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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
CASE NO: HC-MD-CIV-MOT-GEN-2020/00203
In matter between:
JOHAN ANDRE PENDERIS 1ST APPLICANT
PHILLIPUS VILJOEN ELLIS 2ND APPLICANT
ADOLPHINE MUSHIMBA 3RD APPLICANT
JUNE WAILLING 4TH APPLICANT
DESIREE REVIGLIO 5TH APPLICANT
DANILO MIWA REVIGLIO 6TH APPLICANT
DOMINIQUE GUISEPHINE REVIGLIO 7TH APPLICANT
and
MARÉN BRYNARD DE KLERK 1ST RESPONDENT
THE MASTER OF THE HIGH COURT OF NAMIBIA 2ND RESPONDENT
PIETER DANIEL THERON 3RD RESPONDENT
BORRIS ERASMUS 4TH RESPONDENT
STOAN HORN 5TH RESPONDENT
CELESTE COETZEE 6TH RESPONDENT
PETRUS GERHARDUS STRAUSS 7TH RESPONDENT
NORMAN TJOMBE 8TH RESPONDENT
Neutral Citation: Penderis v De Klerk (HC-MD-CIV-MOT-GEN-2020/00203
[2020] 392 NAHCMD (28 August 2020)
CORAM: MASUKU J
Heard: 5 August 2020
Delivered: 28 August 2020Reasons: 3 September 2020
Fynote: Urgent application – Requirements of Rule 73 (4) – Premise in
urgent applications that allegations of fact made by the applicant are assumed
to be correct reiterated.
Administration of Estates Act – Requirements of section 53 (a) –
Consequences of non-compliance therewith by Executor – Such Executor to
be removed by the Court in terms of section 54 of the Act.
Meaning of undesirable in section 53 (a) discussed. Appointment of Executors
– Such powers vest exclusively in the Master and not the court – This court
only has powers to remove Executors in terms of section 54.
Fugitive from Justice – What constitutes a fugitive – Requirements to be met
for one to be declared a fugitive from justice – Consequences of being
declared a fugitive from justice – No locus standi in judicio to either initiate or
oppose proceedings – Effect thereof – The matter is to be dealt with on the
basis of the papers filed by the applicants.
Summary: The 1st respondent, who is a director of DHC, was appointed as
an executor for the estates; Estate Late Aaron Mushimba, 1424/2014; Estate
Late Danilo Fernando Reviglio, 1617/2019; and Estate Late Adrienne Betty
Penderis, 1743/2019. In or about November 2019, the Namibian public was
consumed by certain revelations relating to the fishing industry in Namibia.
The allegations which suggest impropriety, including alleged acts of bribery
and corruption, money laundering and other alleged crimes came to be
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dubbed as the fishrot scandal. The 1st respondent was alleged to have been
involved in the so-called fishrot scandal.
In January 2020, the 1st respondent, at the height of the allegations, left
Namibia and has been out of the Republic since then. His whereabouts are
not disclosed and even the court is in the dark as to where exactly he is nor
are the reasons why he left disclosed. He left in his wake with the estates
referred to, uncompleted.
The applicants allege that because of the 1st respondent’s absence from
Namibia, and his inability to be hands-on in the finalisation of the estates, he
should be removed as an executor. They state that they believe that the 1st
respondent left Namibia because of the ‘fishrot scandal’ and has no intention
to return to Namibia any time soon.
The applicants allege further that there are suspicious activities that they have
established which raise eyebrows and suggest some impropriety on the part
of the 1st respondent.
The 1st respondent maintains that he is co-operating with the local authorities
and denies that his absence is because he is a fugitive from justice as
alleged. He maintains that he has not been charged and is not a fugitive
therefor.
He states that he has appointed agents to finalise the outstanding parts of the
estates in question.
The applicants seek the removal of the 1st respondent on the grounds that it is
‘undesirable’ for him to continue in the office of executor, particularly in the
light of his absence from the Republic and the allegations of impropriety and
conflict of interest levelled against him. The applicants brought this application
on an urgent basis and same was opposed.
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Held: the approach to urgent applications is that the court, in dealing with a
matter alleged to be urgent, must proceed from the premise that the
allegations of fact made by the applicant in the matter are issued to be
correct.
Held that: It is accordingly clear that an executor may not leave the jurisdiction
for a period in the excess of 60 days without first having obtained permission
from the Master and in writing to be so absent. Failure to so comply is a
serious violation of the provisions of the Act.
Held further that: There is no provision in the law that allows the Master to
grant ex post facto permission to executors to recognise their absence from
the Republic. That permission, is, properly regarded, pro non scripto.
Held: the 1st respondent has been absent from the Republic for a period of six
months and without authority in terms of the law. This renders it ‘undesirable’
for the 1st respondent to continue occupying the office of executor.
Held further: that it is not desirable that the estates have remained unfinished
for such a long period of time and the wishes of the beneficiaries cannot be
completely ignored.
Held that: The absence from the Republic, unexplained as it is and also being
detrimental to the beneficiaries, is sufficient basis to relieve the 1st respondent
from his duties as executor of the estates in question in terms of section 54 of
the Administration of Estates Act.
Held further that: this court is ill equipped in assessing the fitness and
propriety of a person being appointed as Executor. That an office properly
placed and resourced to perform that task, is that of the Master.
Held: that for a person to be declared a fugitive, it must be shown to the
satisfaction of the court on a balance of probabilities that the said person has
deliberately left the jurisdiction and placed him or herself beyond its reach in
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order to avoid or evade any legal action or proceedings that might be
instituted using the State’s coercive powers.
Held further that: there must thus be a causal link between the flight or
disappearance and the legal action or legal or criminal processes of the State.
Held that: it is not necessary that some coercive powers of the State, e.g.
criminal charges or a warrant of arrest, should have been put in motion for a
person, who spirits him or herself away from the jurisdiction to be regarded as
a fugitive.
Held further that: the definition given in the Lesotho High Court case of
Matsela v Commander Lesotho Defence Force1, namely that a fugitive from
justice is a person who escapes or hides from justice, is the more acceptable
definition.
Held that: Each case must turn on its facts, the fact that the 1 st respondent is
implicated in the scandal alleged and the secretive impromptu nature and
timing of his departure, the non-disclosure of his whereabouts and other
matters, leaves the court entitled, on the balance, to regard him as a fugitive.
Held: that on a balance of probabilities, that the 1st respondent is a fugitive
from justice.
Held that: the proper approach to follow is that of the strong, trailblazing and
still persuasive Mulligan judgment where the court may refuse to allow its
processes to be accessed by a person who is a fugitive from the law, whether
as an applicant or a respondent.
Held further that: the doctrine should be exercised carefully and particularly in
the light of the constitutional imperatives, which ordinarily grant access to
persons and the right to have their disputes determined by an independent
court or tribunal.1 (CIV/APN/504/98 [1997].
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Held that: It is in the gravest of cases that the court may, in its inherent
discretion, disentitle a fugitive from accessing the courts to vindicate his or her
rights or other legal interests.
Held further: that the reasons proffered for the absence should carry some
weight in determining whether the court should exercise its discretion in that
person’s favour.
Held that: The 1st respondent’s duty to the court requires uberimma fides and,
he has not complied with that requirement in this application and this is an
issue the court views in a particularly serious light.
Held further that: in the circumstances of this case, the 1st respondent lacks
the locus standi in judicio and that the matter should as a result, proceed on
the basis of the papers filed by the applicants and where necessary, the
relevant respondents.
The court accordingly granted the application by the applicants with costs.
ORDER
1. The Applicants’ failure to comply with the prescribed time periods and
service and enrolling the matter as one of urgency in terms of the
provisions of Rule 73(4), is hereby granted.
2. The First Respondent’s failure to file his supplementary affidavit
timeously, is hereby condoned.
3. It is declared that the First Respondent has no locus standi in judicio to
oppose this application on account of him being held to be a fugitive
from justice.
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4. It is declared that it is undesirable for the First Respondent to continue
to act as an executor in the following estates, duly registered with the
Master of the High Court:
4.1 Estate Late Aaron Mushimba, 1424/2014;
4.2 Estate Late Danilo Fernando Reviglio, 1617/2019; and
4.3 Estate Late Adrienne Betty Penderis, 1743/2019.
5. In consequence of the provisions of paragraph 3 above, the First
Respondent is ordered forthwith to return the letters of executorship of
the deceased estates mentioned above to the Office of the Master of
the High Court.
6. The Master of the High Court is directed to appoint suitable persons in
the place and stead of the First Respondent as soon as is practicable
but no later than four (4) weeks from the date of this judgment.
7. The First Respondent is ordered to pay the costs of this application, in
respect of the Applicants, upon the employment of one instructing and
two instructed legal practitioners and in relation to the Fifth, Sixth and
Seventh Respondents, upon the employment of one instructing and
one instructed legal practitioner.
8. The First Respondent is ordered to pay the costs of the application
under Case No. HC-MD-CIV-EXP-2020/00202 consequent upon the
employment of one instructing and one instructed legal practitioner.
The matter is removed from the roll and is regarded as finalised.
JUDGMENT
MASUKU J:
Introduction
[1] The role and duties of legal practitioners pervade the entire span of
human life. Strictly speaking, the role of the law in human life commences
before the cradle and ends after the grave. In this regard, the law, like Divinity
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and medicine, deals with the human being from conception, during life and
after death.
[2] In particular reference to the latter, the melodramatic words expressed
in Victorian language by Barrister Samuel Warren of the Lincoln Inns some
150 years ago, become acutely poignant. Asked to lecture on the moral,
social and professional duties of lawyers, the learned Barrister said the
following, in part:
‘Whatever be our talents or acquirements; whatever our tempers or
dispositions, whether we be virtuous or profligate, we may have to take you into our
confidence, and open to you the most secret recesses of our hearts . . . Whenever
our honour, our life our liberty, our property, and those of our families, are
endangered or outraged, to you perforce we must fly in our extremity; living or dying
– yes I say dying, for we descend into the grave, in reliance on the discretion and
integrity with which you have undertaken to carry into effect our wishes on behalf of
those loved ones whom we are leaving behind us; whom we fain shelter, as far as we
may, from calamity and the world’s reverses, by providing for them out of the produce
of a life’s labour, anxiety and privation; and we look to do all this, through the
instrumentality of your judicious and conscientious exertions.’
