Elia v Minister of Safety and Security (HC-MD-CIV-ACT-OTH-2017-02151) [2022] NAHCMD 477 (13 September 2022) – statutory notice must be met and pleaded as such
The plaintiff instituted action against the defendants arising from an incident that occurred on 23 November 2016, whilst he was detained in the Windhoek Correctional Facility. The plaintiff claimed damages for assault and torture which he was allegedly subjected to at the hands of the Correctional Officers. The defendants filed an exception to the particulars of claim.
On 4 February 2019, the court upheld the exceptions raised on behalf of the defendants and granted the plaintiff leave to amend his particulars of claim. Aggrieved by the outcome of the interlocutory proceedings, the defendant sought leave to appeal the court’s ruling of 4 February 2019, which was granted. The appeal was however dismissed on 30 March 2022 and the matter was referred back to the High Court to allow the plaintiff the opportunity to amend his particulars of claim. The defendants filed their consequential plea and raised two special pleas. In arguments, the defendants only pursued the special plea that the plaintiff did not provide statutory notice of 1 month prior to the institution of the proceedings in contravention of section 133(4) of the Act, which provisions were peremptory.
The court considered the applicable principles of law and stated that ‘it was common cause that the plaintiff did not give the required 1 month notice prior to the institution of his claim. When the matter was remitted back to the High court, the plaintiff was granted the opportunity to amend his particulars of claim, which he did, but the averment regarding the notice in terms of section 133(4) was conspicuously absent from the amended particulars of claim.
It has been decided that failure to give written notice in terms of s 133(4) is fatal to the action of the plaintiff and is null and void, and that the statutory precondition of s 133(4) must be met and pleaded by a claimant to successfully launch any such claim. That statutory requirement was not met in this instance, or if it was, it was not pleaded as it should have been. The applicant’s case on the papers did not disclose a cause of action and can thus not succeed. Having referred to the relevant case law, it was crystal clear that the plaintiff had no defence against the special plea raised by the defendant regarding the failure to comply with s 133(4) and that omission was fatal to the plaintiff’s case.’
In the result, the special plea succeeded.
Serve Inv Eight Four v Agricultural Prof Services (HC-MD-CIV-MOT-GEN-2021-00096) [2022] NAHCMD 471 (9 September 2022) – motion proceedings – disputes in respects of attempts to comply with court order – Plascon-Evans rule applied where there is dispute of facts on the papers
In terms of an agreement concluded between the applicant and the first respondent, the applicant was engaged in providing services to assist the first respondent in its farming operations. During the subsistence of that agreement, equipment, machinery and tools were brought to the farm whilst the farming operations were in progress. When the agreement come to an end, disputes arose as to which assets belonged to the applicant or the first respondent as the case may be. Following failed attempts to resolve the existing disputes, the first applicant brought spoliation proceedings in the High court on an urgent basis. The matter came before a judge who heard the matter as an urgent one and made certain orders in favour of applicant, and the matter was finalized.
Subsequent to that, it became apparent that paragraph 2.2 of the order which directed the parties to prepare a joint inventory list of all assets reflecting the ownership in and to some currently being held and/or found to be on the farm, by 28 February 2021, was troublesome. Given the disputes concerning ownership at that stage, the parties were unable to compile a list.
The court had to determine whether the respondents were in contempt of the court of the order earlier granted by another judge, and stated that; there were substantial disputes of facts concerning the attempts to comply with the earlier order of court; the onus was on the applicant to prove beyond a reasonable doubt the occurrence of the following:- the existence of the order; that the order came to the notice of the respondents; that the order was not complied with; and, such non-compliance was occasioned by willfulness.
The court followed the approach established in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd [1984] (3) SA 623 (A) and came to the conclusion that it was not possible to resolve the factual disputes on the papers. The applicant had, on the papers, also failed to prove to the required degree of proof that there was any wilful or intentional disobedience of the order.
In the result, the application was dismissed with costs.
Minister of Education v The Review Panel (HC-MD-CIV-MOT-GEN-2022-00364) [2022] NAHCMD 466 (8 September 2022) – requirements for urgency and interim relief in an application to stay the operation and execution of challenged decision
Whereas the Review Panel had ordered the suspension of an award of a tender for catering services to government school hostels and directed the applicant Ministry to re-evaluate the process, the Ministry applied for the review and setting aside of that decision which was to be heard in the normal course. The Ministry further approached the court on urgent basis for interim relief to stay the operation and execution of that decision pending the consideration and determination of the application for review and setting aside of that decision. The second respondent whom the Review Panel found was in many instances the lowest bidder and should have been nominated as a successful bidder, opposed the application.
