THE SUPREME COURT OF NAMIBIA
NO: SA 15/2013
24 JUNE 2015
the matter between
SHIVUTE CJ, MAINGA JA and O’REGAN AJA
2 March 2015
24 June 2015
AJA (SHIVUTE CJ and MAINGA JA concurring):
appeal is brought, with leave of the High Court, against a judgment
of the High Court refusing two applications brought in terms of rule
30 of the High Court Rules.
The background to the appeal can briefly be described as follows.
On 24 February 2012, Mr August Maletzky
(the first respondent in this court and the first applicant in the
High Court) and 28 others launched an application in the High Court
against 40 respondents including the three appellants in this court.
For ease of reference, Mr Maletzky and the 28 others shall be
referred to in this judgment as ‘the applicants in the High
Court’. The 40 respondents in the High Court will be referred
to as ‘the High Court respondents’, and the three
appellants in this court will be referred to as ‘the three
applicants in the High Court were not represented by legal
practitioners either in the High Court or in this court. The relief
sought in the notice of motion was extremely far-reaching. At its
core lie two principal submissions.
The first is that it is inconsistent with the Constitution for Clerks
of Magistrates’ Courts to have the power to issue default
judgments, and the second is that no warrant of execution against
immovable property should be issued by either the Registrar of the
High Court or a Clerk of the Magistrates’ Court without
Based on these arguments, the applicants in the High Court seek as
relief, amongst other things, a declaration that proceedings in which
either the Registrar of the High Court or a Clerk of the Magistrates’
Court issued a warrant of execution against immovable property
without judicial oversight are null and void with effect from 21
March 1990. They also seek
relief declaring the purported registration of transfer of immovable
properties as a result of ‘the unconstitutional judgments’
to be null and void.
The papers do not disclose the number of orders and sales in
execution that would be affected by the relief sought, but given the
25 years that have elapsed since 1990, it is clear that there would
be a very large number. The consequence of the relief sought
may well affect the validity of the title of every owner of a
property that has been sold in execution following the issue of a
warrant of execution either by the Registrar of the High Court or a
Clerk of the Magistrates’ Court since March 1990.
The prayers in the notice of motion read as
Condoning non-compliance with the Rules of this Honourable Court
insofar as it is necessary in terms of Rule 27(3) of the Rules of the
Declaring it unconstitutional of the Registrar of the High Court to
declare immovable property specially executable.
Declaring proceedings in terms of which the 11th
respondents issue warrants of execution against immovable property
without judicial oversight by the High Court are null and void with
retrospective effect from 21 March 1990 and that all warrants of
execution against applicants’ immovable property are null and
Declaring s 27A of the Supreme Court Act 1959
unconstitutional insofar as it authorises the Registrar of the High
Court to declare immovable property specially executable when
ordering default judgment under rule 31(5)(a) of the Rules of the
High Court to the extent that it permits the sale in execution of the
home of a person. Such order to be retrospective to the inception of
Declaring it unconstitutional for the Clerk of the Magistrates’
Court to grant default judgments and to declare movable and immovable
property executable in terms of such default judgment.
Declaring s 66(1)(a)
of the Magistrates’ Court Act of 1944 to be unconstitutional
and invalid for failure to provide judicial oversight over sales in
execution of immovable property.
Declaring that in light of judgment being granted in terms of prayers
2, 3, 4 and 5 supra,
the default judgments granted by the Registrar of the High Court and
the Clerk of the Court of the Magistrates’ Court against the
applicants to be unconstitutional, alternatively unlawful and set
Declaring that in the light of the above judgments in prayers 2, 3
and 4 the default judgments granted by the Registrar of the High
Court and the Clerk of the Court of the Magistrates’ Court
against the applicants to be unconstitutional, alternatively unlawful
and set aside.
Setting aside the sale in execution of immovable properties of the
applicants as a result of the judgments issued either by the
registrar of the High Court or the Clerk of the Magistrates Court.
An order declaring the purported registration of transfer of
immovable properties as a result of the unconstitutional judgments
issued by either the registrar of the High Court or the Clerk of the
Court as null and void ab initio,
from the inception of the Namibian Constitution.
Setting aside the sales in execution of movables of the applicants as
a result of the judgments complained of in 2, 3, 4 and 5 supra.
Setting aside the sale and transfer of the immovable property
situated at erf 455, Dominicius Bohitile Street, Katutura, Windhoek
in favour of the 19th
Declaring the sale and transfer of the immovable property situated at
erf 455, Dominicius Bohitile Street, Katutura, Windhoek in favour of
respondent null and void.
Declaring all transactions between 16th
respondents fraudulent vis-à-vis
the loans advanced to 21st
respondents using applicant’s property as surety;
Setting aside the judicial attachment of the property erf 3713
Heideweg, Khomasdal, alternatively setting aside the sale of same;
respondent to reverse the transfer of erf 3713 Heideweg, Khomasdal,
Namibia to 21st
respondents and restoring ownership in the name of the 16th
Declaring eviction from residential property which leads to
homelessness without provision of alternative accommodation or
shelter to be unconstitutional.
Declaring it illegal to levy legal costs to mortgage bond accounts.
Declaring it illegal to levy untaxed legal costs on mortgaged bonds
Costs of this application be paid by those respondents who elect to
oppose it jointly and severally, the one paying the other to be
Further or alternative relief.’
first, second, fifth, sixth and eighteenth respondents
in the court below gave notice of their intention to oppose the
application. All five of them lodged applications in terms of
rule 30 to have the notice of motion and founding affidavits set
aside on the basis that they were irregular. The applications
identified eight irregularities in the notice of motion and founding
affidavits. Following the lodging of the rule 30 applications,
various of the applicants in the High Court lodged notice of their
intention to oppose the rule 30 applications and also lodged a notice
entitled ‘Request for Documentary Proof of Authority’
which elicited further rule 30 applications from the first, sixth and
eighteenth respondents in the High Court. Miller AJ heard
argument on the two sets of rule 30 applications jointly. His
reasoning is brief. He observed that there is no obligation in
motion proceedings for a power of attorney to be lodged by
respondents authorising their legal practitioners to act on their
behalf and he dismissed Mr Maletzky’s submissions on this
score. He did not expressly uphold the second set of rule 30
applications brought by the first, sixth and eighteenth respondents.
