CIVIL PROCEDURE & PRACTICE
HIGH & SUPREME COURTS OF NAMIBIA
ADV D OBBES
1
Lecturer Information
Adv D Obbes
deon@[Link]
0812602267
4th Floor, Namlex Chambers
2
Assignment
QUESTION 1
Discuss, with reference to the applicable rules of the High Court and
relevant case law, the principles governing:
The issue of a dispute of fact in motion proceedings.
Whether oral evidence is permitted in motion proceedings and, if
so, under which circumstances.
3
Assignment
QUESTION 2
Alternative dispute resolution (ADR) is an important concept
introduced into the new Rules of the High Court.
Discuss ADR in the context of the new Rules of the High Court
and provide a brief overview of the process envisaged in the said
rules pertaining to ADR.
4
Assignment
QUESTION 3
Discuss the applicable principles governing the initiation of an
urgent application in the High Court of Namibia.
5
Assignment guidelines
Due date: 09 May 2025, 15h00
Limit: 2 typed A4 pages per question (brevity oils the wheels of
justice)
Format: Rule 131
No late assignments
Name and student number on cover page
6
Assignment delivery address
Suite 5, 2nd Floor
333 Independence Avenue
Namlex Chambers
PA to Adv Campbell
Harcopies only - typed
7
Admin queries
Directly to Dr Kenneth Mundia
kmundia@[Link]
8
Prescribed texts
Court-Managed Civil Procedure of the High Court of Namibia: Law,
Procedure and Practice, PT Damaseb (Juta) (‘HC text’)
The Supreme Court of Namibia: Law, Procedure and Practice, PT
Damaseb (Juta) (‘SC text’)
9
Course Outline
Session:
Selected matters
Chapters 1, 12 (HC text) - self study
Briefing Counsel
Cause of Action
Jurisdiction
Locus Standi
10
Course Outline
Session: Action Proceedings
Contents & Service of Summons
Case Planning
Joinder
Default Judgment
Summary Judgment
11
Course Outline
Session:
Exceptions
Irregular Proceedings
The Plea
Claim in Reconvention (counterclaim)
Replication
12
Course Outline
Session:
Third Party Procedure
Close of Pleadings
Pre-trial Procedures
Case Management
13
Course Outline
Session:
Consolidation
Amendments
Security for Costs
Motion Proceedings
Rule Nisi
Ex Parte Applications
14
Course Outline
Session:
Urgent Applications
The Founding Affidavit
The Plascon-Evans Rule
Divorce Proceedings
15
Course Outline
Session:
Appeals – To The High Court
Appeals – From The High Court
Reviews
Execution
Assignment & Exams
16
Court Ethics
Morris, E, Technique in Litigation, Juta
Marnewick, Litigation Skills for South African Lawyers, LexisNexis
Dress code – Inside Court and in Chambers
How to address a Judge
How to address a colleague
General court decorum
17
Court Ethics
Respect your client, but first, respect the law.
When you say “As it pleases the Court my Lord”, you should sound
as if you mean it.
Show respect in your dealings with colleagues and the Court.
18
A Practitioner’s Mandate
Meaning and scope of “Mandate”
Particulars of Litigant – Rule 6 return
Filed in Court’s file (copy on your file)
Power of Attorney? (P 96, HC text)
19
A Practitioner’s Mandate
Practitioners are required to act in accordance with their mandate
When would this rule not apply?
a) When executing your mandate will cause you to break the law /
breach your ethical code
b) When executing your mandate will cause your client to break the
law
20
Briefing Counsel
Briefing counsel does not mean that the case is now counsel’s
responsibility!
Briefs should always be neat and comprehensive, accompanied by a
memorandum
Include all (relevant) pleadings and other documents – in the correct
sequence, and in chronological order
21
Briefing Counsel
Include a comprehensive memorandum setting out the background
facts and clearly indicating the instructions to counsel
Never send a brief without first discussing it with counsel
Include relevant case law or other research
22
Briefing Counsel
Remain involved in the matter after having briefed counsel
You are the link between client and counsel
Your assistance will always be appreciated
Always be present during consultations and court appearances
23
Cause of Action
Harms, Amler’s Precedents of Pleadings, LexisNexis
No exhaustive list of causes of action can be provided
Very important to investigate the cause of action before you proceed
with a matter.
