SUPREME COURT OF NAMIBIA JUDGMENT INDEX

2017

COMPILED BY:pRISCILLA NANDE – LEGAL OFFICERTHOMAS KASITA – LEGAL OFFICER

NICOLE JANUARY – SENIOR LEGAL OFFICERCHARMAINE KAVITJENE – LEGAL OFFICER

Table of Contents

ADMINISTRATIVE LAW...............................................................................................................2

APPEAL......................................................................................................................................11

APPLICATION FOR CONDONATION.......................................................................................12

ATTACHEMENT OF PROPERTY TO FOUND OR CONFIRM JURISDICTION........................13

COMPETITION LAW...................................................................................................................14

CONSTITUTIONAL LAW............................................................................................................14

CONTRACT.................................................................................................................................19

CRIMINAL LAW AND PRODEDURE.........................................................................................23

COSTS........................................................................................................................................26

DELICT........................................................................................................................................28

INTERPRETATION OF STATUTES...........................................................................................29

LABOUR LAW............................................................................................................................31

LEGAL ETHICS..........................................................................................................................32

LOCUS STANDI..........................................................................................................................33

POCA..........................................................................................................................................34

CIVIL PRACTICE AND PROCEDURE.......................................................................................35

PROPERTY LAW........................................................................................................................37

RECUSAL...................................................................................................................................37

REVIEWS....................................................................................................................................40

LAW OF SUCCESSION..............................................................................................................41

1 | P a g e

ADMINISTRATIVE LAW

Administrative law : Appellant, Auas Diamond Company (Pty) Ltd, had been a holder of an Exclusive Prospecting Licence (EPL) issued under the Minerals (Prospecting and Mining) Act 33 of 1992 (the Act) for a 3-year period from 1997 to 2000 – Before the expiry period, the appellant applied for a renewal of the EPL to run from 2000 to 2002 – The respondent, the Minister of Mines and Energy (the Minister), who is responsible for the administration of the Act was prepared to renew the EPL for the first time – In terms of the applicable legislation, the Minister may impose terms and conditions to the application of an EPL. Such terms and conditions once imposed must be accepted by an applicant, failing which the application lapses – The Minister imposed terms and conditions on the appellant’s renewal application. The renewal, including the terms and conditions had been accepted by a Mr Prins Shiimi, claiming to be a representative of the appellant. However, the appellant subsequently contended that Mr Shiimi had no authority to act on its behalf at the time he purported to accept the terms and conditions – The appellant consequently applied for a second renewal of the EPL to the Minister, which application was refused – Aggrieved by the refusal of its second renewal application, the appellant launched an application in the High Court to review and set aside the Minister’s decision. The Minister opposed the application. In his opposition, the Minister raised two points in limine, namely that the appellant had failed to disclose a right or cause of action and that the appellant delayed in instituting the review proceedings – After hearing argument, the review application was dismissed with costs. The court found that as the first renewal had not been accepted by the appellant, it lapsed by operation of law and there was nothing to renew when the appellant applied for a second renewal. In relation to the second point in limine, the court declined to decide the question whether or not the review application was unreasonable delayed – On appeal, the issues for determination remained unchanged. The first issue relates to the finding of the court below that the appellant failed to disclose a valid cause of action. The second relates to the finding of the appellant’s alleged unreasonable delay in instituting the review proceedings – The Supreme Court agreed with the findings of the court below that as the first renewal had not been accepted by the appellant, it lapsed by operation of law and that there was nothing to renew when the appellant had applied for a second renewal. The court concluded that the second renewal application would have been granted on the basis of the validity of the first renewal. The effect of the lapsing of the first renewal is that no second renewal could occur – The first renewal application having had lapsed, the appellant thus retained no residual rights to apply for the second renewal – In upholding the reasoning of the court below, the Supreme Court further found that as the High Court had correctly held that there was nothing to review in the absence of a valid first renewal of the EPL, the question whether or not the review

2 | P a g e

application was unreasonably delayed had become immaterial – As the appeal has failed, there were no good reasons why the costs should not follow the result. The Minister was accordingly granted the costs of the appeal. Auas Diamond Company (Proprietary) Limited v Minister Of Mines and Energy (SA 1/2007) [2017] NASC (19 April 2017).

******************************************************

Administrative law: On 3 December 2015 the Permanent Secretary in the Ministry of Works and Transport (the Ministry) sent a letter to the first respondent (Anhui) to inform the latter that it had been allocated a tender to upgrade and expand the Hosea Kutako International Airport (the airport) near Windhoek for a sum exceeding U$ 447 million. Within approximately a week, a series of news reports appeared in the print media alleging irregularities on the part of the Namibia Airports Company (NAC), as well as bribery and corrupt practices and alleging that more cost effective bids had been ignored and generally questioning the scale of expenditure. Following these reports, the President of Namibia issued a media release on 22 December 2015, referring to these allegations and stating that the award had been terminated and that he would instruct the Minister of Works and Transport (the Minister) to invoke s 9 of the Airports Company Act, 25 of 1998 (the Act) to direct the NAC to discontinue all activities relating to the project –Anhui urgently sought the review of the Minister’s decision to act under s 9 and certain declarators. The application was opposed and the government respondents (the President and the Ministers of Finance and Works and Transport) brought a counter application to set aside the award as encapsulated in the Permanent Secretary’s letter of 3 December 2015 –The High Court set aside the Minister’s decision to direct the discontinuation of all activities relating to the project but declined to grant the declarators sought by Anhui and also declined the Government’s counter application to set aside the award –The government respondents (the appellants) appealed against the judgment and orders of the High Court –At issue in this appeal is whether the order setting aside the Minister’s decision should have been granted and whether the High Court should have granted the counter application to set aside the award by the Permanent Secretary –The Supreme Court found that the letter 3 December 2015 in its own terms amounted to an award of the project by the Permanent Secretary on behalf of the Ministry to Anhui. The letter was to be understood and viewed in the context of a letter by the Permanent Secretary on the same date to the NAC, stating that the Government of Namibia had approved the project. As implementer of capital construction projects financed by the Government, the Ministry had been mandated to award the contract to the successful tenderer Anhui –The court found that it was thus established that an award had been made in the letter of 3 December 2015. It was common cause that the Tender Board Act, 1996 had not been followed which was required for valid procurement in capital projects involving the Government. Nor had Treasury approval been granted under the State Finance Act. The failure to follow the

3 | P a g e

procedures in the Tender Board Act meant that the award was invalid and had to be set aside –The High Court should have granted the counter application and set aside the award. That court’s order was to be corrected to reflect that –Counsel for the appellants conceded that the Minister’s instruction to the NAC (to discontinue all activities in relation to an airport upgrade) made at the President’s behest was invalid but argued that the court should not set it aside –The court found that the Minister’s instruction was invalid in several separate respects amounting to comprehensive non-compliance with the provisions of the Airports Company Act invoked by both the President and the Minister. The general powers of the President and Cabinet would not save the directive from invalidity –The default position is to set aside an invalid act and refer the matter back to the functionary in question. The court found that no coherent reasons were raised as to why the defective directive should not be set aside. On the contrary, its public interest setting – relating to public procurement of a large scale - required that statutory provisions be scrupulously complied with. Good governance and transparency required this. The court also referred to the compelling public interest in vindicating the Constitution and the rule of law by setting aside invalid administrative action –The court found that the High Court was correct in setting aside the Minister’s directive –It follows that the appeal succeeded in part (resulting in the setting aside of the award in the letter of 3 December 2015) and failed in part (with the appeal against setting aside the Minister’s directive being dismissed).- President of the Republic of Namibia v Anhui Foreign Economic Construction Group Corporation Ltd (SA 59/2016) [2017] NASC (28 March 2017)

********************************************

Administrative law: The Rössing Pension fund (the fund) was established by Rössing Uranium Ltd (Rossing) in 1975 to provide pension and other benefits for its permanent employees –Since 1993, fund members had benefited from a surplus by not having to make contributions. The surplus had over the years been a source of dissatisfaction amongst members. Members had an expectation that the surplus should be paid out to them in the form of cash. But this is contrary to a Namibia Financial Institutions Supervisory Authority (Namfisa) ruling to the effect that pension pay outs could only be made upon the termination of an employment contract –The Pension Funds Act, 24 of 1956, (the Act) does not contain any guidelines as to how surpluses in pension funds are to be distributed. The rules of the fund were revised in 2002 to include rule 19.4.2 which dealt with the distribution of a surplus in the fund. It provided that in the event of a substantial surplus, the trustees should make recommendations to the employer for the distribution of the surplus. The rule further provided that the employer would then make the final decision on the distribution of the surplus within the limitations of the Act and the trustees would implement that decision –The board of trustees of the fund comprised four elected representatives of members of the fund and as well as four

4 | P a g e

trustees appointed by the employer. On 18 March 2011 a committee was created by the trustees of the fund to consider the distribution of the surplus –In October 2011, the trustees, formulated a position concerning the distribution of the surplus. Acting under rule 19.4.2, the trustees recommended to Rössing during November 2011 that an equal three way distribution of 33.33% each in respect of members (which included pensioners), Rössing and former members should be made –The Rössing Board considered the trustees’ recommendations on 24 February 2012, but decided otherwise on how the surplus should be apportioned, deciding upon a split of 52% for members, 33% for Rössing and 15% for former members –As a result of the Rössing Board decision, a group of former members of the Rössing Pension Fund (the respondents) challenged, by way of a review application, the decision taken (which they contended was by the trustees) to distribute a surplus in the fund as well as the legality of a rule of the fund which permitted that. The application was opposed by both the fund and the principal employer Rössing Uranium Limited (the appellant) –The High Court reviewed and set aside the decision (of the trustees) on the basis that the trustees had in essence abdicated their decision-making function to the Rössing. The court found that the sole responsibility for the management of the fund vested with the trustees and that it was impermissible for them to act as a ‘rubberstamp’ for Rössing’s decisions and act under its dictation. Rössing and the fund appealed against this finding of the High Court –The issues to be determined on appeal are whether the relief sought against the trustees as decision maker was competent, whether the decision to distribute the surplus constituted administrative action for the purpose of Art 18 of the Namibian Constitution and whether the former members established that the trustees of the fund or the employer had acted unlawfully –The Supreme Court held that former members had not established that the fund and the employer had acted unlawfully. The trustees of the fund had acted in accordance with the rules of the fund, which provided that the final decision concerning a surplus distribution lay with the employer. The trustees had made recommendations to the employer to distribute the surplus. The decision to distribute the surplus in the ratio impugned in the proceedings was made by Rössing as employer and not by the trustees. It was thus not competent to seek to review a decision of the trustees –The Supreme Court also held that the decision to distribute the surplus did not constitutes administrative action for the purpose of Art 18 because of the nature of the functions and powers and exercised by the trustees and the employer in doing so. The appeal succeeds. (Rossing Uranium Ltd & Another // Former Members of the Rossing Pension Fund (SA 30/2016) and (SA 32/2016) [2017] NASC (30 June 2017).

