2018 Supreme Court Judgment Index

2018 Supreme Court Judgment Index2018

ContentsAPPLICATIONS2CIVIL PRACTICE AND PROCEDURE3COMPANY LAW16COMPETITION LAW20CONSTITUTIONAL LAW23CONTRACT LAW29COSTS38CRIMINAL LAW AND PROCEDURE39DELICT42LAW OF SUCCESSION46MATRIMONIAL LAW52POCA53PROPERTY LAW54REVIEWS56

APPLICATIONS

Leave to appeal and reviews: The appellant brought an urgent application in the High Court seeking, amongst others, the reconnection of water supply to an immovable property belonging to the first respondent which the appellant and his family continued to occupy despite the fact that it had been sold to the first respondent. This relief was directed at the second respondent as the responsible service provider of water supply in the city. The court heard and dismissed the application on the basis of an earlier order made by the court barring the appellant’s spouse, to whom the appellant is married to in community of property, from bringing any further legal proceedings against the second respondent pending the discharge of a costs order granted against her. In dismissing the application, the High Court held that the earlier order remained in force and as the appellant had not complied with it, the urgent application could not be heard.

On appeal, the parties were in agreement that the order appealed against was interlocutory in nature and that in terms of section 18(3) of the High Court Act 16 of 1990, the appellant required leave from the court a quo to appeal the order and if leave was refused by that court, this court should have been approached by way of a petition for leave to appeal. There was a further concession on the part of the appellant that the satisfaction of the costs order granted against his wife would have been borne out of the joint estate, and that an appeal against such a costs order would require leave in terms of s 18(3) of the High Court Act. The court on appeal endorsed the concessions made by the appellant.

The appellant’s second part of the appeal is a purported ‘review’, imploring the Supreme Court to exercise its review jurisdiction in terms of s 16 of the Supreme Court Act 15 of 1990. The appellant alleges that the court a quo committed an irregularity in dismissing his application without affording him an opportunity to ventilate his case. The appellant further alleges that the decision of the court a quo constituted an irregularity in the proceedings in that it merely extended the operation of the order granted against his wife to him in the absence of an enquiry to determine whether the costs were paid or not.

On appeal held that interlocutory orders and orders as to costs are not appealable as of right and that leave to appeal against such orders must first be obtained from the court a quo and if that court refuses to grant leave, then leave should be obtained from this court. As no leave had been obtained, the appeal stands to be struck from the roll.

Held, further that it is settled that the review jurisdiction of this court would be invoked mero motu if it comes to the court’s attention that an irregularity had occurred in the proceedings of the court a quo. Held, that on the facts of the case, the appeal court was not persuaded that the High Court committed an irregularity and thus the request for the appeal court to invoke its review powers was declined.

Appeal accordingly struck from the roll. Beukes v Benade (SA 15-2009) [2018] NASC (13 April 2018)

CIVIL PRACTICE AND PROCEDURE

Appeal – condonation and reinstatement: The preliminary issue in this appeal is an application for condonation for late prosecution and reinstatement of appeal. The condonation application is opposed on the basis that the appeal is deemed to have been withdrawn and that the inordinate delay has not been satisfactorily explained.

Court on appeal held that public importance of the issues on appeal and the overwhelming prospects of success on appeal tilt the balance in favour of considering prospects of success and not summarily dismissing the appeal.

Road Fund Administration (RFA) is created under the Road Fund Administration Act 18 of 1999 (the Act) to ensure safety of Namibia’s public roads network and to see to it they are safe and economically efficient. To achieve that object, RFA is empowered under s 18(1) of the Act to impose a range of road user charges, including a levy on every litre of petrol and every litre of diesel sold by wholesalers at any point in Namibia and included in the selling price of such product. RFA is also given power under s 18(1) (d) to refund consumers who do not use a petroleum product on public roads.

RFA published a Notice setting out the requirements to be satisfied by those consumers seeking refund for fuel purchased but not used on public roads. The requirements to be fulfilled in terms of the Notice require that claims must be submitted within three calendar months from the date of purchase of the petroleum product and must be accompanied by such further information or documents as RFA may request. Pursuant to the Notice, RFA issued a claim form ‘RFA/R3’ requiring that all claims for refunds be accompanied by original VAT invoices, and further that claims submitted after three calendar months will not be considered.

The respondent (Skorpion) submitted two separate claims on RFA/R3. Both claims were rejected by RFA. Claim 1 was rejected because the claim was not accompanied by original invoices and claim 2 on the basis that it was submitted after three months. Skorpion instituted action proceedings for the payment of the amounts represented by the claims alleging that claim 1 was accompanied by original invoices contrary to RFA’s assertion otherwise and that although claim 2 was submitted late, it was unfair and unreasonable and further contrary to Art 18 of the Constitution, to reject the claim without affording the Skorpion an opportunity to satisfy RFA that claim was proper and that there was good reason why that claim was submitted late. In response, RFA pleaded in the court a quo that the requirements for claims were mandatory and that it could not relax them.

The court a quo held that it was not necessary to decide the factual disputes that had arisen as the matter could be disposed of on RFA’s admitted policy and practice not to entertain any non-compliant claim regardless of the circumstances. The court a quo’s reasoning is that the levies collected for non-on-road use belonged to the consumers, such as Skorpion, entitling it to claim and consequently creating a right in such a claimant to be given a hearing before a claim is rejected. The court a quo thus held that RFA has power under paragraph 7(8) of the Notice to make inquiries and to ask for documents to test the authenticity of a claim and to lean more in favour of honouring a claim than rejecting it. It is on this basis that the court a quo decided that RFA’s inflexible enforcement of the requirements of the subordinate legislative scheme is in breach of Art 18 of the Constitution and that since referring the matter back to RFA to reconsider the claims afresh will not be proper in the circumstances of the case, Skorpion would be entitled to the refunds claimed. Accordingly, Skorpion made out the case for the award of compensation under Art 25(4) of the Constitution.

Held on appeal that it is a misdirection for the court a quo to have resort to the Constitution without considering if the matter could be resolved by applying the common law; that the two claims had to be considered separately in order to establish if Skorpion had discharged the onus in respect of each claim.

In respect of claim 1, court on appeal held that since claim 1 involved mutually destructive versions, the court a quo should have made credibility findings to consider where the probabilities lie, and that since Skorpion’s version that the claim was submitted with original invoices was not proved, the claim should have been dismissed on that basis.

In respect of claim 2, court on appeal reiterates that the general principle is that an administrative authority has no inherent power to condone failure to comply with peremptory requirements, unless such power has been granted to them. Court held that as an administrative actor, RFA could only relax the three months deadline if the legislative scheme made allowance for that. That since the subordinate legislative scheme was couched in mandatory language and spelled out that non-compliant claims will not be considered, it would be beyond RFA’s competence to relax the three month’s deadline or to investigate the reasons why claim was submitted late.

Court on appeal held that it was a misdirection to hold that moneys subject to refund claims was the property of claimants, and that the High Court’s justification for audi was therefore premised on an incorrect foundation. That, in any event, Skorpion failed to prove that it had a good reason for the late submission of the claim and that RFA, in rejecting the claims, breached Art 18 of the Constitution.

Appeal allowed, and judgment and order of High Court set aside and both claims dismissed, with costs, a quo and in the appeal. Road Fund Administration v Skorpion Mining Company (Pty) Ltd (SA 38 - 2016) [2018] NASC (13 July 2018)

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Appeal – condonation and reinstatement: This is an appeal against the granting of a final winding-up order in relation to the Small and Medium Enterprise Bank Limited granted by the High Court on 29 November 2017. Reasons were provided on 4 December 2017.

The appellants are two minority shareholders and opposed the winding-up application brought by the Bank of Namibia (BoN) on the basis of non-compliance with section 351 of the Companies Act 2004 (the Act) and provisions of the Banking Institutions Act 2 of 1998 (BIA).

Condonation and reinstatement of appeal - Appellants applied for condonation and the reinstatement of the lapsed appeal as required by rule 17(1) of the Supreme Court Rule for the late filing of their heads of argument. In opposition to this application, respondent claimed that the record was also lodged out of time. Appellants lodged the record on 2 March 2018, more than 3 months after the order was handed down on 29 November 2017 but within the required period if calculated from the date when the reasons were provided, namely 4 December 2017. Rule 8(2)(b) requires a record to be filed within three months of the date of judgment or order appealed against.