Establish whether a letter of demand may be required
24
Cause of Action
Once you have established what your cause of action is, you must
decide which course to follow
Establish the necessary allegations to sustain a cause of action and
ensure that you make all those allegations. Failure to do so may
result in an exception (or absolution)
25
Jurisdiction
High Court differs from the Magistrate’s Court i.r.o. jurisdiction
Meaning of “Inherent Jurisdiction” of the High Court (p 24, HC text)
26
Jurisdiction
Doctrine of effectiveness
Doctrine of submission
Actor Sequitur Forum Rei
Contractual claims
Delict
Marriage
27
Jurisdiction
Founding jurisdiction
Application ad fundandam jurisdictionem
Confirming jurisdiction
Application ad confirmandam jurisdictionem
Know the principles relating to these applications
28
Locus Standi
Meaning of “locus standi”
How do you establish whether your client has locus standi?
Always ask yourself: Does my client have an interest in this matter?
Then ask: Is this interest linked to a legal basis?
29
Locus Standi
If answer to both questions is yes, (normally) your client will have the
necessary locus standi
Locus standi is based on both law and fact
Can be raised by way of exception or special plea
Very important to establish before you commence action/motion
proceedings
30
Action Proceedings
Difference between action and motion proceedings
When to use action procedure
Sequence of action proceedings
What are parties called in action proceedings?
When should action proceedings not be used?
Room Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) SA
1155 (T)
31
Action Proceedings
When is there a dispute of fact?
1. Material facts are denied by either party
2. Should be a real dispute of fact
3. When the material facts cannot be determined on the papers
Establish whether a dispute of fact will arise before deciding which
course to take.
32
Action Proceedings
Happens in three stages:
1. Exchange of pleadings (including case planning)
2. Preparation for trial (including discovery and case management)
3. The trial
33
Contents of a Summons
With new rules – only combined summonses are used
Rule 7
What are the requirements – Rule 7(9)
Particulars of Claim – Combined Summons (see also Rule 45)
Citation of parties in a summons
34
Service of a Summons
Deputy Sheriff serves summonses – Rule 8
Matrimonial proceedings – personal service
Domicilium citandi et executandi
Residence / Principal Place of Business / Registered Offices / Place of Employment
Return of Service – Proof of Service – Rule 9, 10 and 11
Return of Non-Service
Edictal Citation – Rule 12
Substituted Service – Rule 13
35
Joinder – Rule 40
Joinder of necessity
Joinder of convenience
What is a “necessary party”
Intervention – Rule 41
What happens once a party is joined?
36
Joinder
Non-joinder
Mis-joinder
Joinder of different causes of action – Rule 40
37
Defending an Action
Notice of Intention to Defend – Rule 14
Requirements – Rule 14(3)
Simultaneous delivery of Rule 6 return
38
Case Planning
Rule 23
Case Plan
What needs to be addressed? – Rule 23(3)
Case Planning after judgment in summary judgment, exception, strike
out or irregular proceedings – rule 23(5)
39
Default Judgment
When may default judgment be applied for?
From whom is default judgment applied for?
Notice of Bar?
Failure to Appear at the Hearing?
40
Rescission of Judgment
Rule 16
Rule 103
Common Law
41
Summary Judgment
Can be applied for based upon:
1. Claim based upon a liquid document
2. Claim for liquidated amount of money
3. Delivery of specified movable property
4. Ejectment
42
Summary Judgment
Important to note the time frame for application
What must be contained in the affidavit?
1. Personal knowledge
2. Verify cause of action (positively swear to the facts)
3. Defendant has no bona fide defence
4. Purpose of the Notice of Intention to Defend is to delay the
matter
43
Summary Judgment
Courses open to the defendant:
1. Bona fide defence
2. Set security (for the claim amount and costs)
What is a bona fide defence?
Security
44
CIVIL PROCEDURE & PRACTICE
HIGH & SUPREME COURT OF NAMIBIA
45
Exceptions
Legal objection to a pleading
Rule 57
Pleadings lack averments necessary to sustain a cause of action or defence, no cause
of action / defence
Relief sought in prayers not justified by allegations made in particulars of claim
Vague and embarrassing
46
Exceptions
Grounds of exception must be stated clearly and concisely
Pleading is vague and embarrassing where it contains sufficient allegations
to sustain a cause of action or defence, but is defective or incomplete in
some respect which causes prejudice to the opposing party in the pleading
process, i.e. capable of two possible meanings, or contains contradictory
allegations
Vague & embarrassing – opportunity to remove cause of complaint. Where
Rule 18 (High Court) not complied with, election – Rule 30 or Rule 23(1)
notice
47
Exceptions
For the purpose of deciding an exception, the Court – generally –
takes the facts alleged in the pleadings as correct
The main purpose of an exception that a claim does not disclose a
cause of action is to avoid leading unnecessary evidence at the trial
The party raising the exception must satisfy the Court that, on all
reasonable constructions of the pleading excepted to and on all
possible evidence that may be led thereon, no defence is or can be
disclosed.
