- November 15, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
CIVIL PROCEDURE – APPLICATION TO PLACE ‘FRESH EVIDENCE’ (NEW FACTS) BEFORE THE SUPREME COURT, POST APPEAL
A notice of motion was filed with the registrar on 17 October 2022 in which the first appellant sought an order to place ‘fresh evidence’ (new facts) before this court. This new fact was that the Minister of Urban and Rural Development granted approval, on 20 September 2022, to the Council of the Municipality of Windhoek to sell the property to Landscape Development CC at the price of N$14 983 000. The further purpose of the application was to seek leave for this court to consider the fact of the said Ministerial approval and consequently to uphold the appellants’ appeal against the order of the court a quo, in the interests of justice.
The first appellant emphasized that if this court was to find that the appeal may not succeed, it would severely prejudice the appellants in circumstances where it was the refusal to grant approval by the Minister which led to the cause of action by the respondent. It was contended that since Ministerial approval has been obtained, it changes the legal and factual landscape, and the appeal should be upheld on that basis.
In the alternative, it was contended that if this court were minded to dismiss the appeal, then it would be just and equitable for this court to make an order directing that the appellants should not repay the amounts claimed against them by the respondent as set out in the order of the court a quo.
The Supreme Court dealt with this application as follows:
‘[125] In respect of the notice of motion received after the appeal was heard the following observations need to be made:
(a) One of the powers of this court on the hearing of any appeal is to receive further evidence. This court will allow the leading of further evidence on appeal only in exceptional or special circumstances since it is in the public interest that there should be finality to a trial. The evidence sought to be adduced must also be weighty and material and such that ‘it would be practically conclusive, for, if not, it would still leave the issue in doubt and the matter would still lack finality.
(b) In response to the notice of motion and supporting affidavit, Lee filed an answering affidavit opposing the relief sought in the notice of motion. I need not fully deal with the answering affidavit except to point out that Lee disputes the allegations in the supporting affidavit and emphasizes the fact that presently no agreement exists between the first appellant and the respondent. This agreement was canceled.
[126] Importantly, Lee states that he has ‘no interest in obtaining or developing the erf’.
[127] To allow the first appellant to adduce further evidence would have no practical benefit or advantages to either the first appellant or to the respondent since the agreement remains canceled after eight years of litigation.
[128] However, the first appellant faces a more fundamental obstacle, and that is the fact that a condonation application is before this court for adjudication. So where, as in this instance, the condonation and reinstatement application are refused on the basis that the explanation provided is inexplicable and the prospects of success on the merits need not be considered, it would be fatal for the applicant (first appellant) to lead further evidence since such evidence would be superfluous.
[129] I have indicated hereinbefore in respect of this condonation application and the application for reinstatement of the appeal that the explanation for the non-compliance with the Rules of this Court is inexplicable and unpersuasive and that there are no prospects of success on appeal in respect of the merits. In these circumstances, the application to lead further evidence has become irrelevant and is accordingly, in view of the lack of exceptional circumstances, refused.’
Shikongo v Lee’s Investments (Pty) Ltd (SA 33-2020) [2022] NASC (15 November 2022) – Post Appeal development