THE JUSTICE TRAINING CENTRE

CIVIL PROCEDURE & PRACTICE READER (2011)

HIGH COURT

Updated and Namibianised1

By

Yvonne Dausab (Ms)

_____________________________________________

1.0 PRELIMINARIES

Subject description

Civil Procedure and Practice, Prescription and Costs, is an integral part of the practical legal training
program of the Justice Training Centre. In terms of the Legal Practitioner’s Act, 1995(Act 15 of 1995) 2
candidate legal practitioners undergo the training in preparation for the Legal Practitioner’s Qualifying
Examination (LPQE). The subject deals with conceptual, procedural and specific components of civil
practice in the High and the Lower Courts. It covers aspects relating to rules of procedure, applicable
principles of substantive law (i.e contract, delict, labour, commercial etc), their relationship with
adjective law and its application to problems faced by clients. The subject content is designed with an
emphasize on practical examples.

Exit learning outcomes

This program is designed as a post graduate professional training program. The assumption is
respectfully made that candidates have a reasonable understanding of the fundamental underpinnings
of the law in general and civil procedure in particular. Consequently and in preparation for the LPQE
the candidate must be able to:

 develop the ability to litigate effectively;

1
I am indebted to Ms SML De Klerk (research on Namibian case law for selected topics), and my
personal assistant Jonathan M, who has been of great assistance to finalise the High Court portion of
the reader. The Justice Training Centre is also Highly Indebted to the Association of the Law Society of
South Africa for agreeing to the use of their material as a basis to update the materials for the JTC.
Please take further notice that: where we could not readily find Namibian case law on an issue we
cited the South African cases but implore candidates to always diligently search for Namibian
decisions and certify as such to comply with the High Court Practice Directions. This reader should be
read in tandem with the Legal Drafting Reader.
2
See sections 4 (1) & 5(1) of the Act.

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 advise clients and execute their instructions;
 develop the necessary skills to draft notices, pleadings, etc.;
 understand the relationship between the profession and the court;
 understand the relationship between the attorney and the client, to be able to appraise at an early
stage the factual and legal implications of the client's case and be able to advise the client on:
 the cause of action,
 the applicable substantive law
 understand the rules, procedures and legal principles applicable in each case; and
 know how to identify the correct authorities and apply them to substantiate claims, prepare
defences and augment a point of law argued for purpose of civil, practice and procedure.

Some general observations

The attention of candidates is drawn to the fact that these notes are only meant to give an overview of
practice in the High Court.

Candidates must see to it that they are aware of the Consolidated Practice Directives & the Judicial
Case Management System when they start to practice.

Candidates must study the rules and relevant portions of the text books where indicated.

Candidates should have a thorough practical understanding of civil procedure {with regard to various
causes of action} in the High Court, from the stage of taking instructions through to appeal, taking into
consideration aspects such as ethics, costs, drafting of bills of costs, other courts and alternative ways
of dispute resolution.

In particular the candidates should:

Understand the functioning of the courts with specific reference to the various officials and the courts
in which civil litigation can be conducted.

Develop a good understanding of the rules of court in practical application.

Understand the relationship between the profession and the Court with special reference to the legal
practitioner’s responsibility as an officer of court.

Understand the relationship between the legal practitioner and the client, be able to appraise at an
early stage the factual and legal implications of the client's case and be able to advise the client on:

 Prospects of success
 Cost implications
 What the litigation process will entail, especially regarding procedure and timing.

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 Know the facts of your client's case, know the applicable law, correctly conceptualise and
formulate your client's claim or defence, use the correct procedure and know your file.

Know that pleadings have a three - fold function.

They must ensure that both parties know what points are the issue between them so that each party
knows what case he/she has to meet. He or she can thus prepare for trial knowing what evidence he
or she requires to support his/her own case and to meet that of the opponent. "The object of pleading
is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of
the other party to one issue and then at the trial, attempt to canvas another".

Pleadings are to assist the Court by defining the limits of the action. However, in the absence of
agreement between the parties the court may allow amendments at any stage of the proceedings.
"The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any
departure would cause prejudice or would prevent full enquiry. But within these limits the court has a
wide discretion. For pleadings are made for the court and not the court for pleadings".

Pleadings place the issues raised in the action on record so that when a judgment is given such
judgment may be a bar to the parties litigating again on the same issues, enabling a party to raise a
defence of res judicata if the other party attempts to raise the same issues.

See Becks Theory and Principles of Pleadings in Civil Actions 6th edition 2002 43 and 44

The following statement by Wessels J in Benson and Simson v Robinson 1917 WLD 126 remains
relevant after more than ninety years.

"The plaintiff shall state in concise terms what facts he intends to rely on and to prove and the
defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that
it may not be necessary to have the case adjourned, thereby causing wasted expense to both litigants
from which the State and the lawyers alone derive profit. It has therefore often been stated by our
Courts and it cannot be too often stated, that the object of requiring the parties to file pleadings is to
enable each side to come to trial prepared to meet the case of the other”.

2.0 GENERAL SOURCES OF CIVIL PROCEDURE & PRACTICE

2.1 Constitution

The Namibian constitution is the supreme law of the land is therefore the ultimate and primary source
of law in Namibia. Consequently, “all other laws trace their legitimacy and source from the
constitution”3

3
For a full discussion on the sources of law in Namibia see Amoo (2008) ‘An introduction to Namibian
Law: Materials and Cases’ Macmillan Education Namibia, 1st ed, at 55-111.

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2.2 Act and the Rules4

The most important sources are the Rules of the High Court Act 32 of 1990, the provisions of the Act
itself, the Namibian constitution and the Consolidated Practice Directives of the High Court and the
newly introduced Judicial Case Management System.

2.3 Practice Directions

As part of the High Court practice in Namibia the Judges President (in consultation with the Registrar
of the High Court) from time to time issue practice directions which contain important information
regarding practice and procedure in the High Court in which it were issued. The last updated version
of the Consolidated Practice Directive (CPD) is of March 2009 and the various amendments ancillary
thereto. Candidates are implored to study and familiarise themselves with these documents.

2.4 Text books and electronic sources

SK Amoo ‘An Introduction to Namibian Law: Materials and Cases’, Macmillan Education Namibia,
Windhoek, 2008

L T C Harms: Civil Procedure in the Supreme Court, Butterworths, Durban. 1990

H J Erasmus, A M Breytenbach and D E van Loggerenberg, Superior court Practice, Juta, Cape Town
1994

Herbstein & Van Winsen : The Civil Practice of the Supreme Court of South Africa, 4th Edition, Juta,
Cape Town, 1997

Jutastat

Lexis Nexis Butterworths

2.5 Common Law

Certain common law principles play an important role in procedural law in the High Court, for example
the common law principles regarding determination of jurisdiction.

The inherent jurisdiction of the High Court entails that the High Court can in principle do anything, as
long as it is not prohibited to do so. If a case thus serves before the High Court for which provision is
not made in the Rules, the High Court is authorised to deal with that case in accordance with its
inherent jurisdiction.

4
See on importance of Uniform Rules of High Court the case: Ark Trading v Meredien Financial
Services Namibia (Pty) Ltd 1999 NR 230.

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The High Court can thus mero motu order a party to furnish particulars of an allegation in a pleading,
it can strike out certain parts of pleadings or join further defendants or order interim relief in order to
prevent prejudice.

It can also in terms of its inherent jurisdiction prevent abuse of court procedure and prevent vexatious
litigation. The High Court also has an inherent disciplinary competence in respect of legal practitioners
with regard to misconduct or unprofessional behaviour.

2.6 Case Law

Students are advised to keep up to date with relevant court decisions as reported from time to time
and to comply with the relevant practice directive requirement on citation of foreign case law.

2.7 Stare Decisis

The principle of stare decisis is well established in the South African Roman Dutch and Namibian
common law. In terms of this principle a lower court is bound by the decisions of a higher court.

In Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 SCA the
court found it necessary to restate this principle and remind lower courts of its importance.

2.8 Warning re: Compliance with Rules

In Makuwa v Poslson 2007 (3) SA 84 TPD at 88 G sounded the following warning in regard to the
non-compliance with the rules of Court.

"Undoubtedly, it is time to sound a stern warning that the Courts will not countenance non-compliance
with the rules of Court and practice, unless there are justifiable circumstances warranting condonation
for the omission or default. Those practitioners whose conduct in any way (is) to simply let the
practice and administration of justice be undermined will incur the displeasure of the Court and
invariably attract and exemplary order of costs."

3.0 THE PRINCIPLES THAT UNDERLIE THE LAW OF PROCEDURE IN THE HIGH COURT

The Namibian legal system is adversarial. Consequently, the Law of procedure applicable in the High
Court can only be an effective procedure if it pursues certain principles that are designed to ensure a
fair legal process. If one looks at the broad framework of the Western Adversary System of the Law of
Civil Procedure (which principles also underlie the Namibian Law of Civil Procedure), the following
principles are pursued:

 All persons must have equal effective access to an independent and impartial judiciary.
 This also entails that the costs involved in, and the duration of litigation must be reasonable.

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 Thoughout the proceedings the parties must be afforded equal opportunity to present their
respective cases to court.
 This requirement is specifically evident in the audi et alteram partem-principle which ensures that:
 The defendant is notified of the proceedings.
 The parties are respectively informed of the nature of their opponent's case, as well as the
grounds on which it is based.
 Both parties are afforded the opportunity to state their respective cases to the court.
 In principle the parties must be able to determine whether to institute or defend an action and to
determine the scope of the dispute
 Furthermore it ought to be confined to the parties which evidentiary material they wish to present
in corroboration of their respective cases. There must thus be Party Control. The principle can
however be qualified by granting the court and active and managing role especially insofar as the
accumulation of evidentiary material and the further course of the proceedings are concerned.
 During the presentation of the parties' respective cases provision must be made for direct oral
communication between the parties (personally or by means of their legal respresentatives) and
the court.
 This does however not exclude the possibility that important elements of the presentation, such
as the evidentiary material, can be in writing.
 The main proceedings (final trial) must in principle occur in public.
 The court must consider the evidentiary material on rational grounds.
 The court must motivate its judgment.
 The decision of the court must be final and binding.
 Provision must however be made for appeal or review.

4.0 GENERAL INTRODUCTION

Civil procedure and practice is part of the procedural branch of law. In general law is used to maintain
order. Whilst substantive law provides the overall framework to maintain law and order, procedural or
adjective law provides the tool with each substantive law is applied. Procedural law often comes into
play when a dispute arises between the parties. It is common cause that when parties are subjected
to a dispute the factual and legal relationship is uncertain. It is for this reason that the function of civil
procedure is “to end this uncertainty through a judgement by a court which is binding on the parties. It
is a process of establishing facts and law”.

The law of civil procedure is also defined in terms of its overall duty i.e that of being an accessory to
substantive law5, which defines legal rights, duties and remedies. Adjective law on the other hand
deals with the proof and enforcement of rights, duties and remedies6.

5
See TJM Paterson ‘Eckard Principles of Civil Procedure in the Magistrate’s Court’ , 5th ed, Juta &
Co, 2005, at 6-7, which states that “ it is well known that law can be divided in ter alia into substantive
law and adjective law and substantive law may in general be defined as the body of generally
accepted, binding legal norms which apply to society and which regulate it peacefully”.

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4.1 Matters/Questions to consider before instituting proceedings

 How must I describe the parties (including myself) to identify them and show that they have locus
standi in iudicio? Citation of parties.
 Is the other party willing to acknowledge my right and comply therewith? Ask him or her by way of
a demand.
 If he or she is not willing am I going to act on my own or am I going to hire a legal practitioner to
act on my behalf. Power of Attorney7.
 Which court should I approach? Jurisdiction.
 What are possible issues that prevent a party from instituting proceedings. Prescription, res
iudicata, lis pendens etc,
 How will I bring the other party to court so that they may state why they refuse to comply with my
claim? Identify the various types of procedure i.e action or application, service of process and dies
induciae.
 How can the other party react if I take him or her to court? Different possible reactions by a
defendant in action proceedings, and respondent in applications.
 How do I explain to the court which facts are relevant and/or in dispute? Pleadings in actions and
Affidavits in applications.
 What must I do next to go to trial prepared? Preparation for trial, eg discovery document,
obtaining evidence etc.
 How do I lay the facts and my claim to a right before the court? Trial.
 What relief can the court grant me? Possible judgements.
 What will the costs be and who is to pay for it? Different types of costs orders and orders to pay
costs.
 What may I do if I am not satisfied with the judgement? Appeal and Review.
 How can I enforce the judgment of the court? Execution.

5.0 JURISDICTION, COMPETENCE AND STRUCTURE OF THE COURT SYSTEM, & THE
OFFICIALS OF COURT

5.1 Defining Jurisdiction

Jurisdiction is the competence, power and authority of a particular court to consider and adjudicate on
a matter brought to it by disputing parties and is determined once the parties have instituted the
proceedings8. Unlike in South Africa and perhaps any other country with a wider territorial and
geographic space, determining the question of jurisdiction in Namibia is guided mainly by the value

6
It is the function of adjective law to prescribe procedures according to which disputes between
the laws’ subjects may be peacefully resolved in the courts.
7
See rule 7 of the High Court rules.
8
S Pete et al ‘ Civil Procedure: A Practical Guide’ 2nd ed,Oxford University Press, Cape Town, 2011 at
35-92 and the leading case cited at footnote 186 therein on the definition of jurisdiction Graaff-Reinet
Municipality v Van Reineveldt Pass Irrigation Board 1950 (2) SA 420 (A) 424.

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and nature of the problem as Namibia only has one High Court seated in Windhoek with civil
jurisdiction. However, parties are still required to inquire whether or not the court has effective control
of both the process of adjudication and execution of the process. In this regard a party is still required
to take account of the general principles underlying the competence of a particular court i.e the
doctrine of effectiveness and the principle that you follow the jurisdiction of the defendant in the
proceedings. In other words the party must be guided by whether or not the problem/cause of action
arose in the jurisdiction of that particular court (ratione res gestae), does the defendant or the
respondent reside or have domicile in that area (ratione domicilii) and finally is the property involved in
the dispute situated in the area of the jurisdiction of that particular court (ratione rei sitae)9.

5.2 Competence and structure of the Court System in Namibia

The judicial power is vested in the Namibian courts which consist of the Supreme Court, High Court
and the lower courts. The courts enjoy independence and integrity in order to determine matters
without fear or favour10. The Namibian court structure also consists of the Labour Court, Admiralty,
Tax and Community Courts. Only the Supreme and High Courts will briefly be discussed here.

5.2.1 The Supreme Court

The Supreme Court of Namibia is the highest court of appeal. In other words this court has Appellate
jurisdiction and “it covers appeals emanating from the High Court, including appeals which involve
interpretation, implementation and upholding of the constitution and the fundamental rights and
freedoms guaranteed thereunder”.11 In terms of the provisions of the Supreme Court Act12 its
jurisdiction is to determine appeals and/or any other matters13.

The Supreme Court of Appeal, situated in Windhoek 14 is purely a court of appeal. It is thus not a court
of first instance15 and has no original jurisdiction except in terms of the provisions of the Act. It
consists of a Chief Justice and additional Judges of Appeal as the President on the advice of the
Judicial Services Commission, may from time to time determine16.

9
Ibid.
10
See article 78(3) of the Namibian constitution which provides that “no member of the Cabinet or the
legislature or any other person shall interfere with judges or judicial officers in the exercise of their
judicial functions, and all organs of the State shall accord such assistance as the Courts may require to
protect their independence, dignity and effectiveness subject to the terms of this constitution or any
other law”.
11
See SK Amoo ‘Introduction to Namibian Law: Materials and Cases’, Macmillan Education Namibia,
Windhoek, 2008 at 177, also see section 14 of the Supreme Court Act.
12
See Supreme Court Act, 1990(Act 15 of 1990) (as amended), section 2.
13
See Oryx Mining and Exploration (Pty) Ltd v Secretary for Finance 1999 NR 80
14
See section 3 of the Act.
15
The exception to this general understanding is when in terms of section 15(1) of the Act the
Attorney- General approaches the court directly.
16
See Article 79(1) of the Namibian constitution, also see Amoo at 177.

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In terms of the provisions of the Namibian constitution the decisions of the Supreme Court shall be
binding on all other courts and all persons in Namibia unless reversed by the Supreme Court itself or
is contradicted by an Act of Parliament17. For a full discussion on the original jurisdiction, review 18 and
appellate jurisdiction of the Supreme and High Courts consult: SK Amoo ‘ Introduction to Namibia
Law: Materials and Cases’ 1st ed, Macmillan Education Namibia, Windhoek, 2008 at 175-184.

5.2.2 The High Court

The competence and authority of the High Court is clearly set out in article 80 of the constitution in
terms of which “the High Court shall have original jurisdiction to hear and adjudicate upon all civil
disputes...”. This jurisdiction includes interpretation, implementation and upholding of the Namibian
constitution. The High Court apart from its inherent jurisdiction 19 is both a court of first instance but
also possess appeal competence in certain matters heard in the lower courts and in certain matters
heard in the High Court in first instance.

In general, a single judge presides when a High Court sits as a court of first instance in a civil matter,
but where an important question needs to be decided; it is heard by a full court (full bench) consisting
of three judges.

When an appeal is noted against the judgement of a single judge, the appeal is heard by three
judges.

5.2.3 Lower Courts

These courts primarily consist of the Magistrate’s Court and Community Courts. These courts in
addition to their civil and criminal jurisdiction are often converted into Maintenance, Domestic Violence
and District Labour Courts. The lower court’s jurisdiction is determined by statute and is therefore
confined to the provisions of the enabling legislation.

5.3 The Officials of the High Court

5.3.1 Judges

They are usually appointed from the ranks of senior advocate and, more recently, senior legal
practitioner and in some instances senior academics and government officials.

5.3.2 The Registrar

17
See article 81 of the Namibian constitution and section 17 of the Supreme Court Act.
18
See section 16(1) and (2) of the Supreme Court Act.
19
See National Union of Namibian Workers v Naholo 2006 (2) NR 659

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He or she is a senior official of the Department of Justice and is the head of the court administration at
High and Supreme Courts. The pleadings and other court process are issued from his office and are
also filed there. He or she is in charge of the court files. (See Rule 3).

The Registrar determines the form and quantum of security to be furnished in terms of rule 47.

According to section 26 of the Supreme Court Act, the Minister may, subject to the laws governing the
public service, appoint to the High Court registrars, assistant registrars and other officers whenever
they may be required for the administration of justice or the execution of the powers and the
authorities of the court.

5.3.3 The Sheriff

Sheriffs are the executive officers of the court.

They are appointed by the Minister in terms of Section 2 of the Sheriffs Act, 90 of 1986, to a lower or a
superior court, and they fall under the supervision of the Board of Sheriffs established under Section 7
of the Act.

The sheriff performs the executive actions authorised by law within the jurisdiction of the court for
which he or she is appointed: he or she is responsible for the service of the process instituting action
or motion proceedings and the execution of attachment and removal orders that are made by the
Court.

5.3.4 The Taxing Master

He or she is an officer of the court in the office of the registrar who must see to it that, where costs
were awarded, the bills of costs of all practitioners comply with the provisions of the rules with regard
to costs.

Rule 70(3) stipulates that the Taxing Master shall, on every taxation, allow all such costs and
expenses as appear to him to have been necessary or proper for the attainment of justice or to defend
the rights of any party.

The Taxing Master therefore has a wide discretion to allow costs as party and party costs; however,
this is done in accordance with the tariff as set out in Rule 70.

Before a successful party is entitled to recover the costs of the action from the other party, his bill of
costs must first be taxed unless the parties agree the costs.

5.3.5 The Interpreter

Interpreters play an important role in the functioning of the courts.

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Any witness is entitled to speak his mother tongue in court. However, only English is used as a
language medium in court, and therefore, interpreters are often used. In civil matters it is the duty of
the legal practitioner concerned to arrange for an interpreter to assist a witness who will testify in a
language other than English. An interpreter has to be properly sworn in as such.

5.3.6 The Court Orderly

He or she is an officer in the registrar's office who assists the court in the orderly progress of the
proceedings.

He or she will, for example, call out witnesses' names, fetch documents from the bar and hand them
up to the judge.

5.3.7 The Judges Clerk

Judge's clerks are appointed for all the judges.

They are usually full-time employees of the Ministry of Justice. The Judge's Clerk is the personal clerk
of the judge and must assist the judge in diverse matters, for example, the making of personal
arrangements for the judge i.e. the collection of law reports that are used, the taking of personal
messages, the making of telephone calls etc. Judge's Clerks may be seen as a kind of a personal
secretary for every judge.

Usually no practitioner will see a judge in chambers unless the judge's clerk accompanies him or her
to the judge. It is therefore etiquette to make an appointment with a judge through the judge's clerk.

5.3.7 The Court Stenographer

They are usually placed in the courts by a private organisation that is contracted by the State to see to
the mechanical recording of all the proceedings in the High Court so that, if required, a written record
of those proceedings can be produced.

A record is usually only typed if the practitioners apply for it or if the court orders that the record be
typed.

5.3.8 Legal Practitioners

They are officers of the High Court and must always act with the necessary dignity and respect
towards the court and towards each other.

5.3.9 The Master of the High Court

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The Master is appointed by the Minister in terms of Section 2 of the Administration of Estates Act 66
of 1956. The person is in charge of the administration of deceased and insolvent estates and the
administration of the property of minors and persons under curatorship.

He or she often submits reports to the Court in terms of the provisions of the Insolvency Act and the
Companies Act.

5.3.10 Prosecutor General

The Prosecutor General is in control of all prosecutions in the entire Republic of Namibia. (Sect 88 of
the Namibian Constitution)

The Prosecutor-General and the persons working under him or her and the "state advocates", handle
prosecutions in the High Court in all criminal trials. They do not, however, have much to do with civil
litigation.

5.3.11 Registrar of Deeds

He or she is appointed in terms of the Deeds Registries Act 47 of 1937 and often submits reports to
the Court in disputes concerning immovable property.

6.0. A FEW GENERAL REMARKS CONCERNING COURT ETHICS

Practitioners must be suitably dressed.

Witnesses must as far as possible be dressed neatly and formally.

When a person enters or leaves the court, a courtesy bow is made in the direction of the bench.

Everyone stands up when the Judge enters and when he/she leaves the court.

When a practitioner stands up to address the court or to raise objections, his opponent must sit down.

The form of address for a Judge in the court is: "MY LORD / MY LADY" or "YOUR LORDSHIP /
YOUR LADYSHIP" and outside the Court it is "JUDGE".

No practitioner may see a Judge in chambers in connection with a case unless the Judge's Clerk
takes him there.

One's opponent must always accompany one when a Judge is seen in chambers in connection with
an opposed case.

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In terms of practice directive 2007 (4) SA 1 SCA in the Supreme Court of Appeal the presiding judge
is to be addressed as "the Court" - individual members of the bench to be referred to by surname
preceded by "justice".

COURT AND COURT DOCUMENTS OPEN AND AVAILABLE TO PUBLIC

The general rule is that Court's and Court documents are available to the public unless there is
statutory limitation.

In Independent Newspapers (Pty) Ltd v Minister for Intelligence Services; Freedom of Expression
Institute in re: Masetlha v President of the Republic of South Africa and Another 2008 (8) BCLR 771
(CC) it was stated that the right to an open Court hearing and the right to report on it does not
automatically mean that Court proceedings must necesssarily be open in all circumstances and that in
an instance where the interest of justice might require that the public be excluded from Court
proceedings or access to Court records be restricted, the Court is required to weigh the competing
rights or interests carefully with a view to ensuring that the limitation it places on open justice is
properly tailored and proportionate to the end it seeks to attain.

7.0 THE INITIAL CONSULTATION AND THE TAKING OF INSTRUCTIONS

The most important outcomes of the consultation with the client is to establish a relationship between
the legal practitioner and the client, to obtain the necessary facts, to advise the client and to obtain
instructions from the client.

Cases often go wrong because proper instructions were not taken from the outset. The more
meticulously the matter is handled from the start, the better your prospects of success.

The initial interview sets the tone for your entire working relationship. Escort a client in, escort a client
out. What does this say of you?

Make the client feel at home. In the case of a new client, ask a question or two to make him feel at
ease.

Create in your office an environment, which communicates to your client "This is who I am". Select
furnishing and accessories subject to your budget, which reflect what you think is important so that
when they see your surroundings, they see you in an appropriate light.

Obtain the full name, identity number, residential and work address, telephone number and if
applicable, fax number, and e-mail address of the client as well as telephone numbers and addresses
of friends and/or relatives. If the client acts on behalf of a legal entity obtain the particulars of
alternative contact persons. There is nothing worse than being unable to contact you client, at a
moments notice, or having to inform your opponent that you have difficulty in locating your client.

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Explain to your client that the meeting is confidential. Explain that you can deal with everything the
client says and very little of what he refuses to say or hold back from you. He must realise that he has
complete amnesty within the four walls. Take this responsibility very seriously and see to it that your
personnel do likewise.

It is often best to first have a general conversation in order to gain background knowledge and then to
take down the client's complete statement.

 When interviewing the client bear in mind the following:

 Who is the Plaintiff (locus standi and correct citation)
 Who is the Defendant (locus standi and correct citation)
 Which court has the capacity to hear the matter (jurisdiction)
 What is the cause of action?

It may be useful to dictate the client's version point by point, in paragraph form in his presence so that
the client can hear for himself how the attorney understands his instructions. The client must be
allowed to interrupt and correct where necessary.

Instead of dictating, legal practitioners often take down notes by hand. The client should preferably
know exactly what the attorney writes in his notes. It is therefore a good practice to speak out aloud
while you are taking down the notes.

Cryptic loose notes like "divorce, summons, public servant, and 2 children ± 600 per month, Tel
number 12678" are certainly not sufficient for subsequent use.

It will often be a good idea to preset a time for your interview. It gains respect for you from the client
and it defines the playing field. A verbose client will know that he has to condense his story. Other
clients will recognise that you are working to a schedule and require co-operation. However, make
sure you allow enough time for the interview/consultation.

There is no substitute for common everyday listening.

Explain to your client, that you want them to start at the beginning, taking you through today. Often a
client will begin at the point where they have been wronged. Re-assure the client that you will listen
through, including that point, in time, but that you need to begin at the beginning and have a
chronological course of events so that you can ask intelligent questions.

Tell your client that you will ask direct questions and that it is part of your job inside the confidential
room. Then ask those questions, even if they are embarrassing. The answers will be far less
embarrassing than when given in open court for the first time.

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Always note the date of prescription on the front cover of your file in big bold numbers. You will never
regret it.

Many clients might feel they have done their part in providing you with a plastic bag full of documents
when documents are due. Use this example when interviewing clients. Tell them that you earn money
for your time and if you spend time organising documents, they will be charged. Explain to them that if
they organise the documents themselves, will their understanding be clearer and therefore what they
can teach the lawyer more clearly, they will save money, too. You will be surprised how co-operative
they can be.

Introduce your candidate attorney and secretary. They are the most important people in your office.
Create an opening for the client to have contact with your staff. It enables you to get better results and
give your staff a sense of context and purpose.

Give the client a piece of paper and request him to make notes as regards the things he is asked to
do. It is also preferable to follow this up in writing an appropriate letter to the client. In this way
misunderstandings are prevented and both the attorney as well as the client is obliged to pay attention
to all relevant facts i.e. dates, names, places and times.

Should the attorney give an undertaking to the client or request the client to do something, it should
also be recorded, for example: "I undertake to phone Mr X…" or "client will bring me copies of all the
receipts…."

Clients rarely grasp the importance of corroboration of their version by documents or witnesses.
Clients should therefore be badgered for any scrap of corroborating paper or any witness, even if he
fails to see the relevance.

If you believe in your client's case, you will win. If you do not believe in your client's case, you may get
a passable result, but you will never win.

Stand up when the interview is over. Thank the client for his time.

Be kind. Always, always, always be kind.

7.1 LEGAL OPINIONS OF COUNSEL

Should the legal practitioner decide to obtain a legal opinion from Counsel, he must send a summary
of all the relevant facts as well as copies of all the relevant documents to Counsel with specific
instructions concerning the aspects on which he wants the opinion.

15
Should the legal practitioner feel that there are aspects on which Counsel himself would possibly want
to question the Client, he should instruct Counsel to consult with the client and then give his legal
opinion.

In the last-mentioned case the legal practitioner ought to give as much information as possible to
Counsel before the consultation in order to enable Counsel to properly prepare for the consultation
and to do the necessary exploring legal research.

In appropriate circumstances, the Legal practitioner should give Counsel his own views on the matters
at issue and particulars of his own research.

7.2 THE LEGAL PRACTITIONER’S RESPONSIBILITIES TOWARDS THE CLIENT

Never see the rules of ethics in isolation. The legal practitioner’s conduct must speak of
professionalism and a sense of duty, whether interviewing the client in your office or conducting a trial
in the High Court. You will do well to read through your notes on professional conduct and ethics
again at this stage. It is therefore not the intention to repeat the rules of ethics here. Only certain
facets are emphasised.

7.2.1 FULL INFORMATION

The legal practitioner must, as mentioned above, always endeavour to ascertain all relevant
information from the outset.

Should he or she come across "inconsistencies" in the client's version, she ought to point them out to
the client and insist on gaining further information to establish the true facts. In this way he or she can
assist the client to recall certain other facts.

The legal practitioner should also explain to the client the procedure applicable to the case, including
time guidelines and expected time to completion.

Remember that you are educating the client about a system with which he or she may have had
extremely limited contact.

7.2. 2 FINANCIAL ASPECTS

From the outset the legal practitioner has to speak to the client about the financial aspects.

The legal practitioner should always give the client an indication of the approximate anticipated costs
of litigation, if necessary up to certain stages. It is good practice to account to one's client on a regular
basis. Clients are entitled to this frankness from their legal representative.

7.2.3 TIME SCHEDULES

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Time is a legal practitioner’s most precious possession and needs to be applied wisely. Keep an
accurate record of all time spent on a file. This is the only way to ensure that you do not undercharge
or overcharge.

7.2.4 THE PROSPECTS OF SUCCESS

When considering when to take on a case, look at the subject area. Is this an area with which you feel
comfortable or where you are willing to learn at your own expense? It is unfair to expect a client to
subsidise your education.

The legal practitioner must at all times be absolutely honest with the client.

Be careful not to promise the client too much. On the other hand avoid being totally negative or over
cautious towards the client's case or the prospects.

Once again it should be remembered that the more thoroughly a legal practitioner knows the facts, the
better will he or she be able to explain and express a view on the prospects of success to the client.

The client should understand, as far as possible, the factual and legal issues at stake. This will not
only enable him to make informed decisions about his own case, but also to be of more assistance to
you.

7.2.5 BRIEFING COUNSEL

With the advent of the Legal Practitioners Act, 1995 (Act 15 of 1995), the distinction between an
Advocate and a Legal Practitioner (previously attorney) was abolished. In terms of the provisions of
this Act, all legal practitioners once admitted to practice have admission to the High and Supreme
Courts. Legal Practitioners practicing as Advocates do so under their name and style and under the
supervision of a voluntary association operating under the Advocates Society. The abolishment of the
distinction has however, not made the practice obsolete. Hence the legal practitioner and the
advocate continue to work together as a team. As a general rule Advocates do not operate with a
Fidelity Fund Certificate which allows for a legal practitioner to take trust monies from client. They
instead practice with an exemption certificate in terms of the provisions of the Law Society’s Act and
the legal practitioner remains the link between the Advocate and the public. Advocates as a general
rule should be engaged for their special skill and knowledge although in practice legal practitioners
sometimes even use Advocates for matters that are subject of the Magistrate’s Court jurisdiction.

A legal practitioner is at all times entitled to instruct counsel with the client's consent, to assist him
should he consider it necessary in the best interest of his client.

A legal practitioner may decide which advocate he wants to brief for a specific case. In this regard
legal practitioners usually build working relationships with particular advocates for specific types of

17
cases. Remember that one's choice of advocate is always governed by the principle that the legal
practitioner acts in the client's best interest.

7.2.6 SETTLEMENT

Settlement offers must be made carefully and accurately and in accordance with the legal
practitioner’s written mandate from his client.

The client must be consulted at all times and the legal practitioner must keep the client well informed.
Remember it is after all the client's money and case.

7.2.7 REPORTING TO CLIENTS

The most common complaint of clients concerning legal practitioners is that they are not kept
informed of developments in the case. It is imperative that legal practitioners report to the client on a
regular basis throughout the case.

7.3 PRACTICAL FILE ADMINISTRATION

The key to successful litigation, especially in complicated High Court cases, is meticulous file
administration.

From the outset the file must be kept as neat and orderly as possible.

The aim is to keep different types of documents together in date sequence.

A ring file with different partitions is very useful when a case becomes comprehensive. However, if
there is not too much documentation, an ordinary file cover with different sub-file covers can be used.
Each legal practitioner uses his own preferred method of maintaining his file in good, orderly fashion.
The different sub-divisions in the legal practitioner’s file can, for example, consist of the following:

Statements

Correspondence

Processes or pleadings

Memoranda (including legal opinions)

Exhibits and documents

Legal aspects (including photostats of court decisions and statutory provisions) that may play a key
role in the litigation.

18
Medico - legal or other expert reports and summaries

It is a good idea to make short notes on the front or inside of the file cover concerning the highlights of
the progress of the case e.g. prescription, consultations and the exchange of pleadings. Such notes
have two objectives:

It gives a chronological survey of the progress of litigation, and

It immediately gives the attorney an idea of the time spent on a particular case.

7.4. CORRESPONDENCE

It must at all times be remembered that even the most simple letter that was written by a legal
practitioner may later become the subject of penetrating enquiry and/or argument in the High Court.
Even more important, the absence of a letter where the circumstances require one (i.e. objecting to
the conduct of the other party or denying the contents of a letter) can make the difference between
success and failure of your client's case.

See McWilliams v First Cons. Holdings 1982(2) SA 1(A) at 10E-11B

Unless the circumstances demand otherwise, letters should be brief, formal and courteous.

It often helps when letters are written in numbered paragraph form.

Letters must contain complete file references.

If letters are written without prejudice, they should be clearly marked as such. There is no special
magic in the phrase "without prejudice". It is not the phrase that creates the privilege, but the contents
of the letter. A communication that is intended to form part of a bona fide attempt to settle a dispute
between the parties is privileged, regardless of the presence or absence of the words "without
prejudice". In order for a letter or part thereof to be privileged, the following three requirements must
be present:

There must be a dispute between the parties

The letter must be constitute a bona fide attempt to settle the dispute

The letter or the relevant part thereof must form an integral part of the settlement negotiations. (See
Schmidt : Bewysleer : LAWSA Vol. 9)

If letters are sent by registered post, they must be marked as such and the registered post slips
should be attached to the file copy of the letter.

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Telephone calls, messages and conversations must be recorded on paper contemporaneously. Have
a notepad on your desk for this purpose. Cryptic code words and abbreviations on odd scraps of
paper do not constitute proper minutes of a conversation.

Do not litigate in correspondence, unless you are negotiating a settlement it is generally unwise to air
all your good arguments in correspondence. Save them for the courtroom.

When letters of demand are written they must be phrased with great care, almost like a pleading - all
essential allegations must be made clearly, but concisely.

Cancellation: Think carefully before writing a letter of cancellation and discuss it with a colleague or
Counsel before committing yourself. Premature cancellations are a disaster - your opponent can
regard your abortive cancellation as a repudiation and in turn cancel because of it.

8.0 LETTERS OF DEMAND, NOTICE, PRESCRIPTION

Legal proceedings, whether instituted by way of summons or notice of motion are usually preceded by
a demand to the other party claiming the relief which the party instituting the proceedings are seeking.

In terms of the definition of "demand" in Section 4 of the Prescribed Rate of Interest Act 55 of 1975 as
amended a demand means a written demand setting out the creditors claim in such a matter as to
enable the debtor reasonably to assess the quantum thereof.