In relation to the record, the court found that the matter of Wirtz v Orford relied on by respondent in arguing the three month period ran from the date of the order is distinguishable and the rules of court have since been amended to require appellants to specify grounds of appeal in a notice of appeal (which was not the case at the time of the Wirtz judgment). This court found that the judgment appealed against was provided on 4 December 2017 for purposes of rule 8(2)(b). There was thus no need for application for condonation and reinstatement for the filing of the record.

Appellants argued that the late filing of their heads of argument was due to an erroneous belief by their legal practitioner that the date of hearing of their appeal was 9 November 2018 and not the actual date of 9 October 2018; hence their application for condonation for non-compliance with the rule and for reinstatement of the appeal in terms of rule 17(2).

In applying Rally for Democracy and Progress v Electoral Commission of Namibia, the court found that this explanation is not unreasonable, but this explanation only satisfies one leg of the two pronged enquiry. The court held that appellants need to satisfy the court that there are reasonable prospects of success in the merits of the appeal for condonation and reinstatement to be granted.

On the merits, appellants’ argument focussed on a constitutional argument and procedural points of non-compliance with statutory provisions.

Constitutional argument - in support of their argument, appellants cited articles 95(j) and 98 of the Constitution. Appellants contended that, by virtue of the SME Bank’s objective to serve small and medium enterprises which are under served by the existing commercial banking sector and to uplift previously marginalised and disadvantaged communities, it is of necessity for the statutory provisions in the winding-up process of the SME Bank to be interpreted in light of Arts 95(j) and 98 of the Constitution. Appellants further argued that, even though these principles of State policy are not legally enforceable by virtue of Art 101, they should inform the statutory interpretation of the provisions raised in the procedural attacks upon the exercise of BoN’s powers under the BIA and that a winding-up application should only have been a last resort and that BoN was obliged to exhaust less far reaching remedies before doing so in view of the principles of State policy which enjoined government to pursue policies which raise the standard of living and in pursuit of economic growth and prosperity, as striven for by SME Bank.

Held; the Constitution and the values enshrined in it form the starting point in interpreting statutory provisions. An interpretation of a provision consistent with advancing and giving effect to the values enshrined in the Constitution is to be preferred where a statute is reasonably capable of such interpretation.

Held that; although Art 101 provides that, regard is to be had to the principles of state policy as cited by the appellants in the interpretation of laws, the provisions contained in BIA and the Act are not based upon the principles expressed in Arts 95(j) or 98. Those provisions accordingly do not apply.

It is held that; the BIA vests extensive supervisory and regulatory powers in BoN, including a wide range of powers directed at remedial action as well as the power to apply for the winding-up of any banking institution; and the Act provides for the incorporation, management and liquidation of companies.

It is further held that; BoN has a statutory duty to perform its supervisory functions and exercise its wide ranging powers in respect of banks in order to fulfil its important objective of maintaining a sound monetary, credit and financial system in Namibia and sustain the liquidity, solvency and functioning of that system. It does so in order to further another of its statutory objectives, namely the maintenance of monetary stability. A foundational principle of the Constitution embodied in Art 1(1) is that the Namibian State is founded upon the rule of law. This requires that BoN performs the statutory duties vested in it.

Abuse of proceedings – appellants maintained that the winding-up of the SME Bank should have been the measure of last resort after other remedial measures open to Bon had been exhausted and there was short service.

The court held that; this argument might have carried some weight if appellants had made out a case that the winding-up application constituted an abuse. Respondent, on its papers showed it was preceded by a series of steps, spanning several months. At each step appellants failed to provide satisfactory responses which led to BoN’s winding-up application.

The court further held that, although the short service and notice of the application upon appellants would at first blush seem oppressive, the court was mindful of the fact that BoN was concerned about a run on SME Bank by depositors who were already calling up their deposits. Hence the matter being brought in the court a quo as an urgent application.

It further held that; the court a quo was correct to find that the SME Bank was insolvent and that it was just and equitable for it to be wound-up. The BoN’s winding-up application did not constitute abuse of process.

Non-compliance with Section 351(4) of the Act – appellants argued that s 351(4), a peremptory provision of the Act requiring lodging of an application of winding-up first with the Master of the High Court before it is presented to the court, had not been complied with – which according to appellants results in the application being a nullity and invalid; and that the provisional order should have been discharged even when a Master’s certificate was issued on 4 July 2017 stating that the application was lodged. Reference to Wallis JA in EB Steam Company (Pty) Ltd v Eskom Holdings Soc Ltd where it was found that ‘that the requirements of lodging a copy of the application (and providing security) are peremptory’.

The issue to be determined in this instance was whether a less than perfect compliance results in the invalidity of the application (as is the case in this instance)?

It is held that; the consequence of strict non-compliance would need to be determined with reference to the scope and object of the provision in question – Torbitt v International University of Management.

Held that; the purpose of section 351(4) is to alert the Master to the application and provide that office with the opportunity to file a report to court upon it. Respondent had fulfilled this underlying purpose.

It is held that; the court a quo cannot be faulted for finding substantial compliance with section 351(4) and confirming the rule because a copy of a signed notice of motion and founding affidavit had been lodged when the application was presented to court. The annexures and every affidavit confirming facts stated in the founding affidavit were not lodged but were served a day later and a day before the application was first called in court. The Master was satisfied that this amounted to lodging the application for the purpose of s 351(4) and certified this and made a report to the court on the strength of the incomplete papers.

It is further held that; if the court a quo was dissatisfied with respondent’s compliance with section 351(4), the consequence would be to postpone or refuse the application until compliance had occurred had the Master complained that the annexures and confirmatory affidavits had not been lodged.

Non-compliance with section 58(5) of BIA – it is held that; any concerns the appellants have with appointment of provisional liquidators is not relevant in determining whether or not a final order of winding-up should have been granted. The court a quo was correct in finding that if the appellants were aggrieved with those appointments, it was open to them to take the appointments on review.

The court thus holds that; there is no merit in these grounds of appeal. Appellants’ appeal enjoys no prospects of success and that condonation and reinstatement should not be granted.

It is further held that; because no issues of substance concerning the basis for winding-up were raised by appellants, and that their procedural points were without merit and merely served to delay the winding-up process of the SME Bank, costs in this court should likewise be borne by the appellants.

Condonation and reinstatement refused and the matter is struck from the roll with costs. Metropolitan Bank of Zimbabwe Ltd and Another v Bank of Namibia (SA77-2017) [2018] NASC (23 October 2018)

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Appeal – frivolous and vexatious: In the High Court, the first respondent brought an application under section 16 of the Supreme Court Act seeking an order directing the Supreme Court to review its own decision. The presiding Judge a quo amongst others took the view that such an application was fatal for lack of compliance with section 12 of the Supreme Court Act; that the High Court was not competent to direct the Supreme Court how to exercise the s 16 review jurisdiction; that the matter was res judicata; and further dismissed an application for his recusal on the basis that it had no merit.

First respondent appealed against the order of the High Court on the ground that the presiding judge ought to have recused himself because he was junior to the Chief Justice who was cited as a first respondent in the proceedings in the High Court. The second respondent (Permanent Secretary of Judiciary) in that appeal moved the Supreme Court in terms of rule 6(1) of the Rules of that court to summarily dismiss the appeal in terms of s 14(7)(a) of the Supreme Court Act on the grounds that it was frivolous or vexatious or otherwise without any prospect of success.

The first respondent objected to that application on the ground that it was brought outside 21 days as required by rule 16 (1)

While upholding the first respondent’s objection,

Held that it is competent for the Supreme Court to invoke s 14(7)(a) mero motu.

Held that –there is no fine dividing line between the jurisdictional criteria of s 14(7)(a) and that the common denominator between them is that objectively viewed such an appeal so unmeritorious that no court can grant a remedy for it under the law.

Held further that – an appeal without any prospect of success is an exercise in futility and therefore frivolous and since its only purpose is to annoy it is vexatious.

Held that – only judges appointed in terms of Articles 79 and 80 of the Constitution are competent to preside in a matter involving the Chief Justice even if in terms of hierarchy subordinate to the Chief Justice; that an appeal seeking to achieve a contrary result is caught by s 14(7)(a);

Held further that – the section 16 review powers of the Supreme Court are exercisable only by the Supreme Court and that the High Court is not competent to direct it to do so; and that an appeal seeking a contrary result is also caught by s 14(7)(a)

Held – that the issue which the first respondent seeks to ventilate on appeal is res judicata and therefore not justiciable and similarly caught by s 14(7)(a)

Held that – since the relief sought by the first appellant is not known to law the appeal is non-justiciable and therefore liable to be dismissed, with costs. The Permanent Secretary of Judiciary v Somaeb (SA 14 - 2018) [2018] NASC (3 July 2018)

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Appeal – leave: Appeal as of right or with leave against an order of the Labour Court striking the appellant’s application for leave to appeal from the roll.