48
Exceptions
A party is free to frame his exception in any way he chooses, but he is
bound by the terms in which it is framed and by the issues raised therein
If the exception is upheld, the Court will ordinarily accord the respondent an
opportunity to file an amended pleading within a stated time, but can result
in dismissal of claim / striking of plea / defence
An allegation which is in conflict with other allegations in a pleading may be
objectionable either because it renders the pleading vague and
embarrassing or because it is irrelevant and should be struck-out
49
Irregular Proceedings
Rule 61 – 10 days
Where the rules have not been complied with, a party aggrieved by
the non-compliance is entitled to various remedies, and the court is
given wide powers to deal with the matter
A party who is prejudiced by an irregular step should not treat it as
a nullity, but must apply to set it aside under the provisions of Rule 61
as being irregular
50
Irregular Proceedings
Irregular step must be one which advances the proceedings one stage nearer completion
Rule applies only to irregularities of form and not matters of substance (e.g. locus standi and
prescription)
Found application –
Urgent application with no grounds for urgency stated
Non-compliance with Rule 45(7)
Improper service of summons
Irregular notice of bar
Defective notice of appeal
51
Irregular Proceedings
Nature of interlocutory application
Rule 61 notice – must specify particulars of the irregularity / impropriety
alleged
Not available to a party who has taken a further step in the cause and
thereafter seeks to set aside irregular or improper step
Further step = some act which advances the proceedings one stage nearer
completion. Does not include notice of intention to defend – this is a
qualifying step
Further steps include inter alia delivery of a declaration, notice to plead,
plea, replication, notice for security for costs, request for trial particulars.
52
Irregular Proceedings
Prejudice requirement:
Court has a discretion, irregular step will not necessarily be set
aside.
Discretion to be exercised judicially on a consideration of the
circumstances and what is fair to both sides.
Court entitled to overlook in proper cases any irregularity
which does not work substantial prejudice to the other party
Proof of prejudice is pre-requisite to success in Rule 30
application
53
Third Party Procedure – Rule 50
Serve a third party notice
Can be issued under following circumstances:
1. Contribution or indemnification from third party
2. Question or issue is substantially the same as question or
issue which will arise between party and third party
54
Third Party Procedure
Third party notice must contain:
1. Nature & grounds of claim of party issuing the notice
2. Question or issue to be determined
3. Relief or remedy claimed
Must be served before the close of pleadings. Where pleadings have already
closed – obtain leave from the Court.
Mercantile Bank Ltd v Carlisle and Another 2002 (4) SA 886 WLD
55
Close of Pleadings
Litis contestatio
Rule 51:
1. Any party joins issue without alleging any new matter and
without filing further pleadings
2. The last day for filing a replication or subsequent pleading
has expired and no such pleading was filed
3. Parties agree thereto in writing and files same with the
Registrar
4. Court declares the pleadings closed
56
Pre-Trial Procedures
Discovery – Rule 28
Who must discover?
What must be discovered?
When must discovery take place?
What to do when discovery is not made or is not sufficient?
