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HIGH COURT
PRACTICE
The ALS and the Law Society of Namibia retain copyright on this document,
Except for PLT training courses,
use or duplication is unauthorized
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HIGH COURT PRACTICE
CONTENTS: COURSE MATERIAL
A. AIM OF COURSE
B. SYLLABUS
• The purpose of the course is to supply a broad overview of the subject from
a practical point of view.
• During training, instructors will only cover those aspects which candidate
attorneys will encounter most often in practice.
C. PRACTICE NOTES
• Notes do not form a complete manual on the subject – the use of the
relevant sources is still necessary.
Adv C F Eckard
1997 updated by
Adv D E van Loggerenberg
and Namibianised and updated by:
Mr. F.C. Brandt: Chris Brandt Attorneys - 2004
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D. FORMS AND PRECEDENTS
E. REFERENCE SOURCES
IMPORTANT NOTICE
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of the High Court of
NAMIBIA.
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AIM OF THE COURSE
A
Candidates should have a thorough practical understanding of civil procedure, with
regard to various causes of actions, in the High Court of Namibia, from the stage of
taking instructions through to appeal and review and taking into consideration
aspects such as ethics, costs, drafting of bills of costs, other courts and alternative
ways of dispute settlement.
- understand the functioning of the courts with specific reference to the various
officials and the courts in which civil litigation can be instituted.
- understand the relationship between the profession and the Court with special
reference to the Legal Practitioner’s responsibility as an officer of the court.
- understand the relationship between the Legal Practitioner and 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:
1. prospects of success
2. costs implications.
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A. INTRODUCTION
A1 SOURCES
A2 STRATEGIC PLANNING
A3 OFFICIALS OF THE COURT
A4 THE HIGH COURT AND THE SUPREME COURT
A5 GENERAL REMARKS CONCERNING COURT ETHICS
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A.1 SOURCES
The most important sources are the High Court Act, 16 of 1990, the
Rules of Court issued in terms thereof.
2. Practice directions
The Judge President from time to time issues practice directions which
contain important information regarding practice and procedure in the
High Court of Namibia.
3. Textbooks for South African High Courts and Namibian High Courts
Herbstein & Van Winsen: The Civil Practice of The Superior Courts in
South Africa, Third Edition, Juta, Cape Town, 1979.
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A.2 STRATEGIC PLANNING
b. Teamwork must be stressed throughout. The attorney and the advocate (legal
practitioners) together form a legal team, each of whom applies his/her own
expertise to render the best services possible to the client. The attorney must
always remember that he/she plays a vital role within the team. Do not expect
the advocate to handle the entire case by himself/herself giving him/her
instructions.
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A.3 OFFICIALS OF THE COURT
1. Judges
They are usually appointed from the ranks of senior legal practitioners or senior
academics or senior magistrates.
]
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d. The deputy sheriffs are responsible for the service of process through
which an action is instituted or motion proceedings are launched, as well
as the execution of attachments and removal orders that are made by
the court.
a. He/she is an officer of the court in the office of the registrar who must
see to it that the bills of costs of all legal practitioners, where costs were
awarded, properly comply with the provisions of the rules with regard to
costs.
b. Rule 70(3) stipulates that the Taxing Master shall, on every taxation,
allow all such costs and expenses as appear to him/her to have been
necessary or proper for the attainment of justice or to defend the rights
of any party.
c. The Taxing Master therefore has a wide discretion to allow costs as party
and party costs, however, this is done with consideration of the costs as
set out in Rule 70 issued in terms of the High Court Act.
5. The Interpreters
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6. The Court Orderly
b. He/she will for example call out witnesses’ names, get documents that
are handed in by legal practitioners to give them to the judge and must
see to it in general that the judge is enabled to orderly run the court
proceedings.
c. The Judge’s Clerk is the personal clerk for the judge and must assist the
judge in diverse matter for example by making personal arrangements
for judge i.e. the collection of law reports that are used, to take personal
messages, to make telephone calls etc.
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b. Not all records are typed.
They are officers of the High Court and must always act with the necessary
dignity and respect towards the court and towards each other.
a. The Master of the High Court is also an official of the Ministry of Justice
but he/she does not directly deal as much with the court as the officers
mentioned above.
b. The Master of the High Court, however, must also often submit reports to
judges in administration of estates and under the insolvency legislation.
b. He/she and the persons under him/her that are known as “state
prosecutors”, deal with prosecutions in the High Court in all criminal
trials. They do not, however, have much to do with civil litigation.
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A.4 THE HIGH COURT AND THE SUPREME COURT OF NAMIBIA
The High Court is established in terms of Article 80 of the Namibian Constitution and
the Supreme Court in terms of Article 79 of the Namibian Constitution. Both Courts
are located in Windhoek.
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A.5 A FEW GENERAL REMARKS CONCERNING COURT ETHICS
c. When a person enters or leaves the court, a courtesy bow is made in the
direction of the bench. Every one stands up when the judge enters and
when he/she leaves the court.
e. The form of address for a judge in the court is “My Lord”/”My Lady” and
outside the court it is “Judge”.
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B
SYLLABUS
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B. THE PRE-LITIGATION STAGE
B.4 CORRESPONDENCE
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B.1 THE TAKING OF INSTRUCTIONS
a. Although the following seems very simple, mistakes are often made because
instructions were not taken properly from the client at the outset.
b. Remember, the more meticulous the matter is handled from the start, the easier
litigation is handled later on.
e. The full names and the identity number, the residential and work address, the
telephone and fax numbers of the client must be written down on top of the
statement, as well as the date the statement was taken down.
f. It often works best to dictate the client’s version point by point in the client’s
presence so that the client can hear for himself/herself what the attorney’s
precise instructions are.
h. Should the attorney give a project to the client, it should also be recorded, for
example:
“I undertake to phone Messrs ABC during this week and talk to Mrs X to
ascertain if she is willing to make a statement. I shall report back to the client.”
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”The client will bring me a copy of the contract together with all the receipts this
week.”
i. Instead of dictating, the attorney can take down these notes by hand, but it
remains a good idea that the client hears exactly what the attorney writes in his
(the client’s) statement. Speak out aloud, while you are taking notes.
j. Ask the client to take notes for himself/herself of what he/she must still bring to
the attorney.
k. In this way many misunderstandings can be removed and in this way the
attorney as well as the client is obliged to pay attention to all relevant facts, i.e.
dates, names, places and times.
