IN THE HIGH COURT
OF NAMIBIA

In the matter
between:

WILLEM ADRIAN VAN RHYN N.O. Applicant

and

NAMIBIA MOTOR
SPORTS FEDERATION 1^st Respondent

TONY RUST
N.O. 2^nd Respondent

WINDHOEK MOTOR CLUB 3^rd Respondent

CORAM: PARKER,
A J

Heard on: 2006 July 10

Delivered
on: 2006 …………….

_________________________________________________________

JUDGMENT:

PARKER, A J.:

[1] In this matter, the applicant is represented by Mr.
Namandje, while the three respondents (the respondents) are
represented by Mr. Dicks.

[2] On 4 February 2006, the applicant qua
guardian to the minor child, B.R. (the child), having approached this
Court on an urgent basis, obtained from this Court the issue of a
rule nisi in the following terms:

1. That the Applicant is heard on an
   urgent basis as is envisaged by Rule 6 (12) of the Rules of the High
   Court and that non-compliance of this Honourable Court is condoned.

   
   

2. That a Rule Nisi
   is hereby issued calling upon the
   Respondents to show cause if any on the 13^th
   March 2006 why an order in the following terms should not be made:

   
   
   
   

   1. Restraining and interdicting the
      Respondents from proceeding with the Namibian Motor Sports
      Federation’s prize giving ceremony titled “NMSF President’s
      Ball” set for 19h00 on the 4^th
      of February 2005 at Hotel Pension Thulle and further restraining
      the Respondent from giving any prize and conferring any recognition
      to any person pending the determination of the protest and or
      complaint to be laid by the Applicant in terms of the First
      Respondent’s relevant rules and regulations;

      
      

   2. That the relief sought in (2.1)
      above operate as an interim interdict with immediate effect;

      
      

   3. A copy of this Application
      together with a copy of a Court Order shall be served on the
      Respondents by not later than 17h00 on 4^th
      of February 2006;

      
      

   4. First Respondent to pay the cost
      of this Application.

      
      
   
   

[3] It is important to note here that up to the date
of the hearing of this matter on 10 July 2006 the applicant had not
lodged any protest or complaint in terms of the first respondent’s
relevant rules and regulations. I will revert to this observation in
due course. I must add also that on the face of the notice of motion
it would appear the application was not brought ex parte.
However, in essence and for all practical purposes the urgent
application was heard leaving the respondents with no opportunity at
all to file an answering affidavit, and so this Court heard the
applicant’s version only when it issued the rule nisi. The
respondents opposed the application, and filed answering affidavits
after the issuance of the rule nisi.

[4] At the commencement
of the hearing of this matter on the extended return date on 10 July
2006, Mr. Namandje argued that there was no notice to defend filed by
the respondents in terms of the Rules of Court. In addition, he
argued that only Mr. Adrian (Tony) Rust (second respondent) had filed
an answering affidavit and, therefore, to his mind, the first and
third respondents were not opposing the application.

[5] I ruled that both preliminary objections were not
well founded. On the first objection, I found that the applicant did
not raise this objection even in his replying affidavit; nor did he
give notice to the respondents that he would raise these objections
to enable them sufficient time to challenge it. Consequently, in my
view, to allow the objection to stand would gravely prejudice the
respondents. The second point is also without substance. Mr. Tony
Rust is cited in his official capacity, and he indicates clearly in
his answering affidavit that he is the President of the first
respondent, and is authorized to depose to the affidavit, which he
does, in my opinion, officii nomine of the first respondent.
And in the confirmatory affidavit, Mr. Michel Rust indicates that he
is the Chairman of the Third Respondent, so I take it that he deposed
to the confirmatory affidavit on behalf of the third respondent. In
any case, Mr. Namandje did not, advisedly, pursue his attack with any
vigour; indeed, he appeared to have abandoned them.

