2020 June-July Term Roll with Case Summaries



SET DOWN DATEACRONYMCASE NOYEARCASE NAME COURT A QUOJUDGE 1JUDGE 2JUDGE 315-Jun-20SA512018GARISEB: JIM v ULTIMATE SAFARIS (PTY) LTDUSIKU J DAMASEB DCJMAINGA JA ANGULA AJA19-Jun-20SA342018GOVERNMENT OF THE REPUBLIC OF NAMIBIA v NAMIBIA NATIONAL TEACHERS UNION & 2 OTHERSANGULA DJPMAINGA JA SMUTS JA HOFF JA23-Jun-20SA682018KHARISEB: GODFRIED v MINISTRY OF SAFETY AND SECURITY & OTHERSANGULA DJPMAINGA JA SMUTS JA HOFF JA24-Jun-20SA182019BEUKES: DAVID & 9 OTHERS v KUBITZAUSBOERDERY (PTY) LTDPARKER AJSMUTS JAHOFF JAFRANK AJA26-Jun-20SA44 182019 2020JOSEPH: JOSIA & 2 OTHERS v JOSEPH: MATHEUS and JOSEPH: MATHEUS v JOSEPH: JOSIA & 2 OTHERSUSIKU J DAMASEB DCJMAINGA JA FRANK AJA01-Jul-20SA 52019THE STATE v THAMBAPILAI: ARUMUGAM & 7 OTHERSSIMPSON AJMAINGA JA FRANK AJAANGULA AJA06-Jul-20SA672018NAMIBIAN COMPETITION COMMISSION v PUMA ENERGY (NAMIBIA) (PTY) LTDGEIER JSHIVUTE CJDAMASEB DCJSMUTS JA08-Jul-20SA482018KOUJO: OTNIEL v MINISTER OF MINES & ENERGY & 3 OTHERSPRINSLOO J DAMASEB DCJSMUTS JA FRANK AJA10-Jul-20SA52 532018VXK INVESTMENTS THIRTY (PTY) LTD v NOTTINGHAM INCORPORATED AND ROCKVIEW INVESTMENT NUMBER SEVENTY ONE CC v NOTTINGHAM INCORPORATEDANGULA DJPDAMASEB DCJSMUTS JA FRANK AJA13-Jul-20SA42019PROSECUTOR-GENERAL OF NAMIBIA v NAMHOLO: MARIEN NGOUABI & 2 OTHERSGEIER JDAMASEB DCJMAINGA JAANGULA AJA15-Jul-20???RESERVED FOR POSTPONED CASES / REQUESTS FOR EXPIDITED HEARING DATES ????CASE INFORMATION:CASE NO.: SA 51/2018CASE PARTICULARS: JIM GARISEB v ULTIMATE SAFARIS (PTY) LTDCASE SUMMARYIssues:Whether the court a quo erred in law or on facts by finding that because there was no appearance on the part of counsel of the appellant, summary judgment proceedings should commence in terms of rule 68(b) of the High Court Rules?Whether the court a quo misdirected itself, alternatively erred in law or on the facts in finding that the appellant failed to disclose a bona fide defence or a triable issue?Whether the court a quo misdirected itself, alternatively erred in law or on the facts in finding that the application for summary judgment by the respondent met the requirements of rule 60 (2) (a) and (b) of the High Court Rules?Whether the court a quo misdirected itself, alternatively erred in law or on the facts by finding that the appellant drove the vehicle without the owner’s consent, because he failed to specify the identity of the person who gave the appellant consent, and that he failed to specify the nature of the duties he was performing at the material time?Whether the court a quo erred in law or on the facts in finding that there was no basis upon which the application for summary judgment can be refused?Facts:Appellant appeals against the court a quo’s order granting summary judgment in favour of the respondent for payment in the amount of N$ 171?186.44, 44, payment in the amount of U$ 5,436.26 or the Namibia Dollar equivalent, interest at the rate of 20% on the above amounts plus costs of suit.The fact of this case are that on the 03 January 2018 the appellant (an employee of the respondent) drove a motor vehicle, a Toyota Land Cruiser with registration No. N99765 W, the property of the respondent without respondent’s consent. While driving such motor vehicle, he veered off the gravel road, and the vehicle collided through bushes, flipped on its side and sustained damage.In his answering affidavit to the summary judgment application, the appellant stated that he drove the vehicle in question with the consent of the respondent and drove it within the scope of his employment. He claimed that the vehicle veered off the road into the bushes in order to avoid hitting an impala that suddenly ran into the road.Appellant, in person or represented by counsel, failed to appear when the matter was called on the date of the summary judgment hearing. The court a quo allowed the respondent to move its application in terms of Rule 68(b).The court found that respondent made out a case in terms of rule 60(2)(a) and (b) for the summary judgment application to succeed due to appellant’s failure to show that he has a bona fide defence or a triable issue. In his answering affidavit, the court a quo ruled that appellant does not specify the identity of the person who gave him consent to drive the vehicle on the day in question. He further does not specify the nature of the duties he was performing at the instance pf the respondent when the accident occurred. He does not dispute that damage was occasioned to the motor vehicle, nor does he dispute the quantum of such damage. Appellant, the court a quo found, was required to raise a defence in terms of rule 60(5) (b) which should have disclosed fully the nature, the grounds and the material facts upon which he relied on such defence. To merely allege that he had been given consent to drive the vehicle, without specifying the identity of the individual who gave him the consent; and that he was performing his duties, without specifying the nature of the duties he was executing; or that he veered off the road to avoid hitting an impala does not constitute a bona fide defence or a triable issue.The court a quo granted summary judgment on the orders prayed for. Appellant is appealing against the court a quo’s entire judgment.Judgment sought to be appealed.Ultimate Safaris (Pty) Ltd v Gariseb (HC-MD-CIV-ACT-DEL- 2018/00941) [2018] NAHCMD 281 (07 September 2018)Parties’ counsel:Appellant(s):Muluti & PartnersRespondent(s):Kopplinger BoltmanCoram:Damaseb DCJ, Mainga JA and Angula AJAHearing date15 June 2020LocationB-Court CASE INFORMATION:CASE NO.: SA 34/2018CASE PARTICULARS: GOVERNMENT OF THE REPUBLIC OF NAMIBIA v NAMIBIA NATIONAL TEACHERS UNION AND TWO OTHERSCASE SUMMARYIssues:Whether the Labour Court erred in finding that the 2012 agreement imposed an obligation on the government with regard to qualifying teachers, which is additional to its obligations under the 2009 agreement?Whether Labour Court erred in finding that the 2012 agreement imposed an obligation on the government, with regard to qualifying teachers which is different from its obligations under the 2009 agreement?Whether the Labour Court erred in failing to find that:The 2009 agreement was incorporated in and/or was suspended by and/or lapsed by virtue of the 2012 agreement, having regard to the context of those agreements, including the apparent purpose to which the agreement are directed; the parties to the agreements; the obligations the agreements imposed; and the rights which the