ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE AND SPECIAL PLEAS
NO. I 2055/2013
05 FEBRUARY 2016
the matter between:
citation: Okorusu Fluorspar (Pty) Ltd & Another v Tanaka Trading
CC and Another (I 2055/2013)  NAHCMD 16 (05 February 2016)
07, 08, 17 September and 07 December 2015
05 February 2015
CIVIL PROCEDURE – Test for absolution from the instance
revisited – Special plea of prescription considered –
Special plea of proliferation of actions considered – COMPANY
LAW – Provisions of section 64 of the Close Corporations Act
relating to reckless trading considered and discussed.
The plaintiff sued the 2nd defendant for payment of N$
741 949-54 as a result of alleged reckless trading by the 2nd
defendant in his capacity as a member of the 1st
defendant, a close corporation. At the close of the case for the
plaintiff, the 2nd defendant moved an application for
absolution from the instance on the grounds that there was no
evidence led to the effect that the 2nd defendant had
traded recklessly within the meaning of s.64. Held – the
plaintiff had in its statement on oath made allegations of reckless
trading by the 2nd defendant and which were not challenged
in cross-examination. Held further – that some questions
and objective facts apparent from the plaintiff’s witness point
to elements of reckless trading requiring an answer from the 2nd
defendant. Application for absolution dismissed with costs.
– It was argued that the plaintiff sought to amend its
particulars of claim during a period when the period of three years
had elapsed and that the amended claim had for that reason
prescribed. Held – the amendment did not serve to
introduce a new cause of action and that the claim, which had only
been expatiated upon on amendment had not prescribed. Held further
– the issuance of the summons in the first instance had
served to interrupt the running of prescription. The special plea of
prescription was therefor dismissed.
OF ACTIONS – It was argued that by initially suing the 1st
defendant and obtaining judgment against it, the plaintiff was guilty
of proliferating actions by suing the 2nd defendant for
substantially the same relief. Held – the plaintiff had
sued both defendants at the same time and for the same relief albeit
on different grounds. Held further – that the
proliferation of trials must be unwarranted in the circumstances of
the case. Held - The claim against the 2nd
defendant did not amount to a proliferation of actions and the
actions instituted were rendered necessary by the actions of the
defendants. The special plea was accordingly dismissed.
The application for absolution from the instance is dismissed.
The special plea of prescription is dismissed.
The special plea of proliferation of action is dismissed.
The 2nd defendant is ordered to pay the costs.
The court shall, in consultation with the parties’
representatives set dates for the continuation of trial.
APPLICATION FOR ABSOLUTION FROM THE INSTANCE AND SPECIAL PLEAS
This is an application for absolution from the instance in respect of
a claim instituted by the plaintiff against the 2nd
defendant for payment of N$ 741 949-54, interest thereon and costs of
suit. The 2nd defendant further raised two special pleas
at the same time as the application for absolution, namely one of
prescription and that there has been a proliferation of actions by
the plaintiff against the 2nd defendant.
The facts which give rise to the above proceedings are largely common
cause and they acuminate to this: The plaintiff, a company duly
incorporated in terms of the company laws of this Republic entered
into a written agreement dated 11 March 2009 with the 1st
defendant. I will, for ease of reference refer to the plaintiff as
such or as ‘Okorusu’ and to the 1st defendant
as ‘Tanaka’. The 2nd defendant shall be
referred to as such or just as ‘Mr. Muradzikwa.’
Tanaka, at its prime, ran what appears to have been a thriving public
transport business. It tendered for and was awarded a contract to
transport Okorusu’s employees from their homes to work and vice
versa. In order to assist Tanaka carry out its aforesaid obligations,
Okorusu took up an agreement of suretyship with Standard Bank of
Namibia (Standard Bank) which granted a loan through an instalment
sale agreement for Tanaka to purchase a bus described as a Nissan
Model 2009 UD 95, referred to as ‘the bus.’