[6] I now proceed to deal with the applicant’s and
respondents’ applications to strike out certain portions of the
parties’ papers. In support of the respondents’ application, Mr.
Dicks referred me to a number of authorities, including the
authoritative work Herbstein and Van Winsen,¹
where the learned authors set out succinctly the law. I cannot do
better than to set out their proposition:

As a general
rule … hearsay evidence is not permitted in affidavits. It may
accordingly be necessary to file affidavits of persons other than the
applicant who can depose to the facts. Indeed, this is very often
done. Alternatively, when a deponent includes in his affidavit facts
in respect of which he does not have first-hand knowledge he may
annex a verifying affidavit by a person who does have knowledge of
those facts.²

I will apply these
propositions of the law in determining the present applications to
strike out on the grounds of inadmissible hearsay evidence.

[7] I will deal with the
applicant’s application first. Mr. Namandje submitted that paras.
19.14 and 19.17 of the first respondent’s answering affidavit
amounted to inadmissible hearsay evidence. I agree. With regard to
para. 19.14, a verifying affidavit of the Motor Sport South Africa
(MSA) was required to confirm the first respondent’s conjecture.
With regard to para. 19.17, the respondents themselves realised that
they needed to file a confirmatory affidavit on the court file. This
never happened. In the result, the two paragraphs are expunged from
the first respondent’s answering affidavit.

[8] I pass to deal with
the respondents’ application to strike out certain portions of the
applicant’s founding affidavit on the grounds that they constitute
inadmissible hearsay evidence. Having applied the principle of law
set out above to the applicant’s founding affidavit, I find that
the respondents’ application is well founded, and so the following
are struck out from the applicant’s founding affidavit: the last
sentence of para. 7, together with Annex “B”; the last sentence
of para. 8, together with Annexure “D”; and the whole of para.
21.

[9] I proceed to deal with the respondents’
application to strike out certain paragraphs of the applicant’s
replying affidavit on the grounds that they constitute new matter or,
alternatively, it is irrelevant to the issue at hand. On this point,
the learned authors of Herbstein and Van Winsen wrote:

The general
rule which has been laid own repeatedly is that an applicant must
stand or fall by his founding affidavit and the facts alleged in it,
and that although sometimes it is permissible to supplement the
allegations contained in that affidavit, still the main foundation of
the application is the allegation of facts stated there, because
those are the facts the respondent is called upon to either to affirm
or deny.³

[10] The principle was also stated tersely and
crisply in Director of Hospital Services v Mistry thus: “
When … the proceedings are launched by way of notice of motion, it
is to the founding affidavit which a Judge will look to determine
what the complaint is.”⁴
To these authorities must be added Transnamib Ltd v Imcor Zinc
(Pty) Ltd (Moly-Copper Mining and Exploration Corporation (SWA) Ltd
and Another Intervening) where this Court made the following
pithy and succinct statement:

It is trite
law that, generally speaking, an applicant must make out his case in
his founding papers and that such papers are a combination of
pleadings and evidence. Furthermore an applicant cannot merely set
out a skeleton case in the founding papers and then fortify this in
reply.⁵

[11] I now proceed to
determine the respondents’ application to strike out certain parts
of the applicant’s replying affidavit, and in doing so, I shall
apply the principles set out above, which I respectfully adopt for my
present enterprise.

[12] The pith and marrow of Mr. Dicks’ submission
is this: the applicant’s founding affidavit contains 24 paragraphs
and covers about eight pages, but his replying affidavit contains 28
main paragraphs and numerous subparagraphs and runs into about 52
pages, that is more than six times the number of pages of the
founding affidavit. And so, according to him, what the applicant has
made is to put flesh on the skeletal founding affidavit, which is not
permissible in law. In support of his submission, Mr. Dicks referred
me to the above-quoted passages from Herbstein and Van Winsen and
Transnamib Limited v Imcor Zinc and other cases, including
Director of Hospital Services v Mistry, supra.

[13] Mr. Namandje’s
reply was that in considering the respondents’ application, the
Court should have regard to the answering affidavit. As far as he was
concerned, the matters complained of are not new, for 70% of the
replying affidavit relate to the first respondent’s rules, which
the first respondent referred to in its answering affidavit.
Therefore, he submitted, those matters are not new, and they are
relevant.