57
Pre-Trial Procedures
Enrolment
1. Notice of Set Down
2. Fixed Roll
3. Continuous / Floating Roll
4. Divorce Roll
58
Pre-Trial Procedures
Expert Testimony:
1. Expert Notice (Rule 29(2)(a))
2. Expert Summary (Rule 29(2))(b))
Plans, Photographs, Inspections
Rule 36
59
Pre-Trial Procedures
Medical Examinations – Rule 33
Advice on evidence
- When there is doubt as to what evidence is
required to prove the case
- Counsel will advise having regard to all the pleadings
60
Case Management
Objectives of case management
Obligations of the parties
Three Phases:
1. Case Planning
2. Case Management
3. Pre-trial (including ADR)
61
Case Management
Case Management Conference – Rule 25
1. Joinder of parties
2. Filing of further pleadings and consolidation
3. Interlocutory motions
4. Admission of facts / evidence on consent
5. Discovery
6. Expert testimony and witness summaries
7. Narrowing the field i.r.o. witnesses
8. Any other issues & proposed date
9. Settlement talks, etc
62
Case Management
Matrimonial matters – additional issues to address
Status Hearing
Pre-trial Conference – Rule 26
- Final set down of matter
- Finally address pre-trial procedures
63
CIVIL PROCEDURE & PRACTICE
HIGH & SUPREME COURT OF NAMIBIA
64
Course Outline
Session 3: The Plea
Claim in Reconvention & Replication
Special case – Rule 63
Consolidation
Amendments
65
The Plea
Rule 46
Time period
Ipso Facto Bar
Admit OR Deny OR Confess & Avoid
66
The Plea
Clearly and concisely set out all material facts relied upon
Any allegation not dealt with in the plea will be deemed to be
ADMITTED!
Special pleas
67
Counterclaim
Rule 48
Filed simultaneously with plea (thereafter only with
leave from the Court)
Parties referred to as in convention
Same rule apply as for particulars of claim
68
Replication
Rule 47
Time period?
Not necessary for a mere joinder of issues
Necessary where:
1. Admit allegations contained in the plea
2. Confess & avoid allegations contained in the
plea
69
Replication
Not necessary to deal with all allegations in the plea
Remember to join issue with paragraphs of plea not being dealt
with in the replication
Be able to draft a replication for estoppel
70
Rule 63 – Special Case
Written statement of facts as agreed between the parties
Separation of issues
Often merits and quantum
Point of law to be determined before evidence is led
71
Consolidation
Rule 41
Main consideration: Convenience for the Court
Upon application and notice to all interested parties
Actions proceed as one
Court will make order as to future conduct of the consolidated
action
72
Amendments
Rule 52
Notice to all other parties
Objection within 10 days
No objection – deliver amended pleading within 5
days
Objection – apply to Court
73
Amendments
Objection should clearly set out the grounds of
objection
After filing of amended pleadings – opposing party
has 15 days to plead thereto or to amend any
pleading already filed
Costs – paid by party seeking amendment
74
Course Outline
Session 4: Security for Costs
Provisional Sentence
Motion Proceedings & Rule 6
Rule Nisi
Ex Parte Applications
75
Security for costs
Rule 59
Who is entitled?
When should it be sought?
Delay in seeking security?
How should it be sought?
Incola VS Peregrinus
76
Security for Costs
How much security should be requested?
What if notice if contested? (Amount vs Liability)
What is original amount is no longer sufficient?
77
Motion Proceedings
Rule 65
Notice of Motion (long and short form)
Founding affidavit
Annexures to affidavits
Confirmatory and supporting affidavits
Commissioning of Affidavits
Time periods set out in the rule
78
Motion Proceedings
Mandatory use of motion proceedings
Different types of motion proceedings:
1. Applications by notice
2. Ex parte applications
3. Interlocutory applications
4. Urgent applications
5. Interim matrimonial applications
6. Review applications
79
Motion Proceedings
What are the parties referred to in motion
proceedings?
When is the motion proceedings prohibited?
Opposing an application – procedure
Three sets of affidavits
Founding, answering, replying
80
Rule nisi
Not final in nature
Calls upon a party to show cause
How is cause shown
Return date
81
Ex Parte Applications
When is this procedure utilised? Rule 72
1. Order does not affect any other party (applicant only
interested party)
2. Notice will frustrate relief
3. Preliminary relief is essential (e.g appointment of
curator)
4. Nulla bona return is relied upon for sequestration
5. Relief so urgent that notice cannot be given
82
Ex Parte Applications
Format of application
To whom addressed?
What is contained in the founding affidavit?