In terms of the suretyship agreement, Okorusu was to pay to Standard
Bank any amount claimed as the outstanding balance from the
instalment sale agreement in case of default by Tanaka of its
obligations to Standard Bank for the loan. By letter dated 13 July
2011, Standard Bank demanded from Okorusu payment of the sum of N$
741 949-54 as the outstanding balance from Tanaka in terms of the
instalment sale agreement after it was alleged that Tanaka had not
made good on its obligations to Standard Bank. Okorusu, as bound by
the suretyship agreement, made good the amount claimed by Standard
Bank from it and in turn sought to take ownership of the bus and
later to recover from Tanaka and Mr. Muradzikwa the said amount with
interest and costs. It is the latter claim that is pending before
this court and it is the subject of this determination.
It should perhaps be pointed out that in terms of the written
agreement between the parties, i.e. Tanaka and Okorusu, in the event
that Tanaka defaulted on its obligations to Okorusu and the latter
made good the amount of the default, Tanaka undertook to transfer
ownership of and to deliver the bus to Okorusu at its own expense.
It was further agreed that should the bus be transferred to Okorusu
as envisaged in the previous sentence, all instalments, excluding
bank charges already paid by Tanaka would be reimbursed to Tanaka by
Okorusu subject to the bus being found to be in a good condition
relative to its kilometres travelled at the time of change of
It is common cause that on 20 August 2013, Okorusu obtained judgment
from this court in the amount claimed against Tanaka, together with
interest and costs. This amount, it is alleged, Tanaka has refused
and continues to refuse to pay. The instant claim has been lodged
against the 2nd defendant in his capacity as a sole member
of Tanaka who was involved in all the dealings with Okorusu.
In its particulars of claim, Okorusu claims that the 2nd
defendant was aware of the obligation to deliver the bus to it in
terms of the agreement and was in a position to do so but failed or
neglected to do so and that he caused the removal of the bus from
Namibia to Zimbabwe and refused to have same returned to Namibia from
Zimbabwe. It is further averred that although aware of Tanaka’s
inability to pay its debts to Okorusu at least for the value of the
bus in the event it was not delivered, the 2nd defendant
caused Tanaka to trade recklessly, alternatively with gross
negligence in the incurring of the debt claimed and further failing
to return the bus in terms of the agreement.
In the alternative, it is claimed that the 2nd defendant
acted fraudulently in incurring the debt with no intention to repay
the debt and could have avoided the debt being incurred by Tanaka by
returning the bus to Namibia to be dealt with in terms of the
agreement signed inter partes. Okorusu, in the circumstances
claims an order in terms of s. 64 of the Close Corporations Act of
1988 for a declarator that the 2nd defendant is personally
liable for the payment of the amount claimed.
In their defence, the defendants claimed that the debt claimed arose
as a result of Okorusu terminating the agreement unlawfully and that
the said termination rendered Tanaka unable to continue servicing its
debt to Standard Bank. The defendants further deny being made aware
of the demand for the delivery of the bus to Okorusu and that they
never failed or refused to deliver the bus. They further aver that
the bus came into a state of disrepair and dysfunction whilst in
Zimbabwe and could not be driven or transported back to this
jurisdiction. The 2nd defendant, for his part denied
having acted recklessly nor with gross negligence nor fraudulently as
a member or manager of Tanaka but that he did all that within his
powers to explore alternative means to generate income for the
Okorusu called a single witness to testify on its behalf and closed
its evidence thereafter. The said witness was Mr. Mark Dawe. I will
not, except if necessary, chronicle and/or analyse his evidence. For
present purposes, it is important to point out that the 2nd
defendant, at the end of the plaintiff’s case, moved an
application for absolution from the instance, together with the two
special pleas referred to in para  above.