[14] Having carefully
considered submissions submissions, I come to the following
conclusion. I agree with Mr. Namandje that certain parts of the
applicant’s replying affidavit are responses to matters introduced
by the first respondent in its answering affidavit, relating to its
rules and regulations. I think the applicant is entitled to respond
to them. But, there are some parts of the applicant’s replying
affidavit (included in the list in the respondents’ application to
strike out) which I find to be disquisitional, pleonastic and totally
irrelevant in determining the issue at hand, as I will demonstrate in
due course. These are the parts that must be struck off the
applicant’s replying affidavit: the whole of paras. 4.3, 4.4, 4.5,
13.20, 13.28, 13.29, 13.30, 13.31, 13.32, 15.6.3, 15.6.4, 15.6.5,
15.6.6, 15.6.7, 15.6.12, 15.13.3, 16.1, 16.2, and 28.4.

[15] I now turn to the
main application, being the application for the confirmation of the
temporary interdict obtained by the applicant.

[16] The authorities referred to me by Mr. Dicks⁶
converge on the proposition that as a general rule an applicant must
stand or fall by his founding affidavit and the facts alleged in it,
for the allegations of fact stated in the founding affidavit are
foundational and the mainstay of the application. Both counsel
referred me also to Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd.⁷

[17] With the greatest respect, I do not find
Plascon-Evans of any real assistance on the consideration of
the only issue in this matter, which is that the different
contentions canvassed by the parties on their papers come down to
this narrow point: did the child qualify to be crowned champion in
the category Go-Karting (Snr) (the Category) in the Namibian National
Championship Award for 2005 (the 2005 national championship)? And as
I see it, the key to determining the question lies primarily in the
interpretation and application of the applicable rules and
regulations of the first respondent (the relevant ones are set out
above) against the evidence presented by the parties in their papers.
It is in considering such evidence that the proposition of the law in
the first sentence of paragraph 15, above, of this judgment becomes
pertinent and crucial. By a parity of reasoning, Plascon-Evans
will not be of real assistance in the determination of the only issue
in this matter, is mentioned above. The reason is that I do not see
any real, genuine or bona fide dispute of fact on the papers
respecting the evidence against which I must apply the applicable and
relevant rules and regulations of the first respondent. That being
so, there is no need to have recourse to Plascon-Evans. That
is the manner in which I approach this matter.

[18] The application for
interim interdict was prompted by the decision taken by the first
respondent not to declare a champion in the Category) in the 2005
national championship because, according to the first respondent, no
person, including the child, qualified to be crowned national
champion in the category for 2005. The applicant was aggrieved by
that decision, and so he sought and obtained the temporary interdict
mentioned above.

[19] The facts adumbrated
in this and the next preceding paragraphs are not in dispute. The
child on whose behalf the applicant brought the application started
racing at the age of six years as a member of the third respondent,
and has been winning various races in Namibia. The first respondent
is Namibia Motor Sports Federation (NMSF), a voluntary association.
The second respondent being the President of the first respondent is
cited in the application in his official capacity. The third
respondent is Windhoek Motor Club (WMC), also a voluntary
association.

[20] The Federation Internationale de l’Automobile
(FIA) is the sole international authority entitled to make and
enforce regulations for the encouragement and control of automobile
competitions and records through the FIA World Motorsport Council.
The La Commission Interntionale de Karting (CIK) is a
specialized commission of the FIA responsible for the autonomous
organization details, running and administration of, inter alia,
international karting competitions. The first respondent, i.e. NMSF,
is the Autorité Sportive Nationale (ASN) or National
Sporting Authority recognized by FIA as the sole holder of sporting
power in this country. The applicant who had served on the first
respondent in previous years is actually acquainted with the first
respondent’s General Competition Rules (GCR) and the Standing
Supplementary Regulations (SSR), without the deeming provision in GCR
122.