agreements created?It was not the intention of the parties to the 2012 agreement to create and additional benefit for qualifying teachers, which would in effect double the benefits and rights which they enjoyed under the 2009 agreement?Whether the Labour Court erred in finding that the purposes of the two agreements were different?Whether the Labour Court erred in failing to find that both agreements created an allowance which was to serve as an incentive for the recruitment and retention of teachers in remote or rural areas?Whether the Labour Court erred in failing to have due regard to the fact that the rights of qualifying teachers and the obligations of the government under the two agreements were the same?Whether the Labour Court erred in finding that the 2009 agreement (memorandum of understanding) read with the collective agreement of 23 January 2010, on which the first respondent sued, created any right to the payment of an allowance or an incentive?Whether the Labour Court erred by upholding the appeal before it?Facts:The Namibia National Teachers Union (NANTU) (first respondent) filed an appeal against an arbitrator’s award in the Labour Court. The arbitrator dismissed the first respondent’s claim for incentive payments based on the arbitrator’s interpretation of two collective agreements concluded between NANTU and the government of the Republic of Namibia, the appellant, on 23 January 2009 and 8 November 2012 respectively. The resolution of the dispute between the parties was dependent on the interpretation of the two written agreements entered into between the parties.The issues that the court was called upon to determine were whether the qualified teachers’ incentive became a term and condition of the qualified teachers’ employment agreement; and whether the terms which became part of the qualified teachers condition of employment were capable of being varied unilaterally through the introduction of the remoteness allowance with the 2012 agreement. If not, the question was, whether the incentive lapsed. If the incentive did not lapse, the further question was whether the government must be ordered to pay the qualified teachers incentive from 1 April 2015 to the date of determination of the question that is to say to the date of judgment.The court a quo held that in an action based on a contract, the rule of interpretation is to establish not what the parties’ intention was, but what the language used in the contract means i.e. what was their intention as expressed in the contract. Moreover, the only way in which a change in the contract of employment between the parties could be effected lawfully was by way of negotiation and mutual agreement.The court a quo held that the rationale in respect of each benefit of the two agreements concluded by the parties was different and the two benefits were separate and distinct from each other. Similarly the designation of the two benefits, clearly e.g. ‘incentives’ and ‘remoteness allowance’ indicates the differences.The court a quo further held that the 2009 agreement was not amended or replaced by the 2012 agreement. Nowhere did the 2012 agreement purport to replace or amend the terms and incentives accorded to the qualified teachers by the 2009 agreement. The court found that there was no reference made to the 2009 agreement in the 2012 agreement. In the absence of a clause in the 2012 agreement purporting to amend or replace the 2009 agreement, the court found that there can be no basis for contending that the 2009 agreement was amended or replaced by the 2012 agreement. As a result the qualified teachers’ incentives did not lapse with nor were they amended by nor were they incorporated or harmonised into the 2012 agreement.In conclusion the court a quo therefore found in favour of the first respondent in that the qualified teachers’ incentives were still valid and due to such teachers. The appellant is appealing against the court a quo’s entire judgment.Judgment sought to be appealed.Namibia National Teachers Union v Government of the Republic of Namibia (LCA 35/2017) [2018] NALCMD 2 (21 February 2018)Parties’ counsel:Appellant(s):Government AttorneyRespondent(s):Metcalfe AttorneysCoram:Mainga JA, Smuts JA and Hoff JAHearing date19 June 2020LocationB-Court CASE INFORMATION:CASE NO.: SA 68/2018CASE PARTICULARS: GODFRIED KHARISEB v MINISTRY OF SAFETY AND SECURITY AND TWO OTHERSCASE SUMMARYIssues:Whether the court a quo erred in law or on facts in upholding the respondents’ point in limine of prescription in terms of section 39(1) of the Police Act.Facts:The appellant is a police officer who held the rank of Deputy-Commissioner prior to his dismissal from the police force. On the 3 March 2016, the appellant received a letter from the second respondent informing him that he has been discharged on account of misconduct with effect from 18 January 2016. The reason for the appellant’s discharge was that he absented himself from duty without the permission of the second respondent during the period 18 January – 3 March 2016. The appellant then wrote a letter to the second respondent requesting the latter to reinstate him. The second respondent declined the appellant’s request. Subsequent thereto and on 25 April 2016, the appellant lodged an appeal to the first respondent against the second respondent’s refusal to reinstate him. The appeal was however dismissed by the first respondent on 5 December 2016. Aggrieved, the appellant instituted an action in the court a quo on 5 December 2017.The appellant challenges his dismissal on the grounds of it being unfair, in that he was dismissed without a valid reason and without following fair procedure. The respondents defend their action by relying on section 9 of the Police Act 19 of 1990, which allows a dismissal of a member who is absent from his/her official duties without permission for a continuous period exceeding 30 days. Further, the respondents raised two points in limine. Firstly, they argue that the appellant failed to comply with section 39 of the Act which requires any civil proceeding against the State or any person in respect of anything done in pursuance of the Act to be instituted within 12 months after the cause of action arose. Also, the appellant failed to give the respondents notice in writing not less than one month before the proceedings were instituted. The appellant responded to this point by informing the respondent that he was obliged to firstly exhaust all internal remedies envisaged by the