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B.2 LEGAL OPINIONS OF COUNSEL (BRIEF)
a. Should the attorney decide to obtain a legal opinion from counsel, he/she must
send a summary of all relevant facts as well as copies of all relevant documents
to counsel with specific instructions concerning the aspects on which he/she
wants a legal opinion.
b. Should the attorney feel that there are possible aspects on which counsel
himself/herself would want to question the client, he/she may instruct counsel to
consult with the client and then give his/her legal opinion.
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B.3 THE ATTORNEY’S (LEGAL PRACTITIONER’S)
RESPONSIBILITIES TOWARDS THE CLIENT
1. Full information
2. Financial aspects
a. From the start the attorney has to speak to the client about the financial
aspects.
b. The attorney should never avoid giving the client an indication of the
exact costs of litigation up to a certain stage or an estimate of the
expected costs of litigation.
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3. Time
a. The attorney must at all times be absolutely honest with the client.
b. Be careful not to promise the client too much, and on the other hand
avoid being totally negative or overcautious towards one’s client’s case
or his/her prospects of success.
a. The attorney and the advocate (both are legal practitioners) always work
together as a team.
b. Advocates are the persons who normally must present the cases in the
High Court; but the advocate does so with the full support and co-
operation of the attorney. Attorneys may not abandon their
responsibilities to assist him/her.
d. The attorney may decide which advocate he/she wants to approach for a
specific case. In this regard attorneys usually build working relationships
with particular advocates for specific types of cases.
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6. Settlements
b. The client must be consulted at all times and the attorney must keep the
client well informed.
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B.4 CORRESPONDENCE (INCLUDING DEMANDS)
a. It must at all times be remembered that even the most simple letter that was
written by an attorney, may later become the subject of penetrating enquiry
and/or argument in the High Court.
c. If often helps when the letters are written in numbered paragraph form.
e. If letters are written without prejudice, they must be clearly marked as such.
Remember that not all letters marked “without prejudice”, are necessarily
privileged. In order for a letter or part thereof to be privileged, the following
three requirements must be present:
f. If letters are sent by registered post, they must be marked as such and the
registered post slips must be attached to the file copy of the letter.
j. 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.
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B.5 PRACTICAL FILE ADMINISTRATION
b. From the start the file must be kept as neat and orderly as possible. The
principle is to keep all types of documents together in date sequence.
c. 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 may be used.
The different sub-divisions in the attorney’s file can, for example, consist of the
following:
- Statements
- Correspondence
- Processes or pleadings
- Memoranda (including legal opinions)
- Exhibits
- Legal aspects (including photostats of court decisions and statutory
provisions) that may play a key role in the litigation
- Documents
d. There must be short notes on the front or inside of the file cover concerning the
highlights of the progress of the case e.g. consultations and the exchange of
pleadings. Such notes have two objectives:
C
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PRACTICE
NOTES
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C. THE ACTION PROCEDURE
C1 PREREQUISITES
C4 JUDGMENT BY DEFAULT
C6 SUMMARY JUDGMENT
C7 THE DECLARATION
C15 DISCOVERY
C16 ENROLMANT
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C19 THE TRIAL – THE ATTORNEY’S DUTIES
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C.1 PREREQUISITES
There are three prerequisites that must be noted namely the cause of action,
the locus standi of the parties and the jurisdiction of the court. The
prerequisites are shortly discussed hereunder.
b. Such a legal fact may originate out of a contract, a delict or various other
causes.
c. 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 enforce the contract or to cancel the contract and
claim damages.
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d. In the case of delict, the wronged 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.
e. Concerning the various other causes, the aim is not to give a list of such
cases, but to give a couple of examples.
2. Locus standi
b. Some people do not have this capacity although the claim is rightfully
theirs. So, for example, a minor who sustained injuries in a motorcar
accident has a claim for compensation on account of the negligent cause
of pain and suffering, but he/she does not have the capacity to enforce
his/her claim as litigant. In such a case his/her incapability to act as
litigant must be supplemented by the necessary assistance of his/her
father or natural guardian.
1. Minors:
Curatorship is the official supervision under which an adult person (or his/her
estate) remains, where such a person is incapable of managing his/her own
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affairs. In this regard one can mainly distinguish between the following
appointments:-
3. The Married Persons Equality Act No. 1, 1996 abolish the marital power; to
amend the matrimonial property law of marriages in community of property; to
provide for domicile of married women; to provide for domicile and guardianship
of minor children; to further regulate the liability for household necessaries of
spouses married out of community of property; to amend certain laws to give
effect to the abolition of marital power; and to provide for matters incidental
thereto.
3. Jurisdiction
b. The High Court, differing in this respect from the Magistrate’s Court, has
inherent jurisdiction.
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c. Certain statutes limit the jurisdiction of the High Court. So e.g. income
tax appeals must be heard by a special income tax appeal court (273 of
Act 24 of 1981).
e. There are also further limitations on the jurisdiction of the High Court.
These further limitations may be discussed under the following headings,
namely:
1. Territorial limits:
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C. The Matrimonial Affairs Act No. 37 of 1937 relates to property rights of
spouses, to orders for maintenance, to the guardianship and custody of
minors and to divorce.
D. The Marriage Act No. 25 of 1961 consolidates and amends the laws
relating to solemnization of marriages and matters incidental thereto as
amended by Act 5 of 1987.
E. Married Persons: Equality Act No. 1 of 1996 abolish the marital power; to
amend the matrimonial property law of marriages in community of
property; to provide for domicile of married women; to provide for
domicile and guardianship of minor children; to further regulate the
liability for household necessaries of spouses married out of community
of property; to amend certain laws to give effect to the abolition of marital
power; and to provide for matters incidental thereto.
Jurisdiction with regard to the nullity of a marriage is not regulated by this act.
In this case the common law principles are still applicable and the distinction
Between nullity on the one hand and voidable marriages on the other hand
should be noted.
- The Married Persons Equality Act, 1996 abolish the marital power; to
amend the matrimonial property law of marriages in community of
property; to provide for domicile of married women; to provide for
domicile and guardianship of minor children; to further regulate the
liability for household necessaries of spouses married out of community
of property; to amend certain laws to give effect to the abolition of marital
power; and to provide for matters incidental thereto.
Under this heading the assumption is made that the Plaintiff is an incola
of the High Court’s jurisdiction, while the Defendant is a peregrinus of
the entire Republic of Namibia.
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C.2 THE DIFFERENT TYPES OF SUMMONSES
1. Distinguish between the three different summonses in the High Court, with
reference to when each will be used.