8.1 WHEN NECESSARY

If a demand is an essential element of the cause of action, in other words, if a prior demand is a
condition precedent to liability legal proceeding may not be commenced with until the liability is
complete because the cause of action must exist at the time when the proceedings are commenced.

A demand before the commencement of proceedings may be significant in relation to costs. If

proceedings are launched without a prior demand and the Defendant or Respondent tenders or
performs the relief claimed, he may not be held liable for costs.

8.2 LEGISLATIVE PROVISIONS

There are several legislative provisions requiring the plaintiff to give prior notice of his intent to
commence legal proceedings and stipulating the period of such notice. These provisions are
peremptory and strict compliance with the prescribed periods of time is essential. The court has no
discretion to condone any failure to comply, unless empowered by statute to do so.

Apart from the fact that the Prescription Act, 1969 still governs matters of prescription and limitations
of actions there are several statutes that set out separate or additional time limits within which legal
proceedings are to be commenced. These specific statutes further stipulate the contents and period of

20
notices to be given and also the nature and extent of the State’s immunity in civil proceedings (See
notes on ‘prescription of debts and limitation of actions’).

Some of these are mentioned below:

Defence Act 1 of 2002

Labour Act 11 of 2007

Public Service Act 13 of 1995

Police Act 19 of 1990

Roads Authority Act 17 of 1998

Namibian Central Intelligence Act 10 of 1997

Prescription Act 18 of 1943

Prescription Act 68 of 1969

Married Persons Equality Act 1 of 1996

 Sect 2: abolishes marital power

 Sect 5:equal power of spouses married in community of property

Roads Authority Act 17 of 1988

Black Administration Act 38 of 1927

Motor Vehicle Accident’s Act 10 of 2007

Local Authorities Act 23 of 1992

8.2.1 Some definitions

Debt means any debt arising from any cause of action-

 which arises from delictual, contractual or any other liability, including a cause of action which
relates to or arises from any –
 act performed under or in terms of any law; or
 omission to do anything which should have been done under or in terms of any law; and
 for which an organ of state is liable for payment of damages,
 whether such debt became due before or after the fixed date;

Organ of state means-

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Organs of State means, any of the three primary divisions of a state’s sovereignty (namely, the
executive, the legislature, or the judiciary); the powers of each having been divided and balanced in
accordance with the political principle of the separation of powers.

See Article 1 (3) of the Namibian Constitution which states that, “the main organs of the State shall be
the Executive, the Legislature and the Judiciary”.

Prescription

Prescription means the manner of acquiring ownership rights in property by a long, honest, and
uninterrupted possession or use during the time required by law (Prescription Act 68 of 1969). The
possession must have been long, continued, peaceable, and without lawful interruption. Prescription
also refers to liberation of debtor, is a mere bar which the debtor may oppose to the creditor who has
neglected to exercise his rights, or procured them to be acknowledged during the time prescribed by
law.

The debtor acquires this right without any act on his part it results entirely from the negligence of the
creditor. The prescription does not extinguish the debt, it merely places a bar in the hands of the
debtor, which he may use or not at his choice against the creditor. The debtor may therefore abandon
this defence, which has been acquired by mere lapse of time, either by paying the debt, or
acknowledging it.

Prescription of Debts

According to section 12 of the Prescription Act 68 of 1969 prescription begins to run not necessarily
when the debt arises, but only when it becomes due20. This has been interpreted to mean, that for
prescription to begin running, there has to be a debt in respect of which the debtor is under an
obligation to perform immediately.

Therefore, a debt is ‘due’ when it is claimable by the creditor and is payable by the debtor. It has
furthermore been held that a debt is only due when the creditor’s cause of action is complete. Thus
the creditor must be in a position to claim payment forthwith, and that the debtor does not have a
defence to the claim for immediate payment. The cause of action must be complete at the time
summons is served.

The Prescription Act 68 of 1969 Section 11 provides for four extinctive prescriptive periods:

Thirty years in respect of –

 any debt secured by a mortgage bond;

 any judgment debt;
 any debt in respect of any taxation;
20
See Jansen van Vuuren v Namibia Water Corporation Limited 2006 (2) NR 607

22
  certain debts owed to the state in respect of any share of profits, royalties or any similar
consideration payable in respect of rights to mine minerals.

Fifteen years in respect of any debt owed to the State and arising out of a loan of money or sale or
lease of land by the State to a debtor.

Six years in respect of any debt arising from a negotiable instrument such as a cheque or from a
notarial contract.

Three years in respect of any other debt, except where stipulated otherwise by another Act of
Parliament The Act provides that if a debtor willfully prevents a creditor from coming to know of the
existence of the debt, prescription will not commence to run until the creditor becomes aware of the
existence of the debt. A debt is not deemed to be due until the creditor has or ought to have had
knowledge of the identity of the debtor, and of the facts from which the debt arises.

For prescription to be interrupted in terms of section 15, three requirements must be present:

1. There must be a process.

2. The process must be served on the debtor.
3. By that process, the creditor must claim payment of the debt.

See some South African cases: Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340 (A)

Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA
525 (A).

Cape Town Municipality v Allie NO 1981 (2) SA 1 (C).

(Petzer v Radford (Pty) Ltd 1953 (4) SA 314 (N)).

Du Bruyn v Joubert 1982 (4) SA 691 (W)

Notice

In terms of the various provisions of the statutes stated above:

No legal proceedings for the recovery of a debt may be instituted against an organ of state unless-

 The creditor has given the organ of state in question notice in writing of his or her or its intention
to institute the legal proceedings in question; or
 The organ of state in question has consented in writing to the institution of that legal proceedings-
 Without such notice; or
 Upon receipt of a notice which does not comply with all the requirements set out in provisions of
the statute Subsection 2 requires a notice to be given-

23
Within a stipulated time in respect of the relevant statute from the date on which the debt became
due, be served on the organ of state and such notice must briefly set out-

 the facts giving rise to the debt; and

 such particulars of such debt as are within the knowledge of the creditors.

A debt may not be regarded as being due until the creditor has knowledge of the identity of the organ
of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired it
by exercising reasonable care, unless the organ of state willfully prevented him or her or it from
acquiring such knowledge.

Condonation

If an organ of state relies on a creditor's failure to serve the required notice the creditor may apply to
court for condonation of such failure.

The court may grant condonation if it is satisfied that the debt has not been extinguished by
prescription, that good cause exists for the failure of the creditor and that the organ of state was not
unreasonably prejudiced by the failure. See the South African case of Madinda v Minister of Safety
and Security 2008 (4) SA 312 (SCA) where it was held that the determination of "good cause" entailed
a consideration of all those factors which had a bearing on the fairness of granting condonation and
affecting the proper administration of justice. Relevant factors might include:

 Prospects of success in a proposed action;

 The reasons for the delay;
 The sufficiency of explanation offered;
 The bona-fides of the applicant; and
 Any contribution by other persons or parties to the delay and the applicant's responsibility
therefore.

Service of process

Any process by which any legal proceedings are instituted must be served in the manner prescribed
by the rules of the court in question for the service of process.

The various Acts that deals with State organs also sets out requirements or refers to other legislation
regarding the responsible functionary upon whom process must be served.

In conclusion as a general rule no process may be served before the expiry of a period of 30 days
after notice was served on the organ of state. If any process was served before the expiry of the 30-
day period, such process must be regarded as having been served on the first day after the expiry of
such period and could even be considered irregular in terms of Rule 30 of the High Court rules.

24
Interim interdicts against the State

See the General Law Amendment Act 62 of 1955.

No court may issue any rule nisi operating as an interim interdict against the government of the
Republic of Namibia or any Minister, Administrator, or other officer of the government or
administration in his capacity as such, unless notice of his attention to apply for such a rule
accompanied by copies of the application was served on the respondent before the hearing of the
application or such period as the court may consider to be reasonable.

9. THE LEGAL PRACTITIONER’S MANDATE

In terms of the Rule 7(1) of the High Court rules a Power of Attorney (POA) is necessary when a party
wishes to institute proceedings in the High Court. The Power of Attorney must set out the nature of
the action and the relief sought. There are three instances in which a legal practitioner will be required
to file POA. First, at the instance of the plaintiff when issuing a summons (when it’s a juristic person),
the said POA must be accompanied by a resolution. Second, when a party files a notice of intention to
defend and when the legal practitioner becomes involved with a matter that is already in progress with
the notice of representation. See Worku v Equity Aviation (Pty) Ltd 2010(2) NR 621 (SC).

The authority of a legal practitioner to act on behalf of a party may within 10 days after it has come to
the notice of the party that such legal practitioner is so acting, or with leave of the court on good cause
shown any time before judgement, be disputed. If this happens he or she must provide proof of his
authority to act e.g. by filing of a power of attorney.

A Power of Attorney is necessary when an appeal is prosecuted, i.e. when application is made for a
date of hearing. It is therefore not necessary to file a Power of Attorney when notice of appeal is
given. It is however desirable to obtain such Power of Attorney when taking instructions.

A Power of Attorney is also required when defending an appeal. The legal practitioner who acts for
the respondent must also file a power of attorney before the date of hearing.

10. THE CAUSE OF ACTION

Liability never originates in vacuo. It is always based on a legal fact, resulting in an obligation. This
legal fact can be called the cause of action.

Such legal fact may originate from a contract, a delict or various other causes.

25
In the case of a contract, the parties thereto are contractually bound and should one party commit
breach of contract, the other party would in principle be entitled to either enforce the contract or to
cancel it and claim damages.

In the case of a delict, the injured party will be entitled to claim compensation from the wrongdoer or if
there is a threatening injustice, the other party can be prevented to commit the delict by means of an
interdict.

No attempt is made to list the "other causes" exhaustively. Two examples are:

 A father is liable to pay maintenance for his minor child, in which case the legal fact giving rise to
the obligation is fatherhood.
 If one person is unjustly enriched at the expense of another, the law provides that the prejudiced
person has a claim against the recipient on the grounds of unjust enrichment.

A cause of action may briefly be described as a legal fact giving rise to an obligation, which results in
liability. Liability only follows when the cause of action is complete.

To determine whether the cause of action is complete, notice must be taken of the relevant legal
principles in each particular case.

Normally a letter of demand is not necessary before the plaintiff may institute an action against the
defendant. However, there are cases where written notice or a letter of demand is essential for the
completion of the plaintiff's cause of action.

In this regard there are primarily three categories, namely:

 Where a contractual relationship exists, it may firstly be necessary to place the party in default in
mora before action may be taken against him. To determine when a letter of demand (notice) is
necessary, the principles of the law of contract must be taken into account;

 When the parties (usually in the case of a contract) expressly or tacitly agreed that a letter of
demand (notice) must first be delivered before an action may be instituted;

 Where statutory provisions determine that a letter of demand (notice) is a prerequisite as set out
above: (Letters of Demand and Notice).

11. LOCUS STANDI21

Locus standi in judicio is the capacity to act as litigant i.e. the capacity to sue or to be sued.

21
See Kerry McNamara Architects and Others v Minister of Works, Transport and Communication and
Others 2000 NR 1.

26
The phrase Locus Standi is also used in another context, namely the requirement that a party to
litigation must have a direct and substantial interest in the right, which is the subject matter of the
litigation. Thus, in the case of a person requesting legal relief, there must have been an encroachment
or threat of his rights or interests. In the case of a person that opposes the granting of the legal relief,
his rights or interests must stand to be affected by the requested legal relief.

However, Section 25 (2) of the Namibian Constitution creates an exception to this general rule as it
provides for group actions:

“Aggrieved persons who claim that a fundamental right or freedom guaranteed by this Constitution
has been infringed or threatened shall be entitled to approach a competent Court to enforce or protect
such a right or freedom”

The persons who may approach a court are –

 anyone acting in their own interest;

 anyone acting on behalf of another person who cannot act in their own name;
 anyone acting as a member of, or in the interest of, a group or class of persons;
 anyone acting in the public interest, and
 an association acting in the interest of its members."

The general rule is that every natural person with full legal capacity has the capacity to litigate.
Persons without full legal capacity need the assistance of someone with the authority to litigate on
their behalf. Others with full legal capacity may be subject to certain limitations in being able to sue or
to be sued.

The question whether a person has locus standi to sue or be sued may be dealt with on exception.

The following categories of persons do not have locus standi in judicio:

11.1 Minors

Natural persons under the age of 21 are called minors. Minors under the age of 7 are incapable to act.
It means that such a person (even with the assistance of his guardian) may not act as litigant. In such
a case the guardian must act on his behalf, although the claim is still rightfully the minor's claim.

If he has no guardian, the court must be approached by way of application so that a curator ad litem
may be appointed for him.

Minors between the ages of 7 and 21 have limited capacity to act. This means that they, in contrast
with minors under the age of 7, may act as litigant provided that their lack of capacity to litigate is
cured by the assistance of a guardian. In such a case the claim is still rightfully the minor's claim and

27
the claim is instituted in his own name, while he is assisted by his guardian. In this category of minors,
the guardian may also, as in the case of minors under the age of 7, institute the claim on behalf of the
minor in his (the guardian's name).

Where a minor sues or is sued in one of the ways set out above, the minor is the party to the action
and the guardian appears in his representative capacity only. The guardian cannot be held
responsible for payment of costs or damages awarded against the minor, save where the guardian
has acted mala fide, recklessly or negligently.

In certain instances a minor may litigate without being assisted by a guardian or curator ad litem:

 an application for the appointment of a curator ad litem

 where the court grants him leave to sue unassisted
 an application for leave to marry without parents consent

NOTE: A minor has locus standi if he is married or has been declared a major in terms of the Age of
Majority Act22 or has been tacitly emancipated.

8.2.2 Persons under curatorship

Curatorship is the official supervision under which an adult person or his estate remains, where he is
incapable of managing his own affairs. In this regard one can mainly distinguish between the following
appointments:

 A curator bonis who is appointed to administer a person' s property and affairs in general;
 A curator ad litem who is appointed by the court to represent a person, whether a minor or a
major, in civil litigation.

Mentally disordered persons have no locus standi in iudicio, an interdicted prodigal has limited legal
capacity, analogous to that of a minor and an unrehabilitated insolvent has diminished locus standi in
iudicio.

See: Harms 58 and 59

11.2 Married persons

In terms of the Married Persons Equality Act, 1996(Act 1 of 1996) the common law marital power was
abolished. It is important to note that this abolition and its effect on the equality of the spouses do not
prohibit the parties to the marital relationship to assign any particular roles to each other for the proper
administration of their household. A married woman may now sue or be sued without the assistance
of her spouse.

22
Act 57 of 1972.

28
Note: however, that such spouses married in community of property cannot sue or defend legal
proceedings without the written consent of the other spouse (section 17(1) of the Matrimonial Property
Act).

Written permission, however, is not necessary with regard to:

 actions between spouses

 the spouses' separate property
 the recovery of damages due to the commission of a delict against one of the spouses

Any matter relating to a spouse's profession, trade or business.

11.3 Other Natural Persons who cannot sue or be sued

Judges of the High Court can only be sued or subpoenaed with consent of the court (see Section 21
of High Court Act 16 of 1990)

Members and Officers of Parliament. No civil proceeding in which a member or officer of Parliament
is a defendant can be brought to trial in a court that holds its sittings elsewhere than at the seat of
Parliament (Windhoek). Their right to sue is not affected.

Diplomats: In terms of section 2 the Diplomatic Immunities and Privileges Act 71 of 1951, diplomats
and envoys from other states are immune from the civil and criminal jurisdiction of the Namibian
Courts. A sending state may waive this immunity in writing.

Fugitives from Justice: persons wilfully avoiding the execution of processes of the Namibian Courts
through voluntary exile or hiding cannot sue. They may however, defend actions brought against
them.

Alien Enemies: Persons who voluntary reside or carry on business in a country of war with Namibia
cannot, while the war is in progress, sue in Namibian Courts. They may be sued.

12. JURISDICTION

Jurisdiction can generally be defined as the legal competence (power & authority) of a court to hear a
specific matter and to grant an order in relation to it.

Before litigation is instituted, it must first be determined which court has jurisdiction.

First, it must be determined whether the matter lies within the competence of an Inferior court or can
be entertained only by a Superior court. To proceed in the High Court on a claim, within the
jurisdiction of a Magistrate court will expose the plaintiff to the danger of being awarded costs on the
scale applicable to Magistrates courts.

29
Far more serious consequences may flow from a decision to institute proceedings in the Magistrate
Courts in a matter, which only the High Court can entertain. The court will, upon objection by the
defendant or even mero motu decline jurisdiction and quash the proceedings with the result that
plaintiff will have to pay wasted costs.

The High court has unlike the inferior courts, inherent jurisdiction. Put differently, whereas the
Magistrate court may do nothing unless authorised to do so by law, the High Court may do anything
unless forbidden by law.

Certain limitations on the jurisdiction of the High Court are imposed by Common law but more often by
Statute. So for example, the High court is deprived of original jurisdiction in certain matters reserved
by statute for special tribunals, for instance: water courts, special courts for hearing income tax
appeals, the court of a commissioner of patents, the courts of admiralty and the special courts for
appeals emanating from the competition board. The April 2003 edition of De Rebus contains an
informative article by Mervyn Dendy in regard to choice of forum in civil proceedings – pages 32 – 34.

A High Court has no jurisdiction to hear an appeal from a Military Court but does have the jurisdiction
to hear a review of a decision of the Military Court. See the following cases on aspects of the
jurisdiction of the court.

See: Onesmus v Minister of Labour and Another (Case No. (P) 144/2008) [2008] NAHC 67 (4 July
2008), still unreported.

Beukes and Another v CIC Holdings Ltd 2005 NR 534 (H.C)

S v Smith 1999 NR 182 (HC)

Courtney-Clarke v Bassingthwaighte 1990 NR 89 (HC)

As previously stated in order to determine whether or not a court has jurisdiction the party must
consider the following:

 over all persons residing or being in its area of jurisdiction

 in relation to all causes arising within the area of its jurisdiction
 in relation to all matters of which it, according to law, may take cognisance

A legal practitioner is well-advised to refer to common law principles to ascertain whether a particular
matter falls within the jurisdiction of the High or Magistrates Court. The principal place of business of a
company for jurisdictional purposes is the place where the central control and management of a
company is situated.

See Leibowitz t/a Lee Finance v Mhlana and Others 2006 (6) SA 180 SCA at 184 B

The general common law principles are:

30
12.1 The Doctrine of Effectiveness

In Steytler N.O. v. Fitzgerald 1911 AD 295 the court declares:

"A court can only be said to have jurisdiction in a matter if it has the power not only to take cognisance
of the suit, but also of giving effect to its judgement"

Therefore the fact that a defendant resides in the area of the court’s jurisdiction will not give that court
jurisdiction if the claim relates to the transfer of property not within the area of jurisdiction and in
respect of which the order cannot be enforced by court.

Similarly the doctrine of effectiveness has led to the fact that Namibian courts are generally not
prepared or reluctant to adjudicate a matter against a foreigner unless the foreigner has been arrested
or his or her goods have been attached for purposes of execution.

The term effectiveness must not be approached too literally. It can never be equated to a guarantee
that the judgement will be enforced fully.

12.2 The Doctrine of Submission

This doctrine entitles a court that would otherwise not have jurisdiction to hear a matter against a
specific person to obtain the necessary jurisdiction based on the consent of such person, either by
positive consent or negatively by not objecting to the capacity of the courts to entertain the case
against him.

The submission by a defendant of his person to the jurisdiction of a court can only be effective if the
court is entitled to adjudicate the cause of action.

12.3 The principle: Actor Sequitur Forum Rei

This principle entails that the plaintiff must take the case to the forum of the defendant and institute
action in the court in whose area the debtor resides.

12.4 The common law grounds of jurisdiction include:

12.4.1 Ratione domicilii.

At common law the only court entitled to adjudicate matters relating to status is the court of the
relevant party's domicile. This applied to inter alia legitimacy, minority and marriage. Money claims
against a defendant domiciled within the courts area of jurisdiction may be heard by that court.

The provisions of the Divorce Act 70 of 1979 (Section 2(1)(v) as amended by the Domicile Act 1992
brought a statutory intervention with regard to the High Court jurisdiction in matrimonial matters.

31
Divorce Actions

Sect 2 of the Matrimonial Causes Jurisdiction Act 35 of the 1945 empowers the High Court to
adjudicate over divorce proceedings

Section 2(1) of the Divorce Act of 1979 and the Married Persons Equality Act 1of 1996 23 stipulates
that the High Court will have jurisdiction in a divorce action if the parties or any one of the parties in
which the action is instituted;

 is ordinarily resident within the area of the said court and was ordinarily resident in the Republic of
Namibia for a period of not less than one year immediately prior to the date on which this action is
instituted;
 A court that has jurisdiction in terms of Section 2(1) of the Divorce Act will also have jurisdiction
with regard to a counterclaim filed by the defendant.

Decrees regarding nullity of the marriage

The jurisdiction with regard to nullity is not regulated by the Divorce Act. In this case the common law
principles are still applicable and we distinguish between:

Marriage ab initio null and void

The High court in whose area of jurisdiction the marriage took place has jurisdiction to annul the
marriage. Such jurisdiction can also be exercised by:

The court of common domicile of the parties

The court of domicile of the plaintiff

Where the marriage is voidable

In such a case a valid marriage was concluded but due to certain circumstances that were present at
the conclusion of the marriage, the court may be approached to annul the marriage. Such an order
accounts to a change in the status of the parties and will consequently only be granted by the forum
domicilii of the parties. Where the parties do not have their domicile at the same place the forum
domicilii of either of the parties may be approached.

12.5 Ratione contractus

23
The provisions of the Married Person’s Equality Act 1 of 1996 does not have specific provisions on
divorces as it primarily covers aspects on marriages and matters ancillary to the management of the
marriage. And so in Namibia divorces are based on common law. There are proposals on new divorce
laws and divorce mediation pending. Please pay attention to the various provisions repealed and
amended by this Act.

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In cases of contractual claims the nexus lies in the fact that the contract in dispute, was concluded
within the courts jurisdiction, or that the contract was to have been performed wholly or in part within
its area of jurisdiction or that the breach occurred there.

12.6 Ratione delicti commissi

In cases of claims that arise from delict the delict had to be committed within the area of jurisdiction of
the court.

12.3 Ratione rei sitae

In claims for relief with regard to a real right or an immovable property the court will have jurisdiction if
such real right or property is situated within the court's territorial limits.

12.4 Continentia causae

Cohesion of cause of action – Permanent Secretary Department of Welfare Eastern Cape and
Another v Ngxuza and Others 2001(4) SA1184 (SCA).

12.5 Confirmation and founding of jurisdiction through attachment

In order to comply with the doctrine of effectiveness it may be necessary for a plaintiff to attach the
person or the goods of the defendant in order to found or confirm jurisdiction.

12.5.1 Founding jurisdiction

An attachment can found jurisdiction if the plaintiff is an incola24 of the court concerned and the
defendant is a peregrinus of the Republic of Namibia even if the court is not otherwise possessed of
jurisdiction, for instance because the cause of action did not arise within the area of that court.

In other words, if there is no relation between the peregrinus of the Republic of Namibia and the
particular courts area of jurisdiction (i.e. in the absence of any term of jurisdiction) the defendant must
be arrested or his goods must be attached to found jurisdiction.

12.5.2 Confirming jurisdiction

Attachments can confirm jurisdiction if there is a causa jurisdictionis within the area of jurisdiction and
the defendant is a peregrinus of the Republic of Namibia . In such event it does not matter whether
the plaintiff is an incola or a peregrinus. In other words, the defendant, a peregrinus of the Republic of

24
An incola in Namibia is more often applicable in instances of the Magistrate’s Court jurisdiction
because Namibia only has one High Court that has civil jurisdiction. Parties are often guided by the
value( and other principles) of a case to determine High Court jurisdiction.

33
Namibia is arrested or his property attached to confirm jurisdiction if the cause of action arose within
the particular court’s jurisdiction.

NOTE: If the defendant is a peregrinus of the relevant court’s jurisdiction, but an incola of the Republic
of Namibia, the defendant may not be arrested nor may his property be attached to found or confirm
jurisdiction. In such a case the action must be instituted in the High Court in whose territory the
defendant resides or where the cause of action originated.

An applicant in an application for attachment must show that:

 he has a prima facie cause of action against the defendant

 the defendant is a peregrinus of the Republic of Namibia and
 the defendant is within the area of jurisdiction of the court or that property in which the defendant
has a beneficial interest is within that area.

On the return day the second and third bullet points must be established on a balance of probabilities.

The attachment falls away:

 If the peregrinus under arrest can establish that it is impossible for him to raise any security or to
make any payment;
 If the creditor is unable on the return date to prove the property attached, belongs to the peregrine
debtor or
 If the defendant provides sufficient security to ensure that in the event of a judgement the
judgement debt will be paid.

To conclude, the determination of the question of whether a court has jurisdiction to hear a particular
matter involves a two stage enquiry; it must firstly be established whether the court is as a matter of
principle competent to take cognisance of the particular case (that is whether a recognised ratio
iurisdictionis is present) and secondly, whether the defendant is subject to the court's authority
(whether an effective judgement can be given).

12.5.3 DOES THE AFOREGOING PASS THE LIMITATIONS TEST SET BY ARTICLE 22 OF THE
NAMIBIAN CONSTITUTION?

See Bid Industrial Holdings (Pty) Ltd v Strang 2008(3) SA 355 SCA where it was held that the
common law rule that arrest was mandatory to found or confirm jurisdiction could not pass the
limitations test set by Section 36(1) of the Constitution. (See Namibian equivalent in article 22 of the
constitution)

The common law had to be developed by abolition of the rule and the adoption, in its stead, where
attachment was not possible, of the practice according to which a South African High Court would

34
have jurisdiction if the summons was served on the Defendant while in South Africa and there was
sufficient connection between the suit and the area of jurisdiction of the Court concerned so that
disposal of the case by that Court was appropriate and convenient.

12.5.4 Concurrent Jurisdiction

It is of course possible that more than one court could have jurisdiction in respect of a particular
matter –

This may be the result of the provisions of the actor as a result of divergent common law rules.

The jurisdiction of the High Court is excluded in some cases in terms of specific statutory provisions
See in this regard Khumalo v Potgieter 2001 (3) SA 63 SCA.

In Chirwa v Transnet Limited & Others 2008 (4) SA 367 CC it was held that legislative intention did
not confirm labour jurisdiction on High Court but to empower the Labour Court to deal with
constitutional disputes arising from employment relationships. The jurisdiction of the Labour Court
was extended to employment matters that implicate constitutional rights. The employee was the first
exhaust statutory remedies in Labour Court before approaching the High Court. See the provisions of
the Labour Act 11 of 2007.

12.5.5 Jurisdiction of a Court

The choice of a domicilium citandi et executandi is not enough to establish jurisdiction in a Court.

Geyser v Nedbank Ltd and Another: in re Nedbank Ltd v Geyser 2006 (4) SA 544 at 546 D – E.

13.0 THE FORM OR TYPE OF PROCEEDINGS

Another preliminary procedural issue in the judicial process, which must be resolved, concerns the
selection of the correct form of proceedings.

The two fundamental forms of procedure in the High Court are trial actions and applications.

(Two additional forma of procedure, which may be used in certain circumstances, are provisional
sentence proceedings and stated cases to which we refer later in these notes)

The basic difference between the trial or action procedure and the application procedure is that in a
trial oral evidence is heard by the court, whereas in application proceedings the evidence is placed
before the court in the form of written statements, signed and sworn to by the witnesses. These
statements are called affidavits.

The differences between the action and application procedure are briefly indicated

35
ACTION APPLICATION

1. Parties are called plaintiff and 1. Parties are called applicant and
defendant respondent

2. Deals with substantial factual 2. Not such a substantial factual

dispute/s dispute that it cannot be dealt with
"on the papers" before the court

3. Commences with the issuing of a 3. Commences with the issuing of a

summons by the plaintiff notice of motion and supporting
founding affidavit

4. Further pleadings are exchanged 4. Further affidavits are exchanged,

by the parties, namely: namely:

-defendant's plea and counterclaim -answering affidavit

- plaintiff's reply to defendant's plea -replying affidavit (if applicable)

-plaintiff's plea to defendant's

counterclaim

5. After the exchange of pleadings a 5. There is no written "preparation

stage called "preparation for trial" for trial" stage.
follows. Certain preparatory steps
are then taken such as discovery of
documents and expert notices.

6. The action procedure ends in the 6. The motion procedure ends in

trial court where mainly oral the motion court. In principle no oral
evidence by the parties and their evidence is presented and the
witnesses are presented. parties do not testify. The case is
presented by their legal
representatives on the "papers
before the court"

The action procedure usually takes longer and is usually more costly than the application procedure.

Examples of relief that is usually sought by means of application are the following:

 Eviction
 Interdicts
 Rei vindicatio
 Cancellation of contracts

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 Mandament van spolie

The aforesaid relief may also be obtained by means of the action procedure

Examples of relief that have to be requested by way of motion are the following:

 Sequestration
 Liquidation
 Certain interim relief in matrimonial matters (Rule 43 – applications)

Where the motion procedure may not be used at all:

 damages
 divorce

In some cases there is a choice between action and application procedure

The choice is not unrestricted. The test in every case is whether it could or should have been
foreseen that a real dispute of fact will arise which cannot be resolved without oral evidence. It is
important to consult the following case in this regard: See Room Hire Co (Pty) Ltd v. Jeppe Street
Mansions (Pty) Ltd 1949 (3) SA 1155(T)

A real dispute of facts arises:

 Where the respondent denies substantial factual allegations of the applicant and makes
conflicting factual allegations against those of the applicant, which the applicant denies.

 Where the respondent admits substantial factual allegations, but on the other hand alleges facts
which the applicant disputes

 Where the respondent alleges that he does not have knowledge of the allegations made by the
applicant, but that the applicant or his deponents are unreliable, untrustworthy or prejudicial and
that certain facts upon which the applicant relies to prove the main facts are untrue.

Where the respondent merely denies the allegations made by the applicant without making any
counter allegations, a real dispute of fact does not arise.

What happens then?

 Where an application cannot properly be decided on the papers (e.g. where a real dispute of fact
arose), the court may dismiss the application or make such order as to it seems meet with a view
to ensuring a just and expeditious decision.

37
 In particular, but without affecting the generality of the foregoing, it may direct that oral evidence
be heard on specified uses with a view of resolving any dispute of fact and to that end may order
any deponent to appear personally or grant leave for him or any other person to be subpoenaed
to appear and be examined and cross-examined as a witness or it may refer the matter to trial
with appropriate directions as to pleadings or definition of issues, or otherwise.

 In practice the said principles are usually applied as follows:

 If the dispute of fact was foreseeable, the court may dismiss the application with costs.

 If the dispute of fact was not foreseeable, the court may refer the matter for evidence where the
dispute is simple and a speedy determination of the dispute desirable.

 If the dispute of fact was not foreseeable, and the issue is comprehensive or complicated, the
court may refer the application to trial with appropriate directions as to the exchange of pleadings.

In practice it unfortunately often happens that a party erroneously starts with application procedure.

It is most important to remember that if a dispute of fact is foreseen the application procedure should
not be used. The action procedure must be used. See De Rebus May 2003 p35-37 Choice of
Procedure in Civil Litigation

13.1 THE ACTION PROCEDURE

13.1.1 Introduction

Erasmus: Superior Court Practice, pp B1 - 22 to B1 - 134A

Rules 17 and 18

Forms 9 and 10

The action procedure which is initiated by way of summons is divided into three stages:

 The pleading stage

 The preparation for trial and
 The trial itself.

A pleading is a document wherein the substantial facts whereupon a party's claim or defence is
based, are set out.

38
The allegations contained in a pleading are not made under oath and thus do not amount to evidence.
At a trial evidence (which mainly entail oral evidence) is presented to prove the factual allegations
made in the pleadings.

The following written documents are pleadings:

 The plaintiff's summons

 The defendant's plea
 The defendant's counterclaim
 The plaintiff's reply
 The plaintiff's plea to defendant's counterclaim.
 The request for further particulars
 The answer to the request for further particulars

ONE CAN DISTINGUISH BETWEEN THREE KINDS OF SUMMONSES IN THE HIGH COURT,
NAMELY:

 a simple summons
 a combined summons; and
 a provisional sentence summons

13.1.2 What does the simple summons look like?

The simple summons does not embody all the particulars of claim; it merely sets out the nature of the
claim. It is followed by full particulars of claim in the form of a declaration only if the defendant enters
an appearance to defend.

13.1.3 When is the simple summons issued?

The simple summons can only be used for liquidated demands:

13.1.4 Claims for payment of a debt

A claim for a debt (usually ex contractu) is a liquidated demand. An example thereof is a claim for the
payment of the (balance) of the purchase price of goods purchased and delivered, money lent and
advanced etc.

Note that a claim for damages (ex contractu or ex delicto) is almost always unliquidated and that in
all6 these instances the simple summons should NOT be used. Examples of these are the cost to
repair defective and unskilled work, compensation for contractual claims and claims for injuries or for
repairing the damage caused by motor vehicle collisions (compensation for delictual claims).

13.1.5 Claims for delivery

39
A claim for the delivery of a specified movable asset or for the delivery of an account is a liquidated
demand.

13.1.6 Claims for transfer

A claim for the registration of transfer of immovable property is a liquidated demand.

13.1.7 Claims for eviction

A claim for the eviction of a person from a specific property is a liquidated demand.

13.1.8 Claims for the cancellation of a contract

A claim for the cancellation of a contract is a liquidated demand.

NOTE:
Claims in matrimonial matters
Matrimonial claims e.g. divorce orders or nullity suits, can not be enforced by a simple summons. In
these cases a combined summons must be used.
Claims for a declaratory order
A claim for a declaratory order is not a liquidated demand and a combined summons or the
application procedure (if appropriate) must be used.

14.0 THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS

Erasmus: Superior Court Practice pp B1 - 6 to B1 - 12; B1 - 15 to B1 - 32; B1 - 93 to B1 –98

B1 - 11- to B1 - 105; B1 - 122 to B1 - 136; and B1 – 411
Rules 1, 3, 4, 5, 10, 12, 17, 18, 19, 67(a)(I)
Section 27 of the Supreme Court Act
Examples 1 - 5

CONTENTS OF THE SUMMONS: Various basic matters concerning the contents of the summons
are briefly discussed.

14.1 WHEN ARE PARTIES JOINED?

The leading case on joinder of parties in our jurisprudence is Amalgamated Engineering Union v
Minister of Labour, 1949 (3) SA 637 (A). It establishes that it is necessary to join as a party to litigation
any person who has a direct and substantial interest in any order which the court might make in the
litigation with which it is seized. If the order which might be made would not be capable of being
sustained or carried into effect without prejudicing a party, that party was a necessary party and
should be joined except where it consents to its exclusion from the litigation. Clearly, the ratio in

40
Amalgamated Engineering Union is that a party with a legal interest in the subject matter of the

litigation and whose rights might be prejudicially affected by the judgment of the Court, has a direct
and substantial interest in the matter and should be joined as a party. Also see a Namibian decision
Municipality of Walvis Bay v Respondents Set Out in Annexure A Hereto Being the Occupiers of the
Caravan Sites at the Long Beach Caravan Park Walvis Bay, Republic of Namibia( A 119/04, A 119/04)
2005 NAHC 16.

All persons who have a direct and substantial interest in the relief that may possibly be granted by the
court must be joined as parties to the action. Hartland Implemente (Edms) Bpk v Enal Eiendomme BK
en andere 2002(3) SA653 NC. They may be joined as co-plaintiff or co-defendant. If a person has an
interest and ought to have been joined, but was not joined, the court will as a general rule not
adjudicate the matter until such person has been joined.