**********************************************************

Administrative law – The respondents were dismissed during June 2011 from their positions as traditional councillors of the Oukwanyama Traditional Authority on grounds

5 | P a g e

of misconduct in that they conducted meetings with members of the community outside their areas of jurisdiction concerning matters of the Oukwanyama and at times of rest (onghata) contrary to tribal law and against the wishes of the first appellant, the queen of the Oukwanyama. The decision made by the first appellant in her capacity as ‘chief’ of the Oukwanyama Traditional Authority was challenged by way of review in the High Court on the basis that it was made without the respondents being afforded a hearing contrary to Art 18 of the Constitution – The appellants had in the answering papers complained about the lack of specificity as regards the complaint based on Art 18 – The High Court observed that the particularity of the extent to which Art 18 was allegedly breached was not obvious from the founding papers and relied on the annexures attached to the affidavits to sustain the allegations maintained by the respondents. The court a quo held that the notices sent to the respondents advising of an impending investigation which later formed the basis for their dismissal, did not measure up to the required standard of procedural fairness and reasonableness, in that the respondents: were not informed of the charges that they would face, the true nature of the forum at which they were to appear which only subsequently was established to be disciplinary in nature, and were not afforded ample time for preparation before appearing before the investigation committee. The court a quo set aside the dismissals based on inferences drawn from annexures but not specifically relied on in the founding affidavit; and ordered reinstatement of the respondents – Held that Art 18 implicates the right to fair administrative justice and the duty to act reasonably; that the respondents bore the onus to allege the specific Art 18 ground and to make out the case for review – Held that audi alteram partem is flexible and its application will depend on the circumstances of each case; that the particular circumstances of the case may oust audi or significantly attenuate its operation. Accordingly, the respondents failed to discharge the onus and failed to put forward a proper factual basis in their papers to vitiate the decision to terminate their services based on the denial of audi. Held further that the court a quo was bound by the discipline of motion proceedings: affidavits must contain all the averments necessary to sustain a cause of action or a defence and the court is not entitled to rely on grounds not raised in the founding affidavit – Held further that where reliance is placed on material contained in annexures, the deponent must clearly state what portions in the accompanying annexures he or she relies on. What is required is the identification of the portions in the annexures on which reliance is placed and an indication of the case which is sought to be made out on the strength of those portions. It does not suffice to simply ‘incorporate’ annexures as part of one’s case – Held that the allegations of breach of Art 18, without more, did not sustain the conclusions reached by the court a quo. Appeal upheld with costs. Nelumbu v Shikumwah (SA 27/2015) [2017] NASC (13 April 2017)

6 | P a g e

Administrative law – Locus standi – Remedies: The Roads Authority which is the body charged with the management of the national roadwork in Namibia invited bids for the construction of a freeway between the towns of Swakopmund and Walvis Bay. Twenty-three tenderers responded to the bid – A tender evaluation committee consisting of engineers evaluated all the bids against the criteria stipulated in the bid invitation (tender requirements) and disqualified fourteen tenderers. The remaining nine tenderers were then evaluated with reference to, what is termed the ‘Technical Score’ requirements spelled out in the tender requirements. This left six tenderers who managed to reach the benchmark of 70 percent stipulated in respect of the ‘Technical Score’ – The technical scores and prices were then combined to obtain a ranking of tenders in respect of a ‘Tender Index’. When this was done the appellant was ranked first and the third respondent ranked second. The technical evaluation committee, based on the ‘Tender Index’ concluded that the appellant was the preferred bidder and recommended that it be awarded the tender. This recommendation was forwarded to the management committee who endorsed this recommendation and in turn forwarded it to the board tender committee (the Board) – The Board considered the matter on 28 April 2016 and awarded the tender to third respondent. The appellant being aggrieved by the award of the tender to third respondent communicated its concern to the Roads Authority in an attempt to persuade the authority to retract its decision and award the tender to it. When this came to nought appellant launched an application to review and set aside the decision of the Roads Authority. This application was coupled with an application for an urgent interdict preventing the implementation of the tender pending the review application. The parties agreed to expedite the proceedings in the review application and the urgent application was abandoned by appellant despite neither the Roads Authority nor the third respondent giving any undertaking that they would not implement the award. The High Court dismissed the review application with costs. The appeal was against this order – The Board justified the award to the third respondent, despite its bid being higher than that of the appellant, on a threefold basis. First, that the project was a complex one and the third respondent had a higher technical score. Second, that Chico as a joint venture partner in an entity known as Chico/Palladium was awarded another tender of a similar nature and concerns arose as to the appellant’s capacity to duly complete the tender under consideration. In other words the appellant might be overstretched if awarded the tender. Third, that the Board was of the view that an award to the third respondent would ensure an equitable and wider spread of work between tenderers – The appellant alleged that as the preferred bidder the Board had to award the tender to it. The failure to do so, especially in view of its lower price and given that it was technically competent, the decision of the board was irrational. The appellant also maintained that it had not been given a hearing with regard to its capacity to properly execute the project nor was it forewarned about the criteria relating to the securing of a wider spread of work between tenderers – The respondents raised a point in limine. They challenged the competence of the appellant to bring the application and

7 | P a g e

the application to file further affidavits on the basis that the purpose of the joint venture agreement fell away when the award of the tender was made to third respondent and hence that its deponent could not have been authorized by the joint venture agreement to bring the review application on its behalf and to oppose the application by the respondents to submit further affidavits – The court held that the joint venture parties were clearly entitled to agree, for the purposes of seeking redress in the court so as to be entitled to the award of the tender and its concomitant contract, to keep the joint venture agreement alive and to add this to the purposes for which the joint venture was established. The court further added that the joint venture is not a legal entity distinct from the parties to the joint venture agreement – On the merits it was held that the Board could not be said to have acted irrationally as the reasons for not awarding the tender to the appellant were relevant and connected to the proper execution of the tender. That a fair process did require that the appellant should have been given a hearing in respect of the concerns raised about its capacity and that the reasoning relating to the equitable and wider spread of work was not a relevant consideration as this was not communicated to the tenderers and accordingly the process was not fair – On the question of the remedy it held that the default remedy is to set aside the challenged act and to remit the matter to the decision maker for a decision afresh. It held further that in order for the court to exercise its discretion when it comes to a remedy other than the default remedy, facts must be placed before it. The appellant had abandoned its application for interim relief compelling the third respondent to proceed with the work. One year of a three year contract had expired. Work had been done and payments had been made and all the consequences normally flowing from the execution of a contract of this nature and scope had probably materialized. No facts were placed before the Court as to the extent of the disruption (and extra costs) to the contract should the tender be set aside and a different tenderer complete the tender. Where the facts indicate that the default remedy is not apposite but does not go far enough so as to enable the court to fashion a remedy that will bring finality to the matter and will be somewhere in between the default remedy and allowing the invalid award to be implemented, then the court will have no option but to allow the invalid award to stand. The appeal was thus dismissed. Chico/Octagon v Roads Authority and 3 others (SA 81 – 2016) [2017] NASC (21 August 2017)

**********************************************************

Administrative law – Remedies: This appeal arises from a tender for the provision of catering services to government school hostels countrywide. The Tender Board invited suitably qualified entities to submit tenders for the supply of foodstuffs to school hostels in each of the eight designated regions. The appeal concerns the rendering of catering services to hostels in Ohangwena / Oshikoto educational region. It was a condition of the tender that a successful tenderer would be required to provide catering services

8 | P a g e

for five years commencing on 1 April 2009 and ending on 31 March 2014 – Several tenders were received, including that of the appellant. Having been considered by the relevant Ministerial Committee, and after recommendations had been made, the Tender Board awarded the tender to a company named Conger Investments (Pty) Ltd t/a Atlantic Food Services, which is not a party to these proceedings – After being advised of this decision of the Tender Board, the appellant brought an application in the High Court to review and set aside the decision of the Tender Board and joined the rest of the respondents to the application. The appellant also sought for an order that the tender for this region be awarded to it. The respondents opposed the application. The High Court found that the tender awarded to Conger Investments (Pty) Ltd was tainted by administrative irregularities and was unfair. It set aside the tender award but refused to award the tender to the appellant –Dissatisfied with the setting aside of the tender, the respondents appealed to the Supreme Court. The appellant, also dissatisfied with the decision of the court a quo refusing its request for the tender to be awarded to it, noted a cross-appeal against that part of the judgment. After hearing argument, the Supreme Court dismissed both the appeal and the cross-appeal, with the consequence that the award of the tender remained set aside and meaning that the order of the court a quo remained unchanged. The Supreme Court further directed that the tender be referred back to the Tender Board for reconsideration – The Tender Board gave effect to the directives of the Supreme Court and eventually awarded the tender to the appellant. The notice to the appellant informing it of the successful award did not state the term of the tender. Instead, the appellant was informed that the period would be indicated in the contract. The appellant brought another review application in the High Court this time seeking, amongst others, an order that the tender awarded to it was for a five year period reckoned from 10 January 2014 to 10 January 2019. The High Court found that the Tender Board was directed by the Supreme Court to reconsider the original tender and not one for a longer term. Dissatisfied with the judgment and order of the High Court, the appellant has now appealed to this Court –The Court held that the High Court was correct in finding that the Tender Board was directed to re-consider the original tender and not one for a longer term. Appeal dismissed with costs. Free Namibia Caterers v Chaiperson of the Tender Board of Namibia and 3 others (SA 44 – 2015) [2017] NASC (28 July 2017)

**********************************************************

Administrative law –Review Application: This appeal is against the judgment and order of the High Court dismissing an application to review the award of a tender for the construction of the first respondent’s headquarters to the fifth respondent. The appellant

9 | P a g e

sought to review the award on the following grounds: (a) impermissible bias; (b) non-engagement by the first respondent’s board with the recommendation submitted to it by an evaluation committee composed of experts; (c) improper application of a ministerial policy by the statutory body which allegedly prejudiced the appellant in the manner its tender was evaluated; (d) failure to act fairly and reasonably, and (e) denial of the right to be heard in regard to information adverse to it – On appeal, the appellant relied on the following additional grounds: (f) it was not furnished with reasons for the rejection of its tender, thereby constituting a reviewable irregularity, and; (g) the first respondent conducted the tender process in contravention of its own tender procedures. These grounds were not entertained – The fifth respondent cross-appealed against the High Court’s finding that (a) the matter was urgent; (b) that it was not prejudiced on account of appellant’s failure to seek interim interlocutory relief, pending the finalisation of the review proceedings, and; (c) that it was not prejudiced by the appellant’s waiver to first obtain the record of proceedings sought to be reviewed – Court on appeal held that; (a) the first respondent was entitled to rely on expert advice in the adjudication of the tender; (b) the ministry’s policy that a bid which was 15 % less than the estimated net costs of the tender should be less favorably considered was rational and was applied even-handedly to all bidders; (c) the first respondent acted fairly and reasonably in the adjudication of the tender and that it would in the circumstances of the case have been impractical to grant the appellant audi in respect to the information adverse to it – With respect to the cross-appeal, court on appeal held that (a) the Court could not interfere with the exercise of the court a quo’s discretion to entertain the application on an urgent basis, (b) there is no requirement that a party seeking review must first seek interim interlocutory relief; and (c) an applicant for review is entitled to waive access to the record of the proceedings sought to be reviewed. The appeal and cross appeal is dismissed. . Reasons for the judgment in New Era Investment (Pty) Roads Authority and 4 Others (SA 8 – 2014) [2017] NASC (8 September 2017)

**********************************************************

10 | P a g e

APPEAL

Leave to appeal from the High Court: In this matter an appeal was noted against the judgment and order of the High Court dismissing an application for condonation for the late delivery of the appellant’s heads of argument and striking the appeal off the roll. The application for condonation was made in the course of an appeal in a civil case in that court against a decision of a magistrate’s court – Without obtaining leave from the High Court, the appellant lodged the appeal in the Supreme Court seeking to overturn the decision of the High Court – Section 18(2)(b) of the High Court Act 16 of 1990 provides in effect that a judgment or order of the High Court sitting as a court of appeal in a civil case is not appealable as of right. Leave to appeal must first be sought and obtained from the High Court. If such leave is refused an appeal to the Supreme Court is possible only once leave to appeal is granted by the Supreme Court itself – It was argued on behalf of the appellant that the appellant did not require leave to appeal to the Supreme Court as the High Court had decided the condonation application as a court of first instance. The Court held that the appellant indeed required leave to appeal and that in the absence of the High Court granting such leave or the Supreme Court granting it in case the High Court refuses to do so, the appeal is not properly before this court. The matter was accordingly struck off the roll – As the appeal was prosecuted with the assistance of the Directorate of Legal Aid, no order as to costs was made. ( Mentoor v Usebiu (SA 24-2015) [2017] NASC (19 April 2017)

Leave to appeal from the High Court – Interlocutory order- The appellant was sued by the respondent bank for the monies lent to a close corporation of which the appellant was a member at the time the loan was advanced to the close corporation. The appellant had signed as a surety for the obligations of the close corporation – In the course of proceedings, the appellant decided to amend his plea to introduce new defences to the respondent's claim. He brought an application to amend the plea, but the application was dismissed because there was no explanation under oath why the plea was being amended so late in the proceedings – The appellant appealed against the judgment and order of the High Court dismissing the application for amendment. The appellant did not first seek or obtain leave to appeal against the order of the High Court, which was interlocutory. It was argued on behalf of the appellant that leave to appeal was not necessary because even though the order dismissing the application for amendment was interlocutory, it was a 'pure' interlocutory order that was final in effect and definitive of the rights of the parties. An order with those characteristics was appealable as of right and no leave was required, so the argument developed – On