One can distinguish between three kinds of summonses in the High Court,
namely:
- a simple summons
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1. Simple Summons (rule 17)
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iii. Claims for transfer
NOTE:
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2. Combined summons (rules 17 and 18)
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C.3 THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS
Various basic matters concerning the contents of the summons are subsequently
taken into consideration.
a. 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.
c. 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.
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2. What is meant by the joinder of different causes of action?
a. Rule 17(4) provides that the name, including where possible the first
name or initials by which the defendant is known to the plaintiff, his/her
residence or place of business and where known, his/her occupation and
if he/she is sued in any representative capacity, such capacity, his/her
sex and if a female.
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b. Concerning the plaintiff, his/her full names, sex and occupation and
his/her residential or business address must be mentioned. Where
he/she sues in a representative capacity, such capacity must be
mentioned.
4. Dies Induciae
The Provisional Sentence Summons – not less than 15 court days after
service of the summons (Rule 8[1]).
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b. Concerning urgent applications, see comments made under D8 below.
Personal service;
i. Personal service;
i. 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 the
service or cannot be traced, the court may be approached for further
directions as to how service must be effected.
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SEE EXAMPLE, NO. 2
d. Where the plaintiff or defendant failed to appear at the hearing (after due
notice).
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2. Judgment by default granted by the Registrar
a. Rule 31(5)(a) provides that the Registrar may grant judgments by default
in instances where the claim is for a debt or is otherwise liquidated and
where the Defendant is in default with his/her notice of intention to
defend. In these instances counsel is thus no longer briefed to make the
application for judgment by default in open Court. According to the
decision in Entabeni Hospital v Van der Linde; First National Bank v
Puckriah 1994 (2) SA 422 (N) it is mandatory that all these applications
be brought before the Registrar and that they no longer be dealt with by
a Judge in open Court.
ii. grant judgment for part of the claim only or on amended terms;
vi. require that the matter be set down for hearing in open Court.
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c. Rule 31(5)(c) provides that the Registrar shall record any judgment or
direction given by him/her.
d. The Registrar shall grant judgment for costs on the appropriate scale
applicable in magistrate’s court plus the Deputy 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 judgment requires costs to be taxed or the
Registrar requires a decision on costs from the Court, N$800-00 plus the
Sheriff’s fees. In cases 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).
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In cases where the claim is not liquid, (in other words where the amount
claimed is not fixed and determinate e.g. a claim for damages) oral evidence
must be given during the application for judgment by default to prove the
quantum of the plaintiff’s damages.
b. However, the defendant is not entitled to apply for judgment against the
plaintiff in such case, but may only apply for absolution from the instance
of the plaintiff’s claim.
If the defendant does not appear at the hearing. The plaintiff may apply for
judgment by default against the defendant provided that the claim is liquid. If
the claim is not liquid, the plaintiff may still apply for judgment by default
provided that evidence concerning the damage is tendered (Rule 31).
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5. Which documents must be filed in counsel’s brief in matters which are
brought before the open court?
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/her.
The notice of intention to defend may be delivered late and may not be ignored,
provided that default judgment has not been granted yet (Rule 19(5)).
When the defendant gives notice of intention to defend, he/she may also deliver
certain notices that require the plaintiff, in the case of a partnership, to supply the
names of the partners and their addresses (Rule 14(5) and (6)).
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C.6 SUMMARY JUDGMENT
4. List the documents which must be in Counsel’s brief when he/she appears
for the Applicant or Respondent in an application for Summary Judgment.
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iv. Where the claim is for ejectment.
It shall be done within 15 days after the defendant delivered notice of intention
to defend. Rule 32 (2)).
“Be pleased to take notice that the Plaintiff intends to make application on ……
February 20…., at … am or as soon thereafter as Counsel may be heard, for
summary judgment in terms of the prayers set out in the Plaintiff’s summons.
And further take notice that the accompanying Affidavit of …….., marked
Annexure A, will be used by the Plaintiff in support thereof at the hearing of this
application.
Kindly place the matter on the roll for hearing accordingly.” Notice is given to
the Registrar and the defendant.
Founding Affidavit
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c. I confirm that the facts verifying the cause of action and the amount
claimed are true and correct and I also confirm the correctness of the
cause of action and of the amount claimed.
d. In my opinion the defendant has no bona fide defence to the action and
he/she has delivered notice of intention to defend solely for the purpose
of delay.
(“Take notice that the defendant may not adduce any additional evidence” (rule
32 (4); Trust Bank of Africa Ltd v Hansa and Another 1988 (4) SA 102 (V)).
The defendant may either file an affidavit in which he/she discloses the nature
and grounds of his/her defence, or he/she may give security to the plaintiff to
the satisfaction of the Registrar to satisfy any judgment , including costs, which
may be granted against him/her (Rule 32(3)).
5. How must the nature and grounds of the defence be set out?
d. The defendant does not have an onus of proof to prove his/her defence.
In practice the plaintiff and the defendant agree upon the form of the security
and if the Registrar accepts it, it is regarded as sufficient.
b. Should the court give leave to the defendant to proceed with his/her
defence, the declaration of the plaintiff will follow (where a simple
summons has been issued) and after that the plea.
c. The defendant does not have to set out his/her defence in the same
detail as in a plea, but he/she must supply sufficient detail to enable the
court to decide whether he/she has a bona fide defence (Maharash v
Barclays Bank Limited 1976 (1) SA 418 (A)).
d. The test is not whether the court is convinced of the probabilities of the
defendant’s defence or of his/her credibility, but whether it would
constitute a defence if the facts stated therein are true.
e. 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 leave to defend has been given (Rule 32(9)).
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f. Should leave be granted to defend, costs are usually reserved for
decision by the trial Court.
g. However, costs may be awarded against the plaintiff where the plaintiff in
the opinion of the court knew that the defendant has a bona fide
defence, and nevertheless continued with the application for summary
judgment.
8. Which documents must be in counsel’s brief when he/she appears for the
plaintiff or the defendant?
9. Orders that the court may make at the hearing of the application for
summary judgment.
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b. If the defendant satisfies the court that he/she 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.
b. Orders as to costs
i. Where the plaintiff, in the opinion of the court, knew that the
defendant relied on a contention which would entitle him/her to
leave to defend, the court may 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.
ii. Should it later appear at the trial that the defendant raised an
unreasonable defence and that the plaintiff actually should have
succeeded with his/her application for summary judgment, the
court may order the plaintiff’s costs of the action to be taxed on
the basis as between attorney and client (Rule 32 (10)).
