Supreme court of namibia judgment index 2019



center04000020000supreme court of namibia judgment index 2019 center850008549640 LOTTA N. AMBUNDA – CHIEF LEGAL OFFICER, HIGH AND SUPREME COURTNICOLE JANUARIE – SENIOR LEGAL OFFICER, HIGH AND SUPREME COURT1000000 LOTTA N. AMBUNDA – CHIEF LEGAL OFFICER, HIGH AND SUPREME COURTNICOLE JANUARIE – SENIOR LEGAL OFFICER, HIGH AND SUPREME COURTTABLE OF CONTENTS TOC \o "1-3" \h \z \u ADMINISTRATIVE LAW PAGEREF _Toc27468983 \h 2CIVIL PROCEDURE PAGEREF _Toc27468984 \h 5CONSTITUTIONAL LAW PAGEREF _Toc27468985 \h 7CONTRACT LAW PAGEREF _Toc27468986 \h 11CRIMINAL LAW PAGEREF _Toc27468987 \h 16INSOLVENCY LAW PAGEREF _Toc27468988 \h 19LABOUR LAW PAGEREF _Toc27468989 \h 20MATRIMONIAL PAGEREF _Toc27468990 \h 23MALIOUS PROSECUTION PAGEREF _Toc27468991 \h 25PARTNERSHIPS PAGEREF _Toc27468992 \h 27POCA PAGEREF _Toc27468993 \h 27PROCEDURE PAGEREF _Toc27468994 \h 33PROPERTY LAW PAGEREF _Toc27468995 \h 37RECUSAL OF PRESIDING OFFICER PAGEREF _Toc27468996 \h 41SPECIAL PLEAS PAGEREF _Toc27468997 \h 43SUMMARY JUDGMENT PAGEREF _Toc27468998 \h 45TAXATION PAGEREF _Toc27468999 \h 46TRUSTS PAGEREF _Toc27469000 \h 47ADMINISTRATIVE LAW Review – damages: This appeal lies against an order of the court a quo granting leave to the first respondent to institute an action for damages against the appellant (if so advised).In a review application, the court a quo mero motu granted first respondent leave to institute an action for damages based on the provisions of Art 25 of the Namibian Constitution.It was common cause that damages were never sought by the first respondent – neither in affidavits nor in oral argument. No mala fides were suggested by first respondent and there was no indication in the judgment of the court a quo that appellant had acted for ulterior reasons or extraneous to its empowering statute.The general principle is that a court is competent to grant orders which were asked for by the litigants. It is wrong for a judicial officer to rely on his or her decision on a matter not put before him or her by the litigants either in evidence or written submissions. Where a judge comes across a material point not argued before him or her it is his or her duty to inform counsel on both sides and invite them to submit arguments either for or against the judge’s point.Ordinarily, a breach of administrative justice attracts public law remedies, not private law remedies. A claim for damages is a private law remedy.The cross-appeal lies against an order of the court a quo refusing to set aside a tender awarded in favour of the second respondent by the appellant – the court having found that the award of the tender to the second respondent was unlawful and irregular.It is common cause that by the time the review application was heard by the court a quo, the appellant and second respondent had already performed in terms of a contract signed by them, ie the equipment had been installed and the price fully paid.At the stage when first respondent became aware of the fact that the tender had not been awarded to itself, it failed to seek to interdict performance under the contract neither did it institute urgent proceedings. In these circumstances the appellant was entitled and obliged to give effect to an extant administrative act.The procedure where a litigant seeks the reviewing and setting aside of an alleged unlawful administrative act, is two-fold. Firstly, a court is required to make a finding of validity or invalidity. Where a declaration of invalidity is made, the court may proceed to the second stage where the court considers the effect of the declaration of invalidity on the parties and other stakeholders. At this second stage, a court enjoys a discretionary power, and must make an order which is just and equitable in the circumstances.A court in the exercise of its discretion may face practical challenges and may thereafter decide not to set aside an administrative act where doing so will achieve no practical purpose. To set aside a tender award can have catastrophic consequences for an innocent tenderer and adverse consequences for the public at large.The court a quo found that if it were to set aside the award of the tender to second respondent it would not only be ‘disruptive’ but would be totally ‘impracticable’ and would give rise to a host of other problems.Held that the court a quo did not err or misdirect itself in applying the principles enunciated in the Oudekraal and Sapela matters in not setting aside the award of the tender to the second respondent. Held – that the appeal succeeds and the cross-appeal is dismissed. Namibia Airports Company Ltd v Fire Tech Systems CC (SA 49-2016) [2019] NASC (12 April 2019)******************************************************Tenders: This is an opposed appeal against the decision of the High Court dismissing the appellants’ application challenging, in the main, the cancellation of the food tender on procedural and substantive grounds. The appellants contented that their fair process rights were violated because they were not afforded an opportunity to be heard and that the Tender Board of Namibia (the Board) failed to comply with statutory prescripts under section 16 of the Tender Board Act 16 of 1996 (Tender Act), inter alia, notifying them in writing of the acceptance of their tenders. The Board awarded a food tender to certain bidders including the first and second appellants (appellants) on 2 October 2014 in respect of the Khomas and Otjozondjupa catering regions, respectively. However, the entire tender was cancelled before the decision to award was communicated to them without being heard. Additionally, the decision to award was not reviewed and set aside.The appellants unsuccessfully challenged the lawfulness of the administrative decision to cancel the tender in the High Court. They sought an order reviewing and setting aside that decision to cancel the tender and ancillary relief: directing the Board and Minister of Education (Ministry) to conclude agreements with the appellants in respect of the said catering regions (order to compel), as contemplated in section 16(2) of the Tender Act; and an order declaring the agreements entered into by the Board and the Ministry with service providers, after the said award of the tenders to the appellants, ultra vires the Board (declaratory relief). The appellants had, initially, asked for an interdictory relief restraining the Board and the Ministry from continuing with the implementation of the extended catering contracts. This relief was abandoned.In dismissing the application the High Court held, among other things, that the cancellation was not unreasonable and irrational. Regarding the fair process challenge, the Court a quo held that the Board was duty bound to cancel the tender and that when it did so without affording the tenderers (including the appellants) an opportunity to be heard it did not act unfairly because the allegations of impropriety, corruption and irregularity were not levelled against any of the tenderers but against the officials of the Ministry. In upholding the appeal the Court stressed the need to uphold the rule of law and to protect and enforce entrenched rights. Following an analysis on whether the cancellation of the tender was irrational and unlawful the Court held that the High Court misdirected itself in concluding that the cancellation of the tender was, in the circumstances, rational and, as regards the appellants’ fair process rights, that the Board did not act unfairly and consequently dismissing the application.The Court held that the Board failed to comply and ought to have complied with section 16 of the Tender Act after awarding the tender to the successful bidders, including the appellants: it should have notified them in writing of the award. It held that the Board acted unlawfully in failing to do so. The Court further held that the Board acted in breach of the appellants’ fair process right by failing to afford them hearing (audi alteram partem) or at least invite them to make written representations before the tender was cancelled. The Court held that no reasons were raised as to why the Ministry did not approach a competent Court to review and set aside the tender and the decision awarding the tender to the successful bidders, including the appellants, when the allegations of impropriety and corruption surfaced. The decision awarding the tender thus remained extant. The Court further held that, based on the revealing uneasiness and statements made by the members of the Board at its meeting before the cancellation of the tender, the contention of the appellants that the decision to cancel was that of the Ministry and not of the Board was not far-fetched. Regarding the ancillary relief sought the Court held that granting of the relief would be inappropriate in the circumstances particularly because the appellants failed to make a case for same.Consequently, the appeal succeeded in part (with costs against the Government respondents also in relation to the ancillary relief based on the Biowatch principles) with the result that the order of the High Court was set aside and substituted with an order setting aside the decision of the Board cancelling the tender and referring the matter back to the appropriate functionary ? the successor to the Tender Board of Namibia in terms of the Public Procurement Act, 15 of 2015. An appropriate costs order against the appellants and in favour of the further respondents who opposed the appeal, particularly in relation to the ancillary relief sought, was made. Pamo Trading Enterprises CC v Chairperson of the Tender Board of Namibia (SA 60-2017) [2019] NASC (3 July 2019)CIVIL PROCEDUREDeclaratory orders: Certain insurance companies elected to defy compliance with the compulsory cession of insurance business to NamibRe as required by regulations and notices published by the minister in terms of Part V of Act 22 of 1998 (the Act). The non-compliance followed in the wake of the respondent companies’ constitutional challenge of the Act and review challenge of the regulations made under it.The appellants approached the High Court on an urgent basis to obtain an ‘interim’ declarator, pending finalisation of the pending constitutional challenge and review, that the Act is of ‘full force and effect’ and to be allowed to approach the High Court on the same papers, duly amplified, for an order of committal of the respondent companies’ chief executive officers, in the event of continued disobedience of the law.The respondent companies invoked the court challenges as collateral challenge to the enforcement application.The High Court chose not to determine the collateral challenge and instead ordered a stay of the operation of the Act and regulations, until finalisation of pending court proceedings.On appeal, held that the High Court had no jurisdiction to stay implementation of an Act of parliament and that, in any event, such an order was not pleaded or asked for by parties;Held further that remedy of declarator exists to clarify legal uncertainty and for the court to clarify parties’ respective rights and duties and to state the correct legal position; that in the present case there is no uncertainty as the Act and the regulations made under are of full force and effect; that the real issue was to exact compliance with law but that same was provided for in written law and common law; Held further that remedy of declarator also not appropriate in view of collateral challenge which was not yet ripe for determination;Held that order of committal of employees in any event not competent in law as the defiance is conduct attributable to directors and not servants of company.Accordingly, order of stay set aside but appeal dismissed, with costs. Minister of Finance v Hollard Insurance Company of Namibia Limited (SA 19-2019) [2019] NASC (9 December 2019)******************************************************Spoliation: This appeal concerns a dispute between two brothers regarding possession of immovable property situated in the premises of and owned by of the first respondent. The brothers had agreed that the appellant will stay in the flat and money advanced by him to the first respondent was allegedly used to refurbish to make it habitable. The appellant only stayed in the flat on two occasion over a period of six years and undisputedly abandoned flat.The first respondent advised the appellant of the need to move their elderly and ailing aunt into the flat and asked him to remove his movable assets. This strained the relationship between the siblings. The appellant sought a spoliation order on the basis that the first respondent unlawfully dispossessed him of the flat and deprived him of his peaceful and undisturbed possession of the flat. Because he had the physical possession and control of the keys of the flat, the High Court held that he satisfied the first requirements of possession, physical possession and control of the flat. The High Court, however, held that the appellant failed to establish the second requirement of possession, namely animus possidendi. The appellant had left the flat in a state of neglect for six years. The flat was, unquestionably covered in a thick of layer of dust and of rodent faeces which had accumulated over a period of six years. The flat was, therefore, uninhabitable. The cumulative effect of all these facts, the High Court surmised, demonstrated an absence of a mental state necessary to sustain possession of the flat. This appeal is in respect of this latter holding.On appeal this Court held that the High Court did not misdirect itself, neither on the law or facts. This Court endorsed the High Court’s decision and dismissed the appeal with costs including costs of one instructing and one instructed legal practitioner. Koch v Koch (SA 40-2017) [2019] NASC (14 October 2019)CONSTITUTIONAL LAWArticle 81: This appeal underlines, among other things, the importance of the constitutional imperative in terms of Art 81 of the Namibian Constitution of the Republic of Namibia (the Constitution) specifically in relation to the decision of the Supreme Court in 2009 on the question of an established legal principle on authorisation when an individual acts on behalf of a legal entity. It underscores, also, the effect of the decision of the Supreme Court on previous decisions of the High Court pertaining to the said legal principle following rescission of default judgment. Additionally, the appeal affirms the principles regarding delegation of powers and ratification.The appeal is a sequel to a string of applications resulting from the action instituted by the appellant for payment of the sum of over N$2?000?000 with interest and a resultant default judgment that was rescinded in favour of respondent ? Namibia Financial Institutions Supervisory Authority (NAMFISA or respondent) and a certain Mr Frans Johan Jansen van Rensburg. The claim is founded on the allegation that the former chief executive officer (CEO) of NAMFISA interfered with the appellant’s right in terms of Art 21(1)(j) of the Constitution to do business as an insurance agent in September 2002. The respondent was served with the summons and it then filed a power of attorney and defective notice of intention to defend without a proper authorisation. Mr van Rensburg was not served with the summons. The appellant obtained default judgment without making the High Court aware of the fact that notice of intention to defend (albeit defective for want of a proper resolution by the Board of NAMFISA) had been filed and that Mr van Rensburg had not been served with the summons even though he had been sued on his personal capacity to pay the amount claimed jointly and severally with NAMFISA. The default judgment was rescinded, allegedly, by agreement between the parties. After the rescission, the parties launched a litany of applications and counter-applications spanning over a period of ten years now. The appellant’s incessant gripe concerned the issue of lack of authority by those who purported to act on behalf of NAMFISA. He maintained that the rescission judgment was a nullity because NAMFISA was not properly before the court when it applied for that judgment. In one of the applications by NAMFISA the High Court granted a permanent stay in respect of a number of proceedings brought by the appellant and directed, among other things, that future litigation by him against NAMFISA could only be instituted with the prior leave of the court. Subsequent to these orders the appellant, without the High Court’s prior leave, unsuccessfully launched yet other applications with a view to set aside the rescission judgment against him and revive the default judgment previously granted in his favour.The appellant then approached this Court for declaratory relief. Respondent filed a document (‘PS6’) purporting to be NAMFISA’s resolution to ratify the previous unauthorized legal steps. The Supreme Court held that Mrs Lily Brandt, then the acting CEO of NAMFISA, had no authority to institute and prosecute the rescission application and to give the power of attorney to LorentzAngula Inc to represent NAMFISA. Consequently, LorentzAngula Inc lacked the necessary authority to act on behalf of NAMFISA in defending the action as well as applying for and obtaining rescission.The appellant then launched proceedings in the High Court seeking to give effect to the decision of the Supreme Court. The court a quo dismissed the application with costs because no prior leave had been obtained. In addition, the court a quo ordered the Registrar of the court to refer the matter to the Prosecutor-General