Keep in mind that persons may themselves intervene as plaintiffs or defendants. Rule 12 provides
that someone who is entitled to join as co-plaintiff, or who is merely liable to be joined as defendant in
an action, may after notice to all parties at any stage of the proceedings, apply for leave to intervene
as a plaintiff or defendant.

Parties can join and be joined as a matter of convenience in terms of rule 10.

One can distinguish between two types of joinder, namely of convenience and compulsory joinder.

Joinder of convenience

Rule 10 of the High Court Rules provides that more than one person can act as co-plaintiffs in a
matter. Various persons can also be sued as co-defendants in one action.

In both instances there is the proviso that the issues in dispute "must depend on the determination
of basically/substantially the same questions of law or fact" that arose in each action.

Furthermore High Court rule 12 determines that a person who is entitled to act as a co-plaintiff in an
action, or who may be joined as a co-defendant, may WITH LEAVE OF THE COURT intervene as
plaintiff or defendant to the action.

From the wording of Rule 12 it is clear that the competence of a person to intervene in a case as
plaintiff or defendant, is equal to his competence to act as co-plaintiff or co-defendant ab initio (from
the commencement of the proceedings).

In Vitorakis v Wolf 1973 3 SA 928 (W) the application of this principle is explained as follows:

41
"… the mere fact that the applicant has not a common cause of action or common ground with the
plaintiff in the action is irrelevant. Plaintiffs may join if they have separate claims and may even claim
alternatively. The only prerequisite to the exercise of this right is that their right to relief is dependent
upon the dtermination of substantially the same question of law or fact" (on p 931E).

(This approach ought to apply also where various persons are joined as co-defendants or wish to
enter into a case as co-defendants).

Although the joinder of parties as plaintiffs or defendants usually takes place ab initio, when the matter
is instituted, it can also take place thereafter on initiative of a party.

The courts approach the joinder or entry of a party in terms of the above rules on:

"considerations of common sense and convenience: and strive to assist litigants to get to grips as
inexpensively and expeditiously as possible without enforcing sheer formality whenever this is only
calculated to produce a litiscrescence devoid of real legal content or procedural advantages, such as
greater clarification of issues" (Vitorakis-case, p 932 E-G).

This approach is in accordance with the goals of the above rules, which are designed to avoid a
multiplicity of actions and escalation of litigation costs in circumstances where a dispute between
various parties can conveniently be adjudicated in one action.

It is important to keep in mind that in cases of joinder of convenience, it is not necessary that a person
who wishes to intervene in a matter must have such a substantial interest in the matter that this rights
are directly affected by an order that the court may make. That is the test for compulsory joinder, in
which event other considerations apply.

Compulsory joinder

Compulsory joinder usually applies where a person's rights can be so directly affected by an order
that the court may make, that his joinder as a party to the proceedings are ESSENTIAL for the final
adjudication of the matter.

Joinder of such an essential party can take place on initiative of the plaintiff when the action is
instituted. It can also happen on request of the defendant or by order of the court once the action has
already been instituted. The party whose rights are concerned can also approach the court and
request to be joined as a party to the matter. Finally the court can, in the event of the non-joinder of a
necessary party, mero motu (out of own accord) raise the issue and give directives to secure his
rights (Toekies Butchery v Stassen 1974 4 SA 771 (T)).

The test to determine whether joinder of a party is essential or not, is phrased as follows in practice:

42
"If a third party has, or may have, a direct and substantial interest in any order the court might make in
proceedings or if such order could not be sustained or carried into effect without prejudicing that party,
he is a necessary party and should be joined in the proceedings, unless the court is satisfied that he
has waived his right to be joined. Such a person in entitled to demand as of right that he be joined as
a party and cannot be required to establish in addition that it is equitable or convenient that he should
be joined as a party. In fact where he is a necessary party in this sense the court will not deal with the
issues without a joinder being effected, and no question of discretion or convenience arises"
(Herbstein and Van Winsen 167).

This "direct and substantial interest" is described as

"a legal interest in the subject matter of the action which could be prejudicially affected by the
judgment of the court" (United Watch and Diamond Co v Disa Hotels 1972 4 SA 409 (K) 415 (H)).

The same idea is found in the following:

"… (it is) an interest in the right which is the subject matter of the litigation and is not merely a
financial interest which is only an indirect interest in such litigation" Henry Viljoen (Pty) Ltd v
Awerbuch Brothers 1953 2 SA 151 (O) 169.

A mere financial interest is not sufficient.

An example of such a direct and substantial interest is the interest of co-owners in a case in respect of
the common property. The rights of each co-owner is directly involved in the dispute and "if any one
of them is not joined either as plaintiff or defendant, the right or obligation sued upon is
incomplete" (Herbstein and Van Winsen 170).

Non-joinder and misjoinder

You must distinguish between non-joinder and misjoinder.

Non-joinder means that an essential party has not been joined, in other words, a person whose
joinder is compulsory, has not been joined. If however, it would merely be convenient to join a person
and he is not so joined, it does not amount to non-joinder.

Misjoinder entails the joinder of a party that has no interest in the matter. In such a case the question
is not if the relevant person is a necessary party (in other words, whether his joinder is compulsory)
but merely whether his joinder of convenience is justified). If it is justified, there is no problem, but if
not, it amounts to misjoinder.

43
A party to proceedings who wishes to raise an objection against the non-joinder of a necessary party
or the misjoinder of another party, can do so by means of a special plea, or in the event of an
application, by means of a point in limine.

Waiver of the "right to joinder"

A person who has a "right to joinder" can waive such right and accept to be bound to the Judgment of
Court, in which event it will not be necessary to join such person (Toekies Butchery v Stassen 1974 4
SA 771 (T)).

14.2 WHAT IS MEANT BY THE JOINDER OF DIFFERENT CAUSES OF ACTION?

See in general Rule 10.

Distinguish between the following cases:

 A plaintiff may join several causes of action in the same action against the defendant (or
defendants).

 Several plaintiffs, each of whom has a claim, whether jointly, jointly and severally, separately
or in the alternative, may join in one action against the same defendant (or defendants),
provided that the right to relief of all the plaintiffs depends upon the determination of
substantially the same question of law or fact which, if separate actions were instituted, would
arise in each action.

 Several defendants may be sued in the same action, whether jointly, jointly and severally,
separately or in the alternative, provided that the question arising between them or any of
them and any of the plaintiffs depends upon the determination of substantially the same
question of law or fact.

15.0 HOW ARE THE PARTIES DESCRIBED?

Rule 17(4)(a) provides that the name, including where possible the first name or initials by which the
defendant is known to the plaintiff, his residence or place of business and where known, his
occupation and if he is sued in any representative capacity, such capacity, his gender and if a female,
her marital status must be mentioned.

Rule 17(4)(b) provides that the full names, gender and occupation and the residential or business
address of the plaintiff must be mentioned. Where he sues in a representative capacity, such capacity
must be mentioned and if the plaintiff is a female, the summons must state her marital status. See
Golden Harvest (Pty) Ltd v Zen-Don CC 2002(2) SA 653 0 for a discussion on the substitution of a

44
correct citation for an incorrect citation i.e. amendment not involving a new legal entity, but merely
correcting an incorrect description.

15.1 GENERAL

In terms of Rule 18:

The title of the action, including a description of the parties and the number assigned to the action by
the Registrar shall appear at the head of the summons (and every subsequent pleading).

The heading is: "IN THE HIGH COURT OF NAMIBIA"

Every pleading shall be divided into paragraphs and sub-paragraphs and each thereof shall be
consecutively numbered.

Every pleading shall contain a clear and concise statement of the material facts upon which the
pleader relies for his claim, defence or answer to any pleading, with sufficient particularity to enable
the opposite party to reply thereto.

A party who in his pleadings relies upon a contract shall state whether the contract is written or oral
and when, where and by whom it was concluded. If the contract is written, a true copy thereof or the
part relied on in the pleading shall be annexed thereto.

It is not necessary to state the circumstances from which an alleged implied term can be inferred.

If the action is founded in delict, the delict complained of, the time when, the place where and the
manner in which the delict was committed and the amount of damages claimed are necessary detail.

Rule 18(10) provides:

A plaintiff suing for damages shall set them out in such manner as will enable the defendant
reasonably to assess the quantum thereof:

Provided that a plaintiff suing for damages for personal injury shall specify:

His date of birth

The nature and extent of the injuries

The nature, effects and duration of the disability alleged to give rise to such damages and shall a s far
as practically state separately what amount, if any, is claimed for:

 medical costs, hospital and similar expenses and how these costs and expenses are made up

45
 pain and suffering, stating whether permanent or temporarily and which injuries caused it
 disability is respect of
 the earning of income (stating the earnings lost to date and how the amount is made up) and the
future estimated loss and the nature of the work the plaintiff will in future be able to do
 the enjoyment of amenities of life (giving particulars) and stating whether the disability is
temporary or permanently and
 disfigurement, with a full description thereof and stating whether it is temporary or permanent.

15.1 DIES INDUCIAE

Simple and Combined summons - defendant within the jurisdiction of the court, minimum of 10 court
days after service of the summons (Rule 19(1)) read with rule 1 - definition of "court day".

Simple or Combined summons - defendant outside the jurisdiction of the court concerned, minimum
time 14 to 21 calendar days calculated in accordance with the provisions of the Interpretation Act 33
of 1957.

Simple and Combined summons - in an action against a Minister, Deputy Minister, officer or servant
of the State, in his capacity as such, the State, not less than 20 court days after service of the
summons (Rule 19(2)).

The Provisional Sentence Summons - not less than 10 court days after service of the summons (Rule
8(1)).

Note that the days between 16 December and 15 January, both inclusive, shall not be calculated in
the time allowed within which to deliver a notice of intention to defend. This time is known as dies non.

15.2 ISSUING OF THE SUMMONS

Every summons is issued by the Registrar of the High Court. Note that a revenue stamp must be
affixed to the process that initiates the action (Rule 17(1)).

A summons not thus issued is null and void (Republikeinse Publikasie (Edms) Bpk v Afrikaanse
Publikasie (Edms) Bpk 1972 (1) SA 773 (A)). THIS IS NOT THE CASE WITH APPLICATIONS - a
notice of motion can be served validly before notice to the registrar.

Under normal circumstances a summons is issued on any court day, i.e. weekdays from 9 a.m. to 1
p.m. and from 2 p.m. to 3 p.m. No process may be issued or filed after 3 p.m., except for a notice of
intention to defend but then before 4 p.m. (Rule 3).

46
The registrar may in exceptional circumstances issue process and accept documents at any time, and
shall do so when directed by a judge. (Rule 3 : Minister of Police v Johannes and Another 1982 (3) SA
846 (A)).

See cases:

Cabinet of the Transitional Government of South West Africa v Dagin 1990 NR 14 (HC)
South West African Building Society v Coetzee (I 359.99) [1999] NAHC 15 (1 October 1999)
Veldman and Another v Bester (I 3329/2010) [2011] NAHC 39 (17 February 2011)

15.3 SIGNATURE

Both the simple summons and the combined summons must be signed by a legal practitioner duly
admitted in terms of the provisions of the Legal Practitioners Act, 1995(Act 15 of 1995) and the Rules
of the Law Society. See Zeda Car Leasing (Pty) Ltd t/a Avis Fleet Services v Pillay 2007 (3) SA 89 D
and CLD.

15.4 THE DIFFERENT METHODS OF SERVICE25

All process, by which an action or an application is initiated, must be effected by the sheriff.

Service must be effected as near as possible between the hours of 7 a.m. and 7 p.m.

Except for the issue or execution of a warrant of arrest, no service or procedural step shall be validly
effected on a Sunday, unless a court or a judge otherwise directs (Rule 4(1)(c)).

Rule 4(1)(a) prescribes the following manner of service by the sheriff on the defendant/respondent:

 personal service
 at his place of residence or business on the person apparently in charge of the premises
 at his place of employment on the person apparently in authority over him
 at a chosen domicilium citandi
 at the registered office of a legal person or at its principal place of business that is situated within
the court's jurisdiction
 on an agent of the party who has written authority to accept service
 on a partnership, firm or voluntary association as prescribed by Rule 4(1)(a)(vii)
 on a local authority as stipulated by various statutory provisions. For example serving a copy of
the process on the head of the prison and on the prisoner personally. For Service of Documents
on Local Authorities see: Sect 93 of the Local Authorities Act 23 of 1992.

25
See Beauhomes Real Estate(Pty) Ltd t/a Re/Max Real Estate Centre & Another v Namibian Estate
Agents Board 2008 (2) NR 427 (HC).

47
Service is effected by the sheriff exhibiting the original process to the person on whom service must
be effected, explaining the nature and contents thereof and leaving a copy with the person. The sheriff
then prepares a return of service in which he explains how service was effected. The original return is
filed in the court file. A copy of return of service is sent to the legal practitioner.

If service cannot be effected in any of the ways set out above, e.g. because the person on whom
service must be effected evades service or cannot be traced, the court may be approached for further
directions as to how service must be effected.

One of the manners of service the court may prescribe is substituted service. Substituted service may,
for example, be effected by means of publication of a notice in a newspaper.

An application for leave to sue by way of edictal citation is made where the process is to be served
upon a person outside the Republic of Namibia.

The following must be set out in the founding affidavit supporting the application:

 The nature and extent of the applicants claim

 the grounds upon which the claim is based and upon which the court has jurisdiction to
entertain the claim

 the manner of service which the court is requested to authorise. If such manner is one other
than personal service, the last-known whereabouts of the person to be served and the
inquiries made to ascertain his present whereabouts must be alleged.

In an application for leave to sue by edictal citation, once it appeared prima facie that the Court had
jurisdiction and it was clear that the action was not vexatious and was properly before the Court, the
Court had no discretion to refuse the relief as the Applicant was entitled to the relief as of right. Leave
to sue by edictal citation was not relief as such, but was simply a process required to bring an action
to being.

O'Rian Pacific Traders ENC v Spectrum Shipping Limited 2006 (2) SA 586 CPD at 587 C-E.

15.5 WHEN MAY JUDGEMENT BY DEFAULT BE APPLIED FOR?26

 Where the defendant is in default with his Notice of Intention to defend.

 Where the defendant failed to plead after service on him of a Notice of Bar in terms of Rule 26.
 Where the plaintiff failed to deliver a Declaration (again after to a Rule 26 notice).
 Where the plaintiff or defendant failed to appear at the hearing (after due notice).

26
See Krauer and Another v Metzger (2) 1990 NR 135 & Maia v Total Namibia (Pty) Ltd 1990 NR 216.

48
15.6 JUDGEMENT BY DEFAULT GRANTED BY THE REGISTRAR

Section 27(A) provides that the registrar may grant judgements by default in instances where the
claim is for a debt or is otherwise liquidated and where the defendant is in default with his notice of
intention to defend. In these instances counsel is thus no longer briefed to make application for
judgement by default in open court. According to the decision in Entabeni Hospital Ltd v Van der
Linde ; First National Bank of SA Ltd v Puckriah 1994(2) SA 422 (N) it is mandatory that all
these applications be brought before the registrar and they are no longer dealt with by a judge
in open court.

A written application for judgement by default is filed by the plaintiff with the registrar.

The registrar may in terms of Rule 31(5)(b) -

 grant judgement as requested

 grant judgement for part of the claim only or on amended terms
 refuse judgement wholly or in part
 postpone the application for judgement on such terms as he may consider just
 request and receive oral or written submissions
 require that the matter be set down for hearing in open court.

Rule 31(5)(c) provides that the registrar must record any judgement or direction given by him.

The registrar shall grant judgement for costs in an amount of N$200.00 plus the sheriff's fees if the
value of the claim as stated in the summons, apart from any consent to jurisdiction, is within the
jurisdiction of the Magistrate's Court and, in other cases, unless the application for judgement requires
costs to be taxed or the registrar requires a decision on costs from the court, N$650.00 plus the
sheriff's fees. In a case where there is a prior agreement between the parties that attorney and client
costs will be payable in the event of legal proceedings, the registrar is not only entitled but also
obliged to award attorney and client costs (Bloemfontein Board Nominees Ltd v Benbrook 1996 (1)
SA 631 (O) at 635(D).

Any party dissatisfied with a judgement granted or direction given by the Registrar may, within 20
days after he has acquired knowledge of such judgement or direction, set the matter down for
reconsideration by the court. (Rule 31(5)(d)). In Erf 1382 Sunnyside (Edms) Bpk v Die Chipi BK 1995
(3) SA 569 (T) it was ruled that the facts and the grounds upon which the matter is brought before the
court for reconsideration must be stated clearly in either the Notice of Enrolment or by way of affidavit
or be placed before the court in another acceptable way.

In cases where the claim is not liquid, (in other words the amount claimed is not fixed and determinate
e.g. a claim of damages) evidence must be given during the application for judgement by default to
prove the quantum of the plaintiff's damages.

49
15.7 WHAT IS A NOTICE OF BAR?

When the defendant is in default of delivery of his plea, application for judgement by default cannot
merely be made, but the defendant must be barred (Rule 26). This means that a notice of bar must
first be served and filed.

If the plaintiff is in default of delivering his declaration, the defendant must serve a notice of bar on the
plaintiff to deliver his declaration.

However, the defendant is not entitled to apply for judgement against the plaintiff in such case, but
may only apply for absolution from the instance of the plaintiff's claim.

15.8 FAILURE TO APPEAR AT THE HEARING

If the defendant does not appear at the hearing, the plaintiff may apply for judgement by default
against the defendant provided that the claim is liquid. If the claim is not liquid, the plaintiff may still
apply for judgement by default provided that evidence concerning the damage is tendered (Rule
39(1)).

If the plaintiff does not appear at the hearing. The defendant may ask for absolution from the instance
or may move for judgement in his favour provided he has presented the necessary evidence (Rule
39(3)).

15.9 WHICH DOCUMENTS MUST BE FILED IN COUNSEL'S BRIEF IN MATTERS WHICH ARE
BROUGHT BEFORE THE COURT?

If the defendant is in default with his notice of intention to defend, the brief must include at least the
following:

 a copy of the summons

 a copy of the return of service
 a copy of the notice of set down
 statement(s) or other document(s) to prove the quantum of plaintiff's damage

Where the defendant is in default with his plea:

 a copy of the summons (and, if a simple summons has been used, the declaration)
 a copy of the notice of intention to defend
 a copy of the notice of bar
 a copy of the notice of set down which was served on the defendant

Where the plaintiff is in default with his declaration:

50
 a copy of the simple summons
 a copy of the notice of intention to defend
 a copy of the notice of bar
 a copy of the notice of set down

15.10 WHAT DOES THIS NOTICE LOOK LIKE?

The defendant must give a physical address within 8 kilometres of the office of the registrar where all
documents in the action can be served upon him.

15.11 WHAT HAPPENS WHEN THE NOTICE OF INTENTION TO DEFEND IS DELIVERED

LATE?

A notice of intention to defend, which was delivered late, may not be ignored, provided that default
judgement has not been granted yet.

15.11.1 NOTICE THAT CAN ACCOMPANY THE NOTICE OF INTENTION TO DEFEND

When the defendant give notice of intention to defend, he may also deliver a notice that requires the
plaintiff, in the case of a firm or a partnership, to supply the full name and residential address of the
proprietor or of each partner, as the case may be.

16.0 WHAT ARE THE PREREQUISITES FOR A SUMMARY JUDGEMENT?

Where the defendant has delivered notice of intention to defend the plaintiff may apply for summary
judgement only on claims:

 based on a liquid document

 for a liquidated amount in money
 for delivery of specified movable property
 for ejectment

16.1 WHEN MAY THE PLAINTIFF APPLY FOR SUMMARY JUDGEMENT

It has to be done within 15 days after the defendant gave notice of intention to defend.

The plaintiff should not request summary judgement when he/she is already aware of a defence which
is bona fide and reasonable.

See Easy life management (Cape) (Pty) Ltd & Another v Easy Fit Cupboards Windhoek cc & 2 Others
case no.: [p] i 3343/2007

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Also see Ritz Reise (Pty) Ltd v Air Namibia (Pty) Ltd 2007 (1) NR 222 ; Bierman NO v Combrinck
2006 (2) NR 447, Namibia Airports Company Ltd v Conradie 2007 (1) NR 375. Kwami v Ministry of
Finance 2007 (1) NR 167.

Also see South African Bureau of Standards v GGS/AU (Pty) Ltd 2003 (6) SA 588 TPD

16.2 THE APPLICATION READS AS FOLLOWS:

"Please take notice that the Plaintiff intends to make application on ______ (insert date), at _______
am or as soon thereafter as Counsel may be heard, for summary judgement in terms of the prayers
set out in the Plaintiff's summons for:

1 ____________

2 ___________

3 ____________

And further take notice that the accompanying affidavit of _________, marked Annexure "A", will be
used by the Plaintiff in support of the application.

Kindly place the matter on the roll for hearing accordingly."

Notice is given to the registrar and to the opponent.

An accompanying affidavit in terms of Rule 32(2) may look as follows:

"Affidavit:

I, the undersigned, _____________________ do hereby make oath and say:

I am the plaintiff in this case.

I have personal knowledge of the facts set out in the summons.

I confirm the cause of action and the amount claimed in the summons.

In my opinion the defendant has no bona fide defence to the action and he has delivered notice of
intention to defend solely for the purpose of delay."

(Take notice that the plaintiff may not tender any additional evidence (Rule 32(4): Trust Bank of Africa
Ltd v Hansa and Another 1988 (4) SA 102 (W)).

16.3 COURSES OPEN TO THE DEFENDANT

52
The defendant may either file an affidavit in which he discloses the nature and grounds of his defence,
or he may give security to the plaintiff to the satisfaction of the registrar to satisfy any judgement,
including costs, which may be granted against him (Rule 32(3)).

In Soil Fumigation Services Lowveld cc v Chemfit Technical Products (Pty) Ltd 2004 (6) SA 29 SCA it
was confirmed that a defendant may also file a counterclaim whether liquidated or unliquidated,
provided it contained a full disclosure of the nature and grounds thereof.

16.4 HOW MUST THE NATURE AND GROUNDS OF THE DEFENCE BE SET OUT?

It must be set out in detail and may not merely be a denial.

A bona fide defence must be established. Muller and Others v Botswana Development Corporation
Ltd. 2003 (1) SA 651 SCA

Opposing affidavit must set out "fully" facts which, if proved, will constitute a defence: Citibank N A
South African Bank v Paul N.O. and Another 2003 (4) SA 180T

It is open to the defendant to raise a claim in reconvention but then the nature, grounds and material
facts of such claim must be set out fully.

The counterclaim may be one that is liquidated or unliquidated. If the quantum of the counterclaim is
less than that of the main claim, the defendant will have a defence only if he pays the difference.

The defendant does not bear the onus to prove his defence.

See further Erasmus: Superior Court Practice. Pp B1 -223 to B1 - 228

NB: A replying affidavit by the plaintiff is not permissible.

16.6 HOW MUST THE SECURITY BE GIVEN?

In practice the plaintiff and the defendant agree upon the form of the security and if the registrar
accepts it, it is regarded sufficient.

16.7 WHAT APPROACH DOES THE COURT FOLLOW?

In substance the plaintiff should do what is required of him by the rule. Undue formalism should be
avoided. (Lohrman v Vaal Ontwikkelingsmaatskappy 1979 (3) SA 391 (T) at 393H - 396B)

Should the court give leave to the defendant to proceed with his defence, the declaration of the
plaintiff will follow (where a simple summons has been issued) and after that the plea.

53
The defendant does not have to set out his defence in the same detail as in a plea, but he must
supply sufficient detail to enable the court to decide whether he has a bona fide defence (Maharaj v
Barclays National Bank Ltd 1976(1) SA 418 (a): Breitenbach v Fiat 1976 (2) SA 226(T).

The test is not whether the court is convinced of the probabilities of the defendant's defence or of his
credibility, but whether there is a reasonable possibility that the defence he advances may succeed on
trial.

Where the court grants leave to defend and does not determine the time allowed for the delivery of a
declaration, it must be delivered within 20 days of the date on which leave to defend was given.

16.8 WHICH DOCUMENTS MUST BE IN COUNSEL'S BRIEF WHEN HE APPEARS FOR THE
PLAINTIFF OF THE DEFENDANT?

 A copy of the summons

 A copy of the return or service (optional as the action is defended)
 A copy of the notice of intention to defend
 A copy of the application for summary judgement together with the supporting affidavit
 A copy of the opposing affidavit if any

16.9 ORDERS THAT THE COURT MAY MAKE AT THE HEARING OF THE APPLICATION FOR
SUMMARY JUDGEMENT

The court has discretion to grant summary judgement if the defendant did not file security or was
unable to satisfy the court that he has a bona fide defence.

If the defendant satisfies the court that he does have a bona fide defence or if the defendant gives
security, the court must give leave to defend and the action will proceed to trial.

The leave to defend may be given unconditionally or subject to such terms as to the giving of security,
the time allowed for the delivery of pleadings or otherwise, as the court deems fit.

Orders as to costs:

 should leave to defend be granted, costs are usually reserved for decision by the trial court.

 where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention
which would entitle him to leave to defend or if there is a fatal defect in the application, e.g. if the
claim is for something that is not included in the list in paragraph 6.1 above, the court may award
costs to the defendant and furthermore order that the action be stayed until the plaintiff has paid
the defendant's costs and that such costs be taxed between attorney and client.

54
 should it later appear at the trial that the defendant raised an unreasonable defence and that the
plaintiff actually should have succeeded with his application for summary judgement, the court
may order the plaintiff's costs of the application to be taxed on the scale between attorney and
client.

17.1 WHAT IS A DECLARATION?

Where a simple summons is issued, it is the equivalent of what would have been the particulars of the
claim, if a combined summons had been issued.

It contains the particulars of the plaintiff's claim and the relief which is requested.

It fully expounds the plaintiff's claim, not only concisely as in the case of a simple summons.

17.2 WHEN WILL THE DECLARATION BE USED?

It will be used when the plaintiff sued by means of a simple summons and the defendant gave notice
of intention to defend.

The plaintiff must then deliver his declaration within 15 days of receipt of the notice unless the plaintiff
successfully applied for summary judgement.

If summary judgement was refused, the plaintiff must deliver his declaration within 20 days after
judgement was refused, unless the court ordered another period. See Rule 32 (8).

17.3 WHAT HAPPENS WHEN THE PLAINTIFF FAILS TO DELIVER HIS DECLARATION AND
ALSO DOES NOT APPLY FOR SUMMARY JUDGEMENT?

The defendant may serve a notice of bar on the plaintiff requiring him to deliver his declaration within
5 days after service of the notice.

If the plaintiff still fails to deliver his declaration, the defendant may apply for absolution from the
instance or, after adducing evidence, for judgement (Rule 31(3)).

18.1 THE EXCEPTION

An exception is a legal objection to the content of a pleading. The exception is raised when the
excipient alleges that a pleading against which he excepts is inherently defective.

8.1.1 Grounds for an exception:

In terms or Rule 23(1) an exception may be raised on the following grounds:

55
 that the pleading is vague and embarrassing
 that the particulars of claim do not disclose a cause of action or that the plea does not disclose a
defence.

A distinction must be made between the exception and the application to strike out. The latter is only
used to strike out certain allegations in a pleading (in other words only a portion of a pleading) without
having an effect on the balance of the pleading. An exception, however, is raised against a pleading
as a whole. The purpose of the exception is to bring an end to the matter or at least a part thereof.

18.1.2 When must the exception be raised?

The exception must be raised within the period allowed for the filing of any subsequent pleading (Rule
23(1)).

18.1.3 The form of the exception:

In terms of Rule 23(1) the notice of exception must clearly state the ground(s) for the exception. The
exception must also contain a prayer.

Barclays National Bank Ltd v Thompsom 1989 (1) SA 547 (A) at 552
Group Five Building Ltd v Government of The Republic of South Africa (Minister of Public Works and
Land Affairs) 1993 (2) SA 593 (A): 1991 (3) SA 842 (T) at 845; Nel and Others NNO v McArthur and
Others 2003 (4) SA142T

Kuiiri v Bulk Trade (Pty) Ltd (I103/05) [2006] NAHC 32 (31 March 2006): It is a cardinal principle in
dealing with exception that if evidence can be led, which discloses a cause of action alleged in the
pleading, that particular pleading is not excipiable. Thus, a pleading is excipiable on the basis that no
possible evidence led on the pleading can disclose a cause of action.

July v Motor Vehicle Accidents Fund (I 3417/2007) [2009] NAHC 90 (25 November 2009): A
defendant who takes an exception should satisfy the Court that on all reasonable constructions of the
plaintiff’s particulars of claim no cause of action is or can be disclosed.

See also: Van Zyl v Bruni NO and Others (PI1992/01/PI1992/01) [2005] NAHC 15 (16 June 2005)

18.1.4 The notice of exception may, for example, be drafted in the following form:

"PLEASE TAKE NOTICE that the Defendant hereby raises an exception against the Plaintiff's
Particulars of Claim by reason of the fact that the Particulars of Claim do no indicate that the Plaintiff
has locus standi because there are no allegations that the Plaintiff personally sustained the damage
he alleges.

56
WHEREFORE the Defendant prays that the exception be upheld, that the Plaintiff's particulars of
claim be set aside with costs and that the Plaintiff be given leave, if so advised, to file amended
particulars of claim within one month."

Before an exception can be raised on the grounds that it is vague and embarrassing, the party
intending to take the exception should by notice afford his opponent an opportunity to remove the
cause of complaint within 15 days.

18.1.5 This notice may, for example, be drafted in the following form:

"PLEASE TAKE NOTICE that unless the Plaintiff removes the cause of complaint set out hereunder
within 15 days, the Defendant intends to raise an exception against the Plaintiffs Particulars of Claim
on the grounds that the said Particulars of Claim are vague and embarrassing.

The complaint is as follows:

The Plaintiff alleges in paragraph 3 of his Particulars of Claim that the Defendant's "conduct resulted
in a breach of contract or that some other unlawful act was perpetrated against the Plaintiff".

"The above allegation is vague and embarrassing because it is not clear on what grounds the Plaintiff
alleges that he suffered damage."

18.1.6 The hearing of the exception

The exception is heard as an opposed motion and the court may uphold the exception or dismiss it or
order that the adjudication of the exception stands over until the hearing of the matter.

18.1.7 Except in cases of exception to jurisdiction of Court, a dismissed exception is not

appealable. See Maize Board v Tiger Oats Ltd. and Others 2002 (5) SA 365 SCA

18.1.8 The test on exception

Southernpoort Developments (Pty) Ltd (previously known as Tsogo Sun Ebhayi (Pty) Ltd) v Transnet
Ltd 2003(5) SA 665 (W) adopted the following approach to exceptions:

 The excipient must establish that the pleading is excipiable on every reasonable interpretation.
 The pleader is entitled to a charitable interpretation.
 Minor blemishes can be cured by further particulars.
 The pleadings must be read as a whole.
 This approach was followed in Francis v Sharp & Others 2004 (3) SA 230 C.

19.0 DEFAULT PROCEDURE (NOTICE OF BAR)

57
Erasmus: Superior Court Practice pp B1 - 169 to B1 – 176
Rules 26 and 27

A defendant who fails to deliver his plea within the time laid down in the rules or within the time
granted to him in terms of an extension, may be ipso facto barred by the plaintiff party. A plaintiff
failing to file a declaration to his simple summons within the time laid down in the rules may likewise
be barred.

A party is barred through a notice that is served upon him, in which it is demanded that the relevant
pleading be delivered within five days after the notice of bar has been served. Should he fail to deliver
the pleading, he will be barred from delivering it subsequently.

Take notice that the days between 16 December and 15 January (both inclusive) shall not be counted
in the time allowed for the delivery of any pleading. This time is known as the dies non.

Removal of the notice of bar. Application may be made to the court to remove a notice of bar, but
good cause must be shown. See rule 27 of the High Court Rules in this regard.

20.0 THE DEFENDANT'S PLEA

Erasmus: Superior Court Practice pp B1 - 127 to B1 - 134; B1 - 141 to B1 – 150

Rules 18 and 22

20.1 WHEN TO BE DELIVERED?

In the case of a combined summons the defendant has to deliver a plea within 20 days after the
delivery of his notice of intention to defend.

In the case of a simple summons the defendant also has to deliver his plea within 20 days after the
service of the declaration.

Where a defendant in a provisional sentence action has given notice of his intention to enter into the
principal case, he must, within 10 day thereafter, deliver a plea. However, it is extremely important to
appreciate that failure to do so in this instance means that provisional sentence ipso facto becomes a
final judgement and the security given by the plaintiff lapses.

If the defendant wants to institute a claim in reconvention, it must (in the absence of agreement with
the plaintiff or an order of court) be delivered simultaneously with a plea.

20.2 REQUIREMENTS FOR THE PLEA

58
The plea must in general comply with the following requirements (Rules 22 and 18):

 All the material facts alleged in the combined summons or declaration must be admitted or denied
or confessed and avoided. Every allegation of fact by the plaintiff not admitted or denied will
be deemed to be admitted.
 All the material facts on which the defendant relies must be stated clearly and concisely.
 If any explanation or qualification of any denial is necessary, it must be provided.
 If the defendant relies on a contract, it must be stated whether it was a written or an oral contract,
and when, where and by whom it was concluded. In the case of a written contract, a true copy of
the contract or the part relied upon must be attached to the plea.
 If the defendant is represented, the plea must be signed by a legal practitioner and an advocate.

A plea, which does not comply with these requirements, may be set aside in terms of Rule 30 - see
the provisions of Rule 22(5) in this regard.

A defendant may admit the allegations of a claim in his plea, but request that the judgement be
postponed until judgement on his claim in reconvention. The prayer may reads as follows:
"WHEREFORE the Defendant prays for judgement in its favour together with costs, alternatively that
judgement on the claim in convention be suspended until further adjudication of the claim in
reconvention filed herewith, and thereafter that the plaintiff's claim be dismissed with costs".

Such a claim in reconvention may be raised even if the claim in reconvention is for a lesser amount
than the claim in convention and even if the claim in convention is for a liquidated amount and the
claim in reconvention is a claim for damages (Du Toit v De Beer 1955 (1) SA 469 (T)).

In the case of a claim for damages based on a delict it may be pleaded that the plaintiff's own
negligence contributed to the damages and an apportionment of damages between joint wrongdoers
may be requested. Note that the court may make an apportionment even though the defendant did
not claim an apportionment (AA Mutual Insurance Association Ltd V Nomeka 1976 (3) SA 45 (A). See
also Ndaba v. Purchase 1991 (3) SA 640 (N)).

20.3 INSTRUCTIONS TO COUNSEL

Considering the requirements set out above, counsel must be supplied with complete instructions if he
is required to draft a plea. The following documents must accompany his instructions:

In the case of a combined summons, a copy thereof and in the case of a simple summons a copy of
the summons and declaration.

Full instructions with regard to the defendant's defence.

59
Copies of all documents relevant to the defendant's defence, e.g. correspondence and the contract if
a written contract is relied upon.

Statements, if any, recorded from the defendant and his potential witnesses.

The summary judgement application papers, if applicable.

21. CLAIM IN RECONVENTION

Erasmus: Superior Court Practice pp B1 - 163 to B1 – 166

Rule 24

A defendant who wants to institute a claim in reconvention must do so simultaneously with the filing of
his plea. A claim in reconvention may, however, be delivered at a later stage with the consent of the
plaintiff or, if he should refuse, of the court (Van Jaarsveldt v Nel 1974(1) SA 103(T)). A claim in
reconvention must comply with the same requirements as a declaration.

If the defendant is entitled to take action against any other person as well as the plaintiff, he may with
the leave of the court proceed in such action by way of a claim in reconvention against the plaintiff
and such other persons, in such manner and on such terms as the court may direct.

The defendant may also raise a conditional claim in reconvention against the plaintiff. It means that he
may subject his claim in reconvention to the failing of the claim in convention or the defence. A
conditional claim in reconvention is often raised in actions for damages resulting from injuries
sustained in motor vehicle collisions.