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C.7 THE DECLARATION
(Rule 20)
After this session, the candidate should be able to:
b. It contains the particulars of the plaintiff’s claim and the relief, which is
requested.
c. It fully expounds the plaintiff’s claim, not only cursorily as in the case of
the simple summons.
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2. When will the declaration be used?
3. What happens when the plaintiff fails to deliver his/her declaration and
also does not apply for summary judgment?
a. The defendant may serve a notice of bar on the plaintiff and compel the
plaintiff to deliver his/her declaration within 5 days after service of the
notice.
b. If the plaintiff still fails to deliver his/her declaration, the defendant may,
after adducing evidence, apply for absolution from the instance or ask
that the action of the plaintiff be dismissed with costs.
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C.8 EXCIPIABLE AND IRREGULAR PROCEEDINGS
i) An exception;
ii) An application.
A. THE EXCEPTION
1. The exception is raised when the excipient alleges that a pleading against
which he/she excepts is invalid as it stands.
2. Grounds of an exception
b. The particulars of claim does not disclose a cause of action, or the plea
does not disclose a defence.
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3. A distinction must be made between exception and the notice 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 of 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.
The exception must be raised within the period allowed for the filing of any
subsequent pleading (Rule 23(1)).
a. 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,
namely that the particular pleading or the relevant part thereof be struck
out.
b. The notice of exception may for example be drafted in the following form:
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BE PLEASED TO TAKE NOTICE that unless the Plaintiff removes the
cause of complaint set out hereunder within 14 days, the Defendant
intends to raise an exception against the Plaintiff’s Particulars of Claim
on the grounds that the said Particulars of Claim are vague and
embarrassing.
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.
Take note that the following three different remedies that are available to a
party to compel his/her opponent to abide by the rules of litigation. These
remedies apply in action as well as motion proceedings.
2. Application to compel
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In some cases specific provision is made that a party may compel the opponent
to comply with a request or with the rules by means of an application to the
court (e.g. Rule 21(4): Further particulars for purposes of the trial).
In other cases a party may give notice to the defaulting party to comply with the
rules within 10 days and if the rules are not complied with, the party concerned
may apply to the court that the claim or the defence be struck out.
“BE PLEASED TO TAKE NOTICE that unless the Plaintiff complies with the
provisions of Rule 18(1) within 10 days, namely to supply the amounts of
medical costs and hospital expenses, the defendant intends to make
application to the abovementioned Honourable Court that the Plaintiff’s claim
be struck out and such other relief as the court may deem just.” (Rule 30(5)).
The Court will not easily strike out a claim or a defence. The Court will rather
grant condonation and give an order that the party concerned must comply
within a reasonable time with the rules and then make a suitable order as to
costs. So, for example, the court may order that the respondent must produce
a document for inspection by the Applicant within 14 days if the Respondent
has failed to produce the document in terms of Rule 35(12) (Gehle v
McLoughlin 1986 (4) SA 543 (W)).
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C.9 PROCEDURE BY DEFAULT (NOTICE OF BAR)
a. A party who fails to deliver any pleading within the time laid down in the rules or
within the time granted to him/her in terms of an extension, may be barred by
the other party.
“Notice of Bar
Be pleased to take notice that the Plaintiff requires the Defendant to deliver
his/her plea within 5 days after delivery of this notice, and in the event of the
defendant failing to deliver the said document, he/she will be barred from doing
so.”
d. Take notice that for the purpose of this rule 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 (Rule 26).
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e. 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 (Rule 27).
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C. 10 THE DEFENDANT’S PLEA
i) A Plea;
1. When to be delivered
a. The plea must in general comply with the following requirements (Rule
22 and 18):
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i. 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;
ii. All the material facts on which the defendant relies must be stated
clearly and concisely;
b. A plea which does not comply with these requirements, may be set aside
as an irregular pleading in terms of Rule 30 – see the provisions of Rule
22 in this regard.
3. Instructions to counsel
4. Special Plea
A special plea does not raise a defence on the merits of the plaintiff’s claim, but
raises a special defence apart from the merits. A special plea, depending on its
nature, may be dilatory or declinatory. In the case of a dilatory special plea, the
special defence that is raised does not abate the plaintiff’s claim and in the
case of a declinatory plea the special defence that is raised has as its object to
abate or squash the plaintiff’s claim entirely.
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i. lis pendens: if the same cause of action is pending between the
same parties in another court, the defendant may plead
lis pendens;
ii. arbitration: if the parties have agreed previously that the dispute
will be subjected to arbitration, the defendant may plead
arbitratio;
iii. non-joinder: if the plaintiff failed to join another party who has a
“direct and real interest” in the proceedings, the defendant may
raise it as a special plea.
ii. res judicata: when the same cause between the same parties
has already been tried and finally decided upon by some other
court, a special plea of res judicata may be raised. Absolution
from the instance is not a final order.
ii. absence of jurisdiction: if the court does not have jurisdiction, the
defendant may raise it as a special plea.
Note that the special plea shall always be filed as part of the plea. It is
set out first in the plea under the heading “special plea”. In other words,
the defendant must thereafter go on to “plead over” on the merits.
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C. 11 CLAIM IN RECONVENTION (RULE 24)
b. If the defendant is entitled to take action against any other person as well as
the plaintiff, he/she 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.
c. The defendant may also raise a conditional claim in reconvention against the
plaintiff. It means that he/she may subject his/her 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 collision.
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C. 12 FURTHER PLEADINGS (RULE 25)
a. Replication
Within 15 days of the service upon him/her of a plea, the plaintiff shall where
necessary deliver a replication to the plea. A replication that is a bare denial of
allegations in the plea, is necessary (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:
ii. Where the plaintiff admits certain allegations on the plea, but wants to
qualify his/her admission as in the case of a confession and avoidance.
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b. Rejoinder
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C. 12 THIRD PARTY PROCEDURE (RULE 13)
a. Where the party in the action claims that he/she is entitled, in a respect
of any relief claimed against him/her, to a contribution or indemnification
from the third party; or
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3. The third party notice must contain the following:
a. the nature and grounds of the claim of the party issuing it;
4. The formulation of the claim follows that of a pleading and the rules relating to
pleadings are mutates mutandis applicable.
5. 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.
6. The third party is, after service upon him/her of a third party notice, a party to
the action/application. If he/she intends to defend/oppose, he/she must deliver
a notice of intention to defend.