for a decision regarding whether the appellant should be prosecuted for contempt of court. On appeal this Court, in light of Art 81 of the Constitution – and giving effect to the decision of the Supreme Court which reaffirmed the established principles outlined in the decision of the South African Appellate Decision in the Cape-Mall regarding lack of authority. This Court held that the lack of authorization or failure to file a resolution of the legal entity rendered the rescission judgment null and void. It relied also on the South African Appellate Decision in T?dt as well as the decision of this Court in Willem Petrus Swart (where the remarks in Macfoy – regarding nullity ? was quoted with approval) and held and that all steps taken consequent to the Supreme Court judgment were a nullity. The Court held that the purported ratification had no legal effect. It held that the rescission judgment had to be set aside and ordered the respondent to pay costs in favour of the appellant in the form of disbursements.As regards the default judgment this Court, after inviting the parties to submit written arguments on the correctness of that default judgment, held that the default judgment was erroneously granted against Mr van Rensburg as he was not served with the summons. The Court further held that the appellant had failed to tender evidence to establish liability and prove the quantum of damages claimed. Additionally, despite the fact that the respondent/NAMFISA had shown an intention to defend the action, the appellant failed to give a notice of set down for default judgment to it in terms of rule 31 of the Old Rules of the High Court ? in terms of which the default judgment had been sought and granted.The appeal was upheld. The rescission was declared null and void and set aside and the respondent was ordered to pay the appellant’s costs in the form of disbursements. The default judgment was set aside with no order as to costs and the matter was remitted to the High Court to be placed under judicial case management to determine the further conduct of the case. Christiaan t-a Hope Financial Services v NAMFISA (SA 36-2016) [2019] NASC (7 October 2019)******************************************************Interdicts – freedom of speech and the press: This is an appeal against the High Court’s refusal of a final interdict sought by the Government (appellants) in respect of a threatened publication by a newspaper (The Patriot) of information implicating the national intelligence agency (NCIS) in the improper use of state resources. The appellants relied for the final interdict sought on the Protection of Information Act 84 of 1982 (PIA) read with the provisions of the Namibia Central Intelligence Service Act 10 of 1997 (NCISA). The appellants alleged that they have statutory and constitutional powers and duties to protect sensitive information from being published, and maintained that the information sought to be published by the Patriot will compromise the secrecy of the NCIS’s operations and be prejudicial to Namibia’s national security. The appellants took the view in the proceedings a quo and on appeal that all they needed to establish was the threatened publication and that it will harm national security and the court was bound to grant an interdict.In defence , the respondents alleged that the interdict sought is against Article 21(1) of the Constitution protecting freedom of speech and the press; that the information was not unlawfully obtained; that it was not sensitive information and therefore did not compromise national security and that, in any event, the media has an obligation to expose corrupt activities. Although the High Court was satisfied that the appellants have the constitutional competence to protect sensitive information compromising national security, it highlighted the importance of freedom of speech and the press in an open and democratic society. The court a quo held that in this case The Patriot acted responsibly and with integrity by seeking to verify the information obtained from source(s) and to obtain comment thereon from the NCIS before publication. The court a quo was, however, not satisfied that sufficient evidence was tendered to justify the conclusion that the information possessed by The Patriot, and its publication, would harm national security. A quo, Geier J concluded that the decision of the appellants not to place before court the precise nature and ambit of the security concerns and the failure to plead factual matter precisely undermined the case for a final interdict. The learned judge also upheld The Patriot’s contention that since the details of the information sought to be interdicted was already in the public domain, the matter had become moot. The court took the view that an interdict would, in the circumstances, deny the public the right to be informed more fully through the intended newspaper article of matters which had already become freely available on e-justice. On appeal, court stating that the onus is on the appellants to establish the requirements of a final interdict. The appellants had to establish the jurisdictional facts contemplated in the PIA and the NCSIA in order to obtain an interdict to suppress publication of the information which The Patriot possessed. A mere recitation of the sections of the legislation would for that purpose not suffice. Sufficient evidence must be placed before court (if necessary in camera as contemplated in Art. 12(1)(a) of the Constitution) to enable the court for itself make an assessment whether the information whose publication is sought to be suppressed came within the scope of the statutory provision(s) relied upon. The court restated the three requirements for a final interdict and held that an applicant had to satisfy all three by producing sufficient evidence to sustain them. As regards the interference with the clear right, mere assertion of a reasonable apprehension or fear would not suffice. The facts supporting the apprehension must be set out in the application to make it possible for the court to make an assessment itself whether the fears are well grounded.Held that in addition, the appellants must satisfy the court that the information was unlawfully obtained and or that its publication will harm national security. Held that the appellants placed not a scintilla of evidence before court to show how the manner of acquisition of the information breached any law. Not only did the Government fail to prove that the respondents obtained the information illegally or in breach of the statutory provisions relied upon, it also failed to show that it related to a secret place or that it concerned a matter of national security.Held further that the notion that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict, is not consonant with the values of an open and democratic society based on the rule of law and legality and that if a proper case is made out for protection of secret governmental information, the courts will be duty bound to suppress publication. Held that it has been recognised that the court retains a discretion to refuse a final interdict if its grant would cause some inequity and would amount to unconscionable conduct on the part of an applicant.Appeal against the High Court’s judgment and order dismissed, with costs. The Director-General of the Namibian Central Intelligence Services v Haufiku (SA 33-2018) [2019] NASC (12 April 2019)CONTRACT LAWAppellants brought an appeal against the judgment of the court a quo. The first appellant, a joint venture between the second and third appellants, placed a bid for a tender of which it was successful. It was informed by the architect in a letter dated 8 December 2016 that its bid was accepted on condition that the joint venture provides the quantity surveyors with the following: (1) a detailed bill of quantities within seven days; (2) a performance guarantee of 10 per cent of the contract amount within seven days; and, (3) a satisfactory work programme within 14 days. An extension to provide the performance guarantee within the period set was sought by the appellants. They undertook to fulfil this condition on 12 January 2017, however, the performance guarantee was only delivered to the architect on 9 February 2017. On 13 February 2017 appellants were informed via letter by the architect that there was non-compliance with the performance guarantee which had to be submitted within seven days and as a consequence of this non-compliance, their appointment was cancelled. That letter also informed the appellants that there was a moratorium in place on all capital projects, including the project in question.On 19 June 2017, appellants lodged a review application in the High Court seeking to set aside the cancellation of the appointment of the joint venture and an order directing the //Kharas Regional Council to enter into an agreement with the joint venture to complete the project. Respondents defended the review application and also brought a counter-application to have the award of the tender set aside as treasury approval was not granted in terms of s 17 of the State Finance Act.In its findings, the court a quo held that neither the architect nor the official from the regional council involved had the authority to cancel the appointment of the joint venture pursuant to s 37(6) of the Regional Councils Act. Only the Minister of Urban and Rural Development in consultation with the regional council has that power. As a consequence, the court a quo held that the cancellation was invalid. It also held in respect of the counter application, that because the estoppel raised by the appellants would result in validating an invalid award, due to the non-compliance with s 17 of the State Finance Act, the estoppel point had to fail. The court a quo thus dismissed the main application with costs. As far as the counter application was concerned, the court a quo upheld it with costs on the basis that authorisation from Treasury pursuant to s 17 of the State Finance Act was a prerequisite for the making of an award by the Tender Board.This court was seized with the task of dealing with the issue of the cancellation of the tender award by the architect and the director of the regional council, and the issue of estoppel.Although the finding of the court a quo in relation to the cancellation of the award was correct, it was not dealt with in the correct context. The obligation to deliver a performance guarantee was a condition precedent to a contract being entered into in respect of the project.It is held that, the use of the word ‘cancelled’ by the architect must not be understood out of context and in the sense that a legal practitioner will use it, namely to cancel an otherwise binding agreement. As the condition to provide the performance guarantee suspended the conclusion of the agreement, it had the effect of a normal suspensive condition (ie the right of the parties remained in abeyance pending the fulfilment of the condition). Thus, upon the non-fulfilment of the condition, the appointment of the joint venture fell by the wayside. There was no need to cancel anything as the appointment of the joint venture automatically lapsed. Held that, the authority of the architect or the Director to cancel is irrelevant as they did not cancel anything. The joint venture’s appointment simply came to an end when it failed to provide the guarantee timeously. Despite the use of the word ‘cancelled’ by the architect, it is clear what she intended to say was that there was non-compliance by the joint venture to adhere to the terms of the condition relating to the guarantee timeously and that is what led to the termination of the appointment.Appellants averred before the court a quo that the respondents were estopped from denying authority of the architect to extend the deadline for the submission of the performance guarantee. It is held that, the court a quo was correct in finding that neither the architect nor the Director of the regional council had the authority to agree to the extension. It is clear that neither these persons had express authority to grant extensions. Neither did they have implied or ostensible authority. An architect does not have the implied authority to alter the terms of a contract. To accept such implied authority to extend time periods attached to the conditions precedent would be to allow an architect to resurrect the whole contract when he or she does not have the power to alter a single clause. If the delay in the submission of the performance guarantee was agreed to by the Ministry of Education or the said Ministry had represented to the joint venture that its representative had authority to agree to an extension of the time period involved, it may have been estopped from denying the lack of authority. Where the regional council as agent of the Ministry of Education had agreed to extend the deadline for the filing of the guarantee, then there may have been some basis to argue that it had implied authority to do so. Also, if they had represented to the joint venture that the architect had the authority to extend the deadline to submit the guarantee, the question of estoppel might have arisen.Held that, the architect as agent could not through her representations create an estoppel binding on the Ministry or the regional council. These two entities could only be estopped from denying the authority of the architect if they had made representations that the architect had the necessary authority. This they did not do hence the estoppel did not succeed.It is held that, the Regional Tender Board acted ultra vires its powers when it continued to deal with the project without a mandate. Both the regional council and the Tender Board were aware of the directive by the accounting officer of the Ministry of Education. Their attempt to hide behind the alleged lack of clarity contained in the directive in this regard cannot be accepted and it was anything but vague, ambiguous or badly conceptualised.It is held that, the accounting officer of the Ministry of Education through the directive terminated the Tender Board’s mandate to evaluate and to award the tender in respect of the project and to award the tender.Held that, not clear that authorisation from Treasury pursuant to s 17 of the State Finance Act was a prerequisite for a valid award by the Tender Board. However, it was not necessary to decide this point.Respondents’ counter application thus succeeds with costs. Babyface Civils CC JV Hennimma Investments CC v Kharas Regional Council (SA 10-2018) [2019] NASC (9 December 2019)******************************************************Breach of contract – restitution – damages: During October 2015 at Gobabis, the first respondent represented by the second respondent and appellant entered into a partly oral, partly written agreement. The terms of the agreement were that, appellant undertook to manufacture and erect a shed for the respondents at the respondents’ instance and request at the first respondent’s business premises, including laying the foundation for the shed and the overall completion of the metal construction. The respondents undertook to pay the appellant the amount of N$60 000 for his labour and they further undertook to supply him with the necessary materials needed to complete the manufacture and erection of the shed.During November and December 2015 and January 2016, respondents delivered the ‘necessary’ materials to the value of N$204?469,23 to the appellant. To their claim, respondents attached an undated letter received from the appellant’s son acknowledging that the appellant received the ‘necessary’ materials to complete the project as per their agreement. The agreement was never fulfilled, despite the respondents’ legal practitioners sending a letter of demand to the appellant on 8 November 2016. As a result, the respondents cancelled the agreement, issued summons and sought payment of N$204?469,23 with interest thereon calculated at a rate of 20% per annum a tempore morae to the date of final payment and costs of suit. The appellant filed a counter-claim alleging that the respondents breached the agreement by failing to supply the necessary materials to him and to provide municipal approved building plans which resulted in him being unable to fulfil his obligations as per their agreement and therefore suffering damages in the amount of N$75?000. He also denied receiving the letter of demand and pleaded that the agreement was mutually cancelled by the parties and denied that he was indebted to the respondents.The court a quo found that the parties’ dispute centered around who was liable to get the approval from the Municipality of Gobabis. On the evidence tendered, the court a quo found that the appellant undertook to obtain municipal approval, but failed to do so. The court a quo therefore accepted respondents’ case that the appellant did not complete his part of the agreement between the parties and respondents were not liable to pay anything to the appellant. Furthermore to this, the appellant was placed in mora and the contract was duly cancelled by the respondents. As a result, the court a quo ordered appellant to pay the value of the materials delivered to him in the sum of N$203?339,73 with interest thereon and costs of suit.At the hearing of the appeal, the appellant’s counsel abandoned the heads of argument filed by the instructing legal representative and conceded that the appellant’s counter-claim could not succeed, but counsel contended that the court a quo should have ordered absolution from the instance in respect of both