22. FURTHER PLEADINGS

Erasmus: Superior Court Practice pp B1 - 167 to B1 – 168

Rule 25

22.1 REPLICATION

Within 15 days of the service upon him of a plea, the plaintiff shall where necessary deliver a
replication to the plea. A replication, which is merely a bare denial of allegations in the plea, is
unnecessary (Rule 25(2)). This means that if the plaintiff does not replicate, the allegations contained
in the plea will be deemed to be denied.

The following cases are examples of where a plaintiff will replicate to a defendant's plea:

 Where the plaintiff wishes to rely on estoppel.

 Where the plaintiff admits certain allegations in the plea, but wishes to qualify his admission as in
the case of a confession and avoidance.

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 Where the defendant pleads prescription.

22.2 PLEA IN RECONVENTION

The plaintiff must within 15 days after the service upon him of a claim in reconvention, file a plea to
that claim. The latter plea must comply with Rule 22.

22.3 `REJOINDER

Within 10 days after delivery of a replication, the defendant may deliver a rejoinder, where necessary,
on the plaintiff's replication. The defendant's rejoinder may be followed up with a surrejoinder from
the plaintiff and after that a rebuttal and surrebuttal may follow. All these further pleadings must be
served within 10 days after delivery of the previous pleading. In terms of the rule, the leave of the
court is not necessary for the filing of such further pleadings.

22.4 REPLICATION TO THE PLEA IN RECONVENTION

Within 10 days after a delivery of a plea in reconvention the plaintiff shall where necessary deliver a
replication to that plea.

22.5 PUBLICATION OF PLEADINGS PENDENTE LITE

No general principle prohibiting publication, without consent, of references to documents filed in civil
proceedings which do not reflect adversely upon litigant. The public interest to be taken into account.
Publication prohibited if anyone defamed or disparaged in documents filed or if publication may
influence outcome of case Romero v Gauteng Newspapers Ltd and others 2002 (2) SA 431 WLD.

23. THIRD PARTY PROCEDURE (RULE 6(14))

Erasmus : Superior Court Practice pp B1 - 107 to B1 – 110

Rule 13

A party to an action or an application can involve another party in such action or application by serving
a third party notice on such person.

A third party notice can be issued under the following circumstances.

 Where the party in the action claims that he is entitled, in respect of any relief claimed against him
to a contribution or indemnification from the third party; or
 Where any question or issue in the action is substantially the same as a question or an issue
which has arisen or will arise between such party and the third party, and should properly be

61
 determined not only as between any parties to the action but also as between such parties and
the third party or between any of them.

The third party notice must contain the following:

 the nature and grounds of the claim of the party issuing it;
 the question or issue to be determined;
 the relief or remedy claimed.

The formulation of the claim follows that of a pleading and the rules relating to pleadings are
MUTATIS MUTANDIS applicable.

The third party notice must be served before the close of pleadings. After the close of pleadings the
notice may only be served with the leave of the court. The notice must be accompanied by a copy of
all pleadings filed in the action up to date of service of the notice. In application proceedings the notice
must be accompanied by all notices of motion and affidavits which have been filed from date of
service of the original notice of motion.

A discussion of the applicable principles are found in Mercantile Bank Ltd. v Carlisle and Another
2002 (4) SA 886 WLD

The third party is, after service upon him of a third party notice, a party to the action. If he intends to
defend / oppose he must deliver a notice of intention to do so.

Third party procedure is complementary to, and does not supersede, the procedure laid down by
Section 2 of the Apportionment of Damages Act 34 of 1956. In terms of the latter a judgement is
given, and in terms of the former only a declaratory order.

In the case of joinder under Rule 13(1)(a) no judgement sounding in money may be sought against
the third party IPF Nominee (Pty)Ltd v Nedcor Bank Ltd (Basfour 130 (Pty) Ltd Third Party 2002 (5)
SA 101 WLD. All that can be sought is an apportionment of fault in the form of a declaratory order.

A court has a discretion to order a defendant company to furnish security for costs in terms of the
Companies Act 61 of 1973/ Companies Act of 2004 when it gains a party as third party in terms of
Rule 13. Sentraal-Suid Koöperasie Bpk v Bessemer Steel Construction (Pty) Ltd (African Civil and
Structural Engineering Services Inc. and Others as Third Parties); In re African Engineering
International (Pty) Ltd v Bessemer Steel Construction (Pty) Ltd 2004 (3) SA 552 W.

24.0 CLOSE OF PLEADINGS

Erasmus: Superior Court Practice pp B1 - 187 to B1 – 189

Rule 29

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The close of pleadings (LITIS CONTESTATIO) is a concept that is used to indicate that from a given
moment the parties are no longer entitled to exchange pleadings. This means that both parties had
ample opportunity to define their cases by way of pleadings.

Pleadings are deemed to be closed in terms of Rule 29:

 if any of the parties joined issue without alleging any new matter and without adding any further
pleadings;
 if the last day allowed for filing of a replication or subsequent pleading has elapsed and it has not
been filed;
 if the parties agree in writing that the pleadings are closed and such agreement is filed with the
registrar;
 if the parties are unable to agree as to the close of pleadings, and the court, upon the application
of a party declare them closed.

25.0 DISCOVERY27

Erasmus: Superior Court Practice pp B1 - 247 to B1 – 262

Rule 35

The principle underlying discovery is that no party may for any purpose use a document at the trial if
the document has not been disclosed previously.

The other party in the matter, who was not obliged to discover such document, will however be
entitled to use such document at the trial.

Note that in terms of Rule 35(15) tape recordings are treated just like documents and must also be
disclosed. The term "tape recording" also includes a sound track, film, magnetic tape, record or other
material on which visual images; sound or other information may be recorded.

Discovery is aimed at giving parties the opportunity to inspect documents before such documents are
used at the trial. It prevents parties from being surprised by all sorts of "new" evidence at the trial.

A party who fails to make discovery in time, runs the risk that he may be precluded from using
documents which he intends to use in the course of the trial, or he runs the risk that a postponement
will be granted with an order for costs against him.

25.1 SPECIFIC TYPES OF DOCUMENTS

27
South African Sugar Association v Namibia Sugar Distributors (Pty) Ltd 1999 NR 241 and Waltraut
Fritzsche t/a Reit Safari v Telecom Namibia Ltd 2000 NR 201.

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25.1.1 General

All documents and tape recordings not privileged and relating to any matter in question in such action
(whether such matter is one arising between the two parties concerned or not) and which are or have
at any time been in the possession or control of such other party must, within 20 days after the other
party request it by notice in writing, be discovered on affidavit. This procedure is only applicable after
the close of pleadings, except with the leave of a judge.

25.1.2 Qualification

A party is only obliged to make discovery of documents and tape recordings which are detrimental to
his own case or which may advance the case of his adversary. Documents or tape recordings which
only tend to advance the case of the party making the discovery need not be disclosed, unless such
party intends to use them at the trial.

25.1.3 Privileged documents or tape recordings

Documents or tape recordings which are privileged need not be disclosed, but must be stated and
identified individually (and not only in general). In this regard it is important to note that statements of
witnesses taken for purpose of the proceedings, communications between attorney and client and
between attorney and advocate, pleadings and affidavits and notices in the action, shall be omitted.
See, with regard to privilege:

Erasmus: Superior Court Practice pp B1 - 252 to B1 - 256, LAWSA Vol 9 par 482 - 496

25.1.4 Other documents or tape recordings

If any party believes that there are, in addition to documents or tape recordings disclosed as
aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any
matter in question in the possession of any party thereto, the former may give notice to the latter
requiring him to make the same available for inspection, or to state on oath within 10 days that such
documents are not in his possession, in which event he shall state their whereabouts if known to him.
(Rule 35(3)).

25.1.4 Documents not in possession or control of the other party

If a party wishes to avoid being surprised by documents and tape recordings which may possibly be
used by the other party, but which are not in the possession or control of the other party, he may
demand from the other party to specify in writing particulars of dates of and parties to documents or
tape recordings intended to be used at the trial of action on behalf of the other party. (Rule 35(8)).

25.2 DISCOVERY BEFORE THE CLOSE OF PLEADINGS FOR PURPOSE OF PLEADING

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After appearance to defend has been entered, any party to any action may, for purpose of pleading,
require any other party to make available for inspection within five days a clearly specified document
or tape recording in his possession which is relevant to a reasonably anticipated issue in the action
and to allow a copy or transcription to me made thereof. (Rule 35(14)). See Cullinan Holdings v
Mamelodi Stadsraad 1992(1) SA 645 (T)

25.3 DISCOVERY BY PERSONS NOT PARTIES TO THE PROCEEDINGS

Where a registered company, as defined in the Motor Vehicle Accidents Act 84 of 1986 (or the Road
Accident Fund Act 56 of 1996), is a party to an action, any party may obtain discovery against the
driver or owner of the vehicle insured by such company. The same applies to the driver of a vehicle
that is owned by a person, State, government or body as defined in the above-mentioned act. Where
the plaintiff sues as a company, the defendant has the same rights against the cedent as mentioned
above.

See Rule 35(5)) and Rule 38(1)(b)

25.4 FAILING TO DISCOVER

If a party fails to make discovery, the other party may apply to the court for an order to compel
discovery. If discovery is insufficient, the other party must first make use of Rule 35(3) and if the other
party still fails to make discovery, the court may order sufficient discovery and, at further default
thereof, the court may upon application strike out the claim or defence. (Rule 35(7)).

Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as
may be in accordance with form 15 of the first schedule to the rules of Court to any other party in
whose pleadings or affidavits reference is made to any document or tape recording to produce such
document or tape recording for his inspection and to permit him to make a copy or transcription
thereof. Any party failing to comply with such notice shall not, save with the leave of court, use such
documents or tape recording in such proceedings, provided that any other party may use such
document or tape recording (Rule 35(12)). This sub-rule is applicable in cases where the documents
do not appear in the discovery affidavit. It is even applicable in applications.

It is essential that the documents be sorted in proper chronological order, paginated and supplied with
an index.

Clear legible copies must be made for the other party, counsel, the witnesses and the Court.

Their documents must be put in order well in advance.

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In this regard it is extremely important that the attorney should do his work properly. Many High Court
cases result in disappointment for the clients because the attorney failed to make the necessary
arrangements for discovery in good time

25.5 RULE 36(6)

In Rule 36(6) of the uniform Rules the words "make available" means to cause property to be placed
at the disposal of or to be accessible to a litigant requiring its inspection – litigant not required to do
more than that. Zandry v Randle Yachts CC 2006 (5) SA 301 C.

25.6 DISCOVERY BEFORE AND AFTER COMMENCEMENT OF LEGAL PROCEEDINGS

In terms of the Promotion of Access to Information Act 2 of 2000, certain persons have rights of
access to records of private bodies in as much as the access is required for exercise or protection of
any rights. This Act has no impact on the discovery procedure and once Court proceedings begin,
access to the information is governed by Uniform Rules of Court and the provisions of Paia are no
longer applicable as between the parties. Unitas Hospital v Van Wyk and Another 2006 (4) SA 436
SCA.

25.7 DISCOVERY RE APPLICATION MATTERS

In terms of the provisions of Rule 35(13) of the Uniform Rules of Court, discovery does not apply in
application proceedings as a matter of course. Rather a litigant in application proceedings who sought
discovery had to approach the Court for an appropriate direction. Discovery was made in application
proceedings only in exceptional circumstances. In our new constitutional dispensation, where parties
were able to acquire access to information in the possession of others before launching application
proceedings, an even stricter approach had to be adopted.

Factors relevant to a determination whether exceptional circumstances existed were:

1. The fact that the Court was exercising a discretion in determining the application.

2. Principles of fairness and equity.

3. Whether the applicant for discovery was the Applicant or the Respondent in the main
proceedings.

4. The stage of the main proceedings.

5. The nature of the main proceedings and the evidence already adduced.

6. The extent of the discovery sought.

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26.0 ENROLMENT

See CONSOLIDATED PRACTICE DIRECTIVES AND THE JUDICIAL CASE MANAGEMENT

SYSTEM.

27.0 THE PRE-TRIAL PROCEDURES

Erasmus: Superior Court Practice pp B1 -137 to B1 - 140; B1 - 262 to B1 – 274

Rules 21, 36 and 37
See CPD and Judicial Case Management Protocol.

27.1 EXPERT WITNESS NOTICE

No person shall, save with the leave of the court or the consent of all the parties to the suit, be entitled
to call as a witness any person to give evidence as an expert upon any matter upon which the
evidence of expert witnesses may be received unless he has, not less than 15 days before the
hearing, delivered notice of his intention to do so and has, not less than 10 days before the trial,
deliver a summary of such expert's opinion and his reasons therefore.

27.2 PLANS, PHOTOGRAPHS ETC

No person shall, save with the leave of the court or the consent of all the parties, be entitled to tender
in evidence any plan, diagram, model or photograph unless he has, not less that 15 days before the
hearing, delivered a notice stating his intention to do so, and has offered inspection thereof and
required the party receiving notice to admit the same within 10 days of receipt of the notice.

27.3 INSPECTION

If it appears that the state or condition of any property of any nature whatsoever, whether movable or
immovable, may be relevant with regard to the decision of any matter in issue in any action, any party
may at any stage give notice requiring the party relying upon the existence of such state or condition
of such property or having such property in his possession or under his control, to make it available
for inspection or examination, and may in such notice require that such property or a fair sample
thereof remains available for inspection or examination for a period of not more than 10 days from the
date of the receipt of the notice.

27.4 MEDICAL EXAMINATIONS

Any party to proceedings in which damages or compensation in respect of alleged bodily injury is
claimed shall have the right to require any party claiming such damage or compensation, whose state
of health is relevant for the determination thereof, to submit to medical examination. Any party

67
requiring another party to submit to such examination shall deliver a notice specifying the nature of
the examination required, the person or persons by whom, the place where and the date (being not
less than 15 days from the date of such notice) and time when it is desired that such examination
shall take place. Any party to such an action may at any time by notice in writing require any person
claiming such damage to make available in so far as he is able to do so to such party within 10 days
any medical reports, hospital records. X-ray photographs, or other documentary information of a like
nature relevant to the assessment of such damages, and to provide copies thereof upon request.

27.5 INSTRUCTIONS TO COUNSEL

It is important that counsel is briefed as soon as possible in order to reserve him for the trial. The
advocate must receive all relevant documentation as soon as possible to enable him to properly
prepare for the trial.

27.6 ADVICE ON EVIDENCE

If there is any doubt about which evidence must be presented, counsel must be briefed for an advice
on evidence.

The costs of this advice on evidence may be taxed as costs between party and party.

All the pleadings must be submitted to counsel together with copies of all statements of witnesses
already taken down.

It is also desirable that the brief for advice on evidence is given after discovery has been made,
because then counsel can have insight into the discovered documents of both parties.

Counsel must be urged (and be put in a position) to prepare the advice well in advance of the trial to
enable you to give effect thereto as part of your pre-trial preparation.

27.7 REQUEST FOR PARTICULARS FOR PURPOSES OF TRIAL

After the close of pleadings any party may, not less than 20 days before trial, deliver a notice
requesting only such further particulars as are strictly necessary to enable him to prepare for trial.
Such request shall be complied with within 10 days of receipt thereof by the other party. The request
for further particulars and the reply thereto shall be signed by an attorney and an advocate, or by an
attorney who has the right of appearance in the High Court, save where the party concerned is
litigating in person.

If the party requested to furnish any particulars as aforesaid fails to deliver it timeously or sufficiently,
the party requesting the same may apply to court for an order to compel their delivery. Should the

68
party requested to furnish further particulars still fail to comply with such an order, the court may be
requested on application to dismiss the action or to strike out the defence.

In order to prevent the abuse of this procedure, the court shall at the conclusion of the trial mero motu
consider whether the further particulars were strictly necessary, and shall disallow all costs of and
flowing from any unnecessary request or reply, or both, and may order either party to pay the costs
thereby wasted, on an attorney and client basis or otherwise.

27.8 THE PRE-TRIAL CONFERENCE28

The plaintiff is required to within 4 days after close of pleadings and on notice to the defendant, notify
the Registrar the pleadings have closed and as such in notice call upon the registrar to allocate the
case to managing judge. Should the Plaintiff fail the defendant must do the same within four days
after the plaintiff was supposed to file the notice. The parties are thereafter required to hold a pre-trial
conference and file the minute once they are aware of the identity of the managing judge.

For the purpose of the pre-trial conference each party shall furnish every other party with a list of:

 the admissions which he requires

 the enquiries which he will direct and which are not included in a request for particulars of trial
 other matters regarding preparation for trial which he will raise for discussion.

Minutes of the pre-trial conference shall be prepared and shall be signed by or on behalf of
every party.

From these minutes the following shall appear:

 the date, place and duration of the conference and the names of the persons present;
 if a party feels that he is prejudiced because another party has not complied with the rules of
court, the nature of such non-compliance and prejudice;
 that every party claiming relief has requested his opponent to make a settlement proposal and
that such opponent has reacted thereto;
 whether any issue has been referred by the parties for mediation, arbitration or decision by a third
party;
 whether the case should be transferred to another court;
 which issues should be decided separately in terms of Rule 33(4);
 the admissions made by each party;
 any dispute regarding the duty to begin or the onus of proof;
 any agreement regarding the production of evidence by way of an affidavit;
28
See the changes brought about by the Fourth Amendment to the Consolidated Practice Directives
and Amendment of the Rules of the High Court of Namibia as per Government Notice No 57 of 2011.
Please study the amended rule 37 for better understanding of the rules and the judicial case
management system.

69
 which party will be responsible for the copying and other preparation of documents;
 which documents or copies of documents will, without further proof, serve as evidence of what
they purport to be, which extracts may be proved without proving the whole documents or any
other agreement regarding the proof of documents.

A minute of such a conference shall be prepared by the plaintiff.

A judge may, if he deems it advisable, at any time at the request of a party or mero motu call upon the
legal practitioner or advocates for the parties to hold or to continue a conference before a judge in
chambers (See Judicial Case Management process re informal status hearings with the managing
judge)

In Rauff v Standard Bank Properties 2002 (6) SA 693 WLD Flemming D J P refers to the duty to hold
the pre-trial conference timeously and to use the conference to make evidential disputes clear.

See: In the case De Waal v De Waal [2011] NAHC 227;I 1775/2009 (28 July 2011) the objectives of a
pre-trial conference were enumerated as follows:

1. to ensure the speedy disposal of any action or application;

2. to promote the prompt and economic disposal of any action or application;

3. to use efficiently the available judicial, legal and administrative resources;

4. to provide for a court-controlled process in litigation;

5. to identify issues in dispute at an early stage;

6. to determine the course of the proceedings so that the parties are aware of succeeding events
and stages and the likely time and costs involved;

7. to curtail proceedings;

8. to reduce the delay and expense of interlocutory processes;

9. to separate the adjudication or interlocutory motions from that of the merits to be heard at the
trial;

10. to provide for the better and more practical and more timely production of evidence by expert
witnesses;

11. to provide for the production or discovery of documents at a more convenient, practical and
earlier time;

12. to ensure the involvement of the parties before the initial case management conference by the
preparation of a case management report; and

70
 13. to identify as soon as practicable firm dates for particular steps as well as for the trial of an
action or hearing of an opposed motion.

28. GENERAL PREPARATION FOR TRIAL

Erasmus: Superior Court Practice pp B1 - 275 to B1 - 287; B1 - 404 to B1 - 406

Rule 38 and 62

28.1 THE GOLDEN RULE

Preparation must be done fully and timeously (as early as is reasonably possible) and it must not be
discussed with the opposing party.

28.2 CONSULTATION WITH WITNESSES

Consultations with the client or witnesses must be thorough. It means that all relevant facts must be
discussed, particularly facts that may be detrimental to the client's case.

It is improper to tell a person who is interviewed what to say, or to bring him under the impression that
his version must be coloured in a specific way.

Some people may be under the impression that during such a consultation their evidence will be
groomed to sound good. In such a case it is the duty of the attorney to tell the person that it is
expected of him to speak only the truth.

The attorney must at all times be aware that he acts as an officer of the court and may under no
circumstances be a party to the distortion of evidence or the production of false evidence.

The foregoing does not mean that the version of a witness may not be tested against other known
facts or the objective probabilities. The process, however, remains a search for the truth.

28.3 CONSULTATION WITH WITNESSES OF THE OPPOSING PARTY

The general principle is that a litigant's legal representatives are entitled to consult with any persons
who they believe are in possession of information that will help the client in the preparation or
presentation of his case.

This right is not taken away from the legal representative of the litigant merely because the other party
has already summoned such a person to give evidence in the case or because he has already been
consulted with.

The only restrictions to this right are the following:

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Where the trial has already started, but before the person has given evidence, he may not be
consulted with until the legal representatives of the other party has been given adequate notice of the
proposed consultation. Should the legal representatives of the opposition object to the proposed
consultation, such objection does not prevent the consultation and the legal representatives of the
other party are not entitled to be present at the consultation?

Where the trial has already started and a person has already given evidence for the opposition in the
matter, such person may only be consulted with if the legal representatives of the opposition are
adequately informed of the proposed consultation. In such a case the legal representatives of the
opposition are entitled to be present at the consultation, unless they have waived such right. A mere
objection to the consultation is, however, no impediment.

28.4 STATEMENTS OF WITNESSES

In general it is permissible for legal practitioners to take statements from proposed witnesses, but as a
rule no affidavits should be taken, except where it is necessary in cases where evidence must be
adduced on affidavit.

28.5 SUBPOENAS

A subpoena is a writ by a government agency, most often a court that has authority to compel
testimony by a witness or production of evidence under a penalty for failure. There are two common
types of subpoena, a subpoena ad testificandum orders a person to testify before the ordering
authority or face punishment. The subpoena can also request the testimony to be given by phone or
in person. And a subpoena duces tecum orders a person or organization to bring physical evidence
before the ordering authority or face punishment. This is often used for requests to mail copies of
documents to requesting party or directly to court.

Any party desiring the attendance of any person to give evidence at the trial, may as of right issue a
subpoena for that purpose, as near as may be in accordance with form 16 of the First Schedule to the
Rules, containing the names of not more than four persons.

Service of a subpoena must be effected by the sheriff in the manner prescribed.

If a witness has in his possession or under his control any deed, instrument, document or object which
the party requiring his attendance desires to produce in evidence, the subpoena must specify such
document or object and require him to produce it to the court at the trial. Such a subpoena is called a
subpoena duces tecum. Such a witness shall hand over the deed, etc to the registrar as soon as
possible and thereafter the parties may inspect it and make copies of it.

Whenever any person subpoenaed to attend any civil proceedings as a witness fails without
reasonable excuse to obey the subpoena and it appears from the return of the sheriff that the

72
subpoena was served upon the person to whom it is directed and that his reasonable expenses have
been paid or offered to him, or if he fails to remain in attendance, the court may issue a warrant
directing that he be arrested and brought before the court at a time and place stated in the warrant.

28.6 SEPARATION OF ISSUES – RULE 33

If it appears to the court that there is a question of law or of fact that may conveniently be adjudicated
before evidence is led or separately from any other question, the Court may mero motu and shall on
application of any party, direct a separation of issue unless it appears that the issue cannot
conveniently be decided separately. See Grootboom v Graaff-Reinet Municipality 2001(3) SA 373
ECD.

The following considerations, which are not exhaustive, should be kept in mind when considering an
application for a separation of issues.

28.6.1 A thorough evaluation of the pleadings should be undertaken to determine what the issues
are.

28.6.2 Having determined the issues, consider whether there are issues which may conveniently be
decided separately and which, if dealt with separately, will shorten the duration or facilitate
determination of the action.

28.6.3 In making this determination, the litigant must keep in mind the nature of the cause of action
and/or defence relied on and the various elements required to be proved or disapproved.

Practical consideration such as the length of the trial of all issues are dealt with at once, as opposed
to one where the separation is ordered, should also be considered. See the Article "Separation Of
Issues In Terms Of Rule 33(4)" by van Loggerenberg, Dicker and Malan De Rebus August 2005 at
page 30

28.7 PREPARATION OF COURT PAPERS

It is the duty of the plaintiff's legal practitioner to arrange, paginate and bind together all delivered
papers and to deliver a complete index thereof at least five days before the hearing. See Rule 62(4).
In practice it means the following:

 all pleadings are bound together and numbered consecutively in one bundle and then such
bundle is indexed
 all notices which are filed at court are bound together and numbered consecutively and then the
bundle concerned is also indexed.
 copies of both indexes must be served on the other party.
 hand written annexures to pleading or notices should be retyped for easy legibility.

73
 if voluminous, the Rule 36(9) summaries should be bound, paginated and indexed.
 if at a trial a variety of other documentation is going to be used (e.g. correspondence or other
documentary proof) such papers must be bound together in a bundle, numbered consecutively
and provided with a separate index.

Failure to see that the court file is indexed and paginated in time may cause the court to strike the
case from the roll with an order for costs against the plaintiff. It may also cause the court to order the
legal practitioner of the plaintiff to pay the wasted costs out of his own pocket (costs de bonis propriis).

28.8 EVIDENCE ON COMMISSION

A court may, on application on notice, in any matter where it appears convenient or necessary for the
purpose of justice, make an order for taking the evidence of a witness before or during the trial before
a commissioner

28.9 EVIDENCE ON AFFIDAVIT

A court may at any time, on good cause shown, order that all or any of the evidence be given on
affidavit instead of witnesses appearing at the trial to give oral evidence. Where it appears to the court
that the other parties reasonably required the attendance of a witness for cross-examination, and
such a witness can be produced, the evidence of such witness shall not be given on affidavit. (Rule
38(2)).

This procedure is, however, limited and is usually only applicable when it is impossible or very
inconvenient for a witness to attend the court proceedings and where his evidence shall be merely
formal in nature.

28.10 CONSOLIDATION OF ACTIONS

Where separate actions have been instituted and it appears to the court convenient to do so, it may
upon the application of any party thereto and after notice to all interested parties, make an order
consolidating such actions, whereupon the said actions shall proceed as one (Rule11).

The provisions of Rule 10 will apply in such a case with the necessary alteration and the court may
make any order which to it seems meet, with regard to the further proceedings.

The court may give one judgement disposing of all matters in dispute in the said action.

28.11 INSTRUCTIONS TO COUNSEL

Counsel must be provided with complete instructions for purposes of the trial. It is improper to send
only the legal practitioner’s office file to the advocate.

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Counsel's brief must contain at least the following:

 copies of all pleadings

 copies of all statements of witnesses
 copies of all relevant documentation
 copies of all expert notices and summaries of expert evidence
 copies of discovery affidavits of both parties
 copies of all relevant documentation discovered by the opposition
 copies of all relevant correspondence exchanged between the different attorneys having a
bearing on the points in issue
 copies of all previous opinions and memoranda drafted by counsel
 a copy of the advice on evidence if it has already been prepared.

28.12 INTERPRETERS

It has to be kept in mind that it is the duty of every attorney to see to it that there is an interpreter
available during the trial should one or more witnesses not be able or prepared to testify in English.

29. THE TRIAL –THE LEGAL PRACTITIONER’S DUTIES

It is once again emphasized that it is the duty of the legal practitioner to support the advocate in the
conduct of the trial.

For this reason the legal practitioner or at least his candidate legal practitioner ought to be present
during the course of the whole trial.

The legal practitioner should have a thorough knowledge of the facts of the case, the law involved and
the relevant rules of evidence and procedures.

30. SETTLEMENT OFFERS AND INTERIM PAYMENTS

Erasmus: Superior Court Practice pp B1 - 237 to B2 – 246

Rules 34 and 34A

30.1 THE SETTLEMENT OFFER

The words "payment in court" have fallen into disuse. The term "settlement offer" is now used.

When the defendant tries to settle a case he does not pay the money to the registrar. He makes a
settlement offer either unconditionally or without prejudice.

The settlement offer is signed either by the defendant personally or by his attorney if he has been
authorised thereto in writing by his client.

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30.2 A SETTLEMENT OFFER MAY READ AS FOLLOWS:

"Please take notice that in terms of the written authorisation of the defendant, the amount of N$50
000.00 his hereby offered together with the taxed costs up to date, without prejudice to the
defendant's rights, in full and final settlement of the plaintiff's claim."

30.3 AN UNCONDITIONAL OFFER OF SETTLEMENT

If the offer is made unconditionally with regard to the entire claim, the opposite party may accept it.
The litigation comes to an end.

Note that an unconditional offer may also be made in respect of part of the claim. The opposite party
may accept this offer and still continue with litigation in respect of the balance of the claim.

30.4 SETTLEMENT OFFER WITHOUT PREJUDICE

This offer means that the party who makes the offer denies liability. The offer is made only to try and
settle the case out of court.

If the opposite party accepts this offer, litigation comes to an end and he cannot continue with
litigation for the balance of the claim.

30.5 THE ACCEPTANCE OF THE OFFER

The party to whom the offer or tender is made, is entitled to accept it within 15 days after receipt of
notice thereof.

After 15 days have expired, the offer may be accepted only with the written consent of the party who
made the offer.

The court may also, under certain circumstances, authorise the party to whom the offer or tender was
made to accept it after 15 days have expired.

Note that on offer that is made without prejudice may not be disclosed to the court. In practice this
means that the notice that contains the offer may not be in the court files when the case is set down
for hearing.

The aim of the offer made without prejudice is not only to bring litigation on an early end, but also to
protect the party who makes the offer against costs should the opposite party not accept the offer and
a lower amount is subsequently granted by the court.

Should the offer not be accepted, the trial continues in the usual way. After judgement has been
granted, the contents of the offer may be disclosed to the court in order to request the court to

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reconsider its order as to costs in the light of the offer that was made and the amount ultimately
awarded by the court.

30.6.1 General

In an action for damages for personal injuries or the death of a person, the plaintiff may, at any time
after the expiry of the period for the delivery of the notice of intention to defend, apply to the court for
an order directing the defendant to make an interim payment in respect of his claim for medical costs
and loss of income arising from his physical disability or the death of a person. Such order can only be
made if the court is satisfied that:

the defendant has in writing admitted liability or the plaintiff has obtained judgement on the merits for
damages, the quantum of which is still to be determined, and

the defendant is covered by insurance or has the means to enable him to pay.

30.6.2 Procedure

In the supporting affidavit to such application the following must be set out:

 the grounds for the application

 the amount claimed
 any documentary proof relied upon
 an allegation that the opposite party admitted liability in writing or that the plaintiff has
obtained judgement against the respondent for damages to be determined. A copy of the
written admission of liability or Court order must be attached to the Affidavit. (Rule 34A(4)).

An allegation that the defendant is insured in respect of the plaintiff's claim or that he has the means
at his disposal to enable him to make such a payment. (Rule 34A(5)).

31. AMENDMENTS TO PLEADINGS AND DOCUMENTS29

Erasmus: Superior Court Practice pp B1 - 176 to B1 – 187

Rule 28

31.1 GENERAL

A variety of reasons may exist why a pleading or a document (not an affidavit) must be amended, e.g.
the amount claimed in the summons is wrong or a material allegation in the plea is omitted.

29
See Meyer v Deputy Sheriff, Windhoek and Others 1999 NR 146 & Andreas v La Cock and Another
2006 (2) NR 472

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Should an affidavit have to be rectified, a supplementary affidavit has to be made in which the error is
rectified or further allegations are made.

The relevant rule distinguishes between a pleading and a document which does not include an
affidavit.

pleadings involve the following: a simple summons, a declaration, a combined summons, a plea, a
claim in reconvention, a request for further particulars for purpose of trial and the answer to that, a
replication and a rejoinder etc.;

documents involve: annexures to the pleading and notices. With regard to notices, it also includes
the annexures, e.g. a summary of an expert's opinion and his reasons for it.

31.2 PROCEDURE

Any party desiring to amend any pleading or document shall give notice to all other parties to the
proceedings of his intention to amend and shall furnish particulars of the amendment.

Such notice states that unless written objection to the proposed amendment is made within 10 days
the party giving notice will amend the pleading or document in question.

If no such objection is made, the party who received such notice shall be deemed to have agreed to
the amendment. The other party shall thereupon, within 10 days of the expiration of the period for
objection, effect the amendment, by serving and filing the amended pages.

If objection is made within the said period, which objection must clearly and concisely state the
grounds on which it is founded, the party wishing to amend may within 10 days of the receipt of such
objection apply to court on notice for leave to amend and set the matter down for hearing.

Unless the court directs otherwise, the party who is given leave to amend must effect such
amendment by delivering pages in their amended form within 10 days.

When an amendment to a pleading has been delivered, the other party shall be entitled to plead
thereto or amend consequentially any pleading already filed by him within 15 days of the receipt of the
amended pleading. He may also raise an exception, bring an application to strike out or file a
replication. A party giving notice of amendment shall, unless the court otherwise orders, be liable to
pay the costs occasioned thereby to any other party.

Amendments may also be effected to pleadings or documents at the commencement of or during the
trial.

The general principle is that a party desiring to amend his pleading or document, must give notice
thereof as early as possible to the opposite party. Should an amendment be requested shortly before

78
or during the trial and such amendment is prejudicial to the opposite party in the conduct of his case,
the court may grant a postponement on request of the opposite party and order the party desiring the
amendment to pay the wasted costs.

Should a party wish to effect an amendment within 10 days of the commencement of the trial, the
prescribed 10 days for objecting to it can of course not be allowed. In that case the notice must state
that the amendment will be requested at the commencement of the trial.

Amendments will normally be allowed unless the application is mala fide or would cause an injustice
to the other side which cannot be cured by an order as to costs and, where appropriate, a
postponement.

 an amendment that will introduce a new cause of action may in principle be allowed
 an amendment that contains the withdrawal of an admission will only be allowed by the court if
such admission has been made in error and there is no prejudice to the other side.
 the affidavit supporting such an application to amend must contain evidence of the circumstances
under which the admission was made in error.

Tengwa v Metrorail 2002(1) SA 739 (C)

Luxavia (Pty) Ltd v Gray Security Service (Pty) Ltd 2001(4) 211 W

Where the proposed amendment is bad in law and excipiable, the court will not grant an amendment

See: Krischko v Road Accident Fund 2004 (4) SA 358 WLD

In Joles Eiendom (Pty) Ltd v Kruger and Another 2007 (5) SA 222 CPD it was held that although a
Court of Appeal was in principle empowered to grant an amendment of the pleadings this power
would be sparingly exercised and an amendment would only be allowed in cases where the Court
was satisfied that the other side would not be prejudiced thereby.

32. INTERLOCUTORY APPLICATIONS

Rule 6(11)

It must be kept in mind that a court case often consists not only of a single trial, but that all kinds of
applications may be brought in the course of the litigation between the parties to give effect to the
rules discussed above. For that matter, interlocutory relief may be asked for in the course of a case
from the issuing of the summons to the final hearing of the case.

In this regard notice should be taken of the provisions of Rule 6(11) which provides that interlocutory
(i.e. interim) applications and other applications incidental to pending proceedings are brought on

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notice supported by such affidavits as the case may require and are set down at a time assigned by
the registrar or as directed by a Judge.

33. SECURITY FOR COSTS

Erasmus: Superior Court Practice pp B1 - 340 to B1 346

Rule 47 & Section 11 of the Companies Act 28 of 2004

33.1 WHAT DO THE RULES STIPULATE?

The party entitled and desiring to demand security for costs from another shall, as soon as practicable
after the commencement of proceedings, deliver a notice setting forth the grounds upon which such
security is claimed, and the amount demanded. (Rule 47(1)).

A substantial delay in applying for security may warrant a refusal thereof by the court.

See: ICC Car Importres (Pty) Ltd v A Hartrodt SA (Pty) Ltd 2004 (4) SA 607

If the amount of security is contested, the registrar shall determine the amount. (Rule 47(2)).

If the party refuses to furnish security, the other party may apply to court on notice for an order that
such security be given and that the proceedings be stayed until such order is complied with. (Rule
47(3)).