law before instituting proceedings in the court a quo. He therefore contends that the cause of action arose on 5 December 2016 when his appeal was refused by the first respondent and he instituted the proceedings in the court a quo on 5 December 2017 within the 12 months as contemplated by law. The court a quo held that the appellant’s cause of action arose, at worst, on 3 March 2016 and at best, 4 April 2016. Further, the issue of exhausting internal remedies before approaching a court of law was discussed in the case of Namibian Competition Commission and Another v Wal-Mart Stores Incorporated (SA 41/2011) NASC (11 November 2011) at para 45 where the court held that unless a specific statute provides that an applicant exhaust the internal remedies before approaching a court, it is not a pre-requisite. Further, the court a quo noted that the circumstances in the present matter are different. The appellant was not dismissed by the second respondent but rather was discharged by operation of law. There therefore can be no internal remedies open to the appellant and he should have approached the court a quo within 12 months after 3 March 2016 or alternatively 4 April 2016. Even if the court a quo was wrong in its conclusion, it noted that he could have applied to the Minister in terms of section 39 of the Act to have the 12 month period waived in order for him to have exhausted all internal remedies first before approaching the court. The court a quo therefore upheld the point in limine of prescription and dismissed the application by the appellant.Appellant is now appealing against the court a quo’s entire judgment. Before this court can consider the appellant’s appeal, it must first consider the appellant’s condonation application for the late filing of security of costs and the record.Judgment sought to be appealed.Khariseb v Ministry of Safety and Security (HC-MD-CIV-MOT-GEN-2017/00440) [2018] NAHCMD 355 (7 November 2018)Parties’ counsel:Appellant:PD Theron & AssociatesRespondents:Government Attorney (1st respondent)Coram:Mainga JA, Smuts JA and Hoff JAHearing date23 June 2020LocationB-Court CASE INFORMATION:CASE NO.: SA 18/2019CASE PARTICULARS: DAVID BEUKES AND NINE OTHERS v KUBITZAUSBOERDERY (PTY) LTDCASE SUMMARYIssues:Whether the court a quo erred in law or on facts that:The matter was not urgent or that urgency was self-created;The applicants failed to prove that they did not enjoy peaceful and undisturbed access through the respondent’s farm before they were illicitly deprived of such access.Facts:On 20 December 2018, the court a quo granted temporary relief in the form of a rule nisi to restore the appellants’ access to their place of residence being the remainder of Farm Areb North No. 202, Rehoboth, through the respondent’s farm being Farm 909, Extent 5370 situated in the Registration Division ‘M’, Rehoboth. The application was brought ex parte and was heard on an urgent basis.On the extended return date of the rule nisi, the respondent’s counsel argued that the matter was not urgent. Replying hereto, counsel for the appellants’ quoted the case of Oceans 102 Investment CC v Strauss Group Construction CC (A 119/2016) [2016] NAHCMD 139 (10 May 2016), which states that generally an application for spoliation by its very nature is urgent. On this point the court a quo highlighted certain facts in support of its decision to discharge the rule. The respondent has not been locking out the appellants only since November 2018, but as early as May and August 2018. The appellants failed to approach the court on these two occasions or soon thereafter. As such, the court a quo founded that urgency was self-created (Bergmann v Commercial Bank of Namibia Ltd) and the matter should not have been heard on an urgent basis nor on an ex parte basis. Further, the court a quo noted that the rule could have not been confirmed in any event as the appellants have failed to fulfil the requirements necessary to obtain a spoliation order as set out in Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia 2016 (2) NR 547 (HC), that is that the appellants should prove that they have been in ‘peaceful and undisturbed possession’ of a thing before they were illicitly deprived of such possession.Aggrieved by the court a quo’s judgment, the appellants’ have appealed to this court on 21 May 2019 against the entire judgment and order handed down by the court a quo on 17 April 2019. The appellants have filed an application asking this court to condone their failure to comply with Rule 8(2)(b) of the Supreme Court Rules, that is failure to file special powers of attorney for the 3rd, 4th, 5th, 8th, and 9th appellants and for reinstatement of the appeal. The respondent has opposed same.Judgment sought to be appealed.Beukes v Kubitzausboerdery (Pty) Ltd (HC-MD-CIV-MOT-EXP-2018/00461) [2019] NAHCMD 110 (17 April 2019)Parties’ counsel:Appellants:Nixon Marcus Public Law OfficeRespondent:Conradie & Damaseb Legal PractitionersCoram:Smuts JA, Hoff JA and Frank AJAHearing date24 June 2020LocationB-Court CASE INFORMATION:CASE NOS.:SA 44/2019 & SA 18/2020CASE PARTICULARS: JOSIA JOSEPH AND TWO OTHERS v MATHEUS JOSEPHCASE SUMMARYIssues:Whether the court a quo erred in law or on the facts in finding that the defendants are not entitled to, in law, claim compensation from the plaintiff, thereby dismissing the defendants counterclaim.Whether the court a quo erred in law or on the facts when it ordered that the defendants, jointly and severally, pay plaintiff’s costs occasioned by plaintiff’s special plea.Facts:In 2018, the plaintiff (respondent) instituted action against the defendants (appellants) for their eviction on a specific piece of communal land, situated in the Onambome village, Ombadja area, in the Omusati region. The plaintiff claimed that he held the customary land rights to the land in question and that the defendants were in unlawful occupation and possession of the land. Despite numerous demands from the plaintiff to vacate the land, the defendants failed and/or refused which led to the action against them in the court a quo. Defendants launched a counterclaim in the action where they alleged that they had during the period of 2014 to 2018 collectively effected improvements on the land and that they are therefore entitled to retain possession of the parts of the property until such a time that the plaintiff has paid them out in full. The plaintiff used the Communal Land Reform Act 5 of 2002 (the Act) as his shield and argued that the