CIVIL INDEX TO HIGH COURT JUDGMENTS DELIVERED DURING 2013
THE HIGH COURT JUDGMENT INDEX 2014
THE HIGH COURT JUDGMENT INDEX IS A SUMMARY OF ALL CIVIL, CRIMINAL AND LABOUR JUDGMENTS DELIVERED AND HANDED DOWN IN THE HIGH COURT OF NAMIBIA DURING THE YEAR 2014. THE INDEX IS COMPILED TO ASSIST LEGAL PRACTITIONERS, LAW STUDENTS AND THE PUBLIC TO EASILY REFER TO UNREPORTED JUDGMENTS OF THE HIGH COURT AS COMPETENT AUTHORITIES.
THE INDEX HAS BEEN PREPARED WITH THE APPROVAL OF THE JUDGE-PRESIDENT AND UNDER THE SUPERVISION OF THE CHIEF REGISTRAR.
Table of Contents
SUBJECT INDEX 7
ABSOLUTION FROM THE INSTANCE 7
ADMINISTRATIVE LAW 7
ADMINISTRATION OF ESTATES 9
APPLICATIONS/ MOTION PROCEEDINGS 9
APPLICATION FOR EJECTMENT 13
APPLICATION FOR RECUSAL 14
APPLICATIONS UNDER POCA 14
CASE MANAGEMENT RULES 15
CIVIL APPEALS 17
COMPANY LAW 17
CONDONATION 17
CONSOLIDATED PRACTICE DIRECTIVES 17
CONSTITUTIONAL LAW 17
CONTEMPT OF COURT 19
CONTRACT 20
COSTS 25
DEFAMATION 28
DEFAULT JUDGMENT 29
EXCEPTION 29
IRREGULAR PROCEEDINGS 32
INTERPRETATION OF STATUTES 34
INQUEST 35
INTERPLEADER 36
INTERDICT 36
INTERPLEADER 36
JOINDER 36
JURISDICTION OF THE HIGH COURT 37
LAW ON AGENCY 37
LAW OF DELICT 38
LAW ON DURESS 39
LAW OF EVIDENCE 39
LAW OF INSOLVENCY 40
LAW OF PROPERTY 40
LEGAL ETHICS 42
LOCUS STANDI 43
MATRIMONIAL 43
POSTPONEMENT 45
PLEADINGS 45
PRESCRIPTION 48
REQUEST FOR FURTHER PARTICULARS 48
RESCISSION 48
RES JUDICATA 50
REVIEWS 50
SECURITY FOR COSTS 51
SPOLIATION 51
SUMMARY JUDGMENT 53
URGENT APPLICATIONS 54
VINDICATION 55
CASE SUMMARIES 57
Angula v Mavulu (I 2690/2010) [2014] NAHCMD 250 (22 August 2014). 57
Awaseb v Kandjii (I 2696-2012) [2014] NAHCMD 315 (24 October 2014). 57
Balzer v Vries (A 06/2014) [2014] NAHCMD 32 (4 February 2014). 58
Burger v Bowig (I 1771/2013) [2014] NAHCMD 268 (16 September 2014). 59
Council of the Municipality of Windhoek v Claudia Properties CC (A117/2010) [2014] NAHCMD 344 (14 November 2014). 59
Congo Trading CC v E & Jay Trading Enterprises CC (I 2971/2012) [2014] NAHCMD 136 (14 April 2014). 60
Davey’s Micro Construction CC v Ngende (I 118/2012) [2014] NAHCMD 238 (8 August 2014). 60
De Wilde v The Minister of Home Affairs (A 147/2013) [2014] NAHCMD 160 (22 May 2014) 61
Delie v Hoebeb (I 2498/2013) [2014] NAHCMD 271 (18 September 2014). 61
Durand v NJC Motors (I 3402/2009) [2014] NAHCMD 44 (13 February 2014). 62
Gawanab v !Khomanin Traditional Authority (A 419/2013) [2014] NAHCMD 313 (22 October 2014). 62
Gloria Dawn Farming CC v Van Der Merwe (A290/2003) [2014] NAHCMD 7 [21 January 2014]. 63
Greeff v Tona Trade Holdings CC (I 223/2013) [2014] NAHCMD 12 (22 January 2014). 63
Government of the Republic of Namibia v Heita (I 1402/2012) [2014] NAHCMD 69 (26 February 2014). 64
Hanstein v Hanstein (I 483/2014) [2014] NAHCMD 340 (07 November 2014). 64
Hashipala v Petrus (I 4238/2011) [2014] NAHCMD 100 (28 March 2014). 66
Henock v The Attorney General (A 172/2011) [2014] NAHCMD 366 (27 November 2014). 67
Ilse v Government Institutions Pension Fund (I 1929/2012) [2014] NAHCMD 122 (04 April 2014). 68
Independent Asphalt Services Namibia CC v Namibia Construction (Pty) Ltd (I 128/2012) [2014] NAHCMD 329 (6 November 2014). 70
Jin CV Joint Fitment Centre CC v Hambabi (I 1522/2008) [2014] NAHCMD 73 (6 March 2014). 70
Kamahere v The Government of the Republic of Namibia (A 58/2014) [2014] NAHCMD 209 (10 July 2014). 71
Kandjii v Awaseb (I 2696/2012) [2014] NAHCMD 177 (11 June 2014). 72
Kapia v Minister of Regional and Local Government Housing and Rural Development (A 333/2012) [2013] NAHCMD 13 (24 January 2014). 73
Kauvee v Kauvee (I 2961/2013) [2014] NAHCMD 161 (22 May 2014). 73
Lubrication Specialists (Pty) Ltd v Etosha Lubricants CC (I 2698/2012) [2014] NAHCMD 18 (24 January 2014). 73
Markus v Telecom Namibia Ltd (I 286/2009) [2014] NAHCMD 51 (26 February 2014). 74
Markus v Telecom Namibia Limited (I 286/2009) [2014] NAHCMD 207 (23 June 2014). 74