As to the objections raised in their rule 30 applications by the five
respondents in the High Court to the notice of motion and founding
affidavits, his cursory reasoning reads as follows:
I do not deem it necessary to deal exhaustively with each of the
steps taken by the applicants which the respondents contend are
irregular. I am prepared to accept that individually and
collectively, the steps taken and complained of are to a greater or
lesser degree irregular thus rendering the papers filed by the
applicants less than perfect.
However when looking at the papers as a whole imperfect as they may
be, none of the respondents who complain about them, can show that
they are prejudiced by these irregularities.
In the result, the applications are dismissed with costs, such costs
to be limited to necessary expenses and disbursements.’
The three appellants (the first, second and
sixth respondents in the High Court) then applied for leave to appeal
against the decision to dismiss the rule 30 applications and leave to
appeal was granted.
Rules of this court do not require respondents in appeals to lodge a
notice of opposition to an appeal, so it is not clear to the court
whether all the original applicants in the High Court matter oppose
the appeal. The first respondent in this appeal (Mr Maletzky)
lodged written argument opposing the appeal, but no written argument
was received from the other 28 respondents who were the applicants in
the High Court. At the hearing of the appeal, the Chief
Justice, who was presiding in the appeal, called out the names of
these 28 respondents to determine whether they were in court, whether
they were opposing the appeal and whether they wished to make oral
submissions to the court. Excluding Mr Maletzky, ten of the other 28
respondents were present in court.
All ten indicated they wished to oppose the appeal, and all ten
associated themselves with the submissions made by Mr Maletzky. The
court was informed from the Bar that three of the other 18 original
applicants were deceased.
No affidavits were placed before the court to confirm this. The
court was not informed of the attitude of the remaining 15 of the
three appellant’s submissions
The three appellants submitted that the
High Court had erred in finding that they were not prejudiced by the
irregularities in the notice of motion and founding affidavits. They
persisted with the arguments they had presented to the High Court
that the notice of motion and founding affidavits were irregular in
eight respects, and submitted that they had suffered or would suffer
prejudice as a result of each of the irregularities. The eight
irregularities can be summarised as follows:
defective attestation of affidavits by the
commissioner of oaths;
incomplete founding papers, especially
misjoinder of parties and issues;
incorrect remedies pursued;
non-joinder of essential parties;
failure to comply with rule 18(6) in failing to annex contracts
relied upon; and
failure to comply with rule 6(1), in that the founding affidavit
contains a confusing and incomplete account of the relevant facts.
In the light of these eight irregularities,
the three appellants submitted that the notice of motion and founding
affidavits were irregular proceedings and should be set aside.
As mentioned above, the only respondent to
lodge written argument and make oral submissions was the first
respondent, Mr Maletzky. Mr Maletzky is not an admitted legal
practitioner and represented himself. Perhaps not surprisingly,
his submissions did not address many of the legal arguments raised on
behalf of the three appellants. In brief, his main submissions
were that the High Court order should be upheld, and that the relief
sought by the respondents in the court below was based on the
limine objection raised by first respondent
At the hearing, Mr Maletzky, without
notice, raised an objection to the powers of attorney lodged on
behalf of the three appellants. His objection was based on the
fact that the three appellants had failed to annex board resolutions
to the powers of attorney they had filed with this court. Rule
5(4)(a) of the Supreme Court Rules regulates the lodging of powers of
attorney. It provides that –
the notice of appeal or of cross-appeal is lodged by an attorney, he
or she shall within 21 days thereafter lodge with the registrar a
power of attorney authorising him or her to prosecute the appeal or
This rule does not require an attorney to
lodge a resolution authorising the signatory of the power of attorney
to sign it. All three appellants lodged signed powers of
attorney authorising their legal practitioners of record to act on
their behalf in the prosecution of their appeal. As each of the
three appellants is a corporation, officials employed by the
appellant in each case, signed the power of attorney on the
appellant’s behalf. In the case of the first appellant,
the head of the legal department signed the power of attorney, and
his authority to sign was recorded in a document annexed to the power
of attorney entitled ‘Certificate of Authorised Signatories of
Standard Bank Namibia Ltd’. This document referred in turn to a
resolution of the Board of Directors of the appellant dated 15 March
2011. In the case of the second appellant, two officials of the
second appellant signed the power of attorney. The officials
were duly authorised in terms of a resolution of the Board of
Directors that was annexed to the power of attorney. In the
case of the third appellant, the power of attorney was signed by the
manager of a legal department of the third appellant that was
accompanied by a resolution of the Board of Directors dated 31
January 2013. These powers of attorney were compliant with Rule
5(4)(a). The point in limine
raised by Mr Maletzky therefore must be dismissed as it has no merit.
Issues to be
It is not necessary to consider all the
challenges raised by the three appellants. However, we will consider
the following questions:
Was the service of the founding papers
Has there been a misjoinder of appellants and respondents?
Has there been a non-joinder of necessary parties?
Has there been material non-compliance with rule 6?
May this court interfere with the exercise
of the discretion of the High Court on appeal in relation to the rule
The three appellants argued that the notice
of motion and founding affidavits were not properly served on the 40
respondents in the High Court, and in particular, not properly served
on the first and second appellants. In their rule 30 applications,
the appellants sought to have the service declared to be ‘irregular
and improper . . . and consequently, the application is set aside,
alternatively struck out’. In their written heads of
argument, and in oral submissions, however, counsel for the
appellants submitted that if service on first and second appellants
had not been proper, the court should order that the applicants in
the High Court be ordered to effect proper service on the first and
At the hearing, Mr Maletzky disputed the
contention of defective service, and repeatedly asserted that there
had been proper service within the terms of the rules on all 40
respondents in the High Court. However, the returns of service that
form part of the record indicate otherwise. The following defects are
apparent from the returns of service:
No return of service was provided at all in the case of seven of the
respondents – 8th
respondent (Mr A Hoveka), 11th
respondent (the Registrar of the High Court), 16th respondent, (Van
Der Merwe-Greeff Inc), 19th
respondent (Mr Risto Shikulo), 35th
respondent (National Housing Enterprise), 38th
respondent (Ms C Mbapaha), and 39th
respondent (Mr S Halupe). None of these respondents lodged notices of
intention to defend, and it may be that at least some of them remain
unaware of the application.
