Amadhila and Another v Wilbard and Others (HC-MD-CIV-ACT-OTH-2023/01355) [2023] NAHCMD 678 (25 October 2023)

REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK RULING PRACTICE DIRECTION 61 Case Title: Case No: PENEYAMBEKO AMADHILA & ANOTHER // PETRUS WILBARD & 3 OTHERS HC-MD-CIV-ACT-OTH-2023/01355 Division of Court: HIGH COURT (MAIN DIVISION) Heard before: Heard on: HONOURABLE MR JUSTICE PARKER, 4 OCTOBER 2023 ACTING Delivered on: 25 OCTOBER 2023 Neutral citation: Amadhila v Wilbard (HC-MD-CIV-ACT-OTH-2023/01355) [2023] NAHCMD 678 (25 October 2023) Order: 1. The exception of the pleading is upheld and the offending pleading is set aside with costs, capped in terms of rule 32(11) of the rules of court. 2. 3. The plaintiff shall file an amended pleading on or before 10 November 2023. The defendants shall file any objection thereto on or before 24 November 2023. 4. The parties and/or their legal practitioners are called upon to attend a status hearing at 08h30 on 6 December 2023 for the court to give further directions in the matter. Reasons: PARKER AJ: [1] In this matter, the first defendant has raised exceptions to the particulars of claim. Before considering the contentions of the parties respecting the exceptions, I shall consider the plaintiffs' preliminary objections which relate to the interpretation and application of certain provisions of rule 32 of the rules of court. Ms Lardelli van der Westhuizen (with her Mr Piechazek) represents the first defendant. Mr Mwakondange represents the plaintiffs. [2] No rule 32(9) engagement took place. The reason is that, according to the plaintiffs, the first defendant ought to have sought directions of the court in terms of rule 32(4) before filing the notice of exception. It is the plaintiff's further contention that since the defendants failed to file their plea, as ordered by the court, the step the defendants took in bringing the exception application was irregular. [3] I do not agree. One of the objects for raising an exception against the particulars of claim is that the defendant is unable to plead to the particulars of claim because they are excipiable. It would be illogical and abuse of the process of the court for the defendant to plead to the particulars of claim and in the same breath raise an exception thereto. [4] Rule 32 should be read contextually with the judicial case management (JCM) provisions of the rules. In the instant matter, the managing judge had already been put on notice in the joint case plan by the parties' legal practitioners that the defendants would raise an exception. Therefore, when the defendants sought to invite the plaintiffs to embark on a rue 32(9) engagement, they were doing that which the rules expected them to do before launching the exception. After the plaintiffs rebuffed the defendants' attempt, the defendants were entitled to file the notice of exception. The aforesaid case plan alert about the exception was a sufficient notice for the purposes of rule 32(4). [5] When the managing judge ordered a set down date for the hearing of the exception, the managing judge was taken to have given directions as to the hearing of the exception. Consequently, the charge of irregular step has no merit, and is rejected. I now proceed to consider the exception. The plaintiffs have moved to reject the exception. [6] The exception is taken on the ground that: (a) no cause of action is disclosed and (b) the pleading is vague and embarrassing. [7] When determining an exception taken on the grounds that no cause of action is disclosed, two considerations ought to be considered. First, for the purpose of deciding the exception, the facts as alleged in the plaintiff's pleadings are taken as correct. Second, to succeed, the excipient must satisfy the court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. In other words, only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars of claim be found to be excipiable.1 I shall refer to these considerations as the 'first Van Straten NO considerations'. [8] Whether a pleading is vague and embarrassing entails two considerations. First, whether the pleading lacks particularity to the extent that it is vague. Second, whether the vagueness causes prejudice. The nature of the prejudice would be whether the other party will be unable to plead to and properly prepare and meet the opponent's case. I shall refer to these considerations as the 'second Van Straten NO considerations'.2 [9] The first plaintiff pleaded that, she purchased the said immovable property ('the property') from a Ernst Afrikaner on or about 6 April 1994, but she failed to register the property prior to the death of Ernst Afrikaner. The immovable property ('the property’) in question is Erf 786, Omulunga Street, Hakahana, Windhoek. The first plaintiff makes the allegations in the pleadings which now follow. [10] On or about 6 April 1994, the first plaintiff entered into an agreement of sale of the property with one Ernst Afrikaner who is now deceased. The parties agreed to reduce their ‘agreement terms to writing through an affidavit deposed to by the late Ernst Afrikaner’, a copy of which is attached to the pleadings marked Annexure 'PA 2'. Afrikaner died before the execution of the formalities of transferring the property into the first plaintiff's name. [11] The agreement was allegedly entered into on or about 6 April 1994. No transfer of the ownership of the property into first plaintiff's name took place for 12 years from April 1994 when Afrikaner entered into the Deed of Sale of the property with the first defendant in March 2006. And Afrikaner did not die until six years after March 2006. 1 Van Straten NO and Another v Namibia Financial Institutions Supervisory Authority and Another 2016 (3) NR 747 (SC) para 20. 2 Loc cit. [12] The conclusion is that I do not consider the so-called sale agreement to be valid, neither did Afrikaner. The plaintiffs sue on Afrikaner's affidavit, but the affidavit does not comply with rule 45(7) of the rules of court, and a fortiori, it does not comply with s 2 of the Formalities in respect of the Contract of Sale of Land Act 71 of 1996, as Ms Lardelli submitted. Pace Mr Mwakondango, rule 45(7) and especially s 2 of Act 71 of 1996 are not 'based on a mere technicality that would be cured by a simple amendment'. The Act is an enabling legislation, and it could not have been the intention of the legislature that the provisions of s 2 of Act 71 of 1996 be treated as a mere technicality to be airbrushed at will by persons. The words of the provisions indicate the intention of the legislature that provisions are peremptory.3 [13] Having applied the first Van Straten NO consideration (discussed in para 7 above) to the facts of the case, I come to the inevitable conclusion that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. The particulars of claim are, therefore, excipiable. Having so concluded, it serves no real purpose to consider the ground that the pleading is vague and embarrassing. [14] Following the authorities, I should set aside the pleadings; I should not dismiss the action.4 As respects costs, I do not see any good reason to depart from the capped costs under rule 32(11). [15] Based on these reasons, I find that the first defendant has made out a case for the upholding of the exception. In the result, I order as follows: 1. The exception of the pleading is upheld and the offending pleading is set aside with costs, capped in terms of rule 32(11) of the rules of court. 2. 3. The plaintiff shall file an amended pleading on or before 10 November 2023. The defendants shall file any objection thereto on or before 24 November 2023. 4. The parties and/or their legal practitioners are called upon to attend a status hearing at 3 Compania Romana De Pescuit (SA) v Rosteve Fishing (Pty) Ltd and Tsasos Shipping Namibia (Pty) Ltd (Intervening): In Re Rosteve Fishing (Pty) Ltd v MFV 'Captain B1', Her Owners and All Others Interested in Her 2002 NR 297 (HC). 4 Hallie Investment 142 CC t/a Wimpy Maerua and Another v Caterplus Namibia (Pty) Ltd t/a Blue Marine Interfish 2016 (1) NR 291 (SC) paras 53-56. 08h30 on 6 December 2023 for the court to give further directions in the matter. Judge’s signature: Note to the parties: Not applicable. Counsel: Plaintiff First Defendant/Excipient E Mwakondange L Lardelli van der Westhuizen (with her A E Of Mwakondange & Associates Incorporated, Piechazek) Of Windhoek Louis Karsten Legal Practitioner, Windhoek