IN THE HIGH COURT OF
Case no: I 3792/2012
Case no: I 367/2013
the matter between
VENTER LEGAL PRACTITIONERS
J FEEDLOT (PTY)
OF THE COURT GOBABIS
OF THE REPUBLIC OF NAMIBIA
citation: Van Zyl v Bennie
Venter Legal Practitioners and Others (I 3792/2012)  NAHCMD 348
(22 October 2013)
22 October 2013
22 October 2013
application for consolidation of two actions. The respondents opposed
the application on the grounds that case no. 3792/2012 a delictual
claim, where the closure of pleadings is a distant prospect because
of opposed interlocutory application, will unduly delay the
finalization of case no. I 367/2013. The latter case is one for meat
sold and delivered where only the extent of the debtor’s
indebtedness is in issue. The pleadings in that matter have closed
and case management is at an advanced stage. The court found in its
discretion that it would not be convenient to consolidate the two
actions. Application for consolidation dismissed with costs.
The applicant, in this interlocutory application for consolidation of
two actions, is the defendant in case no: I 367/2013 and the
plaintiff in case no: I 3792/2012. There are four respondents
in this application. The second respondent is the plaintiff in
case no: 367/2013 and the other three respondents are cited together
with the second respondent as defendants in case no: 3792/2012.
In case no: 367/2013 the applicant is sued by Big J Feedlot (Pty)
Ltd, hereinafter referred to Big J Feedlot for the sake of
convenience. I refer to the applicant by that designation.
In case no: 367/2013 Big J Feedlot claims the sum of N$358 394-70
from the applicant. This sum represents the purchase price for meat
sold and delivered to the applicant. The claim is also on the
basis of or with reliance upon an acknowledgment of debt which the
applicant signed in favour of the Big J Feedlot, which I refer to as
the acknowledgement of debt.
The applicant filed a plea in that action which has recently been
amended. In it, she admits being indebted to Big J Feedlot but does
not admit the extent of that indebtedness and essentially puts Big J
Feedlot to the proof of the sum claimed by it. The applicant
also admits signing the acknowledgment at the debt but says that this
was under duress by the legal practitioner for Big J Feedlot, Bennie
Venter Legal Practitioners. The applicant raises certain other points
concerning the legality or enforceability of the acknowledgement of
debt. The pleadings in this case are closed. It has been
referred to judicial case management.
In the course of a judicial case management meeting on 7 August 2013,
the applicant indicated an intention to apply for consolidation of
this action with case no. I 3792/2012. I placed the applicant on
terms to bring such an application, if she elected to do so.
That application is before me and is opposed by Big J Feedlot
together with two of the other respondents, cited as defendants in
case no. I 3792/2012 but not the Government of Republic of Namibia,
also cited as defendant in that action. It has not entered the fray
in this consolidation application even though it has been served with
the application, as was pointed by Ms Petherbrigde who appears for
In case I 3792/2012, the applicant is the plaintiff in a delictual
claim for damages of both a special and general nature. It is against
the legal practitioner firm representing Big J Feedlot, Bennie Venter
Legal Practitioners as first defendant, (which represented Big J
Feedlot in Gobabis). Big J Feedlot is the second defendant, the
messenger of court is cited as third defendant and the Government of
Namibia as fourth defendant.
The claim arises from a default Judgment which Big J Feedlot had
obtained in the magistrates court, Gobabis against the applicant in
respect of the same acknowledgment of debt. In the particulars
of claim in that action, the applicant claimed that the
acknowledgment of debt was signed under duress applied by the first
defendant, the legal practitioners of Big J Feedlot. There are also
further complaints that the acknowledgment of debt is defective
which, so it is claimed, result in its invalidity and enforceable.