mandate of the Chief, Traditional Authority or the land board to institute legal action for eviction only applies to land in respect of which no rights are held in terms of section 28(1) and 35(1) respectively, he contended that where customary land rights are held by someone, such holder may evict anyone who unlawfully occupies the said land. The plaintiff further contended that the defendants counterclaim was not permissible in terms of section 40 of the Act as ownership vests in the State, therefore, compensation cannot as a matter of law, lie against the plaintiff. The defendants on the other hand contended that the land in question is communal land as defined in the Act, the right that the plaintiff relied on and which was sought against the defendants did not confer on the plaintiff a right to seek the eviction of the defendants, therefore the plaintiff did not have the requisite locus standi to institute legal action against the defendants. The court was left with the responsibility of deciding two main issues:The issue of locus standi, and The issue of the special defence against the counterclaim amounting to a special plea.In relation to the special defence, the defendants argued that the plaintiff did not raise a special plea and only filed a plea on the merits of the counterclaim and raised a point in law addressing the merits of the counterclaim. The defendants further argued that section 40(1) of the Act did not preclude a claim for compensation for improvements against a holder of the customary land right and therefore they are entitled to compensation from the plaintiff for the improvements made on the property. The court a quo after considering certain sections from the Act, specifically section 19, 43(1) and 43(2) came to a finding that any person who occupies any communal land in contravention of section 43(1) occupies such land unlawfully and is liable for eviction. However, the capacity of the holder as set out in section 43(1) is at ‘best limited and at worst non-existent.’ Therefore, the holder of a customary land right (which plaintiff contended to have) has no right to institute the legal action for the eviction of any person who occupies ‘any’ communal land over which he holds such rights. The litigation process must thus be instituted on behalf of such holder by the Chief, the Traditional Authority or the board concerned who would act as functionary of the holder of the right concerned. If the responsible party refuses to litigate, the remedy that would be available to the plaintiff would be to appeal such decision in terms of section 39 of the Act. The second issue the court a quo had to deal with was whether the special defence raised in the plaintiff’s plea against the defendants’ counterclaim amounted to a special plea. The court after considering the essence of a special plea found that the special defence raised indeed amounted to a special plea. After finding that plaintiff’s special defence amounted to a special, the court proceeded to make a ruling on the counterclaim instituted by the defendants for N$ 800?000 for the improvements on the land - after considering section 40 and other related provisions of the Act, the court found that, the said section(s) did not grant the defendants any right to claim compensation for improvements effected on the land. In conclusion, the court a quo held that the special plea raised by the plaintiff against the defendants’ counterclaim had merits and was therefore upheld. The court, based on its findings and after upholding the special plea in respect of locus standi and the right to no compensation in respect of the improvements, ordered that:The defendants’ special plea of locus standi be upheld and plaintiffs claim on the eviction be dismissed;Plaintiff pay defendants’ costs occasioned by the special plea of locus standi;The nature of the special defence raised in plaintiff’s plea to defendants’ counterclaim amounts to a special plea;Plaintiffs special plea to defendants counterclaim to the effect the defendants are not entitled in law to claim compensation from the plaintiff claim compensation from plaintiff is upheld and defendants counterclaim is dismissed;Defendants are directed to pay costs of the plaintiff jointly and severally, occasioned by the plaintiff’s special plea. Appellant is appealing against the court a quo’s order including the costs order. Order sought to be appealed.Joseph v Joseph and others (HC-MD-CIV-ACT-OTH-2018/03288) [2019] NAHCMD (18 July 2019)Parties’ counsel:Appellants:Fisher, Quarmby & PfeiferRespondent:Sisa Namandje & CoCoram:Damaseb DCJ, Mainga JA and Frank AJAHearing date26 June 2020LocationB-CourtCASE INFORMATION:CASE NO.: SA 5/2019CASE PARTICULARS: THE STATE v ARUMUGAM THAMBAPILAI AND OTHERSCASE SUMMARYIssues:Whether the court a quo erred in law or on the facts by:Misconstruing and/or failing to appreciate, consider and apply its mind to the correct legal principles applicable and relevant to the determination of whether on the available evidence led by the State/appellant, the guilt of each respondent/accused had been proven beyond a reasonable doubt on the charges of fraud and theft;Failing to apply its mind to the circumstances of the case and consider the evidence which was led by the State/appellant which clearly proved a consistent and persistent modus operandi particularly by the first respondent and to find that all the respondents actively participated individually, and/or collectively and/or acted in common purpose with others in the commission of the offences for which they were arraigned;Selectively considering the evidence led by the appellant and thereby failing to appreciate the cumulative effect of all the evidence that was led by the appellant herein;Acquitting the respondents on all counts of fraud and alternative charges;Failing to appreciate the totality of the evidence which established that the conduct of the first respondent was inconsistent with the accepted expectations of his profession which demands complete honesty, reliability and integrity;Whether the court a quo failed to analyse all the evidence which was led during the trial?Facts:The respondents in this appeal were charged with 16 counts of fraud and with the alternative charge of theft. Initially, 13 accused were charged. Accused 3, 6 and 7 died during the course of the trial. Accused 9 has been at large since the beginning of the trial. The State stopped prosecution against accused 10, 11, 12 and 13.An ex tempore