The following could act as a guideline for the usual order requested by the Applicant.

*The respondent is directed to furnish the Applicant with security for costs in an amount to be
determined by the Registrar.

*The Respondent's claim under case number XYZ/2007 is stayed until such time as the respondent
has furnished the aforesaid security for costs.

The Applicant is granted leave to approach this Court on the same papers, duly supplemented where
necessary, to seek a dismissal of the Respondent's claim, with costs, in the event that the
Respondent does not furnish the required security within 30 days of the Registrar's determining the
quantum of that security.

That the respondent pays the costs of the application.

Note that the rules do not indicate in which case one party is entitled to demand security from
another, but that the rules only indicate the procedure to be followed when security is applied for.

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In an application for security for costs against a company Plaintiff, the discretion to order such security
is vested in the Court and such discretion is to be exercised with due regard to the right of access to
Court guaranteed by Article 25(2) of the Constitution. On the one hand the Court would weigh the
potential injustice to the Plaintiff or Applicant if it was prevented from pursuing a legitimate claim. On
the other hand, the Court would consider the potential injustice to the Defendant if it succeeded in its
defence but could not recover its costs.

See Jiddey No v J C Barnard and Partners 2007 BCLR 125 (CC)

The probability that a company would be unable to meet an adverse costs order did not justify the
inference that it would be unable to furnish security, as these were different issues – MTN Service
Provider (Pty) Ltd v Afro Call (Pty) Ltd 2007 (6) SA 620 SCA

33.2.1 Actions by peregrini

Where the plaintiff or applicant is a peregrinus of the Republic of Namibia and does not own
unmortgaged immovable property in the Republic, the defendant or respondent is entitled to demand
security for the costs of the action from the plaintiff or applicant.

33.2.2 Actions by a company or close corporation

Where the plaintiff or applicant is a company or close corporation and there is reason to believe that
the company or close corporation will be unable t o pay the costs of the defendant or respondent if
successful in his defence, the court may order the plaintiff or applicant to furnish security for costs of
the defendant or respondent. See section 11 of the Companies Act of 2004 and section 8 of the Close
Corporations Act of 1984.

33.2.3 Actions by insolvent

An insolvent who acts as plaintiff or applicant may be ordered to furnish security for costs of the
action. The court will not ordinarily give such an order, unless the defendant or respondent can prove
that the action is reckless or vexatious.

34. PROCEDURE FOR PROVISIONAL SENTENCE

Erasmus: Superior Court Practice pp B.1 - 61 to B.1 - 84.

Rule 8.
De Rebus June 2003 p29-31: A step-by-step summary

Provisional sentence is a hybrid procedure containing elements of both action and motion procedure.
It is instituted by way of summons, but adjudicated on affidavits.

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34.1 WHEN IS THIS PROCEDURE USED?

It is a special form of summons (Form 3).

It is only used where the cause of action is based on a liquid document.

A liquid document may be generally defined as a written instrument signed by the Defendant or his
agent evidencing an unconditional acknowledgment of indebtedness in a fixed sum on money (Jones
v Kok, 1995(1) SA 677 (A) at 685J). There are documents, which do not comply with this definition but
on which provisional sentence may nevertheless be granted e.g. an architect's certificate, which is
referred to below.

Do not confuse the concept liquid document with the concept-liquidated claim. A liquidated claim is a
claim for something specific, e.g. ejectment; or delivery; or payment of R150 000. (A claim for
damages is usually not a liquidated claim because the court still has to determine the quantum
thereof).

34.2 EXAMPLES OF DOCUMENTS THAT MAY BE LIQUID DOCUMENTS

34.2.1 A written acknowledgment of debt:

This is usually a liquid document provided that it is clear from the document itself that all the
conditions as discussed above are complied with.

34.2.2 Negotiable instruments:

Cheques, bills of exchange and promissory notes are usually liquid documents, provided that the
plaintiff can prove that he is the holder thereof.

34.2.3 Judgements:

Provisional sentence may be granted on a judgement of the magistrate's court or on a foreign

judgement, provided that a copy of the magistrate's court judgement and in the case of a foreign
judgement, a certified copy, duly authenticated, is attached to the provisional sentence summons. See
Blanchard, Krasner and French v Evans 2004 (4) SA 427 (W)

34.2.4 Mortgage bonds:

A mortgage bond must be approached carefully. Usually covering bonds stipulate that the mortgager
acknowledges indebtedness up to a specified maximum amount. It does not necessarily imply that the
mortgage lent and advanced an amount equal to the maximum. If the extent of the mortgager's
liability is to be determined by another document (e.g. certificate by a bank), the covering bond will not

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be a liquid document. The particular document must be analysed to determine whether it complies
with the requirements of a liquid document or not.

34.2.5 Deeds of sale:

These should also be carefully considered. Not every deed of sale is necessarily a liquid document.
Deeds of sale are reciprocal agreements which place an obligation on the seller to deliver and an
obligation on the purchaser to pay. Usually the purchaser is only liable for payment after the seller has
delivered. This means that liability (in contrast with payment) is subject to a condition. It is not a
"simple condition" for the purposes of provisional sentence. See: Rich & Others v. Lagerwey, 1974 (4)
SA 748 (A)

34.2.6 Architect's certificate:

An architect's certificate given under a building contract is usually a liquid document. It must be
stressed once again the nature and content of the document concerned must be analysed properly to
determine whether it is really a liquid document or not. In the case of an architect's certificate, the
building contract pursuant to which it was given, must also be attached to the provisional sentence
summons.

Keep in mind that a plaintiff may decide to use a simple or even combined summons when his cause
of action rests upon a liquid document. Usually, however, the provisional sentence summons is used
as the provisional sentence procedure has many advantages for the plaintiff. Examples of liquid
documents that are most common are cheques and mortgage bonds.

34.2.7 A lease agreement

See Woolfson's Credit (Pty) Ltd v Holdt 1977 (3) SA 720 NPD.

34.3 WHAT DOES THE SUMMONS LOOK LIKE?

Rule 8(1) provides that the example, as set out in Form 3 of the first schedule, must be used.

The wording of the instruction in the form, "here set out the cause of action" could read as follows:
'(amount) together with interest thereon at the rate of ..........% per annum a tempore morae, claimed
by the Plaintiff as being an amount due and payable by Defendant to Plaintiff by virtue of a cheque
dated .......... drawn by Defendant on the ...............bank ...............(address) in favour of the Plaintiff
and of which cheque Plaintiff is the holder. The said cheque was duly presented for payment at the
bank aforesaid where same was dishonoured by non-payment as a result of lack of funds in the
account of Defendant at the said bank. The said cheque remains unpaid and is in Plaintiff's
possession. A copy of the said cheque is annexed hereto marked "A".

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The form has to be adapted to meet the circumstances of each particular case.

A copy of the liquid document (e.g. the cheque) must be attached to the completed summons form. It
must be emphasised that rule 8(3) provides that copies of all documents upon which the claim is
founded shall be annexed to the summons and served with it. If there is a nexus between the
documents, e.g. in the case of a building contract which stipulates that the certificate of an architect is
sufficient to prove the amount to be paid to the building contractor, all the relevant documents must be
attached, i.e. the building contract as well as he architect's certificate.

A photocopy of the liquid document must be attached to the summons. The front and reverse sides
must be photocopied. It is dangerous to attach the original documents - they may get lost! The original
document is handed up by counsel from the bar at the hearing of the application for provisional
sentence, the dies induciae must be calculated accurately and filled in on the summons form.

If the defendant is within the jurisdiction of the court, a minimum period of 10 court days must expire
from the date on which the summons was served.

34.4 ISSUING AND SERVING

The provisional sentence summons is issued by the registrar and served by the sheriff. Before issue a
N$ 5.00 revenue stamp is attached in the top right hand corner of the first page of the summons and
N$ 5,00 on the power of attorney.

34.5 ENROLMENT: UNOPPOSED ACTIONS

After the dies induciae have expired, the matter must be set down for hearing before 12h00 a.m. on
the court day but one preceding the day upon which the provisional sentence application is to be
heard.

Provisional sentence applications are heard together with the ordinary applications.

See example of a notice of set down.

When service of the summons was defective or the dies induciae insufficient, the matter cannot be
postponed on the date for which it has been set down. In such cases it must be removed from the roll
and the summons, with a fresh date of hearing, must be served again.

An omission to set the matter down for hearing on the date appearing in the summons, the plaintiff
may subsequently set it down for hearing upon service of a notice of set down.

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34.6 CHECKLIST FOR COUNSEL'S BRIEF IN THE CASE OF AN UNOPPOSED CLAIM FOR
PROVISIONAL SENTENCE

The following must be placed in the brief:

 A copy of the provisional sentence summons.

 A copy of the return of service.
 The original liquid document. Where a mortgage bond is relied upon, the original mortgage
bond does not have to be handed in (it is too precious a document to file in a court file). A
court will generally accept a notarially certified copy of the mortgage bond.
 The notice of set down which at the same time constitutes the draft order. At the hearing of
the application counsel will usually ask for "an order in terms of prayers 1, 2, and 3 of the
notice of set down."

34.7 OPPOSED ACTIONS

The defendant personally or his legal representative on his behalf, may appear in court and raise his
defences; or

The defendant may file an answering affidavit as he is notified to do in the summons. Where he relies
on a defence which appears ex facie the summons or the documents sued on, he need not file an
affidavit dealing with his objection.

When such an affidavit is filed, the plaintiff is permitted to file replying affidavit. Only two sets of
affidavit will usually be involved, although the Court does have discretion to permit the filing of further
affidavit if good cause is shown.

The defendant may take points in limine on for instance the ground that the summons does not
comply with the Rule. The defendant may attack the liquid document by, for instance, alleging that it is
not his or her agent's signature that appears on the document. He may allege that the document is
not liquid. He may raise a defence underlying the liquid document, by, for instance, alleging that he
was released from payment or that the amount claimed has been paid. The defendant may raise a
liquid or illiquid counterclaim as a defence. There are a large number of defences that may be raised
by the defendant.

34.8 ENROLMENT OF THE OPPOSED CLAIM FOR PROVISIONAL SENTENCE

The application is set down in the manner in which opposed applications are usually set down.

34.9 CHECKLIST FOR COUNSEL'S BRIEF IN THE CASE OF AN OPPOSED CLAIM

 Copy of the summons together with the documents on which the claim rests.

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 Copy of the return of service. (Not essential since the claim is opposed).
 The original liquid document.
 A copy of the defendant's answering affidavit.
 A copy of the plaintiff's affidavit.
 A copy of the notice of set down.

34.10 WHAT IS THE POSITION WITH REGARD TO THE ONUS OF PROOF IN THE CASE ON
AN OPPOSED CLAIM FOR PROVISIONAL SENTENCE?

Should the defendant deny the liquidity of the document (e.g. the authenticity of the signature or the
authority of his agent), the onus of proof will rest on the plaintiff.

Should the defendant rely on an underlying defence, i.e. a defence on the merits, the onus of proof
will rest on the defendant.

34.11 WHAT ORDERS MAY THE COURT MAKE?

The court may:

Adjourn the proceedings on good cause shown.

Give final judgement.

Grant provisional sentence, where the plaintiff discharged his onus of proof will rest on the defendant.

The court may refuse provisional sentence. In such a case the defendant is usually ordered to file a
plea within a stated time. The court may make a suitable order as to costs.

The effect of a provisional sentence is that the defendant may only enter into the principal case if he
has satisfied the amount of the judgement and taxed costs or if the plaintiff on demand fails to furnish
security in terms of Rule 8(9) (Rule 8(10).

The plaintiff shall on demand furnish the defendant with security DE RESTITUENDO to the
satisfaction of the registrar, against payment of the amount due under the judgement. (Rule 8(9).

The defendant must deliver a notice of his intention to enter into the principal case within 2 months of
the granting of provisional sentence. Should he fail to do this, the provisional sentence automatically
becomes final after 2 months. (Rule 8(11).

The plaintiff may, at any time after provisional sentence has been granted, issue a warrant of
execution against the defendant.

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If the defendant against who provisional sentence has been granted notified the plaintiff of his
intention to enter into the principal case, but fails to deliver his plea within 10 days thereof, the
provisional sentence therefore automatically becomes final. (Rule 8(11)).

34.12 PROVISIONAL SENTENCE IS NOT APPEALABLE

 The common law does not provide the defendant with any right of appeal but classifies a
provisional sentence as a pure or single interlocutory order against which no appeal can lie
 The decision to grant provisional sentence is not final in effect and is susceptible to alteration
by the court hearing the principal case
 Provisional sentence is not definitive of the parties' rights and does not determine the issues
between them finally

See: Autzoglou v First National Bank of Southern Africa Ltd 2004 (2) SA 453 SCA

34.13 EXCEPTION TO PROVISIONAL SENTENCE NOT APPEALABLE

In Smit v Scania South African (Pty) Ltd 2004 (3) SA 628 SCA it was stated that it is possible in
exceptional circumstances that a provisional sentence may be appealable.

IV. THE APPLICATION PROCEDURE

1. INTRODUCTION

Note that the expressions "application" and "motion" are often used a synonyms.

Further take note that specific applications in Insolvency, Matrimonial and Commercial proceedings
are dealt with in the practice notes relating to those proceedings. They should for examination
purposes be regarded as an integral part of High Court Procedure.

1.1 BACKGROUND

An application consists of a notice of motion and a founding affidavit, (together with any supporting
documents) as to the facts upon which the applicant relies for relief. (Rule 6(1)).

Union Finance Holdings Ltd v IS Mirk Office Machines 11 (Pty) Ltd and Another 2001 (4) SA 842
WLD.

An application (notice of motion and affidavit) is issued in the office of the registrar as a new process
and it gets its own case number and file. A N$10-00 Revenue stamp must be affixed to the notice of
motion.

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Although such an application is usually issued by the office of the registrar before it is served, it is not
a mandatory requirement. Service of such an application before it is issued is not a nullity. This is in
contrast with the provision that a summons must first be issued by the registrar before it is served.

Republikeinse Publikasies (Edms) Bpk v. Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773
(A)

Seeing that the application procedure is much quicker and less expensive than the action procedure,
it is often a consideration to rather approach the court for the necessary relief by means of the
application procedure.

1.2 DIFFERENCE BETWEEN APPLICATION AND ACTION PROCEDURE

Application is utilised where it is mandatory to do so is prescribed by statute or in the absence of

either the application or action procedure prescribed where there is no real dispute of fact. This is a
dispute capable of decision on the papers and no viva voce evidence is adduced. Where a dispute of
fact does arise - See Atkinson v Rave Earth Extraction Ltd 2002 (2) SA 547 (c).

Action procedure is utilised where there is a dispute of fact and law. This is a dispute that is capable
of decision based on oral and factual evidence; there is reliance on viva voce evidence.

1.3 MANNER OF BRINGING THE APPLICATION BEFORE COURT

Applications are brought in one of two ways:

On notice to the registrar only – where no other person is affected – ex parte

On notice to the registrar and any other person affected by the application Rule 6(1) and 6(2) - notice
of motion

1.4 INSTANCES WHERE THE USE OF THE APPLICATION PROCEDURE IS MANDATORY ARE
AS FOLLOWS:

When there is no dispute of fact but only a dispute of law or manner of application of the law.
Examples of instances where use of application is mandatory are as follows:

In appeals from one court to another – i.e.

 Rule 43 Application
 Review Applications in terms of Rule 53
 Rescission of Judgement Applications
 Interlocutory Application
 Interdicts

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 Third party procedure
 Joinder of parties
 Consolidation of Actions

In terms of Uniform Rule 6(5)(g), a Court may, where an application cannot properly be decided on
affidavits, refer the matter to trial with appropriate directions as to pleadings or definition of issues, or
otherwise.

Hoped t/a Softcopy v Brewers Marketing Intelligence 2006 (4) SA 458 SCA at 468 J.

1.5 INSTANCES WHEN THE USE OF THE APPLICATION PROCEDURE IS PROHIBITED ARE
AS FOLLOWS:

When there is a dispute of fact and a dispute of law, the correct medium to utilise is the action
procedure. The examples of instances in which it is compulsory to use the action procedure are as
follows:

 Personal Injury Claims

 Motor vehicle accident claims
 Divorce matters

1.6 DIFFERENT TYPES OF APPLICATIONS

Some authors identify six different types of applications:

 Applications by notice
 Ex parte applications
 Interlocutory applications
 Urgent applications
 Interim matrimonial applications (Rule 43 applications) and
 Review applications

2. THE EX PARTE APPLICATION

Herbstein & van Winsen : The Civil Practice of the Supreme Court of South Africa
4 edition pp 350, 351 and 355

2.1 WHAT IS AN EX PARTE APPLICATION?

An ex parte application is an application involving only an Applicant(s) and is addressed to the

Registrar.

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2.2 UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED?

An applicant may apply for relief by way of an ex-parte application under the following circumstances:

 This procedure is usually used where an order is requested that does not affect another
person and the applicant is the only interested party to the proceedings, e.g. an application for
admission as attorney or as advocate. It is, however, also used in cases where other parties
are affected:
 Where immediate relief is essential and notice of the application to the respondent will
frustrate the requested relief e.g. an application for arrest suspectus de fuga or the Anton
Piller type of application.
 Where preliminary relief is essential in a proceeding that will later be followed up with notice
to the opposition, for example, an application to institute action by way of edictal citation, or
an application for the appointment of a curator ad litem for a minor, or applications to attach or
arrest to found or confirm jurisdiction.
 Where a nulla bona return is relied upon in the case of an application for sequestration and no
notice of the application is given to the respondent.
 Where the relief is required so urgently that the normal provisions regarding notice cannot be
complied. (See below).

2.3 WHAT IS A RULE NISI?

Rule nisi - whereupon an ex–parte application is made and it appears to the court that such order will
adversely affect the rights of a third party. The court in order to protect the rights of such third party
may, instead of granting a final order, grant interim relief, in the form of a rule nisi, calling upon
interested parties to show cause why the order must not be made final (Rule 6(4)(b).

On the return date the Court may confirm the order or refuse to grant the relief sought.

It may also postpone the application and extend the rule accordingly. Chester Fin (Pty) Ltd v Contract
Forwarding (Pty) Ltd and others 2002 (1) SA 155 T.

2.4 FORMAT OF THE APPLICATION

In an ex-parte application the notice of motion is addressed to the registrar since there is not cited
respondent. It must be supported by affidavit as to the facts upon which the applicant relies for relief.

The notice of motion is headed with the name of the court to which the application is a made, and sets
out the name of the applicant.

The notice must set forth the form of order sought, specify the affidavit filed in support and request the
registrar to place the matter on the roll.

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It must be as near as possible to Form 2 in the schedule to the Rules

3. APPLICATIONS ON NOTICE TO THE RESPONDENT

Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa, 4th edition pp 351,
355, Examples 19, 20 and 21

3.1 UNDER WHAT CIRCUMSTANCES IS THIS APPLICATION UTILISED?

All applications other than those brought ex parte e.g. the interlocutory, interim matrimonial and
review applications must be brought on notice of motion as near as possible in accordance with the
rules of the court.

It is addressed not only to the registrar but also to any person against whom relief is claimed (the
Respondent) as well as any person to whom it is necessary or proper to give notice of the
proceedings.

3.2 FORMAT OF APPLICATION

The notice of motion is headed with the name of the court to which the application is made and sets
out the name(s) of the applicant(s) and the respondent(s).

The notice sets forth the form of order sought and specifies the affidavit filed in support of the
application.

It makes provision for the address within 8 kilometres of the office of the registrar at which the
applicant will receive notice and service of documents in the application.

It sets forth a day, not less than five days after service of the notice on the respondent on or before
which the respondent is required to notify the application in writing, whether he intends to oppose the
application, and a date, if no notice to oppose is received when the application will be set down for
hearing not less than 10 day after service.

Care should be taken that every person who has a legal interest in the matter be cited and also that
persons who are by law deemed to be interested be notified so that they may report e.g. in certain
applications under the Insolvency Act 24 of 1936, the Companies Act 28 of 2004 and the Deed
Registries Act 47 of 1937 notice to the Master, the Registrar of Companies and the Registrar of Deed
is required.

3.3 PROCEDURE FOR BRINGING APPLICATIONS

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If the application is brought against any minister, deputy minister, premier of a province, office, officer
or servant of the State in his capacity as such, the State or province, this date should not be less than
15 days after the service of the notice of motion.

After delivery of his notice to oppose, the respondent must file his opposing affidavit(s) within 15 days.

The applicant may file his replying affidavit(s) within 10 days thereafter.

If the respondent intends to raise a question of law only, he must give notice of his intention to do so
within 15 days after he has given notice of his intention to oppose the application.

The notice of motion supported by the founding affidavit must be served on the respondent by the
Sheriff. See De Rebus July 2003 p39-43 contains a synopsis of Application (Motion) proceedings

4. THE FOUNDING AFFIDAVIT

Herbstein & Van Winsen: The Civil Practice of the Supreme Court of South Africa,
4th edition pp 361-379

4.1 WHICH FACTS MUST BE SET OUT IN THE FOUNDING AFFIDAVIT?

The essential allegations to make out the cause of action and to justify the relief.

The evidence in support of the relief sought.

For a discussion of one of the requirements see Union Finance Holdings Ltd v IS Mirk Office
Machines II Pty Ltd 2001 (4) 842 W.

4.2 TAKE NOTICE OF THE FOLLOWING MATTERS IN PARTICULAR

4.2.1 The description of the parties

Read Rule 17(4)

It is customary to devote the first paragraphs to the Applicant and the Respondent, for example:

"I, the undersigned.

JOHAN ALBERTS

do hereby make oath and say:

1.

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I am the applicant in the above application and I have personal knowledge of the contents hereof,
unless the contrary appears from the context and it is both true and correct.

I am a mayor accounting officer in the department of_________ and reside at 8 Pietersielie Street,
Khomasdal, Windhoek.

2.

The respondent is C D, a major businessman residing at 12 Pietersielie Street, Khomasdal, Windhoek

"

Because a commissioner of Oaths will certify at the end of the affidavit that it had been sworn to it is
unnecessary to include a statement by the deponent that the contents are "true and correct".

Where the deponent (the person who makes the affidavit) does not act personally but in a
representative capacity, for example, as the interested party of a close corporation or a director of a
company, he must expressly state that he has the necessary authority to bring the application on
behalf of the close corporation or the company. (Naturally in these cases the close corporation or the
company will be the Applicant).

Where a legal persona acts as Applicant it is always advisable to obtain a resolution from the legal
persona authorising the person who makes the affidavit to do so on its behalf. Failure to attach such a
resolution does not render the procedure invalid Tattersall and Another v Nedcor Bank Ltd 1995 (3)
SA 222(A). However if the authority is questioned, proper evidence must be put before court that the
authority was granted. In given instances the doctrine of unanimous consent may be invoked as proof
of consent L. Taylor & Kie (Edms) Bpk v Grabe1976 (3) SA 75 (T)

Rule 7 sets out the procedure where the authority of the person profiting to act on behalf of a legal
persona is questioned.

The fact that the sex and the marital status of the Applicant and the Respondent are not indicated will
not necessarily render the application invalid. (Carson and Others NNO v Spencer 1982 (2) SA 755
(T). Note, however, the provisions of the Insolvency Act, 24 of 1936, in respect of applications for
sequestration.

The fundamental consideration is that the parties must be described with sufficient particularity as to
be able to ascertain the identity of the parties and whether or not they have the relevant locus standi.

4.2.2 Jurisdiction

The jurisdiction of the court must be evident from the facts that are stated by the Applicant.

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4.2.3 Exposition of facts

The affidavit must consist of paragraphs that are consecutively numbered and every paragraph must
contain separate factual allegations: See Rule 62(3).

If more that one factual allegation appears in a paragraph, it should be divided into sub-paragraphs. It
is important to draft the founding affidavit in such a way that the respondent may simply refer to the
paragraphs of the application in his answering affidavit.

All relevant facts must be stated.

The general rule is that an Applicant must state his case in his founding affidavit. The Applicant must
lay out his /her cause of action in terms of which the Application is based, all the evidence that the
Applicant relies must be stated. The Applicant's allegations must be restricted to those that are
relevant to ensure that the Applicant obtains the relief sought – (Reynolds NO v Mecklenberg (Pty) Ltd
1996 (1) S A 75 (W) 781) Where he fails to make essential allegations in his founding affidavit he will
not, as a general rule, be allowed to make it in his replying affidavit.

The Applicant may only amend the cause of action by preparing a supplementary affidavit (Nedbank
Ltd v Hoare 1988 (4) SA541 E)

The applicant must once again request his relief in his founding affidavit or refer back to his notice of
motion.

What usually happens in practice is that the Applicant says in closing: "I therefore respectfully request
the Honourable Court to grant relief as set out in the Notice of Motion".

Alternatives such as "Wherefore I humbly pray that this Honourable Court may grant the applicant an
order in the terms set out in the notice of motion prefixed hereto, or such other relief as to this
Honourable Court seems meets" are also used, but is unnecessarily long-winded.

The Applicant may attach, to his founding affidavit so-called verifying affidavits where needed. These
will be affidavits of persons who give evidence in their affidavits in which they briefly support the
factual allegations that the deponent makes in the main founding affidavit. In other words, they are
witnesses for the Applicant.

It is also important that the Applicant attaches all supporting documentation by way of annexures in
support of all the facts. It is not necessary that such documents be originals but the originals should
be readily available should they be called upon.

Keep in mind that the court is asked to make factual findings on the papers before it, and that the
correct finding can only be made if the court is in possession of all the facts.

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If the annexures to the applicant's founding affidavit consist of handwritten documents (e.g. letters) a
typed version of the written document must be attached as well.

The annexures must be clearly marked in bold, black letters on the top right hand side of the page so
that the court will not have trouble in finding the annexures.

The founding affidavit is closed by way of a sworn statement or by way of a solemn statement.
Concerning the procedure at the attesting of an affidavit, reference must be made to s10 of Act 16 of
1963, read together with the regulations issued in terms of the Act.

Affidavits should not contain hearsay, inadmissible evidence and other objectionable matter, e.g.
irrelevant or scandalous or vexatious matter. See Vaatz v. Law Society of Namibia 1991 (3) SA 563
NM

5. THE ISSUE AND SERVICE OF THE NOTICE OF MOTION

All applications are issued by the Registrar of the High Court.

Like a summons, applications are served by the Sheriff: (Rule 4).

In cases where it will be impractical to effect service upon the Respondent beforehand, for example,
where the Respondent is about to leave the country, such notice need not be served on him.

In cases where it is impossible because of time restraints to have the documents served by the
Sheriff, service may be effected in any way or the application may be brought to the attention of the
respondent by any means.

The applicant may, for example, say: "My legal practitioner notified the respondent by telephone that
the application will be heard on ____at ______ h ___by the Honourable Court. In this regard I refer to
the Honourable Court my attorney's affidavit attached hereto, marked X".

In these cases the manner in which the application was brought to the attention of the Respondent
must be set out clearly.

6. UNOPPOSED APPLICATIONS

6.1 NOTICE OF SET DOWN

In terms of the provisions of Rule 6(4)(a) every application that is brought ex parte shall be filed with
the registrar and set down before noon on the court day but one proceeding the day upon which it is
to be heard. Every application other that one brought ex parte, and which is brought in accordance
with Form 2(a) and which is unopposed, may be placed on the roll for hearing by giving the registrar

95
notice of set down before noon on the court day but one proceeding the day upon which the same is
to be heard. In this regard Example 16 may be used with the necessary amendments.

6.2 INSTRUCTIONS TO COUNSEL

The following documents must be included in counsel's brief:

 A copy of the application.

 If it is an application in accordance with Form 2(a), (where the respondent did not give notice of
intention to oppose), a copy of return of service.
 A copy of the notice of set down.

6.3 HEARING

In the case of an ordinary ex parte application where no other person has an interest in the matter, the
court may grant final relief.

In other cases the court will order that the application be served on that person before it will be
considered. A rule nisi may be granted in certain cases, but see paragraphs below.

7. OPPOSED APPLICATIONS

Erasmus: Superior Court Practice B1 – 44 to B1 – 52

Rule 6(5)

7.1 NOTICE OF INTENTION TO OPPOSE

Where the respondent intends to oppose the application, he must file his notice of intention to oppose
within 5 days of service of the application (Rule (5)(b) and 6(5)(d)(ii)).

7.2 ANSWERING AFFIDAVIT (ALSO KNOWN AS OPPOSING AFFIDAVIT)

Within 15 day thereafter the respondent must deliver his answering affidavit together with any
documentation on which he relies and also any verifying affidavits of witnesses which confirms the
case of the respondent (Rule 6(5)(d)(ii)).

The Respondent will in this affidavit clearly state whether they admit, deny the allegations of the
relevant paragraphs in the founding affidavit. Where the Respondent has a version to put forth this
must be set out.

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Note that if the respondent intends to raise a point in limine or any question of law only, he need not
deliver an answering affidavit, but only a notice in which he sets out the point in limine which he
intends to raise (Rule 6(5)(d)(iii)).

7.3 COUNTER APPLICATIONS

If a respondent requires more than the mere dismissal of the application and costs he may bring a
counter application or may join any party to the same extent as would be competent if the party
desiring to bring such court application or join such party were the defendant in action and the other
parties to the application were parties to such action (Rule 6(7)).

In the latter event rule 10 shall apply mutatis mutandis.

In practice it means that the respondent who wants to bring a counter application, usually sets out
such a counter application in his responding affidavit under the heading "Counter Application". In
other words it is not necessary to file two separate affidavits.

If a counter application is brought the time periods with regard to applications apply mutatis mutandis.

7.4 REPLYING AFFIDAVIT

Within 10 days of service upon him of the answering affidavit, the applicant may deliver a replying
affidavit.

The Applicant will not be permitted to add new evidence in this affidavit, which is not in the founding
affidavit. The determining criteria is whether prejudice will be caused to the other party by the
introduction of new information (Smith v Kwanonqubela Town Council 1999 (4) SA 947 (SCA)

7.5 FURTHER AFFIDAVITS

The general rule is that only the 3 sets of affidavits referred to above are permitted. The court may in
its discretion permit the filing of further affidavits (Rule 6(5)(e)), upon application.

There must be reasonable explanation as to the introduction of these additional affidavits. The
standard utilized by the courts is to act in the best interests of fairness and justice.

Leave to file further affidavits will be refused where the party wishing to file the further affidavit cannot
show bona fides and that the delay will not prejudice the other party. Africa Oil (Pty) Ltd v Ramadaan
Investments CC 2004 (1) SA 35 N.

A litigant cannot take it upon himself / herself to file further affidavits without obtaining the leave of
Court further affidavit filed without the leave of Court can be regarded as pronon scripts Standard
Bank of SA Ltd v Sempersadh and Another 2005 (4) SA 148 ©

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7.6 ENROLMENT

Where an answering affidavit is delivered the applicant may apply to the registrar of allocate a date for
the hearing of the application within 5 days of the delivery of his replying affidavit or, if no replying
affidavit is delivered, 5 days after the expiry of the period of 10 days in which the applicant could have
filed his replying affidavit. (See requirements of consolidated practice directives in this regard).

If the applicant failed so to apply within the appropriate period aforesaid the respondent may do so
immediately upon the expiry thereof. Notice in writing of the date allocated by the registrar shall
forthwith be given by the applicant or respondent, as the case may be, to the opposite party.

7.7 PAGINATION AND INDEXING

As soon as the matter is set down, the application papers must be indexed and paginated. See Rule
62 (4).and study and the consolidated practice directives, the amendments and the Judicial Case
Management System.

In terms of the CPD the parties are required to file of heads of argument in all opposed
applications.

7.8 THE HEARING

Keep in mind that such applications may often continue for a day or longer and that they have to be
treated as seriously as any other case in which evidence is tendered. The same with the presence of
the legal practitioner or his clerk at the hearing or trials also apply with regard to oppose applications.

7.9 DISPUTES OF FACT

What in the position where a factual dispute arises in an opposed application.

Rule 6 (5) (g) provides that the Court may dismiss the application, or direct that oral evidence be
heard on specified issues, or it may refer the matter to trial with appropriate direction as to pleadings
or definition of issues.

A real, genuine and bona fide dispute of fact can only exist where the Court is satisfied that the party
who purports to raise the dispute has in his/her affidavit seriously and unambiguously addressed the
facts set to be disputed. There will of course be instances where a bare denial meets the requirement
because there is no other way open to a disputing party and nothing more can therefore be expected
of him/her. But even that may not be sufficient if the fact avert lies purely within the knowledge of the
avering party and no basis laid for dispute in the veracity or accuracy of the averment. When the facts
averred are such that the disputing party must necessarily possess knowledge of them and be able to
provide an answer but instead, rests his/her case on a bare or ambiguous denial, the court will

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generally have difficulty in finding that the test is satisfied – see Wightman t/a J W Construction v
Headfour (Pty) Ltd and Another 2008 (3) SA 371 SCA

7.10 THE SO-CALLED PLASCON-EVANS RULE

Where a factual dispute arises in an apposed application, the rule is that if on the facts stated by
respondent together with admitted facts in the applicant's affidavit, the applicant is entitled to relief, a
court will make an order giving effect to such a finding. Plascon-Evans Paints Ltd v van Riebeeck
Paints (Pty) Ltd 1984(3)SA 623A at 634E-635C.

7.11 EXCEPTIONS TO THE PLASCON-EVANS RULE

In Ripoll-Dansa v Middleton no and Others 2005(3)SA141C it was held that there are two exceptions
to this rule:

 Where respondents denial not raising a bona fide or genuine dispute of fact;
 Where the respondent's denial is far-fetched or untenable.

7.12 FURTHER CONSIDERATIONS RE DISPUTES OF FACTS

To sustain a cause of action the pleader must set out every material fact upon which it relies in order
to support a right to judgment (Facta Probanda) and need not contain the evidence necessary to
prove a fact (Facta Probantia).

Koth Property Consultants CC v Lepelle – Nkumpi Local Municipality 2006 (2) SA 25 TPD at F-G.

It used to be a Rule of practice that, when a factual dispute appeared in motion proceedings, an
application to refer the matter for oral evidence had to be made at the commencement of argument.
Counsel in effect had to elect at that stage, and could no save a reference of oral evidence as an
alternative. The judgment Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A) at 981 F-G
ushered in a new approach, which permitted counsel for an Applicant to present his case on the basis
that the Applicant was entitled to relief on the papers but to apply in the alternative for the matter to be
referred to evidence if the main argument should fail. However, it should not be taken for granted that
a Court will hear argument not withstanding disputes of facts and failing success on such argument,
will refer such disputes or some of them, for oral evidence: the general Rule of practice remains that
such an application should be made prior to argument on the merits. The exceptions to this general
Rule have been widened, but they remain exceptions. Accordingly, where in casu the Applicant ought
to have applied in initio to the Court of first instance for a referral of certain factual disputes for oral
evidence, but failed to do so and afterwards, on appeal, made no more than a conditional application
for referral, the Court of appeal, upon finding itself unable to decide disputes on the affidavits,
dismissed the appeal without further ado. See Dereszke v Marais and Others 2006 (1) SA 401 CPD at
402 D – G.

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8. A NUMBER OF SPECIFIC APPLICATIONS

LAWSA Vol. 11 par. 309 et seq.

Erasmus: Superior Court Practice pp E8 – 1 to E9 – 14
Rules 57 and 58

NOTE that specific applications in insolvency, matrimonial and commercial proceedings are dealt with
in the course notes relating to those proceedings.

A number of other specific applications which often appears in practice are briefly discussed:

8.1 INTERDICTS30

An interdict is an order of court directing the respondent to refrain from doing something (a prohibitory
interdict) or to do something (a mandatory interdict). The distinction is of little practical importance
except in so far as it is difficult to enforce a mandatory interdict and it may consequently be less
readily granted.

An interdict may not be given against unspecified persons.

