Case Summaries for the Appeals on the Third Term Roll of 2017

SUPREME COURT THIRD TERM ROLL

2 OCTOBER 2017 – 13 NOVEMBER 2017

B COURT

CASE SUMMARIES FOR THE APPEALS ON THE THIRD TERM ROLL OF 2017

CASE INFORMATION:

SUPREME COURT CASE NO.: SA 53 / 2015

CASE PARTICULARS: STATE v DIAS IMMANUEL FREITAS AND ANOTHER

CASE SUMMARY

Issues

1. Whether the High Court misdirected itself / erred in law and fact by imposing a sentence of 6 years imprisonment on the first respondent.
2. Whether the High Court misdirected itself / erred in law and fact by acquitting the second respondent in respect of counts 1 to 137.

Facts

Mr Dias, the first respondent, was charged with various counts of fraud, and alternatively with counts of theft, theft of general deficiency and theft by false pretenses. The first respondent was convicted of the alternative count to count 139 and was sentenced to six years imprisonment of which half was suspended for a period of five years on certain conditions. Mr Alves, the second respondent, was charged and convicted of theft of the same alternative count of 139. Both respondents were acquitted on counts 1 to 137. The first respondent applied for leave to appeal against the sentence of six years imprisonment, while the appellant applied for leave to appeal against the acquittal of both respondents.

The court a quo held, in accordance with the precedent set at paragraph 1 in S v Nowaseb 2007 (2) NR 640 that the applicant must satisfy the court that he/she has a reasonable prospect of success on appeal in order to be granted leave to appeal to a superior court. Further, it held that it is the duty of courts to impose sentences, a matter pre-eminently within their discretion and which must not be abdicated in favour of anyone.

With regard to the first respondent’s application for leave to appeal, the High Court ruled that the respondents failed to establish prospects of success on appeal. The court was of the view that the sentence was appropriate because it accounts for the interests of the first respondent, the crime and society. Moreover, the court a quo found that the sentence imposed on Mr Dias was not unduly harsh to induce a sense of shock. Thus, Mr Dias’ application for leave to appeal the sentence was dismissed.

With regard to the appellant’s application for leave to appeal, the court a quo noted that the appellant’s witness, Mr Hauwanga, who initiated the charges against the respondents, submitted contradictory evidence during trial and was dishonest with the court. Without the evidence of Mr Hauwanga, the court a quo held that the State was unable to prove that there was a reasonable prospect of success on appeal. Thus, the State’s application for leave to appeal the acquittal of both respondents was dismissed.

The appellant successfully petitioned the Chief Justice to hear the matter against the acquittal of the respondents by the High Court on several counts of fraud (counts 1 – 137) and the alternative charges thereto.

Judgment sought to be reviewed:

S v Dias (CC 14/2011) [2014] NAHCMD 323 (31 October 2014); Dias vs The State (CC 14-2011) [2015] NAHCMD 142 (17 June 2015) (this was the application for leave to appeal case in this matter)

Parties’ Counsel:

Appellant:

Prosecutor-General’ Office

Respondent:

Murorua & Associates for the first respondent and Mbaeva & Associates for the second respondent

Coram:

DAMASEB DCJ, MAINGA JA et HOFF JA

Hearing date: 2 October 2017 at 10h00

Location:B-Court

CASE INFORMATION:

SUPREME COURT CASE NO.: SA 30/ 2008

CASE PARTICULARS: AFRIKANER THOMAS v THE STATE

CASE SUMMARY

Issue

Whether the court a quo misdirected itself in deciding that the State proved a case against the appellant beyond reasonable doubt.

Facts

The appellant notes an appeal against his conviction and sentence on five counts of rape and against the 27 years imprisonment term. Leave to appeal against the conviction and sentence was granted on 12 November 2007. The Court a quo was of the opinion that another court could come to a different conclusion because of various irregularities that tainted the criminal proceedings in the court a quo. Accordingly, the analysis of the evidence of the appellant as a single witness and some of the complainants was not dealt with under the cautionary rule of evidence especially because:

a) there was no corroboration between the evidence of the complainants;

b) that the evidence of some complainants was not dealt with;

c) that the evidence of those complainants who testified were dealt with as a group;

d) that the court a quo placed more weight on the evidence of some of the complainants.

The court a quo further pointed out that the fact that the age of one of the complainants was not proven, the appeal court may acquit him of the offence of having intercourse with a child under the age of 16.

Judgment being reviewed / appealed against:

The State v Thomas Afrikaner (CC 77/2000)[2000] NAHC (22 November 2000)

Parties’ Counsel:

Appellant:

Mungaviri Attorneys

Respondent:

Office of the Prosecutor-General

Coram:

MAINGA JA, HOFF JA et FRANK AJA

Hearing date:3 October 2017 at 10h00

Location:B-Court

CASE INFORMATION

SUPREME COURT CASE NO.: SA 21 / 2016

CASE PARTICULARS:COUNCIL OF ITIRELENG VILLAGE COMMUNITY v FELIX MADI

CASE SUMMARY______

Issues

1. Whether the court a quo misdirected itself in holding that the appellant’s rights in

applying for a declaratory order or interdict was as a matter of fact a debt as included in s 10 of the Prescription Act?

