IN
THE SUPREME COURT OF NAMIBIA

In
the matter between:

And

CORAM: O’Linn,
A.J.A., Chomba, A.J.A. et Manyarara, A.J.A.

HEARD
ON: 04/04/2002

DELIVERED
ON: 18/03/2003

APPEAL JUDGMENT

CHOMBA,
A.J.A.: The
parties hereto, namely Mr. A.J. Nekwaya, trading as Checkers
Wholesale and Supermarket on the one hand, and Younus Cachalia,
trading as Younus Cachalia Wholesalers appearing jointly with the
Deputy Sheriff for Oshakati, on the other, are respectively the
appellant and first and second Respondents
in this court. In the court a quo the appellant was the
applicant, while the remaining two were, as in this court, the
respondents. For convenience’s sake I shall refer to them all by
the designations they bore in the court a quo.

By
a notice of motion dated 11^th October 2000 the applicant
instituted civil proceedings in the High Court by which he prayed for
the following reliefs :

1. An
   order declaring that the matter is one of urgency and authorizing
   that the matter not be placed on the ordinary motion roll and
   dispensing with the ordinary rules of court in terms of Rule 6(12).

   
   

2. Ordering
   that the sale in execution advertised for the 18^th of
   October 2000 at 12.00 be cancelled and the goods attached be
   released from attachment, alternatively that the sale is suspended
   pending the final outcome of these proceedings.

   
   

3. Ordering
   the Respondent not to use the warrant of execution issued in this
   matter to extract further funds from Applicant, or to instruct the
   Deputy Sheriff to make a further attachment of Applicants property.

   
   

4. Ordering
   the Respondent to pay the costs of this application.

   
   

5. Further
   and/or alternative relief as the above honourable court may deem
   fit.

   
   

6. That
   a rule nisi do issue calling upon the Respondent to show cause on
   the 20^th of November 2000 why any order as set out in
   Paragraph 2, 3 and 4 should not be granted and made final.

   
   

7. That
   the relief sought in Prayer 2 operates as an interim injunction
   pending the finalisation of the relief claimed in Paragraph 2, 3
   and 4 above.

   
   

The
short facts on which this appeal is predicated are the following.
The first respondent was, in a judgment obtained in the High Court
(Strydom, J.P. as he then was) on 10^th June 1996, awarded
N $136,218.18 for goods sold and delivered to the applicant. He was
at the same time awarded “ interest a tempore morae and
costs.” Owing to problems which the applicant experienced in paying
off the judgment debt ensuing from the said award a writ of
execution was issued against him. That writ was exhibited as an
annexure to the applicant’s affidavit in support of the motion.
As it will be necessary for me to make observations on the content of
the writ later in this judgment, I hereby reproduce it as hereunder.

“In
the matter between :

YOUNUS
CACHALIA

t/a YOUNUS CACHALIA
WHOLESALES Plaintiff

and

ANDREAS JOESPH JOHANNES

t/a CHECKERS WHOLESALE &
SUPERMARKET Defendant

WRIT OF EXECUTION

TO THE DEPUTY SHEFIFF :
TSUMEB

YOU ARE HEREBY directed to
attach and take into execution the movable goods of defendant,
ANDREAS JOSEPH/JOHANNES

t/a CHECKERS WHOLESALE &
SUPERMARKET, at ONESHILA, OSHAKATI, NAMIBIA and of the same to cause
to be realized by public auction:

1. The
   sum of N$136,218.18;

   
   

2. Interest
   thereon at per cent per annum a tempore morae;

   
   

3. Plus
   further costs still to be taxed and charges of the said plaintiff
   which he recovered by judgment of this court on 10^th June
   1996 in the above named case, and also all other costs and charges
   of the plaintiff in the said case to be hereafter duly taxed
   according to Law, besides all your costs thereby incurred.

   
   

FURTHER to pay to the said
plaintiff or his attorneys the sum or sums due to him with costs as
abovementioned and for your so doing this shall be your warrant.

AND return you this writ
with what you have done thereupon.