the claim in convention and the counter-claim.Held, further that the appellant is entitled to damages suffered in respect of manufacturing the shed, provided that he proves the quantum of such damages.Held, further that the appellant failed to prove his counter-claim with regards to the damages.Held, further that the respondents are entitled to the return of materials they delivered to the appellant or the manufactured shed or the monetary value of the materials. This was subject to any damages established by appellant, but as appellant did not prove the quantum of his damages, full restitution had to be made.Held further that absolution from the instance regarding the appellant’s counter-claim is granted.The appeal is dismissed with costs. Van Zyl v Bargain Building Supplies CC (SA 13-2018) [2019] NASC (19 November 2019)******************************************************Demand guarantee: Demand guarantees are widely used in commercial transactions and are important, because of their nature they are regarded ‘as valuable as a promissory note’, and their beneficiaries are entitled to payment pending the resolution of any contractual disputes that may arise.An obligation under a demand guarantee is wholly independent of the underlying contract except where there is proof of fraud on the part of the beneficiary. The alleged fraud must be apparent from the document which embodies the demand guarantee rather than the underlying contract.On appeal – held, that a letter addressed by appellant to second respondent constituted a demand guarantee. The appellant may not refuse to perform in terms of this demand guarantee on the basis that a dispute in respect of a construction agreement had not been resolved between first and third respondents.The appeal from a decision of the court a quo dismissed with costs. Standard Bank Namibia Ltd v Karibib Construction Services CC (SA 29-2017) [2019] NASC (9 October 2019)******************************************************Loan agreements: The appellants, a corporation (first appellant) represented by its two members (Mr and Mrs Thimende, the second and third appellants respectively) were awarded a tender by the Kavango Regional Council to supply desks and chairs to schools in the Kavango region. The appellants approached the Development Bank of Namibia for a loan of N$1?875?554 to supply the desks and chairs to these schools. This amount was needed to pay the supplier of the mentioned school furniture indicated in the application as being a South African based business known as Furnitech South Africa. One of the terms and conditions of the loan agreement was that the members of the corporation had to stand surety for the corporation. On 5 March 2015, Mr Thimende signed the agreement on behalf of the corporation and immediately after his signature, the following phrase appeared; that he is duly authorised to sign on behalf of the corporation and that he accepts ‘the DBN’s Development Portfolio Facility Offer on terms and conditions as set out above and on the Standard Loan Conditions applicable to the DBN’s Development Portfolio Loans’. On the same day the loan agreement was signed, a resolution by the corporation was also signed by Mr and Mrs Thimende referring to the loan from the DBN and authorising Mr Themende ‘to sign the Development Portfolio Facility Agreement and all other relevant documents including the Collateral Documentation required by DBN on behalf of the Close Corporation’. On 10 March 2015, Mrs Thimende instructed DBN to pay the loan amount to Furnitech Namibia CC in an account held at First National Bank Namibia in Windhoek. DBN duly acted on this instruction. Although some furniture was delivered to the corporation and duly to the Kavango Regional Council, the bulk of the furniture was not delivered. Mr Thimende later established that Furnitech South Africa had been liquidated, which resulted in the corporation failing to honour the obligations of the tender, the Kavango Regional Council cancelling the tender without making a payment to the corporation and the DBN on the due date demanded repayment of the loan and instituted action against the appellants. Three defences were raised by the appellants: Firstly, that no consensus was reached between the DBN and the corporation and hence no agreement came into being between them. Secondly, that the DBN did not pay the agreed supplier. This led to the corporation not being able to perform vis-à-vis the Regional Council of Kavango and to the tender being cancelled causing damages to the corporation to the tune of just over N$1,1 million. This damages claim formed the subject matter of the corporation’s counterclaim. Thirdly, that Mrs Thimende was, to the knowledge of the DBN, not authorised by the corporation to act on its behalf and could thus not authorise payment to Furnitech Namibia. The court a quo dismissed the defences raised and granted judgment in favour of the DBN. The counterclaim was likewise dismissed. An appeal was noted against the whole judgment of the court a quo but in the heads of argument the appeal against the dismissal of the counterclaim was abandoned.It is held that, the court a quo was correct in finding that there was consensus as to the terms and conditions of the loan agreement. On the evidence, the only terms and conditions applicable to the loan agreement were those contained in the letter which terms are the standard terms and conditions. In the circumstances the facts are clear, namely; the loan agreement was governed by the terms and conditions spelt out in the letter of 5 March 2015 and no other and it is these terms and conditions that were accepted by the corporation. Held that, the corporation cannot raise as a defence that the money was never advanced to it because DBN paid the supplier as it was agreed to that ‘the DBN to pay suppliers directly’. It is held that, on the facts, Mrs Thimende had actual authority to authorise the payment. Even if she did not have such authority, Mr Thimende did nothing to protest the payment until the issue of lack of authority in his plea by which time the DBN and any reasonable person would have accepted Mrs Thimende’s authority.It is held that, the appeal is dismissed with costs. Name Nove Construction CC v Development Bank of Namibia (SA 45-2017) [2019] NASC (9 October 2019)CRIMINAL LAWAppeal – conviction and sentence: The respondent was convicted in the High Court, Windhoek of indecent assault as a competent verdict to a contravention of s 2(1)(a) read with ss 1, 2(2), 3, 5, 6 and 18 of the Combating of Rape Act 8 of 2000 (“The Act”). It was alleged that respondent on or about 1 April 2011 at House No 2893 Orwetoveni Mondesa in the district of Swakopmund, wrongfully and intentionally committed a sexual act, under coercive circumstances with complainant, a minor by inserting his penis into her vagina and/or anus.The respondent had pleaded not guilty but after an intermittent trial he was acquitted of rape but convicted of indecent assault. The State appeals with leave of the court below against the acquittal on rape and the verdict of indecent assault as a competent verdict on a charge of rape in contravention of the Act as the trial court found.The State argued that there was evidence of respondent opening complainant’s buttocks and inserting his penis and doing up and down movements which was sufficient proof that the respondent inserted his penis even to the slightest degree into the anus of the complainant. The alternative argument was that, if there was no evidence to prove penetration into the vagina or anus, there is sufficient evidence proving rape in the form of cunnilingus or genital stimulation. Counsel argued that genital stimulation is not confined to the stimulation of the female organs but of male organs as well as s 1(1) defines “sexual act” to include, ‘cunnilingus or any other form of genital stimulation’ (the underlining is mine).On appeal the court held that the trial court did not err on the facts or law when it found that penetration was not proved on the evidence before that court and therefore rape could not have been committed in terms of s 2(1)(a) of the Act. Counsel for the state’s argument was seeking the court to postulate that there was penetration of the slightest degree.Held further that no rape was proved in the form of cunnilingus given the dictionary meaning of cunnilingus, which is the act of touching a woman’s sex organs with the mouth and tongue in order to give sexual pleasure. There was no such evidence on record. Therefore the argument that a “sex act” means cunnilingus or any form of genital stimulation and encompasses an erectile male organ is without merit and results in absurdity. The words ‘any form of genital stimulation’ should be read with s 1 (1)(b). The definition of cunnilingus is confined to touching a woman’s sex organs with the mouth and tongue but s 1 (1)(b) includes insertion of any part of the body of a person or of any part of the body of an animal or of any object into the vagina or anus of another person.Held further that the Act does not make indecent assault as a competent verdict but that the offence of attempted rape is a competent verdict on a charge of rape under the Act by virtue of s 18 of the Riotous Assemblies Act, No 17 of 1956 infra. Consequently the verdict of indecent assault is set aside and substituted with attempted rape and the matter is remitted to the High Court for sentencing. State v Gariseb (SA 36-2017) [2019] NASC (1 April 2019)******************************************************Discharge of accused – test: Respondent (accused no 1) in a trial in the High Court (Main Division) applied for his discharge at the close of the State case. It was argued on his behalf that there is no evidence linking the respondent to the charges he and his co-accused are facing and that in terms of Art 12 (1)(d) of the Constitution of the Republic he enjoys a constitutional right to be presumed innocent until his guilt has been proven. It was further contended that an accused is entitled to a discharge at the close of State case if there is no possibility of a conviction other than if he enters the witness box and incriminates himself/herself. It was further contended that on the evidence presented, no court would convict the respondent as the evidence of the deceased’s cellphone on which the State relies for accused being an accomplice to the crimes is not sufficient. That respondent did not know that the cellphone belonged to the deceased as accused no 2 who came with the phone to him and both eventually sold the phone, is in the business of repairing cellphones and finally that the DNA evidence exonerated the respondent.The question whether in an application for a discharge an accused should be discharged when there is no direct evidence implicating him/her in the commission of a crime but there is a possibility that his/her evidence might supplement the State’s case or in the evidence of a co-accused is a subject of much judicial disharmony. The test formulated in S v Shuping 1983 (2) SA 119 (BSC) to the s 174 of the Criminal Procedure Act 51 of 1977 discharge, namely (i) is there evidence in which a reasonable man might convict, if not, (ii) is there a reasonable possibility that the defence evidence might supplement the State case, and if the answer to either question is yes, there should be no discharge and the accused should be placed on his defence was criticized in S v Phuravhatha 1992 (2) SACR 544(V) that court refusing to follow that test and holding that, that test condoned self-incrimination.Held that notwithstanding the criticism above, this court is in agreement with the sentiments of Heath J in S v Ggozo and another (2) 1994 (1) BCLR 10 (CK) that those tests still should constitute useful guidelines considering an application for a discharge of an accused but then on the basis that each one of those guidelines is only a factor to be taken into account and that the court exercising a discretion to discharge should see to it that justice is done which depends on the circumstances of each case.Held that in this case on the evidence presented by the State it could not be said that there was no evidence, the bottom line for a discharge which the respondent could respond to. The evidence led was that respondent in the company of accused no 2 invited the deceased for a drink on that fateful day and collected her from her home. On their own versions they were the persons last seen with her. They are not accusing anybody else but in both their bail applications and the trial their evidence is characterised by counter accusations which of them was last in company of the deceased. That alone in the opinion of the court was sufficient to place them on their defences. But as for the respondent, accused no 2 implicated him in the commission of the crimes. In fact, in his instructions put to State witnesses and in his bail application, accused no 2 testified that he left deceased and respondent at respondent’s house when he went to buy cigarettes. When he returned to that house the two were gone. In the bail application which is part of the trial record, he went on to say the cellphone they had sold was in the possession of the respondent, deceased and respondent having swapped cellphones the previous evening. Held further that on the evidence presented the discharge of the respondent was premature, the appeal succeeds and the discharge of the respondent is set aside and he is to be placed on his defence. State v Narimab (SA 71-2017) [2019] NASC (21 May 2019)******************************************************Leave to appeal – s 310 of the CPA: The respondent was discharged in terms of s 174 of the CPA by the Walvisbay Magistrate’s District Court. Aggrieved with the discharge, the State filed with the court a quo an application in terms of s 310 of the CPA. In place of granting leave to appeal, the learned judge considered or treated the application as if it was an appeal before her. She set aside the discharge of the respondent in terms of s 174 and remitted the matter back to the trial court to proceed in compliance with the order. Although the State received the judgment they ultimately desired, they realised that allowing it to stand would set a bad precedent, so they approached the court a quo again in terms of s 310(5) to grant them leave to appeal to this court.Held that the court a quo delivered an appeal judgment which in terms of s 310 was wrong.Held that the learned judge jumped the gun, when she set aside the decision of the Walvisbay Magistrate’s District Court, which is procedurally bad in law.Held that it was procedurally incompetent for the prosecution to have approached the court a quo again for leave to appeal to this court. Held that the leave granted by the court a quo is invalid and therefore there is no proper leave before this court.Held, given the irregularities in this case, and the period the case has been on the District court roll since 2012, it would be an injustice to the respondent and his co-accused for this court to strictly abide by the rules of procedure denying the PG the relief she is seeking correcting a wrong judgment.Held in terms of s 16 of the Supreme Court Act, this court reluctantly without establishing a precedent reviews the proceedings that took place before the court a quo, by setting aside the judgment of the court a quo delivered on 23 June 2016 and substituting that judgment as follows: The PG is granted leave to appeal the s 174 discharge of the respondent in case number MVB-CRM 4051/2012 in the Walvisbay District Court. S v Haikali (SA15-2018) [2019] NASC (30 July 2019)INSOLVENCY LAWRecognition - foreign liquidators: This is an appeal against the decision of the court a quo wherein the court dismissed with costs the appellants’ contention that an application for the recognition is not necessary where a foreign liquidator institutes action in respect of movable assets or where such claim is based on a liquid document. The court a quo found that the recognition was necessary prior to the institution of the proceedings. The court a quo further found that without such recognition, the proceedings instituted by the appellants amounted to a nullity which could not be ratified.Respondent in its plea raised the issue of non-recognition of the liquidators prior to instituting their action claiming R5 million against it. This prompted an application for recognition for the purposes of the action instituted about six years previously, inclusive of seeking authorisation from the court to allow the liquidators to ratify the institution of the action. In argument, appellants relied on the cases of Bekker NO v Kotze & others, and Olivier NO & another v Insolvent Estate D Lidchi to advance the point that it is not necessary for foreign liquidators to be recognised in their quest to institute action against the respondent for R5 million allegedly owed to the South African medical aid fund (which they represent) known as Renaissance Health Medical Scheme (in liquidation) by the respondent, as its guarantor and co-principal debtor. The issues this court is tasked to determine are: (1) whether foreign appointed liquidators of a corporation in liquidation in a foreign country can institute legal proceedings prior to being recognised as such in Namibia to recover money allegedly owing to the liquidated corporation by a Namibian corporation; (2) whether the action initially instituted and the steps subsequent thereto in respect of such action up to the time of a recognition can be ratified, for if not, it would serve no purpose to