Meyer v Scholtz (I 3670/2012) [2014] NAHCMD 148 (25 March 2014). 76
MLN Extreme Safety Wear CC v Rockstar Footwear (Pty) Ltd (I 351/2013) [2014] NAHCMD 49 (14 February 2014). 76
Munyelutha v Munyelutha (I 201/2013) [2014] NAHCMD 173 (04 June 2014) 77
Mushindi v Hollard Insurance Company of Namibia (I 1362/2013) [2014] NAHCMD 229 (31 July 2014). 78
Mwashekele v The Prosecutor General (POCA 3/2013) [2014] NAHCMD 349 (20 November 2014). 78
Nakanyala v Nakanyala (I 394/2012) [2014] NAHCMD 47 (14 February 2014). 78
Namibia Construction (Pty) Ltd v The Chairperson of the Tender Board (A 283/2007) [2014] NAHCMD 6 (21 January 2014). 79
Namibia Security Supplies CC v Schidlowski (I 4113/2011) [2013] NAHCMD 282 (01 October 2014). 79
Naruseb v The Government of the Republic of Namibia (A12/2014) [2014] NAHCMD 74 (19 February 2014). 81
New Era Investment (Pty) Ltd v The Roads Authority (A 05/2014) [2014] NAHCMD 56 (20 February 2014). 81
Nghimtina v Trustco Group International Ltd (I 2976/2010) [2014] NAHCMD 11 (23 January 2014) 82
Nguvauva v Minister of Regional and Local Government Housing (A 254/2010) [2014] NAHCMD 290 (2 October 2014). 82
PDS Holdings (BVI) Limited v Zaire (I 3364/2012) [2014] NAHCMD 83 (13 March 2014). 83
Platt v Platt (I 2407/2013) [2014] NAHCMD 84 (13 March 2014). 83
Premier Construction CC v Chairperson of the Tender Committee of the Namibia Power Corporation Board of Directors (A 200/2014) [2014] NAHCMD 270 (17 September 2014). 84
Promar CC v Blue Seal Exporters CC (I 236/2004) [2014] NAHCMD 10 (23 January 2014) 84
Purity Manganese (Pty) Ltd v Maritima Consulting Services CC (A 295/2014) [2014] NAHCMD 350 (20 November 2014). 85
Rall v Professional Provident Society Insurance Company (Namibia) Ltd (A 224/2013) [2014] NAHCMD 249 (22 August 2014) 85
Sandvoss v Sudwischer (I 719/2013) [2014] NAHCMD 17 (24 January 2014 87
Schutz v Pirker (A 374 /2013) [2014] NAHCMD 341 (12 November 2014). 87
Shaanika v Minister of Justice (A 411/2013) [2014] NAHCMD 16 (24 January 2014). 89
Shaululu v The Prosecutor-General (POCA 2/2013) [2014] NAHCMD 222 (24 July 2014). 89
The Municipal Council of Gobabis v Smith (A 36/2014) [2014] NAHCMD 361 (27 November 2014) 90
Tjihero v Kauari (I 2845/2012) [2014] NAHCMD 27 (30 January 2014). 90
Tumas Granite Close Corporation v The Minister of Mines and Energy (A 95/2013) [2014] NAHCMD 210 (10 July 2014) 91
Useb v Gawaseb (I 1625/2012) [2014] NAHCMD 283 (1 October 2014). 91
Van der Merwe v Plastic Packaging (Pty) Ltd (I 1218/2012) [2014] NAHCMD 52 (18 February 2014). 92
Van Der Merwe v Nedplan Insurance Brokers (Pty) Ltd (A 402/2013) [2014] NAHCMD 34 (5 February 2014). 92
Van Straten N.O. v Namibia Financial Institutions Supervisory Authority (I 647/2012) [2014] NAHCMD 31 (31 January 2014). 93
Van Rooi v Town Council of Rehoboth (A 133/2014) [2014] NAHCMD 317 (30 October 2014) 93
Van Wyk v Van Wyk (I 2995/2013) [2014] NAHCMD 5 (20 January 2014). 93
Worker Freight Services v The Commissioner for Customs and Excise (A 128/2012) [2014] NAHCMD 38 (07 February 2014). 93
Wiers v Wiers (I 3133/2011) [2014] NAHCMD 66 (26 February 2014). 94
SUBJECT INDEX
ABSOLUTION FROM THE INSTANCE
Absolution from the instance - At close of plaintiff’s case, defendants applied for absolution from the instance. Test for absolution restated. Plaintiff had not made out a prima facie case for a claim based upon an actio iniuriarum which had in any event not been properly pleaded. The plaintiff had also not made out a prima facie case of negligence on the part of any of the defendants and in any event not made out a prima facie case of a casual connection between the damages claimed and any breach of a duty of care. Nor had the damages themselves been prima facie established. Van Zyl v Bennie Venter Legal Practitioners (I 3792/2012) [2014] NAHCMD 352 (13 November 2014); See further Labuschagne v Namib Allied Meat Company (Pty) Ltd (I 1-2009) [2014] NAHCMD 369 (1 December 2014).