[3] Three persons, Mr. Aaron Mushimba, Mr. Danilo Fernando Reviglio
and Ms. Adrienne Betty Penderis exited this world on diverse dates, into the
celestial jurisdiction, between 2014 and 2019. They left their acquirements
and lives’ toil, for the benefit of and for ultimate distribution to those they either
appointed in their lifetime, or to those whom the law determined should benefit
therefrom.
[4] Mr. Marèn de Klerk, the 1st respondent herein, was appointed to be the
executor of their respective estates. He was tasked with performing the
exacting duties that lawyers are expected to, after death of the deceased, as
eloquently described by Barrister Warren immediately above. It would appear
that matters in those estates have, in the past weeks, headed in the southern
direction.
8
[5] The applicants have, as a result, approached this court on an urgent
basis, essentially seeking the removal of Mr. Marèn De Klerk, a legal
practitioner, and thus an officer of this court, as the executor in the three
separate estates of the deceased mentioned above. The removal is sought on
the grounds that it is, for one reason, or the other, ‘undesirable’ that he
continues to remain in office to execute the exacting demands of that revered
office of trust.
[6] For his part, Mr. De Klerk does not take the applicants’ allegations
supinely. In his defence, he has emerged from the war chamber, guns
blazing. He takes the view that there are no reasonable or sufficient grounds
at law for the court to hold or find that it is ‘undesirable’ for him to continue
performing the duties of the office.
[7] The remit of this court, in the circumstances, is to determine, with
reference to the papers filed and the requirements of the law, who among the
protagonists, sits ensconced on the correct side of the applicable law. Where
appropriate, the demands of justice and principle, will be placed in the
equation in making the determination required.
The parties
[8] The first applicant, Mr Johan Andre Penderis and the second applicant,
Mr. Phillipus Viljoen Ellis, are major male persons who are trustees of an
entity called the ‘Mushimba Family Trust’, which was founded by the
deceased Mr. Aaron Mushimba on 19 January 2013. This Trust is heir to 50%
of the estate of the late Mr. Mushimba, who proceeded to the celestial
jurisdiction on 31 August 2014.
[9] The third applicant is Mrs. Adolphine Mushimba, an adult female. She
is the widow to the deceased and was married to him in community of
property. The fourth applicant is Ms. June Walling, a major adult female cited
in her capacity as the trustee of an entity known as the ABP Trust. She is
resident in the United Kingdom. This trust is the sole heir to the estate of the
9
late Adrienne Betty Penderis. It suffices to mention that the first, fourth
applicant and the first respondent, are the trustees of the ABP Trust.
[10] The fifth applicant is Ms. Desiree Reviglio, a major female and widow
of the late Mr. Danilo Fernando Reviglio. The sixth applicant is Mr. Danilo
Miwa Reviglio, a major male and son to the late Mr. Danilo Reviglio. The
seventh applicant is Ms. Dominique Giusephine Reviglio, a major female and
daughter of the deceased Mr. Reviglio. She is, together with the fifth and sixth
applicants, heirs to the estate of their father, Mr. Danilo Reviglio. They
represent all the heirs of the said estate.
[11] The 1st respondent, who has already been referred to above, is a major
adult legal practitioner of this court. He is a shareholder and director of the law
firm De Klerk, Horn and Coetzee Incorporated. The firm practises from
Windhoek. It is significant to state that the whole case revolves around the
first respondent as he was appointed as an executor in the three estates
mentioned above, namely the Mushimba, Penderis and Reviglio estates. It is
important to mention that he is also a trustee of the Mushimba Family Trust,
and as mentioned above, of the ABP Trust as well.
[12] The 2nd respondent, is the Master of the High Court of Namibia. She is
cited in regard to her powers vested by section 2 of the Administration of
Estates Act, 1965.2 (‘the Act’). The third and fourth respondents, respectively,
are Messrs. Pieter Daniel Theron and Boris Erasmus, who are legal
practitioners of this court. No relief is sought against them. Their role in the
case will be evident as the judgment unfolds.
[13] The fifth, sixth and seventh respondents are Mr. Stoan Horn, Ms.
Celeste Coetzee and Mr. Petrus Gerhardus Strauss, who are, together with
the first respondent, the directors and shareholders of De Klerk Horn and
Coetzee Inc. No relief is sought against the fifth to seventh respondents. They
were cited for whatever interest they may have in the application.
2 Act No. 66 of 1965.
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[14] The eighth respondent, is Mr. Norman Tjombe, an adult male legal
practitioner of this court. No relief is sought against him either. He, like the
other respondents specifically mentioned above, was cited and joined in the
application for any interest he may have. I should particularly mention that his
name is suggested, as an appropriate replacement of the 1 st respondent
should the court grant the order for his removal in relation to the Mushimba
Family Trust in particular.
[15] For purposes of convenience, I will refer to the applicants as they have
been described above. Having said this, it is necessary to mention that it is
chiefly the first two applicants who are principal actors moving the application.
They have to that end, filed founding affidavit and further affidavits authorised
by the court in the matter.
[16] The 1st respondent, Mr. De Klerk, will be referred to as such. The
Master of the High Court will be referred to as ‘the Master’. The fifth to
seventh respondents will be referred to as the DHC respondents. This is for
ease of reference, without any sting or suggestion to the effect that the 1 st
respondent no longer forms part of that entity. Mr. Tjombe will be referred to
as such.
The relief sought
[17] As intimated earlier in this judgment, the main relief sought is for the
removal of the 1st respondent as executor of the three estates mentioned
above, namely the Mushimba, Penderis and Reviglio estates. For purposes of
completeness, the relief sought is couched in the following language:
‘1. Condoning the Applicant’s failure to comply with the prescribed time
periods and enrolling the application as an urgent application.
2. Declaring the First Respondent undesirable to act as executor in the following
deceased estates duly registered with the Second Respondent under the respective
Master’s Reference numbers as indicated and removing him from that position:
11
2.1 Estate Late Aaron Mushimba, 1424/2014;
2.2 Estate Late Danilo Fernando Reviglio, 1617/2019; and
2,3 Estate Late Adrienne Betty Penderis, 1743/2019.
3. Ordering the First Respondent to return forthwith each of the letters of
executorship issued in respect of each of the estates, to the Second Respondent.
4. Ordering the Second Respondent to appoint the following persons as executors of
the deceased estates referred to in 2 above:
4.1 For the Estate Late Aaron Mushimba, 1424/2014, the Eighth Respondent or such
other person as the Second Respondent may deem fit;
4.2 For the Estate Late Danilo Fernando Reviglio, 1617/2019, the Fifth and/or Sixth
Respondents or such other person as the Second Respondent may deem fit;
4.3 For the Estate Late Adrienne Betty Penderis, 1743/2019, the Fifth and/or Sixth
Respondents or such other person as the Second Respondent may deem fit.
5. Removing the First Respondent as Trustee of the ABP Trust.
6. Declaring the First Respondent incapable, during the period of his life of holding
office as an executor.
7. Ordering the First Respondent to pay the costs of both this application and that of
the preceding application for edictal citation.’
[18] The application is primarily predicated on the affidavit of the 1st
applicant, Mr. Penderis. It is, where necessary, supported by confirmatory
affidavits by one or the other applicant or respondent, where appropriate.
Resignation
[19] It is pertinent to mention this early in the judgment, that during the
course of the proceedings, the first respondent fell on his sword, so to speak,
and tendered his resignation as the trustee of the ABP Trust. This was done
by letter dated 28 July 2020. For this reason, save the issue of costs, the
order relating to his removal as a trustee estate will no longer form part of the
issues for determination by this court. This therefor renders paragraph 5 of the
12
notice of motion, cited above, no longer necessary, to determine in its current
state.
Background
[20] It is necessary for the reader, to place the matter and the present
application in proper perspective. Most of the issues giving rise to the
application can be said to be largely common cause. I will deal with them in
extremely broad-strokes because many of them are neither important nor vital
for the court to deal with when proper regard is had to the real issues in
contention.
[21] In this regard, I should readily align myself with Mr. Corbett for the
applicants, that although a great deal of disputes have arisen, resulting in the
indiscriminate throwing of vitriol, the court’s eyes must be fixed on the ‘prize’
namely, the real issues in dispute and which are critical for the court to
determine in deciding whether the relief applied for should be granted or not’
or whether some of the relief can be properly granted, to the exclusion of
other relief sought.
[22] The case has, as expected, thrown up a lot of what the parties’
representatives referred to as ‘sideshows’, during argument. Foremost among
these was the division within DHC, between the first respondent and his co-
directors. These fractious effects do not stop there. It seems that even some
of the employees of DHC have been sucked into the bowels of the dispute.
These and other issues shall be placed into the correct pigeonhole, namely,
as sideshows. The court will not be side-tracked into dealing with them, as
they marginally matter, if at all, when proper regard is had to the real issues
that bring the parties before court. I should be faithful to my word and focus in
this regard.
[23] The issues which appear to give rise to the present dispute can be
summarised as follows: At different times, the 1st respondent, who is a director
of DHC, was appointed as an executor of the estates mentioned above. In the
13
Mushimba matter, it is important to mention that he was appointed as an
executor testamentary, meaning that he was appointed as an executor by the
deceased during his lifetime, in his last Will and Testament.