The applicant as plaintiff claims that Big J Feedlot and its lawyer
had wrongfully instituted the action against her and the messenger of
the court had wrongly and unlawfully proceeded with the execution of
the judgment thus obtained in the magistrate court. Although
wrongfulness is not specifically alleged against the Government, it
was pointed by Ms Petherbridge in argument that the clerk of the
court who she referred to as, ‘resorting under the Government’,
is referred to in the particulars of claim as having acted
In case no. I 3792/2012, a request for further particulars was filed
and further particulars were supplied some months later. The
defendants in that action claim that certain of the answers are not
complete. This complaint is now the subject of an application
to compel further particulars.
The applicant in this application for consolidation, states that both
actions involve the same acknowledgment of debt, and that the causes
in both claims are based upon it. The submission is made by Ms
Petherbridge that it would then be convenient to consolidate the two
actions which would avoid the duplication of evidence, contending
that the circumstances surrounding the acknowledgment of debt are
raised in both matters and would entail evidence which would be
necessary in both actions.
This application is however opposed by certain of the respondents as
I have pointed out. The basis of opposition is primarily raised
by Big J Feedlot as it is entitled to do. It contends that the
balance of the purchase price of the meat sold and delivered to the
applicant is what is essentially in dispute in case no. I 367/2013
and that the acknowledgement of debt is relied upon in support of
that claim. The point is then taken that the actions are not
similar although Ms Petherbridge correctly pointed out that the
causes of action do not need to be similar for convenience to dictate
their consolidation. But it was pointed out by Mr P Barnard on
behalf of Big J Feedlot that the claim for payment in respect of the
meat is only disputed as to the extent of the sales and payment for
them. There is thus no dispute that meat was in fact sold and
delivered. The reason for non-payment provided in the pleadings
would appear to be that the applicant is not sure as to what amount
is outstanding and would want that to be determined. But it is also
stated that the applicant at the time when the plea was filed did not
have the ability to make payment of the whatever amount may be found
to be payable as far as she was concerned. As I have indicated,
the acknowledgement of debt is also relied upon. The applicant says
in her plea that it had been signed under duress and that it is also
void or voidable for certain further reasons of a legal nature.
The respondents also point out that the delictual claim in case no. I
3792/2012 does not relate to the debtor/creditor relationship which
forms the basis of the claim in case I 367/2013 which primarily
concerns the question as the extent of the applicant’s
indebtedness in that action. Case no. I 3792/2012 rather concerns
alleged wrongful action in proceeding of upon an acknowledgment of
debt in the magistrate court and alleged wrongfulness in the
As a consequence, Big J Feedlot contends that it would not be
convenient to consolidate the matters because there would be an undue
delay in case no. I 367/2013 which, Mr Barnard pointed out, is a
commercial claim where only the extent of indebtedness is essentially
an issue. He pointed out that the pleadings have closed in that
matter and judicial case management is at an advanced stage and that
it is nearly ripe for trial with discovery having been given by both
sides. The pleadings in the other matter are said to be far
Mr Barnard submitted there is in fact the spectre of protracted
delays caused by opposed interlocutory matters looming largely in
case no. I 3792/2012. He referred to the opposed application to
compel. He also indicated that the respondents he represented in that
action would, depending upon the particularity provided pursuant to
the application to compel, except to the particulars of claim in that
matter with reference to the manner in which the claim is pleaded in
the particulars of claim. He thus pointed out that the closure
of pleadings in that action is a relatively distant prospect.
Mr Barnard also submitted that the applicant’s attack upon the
acknowledgment of debt was essentially a red herring. He
further submitted that the issues raised attacking the validity of
the acknowledgment of debt on other grounds were devoid of any have
merit. It would not be appropriate for me to enter into that debate
at this stage except to say that certain of the other points raised
against the acknowledgement are matters which would not require much
evidence and are rather the subject of legal contention. The
allegation of duress, Mr Barnard submitted, was not properly set out
and that no specificity had been provided even after expressly and
The allegation of duress is contained in the amended plea in case no.