Section 14(1) of the Supreme Court Act 15 of 1990 provides that a party has a right of appeal to the Supreme Court from any judgment or order of the High Court. Section 14(2)(b) provides that legislation may limit, grant or exclude such right or which prescribes the proceedings which have to be followed in the exercise of that right.

Section 18(2)(b) of the High Court Act 16 of 1990 provides that an appeal from any judgment or order of the High Court in civil proceedings shall lie, where the High Court sat as a court of appeal, if leave is granted by the court, which has given the judgment or order.

Leave to appeal was not granted by the Labour Court, neither was leave refused. The application was struck from the roll. Striking the application from the roll was an order of the Labour Court given as per appeal court and the appealability of such order is qualified by the provisions of s 14(1) of the Supreme Court Act read together with s 18(2)(b) of the High Court Act as well as s 14(2)(b) of the Supreme Court Act.

Leave to appeal was not sought from the Labour Court against the order striking the application for leave to appeal from the roll. Leave should have been sought against that order. If leave had been sought and was refused, the appellant would have been entitled to petition the Chief Justice in terms of s 14(6) of the Supreme Court Act.

Appeal not properly before this court and struck from the roll. Namdeb Diamond Corporation (Pty) Ltd v Coetzee (SA 8-2017) [2018] NASC (1 August 2018)

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Appeal – onus of proof: The onus in civil proceedings rests on the plaintiff to prove its case on a preponderance of probabilities.

In order to determine whether a plaintiff has discharged this onus, the trial court, where there are two irreconcilable versions, must make findings on the credibility of factual witnesses, their reliability and the probabilities. The trial court must embark upon an exercise to test the plaintiff’s allegations against the general probabilities as well as to test the defendant’s allegations against the general probabilities in order to determine if the balance of probabilities favour the plaintiff’s case.

The court a quo made no credibility findings neither did it consider the probabilities. The court a quo could only have accepted the evidence on behalf of the plaintiff if it had rejected the evidence on behalf of the defendant. The court a quo never rejected the evidence presented on behalf of the defendant.

It is an elementary rule for the production of opinion evidence that an expert witness must lay the basis for the methodology used and processes undertaken in reaching an opinion.

All evidence must be taken into account in considering whether plaintiff has discharged the onus, including the undisputed testimonies of factual and expert witnesses on behalf of the defendant. The court a quo failed to do so.

There was failure by plaintiff to call witnesses who could easily have refuted the evidence by the defence’s witnesses. In such an instance, a court may draw a negative inference that the failure to call such witnesses was done because the witnesses would not have supported the plaintiff’s case. The failure to call a witness may thus strengthen the case of the opposite side on an issue in dispute.

A seller’s liability for latent defects is imposed by law and is not dependent upon any contractual consensus between the parties. It is an implied warranty against latent defects in contracts of sale. The implied warranty cannot assist the buyer where no latent defect was proved as in the present instance.

Held on appeal that plaintiff failed to prove its claims on a preponderance of probabilities.

The appeal succeeds and the orders of the court a quo are set aside and the claims are dismissed with costs. Burgers Equipment Spares Okahandja CC v A Nepolo t-a Double Power Tech. Service (SA 9-2015) [2018] NASC (17 October 2018)

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Appeal – recusal application: This is an appeal brought by Henle against the judgment of the court a quo dismissing a recusal application with costs.

The respondent instituted an action against the appellant in the court a quo claiming the following; (1) payment of R641 595 and US$142 988 for the export of 9 elephants to Mexico; and (2) payment of US$340 624 for an aborted attempt to export game to Saudi Arabia; (3) mora interest and costs on the amounts. Appellant also had a conditional counterclaim premised on the court a quo upholding respondent’s second claim. Respondent’s second claim was withdrawn at the commencement of the trial and as a consequence appellant’s counterclaim fell away. Appellant admitted to the first claim, but pleaded set off against a payment allegedly owed to him flowing from a transaction involving buffaloes. After the close of pleadings and when the trial date was set, appellant filed a tender in terms of rule 64 of the High Court rules. He tendered the amounts of respondent’s first claim, ‘excluding interest and costs’. Respondent closed its case and proceeded to seek an order for costs and interest (without leading any evidence). Appellant at this point made an application for absolution from the instance with costs. The court a quo dismissed this application with costs. The matter was again set down for continuation of trial to start on 8 May 2017. On 19 April 2017, appellant brought an application for the judge a quo to recuse himself because according to appellant, the judge had prejudged the issue of the interest payable in the absolution judgment without affording appellant the opportunity to present evidence as to why he should not be ordered to pay mora interest. This recusal application was dismissed with costs. Appellant noted an appeal against the recusal application.

This notice was filed in this court and the court a quo as required by rule 7 of this court (the previous rule 5 of this court). Respondent insisted that the matter continue in the court a quo because appellant’s filing of the Notice of Appeal was invalid as appellant did not obtain leave to appeal from the court a quo. An application to stay the proceedings was brought by appellant in the court a quo which the court a quo granted with a cost order against the respondent. Respondent counter-appeals this cost order with leave of the court.

Arguments on appeal revolved around the issues of leave to appeal, counter-appeal, recusal and the question of costs.

Leave to appeal – the issue between the parties was not whether the judgment dismissing the recusal application was appealable, but whether leave to appeal was required or whether appellant could appeal as of right. The test to decide whether leave to appeal must be obtained is contained in Di Savino and other supporting decisions and requires a two-step consideration of the case in question. The first step is to determine whether a judgment or order is appealable. As it was common cause that the judgment dismissing the recusal application was appealable, the first step needed no further consideration. The second step is to determine whether the judgment or order that is sought to be appealed against is interlocutory or final. If interlocutory, leave needs to be obtained, and, if final an appeal lies as of right. The general definition of ‘interlocutory’ contained in South Cape Corporation (Pty) Ltd v Engineering Managament Services (Pty) Ltd is still relevant in our jurisdiction. Under this premise, the refusal of the recusal application is an interlocutory order. It did not dispose of any portion of the relief sought by appellant, it merely confirmed the competency of the judge a quo to proceed with the matter.

Held that, the order refusing a recusal application is interlocutory and appellant had to obtain leave to appeal from the court a quo, consequentially, the appeal stands to be struck from the roll with costs.

Counter-appeal – court a quo had to consider whether a valid appeal was noted in the absence of obtaining leave to appeal. This was also not the only consideration relevant to the stay application. Other considerations included the effect of a piecemeal adjudication matter, the prejudice to the respective parties and the prospects of success on appeal.

Held that, the considerations relevant to a stay including the fact that there were no prospects of success on appeal did not justify the stay order.

Held that, the stay order and the stay application should have been dismissed with costs. Counter appeal upheld. Henle t-a Namib Game Services v Wildlife Assignment International (SA 41 -2017, 67 - 2017) [2018] NASC (27 March 2018)

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Rule 108: The issue for determination in the court a quo as well as on appeal was whether the provisions of rule 108 of the High Court rules apply in an application for an order declaring, immovable property belonging to a judgment debtor specially executable.

The court a quo answered the question in the affirmative. Rule 108 provides that the registrar may not issue a writ of execution against immovable property unless a nulla bona return has been made and where a court has on application declared the immovable property specially executable.

Where the immovable property is the primary home of the judgment debtor, a court may not declare such immovable property executable unless the execution debtor had personally been informed of an application intended to be made to have the immovable property declared executable and the execution debtor had been informed to provide reasons to court why such an order should not be made.

A court having regard to all the relevant circumstances including less drastic measures than a sale in execution of the primary home, may order the immovable property specially executable or may decline to do so.

In terms of the common law movables first have to be exhausted before recourse could be had to the land except when the plaintiff has a hypothec or a pledge. Thus where immovable property has been specially bonded, the judgment creditor has a substantial limited real right to such property and is entitled to first execute against the immovable property and only to the extent of any shortfall afterwards against the movables.