[24] In or about November 2019, the Namibian public was consumed by
certain revelations relating to the fishing industry in Namibia. The revelations
were produced by wikileaks and aired on Al Jazeera. Allegations which
suggest impropriety, including alleged acts of bribery and corruption, money
laundering and other alleged crimes were aired and widely disseminated in
Namibia. Certain individuals were arrested in the aftermath. The entire
scenario has since been colloquially referred to in Namibia as the ‘Fishrot
scandal’. The 1st respondent, it must be pertinently mentioned, was alleged to
have also been involved in the so-called fish rot scandal.
[25] In January 2020, the 1st respondent, at the height of the allegations, left
Namibia and has been out of this Republic since then. His whereabouts are
not disclosed and even the court is in the dark as to where exactly he is nor
are the reasons why he left disclosed. He left in his wake, so to speak, the
estates referred to uncompleted.
[26] The applicants allege that because of the 1st respondent’s absence
from Namibia, and his inability to be hands-on in the finalisation of the estates,
he should be removed as an executor. They state that they believe that the 1st
respondent left Namibia because of the ‘fish rot scandal’ and has no intention
to return any time soon to Namibia.
[27] The applicants have also levelled allegations of impropriety, particularly
fraud and conflict of interest against the 1st respondent in the performance of
his duties as an executor. This was in relation to the Mushimba estate in
particular where there was a purchase of shares in an entity known as
Edelweiss by Overo. It is alleged that certain pages of the agreement
recording the purchase price of the shares and the non-refundable deposit
were deliberately falsified. It is also alleged that the initials on page 5 of the
document differ.
14
[28] It is also alleged that in relation to an entity called Agripo, which is the
last remaining asset in the Mushimba estate, there is need to liquidate the
entity and to distribute the proceeds. The applicants allege that there are
suspicious activities that they have established which raise the eyebrows and
suggest some impropriety on the part of the 1st respondent.
[29] In fairness to him, the 1st respondent denied the allegations of
impropriety on his part and has furnished some explanations regarding his
conduct that is brought under spotlight in these proceedings. In relation to the
allegations that he has placed himself beyond the reach of Namibian State
agencies, the 1st respondent maintains that he is co-operating with the local
authorities and denies that his absence is because he is a fugitive from justice
as alleged. He maintains that he has not been charged with any offence and
is not a fugitive therefor.
[30] He states that he has appointed agents to finalise the outstanding parts
of the estates in question, namely, Mr. Pierre Erasmus of P. D. Theron and
Associates. He expresses his frustration at what he alleges is the refusal by
the remaining directors of DHC to hand over the relevant files relating to the
estates to Mr. Erasmus. In any event, he deposes that most of the estates are
nearing completion, one being 95% complete. He thus states that it would not
be proper or advisable to have him removed as the end winding up of the
estates is almost nigh.
[31] I need not burden the judgment any further with the numerous other
allegations and counter-allegations that decorate the papers. In order to deal
with the real issues, I proceed to deal with the legal contentions by the parties
as seen in the papers.
[32] It is important to mention, before venturing into the merits of the
application that there are certain points of law in limine that were raised by the
1st respondent. These are, however, overtaken by a point of law raised by the
15
applicants and the DHC respondents regarding the locus standi in judicio of
the 1st respondent.
Points in limine
[33] The 1st respondent raised certain points of law in limine, namely that
the application is not urgent and that the applicants failed to comply with the
mandatory provisions of rule 73(4) of this court’s rules.
[34] Secondly, the 1st respondent took the view that the applicants have
barked up the wrong tree, as it were, in approaching the court by way of
application. It was his contention that the matter is eminently not suited for
application proceedings but for action proceedings. The court was thus
implored to dismiss the application on that basis.
[35] Lastly, the 1st respondent took issue with the locus standi in judicio of
the 4th applicant Ms. June Wailling. It was in this regard submitted that the
applicants allegedly cited her in her capacity as a trustee of the ABP Trust but
there was no affidavit filed of record by Ms. Wailling. It was further denied that
APB Trust authorised the proceedings, the 1st respondent further questioned
the locus standi of the applicants to bring the application on behalf of the
Reviglio heirs. During argument, Ms. Campbell for the 1st respondent, advised
the court that she could not, in good conscience pursue that point. It was thus
abandoned, probably correctly so.
[36] The court commends Ms. Campbell for her virtuous and ethical
approach in this regard. Officers of the court should not be heard or seen to
blow hot air just to amuse or please their clients in fruitless endeavours and
meandering legal chatter. They have a higher calling than merely doing
bidding for their clients. They rather owe a duty to the court and which ranks
higher than that owed to clients.
[37] It is fitting to mention that there is another legal question that was
brought to the table by the applicants and the DHC respondents, in particular,
16
in their papers. This is the point that the 1st respondent has no locus standi to
oppose these proceedings, as he is a fugitive from justice. As such, because
he has placed himself beyond the reach of the court, the court’s processes
cannot be properly enlisted, in the circumstances, to give effect to his rights
and interests.
[38] I am of the considered view that because of its possibly debilitating
effect on the proceedings in the sense that if upheld, the latter point may bring
the entire proceedings as far as the 1st respondent is concerned, to a
screeching halt, it is appropriate that this issue be decided anterior to all the
other issues raised by the 1st respondent in limine. I therefor proceed to deal
with that issue immediately below.
First respondent’s locus standi
[39] Before embarking on a decision on this issue, it is important first of all
to point out that the argument is not that the 1st respondent has no locus
standi in the classical sense, to oppose the proceedings. There can be no
question that in the ordinary order of things, he has locus standi as the
proceedings are geared to remove him from the office of executor in the
mentioned estates. Surely, a person in his position should and ordinarily does
have the right to oppose such proceedings.
[40] The issue is raised particularly in the light of the remarks in Simplex
(Pty) Ltd v Van der Merwe NNO.3 There, the court stated as follows:
‘Locus standi in iudicio is an access mechanism controlled by the court itself.
The standing of a person does not depend on authority to act. It depends on whether
the litigant is regarded by the court as having a sufficiently close interest in the
litigation.’
[41] The point, however, is that because of his alleged actions, namely
placing himself beyond the reach of the jurisdictional hands of this court and
3 1996 (1) SA 111 (W) at 113h).
17
the Namibian authorities, he has become a fugitive and that this court should
decline to lend its machinery in the enforcement of any of the 1st respondent’s
rights. It is in this limited context that the issue of locus standi must be
considered to turn in this case.
[42] In his spirited address, Mr. Barnard for the DHC respondents argued
and forcefully too, with all the powers of persuasion at his command, that the
applicant is a fugitive from justice because he spirited himself privily from this
jurisdiction in order to avoid the perilous consequences of the ‘fishrot scandal’.
Having done so successfully, the court should not allow him to put his hands
to the plough of opposing the proceedings by remote control, so to speak.
[43] Great store, in this regard, was laid by Mr. Barnard on a number of
cases, chiefly spearheaded by the inimitable judgment of De Waal J in
Mulligan v Mulligan.4 In that case, the court stated that a fugitive from justice
is ‘not only not amenable to the ordinary criminal and civil processes of the
Court, but, as far as this Court is concerned, it cannot call upon him to appear
in person to give evidence under oath; it cannot order his arrest in case the
facts testified to in his affidavit are proved to be false, whereas on the other
hand he will be able to invoke the authority of the Court to incept criminal
proceedings for perjury proved to have been committed by his opponent. . .’
[44] The court ended this treatise on a very high note, stating that, ‘Were
the Court to entertain a suit at the instance of such a litigant it would be
stultifying its own processes and it would, moreover, be conniving at and
condoning the conduct of a person who through his flight from justice, sets the
law and order in defiance.’ This is the tough approach and stance Mr. Barnard
implored this court to adopt. There are other cases in which the Mulligan DNA
can be seen, that Mr. Barnard also moved the court to follow.
[45] Ms. Campbell, for her part, argued that Mulligan has aged and is in
human terms, more than an octogenarian. On proper calculation, Mulligan
would have turned 95 years old this year. Because of its age, she further 4 1925 WLD 164.
18
argued, it no longer represents good law, especially considering its rigidity.
She was at pains to point out that even if a person may be a fugitive, he or
she should still be allowed to access the fountains of justice and to drink from
those pure wells.
[46] She pointed out further that since age-old Mulligan, there have been
very few cases in recent times that have walked in the steps of Mulligan,
adopting the tough stance adopted in that case. It was also her contention
that when proper regard is had to the authorities cited by Mr. Barnard, the
persons who were on the receiving end of the bar to access the courts were
applicants. She argued with vigour that where a person like the 1 st respondent
has been dragged to court, as in the case, it would be odious for the court to
disbar that person from being able to place its defence or opposition to the
court.
[47] Needless to state, Mr. Barnard, in reply stuck to his guns and was
unyielding in his approach. He pointed out cases like Escom v Rademeyer5
where the court remarked, ‘I do not wish to be understood to hold that the
principle in question can never be invoked against the defendant or
respondent who happens to be a fugitive from justice.’ It was thus his final
submission that the status of the litigant, whether an applicant or a respondent
is not determinative as to whether they should be barred if they are fugitives.
What is sauce for the goose, he submitted, must be sauce for the gander.
[48] I am of the view that it is necessary, first of all, to determine what a
fugitive from justice is. Once that has been done, it is in my considered view
necessary to determine whether the 1st respondent, as submitted by both the
applicants and the DHC respondents, is indeed a fugitive. If the return to that
question is in the affirmative, the ultimate question will be whether the 1 st
respondent lacks locus standi, as discussed above, to oppose the present
application. This enquiry will also consider the correctness of Ms. Campbell’s
argument that the Mulligan rule, if I may call it that, applies only to fugitive
applicants or plaintiffs, but not to fugitive respondents or defendants. 5 1985 (2) SA 654 (T).
19
What is a fugitive?
[49] I would prefer, in answering this question, to rely on the authorities.
According to the Shorter Oxford Dictionary, the word fugitive means, one who
‘has taken flight, esp. from duty, justice, an enemy, or a master’. It is clear that
the definition given, is general in nature and scope and may not help to
resolve the quandary in the instant case.