for absolution from the instance
At the close of the case for the plaintiff, the 2nd
moved an application for absolution from the instance. The test which
the court applies for such applications has been authoritatively
stated in various judgments of the courts of South Africa and adopted
by this court and our Supreme Court. One of the leading cases
normally referred to in this regard is Claude
Neon Lights (SA) Ltd v Daniel
Miller AJA propounded the applicable test in the following terms:
. . when absolution is sought at the close of the plaintiff’s
case, the test to be applied is not whether the evidence led by the
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should nor ought to) find for the plaintiff.’ See also Gascoyne
v Paul and Hunter,
Flour Mills (Pty) Ltd v Adelson (2),
Lloyd Page and Associates v Rivera and Another,
J.A., after quoting from the Claude
Neon Lights judgment
above, stated the following at G-J:
implies that a plaintiff has to make out a prima facie case –
in the sense that there is evidence relating to all the elements of
the claim – to survive absolution from the instance because
without such evidence, no court could find for the plaintiff. . . As
far as inferences from the evidence are concerned, the inference
relied upon by the plaintiff must be a reasonable one. . . The test
has from time to time been formulated in different terms, especially
it has been said that the court must consider whether there is
evidence upon which a reasonable man might find for the plaintiff. .
. – a test which had its origin in jury trials when the
‘reasonable man’ was a reasonable member of the jury. . .
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it should rather be
concerned with its own judgment and not that of another ‘reasonable’
person or court.’
I am in agreement that the formulation of the test that has
previously been applied in such matters has at times couched in terms
which appear to have been influenced by the approach adopted in jury
trials which do not form part of our civil procedure and do not seem
to have been part for a considerably long time, unlike in England and
the United States of America. In my view, it is appropriate to adopt
the test as propounded by Harms J.A. in the Clause Neon Lights
case (supra) and for exactly the same reasons. The court
trying the matter ought to bring its own judgment to bear on the
evidence thus far adduced and not base its judgment on the
opinion of some fictitious reasonable man who may, in some cases be
unable to correctly apply the requisite standard and test in matters
considering that in some cases the issues for determination are
highly complicated and at times technical even for what might be
referred to as a reasonable man to fully appreciate or comprehend,
let alone decide.
This test, as advocated for by Harms J.A., appears to be in sync with
that applied for instance by Gubbay C.J. in the Zimbabwean Supreme
Court in United
Air Carriers (Pvt) Ltd v Jarman.
the learned Chief Justice said the following regarding an application
for absolution from the instance:
plaintiff will successfully withstand such an application if, at the
close of his case there is evidence upon which a court, directing its
mind reasonably to such evidence, could, or might (not should or
ought) to find for him.’ See also TWK
Agriculture Limited v Swaziland Meat Industries and Another.
My task, at this juncture, is to consider whether a court, reasonably
directed might find for the plaintiff in the light of the evidence
led by the plaintiff’s sole witness. In order to do so, it is
imperative to have due regard to the issues and criticisms levelled
by the defendant at the evidence led by the plaintiff. It would seem
to me that there is one are two principal basis for the attack. It is
that the plaintiff has failed to adduce prima
to show or suggest the application of the provisions of s. 64 of the
Close Corporation Act.
Part of the reasoning employed was that when the judgment against the
1st defendant was obtained, the 2nd defendant
was out of the country and was therefor unaware of the grant of same.
It was also argued that for the provisions of s.64 to apply, there
must be evidence that the 2nd defendant in the instant
matter acted recklessly, fraudulently or with gross negligence. It
was also contended that the 2nd defendant’s actions
were inconsistent with a person who allowed the close corporation to
trade recklessly and this is evidenced by the fact that the 2nd
defendant took the bus to Zimbabwe to operate there where the
population is larger than it is in Namibia and that was in a bid to
save the close corporation from becoming moribund and to ensure that
it is able to keep its head above water as it were and capable of
servicing its debts.