11 | P a g e

appeal, the court held that the structure of s 18(3) of the High Court Act 16 of 1990 is that for a party to appeal against a judgment or order of the High Court, two requirements must be met. Firstly, the judgment or order must be appealable and secondly if the judgment or order is interlocutory, leave to appeal against such judgment or order must first be obtained from the High Court and if that court refuses to grant leave, leave should be obtained from the Supreme Court by way of a petition to the Chief Justice. It was further held that the application for amendment was interlocutory and as such the appellant required leave to appeal to the Supreme Court. As no leave had been obtained, the appeal was struck from the roll with costs - Di Savino v Nedbank Namibia Limited (SA 82/2014) [2017] NASC (7 August 2017)

****************************************************

APPLICATION FOR CONDONATION

Condonation for the late filing of notice of appeal: It is well established that an application for condonation is required to meet two requisites of good cause before an applicant can succeed in such an application. These entail firstly establishing a reasonable, acceptable and bona fide explanation for the non-compliance with the rules, and secondly satisfying the court that there are reasonable prospects of success on appeal – The appellant failed in respect of both requisites – Held on appeal that the high court was in the circumstances justified to refuse to grant condonation for non-compliance with the provisions of rule 67(1) of the Magistrates’ court rules – The appeal is dismissed. Elton Jossop v The State (SA 44/2016) [2017] NASC (30 August 2017)

****************************************************

Condonation for non-compliance with Supreme Court rule - Condonation application - non-compliance with the provisions of rules of court – rules 5(5), 8(2), 8(3) and 11(1) – Legal principles applicable restated. Condonation application must be lodged without delay and applicant must provide a full, detailed and accurate explanation for the delay – Factors relevant in determining condonation application: the extent of non-compliance, reasonableness of explanation offered, bona fides of the application, prospects of success on the merits of the case, importance of the case, the respondent’s (and where applicable, the public’s) interest in the finality of the judgment, the prejudice suffered by other litigants as a result of the non-compliance, the convenience of the court and the avoidance of unnecessary delay in the administration

12 | P a g e

of justice – These factors are not individually determinative, but must be weighed, one against the other, nor will all the factors necessarily be considered in each case – A court may decline to consider prospects of success on the merits of an appeal where non-compliance with the rules has been glaring, flagrant and inexplicable – Cumulative effect of the non-compliance to be considered In casu – no acceptable explanation for some periods of delay and no explanation at all in respect of other periods of delay – Condonation application refused in spite of the possibility of prospects of success in respect of merits of appeal. Gomes v Meyer (SA 33/2014) [2017] NASC (12 April 2017)

****************************************************

ATTACHEMENT OF PROPERTY TO FOUND OR CONFIRM JURISDICTION

Jurisdiction – Functus Officio : The appellant, an estate agent, appeals against the dismissal of her application seeking the release of her estate agent’s commission in the amount of N$ 50 000, from the proceeds of sale of the third respondent’s immovable property which were attached to found or confirm jurisdiction by second and third respondents. Default judgment obtained by the appellant against the third respondent could not be satisfied. The proceeds of sale of the third respondent’s immovable property were attached ad confirmandam jurisdictionem, alternatively, ad fundandam jurisdictionem in favour of the first and second respondents in respect of loan agreements between the first and second respondents and the fourth respondent – a member of the third respondent and perigrini of this Court – in his personal capacity. –On appeal, the appellant contended that the court a quo erred in law and fact by finding that (a) it was functus officio with regard to the orders ad confirmandam jurisdictionem, alternatively, ad fundandam jurisdictionem, (b) rule 44 of the Rules of Court could not be utilised to rectify the orders ad confirmandam jurisdictionem, (c) the release of the monies would cause a deficit prejudicial to the first and second respondents. For the first respondent it was contended that (a) the court a quo was functus officio with respect to the orders ad confirmandam jurisdictionem, alternatively, ad fundandam jurisdictionem, (b) appellant’s application was not launched in terms of Rule 44 of Court and (c) further that the granting of the relief sought would be prejudicial to the first and second respondent – Court on appeal held that the first and second respondents would be occasioned by prejudice by the granting of the relief sought by the appellant due to the fact that the orders ad confirmandam jurisdictionem, alternatively, ad fundandam jurisdictionem are valid and unimpugned. Appeal court further holding that court a quo is functus officio the orders ad confirmandam jurisdictionem, alternatively, ad fundandam jurisdictionem. The appeal dismissed with costs. Slyvie McTeer Properties v Kuhn (SA 12 - 2005) [2017] NASC (15 August 2017)

*****************************************************

13 | P a g e

COMPETITION LAW

Competition Act, 2 of 2003 (the Act) – Anti-competitive conduct – The issue raised in this appeal is whether the Competition Commission established under the Competition Act, 2 of 2003 (the Act) has jurisdiction over registered medical aid funds for the purpose of s 23 of the Act which prohibits anti-competitive conduct between undertakings as defined in the Act. The Namibian Association of Medical Aid Funds (NAMAF), established under the Medical Aid Funds Act, 23 of 1995 (the MAF Act) and medical aid funds registered under the MAF Act applied to the High Court for an order declaring that they are not undertakings as contemplated by the Act and that the Commission would consequently not have jurisdiction over them – The Commission had conducted an investigation under the Act and notified NAMAF and the funds that their conduct of setting prices for medical services by setting benchmark tariffs after collective negotiations amounted to a contravention of s 23 which proscribes concerted practices between undertakings which directly or indirectly fix purchase or setting prices – On appeal, the Supreme Court found that whilst funds are businesses in the form of enterprises and are statutorily enjoined to apply sound business principles in their operations, this is to protect their members’ interests by ensuring the solvency of funds. Being a ‘business’ did not mean that a fund’s economic activity is market related for the purpose of achieving a gain or reward. The MAF Act precluded funds from distributing a surplus and rendered them non-profit concerns. The social solidarity nature of funds in the context of the protective legislation governing and tightly regulating them and the statutory purpose of promoting funds meant that funds are not businesses carried on for gain or reward for the purpose of the definition of undertaking in the Act, which was also considered in the context of the purpose of the Act to promote and safeguard competition to provide consumers with competitive prices and product choices – The Supreme Court concluded that medical aid funds are not undertakings within the meaning of the Act and that the Commission does not have jurisdiction over them. As the constituent funds are not undertakings, it also followed that NAMAF also did not fall within that definition. The appeal was upheld and the High Court’s decision reversed on appeal.- Namibian Association of Medical Aid Fund v Namibia Competition Commission (SA 18 - 2016) [2017] NASC (19 July 2017)

*****************************************************

CONSTITUTIONAL LAW

Article 81 of the Namibian Constitution – Section 16 of the Supreme Court Act : The applicant initially approached the Supreme Court to ‘review’ its prior decision

14 | P a g e

dismissing the High Court’s decision to uphold a special plea of lack of jurisdiction. He subsequently amended the relief to rely on Art. 81 which empowers the Supreme Court to reverse its own prior decision. The applicant formed part of a group of fugitives who were removed from Botswana by the Namibian authorities to stand trial on, amongst others, charges of high treason. At his trial he raised a plea of lack of jurisdiction on the part of the Namibian courts in terms of s 106 of the Criminal Procedure Act 51 of 1977. The High Court upheld his plea but on appeal by the State this decision was reversed by the Supreme Court in S v Mushwena and Others 2004 NR 276 (SC). A differently constituted Supreme Court, however, upheld a special plea of jurisdiction raised by Mr Boster Mubuyaeta in S v Munuma and Others 2016 (4) NR 954 (SC) based on the same facts relied on by the applicant, and ordered a permanent stay of prosecution. The applicant sought relief from the Supreme Court relying on the outcome of the Munuma-appeal arguing that he was in a position no different to Mr Mubuyaeta whose special plea was upheld by the Supreme Court holding that his removal from Botswana by the Namibian authorities constituted an act of international delinquency denuding our courts jurisdiction. The applicant premised his relief on Art.10 of the Namibian constitution which guarantees equality before the law and on Art. 81 which empowers the Supreme Court to reverse its own decisions – The court delivered three judgments: the main judgment by Damaseb DCJ holding that the court could reverse the result of an earlier decision by the court pursuant to Art 81 of the constitution and in its inherent jurisdiction could determine a procedure for this purpose and granted an order reversing the previous decision and indemnifying the applicant against prosecution on the charges he faced. A concurring judgment by the Chief Justice expanding on the unlawfulness of the activities of the Namibian police and the suitability of the relief and a dissenting judgment by Frank AJA disagreeing that the actions by the Namibian Police were unlawful and that the relief was appropriate – Court held (unanimously) that the review relief under s 16 of the Supreme Court’s Act, 15 of 1990 is misplaced as it only confers a jurisdiction to review decisions of the High Court, a lower tribunal or administrative body and not the Supreme Court’s decisions. In discussing Art. 81, the court held, inspired by comparable international jurisprudence, that the Supreme Court has jurisdiction to revisit a prior decision and to reverse it in exceptional circumstances – Court further held that it is against the principle of legality for the Supreme Court to be powerless to put right a manifest injustice caused to an individual; that such approach is unsustainable under Namibia’s constitution with a justiciable Bill of Rights; that the exception to res judicata will not be sought as of right but upon the Chief justice being satisfied after representation that there are good reasons to invoke the court’s jurisdiction under Art 81; emphasising that a litigant may not as of right come to the Supreme Court to seek relief under the Article – On the facts of the case, the court held that Mr Likanyi’s case presented exceptional circumstances warranting the relaxation of the res judicata rule – Court further held (Frank AJA dissenting) that the court in the Mushwena-appeal failed to give full effect to the peculiar factual circumstances of the

15 | P a g e

applicant resulting in an indefensible injustice to him and that it was competent to reverse the prior decision concerning the applicant. Court held that the State failed to prove beyond reasonable doubt that the High Court had jurisdiction to try Mr Likanyi. Permanent stay of prosecution and immediate release of Mr Likanyi ordered. - Likanyi v S (SCR 2 - 2016) [2017] NASC (4 August 2017)

***************************************************

Motor Vehicle Accidents Fund Act 4 of 2001: The appellant instituted action against the Motor Vehicle Accident Fund (‘the Fund’) for compensation after being blinded in a collision with a motor vehicle. The alleged damages or losses suffered by the appellant exceeds N$9 million. The compensation payable by the Fund is however capped in terms of the Regulations published by the Minister under the Motor Vehicle Accidents Fund Act 4 of 2001 (the Act) resulting in appellant not being able to recover all his damages or losses from the Fund –The appellant attacked the aforesaid capping averring that the Act constituting the Fund was unconstitutional in that it authorised the capping contrary to Arts 8 and 10 of the Namibian Constitution (the Constitution) and that failure to specifically categorise a different cap for persons with disabilities amounted to discrimination; alternatively, it impacted on the dignity of disabled persons by failing to recognise that disability fall within the concept of ‘social status’ as used in Art 10(2) of the Constitution –The appellant, in the alternative, attacked the Regulations issued pursuant to the Act which put the capping in place averring that the delegation of legislative functions to the Minister amounted to an impermissible delegation; that the Regulations were arbitrary, ultra vires and did not specifically provide for disabled persons and thus contrary to Arts 8 and 10 for the same reasons articulated in respect of the constitutional challenge against the Act –The court held that neither the Act nor the Regulations were contrary to Arts 8 and/or 10 of the Constitution as there was no differentiation between or discrimination against equally positioned persons and was thus not necessary to decide whether disability could be said to fall within ‘social status’ as used in Art 10(2) –The court held further that as far as the challenges to the Regulations were concerned, the delegation by the legislator to the Minister was properly circumscribed in the Act and amounted to a permissible delegation. The Minister acted in a reasonable and rational manner when he determined the capping as it is within the powers delegated to the Minister.The appeal was dismissed with costs. - Visser v Ministry of Finance (SA 89 - 2014) [2017] NASC ( 6 April 2017)