Dated at WINDHOEK on this
the 21 day of January, 1997.

---------------------------

REGISTRAR

HIGH COURT

WINDHOEK

------------------------------------- “

C.J. HINRICHSEN

Legal Practitioner for
Plaintiff

C/o LORENTZ & BONE

12th and 13th Floor

Frans Indongo Gardens

Bulow Street

WINDHOEK

HO5.94”

The
applicant made a number of payments towards the liquidation of the
said judgment debt. The payments were exacted by the second
respondent in his capacity as Deputy Sheriff of Oshakati District
where the applicant carried on a Wholesale and Supermarket business.
The first respondent, being unhappy with the erratic payments which
were being made by the applicant, in due course issued out of the
court a quo a notice of attachment in execution. In
consequence of the latter, a number of goods were seized and these
were inventoried and appeared in an annexure to the said notice of
attachment. After that a sale of the said goods was advertised to
take place on the 18^th of October 2000. According to the
second respondent’s affidavit sworn on the 16^th of
October 2000, the first respondent was one of fifteen judgment
creditors who were to participate as beneficiaries in the proceeds of
the sale. There was a sharp disagreement on whether or not the
judgment debt had been completely liquidated by the time of the
publication of the advertisement of the sale, with the applicant
contending that he had overpaid the entire debt including interest,
except for costs which had not at that time been taxed. The first
respondent’s stand was that there was still a balance outstanding
and hence the need for him to participate as a beneficiary in the
sale.

The
matter came before Silungwe, J., on 16^th October 2000 and
it is evident that it was fully argued, but regrettably the record of
appeal does not contain a text of the submissions made by the counsel
who represented the parties. In his judgment delivered on 17^th
October 2000 the learned trial judge first recognized the issues
raised by the notice of motion as exactly those hereinbefore set out.
However, after summarizing the arguments made by counsel he made
determinations only on two of the issues aforesaid. On the issue
whether or not the application was properly made on an urgent basis
he held that it was properly so made. The second determination was
that the first respondent would be prejudiced if he was excluded
from participating in the sale. In the event, the learned judge
rejected the prayer to have the advertised sale cancelled or
suspended. In consequence of the judgment, the learned judge then
ordered the parties to bear their own costs. However according to an
explanatory note made by the Registrar of the High Court and
appearing on page 9 of the record of appeal, the judge a quo on the
day following the delivery of the judgment, amended the costs order
and stated the following :

“ ………. I decline to
award the cost on the scale asked by Mr. Dicks - who in the court
a quo represented the respondent -, and instead the respondent
will be entitled to ordinary costs.”

This
amendment in fact appears as an appendage to the judgment though it
is not dated.

The
applicant was dissatisfied with the whole judgment and he entered a
notice of appeal against it on the following grounds :

1. The
   Court erred in not ordering that the Sale in Execution as advertised
   in respect of this matter, for the 18^th of October 2000,
   12.00 noon, be cancelled and the attached goods be released from
   attachment, alternatively that the sale be suspended, pending the
   final outcome of the application proceedings.

   
   

2. The
   Court erred in not ordering the Respondents not to use the Warrant
   issued in this matter to extract further funds from the Applicant or
   to instruct the Deputy Sheriff to make further attachments of the
   Applicant’s property.

   
   

3. The
   Court erred in ordering the costs of the application to be paid by
   the Applicant.

   
   

4. The
   Court specifically erred in amending its own costs order, which
   originally was that each party pays its own costs, into one to read
   that the Applicant pays the costs.

   
   

5. The
   Court erred in not finding that the Applicant had made out a prima
   facie case to the effect that he had paid the amount to which
   the First Respondent was entitled, in terms of its Warrant, and had
   in fact overpaid such amount by N$122,298.00, alternatively, (if one
   takes into account the claim for additional interest which First
   Respondent claims to have been omitted from Appellant’s schedule
   of payments (Annexure B) ), an amount of N$76,875.21.