In his statement made under oath and which served as his
evidence-in-chief, Mr. Mark Dawe stated that the 2nd
defendant did not deliver the bus after Okorusu had paid off the
amount owing by Tanaka to Standard Bank and requests to return the
bus in terms of an order of court were not complied with by the 2nd
defendant. The 2nd
defendant in fact refused to comply with the court order to that
effect. He also averred
that the 2nd
defendant did not act as a reasonable member by allowing the 1st
defendant to continue incurring debts after it had stopped
In cross-examination, from my notes, it does not appear that there
were any questions asked relating to the provisions of s. 64. What
transpired is that it was put to Mr. Dawe that the 2nd
defendant took the bus to Zimbabwe in the best interests of the close
corporation, a suggestion that was thrown out with both hands by Mr.
Dawe, he arguing that Zimbabwe was not the best destination in which
to do business as the Zimbabwean Dollar was at the material time
worth nothing. It was also put to him that the bus succumbed to the
roads in Zimbabwe which were in a bad state of repair.
Crucially, it was also put to Mr. Dawe that the 1st
defendant did not always make money from the transport business as
the 2nd defendant very often allowed members of the South
West African Peoples Organisation (SWAPO), to ride in the buses for
free, a suggestion that Mr. Dawe refused to believe. Mr. Dawe’s
evidence was that he went out of his way to assist the 2nd
defendant in the running of the business by preparing the business
plan and in many other ways as his ambition was to see Tanaka make it
although it was a small company relatively speaking. His unchallenged
evidence was that he and the 2nd defendant were on very
In view of the foregoing, I am of the view that there is no basis on
which to properly apply for absolution from the instance in relation
to the requirements of the provisions of s. 64. I say so for the
reason that no questions were ever put to Mr. Dawe regarding the said
requirements. It was never put, for instance that the 2nd
defendant did not act recklessly in the running of the business nor
that he never acted fraudulently or in any manner of the epithets
used to describe impugnable conduct under the said section.
If anything, what was put to Mr. Dawe, to the effect that the 2nd
defendant allowed members of SWAPO free use of the bus is prima
facie viewed, a pointer to reckless conduct but which the 2nd
defendant may well explain away once afforded the opportunity to
place his defence before the court. As it is, the statement made by
Mr. Dawe that the 2nd defendant did not act as a
reasonable member of the close corporation would have done remains
unhinged. These issues, in my considered view do call for an
explanation from the 2nd defendant and it is after he has
adduced his evidence and that of any other witnesses, if he is so
advised, that the court may be well placed to decide whether or not
on the evidence led as a whole it has been proved that the provisions
of s.64 should apply in relation to the 2nd defendant.
The standard to be met in cases where the provisions of s.64 are
sought to be invoked has been the subject of a judgment of this court
A. De Villers v Axiz Namibia (Pty) Ltd.
that case, Hinrichsen A.J. referred to the provisions of the South
African Act, particularly s. 424. At para , the learned Judge
quoted from S
Fagan J confirmed the test in the following terms:
is no need to prove dishonesty on the part of the wrongdoers. The
test for recklessness being objective and not subjective, it suffices
that the offence was committed by reason of appellant’s blind
faith in his own ability to pull the company straight.’
proceeded to opine that recklessness includes negligence in relation
to the conduct of a reasonable man, again applying the objective
At page 19 para , the learned Judge said the following:
court in Phlotex pointed out that recklessness should not be
found lightly. The provision was a punitive one and directors could
be held personally liable for liabilities of the company irrespective
of the causal connection between their conduct and their liabilities.
“Recklessly” means ‘grossly careless’, the
important point being that there is “the involvement of risk,
whether or not the doer realized it”. Although each case would
require a value judgment around its own particular facts, “when
credit was incurred [and] there was, objectively regarded, a very
strong chance, falling short of a virtual certainty, that creditors
would not be paid, [this should] also involve the mischief which the
section was intended to combat’.