*****************************************************

16 | P a g e

Stock Theft Act 12 of 1990: The first and second respondents in this appeal, with separate substantive applications approached the High Court seeking orders declaring the minimum sentences prescribed by sections 14(1)(a)(ii) and (b) of the Stock Theft Act 12 of 1990 (the Act) unconstitutional and invalid. They contended that the minimum sentences prescribed by the impugned provisions violated Articles 8(2)(b) and 10(1) of the Namibian Constitution. The Prosecutor General (appellant in this court) opposed both applications and argued that the impugned provisions were not unconstitutional. The Prosecutor General further argued that the constitutional challenge brought by the first and second respondents was inappropriate. The Attorney-General and the Government of the Republic of Namibia, on the other hand, conceded that the impugned provisions violated Article 8(2)(b) but denied that both subsections challenged violated Article 10(1) of the Constitution. The court a quo granted the declarator and struck the words "for a period not less than twenty years" and "for a period not less than thirty years" from sections 14(1)(a)(ii) and 14(1)(b) of the Act – On appeal, the Prosecutor General argued that it was not necessary or appropriate for the court a quo to decide the constitutional issue as the first and second respondents had the right to appeal against their sentences. Regarding the impugned provisions, the Prosecutor General submitted that the sections under attack do not violate Articles 8(2)(b) and 10(1) of the Constitution. The Prosecutor General further argued that the order fashioned by the court a quo failed to take into account the doctrine of separation of powers. The first and second respondents, on the other hand, contended that they were entitled to approach the court a quo with their respective applications. On the second issue, they maintained that the sentencing benchmark were inconsistent with Articles 8(2)(b) and 10(1) of the Constitution. They further contended that as both sections of the Act are unconstitutional and invalid, the order of the court a quo ought to be confirmed by this court – Court on appeal held that the court a quo was entirely correct in entertaining the constitutional challenge by the first and second respondents despite that they also had the right to appeal against their sentences – Court on appeal further held that that the minimum sentences under attack are unconstitutional because of their disproportionality. The court further held that in view of the findings relating to the unconstitutionality of the impugned provisions, there is no need to refer back the impugned provisions to the legislature for possible correction. Instead, Parliament in its discretion may craft a solution. Appeal dismissed with costs. Prosecutor General v Protasius Daniel and 3 Others (SA 15 – 2011)[2017] NASC (28 July 2017)

******************************************************

17 | P a g e

The Medicine Related Substances Control Act 13 of 2003 - The Medicine Related Substances Control Act 13 of 2003 (MRSCA) requires that in order to sell medicine to his or her patients, a doctor must apply for and be granted a license by a Council established under the Act. Before 2008 doctors did not require to be licensed to sell medicine to patients. The MRSCA empowers the Namibia Medicines Regulatory Council (Council) to grant a license if in ‘public need and interest’ and if the doctor has the ‘required competence’. The MRSCA does not spell out the criteria needed for the granting of a license and what is meant by ‘required competence’. The doctors challenged the licensing scheme as being unconstitutional, amongst others, for the lack of guidelines to be applied by the Council in considering a license application – The court upholds the doctors’ complaint that the MRSCA’s licensing scheme is void for vagueness. The court declares the relevant provisions of the MRSCA creating the licensing scheme unconstitutional. The court, however, rejects the doctors’ proposition that they have a constitutional right to sell medicine to patients without a license. The court is satisfied that there is a legitimate governmental purpose in regulating the sale of medicine by doctors to patients in order to prevent over-prescription or unnecessary prescription of medicine to maximise profit without regard to the actual needs of the patients – Being substantially successful, the doctors are granted costs. Medical Association of Namibia and Others v Minister of Health (SA 80/2013) [2017] NASC (9 February 2017)

****************************************************************

Criminal Procedure Act 51 of 1977: Appellant was convicted in the High Court of murder solely on the single evidence of a confession which the appellant had made to a justice of the peace. The appeal was against conviction only directed at the admissibility of the confession. The attack on the confession was two pronged, first that the requirements of s 217(1), (that the confession was made freely and voluntarily by the appellant whilst in sound and sober senses and without having been unduly influenced thereto) were not met and secondly that appellant’s rights to legal representation were not explained and therefore that the admission of the confession infringed the appellant’s right to a fair trial granted by Art 12(1)(a) and (f) of the Constitution –Held that the alleged confession on which the trial court relied for its conviction was not a confession as the statement did not amount to unequivocal acknowledgement of guilt, rather it was an admission in terms of s 219A –Held, further that on the evidence the requirements of s 217(1) or that of s 219A as the court found the statement to be an admission were met –Held, further that while the justice of the peace warned the appellant of his right to legal representation, he failed to record the response of the appellant to the warning and he was a poor witness in his oral evidence on that point, he could not recall whether the appellant wanted a legal representative of his own

18 | P a g e

choice or that funded by the State –Held, further that a court has a discretion to allow or exclude unconstitutionally obtained evidence or evidence in conflict with the constitutional right for reasons of public policy. No strictly exclusionary rule is adopted in exercising the court’s inherent power in ensuring a fair trial –Held, further that it is now settled law that an accused person under arrest depending on the facts of each case, in particular the personality and the characteristics of the particular accused should be comprehensively informed of his/her right to legal representation, which includes the right to apply for legal aid –Held, further that failure to inform the accused properly of his right to consult there and then with a legal representative violates a fundamental right of the accused –Held, further that in as much as there is no hard and fast rules possible in regard to adequacy of warnings related to legal representation, the least that the justice of the peace should have done is to record the appellant’s reaction to the warning –Held, further that the statement of the confession speaks for itself, the justice of the peace failed to meaningfully advise the appellant of his right to legal representation –Held, further that the admission of the confession relied on by the trial court to convict the appellant infringed the appellant’s right to a fair trial granted by Art 12(1) of the Constitution –Held, further therefore that the admission of the confession had to be excluded –Held accordingly that the appeal by the appellant against his conviction had to succeed and both the conviction and sentence had to be set aside. Engelbrecht v S (SA 05-2012) [2017] NASC (14 July 2017)

**************************************************

CONTRACT

Lease Agreement- The appellant, plaintiff a quo, appeals against the High Court’s decision dismissing a claim for damages arising from an alleged breach of a lease agreement. The claim was for unpaid rent for the unexpired portion of the lease agreement. The grounds for terminating the lease agreement advanced by the respondents are that the appellant failed to maintain the property leased in terms of an oral agreement and the terms of the lease and that the property could not be utilised for the purpose it was leased. Evidence showed that the exterior of the property was in a very bad condition –The court a quo made factual and credibility findings. In a nutshell, it found that the general state of the property was not up to standard and the termination of the lease by the respondents was justified. On appeal, the factual and credibility findings are challenged –On appeal, the court emphasized that an appeal court will not readily disturb the findings of a trial court on credibility and findings of fact because of the advantageous position the trial court finds itself. Appeal court upholding the conclusion that the leased property was unfit for the purpose it was rented; that sufficient notice had been given to the appellant to rectify and put right the interference

19 | P a g e

with the respondents’ use and enjoyment of the property; that the respondents were justified in terminating the lease agreement and that appellant’s witness was a less credible witness than the respondents’ –The court commented on the record of appeal in respect of appeals in trial matter and laid down guidelines in this regard. Appeal dismissed with costs. (BV Investment Six Hundred and Nine CC v Letty Kamati (SA 48/2017) [2017] NASC (17 July 2017)

************************************************************

Lease Agreement: The respondent purchased a property situated at Plot 91 Nonidas, Swakopmund during April 2010, from the erstwhile owner’s estate at a public auction. The late owner Mr Neumann had erected various structures on the property and he had let a small room in the tower to the appellant, for the purpose of setting up a telecommunications base station. The lease agreement commenced on 1 August 2006 on a monthly tenancy of N$3000 for a fixed period of 10 years, which would have expired on 31 July 2016 with an option to renew for a further period of 10 years. The lease agreement was initially concluded orally between the late Mr Neumann and the appellant. It was later during July 2007 reduced to writing. It was a condition of sale of Plot 91 Nonidas that the purchaser would inherit the lease agreement. When the respondent purchased the property, he took over the agreement as it was. Shortly after the respondent had acquired the property, he discovered that the radiation intensity emitted by the antennas installed at the premises by the appellant was in excess of twenty times the International Commission for Non Ionizing Radiation Protection (ICNIRP) maximum and constituted a very serious health risk to the public and the respondent’s personnel who accessed the sun downer platform. Respondent engaged the appellant’s Schmidt-Dumont, a project co-ordinator for radio networks then. Respondent’s suggestions were to either raise the antennas to a safe height or relocate to an artificial palm tree or enter into a new contract and he insisted on his suggestions. During these communications, appellant terminated the lease agreement on or about 25 January 2011 providing the respondent with two months termination notice that was until 31 March 2011. Thereafter the appellant discontinued paying any rental to the respondent in terms of its obligations under the lease agreement. Respondent refused to accept the termination. He sued appellant in the High Court for the remainder of the contract period, the escalation and interest added on in the amount of N$326 644,73, the claim based on appellant’s unilateral and unlawful termination of the agreement. Appellant appealed against the decision of the High Court dismissing its defence of the premises let by appellant not being identified or identifiable and its alternative defences of repudiation of the agreement by the respondent, as a result of what the appellant termed as unreasonable demands and supervening impossibility of performance for the reason that the erstwhile owner created a sun downer platform which reduced the safe height level of the antennas contrary to the agreement and the use of the sun downer by the respondent. The defences were repeated or relied on, on appeal – Held that the

20 | P a g e

premises a small room in tower which is the subject of a written lease agreement is clearly identified or identifiable. A valid lease agreement was therefore concluded – Held that the agreement between the parties provided for relocation after the permanent tower became available, relocation was therefore contemplated or foreseeable. The demands made by respondent to relocate the antennas were not unreasonable and therefore did not exhibit a deliberate and unequivocal intention no longer to be bound by the contract or did not repudiate the contract – Held further that the appellant failed to prove that the performance of its obligation in terms of the contract was rendered impossible. Appellant should have enforced the terms and conditions of the contract or explore viable alternatives with the respondent before it terminated the contract. Appeal dismissed. (Mobile Telecommunication Ltd v Eckleben (SA 16/2016) [2017] NASC (1 June 2017)

***********************************************************

Essentilia of Contract: In the High Court, the respondent (plaintiff) instituted action against the appellants (defendants), alleging that the appellants were indebted to it in the amount of N$131 707,38 the said amount being the balance on the loan advanced to the appellants as a result of a written agreement between the parties. In support of its claim, the respondent attached a copy of the mortgage bond to its pleadings. The respondent alleged that the appellants failed to pay the monthly instalments in terms of the agreement as a result of which the full outstanding amount on the loan became due and payable –The appellants defended the action and denied any liability to the respondent. The appellants in the main denied that the respondent was the holder of the mortgage bond. The appellants also pleaded that they have repaid the loan amount including interest. The appellants, further pleaded that any amount plus interest that might still be owed, was a less than the amount claimed – The matter went to trial, and after evidence had been presented by both parties, the respondent was successful and obtained the relief of an amount of N$177 743,46 plus interest on that amount at the rate of 13,75 per cent per year. Aggrieved by this outcome, the appellants noted an appeal to this court – On appeal, the respondent took a point in limine, arguing that the appeal had been set down irregularly as the appeal was deemed to have lapsed and that condonation should have been obtained before the appeal could have been set down for hearing. The court held that this was not an instance where the appeal had lapsed and granted condonation –The appellants on appeal raised various grounds, which were directed at some alleged irregularity on the part of the trial judge – As regards the claim, the court held that the evidence established, on a preponderance of probabilities, the agreement between the parties which had not been put in dispute on

21 | P a g e

the pleadings, except in regard to the interest to be paid on the amount borrowed. The appellants did not deny the fact that money had been borrowed from the respondent. The court further held that the balance still remaining after such payments by the appellants was established during the trial – The court held that although irregularities had been committed during the trial that prejudice to the other party was a requirement to have the effect contented for. The court held that the appellants had not been prejudiced by the irregularities and dismissed the appeal. (Mukapuli v Swabou Investments (Pty) Ltd (SA 49/2011) [2017] NASC (23 June 2017)