7. See further the provisions of Rule 13 and Form 7 of the First Schedule of the
Rules of the High Court.
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C. 14 CLOSE OF PLEADINGS
77
i. if either party has joined issue without alleging any new matter and
without adding any further pleading;
ii. if the last day allowed for filing of a replication of subsequent pleading
has elapsed and it has not been filed;
iii. if the parties agree in writing that the pleadings are closed and such
agreement is filed with the registrar; or
iv. if the parties are unable to agree as to the close of pleadings, and the
court upon the application of a party declares them closed.
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C. 15 DISCOVERY
3. Indicate what the consequences are if, having been called upon to discover,
one fails to do so.
5. List those documents which are privileged and explain how privileged
documents are treated in a Discovery Affidavit.
1. The principles underlying discovery is that no party may for any purpose use a
document at the trial if the document has not been disclosed previously.
2. The other p arty in the matter, who was not obliged to discover the document,
will, however, be entitled to use such document at the trial. (Rule 35(4)). Such
a case is found where the other party uses a document which the other party
was obliged to disclose for cross-examination purposes.
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3. Note that in terms of Rule 35(15) tape recordings are treated just like
documents and must also be disclosed. A 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.
5. A party who fails to give discovery in time runs the risk that the documents
he/she intends to use in the course of his/her case, will not be permissible; or
he/she runs the risk that a postponement will be granted with an order for costs
against him/her.
f. Discovery before the close of pleadings for purposes for pleading: After
appearance to defend has been entered, an party to any action may, for
purposes of pleading, require any other party to make available for
inspection within five (5) days a clearly specified document or tape
recording in his/her possession which is relevant to a reasonable
anticipated issue in the action and to allow a copy or transcription to be
made thereof (Rule 35(14)).
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
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/her inspection and to permit him/her to make a copy or transcription thereof.
Any party failing to comply with such notice shall not, save with the leave of the
court, use such document or tape recording in such proceedings, provided that
any other party may use such document or tape recording (Rule 35(12)). This
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sub-rule is applicable in cases where the documents do not appear in the
discovery affidavit. It is even applicable in applications.
9. Clear, readable copies must be made for the other party, for counsel, witnesses
and the court.
10. These documents must be put in order in good time, do not wait until shortly
before the hearing. In this regard it is extremely important that the attorney
should do his/her 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.
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C.16 SET-DOWN PROCEDURE (RULE 39)
1. Explain the procedure one will follow to apply for a trial date in the High
Court.
a. Application for a trial date must be made in writing to the Registrar, usually on
Wednesday morning by prior notice to the other party.
b. The Registrar allocates a day on which the trial will take place.
c. It is then the duty of the plaintiff’s attorney to give notice to the opponent and all
other parties of the day on which the trial will take place. This notice reads as
follows:
“Please take notice that the trial in the abovementioned case is set down for
hearing on the …………. day of ……………. 200… at 10 a.m. or as soon
thereafter as the case may be heard.”
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d. Note that if the plaintiff fails to set the matter down for hearing within the time
allowed therefore, the defendant is then entitled to set the matter down for
hearing.
SEE EXAMPLE NO 8.
The practice is to hold the Rule 37 conference after closing of the pleadings.
After the pre-trial conference is held, the Registrar is requested to allocate a
date.
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C.17 THE PRE-TRIAL PROCEDURES
7. Indicate when a notice in terms of Rule 36(4) and 36(10) respectively will be
delivered.
8. Indicate when a Notice in terms of Rule 36(9)(a) and (b) will be delivered.
10. Explain the difference of a Request for Further Particulars in the Magistrate’s
Court as opposed to the High Court, with reference as to when such a
request may be delivered in the High Court.
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It is especially these procedures which are extremely important and they must be
followed closely by counsel/attorneys. These procedures are the following:
14. General
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/she has, not less than 15 days before the hearing,
delivered notice of his/her intention to do so as has, not less than 10 days
before the trial, delivered a summary of such expert’s opinion and his/her
reasons therefore (Rule 36(9)). 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/she has, not less than 15 days before
the hearing, delivered a notice stating his/her 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 (Rule 36(10)).
15. Inspections
16. Examinations
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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 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 damages to make available in so far as he/she 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 (Rule 35(1) to (7)).
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 to let you have the advice well in advance of the trial to
enable you to give effect thereto as part of your pre-trial preparation.
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a. After a 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 counsel, save where the party concerned is litigating in person (Rule
21(4)).
c. 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 (Rule 21(7)).
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v. the giving of any further particulars reasonably required for the
purposes of trial;
xi. which party will be responsible for the copying and other
preparation of documents;
g. The minutes shall be filed with the Registrar together with the notice to
meet at the Registrar’s office to obtain a trial date suitable to the parties.
i. When giving judgment in the action the court may make an order for the
payment by a party of any portion of the costs when such party has
refused or failed to attend such conference.
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C. 18 GENERAL PREPARATION FOR TRIAL
5. List the documents which should form part of Counsel’s brief for purposes of
the trial.
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a. Consultations with the client or witnesses must be complete. It means
that all relevant facts must be discussed, also facts that may be
detrimental to the client’s case.
d. The attorney must at all times be aware that he/she 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.
d. 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/she has already been consulted with.
i. Where the law-suit has already started, but before the person has given
evidence, he/she may not be consulted with until the legal
representatives of the other party has been notified in time and in an
adequate manner of the proposed consultation. Should the legal
representative of the opposition, after he/she/they has been notified of
the proposed consultation, object to it, such objection does not prevent
the consultation and the legal representative of the other party is not
entitled to attend or be present at the consultation.
ii. Where the law-suit 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 representative of the opposition is informed in
time and in an adequate manner of the proposed consultation. In such a
case the legal representative of the opposition is entitled to attend or be
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present at the consultation, unless he/she/they has waived such right. A
mere objection to the consultation is, however, no impediment.
4. Statements of witnesses
5. Subpoenas
a. 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 (Rule 38(1)).