In the case of two respondents (24th respondent (Mr B T
Van Wyk) and the 37th respondent (Woermann Brock Inc.)),
the returns of service indicate that the deputy-sheriff was unable to
serve the process. Again neither of these respondents lodged notices
of intention to defend and it may be that they are unaware of this
A further at least 15 respondents in the High Court (including the
first and second respondents, now the first and second
appellants) appear to have
been served not personally at their place of residence or
business, place of
office or business
as rule 4 requires, but at firms of legal practitioners. It is
not apparent from the record that the respondents had appointed these
firms of legal practitioners as their agents to receive service of
process in this matter and
it is clear that the notice of motion could not properly be described
as ‘interlocutory’ or ‘incidental’ in
relation to pending proceedings where any of the respondents had
appointed legal practitioners.
Only two respondents out of this group (the first and second
respondents) filed notice of their intention to oppose, which
suggests that the remaining respondents amongst this group may remain
unaware of the litigation.
There are thus material defects in the
service of the founding papers in the case of at least 24 of the 40
respondents in the High Court, including the first and second
appellants. Moreover, to the extent that the respondents have real
rights in immovable property that has been sold in execution
following the issue of a warrant of execution by the Registrar of the
High Court or a Clerk of the Magistrates’ Court, they will have
a direct and substantial interest in the relief sought by the
applicants in the High Court. Although the founding affidavit is
unclear in many respects, a matter returned to later in this
judgment, it appears that the relief sought by the applicants would
affect the interests of many of the respondents in the High Court.
is a fundamental principle of fairness in litigation that litigants
be given proper notice of legal proceedings against them.
Defective service can be raised in different ways during the
litigation process. In two recent decisions, somewhat different
outcomes were reached by the Namibian High Court in determining the
effect of defective service in the initiation of proceedings. In
NO v Josea and Another,
Damaseb JP had to consider the adequacy of service of a rule
sequestration proceedings. Damaseb JP found that on the record before
him that the respondent the sequestration of whose estate was sought
(Mr Josea) had not been served with a copy of the rule
and the founding papers and he held that the proceedings were
accordingly null and void. The High Court held that –
there is complete failure of service it matters not that, regardless,
the affected party somehow became aware of the legal process against
it, entered appearance and is represented in the proceedings. A
proceeding that has taken place without service is a nullity and it
is not competent for a court to condone it.’
An apparently different outcome was reached
in Witvlei Meat (Pty) Ltd and Others v
Disciplinary Committee for Legal Practitioners and Others. The
case concerned the question whether the Disciplinary Committee for
Legal Practitioners had been properly served with the application.
The Disciplinary Committee had originally entered an appearance to
defend but then withdrew its opposition to the application. Counsel
for another respondent argued as a point in
limine that service on the Disciplinary
Committee had been defective because it had been effected on the
Office of the Government Attorney, when service should have been on
the Chairperson of the Committee. Smuts J held that the rule in the
should be confined to the facts of that case which had concerned an
application that affected status. He held that –
present circumstances are different and distinguishable. There was
service on the Government Attorney in respect of a committee whose
secretary is an employee of the Ministry of Justice. But any defect
as far as that was concerned would in my view be cured by the
entering of opposition by the committee. The fundamental
purpose of service is after all to bring the matter to the attention
of a party, including having the benefit of an explanation as to the
meaning and nature of the process. If a party then proceeds to enter
an appearance to defend or notice to oppose through legal
representatives, the fundamental purpose has been met, particularly
where the legal representative in question had been served with the
process (and was thus in possession of the papers and would
appreciate their import)’.
The two cases turned on different facts and
neither of them involved an application to set aside a pleading or
notice of motion as an irregular step in terms of rule 30 of the High
Court Rules on the basis of defective service and accordingly neither
can provide firm guidance as to the manner in which defective service
should be addressed in this appeal.
In addressing the appellants’
arguments in this regard, it will be helpful to address four issues
briefly: (a) what is the purpose of service? (b) does defective
service always constitute a nullity, or may irregular forms of
service, short of a nullity, be condoned? (c) is it necessary for an
applicant to show prejudice in addition to defective service in a
rule 30 application? and (d) what is the effect of a decision in a
rule 30 application that there has been defective service – is
the irregular service set aside, or is the pleading or process that
has been served set aside?
is the purpose of service?
purpose of service is to notify the person to be served of the nature
and contents of the process of court and to provide proof to the
court that there has been such notice.
The substantive principle upon which the rules of service are based
is that a person is entitled to know the case being brought against
him or her and the rules
governing service of process have been carefully formulated to
achieve this purpose and litigants should observe them. In construing
the rules governing service, and questions whether there has been
compliance with them, this fundamental purpose of service should be
borne in mind.
defective service always constitute a nullity, or may irregular forms
of service, short of a nullity, be condoned?
argued that improper service constitutes a nullity relying, amongst
other authorities, on the dictum in Knouwds
above at para 17. Yet the court in Knouwds
clearly considered there to have been ‘a complete failure of
service’ in that case that could not be condoned, which
suggests a distinction between a nullity and a less serious form of
non-compliance in relation to service, which may be condoned.
This is a distinction that has been drawn by the South African
courts, which have held that irregular service may be condoned, where
the service is not so irregular as to constitute a nullity.
The line between ‘a complete failure of service’ and
‘irregular service’ is not always easy to draw but will
be a ‘question of degree’.
the possibility that irregular service may be condoned where there
has not been a ‘complete failure of service’ will avoid
an over-formalistic approach to the rules, for an approach that
precludes condonation whenever there has been non-compliance with the
rules regulating service may prejudice the expeditious,
cost-effective and fair administration of justice.