****************************************************

Purchase Agricultural land by Foreign Company : The appellant (Denker) brought an application in the High Court seeking an order declaring that the transfer of his 1% share in a Namibian-registered company owning agricultural land to a foreign national (a trust), was unlawful and invalid. Since it was in breach of s 58(1)(a) for the company, in which a Namibian did not hold a controlling interest, to acquire agricultural land, the acquisition by the company was void. Denker requested the court, in addition to declaring the share transfer invalid, to rectify the share register of the company in terms of s 122 of the Companies Act, 2004 (Act no. 28 of 2004) making him 51% shareholder and the foreign national 49% shareholder. The relief was justified on three principal grounds. The first was that the fifth respondent had misrepresented to him that Namibian law permitted him (a foreigner) to own shares in the company (acquiring agricultural land) in equal proportion (50/50) when in truth that was not permitted by law. The second basis was that the documents evidencing the share transfer were not affixed with stamp duty as required by s 23 and s 10(6) of the Stamp Duties Act, 1993 (Act no. 15 of 1993), read with s 140 of the Companies Act - rendering the transaction void and unenforceable. The third ground was that since a trust was not in law capable of holding shares, the transaction was void because it was a foreign trust which, together with Denker, held the shares in the company. -The fifth respondent and the trustees of the third respondent opposed the application and brought a counter application, relying on the illegality of the transaction and asked the court a quo in terms of s 60 of the Agricultural (Commercial) Land Reform Act, 1995 (Act 6 of 1995), to order the Minister of Land, Resettlement and Rehabilitation to direct a forced sale on public auction. Alternatively, the winding up of the company was sought due to its alleged inability to pay its debts as contemplated by s 349 (1)( f) (read with s 350(1)(a) of the Companies Act, alternatively that it will be just an equitable to do so in terms of s 349(1)(h), read with s 350 (1)(c) of the Companies Act. The High Court refused the main relief sought in terms of s 122(1) of the Companies Act. On the contrary, the High Court partially allowed the counter application which sought an invalidation of the purchase of the agricultural land by the company and directed the Minister to order a forced sale under s 60 of the Land Reform Act, premised on the common cause illegality of the

22 | P a g e

transaction in so far as it involved a foreign national acquiring a controlling interest in the company. -On appeal, held that defective instruments of transfer did not necessarily result in a nullity and that the legislature did not intend the transaction to be vitiated by a nullity. Further held that both parties were equally culpable in the creation of the defective instruments of transfer and that justice and equity dictates that none of them benefit to the prejudice of the other. Held further that the allegation that the appellant was induced to act to his prejudice by a misrepresentation of the law was, on the facts of the case, improbable as the appellant could, without any difficulty, have sought independent professional advice to establish it was wrong and to protect his interests. -Held further that the issue of whether a trust can own shares had become moot. - Held further that since the transaction is invalid for being in breach of s 58(1) (a) of the Land Reform Act, the Minister was obliged to invoke s 60. Appeal dismissed, with costs against the appellant. (Denker v Ameib Rhino Sanctuary (Pty) Ltd (SA 15-2016) [2017] NASC (22 November 2017).

CRIMINAL LAW AND PRODEDURE

Bail – The Supreme Court summarily laid down the principles that judicial officers must consider when dealing with bail applications, namely that judicial officers have to take into account the seriousness of the offence, the probabilities of a conviction, the nature of the probable sentence, and the ability to put up bail. All these factors go to the likelihood whether the accused will stand trial, which is the main consideration in deciding the bail issue. The appellant in this matter was primarily charged with nine counts of fraud for which he was granted bail but he later withdrew the bail money. After he was released on bail he allegedly committed further thirty-three offences of fraud and eleven offences of contravening 30(1) of the Immigration Control Act. The Supreme Court concluded that the High Court correctly dismissed the appeal to admit the appellant to bail but it erred when it granted him leave to appeal in that, where prospects of success are absent leave should be refused, but where prospects exist after a well-considered conclusion on the facts, leave to appeal ought to be granted. Pienaar v S (SA 13-2016) [2017] NASC (13 February 2017)

******************************************************************

Appeal against Sentence: The approach to appeals against sentence on the ground of excessive severity or excessive leniency where there has been no misdirection on the part of the trial court. The imposition of sentence is the prerogative of the trial court and the exercise of its discretion is not to be interfered with merely because an appellate

23 | P a g e

court would have imposed a heavier or lighter sentence – An appeal court may only interfere if the sentence imposed by the trial court is so inappropriate, that if the appeal court had sat as a court of first instance, it would have imposed a sentence which would markedly have differed from that imposed by the trial court – In such situations it would be said that the sentence imposed by the trial court was shockingly or startlingly or disturbingly inappropriate or that the trial court has unreasonably exercised its discretion – Held on appeal – the cumulative effect of mitigating factors may be considerable – Held further on appeal that had this court sat as a court of first instance it would have ordered a longer period of imprisonment imposed in respect of second count to run concurrently with sentence imposed in first count and that the proposed sentence differs markedly from the sentence imposed by the trial court so that the sentence imposed by the trial court attracts the epithet of strikingly, startlingly or patently inappropriate which justifies interference on appeal. (Romeo Manellitto Schiefer v The State (SA 29/2015) [2017] NASC (12 September 2017)

****************************************************

Application for Condonation: It is well established that an application for condonation is required to meet two requisites of good cause before an applicant can succeed in such an application. These entail firstly establishing a reasonable, acceptable and bona fide explanation for the non-compliance with the rules, and secondly satisfying the court that there are reasonable prospects of success on appeal – The appellant failed in respect of both requisites – Held on appeal that the high court was in the circumstances justified to refuse to grant condonation for non-compliance with the provisions of rule 67(1) of the Magistrates’ court rules – The appeal is dismissed: Elton Jossop v The State (SA 44/2016) [2017] NASC (30 August 2017)

****************************************************

Appeal against Conviction: The appellant was convicted in the High Court on five counts of rape involving five minor children. He was sentenced to five years on each of counts 1 – 4 and seven years on count 5. The High Court granted appellant leave to appeal against conviction. Appellant had admitted to having had sexual intercourse with the complainants in counts 1 – 4 and denied to having had sexual intercourse with the complainant in count 5. All offences took place at the farm where the appellant resided. All five complainants failed to report the offences at the times they were committed, but did so much later on when the complainant in count 4 reported to her uncle. During the investigation of that complaint, the other offences on the other complainants came to the surface. In fact, count 5 was added on at the commencement of the trial, after the

24 | P a g e

Public Prosecutor had consulted with the complainant in that count, who was subpoenaed as a witness in the other complainants’ cases. Appellant relies on the conducts of the complainants to allege consensual intercourse or deny intercourse in count 5.- The questions that arose for determination was whether: (1) the minor complainants consented to the sexual intercourse in counts 1 – 4, (2) the appellant had sexual intercourse with the complainant in count 5 and (3) the disclosure by the defence counsel to the court on the enquiry by the trial judge of the appellant not informing defence counsel of the photographs which the appellant intended to produce in evidence was an irregularity, which resulted in a failure of justice.-The court remarked that the failure of the complainants to report the offences at the times they were committed, but much later on, when they had the opportunity to report the same, when viewed in isolation, no grounds would exist for the rejection of the appellant’s evidence. The approach should not to take the fact in isolation, but rather to examine the fact in the context of the whole case, in order to determine whether it could stand. Viewed in the context of the whole case, the appellant’s version rings hollow and leave to appeal should have failed. Appellant’s version that BE, GK and LA elicited sexual intercourse from him and that they were prostitutes who slept around with men and that the three agreed between themselves to go to the farm and have sexual intercourse with him and he would pay for their services, is not possibly true as he collected BE, his sister’s daughter, from her grandmother under the pretext of removing her, in his own words, from prostitution and yet once on the farm he turned her into a sex slave, which was accompanied by assaults when she resisted his sexual advances. LA went to the farm with appellant and BE, LH was collected by appellant from her mother. GK arrived on the farm, with EH and her parents but the one night she spent on the farm, appellant forced himself unto her. All five complainants told one version that he assaulted them or threatened to do so when or if they resisted his sexual advances and threatened to assault them if they reported the offences. The complainants’ ages at the time the offences were committed militates strongly against the likelihood of them accepting of love proposals, let alone, to seduce or initiate sexual intercourse with the person they regarded as an uncle or their care taker. In as much as the complainants testified on a subject too complicated for a child to understand, their evidence reads well and is trustworthy.-On counts 1 and 5 Hoff JA et Frank AJA hold the view that BE resided on the farm for at least six months without reporting the alleged rape on her and EH only reported the rape during December 1998 two years later at the trial when she consulted with the Public Prosecutor as a witness in the other offences against the appellant. Therefore appellant’s defence of consent raised in relation to BE and appellant’s denial of sexual intercourse with EH cannot be said to be false beyond any reasonable doubt.- Held (per Mainga JA, Hoff JA and Frank AJA concurring) that the sexual intercourse in counts 2, 3 and 4 was not consensual.- Held (per Frank AJA, Hoff JA concurring) that the sexual intercourse in count 1 was consensual and appellant did not have sexual intercourse with the complainant in count 5. The appeal in respect of counts 1 and 5

25 | P a g e

succeeds and the convictions (and sentences) on the said counts are set aside. The appeal in respect of counts 2, 3 and 4 is dismissed. -Mainga JA dissenting holding that the sexual intercourse in count 1 was not consensual and appellant had sexual intercourse with the complainant in count 5 as the alleged offence in December 1998 is corroborated by a separate incident in April 1999, when the complainant in that count returned to the same farm with GK and her parents. That evening, that complainant shared a room with appellant, BE and GK. Appellant called her to his bed in the presence of the other two complainants, while her parents were in the adjacent room. Probably because of her experience with the appellant in December 1998, she refused and left that room and went to the room where her parents were accommodated.- As regards the disclosure in that the trial judge on various occasions posed questions to appellant’s counsel, requiring counsel to disclose appellant’s instructions regarding the photographs, which counsel disclosed contrary to what the appellant testified about the photographs, which communication discrepancy between client and legal adviser, the trial court among other things, relied on to discredit appellant’s evidence, the court held that, it was indeed an irregularity, but it was not the sole fact the trial court disbelieved the appellant. It was one of the many lies appellant told the trial court and therefore a failure of justice did not result from the irregularity. Appeal dismissed. TA v S (SA 30-2008) [2017] NASC (26 October 2017).