See: City of Cape Town v Yawa and Others 2004 (2) All SA 281 C

A spoliation order (mandament van spolie) is sometimes classified as a possessory interdict, but since
a different set of requirements have to be met for the latter, it is preferable to treat it as a distinct
remedy.

Interdicts may be temporary or permanent. A temporary (or interim) interdict is sought by way of
application in order to protect the rights of the parties pending the finalisation of an action between
them in which their rights will be finally determined. A final interdict determines the rights of the parties
finally and is normally claimed in action procedure only, unless no dispute of fact can be foreseen.

Four requirements have to be met before an interim interdict can be granted:

A prima facie right which may be open to some doubt. If the applicant can prove a clear right, he
should in principle be entitled to a final interdict.

Irreparable harm. There must be a well-grounded apprehension that if the interdict is refused and the
applicant was to succeed ultimately, he will suffer irreparable harm in the mean time. This requirement
is closely related to the next one.

30
See Mudge v Ulrich NO and Others 2006 (2) NR 616.

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The balance of convenience must favour the applicant. The prejudice to the applicant if the
application should be refused must be weighed against the prejudice to the respondent if it were to be
granted. The stronger the applicant's prospect of ultimate success, the less important the balance of
convenience becomes.

No alternative remedy. There must be no ordinary, reasonable alternative remedy available which
will offer sufficient protection.

These requirements were confirmed in Fedsure Life Assurance Co Ltd v Worldwide Investment
Holdings (Pty) Ltd and Others 2003 (3) SA 268 W but referred to two exceptions in applications for
interim relief for pending vindicatory or quasi indicatory actions:

The applicant need not allege irreparable loss inasmuch as there was a rebut table presumption that
the injury was irreparable.

There is no need for the applicant to show that there is no other satisfactory remedy.

These requirements are discussed in Lady Chin Investments (Pty) Ltd v South African National Roads
Agency Ltd and Others 2001(3) SA 344 NPD.

The requirements for a final interdict are the following:

 A clear right. The applicant must prove on a balance of probabilities fact that will entitle him to the
relief.
 An actual injury or at least a threatened violation of the applicant's rights.
 No alternative remedy.

See V & A Waterfront Properties (Pty) Ltd and Another v Helicopter and Marine Services (Pty) Ltd and
Others (2004) 2 All SA 664C

The different requirements for an interim interdict interact amongst such requirements and where the
Applicant for such an interdict has established a strong prima facie right, the Court in the exercise of
its discretion may place less emphasis on the other requirements.

Erasmus and Others v Senwes Ltd and Others 2006 (3) SA 529 TPD at 540 E.

A client's need for a final interdict may be too urgent for the more time-consuming action procedure
and you may be tempted to approach the court on motion, particularly if the client's allegations seem
indisputable. The wise practitioner will in such a case include an alternative prayer for interim relief to
prevent the application being dismissed because of an unexpected dispute of fact.

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In the event of a factual dispute in an application for a final interdict, the court determines the matter
based on the Respondent's version amplified by the applicant's admission Transcend Productions
(Pty) Ltd v Leach and Others 2001 (4) SA 33 (C).

8.2 URGENT APPLICATIONS31

8.2.1 Under what circumstances is this application utilised?

Urgent applications are usually brought on the basis that the relief needed is so urgent that the
ordinary provisions of the court rules is relation to time and notice cannot be complied with.

In Prinsloo v RCP Media Ltd t/a Rapport 2003 (4) SA 456 T it was held that the ongoing violation of
rights to dignity and privacy as enshrined in the Constitution was a ground for urgency.

8.2.2 Format of application

The affidavit used in support for the urgent application must allege explicitly the basis, facts and
circumstances on which the application is brought on an urgent basis and why the ordinary court
procedure would be inappropriate to provide substantial redress.

In the TPD and WLD the format of an urgent application is prescribed in the Practice Manual par FB.

8.2.3 Considerations

The Applicant cannot create its own urgency by waiting until the court rules can no longer apply.

In Transnet Ltd vs Rubenstein 2006 (1) SA 591 SCA it was held that where a litigant had
endeavoured to settle the matter and had brought an urgent Application after the attempts to settle the
matter because of the delay occasioned by the attempt to settle had failed, the Applicant should not
be deprived of his costs and that it could not be argued that a litigant had been the author of his own
urgency.

The Respondent whose rights are affected by an order granted urgently may set the matter down for
another date for re-hearing.

The court may uphold or set aside the order – (Rule 6(12)(c)).

The most important consideration in an urgent application is that an order affecting the rights of
another should not be made without prior notice to him (audi alteram partem). There is little sense in
the currently fashionable practice of obtaining a rule nisi on an ex parte basis, calling upon the
respondent to show cause on a return day why a final interdict should not be granted:

31
See Krauer and Another v Metzger (1) 1990 NR 41 & Salt Another v Smith 1990 NR 87.

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Without interim operation such an order does not protect the applicant;

An order affecting the rights of another should not be granted without adequate notice to him, and
such an order should accordingly not have interim operation;

Such an order holds no advantage for the applicant as far as the onus on the return day is concerned.

Abuse of rules nisi in the past has resulted in such orders being abolished in the WLD.

An order should be sought without notice only in those cases where notice to the respondent will
probably defeat the object of the application, e.g. where there is reason to believe that if the
respondent were to be given notice of the application he will disappear with a minor child or withdraw
the stolen cash from a banking account before a restraining order can be obtained. The terms of the
order should be carefully considered in such a case: the rights of the applicant must be adequately
protected with the least possible violation of the rights of the respondent. There is, for example, no
reason why a spoliation order to restore a lessee to the leased premises should be made without
allowing the landlord the opportunity to be heard.

An example where an ex parte application for a rule nisi with interim operation will be proper is where
a thief deposits stolen money in a banking account (in which none of his own money is kept with
which commixtio could have taken place, so that an application of this nature would be in order). The
thief will be the first respondent and the bank concerned the second respondent. The prayers could
read as follows:

A……………………..applying for order in the following terms:

That the applicant's failure to comply with the rules of court be condoned in terms of Rule 6(12);

That the respondent be called upon to show cause before this honourable court on the____ day of
__________201______ why the following order should not be made:

2 aThe second respondent is ordered to pay the amount standing to the credit of the first respondent
in account number XYZ at the ABC Branch of second respondent, to the applicant, alternatively to
keep it in an interest bearing account pending the outcome of an action which the applicant shall
institute within seven days for the payment of the said amount to him;

2 b The first respondent (and, in the event of opposition of this application by the second respondent,
then the first and second respondents and severally) are ordered to pay the costs of this application.

That paragraph 2.a. above shall operate as an interim interdict pending the return day [or: "pending
finalisation of this application"];

That the costs of this application be reserved for adjudication on the return day;

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That such further and/or alternative relief as may please the court be granted to the applicant.

(The inclusion of the alternative to prayer 2.a. above in the notice of motion is not essential: that is the
kind of alternative that can be proposed on the return day in the event of the dispute arising as to who
is entitled to the money).

In the above example the background should be set out fully (but concisely!) in the founding affidavit,
with particular attention to the probability that the thief will abscond with the money as soon as he is
notified of the application.

Under appropriate circumstances an urgent application can be served on the respondent before it is
issued. Unlike a summons, an application which is served before it has been issued is not a nullity –
see preceding paragraphs above. Service can be effected in any manner that is appropriate under the
circumstances, even by facsimile or by informing the respondent by telephone, and the court should, if
possible, be informed by affidavit as to how service was affected. If necessary the person who
effected service (often a candidate legal practitioner or a messenger) can be called to testify under
oath.

After service the application is issued in the registrar's office, placed in a court file and handed to a
judge. NOTE: The registrar, and through him the judge, must be informed as soon as possible of the
pending urgent application.

The reason for urgency must be set out fully in a separate paragraph in the founding affidavit.

There are different grades of urgency. See: Luna Meubelvervaardigers (Edms) Bpk v Making and
Another (t/a Makin's Furniture Manufacturers 1977 (4) SA 135 (W); IL& B Marcow Caterers (Pty) Ltd v
Greatermans SA Ltd and Another Aroma Inn (Pty) Ltd v Hypermarket (Pty) Ltd and Another, 1981 (4)
SA 108(K); 20th Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd , 1982 (3)
SA 582(W).

In an urgent application it is permissible to refer to hearsay evidence. The applicant must, however,
give reasons why the best evidence is not available and why he believes that the hearsay evidence is
indeed true and correct. (Gemeenskapsontwikkelingsraad v Williams and Another (1), 1972(2) SA 693
(W)). See de Rebus August 2003 p32-33 contains a synopsis of the rules pertaining to urgent
applications.

8.3 INTERPLEADERS32

Rule 58(1) provides as follows:

32
See Katuematima v Tjavaendja & Others 1996 NR 339 (HC)

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Where any person (called "the applicant"), alleges that he is under any liability in respect of which he
is or expects to be sued by two or more parties making adverse claims, (in the rule referred to as "the
claimants") in respect thereto, the applicant may deliver a notice (called an "interpleader notice") to
the claimants. In regard to conflicting claims with respect to property attached in execution, the sheriff
shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.

Where the claims relate to money the applicant shall be required, on delivery the notice, to pay the
money to the registrar who shall hold it until the conflicting claims have been decided.

Where the claims relate to a thing capable of delivery, the applicant shall tender the subject matter to
the registrar when delivering the interpleader notice or take such steps to secure the availability of the
thing in questions as the registrar may direct.

Where the conflicting claims relate to immovable property, the applicant shall place the title deeds
thereof, if available to him, in the possession of the registrar when delivering the interpleader notice
and shall at the same time hand to the registrar an undertaking to sign all documents necessary to
effect transfer of such immovable property in accordance with any order which the court may make or
any agreement of the claimants.

The interpleader notice shall-

state the nature of the liability, property or claim which is the subject matter of the dispute;

call up the claimants within the time stated within the notice, not being less than 15 days from the date
of service thereof, to deliver particulars of their claims; and

state that upon a further date, not being less than 15 days from the date specified in the notice for the
delivery of claims, the applicant will apply to court for its decision as to his liability or the validity of the
respective claims.

There shall be delivered together with the interpleader notice an affidavit by the applicant
stating that:

 He claims no interest in the subject-matter in dispute other than for charges and for costs;
 He does not collude with any of the claimants;
 He is willing to deal with or act in regard to the subject matter of the dispute as the court may
direct.

8.4 APPLICATIONS FOR THE APPOINTMENT OF CURATORS

Rule 57 makes provision for applications to the court for orders declaring patients to be of unsound
mind and as such incapable of managing their affairs or, by reason of some disability, mental or

105
physical, incapable of managing their affairs, and appointing a curator to the persons or property of
such patients to represent them in the proceedings.

In the first instance an application must be made to the court for the appointment of a curator ad litem
for such patient to represent him in the proceedings.

Such application is brought ex parte and the prayers may read as follows:

That a curator ad litem be appointed for Jan Swart, a businessman presently residing at 99 Burg
Street, Strellenbosch, to report to the Honourable Court in terms of Rule 57 with regard to the
application in which the application requests the following relief:

An order that Jan Swart incapable of managing his own affairs; and

an order in terms of which ________ be appointed as curator bonis for the estate of the said Jan
Swart with the powers as set out in Annexure A, attached hereto, provided that such powers are
exercised subject to the approval of the Master of the High Court.

That the costs of the application including the costs of the said curator ad litem be paid out of the
estate of the said Jan Swart on the basis as between attorney and own client.

That leave is granted to the applicant to approach the Honourable Court on the same papers, duly
supplemented, for relief in terms of prayers 1.1, 1.2 and 1.3 above.

Rule 57 lays down a number of requirements for the application. Take note that at least three
affidavits must be annexed to the application.

Upon the hearing of the application, the court usually appoints an advocate as curator ad litem should
the patient reside near the seat of the court. Should the patient be resident far from the court, an
attorney is usually appointed.

When the curator ad litem has delivered his report and the Master's report has been obtained, the
application is again enrolled for an order as set out in paragraphs 1.1 to 1.3 above.

The curator ad litem ordinarily appears at the hearing.

8.5 APPLICATIONS FOR AN ANTON PILLER ORDER

8.5.1 This is an application to preserve evidence to enable the applicant to obtain substantive relief
later and is made Ex Parte. Erasmus: Superior Court Practice B1-56/56A E10-2/3. Retail Apparel
(Pty) Ltd v Ensemble Trading 2243 CC and Others 2001 (4) SA 228 TPD sets out the degree of
diligence and meticulousness with which an Anton Piller order has to be served or executed and the
consequences of a failure to meet that standard.

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8.5.2 A step-by step guideline for applications for this type of order appears in De Rebus
September 2003 at p26-28.

8.5.3 In Frangos v Corpcapital Ltd and Others 2004 (2) SA 643 T, the general principle of an Anton
Piller order was stated as follows:

 Rule nisi issued ex parte

 The applicant has a cause of action he wishes to pursue against the respondent
 The respondent has in his posession specific (and specified) documents or things that contstitute
vital evidence in subtantiation of applicant course of action
 There is a real and well-founded fear that this evidence may be hidden or destroyed or lost by the
time the matter comes before court or at the stage of discovery.

8.5.4 An Anton Piller Order couched in the form of a Rule Nisi would be discharged on return day
where the Applicant had failed to make full and fair disclosure to the Court of all material facts
of the granting of the rule. See Audio Vehicle Systems v Witfield and Another 2007 (1) SA
434 at 443 A – B

8.5.5 The granting of an Anton Piller Order is akin to the grant of an interim interdict and as such is
not appealable – Van Niekerk and Another v Van Niekerk and Another 2008 (1) SA 76 SCA

9. REVIEW APPLICATIONS

Erasmus: Superior Court Practice pp B1 – 380 to B1 – 386

Rule 53

9.1 AGAINST WHICH PROCEEDINGS MAY APPLICATIONS BE BROUGHT?

Proceedings of an inferior Courts and decisions and proceedings of any tribunal, board or officer
performing judicial, quasi-judicial or administrative functions.

9.2 THE GROUNDS FOR REVIEW

In terms of section 16 and 20 of the Supreme Court Act the grounds upon which the proceedings of
an inferior Court may be brought under review are the following: The absence of jurisdiction on the
part of the Court, interest in the cause, bias, malice or corruption; gross irregularity in the proceedings;
and the admission of inadmissible or incompetent evidence or the rejection of admissible or
competent evidence.

There are many grounds upon which a review application may be brought against the decision and
proceedings of tribunals, boards and administrative officers, including the grounds set out in the

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paragraph above, e.g. bias – see Chairman Board on Tariffs and Trade and Others v Brenco Inc and
Others 2001 (4) SA 511; good faith – see Reuters Group PLC and Others v Viljoen and Others NNO
2001 (1) BCLR 1265 (C).

An example of a review on other grounds as set out above, is to be found in Scenematic Fourteen
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Another 2004 (4) BCLR 430 C.

A certain body had the authority to make a decision, but delegated this task to someone else. The
functionary was required to consider the matter merely accepting the evaluation doen of an advisory
committee and amounting to a failure to bring his own independent discretion to bear on the decision
he was required to make.

9.3 IN WHICH WAY MUST A REVIEW BE BROUGHT?

A review is brought by way of notice of motion and specifically in terms of the provisions of Rule 53:

 The notice of motion is directed to the magistrate or to the presiding officer of the tribunal or
board or the officer concerned and with notice to all other parties that may be effected.
 In the notice the presiding officer or other person is called upon to show cause why such
decision should not be reviewed and corrected or set aside.
 The presiding officer or other person is called upon to dispatch, within 15 days after receipt of
the notice of motion, to the registrar the record of the proceedings sought to be corrected or
set aside together with such reasons as he is by law required to give or which he desires to
give or make to notify the applicant that he has done so.
 The notice of motion shall be supported by affidavit setting out the grounds for the application.
 The record is then dispatched to the registrar by the presiding officer or other person and the
registrar shall make it available to the applicant.
 The applicant shall thereupon cause copies to be made and furnish the registrar with two
copies and the opposite party with one.
 The applicant shall prepare copies for himself and one for his advocate. The costs hereof
shall be borne by the applicant and shall be costs in cause.
 The applicant may within 10 days after the registrar has made the record available to him, by
notice and accompanying affidavit amend, add to or vary the terms of his notice of motion.
 Should the presiding officer or other person desire to oppose the application, he shall within
15 days of the receipt by him of the notice of motion, notify the attorney of the applicant and
he may within 10 days of the receipt of the notice, deliver his answering affidavit.
 In contrast with appeals, a review application does not have to be served within a specific
time, but also be certified as a true copy by such attorney.
 When the presiding officers has filed his answering affidavit the applicant may be set down
like an ordinary application with notice to the opposite party.

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  Reviews are therefore approached as ordinary applications and may be heard by a single
judge on any motion day.
 As an example of review proceedings see Bulk Deals Six CC and Another v Chairperson,
Western Cape Liquor Board and Others 2002 (2) SA 99 (C). See also Pennington v
Friedgood and Others 2002 (1) SA 251 (C).

9.4 MUST AN APPLICANT FIRST EXHAUST ITS INTERNAL REMEDIES BEFORE IT CAN
TAKE A MATTER ON REVIEW?

Section 7(2)© of the Promotion of administrative Justice Art 3 of 2000, grants the court a discretion to
waive this requirement if the applicant proves exceptional circumstances Earthlife Africa (CT) v D G
Dept of Emiron Affairs & Tourism 2005 (3) SA 156 CPD.

9.5 COURT'S COMMON LAW JURISDICTION TO REVIEW DOMESTIC TRIBUNAL

In Klein v Dainfern College and Another 2006 (3) SA 73 TPD at 74 it was held:

1. As to the Applicants reliance on Rule 53, that the Court had common law jurisdiction to review
the decision of domestic tribunals established by contract provided the contract incorporated
the principles of natural justice either expressly or by implication.

2. That the Court's common law jurisdiction to review even domestic tribunals which did not
exercise public powers was not abhorrent to the spirit and purport of the constitution.

3. That the principles of natural justice had therefore not been excluded by the constitution in so
far as they applied to domestic tribunals established by contract, provided these principles
were expressly or impliedly incorporated into the contract.

4. That the Applicant was accordingly entitled to have the decision of the second Respondent
reviewed in accordance with the common law principles of administrative justice.

5. In respect of the Applicant's reliance on Sections 6 and 7 of Paja, that the decisions of
domestic tribunals established by contract did not fall within the definition of "administrative
action as contained in Section 1 of Paja and was therefore not reviewable under the Act".

6. For a general overview of the procedural aspects of judicial reviews see Van Lochrenberg et
al De Rebus August 2008 : 32

V. APPEALS AND REVIEWS

1. THE DISTINCTION BETWEEN APPEAL AND REVIEW

1.1 WHAT IS AN APPEAL

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In the context of Civil Appeals, an appeal is normally subject to any further court orders, a rehearing
on the merits, but limited to the evidence or information on which the decision was given. New
evidence may only be adduced with the leave of the court.

1.2 WHAT IS A REVIEW

These are decisions of lower courts or tribunals that are brought into question in Higher courts where
grave irregularities are found to be occurring or have occurred in theses lower courts or tribunals.

Durbsinvest (Pty) Ltd v Town and Regional Planning Commission, KwaZulu-Natal and Others 2001
(4) SA 103 N.

1.3 WHEN REVIEW IS TO BE BROUGHT

It is important for the efficient functioning of public bodies that the challenge to the validity of the
decisions by proceedings for judicial review should be initiated without undue delay. The rationale for
that long standing Rule is twofold:

First the failure to bring a review within a reasonable time may cause prejudice to the Respondent.
Secondly there is a public interest element in the finality of administrative decisions and the exercise
of administrative functions.

See Gqwetha v Transkei Development Corporation Limited and Others 2006 (2) SA 603 SCA at 612
D-F.

1.4 WHAT IS THE MAIN DISTINCTION BETWEEN APPEAL AND REVIEW?

APPEAL REVIEW

Appeals must be noted within a Reviews need not be brought within

particular period, in accordance with a fixed period. It must be brought
statutory provisions or the within a reasonable time – seven
provisions of the rules. years not reasonable – Lebowa
Mineral Trust v Lebowa Granite
(Pty) Ltd 2002 (3) SA 30 T.

In the case of an appeal the In the case of a review the applicant

appellant is bound by the record. is not bound by the record. Often an
applicant's objection concerns an
action or remiss on the side of the
decision maker which does not
appear from the record.

On appeal it is contended that the In the case of a review of a Lower

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presiding officer came to a wrong Court the grounds on which a
conclusion on the facts or the law. review may be brought, are limited.
There are many other grounds on
which reviews in respect of other
decisions or proceedings are
brought.

1.5 SPECIALIST COURTS - APPEAL

Which court does a party appeal to if dissatisfied with the ruling of the following courts?

Arbitration Proceedings in terms of the Labour Act 11 of 2007 – the Labour Appeal Court has
jurisdiction.

1.6 CONSTITUTIONAL STANDARD OF REVIEW

1.6.1 Administrative action is provided for under Article 18 of the Namibian Constitution. Article 18
states that “Administrative bodies and administrative officials shall act fairly and reasonably and
comply with the requirements imposed upon such bodies and officials by common law and any
relevant legislation, and persons aggrieved by the exercise of such acts and decisions shall have the
right to seek redress before a competent Court or Tribunal”. The Article also requires that
administrative bodies and officials act ‘reasonably’ and this requirement deals with the substance of
the decision.

1.6.2 Under common law principles of administrative law the exercise of administrative discretion is
subject to judicial review and extra-judicial adjudication. Review of administrative action in Namibia is
under the rubric of the Bill of Rights and as such any person aggrieved by an administrative action
has got the right to approach a competent court or tribunal for redress.

1.6.3 The common law rules of natural justice are indispensable with regards to administrative
actions. A court upon review will examine the adherence to such common laws of natural justice to
validate an administrative action.

1.6.4 The common law principles of natural justice are the audi alteram partem rule and the nemo
iudex causa rule. The alteram partem rule imposes on the administrator the duty to grant a fair
hearing in the exercise of administrative discretion. The nemo iudex causa rule requires that a person
must not be a judge in his own cause. The rationale of this rule is to guard against bias when
administrative decisions are made. In the case of Open Learning Group Namibia Finance CC v
Permanent Secretary of the Ministry of Finance and Others (PA90/05 , PA90/05) [2006] NAHC 1 (10
January 2006) it was held that “non-compliance with procedures prescribed by law renders action

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ultra vires and therefore unlawful; to be valid administrative action must be clear, not a vague and
uncertain.

1.6.5 Upon review a court will only set aside an administrative action if substantial or real bias is
proved. Any interest in the outcome of the matter has been held to be warrant setting aside of the
administrative decision or action. A lack of adherence to the rules of natural justice will justify the
intervention of the courts by nullifying and setting aside the decision made. It should be borne in mind
that courts are reluctant to intervene with administrative action taken because doing such will amount
to usurping the power and autonomy of the administrator. However since courts are the custodians of
the citizen’s constitutional rights they will intervene and not revert the matter back to the court under
the following circumstances:

 Long periods of delay

 Applicant would suffer prejudice or where it would be grossly unfair

1.6.6 Factors that a court take into consideration on review

 Bad faith
 Ulterior motives or purpose and failure of the administrator to apply their mind on the question
before them
 Breach of any fundamental constitutional right

1.6.7 Article 18 of the Namibian Constitution also stipulates that administrative bodies must
comply with any other relevant legislation which is the general objectives of constitutionalism.
See Cases: Chairperson of the Immigration Selection Board v Frank 7 Another 2001 NR 107 (SC).
Metropolitan Properties Co (FGC) Ltd v Lannon 1969 1 QB 577.
Chilufya v City Council of Kitwe 1967 ZR 115.

1.8 GENERAL

1.8.1 Generally, where the complaint is against the result of the proceedings, an appeal would be
appropriate. Where the method or the proceedings is attack, the remedy would be to bring a
review.

1.8.2 COURT'S DISCRETION

Given the effluxation of time and as a matter of public interest in the finality of administrative decisions
and the exercise of administrative functions, considerations of pragmatism and practicality can in

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appropriate cases compel the court to exercise its discretion not to set aside invalid administrative
acts – Chairperson, STC v JFE Sapela Electronics 2008 (2) SA 638 SCA.

2. CIVIL APPEALS FROM THE MAGISTRATE'S COURT

Candidates are further referred to the practice manual in respect of Magistrates' Court Practice

3. APPEALS FROM THE HIGH COURT

Rule 49
Section 20 of the high court act
Erasmus, Superior Court Practice, pp A1-38A to A1 - 51; B1 -351 to B1 373

3.1 THIS SECTION DEALS WITH APPEALS IN TERMS OF RULE 4933

Section 20 of the Supreme Court Act specifies that an appellant may only appeal against a judgement
of the High Court if leave has been granted to appeal against the judgement.

Leave to appeal can be requested immediately after the judgement of a single judge or in the case of
an appeal from the Magistrates' Court after two judges who normally hear such an appeal, have given
judgement. The grounds of the appeal must be indicated.

When leave to appeal has not been requested at the time of judgement, application must be made, by
way of notice to the registrar and the other party, within 15 days after the date of the order appealed
against. Provided that when the reasons or full reasons for the court's order are given on a later date
than the date of the order, such application may be made within 15 days of such later date. Upon
good cause shown, the court may extend the afore-mentioned periods. The notice must state the
grounds of appeal.

The application for leave to appeal is normally heard by the Judge who presided at the trial and who
gave judgement. The application shall be set down by the registrar at a date that suits that judge and
the registrar shall give written notice thereof to the parties. If the judge that presided at the trial is not
available, the application may be heard by another Judge of the same division.

The test in an application for leave to appeal is whether there are reasonable prospects of another
court coming to a different conclusion.

The Judge hearing the application has the discretion to refer the appeal to a full court or to the
supreme court of appeal.

33
See Telecom Namibia and Another v Mwellie 1996 NR 289

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If the Judge refuses the application for leave to appeal, the appellant can submit an application (a
previously petition) to the High Court of Appeal.

If leave to appeal to the full court is granted, the appellant must deliver a notice to appeal to all parties
within 20 days or within such longer period as may upon good cause shown be permitted, after the
date upon which leave to appeal was granted.

The notice of appeal shall state whether the whole or part of the Judgement is appealed against and if
only against part, which part. The notice shall further specify the findings of fact and/or rulings of law
appealed against and the grounds which the appeal is founded.

Before an appeal can be considered, there must be a "judgement or order" (Rule 49(1)(a)). The
attributes of a 'judgement or order’ were discussed in Zweni v Minister of Law and Order 1993 (1) SA
523 A where it was held that a judgement or order must be:

Final in effect;

Definitive of the rights of the parties; and

Must have the effect of disposing of at least a substantial portion of the relief claimed in the main
action or application.

As to whether an order dismissing an exception is applicable see Minister of Safety and Security and
Another v Hamilton 2001 (3) SA 50 SCA. A court can dismiss an appeal if the judgement or order
sought would have no practical effect. Universal Storage Systems (Pty) Ltd v Crafford and Others
2001 no (4) SA 249 W. However, in Land en Landbouontwikkelings bank van Suid Afrika v Conradie
2005 (4) SA 5065CA the Court held that where matter at hand was question of law and likely to arise
frequently, the court may hear the merits of the appeal and prepare on it. No appeal can be lodged
against the dismissal of a special plea. Robbertze en 'n Ander v Garden Route Resort Services BK
2004 (4)SA 406C.

Appeals are subject to strict time limits and non-compliance with the rules will require an application
for condonation.

The relevant principles which a court will take into account were restated in Byron v Duke Inc. 2002
(3) All SA 235 A as.

The degree of non-compliance. In Rustenburg Gearbox Centre v Geldmaak Motors CCt/a MEJ
Motors 2003 (5) SA 468 the court dismissed an application for condonation and late filing of
documents, because of gross non-compliance:

The explanation thereof

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The importance of the case

The prospects of success

The respondent's interest in the finality of the judgement

The convenience of the Court

The avoidance of unnecessary delay in the determination of justice

3.2 SUSPENSION OF JUDGEMENT PENDING APPEAL

Rule 49(11) provides that where an appeal has been noted or an application for leave to appeal
made, the operation and execution of the order is suspended, unless the court which gave the order,
on the application of a party, directs otherwise.

In Modder East Squaters v Modderklip Boerdery; President of the RSA v Modderklip Boerdery 2004
(8) BCLR 821 at 840 paragraph 46 it was held that Rule 49(11) presupposes a valid application for
leave to appeal to effect the suspension of an order.

3.3 NO APPEAL RE SETTLEMENT

There is no appeal against an out-of-court settlement which is made an order of court by agreement
between the parties. Fourie NO v Merchant Investors (Pty) Ltd and Another 2004 (3) SA 422 C.

3.4 DELAY BY LOWER COURT IN GRANTING LEAVE TO APPEAL

A Court of appeal was entitled in appropriate circumstances to treat as unreasonable a delay on the
part of the Lower Court in deciding whether or not to grant leave to appeal as a constructive refusal of
the application. The delay need not be deliberate. The fact that there has been an unreasonable delay
was sufficient in itself to entitle an Appeal Court to make such finding.

Minister of Health v New Clicks SA (Pty) Ltd and Others 2006 (2) SA 311 CC at 317 C.

3.5 RULE 6(5)

Supreme Court of Appeal Rule 6(5) requires that every application, answer and reply should be
"succinct and to the point" and that such applications "shall not be accompanied by the record". The
provisions of this Rule therefore require of practitioners to condense the relevant facts and principles
in order to be "succinct and to the point". Lengthy records or portions of records should not be
annexed to an application for leave to appeal.

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The non-compliance with the prescripts of the Subrule has recently resulted in "no orders" and
adverse costs orders.

4. APPEALS TO THE SUPREME COURT

Erasmus, Superior Court Practice, pp C1 - 1 to C1 – 21

Section 19(1) of the Supreme Court Act 15 of 1990
Supreme Court of Appeal rules 3, 5 ,7 and 8

4.1 PROCEDURE TO BE FOLLOWED ON APPEAL

If leave to appeal to the Supreme Court of Appeal was not granted by the Court a quo, leave must be
obtained by way of application addressed to the Chief Justice. The application is heard by two appeal
judges appointed by the chief justice. Two copies of the application and the verifying affidavit must be
lodged with the registrar of the court. The appeal judges may grant or refuse the application or refer
the application to the court for consideration. If the application for leave to appeal is referred to the
court, the applicant must lodge with the registrar within the time fixed by the judges, three additional
typed copies of the application and if so directed also six typed copies of the record, one of which
shall be certified by the registrar of the court a quo.

The applicant must also serve notice on the respondent that the application has so been referred.
Every application for leave to appeal shall furnish succinctly and fairly all information as may be
necessary to enable the court to decide whether leave ought to be granted and the application must
be accompanied by a copy of the judgement of the court a quo and if leave to appeal has been
refused by that court, by a copy of the judgement refusing the leave.

Whenever leave to appeal is granted, the case shall not be set down for hearing until proof has been
furnished to the registrar that security which the court may have ordered the appellant to furnish, has
in fact been furnished.

When a right to appeal has been granted, the appellant must lodge a notice of appeal with both the
registrars of the court and the court a quo and the respondent and his attorney within 20 days. The
notice of appeal shall state whether the whole or part only of the judgement or order is appealed
against, and if part only, then what part. The respondent may lodge a cross-appeal within 20 days
after receiving notice of appeal.

Where an appeal has been noted, the appellant shall lodge with the registrar of the court six copies of
the record of the court a quo and also deliver to the respondent such copies as my be necessary. One
of the copies of the record lodged with the registrar shall be certified as correct by the registrar of the
court appealed from. The rules contained specific instructions with regard to the preparation of the
records (Rules 5 (7) - (12)).

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Once the appeal has been properly lodged and the record delivered and the security, if necessary,
was set, the registrar, subject to the directions of the chief justice, notifies the parties or their
respective attorneys by registered letter of the date of hearing. Six copies of the heads of arguments
must be lodged with the registrar by the appellant not later than 10 days before the hearing or not
later than such earlier date as may be determined by the chief justice.

The respondent shall thereafter lodge copies of his heads of argument with the registrar and the
appellant. This should be done not later than 10 days before the hearing or not later than such earlier
date as may be determined by the chief justice.

In practice, the chief justice makes an order in terms of the rules that the appellant's head of argument
shall be served on the respondent's attorney and lodge with the registrar by not later than a specified
date and that the respondent's heads be served on the appellant's attorney and lodged with the
registrar by no later than another (later) date. This occurs in practice even before a date is allocated
for the hearing of appeal.

In terms of the Chief Justice's practice direction dated 26 May 1997, the heads of argument of each
party must be accompanied by a brief typed notice indicating inter alia the nature of the appeal, a
succinct statement of the issues on appeal, an estimation of the duration of the argument, a summary
of the argument and in indication of those authorities to which particular reference will be made during
the course of the argument.

4.2 POWERS OF THE SUPREME COURT OF APPEALS

The Appeal Court may grant the following orders and/or rulings:

 confirm, vary and or alter the rulings of the Court against which there has been an appeal
 remit the matter to the lower court with strict instructions to obtain further information
 instruct the parties or one of the parties to produce additional information required
 take a course that will result in a speedy disposal and/or settlement of the case
 order costs as dictated by the needs of justice.

4.3 DISCRETION IN TERMS OF SECTION 19 OF THE SUPREME COURT ACT 15 OF 1990

In terms of this Section, an Appeal Court has a discretion to dismiss an appeal where the judgment or
Order sought would have no practical effect or result. The test is whether the judgment or order would
have a poractical effect or result, not whether it might be of importance in an hypothetical future case
– see Jeebhai v Minister of Home Affairs and Another 2008 (3) BCLR 316 T.

VI. EXECUTION

1. FORMS OF WARRANTS

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Erasmus, Superior Court Practice, pp A1 - 79 to A1 - 80 and A1 -92 to A1 -95; B1 - 319 to B1 – 330
Rule 45

There are two forms of warrants (sometimes also referred to as "WRITS") viz (1) Warrants for
attachment of property or a person (also known as a "a warrant for arrests") AND (2) "WARRANTS
FOR EXECUTION".

The sheriff or a deputy sheriff executes all warrants of the court directed to the sheriff and makes
return of the manner or execution thereof to the court and to the party at whose instance the warrant
was issued.

1.1 WARRANTS FOR THE ATTACHMENT OF PROPERTY OF A PERSON

This type of warrant is used in the first place for the attachment ad fundandam jurisdictionem. This
means that it is employed in the case of a person or property of one who is domiciled or resident in a
foreign country to make him amenable to the jurisdiction of the court. His person or property can only
be attached while he or it is within the jurisdiction of the court out of which the warrant is issued.

This type of warrant may also be used for attachment ad confirmandam jurisdictionem . This means
that it is employed to furnish an asset on which execution can le levied to satisfy the judgement which
may be given so that the court's judgement will not be an "empty judgement".

For a discussion on the above two concepts see Hülse–Reuter and Others v Gödde 2001 (4) SA 1336
(SCA).

Warrants for the attachment (arrest) of a person can be made suspectus de fuga. This is the case
where a creditor on reasonable grounds suspect that a debtor against whom he has instituted an
action or against whom he intends instituting an action for the recovery of a debt, is about to move
from Namibia to escape liability. His arrest is then sought to keep him within the jurisdiction of the
court until such time as judgement is given against him. Once a valid judgement is given against, he
may no longer be detained. In practice the debtor is seldom detained. He furnishes security and is
then set free. The judgement creditor will then be able to follow him and seek satisfaction of the
judgement debt in most civilised countries in the world.

It is important to note that no attachment of person or property to found jurisdiction shall be ordered by
a court against a person who is resident in Namibia. No writ shall be issued for the arrest of a person
residing within Namibia to secure his appearance as a defendant in civil proceedings, by reason only
that such person has departed or is about to depart to a place outside the jurisdiction of the Court, but
within the Republic.