1. Whether the court a quo misdirected itself in holding that the appellant did not have the locus standi?

Facts

During 1983 a constitution was drafted with the aim to organize and regulate the administration and affairs of the Tswana traditional community residing on a piece of land situated at Epukiro. When the Traditional Authorities Act, 2000 came into operation the community was recognized as a traditional community. Its leaders were appointed in terms of the Act and served as members of the Itireleng village community council. During 2005 allegations of theft were made against the members of the council (“appellants”) and as a result of those allegation the members including the chairperson were suspended.

Investigations were conducted and an interim committee was appointed pending the outcome of the investigation. After the investigation was completed in 2008, the suspended members of the council were reinstated, however, the members of the interim committee did not vacate their positions. The community members objected to the committee’s reinstatement. A new council was elected on 4 July 2010, and after the expiry of three years a further new council (“respondents”) was elected on 11 August 2013. The appellants were seeking for number of declarators and interdicts all inter-related, the effect of which were that the appellants were still the duly elected members of the council and that the respondents be interdicted not to act either as elected members and/or as chairperson, and/or headman The respondents raised two points in limine firstly, that the applicants claims for declaratory order and an interdict prescribed and, secondly, that the applicants did not have locus standi. The court a quo held that a declaratory order and an interdict were debts and therefore, the claims of the applicants prescribed.

With regards to the second point in limine the court a quo held that the applicants did not have locus standi. The court a quo held that the council represented the association and as an agent (“the council”) it cannot institute legal proceedings in its own name the legal proceedings should have been instituted in the name of the association. The court a quo in addition, held that the purported resolution of the council passed on 20 November 2011 comprising of the individuals listed in annexure ABM1 upon which reliance is placed by the appellants for authority to bring this application is not a valid resolution for the reason that such individuals were no longer elected members of the council at the time the purported resolution was adopted.

The Appeal is noted against the whole judgment of the court a quo.

Judgment being reviewed / appealed against

The Council of Itireleng Village Community & Another v Felix Madi & 27 Others (A 201/2015) [2016] NAHCMD 114 (19 April 2016)

Parties’ Counsel:______

Appellants:

Government Attorney

Respondent

Du Pisani Legal Practitioners

Coram

MAINGA JA, SMUTS JA et FRANK AJA

Hearing date:5 October 2017 at 10h00

Location:B-Court

CASE INFORMATION:

SUPREME COURT CASE NO.: SA 56 / 2016

CASE PARTICULARS: CONTINENTAL OUTDOOR MEDIA (PTY) LTD v THE MUNICIPAL COUNCIL FOR THE CITY OF WINDHOEK

CASE SUMMARY

Issue

Whether the appellant had locus standi to bring the application before the court a quo.

Facts

In July 2012 the first respondent called for tenders to erect outdoor advertising structures on its land. One component of the tender invited proposals for the erection of billboards on various proposed sites of Council. The second appellant and other tenderers submitted their bids for the erection of the billboards on the proposed sites. On 21 November 2012 the first respondent awarded the tender to Primedia Outdoor Namibia (Pty) Ltd (second respondent) to erect billboards on erf 8085 Katutura, erf 2621 Avis and one at the Ausspannplatz circle while erf 9129 Katutura was awarded to Media Solutions. The second appellant was unsuccessful and was duly informed and reasons were given to it on 19 November 2012.

The second appellant (Eshisha Media Networks CC) brought an application to review and set aside the decisions taken by the first respondent (the Municipal Council for the City of Windhoek) to approve the upgrading of prime lights to LED billboards. In this regard, the second appellant sought the relief to order the first respondent to give to the second and fourth respondent’s notices to remove the five billboards because, according to the second appellant, they were erected in conflict with the applicable regulations and the policy for outdoor advertising.

During court proceedings, the issue arose as to whether the second appellant had locus standi to bring such an application as opposed to the first appellant who was directly involved in the matter. The Court found that the second appellant does not have locus standi and dismissed the application with costs because the second appellant failed to persuade the Court that it has direct or substantial interest in the outcome of the case.

Appeal lies against the whole judgment and order.