[21] The material part of
GCR 122 reads:

Every
person, group of persons, etc. organizing a competition or taking
part therein shall by doing so or by and upon applying for an
organizing permit, or by and upon applying for a license from NMSF or
by and upon entering for a competition, be deemed to have and
recognize that they have:

1. made themselves acquainted with
   these rules;

   
   

2. without reserve to the
   consequences resulting from these rules …

   
   

[22] It is also not in
dispute that the child obtained an international license from MSA for
2001, and the license was renewed from 2002, 2003, 2004 and part of
2005. According to the first respondent the child was permitted to
enter competitions in Namibia with the MSA license, but in so
entering, he did so as a South African national in terms of article
12 of the International Karting Regulations published for 2005 under
FIA Sporting Code and GCR 24 of the first respondent. According to
the first respondent, foreign competitors were permitted to
participate in Namibian competitions because the practice conduced to
the promotion of the sport in this country. However, such competitors
from other countries compete for trophies of the day; their points do
not count towards the Namibian National Championships Awards.
According to the first respondent, this rule is well known to the
applicant and the child. I have no good reason to disbelieve the
first respondent in this regard. As I have found above, the applicant
admitted in his evidence that he was well acquainted with the first
respondent’s rules and regulations.

[23] GCR 24 provides:

“NATIONALITY” means
that nationality of a competitor, who, for the purpose of these rules
shall be deemed a national of the country of the ASN or FMN (i.e.
Fédération International Motorcycliste
Nationale), which issued his licence. In the
event, however, of a competitor participating in a world championship
event organized under the auspices of the FIA, a competitor shall in
these circumstances be deemed a national of the country who issued
his passport and/or travel document.

And the relevant
provision of International Karting Regulations published for 2005
under the FIA Sporting Code reads:

110. RIGHT OF ISSUING LICENCES

     
     

Each ASN
shall be entitled to issue licences:

1) to its
nationals;

2) to
the nationals of other countries represented on the FIA, in
compliance with the following statutory conditions:

1. that their parent ASN gives its
   prior agreement to the issuing which may only take place once a year
   and in special cases;

   
   

2. that they can produce for their
   parent ASN (the country of their passport) a permanent proof of
   residence in the other country;

   
   

3. that their parent ASN has recovered
   the licence originally issued.

   
   

No person
authorised by their parent ASN to apply for a licence from some other
ASN shall hold a licence from their parent ASN valid for the current
year.

………….

If for very
special reasons however a licence holder wishes to change the
nationality of his licence during the current year, he
would only be able to do so after obtaining his parent ASN’s
consent and once his old licence has been
taken back by the parent ASN.

110. A person having a licence from a
     different ASN from that of his parent ASN will be able to take part
     with this licence in national events taking place on the territory
     of the parent ASN, according to the
     conditions set by the parent ASN.

     
     

110. NATIONALITY OF AN ENTRANT OR DRIVER

     
     

As far as
the application of this code is concerned, every
Entrant or Driver who has obtained their licence from the ASN takes
the nationality of that ASN for the period of validity of that
licence…

(Underlining
in the answering affidavit)

[24] Thus, as far as the
first respondent is concerned, when the child competed in the
Namibian competitions in 2001, 2002, 2003, 2004 and part of 2005 when
he held a licence issued by MSA, he did so as a South African, and,
therefore, any points he scored did not count towards the tally
required to achieve the national championship award. This, according
to the first respondent, is the condition that it has laid down in
terms of Article 132 (iii) of the first respondent’s GCR. There is
no credible evidence to the contrary. The said Article 132 (iii)
provides:

A person
having a licence of different nationality to that of the country of
their citizenship will be able to take part with this licence in
national events in the territory of their country of citizenship,
subject to the conditions set by NMSF.

From the papers, I see that this Namibian provision
differs from Article 132 (iii) of the MSA GCR, which the applicant
relied on. I agree with the respondents that the Namibian rules and
regulations are not subject to the South African rules and
regulations, since the first respondent is independent from any other
foreign national organization.