6. Separation of trials
b. In the case of an action in terms of the Motor Vehicle Accidents Fund Act
2001 (Act No. 4 of 2001(payment of compensation to victims of motor
vehicle accidents and incidental matters) (come into operation on
8/20/3002) and on application of a party to such action that the question
of liability (the merits) be decided separately from that of the amount of
damages (the quantum), the court shall order that such questions must
be decided separately, unless it appears that the questions cannot
conveniently be decided separately.
ii. All notices which are filed at Court are bound together and
numbered consecutively and then the concerned bundle is also
indexed.
iii. The procedure as described above must be done to the court file
and an index of each particular bundle must be served on the
other party.
c. Failure to see that the court file is indexed and paginated in time may
cause the court to strike the case off the roll with an appropriate order as
to costs against the plaintiff. It may also cause the court to order the
93
attorney/counsel of the plaintiff to pay the wasted costs out of his/her
own pocket (de bonis proriis).
b. The court may permit any party to any such matter to use such
deposition in evidence on such terms, if any, as 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.
iii. the nature of the evidence to be given and its bearing on the
issues in dispute.
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f. The affidavit supporting such an application must at least contain the
following allegations:
iii. the nature of the proposed evidence and its bearing on the
issues in the action;
9. Evidence on affidavit
a. A court may at any time, for sufficient reason, order that all or any of the
evidence be given on affidavit instead of such person appearing at the
trial to give oral evidence. Where it appears to the court that any other
party reasonably requires the attendance of a witness for cross-
examination, and such a person a witness can be produced, the
evidence of such witness shall not be given on affidavit (Rule 38(2)).
b. 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/her evidence shall be merely formal in
nature.
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a. 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 (Rule 11)).
b. 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 procedures.
c. The court may give one judgment disposing of all matters in dispute in
the said actions.
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vii. copies of all relevant correspondence exchanged between the
different attorneys having a bearing on the points in issue;
12. Interpreters
Lastly 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.
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C. 19 THE TRIAL - ATTORNEY’S DUTIES
The attorney should have a thorough knowledge of the fact of the case,
the law involved and the relevant rules of evidence and procedures.
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C. 20 SETTLEMENT OFFERS INCLUDING INTERIM PAYMENTS
The words “payment into court” are falling into disuse. Today the term
“settlement offer” is rather used.
2. When a plaintiff tries to settle a case, he/she need not to pay in the money to
the registrar any more, but he/she makes a settlement offer either
unconditionally or without prejudice.
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3. The settlement offer is signed either by the defendant personally or by his/her
legal practitioner.
“Be pleased to take notice that in terms of the written authorization of the
defendant, the amount of N$50 000-00 is 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.”
If the offer is made unconditionally with regard to the entire claim, the opposite
party may accept it. The litigation then comes to an end.
Note that an unconditional offer may also be made with regard to part of the
claim. The opposite party may accept this offer and still continue with litigation
with regard to the balance of the claim.
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 the court.
If the opposite party accepts this offer, litigation comes to an end and he/she
cannot continue with litigation for the balance of his/her claim.
b. After 15 days have expired, the offer may be accepted only with the
written consent of the party who made the offer.
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c. The court may also, under certain circumstances, authorize the party to
whom the offer or tender was made to accept it after 15 days have
expired.
d. Note that an offer that is made without prejudice, may not be disclosed
to the court. In practice it means that the notice that contains the offer
may not be in the court file when the case is set down for hearing.
e. The aim of this offer made without prejudice is not only to bring litigation
to 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 later on granted by the court.
f. Should the offer not be accepted, the trial continues in the usual way.
After judgment has been given, the contents of the offer may be
disclosed to the court in order to request the court to make a suitable
order as to costs in the light of the offer that was made and the court
ultimately granted by the court.
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C. 21 AMENDMENTS TO PLEADINGS AND DOCUMENTS (RULE 28)
1. General
2. Procedure
b. Such notice shall state that unless objection in writing is made within 10
days to the proposed amendment, the party giving the notice will amend
the pleading or document in question accordingly.
d. In such event, the party in whose favour the amendment has been
granted must thereupon effect the amendment by delivering each
relevant page in its amended form.
e. 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 pursue the amendment shall 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.
f. Unless the Court directs otherwise, each party that wishes to amend
his/her pleading effect such pleading by delivering the page in its
amended form.
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h. When an amendment to a pleading has been delivered, the other party
shall be entitled to plead thereto or amend consequently any pleading
already filed by him/her within 15 days of the receipt of the amended
pleading. A party giving notice of amendment shall, unless the court
otherwise orders, be liable to pay the costs thereby occasioned to any
other party.
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C. 22 INTERLOCUTORY APPLICATIONS (RULE 6(11)
1. 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 between to give effect to the
abovementioned rule. For that matter, any other interlocutory relief may be
raised in the course of a case from the issuing of the summons to the final
hearing thereof.
2. 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 may be brought on notice supported by such
105
affidavits as the case may require and be set down at a time assigned by the
Registrar or as directed by a Judge.
i. Actions by peregrini
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When the plaintiff is a peregrinus of Namibia and does not own
unmortgaged immovable property in Namibia, the defendant is entitled to
demand security for costs for the action from the plaintiff.
The court will not ordinarily give such an order, unless the defendant can
prove that the action is reckless or vexatious.
Note that the High Court 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. These cases
are all derived from the common law.
i. 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)).
ii. If the amount of security is contested, the Registrar shall determine the
amount to be given and his/her decision shall be final (Rule 47(2)).
iii. 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)).
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c. What happens if the security be not given?
The court may, if security be not given within a reasonable time, dismiss any
proceedings instituted or strike out any pleadings filed by the party in default, or
make such other order as to it may deem meet (Rule 47(4)).
d. Bear in mind that security for costs may also be demanded in motion
proceedings.
4. Explain the different orders that a court may make in connection with an
application for Provisional sentence.
ii. 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 a certain amount
of money. (A claim for damages is usually not a liquidated claim
because the court still has to determine the quantum thereof).
a. Rule 8(1) of the Rules of the High Court provides that the example, as
set out in Form 3 of the First Schedule to the High Court Rules, must be
used.
b. The wording of the instruction in the form, “here set out the cause of
action” usually reads 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
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….. (address) in favour of the Plaintiff and of which cheque Plaintiff has
been at all material times and remains the legal holder thereof. The said
cheque was duly presented for payment at the bank aforesaid where
same was dishonoured by non-payment as a result of a 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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4. Enrolment
a. After the dies inducia have expired, the matter must be set down for
hearing before 12.00 a.m. on the court day but one preceding the day
upon which the provisional sentence application is to be heard.
e. On 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 the notice of set down.
c. 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 notarial
copy of the mortgage bond.
112
d. 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.”
The defendant may attack the nature of the liquid document by alleging
the following:
ii. The amount is not liquid or the defendant may raise a defence
underlying to the liquid document by alleging the following:
he/she is released from payment of the amount claimed is already
settled.