   
   

6. The
   Court overlooked that in order to disprove the prima facie
   case made out by Appellant, the Respondent would have to prove that
   he was still entitled to money and was still entitled to
   participate in the Sale in Execution, in terms of its Warrant, and
   if so, by how much. That figure should have been available to the
   Respondent since it should have advised the Deputy Sheriff precisely
   to how much it was still entitled under its Warrant.

   
   

The relief prayed for in the
appeal is that this court should “ reverse the order of the court
a quo and to grant an order in terms of paragraphs 2, 3
and 4 of the notice of motion. (The other aspects of the motion no
longer being relevant to these proceedings) with costs.”.

Arguments
in this Court

The
applicant and respondents were ably represented respectively by Mr.
Heathcote and Mr. Dicks.

One
legal issue raised for the first time by Mr. Heathcote in this
appeal related to the question whether the writ of execution upon
which the second respondent exacted payments had included enough
information as to the interest exigible and incidental to the
judgment debt. Mr. Dicks however wondered whether it was competent
to raise an issue which had not been raised in the court below. Mr.
Heathcote retorted by praying in his aid paragraph 368 of the Lawsa,
Volume 3(1). According to that authority the practice of raising
issues on appeal which were not raised at the trial is sanctionable
provided that such issues were covered by the printed evidence as it
appears in the record of appeal. I shall deal with this issue
straight away.

In
this jurisdiction there is no substantive rule of law requiring an
appellant to state beforehand what grounds he relies on in entering
an appeal against the judgment of the trial court. The requirement
is merely to state whether the appeal is against the whole or part
only of the judgment. This comes out clearly in rule 5 of the
Supreme Court Rules which is captioned “ Procedure on Appeal.”
Perusal of all the 16 subrules under this Rule shows no requirement
from appellants to file grounds of appeal. In some other
jurisdictions not only is the appellant required to spell out his
grounds of appeal but he is also not allowed at the hearing of an
appeal to raise issues extraneous to the grounds of appeal. The
common sense reason for the injunction against new issues is that
such practice takes the other side by surprise since he is entitled
to know from the papers served on him before the hearing date what
issues he has to meet at the trial or hearing. Therefore the
raising of fresh issues at the appeal hearing is held to be
prejudicial and therefore not allowed, unless, of course. leave to
raise such issues is first obtained and normally in such a case the
other side would be allowed an adjournment in order to prepare an
answer to the new issues. However on the strength of paragraph 368
of volume 3(1) of Lawsa, I shall and do accept that in this
jurisdiction it is competent for a party to an appeal to raise new
issues which were not raised in the lower court, provided that they
are covered in the printed evidence in the record of appeal..

I
shall consequently now deal with Mr. Heathcote’s complaint that
the writ of execution (already reproduced hereinbefore) did not
specify the rate of exigible interest. In this connection it is
useful to go back to the founding summons upon which judgment was
awarded in the first respondent’s favour on 10^th June
1996, as earlier noted. In it interest was claimed at 20% per annum
from the date of service of the writ of summons to the date of
payment of the judgment debt. In the writ of execution issued out at
the instance of the first respondent as judgment creditor, it was
stated, as regards interest, simply “ interest thereon at percent
per annum a tempore morae.” It will be observed that in
this regard the reference to interest was purportedly in conformity
with the order made by Strydom, J.P. on 10^th June 1996
(see above).

In the heads of arguments filed on behalf of the
appellant it is stated at paragraphs 7 and 8 to the effect that the
actual interest exigible ought to have been explicitly specified.
It was contended that the statement

“ interests thereon at percent per annum a
tempore morae” was incomprehensible. It was further stated
that a party “should stand or fall by his writ of execution”
(paragraph 8). Therefore in as much as the first respondent failed
to specify the interest, his writ of execution was bad, the argument
went on.

It
suffices to state that on behalf of the first respondent it was
submitted that the phrase “a tempore morae” implied
interest at the rate of 20% from the date of the summons to the date
of payment.