The possibility of condonation of irregular service that falls short
of a nullity, would also accord with the approach to civil procedure
evident in the new Rules of the Namibian High Court that came into
force in April 2014, and with the recently introduced practice of
judicial case management that seeks to ensure expedition, fairness
and cost-effectiveness in the administration of justice.
it necessary for an applicant to show prejudice in addition to
defective service in a rule 30 application?
to set aside process that has been served irregularly in terms of
rule 30 will ordinarily only succeed if the defendant can show he or
she has suffered prejudice in relation to the proceedings as a result
of the defective service.
The requirement of showing prejudice accords with the well-known
dictum of Schreiner JA in Trans-Africa
Insurance Co Ltd v Maluleka –
doubt parties and their legal advisers should not be encouraged to
become slack in the observance of the Rules which are an important
element in the machinery for the administration of justice. But
on the other hand technical objections to less than perfect
procedural steps should not be permitted, in the absence of
prejudice, to interfere with the expeditious and if possible
inexpensive decision of cases on their real merits.’
many cases, the issue of prejudice will traverse similar
considerations to those that will be relevant to the question of
condonation of irregular service.
Accordingly, if prejudice is not established, and the service of a
summons is not ‘patently bad’
but condonable, it is likely that condonation of the irregular
service will be granted, and the rule 30 application will not
What is the
effect of a decision in a rule 30 application that there has been
effect of a finding in a rule 30 application that service has been
irregular, is that the irregular service will ordinarily be set
aside, and leave will ordinarily be given to the relevant party to
cause proper service to be effected within the terms of the
rules. In this case, the
relief initially sought by appellants in their rule 30 application
was an order that the service on them had been ‘irregular and
improper . . . and consequently, the application is set aside,
alternatively struck out’. However, in their written and oral
submissions, counsel for the appellants appeared to accept that an
order setting aside the application would not follow from a finding
that the service was irregular or void.
is clear is that the relief sought by the three appellants when they
launched their rule 30 application was the setting aside of the
notice of motion and founding affidavit. However, that is not relief
that will ordinarily follow from a conclusion that service has been
irregular, or even void.
Given this court’s conclusion in this appeal on the other
grounds raised by the appellants, the question of whether condonation
should be granted for the defective service or whether the service
constituted a nullity need not finally be decided here.
Accordingly beyond noting that there was defective service on two of
the appellants, as well as on at least 28 of the other respondents in
the High Court, nothing further will be said on this score.
Has there been a
misjoinder of applicants and respondents?
Rule 10(1) of the Rules of the Namibian
High Court, as it read at the time of the initiation of these
proceedings in the High Court, provided that -
number of persons, each of whom has a claim, whether jointly, jointly
and severally, separately or in the alternative, may join as
plaintiffs in one action against the same defendant or defendants
against whom any one or more of such persons proposing to join as
plaintiffs would, if he or she brought a separate action, be entitled
to bring such action, provided that the right to relief of the
persons proposing to join as plaintiffs depends upon the
determination of the same question of law or fact which, if separate
actions were instituted, would arise on each action, and provided
that if there may be a joinder conditionally upon the claim of any
other plaintiff failing.
Rule 10(3) provided that –
defendants may be sued in one action either jointly, jointly and
severally, separately or in the alternative, whenever the question
arising between them or any of them and the plaintiff or any of the
plaintiffs depends upon substantially the same question of law or
fact which, if such defendants were sued separately would arise.’
6(14) provided that rule 10 will apply to motion proceedings.
The question thus arises whether the issues
between the different applicants and respondents in the High Court
‘depend upon the determination of substantially the same
question of law or fact’. As set out at para  above, the
notice of motion and founding affidavit in this matter seek
wide-ranging relief including both general declarations of
constitutional invalidity and specific declarations of invalidity in
relation to the applicants in the High Court as well as certain named
general constitutional relief sought includes prayers for a
declaration that the power of the Registrar of the High Court to
declare immovable property ‘specially executable’ is
declaration that the issue of warrants of execution by the Registrar
of the High Court without judicial oversight is unconstitutional;
a declaration that section 27A of the Supreme Court Act, 1959 is
declaration that the power of Clerks of Magistrates’ Courts to
grant default judgments and to declare movable and immovable property
executable is unconstitutional;
a declaration that s 66(1)(a)
of the Magistrates’ Court Act is unconstitutional;
a declaration that registration of transfer of property; as a result
of unconstitutional orders is null and void;
a declaration that eviction from residential property which leads to
homelessness without provision of alternative accommodation is
unconstitutional; and a
declaration that it is ‘illegal’ to levy legal costs on
specific relief sought by the applicants in the High Court relates to
25 individual cases involving the 29 applicants. Only a few of the
prayers in the notice of motion relate to specifically identified
properties or litigants.
For the rest, the relief in the notice of motion related to specific
relief for the applicants is not directed at individual cases or
applicants but is formulated in a general manner in relation to all
the applicants. An example is that contained in para 9 of the notice
of motion, which seeks the following relief: ‘Setting aside the
sale in execution of immovable properties of the applicants . .
It would appear that the prayers for
specific relief are mostly dependent, in the first place, on the
success of the general constitutional claims, set out in para 
above. However, even if the constitutional claims were to be
successful, it does not follow as a matter of course that the
specific relief in the individual cases would succeed. First, the
specific claims could only succeed if a declaration of constitutional
invalidity were to have retrospective effect. Article 25(1) of the
Constitution makes plain that where a court concludes that a law or
action ‘abolishes or abridges’ a fundamental right in the
Constitution, the court need not declare the law or action to be
invalid with retrospective effect, but ‘shall have the power
and discretion in an appropriate case to allow Parliament . . . to
correct any defect in the law or action within a specified period’.