judgment was delivered on 9 December 2015 concerning accused 1, 2, 4, 5 and 8.Accused 1 was separately and or jointly charged with the other accused persons acting in common purpose with the intention to defraud the Motor Vehicle Accident Fund (the MVA Fund). The facts and people involved in this case were vast and the State presented all the evidence at its disposal in court. At the close of its case, the court a quo considered the evidence adduced by the State, the court a quo found that all the counts against the accused, the State had failed to produce evidence that could prove that first respondent (accused 1) was in cahoots, connived, had any knowledge of false information or documentations presented to the MVA Fund for false claims with other accused/respondents with the intention to defraud the MVA Fund.The court further found that the State had the opportunity to call certain individuals who it was claimed acted as interpreters for first respondent/accused 1 and the rest of the respondents/accused, but failed to do so. As a consequence, the court found that the State failed to prove their case beyond a reasonable doubt, found the respondents not guilty and acquitted all them.This appeal is against the whole ex tempore judgment of the court a quo.Judgment sought to be appealed.The State v Thambapilai: Arumugam and others CC 36/2008 ex tempore judgment delivered on 9 December 2015Parties’ counsel:Appellants:Office of the Prosecutor-GeneralRespondent(s):1st & 8th Respondents: Shikongo Law Chambers2nd & 5th Respondents: Amupanda Kamanja Incorporated4th Respondent: Siyomunji and PartnersCoram:Mainga JA, Frank AJA and Angula AJAHearing date1 July 2020LocationB-Court CASE INFORMATIONCASE NO: SA 67/2018CASE PARTICULARS: NAMIBIAN COMPETITION COMMISSION v PUMA ENERGY (NAMIBIA) (PTY) LTDCASE SUMMARYIssues:Whether the court a quo erred in law or on facts:When it set aside the search warrant issued against the respondent on the basis that the appellant’s Acting Secretary lacked authority to apply for such a warrant because:Sections 33 and 34 of the Competition Act 2 of 2003 distinguish between the Commission’s general investigative powers and the power to apply for a search warrant, which is only conferred upon an inspector andThe Commission cannot delegate powers which are not conferred upon it.FactsThe Namibian Competition Commission is tasked with investigating contraventions of the Competition Act 2 of 2003. The Commission received a complaint that Puma was overcharging for its air fuel at Eros and Ondangwa airports. The Commission applied for and obtained a search warrant under section 34 of the Act on 14 September 2016 to seize Puma’s financial records, pricing strategies, supply contracts and other business documents as part of its ongoing investigation. The Commission argued in the high court that Puma was unlikely to volunteer such information and that it could not be obtained from any other source. Puma challenged the warrant. Puma applied for a rehearing of the ex parte and in camera application, “proceed[ing] from the premise that the application for a warrant is still open for opposition and determination.”In summary, the court a quo found that section 34 of the Act does not confer upon the Commission any powers to execute a warrant. The court accepted Puma’s arguments that the legislature distinguished between the Commission’s powers under other sections of the Act - namely sections 33 and 16(1)(f) - and the warrant power under section 34, which is limited to a specific person, an inspector. The Commission argued that its secretary had implied powers delegated to it. However, the court a quo rejected this argument because the Commission could not delegate powers which the Act did not confer upon it. The court a quo further found that the search had not been completed because not all material seized from the search had been examined, which led to the question of whether the warrant had been discharged. It held that as the original warrant had been granted in camera, it was “provisional” and subject to reconsideration. In terms of remedies, the court a quo found that the result of both Puma’s ex parte application and counter application would be the same, namely, that all seized materials must be returned to Puma. The court a quo found it significant that the High Court, in granting the warrant, modified the Commission’s requested terms to require the following conditions: the warrant and proof of the inspectors’ authority must be presented to the person in charge of the searched premises; electronic data seized must be stored with the Registrar; and the Commission is allowed to run an audit trail. Further, the court a quo emphasized that Puma was legally represented during the searched and easily acquiesced when the warrant was executed. Appellants are appealing against the court a quo’s entire judgment, including the cost order. Judgment sought to be appealed.The Namibian Competition Commission v Puma Energy (Namibia) (Pty) Ltd (HC-MD-CIV-MOT-EXP-2016/00275) [2018] NAHCMD 356 (08 November 2018) Parties’ Counsel:Appellant:Dr Weder, Kauta & Hoveka Inc.Respondent:Engling, Stritter & Partners Coram:Shivute CJ, Damaseb DCJ and Smuts JAHearing Date6 July 2020LocationB-courtCASE INFORMATION:CASE NO.:SA 48/2018CASE PARTICULARS: OTNIEL KOUJO vMINISTER OF MINES AND ENERGY AND 3 OTHERSCASE SUMMARYIssues:Whether the court a quo erred in law or on facts:When it accepted the explanatory affidavit of Erastus Shivolo without a proper condonation application for the late filing thereof;When it accepted the second respondent’s expert evidence that the appellant’s mining claims overlap with that of the third respondent;When it held that a contravention of section 125 of the Minerals Act leads to an invalidation of the granting of mining claims in respect of an application received after another one.Facts:The appellant applied for mining claims 70056 and 70057 on the 21 October 2016 which were approved on the 7 February 2017 and registered in terms of section 36(1)(a) and (c) of the Minerals (Prospecting and Mining) Act, Act 33 of 1992 (the Act). On the 31 August 2017, the first respondent under section 44 of the Act gave notice to the appellant of his intention to cancel the appellant’s mining claims as the first respondent alleged that the appellant’s mining claims overlap with mining claim 69778, which is registered to the third respondent. Before a final decision was taken, the appellant was invited to make representations