The question, in the light of the foregoing, is whether regard had to
the application of the section in question, the evidence led,
including the cross-examination of Mr. Dawe, it can be said that
there is no evidence on which a court, acting carefully can find for
the plaintiff? I am of the view that there is prima facie
evidence and for that reason, this is, in my considered view, a
proper case in which the application for absolution from the instance
ought to be dismissed as I hereby do.
The point of attack herein is that the plaintiff’s claim is
prescribed for the reason that the plaintiff’s amended
particulars of claim are dated 23 October 2014 and in the main
introduced a new cause of action based on the provisions of s. 64 of
the Close Corporation Act (supra).
It is contended that taking into account the entire period, from when
the claim arose, the claim is prescribed in terms of the Prescription
Act. It is
important, in the circumstances, to have regard to the relevant
provisions of the Prescription Act in so far as they may have bearing
on this matter.
It was argued on behalf of the defendant that the claim in question
was known to the plaintiff and that the latter was not in any way
prevented from knowing that the claim was due. For it’s part,
the plaintiff claims that the amended claim was not a new claim
altogether but a mere elaboration of the initial claim. It was
accordingly prayed that the special plea of prescription should be
dismissed with costs.
In order to attempt to untie the proverbial Gordian Knot, I must have
regard to the provisions of the Prescription Act. The relevant
provisions in the instant case are those to be found in s. 11. Headed
‘Periods of prescription of debts’. It provides the
periods of prescription of debts shall be the following:
thirty years in respect of –
any debt secured by mortgage bond;
any judgment debt;
any debt in respect of any taxation imposed or levied by or under any
any debt owed to the State in respect of any share of the profits,
royalties or any similar consideration payable in respect of the
right to mine minerals or other substances;
fifteen years in respect of any debt owed to the State and arising
out of an advance or loan of money or a sale or lease of land by the
State to the debtor, unless a longer period applies in respect of the
debt in question in terms of paragraph (a);
six years in respect of a debt arising from a bill of exchange or
other negotiable instrument or from a notarial contract, unless
longer period applies in respect of the debt in question in terms of
paragraph (a) or (b);
save where an Act of Parliament provides otherwise, three years in
respect of any other debt’.
It would appear that in the instant case, the period applicable for
prescription is to be found in s. 11 (d). I say so for the reason
that the debt in issue does not fall under any of the other
categories. The instant debt appears, from all indications to be one
to be properly regarded as ‘any other debt’. I will
therefore proceed to deal with the matter from the premise that the
debt prescribes after a period of three years. I did not understand
the parties to take any different position in this regard. To the
contrary, both argued on the very same premise.
Section 12 deals with the commencement of the running of
prescription. It provides in subsection (1) in the main, that
prescription begins to run as soon as the debt becomes due. The rest
of the subsections deal with instances where prescription begins to
run in instances where there is a delay in the debtor becoming aware
that the debt is due. Neither subsection appears to be relevant in
the instant case and I shall, for that reason, have no regard to
Mr. Kamanja for the 2nd defendant, argued that having
regard to the summons issued initially, namely on 5 July 2013 and the
amendment of same on 23 October 2014. It was contended that the
amendment introduced a new cause of action and that at the time this
happened, the claim had prescribed considering that the claim arose
in or about July 2011, a period in the excess of three years. For his
part, Mr. Vlieghe argued that the plaintiff did not, as submitted by
the 2nd defendant introduce a new cause of action by the
amendment but that it merely sought to expatiate the claim.