Pending the correction by Parliament, the law will be deemed to be
valid. It may be that this is a case, given the potential harm
that could be occasioned to innocent third parties by an order of
constitutional invalidity with full retrospective effect, in which a
court would consider a suspended order of invalidity as contemplated
by Art 25(1). This is not an issue we need decide to now and we
express no further view on it. What is clear, however, is that it may
well be that the specific relief sought by the applicants in the High
Court would not be granted unless the constitutional relief was
granted with at least some retrospective effect.
it may be that even if the constitutional relief were granted with
retrospective effect, that disputes would arise in each specific case
as to whether the circumstances of each of the specified properties
were such as to fall within the terms of the constitutional relief
granted. Given the lack of clarity and specificity in the founding
affidavit, it is not easy fully to comprehend the facts upon which
the applicants rely in relation to each of the 25 individual cases, a
matter to which I return later in this judgment. Nevertheless, it is
clear that even if constitutional relief were to be granted, relief
would not necessarily follow in many of the individual cases. For
example, four of the 25 cases appear to arise in circumstances where
the individual applicants transferred their property to family
members or acquaintances, allegedly under a misapprehension as to
what they were doing,
prior to the property being sold in execution. Whether any relief
would lie in these cases, even were constitutional relief to be
obtained, is questionable and would depend on the facts that were
established in each case. What is clear is that each of these
cases will turn on its own facts, and cannot be described as turning
on ‘substantially the same questions of law and fact’ as
either the claims for general constitutional relief or the other 21
another of the individual cases, concerning the 18th
applicant, the default judgment appears to have been granted by a
judge, and not by the Registrar of the High Court or a Clerk of the
Magistrates’ Court. Although the warrant of execution is
annexed to the founding affidavit, there is no evidence or averment
that a sale in execution followed. It is not clear therefore that any
relief would follow even were the general constitutional relief to be
granted with retrospective effect. In a number of other cases,
there is no explicit averment that suggests that a sale in execution
of property of the applicants has taken place
so it is not clear what relief would be sought in the absence of any
averment that the properties have in fact been sold.
The three appellants argue that they have
been prejudiced by the misjoinder of issues in that it will be
necessary for them to traverse all the allegations in the founding
affidavit and respond to them. Given that in many cases, they
have no direct interest in the specific claims for relief, this will
cause them unnecessary time and expenditure both in preparation of
their answering affidavits and in preparing and submitting argument.
Given that many of the individual cases do
not turn on ‘substantially the same questions of law and fact’,
it cannot be said that all the individual cases have been properly
joined. Accordingly, the three appellants’ argument that
there has been a misjoinder must succeed in part, at least in
relation to the specific prayers for relief for all the applicants
contained in paras 7, 8, 9, 11, 12, 13, 14.1, 14.2,14.3 and 17.
three appellants also argue that the notice of motion and founding
affidavits should be set aside because the applicants in the High
Court have failed to join all parties who have a direct and
substantial interest in the relief sought. The general constitutional
relief sought, were it to be granted with full retrospective effect,
would affect many third parties who have not been cited as
respondents. Indeed, the applicants in the High Court have in
several cases not even identified or cited the persons who purchased
applicants’ properties at the sales in execution which they
seek to have set aside.
These are blatant examples of non-joinder.
the fact that, amongst other relief, the applicants in the High Court
seek a declaration that all proceedings since March 1990 in terms of
which the Registrar of the High Court issued warrants of execution
without judicial supervision are null and void,
it is difficult to know how many people, and who, may have a direct
interest in the relief sought. This court was not informed of
the number of warrants of execution that have been issued by the
Registrar of the High Court since 1990. It is plain that there
will have been many.
Not only would all judgment creditors in
those cases have a direct interest in such relief, but so would
everyone who has purchased a property at any affected sale in
execution, as well as all their successors in title. In addition, the
applicants in the High Court did not join all the Clerks of the
Magistrates’ Courts in Namibia, despite the fact that the
relief they seek directly affects all Clerks of Magistrates’
Courts. All these people and institutions would have a direct and
substantial interest in the relief sought by the applicants in the
30 may be used to object to a notice of motion that does not join all
necessary parties. The
failure to join necessary parties may result in the proceedings being
challenged and set aside. As was argued by the three appellants, the
non-joinder of necessary parties may well result in the proceedings
subsequently being set aside, which will cause them prejudice, not
least because they may incur unnecessary costs. The effect of the
non-joinder, given the prejudice to the three appellants, must be
that the notice of motion and founding affidavits must be set aside
as an irregular step in their entirety.
with rule 6
6(1) of the High Court Rules provides, in relevant part that ‘every
application shall be brought on notice of motion supported by an
affidavit as to the facts upon which the applicant relies for
relief’. The purpose
of identifying the key facts in the founding affidavit is to enable a
respondent to know what case must be met.
The founding affidavit must thus contain all the essential factual
averments upon which the litigant’s cause of action is based in
sufficiently clear terms that the respondent may know the case that
must be met. Although a
litigant may attach annexures to the founding affidavit, it is not
sufficient for a litigant to attach an annexure without identifying
the facts contained in the annexure upon which the litigant
relies. Clarity in the
founding affidavit is necessary for the expeditious and fair
adjudication of the dispute between the parties. Where founding
affidavits lack that clarity not only will respondents struggle to
determine the case that is to be met, but judges too will be hampered
in their task of administering justice fairly to all litigants.
The three appellants argued that the
founding affidavits were inconsistent with rule 6 in several
respects: first, they contained an incomplete and confusing account
of the material facts, secondly, many of the material facts were not
contained in the founding affidavit but in annexures to the founding
affidavit and thirdly, several annexures, or pages of annexures were
missing from the founding papers. The three appellants referred to
the annexures as ‘a confusing morass of documents which are not
properly and clearly marked or in any chronological order’.
general principles of pleading require that the founding affidavit
set out the key facts in a chronological or other logical sequence,
and that the relevant documents be annexed in logical order.
A clear and logical sequence will enable a respondent to prepare an
answering affidavit in a similarly clear manner.
litigants, such as the applicants in the High Court, cannot be
expected to ‘fully appreciate the finer nuances of
Accordingly, where lay litigants are concerned, a court should
overlook minor irregularities and seek to identify the substance of
the case brought by the lay litigant. As Maritz JA commented in this
court in Christian
v Metropolitan Life Namibia Retirement Fund and Others
in mind that lay litigants face significant hurdles due to their lack
of knowledge and experience in matters of law and procedure and, more
often than not, financial and other constraints in their quests to
address real or perceived injustices, the interests of justice and
fairness demand that courts should consider the substance of their
pleadings and submissions rather than the form in which they have
there is a limit to the extent to which a court should overlook
irregularities in proceedings brought by lay litigants. That limit
must be determined by the duty of the court to act fairly in relation
to all litigants before the court. Accordingly, a court will not
permit lay litigants to pursue a cause of action or defence in a
manner where the substance of their pleadings is so unclear or
uncertain as to render it difficult or impossible for their opponents
to mount a meaningful response to the lay litigants’ case.
limit has been reached in this case. The founding affidavit does not
contain the essential factual averments upon which the litigant’s
cause of action is based in any logical order or in clear terms.