The
genesis of the phrase “ a temporae morae” is the Rate
of Interest Prescribed by Act No. 55 of 1975: AG105 of 1985. That
statute specified such interest at 20% for the period running from
the service of the founding writ to the date of payment. See also
the case of BORTON AND A V PENINSULA CONSTRUCTION (PTY) LTD 1959
(4) SA 366 (CPD). Evidently this statutory instrument is of South
African origin but for political and historical reasons it was
applied in Namibia during the period before independence since
Namibia was then a dependency of South Africa. Article 140 of the
constitution provides as hereunder :

“ 140 (1). Subject to the
provisions of this constitution, all laws which were in force
immediately before independence shall remain in force until repealed
or amended by an Act of Parliament or until they are declared
unconstitutional by a competent court.”

Neither
of the two contingencies spelt out by Article 140(1), upon
continuation of which pre-independence legislation depends, has
occurred. Therefore I find that the said 1985 statutory promulgation
relating to interest a tempore morae is still part of the law
of Namibia. I specifically hold that the statement in the writ of
execution cannot be faulted merely by reason that it failed to
specifically state the rate of interest. What was omitted from it
was amply ameliorated by the reference to “a tempore morae.”
The argument on this point therefore fails.

The
next argument was in regard to the costs orders made by the judge a
quo. The original order made on 17^th October 2000 was
that each side should bear its own costs. The following day, with
no explanation at all, this was changed to an order that the
respondent (evidently meaning the first respondent) should be
entitled to ordinary costs.

It was argued by Mr. Heathcote on the appellant’s
behalf that the second day’s amendment of the costs order was
illegal. This argument was conceded by Mr. Dicks for the
respondents.

It
is trite law that a trial judge becomes functus officio once
he/she has delivered and signed a judgment or order. He/she has no
jurisdiction ex mero motu to amend or review that order
thereafter. As it was held in the case of BRIGHT V SELLAR (1904) I
KB6 a trial judge cannot correct a mistake of his own if the order as
drawn up correctly expresses his intention at the time.

The
foregoing notwithstanding, I am of the view that the original order
requiring each party to bear its own costs cannot stand. It was
wrong in law. The general rule is that costs follow the event. To
depart from the general rule, the court must show that special
circumstances exist to justify a variation from the general rule. In
this case no such circumstances were cited. I would therefore quash
the original order. The axe I have used to strike down the original
order will not spare the substituted or amended order of 18^th
October. The judge had no jurisdiction to make it. The reasons for
saying this have already been stated.

The
issue on whether or not the judge a quo was wrong not to
cancel or suspend the sale of the attached goods of the appellant has
also been a bone of controversy in this appeal. However in my view,
to raise dust on it would be no better than flogging a dead horse.
The sale did take place as advertised and therefore nothing can be
done at this stage to cancel or suspend that sale. If ever there was
need to say anything on this issue, seeing that the appellant has
made reference to cases such as SANTAM LTD V NORMAN AND ANOTHER
1996 (3) SA 502, it is this. In Santam it was held that a court had
a judicial discretion to grant a stay of execution where real and
substantial justice required such a stay where an injustice would
otherwise have been done. The present case can easily be
distinguished from Santam. Here there were more stakeholders in the
advertised sale in execution than the first respondent alone. It
would not have availed the appellant much even if the first
respondent/judgment creditor was excluded. The sale would still
have gone ahead as regards the other creditors since the notice of
motion instituted by the appellant affected only the first
respondent. In my considered opinion it would have been the height
of injustice to have cancelled or suspended that sale in the
circumstances prevailing.

I
think that the high point and gravamen of this appeal lies in the
issue whether or not a writ of execution, once executed, can be acted
upon subsequently if upon first execution the judgment debt is not
fully exacted. It was Mr. Heathcote’s contention that once a writ
of execution has been executed and the judgment debt is only partly
paid, that writ cannot be reissued for use on a subsequent occasion.
According to him such writ becomes dead and cannot be resurrected.
To sustain that argument he cited some South African cases such as
GERBER V STOLZE AND OTHERS 1951(2) TPD 166 and SONIA LTD V
LINTON 1927 TPD 76. In my view we do not need to go to South Africa
to seek a solution to this issue as there is adequate material at
home here in Namibia to enable the court arrive at a solution. This
is to be found in Rule 45 (12)(g) of the High Court Rules
which states