The application is set down in the manner in which opposed applications are
usually set down.
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8. Check list for counsel’s brief at the opposed application
a. copy of the summons together with the documents on which the claim
rests,
9. What is the arrangement with regard to the onus of proof in the case of an
opposed application for provisional sentence ?
a. Should the defendant deny the liquidity of the document (e.g. the
authenticity of the signature or the authority of his/her agent), the onus of
proof will rest on the plaintiff.
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ii. grant provisional sentence, where the plaintiff discharged his/her
onus of proof or if the defendant is unable to discharge the onus
of proof that rested upon him/her;
b. The effect of a provisional sentence is that the defendant may only enter
into the principal case if he/she has satisfied the amount of the judgment
and taxed costs (Rule 8(10)).
d. The defendant must deliver a notice of his/her intention to enter into the
principal case within 2 months of the grant of provisional sentence.
Should he/she fail to do this, the provisional sentence becomes final
after 2 months (Rule 8(11)).
e. The plaintiff may, at any time after provisional sentence has been
granted issue a warrant of execution against the defendant.
115
116
D. THE APPLICATION PROCEDURE
D6 UNOPPOSED APPLICATION
D7 OPPOSED APPLICATION
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D.1 THE DIFFERENCE BETWEEN THE ACTION
PROCEDURE AND THE APPLICATION PROCEDURE
1. Explain the difference between the action and the application procedure.
4. List the instances where the motion procedure may NOT be used at all.
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SEE FORM NO. 2 (a) and 2 (b) OF THE FIRST SECHEDULE OF THE RULES
OF THE HIGH COURT OF NAMIBIA
6. In the application notice must be given to the Registrar and to the Respondent
concerned as well as to all interested parties that may possibly be affected by
the order given by the court.
8. It is important to consult the following case in respect of the question when the
application procedure and when the summons procedure must be used
respectively: Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty)
Limited 1949 (3) SA 1155 (T).
119
a. Eviction / Ejectment
b. Interdicts
d. Cancellation of contracts
10. There are mainly three tests that must be applied to determine whether the
action or application procedure must be used. In this regard the following must
be noted:
d. concerning the last category, the choice is not unrestricted. The test in
every case is whether it can be foreseen that a real dispute of fact
will develop which cannot be resolved satisfactorily without the
hearing of oral evidence.
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c. Where the respondent alleges that he/she does not have knowledge of
the allegations made by the applicant, but that the applicant or his/her
deponents are unreliable, untrustworthy or prejudiced and that he/she
therefore denies the allegations made by the applicant.
a. If the dispute of fact was foreseeable, the court may dismiss the
application with costs.
b. 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.
c. If the dispute of fact was not foreseeable and the issue was
comprehensive or complicated, the court may refer the application to trial
with appropriate directions as to the exchange of pleadings.
14. In practice it unfortunately often happens that a party erroneously starts with
the application procedure. It is most important to remember that if a dispute of
fact is foreseeable in which oral evidence will have to be adduced, the
application procedure may not be used, but the action procedure must be used.
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D.2 THE EXPARTE APPLICATION
1. Explain when the ex parte application must be used and what the exceptions
to the general rule are.
122
a. 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.
c. Where a nulla bona return is relied upon in the case of an application for
sequestration and notice of the application to the respondent is not
given.
3. Urgent applications are usually brought on the basis that the relief needed is so
urgent that the ordinary provisions of the court rules in relation to time cannot
be complied with.
SEE FORM NO. 2(a) OF THE FIRST SCHEDULE OF THE RULE SOF THE
HIGH COURT OF NAMIBIA
4. Take note that the founding affidavit must contain allegations as to why the
case is so urgent that the court must dispense with the ordinary times and
forms as provided for the Rules.
5. There are different grades of urgency and proper notice must be taken of the
decision in Luna Meubelvervaardigers v Makin 1977 (4) SA 135 (W). See also
Twentieth Century Fox Film Corporation v Black Films 1982 (3) SA 586 (W).
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D.3 APPLICATIONS ON NOTICE OF MOTION TO THE RESPONDENT
(FORM 2 b)
2. Draft, with regard to a given set of facts, an application with Notice of Motion.
2. The notice of motion supported by the founding affidavit must be served on the
respondent by the deputy-sheriff.
3. The notice of motion must be as near as may be in accordance with Form 2(b) of
the First Schedule of the Rules.
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SEE FORM NO. 2(b)
4. Take note of the period of time that must be given to the respondent to oppose
the application and the time limits for the filing of further affidavits (Rule 6(5)(b),
(c), (d), and (e)).
c. The applicant may file his/her replying affidavit within 7 days thereafter.
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D.4 THE FOUNDING AFFIDAVIT
After this session, the candidate should be able to:
a. The essential allegations to make out the cause of action and to justify
the relief.
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FELICITAS SCHEEPERS
ii. Where the deponent (a 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 shareholder of a
company, he/she must expressly state that he/she 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.
iv. The fact that the sex and the marital status of the applicant and
the respondent is not indicated will not necessarily render the
application invalid. (Carson N.O. v Spencer 1982 (2) SA 755 (T)).
Note, however, the provisions of the Insolvency Act No. 24 of
1936, in respect of applications for sequestration.
b. Jurisdiction
The jurisdiction of the court must be evident from the facts that are
mentioned by the applicant.
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c. Exposition of facts
iv. The general rule is that an applicant must state his/her case in
his/her founding affidavit. Where he/she failed to make essential
allegations in his/her founding affidavit he/she will not, as a
general rule, be allowed to make it in his/her replying affidavit.
viii. At all times keep in mind that the court will necessarily be
requested to make a finding with regard to the facts on the papers
in front of it and the court is only able to do this if it has all the
facts at his disposal.
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documents served by the deputy 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 attorney notified the respondent by telephone that the
application will be heard on ____ before the Honourable Court. In
this regard I refer the Honourable Court to my attorney’s affidavit
attached hereto, marked X”.
b. Instructions to counsel
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The following documents must be included in counsel’s brief:
c. Hearing
i. In the case of an ex parte hearing, the court will normally grant a rule
nisi. This is an order calling on any person who may have an interest to
show cause on a specified day why the order nisi, should not be made
absolute.
2. Counter Application
3. Replying affidavit
Within 7 days of service upon him of the answering affidavit, the applicant may
deliver a replying affidavit. The court may in its discretion permit the filing or
further affidavits (Rule 6(5)(e)).