I am in full agreement with Mr. Vlieghe in this regard that the
amendment did not seek to introduce a totally new cause of action
that was hitherto not canvassed at all in the particulars of claim
before the amendment. A reading of the contents of para 13 of the
initial particulars of claim ineluctably show that it was alleged
therein that the 2nd defendant ‘as member of the
First Defendant, failed to carry out the business of the First
Defendant and to act with a degree of care and skill that may
reasonable (sic) be expected from a person of such member’s
knowledge and experience and expertise and failed to comply with the
memorandum of agreement entered into between the Plaintiff and the
The amendment, it will be seen, gave flesh to what may be regarded as
bony allegations in the initial particulars of claim. The amendment
introduced in particular, the provisions of s.64 of the Act and
further expatiated on the particulars of the 2nd
defendant’s alleged reckless behaviour. This, to my mind does
not amount, even with the greatest benevolence, to the plaintiff
mounting a new cause of action. The amendment must be seen in the
correct light, namely doing no more than expanding and giving flesh
to what may be regarded as skeletal allegations in the initial plea.
McAlpine & Son (Pty} Ltd v Transvaal Provincial
J made the following remarks in relation to an amendment of the
particulars of claim, which as in this case did not introduce a new
cause of action:
particulars have been amended and are different in respects already
indicated, but that is all it is. The right which the plaintiff is
seeking to enforce is still the same, the relief sought is
substantially the same, the facts on which the claim is based are the
same and, in my view, the cause of action is still substantially the
is clear that the reasoning in that case applies equally to the
instant case and is in my view compelling and I accordingly adopt it
as sound and based on sound principle. See also Advocate
Frederick Allan Lange NO
his capacity as the appointed curator
ad litem for
Dirk Jacobus Loubser v De Beers Marine Namibia (Pty) Ltd.
There is yet another reason to throw out the special plea with both
hands and it is this: the initial summons issued served to interrupt
the running of prescription. In this regard, the learned author
Saner discusses the case
v Minister van Polisie
the plaintiff issued a summons which was adjudged excipiable by the
court, necessitating an amendment of the particulars of claim, which
was sanctioned by the court. The defendant filed a special plea in
bar in which it raised the issue of prescription. The court, whilst
admitting that the summons was however excipiable, held that the
special plea stood to be dismissed because the issuance of the
summons, excipiable as it was, served to interrupt the running of
prescription and accordingly dismissed the special plea. I
follow the same reasoning in
For the above reasons, I am of the view that it would be incorrect,
in the circumstances, to hold that the ‘cause of action’
introduced by the amendment had been prescribed at the time the
amendment was effected. I accordingly dismiss the special plea of
prescription as unmeritorious in the circumstances.
The next prong of attack by the 2nd defendant was also
couched as a special plea and related to what was referred to as the
proliferation of actions. As I understood Mr. Kamanja, his argument
was that the plaintiff had instituted a claim against both defendants
which was granted as undefended and which the 2nd
defendant successfully rescinded in so far as it related to him. It
was accordingly claimed that the plaintiff is proliferating actions
by suing in respect of a claim in which it has already obtained
judgment against the 1st defendant, something that the law
seriously frowns upon.
The principle of proliferation of actions must, for the reason that
it has been raised be revisited. The one case I was able to find and
which deals with the principle is that of Socratous
v Grindstone Investments
where the Supreme Court of Appeal in South Africa had to grapple with
a case involving a disputed lease agreement and in which there was a
multiplicity of suits between the parties both at the High Court in
Mthatha and in a Magistrate’s Court. In the High Court alone,
there were a number of proceedings involving the same parties and the
same cause of action, resulting in one instance in the plea of lis
alibi pendens being
raised by the appellant unsuccessfully.
At page 3 para , Navsa JA, writing for the majority of the court
made the following pertinent remarks which were critical of the
approach and decision of the High Court:
are public institutions under severe pressure. The last thing that
already congested court rolls require is further congestion by an
unwarranted proliferation of litigation. The court below erred in not
holding that against Grindstone when it dismissed the defence of lis
alibi pendens without due regard to the facts and on wrong
principle. The court below ought not to have proceeded to consider
the merits. Furthermore, in my view, Grindstone’s failure to
disclose in its founding papers that it had despoiled Mr. S and to
fully disclose all of the other litigation referred to above was
deserving of censure, at least to the extent of a punitive costs
order (see Trakman NO v Livshitz and Others). It had come to
court with unclean hands. The court below ought to have taken a dim
view of that fact.’
will come to the reasoning of the court in this matter, and the
applicability of the principle enunciated therein in a moment.