I 367/2013 in paragraph 7.1 in the following way:
‘The document was signed under
duress and false pretences made by Mr B Venter legal practitioner for
applicant to me.’ (sic)
I have also had regard to the other documentation on the court file
(in case no. I 367/2013)including the opposing affidavit which was
provided in an application for summary judgment brought by Big J
Feedlot after the applicant had entered an appearance to defend.
Inexplicably, the issue of duress is not specifically referred
to in that affidavit, despite rule 32 which requires that a party
must set out her defence fully in order to establish a bona fide
defence to an action. What is however stated in paragraph 8 in
that affidavit is merely the following:
‘Mr Bennie Venter lawyer for the
applicant came to my office on 16 April 2012 and indoctrinated me to
sign annexure POC2 (the acknowledgement of debt) which I did.
The creditor only signed and Mr Venter only stamped the annexure
subsequent to an attempt to snatch judgment and execute an illegal
warrant in the magistrates’ court in Gobabis. I was
petrified to lose my business and he unduly influence me to sign
The word duress is not even used in that affidavit at a time when she
was legally represented.
I turn to the action in I 3792/2012 and the particulars of claim and
way it is raised in the pleadings. There is a reference to duress in
paragraph 16, in the following terms:
‘ The plaintiff had signed
annexure A1 under undue duress by the first defendant (Mr Venter, Big
J Feedlot’s legal practitioner) without having been apprised of
the contents thereof and consequence thereof.’
That is the extent of the allegation as to duress in both actions.
There was a request in the request for further particulars in case
no. I 3792/2012 for amplification of this allegation. The applicant
was specifically asked what alleged actions by the first defendant
(Mr Venter) constituted undue duress. Full particulars were required.
The applicant was also asked what was meant by ‘undue’.
In answer to these questions, the applicant as plaintiff in that
action astonishingly answered that the particularity requested
constituted evidence and not strictly necessary to plead and was
accordingly refused. The law is however quite clear on this. If a
party wants to rely upon duress, that party must allege
and prove five specific elements in order to do so, as is made clear
by Harms, JA in Amler’s
Precedents of Pleadings.
The elements are
the threat of considerable evil to the person concerned or to her or
his family which induced fear;
that the fear was reasonable;
that the threat was imminent or inevitable evil and induced fear;
that the threat or intimidation was unlawful or contra
that the contract was concluded as a result of the duress.
five elements must thus be alleged and proven by a party seeking to
rely on duress. The allegations must thus be in the pleadings.
Those elements do not merely constitute questions of evidence.
I also refer to Arend
v Astra Furnitures Pty Ltd
which has been frequently followed by this and other courts and
In order for me to exercise my discretion in determining whether it
would be convenient to consolidate these matters, I would need to
have some understanding or appreciation as to the ambit and extent of
the evidence which would be avoided in duplication.
It is not clear to me from the impermissibly vague and unspecified
allegation of duress in the pleadings, compounded by the mere
reference to indoctrination and not even duress deposed by the
applicant. When the applicant thus made an affidavit where she was
required to fully set out her defences, she did not even refer to the
legal concept of duress or even explain the requisite components of
it with any specificity, except to use the word ‘indoctrinated’
and that she was petrified to lose her business. This does not
necessarily imply that there was duress, as is contemplated by the
authorities. The actual verb used in respect of Mr Venter’s
conduct is ‘indoctrinate’. It is defined in the
authoritative New Shorter Oxford Dictionary
as being ‘imbue with an idea or doctrine, teach systematically
to accept (especially partisan and tendentious) ideas uncritically
and to brainwash’. That is a far cry from the threatening
conduct contemplated by duress as a legal concept. What further
compounds matters in this instance is that this allegation is
directed against an officer this court at a time when the applicant
was legally represented. It constitutes a delict and wrongful
conduct which, I would have thought, would have been better explained
and specified – not only with reference to what is required by
pleading that cause of action, but also when it comes to persuading
me, as the applicant must do, bearing in mind the onus, that the
consolidation of the actions would be convenient and would avoid the
duplication of evidence.