[50] In Escom v Rademeyer6, Stegmann J dealt with the meaning of a
fugitive from justice with reference to the Mulligan case. He said, ‘In that
passage it appears that a “fugitive from justice” may be accepted as being
one who is “wilfully avoiding the execution processes of the Court of the land”
or as one who is avoiding the processes of the law through flight out of the
country (voluntary exile) or hiding within the jurisdiction of the Court.’
[51] In the Zimbabwean Supreme Court case of Mawere v Minister of
Justice, Legal and Parliamentary Affairs,7 the court, in dealing with the
concept of a fugitive from justice, reasoned as follows:
‘There is evidence to show that the appellant left Zimbabwe sometime ago
and is now a citizen of the Republic of South Africa. There is no evidence to show
that he deliberately put himself beyond the reach of the law. There is no evidence to
show that he intended to go into hiding when he left Zimbabwe. It may well be that he
was aware of some unlawful acts on his part when left Zimbabwe, but there is no
evidence to link his departure with the acts that led to his specification.
For this court to hold that he is a fugitive from justice it would have to be shown that
he left Zimbabwe with the intention to flee and deliberately put himself beyond the
jurisdiction of this court to avoid any legal action that might be brought against him, or
that he is in hiding within the jurisdiction of Zimbabwe.’ (Emphasis added).
6 1985 (2) SA 654 (T), at p658.7 (Civil Appeal No. 158/05 ((Civil Appeal No. 158/05)) [2008] ZWSC 12 (10 September 2008).
20
[52] In Baron Camilo Agasim-Pereira of Fulwood v Johnmic Media
Investments Ltd8 Chetty J, following the Escom matter, described a fugitive as
and stated that ’In general, however, a fugitive from justice is one who evades
arrest or prosecution by fleeing the jurisdiction’.
[53] It would therefor appear that for a person to be declared a fugitive, it
must be shown to the satisfaction of the court, on a balance of probabilities,
that the said person has deliberately left the jurisdiction or is in hiding within
the jurisdiction, and has thereby effectively placed him or herself beyond the
court’s reach, in order to avoid or evade any legal action or proceedings that
might be instituted, including using the State’s coercive powers, such as a
warrant of arrest or criminal charges. There must thus, in my view, be a
causal link between the flight or disappearance of the person and the legal
action or criminal processes instituted or apprehended by the State.
[54] The question that will have to be determined is whether the 1st
respondent does fit any of the descriptions above. What can be stated without
fear of contradiction is that he is not within the confines of this jurisdiction.
That is common cause.
[55] In order to decide whether the 1st respondent can appropriately be
referred to as a fugitive from justice, as described in the above judgment, it
will be necessary to have full regard to the allegations and facts placed before
court, both in the affidavits and the argument. It suffices to mention that for his
part, the 1st respondent denies that he is a fugitive. He states that this is so
because no warrant of arrest has been issued against him. He alleges, as will
be seen later, that he is co-operating with the authorities of this jurisdiction.9
[56] The first issue that must be mentioned in this regard, is that the 1st
respondent is indeed implicated in the so-called fish rot scandal and the Anti-
Corruption Commission has stated so in clear terms.10 His name appears in
8 Case No. 3607/2004.9 Para 9 of the 1st respondent’s additional affidavit, p 604.10 Page 463 of the record, marked Annexure ‘J1’.
21
some of the activities alleged. This must not, I caution, be a basis in any
degree, for the court being understood to have imputed any liability to him or
pronouncing a certitude of his guilt. The presumption of innocence, as
provided by the Constitution in Art. 12(1)(d), applies. After the fishrot expose
in November 2019, the 1st respondent abruptly left Namibia in January 2020,
where he is ordinarily resident. He left DHC Incorporated and of which he is a
director.
[57] It is also clear that when he left, some of his professional work was left
unattended and this includes the estates that form part of the orders sought in
this judgment. In particular, there is a review application relating to Agripo, a
private company of which the 1st respondent is the director. According to the
applicants, this company plants crops on property leased from the
Government and which lease the relevant Minister has terminated. The last
day, from the affidavits, is 20 August 2020, which it is common cause, has
since passed at the delivery of this judgment.
[58] The 1st respondent initiated proceedings for the review of the Minister’s
decision. The application for review has not been lodged although papers
were drafted and it so appears, ‘expertly’ by Mr. Barnard, as he claimed.
There is a real fear expressed by the applicants that the application for
review, which I understand has been prepared but not lodged, may be
dismissed for egregious delay. Seeing that the date has passed, this may be
water under the bridge and it would appear that the 1st respondent’s absence
has contributed to this ugly eventuality.
[59] The 1st respondent states on oath that he was booked into a facility that
is unnamed in South Africa for what is alleged to be a medical condition that is
not disclosed either. There is a medical certificate from a Dr. Human that was
sent to the DHC respondents indicating that the 1st respondent was booked
from 17 to 24 January 2020 for ‘Acute medical condition of a sensitive nature’.
He had, according to the 6th respondent, left in January 2020 for pressing
family commitments and to return the following week but did not.11 It would 11 Para 14, p 533 of the record of proceedings.
22
appear that the 1st respondent was at some discharged in February 2020 but
remains in South Africa at an unnamed location.
[60] He alleges, and it must be stated, that it is unclear whether that there
was an attempt or attempts on his life. No details are given regarding the said
attempt(s). No location is given or what exactly it is that happened. What
appears certain, is that this was in South Africa. He gives a case number of
the report he made to a police station that is unnamed and there is no
statement from the investigator confirming the allegations made by the 1 st
respondent.
[61] The 1st respondent claims that he is afraid of returning to Namibia
because some powerful persons may exterminate him. Again, no information
or detail in this regard is given. Mr. Corbett for the applicants queried this and
stated that he does not understand why the 1st respondent does not want to
return to Namibia as it is not his case that there is or has been any attempt on
his life in this country. It was his argument as well that the 1st respondent
should be coming home and that Namibians are allowed, notwithstanding the
COVID 19 pandemic, to return home, subject to being quarantined for
specified periods.
[62] I am of the considered view that there are no clear reasons advanced
by the 1st respondent for his sudden departure to South Africa, which is where
he is touted to be. I say touted because there is nothing before the court
placed by him to say directly to the court where he really is. There is also no
indication, if there is any medical or psychological problem that he is facing,
that he cannot get competent treatment in this country. This both Mr. Corbett
and Mr. Barnard emphasised. It is true that the 1st respondent may ordinarily
be entitled to privacy of medical information. When issues escalate to the
level they have in these proceedings, a waiver, even if only to the court, may
be helpful to him and assist the court in assessing the exact situation
confronting him.
23
[63] It must be mentioned that the applicants had to go to some lengths in
managing to serve the application on the respondent. He did not co-operate,
necessitating that they obtain leave to serve him by way of substituted
service. An officer of this court, would have been expected to do better in this
regard.
[64] Although the 1st respondent claims that he is co-operating with the
officials in this country, he has nothing to show for that. To the contrary, the
Director-General of the ACC, issued a letter, bearing a date stamp of 24 July
2020,12 which states that the 1st respondent is implicated in the fishrot
scandal. The said letter mentions that charges that may be levelled against
him, including corrupt practices, tax evasion, money-laundering and
racketeering. An interview of Mr. Noa, the Director-General of the ACC, with
The Namibian newspaper, is attached as ‘CC2’.13 He states that the matter
has been referred by him to the Prosecutor-General for a decision as to which
charges to prefer against him.
[65] I am of the considered opinion that it is not necessary that some
coercive powers of the State, e.g. criminal charges or a warrant of arrest,
should necessarily have been put in motion for a person, who spirits him or
herself away from the jurisdiction, to be regarded as a fugitive. If that were the
case, people who have ‘eyes and ears’ within the law enforcement agencies,
may be notified in advance of an impending arrest or charges, compelling
them to leave.
[66] Because the charges or warrant of arrest would not have been issued
at the time they leave, they would not be regarded as fugitives even if all the
facts point to them having left to avoid being served and processed in terms of
the law. This is in my view a wrong approach. As long as an event takes place
and which appears to have a sufficient and reasonably strong causal
connection to the flight or disappearance of a person from the jurisdiction, that
12 Page 463 of the record of proceedings, marked Annexure ‘J1’.13 Article entitled ‘ACC Hunts for Fishrot lawyer linked to N$90m’, dated 4 February 2020 at p 551 of the record. It bears a picture of the 1st respondent.
24
should, in my considered view suffice. It is for that reason that I used the
words ‘instituted or apprehended’, in para [53] above.
[67] I am of the considered view that the definition given in the Lesotho
High Court case of Matsela v Commander Lesotho Defence Force14, namely
that a fugitive from justice is a person who escapes or hides from justice, may
be a more acceptable definition. It is wide enough to encompass those who
may not yet had the compulsive powers of the State unleashed against them
but who may have gained the distinct impression that it is only a matter of
time and that they should spirit themselves away from the jurisdiction and
reach of the court precipitately.
[68] Each case must turn on its peculiar facts. In this case, the fact that the
1st respondent is implicated in the scandal alleged and the secretive,
impromptu nature and timing of his departure, the non-disclosure of his
whereabouts and other matters mentioned earlier, leave the court entitled, on
the balance of probabilities, to regard him as a fugitive, as argued by the
applicants and the DHC respondents.
[69] I take particular notice of the fact that the 1st respondent is not an
ordinary litigant, entitled to make decisions that he considers beneficial to him
in isolation of issues with wider societal and legal ramifications. He is an
officer of this court, first and foremost. He describes himself as such in the
affidavits he filed. There is thus a certain standard of behaviour and
particularly disclosure that his status as an officer, exacts on him. He does not
disclose, even to the court where he is and why he is not returning to
Namibia. Allegations of his health, attempts on his life, why he is not returning
to Namibia and just his exact whereabouts, are as scanty as can be.