Instead the facts upon which the 25 individual cases are based are
incomplete, confused and hard to comprehend. For example, in many of
the cases, there are no averments as to who took transfer of the
relevant applicant’s property following upon the sale in
execution. Nor is there
any clear indication as to why many of the individual respondents in
the High Court have been cited in the proceedings. Given the relief
sought these are necessary factual averments that may not be omitted
further problem is that the affidavit incorporates in its body (not
as annexures) the verbatim text of letters and affidavits from other
proceedings in their entirety without any clear explanation provided
as to what aspects of those letters or affidavits are relevant to the
relief claimed in the notice of motion.
In addition, it incorporates by reference a range of annexures
without any indication in the founding affidavit as to what aspects
of those affidavits are relied upon for relief.
As stated above, it is not sufficient for a litigant to attach an
annexure without identifying in the founding affidavit the key facts
upon which the litigant relies.
In some cases, the situation is compounded by the fact that no
annexures are provided, or
annexures are missing or incomplete.
Accordingly, the respondents cannot tell
what case they are to meet. Leeway must be afforded to lay litigants,
but that leeway cannot extend to a situation where respondents cannot
know what case is being made against them. Given the material
defects in the founding affidavit, it must be concluded that it does
not comply with rule 6 in a range of material respects that give rise
to substantial prejudice on the part of the respondents in the High
Court who will not be able to determine with any clarity what case
they are to meet. Accordingly, the notice of motion and
founding affidavit fall to be set aside on this ground too.
this court interfere with the exercise of the discretion of the High
Court on appeal in relation to the rule 30 applications?
a court determines whether to set aside ‘an irregular step’,
it exercises a discretion.
An appellate court will only interfere with the discretion on narrow
grounds where it considers that the court below has not exercised its
discretion judicially or put, more colloquially, has made ‘a
The reasoning of the court below has been set out above, at para .
In sum, although the High Court found that there had been
irregularities, it concluded that the three appellants had not
established that they had suffered any prejudice as a result of those
irregularities. The High Court judgment contains no analysis of
the irregularities or their extent. Nor does it provide reasons as to
why it concludes that the respondents in the High Court would not
experience prejudice as a result of the many irregularities.
The High Court was correct to conclude that
there were irregularities in the notice of motion and founding
affidavits as the preceding paragraphs have shown. However, it was
incorrect to conclude that the appellants had not suffered prejudice.
As appears from the reasoning above, the appellants rightly assert
prejudice arising from both misjoinder and non-joinder as they may
incur unnecessary costs in opposing the relief sought, only to find
that those costs are wasted. As prejudicial to the appellants
are the difficulties caused by the lack of clarity and precision in
the founding affidavit which means that it is impossible for them
fully to understand the case they must meet. All these
irregularities indeed occasion prejudice to the three appellants. As
mentioned above, the High Court did not explain why it concluded that
the three appellants had not suffered prejudice. Accordingly it is
difficult to understand on what it based its conclusion. Given
the fact that there is material prejudice to the three appellants,
which appears to have been entirely overlooked or not appreciated by
the High Court, the decision of the High Court may be interfered with
on appeal. Accordingly, the decision will be set aside.
In summary, this court has identified three
sets of irregularities in the notice of motion and founding affidavit
lodged by the applicants in the High Court. First, the notice
of motion seeks wide-ranging relief: some of it of a general
constitutional nature and some of it very specific in character
affecting individual respondents. Although the specific relief
may be dependent to some extent on the general relief, it cannot be
said that the various prayers for specific relief will depend on
‘substantially the same’ issues of fact and law and
accordingly there has been a misjoinder of issues in terms of rule
10. The misjoinder of causes of action will cause the appellants
prejudice as they will be required to participate in proceedings
concerned with a wide range of issues of fact and law of which they
have no knowledge.
it appears that the general constitutional relief sought, especially
in relation to retrospective declarations of invalidity in relation
to sales in execution of immovable property authorised either by the
Registrar of the High Court or a Clerk of a Magistrates’ Court
as well as the setting aside of the registration of transfer of
properties sold at such sales in execution, will affect many people
and institutions that have not been joined in these proceedings.
There appears to have been no comprehensive attempt by the applicants
in the High Court to identify all the parties who may have an
interest in such relief. Indeed in several cases the applicants
have not identified or cited the persons who purchased their
properties at sales in execution, despite the fact that they are
seeking to set aside those sales in execution and subsequent transfer
of the properties. The
failure to join necessary parties is a fundamental flaw in the
proceedings and will inevitably prejudice both the three appellants
but also the administration of justice itself.
Thirdly, the founding affidavit does not
comply with rule 6. It contains an incomplete and confusing account
of the material facts. Many of the material facts are to be found not
in the founding affidavit but in annexures without any explanation in
the founding affidavit of the specific aspects of the annexures
relied upon. Moreover, several of the annexures are incomplete or
missing. The absence of a clear account of the key facts upon which
relief is sought prejudices the three appellants in their ability to
mount a meaningful response to the allegations in the founding
affidavit. The effect of that prejudice may well result in
further difficulties as the litigation progresses. The purpose of the
founding affidavit is to enable the respondents to know the case they
have to meet so that they can present their response. Where
that case is not complete or clear, the ability of the respondents to
present a clear and comprehensive response will be threatened.
are circumstances in which litigants who unsuccessfully seek
constitutional relief will not be ordered to pay costs.
In such cases, the court permits a departure from the ordinary costs
rule that stipulates that successful litigants should recover their
costs. Such a departure, however, will only be permitted where the
litigants have conducted their litigation in a reasonably proper
manner. In this case, the applicants in the High Court pursued
materially flawed litigation against a wide range of respondents.