Rule 108(1) of the High Court rules by providing in peremptory terms execution against movables first reverses the sequence of execution and is in conflict with the common law in so far as it relates to the right to execute against hypothecated immovable properties.

In the event of a conflict between the common law on the one hand and a rule of court on the other hand, the presumption is strongly against the common law being cut down by the rule. A rule of court is not presumed to take away prior existing rights unless it appears expressly from the legislation. Where a rule of court is not a rule for the conduct of proceedings but a substantive rule of law it is ultra vires and is of no legal force or effect.

It is accepted that there must be judicial oversight where a claim is in respect of the foreclosure of a bond in terms of the provisions of rule 15(3). Where immovable property is the primary home of a judgment debtor a court must consider viable alternatives, ie less drastic measures than a sale in execution.

Formalism in the application of rules of court is discouraged. Rules of court are not an end in themselves to be observed for their own sake but are there to provide the inexpensive and expeditious completion of litigation before the courts; to facilitate the real issues in dispute justly and speedily.

A creditor may include a prayer in a summons, for a writ of execution against property specially hypothecated, in the event of the matter going by default. This would obviate the need to prepare another application at additional cost and waste of time.

A court is not precluded from exercising judicial oversight already at the stage where a creditor approaches the court for default judgment in respect of the capital amount outstanding with an additional prayer for an order to have the immovable property declared specially executable.

In the absence of any abuse of process or bad faith a judgment creditor will normally be entitled to enforce a judgment by executing against bonded immovable property.

The first respondent in this appeal had been informed personally of the intention of the appellant to apply to court for an order to declare the relevant immovable property specially executable. First respondent in the court a quo made submissions why the property should not be ordered specially executable. A nulla bona return was rendered in respect of the movable property of the first respondent. The respondent never settled the debt as promised. The first respondent never made an allegation that the appellant abused court process or that appellant acted in bad faith.

The court a quo should have declared the immovable property specially executable since there was no viable alternative or less drastic measure other than a sale in execution.

The appeal succeeds and the order of the court a quo striking the matter from the roll is set aside and substituted with one declaring the immovable property of the first respondent specially executable. Standard Bank Namibia Limited v Shipila (SA 69-2015) [2018] NASC (6 July 2018)

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Special plea: This is an appeal related to the dismissal of a special plea by the Government of the Republic of Namibia (appellant), in respect of the respondent’s, (Fillipus Junias) claim for malicious prosecution.

Respondent was arrested on 27 July 2010 by Sgt Amatundu of the Namibian Police in connection with the rape and murder of the late Ms Magdalena Stoffels. He remained in custody for a period of 191 days when the charges against him were withdrawn. On 8 May 2013, he instituted the present action against the appellant for damages for wrongful arrest (claim 1), unlawful detention (claim 2) and malicious prosecution (claim 3). Appellant raised special pleas in the court a quo, raising non-compliance with s 39 of the Police Act against each of the three claims. Respondent had instituted the claims more than 12 months after the cause of action had arisen as is required by s 39. The court a quo upheld the special pleas in respect of claims 1 and 2, but dismissed the special plea against claim 3. The court reasoned that a claim of malicious prosecution is in a different category to claims 1 and 2. According to the court a quo prosecution is malicious or otherwise at the instance of the Prosecutor-General and not the Namibian Police and that compliance with s 39 would not be required

The question was raised as to whether leave to appeal is required in an appeal against the dismissal of a special plea akin to prescription in the form of non-compliance with s 39 of the Police Act 1990.

Leave to appeal – appellant referring to authorities decided at a time when the s 20(2)(b) of the then applicable Supreme Court Act, 1959 argued that the special plea is a self-contained defence which is conclusive of the issue and is thus not interlocutory as the court a quo could not revisit its decision on that special plea.

These authorities were no longer applicable following a new system emerging in South Africa with the introduction of Act 105 of 1982 which diminished the distinction between simple interlocutory orders and other orders.

Di Savino was applied. It had found that a wide meaning is to be accorded to interlocutory orders and thus includes all orders upon matters ‘incidental to the main dispute, preparatory to, or during the progress of the litigation’ – and not merely, what have been described as “simple” or “pure” interlocutory orders. In developing Namibia’s own jurisprudence, this court in Di Savino interpreted section 18(3) of the High Court Act, 1990 to the effect that interlocutory orders are not appealable except with leave.

Held that, a wide and general meaning of interlocutory orders would refer to all orders incidental to the main dispute, preparatory to or during the progress of litigation and include those which have a final and definitive effect upon the main action but which do not finally dispose of the main action.

Held that, interlocutory orders which are appealable require leave to appeal.

It is further held that, the order of the court a quo, although appealable, was interlocutory in nature. This means that leave was required and appellant failed to acquire that. In the circumstance, the appeal stands to the struck from the roll. Government of the Republic of Namibia v Junias (SA 50 - 2016) [2018] NASC (6 April 2018); Municipal Council of Windhoek v Pioneerspark Dam Investment CC (SA 78-2016) [2018] NASC (22 June 2018)

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Urgent application – interim interdict: Appellant appealed against the dismissal by the court a quo of an urgent spoliation application seeking an order to restore its possession of three building sites as well as a separate order interdicting the first and second respondents from commencing or continuing with any construction work on those sites pending an action or arbitration to be instituted against the first respondent for specific performance of building contracts entered into between the appellant and first respondent. The issues to be determined are whether the appellant have established an entitlement to the spoliation order and whether it should have been granted the interim interdict sought.

Spoliation – in spoliation proceedings, an applicant must on a balance of probabilities prove peaceful and undisturbed possession of the property in question and an unlawful deprivation of that possession by the respondents. Appellant contended that, although it had suspended work on the sites in April 2015 because of first respondent’s inability to pay, appellant retained a presence on the site and intended to resume work as soon as first respondent was able to make payment of outstanding amounts. The nature of the possession claimed by appellant is that of a builder’s lien. Employees of second respondent entered the sites on or around 7 October 2016 to work on those building sites which the appellant was contracted to complete. First respondent failed to explain how second respondent lawfully took possession of the sites when appellant was still contractually in possession of sites by virtue of the handover of possession and had not terminated its possession.

Applying the principles outlined by Innes, CJ in Scholtz v Faifer 1910 TS 243, it would follow on all the facts before court that the appellant was disturbed by the first and second respondents in the exercise of its possession of the sites. Once the sites were handed over to the appellant and it continued with the building works, it was unquestionably in possession of the sites. The works were thus under the appellant’s control and the first respondent could not remove it from the site as long as it performed and remained on site and tendered to perform under the contracts. After the work was suspended by reason of the first respondent’s inability to pay for works duly performed, the appellant remained on site with the view to resume the works as soon as the first respondent was once again able to meet its obligations. This was not a case, as referred to by Innes, CJ, where a contractor was warned that if it did not continue the works, another contractor would be appointed so as to put the appellant on its guard to assert more control over the site. On the contrary, the appellant tendered to continue once the admitted amount owing to it had been paid. And it stayed on site, remaining ready to continue upon payment. Despite seeking to hold the first respondent liable for the cost of security guards, their presence was under the appellant’s control and assisted it in exercising sufficient control to exercise its lien and certainly to remain in possession of the sites. It was understandable that it sought to hold the first respondent liable for payment of the costs of the security guards, given the reason for the suspension was first respondent’s inability to pay due amounts – and for future work. Importantly the appellant did not terminate its possession. Nor is this alleged by the first respondent.

Held, appellant sufficiently established control and possession as well subsequent dispossession for the purposes of securing spoliation relief.

Interim interdict – the well-established requisites for an interim relief were referred to: a party must establish a prima facie right, a well-grounded apprehension of harm if the interim relief were not to be granted, that the balance of convenience favours granting interim relief and finally that the appellant did not have an adequate alternative remedy. These requisites are not considered in isolation and interact with each other. In this instance, appellant failed to establish a reasonable apprehension of harm if it were granted a spoliation order. Its possession would be restored and the harm sought to be interdicted would not arise. This requisite thus not established.

Held – appeal against the dismissal of the application for interim interdict fails. New Era Investment (pty) Ltd v Ferusa Capital Financing Partners CC (SA 87-2016) [2018] NASC (6 July 2018)

COMPANY LAW

Close corporation: This appeal is concerned with the interpretation to be given to a prohibition contained in s 13(1)(b) of the Architects and Quantity Surveyors Act, 13 of 1979 (the Act). This section prohibits any person other than a natural person from performing architectural work for gain. At issue is whether an agreement between a non-natural person in the form of a close corporation to provide architectural services to a client would be unenforceable as a result of the prohibition.