Parties
Jurisdiction
Exposition of facts
83
Course Outline
Session 5: Urgent Applications
The Founding Affidavit
The Plascon-Evans Rule
Different types of applications
Divorce Proceedings
84
Urgent Applications
Rule 73
Judge may dispense with forms & service
Set forth:
Circumstances rendering the matter urgent
Why applicant could not be afforded substantial redress
at a hearing in due course
85
Urgent Applications
Certificate of Urgency
Extent of non-compliance that will be condoned
Mere lip-service to the rules
Effect of striking a matter for lack of urgency
86
The Founding Affidavit
Similar in form to other applications
Need to deal explicitly with urgency (usually under a separate
heading)
All material facts relied upon to prove/sustain the relief claimed
Facta Probanda vs Facta Probantia
87
The Plascon-Evans Rule
Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3)
SA 623 (A)
Stellenvale Rule
True disputes of fact
88
The Plascon-Evans Rule
Exceptions to the Plascon-Evans Rule:
1. Where denial does not raise a bona fide or genuine dispute of
facts
2. Where denial is untenable or far-fetched
Ripoll-Dausa v Middleton NO & Others 2005 (3) SA 141 (C)
89
The Plascon-Evans Rule
Referral to oral evidence – when & how?
Kalil v Decotex (Pty) Ltd and Another 1988 (1) SA 943 (A)
90
Different types of applications
Interdicts
Directing a party to do something or refrain from doing
something (interdict vs mandamus)
Spoliation Order
Requirements for interdict:
■ Interim interdict
■ Final interdict
91
Different types of applications
Appointment of Curators:
Rule 82 and 83
Curator ad litem & Curator bonis
Unsound mind, minors, prodigals
Ex parte procedure
92
Different types of applications
Anton Pillar Orders:
Application to preserve evidence
Rule nisi issued ex parte (usually in chambers)
Applicant is pursuing cause of action against respondent
Respondent’s possession specific documents vital to cause of
action
Real & well-founded fear – hidden or destroyed or lost
93
Divorce Proceedings
Issue of summons
Normal rules relating to actions apply
Lead evidence by the plaintiff
Restitution order vs Final order
Substituted Service
94
Divorce Proceedings
Service of Restitution Order
Affidavit of Non-Return
Return Date – Final Order
Restoration of conjugal rights
What can be done on the return date?
Vahekeni v Vahekeni 2008 (1) NR 125 (SC)
95
Course Outline
Session 6: Appeals – To The High Court
Appeals – From The High Court
Reviews
Execution
Assignment & Exams
96
Appeals
Distinction between appeal and review
What is an appeal?
What procedure?
97
Appeals to the High Court
Dealt with in Magistrate’s Court Reader
98
Appeals from the High Court
Rule 121 & Section 20 of the High Court Act
Appeal as of right to the Supreme Court
Time limit to filing appeal
Lapsing vs withdrawal of appeal
Appeal record
New evidence on appeal
Leave to appeal
99
Appeals from the High Court
Condonation for late noting of the appeal:
Explanation of delay
Importance of the case
Prospects of success on appeal
Respondent’s interest in finality of the matter
Convenience of the Court
Avoidance of unnecessary delays in the determination of justice
100
Appeals from the High Court
Suspension of operation of order when noting appeal
Rule 121(2)
Stay of execution
101
Reviews
Rule 76 & Common Law
Proceedings of an inferior court
Decisions and proceedings of any tribunal, board or officer
performing a judicial or administrative function
Procedure
Internal remedies?
102
Reviews
Grounds:
Absence of jurisdiction
Interest in the cause
Bias
Mallice or corruption
Gross irregularity in the proceedings
Admission of inadmissible / incompetent evidence
Rejection of admissible / competent evidence
103
Execution
Warrant / Writ
Attachment vs Execution
Execution of costs – taxed first
Publication
Sale in execution
Movable vs Immovable property
Declaring property executable
104
COURSE OUTLINE
Session 4: Appeals – To The High Court
Appeals – From The High Court
Reviews
Execution
105
APPEALS
• Distinction between appeal and review – NB!!!!
• What is an appeal?
• What procedure?
