Court name
High Court
Case number
HC-MD-CIV-ACT-CON- 1309 of 2020
Case name
The General Consulate of the Embassy of the Republic of Angola in Rundu vs Van Schalkwyk t/a Rundu Welding and Construction & Others
Media neutral citation
[2021] NAHC 191
Judge
Prinsloo J

 

REPUBLIC OF NAMIBIA

 

 

IN THE HIGH COURT OF NAMIBIA

 

Case Title:

THE GENERAL CONSULATE OF THE EMBASSY OF THE REPUBLIC OF ANGOLA IN RUNDU                                              PLAINTIFF

vs

ANTON ERIK VAN SCHALKWYK T/A RUNDU WELDING AND CONSTRUCTION                          FIRST DEFENDANT

DAVID EMMAUEL FREITAS DIAS  SECOND DEFENDANT

RENARD HATTINGH                           THIRD DEFENDANT 

Case No:

HC-MD-CIV-ACT-CON-2020/01309

Division of Court:

MAIN DIVISION

Heard before

HONOURABLE LADY JUSTICE PRINSLOO, JUDGE

Date of hearing:

06 April 2021

Delivered:

28 April 2021

Neutral citation: The General Consulate of the Embassy of the Republic of Angola in Rundu vs Van Schalkwyk t/a Rundu Welding and Construction(HC-MD-CIV-ACT-CON-2020/001309) [2021] NAHCMD 191 (28 April 2021).

Results on merits:

Merits not considered.

Having noted the non-appearance of Mr Mukonda and having heard MR VAATZ, on behalf of the First Defendant and having read the pleading for HC-MD-CIV-ACT-CON-2020/01309 and other documents filed of record:

 

Ruling:

1.       The court declines to make an order on the issue of locus standi as the matter is and remains res judicata in terms of the court order dated 4 December 2021.

2.       No order as to costs.

Further conduct of the matter:

 

3. The matter is postponed to 27 May 2021 at 15:00 for Status hearing.

4.  The Plaintiff must file a status report with specific reference to the ruling of this court dated 4 December 2020 regarding the issue of res judicata and why the current matter should still remain on the court roll. 

 

Reasons for orders:

 

Introduction

 

[1]      The matter before me has a history that dates back to in July 2018 when the plaintiff instituted action  against the first, second and third defendant under case number: HC-MD-CIV-CON-2018/02850 in which the plaintiff claimed for the confirmation of the deed of sale and the contract of transfer in respect of Erf 1582, Extension 3, Rundu entered into by the first and second defendants on the one hand and the plaintiff on the other, the cancellation of the Deed of Transfer number 321/20120 and ordering that the abovementioned property be transferred into the his name as well as various payments against the defendants. 

 

[2]         During the course of the case management process the first and third defendant demanded security of cost in the amount of N$100 000 each against the plaintiff in terms of Rule 59. The plaintiff unsuccessfully opposed the application for security for costs where after the Court ordered payment of security for costs in the amount of N$ 100 000. As a result of the defendant’s failure to comply with the said order the court proceeded to dismiss the plaintiff’s action on 11 March 2019.

 

[3]        It is important to note that on 31 January 2019 the first defendant filed his plea  under the aforementioned matter wherein he pleaded  as follows:

 

              ‘1st Defendant states that the consulate, cited herein as the Plaintiff, has no locus standi to bring an action as it is not a separate legal persona in terms of Namibian law and for that reason alone has no basis on which to bring this action.’

 

[4]       The plaintiff issued out new summons under the current case number on 24 March 2020 on the exact same particulars of claim as set out in case HC-MD-CIV-CON-2018/02850.

 

[5]      The first defendant filed his plea of res judicata on 31 August 2020.

[6]        The third defendant also raised a special plea of res judicata on 30 September 2020, which was heard on 16 November 2020. The court upheld the special plea on 4 December 2020[1].

 

[7]      On 16 October 2020 the plaintiff filed an application to strike out the first defendant’s plea for failure to comply with rule 45(2) of the Rules of Court. In his answering affidavit the first defendant referred to his plea in case HC-MD-CIV-CON-2018/02850 and again raised the plaintiff’s lack of the locus standi to institute the current action. It is noticeable that the first defendant did not in this instance plead the plaintiff’s lack of locus standi.

 

[8]      Although the issue of res judicata remained the operative position in this matter the first defendant insisted on the court ruling on the plaintiff’s legal standing in the current matter, however after careful consideration of the papers before me it is noticeable that the first defendant did not in current matter plead the plaintiff’s lack of locus standi.

 

[9]         Having decided the issue of res judicata previously it would be superfluous to decide the issue of locus standi at this stage of the proceedings and in the absence of plea in this regard by the first defendant.

 

[10]        Case HC-MD-CIV-CON-2018/02850 has been adjudicated by a competent court and as per my earlier ruling may not be pursued further in the current matter.

 

[11]          To date the plaintiff has taken no steps, to my knowledge, in order to have the orders granted under case HC-MD-CIV-ACT-CON-2018/02850 to be varied, altered or rescinded and as a result the court order issued under the aforementioned case number is still valid and as a result I will decline to pronounce myself on the issue of locus standi in the current matter.

 

[12]            My order as set out above.

 

Judge’s signature:

Note to the parties:

 

Not applicable.

Counsel:

PLAINTIFF

 DEFENDANT

Mr R Mukonda

Of Mukonda and Co Inc.

Windhoek

Mr A Vaatz

Of Andreas Vaatz and Partners

Windhoek

     

 

 

 

[1] The General Consulate of the Republic of Angola in Rundu v Van Schalkwyk (HC-MD-CIV-CON-2020/01309) [2020] NAHCMD 560 (4 December 2020).