The appellant is a close corporation called Claud Bosch Architects CC, and plaintiff in the court below. Its sole member, Claud Bosch, was at all material times a duly qualified and registered architect as contemplated in the Act. The respondent (defendant) was a client of the plaintiff who engaged it to provide architectural services in respect of a project entailing the design, supervision of construction and development of a restaurant, hotel and parking area complex in Windhoek. In its action, the plaintiff claimed a sum from the defendant as outstanding in terms of the agreement. In the alternative, plaintiff claimed that sum by way of enrichment in the event the court a quo found that the agreement between the parties is invalid and/or unenforceable. The defendant excepted to these claims. The principle laid out in Van Straaten v Namibia Financial Institutions Supervisory Authority and Another finds application in the determination of exceptions.

In determining the exception, the High Court followed the decision of the High Court in the Nkandi matter, were Masuku AJ (as he then was) held that the maxim ex turpi cause non oritur actio admits no exception. That court held that with reference to the prohibition contained in s 13 of the Act (where an exception was also taken against a claim for architectural services by a non-natural person), any contract entered into in violation of s 13(1)(b) would render the ensuing contract unlawful and unenforceable. Masuku AJ, further held that the Act prohibited the carrying out of architectural work for gain by entities other than natural persons, unless an exemption was granted. The court in the Nkandi matter ultimately found that work carried out by the plaintiff was in violation of the prohibition contained in s 13 and the agreement was unenforceable.

The plaintiff argued that the decision in Nkandi was incorrect. It argued that it had not contravened the provisions of the Act by not itself having performed the work, because s 13 meant that reserved work itself must be performed by a registered architect (a natural person) and that it was pleaded that the work was performed by a duly registered architect.

The defendant on the other hand argued that the prohibition contained in s 13 follows upon the requirement contained in s 11 which provides that only natural persons can be registered as architects. It argued that the decision in Nkandi was correct and applied to this matter.

The principles of interpretation of statutes and texts recently summarised in Namibia Association of Medical Aid Funds and Others v Namibia Competition Commission and Another applied. The context in which a document is drafted and its purpose are relevant to interpreting the meaning of words used. The primary purpose of the Act in this case is to provide for registration of architects (and quantity surveyors) with the Council and to require that only registered architects can perform the kind of work reserved for architects under s 7(3)(b) of the Act.

Questions arising are whether the legislature intended that an agreement to provide architectural services by a non-natural person is prohibited by s 13 of the Act by reason of the prohibition contained in s 13(1)(b) and further whether the legislature intends that they are void and unenforceable.

Held, the legislative purpose of s 13, determined in this context, is to expressly prohibit an unregistered person from performing reserved work for gain in s 13(1)(a). Under s 13(1)(b) a non-natural person is prohibited from performing reserved work and holding itself out to do so. This latter prohibition is to be read with s 11 which expressly contemplates that only natural persons can register as architects under the Act.

Held, applying the approach in Standard Bank v Van Rhyn, it could not have been the intention of the legislature where a non-natural person has agreed to provide architectural services this would result in the further penalty of invalidity of the agreement, where the work is performed by a registered architect, even if this were to conceivably fall foul of s 13(1)(b). A greater inconvenience and impropriety would follow from doing so, resulting in the defendant escaping its liability to pay for work duly performed by a registered architect.

Held, the court in Nkandi erred by failing to take into account the approach in Standard Bank v Estate Van Rhyn which has been consistently followed in determining the effects of acts done in conflict with statutory prohibitions. Further, the decisions in Cool Ideas 1186 CC v Hubbard and another relied upon in Nkandi, are distinguishable.

Held, the court a quo accordingly erred in following the Nkandi matter. The exception against the main claim should not have been upheld and the appeal succeeds. Claud Bosch Architects v Auas Business Enterprises 123 (SA 41 - 2016) [2018] NASC (6 February 2018)

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Trade-marks: Around 1998, the first respondent registered the name ‘Rentokil’ as a defensive name for his business after making enquiries with the Registrar of Companies to establish whether there was a business or company registered under that name. As per the Companies Register, the first respondent established that no company was registered under that name. He however, made a further search in the telephone directory wherein he discovered a telephone number with a business registered under ‘Rent-O-Kill’. The first respondent contacted an unknown person whose telephone number appeared in the directory and established that the individual had ceased to operate under Rent-O-Kill name and had no intentions of using the name in future. Hence, the first respondent commenced his business under the name Rentokil to provide pest control services amongst other services in Namibia.

In 2001, the appellant, a company registered in South Africa sent a letter of demand through its lawyers to the first respondent demanding the latter to stop using the trade name Rentokil and alleging that such use was without consent or authority. In March 2003, the appellant applied for registration of the trade mark ‘Rentokil’ but it was only registered in May 2010. More than a decade after sending the first letter, the appellant wrote to the first respondent in January 2014 demanding that the latter stop using the name and remove same from its official documents and threatening legal action.

The first respondent then made an application for expungement of the trade mark of the appellant from the Trade marks Register in terms of section 16 of the Trade Marks in South West Africa Act 48 of 1973 and because of the alleged no-use for more than 5 years. The appellant opposed this application and brought a counter-application claiming that the first respondent was passing off their business by use of the trade name Rentokil.

The court a quo found that evidence on which the appellant intended to rely constituted inadmissible hearsay statements. It also found that first respondent commenced with the use of the name Rentokil in connection with his business at a time when appellant conducted no business in Namibia and had no reputation in Namibia. The court a quo also held that the case for non-use had been established. An order was thus made to expunge the trade mark of the appellant from the Trade marks Register. The court a quo also found that the first respondent established that his use of the name Rentokil predated that of appellant in Namibia and did not affect the reputation of appellant in this country. Accordingly, the court a quo granted the application for expungement and dismissed the counter-application with costs.

Dissatisfied with this judgment, the appellant noted an appeal in this court against the whole judgment of the court a quo. On appeal, the appellant contended that, it had developed a reputation and goodwill through extensive promotion and use of its Rentokil name and trade mark in Namibia. The first respondent argued that the Namibian market for pest control services is a small one in which he has been active since 1998 and that he was the only entity in the market that used the name Rentokil.

Counsel for the appellant submitted that the first respondent unlawfully built up its reputation by use of the Rentokil trade mark as this trade mark already had a reputation in this country belonging to the appellant. Accordingly, he contended that the conduct of first respondent is ‘contra bonos mores’ and hence the reputation he might have had is not lawful and deserving of protection.On the contrary, counsel for first respondent argued that the first respondent had lawfully built up a reputation through the use of this mark and became the common law proprietor of the mark.

This court found that the market for pest control in this country is a small one and that as at 17 March 2003, the first respondent had dealings with the biggest abattoir in Namibia, the Government, Namibian Scientific Society, and the hospitality market. He had already commenced business under this name and for a number of years already advertised in the Namibian telephone directory. Therefore the first respondent was thus at the relevant time the only player in this segment of the market under this mark in Namibia and had been advertising and working in this market.

This court further found that the first respondent adduced sufficient evidence to establish a reputation under the mark ‘Rentokil’ in Namibia. Furthermore, that a registration of the mark ‘Rentokil’ by another would be likely to cause deception and confusion as to the proprietor of the mark. The court found that the appellant had no physical presence in Namibia. It took no steps up to 2001 to prevent the first respondent from doing business under this name. They did nothing for more than a decade until 2014.

The court held that hearsay evidence which does not meet the established exception to the hearsay rule is inadmissible and the reliability or relevance thereof makes no difference to this rule.

This court further held that there was no basis for accepting that the appellant’s international businesses could establish or contribute to the establishment of a reputation for the trade mark in Namibia by 1998.

Further held, that the appellant failed to establish that it has any reputation in Namibia which the first respondent unlawfully adopted.

Held that inaction by appellant from the application for registration of their trade mark in March 2003 up to forwarding the letter of June 2014 to first respondent is indicative of the fact that it had no reputation in Namibia worthy of protection.

Held that the first respondent is entitled to the main relief sought in his application to expunge the appellant’s trade mark from the Trade mark Register.