4. Enrolment
c. As soon as the matter is set down, the application must be indexed and
paginated.
d. 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 provisions that apply in
connection with the presence of the attorney or his/her clerk at the
hearing of trials also apply with regard to opposed applications.
5. Distinguish between the duties of the “curator ad litem” and the “curator
bonis” respectively in a Rule 57 application.
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A number of specific applications which often appear in practice are briefly
discussed:
1. Interdicts
i. Prohibitive interdicts
These are interdicts which prohibit a person from committing an
act which infringes the rights of others or which threatens to
infringe it. Examples thereof are trespassing or nuisance.
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c. Interdicts may be temporary or final. A temporary interdict is granted
pending the outcome of an action in which the rights of the parties are to
be determined. A final interdict is granted without attaching any time limit
to it.
2. Urgent Applications
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1. A rule nisi do hereby issue in terms whereof the respondent is
called upon to show cause, if any, on the return day to be
determined by the above Honourable Court, why the following
final order should not be granted:
3. Alternative relief.
c. The verifying affidavit must give the full background and specifically state
that there is a valid lease agreement and that the tenant properly fulfilled
all his/her duties in terms of the lease agreement and that he/she was in
undisturbed possession of the property and that the respondent
maliciously prohibited him/her access to the premises and that the
applicant is accordingly entitled to be restored in undisturbed possession
of the premises. The applicant has further to convince the court that
he/she has a clear right to the undisturbed possession of the premises
and that no other remedy is available to compel the respondent to
respect his/her rights.
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d. In exceptional circumstances, however, it is not necessary that a notice
of motion, though it may initiate a case, be issued before service thereof.
In urgent cases the notice of motion will first be served and later issued.
In such a case the court will require that the respondent at least knows
that an application is brought against him/her. The attorney must then
see to it that the process is served on the opponent, though it is not
necessarily served by the deputy sheriff. Then the process is issued and
put in a court file before it is handed to the judge for adjudication.
3. Interpleaders
a. Where any person (called “the applicant”), alleges that he/she is under
any liability in respect of which he/she 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 deputy-sheriff shall
have the rights of an applicant and an execution creditor shall have the
rights of a claimant.
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delivering the interpleader notice or take such steps to secure the
availability of the thing in question as the Registrar may direct.
2. call upon 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
3. 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/her liability or
the validity of the respective claims.
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3. he/she is willing to deal with or act in regard to the subject-matter
of the dispute as the court may direct.”
a. 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 (Rule 57(1)) or, by reason of some disability, mental or physical
incapable of managing their affairs (Rule 57(13)), and appointing a
curator to the persons or property of such patients to represent them in
the proceedings.
b. 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/her
in the proceedings.
1.3 That the costs of the application including the costs of the
said curator ad litem be paid out of the estate of the said
Hans Weber on the basis as between attorney and own
client.
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b. the grounds upon which the court is alleged to have
jurisdiction;
g. When the curator ad litem has delivered his/her report and the
Master’s report has been obtained, the application is again
enrolled for an order as set out in paragraph 4 c.1.1 to 1.3 above.
NOTE: One can combine the first and second orders prayed in a
single notice of motion. See Ex parte Hulett 1969 (4) SA 172 (D).
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D.9 REVIEW APPLICATIONS – RULE 53
3. Draft, an application for review in terms of Rule 53, with regard to a given set
of facts.
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a. The grounds for review (s 20 of the High Court Act):
ii. In the notice the presiding officer is called upon to show cause why such
decision should not be reviewed or corrected or set aside.
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iii. Within 15 days of the receipt of the notice of motion, the presiding officer
must dispatch his/her reasons, as well as the record of such
proceedings.
iv. The notice of motion shall be supported by affidavit setting out the
grounds for the application.
vi. The applicant shall thereupon cause copies to be made and furnish the
Registrar with two copies and the opposite party with one.
vii. The applicant shall prepare copies for himself/herself and one for his/her
counsel. The costs hereof shall be borne by the applicant and shall be
costs in the cause.
viii. The applicant may within 10 days after the Registrar has made the
record available to him/her, by notice and accompanying affidavit
amend, add to or vary the terms of his/her notice of motion.
ix. Should the presiding officer desire to oppose the application, he/she
shall within 15 days of the receipt by him/her of the notice of motion,
notify the attorney of the applicant and he/she may within 30 days of the
receipt of the notice, deliver his/her answering affidavit.
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UNDEFENDED ACTIONS
SEE RULE 12
(1) (a) If a defendant has failed to enter appearance to defend within the time
limited by the summons or before the lodgement of the request
hereinafter mentioned, and has not consented to judgment, the plaintiff
may lodge with the clerk of the court a written request, in duplo together
with the return of service, for judgment against such defendant for-
(i) Any sum not exceeding the sum claimed in the summons or for other
relief so claimed;
(iii) interest from the date of the summons to the date of the judgement
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at the rate specified in the summons or, if no rate be specified, at the
rate prescribed under section 1(2) of the Prescribed Rate of Interest
Act, 1975 (Act 55 of 1975).
(b) If the defendant has entered appearance but has failed to deliver a plea
within the time limited by rule 19 or within any extended time allowed,
the plaintiff may deliver a notice in writing calling upon the defendant to
deliver a plea within three (3) days of the receipt of such notice, and, on
failure of the defendant so to do, may lodge with the clerk of the court a
written request for judgment in the same manner as when the defendant
has failed to enter an appearance to defend.
(2) …………………
(3) ………………….
(4) The clerk of the court shall refer to the court any request for judgment for an
unliquidated amount and the plaintiff shall furnish to the court evidence either
oral or by affidavit of the nature and extent of the claim. The court shall
thereupon assess the amount recoverable by the plaintiff and shall give an
appropriate judgment.
(5) The clerk of the court shall refer to the court any request for judgment on a
claim founded on any cause of action arising out of or based on an agreement
governed the Credit Agreement Act 1980 (Act 75 of 1980), and the court shall
thereupon make such order or give such judgment as it may deem just.
(6) If the action be on a liquid document The plaintiff shall before judgment is filed
of record the original of such document duly stamped or an affidavit setting out
reasons to the satisfaction of the court why such original cannot or should not be
filed.
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(7) The clerk of the court may refer to the court any request for judgment and the
court may thereupon-
(a) if a default judgment be sought, call upon the plaintiff to produce such
evidence either written or oral in support of his/her claim as it may deem
necessary;
(b) if a judgment
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