Where an incola Plaintiff has a claim sounding in money against a foreign peregrinus Defendant and
the Plaintiff secures and executes an ex parte order against the Defendant for an attachment of his

118
assets to found or confirm jurisdiction, the Defendant's consent to jurisdiction will not undo the
attachment. The Plaintiff is therefore under no duty to alert the Defendant of his intention to seek an
order of attachment and first to invite him to consent to jurisdiction.

Tsung v Industrial Development Corporation of SA Ltd 2006 (4) SA 177 SCA.

1.2 WARRANTS FOR EXECUTION

Once a judgement is obtained the judgement creditor is entitled to attach and to sell in execution the
judgement debtor's property, movable, immovable and incorporeal. He does so by obtaining a writ of
execution.

If no, or insufficient satisfaction of a judgement sounding if money is obtained, the judgement creditor
may in certain circumstances apply for the sequestration of the judgement debtor's estate.

The writ of execution must be as near as may be in accordance with Form 18 of the first Schedule to
the Rules.

1.3 EXECUTION IN RESPECT OF COSTS

No party is entitled to obtain a writ of execution for the recovery of any costs awarded to him until
those costs have been taxed by the taxing master or agreed to in writing by the party concerned in a
fixed sum.

Where the costs have been awarded, but not yet taxed or agreed upon a party may include a claim for
such costs in a writ of execution, subject to due taxation thereof. However, if such costs have not
been taxed and the original bill of costs, duly allocated, have not been lodged with the sheriff before
the date of the sale, such costs shall be excluded from his account and plan of distribution.

1.4 EXECUTION AGAINST THE STATE

Section 3 of the State Liability Act Act Number 20 of 1957, did not allow for execution or attachment
against the State. In Nyathi v Member of the Executive Council for the Department of Health, Gauteng
& Others 2008 (9) BCLR 865 (CC) Section 3 was declared inconsistent with the Constitution to the
extent that it did not allow for execution or attachment against the State. Declaration of invalidity was
suspended for a period of 12 months from 2 June 2008 to allow Parliament to pass legislation
providing for the effective enforcement of Court Orders against the State.

2. SALES IN EXECUTION

Erasmus, Superior Court Practice, pp A1- 38A to 67 & A1 – 51

Rules 45 and 46

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2.1 MOVABLE PROPERTY

This procedure is regulated by High Court Rule 45 and the salient points are set out hereunder.

The sheriff proceeds to the dwelling or place of employment or business of the person against whom
a writ of execution was issued.

There he demands satisfaction of the writ, failing which, he demands that such movable disposable
property be pointed out, as he may deem sufficient to satisfy the writ. Failing such pointing out, he
may search for such property.

The sheriff inventories the property and removes it unless the execution creditor otherwise directs or
the person whose property has been attached and his surety undertake in writing that such property
shall be produced on the day appointed for the sale thereof.

The sheriff files his return of service with the registrar and delivers a copy to the attorney. In the return
the sheriff indicates what he has done about the writ.

The sale in execution of the attached property is then advertised in two suitable newspapers
(whenever possible one in an Afrikaans and one in an English newspaper) circulating in the district in
which the property has been attached.

After the expiration of not less than 15 days from the time of the attachment thereof the property
thereof the property is sold by the sheriff by public auction to the highest bidder.

The sheriff deducts from the proceeds of the sale the costs of the execution and the balance is
distributed in the order of preference laid down by Rule 46(14)(c).

The sheriff shall pay any surplus that may remain to the judgement debtor.

2.2 IMMOVABLE PROPERTY

This procedure is regulated by Rule 46 and the salient points are set out hereunder.

A writ of execution against immovable property must contain a full description of the nature and
situation of the property (including the address) to enable the sheriff to trace and identify the property.

The writ for the attachment of immovable property is found in Form 20 of the First Schedule to the
Rules.

Attachment of the immovable property takes place when the sheriff dispatches a notice by pre-paid
registered post to the owner thereof and to the registrar of deeds, as well as to the occupier of the

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property, if it is some other person than the owner. Attachment in order even if notice not received by
owner and occupier – Stand 734 Fairland CC v BOE Bank Ltd and Others 2001 (4) SA 255 W.

The sheriff then sends his return of service to the registrar and the attorney for the judgement debtor.

The attorney then advises the sheriff in writing whether he should proceed with the sale in execution.

The sheriff then ascertains and records what bonds or other encumbrances are registered against the
property together with the names of the relevant persons and notifies the attorney accordingly.

If the property is subject to the claim of any preferent creditor, the property may not be sold unless the
attorney for the judgement creditor notified such preferent creditor by registered post of the intended
sale.

If the property is rateable, the attorney of the judgement creditor must also by registered post notify
the relevant local authority and call upon it to state within 10 days from a stipulated date, whether it
places a reasonable reserve price on the property or whether it agrees in writing to a sale without
reserve.

The sheriff may thereupon require of any person to deliver to him all documents relating to the
debtor's title in the said property.

The sheriff then appoints a day and place for the sale of the property, such day being, except by
special leave of a magistrate, not less that one month after service of the notice of attachment.

The attorney then determines the conditions of the sale and prepares, if necessary, copies of the
relevant documents. The conditions of the sale are as near as may be in accordance with Form 21 of
the First Schedule.

The attorney, after consultation with the sheriff prepares a notice of sale containing:

 a short description of the property

 its situation and street number, if any
 the time and place for the holding of the sale
 the fact that the conditions may be inspected at the office of the sheriff.

The execution creditor publishes the above notice in the Government Gazette and in a newspaper
circulating in the district in which the property is situated, not less than 5 days before the date
appointed for the sale, and furnishes copies of the notices in the Government Gazette and the
newspaper to the sheriff.

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Not less than 10 days prior to the sale, the sheriff forwards by registered post a copy of such notice of
sale to every judgement creditor who caused the property to be attached and to every mortgagee
thereof.

Not less than 10 days prior to the date of the sale the sheriff affixes one copy of the notice on the
notice board of the magistrate's court of the district in which the property is situated and one copy at
or as near as may be possible to the place where the sale is actually to take place.

Any interested party may, not less than 10 days prior to the date of the sale upon 24 hours notice to
the execution creditor and the bondholders, apply to the magistrate of the district in which the property
is to be sold for any modification of the conditions of sale and the magistrate may make such order
thereon, as to him may seem meet.

The judgement creditor may appoint an attorney to attend to the transfer of the property.

Immovable property attached in execution is sold by the sheriff by public auction to the highest bidder.
Unless otherwise stipulated, it is sold without reserve.

The sheriff gives transfer to the purchaser against payment of the purchase price and any document
signed by the sheriff is as valid as if signed by the owner of the property.

After the sale the sheriff prepares a plan of distribution in order of preference and a copy of the plan is
sent to the registrar of the court. The plan lies for inspection at the office of the sheriff and of the
registrar for 15 days. Any interested party may object to the plan. A judge shall hear on review any
matter in dispute and may amend or confirm the distribution plan or make any such order as to him
sees meet.

The sheriff then pays out accordingly to the distribution plan.

Where a Plaintiff seeks to execute against immoveable property and/or have same declared
executable in circumstances where small amounts were in arrear and where the property was of
moderate value, the Courts will be reticent to grant such application.

See ABSA Bank Limited v Ntsane and Another 2007 (3) SA 554 TPD.

Pursuant to a fairly long line of cases, including Standard Bank of South Africa Limited v Adams 2007
(1) SA 598 CPD, it is suggested that words along the lines of the draft hereunder be included where
an action contains a prayer which may result in a person being evicted from his or her home or having
such home demolished or where an order is sought declaring hypothecated property executable.

"The Defendant's attention is drawn to Section 26(1) of the Constitution of the Republic of South
Africa Act 108 of 1996, which accords to everyone the right to have access to adequate housing.

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Should the Defendant claim that the Order for execution infringes that right it is incumbent on the
Defendant to place information supporting that claim before the Court".( Because the Namibian
constitution contains different provisions on socio-economic rights this may read differently.)

2.3 REFERENCE TO CONSTITUTION

In Standard Bank of South Africa Limited v Saunderson and Others 2006 (2) SA 264 SCA, the
following practice direction was issued.

The summons initiating action in which a Plaintiff claims relief that embraces an order declaring
immoveable property executable shall, from the date of this judgment (which was 15 December 2005)
inform the Defendant as follows:

"The Defendant's attention was drawn to Section 26(1) of the Constitution of the Republic of South
Africa which accords to everyone the right to have access to adequate housing. Should the Defendant
claim that the order for execution will infringe that right it is incumbent on the Defendant to place
information supporting that claim before the Court."

2.4 DECLARATION AS EXECUTABLE NOW SUBSTANTIVE LAW

Having immoveable property which is the Defendant's home declared executable is no longer a
procedural matter but is, as a result of Section 26 of the Constitution, now a matter of substantive law.
Because it is a matter of substantive law, an application to declare such property executable can no
longer be brought on a simple notice of motion in terms of Rule 6(11) of the uniform Rules of Court
but has to be brought on a long form of Notice of Motion.

ABSA Bank Ltd v Xonti and Another 2006 (5) SA 289 CPD.

2.5 GENERAL

For a discussion on the constitutional considerations in executing against immoveable property see
De Rebus August 2006 12.

VII. MISCELLANEOUS ASPECTS

1. VALIDATION OF DOCUMENTS

Erasmus: Superior Court Practice pp B1- 406 to B1 - 408

Rule 63

Note: Other matters mentioned in the syllabus are dealt with in the notes on ethics.

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"Authentication" of a document means the verification of any signature on it.

There is no substantive enactment requiring that a document executed in a foreign country must be
authenticated before it can be used in the Republic. It is, however a long-established practice that
such documents must be authenticated.

A document executed in a foreign country is deemed to be sufficiently authenticated if it has been duly
authenticated in such foreign country by the signature and seal of office of certain consular officials of
South Africa or the United Kingdom, certain officials of that country, a notary public in certain
countries or a commissioned officer in the South African Defence Force in respect of a document
signed by a person on active service. See Rule 63(2) for more details.

The rules dealing with authentication of foreign documents are not exhaustive but merely directory;
not taking away from power of courts to consider other evidence directed at proof of document signed
in foreign place and to accept such document as being duly authenticated.

See Blanchard, Kramer and French v Evans 2004 (4) SA 427 WLD

2. EVIDENCE ON COMMISSION

Erasmus: Superior Court Practice pp B1 - 275 to B1 - 287

Rule 38

A court may, on application on notice, in any matter where it appears convenient or necessary, for the
purpose of justice, make an order for taking the evidence of a witness before or during the trial before
a commissioner of the court.

The court may permit any party to any such matter to use such deposition in evidence on such terms,
if any, as to it seems meet, and in particular may order that such evidence shall be taken only after
the close of pleadings or after the making of discovery or the furnishing of any particulars in the
action.

Where the evidence of any person is to be taken on commission before any commissioner within the
Republic, such person may be subpoenaed to appear before such commissioner to give evidence as
if at the trial.

At the completion of the evidence taken down before the commissioner of the court, the record of the
evidence shall be returned by the commissioner to the registrar with his certificate to the effect that it
is the record of the evidence given before him, and if shall thereupon become part of the record of the
case.

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When an application is made to the court to order that the evidence of a witness be taken down
before a commissioner of the court, the court has discretion whether or not to grant such order. In the
exercise of such discretion the following factors will be taken into consideration:

The inability of or inconvenience for a witness to give evidence at the trial, e.g. where the person
concerned is a patient in hospital or is abroad.

What degree of injustice will be done to the opposite party if evidence is obtained in this way?

The nature of the evidence to be given and its bearing on the issues in dispute.

The affidavit supporting such an application must contain at least the following allegations:

 the name of the witness;

 the name of the commissioner who the applicant suggests be appointed;
 the nature of the proposed evidence and its bearing on the issues in the action;
 the reason why evidence must be taken on commission.

COSTS34

Costs are awarded to “35a successful party in order to indemnify him for the expense to which he has
been put through having been unjustly compelled either to initiate or to defend litigation, as the case
may be. Owing to the necessary operation of taxation, such an award is seldom a complete indemnity
but that does not affect the principle n which it is based”.

The two fundamental rules that govern the award of costs are that firstly, the award of costs is in the
discretion of the court and secondly, that costs follows the event and therefore the successful part is
awarded costs.

The court which has jurisdiction in respect of the merits of the matter also has jurisdiction on costs.
See rule 23 of the Rules of the Law Society made in terms of the provisions of the Legal Practitioners
Act, section 52(3).

A practitioner should debit fees as and when the work is done. Many legal practitioners do not follow
this practice and often lose fees and income. This rule should be applied strictly in civil litigation. Even
if a legal practitioner has an agreement with the client that fees will only be payable at the end of a
matter or that only a nominal fee will be charged in unsuccessful debt collecting matters, fees should
regularly be noted in the file or on the computer.

34
See Namibia Breweries Limited v Serrao 2007(1) N 49 & Christian v Metropolitan Life Namibia and
Another 2007 (1) NR 255, also see on rule 11 Aztec Granite (Pty) Ltd v Green and Others 2006(2) NR
399.
35
See Innes CJ in Texas Co(SA) Ltd v Cape Town Municipality 1926 AD 467, 488 and all other authorities
quoted in AC Cilliers ‘ Law of Costs’ 3rd ed(1997) Lexis Nexis butterworths, issue 22 1-6.

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Fees should be debited at least once a month for the work done during that month in defended
matters. Monthly statements should be sent to the client. It is essential to enter into an agreement with
each client regarding: the tariff of fees, how and when the fees will be payable, what the
consequences of non-payment will be. A client should be told that he/she will receive an account and
that payment is expected within a certain period. Every client should receive an account promptly after
the work has been done.

The immediate debiting of fees has certain VAT implications. If the account is not paid within 60 days,
the firm is liable for VAT on unpaid fees. It is advisable to use an age analysis system to identify
defaulters. If an account is not paid within 60 days no further work should be done and the client
should be informed that work would only proceed once the account is paid.

A. THE USE OF PRECEDENTS

Please take note that when you start off in practice you will be exposed to various precedents that
have become part of the institutional memory of the institution or practice you are working for.
Precedents are guidelines. They must be used for quality check and structure. This is so to ensure
that there is compliance with the established norms of a particular court or jurisdiction. But you should
not start with a precedent. It is advisable that you read the rules, establish the requirements in terms
of the rules and practice directions, draft the pleading and use a precedent to fine tune the pleading. It
has become customary for practitioners to use precedents sometimes verbatim without adjusting
them to suit the matter you are dealing with(it has become a matter of cut and paste). For obvious
reasons this is dangerous and unacceptable. The precedents in this reader are but one version of
what a particular civil process look like and should be seen as simply one example.

B. FORMS AND PRECEDENTS

1. SIMPLE SUMMONS (Form 9)

In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

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To the deputy sheriff

INFORM A.B., of ........................(state sex and occupation) ........(hereinafter called the defendant,
that C.D., of ....................(state sex and occupation)....................(hereinafter called the plaintiff),
hereby institutes action against him in which action the plaintiff claims:

(Here set out in concise terms plaintiff's cause of action)

INFORM the defendant further that if he disputes the claim and wishes to defend the action, he shall
within 10 days of the service upon him of this summons file with the registrar of this court
at ..........................(here set out the address of the Registrar's Office) notice of his intention to defend
and serve a copy thereof on the plaintiff's attorney, which notice shall give an address (not being a
post office box or poste restante) referred to in Rule 19(3)(b) for the service upon the defendant of all
notices and documents in the action.

INFORM the defendant further that if he fails to file and serve notice as aforesaid, judgement as
claimed may be given against him without further notice to him.

AND immediately thereafter serve on the defendant a copy of this summons and return the same to
the registrar with whatsoever you have done thereupon.

DATED at ..............................this .................day of ..............................200_

_______________________________

REGISTRAR OF THE HIGH COURT

LEGAL PRACTITIONER FOR PLAINTIFF(S)

(ADDRESS)

2. COMBINED SUMMONS

In the High Court of Namibia

Case No.: .............................

In the matter between:

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 Plaintiff

and

Defendant

INFORM A.B., of ........................(state sex and occupation) ........(hereinafter called the defendant,
that C.D., of ....................(state sex and occupation)....................(hereinafter called the plaintiff),
hereby instutes action against him in which action the plaintiff claims the relief and on the grounds set
out in the Particulars of Claim annexed hereto.

INFORM the defendant further that if he disputes the claim and wishes to defend the action, he shall:

within ................days of the service upon him of this summons file with the registrar of this court
at ..........................(here set out the address of the Registrar's Office) notice of his intention to defend
and serve a copy thereof on the plaintiff's attorney, which notice shall give an address (not being a
post office box or poste restante) referred to in Rule 19(3)(b) for the service upon the defendant of all
notices and documents in the action;

Thereafter and within 20 days after filing and serving notice of intention to defend as aforesaid, file
with the registrar and serve upon the plaintiff a plea, exception, notice to strike out, with or without a
counterclaim.

INFORM the defendant further that if he fails to file and serve notice as aforesaid, judgement as
claimed may be given against him without further notice to him, or if, having filed and served such
notice, he fails to plead, except, make application to strike out or counterclaim judgement may be
given against him. And immediately thereafter serve on the defendant a copy of this summons and
return the same to the registrar with whatsoever you have done thereupon.

DATED at ..............................this .................day of ..............................200_

_______________________________

REGISTRAR OF THE HIGH COURT

LEGAL PRACTITIONER OF PLAINTIFF(S)

(ADDRESS)

3. PARTICULARS OF CLAIM 1

1.

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The plaintiff is Peter Johnson, an adult male accountant residing at 43 Independence Avenue,
Windhoek, Republic of Namibia.

2.

The defendant is Allan Malow, an adult male medical practitioner practising as such at 10 Kirche
Street, Windhoek, Republic of Namibia.

3.

The plaintiff is the owner of the premises situated at 60 Kirche Street, Windhoek, Republic of Namibia.

4.

The defendant is in possession of the aforesaid premises.

Wherefore the plaintiff prays for judgement in his favour against the defendant for:

a. an order that possession of the premises situated at 60 Kirche Street, be restored to the
plaintiff;
b. Costs of suit;
c. Further and/or alternative relief.

Signed at Windhoek this .....................day of .........................................200_

____________________

COUNSEL FOR PLAINTIFF

____________________

LEGAL PRACTITIONER FOR PLAINTIFF

4. PARTICULARS OF CLAIM 2

1.

The plaintiff is Peter Johnson, an adult male accountant residing at 43 Church Street, Windhoek.

2.

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The defendant is Allan Malow, an adult male medical practitioner practising as such at 10 Church
Street, Windhoek.

3.

This Honourable Court has Jurisdiction to hear this matter in that (here state the grounds for the Court
jurisdiction).

4.

On 1 November 2004 and at Windhoek the plaintiff and the defendant, both acting personally, entered
into an oral agreement in terms of which the plaintiff sold to the defendant a 2001 Land Rover Diesel
motor vehicle with registration number MSJ196GP for a purchase price of N$170 000.00

5.

It was a material term of the agreement that the purchase price was to be paid on 15 November 2004
and, should the defendant fail to do so, the plaintiff would be entitled to cancel the agreement without
any prior demand or notice to the defendant.

6.

The defendant failed to pay the purchase price on due date and has not paid it since.

7.

In the premises, the defendant is in breach of the agreement and the plaintiff is entitled to cancel the
agreement.

8.

On 20 November 2004 the plaintiff cancelled the agreement and at the defendant's aforesaid
premises, the plaintiff informed the defendant that he had cancelled the agreement and demanded
return of the Land Rover. The defendant refused to comply with the demand.

9.

The value of the Land Rover is N$170 000.00

Wherefore the plaintiff prays for judgement in his favour against the defendant for:

1. an order for the return to the plaintiff of a 2001 Land Rover with registration number MSJ196
GP;

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In the alternative to paragraph 1 above, an order for the payment of N$170 000.00 together with
interest thereon at the rate of 20% calculated from 16 November 2004 to date of payment;

2. Costs of suit;
3. Further and/or alternative relief.

Signed at Windhoek this .....................day of .........................................20_

_______________________________

COUNSEL FOR PLAINTIFF

_______________________________

LEGAL PRACTITIONER FOR PLAINTIFF

ADDRESS

5. PARTICULARS OF CLAIM 3

1.

The plaintiff is Peter Johnson, an adult male accountant residing at 43 Church Street, Windhoek.

2.

The defendant is Allan Malow, an adult male medical practitioner practising as such at 10 Church
Street, Windhoek.

3.

This Honourable Court has Jurisdiction to hear this matter in that (here state the grounds for the Court
jurisdiction).

4.

The parties conducted, in partnership, a medical practice at 60 Church Street, Windhoek.

5.

It was an express, alternatively tacit, term of the partnership agreement that the defendant would
regularly, and not less than 3 months, render to the plaintiff a full account of all the affairs of the
aforesaid partnership supported, where necessary, by documentary proof.

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 6.

Despite demand, the defendant has failed to render any account at all for the period 1 January 2004
to 30 September 2004.

Wherefore the plaintiff prays for judgement in his favour against the defendant for:

1. an order that the defendant render a full account of the medical practice being conducted by
the plaintiff and defendant at 60 Church Street, Windhoek, for the period 1 January 2004 to
30 September 2004 supported by documentary proof;
2. Debatement of the said account;
3. Payment by the defendant to the plaintiff of such amount as appears to be due to him upon
debatement of the account;
4. Costs of suit;
5. Further and/or alternative relief.

Signed at Pretoria this .....................day of .........................................20_

_______________________________

COUNSEL FOR PLAINTIFF

_______________________________

LEGAL PRACTITIONER FOR PLAINTIFF

ADDRESS

6. SUMMONS: PROVISIONAL SENTENCE SUMMONS

In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

To the deputy sheriff:

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INFORM A.........................................(sex) B..................................(occupation),
of .....................................................................(residence or place of business) and hereinafter called
the defendant:

(1) that he is hereby called upon immediately to pay to C.............................(sex)

D.................................(occupation) of .....................................(residence or place of
business) ..........................................(hereinafter called the plaintiff) an amount of ..............together
with interest thereon at the rate of ............% per annum as from ...............claimed by the
plaintiff ..................(here set out the cause of action) ...................., and a copy of which document is
annexed hereto;

(2) that failing such payment, he or she is hereby called upon to appear before this Court personally
or represented by an advocate or by an legal practitioner who, in terms of the provisions of the Legal
Practitioners Act, 1995(Act 15 of 1995), has the right of appearance in the High Court at ....................
on ........................... the day of ........................... 20_ at .....................(time) in the forenoon (or as
soon thereafter as the matter can be heard) to admit or deny his liability for the said claim, and to
state why the mortgaged property should not be declared executable.

(3) that if he denies liability for the same, he shall not later than noon on ................. the day
of ............. 20_ file an affidavit with the registrar of this court, and serve a copy thereof on plaintiff's
legal practitioner, which affidavit shall set forth the grounds of his defence to the said claim, and in
particular states whether he admits or denies his signature of the said ..................... or whether he
admits or denies the signature or authority of his agent.

AND INFORM the said defendant further that in the event of his not paying the amount and interest
above-mentioned to the plaintiff immediately and if he (the said defendant) further fails to file an
affidavit as aforesaid, and to appear before this Court at the time above stated, provisional sentence
may forthwith be granted against him with costs, and the mortgaged property may be declared
executable, but that against payment of the said amount, interest and costs, he will be entitled to
demand security for the restitution thereof if the said sentence should thereafter be reversed.

AND serve a copy of this summons and of the said ...................on the said defendant and then return
this summons to the registrar with your return of what you have done thereon.

DATED at .......................this ......................day of ............................20_

______________________________

REGISTRAR OF THE HIGH COURT

_______________________________

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PLAINTIFF'S LEGAL PRACTITIONER

ADDRESS FOR SERVICE

6. APPLICATION FOR LEAVE TO SERVE BY SUBSTITUTED SERVICE

Heading...

_________________________________________________________________________________

Notice of Motion

_________________________________________________________________________________

TAKE NOTE THAT application will be made on behalf of the above-named Applicant on Friday the 4 th
August 2004 at 10h00 or as soon thereafter as Counsel may be heard for an order:

1.

Authorising substituted service of process, which the applicant intends to issue against the
respondent for:

1.1 A decree of divorce;

1.2 Implementation of the donations in favour of applicant contained in the Antenuptial Contract
entered into between the parties;

1.3 An order directing respondent to pay applicant maintenance in the sum of N$ 200.00 per month
until her death or remarriage;

1.4 An order awarding the applicant sole custody and sole guardianship of the minor children born of
the marriage;

1.5 An order that respondent pay maintenance to applicant in respect of the aforesaid minor children
in the sum of N$500.00 per month per child;

1.6 Alternative relief;

1.7 Costs of suit.

2.

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Directing that service be effected upon respondent by means of publication of the citation in one
edition of the Namibian/ Republikein;

3.

Calling upon respondent to give notice of his intention to oppose the proceedings within 21 days after
such publication if he intends to oppose the relief set out above;

4.

Granting the applicant such further, other or alternative relief as this Court deems appropriate.

KINDLY PLACE THE MATTER on the roll for hearing accordingly.

DATED at Windhoek etc.

The supporting affidavit could read as follows:

Affidavit

I, the undersigned,

SUSAN BROWN (born GREEN)

do hereby make oath and say:

1.

I am an adult housewife presently residing at 15 Lucifer Street, Katutura and I am the applicant in this
application. The facts set out herein fall within my personal knowledge save where otherwise stated.

2.

The respondent is JOSEPH BROWN whose present address is unknown to me.

3.

I married the respondent at Windhoek on the 9 th December 1987 and the marriage still subsists. Prior
to the marriage the respondent and I executed a duly registered Antenuptial Contract excluding
community of property and containing also certain donations in my favour which have not been
implemented.

4.

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Two children were born of the marriage, namely a son named James, presently 16 years of age and a
daughter Margaret aged 14.

5.

The respondent was born in England but immigrated into Namibia for some time before our marriage
and at the time of our marriage was and still is domiciled in Namibia.

6.

The marriage was reasonably happy until 2000 when the respondent deserted me at Khorixas where
we were then living and only returned after a period of three months. Upon his return the respondent
indicated that he had gone to Windhoek to look for fresh employment but on reconsideration had
decided to return to Khorixas. He asked me to accept him back.

7.

We continued living together at Khorixas for a further eight months whereafter the respondent again
suddenly without prior notice to me left the children and me.

8.

The only subsequent contact which I have had with the respondent since he thus deserted me
consisted of a letter which he addressed to me a month after he left me and a copy whereof I attached
hereto marked "A". It will be noticed that he gave no indication therein as to his future intentions. The
letter was posted from Windhoek where he was presumably at the time. Since then nothing further
has been heard from him.

9.

At the time of his disappearance, the respondent worked for the Apex Building Company as a building
inspector at Khorixas. I attach hereto a copy of a letter marked "B" which I addressed to his employers
requesting their assistance in tracing him. As will be observed from their reply marked "C", the
respondent left their employ without prior notice on the day that he deserted me and their attempts to
trace him have proved fruitless.

10.

Particulars of the respondent's family connections are the following:

10.1 His father is deceased.

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10.2 His mother is Mrs Dorothy Brown who lives at 19 Church Street, Windhoek. Respondent
apparently visited his mother for three days immediately after he deserted me but according
to a letter which I subsequently received from her (a copy whereof I attach hereto marked "D")
he later left her home without telling her anything about his movements. Like me, she has had
no further contact with him.

10.3 Respondent has a brother, one Captain Frederick Brown, who is with the Namibian Defence
Force and my legal representatives addressed a letter to him requesting his assistance in
tracing the respondent. A copy is attached marked "E". From his response (Annexure "F") it
will be noticed that he likewise has had no news of the respondent's movements.

10.4 The respondent has a sister, one Mrs Jean L Black, whose address is 11 Sesriem Road,
Otjiwarongo. My legal representatives wrote a similar letter to her and in response received a
letter (copy whereof is attached marked "G") in the ultimate paragraph whereof she says "I
am very sorry to say that neither I nor my husband have any idea as to his whereabouts nor
have we heard by word or letter anything since he deserted my sister-in-law".

10.5 The respondent has no other brothers or sisters or indeed any other near relatives or friends
who one could approach in order to obtain particulars of his movements and whereabouts. I
suspect that the respondent is at or near Winhdoek and my legal representatives accordingly
addressed a letter to the Station Commander of the Namibian Police at Windhoek enquiring
as to his whereabouts. From the Station Commander's reply (Annexure "H"), it will be
observed that the Namibian Police cannot be of any assistance in tracing him.

11.

While we lived together the respondent regularly used to read the Namibian and Republikein news
papers and I consider that publication of the summons in those newspapers will come to his notice.

12.

Since our marriage has clearly broken down irretrievably I am anxious to institute proceedings out of
the above Honourable Court against respondent for:

1. A decree of divorce;
2. Implementation of the donations in my favour contained in the Antenuptial Contract entered
into between us;
3. An order awarding sole custody and sole guardianship of the children born of the marriage to
me. I would point out in regard to this prayer that it is essential that I should obtain full custody
and sole guardianship as this will preclude difficulties which I might otherwise have in future in
regard to their affairs. I add that the respondent has taken no interest in the children and has
in particular defaulted in paying any maintenance since he left us;

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 4. An order compelling respondent to pay maintenance to me in the amount of N$200.00 per
month. In regard to this prayer I do realise that an amount for maintenance may well be
academic but the possibility exists that respondent may be found in later years and I consider
he should then be compelled to effect payment of such maintenance.
5. An order compelling respondent to pay maintenance to me in respect of the two minor
children at the rate of N$500.00 per child;
6. Further/ Alternative relief;
7. Costs of suit.

13.

I accordingly pray for an order in terms of the relief set out in my Notice of Motion herewith.

_________________________

(SGD) S BROWN

I certify that the deponent has acknowledged that he/she knows and understands the contents of this
affidavit which was signed and sworn to before me on the………..day of……………. 20_ at
……………, the regulations contained in Government Notice R1258 dated 21 July 1972 having been
complied with

BEFORE ME

_____________________________

COMMISSIONER OF OATHS

FULL NAMES

DESIGNATION

ADDRESS

8. APPLICATION FOR LEAVE TO SUE BY EDICTAL CITATION

In the High Court of Namibia

Case No.: .............................

138
In re the matter between:

Applicant

and

Respondent

_________________________________________________________________________________

NOTICE OF MOTION

________________________________________________________________________________

TAKE NOTICE THAT application will be made on behalf of the above-named applicant
on ...............the .............day of ........................20_ at 10h00* or so soon thereafter as Counsel can be
heard, for an order in the following terms: .

1.

Applicant is given leave to proceed against respondent by edictal citation for:

1. A decree of divorce;
2. An order that respondent forfeit the benefits of the marriage in community of property;
3. An order compelling respondent to pay applicant maintenance in the amount of N$200.00 per
month until her death or remarriage;
4. Alternative relief;
5. Costs of the application be costs in the cause.

2.

That service of the citation be effected upon respondent personally.

3.

An order calling upon respondent to give notice to applicant's legal practitioners of his intention to
oppose the proceedings within 21 days after service upon him if he intends to oppose the relief set out
above.

4.

And take notice further that the affidavit of Susan Brown will be used in support of the Application.

139
KINDLY set the matter down for hearing accordingly.

DATED at WINDHOEK this ..............day of .................... 200_

SMITH BRAND & COMPANY

Per:

APPLICANT'S LEGAL PRACTITIONERS

ADDRESS

TO: The Registrar

High Court

WINDHOEK, NAMIBIA

The supporting affidavit could read as follows:

Affidavit

I, the undersigned,

SUSAN BROWN

do hereby make oath and say:

1.

I am an adult housewife and presently residing at 10 Oak Avenue, Hochland Park, Windhoek. The
facts set out herein fall within my personal knowledge, save where otherwise stated.

2.

The respondent is JOSEPH BROWN, a businessman who presently resides at 20 Norfolk Avenue,
Kensington, London, SW 7, England, and is employed at the London Office of the Apex Building
Company.

3.

Respondent and I were married in community of property at the Baptist Church, Highlevel Road,
Three Anchor Bay, Swakopmund , on the 2nd of June 1987 and the marriage still subsists.

140
 4.

Three children were born of the marriage but all three have attained majority and are self-supporting.

5.

Although respondent was at all times very restless and unsettled, the marriage between us was
reasonably happy until 2000 when the respondent obtained a work permit authorising his employment
in Great Britain.

6.

Apart from occasional visits to this country since then, the respondent has lived in London ever since.
I joined him there after he had obtained suitable premises in 2001 but the marriage deteriorated, more
particularly since 2002 when the respondent's attitude towards me changed. In June of that year he
suggested that I return to Namibia and that we live separate lives for a trial period. Accordingly at his
instance I returned to Namibia the following month.

7.

Since then I have lived in Namibia and have been staying with my children who are all resident here.

8.

I wrote to the respondent from time to time to suggest that we resume our married life by his either
returning to me or me rejoining him in England. His replies were non-committal until 1 June 2004
when he wrote me a letter, a copy of which I attach hereto marked "A", in which he said "there is no
intention on my part to return to Namibia now, neither do I wish you to return to England".

9.

In none of his subsequent letters was there any indication of a change in attitude and it has now
become clear that the respondent in fact wishes to bring matters to a head in regard to the termination
or our marriage as last month he gave instruction to Building Society handling his affairs in this
country to stop payment of maintenance which I had until then been receiving ex his Savings Account
with that institution.

10.

I am totally dependent upon the support which I have thus far received from the respondent and he is
well able to continue therewith. Apart from the aforesaid Savings Account the respondent has
substantial assets in Namibia.

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 11.

By virtue of the foregoing the marriage has reached such a state of disintegration that there is no
reasonable prospect of the restoration of a normal marriage relationship between us. Appropriate
action should be taken to safeguard my property and interests, more particularly in regard to the
payment of further maintenance and the securing of my half share in terms of the marriage in
community assets. Accordingly I am anxious to institute proceedings out of the above honourable
court against the respondent for the relief set out in my Notice of Motion herewith.

12.

I am domiciled within the area of jurisdiction of the above Honourable Court

13.

For a period of more than one year prior to the institution of this action I was ordinarily resident in the
Namibia and I am ordinarily resident within the jurisdiction of the above Honourable Court.

14.

I do not anticipate any difficulty in regard to the service upon the Respondent and accordingly in my
Notice of Motion suggest that he be served personally and that he be given 21 days in which to give
notice of any intention to oppose the proceedings.

I certify that the deponent has acknowledged that she knows and understands the contents of this
affidavit which was signed and sworn to before me on the………..day of……………. 20_ at
……………, the regulations contained in Government Notice R1258 dated 21 July 1972 having been
complied with

BEFORE ME

_____________________________

COMMISSIONER OF OATHS

FULL NAMES

DESIGNATION

ADDRESS

142
9. NOTICE OF BAR

PLEASE TAKE NOTICE that the defendant is required to deliver his plea within 5 days after the day
upon which this notice is delivered, failing which the defendant shall be in default and ipso facto
barred from filing a plea.

10. NOTICE OF INTENTION TO DEFEND

PLEASE TAKE NOTICE that the defendant hereby gives notice of his intention to defend this action.

AND TAKE FURTHER NOTICE that, in accordance with Rule 19(3) of the rules of this Honourable
Court, the defendant:

records his residential/business address as being

________________________________________;

appoints the office of his legal practitioners set out below as the address set out below as the address
at which he will accept service of all notices, process and documents in this action.

11. DECLARATION

In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

_________________________________________________________________________________

DECLARATION

_________________________________________________________________________________

143
 1.

The plaintiff is XYZ Bank Limited, a company duly registered and incorporated in terms of the laws of
the Republic of Namibia/Companies Act 28 of 2004, trading as a Bank at Eros, Windhoek, and
elsewhere in the Republic of Namibia, with registered head office at 115 Church Street, Windhoek,
Republic of Namibia.

