conclusion. It follows that in my
judgment the principle in
Government of
the Republic of Namibia v Getachew
supra,
referred to me by Mr Barnard, that a person obtains a new domicile by
choice if the previous domicile is abandoned (see also Forsyth,
Private International Law,
ibid: p 133) – which I accept as a correct statement of law –
cannot assist the respondent.







[15] But that is not the
end of the matter. Sensing that the respondent has no legal leg to
stand on as respects the issue of domicile, Mr Barnard finds a second
string to his bow – and legitimately so, I must add – in
the form of argument based on extinctive prescription. Without a
doubt, this is a rearguard action; an unacceptable rearguard action
on account of the fact that there is not a wraith of suggestion in
the respondent’s relevant application papers filed of record
that he also relies on prescription. Section 17 of the Prescription
Act, 1969 (Act 68 of 1969) provides:








(2)
A party to litigation who invokes prescription, shall do so in the
relevant document filed of record in the proceedings: provided that a
court may allow prescription to be raised at any stage of the
proceedings.’








Thus, it is for a party
raising prescription to allege and prove prescription (see Harms,
Amler’s Precedent of Pleadings, 4th edn: p
264). The respondent does not invoke prescription in his answering
affidavit, as Mr Dicks submitted and as I have found previously. In
my opinion, in the circumstances of this case, to allow prescription
to be raised in counsel’s submission at this late hour would
undoubtedly occasion irredeemable prejudice to the applicants, and so
I refuse to exercise my discretion in favour of allowing counsel to
raise prescription in these proceedings.








[16] For all the
aforegoing, I am satisfied that a case has been made out for the
grant of the relief sought; and so I must confirm the rule nisi
granted on 27 November 2009. As to the matter of costs; I do not,
with respect, accept Mr Dick’s submission that costs on the
scale as between attorney (legal practitioner) and client should be
awarded. I do not think that the conduct of the respondent –although
misguided – is such that it ought to attract such costs order.
That is to say, I do not think that the respondent’s conduct is
vexatious or frivolous. Accordingly, I hold it just and reasonable
that costs on the scale as between party and party should rather be
awarded: it meets the justice of the case.








[18] Whereupon, I make
the following order:









  1. The rule nisi granted on
    27 November 2009 is hereby confirmed.









2. The respondent must
pay the applicant’s costs of suit on the scale as between party
and party, and such costs shall include costs occasioned by the
employment of one instructing counsel and one instructed counsel.
















________________



PARKER J


















COUNSEL ON BEHALF OF
THE APPLICANTS:
Adv. G Dicks








Instructed by:
LorentzAngula Inc.


















COUNSEL ON BEHALF OF
THE RESPONDENT:
Adv. P Barnard








Instructed by: Kirsten
& Co. Inc.