[70] To the extent that he may have been fearful, rightly or wrongly, for his
life and limb, I am of the view that he should have disclosed this to the court.
This may have been done in a separate affidavit, in which he, as an officer,
would take the court fully in his confidence, and disclose all the material 14 (CIV/APN/504/98 [1999] LSHC 20 (04 March 1999).
25
issues surrounding his departure, his whereabouts and details about his
return or otherwise. As we stand, the 1st respondent does not even give an
address of his particulars as a respondent in these proceedings, which are a
mandatory requirement of the rules of this court.15
[71] His story, as told in his papers, raises more questions than answers. In
this regard, and having anxious regard to the circumstances considered
above, I am satisfied, on a balance of probabilities, that the 1st respondent is a
fugitive from justice and I so find. I do this with a truly heavy heart but also
with a full heart, given the paucity of information he gives and the probabilities
that he has left seriously uneven against him.
[72] The timing, and abrupt manner of his departure, following allegations of
his links to the fishrot scandal, considered in tandem with him leaving his firm
without notice and leaving some clients in the lurch, as the applicants, speaks
volumes about the nature and purpose of his departure.
[73] The secrecy surrounding his whereabouts and the sporadic but
inconsequential mini disclosures he makes leave a bitter aftertaste,
considered in the context of what he does not disclose, some of which is
basic, particularly considered from the perspective that he is an officer of this
court. He does not say why he left Namibia and does not say when he will
return. His is just an indeterminate and unexplained absence, which entitles
the court, from the facts, to declare that the 1st respondent is indeed a fugitive
from justice.
[74] I am not called upon to make any credibility findings but his allegations
in para 176 of his answering affidavit, to the effect that his email address was
not operational for a month leaves a lot to be desired.16 Expert evidence was
tendered by the applicants and which remains unchallenged, that this
allegation by the 1st respondent is palpably false as his email address was
fully functional. I say nothing more on this issue. This finding is mentioned in
15 Rule 6(4)(a).16 Page 265 of the record.
26
the light of the unsatisfactory explanations he gives for the matter not having
been resolved earlier.
First respondent’s locus standi
[75] I now turn to consider the question, having found that the 1st
respondent is a fugitive in the circumstances, whether he is entitled to be
heard. I will undertake a brief review of the cases that the court was referred
to in argument, together with some other relevant cases that the court came
across during its research in dealing with this rather novel situation.
[76] In Mulligan v Mulligan, the court reasoned that because the applicant
had placed himself beyond the reach of the law, by fleeing the country, he
could not therefore claim the protection of the law. The learned Judge
proceeded to say the following at p 167:
‘Moreover, it is totally inconsistent with the whole spirit of our judicial system
to take cognisance of matters conducted in secrecy. It is true the applicant is entitled
to present his petition through a solicitor, but, nonetheless, while disclosing his
whereabouts to his solicitor, he withholds that information from the Court and from
his opponent. As a fugitive from justice, he is not only not amenable to the ordinary
criminal and civil processes of the Court, but, as far as this Court is concerned, it
cannot call upon him to appear in person to give evidence on oath; it cannot order his
arrest in case the facts testified to in his affidavit are proved to be false, whereas on
the other hand he will be able to incept criminal proceedings for perjury proved to
have been committed by his opponent. And, in this case, he would be able to invoke
the authority of the Court to arrest his opponent if she were suspected of flight with
the property sought to be interdicted. Such a litigant might, moreover, conceivably be
the cause of this Court’s being unable to arrive at any decision on the facts sought by
him to be determined, if, during the hearing of the application, were the Court to find
that justice could not be done unless he was called to give evidence on oath before
it. Were the Court to entertain a suit at the instance of such a litigant it would be
stultifying its own processes and it would, moreover, be conniving at and condoning
the conduct of a person who, through his flight from justice, sets the law and order in
defiance.’
27
[77] In Attorney-General v Spencer and Another,17 the respondents,
Spencer and Georgiou had been found guilty by the regional court for
attempted extortion. They appealed to the High Court in Zimbabwe. On the
date of hearing of the appeal, the 1st respondent did not appear and it later
transpired that he had since left the jurisdiction of Zimbabwe and had thus
breached the conditions of bail.
[78] The High Court ordered the matter to be argued on the merits and the
court, in an ex tempore judgment, noted that the 1st respondent had estreated
his bail and left the country. It nonetheless upheld the 1st respondent’s appeal.
The State appealed to the Supreme Court against that order.
[79] Gubbay CJ, writing for the majority of the court, stated as follows:
‘I entertain not the slightest doubt that in proceeding to hear the appeal and in
making the orders it did, the High Court fell into error. The well-established principle
is that a person seeking to establish his rights in a court of law must come with clean
hands. A fugitive from justice is one who has deliberately put himself beyond the
reach of the law by going into hiding or fleeing the country. The law denies its
protection to such persons. See Mulligan v Mulligan 1025 WLD 164 at 167; Maluleke
v Du Pont NO & Anor 1966 RLR 620 (A) at 624A; S v Neill 1982 (1) RLR 142 (H) at
145 E-F. To do otherwise would be to stultify the process of the law. The High Court
appreciated that it had no discretion to hear the appeal of the second respondent.
Undoubtedly, his action of fleeing signified that he was not prepared to accept or
abide by the judicial process of the country. He had set the law in defiance.’
[80] The court continued and held that, ‘It is my view that these decisions
support the submission advanced in this matter that where the information
available to the State points to the probability that an appellant has unlawfully
left the jurisdiction prior to the hearing of the appeal, or is in hiding, he is
deemed to be a fugitive from justice . . . Until the first respondent was found
and had made some efforts to purge his contempt, of the bail order he had no
right to obtain from the court the relief sought by way of the appeal.’ 17 Judgment No. S.C. 94/2000, Crim. Appeal No. 197/99.
28
[81] It would appear that there are further cases where this approach has
been adopted regarding persons who are regarded as fugitives. The question
whether this ought to also apply to respondents, was considered by
Stegmann J in the Escom case.
[82] At p 662 D of Escom, the learned Judge said the following:
‘I do not wish to be understood to hold that the principle in question can never
be invoked against a defendant or a respondent who happens to be a fugitive from
justice, It may very well be that a fugitive who is a defendant does not enjoy the right
ordinarily enjoyed by a defendant to institute a claim in reconvention. He may suffer
other disadvantages in respect of procedural, and even substantive rights, ordinarily
enjoyed by a litigant. It is not necessary for me to deal with the question on so broad
a basis. I hold that whatever the disadvantages that may be suffered by a fugitive
from justice seeking to answer process of the court issued against him, they do not
deprive him of the right to ask for such time as the Court may deem fit in the
circumstances, to enable him to provide an answer he has been called upon to give. I
hold that the respondent, although a fugitive from justice, he has locus standi to at
least approach the Court for an extension of time in which to comply with the
requirements of the rule nisi.
[83] It is apparent, from reading that judgment, that the court came to the
conclusion that the fact that a person who is a fugitive is a respondent or
defendant, does not ordinarily matter insofar as he or she has no locus standi.
What the court said is that in the peculiar circumstances of that case, it could
not deny the respondent the right to seek an extension within which to show
cause why the rule nisi should not be confirmed.
[84] I can say that Mr. Barnard referred the court to a number of cases that
deal with the principle and it is not necessary to deal with them all in any
degree of detail. These include Botes v Goslin,18 Maluleke v Dupont, NO and
18 1987 (2) SA 716 (C), per Van Den Heever J, (as she then was).
29
Another,19 S v Nkosi,20 Chetty v Law Society, Transvaal.21 This latter case
supported the view that it does not matter whether the person in question who
is a fugitive is an applicant or a respondent. It is doubtful whether the latter
judgment would still stand given the reason that Mr. Chetty gave for his
decision to leave the Republic of South Africa. He stated that he feared
harassment at the hands of the Security Police during the apartheid era. They
were a nightmare to many.
[85] The last case referred to by Mr. Barnard, was Harris and Others v
Rees and Others.22 In that judgment, Horn J gave a rousing approval of
Mulligan and this puts paid Ms. Campbell’s argument that Mulligan has lost its
lustre and should be discarded as law in similar fashion as salt that has lost its
taste and thus fit to be trampled upon.
[86] The learned Judge expressed himself as follows on this issue after
quoting the lapidary remarks which appear at para [44] of this judgment:
‘These are indeed weighty words which cannot simply be ignored, and
certainly these principles should form the bases of the test, of the locus standi of a
fugitive from justice, to litigate. The principles enunciated in Mulligan have stood the
test of time and have been followed in cases such as Maluleke v Dupont and
Another 1967 (1) SA 574 (RA); and HERF V Germani 1978 (1) SA 440 (T). As a
general statement of the law on this aspect, the comments of De Waal J in Mulligan
v Mulligan cannot be faulted. However, I do believe that, when a court has to
consider the right of a person to approach the court for relief, in circumstances where
such a person can either be categorised as a fugitive from justice or a person who
has deliberately placed himself beyond the jurisdiction of the court, in having regard
to the principles enunciated in Mulligan v Mulligan, it will have to deal with each case
on its own facts. I say this for the reason that, to close the doors of the court to a
litigant, will always be a serious thing to do. . . The Mulligan v Mulligan principles
must also be read against the background of the Constitution. The right of a party to
19 1967 (1) SA 574 (RA).20 1963 (4) SA 871 (T).21 1983 (1) SA 777 (T).22 2011 (2) SA 294 GSJ); 2011 (2) SA 294.
30
have access to the courts is a strongly embedded constitutional right which should
not be deviated from.’