Held that the respondent is the common law proprietor of the trade mark Rentokil in Namibia and the appeal is accordingly dismissed with costs. Rentokil Initial 1927 PLC v Michael Demtschuk t-a Rentokil and 4 Others (SA 88-2016) [2018] NASC (10 October 2018)

COMPETITION LAW

Trade restrictions: The first appellant is the South African Poultry Association (SAPA). The other appellants are South African concerns engaged in the poultry industry and are members of SAPA. They approached the court a quo to set aside a trade measure, embodied in Government Notice No 81, entitled ‘Restrictions on importation of poultry products into Namibia’s Import and Export Control Act, 1994’ published in Government Gazette No 5167, on 5 April 2013. This measure restricts the importation of poultry products into Namibia and was issued by the Minister of Trade and Industry. This measure is aimed at protecting Namibia’s fledgling poultry industry. The appellants applied to the court a quo to declare that the measure ultra vires and unlawful by reason of the failure to comply with or consider international treaty obligations. They also challenged the measure on procedural and substantive grounds and contend that the measure amounts to an illegality.

The application was opposed by the Minister and the Government of Namibia as well as by Namibia Poultry Industries (Pty) Ltd (NPI), the beneficiary of the measure. The respondents raised preliminary points against the appellants’ application. These included attacking the appellants’ standing and contending that the appellants had unduly delayed in bringing the review application. The court a quo decided to hear argument on the preliminary issue of delay without hearing argument on the merits. It upheld the delay point and dismissed the application with costs.

The appellants appealed against this judgment and invited this court to deal with the merits if this court were to find that the court a quo misdirected itself on the delay question.

The question of delay - The period of the delay in question spanned from the date of publishing of the Government Gazette on 5 April 2013, to 17 April 2014 when the appellants served their review. The appellants attended a consultative meeting arranged by the Permanent Secretary of the Ministry of Trade on 17 January 2013 regarding NPI’s infant industry protection (IIP) application under the Southern African Customs Union (SACU). A notice to restrict import quantities under the Act was instead issued on 5 April 2013. SAPA contended that the process was procedurally unfair and the granting violated both the protocol of the SADC Agreement and the SACU treaty.

Diplomatic intervention was sought through the South African Department of Trade and Industry on the issue in October 2013. SAPA was informed by Department officials that bilateral discussions would take place in early November 2013 between Namibia and South Africa. The quantitative measures were not discussed at that meeting, but a task team was appointed during the talks to investigate the objections. SAPA was advised that this investigation would take at least until the end of March 2014 at the earliest. The appellants then took advice and prepared the application from late November 2013.

The appellants argued that the preparatory steps leading up to the instituting the review did not amount to an unreasonable delay. It was not inordinate or egregious and contended that the court a quo misdirected itself in the exercise of its discretion by failing to condone the delay and consider the merits of the application. The appellants contended that the principle of legality and the interests of justice demanded that the court below should have also taken into account the merits of the application. They argued that an ultra vires notice amounted to a trade measure having a continuing unlawful effect and placed Namibia in breach of its international law obligations.

The government respondents and NPI argued that the court a quo’s decision was correct to finding that there was unreasonable delay and declining to condone it. They submitted the court a quo could not be faulted in its application of accepted principles to the facts of the case. They contended that unexplained delay of 6 months from the date of publishing the notice and engaging the South African Department in October 2013 was fatal for the appellants and rendered the delay unreasonable. They further submitted that the appellants did not demonstrate a capricious exercise of the court a quo’s discretion in declining to condone the delay. They also argued that the appellants’ review was without any reasonable prospects of success, and referred to the prejudice to the respondents. It was contended that a review of an international trade measure in a domestic court under international trade treaties were not justiciable in national courts and meant that there were no prospects of success. They submitted that international treaties which contradict national legislation would not, to that extent, form part of Namibian law under the Constitution (as provided for by Art 144). The respondents submitted that the impugned measure was in any event authorised by s 2 of the Act and was not inconsistent with the treaty prohibition contended for by the appellants.

Legal principles governing delay – Two enquiries are to be determined: the first is an objective one and is whether the delay was on the facts unreasonable. The second is whether the delay should be condoned. As stated in Keya v Chief of the Defence Force and others, the first enquiry is a factual one and does not involve the exercise of a discretion. It entails a factual finding and a value judgment based upon those facts. The second enquiry involves the exercise of a discretion. There is a narrow ambit of an appeal, against the exercise of a discretion. This court would only interfere with the exercise of that discretion when it is found not to have been exercised judicially by the court a quo.

Was the delay unreasonable – Despite the assertion by SAPA concerning steps taken (that it had made ‘best efforts’ to resolve its grievance against the measure ‘by diplomatic means’), there was no explanation forthcoming concerning the six months period following the publication of the notice until the diplomatic approach in October 2013. After receiving draft application papers from counsel in December 2013, the appellants were tardy in finalising their papers and serving them in April 2014.

Held, the court a quo correctly found that SAPA’s contention in reply that it had made ‘best efforts’ to resolve its grievance against the measure ‘by diplomatic means’ during this period was factually unsupported and thus untenable. The unexplained delay rendered the delay unreasonable.

Held, the court a quo did not misdirect itself in its value judgment upon the factual finding made, that the delay was in the circumstances unreasonable.

Exercise of the court’s discretion to refuse condonation – it is well established that where non-compliance with rules is found to be egregious or ‘glaring’, ‘flagrant’ and ‘inexplicable’, this court will not consider the prospects of success in determining a condonation application see Kruger v Transnamib Ltd (Air Namibia) and others. The court a quo did not find that the delay was so egregious that a consideration of the merits was not warranted. The court a quo considered a variety of factors particularly the prejudice to the parties, which the court a quo found to be material for the respondents and far less significant for the appellants. It concluded that condonation should not be granted.

Held, in deciding whether or not to grant condonation after finding that a delay is unreasonable, the criterion to be applied under common law is the interests of justice. Factors to be considered include the nature of the impugned decision, the merits of the challenge, prejudice to the respective parties, the extent and cause of the delay and the importance of the issue raised.

Held, public interest is generally served by bringing certainty and finality to administrative action or the exercise of public power of the kind in question.

Held, the merits are however a fundamental factor to be considered by a court in such an enquiry. The failure to do so, as occurred in this appeal, results in the application of a wrong principle in the exercise of the court’s discretion which was not exercised judicially as a consequence. It follows that the court a quo decision on condonation is to be set aside.

Further held that, public interest would be served by the ventilation and determination of the application of Art 144 of the Constitution and the extent, if any, to which international treaties can be enforced in domestic courts.

Held, condonation for the unreasonable delay should have been granted. The matter remitted to the High Court for further case management concerning setting the matter down for argument. South African Poultry Association and 5 Others vs Minister of Trade and Industry and 3 Others (SA 37 – 2016) [2018] NASC (17 January 2018)

CONSTITUTIONAL LAW

Criminal sentences: The appellants in this case were sentenced to long fixed terms of imprisonment of 67 and 64 years for two counts of murder, one count of housebreaking with intent to rob and robbery with aggravating circumstances, and two counts of housebreaking with intent to steal and theft.

At issue in this appeal is the question whether inordinately long fixed terms of imprisonment which could extend beyond the life expectancy of an offender, constitute cruel, inhumane or degrading treatment or punishment in conflict with Art 8 of the Namibian Constitution which entrenches the right to human dignity.

The Attorney-General was invited to intervene in the appeal by virtue of his functions under Art 87 of the Constitution and place evidence before the court concerning the application of the Correctional Services Act, 9 of 2012 (‘the Act’) and make submissions at the appeal hearing. The Attorney-General filed an affidavit in which he contended that while punishment by courts is aimed at deterrence, prevention and rehabilitation, any punishment or term of imprisonment which ‘takes away all hope of release from an offender should be contrary to the values and aspirations of the Namibian Constitution and more specifically the inherent right to dignity afforded to such incarcerated offender’ and maintained that after the abolition of the death penalty, a sentence of life imprisonment is the most severe form of punishment a court can impose on an accused.

The Act provides for a range of rehabilitaion programmes to address the needs of offenders to contribute to their successful re-intergration into society and mechanisms for the release of offenders.

In terms of s 115 applicable to the appellants, they would only become eligible for consideration of parole after serving two-thirds of their respective terms. In the case of first, second and fourth appellants, this would be after 44 and a half years and in the case of the third appellant after 42 and a half years. In contrast, s 117 read with the regulations, provides that in the case of offenders sentenced to life imprisonment, the most onerous and serious sentence, eligiblity for parole would arise after 25 years. The court stressed that parole is not automatic and that the National Release Board must be satisfied that offenders meet the other requirements for parole as well before release on parole can be recommended.