Another case that dealt with a matter akin to the issue of
proliferation of disputes is the judgment of Corbett JA (as he then
was) in Evins
v Shield Insurance Co Ltd.
There, the court dealt at length with the pleas of lis
alibi pendens and
the effect both principles may have on the finalization of cases. At
p385 the learned Judge of Appeal said:
object of this principle (res judicata) is to prevent
repetition of lawsuits, the harassment of a defendant by a
multiplicity of actions and the possibility of conflicting decisions.
(Caney Law of Novation 2nd ed at p 70). The
principle of res judicata, taken together with the “once
and for all”, means that a claimant for Aquilian damages who
has litigated finally is precluded from subsequently claiming from
the same defendant upon the same cause of action additional damages
in respect of further loss suffered by him (ie loss not taken into
account in the award of damages in the original action), even though
such further loss manifests itself or becomes capable of assessment
only after the conclusion of the original action. . . The claimant
must sue for all his damages, accrued and prospective, arising from
one cause of action, in one action and, once that action has been
pursued to final judgment, that is the end of the matter. Similarly,
lis pendens is designed to prevent the institution of a second
action between the same parties in respect of the same subject matter
and based on the same cause of action while another such action is
already pending (see Wolff NO v Solomon (189) 15 SC 298).
I must pertinently observe that in the instant case, neither the
pleas res judicata nor lis alibi pendens were raised by
the 2nd defendant, leading to the inescapable conclusion
that neither of these principles were applicable to the case. Had the
situation been otherwise, I am confident that Mr. Kamanja, studious
as he is, would have not hesitated and would have not spared any
effort in placing before court pleas that would serve his client’s
The question is whether in the instant case there was a repetition of
suits which would have amounted to what was referred to in Evins
as harassment of the defendant. In order to arrive at an appropriate
conclusion in this regard, it is important to have regard to the
history of the litigation between the parties in the instant matter.
The history of the present dispute has to some extent been dealt with
in the preceding paragraphs. What may be mentioned at this juncture,
is that as a result of the agreement between the parties and as a
result of the defendants’ default and the plaintiff having to
pay in terms of its obligations as surety with Standard Bank, the
plaintiff applied in terms of the agreement for an order confirming
it as the owner of the bus.
This action was not defended and judgment was granted by this court
by default on 27 January 2012.
When the said order was sought to be executed, it came to light that
the bus had been removed from this court’s jurisdiction by the
2nd defendant and as it turned out, it was taken to
Zimbabwe for reasons which have been dealt with above. This
development necessitated that the plaintiff then sue the defendants
for payment of the amount of N$ 741, 949.54. Judgment was again
granted by default on 20 August 2013. The 2nd defendant
successfully filed a rescission application which culminated in the
The record also reveals that there were also proceedings before the
Otjiwarongo Magistrate’s Court under case No. 45/2012. These
proceedings were launched by the 1st defendant against the
plaintiff for payment of an amount of N$ 3 306 528-00 for an alleged
breach of contract. The basis of this claim was that the 1st
defendant claimed that the plaintiff had unlawfully terminated the
agreement relating to transporting the plaintiff’s workers as
alluded to earlier. The proceedings were defended and intimations
were made to withdraw that case from the Magistrate’s Court and
to have same consolidated with the present action. It is unclear what
happened in that regard from my reading of the documents filed of
The question that looms large in one’s mind, given the above
chronicle of events, is whether it can be said correctly and with
justification that the plaintiff has instituted a multiplicity of
actions against the 2nd defendant to harass him and
thereby being guilty of unwarranted proliferated actions. I am of the
view that the above chronicle does not bear out such a conclusion. It
would seem to me, if anything, that it was the defendants who invited
the actions. First, there was the action for confirmation of the
plaintiff as the owner of the bus and delivery of same in terms of
the agreement. The defendants removed the bus from this court’s
jurisdiction in violation of the agreement and the plaintiff was
forced to lick its wounds as it were and to apply for the monetary
claim. Both claims, it must also be mentioned, were not defended by
the defendants, with the latter default judgment being rescinded at
the instance of the 2nd defendant as stated earlier.