106
APPEALS TO THE HIGH COURT
• Dealt with in Magistrate’s Court Reader
107
APPEALS FROM THE HIGH COURT
• Rule 121 & Section 18 of the High Court Act
• In accordance with the Rules of the Supreme Court
• SC Rule 5
• Grounds of appeal?? – appeal against whole or part only of the
judgment or order, and if in part, what part
• Appeal as of right to the Supreme Court
• Note difference in Labour Matters
• Where High Court sits as court of appeal, you require leave to appeal
to the Supreme Court
• Time limit to filing appeal
• 21 days from date of judgment
• Lapsing vs withdrawal of appeal
108
APPEALS FROM THE HIGH COURT
• Appeal record
• Record of appeal and security
• Record filed within time limit specified from date of judgment NOT from date of
noting of appeal
• Calculate time periods correctly
• Black Range Mining - case
• Heads of argument
• New evidence on appeal
• Exceptional circumstances, remissness, practically conclusive, prejudice –factors
court will take into account to decide whether or not to allow
• Leave to appeal
• Interlocutory matters – leave required
• Petition, if leave refused
109
APPEALS FROM THE HIGH COURT
• Condonation for late noting of the appeal:
• Explanation of delay
• Importance of the case
• Prospects of success on appeal
• Respondent’s interest in finality of the matter
• Convenience of the Court
• Avoidance of unnecessary delays in the determination of
justice
110
APPEALS FROM THE HIGH COURT
• Suspension of operation of order when noting
appeal
• Rule 121(2)
• Stay of execution
• Constitutional matters
111
REVIEWS
• Rule 76 & Common Law
• Proceedings of an inferior court – section 20
• Decisions and proceedings of any tribunal, board or
officer performing a judicial or administrative
function
• Procedure
• Internal remedies?
• Walmart Stores-case
• Council of Municipality of Windhoek v Roland
112
REVIEWS
• Grounds:
• Absence of jurisdiction
• Interest in the cause
• Bias
• Malice or corruption
• Gross irregularity in the proceedings
• Admission of inadmissible / incompetent evidence
• Rejection of admissible / competent evidence
113
EXECUTION
• Warrant / Writ
• Attachment vs Execution
• Execution of costs – taxed first
• Publication
• Sale in execution
• Movable vs Immovable property
• Declaring property executable
114
CIVIL PROCEDURE & PRACTICE
HIGH & SUPREME COURTS OF NAMIBIA
115
Pleadings must be lucid and logical and in an intelligible form.
The cause of action or defence must appear clearly (or, at least, as a matter of necessary implication) from
the factual allegations made but an incorrect label does not affect the pleading.
It is wrong to direct the attention of the other party to one issue and then attempt to canvass another.
It does not suffice to plead a conclusion, opinion or inference without pleading the facts giving rise thereto.
Facts and not evidence must be pleaded. The facts pleaded must be admissible facts. The facts to be
pleaded are the facta probanda and not the facta probantia.
There is no duty to plead facts in anticipation of a defence.
If it is necessary to plead history for purposes of clarity it should be done with caution and the history must
be clearly severed from the cause of action.
If a party relies on a statutory provision, the facts entitling it to invoke the particular section must be pleaded.
If a party relies on a provision of a statute, the provision should be pleaded.
If a party relies on a clause in an agreement, the clause must be pleaded.
Inconsistent allegations are permissible in claims or pleas provided they are in the alternative, do not cause
the other party embarrassment or prejudice, and are legally tenable.
116
(a) Facta probanda- the facts required to be proved (material facts); and
(b) Facta probantia- the facts by means of which they are to be proved
(particulars
or evidence).
117
ACTION
Combined summons (summons and poc)
Service
No defend - plaintiff to consider Default Judgment
Defend, then - case planning.
Plaintiff to consider Summary Judgment
Defendant to consider:
Exception
Irregular Proceeding (Rule 61)
Plea
Counterclaim
118
ACTION
If defendant files a plea, plaintiff to consider need to except or
replication.
If defendant files a counterclaim, plaintiff to consider need to except.
If no exception, the plaintiff must file a plea to the counterclaim.
Once plea to counterclaim is filed, defendant to consider need to
except or replication.
119
APPLICATIONS
Applicant: Starts with notice of motion, accompanied by founding
affidavit and such other affidavits as may be required.
Constitutes both pleadings and evidence.
Respondent: files answering affidavit.
Applicant: files replying affidavit.
120
Interlocutory applications
In both action and application proceedings, an interlocutory
application (i.e., an application incidental to pending proceedings)
may need to be launched or opposed.
An interlocutory application is also done by way of a notice of motion,
founding papers, then answering affidavit from the respondent, then
replying affidavit from the applicant.
121
Disputes of fact
Plascon-Evans Paints Limited v Van Riebeeck Paints (Pty) Limited 1984 (3) SA
623 A.
Webster v Mitchell 1948 (1) SA 1186 (W) (applicable where interim relief is sought)
Clear Channel Independent Advertising Namibia (Pty) Ltd and Another v
Transnamib Holdings Ltd and Others 2006 (1) NR 121 (HC), paragraphs 16
and 17.