The realistic hope of release after 25 years if the other requirements for parole are also met means that life imprisonment in Namibia does not infringe an offender’s right to dignity protected under Art 8 as held in S v Tcoeib and accords with the approach in South Africa (in S v Nkosi and S v Siluale en ’n ander), Zimbabwe in Makoni and the European Court for Human Rights (in Vinter and other v UK).

Held, the phenonemon of what academic writers have termed ‘informal life sentences’ where the imposition of inordinately long terms of imprisonment of offenders until they die in prison, erasing all possible hope of ever being released during their life time is ‘alien to a civilised legal system’ and contrary to an offender’s right to human dignity protected under Art 8 of the Constitution.

Held, the absence of a realist hope of release for those sentenced to inordinately long terms of imprisonment would in accordance with the approach of this court in Tcoeib and other precedents offend against the right to human dignity and protection from cruel, inhumane and degrading punishment.

Held, the effective sentences of 67 years in this case mean that first, second and fourth appellants would be eligible for consideration of parole after 44 and a half years and in the case of the 3rd appellant 42 and a half years, given his 64 year sentence.

Held further that, the sentences in this case amount to informal life sentences imposed upon the appellants as they have no realistic prospect of release in the sense of fully engaging in society again – if at all - during their life times. The appellants would only become eligible for consideration for parole at the ages of over 80 years in the case of the first appellant, 69 and a half years in the case of the second appellant, 77 and a half years old for the third appellant and 66 and a half years for the fourth appellant.

It is thus held that, these sentences, by effectively removing from all of the appellants the realistic hope of release in the sense referred to during their life times, amount to cruel, degrading and inhuman or degrading treatement or punishment and infringe their right to human dignity enshrined in Art 8. Those sentences were set aside and replaced by sentences of life imprisonment in respect of counts 1 and 2, to be served concurrently with each other and with the further terms of imprisonment imposed on them. Gaingob v The State (SA 7 and 8 - 2008) [2018] NASC (6 February 2018)

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Land: The appellant launched a number of constitutional applications in the court a quo in which its main attack was directed against ss 76 to 80 of the Agricultural (Commercial) Land Reform Act, 6 of 1995 (‘the Act’) which provide for the imposition of land tax. The appellant also challenged the legality of the regulations made under that Act (issued under Government Notice 120 of 18 June 2007) and sought to have them declared inconsistent with Arts 63(2), 8, 10, 12(1)(a), 18 and 22 of the Namibian Constitution and therefore invalid, the rate of tax as well as recent assessments of land tax. A full bench of the High Court found that the land tax imposed under these sections passes constitutional muster and dismissed the challenges to the regulations and other decisions taken pursuant to them. The appellant appeals against these findings.

The statutory scheme and constitutional imperative for land reform in Namibia is to be seen within the context of ‘the ravages of inequality brought about by Namibia’s colonial past’. In addressing the issue there was wide consultation by the Namibian Government in the national land conference in 1991. The resulting Act was aimed to bring about reform in ownership and access to agricultural land in Namibia in 1995. Amendments to the Act in 2000 and 2001 established the Land Acquisition and Development Fund and land tax respectively as a means to fund the land reform and transformation process.

Appellant argued that the land tax regime in the Act, brought about by ss 76 and 77, amounted to an impermissible delegation of legislative power to the executive branch of government in the person of the Minister. Appellant contended that this is in conflict with the doctrine of separation of powers upon which the Constitution is based and in direct conflict with Art 63(2)(b) of the Constitution.

Respondents argued that the appellant’s approach failed to take into account Art 63(2)(b) properly construed and the nature of the tax scheme imposed under the Act. They submitted the key features of the scheme bringing about land tax were designed by Parliament, including the formula as to how the tax liability is calculated. What was left to be determined by the Minister was the rate within the formula which was to be approved by way of resolution by the National Assembly. They further argued that, the wide wording in Art 63 should be considered in the light of what was stated by this court in Du Preez v Minister of Finance that taxation is to be understood as being ‘imposed by the legislature or other competent authority.’

Held that, s 76 does not conflict the constitutional principle of separation of powers and Art 63(2)(b) which accords the National Assembly the power ‘to provide for revenue and taxation’. The National Assembly exercised its own powers and provided for land tax in s 76, which Art 63(2)(b) expressly authorised it to do so. The tax is based upon the unimproved site value of agricultural land multiplied by a rate. The Minister only determines the rate in the formula, subject to approval by resolution of National Assembly. The unimproved site value is to be determined in accordance with a procedure set out by the Minister in the regulations.

The court concluded that Parliament cannot be expected to deal with all details of implementing legislation and involve itself in the minute details of the tax and that there was nothing in the Constitution which prohibits Parliament from delegating subordinate regulatory authority to the Minister to address the administration and collection of the tax.

The approach of the High Court is thus correct.

With regard to the challenge against s 76B being an impermissible delegation in conflict with the constitutional principle of equality and Art 22(b) of the Constitution.

It is held that, Art 23(2) of the Constitution authorises parliament to enact legislation to provide indirectly for the advancement of previously disadvantage persons. This s 76B does by empowering the Minister upon application to exempt such landowners from land tax. The challenge to s 76B accordingly failed.

The regulations challenged by the appellants set out how the land tax is to be administered. They provide for the valuation of agricultural land, the appointment, powers and duties of a valuer and the process of valuation, objections against values included in a provisional valuation roll, the establishment, powers and duties of the valuation court appointed to consider and determine objections against valuations, appeals from that court to the High Court, the validity of the valuation roll and alternations to it. The regulations also provide for the furnishing of returns and the assessment of land tax, rebates and interest on tax, its recovery and the service of notices. Appellant in essence argued reg 4(4), reg (7)(a) and (b), reg 4(9)(b), reg 4(13) and reg 6(8), reg 13(1), reg 14(1) and (3), reg 15(b) offended against constitutional provisions or principles relied upon or the common law.

It is held that, appellant failed to show how each of these impugned regulations offended against constitutional provisions and principles relied upon or common law. The challenges were found to be without merit and the approach of the court a quo upheld.

It is further held that, the multiple further applications brought under the different case numbers were also without merit and the court a quo did not err in dismissing them.

Held further that, in exercising the court’s discretion with respect to costs, this court found it unnecessary to decide whether to adopt the general rule developed by the South African Constitutional Court as confirmed in Biowatch Trust v Registrar, Genetics Resources namely that in constitutional litigation, an unsuccessful litigant asserting constitutional rights ought not ordinarily to be ordered to pay costs. This was because of the manner in which the multiple applications were pursued which amounted at the minimum to be within the category of manifestly inappropriate and thus outside the scope of Biowatch. The conduct and unnecessary proliferation of this litigation are to be discouraged, resulting in considerable costs and judicial time being spent upon it.

It is thus held that, the appeal is dismissed with costs (the costs are to include the costs of one instructing and two instructed counsel). Kambazembi Guest Farm CC v Minister of Lands and Resettlement (SA 74-2016) [2018] NASC (27 July 2018)

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Liability of a judicial officer - The appellant was tried and convicted in the Magistrate’s Court, Windhoek, by the second respondent after his case had been postponed several times. At some stage during the proceedings in the Magistrate’s Court, the State had closed its case but the magistrate appeared not to accept that, prompting the prosecutor to lead further evidence.

The appellant was then convicted and sentenced to over three years imprisonment. His appeal to the High Court succeeded and the conviction and sentence were set aside and he was released.

The High Court remarked in its judgment on appeal that the manner in which the second respondent conducted the trial was a ‘disgrace’ and a ‘failure of justice’ and that it was the magistrate, not the prosecution, who was determined to secure the conviction of the appellant.

The appellant issued summons against the Government of Namibia represented by the Minister of Justice in his official capacity; the magistrate, the Magistrates Commission, and the Attorney-General, seeking compensation against them, jointly and severally, the one paying, the others to be absolved. The cause of action is that the magistrate’s conduct of the trial of the appellant was wrongful and unlawful and deprived him of his liberty otherwise than in according with procedures established by law, as contemplated by Art 7 of the Namibian Constitution.

The State respondents pleaded that they were not liable for the conduct of the judicial branch which is guaranteed independence under the Constitution; that judicial officers are not in the employ of the State and that, at common law, the State is immune from suit for the actions of the judicial branch.