The court had to only considered whether the matter was urgent and whether the applicant was entitled to the interim relief sought, and held that the applicant met the requirements of urgency and interim interdict and was therefore entitled to the relief sought. In deciding that, the court stated that:
Rule 73 which governs urgent applications requires an applicant to set out explicitly the circumstances which he/she claims render the matter urgent and the reasons why he/she claims he/she could not be afforded substantial redress at a hearing in due course. The court was satisfied with the reason submitted by the Ministry that if the ruling of the Review Panel was not stayed, the performance of some 63 000 leaners in government school hostels would be negatively impacted.
The requirements of an interim interdict are, prima facie right; a well-grounded apprehension of irreparable harm, if the interim relief is not granted; that the balance of convenience favours the granting of the interim interdict; and, the lack of another satisfactory or adequate remedy in the circumstances. The court was satisfied that these requirements were met.
On the issue of costs, the court stated that ‘it is trite law that the determination of costs is a discretionary matter based on the facts of each case. In the present matter, the second respondent was entitled to protect its right arising from the decision of the Review Panel in its favour. The court was of the opinion that the opposition mounted by second respondent was not made in bad faith. Similarly, the Minister acted in the public interest, to protect the interests of the recipient of existing catering services. In light of that, the court ordered that each party bear its own costs in respect of PART A of the application. Note that this matter continues on PART B – merits – of the application.
Shivute v President of the Republic of Namibia (HC-MD-CIV-MOT-GEN-2021-00288) [2022] NAHCMD 464 (8 September 2022) – employment dispute in the Intelligence cluster
The applicant was transferred from another ministry in the Government to the Namibia Central Intelligence Service (NCIS – 4th respondent) and because of an administrative oversight, he received double payments for around two years. As a result, he was criminally charged with 31 counts of theft in the Magistrates Court, but the charges were withdrawn. However, this resulted in disciplinary proceedings which led to the termination of his employment. Applicant appealed to the President in terms of regulation 11(18) of the NCIS Regulations, which appeal did not go in his favour.
Dissatisfied thereby, applicant brought an application in the High Court for an order of reinstatement. In particular, the applicant challenged the 1st respondent’s decision to dismiss his appeal, the 2nd respondent’s decision to convict and dismiss him as well as the 5th respondent’s decision to deny him the right to legal representation at his disciplinary proceedings.
The court considered the matter and stated that 1st respondent did not apply his mind to the matter; made his decision on the wrong facts, or disregarded the fact that the charges of theft on which the entire disciplinary proceedings was based were withdrawn. In conveying that legal representation was excluded, 5th respondent acted arbitrarily and in breach of that regulation 11(13). It was questionable how being being charged with offences without being convicted – as the charges were withdrawn – could conceivably constitute the misconduct defined in section 22(e) of the NCIS Directives.
The court was satisfied that the disciplinary proceedings were tainted by the fact that the applicant was denied legal representation in an arbitrary fashion and that the applicant was unlawfully dismissed. In respect of reinstatement, the applicant was kept on at NCIS for almost three years while his appeal to the President was being considered. Dishonesty was not proven, and there was no reason why applicant could not be reinstated. Thus, the court held that that the applicant was unfairly dismissed and should be reinstated.
Petrus v S (HC-MD-CRI-APP-CAL-2021-00082) [2022] NAHCMD 455 (2 September 2022) – Criminal law – improper notice of appeal constitutes a nullity and remains a nullity
The appellant was convicted of four counts namely; fraud, defeating or obstructing the course of justice, forgery and uttering a forged document in the Magistrate’s Court. On 24 August 2017, she was sentenced to N$20 000 fine or four years’ imprisonment of which N$10 000 or two years’ imprisonment were suspended for a period of five years on usual conditions. The four counts were taken together for purpose of sentencing. Aggrieved by the convictions, she appealed on 12 March 2019, but the appeal was inactive until it was pursued during August 2021. The appeal was also late and the appellant filed an application for condonation for the late filing of the notice of appeal.
On appeal, the High court considered the appeal and stated that ‘the appellant failed to comply with Rule 67 of the Magistrate’s Court Rules and filed an improper notice of appeal with inconsistencies in dates which caused confusion. Appellant was unable to give a satisfactory explanation concerning her improper notice of appeal. Grounds of appeal are also vague, not clearly and specifically stated. Improper grounds of appeal amounts to a nullity as well as the defective notice of appeal. Once a nullity, it remains a nullity and it cannot be resurrected or revived, neither by condonation of non-compliance with the rules nor by amendment of the defective notice of appeal. Counsel for the appellant was under obligation to comply with the rules of court as the notice of appeal constitutes the very foundation of the appeal. If the notice of appeal does not comply with the rules of court, it is a nullity without force and effect.’
In the result, the matter was struck from the roll and the court specifically ordered that the appeal should not be enrolled on the roll until the appellant files a fresh notice of appeal accompanied by an application for condonation.
Fedden Mainga Mukwata writes in his personal capacity as an admitted Legal Practitioner and founder of FASZ Legal Consultancy, as part of his efforts to promote access to law and justice and may be reached at consultfasz@gmail.com