Judgment being reviewed/ appealed against:

Continental Outdoor Media (Pty) Ltd v The Municipal Council for the City of Windhoek (A 421/2013) [2016) NAHCMD 45 (29 February 2016)

Parties’ counsel

Appellant:

Engling Stritter & Partners

Respondent:

Nixon Marcus Public Law Office

Coram:

SHIVUTE CJ, SMUTS JA et HOFF JA

Hearing date: 9 October 2017 at 10h00

Location: B-Court

CASE INFORMATION:

SUPREME COURT CASE NO.: SA 63/2015

CASE PARTICULARS: TJAMUAHA JORAM JANINGAPARA & ANOTHER v MASTER OF HIGH COURT & ANOTHER

CASE SUMMARY

Issues

(a) Whether the court a quo erred by ruling that the second respondent's claim is vindicatory and as such, prescribes after 30 years.

(b) Whether the court a quo erred in its ruling that the redistribution agreement signed by the second respondent is of no force and effect.

(c) Whether the court a quo erred by setting aside the first and final liquidation and distribution account in the estate of the late Kaimbire Tjamuaha.

(d) Whether the court a quo erred by setting aside the supplementary first and final liquidation and distribution account in the estate of the late Kaimbire Tjamuaha.

(e) Whether the court a quo erred in its ruling directing the Master of the High Court to appoint an executor with the power to administer, liquidate and distribute the deceased's half share in the joint estate as per his will.

(f) Whether the court a quo erred in its ruling ordering the Master of the High Court to further direct the executor so appointed to transfer one half share in the aforesaid joint estate to the second respondent.

Facts

This appeal concerns an application made by the appellants (applicants in the court a quo) seeking an order to be appointed as administrators of the family trust. The second respondent opposed the application and issued a counter-application seeking several orders, inter alia, declaring a redistribution agreement signed by her of no force and effect, for her appointment as executor to administer, liquidate and distribute the deceased's share in their joint estate according to the deceased's will, and for her appointment as administrator of the deceased’s estate in the family trust created by the deceased.

The court a quo was not persuaded by submissions of the appellants and dismissed the main application. As the court's order indicates, the learned acting judge granted the counter-application with costs. This appeal is directed at some part of that judgment and related orders issued by that court.

Judgment being reviewed / appealed against:

Tjamuaha and another v Master of the High Court (A 314-2011) [2015] NAHCMD 245 (12 October 2015)

Parties’ Counsel:

Appellant:

Tjitemisa & Associates

Second Respondent:

Ellis Shilengundwa Inc.

Coram:

DAMASEB DCJ, SMUTS JA et FRANK AJA

Hearing date:11 October 2017 at 10h00

Location:B-Court

CASE INFORMATION

SUPREME COURT CASE NO: SA 42 / 2016

CASE PARTICULARS:EGERER G. W AND 2 OTHERS v EXECUTRUST (PTY) LTD AND 6 OTHERS

CASE SUMMARY______

Issues

1. Whether the court a quo misdirected itself in finding that the nominations and appointments of the 1-3rd respondents as trustees of the Egerer Family Trust was valid?

1. Whether the court a quo misdirected itself in finding that clauses 2.9, 2.9.1, 2.9.2 and 2.9.3 of the Will of the late Wolfgang Albrecht Emil Egerer dated 2 December 2014, were valid and enforceable?

1. Whether the court a quo misdirected itself in ordering that costs should be paid from the estate.

Facts

During September 2015 the three appellants, namely Lucia Egerer (the spouse of the late Egerer), and Manfred Egerer, (the son of the appellant and testator) launched an application in the court a quo out in terms of which they sought an order declaring:

1. that the nominations and appointments of the first respondent (Executrust Pty), the second respondent (Alwyn Petrus Van Straten) and the third respondent (Sarah Elizabeth Stahl) as trustees of the Egerer Family Trust are void;
2. secondly, that Lucia Egerer (the first appellant) and the fifth respondent (Liezel Louwrens) were the only trustees of the Egerer Family Trust and;
3. that clauses 2.9, 2.9.1, 2.9.2 and 2.9.3 of the Will of the Late Wolfgang Albrecht Emil Egerer dated 2 December 2014, and the “special bequests” therein contained, were unenforceable, invalid, and of no force and effect.

The court a quo, held that the Trust deed empowered the Late Egerer with the authority to appoint additional trustees and the court a quo thus, found that the appointments of the additional trustees was not void. With regards to the validity of clauses 2.9, 2.9.1, 2.9.2 and 2.9.3 of the will the court a quo held that the clauses were enforceable and valid because the clauses put a qualification on the inheritance of the Trust which amounted to a valid and legal modus. The court a quo came to the conclusion that the Late Egerer’s clear intention was to benefit his faithful employees and he has named those employees. The court a quo also made a costs order against the estate.

The Appeal is noted against the whole judgment of the court a quo, including costs. A cross appeal has been noted against the costs order made against the estate.

Judgement being reviewed / appealed against:

Egerer v Executrust (Pty) Ltd (A248-2015) [2016] NAHCMD 221 (22 July 2016)

Parties’ counsel

Appellants:

ENSAfrica-Namibia

Respondent

Van Der Merwe-Greef Andima-Inc