The other action, as clearly stated was launched by the 1st
defendant in the Magistrate’s Court and the plaintiff could not
be expected to fold its arms idly. It defended the action. I am of
the view that the conduct of the plaintiff cannot, in the
circumstances be regarded as an unwarranted proliferation of actions.
The word unwarranted, in my view is significant. It is defined in the
Oxford Advanced Learner’s Dictionary as ‘not reasonable
or necessary; not appropriate, unjustified’. On an entire
conspectus of the facts stated above, the question is whether the
plaintiff, by launching the proceedings that it did before this court
should properly attract the criticism that its actions were
unreasonable, inappropriate, unnecessary unjustified or any other
fitting epithet? I think not. As indicated above, all the actions
instituted by the plaintiff were necessary and were influenced by the
actions of the defendants who appear to have acted contrary to the
memorial of the agreement inter partes.
Contrasting the events in the instant case and that in the Socratous
case (supra), it would appear that in that case, there
were a lot of unnecessary and repetitive legal skirmishes in terms of
applications and actions in different fora, in some cases
claiming the same relief and most were at the instance of the
respondent on appeal, coupled with non-disclosure of pertinent
information to the court. The Supreme Court of Appeal employed an
interesting phrase to describe the pandemonium created thereby. It
described it as a ‘litigation cocktail’ that had a
‘dizzying effect’. Would it be correct to ascribe such a
description to the plaintiff’s conduct in the instant case? I
think not and I say so based on what I have recounted above. If this
was at all a cocktail, I would say it was the defendant, from the
prima facie evidence before court, who brewed it.
I am not even certain that it would be the appropriate route to
uphold a plea such as the present by dismissing the plaintiff’s
claim. I do not have any authority in hand supporting such a course.
What the Supreme Court of Appeal alluded to as having been the proper
course in the Socratous matter, was for the High Court to have
censured the respondent by mulcting it with punitive costs. It may
well be that authority exists for such a course but I have not been
able to lay my hands on any and in any event, this is not a case, in
my judgment where it can properly be said there was an unwarranted
proliferation of actions by the plaintiff. This special plea must
In the premises, I issue the following order:
The application for absolution from the instance is dismissed.
The special plea of prescription is dismissed.
The special plea of proliferation of actions is dismissed.
The 2nd defendant is ordered to pay the costs.
The court shall, in consultation with the parties’
representatives, set dates for the continuation of the trial.
by Koep & Partners
DEFENDANT: A. Kamanja
by Amupanda Kamanja Inc.
Clause 2.1 of the Agreement inter partes.
1976 (4) SA 403 (A) at 408 G-H.
1017 TPD 170 at p173.
2001 (1) SA 88 (SCA) at 93.
1994 (2) ZLR 341 (SC).
(4263/05)  SZHC 162 (10 June 2009).
Para 24 of the witness’ statement.
Para 26 of the witness’ statement.
Case No. A 330/2008 at p.16 para  to p 18 para .
1980 (1) SA 269 (C).
para 50, p. 17.
1977 (4) SA 310 (T) 343 C-D.
Case No. I 341/2008  NAHCMD 382 (26 September 2013).
in South African Law, Lexis
Nexis, 1996 at p3-22.
1973 (1) SA 273 (T).
2011 (6) SA 325 (SCA).
1980 (2) SA 814 (A).
High Court Case No. I 3526/2011.
See index bundle at p. 97.