Although it is important that this court should seek to enable
litigants to bring cases before it, it would not be in the service of
justice to grant an exception to the ordinary costs rule where
litigants have pursued constitutional relief in a materially flawed
manner. Accordingly, the eleven applicants in the High Court
who appeared at the hearing of this appeal and indicated that they
supported the appeal are ordered to pay the costs of the three
appellants in this court on the basis of joint and several liability.
The costs should include the costs of two instructed and one
A final word should be added. Although this
judgment has upheld the rule 30 application of the three appellants,
it does not serve as a bar to the applicants seeking to air the
constitutional issues they raised in this case in a future case so
long as they do so in a manner that is compliant with the Rules.
The following order is made:
The appeal is upheld.
The order of the High Court is set aside and replaced with the
The applicants’ notice of motion and founding affidavits, and
the annexures thereto, are set aside as irregular proceedings.
The applicants’ document entitled “Request for
Documentary Proof of Authority” delivered on 18 April 2012 is
set aside as an irregular proceeding.
The applicants are ordered to pay the costs of the first, second,
sixth and eighteenth respondents on the basis of joint and several
liability, the one paying, the others to be absolved. Costs shall
include the costs of one instructing and two instructed counsel.’
The first, second, fifth, seventh, ninth, tenth, thirteenth,
sixteenth, seventeenth, twenty-first and twenty-second respondents
are ordered to pay the costs of the three appellants on appeal on the
basis of joint and several liability, the one paying, the others to
be absolved, such costs to include the costs of two instructed and
one instructing counsel.
R Tötemeyer (with him E M Schimming-Chase)
by Behrens & Pfeiffer (for the First Appellant)
& Partners (for the Second Appellant)
Quarmby & Pfeiffer (for the Third Appellant)
The judgment against which the appeal is brought was handed down on
31 July 2012 before the new High Court Rules came into force in
April 2014. Accordingly, the new High Court Rules have no
direct relevance to the issues in this case and references in this
judgment to the Rules will be to the Rules that were in force in
2012 and not the new Rules, unless otherwise stated.
prayers for relief (cited in full at para 4 below) are related in
some way to these two core issues. There
are additional constitutional challenges contained in the 15th,
prayers for relief (see para 4 below), but they do not appear to lie
at the core of the applicants’ case. For completeness, it
should be added that there is also a challenge to the issue of
warrants of execution against movable property by the Clerk of the
Magistrates’ Court (see 5th
prayers for relief).
In addition, prayers 5 and 11 seek relief that is constitutionally
impermissible for Clerks of Magistrates’ Courts to declare
movable property executable and relief that sets aside sales in
execution of movable property of the applicants.
See para 3 of the prayers of relief, set out in para 4 below.
See para 10 of the prayers of relief, set out in para 4 below.
Act was repealed by s 38 of the Supreme Court Act 15 of 1990.
Paras 7 and 8 are in almost identical terms.
Bank Namibia Ltd, Nedbank Namibia Ltd, Windhoek Municipal Council,
Swabou Investments (Pty) Ltd and South West African Building
respondent (Ms W E Hoabes), the 5th
respondent (Ms C A Balzer), the 7th
respondent (Mr S Brockerhoff), the 9th
respondent (Ms D V Shikongo), the 10th
respondent (Mr E P Xoagub), the 13th
respondent (Mr R Mouton), the 16th
respondent (Ms L Rhode), the 17th
respondent (Mr F Hoxobeb), the 21st
respondent (Mr C Steenkamp) and the 22nd
respondent (Ms K F Steenkamp).
respondent (Mr J Neuaka), the 23rd
respondent (Mr L Garoeb) and the 24th
respondent (Ms A M Hendriks).
respondent (Standard Bank Namibia Ltd), 2nd
respondent (Nedbank Namibia Ltd), 7th
respondent (VSV Enterprises No Sixty CC and/or its nominee Mr J P
Van Staden or Mr L J Van Staden), 9th
respondent (Mr H G Foelscher), 17th
respondent (Bank Windhoek Ltd), 25th
respondent (Mr M M Luswenyo), 26th
respondent (Builders’ Warehouse (Pty) Ltd), 27th
respondent (Mr A Abrahams), 29th
respondent (Ms M Geingos), 31st
respondent (Mr D J Werner), 32nd
respondent (Mr W Karuoombe), 33rd
respondent (Ms E Karuoombe), 34th
respondent (Mr I J C Drotsky), 36th
respondent (Mr R Kapuuo), 40th
respondent (Mr A M Basson). It is not clear whether the 3rd
respondent (described as HES Shikongo) was properly served. No
particulars are given concerning this respondent who was served at
Shikongo Law Chambers.
In terms of rule 4(1)(a)(i), now rule 8(2)(b).
In terms of rule 4(1)(a)(ii), now rule 8(2)(c).
In terms of rule 4(1)(a)(v), now rule 8(3)(a).
In terms of rule 4(1)(a)(v) or new rules 8(2)(b) or 8(3)(a).
In terms of rule 4(1)(a)(vi)or new rule 8(2)(e).
In terms of rule 4(1)(b) or new rule 8(6).
See, for example, Steinberg
v Cosmopolitan National Bank of Chicago 1973
(3) SA 885 (RA) at 892B-C.
(2) NR 792 (HC) para 23.
2013 (1) NR 245 (HC) para 17.
In this regard, see the reasoning in Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd t/a Altech Card Solutions 2012
(5) SA 267 (GSJ) para 21.
See, for example, Steinberg
v Cosmopolitan National Bank of Chicago cited
above at n 18 at 892.
See, for example, Scott
and Another v Ninza 1999
(4) SA 820 (E) at 828F–G; Federated
Insurance Co Ltd v Malawana 1984
(3) SA 489 (E) at 495I, and, on appeal, Federated
Insurance Co Ltd v Malawana 1986
(1) SA 751 (A) at 762G–I; Prism
Payment Technologies (Pty) Ltd v Altech Information Technologies
(Pty) Ltd t/a Altech Card Solutions, cited
above n 21 para 23. For a recent case where service was found to
constitute a nullity, see Concrete
2000 (Pty) Ltd v Lorenzo Builders CC t/a Creative Designs and Others
(2) All SA 81 (KZD) paras 29 – 30.