recognise the appellants as the liquidators in this country, and finally (3) whether the court dealing with a recognition application in circumstances such as the present can recognise the liquidators and authorise them to ratify the previously unauthorised actions as sought for in this matter?It is held that, the appellants (liquidators) did not have the power to institute action in this country without recognition by a court in this country.It is held that, where a person without authority (falsus procurator) purports to act on behalf of another (the principal) the latter can at any stage before judgment ratify litigious acts of such false procurator. However Renaissance as an existing entity could not give such authority to the liquidators who act on its behalf with the powers bestowed on them (this authority is a legal requirement). The liquidators did not have the authority to institute the action in Namibia as the authority given to them did not have extra territorial effect. Based on the general principles relating to ratification and their lack of recognition by a Namibian court, the institution of the action and the steps taken with regard to the action after institution cannot be ratified.It is held that, the recognition order does not operate retroactively. Neither can a court authorise retrospective ratification of acts that are not capable of ratification in law.It is thus held that, the appeal is dismissed with costs. Miller NO v Prosperity Africa Holdings (Pty) Ltd (SA 30-2017) [2019] NASC (30 July 2019)LABOUR LAW Arbitration – interpretation: Interpretation of an award given by an arbitrator, where the arbitrator did not express his award in the clearest possible terms. Where more than one interpretation was possible, one which resulted in an award being effective was to be preferred to one which renders it meaningless.Where an employee was dismissed unlawfully, an arbitrator has the authority to make an award, including an order of reinstatement of an employee as well as an award of compensation. The arbitrator ordered reinstatement of the first respondent but did not specifically make an award of compensation – instead using the words ‘reinstatement retrospectively from date of dismissal, with all full benefits applicable prior to her termination of service’.In the interpretation of a document, consideration must be given to the language used in the light of the ordinary rules of grammar, syntax and in the context, the language was used. It is axiomatic that a legal meaning must be given to the words in a legal document (the award), in so far as it is possible, and the quoted words cannot just be ignored.On appeal held that the words by the arbitrator, within the context used, meant the reinstatement of the employee, as well as compensation to the employee.The appeal is dismissed with costs. Adcon CC v Von Wielligh (SA 49-2017) [2019] NASC (14 November 2019)******************************************************Dismissal: In a contract of employment an employee has an implied fiduciary duty towards his or her employer which involves an obligation not to work against his or her employer’s interests. This fiduciary duty exists even though there is not an express term in the contract of employment to that effect.An arbitrator has a discretion not to order reinstatement or compensation where an employer has succeeded in proving a valid and fair reason for the dismissal of an employee but has failed to prove a fair procedure.The onus of proving damages or compensation in terms of the provisions of Act 11 of 2007 rests on an employee – an arbitrator is not bound to award damages where evidence in support thereof is available to the employee which he or she has not produced.Held on appeal, that the appellant rebutted the presumption of unfair dismissal contained in s 33(4) of Act 11 of 2007. Found that the respondent was dismissed for a valid and fair reason and in compliance with a fair procedure.Appeal succeeds with costs. Namdeb Diamond Corporation (Pty) Ltd v Gaseb (SA 66-2016) [2019] NASC (9 October 2019)******************************************************Section 89(10)(a) of the Labour Act: This is an appeal against a judgment of the Labour Court, upholding an appeal against an award of an arbitration on a preliminary point without dealing with the merits. Where an appeal against an award is to be decided on an unopposed basis, the Labour Court was required to ‘determine the dispute in the manner it considers appropriate’ under s 89(10)(a) of the Act. That could only occur if that court determined the merits of the appeal. The failure to do so means that the appeal is to be upheld for this reason and the matter referred back to that court to determine the merits of the appeal. Alutumani v Walvis Bay Stevedoring Co (Pty) Ltd (SA 65-2017) [2019] NASC (4 July 2019)******************************************************Social security – deregistration: This appeal concerns a group of Jehovah’s Witnesses members belonging to an international religious order known as the Worldwide Order of Special Full Time Servants of Jehovah’s Witnesses.The court a quo dismissed the appellant’s appeal in terms of the Social Security Act, 34 of 1994 against a decision taken by the Social Security Commission not to deregister it as an employer as defined in the Act because it contended that members of the Worldwide Order were not employees for the purpose of the Act. After conducting an investigation the Commission decided on 1 March 2016 that the definitions of employer and employee in the Act read with section 128A of the Labour Act, 7 of 2011 applied to the appellant and members of the Worldwide Order and declined to deregister the appellant as an employer. The appeal is in terms of section 45 of the Social Security Act (appealing against a decision of the Commission). Appellant filed an affidavit and 66 affidavits on appeal of Order members consenting to be bound by the judgment of the Labour Court and waiving the right to be joined and supporting the appeal. These affidavits did not serve before the Commission. They also did not disclose how many registered employees the appellant currently has and why all members of the Order had not deposed to affidavits. The affidavits do not explain how and why the appellant registered itself as an employer in the first place and which persons were registered as employees and why.Held that, the Commission was correct in declining to deregister, even though its interpretation of section 128A is defective. The factual material put before the Commission was sparse and largely comprised a series of contentions in correspondence. There was no further documentation comprising the terms of appointment, rules and/or the constitution of the appellant or the order which govern appointments placed before the Commission.Held that, section 128A should be accorded a meaning within the context of the section construed as a whole. It is not correct to first establish a legally enforceable agreement for the presumption to arise.Further held that, section 128A presumption is intended to assist the trier of fact in resolving who is an employer and employee for the purpose of the labour legislation, including the Act, and ‘each case must be considered on its own facts and that the trier of facts must look at the substance of the relationship’ – see Swart v Flex-O-Tube.It is further held that, to make an assessment as to whether the nature of the relationship is employment or not, each case is to be assessed with reference to the rules and practices of the specific religious order or church and any special arrangements made with minister(s) to determine ‘whether their actions were intended in any respect to give rise to contractual rights and obligations’ – see De Lange v Presiding Bishop of the Methodist Church of Southern Africa for the time being and another and Preston (formerly Moore) v President of the Methodist Conference.Held that, the court a quo was correct to dismiss the appeal. Christian Congregation of Jehovah’s Witnesses of Namibia v SCC (SA 5-2017 and SA 37-2017) [2019] NASC (3 April 2019) MATRIMONIALNull and void: The appellant, Mr. Herman Konrad, instituted motion proceedings in the High Court seeking for an order declaring his marriage to Ms. Shanika Ndapanda, the respondent, null and void. The appellant alleged that at the time he married the respondent, he was already in an existing marriage to his ‘first wife’. The first wife also filed an affidavit supporting some of the allegations made by the appellant. The respondent filed an answering affidavit in which she disputed some material allegations made in the appellant’s papers. Among other issues in dispute, the respondent contended that at the time she married the appellant, she was not aware that he was already married. After considering the averments made in the affidavits, the High Court found that the respondent’s denials raised a genuine dispute of facts. The court further found that the appellant knew in advance that there would be a genuine and material dispute of fact. Nonetheless, the appellant approached the court by way of motion proceedings, thereby running the risk of having his case dismissed with costs. The application was accordingly dismissed with costs. Aggrieved by the dismissal of his application, the appellant noted an appeal to the Supreme Court against that decision. On appeal, the issues for determination remained unchanged. The first ground laments the dismissal of the application with costs. The second issue concerned the validity of the purported second marriage. The appellant submitted that by dismissing the application due to factual disputes, the court a quo failed to exercise its powers in terms of the rules of the High Court to facilitate the resolution of the issues justly, speedily, efficiently and cost effectively.The appeal was unopposed since the respondent had withdrawn her notice to oppose the appeal on the eve of the hearing.The averments made by the respondent make a case for a putative marriage. However, there was no formal application for a declaration of a putative marriage nor was there a cross appeal challenging the decision of the High Court not to have had decided the issue of a putative marriage. It was argued on behalf of the appellant that the issue could not therefore be decided by the Supreme Court. The Supreme Court agreed with the findings of the High Court that there was a genuine and material dispute of fact and that the matter could not be heard on affidavit. However, the court was of the opinion that the court a quo erred in dismissing the case on procedural grounds instead of applying the overriding objective of judicial case management and the applicable rules of court to ensure the ventilation of the issues brought before it. For this reason, the appeal succeeded in part and the order of the High Court was set aside.The Supreme Court also held that the prayer by the appellant to nullify the second marriage could not be decided in isolation. It held that the declaration of the invalidity of the marriage should be dealt with together with the claim for a putative marriage, especially in the circumstances where there is a dispute of fact as to the bona fides of the parties. This will also prevent any prejudicial effect on the proprietary interests of the respondent, if any, upon the determination of the existence of a putative marriage. The court agreed with the appellant that the issue of a ‘putative marriage’ was not properly placed before it. However, asking the court to make a declaration of the invalidity of the marriage will adversely affect the respondent’s rights that may arise from the consequences of a putative marriage. This is not to say that the court has made any determination about the existence of a putative marriage. In cases such as this and on grounds of public policy, fairness and equity; the declaration on the validity of a marriage and that of a putative marriage should be determined together and not in the vacuum. The court held further that rule 67 of the Rules of the High Court is couched in discretionary terms. It is thus not right for this court to direct the High Court on how it may exercise its discretion when a matter cannot be decided on affidavit. Accordingly, the court referred the matter back to the High Court to be placed under judicial case management for resolution.As to the issue of costs, the court held that as the appeal had succeeded in part and considering the circumstances of the case, no order as to costs would be made. Herman Konrad v Shaanika Ndapanda (SA 21-2017) [2019] NASC (28 February 2019)******************************************************Universal partnerships: The respondent became an employee within one of the appellant’s business enterprises in 1975. Later that year they engaged in an intimate relationship while the appellant was still married to his wife, LN. The appellant filed for divorce from LN and subsequently married the respondent on 1 November 1988. At that time, both parties bona fide believed that the appellant was divorced from LN. It turned out, to the contrary, that the divorce had not been granted and this fact came to the parties’ knowledge only in 2013, shortly before they separated. It is therefore common cause that the marriage between the parties was null and void, and to date, the appellant remains lawfully married to LN. The parties lived together as husband and wife for 37 years and during that time they had five children. In 2015 the appellant filed an application for the eviction of the respondent from Erf 353, Oshakati, which he co-owns with the respondent. The respondent in turn instituted action against the appellant, seeking the orders which the High Court ultimately made in her favour, including an order?that the appellant render a full account of the partnership from 1976, when appellant made reference to respondent as his ‘second wife by tradition’. As an alternative to the appointment of a receiver, she sought a further order that would require appellant to rebate the net balance of the universal partnership account. The two cases were consolidated by the High Court.The High Court dismissed the eviction application brought by the appellant and declared that there was a universal partnership that came into existence between the parties and the assets thereof were to be split equally between the parties. The appellant, aggrieved by this decision, appealed against the whole judgment of the High Court. During the appeal hearing however, the appellant abandoned the claim for eviction against the respondent. The issue which remained before this court was whether the High Court was correct in holding that a universal partnership came into being between the parties, and if so, whether the assets were to be divided equally between the parties. Held, in order for a universal partnership to exist there are three requirements that must be met: (a) both parties had to make contributions towards the partnership; (b) such contributions should be for the joint benefit of the parties; and (c) the object of the partnership should be to make a profit.Held that, both parties played their roles skilfully and with utmost dedication for their joint benefit and the benefit of their unique family and household. They therefore consciously exerted themselves to build a profitable business that would in turn benefit themselves and their household.Held, a universal partnership came into existence between the parties from 1976-2013.Held, although the appellant had owned business enterprises before the respondent joined him, that does not preclude her from sharing in the later net gains of those assets. Held that, the High Court had erred in ordering that all the assets of the partnership must be divided in equal shares.Held that, a receiver be appointed who shall make an award for the equal division of the assets of the universal partnership within one month of the date of this order. M N v F N (SA 28-2017) [2019] NASC (15 November 2019)MALIOUS PROSECUTIONMalicious continuation of prosecution – development of common-law: Mr Mahupelo (who has been referred to in this judgment as ‘the respondent’) was one of the accused persons in the protracted criminal trial involving some 126 accused persons who were charged in the High Court of Namibia, amongst others, with the crimes of high treason, murder, attempted murder and several other crimes and offences. The charges stemmed from activities leading to an armed attack in and around the town of Katima Mulilo in Zambezi Region with the apparent purpose of achieving secession of the Caprivi Region (as Zambezi Region was then known) from the Republic of Namibia. At the end of the prosecution case in the criminal trial, Mr Mahupelo was discharged as the prosecution failed to establish a case against him. He later sued the Minister of Safety and Security, the Prosecutor-General and the Government of Namibia (the defendants) for wrongful and malicious institution of the prosecution, claiming N$15 321 400 in damages from them. The main claim of the institution of the prosecution was amended to introduce an alternative claim for the wrongful and malicious continuation of the prosecution. The High Court dismissed the claim for the wrongful and malicious institution of the prosecution, but upheld the alternative claim for the ‘malicious continuation of the prosecution without reasonable and probable cause.’ The High Court held that as the delict of ‘malicious continuation of a prosecution’ was not known at common law, it had to develop the common law in line with the constitutional ethos to accommodate the delict. It accordingly developed the common law and held that the Prosecutor-General (the PG) was liable for maliciously maintaining the prosecution after 2011 when it became clear that the State had no evidence leading to the respondent’s conviction. The defendants - now appellants - have appealed to the Supreme Court against the decision of the High Court. The appellants argued, amongst other things, that the High Court was wrong to have found that the prosecutors who were delegated by the PG to prosecute Mr Mahupelo had no reasonable and probable cause to prosecute him and that the PG was therefore liable for damages. The appellants argued that there was ample evidence during the criminal trial implicating Mr Mahupelo in the commission of the crimes and offences and on the basis of which it could have been found that there was reasonable and probable cause to continue with his prosecution.The Supreme Court agreed with the appellants’ argument that there was reasonable and probable cause to have continued with the prosecution of Mr Mahupelo. The Supreme Court reasoned that the High Court had adopted a wrong approach to the consideration of the evidence against the respondent led during the civil claim, pointing out that the evidence and considerations necessary in establishing whether there was reasonable and probable cause and the lack of malice (as the law requires) to continue with the prosecution were different from those necessary to prove the guilt of an accused person in a criminal trial. After evaluating the evidence as a whole, the Supreme Court held that there was evidence establishing reasonable and probable cause as well as the lack of malice in the prosecution of Mr Mahupelo. In the High Court, Mr Mahupelo pleaded that if his claim for malicious continuation of the prosecution did not succeed, then the court should award him constitutional damages for the violation of his rights. This issue was, however, not decided by the High Court as that court found that the claim for malicious maintenance of the prosecution was well founded. The Supreme Court held that it was inappropriate for this alternative claim to be decided by it for the first and final time as a party who may be dissatisfied with its decision in this regard will not have a chance to appeal. It has accordingly declined to decide the issue and referred the matter back to the High Court for that court to decide it first. Minister of Safety and Security v Mahupelo Richwell Kulisesa( SA 7-2017) [2019] NASC (28 February 2019) PARTNERSHIPSMarriage – out of community of property - tacit commercial partnerships: In a defended action in the High Court the respondent as plaintiff, instituted divorce proceedings against the appellant (defendant a quo). The parties were married to each other on 4 October 2000 in South Africa out of community of property, profit and loss and with the exclusion of the accrual system contemplated in the South African Matrimonial Property Act 88 of 1984. The High Court granted a final order of divorce on 31 July 2017.The plaintiff in addition also sought orders on the following contested claims: an order for the return of 100% member’s interest in a close corporation known as Zanja Properties Number Four CC (the close corporation). The plaintiff also sought an order declaring that the parties had tacitly formed a universal partnership; an order dissolving the partnership, and an order appointing a receiver to wind up the affairs of the partnership. The High Court found in favour of the plaintiff on all the contested claims and granted relief accordingly. The defendant was not satisfied with this outcome and appealed to this court.Court on appeal held that it would appear from the totality of the evidence and the general probabilities that the parties did not distinguish between the various business entities. The hardware business (before it was taken over by someone else), the farm and the stud farming venture were all treated by the parties as if they were joint businesses. The court thus held that the evidence presented points to a tacit commercial partnership in respect of the stud herd and the farm which can be inferred from the conduct of the parties. As regards the apportionment of the partnership interests, held that the evidence establishes that, although the defendant made significant financial contribution towards the purchase of the member’s interest of the close corporation owning the farm, the plaintiff also made a contribution to the management and development of the stud herd. Accordingly, the court granted 60 percent partnership interest in favour of the defendant and 40 percent in favour of the plaintiff. Appeal allowed with limited costs in favour of the appellant and the order of the High Court is set aside and substituted. CAD v VED (SA 48-2017) [2019] NASC (30 July 2019)POCAForfeiture orders: The Prosecutor-General has appealed against the decision of the High Court declining to make a forfeiture order in respect of certain assets that the Prosecutor-General (the PG) contends were proceeds of unlawful activities. The PG had earlier successfully applied for a preservation of property order in respect of the property that she sought to be forfeited. In the application for a forfeiture order, the PG did not attach the affidavits filed in support of the preservation application to her forfeiture application affidavit. Instead, she incorporated those affidavits and annexures by reference.The High Court held that it was not permissible for the PG to rely on affidavits deposed to in the preservation application without annexing those affidavits to her affidavit in support of the forfeiture application. The court concluded that as the evidence of the PG was based on hearsay, there was no admissible evidence establishing that the preserved assets were proceeds of unlawful activities.In the Supreme Court, the PG argued that the High Court erred in failing to appreciate that the preservation application and the forfeiture application are two sides of the same coin. As the evidence required in each application is essentially the same, it was not necessary to attach documents filed in respect of the preservation application to the affidavit supporting the forfeiture application. The Supreme Court held that the important matter to consider is the question whether a person with an interest in the preserved property would suffer prejudice if the documents that were filed in the preservation of property application are not attached to the PG’s affidavit in the forfeiture application. The court reasoned that such person is unlikely to suffer prejudice as he or she would have been served with the documents filed at the preservation of property stage. As the evidence in the two phases is essentially the same, it was not necessary to burden the court with repetitive material that may also serve to increase the costs of litigation.The court held further that the evidence tendered established fraud and money laundering and that the High Court should have ordered the forfeiture of the property on the basis that it represented proceeds of unlawful activities. The Supreme Court accordingly made a forfeiture of property order and also directed the respondents to pay the PG’s costs both in the High Court and in the Supreme Court. Prosecutor-General v Kamunguma (SA 62-2017) [2019] NASC (12 June 2019)******************************************************New evidence: This appeal was originally set down for 25 March 2019. The appellant brought an appeal against a decision of the court a quo. During the period before the date of hearing, the record of the appeal was lodged late and the appeal was thus deemed to have been withdrawn. Additionally, appellant failed to file their bundle of authorities and their heads of argument simultaneously. For these non-compliances with the rules of court, appellant lodged applications for condonation for the late filing of the record, their bundle of authorities and the reinstatement of the appeal. Respondent opposed the condonation applications, albeit late and without an application for condonation for his non-compliance.The issue to be dealt with is whether the respondent should be allowed to oppose the application for reinstatement as the notice to oppose and the answering affidavit in respect thereof was filed late and without a condonation application?It is held that, as far as the condonation application for the late filing of the record is concerned, the point of 'non-service’ cannot prevail. This is so because the respondent did get access to the record through his own endeavours and filed an answering affidavit to the condonation application without raising this issue. In any event, the objection initially raised against the late filing of the bundle of authorities of the applicant was not persisted with.It is held that, respondent’s answering affidavit to the application for reinstatement contained no factual matters contradicting the application for reinstatement by the applicant. In this instance, the court will deal with the facts put forward by the applicant. The court is however alive to respondent’s submissions in respect of prospects of success on appeal.It is further held that, the manner in which applicant’s conducted themselves in the preparation of the record of appeal leaves a lot to be desired. Apart from the process to authorise an appeal which wasted a month, the conduct of the officials at the AFU is also indicative of the fact that they did not apprise themselves of the rules of this court. There was a lack of urgency with which the officials at the AFU dealt with the compilation of the record. The lackadaisical approach of these officials was of such a nature that a lengthy delay in the filing of the record would have warranted a dismissal of this application without referring to the prospects on appeal. However, seeing that the record was filed only days late and the respondent was not materially prejudiced by the late filing of the record it is thus necessary to deal with the prospects of success before finally deciding this application.In the court a quo, applicant applied for and obtained a preservation order in respect of a Polo motor vehicle pursuant to s 51 of the Prevention of Organised Crime Act (POCA). As is the process, the preservation order was followed up by an application to have the property declared forfeited to the State pursuant to s 59 of POCA. The basis for the forfeiture order sought was that the Polo was an ‘instrumentality’ of the offences of kidnaping and rape. The court a quo found that the applicant failed to establish the offence of kidnapping and insofar as the rape was concerned, that the applicant failed to establish that the Polo was an instrumentality of the offence, and that it was merely incidental to the offence. It is held that, this is not a case where the Polo was used merely to facilitate or make the offence possible. The vehicle was functional to the commission of the crime. The Polo was reasonably directly connected to the crime and that it was the method by which respondent transported the complainant to the spot where he intended to rape her and he did rape her. It if further held that, the court a quo erred in finding that the use of the Polo in the present matter was merely incidental to the commission of the offence.It is thus held that, the applicant does not only have prospects of success in the appeal, but that the appeal should be allowed in respect of the offence of rape.Another issue this court dealt with is whether the court should allow in new evidence, an ‘affidavit’ of the complainant in the rape case?To allow further evidence on appeal is only done in exceptional circumstances. It must be explained, based on evidence which may be true, why this evidence was not presented to the court a quo. Secondly, there must be a prima facie likelihood of the truth of the evidence. Thirdly, the evidence should be materially relevant to the outcome of the initial proceedings. The evidence sought to be introduced need not be incontrovertible but it must be apparently credible. Whereas the new evidence clearly raises questions as to the reliability of the complainant in respect of the details of the assault on her, it does not in any manner impugn the credibility of the persons who arrived on the scene and who basically caught the respondent red handed busy having sexual intercourse with the complainant.It is thus held that, the application to present further evidence is declined. Prosecutor-General v Kennedy (SA10-2017) [2019] NASC (12 June 2019)******************************************************Preservation orders: The appeal concerns the upholding of an application for the rescission of a preservation of property order by Angula DJP, granted earlier by Usiku AJ (as he then was) in favour of the appellant on 26 May 2017. Two Spanish companies and an Angolan company concluded a charter agreement in terms of which they agreed that the Angolan company would utilize vessels of the two Spanish companies and would in addition carry all the costs arising from the operation of the vessels. Subsequent to entering into the agreement, the Angolan Government introduced foreign exchange regulations which restricted the export of foreign currency, making it difficult for the Angolan company to remit payment to the Spanish companies. As a result, the Spanish companies experienced a liquidity problem. In order to address the problem, Mr Martinez and Mr Maqueira acting on the instructions of the Spanish companies registered a Namibian company, Atlantic Ocean Management (Pty) Ltd (the first respondent). Mr Maqueira and Mr Martinez, being the directors and equal shareholders in the first respondent, would receive money from the clients of the Angolan company for fish supplied to them and in turn they opened up a Customer Foreign Currency (CFC) account at Bank Windhoek in which they deposited the money received which would be transferred to Fish Spain’s Bank account in Spain. This arrangement ran smoothly until Bank Windhoek informed the directors of the first respondent that the transfer of some USD886?722,20 was blocked by the compliance department within the Bank itself. This was due to a Determination issued by the Financial Intelligence Centre (FIC) in 2016, which held that any money in excess of N$100,000 had to be declared to an officer of Customs and Excise at the port of entry into or at the port of departure from Namibia. Being alerted to this, the appellant then caused an urgent application to be brought on an ex parte basis due to the belief that the first respondent contravened s 36 of the Financial Intelligence Act (the FIA) and in turn resulted in an act of money laundering in terms of s 4 of the Prevention of Organised Crime Act (the POCA). The application so brought was for the preservation of such money in terms of s 51 of the POCA. This was granted by the court a quo on 5 January 2017. The matter was opposed by the respondents in February 2017. On 28 April 2017, the appellant through the Government Attorneys, sent a letter to respondents’ legal practitioners in which she conceded that she would not be able to obtain a forfeiture order in respect of the money in the CFC account as it became common cause that the Determination, purportedly issued in terms of s 36 of the FIA, had in fact not been issued or published in the Government Gazette. As a result, the appellant decided to allow the preservation order to lapse by effluxion of time. On 22 May 2017, the respondents’ legal practitioners sent a formal letter of demand to Bank Windhoek demanding that the bank release its funds, in light of the fact that the preservation order which preserved the funds had lapsed. This was not done. The appellant on 24 May 2017 caused a fresh POCA application for the preservation of property order to be issued in respect of the same positive balance in the first respondent’s CFC account and set it down for hearing on 26 May 2017. The application was again brought ex parte. The application served before Usiku AJ (as he then was), who granted the order on 26 May 2017. The respondents lodged an urgent application in which they sought to compel the appellant, Bank Windhoek and Bank of Namibia (BoN) to release the funds. In their opposition to the second preservation order granted, they sought to anticipate it and have it rescinded or set aside as well.Angula DJP heard the various applications and delivered judgment on 6 September 2017 in which he set aside the second preservation order and gave a costs order against the appellant. Being aggrieved, the appellant appealed against that judgment and order to this court. Held, that the point in limine raised by the appellant in the court a quo, contending that the respondents had no right to anticipate the second preservation of property order in terms of Rule 72, fails.Held, further (on the question that the appellant brought the second application ex parte, when she should not,) that any application under s 51 of the Act can never be dismissed solely on the ground that it has been brought ex parte. It is the court hearing the application in terms of s 51 which is obliged to ensure that the proceedings before it are always fair.Held, further that the case of the Prosecutor-General v Uuyuni is not authority for the proposition that all preservation of property orders must be brought ex parte, but rather that the use of the word ‘may’ in s 51 of the POCA bestows a discretion on the appellant to proceed on an ex parte basis or by way of