After pleadings closed, the parties invited the High Court, by stated case, to determine if the State was liable for the wrongful and unlawful conduct of the second respondent, on the assumption that in the conduct of the trial of the appellant the magistrate acted mala fide, maliciously and fraudulently.

The full bench of the High Court was divided.

The majority of two held that the independence of the judiciary and the separation of powers militated against holding the State liable for the conduct of the judicial branch. The majority took the view that as an aggrieved person the appellant had recourse against the second respondent in her personal capacity and that it was not necessary or appropriate to make the State liable for her conduct as the State had no power of control over her performance of the judicial function. The claim was dismissed.

The minority of one held that the existence of a remedy against the individual member of the judiciary was no bar to recognising a remedy in public law against the State. That Art 5 of the Constitution obligates the judiciary to respect and uphold the rights and freedoms guaranteed by the Constitution. That Art 25(3) and (4) of the Constitution empower the court to forge new remedies in public law to give full effect to constitutionally guaranteed rights and freedoms. That recognising State liability for judicial misconduct is necessary to vindicate such rights. The minority therefore resolved the question of State liability in favour of the appellant.

On appeal by the appellant to the Supreme Court, held that the existence of a remedy against the actual wrongdoer is an important consideration whether or not to recognise State liability for the actions of the members of the judiciary. Held further that recognising a new remedy in public law against the State for such conduct is not necessary and that such liability may undermine the independence of the judiciary and possibly create a greater mischief than not doing so.

Appeal dismissed and no order as to costs. Visagie v Government of the Republic of Namibia (SA 34-2017) [2018] NASC (3 December 2018)

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Tax: Section 23(2)(a) of the Communications Act 8 of 2009 (the Act) authorises the Communications Regulatory Agency (CRAN) to by regulation impose a levy to ‘defray’ its ‘expenses’ as contemplated under s 23(1) of the Act, for the purpose of regulating the telecommunications, postal and radio spectrum industries. CRAN by regulation published on 13 September 2012 imposed a levy of 1.5% on gross income of telecommunications providers, including the first respondent (Telecom). Telecom refused to honour the levy and challenged s 23(2)(a) and the regulation made under it in the High Court, alleging that the regulation impermissibly had retroactive effect, and s 23(2)(a) either constituted an unconstitutional tax without representation, or constituted an unconstitutional delegation by parliament of plenary legislative power.

The High Court upheld the constitutional challenge holding that s 23(2)(a) of the Act was a tax as it went beyond what s 23(1) authorised; there was no connection between the regulatory scheme and the charges levied based as it was on a percentage and without actual or properly estimated costs of regulation. The order of invalidity took effect from the moment the Act came into force as no order was made delaying the order of invalidity. Costs were ordered against CRAN.

On appeal by CRAN to the Supreme Court:

Held: The High Court misdirected itself on the applicable test for determining if a charge is a tax or a regulatory levy; that even if a charge has all the attributes of a tax but is connected to a regulatory scheme, it will not be a tax.

Held: The Act represents a complex and complete regulatory framework for the affected industries with substantial benefits and privileges to those granted licenses to operate under it; and, therefore, there is a relationship between the scheme and those being regulated.

Held: The pith and substance of the Act (or its dominant purpose) is to regulate behaviour and the raising of revenue is only incidental. The levies imposed are intended for the carrying out of the policies of the legislation and need not be directly linked to the costs of regulation.

On appeal, court considered if s 23(2)(a) was unconstitutional on the alternative ground that it granted uncircumscribed plenary legislative power to CRAN.

Held: Although a levy of 1.5% on annual turnover was not per se unconstitutional, as it was within the international norm as shown in evidence and in cases considered, the absence of clear (or any) guideline or limit for its exercise failed to remove the risk of an unconstitutional exercise of discretionary power by CRAN, and rendered the section and regulation made thereunder unconstitutional. But order of invalidity made to operate only from date of judgement.

Held: That for the period preceding the taking effect of order of invalidity, CRAN can only exact payment from Telecom such amounts as are due after the regulation came into force.

As regards costs, held that the litigation enriched Namibia’s constitutional jurisprudence and none of the parties was frivolous; and therefore it was an appropriate case for each party to bear its own costs; both in the High Court and on appeal.

Appeal allowed and order of the High Court corrected appropriately. Communications Regulatory Authority of Namibia v Telecom Namibia Ltd (SA 62 - 2016) [2018] NASC (11 June 2018)

CONTRACT LAW

Contract – damages: The appellant and respondent entered into a written contract on the 8 October 2009, whereby the latter undertook to effect certain building works to the appellant’s guesthouse. Between 9 October 2009 and 21 September 2010, the respondent executed certain of the building works as per the agreed contract and the quantity surveyors issued five valuation certificates for payments to the respondent. Appellant paid less on certificate no. 2 and disputed certificate no. 5 and it was returned for revaluation. While the building works were still in progress, the appellant allegedly cancelled the contract and the respondent accordingly sued the appellant for the total amount of N$827,548.63 together with interest at the rate of 20% per annum from 23 March 2011 to date of payment. The appellant counter-claimed, claiming penalties and damages.

The court a quo dismissed both counter-claims with costs in favour of the respondent. In respect of the claim for damages, the court a quo held that the manager of the appellant, who was the only witness called to testify on all the counter-claims, lacked the necessary competence to testify as an expert witness on such claims. With respect to the claim for penalties, the court a quo found that in terms of clause 19 of the contract, penalties only become payable upon issuance of a certificate by an architect to the effect that in the opinion of such architect the work should reasonably have been completed within the time provided for, and no such architect was employed to perform such functions and no such certificate was issued either by the architect or by the manager of the appellant, who testified that he himself performed the role of the architect as provided for by the clause. It is against this backdrop that the appellant now appeals to this court.

It is clear from the submissions by counsel for the appellant that the only issue remaining in dispute is that of penalties and costs in that regard, meaning that the issue of damages has been abandoned.

Held that the parties contracted on the basis of clause 19 and the interpretation thereof is clear.

Held, that it was common cause that no certificate was issued as required by clause 19. Appellant cannot claim penalties in terms of clause 19 without having met the obligations imposed by the said clause.

Held further that the appellant failed to inform Mr Gudi of the respondent and the quantity surveyor that no architect would be required as per the contract and that Mr Schmidt of the appellant would fulfill the role of such architect.

Held further that the court a quo was correct in finding that Mr Schmidt lacked the necessary expertise to formulate the necessary opinion required in terms of clause 19 and that Mr Schmidt, being the son of the owner of the appellant or the manager of the appellant, was an interested party, not a professional and it is highly unlikely that respondent would have then agreed that appellant could be a judge in his own cause.

Held further that all other issues raised by counsel was not necessary to consider as the interpretation of clause 19 was a decisive factor in the appellant’s case.

Held further that costs should follow the cause. Prestige Properties CC v NA Construction CC (SA 73-2016) [2018] NASC (3 April 2018)

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Joint and several liability: The appellant is a foreigner who entered into a car hire agreement with the first respondent, a close corporation. The second and third respondents are the members of the first respondent. The appellant sued the first respondent, alternatively the second and third respondents jointly and severally, in the court a quo for repayment of N$168 963, 41 and N$ 28 653, 00 in respect of damages he allegedly caused to a vehicle hired for use on a safari in Namibia. The court a quo found that the respondents made material representations regarding the insurance offered to the appellant. However, the court a quo rejected the submission by the appellant alleging that the second and third respondents should be held liable jointly and severally with the first respondent under the Close Corporation Act, because that was not the case of the appellant. The court a quo further found that the appellant failed to discharge his onus in proving that the respondents’ insurance covered the loss to the vehicle arising from him driving through a riverbed on an unmarked road, not authorized by the appellant. Regarding the appellant’s alternative claim of unjust enrichment, the court a quo found that the respondents failed to produce proof of repairs to the damaged vehicle and that first respondent therefore was enriched at the appellant’s expense. In respect of the claim of N$28 653, the court a quo found that the appellant’s arguments were meritless as this amount was clearly itemized by the respondents as expenses they incurred in order to extract the vehicle from the riverbed. Lastly, on the issue of whether the second and third respondents should be held jointly and severally liable with the corporation for the amount of N$168 963,41, the court a quo found no basis for such liability on the case as pleaded.

Aggrieved, the appellant now appeals against the finding of the High Court that second and third appellants were n