See the remarks of Nestadt J in Krugel
v Minister of Police 1981
(1) SA 765 (T) at 768D–E (which concerned the question whether
a summons was a nullity, not the issue of service). See also,
2000 (Pty) Ltd, cited
above n 23 para 29.
cited above n 21, para 23.
For South African authority on the requirement of prejudice, see,
for example, Federated
Insurance Co Ltd v Malawana 1986
(1) SA 751 (A) at 763B–C; Scott
and Another v Ninza, cited
above n 20, at 828G; Consani
Engineering (Pty) Ltd v Anton Steinecker Maschinenfabrik GmbH 1991
(1) SA 823 (T) at 824G–J and 825G-H.
1956 (2) SA 273 (A) at 278.
See, for example, Federated
Insurance Co Ltd v Malawana, cited
above n 26 at 762H–763C.
This was the formulation adopted in Concrete
cited above n 23, para 29. See also Greathead
v Slabbert 1964
(2) SA 771 (T) at 772E.
In this regard, see the order made in Concrete
(Pty) Ltd, cited
above n 23, para 39.
(Pty) Ltd, cited
above n 23, para 39.
The equivalent rule under the new Rules of the Namibian High Court
is rule 40(1).
The equivalent rule under the new Rules of the Namibian High Court
is rule 40(3).
The equivalent rule under the new Rules of the Namibian High Court
is rule 70(2).
Para 2 of the notice of motion.
Para 3 of the notice of motion.
Para 4 of the notice of motion.
Para 5 of the notice of motion.
Para 6 of the notice of motion.
Para 7 of the notice of motion.
Para 15 of the notice of motion.
Para 16 of the notice of motion.
Paras 12, 13, 14.1, 14.2 and 14.3 which relate to the 12th
applicant and 19th
respondent, and the 16th
applicant and 21st
See para 9 of the notice of motion. See also paras 3, 7, 8 and
The father of the 12th
applicant allegedly transferred his property to the 19th
respondent under a misapprehension; the 15th
applicant transferred his property to the 20th
respondent similarly; the 16th
applicant transferred her property to her son-in-law who does not
appear to be cited allegedly under a similar misapprehension; and
applicant transferred his house allegedly under a misapprehension to
There is no averment that there was a sale in execution of property
belonging to the applicants in the following individual cases: the
applicant; the 3rd
applicants; the 18th
applicant; and 21st
See, for example, the case of the 8th
applicant, the case of the 9th
applicant, the case of the 14th
applicant, and the case of the 20th
See prayer 3 of the notice of motion.
Hotel v Nickloes 1973
(4) SA 170 (W) at 171H. See the different views expressed in
Polo v Dreyer and Others 1989
(4) SA 1059 (W) at 1062–1063, in relation to proceedings
instituted by way of action, in which the court held that a special
plea was the proper procedure to raise non-joinder. This reasoning
clearly has no application to this case which is concerned with
See rule 65(1) of the new Rules.
and Another v Chairman, Amnesty Committee of the Truth and
Reconciliation Commission and Others 2001
(3) SA 1033 (C) at 1052C–D; Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the RSA and
(2) SA 279 (T) at 324G–H;
In this regard, see Moleah
v University of Transkei and Others
1998 (2) SA 522 (Tk) at 533E–F.
of Land Affairs and Agriculture and Others v D & F Wevell Trust
2008 (2) SA 184 (SCA) para 43.
See the helpful guidance provided in the South African case of
NO v Mecklenberg (Pty) Ltd
1996 (1) SA 75 (W) at 78G–79H.
remarks of M T Steyn J in Van
Rooyen v Commercial Union Assurance Co of SA Ltd
1983 (2) SA 465 (O) at 480G–H.
2008 (2) NR 753 (SC) para 8.
v Equity Aviation Services (Namibia) (Pty) Ltd (in Liq) and Others
2014 (1) NR 234 (SC) para 17.
For example, the following individual cases do not contain any
averments as to who took ownership of the property following upon
the sale in execution – that of the 8th
applicant, the 9th
applicant, the 14th
applicant and the 20th
For example, the founding affidavit contains the complete text of
affidavits in other proceedings relating to the 16th
applicant and states that ‘the averments necessary to sustain
the cause of action in respect of the 16th
Applicant are, save for the heading and citations which should be
read insofar as it is necessary in conjunction with the citations of
this application, contained in annexure . . . ’.A similar
inclusion in the founding affidavit is made in relation to the 15th
For example, the founding affidavit incorporates by reference an
affidavit made in support of a rescission application by the 3rd
applicants ‘and verif[ies] and confirm[s] that the allegations
in the affidavit . . . support the cause of action in this
matter (application)’. No further explanation is provided in
the founding affidavit. A letter written by 14th
applicant is annexed ‘and the content of which is incorporated
herein’ to state the circumstances which allegedly led to a
default judgment against 14th
See, for example, the case of the 3rd
applicants and that of the 14th
See, for example, the case of the 23rd
applicant and that of the 25th
for example, the case of the 20th
applicant (Missing XB and XC) and that of the 21st
applicant (missing ‘STE 1’).
See the South African decision of Northern
Assurance Co Ltd v Somdaka 1960
(1) SA 588 (A) at 594H–595B. Although concerned with an
earlier rule, it was in similar, though not identical, terms.
Diamonds Ltd v FTK Holland BV and Others
2003 (1) SA 189 (Nm SC) at 196E–H, citing Bookworks
(Pty) Ltd v Greater Johannesburg Transitional Metropolitan Council
and Another 1999
(4) SA 799 (W) at 804G– 808B.
See cases of individual applicants mentioned in footnote 58 above.
See, for example, Minister
of Home Affairs v Majiedt and Others
2007 (2) NR 475 (SC) para 53.
applicant (Mr A Maletzky), the 2nd
applicant (Ms W E Hoabes), the 5th
applicant (Ms C A Balzer), the 7th
applicant (Mr S Brockerhoff), the 9th
applicant (Ms D V Shikongo), the 10th
applicant (Mr E P Xoagub), the 13th
applicant (Mr R Mouton), the 16th
applicant (Ms L Rhode), the 17th
applicant (Mr F Hoxobeb), the 21st
applicant (Mr C Steenkamp), and the 22nd
applicant (Ms K F Steenkamp).