notice.Held, further that it is now settled law that the High Court is authorised to grant preservation orders under s 51 without requiring that notice of the application be given to any person and if satisfied that the requisites set out in s 51(2)(a) and (b) have been met must grant a preservation order.Held, further that this does not preclude the appellant from giving notice of such an application in appropriate instances to another party. The appellant is not obliged to bring an application under s 51 on an ex parte basis.Held, further that the High Court is not precluded from granting a rule nisi in preservation of property orders under s 51 or that there is in principle no procedural bar to a High Court hearing an application ex parte and in camera under s 51 of the Act and granting a rule nisi, together with an interim preservation and seizure order, pending the return day of the rule. National Director of Public Prosecutions v Mohamed No & others 2003 (4) SA 1 (CC) para 33. In fact it is preferable for the High Court to grant a rule nisi when an application is brought ex parte so as to comply with the sacred audi alteram partem rule, one of the main pillars of Art 12 of the Constitution. The right to a fair hearing before a court lies at the heart of the rule of law. A fair hearing before a court as a prerequisite to an order being made against anyone is fundamental to a just and credible legal order . . . . It is a crucial aspect of the rule of law that court orders should not be made without affording the other side a reasonable opportunity to state their case. That reasonable opportunity can usually only be given by ensuring that reasonable steps are taken to bring the hearing to the attention of the person affected. De Beer No v North-Central Local Council & South-Central Council and others (Umhlatuzana Civic Association Intervening) 2002 (1) SA 429 (CC) para 11.Held, further that even if the High Court does not frame its order in the form of a rule nisi, an order granted ex parte is in any event provisional and subject to being set aside by a party on application against whom it was granted. A party is furthermore not confined to the narrow basis to rescind an order set out in s 58(6) when challenging an order granted ex parte against him or her and it may entail a reconsideration of the order given.Held, further on the question whether the appellant was entitled to apply for and obtain the second preservation order, that it would depend on the circumstances of each case. In this case where the appellant deliberately let an erroneously obtained preservation of property order run a full course of 120 days without approaching the court to rescind the same, appellant abused the provisions of s 51 of the Act and was therefore not entitled to obtain the second preservation of property order. Held, further that appellant committed material non-disclosures and/or relied on misleading statements in the first and second preservation order applications. In ex parte applications the deponents should adhere to the requirements of uberrima fides. Held, further that the second preservation of property order was correctly set aside and accordingly the appeal is dismissed with costs. Prosecutor General v Atlantic Ocean Management Proprietary Ltd (SA 53-2017) [2019] NASC (9 October 2019)PROCEDUREAppeal lapsed – struck from roll: The matter was heard in chambers. On behalf of third respondent an objection was raised to the appeal being heard as it had lapsed due to the late filing of the record and seeing that there was no application to condone this non-compliance and to seek the re-instatement of the appeal. Legal practitioner for the appellant, when realising that the point taken on behalf of the third respondent was sound, sought a postponement of the matter based on the undertaking by him to ‘immediately prepare’ the necessary application to have the appeal re-instated. On this basis legal practitioner tendered wasted costs as the costs on appeal would be dealt with when the application for re-instatement is determined. The court struck the matter from the roll with costs, such costs to include the costs of instructing legal practitioner and instructed legal practitioner (where used). Four Three Five Development Companies (Pty) Ltd v Namibia Airports Company (SA 5-2017) [2019] NASC (30 July 2019)******************************************************Condonation – late filing of record: Appellant brought an application for condonation and reinstatement of the appeal due to the late filing of its appeal record. In his founding affidavit to the application, the legal practitioner for the appellant explained that it was his ‘understanding’ that the appeal record had to be filed within three months after the notice of appeal had been filed instead of three months after the judgment or order appealed against was delivered as prescribed in rule 8(2) of this court.It is the duty of a legal practitioner to acquaint themselves with the rules of the court in which the appeal is to be prosecuted. This duty has often been emphasised in past decisions and has been settled law for a very long time. It was especially important in this appeal for the legal practitioner to exercise this duty as the new rules had only been in place for about six months when this appeal was lodged in the Supreme Court.The new rules of this court came into effect on 15 November 2017, when compared to the old rules (which were in place from October 1990), they made no major procedural changes to rules 7 and rule 8. These rules are by and large a copy of the rules of the then South African Appellate Division which was the final court of appeal in Namibia prior to its independence. The rules of the Appellate Division were in place as far as Namibia is concerned from, at least, June 1962 (ie nearly 56 years).The test for condonation is that first, there must be a reasonable and acceptable explanation for the non-compliance, and second, there must be reasonable prospects of success on appeal. There is some interplay between these two considerations (eg good prospects of success may lead to the granting of a reinstatement application even if the explanation is not entirely satisfactory. However, a totally unacceptable explanation or no explanation will not save an application even if there are good prospect of success, and conversely, an entirely satisfactory explanation will not save an application when there is no prospects of success on appeal).Held that, it is evident from the explanation tendered, the legal practitioner did not acquaint himself with either the new or the old rules but acted on his ‘understanding’.Held, in view of the frequent warnings of this court concerning the laxity of legal practitioners when it comes to the rules concerning appeals, the explanation for the late filing of the record in this case is not reasonable and acceptable. It amounts to no explanation.Held, the non-compliance with the rule relating to the late filing of the record was not satisfactorily explained, thus the application falls to be dismissed for this reason alone. Sun Square Hotel (Pty) Limited v Southern Sun Africa (SA 26-2018) [2019] NASC (9 December 2019)******************************************************Condonation – non-compliance with rules: Appellant brought an application for condonation and reinstatement of the appeal due to the late filing of its appeal record. Apart from this, it emerged that several other requirements stipulated in the rules have not been complied with (ie appellant’s failure to file its power of attorney on time and failure to hold a meeting about the record with the other parties in terms of rule 11(10) of the Supreme Court Rules).Held that, this court can, in its discretion, reinstate an appeal that has lapsed when it is satisfied that the explanation given for the non-compliance is reasonable and that the applicant has established prospects of success in respect of the intended appeal.Held that, good prospects of success may lead to the granting of condonation and reinstatement despite the applicant not providing an entirely satisfactory explanation for the non-compliance. However, a totally acceptable explanation for the non-compliance will not be enough to reinstate an appeal where there are no prospects of success on appeal. Neither will prospects of success on appeal lead to reinstatement where there is no explanation for the non-compliance.Held that, applicant’s legal practitioner’s attempt to attribute the delay to Tunga Transcription Services is not acceptable. It is an attempt to hide the legal practitioner’s inaction especially during the period of five weeks that the matter was in the hands of the legal practitioner, namely from the date of filing the notice of appeal on 8 November 2017 until Tunga Transcription Services was approached on 13 December 2017 to transcribe the record. No explanation is tendered for this inaction.It is held that, the condonation application fails irrespective of the prospects of success on appeal. Consequently, this application is dismissed with costs. Otjikaoko Traditional Authority v Tjavara (SA 70-2017) [2019] NASC (11 November 2019)******************************************************Irregular proceedings – rule 61: This is an appeal against the order of the High Court upholding an objection by the respondents (NAMFISA) that it was irregular in terms of High Court rule 61 for the appellant (NFE) to seek relief against an administrative body in terms of rule 65 (the general applications rule) and not rule 76 (the review rule). Proceeding under the general applications rule, NFE sought relief against NAMFISA principally for a declarator and mandamus relative to a failed application to be registered as a stock exchange. NAMFISA objected to the relief on grounds that it was irregular as it should have been brought in terms of the review rule. The court a quo upheld the objection and struck NFE’s application from the roll, with costs. The court below reasoned that rule 76 aims to delineate separate procedures for the various forms of applications taking into account the nature, scope and purpose of a specified form of application that comes to the court and that it was therefore the intention of the rule maker that each application be dealt with accordingly. The court a quo concluded that rule 76(1) obligates, in peremptory terms, that every application to challenge administrative action must be brought under the review rule and that failure to do so renders the application a nullity.On appeal, two issues were to be determined: firstly, whether a party seeking relief against an administrative body is compelled to proceed under the review rule and secondly, whether the court a quo’s judgement and order upholding the rule 61 objection are appealable. On the first issue, the court distinguished the purpose of separate rules for POCA applications and election disputes which do not fall within the normal jurisdiction of the High Court and held that since the provisions of rule 76 are not couched in peremptory terms, the review rule exists for the benefit of an applicant who has the right to waive it. Accordingly, and in conformity with the long standing common law position on the review rule, the court held that it is not peremptory and does not attract nullity if not used in challenging administrative decision-making and that to deploy rule 61 sanctions if not used would be denying an applicant a right it otherwise enjoys. Accordingly, there is no reason that a principle now firmly embedded in our common law should be changed.On the question of appealability of the order of the court a quo, court followed the long established line of cases that an order that does not finally dispose of the rights of the parties or does not dispose of a substantial part of the dispute between the parties is not appealable. Court on appeal further noting the exception that an order that is not interlocutory and does not have any of the three attributes may nonetheless be appealable if the effect of the court's finding is final and definitive of the rights of the parties and thus not susceptible of alteration by the court of first instance. Highlighting the effect of the decision rather than its form, court on appeal held that NFE in proceeding under the general applications rule invoked a procedural avenue open to it which the High Court incorrectly closed not only to it but to all future litigants similarly situated. Court held that order made by the court a quo is not procedural simpliciter and involves the denial of a right to make an election among procedural avenues open to a litigant; that an authoritative interpretation of a statutory provision met the criterion of finality, could not be altered by the High Court and, therefore, appealable.Appeal succeeds, order of the High Court set aside and matter remitted to High Court for further case management. Namibia Financial Exchange (Pty) Ltd v Chief Executive Officer of NAMFISA (SA 43-2017) [2019] NASC (31 July 2019)******************************************************Non-compliance with pre-trial order – pleadings struck: This appeal deals with the failure of the plaintiff to comply with the court a quo’s pre-trial order relating to the filling of witness statements in preparation for the trial and to timeously apply for a postponement when it had not done so. Plaintiff failed to comply with the filing of the witness statements on three occasions despite the court a quo’s indulgence. Defendant’s legal practitioner communicated with plaintiff‘s legal practitioner on 1 March 2017, some six weeks before the trial, regarding their non-compliance, however plaintiff was not forthcoming. On 7 March 2017, defendant filed a status report to the court a quo informing the managing judge of plaintiff’s failure to file its witness statements in the face of a looming set down of the trial on 18 to 21 April 2017 and requesting a status hearing to address the issue in view of the approaching trial date. These steps only elicited a response on 31 March 2017 from the plaintiff’s legal practitioners in which it was stated that its instructed counsel had returned to chambers and that ‘proposals’ regarding the trial would be made. Despite this, nothing further was forthcoming from the plaintiff’s legal practitioner before the trial date. Although the court a quo enquired why a postponement was not timeously sought in terms of rule 96(3), plaintiff failed to explain why a postponement application was not brought. Plaintiff further did not seek the opportunity to launch an application for postponement together with an application to condone non-compliance with rule 96(3) and the failure to file its witness statements. Defendant’s legal practitioners sought a sanctions order against the plaintiff in the form of a dismissal of the claim or an order striking the plaintiff’s claim and costs on the scale as between attorney and own client alternatively on an attorney and client scale.The court a quo made an order striking the plaintiff’s summons and amended particulars of claim and replication and costs as between attorney and client. The court a quo further ordered that the plaintiff may institute its action against the defendant anew and that the action was finalised and removed it from the floating roll. Plaintiff noted an appeal to the Supreme Court. Although the appeal was noted timeously, plaintiff failed to lodge the appeal record and its security within the prescribed time periods in terms of the Supreme Court Rules. These non-compliances led to plaintiff’s appeal deemed to be withdrawn. Plaintiff applied for condonation for its non-compliance with the rules of the Supreme Court and for the reinstatement of the appeal. Defendant opposed this application.Preliminary points were taken on appeal by the defendant that the court’s order is not appealable in that the plaintiff could apply for relief from sanctions under rule 56 and even if it were so, leave would be required because the order was interlocutory. The following issues are determined, whether the order was appealable and if so, whether leave to appeal was required; whether the explanation for the delays is adequate and whether there are prospects of success on appeal when the application for condonation is considered.Held that, rule 56 empowers a managing judge to condone non-compliance with a rule, practice direction or court order on good cause shown and provide relief from a sanction imposed upon a party. The exercise of this power would depend on the nature of the sanction imposed. It cannot apply to the dismissal of a claim or the entering of a final judgment even if such an order were imposed under rule 53.Held that the court a quo’s order struck the claim and replication. The order specifically stated that the matter was finalised and that a new action would need to be instituted.It is held that the order was appealable and did not require leave.Held that, the explanation provided by Mr Brandt for the condonation application does not meet the requisite of being ‘full, detailed and accurate’. The principle contained in Katjaimo v Katjaimo & others find application. On the merits of the appeal, the plaintiff would need to show that it has prospects of success on appeal. Having heard full argument on the merits, the court was not persuaded that the appeal enjoys any prospects of success on appeal and that it had not been shown that the High Court had exercised its discretion on a wrong principle. Levon Namibia (Pty Ltd v Nedbank Namibia Limited (SA 31-2017) [2019] NASC (2 August 2019)PROPERTY LAW Partnership