[87] The learned Judge proceeded to consider the case of Minister of
Home Affairs v Bickle23. In this case, the respondent Mr. Bickle dealing with
the said case, the learned Judge stated as follows at 300-301:
‘In this case, the Zimbabwean Appeal Court, while not disavowing the
principles enunciated in Mulligan v Mulligan, adopted a pragmatic approach and
considered the matter on its own facts. It had regard to factors such as: that Bickle
had not committed any crime for which he was still to be convicted; that no judicial
process had been issued against him or was contemplated; that any executive
process had been issued against him; that he left Zimbabwe unlawfully or even
surreptitiously; that his continued absence from Zimbabwe was not unlawful; that he
did not hide or sought to withhold information of his whereabouts; or that it has been
shown that Bickle would not be amenable to judicial process which may follow. The
learned judge of appeal also pointed out that in England the courts did not deny a
declared outlaw access to the courts without exception.’
[88] I will revert to the remarks of Mr. Justice Horn in a moment. What I
intend doing at this juncture, before announcing my thoughts and judgment on
whether the 1st respondent has locus standi, in this matter, is to consider
briefly the state of the law in one or two other jurisdictions on this very point.
The learned Mr. Justice Horn mentioned, as quoted above, that in England,
the courts do not issue an absolute bar to an outlaw.
The approach in England
[89] The recent position in England, as I have found it, is in the cases of
Polanski v Conde Nast Publications Ltd24 and Rowland and Another v Bock
and Another25. In Polanksi, the question to be determined, was whether a
fugitive from justice could pursue litigation in England from France, whence he
23 1983 (2) SA 457 (ZS) per Fieldsend CJ.24 [2005] 1 All ER 945.25 [2002] 4 All ER 370.
31
had since become resident. He had wanted to institute proceedings in
England and to tender evidence via a video conference link.
[90] The court in Polanski held that ‘our law knows no principle of fugitive
disentitlement.’ In particular, at p953, the court held as follows:
‘Despite his fugitive status, a fugitive from justice is entitled to invoke the
assistance of the court and its procedures in protection of his civil rights. He can
bring or defend proceedings even though he is, and remains a fugitive. If the
administration of justice is not brought into disrepute by a fugitive’s ability to have
recourse to the court to protect his civil rights even though he is and remains a
fugitive, it is difficult to see why the administration of justice should be regarded as
brought into disrepute by permitting the fugitive to have recourse to one of the court’s
current procedures which will enable him in a particular case to pursue his
proceedings while remaining a fugitive.’
[91] In the Rowland case, the court came to a similar conclusion as in
Polanski. The court reasoned regarding the admission of evidence via video
link that ‘full access to the court for justice in a civil matter should not be at the
price of a litigant losing his liberty and facing criminal proceedings’. The court
in both cases took the view that the reasons proffered by the litigant for failing
to be within the jurisdiction, should be given appropriate weight.
The United States
[92] It would appear, from the brief research allowed by the time constraints
in urgent applications that the United States, unlike England, but the same as
South Africa and Zimbabwe, as established in the cases discussed above,
recognises the fugitive disentitlement doctrine. This is provided for in the U.S.
Code § 2466. It applies where non United States citizens who are fugitives
seek to further ‘a claim in any related civil forfeiture action or a claim in third
party proceedings in any related criminal forfeiture action.’ Accordingly, it
appears that a fugitive may not approach the courts for assistance if that
person is not a citizen of the United States of America.
32
Denouement – whither the First Respondent’s fate?
[93] Having considered the varying approaches to the issue of the fugitive
disentitlement doctrine, to borrow from the United States, it seems to me that
an approach as stated in the case law cited from the Region, is the proper
approach to follow in such cases. English law is markedly different in this
regard and I am not persuaded to follow it to the extent that it differs from the
regional approach, if I may refer to it as such. Simply put, the regional
approach appears to be that of following the strong, trailblazing and still
persuasive Mulligan judgment. In this regard, the court may refuse to allow its
processes to be accessed by a person who is a fugitive from the law, whether
as an applicant or a respondent.
[94] Mulligan can, in the premises, be regarded as having taken firm root in
our soils as the majestic Baobab tree. That judgment has, like good wine,
matured with age. In this regard, it appears that Mulligan written and spiced
with strong preservatives that have survived the vicissitudes of time and
judicial epochs without number.
[95] That said, it must however be mentioned, as correctly observed by
Horn J, in the Harris case, that the doctrine should be exercised carefully and
particularly in the light of the constitutional imperatives, which ordinarily grant
access to persons and the right to have their disputes determined by an
independent court or tribunal. It is therefor in the gravest of cases that the
court may, in its inherent discretion, disentitle a fugitive from accessing the
courts to vindicate his or her rights or other legal interests.
[96] In this regard, I would venture to add, it is not appropriate to lay down
inflexible rules as those of the Medes and the Persians for the court. It is
however, necessary to add that each case must of course, be dealt with in the
light of its own peculiar circumstances. In this connection, the court, it would
appear to me, exercises a discretion, which must, as in all other instances, be
exercised judiciously. To attempt to create a numerus claussus of the
33
circumstances and the considerations may result in trumping that inherent
discretion.
[97] In this particular context, I would cite with approval the words of Horn J
in the Harris case at p 300 where the learned Judge said:
‘What all this tells us is that, even should a litigant fall within the category
classified as a fugitive from justice, it does not follow as a matter of course that the
doors of the courts will be closed to him. I am of the view that the court hearing the
application, and having regard to all the relevant factors concerning the litigant’s flight
or absence from the jurisdiction of the court, will be, in exercise of its inherent
discretion, entitled to hear the litigant, notwithstanding his absence from the court’s
jurisdiction.’
[98] In dealing with the present matter, I have previously, in contending with
the issue of whether the 1st respondent should be regarded as a fugitive or
not, considered issues that render the court comfortable in its classification of
the 1st respondent as a fugitive. Some of these may be repeated at this point
for their relevance to the conclusion on whether the 1st respondent should, on
the facts, and the court, exercising its inherent discretion, be non-suited on
the lack of locus standi.
[99] Firstly, there is authority to the effect that the motive behind the person
leaving the state or jurisdiction is irrelevant.26 I am, however, of the considered
opinion that the reason proffered for the absence should carry some weight in
determining whether the court should exercise its discretion in that person’s
favour. In the instant case, the 1st respondent does not give an explanation for
his absence from the Republic. Furthermore, the abruptness of his departure
and its implications on his Co-Directors and clients, particularly the estates in
question, is not explained.
[100] Furthermore, the 1st respondent does not inform the court of his
whereabouts. In this particular regard, the 1st respondent did not comply with
26 Drew v Thaw 235 US 432 at 439, (1914).
34
the provisions of rule 6 aforesaid. He also does not, as is mandatory in
affidavits, state his present address and this appears, in all probability, to be
intentional.27 Only he and probably his legal team are aware of his exact
whereabouts. The applicants and the other respondents, like the court, are
engulfed in a cloud of darkness in this regard. In this particular connection, the
court in Mulligan28 pronounced itself on such conduct, as quoted in full in para
[76] above.
[101] The learned Judge concluded, and correctly, in my view, that the
fugitive is not amenable to the ordinary criminal and civil processes as the
court cannot call upon him or her to appear in person to adduce evidence on
oath. In like manner, it cannot order his or her arrest if he or she has
committed perjury on affidavit, which is a live option for the court in relation to
the other party. Lastly, the court held that unlike his or her opponent, the
fugitive could invoke the authority and powers of the court to arrest the
opponent, when he or she is not subject to the court’s jurisdiction.
[102] These observations apply with equal force to the 1st respondent in
casu. In argument on the 1st respondent’s behalf, it was submitted that the
application be dismissed on the basis that it contains disputes of fact which
may not be resolved on the papers. I will not comment on this at this stage.
What is however, important, is that in terms of the rules of court,29 if the court
were inclined to agree with the 1st respondent in this regard, the court has a
discretion to refer the disputed issues to oral evidence.
[103] In this regard, the court may ‘direct that oral evidence be heard on
specified issues with a view to resolving any dispute of fact and to that end,
may order any deponent to appear personally or grant leave for him or her or
any other person to be subpoenaed to appear and be examined and cross-
examined as a witness’.30 It is clear, that the court is, because of the 1st
respondent’s absence, would unable to resort to these powers. 27 P 321 of the record, para 1 of the 1st respondent’s answering affidavit.28 Ibid p 167.29 Rule 67(1)(a).30 Rule 67(1)(a).
35
[104] The offer by Ms. Campbell for the 1st respondent to testify via zoom,
(which drew loud laughter from the rest of the legal practitioners) provides
cold comfort in the circumstances. Issues of demeanour and credibility may
not be easy to detect in the novel medium. I would, speaking for myself,
require the 1st respondent to be present in person for that purpose. This would
enable me to properly adjudicate the dispute. His presence before court,
would conduce to the ease of the making of credibility findings, where
appropriate.
[105] At the risk of repeating myself, it should be mentioned that the 1st
respondent is an officer of the court, a senior one at that. His duty to the court
requires uberimma fides, namely, utmost good faith. He has not complied with
that requirement in this particular application. This is an issue the court views
in a particularly serious light.
[106] It should also be mentioned in this regard, as noted previously in the
judgment that the 1st respondent does not say when he is returning to the
Republic. If this was disclosed, one could be able to say probably without fear
of contradiction that he habours an animus revertendi, i.e. the intention to
return to Namibia. In this regard, he has given agency to P. D. Theron and
Associates to wind up the Reviglio estate. All these are factors that the court
is of the view should serve to deny him locus standi in this matter.
[107] In view of the foregoing considerations, I am of the considered opinion
that the strong case made in this application, notably by the DHC
respondents, in particular, for the 1st respondent to be non-suited for lack of
locus standi, must be sustained. I am accordingly of the considered view that
in the circumstances of this case, the 1st respondent lacks the locus standi in
judicio, as explained at the commencement of this judgment.
Effect of no locus standi
36
[108] It would appear to me that having found that the 1st respondent does
not have locus standi in this matter, for the reasons advanced above, the
matter should then proceed on the basis of the papers filed by the applicants,
and where necessary, by the relevant respondents. The applicants still bear
the onus to satisfy the court that they are entitled to the relief sought in the
notice of motion.