to the first respondent against the intended cancellation of his mining claims, which invitation he accepted. However, on 9 November 2017 the appellant received a notice of cancellation of the said mining claims from the first respondent on the basis that his mining claims overlap with that of the third respondent. Aggrieved by this decision, the appellant approached the High Court to review and set aside the decision of the first respondent and to further declare that the first respondent’s decision to cancel the mining claims were invalid and having no effect in law. The first and second respondents did not oppose the application, only the third and fourth respondents did. The third and fourth respondents similarly lodged a counter application. The applications were argued on 18 May 2018 and the order given on the 17 August 2018.The court held that the Mining Commissioner operates under the direction and control of the Minister and part of the functions of the Mining Commissioner need not exclusively be performed by the Mining Commissioner and can be delegated to other officers as may be designated by the Permanent Secretary. Furthermore, section 55 of the Act outlines the procedure to be followed in cancellations of mineral licenses which applies mutatis mutandis to section 44 which deals with cancellation of mining claims, the only difference is in the former section the Minister is used whereas in the latter section the Mining Commissioner is used. Accordingly, the court held that the legislature no doubt for good reason conferred certain limited powers to the Mining Commissioner, which are apparently to the exclusion of the Minister. The legislature therefore made a clear distinction between the granting of a claim and the granting of a license. The powers relating to non-exclusive prospecting licenses and the application and registration of mining claims is vested in the Mining Commissioner; whereas the powers relating to the granting of mineral licenses, which includes a reconnaissance license, exclusive prospecting license, a mining license or a mineral deposit retention license is vested in the Minister. As a result, the Minister has the power to make the decision with far reaching consequences whereas the decision of the Mining Commissioner has less impact. Any aggrieved person regarding a decision taken or made by the Mining Commissioner in terms of the Act has a general right of appeal to the Minister to confirm, set aside or amend any such action or decision. The Mining Commissioner, in terms of Part VI and Part VII of the Act, is the repository of the power in respect of an application, registration and cancellation of mining claims and not the Minister. With regards to the counter application, the court held that section 125 states that all applications received in the office of the Commissioner shall be considered by the Minister or the Commissioner, as the case may be, in the same order as such application have been so made and received. The only exception to this is if more than one application is received on the same date, then such applications will be deemed to have been received simultaneously. The court held that it would practically not make sense to have two mining claims registered over the same area of land even though the mining claims are in respect of different minerals, namely semi-precious stones and rare metals. Accordingly, the court held that the application received first should be considered first and in this instance it was the application of the third respondent.Appellant is appealing against the court a quo’s entire judgment, including the cost order.Judgment sought to be appealed.Koujo v Minister of Mines and Energy (HC-MD-CIV-MOT-REV-2017/00411) NAHCMD 260 (17 August 2018)Parties’ counsel:Appellant(s):Sisa Namandje & Co. Inc.Respondent(s):Koep & PartnersCoram:Damaseb DCJ, Smuts JA and Frank AJAHearing date8 July 2020LocationB-Court CASE INFORMATION:CASE NO.: SA 52/2018CASE PARTICULARS: VXK INVESTMENT THIRTY (PTY) LTD v NOTTINGHAM INCORPORATIONCASE SUMMARYIssues:Whether the court a quo erred in law or on facts in finding that the respondents (applicants) made out a case for the winding up of the appellant.Facts:The applicant (respondent), an American registered corporation under receivership, brought an application to wind up the respondent (appellant), based on its inability to pay its debts, which appellant denied and advanced defences as to why it should not be wound up.On or about 14 February 2011, the parties concluded a sale of shares and claims agreement. In terms of the agreement the respondent sold to the appellant its shares and claims including its trademarks for a total purchase price of US$4.5 million. It was agreed that a sum of US$2 million would be paid in cash and that the balance of US$2.5 million would be paid in kind in the form of the delivery of granite stone by the appellant to the respondent. The appellant paid the first instalment of US$1.5 million and a second instalment of US$62 500; appellant also procured the delivery of granite stone worth US$65 865 to the respondent. However, failed to pay the balance of US$437 500 despite demand from the respondent. Further that, appellant also failed to deliver the granite materials to the value of US$2.4 to the respondent. Due to the appellants default to comply with its obligations in terms of the agreement, the respondent instituted arbitration proceedings against the appellant in where it asked for specific performance in terms of the sale of shares agreement. The arbitration proceedings were held in the Republic of South Africa. At the end of the proceedings, the arbitrator made an award in favour of the respondent. The Award was, on application by the respondent, made an order of court by the Gauteng Local Division of the High Court of South Africa. Whereafter, respondent applied to the court a quo for the Award to be made an order of court which was granted on the 31st of July 2015.As a ground for the winding-up, the respondent alleged that the appellant was unable to pay its debts and therefore is insolvent. The allegation was further based on draft annual financial statements and management accounts dated 30 June 2014 and 20 June 2015 respectively submitted to the respondent by the appellant following a formal letter of demand addressed to it to settle the judgment debt. The appellant raised a number of technical defences against the application for its winding up. First, that the