agreement: The appellants in this appeal instituted an action against the respondents in which they sought an order evicting the respondents from Farm Dankbaar No 444. In their plea, respondents raised the defence that a partnership agreement existed between them and the appellants. This agreement (and others) was made in a family context as Imbert Tjihero is the brother-in-law of Ben Kauari, the latter being married to Imbert Tjihero's sister. The agreements were not reduced to writing as is required in terms of the Alienation of Land Act, No 68 of 1981 for any agreement relating to the alienation of a piece of land to be legally enforceable. The court a quo dismissed the eviction claim and the respondents' plea of a partnership agreement. The court a quo found based on the evidence (with reference to the principles contained in Colien v Rieffontein Engineering Works), that the respondents were co-owners of the farm and were entitled to occupy their portion of the farm. Respondents did not file a cross-appeal against the finding of the court a quo that their partnership agreement was invalid because the second appellant did not consent to the agreement. Second appellant's consent was necessary due to the appellants being married in community of property.On the merits of the appeal, the issues the court is required to determine is (1) whether the court a quo was correct to go outside the pleadings and find that the respondents are co-owners of the farm in question, and (2) whether on the evidence, the respondents established some basis, other than a partnership agreement, to justify their occupation of a portion of the farm.Preliminary issues dealt with on the day of the hearing involved the respondents' application to strike the appeal from the roll. Further, respondents did not file their heads of argument and sought a postponement of the appeal from the bar.Appellants’ appeal had lapsed due to their failure to file their appeal record within the prescribed time period. They brought a detailed application for condonation and reinstatement of the appeal. This application was not opposed by the respondents.Respondents’ application to strike the appeal from the roll is premised on a judgment Agribank obtained on 15 April 2019 against the appellants following their failure to pay instalments due in terms of a mortgage bond registered over the farm. In terms of the judgment, the farm was declared executable and can be sold on auction unless the appellants can reach an agreement with the bank. Respondents wished to join these proceedings to propose that they take over the bond on condition that the farm is registered in their name.It is held that, this court accepts the finding of the court a quo regarding the invalidity of the partnership agreement plea in the absence of a cross-appeal against that order.It is held that, the application to strike the appeal from the roll was an attempt by the respondents to present themselves as current co-owners of the farm as per the judgment of the court a quo, so as to have some leverage in pushing their proposal to Agribank and to use the order to share in any excess should the farm be sold on public auction. This is frivolous and amounts to an abuse of the court's process.It is held that, this kind of utterly meritless application should not be tolerated and a special costs order is warranted to discourage such abuse.It is further held that, respondents' application to have the appeal postponed is declined.It is held that, the appellants showed good cause for their late filing of the record and that there was good prospects of success if the appeal is heard.It is held that, the court is entitled to deal with issues arising at a trial even if not pleaded, although this is an exception rather than the rule, it is preferred that an application to amend should be sought in this regard.It is further held that, a court should only exercise its discretion to go outside the pleading where it is clear there has been a full investigation of the matter and there is no reasonable ground for thinking any further examination of the facts might lead to a different conclusion. It is stating the obvious to mention that the resolution of the real issue must lead to a legally valid conclusion as the court cannot sanction conduct that would otherwise not be legally valid.It is held that, the court a quo's conclusion that the respondents are co-owners of Farm Dankbaar No 444 was not correct and cannot stand.It is further held that, as a result of the family context in which the matter of the occupation and intended subdivision of the farm was agreed upon to between the parties, the respondents failed to establish any legally enforceable right of possession to the portion of the farm.It is held that, the appeal succeeds with costs. Tjihero v Kauari (SA 59-2017) [2019] NASC (25 June 2019)******************************************************Servitude of right of way – acquisitive prescription: This appeal concerns a decision of the court a quo in which the learned judge found that the 1st and 2nd respondents discharged the onus upon them, establishing that they acquired a servitude of right of way by acquisitive prescription over the appellant’s property in Tsumeb (Erf 646) in terms of section 6 of the Prescription Act 68 of 1969. This court raised mero motu a further issue concerning the impact of section 65 of the Local Authorities Act 23 of 1992 to these proceedings. Appellant’s property was for the claimed period of prescription (from 1973 to 2003) owned by the local authority of the Municipal Council of Tsumeb (referred to as Erf 56 until its subdivision and the creation of Erf 646 in about 2004).The court a quo found that it was probable that access was gained to the dwelling on an uninterrupted basis for a period in excess of 30 years. After the court referred to the requisites for acquisitive prescription set out in s 6 of the Prescription Act and to authority, it found that an uninterrupted period of 30 years of possession of the route was established on the part of the 1st and 2nd respondents and their predecessor in title. The fact that Erf 646 was later fenced in and keys of the gate provided to the respondents’ tenants, amounted to an inference that respondents’ free access over Erf 646 was acknowledged. The court concluded that the requisites for acquisitive prescription were established and found in favour of 1st and 2nd respondents.The parties were invited by this court to make submissions on whether s 65 precludes the acquisition of a servitude over Erf 646, as municipal property. Appellant argued that the respondents’ claim for a servitude of right of way was precluded by s 65 and that acquisitive prescription could not run against the municipality prior to 2004.First and 2nd respondents argued that appellant had not raised this issue as a defence in the court a quo. Nor had the municipality, which had been cited as a party and elected not to oppose the relief sought by the respondents. Respondents submitted that s 65 found no application to the case because at the time the servitude was claimed, the property had long since been acquired from the municipality – originally in 2004 (they argued that the defendant cannot rely on s 65 as a defence because he became owner of erf 646 in 2012) – relying on Silungwe, AJ in Strauss and another v Witt and another. Respondents further argued that had s 65 been raised in the court a quo, ‘a number of factual and additional legal issues would have been investigated at the trial, and in the pleadings’. Respondents argued that the issue could not be ‘raised or determined in accordance with their fair trial rights, on appeal’ – seeking to rely on Director of Hospital Services v Mistry. They contended that, had s 65 been raised, the plaintiffs may not have abandoned their alternative claim based on a via necessitate and that s 65 may be impermissibly overbroad and in conflict with Arts 10 and 16 of the Constitution and that the respondents had insufficient time to consider raising the constitutionality of s 65 on appeal as it could deprive the plaintiffs of rights they had when the Act was put into operation in 1992. Respondents further argued that section 65 essentially offends against Art 10 in that a private person can acquire land or rights in it by prescription against the State but not against local authority.Held that, reliance upon the Mistry matter is entirely misplaced and would create an intolerable position if a court of appeal is precluded from giving the right decision on accepted facts merely because one of the parties had failed to raise a legal point.Held that, it is open to a court of appeal to raise questions of law of its own motion for the first time on appeal. It is indeed the court’s duty to do so if the Constitution or a statutory provision or the common law would preclude reliance upon an illegal contract or a principle of common law in conflict with the Constitution. This court has done so and will continue to do so when circumstances require it to do so.Held that, s 65 contemplates the term ‘become owner’ which is preceded by the words ‘by prescription’. The concept addressed in the section is one of acquisition of land or rights in land by prescription. The term becoming an owner is thus used to denote acquisition of ownership of land or the acquisition of rights in it by prescription and should be understood in this context. This is what is plainly intended by the section – refer to Minister of Agriculture and Forestry v O’Linn.Held that, s 65 provides that the prohibition upon acquisition of municipal land or rights in it operates ‘notwithstanding the provisions of the Prescription Act.’ Section 18 of the Prescription Act itself envisages that laws may prohibit the ‘acquisition of land or rights in land by prescription’.Held that, the O’Linn matter made it clear when it decided that, s 65 properly construed precludes the acquisition by prescription of a servitude over municipal property. That has been the position in Namibia since 1977. Courts are to give effect to the unambiguous meaning of s 65, despite the hardship which may arise.Held that, the meaning of s 65 is clear – it precludes the acquisition of municipal land or rights in it by acquisitive prescription. It does not merely preclude the assertion of a claim of acquisitive prescription at the time the land is owned by a local authority. It precludes acquisitive prescription running against a local authority. To that extent, the statement by Silungwe, AJ is not to be followed.It is held that, s 65 precluded the 1st and 2nd respondents in this case from acquiring that right over that property.It is further held that, the fact that the State does not enjoy the benefit of similar protection does not mean that s 65 is in conflict with Art 10 by preventing the acquisition by prescription in respect of municipal land or rights in it. The legislature may not as yet have provided for similar protection to the State because much of the land and public spaces in urban areas vest in local authorities. Although this may give rise to anomalies as is demonstrated by the facts in the O’Linn case, the protection of municipal property and rights in it by s 65 is however rationally connected to a legitimate purpose of preserving municipally owned land which a local authority would be at pains to protect against acquisitive prescription in the public interest. The 1st and 2nd respondents have not established that the differentiation contemplated by s 65 infringes Art 10.It is further held that, the constitutional challenge to s 65 is without merit and must fail.It is held that, the appeal is upheld with no order as to the costs of appeal. Arangies v Neves (SA 16-2017) [2019] NASC (28 May 2019)RECUSAL OF PRESIDING OFFICERJudge involved in past constitutional challenge - refusal of petition: This is an application post-facto for the recusal of a judge of the Supreme Court who refused a petition to the Chief Justice seeking leave to appeal against an order of the High Court which suspended the application and implementation of provisions of an Act of Parliament and subordinate legislation made under it. The Minister of Finance, acting in terms of s 39(5) of the Namibia National Reinsurance Corporation Act 22 of 1998 on 29 December 2017, promulgated Government Notices No: 333, 334, 335, 336, 337 and 338 (the measures), which came into effect on 27 June 2018. The measures create a regime authorising the Minister to compel every registered insurer and reinsurer to cede a percentage of their business to NAMRe. The measures are justified on the basis that it will assist in building a sustainable reinsurance industry in Namibia and minimise the extent to which reinsurance premiums are exported out of Namibia. In terms of s 42(1) of the NAMRe Act, any registered insurer and reinsurer who fails to comply with the measures is guilty of an offence and liable on conviction to a fine not exceeding N$150 000 or to imprisonment for a period not exceeding 10 years, or to both such fine and such imprisonment. The current respondents brought an application in the court a quo challenging the constitutionality of certain provisions in the NAMRe Act and for the review of measures under that Act on grounds that the measures are contrary to Article 18 read with Articles 8, 16 and 21(1)(j) of the Namibian Constitution. Pending these proceedings, an application to compel the respondents to, in the interim, comply with the measures, and in the alternative to commit, for contempt, the corporate respondents’ executives (9th to 16th respondents) in the event that any of the respondents do not comply with the court’s order, ended in the court a quo staying the implementation and application of the impugned provisions pending the determination of the constitutional challenge. Leave to appeal against this order was subsequently refused and the applicants petitioned the Chief Justice for leave to appeal. Frank AJA refused in chambers the request to be granted leave to appeal against the order of stay.Post-facto the Supreme Court order the applicants brought the present proceedings in the Supreme Court in terms of Art 81 of the Constitution, seeking a declarator that, because of perceived bias on the petition judge’s part, the refusal of the petition is a nullity and that the full court should consider the petition afresh. This court reiterated that the test is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend that the judge would not be impartial. The test is objective and the onus of establishing it rests upon the applicant. Court on appeal held that the cumulative effect of the petition judge having been the lead counsel for the insurance industry in the 1999 constitutional challenge; his remunerated association with NNHL (which is the holding company of NedLife) and his previous directorship of Trustco Holdings (Trustco), would warrant a reasonable lay observer to, on the known facts, reasonably form the view that the petition judge might not bring an impartial mind to bear in the petition and further that the petition judge ought not to have presided in the petition without disclosing such information and affording those desiring to do so to seek his recusal if so advised. As regards the order of stay by the court a quo, court on appeal reiterating that a court is only competent to grant orders which were asked for by the litigants and may not usurp the powers delineated to the executive under the Constitution;Application for recusal granted, refusal of petition set aside and leave to appeal granted against order of stay. Minister of Finance v Hollard Insurance Company of Namibia Limited (P8-2018) [2019] NASC (28 May 2019)******************************************************Mero motu – magistrate not having the necessary legal qualifications for permanent appointment: Two magistrates in the Windhoek District recused themselves mero-motu from partly heard matters they were seized with in the Regional Court; for the reason that the Magistrates Commission declined to consider them for permanent appointments in the Regional Court; because they did not possess the necessary legal qualifications (LL. B and B. Proc degrees) which are the statutory determined qualifications for the appointment of a person as magistrate in terms of s 14(2) of the Magistrates Act 3 of 2003.The Divisional Magistrate for the District of Windhoek referred the recusals to the High Court for review. The High Court upheld the recusals, for the reason that if the Commission was satisfied with the performances of the magistrates who are non LL. B holders but presiding in the Regional Court, why not consider them for permanent appointments in that regard, if not why appoint them for the court they hold no qualification for.On appeal, the court found that the reasons given by the magistrates for their recusal were flawed, they failed to cross the high threshold needed to satisfy the test for recusal, which is, whether a reasonable objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case and that the test is objective and the onus of establishing it rests upon the applicant.Held further that recusal, whether initiated by an applicant before court or raised by the magistrate mero motu should cross the high threshold needed to satisfy the test for recusal. Held further that recusal cannot be raised in vacuo or on the judicial officer’s predilections, preconceived unreasonable personal views or ill-informed apprehensions.Held further that judicial officers have a duty to sit in any case in which they are not obliged to recuse