Herbert and Others v Britz NO and Others (2) (2188 of 2006) [2014] NAHCMD 276 (19 September 2014)

Herbert and Others v Britz NO and Others (2) (2188 of 2006) [2014] NAHCMD 276 (19 September 2014)

The defendant trustees were grossly negligent in failing to supervise the trust, allowing its affairs to be managed solely by Mr Britz, resulting in loss to the plaintiffs as trust creditors. The Master of the High Court (5th defendant) was negligent in her statutory duties, and the government (9th defendant) is vicariously liable. Trustees can be personally liable to trust creditors in cases of gross negligence.

Citation
[2014] NAHCMD 276
Parties
1st Plaintiff: Eduard Petrus Herbert; 2nd Plaintiff: Johannes Jacobus Koen; 3rd Plaintiff: Willie Koen; 4th Plaintiff: Eugene Koen; 1st Defendant: Adriaan Johannes Jacobus Britz N.O.; 2nd Defendant: Tjekero Tweya; 3rd Defendant: John Nauta; 4th Defendant: Phillipus Albertus Bredenham; 5th Defendant: Elsie Sophia Carolina Beukes; 6th Defendant: Fluksman N Samuehl; 7th Defendant: Grace Uushona; 8th Defendant: Wolf Ritter; 9th Defendant: The Government of the Republic of Namibia
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
19 September 2014
Case Number
2188 of 2006
Procedural Posture
Civil / Judgment After Trial
Outcome
Judgment for plaintiffs in part; some claims dismissed
Legal Topics
Personal Liability of Trustees, Negligence, Vicarious Liability, Duties of Trustees, Trust Creditors' Rights
Source Language
English
Trust Law Delict Civil Procedure Personal Liability of Trustees Negligence Vicarious Liability Duties of Trustees Trust Creditors' Rights

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

Eduard Petrus Herbert

1st Plaintiff

Johannes Jacobus Koen

2nd Plaintiff

Willie Koen

3rd Plaintiff

Eugene Koen

4th Plaintiff

Adriaan Johannes Jacobus Britz N.O.

1st Defendant

Tjekero Tweya

2nd Defendant

John Nauta

3rd Defendant

Phillipus Albertus Bredenham

4th Defendant

Elsie Sophia Carolina Beukes

5th Defendant

Fluksman N Samuehl

6th Defendant

Grace Uushona

7th Defendant

Wolf Ritter

8th Defendant

The Government of the Republic of Namibia

9th Defendant

Procedural Posture

Civil / Judgment After Trial

Legal Issues

  1. 1 Whether trustees can be personally liable to trust creditors for negligent conduct
  2. 2 Whether the Master of the High Court (5th defendant) was negligent and if the government is vicariously liable
  3. 3 Whether the plaintiffs proved their claims against the trustees and the government

Ratio Decidendi

The defendant trustees were grossly negligent in failing to supervise the trust, allowing its affairs to be managed solely by Mr Britz, resulting in loss to the plaintiffs as trust creditors. The Master of the High Court (5th defendant) was negligent in her statutory duties, and the government (9th defendant) is vicariously liable. Trustees can be personally liable to trust creditors in cases of gross negligence.

Court Disposition

Judgment for plaintiffs in part; some claims dismissed

Orders

  • Judgment for first plaintiff against second, third, fifth, and ninth defendants jointly and severally for N$500,000.00 plus interest at 20% per annum from 4 February 2003 to payment.
  • Judgment for first plaintiff against fifth and ninth defendants jointly and severally for N$225,000.00 plus interest at 20% per annum (on N$500,000.00 from 2 August to 5 March 2013; on N$225,000.00 from 6 March 2013 to payment).