1

REPORTABLE

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: I 253/2014

In the matter between:

ONDANGWA TOWN COUNCILAPPLICANT

and

ELIAS ANDREAS1ST RESPONDENT

NAMIBIA BUSES AND TAXI ASSOCIATION2ND RESPONDENT

Neutral citation: Ondangwa Town Council v Andreas(I 253-2014) [2015] NAHCNLD 38 (04 August 2015)

Coram:CHEDA J

Heard:06 July 2015

Delivered:04August 2015

Flynote: An applicant who in his founding affidavit refers to certain facts outside his personal knowledge must file a supporting affidavit as such evidence is hearsay. A point in limine objecting to such evidence is upheld.

Summary:Applicant sued respondent for certain relief. Before the matter was heard, it applied for my recusal and filed a founding affidavit. In the said affidavit, the deponent referred to certain facts which were not personally known to it, but, by its Legal Practitioner of record. The Legal Practitioner failed to file a supporting affidavit verifying the said contents in the affidavit. Legal Practitioner admitted his error. No good grounds for such error were laid before the court. Evidence was, therefore, hearsay and as such was inadmissible. As it is, there was no application. Application was dismissed.

ORDER

  1. Application is dismissed with costs.

JUDGMENT

CHEDA J:

[1]This is an application for recusal filed on date 06 July 2015 when the main action was due to be heard. Ms. Horn for respondent raised a point in limine being that applicant’s Chief Executive Officer refers to legal advise that was given by its Legal Practitioner of record as he himself is not a qualified Legal Practitioner, but,a Chief Executive Officer of the Town Council of Ondangwa.

[2]It is, therefore, her argument that legal principles and case law being referred to by applicant amount to hearsay evidence as there is no confirmatory or supporting affidavit(s) attached to his founding affidavit in the application for recusal.

[3]Mr. Shakumu for applicant submitted that he takes cognisance of that anomaly and offered to take a witness stand in order to give evidence in confirmation of the contents of applicants’ founding affidavit filed of record. In fact, in making that request he stated the following:

“The deponent thereto acknowledges the fact,he takes ownership of the affidavit, he says this under the appeal that,(sic)what I furnished is sufficient evidence to back up and justify my application. So meaning, (sic) yes he owns the affidavit, he takes ownership of the affidavit as to what is contained in there, but my Lord it is trite law and I take cognisance of my colleague’s argument that, yes had I just confirmed that would have cured the defects, that is the argument. To that end My Lord it is law that if an affidavit was not confirmed and the party who should have confirmed is in Court, he or she can still take an oath and testify that indeed what is referred to me in the affidavit is a true reflection of what I said. So that end My Lord I make the following application, that I then take the stand and testify under oath that is referred to in the founding affidavit with regard to legal representation is indeed from me. So if the Court is so enquired (sic) My Lord, I beg for leave to take my oath and testify in that regard and that would cure the defects, if any. That is now if the Court is satisfied that indeed there is any evidence that needs to be confirmed.”

[4]In order to deal with this matter, it is appropriate to delve into the basics. What is an application? In the common legal parlance, an application can either be written or oral. If it is written, it must be on a notice of motion and be accompanied by a founding affidavit and where necessary supporting affidavit(s). The said affidavits should clearly state the fact upon which the applicant relies for relief. Hearsay evidence whether oral or in writing, the probative value of which depends upon the credibility of any person other than the person giving such evidence must be verified by a supporting affidavit(s).

[5]An affidavit as envisaged in our law is that it must contain essential elements which are basically;

a)who the applicant is;

b)the right to apply;

c)the applicant’s interest in the matter;

d)that the court has jurisdiction in the matter; and

e)ground on which relief is sought.

On the other hand an affidavit must not contain inadmissible hearsay evidence. Where the deponent’s evidence refers to hearsay, such evidence should be verified by a person who has personal knowledge of the said facts. Such has been the legal position and so is to date.

[6]In casu applicant deposed to an affidavit making certain averments which have not been verified or confirmed by its Legal Practitioner. Mr. Shakumu acknowledges his omission and/or failure to comply with the law. It is for that reason that he offered to leave the bar and give evidence in order to confirm that position. When I asked him whether he was aware that he will be subject to cross-examination and at that moment the respondent would be without a representative. His response was that he was aware of the consequences of such a procedure.

[7]I do not understand why Mr. Shakumu would opt to put himself in such an invidious position. Our courts will only relax the strict adherence to the admissibility of hearsay evidence, where the deponent swears to an affidavit of the information and belief and stating the source of such information. It cannot be by mere reference. It would be absurd for a lawyer to leave the bar, give evidence and come back to the bar leaving the respondent without representation. The proper procedure would have been for him to instruct another legal practitionerto handle this matter. The court would not have allowed such theatrical antics by a lawyer.

[8]It admits of no doubt that Mr. Shakumu did not accord this matter due diligence expected of a Legal Practitioner and for him to try to cure his ineptness and tardiness by crafting novel rules of procedure purely for the purposes of curing his own mistakes boggles the mind. The admission by Mr. Shakumu that he should have filed his own affidavit is, in my view, a confirmation of Ms. Horn’s argument that this should not be allowed.

[9]These courts’ stance with regards to the inadmissibility of hearsay evidence has been in our jurisdiction for a long-time, see Pauntas’ Trustee v Lahanas 1924 WLD 67; Levin v Saidman 1930 WLD 25 and Cash Wholesalers Ltd v Cash Meat Wholesalers 1933 (1) PH A 24 (D). It is, therefore, a requirement to file affidavits of persons other than the applicant who can depose to the facts in these circumstances.

In the matter of Vulcan Rubber Works (Pty) LTD v SA Railways & Harbours 1958 (3) SA 285 (A) it was held that hearsay unless it is brought within one of the recognised exceptions, is not evidence at all.

[10]The same principle was applied with equal force in Mahamat v First National Bank of Namibia Ltd 1995 NR 199 (HC) and Namibia Estate Agents Board v Like and Another No 2015 (1) NR 112 LC.

[11]In that case the court explained that this was a general rule and like all general rules, there is an exception and chief amongst which is that of necessity commonly referred to as ‘the Necessity Principle’. The court reasoned that the necessity principle was important, the said necessity must be and I add, relevant and in the interest of justice, thereby, justifying the relaxation of the admission of hearsay evidence and hence persuade the courtin the exercise of its discretion to its favour..

[12]In my view, in order for a party to earn the court’s favour by allowing hearsay evidence, the party seeking it must show that it is necessary to do so and that failure to do so will result in injustice. This has not been suggested nor has it been shown by applicant.

[13]It is important to state, herein, that the court has an inherent discretion to allow hearsay evidence in interlocutory matters on condition that the matter is urgent or there exist other special circumstances that may justify the court exercising the said discretion to its favour. This has not been the case in casu.

[14]In the absence of such circumstances the point raised in limine finds favour with this court.

[15]In light of the fact that this is an interlocutory matter, I find that applicant cannot and should not pass this hurdle. In light of the above there is no application before the court to consider and accordingly the application is dismissed as the point in limine is upheld.

[16]In the result this is the order:

  1. The application is dismissed with costs.

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M Cheda

Judge

APPEARANCES

APPLICANT:S. Shakumu

Of Shakumu & Associates Inc., Windhoek

1ST RESPONDENT:W. Horn

Of the W Horn Attorneys, Oshakati