partner of the law firm, which was appointed by the court, as the Receiver for the respondent, had not been properly authorised to bring the application for winding-up. Second, the receiver law firm does not have locus standi to initiate winding up proceedings against it. Third, the letter of demand delivered to it did not comply with the provisions of section 350 of the Companies Act, 2004 in that it failed to state the prescribed amount as required by the Act. Fourth, the supporting affidavit filed had not been properly authenticated as required by rule 128 of the Rules of the court. Fifth, the sales of shares agreement attached to the founding affidavit had not been stamped as required by the Stamp Duties Act, 1993 and therefore the applicant is not entitled to produce it in evidence.With regards to the merits, appellant alleged that in terms of the sales of share agreement, the agreement was that, it would pay the balance of the purchase price of US$2.5 million by delivering granite material to the respondent. However, respondent was in turn obliged to place orders for the granite and to arrange with the shippers and pay for the shipment of the granite tendered for delivery. It however, failed to place orders for the granite and to pay the shippers. As a result of the respondent’s breach of the term of the agreement, the appellant alleged that it was unable to comply with its obligations in terms of the agreement.With regards to the technical points alleged and pursued at hearing by the appellant, the court found that: firstly, the respondents submitted a resolution in compliance with the principle. Secondly, upon proper reading of first court order of the State of Georgia, it is clear that it authorised the Receiver to engage legal counsel. The consequence of the company having been placed under receivership is that from the moment the court order was issued, the respondents board of directors, management and officers of the respondent were divested of all powers and placed in the hands of the Receiver; and that henceforth the Receiver was vested with the power to make decisions on behalf of the Nottingham, subject to the provisions of the court’s order and/or directions by the court.The court found that the respondents claim had not been successfully disputed on reasonable grounds and or on bona fide grounds and the appellants grounds for defence are neither reasonable nor bona fide. In the result, the court a quo ordered that:(a) The respondents to be placed under a final liquidation order and placed in the hands of the Masters of Court; (b) the Master to exercise her power to appoint liquidators; and (c) the costs of the application be costs in the liquidation. Appellant is appealing against the court a quo’s judgment including the costs order.Judgment sought to be appealed.Nottingham Incorporated v Rockview Investment Number Seventy (Pty) Ltd and VXK Investments Thirty (Pty) Ltd (A 16/2016 and A 17/2016) [2018] NAHCMD 278 (28 August 2018)Parties’ counsel:Appellant(s):Fisher Quarmby & PfeiferRespondent(s):Erasmus & AssociatesCoram:Damaseb DCJ, Smuts JA and Frank AJAHearing date10 July 2020LocationB-Court CASE INFORMATION:CASE NO.: SA 53/2018CASE PARTICULARS: ROCKVIEW INVESTMENT NUMBER SEVENTY ONE CC v NOTTINGHAM INCORPORATIONCASE SUMMARYIssues:Whether the court a quo erred in law or on facts:When it held that the respondent had locus standi to bring the application for winding-up of the appellant;When it held that the deponent to the founding affidavit of the respondent was authorized to do so;When it held that the founding affidavit was properly authenticated;When it held that the offer of settlement to pay off the debt by the appellant was not protected by the ‘without prejudice’ rule;When it held that the suretyship agreement constitutes a new cause of action and that the surety is liable even if the original debt on which the judgment was obtained had prescribed;When it held that the respondent had made out a case in which the appellant was unable to pay its debts and must therefore be wound-up into the hands of the Master of the court.Facts:On or about 14 February 2011, the respondent, an American registered corporation under receivership, and VXK Investments concluded a sale of shares and claims agreement. In terms of the agreement, VXK Investments would purchase the respondent’s shares and claims for US$4?500?000, of which US$2?000?000 would be paid in cash and the remaining US$2?500?000 would be paid in kind in the form of the delivery of granite stone by VXK Investments to the respondent. The appellant entered into a suretyship agreement with the respondent, whereby they bound themselves as co-debtors to VXK Investments in the amount of US$2?500?000. VXK Investments paid two instalments made up of US$1?500?000 and US$62?500 and delivered granite stone worth US$65?865 to the respondent. There was still an outstanding balance of US$437?000 despite demand. Due to VXK Investment’s default to comply with its obligations, the respondent instituted arbitration proceedings against VXK Investments. At the end of the proceedings, the arbitrator made an award in favour of the respondent and such an award was made an order of court by the Gauteng Local Division of the High Court in South Africa. Thereafter, the respondent had the award made an order of the High Court of Namibia on 31 July 2015. VXK Investments offered to pay off the debt by means of instalments, however such offer was rejected by the respondent. The respondent contends that the offer by VXK Investments constitutes an admission of its inability to pay its debts.Due to the fact that VXK Investments were unable to meet their obligations, the respondent sent the appellant a letter of demand based on the written suretyship agreement. In response hereto, the appellant made an offer to settle the debt in instalments, however such offer was also rejected by the respondent. The respondent therefore also alleges that such offer constitutes an admission by the appellant of its inability to pay its debts. The respondent accordingly filed an application in the court a quo for the winding-up of the appellant as well as VXK Investments. The court a quo had to consider various points in limine before it decided the merits of the application. These points included a lack of locus standi, absence of authorization by the deponent to the founding affidavit, the founding affidavit was not properly authenticated and the offer of settlement to pay off the debt