[25] In addition, on the
matter of the conditions that the first respondent has laid down, the
first respondent referred the Court to GCR 227 and GCR 228, which
must be read together with the other rules and regulations. GCR 227
reads:

“ELIGIBILITY
OF COMPETITORS: Championships will be open to competitors/drivers who
are holders of the appropriate licence issued by NMSF.”

And GCR 228 reads:

PARTICIPATION
OF FOREIGN COMPETITORS

Foreign
competitors/drivers eligible to participate in championships events
but ineligible to score points will not, for the purpose of awards,
feature in the championship results. Competitors/drivers eligible to
score points will be scored on overall classification and in classes
as though foreign competitors had not participated at all.

[26] I further find that
it is not disputed that in 2001 to 2004 the child was resident in
South Africa, and upon his return to Namibia he applied for a
Namibian international licence. I shall not concern myself with
matters that occurred in 2001 to 2004: they will not assist this
Court in determining the present application. The third respondent
issued the child with a national licence in May 2005.

[27] On discovering that
the third respondent, without the first respondent’s authority to
do so, had issued licences, the first respondent recalled those
licences - about 36 in number - and replaced most of them with
licences issued by it. The applicant handed in the child’s wrongly
issued licence on 7 September 2005, and immediately applied for a
Namibian international licence in order to compete in South Africa.
The first respondent did not penalize the 36 or so members, including
the child, and so the first respondent recognized the events they
participated in with the wrongly issued licences as if they had
participated in those events with licences issued by it.

[28] When the first
respondent could not immediately issue the international licence to
the applicant – the reason for not being able to issue the licence
is unimportant for my purposes – the applicant went to South Africa
and obtained an international licence from that foreign country on 9
September 2005.

[29] It is common cause
between the parties that nobody took part in the Category’s Leg 1
event on 2 April 2005, and, therefore, nobody scored any points in
respect of Leg 1. I think I must signalize my finding that in May to
September 2005, as far as the sports codes under the first
respondent’s sponsorship were concerned, the child was considered
as a Namibian, with the first respondent as his ASN, in terms of the
applicable rules and regulations set out previously. Therefore, any
competition the child participated in during that period must count
towards the 2005 national championship; these were Leg 2 on 4 June
2005 (13.5 points), Leg 3 on 30 July 2005 (13.5 points) and Leg 4 on
3 September 2005 (13.5 points). The result is that, in my view, the
points that the child scored in Leg 5 on 12 November 2005 and Leg 6
on 3 December 2005 cannot count towards the 2005 national
championship in accordance with the applicable rules and regulations
of the first respondent. And according to the applicant’s founding
affidavit and the facts alleged in it, the applicant gained 13.5
points in Leg 2, 13.5 points in Leg 3 and 13.5 points in Leg 4,
totalling 40.50 points.

[30] Having considered
the papers filed by the parties and taking into account the relevant
and applicable rules and regulations of the first respondent annexed
to the papers, I find that it is common cause between the parties
that for the child to attain the points required to be crowned the
champion in the Category for the 2005 national championship, he must
have obtained 50% of the required tally, being 81 points. Since I
have found above that the child only obtained 40.50 points, the
irrefragable conclusion is that the applicant’s application must
fail.

[31] But, that is not the
end of the matter. Mr. Namandje made certain submissions, which, I
think, I must address. He submitted that the applicant (and/or the
child) was not given any reports of the competitions. In this
connection, counsel argued strenuously and unceasingly that the
reports, which the first respondent was obliged to give and which
counsel characterized as the best evidence, would have shown one way
or another conclusively whether the first respondent’s decision
that the child did not qualify to be crowned national champion in the
Category for the 2005 national championship was a correct decision.

[32] Indeed, as I see it, this argument appears to be
counsel’s talisman in his attempt to persuade this Court to confirm
the rule nisi. From the totality of the facts not in dispute
and those I have found to exist, with the greatest respect, I fail to
see the substance of counsel’s argument. In my opinion, the basis
of the first respondent’s decision is based on the scores that the
child obtained, subject to its applicable rules and regulations,
which, from the applicant’s own admission, he is acquainted with.
Indeed, the applicant’s contention that the child should have been
crowned a Namibian national champion in the Category is also based
only on the scores the applicant maintains the child obtained in the
competitions. In this connection, if one may ask, for what purpose
did the applicant want the reports?