themselves.Held further that the court a quo misdirected itself on the facts and law when it upheld the magistrates’ recusals.Held further that they ought not to have withdrawn from the proceedings under the circumstances they did, as the circumstances lack evidence to sustain their recusals.The appeal succeeds, the order of the High Court set aside and substituted for an order setting aside the recusals. State v Stewe (SA 2-2018) [2019] NASC (15 March 2019)SPECIAL PLEASArbitration: This appeal arises from an application brought by the appellant, Namibia Wildlife Resorts (Pty) Ltd (NWR), in the High Court to put an end to a part heard arbitration between it and the respondent, Ingplan Consulting Engineers and Project Managers (Namibia) (Pty) Ltd (Ingplan). The parties had entered into an agreement (MoU) which contained an arbitration clause (clause 9), which the parties are entitled to invoke in cases of contractual disputes arising between them. Contractual disputes arose between the parties and the parties sought to cancel the agreement after Ingplan had rendered its services. Ingplan invoked clause 9 and instituted arbitration proceedings against NWR and the dispute proceeded to arbitration. These proceedings were recorded and NWR was initially provided with copies of transcripts, but was required to pay 50% of those costs and of the venue. NWR refused to do so. When Ingplan’s legal practitioners advised that the consequences would be not receiving any further transcripts and no further access to the venue, NWR claimed that this conduct constituted a repudiation of the arbitration agreement and purported to cancel it. NWR launched an application in the High Court seeking an urgent interim relief in part A of the notice of motion interdicting Ingplan and the arbitrator from proceeding with the arbitration, pending the final outcome of the relief sought in part B. Part B of the application sought to declare clause 9 to be void for vagueness, alternatively void for lack of consensus or to have been validly cancelled by NWR. It also sought to declare the arbitration proceedings to be null and void. The issue in part A was disposed of as Ingplan agreed to the terms of the interim order. The matter proceeded to a hearing in respect of part B. Ingplan opposed the claim in part B by raising a special plea of arbitration, contending that those issues would be determined by the arbitrator. The court a quo upheld Ingplan’s defence and dismissed the application with costs, ruling that it did not have jurisdiction to determine the relief sought in part B. On appeal, NWR appealed against the decision of the court a quo - and for the first time raised a point that by agreeing to the terms of the interim order, Ingplan agreed to the jurisdiction of the court a quo.The court a quo held that the parties were bound by clause 9 to refer their disputes to arbitration. That was the means the parties chose to resolve disputes and not by litigation. That, the court found, was the clear intention of the parties – even where cancellation of the overall agreement has occurred. The issues raised in part B were thus matters for the arbitrator to determine and the court found that it did not have jurisdiction to do so and upheld the special plea of arbitration and dismissed the application for the relief in part B and discharged the rule relating to interim relief.NWR’s argument that the arbitration rule 12 (which empowers the arbitrator to decide a dispute regarding the existence, validity or interpretation of the arbitration agreement) could not without being authorised by clause 9 apply to it by virtue of the non-variation clause in the MoU. This court found that argument to be untenable and without merit.Ingplan correctly submitted that NWR cannot bank a ‘validity point’ and await the finalisation of proceedings only to raise it later. NWR should have raised these issues before the arbitrator at the outset (particularly in view of rule 12).There is no proper basis raised to interfere with the court a quo’s dismissal of the application on the basis of upholding the special plea of arbitration except for the finding as to having no jurisdiction contained in the first order which is incorrect and the court a quo’s order to that effect is to be corrected by removing paragraph 1.It is held that, NWR acquiesced to the jurisdiction of the arbitration proceedings to determine the dispute between the parties.It is held that, the court a quo correctly upheld the special plea of arbitration. NWR (Pty) Ltd v Ingplan Consulting Engineers and Project Managers Pty Ltd (SA 55-2017) [2019] NASC (12 July 2019)SUMMARY JUDGMENTRequirements – rule 60(5) of the High Court Rules: This appeal arises from a summary judgment granted by the court a quo. The issue on appeal is whether the appellant as defendant a quo met the requisites of rule 60(5) of the rules of the High Court to resist an application for summary judgment in that it satisfied the High Court that it had a bona fide defence to the respondent’s action by disclosing fully the nature and grounds of the defence and the material facts relied upon.The court a quo found that the appellant did not meet the standard of disclosure required to resist the summary judgment application. It refused to allow the appellant to adduce factual evidence from the Bar and that the appellant was confined to its opposing affidavit.Applying Maharaj v Barclays National Bank Ltd, the court held that, in a summary judgment application, the court is not called upon to decide factual disputes or express any view on the dispute. It is called upon instead to determine firstly whether a defendant has ‘fully’ disclosed the nature and grounds of the defence and the material facts upon which that defence is founded. In the second instance the court is to determine whether on the facts set out by the defendant that it appears to have – as to either the whole or part of the claim – a defence which is bona fide and good in law. If satisfied upon these two criteria, the court must refuse summary judgment. This position is confirmed in Kukuri v Social Security Commission.It is held that, the court below rightly ruled that the appellant was confined to its opposing affidavit.It is further held that, the court below correctly found that the defence set out in the appellant’s opposing affidavit fell short of the requisites of rule 60(5) dispute.The appeal is dismissed with costs. Radial Truss Industries (Pty) Ltd v Aquatan (Pty) Ltd (SA 11-2017) [2019] NASC (10 April 2019)TAXATIONReview – no court order awarding costs: This is an application for review of the Taxing Master’s decision to tax the bill of costs of the respondent without a court order awarding costs in favour of the respondent. The applicant filed his notice of appeal on 20 June 2018 in this court against the ruling of Angula DJP, in which he refused to recuse himself on 19 June 2018 from case number 2017/00202 in the High Court. The respondent filed notice to oppose the appeal. The applicant failed and/or neglected to prosecute his appeal. On 24 September 2018, the Registrar of this court addressed a letter to the applicant, informing him that his appeal had lapsed due to non-compliance with rules 8 and 14 of the Supreme Court Rules and as a result, the appeal was deemed to have been withdrawn. Pursuant to the Registrar’s letter to the applicant, the respondent submitted a bill of costs between party and party for taxation pertaining to all costs it incurred as a result of the appeal filed by the applicant. A notice of taxation was accordingly served on the applicant and filed with the Registrar of this court on 18 March 2019. The taxation was set down for 26 March 2019. On 26 March 2019 before the taxation took place, the applicant filed a document headed ‘Notice of Taxation’. This document urged the Taxing Master not to tax the bill of costs. After hearing submissions from the parties, the Taxing Master ruled that he would proceed with the taxing of the bill of costs. The applicant expressed his disapproval of the ruling made by the Taxing Master and elected to leave the hearing. Before he left, the Taxing Master informed him that the taxation would continue in his absence. The bill was then taxed in the absence of the applicant and an allocatur was filed by the Taxing Master. As a result of the allocatur taxed and allowed by the Taxing Master, the applicant filed a ‘Notice of Review of Taxation in terms of rule 25(2) and (3)’ on 23 April 2019. The applicant’s attack on the Taxing Master’s ruling does not turn on his ruling in respect of the various items he taxed, but hinges on the fact that the entire taxation procedure and process was flawed. The second attack was that he requested for the transcript of the taxation proceedings, which he was denied as there was no transcript because the Taxing Master is not obliged to record taxation proceedings. The Taxing Master, in terms of rule 25(3) furnished a report to the court for the decision of a judge in terms of rule 25(5) of the Rules of this court.Held that rule 25(3) and (4) of this court presupposes that a party must direct his/her dissatisfaction at an item or part of an item which was objected to or disallowed by the Taxing Master of his/her own accord. Held that the applicant’s objections are not covered by rule 25(3) and (4) and therefore the review notice is invalid. The applicant’s review application also does not meet the Supreme Court’s general powers in cases where it is sitting as a court on review as is contemplated in s 20 of the Supreme Court Act 15 of 1990, as the notice is not in the form of an affidavit.Held that where an item contemplated in rule 25 has not been objected to, rule 25 cannot be employed to review the allocator or an item therein.Held that rule 25 is silent on whether there must be a court order in place awarding costs to a party before a bill can be taxed.Held that the Taxing Master was correct in taxing the bill of the respondent as the respondent incurred costs in the appeal, notwithstanding the absence of a costs order in favour of the respondent. Case on point is Thorne v Retail Inquiry Bureau Ltd and Another 1936 TPD wherein it was held that the Supreme Court has jurisdiction to review the taxation of a party and party bill of costs, although the taxation has not been pursuant to an order of court as to costs. The only items in the bill of costs frowned upon was the inclusion and taxing of costs in opposition incurred in connection with the taxation of the bill of costs. That is a function of the trial court to decide whether or not such costs should be included in the judicial costs and be incorporated in the party and party costs. Mouton and Another v Martine 1982 (4) SA 280D+CLD. The usurpation of the function of the court by the Taxing Master condoned and the costs which are only N$345 allowed.Held that litigants are discouraged from filing appeals at this court and not prosecuting the same to finality, particularly those filed with the sole purpose to delay execution of the judgment. There being nothing to review, the review application is dismissed and no order as to costs. Somaeb v Standard Bank Namibia Ltd (SA 32-2018) [2019] NASC (29 November 2019)TRUSTSLegality and enforceability of agreement - sole trustee and only beneficiary: The appellants are the trustees of a trust known as Eldo Trust (the trust). In their capacities as such and after the respondent had failed to enter an appearance to defend the action brought against him, moved an application for judgment by default in the High Court. The appellants claimed from the respondent payment of certain amounts owing as a result of a written agreement entered into between the parties. The appellants also prayed for an order declaring that the respondent forfeit all monies already paid to the appellants in fulfilment of the agreement and in addition that the respondent be ejected from the immovable property ‘owned’ by the trust. The parties entered into an agreement in terms of which the respondent would, amongst others, become the sole trustee and only beneficiary of the trust that has as its asset an immovable residential property. The parties agreed that as consideration for becoming the beneficial owner of the property and the sole trustee as well as beneficiary of the trust on ‘the consummation date’, the respondent would pay in instalments an amount of money towards the purchase price of the property. In the meantime, he would pay occupational rental in exchange for undisturbed occupation and possession of the immovable property. On the consummation date, the appellants would resign and appoint the respondent as the sole trustee and sole beneficiary of the trust. The High Court raised concerns over the net effect of the agreement. It directed the legal practitioners for the appellants to present argument on the question whether the agreement was valid or lawful and/or enforceable. This the High Court questioned in light of the consideration that the agreement had contemplated the respondent becoming the sole trustee and sole beneficiary of the trust. The appellants, were also directed to deal with two further questions; firstly, whether the agreement concluded by the parties was a simulated transaction devised to avoid the obligation to pay transfer duty or stamp duty on the immovable property and secondly, whether it was not against the good morals of society for the appellants to claim forfeiture of all monies paid by the respondent in fulfilment of the agreement and the outstanding balance as well as his ejectment from the property. After hearing argument, the High Court dismissed the application and declared the agreement null and void and of no force and effect. Before the oral arguments were heard, the appellants abandoned the forfeiture claim as well as the order seeking the ejectment of the respondent from the property and as such, the High Court was not called upon to determine this issue. On the first question, with reference to various decided cases, the court held that the structure contemplated by the agreement negated the whole notion of trusts. The court further held that the agreement was a clear instance where a trust had been debased and abused to achieve the transfer in ownership of immovable property without the consequence attendant upon such a transaction to pay transfer duty. As to the second question, the court held that the contractual scheme entered into by the parties, viewed as a whole, constituted a simulated transaction and thus void ab initio on the basis that it was in fraudem legis of a statute imposing transfer duty on an immovable property. The appellants appealed to the Supreme Court against the order of the High Court declaring the agreement to be null and void and of no force and effect.The Supreme Court held that a situation where the sole trustee would become the sole beneficiary of the trust while not invalidating the trust, creates an undesirable state of affairs as the enjoyment and control of the trust property are not functionally separated. The court went on to state that it was the separation element that served to secure diligence and independence of judgment on the part of the trustee in dealing with the trust property. The court further held that at the hearing of the appeal the trust was properly constituted with the three appellants being the trustees and also some of the beneficiaries. It is only on the ‘consummation date’, being the date upon which the respondent would have complied with all his financial obligations towards the trustees, that the composition would change with the respondent then becoming the sole trustee and beneficiary. It is only at this stage and onwards that what the court has described as an ‘undesirable situation’ would take effect. The court held that the second amendment agreement once executed would not delete the clause in the existing trust deed that makes provision for the appointment of an additional trustee or trustees, to a maximum of five trustees. The court also held that although the statute governing trusts in Namibia does not empower the Master to appoint trustees in the absence of provision in the trust instrument, our courts still have powers to restrict and prevent the abuse of a trust form. Exercising those powers, the court directed the respondent to appoint an independent trustee to close the gap of what could result in an undesirable situation. The court restated the principles applicable to the test for a simulated transaction. It stated that the applicable test required a consideration of whether the parties intended the agreement to have the legal effect apparent from its terms. It was held that the payment of the consideration was not only in exchange for appointment as the sole trustee and sole beneficiary of the trust, but also for the purpose of ‘the new beneficiary to have occupation, use and enjoyment of the immovable property’. The parties’ intention was evidently to structure the transaction in such a way that payment of transfer duty on the sale and transfer of immovable property is avoided, which is a legitimate arrangement that the law currently allows. The court further held that there was no evidence that the agreement was not what it purported to be. There was no suggestion of the agreement not being a genuine transaction to transfer beneficial ownership of the residential property to the respondent. The appeal succeeded and the order of the Court below was set aside. Ellis v Noabeb (SA 28-2014) [2019] NASC (4 July 2019) ................
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