[109] I should, at this juncture mention that the DHC respondents, in
particular, filed an application for striking out certain paragraphs from the 1st
respondent’s additional affidavits, filed with leave of court. This was on the
grounds that same were beyond the scope of issues specifically allowed in
the order granting leave. There was another application for the striking out of
certain portions of the 1st respondent’s answering affidavit as well. This was
on the ordinary grounds that same were either vexatious, irrelevant or
scandalous, within the meaning of the Vaatz judgment.31
[110] In view of the finding that the 1st respondent lacks locus standi, I come
to the conclusion that because the 1st respondent’s case has thus not left the
starting blocks. It would accordingly serve no useful purpose for the court to
pronounce on the application to strike out because it presupposes that there
is a lis properly so called that the respondent has a right at law to contest. I
will for that reason make no order regarding the applications to strike out. This
is because to engage in a determination thereof would be tantamount to an
academic exercise.
Urgency
[111] It is true that a lot has been stated in this judgment already. This may
cause one to forget that this matter was brought on urgency by the applicants.
In terms of rule 73(4) of this court’s rules, an applicant for enrolment of the
matter as one of urgency, must explicitly state on affidavit and the court be
satisfied that (a) there are reasons why the matter should be enrolled as one
of urgency are disclosed; and (b) that the applicant cannot be afforded 31 Vaatz v Law Society of Namibia 1990 NR 332 (HC) at 334.
37
substantial relief at a hearing in due course if the matter is not heard as one of
urgency.
[112] It must be mentioned that the approach to urgent applications is that
the court, in dealing with a matter alleged to be urgent, must proceed from the
premise that the allegations of fact made by the applicant in the matter, are
correct.32 The court will follow that beaten track in this matter.
[113] The applicants explain that their intention initially, was to avoid
litigation. In this regard, their legal practitioners extended an olive branch to
the 1st respondent, but the latter was of a different mind-set. In this regard, the
1st respondent was given an advance copy of the proposed application, with
the licence that he could point out any errors in the allegations of fact in
advance but he did not wish to participate in that friendly enterprise.
[114] The applicants further state that the matter is urgent also for the reason
that there is the issue relating to Agripo that was mentioned earlier in the
judgment and in respect of which a notice of cancellation of the lease was
served. The notice would have expired on 20 August 2020 as mentioned and
this would occasion great prejudice to the Mushimba estate in view of the
large investment of about N$ 50 million, poured into the project. The
allegations in this connection, speak to commercial urgency, which is also
recognised in our law.33
[115] I am satisfied on the whole that the matter is one worthy of being
granted the dispensation of determination on an urgent basis. The applicants,
have, in my considered view, met the mandatory requirements of rule 73(4) in
particular. I am particularly persuaded that the attempts to resolve the matter
amicably by the applicants should not be held against them in a matter such
as this, which involves estate property. I note in this regard that the
respondents, including the 1st respondent, were afforded a liberal period of
32 Shetu Trading CC v The Chair of the Tender Board of Namibia.33 Petroneft International Glencore Energu UK v Minister of Mines and Energy and Others 2012 (2) NR 781 (SC).
38
time within which to file their papers. As such, there can be no justifiable
allegation of prejudice to them or their interests.
[116] All in all, I am satisfied that this is a matter worthy of being accorded
urgent treatment in line with rule 73(4) as stated above.
Removal of the First Respondent as Executor
[117] When one has proper regard to the applicants’ papers, it appears, as
earlier intimated, that they, in the main, seek the removal of the 1st respondent
as executor on the grounds that his occupation of the office, has become
‘undesirable’, within the meaning of the Administration of Estates Act, 1965,
(‘the Act’). In this regard, there are three main bases for the application.
[118] First, it is the fact of the applicant’s absence from the Republic, which
has persisted for the last seven months – and still counting, at the time of
writing this judgment. The second basis, are allegations of fraud levelled
against the 1st respondent. Numerous discrepancies are alleged in this regard.
These attach in particular, to Estate Mushimba, specifically the entity referred
to as Edelweiss. Third, are allegations of conflict of interest on the 1st
respondent’s part.
[119] In substantiation of the fraud allegations, the applicants attached an
affidavit from Mr. Shahil Morar, a shareholder in an entity called Overo
Investments (Pty) Ltd, which purchased shares in Edelweiss. He alleges that
he signed an agreement for the sale of the shares in the 1st respondent’s
presence at the latter’s offices. He was later to learn that certain pages of the
agreement he had signed had been replaced and there was an interference
with the initials to the agreement on the replaced pages. This alleged fraud is
placed at the 1st respondent’s door.
[120] Whatever the merits of this complaint are, I am of the considered view
that this medium, being motion proceedings, is not suited to dealing with and
properly resolving issues that relate to fraud as alleged. Allegations of fraud
39
are often easy to lay but difficult to prove. I do not wish to pre-empt the
proceedings, but it does appear that there are allegations of interference with
the initials. If that is indeed true, clearly the evidence on a handwriting expert
would be necessary to resolve that particular issue.
[121] I am accordingly of the view that it is not prudent to deal with this
particular ground for declaring the 1st respondent undesirable as the nature of
the enquiry is ill-suited for this question. A case in point is Schade v Gregory
where a Last Will and Testament was sought to be set aside by the court, on
allegations of fraud. Because the proceedings were brought on application,
the court dismissed the application, stating that action proceedings were
appropriate for the nature and type of the allegations made. I would therefor
decline to deal with this aspect in the current proceedings.
[122] The question that I need to decide is whether on the other ground,
namely absence from the Republic, the applicants have made a good case. In
this regard, it is imperative to consider the relevant provisions of the Act. Mr.
Corbett stated that the application is brought in terms of s 54(1)(a) of the Act,
whose contents I will reproduce below.
[123] The said provision, entitled, ‘Removal from office of executor’, has the
following rendering:
‘An executor may at any time be removed from office –
(a) by the Court –
(v) if for any other reason the Court is satisfied that it is undesirable that he
should act as executor of the estate concerned.’
[124] It is important to mention in this regard that besides the court, which is
this court, removing the executor, the Act also grants the Master, power to
remove the executor. We are not concerned with the exercise of the powers
40
of removal by the Master in the instant case. I will, for that reason, not advert
to the provisions applicable to the Master.
[125] Should there be any doubt about this court’s power to remove an
executor, the position was affirmed by the Supreme Court in Mpasi NO v
Master of the High Court34 in the following language:
‘Undoubtedly, our High Court which is the court with the requisite jurisdiction
in terms of the Act, has the power to remove an executor from office pursuant to s
54(1)(a). Similarly, s 95 of the Act empowers the court on appeal or review to
confirm, set aside or vary the appointment by the Master. There is, however, no
provision in the Act for appointment of an executor by the court. As no such authority
can be derived from the common law either, it follows that the High Court has no
such power. The power in question is vested in the Master. In light of this conclusion,
I agree with counsel for the Ms Mpasi that the court a quo erred in appointing Mrs
Hausiku. Consequently, the appointment of Mrs Hausiku ought to be set aside and
the matter remitted to the Master with the direction to appoint an executor/executrix
in accordance with the law.’
[126] The determination by the Supreme Court above, puts paid any doubts
about this court’s powers. I should pertinently mention that I will, later in this
judgment, revert to the last issue mentioned above by the Supreme Court,
regarding the powers of this court to appoint executors as it is one of the
prayers in the applicants’ notice of motion.
[127] The main task of this court, in determining this application, is to
decipher what interpretation is to be ascribed to the word ‘undesirable’ as
employed by the legislature in the above provision. This must be the case
because the definition section does not give any clue as to what the
legislature intended by the use of that word.
[128] It would appear to me that the word ‘undesirable’ was intended by the
legislature to be elastic in nature and to cater for a myriad of circumstances in
which the court makes a value judgment on the nature of the conduct and 34 (SA 86-2016) [2018] NASC (17 August 2018); 2018 (4) NR 909.
41
particularly its seriousness, both of which would, considered jointly, justify a
decision to remove the executor or executrix by the court on application, at
the instance of an aggrieved party.
[129] The word ‘undesirable’, in its ordinary parlance, may imply something
that is ‘not wanted or desirable because it is harmful, objectionable, or
unpleasant’. In considering the word in the context of this judgment, one may
say that this court may remove an executor or executrix if he or she engages
in some conduct that is harmful, detrimental, objectionable, deleterious,
unpleasant to the estate and the interests of the beneficiaries or incongruous
with the duties of the office.
[130] The learned author Meyerowitz35 states that an executor may be
removed for his absence from the Republic when such absence hampers the
administration of the estate. In this regard, it is stated that it must be shown
that there are certain duties which in the said case, have to be performed but
may not be so performed because of the executor’s absence.
[131] The question of absence from the Republic, must also be viewed from
the prism of s 53(a) of the Act. The said provision stipulates that ‘An executor
shall not be absent from the Republic for a period exceeding 60 days unless –
(a) the Master has before his departure from the Republic granted him
permission in writing to be absent;
(b) he complies with such conditions as the Master may think fit to impose;
and
(c) he has given such notice of his intention to be so absent as the Master
may have directed.’
[132] It is accordingly clear that an executor may not leave the jurisdiction for
a period in the excess of 60 days without first having obtained permission
from the Master in writing to be so absent. To the extent that I may have
regard to the 1st respondent’s version, it is clear that he has been absent from
the Republic for more than six months. Significantly, there is no evidence that 35 Law and Practice of the Administration of Estates, 5th ed p100.
42
he obtained any written permission from the Master before he left the
jurisdiction. This is a serious violation of the provisions of the Act.