122
CIVIL PROCEDURE & PRACTICE
HIGH & SUPREME COURT OF NAMIBIA
REVISION
123
Know
Drafting pleadings generally (Rule 45)
POC (Rule 7(8))
Summary judgment applications (Rule 60)
Irregular proceeding applications (Rule 61)
Drafting a plea (Rule 46)
Exceptions (Rules 57, 23(3)(b), 32(9), (10))
Amendments (Rules 52, 25(2)(c), 26(8), 27(3)(c))
Rescission (Rules 16, 103, common law)
Initiating an application (Part 8)
124
Know
Principles governing the drafting of affidavits in motions
Ex parte applications (Rule 72)
Urgent applications (Rule 73)
Review applications (Rule 76)
Appealability
Notice of appeal to SC - requirements (SC Rule 7)
Requirements - heads of argument (SC) (SC Rule 17)
Section 16 Review (Section 16, Supreme Court Act, 1990 (Act 15 of 1990), SC
Rule 13)
Differences: appeal and review (JTC reader, p 110 ff)
125
Amendments
See separate note
Court has a discretion, must be exercised judicially
“It is now accepted in Australia that the old permissive and
liberal attitude to amendments of pleadings is inimical to the
ethos of judicial case management which has shifted the
emphasis from ‘doing substantial justice between parties’ to
‘the interests of the administration of justice overall – of which
doing justice between the parties is but one consideration’ ”.
126
Amendments
“It is inimical to the new ethos of judicial case
management to fail to fully set out one's case at the
earliest opportunity that becomes available”.
127
Amendments
“The greater the disruption caused by an
amendment, the greater the indulgence sought and,
accordingly, the burden upon the applicant to
convince the Court to accommodate (it).”
128
Amendments
“The imperative of speedy and inexpensive justice
‘may in an appropriate case justify the denial of an
amendment if it was necessitated by demonstrably
poor preparation or lack of practitioner diligence
which will have the effect of frustrating the early
disposal of the case and, therefore, the
administration of justice”.
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Appealability
Interlocutory orders, or more aptly described – rulings – are not
appealable.
For instance, “orders for discovery or production of documents” are
interlocutory in nature and form and of the kind not appealable at all.
The Supreme Court affirmed in Di Savino that a judgment will generally be
appealable where: (i) it is final in effect and not susceptible to alteration
by the court of first instance; (ii) it is definitive of the rights of the parties –
i.e. it must grant definite and distinct relief; and (iii) it disposes of at least a
substantial portion of the relief claimed in the main proceedings.
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Appealability
These are not immutable requirements. The Supreme
Court has held that they serve as useful guidelines but
are “not rigid principles to be applied invariably”.
For interlocutory orders in the HC meeting the
appealablity requirements, leave is always required
(Rule 115, Section 18 of the High Court Act, 1990
(Act 16 of 1990)
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Appealability
Where an order is incompetent (for example, in the absence of a party),
it is a fortiori appealable, even if interlocutory.
The Supreme Court has held that it “will be recalled that the court below
engaged in the interpretation of rule 76 and came to the conclusion that
it was peremptory. That interpretive decision was not only erroneous but
it is unalterable by the court a quo. The order is therefore appealable.”
The Supreme Court also held that where the judgment or order
appealed from had erroneously interpreted a rule or statute and its
wrong interpretive decision was final and unalterable by it, such decision
is appealable.
132
Appealability case law
Shetu Trading CC v Tender Board of Namibia 2012 (1) NR 162 (SC)
Namibia Financial Exchange (Pty) Ltd v Chief Executive Officer of the Namibia
Financial Institutions Supervisory Authority and Registrar of Stock Exchanges and
Another 2019 (3) NR 859 (SC)
Di Savino v Nedbank Namibia Ltd 2017 (3) NR 880 (SC)
Knouwds NO v Josea and Another 2010 (2) NR 754 (SC)
Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service 1996 (3) SA 1
(A)
Prosecutor-General v Taapopi 2017 (3) NR 627 (SC)
Marmorwerke Karibib (Pty) Ltd v Transnamib Holdings Ltd 2022 (3) NR 629 (SC)
133
Observations
Lack of proper preparation
Failure to understand basic concepts/confusion of
concepts
Repetition
Not reading the question properly
134
FOCUS & GOOD LUCK
“In the legal profession, ethics must be more than a shield; they must be a way of
life.”
— Janet Reno
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