[33] From the papers,
there is not an iota of doubt in my mind that the applicant’s case
has never been that he could not say whether or not the child
qualified to be crowned champion in the Category for the 2005
national championship because the competition reports have not been
availed to him. Indeed, a reading of the applicant’s papers leaves
one in not a grain of doubt that, as far as the applicant is
concerned, the scores which he annexed to his papers show
conclusively that the applicant must be crowned a champion. Paragraph
17 of his founding affidavit reads: “I submit that for all intents
and purposes and beyond any doubt, the minor child (i.e. the child)
should be crowned as 2005 Champion in the relevant category and any
decision not to recognize him, as such, is unfair and also invalid.”
Then, in para. 16.3 of his replying affidavit, the applicant states:
“He (i.e. the child) qualifies to be awarded the Namibian National
Championship Award for the category.” If the reports are still
outstanding, as he maintains, upon what basis did the applicant come
to this conclusion?

[34] The result,
therefore, is that, in my view, counsel’s religious reliance on the
matter of the competition reports is with respect, misplaced, as it
is inconsistent with, and diametrically opposed, to what the
applicant states in his papers. The reason is that, as I have said
above, as far as the applicant is concerned, the scores already show
that the child is the 2005 champion in the Category for the 2005
national championship. The only inference that can reasonable be
drawn in the circumstances is that the applicant and the first
respondent are in common cause that the scores obtained by the child
should determine whether the child qualified to be awarded the
championship title in the 2005 national championship for the
Category. Consequently, Mr. Namandje’s submission in relation to
the competition reports is, with respect, seriously flawed, and,
therefore, cannot assist the applicant.

[35] From the conclusion I have come to above, in my
opinion, what the applicant disputes is rather that the International
Karting Regulations of 2005 relied upon by the first respondent are
not applicable to Namibia because (1) Namibia is not a member of the
CIK, and (2) the regulations referred to have not been registered
with the Namibian Sports Commission in terms of s. 26 (3) of the
Namibian Sports Act 2003.⁸
In my opinion, the only reasonable corollary of this contention is
this: if this Court finds that the International Karting Regulations
of 2005 are applicable in Namibia, then the applicant had no cause to
complain, and, therefore, his application cannot succeed. I now
proceed to deal with applicant’s assertion.

[36] Having carefully
considered all the papers filed of record, I have come to the
inescapable conclusion that the applicant’s assertion that the
International Karting Regulations for 2005 are not applicable to
Namibia because Namibia is not a member of CIK is, with respect,
baseless. According to his own papers, the applicant does not dispute
the first respondent’s statement (to which Annexure “TR1” is
annexed) that the CIK has delegated the sporting power for karting in
Namibia to the first respondent and, therefore, the first respondent
holds exclusive right to take all decisions concerning the
organization, direction and management of motor sport in Namibia and,
in this instance, particularly karting. The said Annexure “TR1”
is entitled (quoting the English titles only):

FIA ASNs or
DELEGATIONS

National Sporting
Authorities or Clubs to which the Sporting Power for Karting has been
delegated,

and the first respondent
is named as one of such national sporting authorities and the only
one in Namibia.

[37] In any case, upon the authority of Pillay v
Krishna and another,⁹
it is the burden of the applicant to prove his assertion; and that he
has not done or he has failed to do. Accordingly, I find that the
first respondent is a member of CIK. By a parity of reasoning, I also
find to be groundless the applicant’s assertion that the karting
regulations have not been registered with the Namibian Sports
Commission. He does not offer any proof for his assertion. It seems
to me, therefore, quite idle for the applicant to contend that the
International Karting Regulations published for 2005 under the FIA
Sporting Code and GCR 24 of the first respondent and the other GCRs,
particularly GCR 227 and 228, do not apply in Namibia. I, therefore,
hold that these rules and regulations are applicable in Namibia to
the Category under the first respondent’s auspices.