[133] Mention was made of the fact that the 1st respondent obtained ex post
facto authorisation from the Master for his absence. To the extent that this is
the case, it is however very clear that the ex post facto permission is a notion
that is foreign to the Act. There is no provision in the Act that allows the
Master to grant ex post facto permission to executors, to belatedly recognise
their absence from the Republic. That belated permission is, properly
regarded, pro non scripto. The Master should have known better.
[134] The estates in this matter have been pending for some time and
remain uncompleted. From the Master’s report, it appears that the Estate Late
Mushimba, for instance, was reported in September 2014 and remains not
finalised to date. It would appear further from the Master’s report that the
second and final liquidation and distribution account was lodged in March
2016 but it has to date not been advertised. Against this backdrop, the
applicant has been absent from the Republic for a period of six months and
without authority in terms of the law. This, in my view, renders it undesirable
for him to continue occupying the office of executor.
[135] Meyerowitz, quoted above, opines that it must be shown that there
must be duties to be performed and which may not be so performed because
of the executor’s absence. In this case, the point of the matter is that the
estates have stalled because of the 1st respondent’s absence. The files
relating to the estates, which are necessary, for finalising the estates remain
in Namibia. It is thus clear as noonday that he cannot, being absent from the
Republic, be able to effectively and properly, wind up the estates. This is
undesirable within the meaning of the Act.
[136] Furthermore, it must be mentioned that the 1st respondent, probably in
appreciation of his untenable position, in the Reviglio matter, purported to
appoint P. D. Theron as his agents.36 In this regard, he gave then extremely 36 Special Power of Attorney dated 21 March 2020, p 564 of the record of proceedings.
43
wide powers as his agents to wind up the said estate. This itself, is recognition
that he cannot, himself be present to finalise the estates, which he was
appointed to do. He has, in this regard, impermissibly, in my view, given them
power which he himself does not have, e.g. to apply to the Master to appoint
an Executor.37 Mr. Corbett argued that this was impermissible abdication of
responsibility and not delegation. I agree.
[137] As noted elsewhere in the judgment, the reasons for the 1st
respondent’s departure from the Republic remain unclear as much as they are
tenuous. Why he is not returning, also remains a mystery. More importantly,
when it is that he will return, is also a matter not of surmise, but of complete
darkness. There are simply no details in this regard. It is not desirable that
these estates have remained unfinished for such a long period of time. In this
regard, the wishes of the beneficiaries, I am of the considered view cannot be
completely ignored, especially in the light of the events described above.
[138] In an undated letter bearing the Master’s stamp dated 18 March 2020,
the Master wrote a letter to DHC Inc. in relation to the Estate Mushimba in
which she mentions among other issues stated that it is public knowledge in
Namibia that the 1st respondent ‘is now a fugitive of justice’. She required an
undertaking that DHC Inc. would take over the role of executorship of the
estate.38
[139] It would seem that the Master was also in the dark about the 1st
respondent’s absence. She then sought to have confirmation with DHC Inc.
that they would take over the executorship and not leave of the estate in the
lurch. It is undesirable for a person in the 1st respondent’s position of trust, to
simply disappear and leave the estates, some of which have been
outstanding for an inordinate period, in the lurch. I am of the view that the
application to have him removed in terms of s 54 of the Administration of
Estates Act, is fully justified in the circumstances.
37 Ibid, clause 6 of the power of attorney.38 Annexure ‘JP 19’, p 174 of the record of proceedings.
44
[140] This conclusion renders it unnecessary for the court to deal with
another basis raised by the applicant’s namely, a conflict of interest between
the 1st respondent’s personal and official duties as the executor. The absence
from the Republic, unexplained as it is prolonged, and also being detrimental
to the beneficiaries, it appears to me, is sufficient basis to relieve the 1st
respondents from his duties as executor of the estates in question, namely
Estates Mushimba and Reviglio.
Prayer 6.
[141] The applicants also pray for an order that the 1st respondent be
declared incapable during his lifetime, of holding office as an executor. I am of
the view that this is a far-reaching prayer and does not, in my mind have
sufficient motivation or basis in the papers, to enable the court to take such a
drastic and profession-ending decision. This is so because even if found to
have acted improperly, a person may be able to show the court some years
later that he or she has reformed and transformed and is again fit to be
allowed to hold such office. This order, if granted, would appear to make the
process of reformation unnecessary, as the 1st respondent would have been
faced with that fait accomplii and for life.
[142] Happily, and correctly so Mr. Corbett indicated to the court that he was
abandoning the said prayer. That approach is eminently correct and I shall
say nothing more of this issue at all as the prayer was abandoned by the
applicants.
Prayer 4
[143] In this prayer, the applicants prayed to the court, having removed the
1st respondent as the executor in the three estates, to appoint certain named
persons to take over as executors. I am of the considered view that such a
prayer is incompetent and cannot be granted.
[144] I say so for the reason that in the Mpasi judgment, the Supreme Court,
in the last parts of the excerpt quoted above in para [125] above, made it
45
abundantly clear that this court has power to remove an executor but has no
power to appoint persons to take over the office. This it was said, is because
the Act simply does not give this court the power to do so. This power resides
exclusively in the Master. The Mpasi judgment of this court was overturned on
appeal on this very aspect, as the court took the bull by the horns and
appointed another person. I am not willing to fall into the same trap. As they
say, once bitten, twice shy.
[145] It appears to me that this court is ill equipped in assessing the fitness
and propriety of a person being appointed. An office properly placed and
probably resourced to perform that task, is that of the Master. I would therefor
decline to grant the order prayed for. The Master may, in her discretion
proceed and consider whether the persons suggested are suitable. She must,
in this regard, use her powers to come to a decision on those persons or
others that she may find are suitable for the task.
Costs
[146] The ordinary rule that applies in matters of costs is trite. The costs
follow the event. It is obvious in this matter that the applicants, together with
the DHC respondents’ argument has carried the day. There is, in the
circumstances, no reason why the ordinary rule should not apply in this case.
If there has been any success by the 1st respondent, especially regarding the
prayers that were not granted, such is only a drop in the ocean, proclaiming
substantial success for the applicants and the DHC respondents.
[147] It was drawn to the court’s attention that the applicants changed
representation mid-stream such that there were at the end, two sets of
instructing legal practitioners who were involved in the matter. That is a matter
for the taxing officer to deal with and I need not burden this judgment with this
issue at all. Because the issue of the striking out of certain portions of the 1 st
respondent’s affidavits was overtaken by events, I will order no costs in
relation thereto.
46
[148] It is my fervent hope that as an officer of the court, the 1st respondent
will not engage in the fears expressed by De Waal J in Mulligan, where the
fugitive litigates from outside the jurisdiction, causing others to incur costs
which he does not settle. Because of their absence from the jurisdiction, the
costs levied cannot be enforced locally.
[149] Last but by no means least, there is the application granted by Mr.
Justice Geier on 3 July 2020 for the service of this application on the 1 st
respondent by substituted service.39 He ordered that costs for that application
should be costs in the cause. I am of the view that there is no reason why the
costs for that application should not be awarded to the applicants as I hereby
do.
Conclusion
[150] Having regard to the entire conspectus of the matters submitted for
adjudication, I am of the view that the applicants’ application, together, where
appropriate, with that of the DHC respondents in so far as locus standi should
succeed. In the final analysis, I am satisfied that this is a proper case for the
removal of the 1st respondent as an executor in the estates mentioned above.
[151] Finally, the court wishes to express it’s deep debt of appreciation to
counsel on all sides for performing their duty to court in the most admirable
fashion. In this regard, the animosity that manifests itself in many cases and
which at times appears to grip legal practitioners as well, and be a constant
companion in highly contested and emotive cases as this one could have
been, was starkly absent. This redounded to the better and smoother
resolution of this matter. To deal with the complex legal issues is difficult
enough. When emotions of legal practitioners are added to that mix, it
becomes a toxic atmosphere that renders the court’s work even more difficult.
Order
39 HC-MD-CIV-MOT-EXP-2020/00202.
47
[152] In the premises, the order that commends itself as appropriate in the
circumstances of this matter follows below:
1. The Applicants’ failure to comply with the prescribed time periods and
service and enrolling the matter as one of urgency in terms of the
provisions of Rule 73(4), is hereby granted.
2. The First Respondent’s failure to file his supplementary affidavit
timeously, is hereby condoned.
3. It is declared that the First Respondent has no locus standi in judicio to
oppose this application on account of him being held to be a fugitive
from justice.
4. It is declared that it is undesirable for the First Respondent to continue
to act as an executor in the following estates, duly registered with the
Master of the High Court:
a. Estate Late Aaron Mushimba, 1424/2014;
b. Estate Late Danilo Fernando Reviglio, 1617/2019; and
c. Estate Late Adrienne Betty Penderis, 1743/2019.
5. In consequence of the provisions of paragraph 3 above, the First
Respondent is ordered forthwith to return the letters of executorship of
the deceased estates mentioned above to the Office of the Master of
the High Court.
6. The Master of the High Court is directed to appoint suitable persons in
the place and stead of the First Respondent as soon as is practicable
but no later than four (4) weeks from the date of this judgment.
7. The First Respondent is ordered to pay the costs of this application, in
respect of the Applicants, upon the employment of one instructing and
two instructed legal practitioners and in relation to the Fifth, Sixth and
Seventh Respondents, upon the employment of one instructing and
one instructed legal practitioner.
8. The First Respondent is ordered to pay the costs of the application
under Case No. HC-MD-CIV-EXP-2020/00202 consequent upon the
employment of one instructing and one instructed legal practitioner.
9. The matter is removed from the roll and is regarded as finalised.
48
___________
T. S. Masuku
Judge
49
APPEARANCES:
APPLICANTS: A. Corbett SC, with Him H. Garbers-Kirsten
Instructed by: Koep & Partners,
Windhoek
1ST RESPONDENT: Y. Campbell
Instructed by: P. D. Theron & Associates,
Windhoek
5TH – 7TH RESPONDENTS T. Barnard
Instructed by: DHC Inc.,
Windhoek
50