was protected by the ‘without prejudice’ rule. The appellant also raised a defence regarding the merits in that the applicant’s cause of action against the principal debtor had prescribed.The court a quo held that on the evidence before it, it was satisfied that the deponent to the respondent’s founding affidavit was duly authorised to bring the proceedings. Further, based on the National Union of Namibian Workers v Naholo 2006 (2) NR 659, the court a quo held that the resolution produced by the director of the respondent ratifies the actions taken by him, therefore he has demonstrated that he was duly authorised to bring the proceedings. On the jurisdiction aspect, the court a quo held that it may exercise jurisdiction over any incola who is either domiciled or resident within its jurisdiction and the court will exercise this power no matter where the cause of action arose or whether the respondent is a peregrinus. With regards to the settlement offer being privileged information the court a quo held that the offers of settlement made by the appellant to the respondent following receipt of letters of demand fall within the exceptions to the privilege from disclosure rule and as a result it constitutes admissible evidence of an act of insolvency. With regards to VXK Investments, the court a quo held that on its own admission VXK Investments is insolvent and the court is therefore satisfied that there is no bona fide defence against the application for its winding-up. Further, with regards to the suretyship agreement, the court a quo agreed with the court in Bulsara v Jordan & Co. Ltd (406/92) [1995] ZASCA 106; 1996 (1) SA 805 (SCA) (21 September 1995), where it held that a judgment obtained against a principal debtor covered by a suretyship agreement constitutes a new cause of action and that the surety is liable even if the original debt on which the judgment was obtained became prescribed. In other words, prescription against the surety commences running independently of the original debt from the date of the judgment. The court a quo accordingly held that the award made an order of court in 2015 constitutes a new cause of action and therefore the respondent’s claim has not prescribed. In conclusion, the court a quo held that the respondent had made out a case that the appellant and VXK Investments were unable to pay its debts and must therefore be wound-up into the hands of the Master of the court.Appellant aggrieved by the order made by the court a quo is now appealing against the court a quo’s entire judgment.Judgment sought to be appealed.Nottingham Incorporated v Rockview Investment Number Seventy (Pty) Ltd and VXK Investments Thirty (Pty) Ltd (A 16/2016 and A 17/2016) [2018] NAHCMD 278 (28 August 2018) Parties’ counsel:Appellant:Fisher, Quamby & PfeiferRespondent:Erasmus & AssociatesCoram:Damaseb DCJ, Smuts JA and Frank AJAHearing date10 July 2020LocationB-CourtCASE INFORMATION:CASE NO.: SA 4/2019CASE PARTICULARS: PROSECUTOR-GENERAL OF NAMIBIA v MARIEN NGOUABI NAMOLOH AND TWO OTHERSCASE SUMMARYIssues:Whether the court a quo erred in law or on facts in holding that (a) the appellant failed to prosecute the first respondent within a reasonable period of time, (b) exceptional circumstances exist justifying the first respondent’s release, and (c) the first respondent’s right under Article 12(1)(a) and (b) were infringed.Facts:The first respondent is a police officer who was arrested on 26 June 2009 and charged together with others for corruption and extortion. One week after his arrest, the first respondent was released on bail until at least August 2014. From 9 December 2010, when the first respondent made his first appearance in court to the 4 August 2014, the case against the first respondent was postponed for various reasons. On the latter date, the Magistrate’s Court refused to postpone the case any further and as such the case was provisionally withdrawn against the first respondent. During November 2017, the first respondent lodged an application in the court a quo seeking a permanent stay of prosecution. The appellant filed her answering papers in February 2018, however, no further attempt was made by the prosecution to reactivate the provisionally withdrawn case.The court a quo held that the law is settled with regards to the issue at hand, in that the Supreme Court has established a test to be applied as outlined in S v Myburgh 2008 (2) NR 592 (SC) at 623G – 624F. In summary, the court a quo stated that where a litigant seeks relief in terms of Article 12(1)(b) of the Constitution, such relief can only be granted if such litigant proves that the trial has not taken place within a reasonable time, and that there is irreparable trial prejudice as a result, and/or there exists other exceptional circumstances justifying the sought remedy. In terms of the first enquiry, that is that a trial must occur within a reasonable time period, the court a quo held that the first respondent was responsible for the postponements from August 2011 to January 2012 and from January 2012 to July 2012. However, the court a quo held that from August 2014 to the date this application was brought there was an unreasonable delay and the first respondent proved this element on that score. With respect to the second element, that is irreparable trial prejudice, the court a quo held that the first respondent failed to prove that his trial was in any way prejudiced. In terms of the final element, that is whether any exceptional circumstances exist justifying the first respondent’s release, the court a quo found that the prosecution has dismally failed to promptly and vigorously resume with the prosecution of the first respondent considering the serious charges the first respondent faces. In light of this, such exceptional circumstances are present and therefore the third element has been fulfilled. As a result, the court a quo ordered the permanent stay of prosecution insofar as it relates to the first respondent.Aggrieved with the court a quo’s findings, the appellant has now appealed to this court against the whole judgment of the court a quo. Judgment sought to be appealed.Namoloh v Prosecutor-General of Namibia (HC-MD-CIV-MOT-GEN-2017/00404) [2019] NAHCMD 65 (29 January 2019)Parties’ counsel:Appellant:Government AttorneyRespondents:Sisa Namandje & Co Inc. (1st respondent)Coram:Damaseb DCJ, Mainga JA and Angula AJAHearing date13 July 2020LocationB-Court ................
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