ADMINISTRATIVE LAW
Administrative law - Administrative officials - Administrative action - What constitutes – Minister is an administrative official as contemplated in Article 18 of the Namibian Constitution- Decision of Minister to, in terms of the Traditional Authorities Act, 2000, approve the designation of a Chief amounts to administrative action. Customary law - Traditional Authorities- when performing their functions in terms of the Traditional Authorities Act, 2000 are exercising public power, and in exercising those powers the traditional authority is an administrative body as contemplated in Article 18 of the Namibian Constitution. Kapia v Minister of Regional and Local Government Housing and Rural Development (A 333/2012) [2013] NAHCMD 13 (24 January 2014).
Administrative law – Right to the audi alteram partem rule of natural justice – Court held that natural justice is a flexible doctrine and the rule is not cut and dried for it vary infinitely – Court held that as a general rule fairness dictates that prejudicial information should be disclosed to the subject of the information to enable him or her to contradict or correct it – Nevertheless a careful distinction should be drawn between the information and the evaluation thereof during the process of the decision itself – And a right to discovery of prejudicial information is not an automatic feature of natural justice – In instant case the information complained of was not one of the two factors that led to the rejection of the applicant’s tender – The court found that there has not been a failure of fairness. Administrative law – Judicial review – In terms of art 18 of the Namibian Constitution – Tender to do work – Applicant seeking review of decision of first respondent (a public authority) rejecting applicant’s tender in favour of another tenderer – Court held that there is no onus on the public authority to justify its conduct – Onus rests on the applicant for review to satisfy the court that good grounds exist to review the conduct complained of – Good grounds are grounds that are cogent and relevant – The grounds must be set out in the founding affidavit not grounds put forth or as sanitized by counsel in submissions from the Bar – Court held that it is up to a decision maker who knows what he or she desires to achieve to decide what information or facts to collect, what criteria to apply to the information or facts collected and what weight of importance and relevance to put on each piece of information or facts and each individual criterion – In the instant case the criteria or factors applied are contained in the first respondent’s procurement policy, rules and regulations the first respondent’s controlling line ministry’s policy – Court held that the first respondent being a public authority was entitled to apply the Ministry’s policy – The test is not what particular factors the public authority could apply and what weight it would put on each factor but whether the factors and weight were applied equally to the entire competition – The same goes for the criteria for factors to apply to the information and facts collected – Having rejected all the grounds of review the court dismissed the application with costs. New Era Investment (Pty) Ltd v The Roads Authority (A 05/2014) [2014] NAHCMD 56 (20 February 2014).
Administrative law – Legal duties of administrative officials and administrative bodies – The ministerial scheme of approval of proposed designation of a Chief in terms of s 5 of the Traditional Authorities Act 25 of 2000 – Court found that the Minister has discretionary power under s 5(1) of the Act to act or not as opposed to his or her obligation to act under s 5(2) of the Act – Court held that public authorities (administrative officials and administrative bodies) have many legal duties, under which they have an obligation to act, as opposed to their legal power, which give them discretion whether to act or not – Court found that after the Minister had decided that in his discretion the two applications (of Kilus and of Keharanjo) complied with s 5(1) of the Traditional Authorities Act 25 of 2000 he had the obligation to approve their designation but for the fact that he was presented with two applications – Court found further that upon the death of Keharanjo the Minister was obliged to approve Kilus’s designation as Chief of the Ovambanderu Community – Consequently, court concluded that mandamus should issue to compel the Minister to execute his ministerium or prescribed task under s 5(2) of Act 25 of 2000 which is to approve the designation of Kilus as the Chief of the Ovambanderu Community – On authority, court held that where an Act creates an obligation and enforces the performance in a specified manner, the court takes it to be a general rule that performance cannot be enforced in any other manner – Court held further that mandamus is an appropriate remedy in the circumstances to prevent breach of duty and injustice – Consequently, court granted the relief sought with 70 per cent of the costs because counsel of counter-applicants amended certain paragraphs relating to the relief sought during his oral submissions. Nguvauva v Minister of Regional and Local Government Housing (A 254/2010) [2014] NAHCMD 290 (2 October 2014).