2.

The defendant is ALLAN MALOW, an adult medical practitioner practising as such at 10 Church
Street, Windhoek.

3.

This Honourable Court has Jurisdiction to hear this matter in that (here state the grounds for the Court
jurisdiction).

4.

On or about 5 May 2002 and at Windhoek the plaintiff represented by a branch manager of its Eros
branch, as such duly authorised, and the defendant acting in person, entered into an oral agreement
in terms whereof the plaintiff granted overdraft facilities on a current account at the aforesaid branch
to the defendant.

5.

The following were express, alternatively tacit terms of the agreement, alternatively it is the fixed and
known trade usage of banks that:

5.1 The amount and duration of the overdraft facilities would be in the plaintiff's discretion;

5.2 The defendant would pay interest to the plaintiff on the amount owing by him on the account
from time to time at such interest rate which the plaintiff would from time to time determine
with reference to the amount outstanding on the account, the risk to the plaintiff of not
recovering the said amount, and current interest rates;

5.3 The interest would be compounded monthly;

5.4 The defendant would pay the plaintiff's normal bank charges to the plaintiff;

5.5 The full amount outstanding on the account would be payable on demand.

6.

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In terms of the agreement, the plaintiff from time to time:

6.1 Paid cheques drawn on it by the defendant;

6.2 Debited interest to the account and compounded it monthly;

6.3 Debited the account with the plaintiff's normal bank charges.

7.

On 15 November 2001 the defendant's aforesaid account was overdrawn in the sum of N$180
000.00, which sum together with interest thereon at the rate of 18.5% per annum calculated from 16
November 2001 to date of payment, such interest to be compounded monthly, is presently due and
payable to the plaintiff.

8.

Despite demand, the defendant refuses and/or neglects to pay the aforesaid amount and interest to
the plaintiff.

Wherefore the plaintiff claims from the defendant:

1. Payment of the amount of N$180 000.00.

2. Interest on the amount of N$180 000.00 at the rate of 18.5% per annum calculated from 16
November 2000 to date of payment, such interest to be compounded monthly.
3. Costs of suit.
4. Further and/or alternative relief.

Thus signed at Windhoek this ...............................day of .............................. 20_.

__________________________

COUNSEL FOR PLAINTIFF

__________________________

LP FOR PLAINTIFF

Full address of legal practitioner

12. PLEA

145
 IN THE HIGH COURT OF NAMIBIA

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

_________________________________________________________________________________

PLEA

_________________________________________________________________________________

The defendant pleads as follows to the plaintiff's declaration:

A. SPECIAL PLEA

1.

The defendant pleads that the plaintiff does not have locus standi in iudicio due to the fact that the
plaintiff has on a date prior to the issue of summons been deregistered after its assets and liabilities,
including its right and obligation in respect of the present action, had been taken over by PEOPLE’S
Bank Limited.

Wherefore the defendant prays that the plaintiff's claim be dismissed with costs.

B. PLEA ON THE MERITS

2.

AD PARAGRAPH 1 THEREOF

3.

AD PARAGRAPH 2 THEREOF

Wherefore the defendant prays that the plaintiff's claim be dismissed with costs.

Thus signed at Windhoekthis ................................day of ............................... 20_

146
__________________________

COUNSEL FOR DEFENDANT

__________________________

DEFENDANT'S LP

13. NOTICE TO THIRD PARTY

IN THE HIGH COURT OF NAMIBIA

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

and

Third Party

TO THE ABOVE-NAMED THIRD PARTY:

TAKE NOTICE that the above-named plaintiff has commenced proceedings against the above-named
defendant for the relief set forth in the summons, a copy of which is herewith served upon you.

The above-named defendant claims a contribution or indemnification (or such other grounds as may
be sufficient to justify a third-party notice) on the grounds set forth in the annexure hereto.

If you dispute those grounds or if you dispute the claim of the plaintiff against the defendant you must
give notice of your intention to defend, within ..........days. Such notice must be in writing and filed with
the registrar and a copy thereof served on the above-named defendant at the address set out at the
foot of this notice. It must give an address (not being a post box or poste restante) referred to in Rule
6(5)(b) for the service upon you of notices and documents in the action. Within 20 days of your giving

147
such notice, you must file a plea to the plaintiff's claim against the defendant or a plea to the
defendant's claim against you, or both such pleas.

Thus signed at Windhoek this ....................................day of ..................................

__________________________

DEFENDANT'S LP

ADDRESS

To:

__________________________

and to Plaintiffs Legal Practitioner

Address

14. DISCOVERY AFFIDAVIT AND SCHEDULES

In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

Discovery Affidavit

I, the undersigned,

Mr X

make oath and say:

1.

148
I am the General Manager of ........................., the above plaintiff, and am duly authorised to make this
affidavit on the plaintiff's behalf and have personal knowledge of the content hereof.

2.

Plaintiff has in its possession or under its control the documents relevant to the issues in this action
which are set out in the first and second parts of the first schedule hereto.

3.

The plaintiff objects to produce the said documents set forth in the second part of the first schedule
hereto.

4.

The plaintiff objects to discovery of such documents because they:

4.1 Were drawn up or written or obtained after litigation had been contemplated and with the
intention to place them before plaintiff's legal advisers to enable plaintiff's legal advisers either
to give legal advice or the conduct plaintiff's case; or

4.2 Concern plaintiff's case alone and do not support defendant's case; or

4.3 Comprise reports or enquiries which led to the privileged documents as mentioned herein.

5.

The plaintiff has had but has not now in its possession or power the documents relating to the matters
in question in this action as set forth in the second schedule hereto.

6.

The last mentioned documents were last in my possession or power .................(state when).

7.

The ..........................(here state what has become of the last mentioned documents and in whose
possession they are now).

8.

According to the best of my knowledge and belief, the plaintiff had not now and never has in its
possession, custody or power, or in the possession, custody or power of its attorney or agent or any

149
other person on its behalf, any document or copy of or extract from any documents relating to any
matters in question in this action, other than the documents set forth in the first and second schedules
hereto.

I certify that the deponent has acknowledged that he/she knows and understands the contents of this
affidavit which was signed and sworn to before me on the………..day of……………. 20_ at
……………, the regulations contained in Government Notice R1258 dated 21 July 1972 having been
complied with

BEFORE ME

_____________________________

COMMISSIONER OF OATHS

FULL NAMES

DESIGNATION

ADDRESS

SCHEDULE 1

PART 1

ITEM DATE PARTICULARS

11.10.97 Copy invoice CBS for N$ 2 454.65

05.10.97 Road traffic accident report MR5/10/84

Document entitled "odometer readings"

12.11.97 Report VDO instruments addressed to plaintiff

Evaluation Number 84/083 evaluated by Kessel and
Knoll including evaluation 84/083-B

06.11.97 Letter J Hertzog of Airtech to Orbit Motors

Copy of licence, J Jooste

150
 13.11.97 Minutes of meeting held between plaintiff and
defendant

Handwritten notes re meeting

16.11.97 Letter plaintiff to defendant

11.12.97 Note telephone discussion between BD Legal

Practitioner of plaintiff and Taylor, Loss Adjuster

07.05.97 Statements driver J Jooste to Windhoek City Police

05.07.97 Letter Jan S de Villiers & Son to Station Commander,

Elliot

23.07.97 Letter Station Commander Elliot to Jan S de Villiers &

Son enclosing Police report

17.09.97 Letter Defendant's Legal Practitioner to plaintiff

02.12.97 Letter Jan S de Villiers & Son to defendant's attorneys

Special Power of Attorney to institute proceedings on
behalf of plaintiff including Minutes of Meeting of
Board of Directors of plaintiff.

15.07.98 Letter defendant's legal practitioner of record to

plaintiffs' legal practitioner.

CLAIM NAMIBIAN TRANSPORT SERVICES:

21.01.98 Letter Namibian Transport Services to plaintiff.

12.02.98 Letter Federated Insurance Company Limited to

Namibian Transport Services.

15.02.98 Letter Namibian Transport Services to plaintiff

21.01.98 Account Namibian Transport Services N$ 9 692.35.

17.02.98 Letter Jan S de Villiers & Son to Namibian Transport

Services

08.04.98 Letter Namibian Transport Services to Jan S de

151
 Villiers & Son

18.02.99 Letter Jan S de Villiers & Sons to Stat Advocate, P E

24.06.99 Letter State Advocate P E to Jan S de Villiers & Son

29.09.99 Letter Jan S de Villiers & Son to State Advocate, P E

20.10.99 Letter Attorney Whitesides to Jan S de Villiers & Son

06.11.99 Letter Jan S de Villiers & Son to attorney Whitesides

CLAIM OF DEPARTMENT OF ROADS:

21.05.97 Letter Department of Roads to plaintiff

14.02.97 Letter Jan S de Villiers & Son to Department of Roads

17.04.97 Letter Department of Road to Jan S de Villiers & Son

05.01.97 Letter Department of Roads to plaintiff

19.01.97 Letter plaintiff to Federated Insurance

30.06.97 Cession Regional office in favour of plaintiff

DAMAGES:

12.11.97 Internal memo to Attorney of plaintiff with repairs to

vehicle (in addition to annexures to the further
particulars) the following quotations and
documentation:

36.1 05.11.97 Quotation 2904 Truck & Trailer Repairs

36.2 03.11.97 Quotation 4209 Orbit Coach Works

36.3 03.11.97 Quotation 4212 Orbit Coach Works

36.4 03.11.97 Quotation 4215 Orbit Coach Works

36.5 03.11.97 Quotation 1981 McCarthy Motors to Plaintiff

152
36.6 Estimate McCarthy Motors NB 2632

36.7 Parts interpretation from McCarthy Motors

Handwritten note relating to damage to vehicle

13.11.97 Invoice 67406 Orbit Motors

18.02.98 Quotation Transcold (Pty) Ltd addressed to plaintiff

21.02.98 Quotation Rebiba Engineering addressed to plaintiff

28.02.98 Letter plaintiff's legal practitioner to defendant's legal

practitioner

04.03.98 Letter defendant's legal practitioner to plaintiff's legal

practitioner

CORRESPONDENCE BETWEEN PLAINTIFF AND DEFENDANT'S

LEGAL PRACTITIONERS OF RECORD

22.04.98 Letter defendant's legal practitioner to plaintiff's legal

practitioner

07.05.98 Letter plaintiff's legal practitioner to defendant's legal

practitioner

02.06.98 Letter plaintiff's legal practitioner to defendant's legal

practitioner

15.07.98. Letter defendant's legal practitioner to plaintiff's legal

practitioner

15.09.98 Letter plaintiff's legal practitioner to Deputy Sheriff

07.11.98 Letter plaintiff's legal practitioner to defendant's legal

practitioner

05.12.98 Letter plaintiff's legal practitioner to defendant's legal

practitioner

PART II

153
Correspondence between legal representative and client

Letters written between J S de Villiers & Son and correspondents Pagdens.

Letters written between Jan S de Villiers & Son and correspondents Olckers & Son, Keetmanshoop.

Correspondence and documents forming part of and reflecting settlement negotiations between the
parties.

Correspondence between Jan S de Villiers & Son and witnesses.

Statements of witnesses.

Reports and statements of employees of plaintiff drawn up after litigation had been contemplated with
the intention to place them before plaintiff's legal advisors for legal advice.

Instructions to counsel.

Memoranda and opinions of counsel

15. MINUTES OF PRE-TRIAL CONFERENCE

In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

MINUTES OF PRE-TRIAL CONFERENCE

MINUTE OF THE PRE-TRIAL CONFERENCE HELD AT ADVOCATES' CHAMBERS, ROOM 1417

PROMENANDEN WEG, ON TUESDAY 2 DECEMBER 2004 AT 16H00 - 17H00

PRESENT: ON BEHALF OF THE PLAINTIFF: ADV D DE BRUIN

MR G VAN DYK

ON BEHALF OF THE DEFENDANT: ADV Z TOERIEN

154
MISS S VAN JAARSVELD

1.

FACTS AGREED UPON:

1.1 That the marriage has broken down irretrievably.

1.2 That the custody of the children born of the marriage are awarded to the plaintiff subject to the
defendant's right of reasonable access, which right of access is defined as follows:

1.2.1 Holidays: The defendant may take the children with him for alternate school holidays
commencing with the school holidays starting on the ... day of .............200_.

1.2.2 Weekends: The defendant may take the children with him for alternate weekend of the month,
without considering whether it is a long weekend or not, from 18h00 Friday to 18h00 Sunday.

1.2.3 Public Holidays: The above arrangements must be adjusted in such manner that the children,
if possible, spend their Christmas and birthdays with the defendant every second year.

1.2.4 The defendant's access to the children is however subject to the requirement that in
exercising such access it is not prejudicial to the children's school, church, social and
religious activities.

1.2.5 General concerning access to children: The defendant may visit the children at all reasonable
times. The defendant must however make arrangements in good time and formally with the
plaintiff before every such visit to determine whether such planned visit will be convenient.

1.3 That the defendant will pay maintenance in respect of the children in the amount of N$200.00
per month per child.

1.4 That beside any maintenance paid by him, the defendant will pay all medical and dental costs
and also medicine or any kind of treatment prescribed by a doctor with regard to the children
until they are self supporting. The defendant must retain his membership of his medical aid
scheme and arrange for such membership to be extended in order to include the children
born of the marriage.

2.

FACTS IN DISPUTE:

2.1 The reason for the breakdown of the marriage:

155
2.1.1 whether the stipulations of the antenuptial contract must be complied with, alternatively
whether there must be forfeiture of benefits of the marriage between the parties.

2.2 liability for the costs of the case.

3.

It is recorded that no party is prejudiced because the other party has not complied with the rules of
court.

4.

Notwithstanding the fact that the parties requested one another to make proposals with the view to
settling all the disputes between the parties, the parties could only reach agreement in the respect of
those issues referred to in paragraph 1.

5.

It is recorded that no issue has been referred for mediation, arbitration or decision by a third party.

6.

It is recorded that the case should not be transferred to another court.

7.

No issues should be decided separately in terms of Rule 33(4).

8.

No admissions other than those set out herein were made by either party.

9.

The plaintiff bears the onus of proof and has the duty to begin.

10.

No agreement regarding the production of proof by way of an affidavit has been entered into.

11.

Each party will be responsible for the copying and other preparation of such party's own documents.

156
 12.

Once the bundle of documents has been finalised and agreed, the parties will endeavour to reach an
agreement in respect of which document or copies of documents will, without further proof, serve as
evidence of what they purport to be.

13.

The parties agree that the costs of the advocates for the attendance of the pre-trial may be taxed as
between party and party.

SIGNED AT WINDHOEK ON .......................................... December 200_

__________________________

PLAINTIFF'S LP

__________________________

DEFENDANT'S LP

16. NOTICE OF SET DOWN - RULE 8 OR 31(2)(a) OR 32

Note: Used For Applications For Summary Judgement, Judgement By Default And Provisional
Sentence

PLEASE PLACE this matter on the roll for ..............................200_ at ................a.m. or as soon
thereafter as Counsel may be heard when application will be made for an order under the following
circumstances:

1.

The summons was served on ..............................201_

2.

The dies induciae expired on .....................201_

3.

The defendant has not given notice of his intention to defend.

OR

157
3.1 The defendant gave notice of his intention to defend the matter on ................201_

3.2 his plea has to be delivered on ........................201_

3.3 notice of bar was delivered on .....................201_ and the defendant has not yet delivered his
plea.

4.

Summary, default or provisional sentence judgement will be requested against

the .................defendant/s for:

a) Payment of the sum of ........................

b) Interest on .....................at a rate of .....................per annum from ...................until date of

payment.

c) Costs of suit

d) Further/ Alternative relief

Dated at ...............etc.

(In the case of applications for summary judgement the documents which have to be annexed in
terms of Rule 32(2), should be indicated in a separate paragraph 4.)

17. NOTICE OF MOTION (EX PARTE)

In the High Court of Namibia

Case No.: .............................

In the matter of between:

Applicant

TAKE NOTICE that application will be made on behalf of the above-named on the ................day
of ......... at 10h00* or as soon thereafter as counsel may be heard for an order in the following terms:

1.

2.

158
3.

And that the affidavit of .....................................annexed hereto will be used in support thereof.

Kindly place the matter on the roll for hearing accordingly.

Dated at ........................................

____________________

APPLICANT'S LP

TO: THE REGISTRAR OF THE ABOVE-NAMED COURT

18. NOTICE OF MOTION (URGENT APPLICATION)

PLEASE TAKE NOTICE that applicant intends to make application on ................day of ......... at
10h00* or as soon thereafter as counsel may be heard for an order in the following terms:

1.

That this application is treated as an urgent application and that the above Honourable Court in
accordance with the provisions of Rule 6(12) dispense with the normal forms and service.

2.

That the respondent is prohibited from ........

NOTE: This time may vary depending on precisely when the application is due to be heard as a
matter of urgency. If it is merely set down for hearing on the unopposed motion roll, then the time at
which motion court begins.

19. "THE LONG FORM" - FORM 2(a)

In the High Court of Namibia

Case No.: .............................

In the matter between:

159
 Applicant

and

Respondent

NOTICE OF MOTION

PLEASE TAKE NOTICE that ("the applicant") intends to make application to this Honourable Court for
an order in the following terms:

1.

2.

3.

4.

TAKE NOTICE FURTHER that the applicant has appointed the applicant's legal practitioners address
as set out hereunder as the address at which will accept notice and service of all process in these
proceedings.

TAKE FURTHER NOTICE that if you had intended opposing this application you are required:

to notify the applicant's attorneys in writing on or before (insert date determined in terms of rule or act)

and within 15 (FIFTEEN) days of the service of the notice of your intention to oppose, to file your
answering affidavit, if any, and further that you are required to appoint in such notification an address
referred to in Rule 6(5)(d)(i) of the rules of this Honourable Court at which you will accept notice and
service of all documents in these proceedings, such address (not being a post office box or poste
restante) to be with in 8(EIGHT) kilometres of the office of the Registrar.

If no such notice of intention to oppose be given, the application will be made to this Honourable Court
on the ___day of ______ 201_ at 09h30, or soon thereafter as counsel may be heard.

AND TAKE NOTICE THAT the affidavit of ......................., annexed hereto, will be used in support of
this application.

Dated at _______________

____________________

160
APPLICANT'S LP

ACUTT & SCOTSWOOD

APPLICANT'S LP

15 Smith Street

(ref.: )

TO: THE REGISTRAR OF THE HIGH COURT

AND TO: RESPONDENT

20. AFFIDAVIT - COMMISSIONER OF OATH

In terms of the regulations governing the administration of an oath or affirmation an oath is

administered by causing the deponent to utter the following words: "I swear that the contents of this
declaration are true, so help me God." And affirmation is administered by causing the deponent to
utter the following words: "I truly affirm that the contents of this declaration are true".

The certification reads as follows:

"Signed and sworn to before me at ...............on this day of ...........201_ after the deponent had
acknowledged to me that he knows and understands the contents of the above affidavit."

OR

"Signed before me at ..................on this day of .........................201_ after the deponent acknowledged
to me that he knows and understands the contents of the above declaration and affirmed that the
contents of the declaration are true."

________________________

COMMISSIONER OF OATHS

FULL NAME

BUSINESS ADDRESS

CAPACITY

AREA

161
The commissioner must state his full names and business address indicate the capacity in which acts
as commissioner and indicate the area for which he was appointed. A legal practitioner acting on
behalf of the applicant cannot take the oath of the applicant or the respondent or any person who
makes a supporting affidavit because he has an interest in the matter.

21. NOTICE OF INTENTION TO OPPOSE APPLICATION

PLEASE TAKE NOTICE that the respondent hereby gives notice of his intention to oppose the above
application.

PLEASE TAKE NOTICE FURTHER that the respondent appoints the address of his legal practitioner
as set out below, where he will accept service of all further documents in the matter.

22. INTERPLEADER

In the High Court of Namibia

Case No.: .............................

In the matter between:

Applicant

and

First Claimant

and

Second Claimant

Interpleader notice

PLEASE TAKE NOTICE that Jan Swart ("Applicant") has today paid into Court in terms of Rule 58 an
amount of N$145 000.00 (one hundred and fourty five thousand Namibian dollars) to which the first
and second claimants are making adverse claims.

The applicant hereby, in terms of Rule 58(3)(b), calls upon the first and second claimants to deliver
particulars of their claims within a period of fifteen days calculated from the date of service of these
papers upon them.

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Applicant furthermore, hereby notifies the first and second claimants that he will apply to court for its
decision as to his liability or the validity of the respective claims at a date to be fixed by the Registrar,
not being less than fifteen day from the date as specified as above for the delivery of claims.

TAKE NOTICE FURTHER that the applicant's attached affidavit will be used in support thereof.

DATED at ........................this day of .............................201_

____________________

APPLICANT'S LP

The application is addressed to the Registrar and to each of the two claimants.

The founding affidavit could read as follows:

Affidavit

I, the undersigned,

JAN SWART

do hereby make oath and say:

I am a retired farmer residing at 2 Beach Road, Swakopmund and am the applicant herein. The facts
set out herein fall within my personal knowledge save where otherwise stated.

The first claimant is Jones Bros, a firm of estate agents practising as such at 2 Dorp Street, Torra
Bay.

The second claimant is Apex Estate (Pty) Ltd, a company with limited liability duly registered as such,
doing business as estate agents at its registered office and principal place of business situated at 9
Main Road, Swakopmund.

Until two months ago I was a farmer on the farm "Drie Pieke" in the Torra Bay district. I had lived on
the farm for many years.

A year ago I decided because of ill-health to dispose of the farm and I dispatched a circular letter to
estate agents operating in the Swakopmund district advising them of my intention and inviting them to
canvas for respective purchasers.

163
As a result of the said circular a number of estate agents called to inspect the farm property and to
obtain further particulars. One such estate agent was Mr S Wendler who introduced himself to me as
being in the employ of the first claimant.

During or about January 2003 the said Wendler again attended the farm, this time accompanied by
one Mr White who appeared to be interested in acquiring the property. After negotiating with him for
some weeks, I eventually agreed to sell him the farm at a price of Nine Hundred Thousand Namibian
Dollars (N$900 000.00).

On 8 June 2003 I attended with Mr White and Mr S Wendler aforesaid at the offices of my legal
representatives for the purpose of concluding a formal deed of sale and during discussions which
immediately preceded the signing thereof Mr Wendler let slip that he had left the employ of Jones
Bros and was presently employed by the second claimant.

In order to protect my interests insofar as possible adverse claims were concerned, it was therefore
simply recorded in the Deed of Sale that I would be liable for the estate agent's commission at the
standard applicable tariff. A copy of the Deed of Sale which was signed by myself and Mr White is
attached marked "A".

The agency commission calculated at the standard tariff amounts to N$145 000.00.

Immediately after the sale was concluded my attorney on my instructions wrote to each of the two
claimants recording that I had sold the farm and inviting them to say whether they had any interest in
the agent's commission. Both responded by saying (annexures "B" and "C") that they claim that
N$145 000.00 in question since Mr Wendler at all relevant times had been in their employ. The
second claimant went further and indicated that unless payment was effected by me within a matter of
ten days, a summons would be issued against me.

I have no means of knowing which of the two claimants is in fact entitled to commission but it seems
clear that only one of them is. I have accordingly arranged to pay the amount of N$145 000.00 into
court in terms of the provisions of Rule 58.

I record that:

13.1 I have no interest in the subject matter in dispute other that for charges and costs;

13.2 I do not collude with any of the claimants; and

13.3 I am willing to deal with or act in regard to the subject matter of the dispute as the court may
direct.

_________________________

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DEPONENT

I certify that the deponent has acknowledged that he/she knows and understands the contents of this
affidavit which was signed and sworn to before me on the………..day of……………. 200_ at
……………, the regulations contained in Government Notice R1258 dated 21 July 1972 having been
complied with

BEFORE ME

_____________________________

COMMISSIONER OF OATHS

FULL NAMES

DESIGNATION

ADDRESS

23. APPLICATION FOR THE APPOINTMENT OF A CURATOR AD LITEM AND A CURATOR

BONIS

In the High Court of Namibia

Case No.: .............................

In the matter between:

Applicant

for the appointment of a curator bonis for (insert the name of the patient)

Notice of Motion

PLEASE TAKE NOTICE that an application will be made on behalf of the above applicant on
the .........day of ............201_ at ..............am or as soon thereafter as counsel may be heard for the
following order:

1.

That Advocate ........, an advocate of the above Honourable Court be appointed as a curator ad litem
with the purpose of assisting the applicant..............in an application before his Honourable Court for

165
an order in terms of which the patient is declared incapable of managing his/her own affairs and
whereby a curator bonis is appointed for him/her.

2.

That leave be granted to the applicant to apply on the same papers, supplemented if necessary, for
an order that:

2.1 the patient is declared incapable of managing his/her own affairs;

2.2 the appointment of ......... an attorney of this Honourable Court and a partner in the firm of ...
of ....... is appointed as curator bonis to the estate of ....... with such powers and duties as the
Master of this Honourable Court may prescribe;

2.3 the said curator bonis in his capacity as such be exempted from furnishing security;

3.

That the costs of this application, including the costs of the application for the appointment of the
curator ad litem be paid out of the estate of ........ and that it be paid on the attorney and client scale.

4.

That the fees of the curator ad litem be paid out of the estate of ............

5.

For such further and/or alternative relief that the Honourable Court deem fit.

6.

AND THAT the affidavits of the applicant annexed hereto, together with the supporting affidavits
annexed thereto and the attached affidavit by Dr ...................and Dr ....................marked annexures X
and Y will be used in support of this application.

PLEASE place the matter on the roll for hearing accordingly.

DATED at ...............this ........................day if ...........................201_

per:

Applicant's LP

(address)

166
TO: The Registrar of the High Court of Namibia

Affidavit

I, the undersigned,

MRS Y

hereby declare under oath as follows:

1.

I am the above-named applicant and the facts set out hereunder are within my personal knowledge,
unless otherwise indicated.

2.

I was born on . ................... and .......................("the patient") my sister, was born on ........... . . The
patient and I are both staying on the farm known as ................... in the district of ..............

3.

I humbly submit that I have the necessary locus standi to bring this application because of the fact
that the patient is my sister.

4.

The above Honourable Court has jurisdiction in this matter because of the fact that the patient is
permanently residing within the jurisdiction of the above Honourable Court and because all her assets
are situated within the jurisdiction of the above Honourable Court.

5.

The above-mentioned farm is our family farm. The patient and I and our deceased sister inherited the
farm in equal shares and our deceased sister's share is already partly divided from our share. We are
co-owners of the said farm and we are primarily engaged in wine farming with a private wine cellar as
equal partners. With the exception of the above, the patient only possesses a private motor vehicle,
certain personal assets and an amount of cash money.

6. - 16.

(Supply particulars of the family of the patient and the fact that they support the application. Refer to
their attached affidavits.)

167
 17.

The patient is in good physical health to the best of my knowledge. She earlier on communicated fairly
well but since approximately .......... she started to withdraw from the community and from the outside
world.

18.

The patient's condition has deteriorated to such an extent that she has since been certified in terms of
the provisions of section 9 of the Mental Health Act of 1973.

19.

The patient has since then also been treated on a permanent basis. Her social interaction improved
with medication but in my respectful submission she is not yet able to show the necessary insight and
to look after her interests as a partner in the farming venture and to conduct normal business
transactions.

20.

The patient does not display any interest in our farming venture and although she in the beginning
took park to a certain extent in her farming operations, she has now withdrawn therefrom to a large
extent. She is definitely not involved with either the management or the financial aspects thereof any
more. I find it difficult to conduct our partnership's business without assistance.

21.

Therefore I am of the opinion that it is necessary that a curator bonis be appointed for her. Such
appointment is recommended by Drs .............. and ............... ,who are a registered psychiatrist and a
registered doctor and clinical assistant in psychiatry. Copies of their Sworn Affidavits in this regard are
annexed hereto and marked Annexures respectively.

22.

Mr ...., the proposed curator bonis is the senior partner in the partnership ........ at ....... . He is a very
senior attorney and has a sound knowledge of the business or our partnership. The patient submit
that Mr ...... is the best person to be appointed as a curator bonis. I have already discussed the
situation with Mr ....... and he indicated to me that he would be willing and able to act as a curator
bonis if he should be appointed as such. His consent to do so is annexed hereto as annexure .......

23.

168
The proposed curator ad litem, advocate ...... indicated that he is willing to act as curator ad litem. In
this regard I refer to a consent to do so signed by him which is attached as annexure ....

24.

Therefore I humbly request the above Honourable Court to grant the relief set out in the Notice of
Motion.

______________

I certify etc

Before me

_____________________

COMMISSIONER OF OATHS

24. NOTICE OF MOTION

In the High Court of Namibia.

Case No.: .............................

In the matter between:

Applicant

and

THE MINISTER OF HOME AFFAIRS First Respondent

THE DIRECTOR GENERAL: DEPARTMENT HOME AFFAIRS Second Respondent

THE CHAIRPERSON: IMMIGRANTS SELECTION BOARD Third Respondent

Notice of Motion

PLEASE TAKE NOTICE that the above-named Applicant intends to make application to this
Honourable Court on .............day of ....................201_ at 10h00 or soon thereafter as counsel may be
heard for an order:

1.

169
Reviewing and setting aside the decision of the Director-General Department of Home Affairs taken
on or about .................201_ that the applicant's permit for permanent residence has lapsed and that
all documents granting him permanent residence are withdrawn

2.

Directing the respondents to disclose to the applicant the reasons for the decision referred to in prayer
1 supra;

3.

Directing the respondents to disclose to the applicant all the information available to the respondents
as referred to in the letter of ......... 201_ addressed to Messrs.... by the Department of Home Affairs
concerning the permanent residence: "Mr XXX";

4.

Directing the respondents to take all necessary steps to ensure that the Immigrants Selection Board
and/or the Director-General, Department of Home Affairs, reconsider their decision that the permit for
permanent residence of Applicant lapsed and that this reconsideration be done in a lawful and
procedurally fair manner;

5.

Directing those of the respondents who may oppose this application to pay the costs hereof, jointly
and severally;

6.

Granting the applicant further or alternative relief.

BE PLEASED TO TAKE FURTHER NOTICE that the respondents are, in terms of Rule 53 of the
Uniform Rules of this Honourable Court, hereby called upon to show cause why the decision referred
to in prayer 1 above should not be reviewed and set aside.

BE PLEASED TO TAKE FURTHER NOTICE that the first, second and third respondents are hereby
called upon to despatch by 16h00 on the ...........................day of ..................201, after receipt of this
Notice of Motion, to the Registrar of the above Honourable Court the record of all and any
proceedings, correspondence, reports, memoranda and/or other documents on the basis of which are
relevant tot he decision referred to in prayer 1 supra, together with such reasons as they are by law
required or desire to give or make and to notify the applicant's attorneys that they have done so.

170
BE PLEASED TO TAKE FURTHER NOTICE that the accompanying affidavit of the applicant and the
annexures thereto will be used in support of this application.

BE PLEASED TO TAKE FURTHER NOTICE that the applicant has appointed ………………. at
…………….., Windhoek, at which he will accept notice and service of all processes in these
proceedings.

BE PLEASED TO TAKE FURTHER NOTICE that if you intend opposing this application, you are
required:

a) to notify applicant's attorneys in writing on or before ……...........,; and

b) within 15 (FIFTEEN) days after you have so given notice of your intention to oppose the
application, to file your answering affidavits, if any; and

Further that you are required to appoint in such notification an address referred to in Rule 6(5)(b) at
which you will accept notice and service of all documents in these proceedings.

If no such notice of intention to oppose be given, the application will be made on the day
of ...........201_ at .....

DATED AT WINDHOEK THIS ........DAY OF ........201_

__________________________

LP FOR APPLICANT

REF.:

TO : THE REGISTRAR OF THE HIGH COURT

WINDHOEK

AND TO : THE MINISTER OF HOME AFFAIRS

FIRST RESPONDENT

C/O STATE ADVOCATE

FEDSURE FORUM

WINDHOEK STREET

WINDHOEK

171
_________________________

copy hereof received on the ........day of ......201_

AND TO: THE DIRECTOR-GENERAL: DEPARTMENT OF HOME AFFAIRS

SECOND RESPONDENT

C/O STATE ADVOCATE

FEDSURE FORUM

WINDHOEK STREET

WINDHOEK

_________________________

copy hereof received on the ........day of ......200_

AND TO: THE CHAIR PERSON: IMMIGRATION

SELECTION BOARD

THIRD RESPONDENT

C/O STATE ADVOCATE

FEDSURE FORUM

WINDHOEK STREET

WINDHOEK

_________________________

copy hereof received on the ........day of ......200_

25. EXAMPLE OF AN INDEX OF AN APPEAL MATTER

In the High Court of Namibia

Case No.: .............................

172
In the matter between:

Appellant

and

Respondent

Index in terms of rules and practice directions of court

NO DOCUMENT PAGE

1 Summons 1-7

2 Defendant's Plea 8-15

3 Pre-trial Minutes 16-30

4 Plaintiff's request for further particulars for trial 31-35

5 Defendant's Reply to Plaintiff 36-40

Request for further particulars for trial

6 Defendant's request for further particulars for trial 41-45

7 Plaintiff's Reply to Defendant's request for further 46-50

particulars for trial

8 Record of Proceedings at Trial 51-251

9 Judgement by his Lordship 252-260

Judge X on

10 Plaintiff's application for leave to appeal 261-262

11 Plaintiff's Power of Attorney 263-264

12 Proof of Security 265-266

26. APPLICATION FOR JUDGEMENT BY DEFAULT

173
In the High Court of Namibia

Case No.: .............................

In the matter between:

Plaintiff

and

Defendant

Application for judgement by default rule 31(5)

TO: THE REGISTRAR

HIGH COURT

WINDHOEK

SIR,

The plaintiff hereby applies that -

a) the defendant having been duly served on .....................;

b) the time for entering appearance to defend having expired on ...........;

c) the defendant not having entered an appearance to defend,

judgement by default be given in the plaintiff's favour against the defendant as claimed in the
summons, and in accordance with the attached draft, as follows:

1.

Payment of N$….................;

2.

Interest thereon at the rate of .......% per annum with effect from ......... to date of payment;

3.

174
Costs of suit.

4.

Alternative relief

THE ORIGINAL SUMMONS AND SHERIFF'S RETURN ARE ATTACHED

DATED AT WINDHOEK this .........day of ...........2004

____________________

PLAINTIFF'S LP

ACUTT & SCOTSWOOD

Plaintiff's Legal Practitioners

15 Smith Street

WINDHOEK

(Ref.: )

27. JUDGEMENT BY DEFAULT

In the High Court of Namibia

Case No.: …..........................

In the matter between:

Plaintiff

and

Defendant

application for judgement by default rule 31(5)

Having read the summons and other documents filed of record, judgement by default is granted in
favour of the plaintiff against the defendant for:

1.

175
Payment of N$....................;

2.

Interest thereon at the rate of .......% per annum with effect from ......... to date of payment;

3.

Costs of suit.

DATED AT WINDHOEK this .........day of ...........201_

____________________

REGISTRAR

HIGH COURT

WINDHOEK

C. REFERENCE SOURCES

TEXTBOOKS

TITLE AUTHORS

Technique in Litigation Morris E

Amler's Precedents of Pleadings Harms L T C

S A Law of Evidence Hoffmann L H en Zeffertt D

Beck's Theory and Principles of Isaacs I

Pleadings in Civil Actions

Herbstein & Van Winsen the Civil Van Winsen et al

Practice of the Supreme Court of
SA (4th Edition)

Law of Attorney's Costs and the Jacobs M en Ehlers N E J

Taxation Thereof

176
Civil Procedure in the Supreme Harms L T C
Court

Bewysreg Schmidt C W H

Superior Court Practice Erasmus, HJ, Breitenbach A & van

Loggerenberg D E

177