***********************************************************

Doctrine of Common purpose – Interference with decision of a lower court – Appellants made the contentions that the High Court erred in convicting the appellants under the doctrine of common purpose. The Supreme Court held that the body of evidence adduced during the trial court was sufficient to convict the appellants and that the convictions were thus justified. The Supreme Court reasoned that the appellants were the only witnesses present and they chose to give explanations which were rejected as false, so the trial court’s reasoning by inference in finding that the appellants murdered the deceased and actively collaborated with each other to commit the offences in question pursuant to the existence between them of a common purpose was sound. The Supreme Court found no basis to interfere with the findings of fact of the court below. Jackson v S (SA 10-2015) [2017] NASC (13 February 2017)

**********************************************************************

COSTS

Denial of costs to successful party- This appeal emanated from a hotly contested action tried in the High Court before Damaseb JP. At the centre of the dispute was a

26 | P a g e

contract concluded between the appellant, on one hand and the first and second respondents on the other, whereby the latter two agreed to sell to the appellant their entire beneficial interest in the third respondent – The appellant was at the time of concluding the contract, and still is, a foreign national holding South African citizenship while the respondents were, and continue to be, Namibian citizens – The domestic law of Namibia restricts the alienation of agricultural land to foreigners. In purporting to conclude the contract aforementioned, the parties failed to abide by the requirements of that law, thereby vitiating the contract ab initio – the appellant felt entitled to resort to his legal right to justice. He consequently instituted the court proceedings from which the current appeal emanates. In his particulars of claim he basically demanded restitution of the N$672 000 which he had so far paid towards the purchase price of the flat, plus interest thereon and his costs in convention – The trial judge granted judgment in favour of the appellant and ordered restitution of the principal amount of N$672 000 but, despite his success in this regard, the appellant was denied both interest and costs – The grounds of appeal raised one single issue only, viz, whether or not it was proper for the court below to deny the appellant, who is said to be the successful party, his costs which in this case were in two categories. In the first category were costs relating to his claim for restitution, and the second pertained to his reputedly successful contest against the counterclaims in which the proponents had persisted at length during the trial but only to abandon them very belatedly in midstream – It is settled law that a trial court has a discretion as to whether to award costs or not to a party, and if it has to make an award, to which of the parties to the proceedings. That discretion, however, has to be exercised judicially and not capriciously or arbitrarily. The general rule, however, is that costs follow the event that is to say that the successful party gets his or her costs. Put adversely, the unsuccessful party is, as a general rule, mulcted in costs. This being the general rule, an appellate court will be slow to interfere with the trial judge’s decision in the manner the costs were awarded. Such interference cannot be justified on the mere feeling that if the appellate judge had been presiding at the trial he or she would have made a different costs order. The power to interfere can only be exercised if it is found that the trial judge did not act judicially, or when the appellate court is of the view that the order denying the costs is vitiated by a misdirection, or if the trial judge acted capriciously or arbitrarily – the trial judge made the observation that both sides in this litigation had amended their pleadings so many times and altered their stances to suit the development of the evidence, and this resulted in a situation whereby the case which was eventually adjudicated on was different from what it was initially. This would appear to explain why an action which began in 2005 was only concluded in 2013, that is close to eight years later – The learned Judge-President was alive to the rule that the power to award costs was vested in his discretion is evident. He so directed himself at the very outset. Having done so, he then went on to state his reasons to justify denial of the same from the appellant notwithstanding that he was the successful party vis-a-vis the claim in convention. He also considered the overall conduct of the

27 | P a g e

parties, in particular the appellant. His undoubted conclusion was that the appellant’s conduct militated against an award of costs in his favour. It is my deep conviction that the judge did exercise his powers judicially in this regard, and not in any way capriciously or arbitrarily – In the result the appeal is dismissed with costs. (Du Toit v Dreyer (SA 22/2013) [2017] NASC (27 February 2017)

DELICT

Damages – The issue raised in this matter concerned the proof of damages in a delictual claim –The respondent, a cigarette manufacturer in Botswana, dispatched a consignment of 579 boxes of cigarettes to a duty free concern in Oshikango. After the consignment entered Namibia, customs officials impounded the consignment because the respondent’s clearing agent had wrongly declared that the consignment was destined for consumption in Namibia. On the following day the respondent withdrew the initial declaration and replaced it with one correctly stating that the cigarettes were sold in bond and destined for a bonded warehouse –The customs officials decided to impose a penalty in excess of N$800,000 before the consignment could be released. Despite demand, they refused to release the consignment –The respondent instituted an action at the High Court against the Minister of Finance and the Commissioner of Customs and Excise for the return of the cigarettes alternatively their value represented by the selling price as reflected in the accompanying invoice (Botswana Pula 928,000). At the trial, the respondent called an expert who testified that he had taken samples of the cigarettes just over a year after their detention and said they were worthless given the limited 6 months shelflife of cigarettes. Another witness confirmed the terms of the sale to the duty free concern in Namibia – Customs officials testified that the Customs and Excise Act, 20 of 1998 authorised the detention and imposition of the penalty – The High Court found that the customs officials were not so authorised and found that the detention was unlawful and awarded damages reflecting the purchase price – On appeal, the only issues raised concerned the proof of damages. The award was challenged on the grounds that a causal link between the delict and the damage to the cigarettes was not established in that the respondent had not established the condition of the cigarettes prior to the time of the delict. The appellants also disputed that the respondent had not proven the value of the cigarettes at the time of the delict – The court found that there was no reason for the High Court not to accept that the value of the cigarettes at the time of the detention was the purchase price reflected in the accompanying invoice in respect of their sale to the duty free entity in Namibia. The appellants did not dispute that the sale was in the ordinary course of business and found nothing to suspect the contrary. Evidence as to the correctness of the value given for the cigarettes had also not been disputed. There was also no evidence to suggest

28 | P a g e

that the cigarettes upon departure and prior to being impounded were anything other than in a condition to be sold. Once the cigarettes were detained and their release refused and became worthless after their detention, a clear casual link was established between the delict and the respondent’s loss – As the record was filed slightly out of time, the application to condone that failure to comply with the rules and to reinstate the appeal was refused because the appeal was without merit and did not enjoy any prospects of success. Minister of Finance and Another v Benson Craig (Pty) Ltd (SA 10 – 2016) [2017] NASC (26 July 2017

*********************************************************

INTERPRETATION OF STATUTES

Communal Land Reform Act, 2002 - The appellant (Ohangwena Communal Land Board) and the respondent (Tileinge Wapulile) had been embroiled in a protracted dispute over the fence around Odjele Grazing Farm. After unsuccessful engagement with the respondent the appellant invited the respondent to its headquarters at Eenhana during October 2012. On respondent’s arrival he was served with a letter headed ‘Notification order to remove the fence’. The notification required the respondent to remove the perimeter fence around the Odjele Grazing Farm within 30 days of receipt of the letter. Subsequent to the notification, respondent contacted his legal representatives and the Ondonga Traditional Authority that had granted the respondent the right to occupy the Grazing Farm. The Chief invited the Minister of Lands and Resettlement to his Palace and the Minister was requested to stop the removal of the fences. With the interventions of the Chief and his lawyers and the fact that the 30 days notification had expired without any action from the appellant, respondent thought all was well. On 26 July 2013 officials from the Ministry of Lands accompanied by Police officers arrived at the respondent’s farm and started dismantling the fence – Respondent, on 6 August 2013 made an urgent application to the High Court for an order interdicting the appellant from dismantling his fences and disposing the material used for the erection of such fences on Odjele Grazing Farm which farm fall within the communal area of the Ondonga traditional community. Respondent is a subject of that community. The farm was allocated to the respondent by the Ondonga Traditional Authority in the late 1980’s. That allocation of the farm was confirmed on 7 August 1996 in a letter from the Ondonga Traditional Authority which states that the Authority ‘gave permission’ to respondent ‘to own the farm known as Odjele Grazing Farm on 2 September 1988. Relying on ss 18 and 28(2)(b) and (3) of the Communal Land Act 5 of 2002 (the Act), the respondent alleged that the removal of the fence around his grazing farm was unlawful. He maintained that he had applied to the relevant board (Oshikoto Communal

29 | P a g e

Land Board) in terms of s 28(2) for the recognition and registration of the right in respect of the occupation of the farm and for the authorisation for the retention of the fence existing on the farm – It is common cause that the Grazing Farm is situated in Ohangwena Region and therefor falls under the jurisdiction of the appellant. Respondent had not applied to the appellant for authorisation for the retention of the fence existing on the farm, notwithstanding reminders to that effect by the appellant. It was also common cause that the Minister of Lands and Resettlement acting in terms of s 28(3) extended the time periods contemplated in s 28(2) from time to time. In GN 19 the Minister extended the period with effect from 1 March 2014 indefinitely. Respondent’s case in the High Court was founded amongst other things, on the ground that he had applied to the relevant board (Oshikoto Communal Land Board) during 2005/2006 and he was still awaiting for the reply and that the period for making applications contemplated in terms of s 28(2) had not yet expired at the time the appellant dismantled his fence. Section 18 prohibits the erection of fences on land in a communal land area. The exemptions from this prohibition made by the Minister in terms of the Regulations (26 and 27(3) published in GN 37 of 1 March 2003 are fencing in homesteads, cattle pens, water troughs or crop fields. Section 28(1) protects any existing customary land right held by a person in respect of the occupation or use of communal land, unless such person’s claim to the right is rejected upon application contemplated in s 28(2) or such land reverts to the State by virtue of s 28(13) – On 9 August 2013 the High Court issued a rule nisi, incorporating an interim interdict. On 15 November 2013, by virtue of the provisions of s 28 and the fact that, at the time the respondent’s fence was dismantled the period of making applications contemplated in s 28(2) had not expired, amongst other things, the High Court confirmed the rule and granted the relief as prayed for by respondent – On appeal the question arose whether the operation of s 18 is suspended in the period when an application for retention of a fence in terms of s 28(2) has not been made, although such an application may still be made because the time for making of such applications has not yet elapsed – The court recognised the tension between the provisions of ss 18 and 28 and held that the provisions of s 18 are not suspended, the prohibition remains operative whenever there is no application pending before the relevant Board – Held that the Minister can only extend the period within which the applications may be made, the obligations to apply in terms of s 28(2) remains, in force –Held that the prohibition in s 18 persists in the absence of an application before the relevant Board; notwithstanding the extension of time granted by the Minister – Held that the respondent did not have an application pending before the relevant board (Ohangwena Communal Land Board) when the appellant dismantled his fence and the appellant cannot be faulted for having dismantled the fence – Held that consequently the respondent’s application (interdict) should have been refused in the High Court – Held that the order of the High Court set aside and replaced with the following order –The rule nisi discharged. Appeal

30 | P a g e

succeeded with costs. Chairman Ohangwena Communal Land Board N.O v Tileinge Wapulile (SA 81/2013) [2017] NASC (8 June 2017)

**********************************************************

Labour Act 11 of 2007 – the phrase ‘within 30 days of the conclusion of arbitration proceedings the arbitrator must issue an award . . .’ as it appears in s 86(18) of the Labour Act 11 of 2007 found by the court a quo to be peremptory, requiring strict compliance, and award issued outside time period declared null and void ab initio – The cardinal rule of construction is that words of a statute must be given their ordinary, literal or grammatical meaning if the words are clear and unambiguous, unless it is apparent that such literal construction would lead to manifest absurdity, inconsistency, injustice or would be contrary to the intention of the legislature – Impossible to lay down any conclusive test as to when legislative provision is directory and when it is peremptory – It is the duty of a court to arrive at the real intention of the legislature by considering the object and scope of the relevant statute – Peremptory provisions merely because they are peremptory will not by implication, be held to require exact compliance where substantial compliance with them will achieve the object of the legislature. The modern approach manifests a tendency to incline towards flexibility – Where a statutory duty is imposed on a public body or public officers and the statute requires that such duty shall be performed in a certain manner or a certain time or under specified conditions, such prescription may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirement were essential or imperative – On appeal found that the word ‘must’, should in view of semantic and jurisprudential guidelines developed by the courts, be interpreted as permissive, requiring only substantial compliance in order to be legally effective. - Torbitt v The International University of Management (SA 16-2014) [2017] NASC (28 March 2017)

*****************************************************************

LABOUR LAW

Unfair Dismissal: The appellant was dismissed from his position as a ‘duty controller’ of Air Namibia after being found guilty of negligent handling of the employer’s petty cash box containing money; disregarding company rules and procedures on passenger checking-in, and irregularly issuing boarding passes to passengers. He succeeded at the arbitration but on appeal the Labour Court set aside the award against which the appellant now appeals –On appeal, the appellant argued that the Labour Court had no

31 | P a g e

jurisdiction to interfere with the factual findings of the arbitrator as it was not a ‘question of law’ as contemplated in s 89(1)(a) of the Labour Act 11 of 2007. The appellant further argued that the employer had not rebutted the presumption of unfair dismissal contained in s 33(4)(a) and (b) of the Labour Act. The employer argued that the court a quo was justified in interfering with the decision of the arbitrator –Court on appeal held that a finding is perverse if: (a) it is based on inadmissible or irrelevant evidence, (b) it fails to take into account all the relevant evidence, and (c) it is against the weight of the evidence in that it cannot be supported by the evidence on the record. Accordingly, the finding would not be perverse and appellate interference would not be justified just because, on the same facts, the superior tribunal could have come to a different conclusion –Court on appeal further held that in respect of the charges relating to the petty cash box, the arbitrator’s findings fell within a range of reasonable inferences open to a trier of fact and was thus not perverse; that in respect of it, the Labour Court improperly assumed jurisdiction in terms of s 89(1)(a) –As regards the charges of dishonesty and disregard of company rules and regulations, held that the evidence establishes, on a preponderance of probabilities, that the appellant was the source of the boarding passes handed to people who had no right to have them. Accordingly, the arbitrator misdirected himself and ignored the golden rule of fact-finding that all relevant evidence must be properly accounted for to justify a conclusion of fact – Labour Court’s conclusion that the arbitrator’s finding one which no reasonable arbitrator would have come to and therefore appealable, upheld. Appeal dismissed. Andima v Air Namibia (Pty) Ltd (SA 40 - 2015)[2017] NASC (12 May 2017)

******************************************************

LEGAL ETHICS

Unprofessional Conduct: Appeal to Supreme Court. Clear from record that lawyers representing parties in court a quo not acting diligently to further their clients’ interests in that their case was initially managed as if it was an action instead of an application – Record on appeal contained documentation that was not part of the application in the court a quo including the discovery affidavits and discovered documents which were not only inapposite in application proceedings but also not part of the application in the court a quo LEGAL ETHICS – Heads of argument on appeal filed late and reasons for such late filing proffered on behalf of the legal representative for appellant such as to suggest the possibility of unprofessional conduct – Conduct of legal representatives the reason for deviation from the normal costs order where parties were ordered to pay their own costs and certain costs disallowed or limited. (Helao Nafidi Town Council v Kambode (SA 9/2016) [2017] NASC (12 May 2017).