“ Payment of the amount due
under and in respect of any writ and all the costs and the like,
incidental thereto, shall entitle the person paying to a withdrawal
thereof.” The interpretation which I attach to this rule may be
tabulated as follows :

1. As the person paying the
amount in the writ of execution (the judgment debtor) is entitled to
a withdrawal of the writ only after he has paid in full the amount
endorsed thereon, all costs (assuming these costs have been taxed)
and other amounts incidental to the judgment debt (such as interest),
by necessary implication if those amounts are not fully liquidated
then the entitlement to withdrawal of the writ does not exist.

2. Since
   the judgment debtor’s entitlement is one of withdrawal upon
   complete payment, ergo the writ is presumed under the law to survive
   a partial execution.

   
   

3. As
   the writ lives on after partial execution, it is capable of being
   reissued for subsequent execution.

   
   

There
was a half hearted further submission made to the effect that before
subsequent execution of the writ there was need on the first
respondent’s part to apply for re-issue of the same. This was a
tacit concession running counter to the earlier submission that after
the first partial execution a writ becomes invalid and of no further
use. Unfortunately there was no evidence, or even a submission in
the court a quo, on this point. Any decision one way or the
other would be pure speculation, which this court cannot entertain.

Lastly
there was an argument as to whether the appellant had fully paid all
that was owing on the judgment debt. According to the judgment of
Justice Silungwe the appellant’s claim in the court a quo
was that “ the total amount has been paid several times over in
thousands of dollars.” However as Silungwe, J, stated, the task
before him was not to determine whether or not the judgment debt had
been paid. The notice of motion before him asked for specific
reliefs. These reliefs, barring the one granted to the appellant
relating the need to abridge the procedure in instituting the notice
of motion on the ground of urgency, were :

“ 2. Ordering that the
sale in execution advertised for the 18^th of October 2000
at 12.00 be cancelled and the goods attached be released from
attachment, alternatively that the sale is suspended pending the
final outcome of these proceedings.

3. Ordering
   the respondent not to use the warrant of execution issued in
   this matter to extract further funds from applicant, or to instruct
   the Deputy Sheriff to make a further attachment of applicant’s
   property.

   
   

4. Ordering the
respondent to pay the costs of this application.

7. That the relief
sought in Prayer 2 operate as an interim interdict

pending the finalisation of the relief claimed in 2, 3 and 4
above.”

Quite
clearly none of these related to the question of what level, if any,
of indebtedness still subsisted on the judgment debt. Those reliefs
were to have been delved into on 20^th November 2000, the
return date of the notice of motion. I would therefore agree with
Silungwe J, that the issues before him did not include one calling on
the court to determine whether or not the judgment debt had been
paid.

In
the final analysis this appeal cannot succeed and it is therefore
dismissed. In consequence I hereby make the following orders :

1. The
   appeal is dismissed

   
   

2. The
   order made by the court a quo on the 18^th of
   October, amending the earlier order relating to costs is quashed.

   
   

3. In
   as much as the court a quo lacked jurisdiction to make a new
   order on the 18^th October, that order is also quashed as
   being null and void.

   
   

4. This
   court orders that the costs of the hearing in the court a quo
   shall follow the event. Therefore those costs are awarded to the
   first respondent.

   
   

5. The
   costs of this appeal are also awarded to the first respondent.

   
   

6. The
   costs in 4 and 5 above are to be taxed in default of agreement.

   
   

-----------------------------------

CHOMBA, A.J.A.

I
agree

------------------------------------

O’LINN,
A.J.A

I
agree

-------------------------------------

MANYARARA, A.J.A.

COUNSEL
ON BEHALF OF APPELLANT : MR. R. HEATHCOTE

INSTRUCTED
BY : A. VAATZ and PARTNERS

COUNSEL
ON BEHALF OF RESPONDENTS : MR. G. DICKS

INSTRUCTED
BY : LORENTZ and BONE