I also take into account the spectre of delays in case no. I
3792/2012, given the refusal to supply particularity which the
defendants are is clearly entitled to on the strength of the
authority I have already referred to. What further concerns me in
that matter, as was specifically intimated by Mr Barnard, the
respondents (defendants) he represents in that action would in all
likelihood except to the particulars of claim in the current
This would all necessarily entail the determination of not only an
opposed interlocutory motion for the particulars to be supplied, but
also a hearing in relation to an exception. That may in turn give
rise to further pleadings to be exchanged before the pleadings will
eventually be closed in that matter.
Although both actions do involve the acknowledgment of debt, case no.
I 3792/2012 primarily concerns the execution process in respect of
the default judgment against the applicant. Although the attack
of duress is raised in that matter, I have already indicated that it
is entirely unspecified, despite the request for particularity made
but which was refused.
In the weighing process, I should consider these factors I have set
out against the fact that case no I 367/2013 is ready to proceed to
trial after the pre-trial conference takes place. That can be
arranged at short notice and the trial could then be set down.
I would anticipate that that is capable of being heard and determined
in the first term of 2014.
Although there would be some overlap of evidence, the applicant bears
the onus of establishing that overlap. But she has not been able to
do so properly, given the fact that the allegation regarding duress
is so hopelessly and impermissibly unspecified. As against
that, I take into account that the issues are fundamentally different
in the two different matters. Whilst there may be some
advantage if both cases could be heard together, that may conceivably
in my view arise if both had reached the same stage of pleadings.
But in this instance there is a limited (and as yet indiscernable)
degree of overlap which I am unable to determine as that issue is not
been properly pleaded, given the lack of essential averments. I take
that into account the prejudice which Big J Feedlot would endure by
the real prospect of delays in its matter claiming payment for meat
sold and delivered which is ready to go to trial and where the
applicant only disputes the extent of her applicant’s
indebtedness (though the acknowledgement raised in support of that
claim is also disputed). I also take into account the potential
advantage of consolidation but this has not been properly made clear
by the applicant given the lack of specificity on the question of
duress and the way in which it has been pleaded, including in the
answering affidavit where it was not explained or even given that
label. I also take into account the real prospects of delays because
of the pending opposed interlocutory application and the prospect of
an exception which would need to be determined.
It would seem to me that it is not, in the exercise of my discretion,
convenient as is contemplated by Rule 11, to consolidate these
actions. The costs in my view are also not likely to be
significantly reduced by consolidation. In the exercise as of
my discretion, I decline this application for consolidation.
It follows that case no. I 367/2013 should proceed to a pre-trial
conference. It has been pointed out to me that both parties
have discovered and that the pre-trial conference should proceed and
a date for that trial should be allocated.
As for case no. I 3792/2013, I was informed in the course of argument
by the parties that a date for the hearing of the application to
compel had not been allocated because of the intention to bring the
consolidation application. I have resolved to direct that that
action (case no. I 3792/2013) be referred to judicial case management
and that the parties are to be given notice as to the date of the
first judicial case management meeting in due course. I am not
in a position to do that today because of the fact that the office of
the Government Attorney which has filed a notice to defend is that
matter, has not participated in these proceedings. Before I make my
order it remains for me to express my appreciation to both counsel
for their preparation and argument in this application.
The order I accordingly make in this application is as follows:
application for consolidation is dismissed with costs. Those costs
include the costs of one instructed and one instructing counsel.
Case no. I
367/2013 is postponed for a pre-trial conference to be held on 20
November 2013 at 15h30.
Case no. I
3792/2012 is to proceed to judicial case management, despite the fact
that the pleadings have not as yet closed.
Sisa Namandje & Co. Inc
1974 (1) SA 298 (C) at 306.
1986 (2) SA 325 (T) at 330 as well as the authorities which have
been usefully collected in Amler’s Precedents and
(1993 edition) Vol 1 at p. 1353.