32 | P a g e

LOCUS STANDI

Locus Standi and prescription: The two issues raised in this appeal concern whether the appellants have legal standing (locus standi) to seek the relief set out in the notice of motion and secondly whether the claimed relief has prescribed or not. These two issues served before the High Court as preliminary questions and were argued separately from the merits of the application. The High Court (per Angula DJP) found that the appellants lacked standing and that seven of the ten items of the relief sought had prescribed and struck the application from the roll on those grounds. This is an appeal against that decision.- Locus standi – to prove locus standi, a litigant must show sufficient and direct interest in the proceedings. It was agreed between the parties during judicial case management proceedings that the Itireleng Village Community is a universitas in the form of a voluntary association with legal personality distinct from its members with the power to own property and with perpetual existence. The association would thus have the power to sue and be sued in its own name. Its Council (first appellant) is a constituent organ of the association. Its thus has no standing to act on behalf of the association under rule 42 of the High Court Rules. Proceedings would need to be brought by the association. First appellant’s reliance on rule 42 as a basis for standing is misconceived and must fail.-Locus standi – second appellant asserts that he has standing in his official capacity as headman of the Itireleng Community, by reason of his appointment to the position of senior traditional councillor under the Traditional Authorities Act, 25 of 2000 and in his capacity as member and chairperson of council in terms of the community’s constitution. Firstly, the powers of the traditional authority in question and senior traditional councillors are confined to those set out in the Act. The association having its own separate and distinct legal personality means that the Act provides no authority affording second appellant any power over it. Secondly, proceedings instituted on behalf of the association as a separate and distinct legal personality would need to be brought by the association itself and not by someone claiming to be its chairperson or council member. The second appellant would however have standing in respect of the relief claimed in paragraph 6 as it concerned terminating his position as chairperson of the council.-Prescription – a plea of prescription has not been established in respect of the reliefs sought in paragraph 6 (as well as in respect of paragraphs 1-5). This is because the relief claimed in these paragraphs does not constitute a ‘debt’ within the meaning of the Prescription Act. The relief sought in paragraph 6 is in essence a review of a decision by 14 th respondent to terminate second

33 | P a g e

appellant’s membership of council. Applying the principles set out by Wallis AJ in Makate v Vodacom Ltd 2016 (4) SA 121 (CC) in relation to paragraph 6, the relief claimed by second appellant – a review - is not a right of action for money or the delivery of goods, or the rendering of services which can be extinguished by prescription. The claim basically entailed the setting aside of disciplinary action of a voluntary association and is not a ‘debt’ for purposes of prescription. But a review is to be brought without unreasonable delay. The period of more than 5 years from the decision in question to bringing the application amounted to an unreasonable delay and should have resulted in this relief being dismissed.-Held - the court a quo should have dismissed the application and not merely struck it from the roll. It thus follows that the appeal failed. The Council of Itireleng Village v Madi Felix (SA 21-2016) [2017] NASC (25 October 2017).

POCA

Fraud and Money Laundering: The respondent had enquired from the Namibian Defence Force (NDF) about the possibility in providing accommodation services to the NDF, as he had indicated that he 'had a guest house' that could be utilised for such purposes. Having been invited to do so, he submitted a quote in the amount of N$2 652 810, which was accepted – After submitting the said documents, later on inquiry the Ministry of Trade and Industry confirmed that the close corporation was instead, registered in the name of the respondent’s mother, Mrs Eunike Hamutenya, but by then, the payment had already been made into his Standard Bank account – On 18 September 2014, it turned out that an electronic payment in the amount of N$1 061 124 had been made from the Government of Namibia State account for the Ministry of Defence into a Standard Bank account held in the name of Sydney Hassan & Sons Trading CC. A day later, on 19 September 2014, a cheque for N$800 000 with reference as 'salary', was electronically transferred into a First National Bank account held in the name of Tulinane P S Hiskia, who turned out to be the respondent’s minor son. On that same day, a cheque for N$250 000 was cashed on the Standard Bank account of the CC, with a positive balance of only N$1491,15 remaining – Having approached the High Court to be heard on an urgent basis, the Prosecutor-General (the PG), on 10 October 2014, obtained a provisional preservation of property order, on an ex parte in respect of the positive balance of N$800 000 on the First National Bank account which was in the respondent's minor son’s name and in terms of s 51(2) of the Prevention of Organised Crime Act, 29 of 2004 (POCA) – On the return date, the respondent, in limine, raised a procedural defence that the rule nisi must be discharged in that the appellant had failed to comply with the mandatory provisions of reg 7(b) read with s 91(1) and (2) and s 100 of the POCA. Regulation 7 requires that applications

34 | P a g e

under several sections in the Act including s 51 should be brought on 7 days' notice to a respondent or any other person who may require notice – Having reconsidered the issues including the requirements for such an application, the High Court upheld the procedural point and discharged the rule nisi, refusing to confirm the provisional order. Principally, the court’s basis for the refusal was that the PG had not complied with the prescribed procedures stipulated in reg 7 of the POCA – Following the decision in Uuyuni, the Supreme Court held that the approach to the interpretation of the relationship between ss 51(2), 91(2) and reg 7(b) should indeed be that the regulation would not apply in the case of the s 51(2) application. If it held otherwise, this would be in direct conflict with the dictum in Uuyuni which remains the authority regarding the ex parte nature of the application for a property preservation order in terms of s 51(2) of the POCA – The Supreme Court was of the view that reasonable grounds had been shown for the belief that the property, being the positive balance in the First National Bank account of the respondent’s minor son, had constituted the proceeds of unlawful activities, in particular, fraud and money laundering. The test in s 51(2) had therefore been met and once this is the case, it is peremptory that an order for the preservation of property be granted – In the result, the appeal against the order of the High Court is upheld. Based on the findings and the conclusion arrived at in this matter, the costs in this case must follow the result. - The Prosecutor-General v Onesmus (SA 25 - 2015) [2017] NASC (19 June 2017).

**********************************************************

CIVIL PRACTICE AND PROCEDURE

Procedure - Raising a point for the first time on appeal - Namsov Fishing Enterprises (Pty) Ltd (the respondent) and Merit Investments Eleven (Pty) Ltd (appellant), entered into a sourcing fee agreement which included an arbitration clause. A disagreement pertaining to payments for fishing quota exploitation rights arose between the parties – Namsov instituted an action against Merit for payment of the sums of N$ 7,360 000 and N$ 3,750 000. Merit resisted an application for summary judgment by relying upon the arbitration clause in their sourcing fee agreement. The matter proceeded to arbitration. The parties agreed upon an arbitrator and the terms of arbitration. This was confirmed in writing in a letter by Namsov’s lawyers to Merit’s lawyers – The arbitrator appointed to adjudicate the dispute between the parties made an award in favour of Namsov for payment of those sums. Namsov then applied to the High Court to make the award an order of court in terms of section 31 of the Arbitration Act 42 of 1965. The application was opposed on the basis that the award did not dispose of all obligations between the parties. The High Court rejected this defence –

35 | P a g e

On appeal, Merit no longer pursued its defence in the High Court but raised a new point for the first time, namely that Namsov had not established a written arbitration agreement in its application papers as required by s 31 of the Arbitration Act – The court reiterated the test for raising a point for the first time on appeal. It must be covered by the pleadings and its consideration should raise no unfairness to the other side. The court found that these requirements were not met and that there was also no basis for the point on the facts –The court found that Merit’s answering affidavit in the application confirmed the terms of the arbitration agreement set out in the letter by Namsov’s lawyers. A written agreement need not have all the parties’ signatures, but be reduced to writing. Merit’s opposition in the High Court accepted the existence of a valid arbitration agreement. Furthermore, Merit would have had to deal with the arbitration clause relied upon it for the referral to arbitration and why the recordal of the terms of the arbitration as set out in Namsov’s lawyer’s letters was not a proper record of the agreement to arbitrate, particularly given the fact that Merit had participated in the arbitration and raised no point there or in the High Court as to a lack of jurisdiction by the arbitrator – The court found that the new point raised on appeal was contrary to Merit’s pleaded position on the facts and further found that a written agreement to arbitrate as contemplated by the Arbitration Act was established by Namsov – In a concurring judgment, the Deputy Chief Justice found that the primary case relied upon in argument by Merit did not support the point taken on appeal for the first time. He also held that once the parties had accepted the High Court had jurisdiction, it was not for the presiding judge to second-guess them and make his own enquiry into the issue as to the true facts concerning jurisdiction. He held that the High Court was on the fact entitled to assume jurisdiction on the facts of the case. Merit Investment Eleven (Pty) Ltd v Namsov Fishing Enterprise (Pty) Ltd (SA 23/ 2016) [2017] NASC (24 March 2017)

**********************************************************

Defective record: The lodging of a defective record amounts to non-compliance with rule 5(5) resulting in the lapsing of an appeal. Rules of court are adopted in order to ensure fair and expeditious resolution of disputes in the interests of all litigants, including lay litigants, and to ensure the fair administration of justice generally –The consequence of non-compliance with rules 8(2) and 8(3) is that the appeal is deemed to have been withdrawn and may be struck from the roll. Non-compliance with rules 5(5), 8(2), 8(3) by a litigant necessitates the lodging of an application for condonation as well as reinstatement of the appeal –The appellant never applied for the reinstatement of his appeal, never provided security for costs and filed no proper record. These failures constitute insurmountable barriers to this appeal. No prospects of success on the merits found –Where non-compliance with the rule is glaring, flagrant and inexplicable court may not consider the prospects of success on the merits –The registrar may in terms of rule 5(16) refuse to accept copies which do not in his or her opinion comply with the

36 | P a g e

provisions of rule 5.- Somaeb v Standard Bank Namibia Ltd (SA 24-2014) [2017] NASC ( 27 February 2017)

******************************************

PROPERTY LAW

Joint owners - The parties who were divorced and with the intention of settling in Namibia with their children, acquired property, as joint co-owners. The relationship between them soured and as a result, the respondent moved out of the joint dwelling and purchased her own property. She then instituted action against the appellant in the court a quo in which she sought the division of the common property (dwelling), half of the rental received by the latter in respect of the said property and an order declaring that she was not responsible for a loan which the Appellant procured from Bank Windhoek and that such was to be repaid by the latter alone.-The Appellant in reconvention, sued for an amount in excess N$1.7 million, in respect of rates and taxes, loan repayments to Bank Windhoek and Nedbank, renovations and refurbishments as well as monies lent and advanced to the respondent for purchasing furniture and a business.-The record filed by the appellant was incomplete in certain material respects. Three further volumes were filed two court days before the hearing of the appeal without any application for condonation.Held – that Appellant had a duty to file a complete record timeously and failure to do so necessitated a condonation application, and which normally should not be moved from the bar. As there was no prejudice to the respondent or the court in this instance, the matter was not complicated and the respondent did not oppose the application but sought finality, the court considered the prospects of success. Held – that the appellant failed to adduce sufficient evidence to prove his claims against the respondent. However, if there are any amounts due to the City of Windhoek, in respect of rates and taxes, such claims only prescribe after a period of 15 years , making the latter jointly liable for such. Held – that the parties are indeed joint co-owners and as such, the order of the court a quo in respect of the sale of the dwelling and the rental due to the respondent was confirmed. - The Court found that the appellant had no prospect of success and therefore struck the matter from the roll with costs. Sindlgruber v Hessel Enke (SA 63-2015) [2017] NASC (8 November 2017).