[38] In a rearguard attempt to improve the
applicant’s case, Mr. Namandje submitted that the first respondent
should be estopped from denying that the child qualified to be
crowned champion, because, as he put it, the child was awarded
points. The first respondent does not deny that the child was awarded
points for Leg 2, Leg 3, Leg 4, Leg, 5 and Leg 6. But, as I have
found, the points scored by the child in Leg 5 and Leg 6, when he
competed with a foreign licence, did not count towards the Namibian
national championship tally in terms of the applicable rules and
regulations, which I have found below to be applicable in Namibia. So
I do not see how the principle of estoppel applies to the facts of
this case. In any case, the particulars of the respondents’ conduct
that are alleged to found estoppel ought to have been pleaded by the
applicant.¹⁰
The applicant has not done that. A fortiori, it has been held
that the result of an estoppel must be legal, so that estoppel cannot
avail in a case where its allowance would prevent a person from
carrying out a duty that is pre-emptory and in the public interest.¹¹

[39] Thus, to uphold the
plea of estoppel by Mr. Namandje would defeat the purpose of the
first respondent’s rules and regulations that partake of
international rules and regulations of the international bodies of
which the first respondent is a member. In other words, to ask this
Court to uphold the plea of estoppel is tantamount to asking the
Court to permit the first respondent to break its own rules and
regulations and to act in a manner not sanctioned by the
international bodies of which the first respondent is a member and in
a way which is not in the interest of the sport that is under the
first respondent’s sponsorship in Namibia. In sum, such allowance
would jeopardize Namibia’s status with the first respondent’s
international confederates and international bodies of which it is a
member. That being so, the plea of estoppel must also fail.

[40] It now remains to decide whether this Court
should confirm the temporary interdict it issued on 4 February 20006,
that is whether this Court should, on the papers, grant a final
interdict. There are three requisites¹²
for the grant of a final interdict, and all of them must be present.
They are:

1. A clear right on the part of the applicant.

   
   

2. An injury actually committed or reasonably
   apprehended.

   
   

3. The absence of any other satisfactory remedy
   available to the applicant.

   
   

[41] It has been stated that whether the applicant
has a right is a matter of substantive law, and whether that is
clearly established is a matter of evidence.¹³
It has been held that in order to establish a clear right the
applicant must show on the papers that on a balance of probabilities
he has a clear right. No onus rests on the respondents to establish
any fact or facts in order to negative the applicant’s right to a
final interdict. And the court has discretion to grant or to refuse
an interdict. In this connection, it has been held that the Court’s
discretion is bound up with the question whether any other ordinary
remedy can protect the right of the applicant.¹⁴
In my opinion, this qualification can only apply where the applicant
has discharged his onus of showing that he has a clear right.

[42] Having applied these principles to the present
case and having taken into account the findings I have made and the
conclusions I have reached above, I have no doubt in my mind that on
the papers the applicant has not shown that he has a clear right; not
even a prima facie right. It has been held, “On that ground
alone the Court would have to exercise its discretion against the
applicant.” I agree with this statement. Having decided that the
applicant has not shown he has a clear right, it is otiose to examine
the other requisites. All these reasons and considerations compel me
to the inexorable conclusion that the applicant is not entitled to
the relief.

[43] Besides, a part of the motivation in granting
the rule nisi was that the applicant would lodge a protest or
complaint with the first respondent. More than five months have
passed since the granting of the rule nisi on 4 February 2006 and the
applicant has not lodged any protest or complaint, which, in terms of
the rule nisi, he was obliged to do. On this ground also the
rule nisi falls to discharged.¹⁵

[44] There remains the question of costs. The
respondents have applied for costs on an attorney and own client
scale. In the recent case of South African Bureau of Standards v
GGS/AU (Pty) Ltd, Patel J, had the following to say concerning
the matter of the Court’s discretion to award costs on the attorney
and own client scale:

Clearly
there must be grounds for the exercise of the Court’s discretion to
award costs on an attorney and client scale. Some of the factors
which have been held to warrant such an order of costs are: that
unnecessary litigation shows total disregard for the opponent’s
rights (Ebrahim v Excelsior Shopfitters and
Furnishers (Pty) Ltd (II) 1046 TPD 226 at
236); that the opponent has been put into unnecessary trouble and
expense by the initiation of an abortive application (In
re Alluvial Creek Ltd 1929 CPD 532 at 535;
Mahomed Adam (Pty) Ltd v Barrett
1958 (4) SA 507 (T) at 509B-C; Lemore v
African Mutual Credit Association and another 1961
(1) SA 195 (C) at 199; Floridar Construction
Co (SWA) (Pty) Ltd v Kries (supra
at 878); ABSA Bank Ltd (Voklskas Bank
Division) v S J Due Toit & Sons Earthmovers (Pty) Ltd 1995
(3) SA 265 (C) at 268D-E); that the application is foredoomed to
failure since it is fatally defective (Bodemer
v Hechter (supra at 245D-F)); or that the
litigant’s conduct is objectionable, unreasonable, unjustifiable or
oppressive.¹⁶

[45] I respectfully agree
with Patel, J’s proposition; it is sound, and so I adopt them in
this case. In this connection, I wish to refer to certain aspects of
the applicant’s conduct in this matter, which must be marked out.
The first is that on 2 February 2006, the fist respondent’s Council
invited the applicant to attend a meeting. The title of the
invitation letter reads: “MEETING REQUESTED : NMSF COUNCIL WITH
MESSRS. WILLIE AND B.R.”. He was asked to attend the meeting
because “some important matters need to be discussed.” The
applicant admits he received the letter, but he arrogated to himself
the decision that there was no dispute between him and the child on
the one hand and the first respondent on the other. In my respectful
view, that is the only reason why the applicant and the child decided
not to attend the meeting. I do not for a moment accept any other
explanation for his refusal to attend the meeting. The title of the
invitation letter was enough to inform any reasonable person the
subject of the meeting and the urgency of it in the circumstances.

[46] The second is this: the relief sought by the
applicant is not only to interdict the first respondent from
declaring any person as the champion in the Category to which the
child belongs for the 2005 national championship, but also to
interdict the first respondent’s entire prize-giving ceremony at
which 32 deserving Namibian national champions for other sport codes
under the auspices of the first respondent were to be crowned at the
President’s Ball and which other guests and important personalities
were to attend. If one may ask, what shade of right did the applicant
have to interdict the 32 deserving champions, too, from receiving
their Awards? These persons have not even been cited as parties in
these proceedings. In my opinion, with the greatest deference, the
applicant’s behaviour, in the circumstances, is so grossly
unreasonable and unwarranted in law that it is inexplicable except
upon the ground of mala fides, insufferableness and
wickedness. The third is that in my view, the applicant’s failure
to lodge a protest or a complaint when he was obliged to do so in
terms of the rule nisi, as aforesaid, shows mala fides
on his part in applying for the interdict.

[47] Thus, the
applicant’s application was unnecessary, and the applicant showed
total disregard for the rights of the respondents and those of other
persons. In addition, the respondents have been put into unnecessary
and immeasurable trouble and great expense by the initiation of the
abortive application. For all these reasons, this Court must register
its strong disapprobation of the applicant’s behaviour and conduct
by awarding costs on an attorney and own client scale.

[48] In the result, the
Order of this Court is this:

1. The application to make the rule nisi
   issued on 4 February 2006 final is refused, and the said rule is
   discharged.

   
   

2. The applicant is ordered to pay the respondent’s
   taxed costs on a scale as between attorney and own client.
   

   
   

­­­­­­­­­­­­­­

_________________

Parker,
A J

ON BEHALF OF THE APPLICANT: Mr. S. Namandje

Instructed by: Sisa Namandje &
Company

ON BEHALF OF THE RESPONDENTS: Adv.
G. Dicks

Instructed
by: Theunissen, Louw

& Partners