- March 1, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The appellant, Mr. Marèn Brynard de Klerk, is an admitted legal practitioner in Namibia. Prior to the event that gave rise to the proceedings in the court a quo, the appellant was practicing as a legal practitioner and senior director and shareholder together with the 11th, 12th, and 13th respondents (‘the DHC respondents’) under the name and style of De Klerk, Horn and Coetzee Incorporated (DHC Incorporated), at Windhoek.
While practicing as such, the appellant was appointed by the Master of the High Court as executor of three estates, namely, estate late Mushimba, estate late Reviglio, and estate late Penderis (‘the estates’). In November 2019, the international television channel, Al Jazeera, broadcasted a documentary concerning allegations of corruption in Namibia’s fishing industry, including alleged acts of bribery and money laundering. The allegations came to be known as the ‘Fishrot Scandal’. The appellant was alleged to have been involved in the said scandal and his arrest by law enforcement agencies was imminent. His name and photographs were published in the local print media. In the wake of those allegations, the appellant abruptly left Namibia in early January 2020. He has been absent from the country ever since. It would appear that the law firm has in the meantime been dissolved as a result of the appellant’s long absence from Namibia.
The first to seventh respondents then launched an urgent application in the High Court in which they sought orders inter alia: declaring that it was undesirable, within the meaning of section 54(1)(a)(v) of the Administration of Estates Act, No 66 of 1965 for the appellant to continue to act as an executor of the estates; removing the appellant as trustee of the ABP Trust; declaring the appellant to be incapable of holding office as an executor during his lifetime; and ordering the appellant to pay the costs of the application. During the course of the proceedings, the appellant resigned as trustee of the ABP Trust and the Mushimba Family Trust. He, however, refused to resign as executor of the estates.
The appellant opposed the application from his hiding in South Africa. In opposition to the relief sought, the appellant denied that he was unfit to hold office as an executor or that his absence from Namibia was because of his alleged involvement in the Fishrot scandal. According to the appellant, his absence from Namibia was occasioned by the reason that he was undergoing medical treatment in South Africa. He further denied that he was neglecting his duties as an executor or as trustee. He asserted that notwithstanding his absence from Namibia, he continued to perform all his duties as executor of the estates concerned.
This appeal concerns the removal of the appellant by the High Court order as executor of three deceased estates which he was administering prior to his abrupt departure from Namibia and his subsequent inordinate absence from the country. The High Court declared him as a fugitive from justice and ordered him amongst other things, to surrender to the Master of the High Court his letters of appointment as executor of the said three estates. The appeal is in essence against the order declaring the appellant as a fugitive from justice as well as resultant costs orders.
ANGULA AJA (DAMASEB DCJ and MAINGA JA concurring) had to determine the issue of whether the appellant is a fugitive from justice. If so, whether he had the locus standi in the sense that he should have been allowed access by the court a quo in order to vindicate his rights. But, before considering those issues the court has first to consider the appellant’s application for condonation and reinstatement of the appeal.
As a result of the appellant’s multiple non-compliances with the rules of the Supreme Court, he was obliged to file an application for condonation and reinstatement of his appeal. The application was filed on 1 November 2022 – three court days before the hearing of the appeal. The respondents opposed the application. When the application was called, in the view the court took with regard to the application, counsel was requested to argue the application for condonation only and depending on the outcome of the application, to address the court on merits at a later stage.
The court stated that:
In condonation applications, there is a strong interplay between the obligation to provide a reasonable and acceptable explanation for the non-compliance of a rule of the court and the reasonable prospects of success on appeal. Condonation may be refused where a litigant has provided a good and acceptable reason for his or her non-compliance but has failed to convince the court that there are reasonable prospects of success on appeal. On the other hand, good prospects of success on appeal may lead to a condonation and reinstatement application being granted in spite of the fact that the explanation for the non-compliance is weak or not entirely satisfactory. It was held that:
- The first dictate is that an application for condonation must be brought as soon as non-compliance has been detected. Second, the applicant must provide a reasonable and acceptable explanation for his or her non-compliance and show that the main matter has prospects of success. Third, an application for condonation may be refused because the non-compliance with the rules has been glaring, flagrant, or inexplicable, and fourth, the bona fide of the application has also been held as a factor to be taken into account by the court in exercising its discretion on whether to grant condonation or to refuse condonation.
- The cumulative effect of the appellant’s multiple non-compliances with rules are so glaring, flagrant, and inexplicable so much that the application would have been refused without the court considering the prospects of success.
- In any event, the appellant failed to address the question of whether his appeal enjoys good prospects of success and such failure is fatal to the appellant’s application for condonation.
Accordingly, the application for condonation and reinstatement was refused and struck from the roll with costs.
De Klerk v Penderis NO (SA 76-2020) [2023] NASC (1 March 2023)