RECUSAL

37 | P a g e

Recusal - Application for recusal of trial judge – test restated – applicant must show not only that the apprehension is that of a reasonable person but that it is also based on reasonable grounds – There is a clear distinction between instances where the bias arises as a result of outside factors and instances where a litigant complains of the conduct of the trial judge. Instances where bias was claimed as a result of the conduct of the judge during the trial itself were rare – The view that it is rare to successfully raise the exceptio recusationis as a result of the conduct of a presiding officer during trial proceedings is the general rule and does not exclude the possibility of exceptions – An example of such an exception is where a judge had previously expressed himself or herself in regard to an issue or the credibility of a witness which was still live and which was of importance in the matter before him or her – Trial judge expressed strong views and prejudged an issue which was still live and of importance to the defence of the appellants – Impartiality of a judge goes to the heart of the matter and is fundamental to a fair trial. Impartiality requires a mind open to persuasion by the evidence and the submissions of counsel. Lack of impartiality may well form the basis of an apprehension of bias – The test is not whether the judicial officer was in reality impartial or is likely to be impartial but it is the reasonable perception of a party as to his or her impartiality that is important – In casu, concern that the judge a quo would come to the same conclusion in the event that the validity of disputed documents are to be argued in future during the course of the trial, was a valid and justified concern – Apprehension of bias in the circumstances of this case was that of reasonable individuals and such apprehension was based on reasonable grounds. The judge a quo should have recused himself. Lameck v S (SA 15 - 2015) [2017] NASC (19 June 2017)

**********************************************************

Recusal – Previous Conviction - The trial judge in this case recused herself when it became apparent to her that the respondent (the accused), being tried before her, was in the meantime convicted of another unrelated and undisclosed offence. The judge invited counsel to address her on whether or not she should recuse herself. Although invited to do so, the accused did not express a view whether or not the judge should recuse herself. It is clear from the record that the offence the accused was apparently convicted of was never disclosed to the judge. Prosecuting counsel did not support the judge’s recusal but the accused’s counsel did, hence the appeal by the State –The trial judge concluded that her knowledge of the accused’s status as a convict made her uncomfortable and that it infringed on his right to a fair trial as contemplated in Art 12(1) of the Namibian Constitution; that her discomfort in presiding in the matter caused the accused to entertain a reasonable apprehension that she would be biased against him –On appeal, court held that there is in our law no absolute rule that merely upon becoming aware that an accused is a convicted criminal the trial judge must recuse himself or herself. A recusal will be justified if it becomes apparent to the trial judge that

38 | P a g e

the previous conviction has a striking similarity to the case before court or the conviction in question appears proximate in time and place to the one before the trial judge. The guiding principle must always be the imperative to avoid potential prejudice to the accused –Court further held that the notion that knowledge of an accused’s conviction, regardless of its seriousness or similarly, has the effect of rendering a trial inherently unfair is one that cannot be supported. The considerations which weigh heavily in a jury system do not find application in Namibia where professional judges and magistrates try facts and are guided by (a) what is admissible evidence and (b) a very high standard of proof (beyond reasonable doubt) in a criminal trial –The court further held that the trial judge misdirected herself and the recusal was not justified in the circumstances of this case. The appeal succeeds and the case remitted to the trial judge to finalise the trial. S v S H (SA 29 - 2016) [2017] NASC (19 July 2017)

************************************************************

Reasonable apprehension of Bias: This appeal is against the judgment of the High Court dismissing an application brought by the appellant and tenth respondent to review and set aside criminal proceedings before the magistrate’s court. The criminal trial forming the subject matter of this appeal has not been finalised as it has been interrupted during the course of the trial by a recusal application – Appellant and tenth respondent were arraigned in the magistrate’s court on various charges under the Anti-Corruption Act, 8 of 2003. Both accused tendered pleas of not guilty and gave no plea explanations. The trial was presided over by the first respondent. The State led evidence to establish that the appellant had not paid the costs involved in the installation of the pool at his residence. At the conclusion of the State's case both accused applied for discharge on all charges to which they had pleaded not guilty. The magistrate dismissed the application and postponed the trial to a later date for continuation – When the trial resumed, the appellant called one witness, Mr. Mckay, an ex-policeman and detective who appellant had asked to do certain investigations on his behalf. The witness during his testimony produced statements that he had procured from certain persons. Some of the statements procured by Mckay contained allegations that the first respondent (presiding officer) and the prosecutor were plotting to find the appellant guilty of the charges he was facing. In the light of these allegations, appellant and tenth respondent brought an application for the recusal of the first respondent alleging that they may not receive a fair trial – After hearing arguments, the first respondent (presiding officer) dismissed the application on the basis that the appellant and tenth respondent have failed to establish facts to prove that there existed reasonable apprehension of bias on their part. Dissatisfied with this ruling, the appellant and tenth respondent brought a review application in the High Court to set aside the

39 | P a g e

decision of the first respondent. The High Court dismissed the review application and remitted the matter back to the magistrate’s court to proceed with the criminal trial against the appellant and tenth respondent. It is their dissatisfaction that culminated into this appeal – On appeal, the appellant argued that the investigation by an official of the Anti-Corruption Commission was flawed. In this respect the appellant contended that the official failed to take a statement from the owner of the entity (Mr Kühn) that had installed the pool who corroborated the versions of the appellant and tenth respondent. The appellant further argued that the prosecutor should not have proceeded with the trial as the Prosecutor-General was unaware of the corroborating version by Mr. Kuhn at the time she made her decision to proceed with the prosecution. Regarding the recusal, the gist of appellant’s argument was basically that the statements presented were sworn statements that indicated untoward conduct of the first respondent and this in itself was sufficient to create a reasonable apprehension of bias – Court on appeal held that the concern raised against the investigation process assuming an irregularity was established, was not of such a nature so as to constitute a vitiating irregularity. The refusal by the Prosecutor-General to terminate the proceedings against the appellant and tenth respondent could thus not be faulted – Court on appeal further held that the statements containing the alleged untoward conduct of the first respondent amounted to inadmissible hearsay evidence and concluded that the appellant and tenth respondent failed to establish the facts necessary for them to either infer bias or a reasonable apprehension of bias. The appeal dismissed with costs. Aupindi Tobias v Magistrate Helvi Shilemba and 9 Others (SA 7-2016) [2017] NASC (14 July 2017)

*****************************************************************

REVIEWS

Irregularities by the court a quo: In the High Court, the applicant (plaintiff) instituted action against the first respondent (defendant) based on a partly oral and partly written agreement dating back to June 2005. The first respondent defended the action but did not file its plea. It however elected to serve and file an exception against the applicant’s particulars of claim on the basis that the particulars did not disclose a cause of action, alternatively were vague and embarrassing – After hearing arguments on behalf of the parties, the court upheld the exception and afforded the applicant 14 (fourteen) days to remove the cause of complaint. Disgruntled by this decision, the applicant brought an application in terms of section 16 of the Supreme Court Act 1990 to review the proceedings of the High Court and to correct or set aside that part of the judgment dealing with the cause of the complaint and the order made by the court on 19 April 2013. Section 16 gives this court powers to review proceedings of the lower court if they

40 | P a g e

are tainted by an irregularity – The applicant contended that the basis on which the presiding judge upheld the exception was not raised as a ground of exception by the first respondent. The first respondent, although not taking part in the proceedings of this court, admitted in its answering affidavit that the decision of the lower court was wrong as it considered and decided a matter not raised by the parties. The alleged irregularity is also acknowledged by the presiding judge in response to an invitation by the court – The court is satisfied that an irregularity occurred in the High Court’s proceedings necessitating the review of the proceedings of that court. The court holds that the lower court’s judgment constitutes an irregularity in the proceedings as contemplated in s 16 of the Act – The order of the lower court made on 19 April 2013 is set aside and substituted with an order dismissing the first respondent’s exception with costs. The court remits the matter to the lower court to be placed under judicial case management process. Ardea Investments (proprietary) Limited v Namibian Ports Authority and Others (SA 4/2013) [2017] NASC (28 March 2017)

********************************************************************

Irregularities by the court a quo: This is an application for review as envisaged in section 16 of the Supreme Court Act 15 of 1990. The application stems from proceedings in the court a quo in which the applicants instituted an action against the respondents. The claim against the respondents is based on written agreements reached between the parties dating back to December 2008. As the matter became defended, it proceeded to case management process and a case planning conference was scheduled. The parties filed a case plan and in it, the first respondent signalled its intention to raise an exception on the ground that the particulars of the claim were vague and embarrassing. When the matter was called at the hearing, the managing judge informed the parties that unnecessary interlocutory applications would not be entertained and directed the applicants to rectify and amend their particulars of claim. Aggrieved by the managing judge’s ruling, the applicants requested this court to invoke its review jurisdiction so as to review and set aside the decision of the court a quo. Section 16 gives this court powers to review proceedings of the lower court if they are tainted by an irregularity. The applicants contend that the managing judge failed to afford them an opportunity to be heard on the intimated grounds of exceptions raised in the case plan. The applicants claim that the conduct of the managing judge constitutes an irregularity in the proceedings. The court is satisfied that an irregularity had occurred in those proceedings justifying the exercise of this court’s review jurisdiction. The court is further satisfied that the decision of the High Court constitutes an irregularity in the proceedings as contemplated in s 16 of the Act. The application for review is granted. No order as to costs is made. Cato Fishing (Pty) Ltd v Wista Construction CC (SR 1-2017[2017] NASC (22 November 2017)

41 | P a g e

LAW OF SUCCESSION

Redistribution agreements: The deceased Mr. Kambire Tjamauha passed away on 15 May 1989 and was at the time married to the second respondent in community of property. He mistakenly took the marital regime to be out of community of property and as such, in his will bequeathed all “his properties” to a trust, subject to certain conditions.

The Administrator and the Executor upon realizing the late Kambire Tjamauha’s mistake entered into a redistribution agreement with the second respondent, in terms of which she gave up her share in the farm to the trust in return for various movable properties.

The Administrator/Trustee resigned during 2007. The appellants (as applicants) launched an application to be appointed as trustees. The second respondent opposed the appointing of the appellants as trustees. She launched a counter-application for the setting aside the redistribution agreement on the basis that she was misled into signing same. The appellants opposed the second respondent’s counter-application, raising the issue of prescription, amongst others.

The court thus had to determine whether the right the second respondent is asserting in her counter-application is vindicatory in nature, and a real right or a mere personal claim. Depending on what the court finds, the relevant other issues including the issue of whether the claim had become prescribed pursuant to the provisions of the Prescription Act 68 of 1969 would have to be considered.- Held – that the deceased and the respondent were co-owners or joint owners of the farm and the other properties in question. As such the claim against a co-owner is a personal claim for division and only upon transfer, delivery or payment of their share, a real right in identifiable property received as a result of the division is acquired. - Held further - the process of administration of a deceased estate which by law sees to the division of the joint estate in a marriage in community of property does not have the effect of changing a personal right of a joint owners inter se into a real right for the surviving spouse. Held – the respondent is and was always asserting a personal right as against the co-owner, and such a claim is subject to the provisions of the Prescription Act. - Held – further that based on the respondent’s conduct and advice she obtained from her various lawyers, she must have known and appreciated the content of the deceased’s will and her rights therein.- Held that – on all probabilities, the respondent knew from 1998/1999 that she was not the registered owner of the farm, that same was registered in a trust and that this was in accordance with the redistribution agreement she signed. In conclusion, the court held that the respondent from the onset knew who the debtors were and the facts that gave rise to the claim (debt), as such her claim prescribed. The appeal succeeds

42 | P a g e

with costs. Tjamauha v Master of the High Court (SA 63-2015) [2017] NASC (26 October 2017).

*****************************************************************

Intestate succession: Kaune v Registrar of Deeds (SA 56-2016) [2017] NASC (30 November 2017).

43 | P a g e