Namibia Power Corporation (Pty) Ltd v Congo Namibia Pty Ltd (HC-MD-CIV-ACT-CON- 3067 of 2019) [2021] NAHCMD 210 (5 May 2021)

Namibia Power Corporation (Pty) Ltd v Congo Namibia Pty Ltd (HC-MD-CIV-ACT-CON- 3067 of 2019) [2021] NAHCMD 210 (5 May 2021)

The defendant cannot succeed on either special plea because the arbitration clause is not severable from the main agreement, and the defendant cannot rely on its own failure to obtain a distribution license to invalidate the agreement. The plaintiff is entitled to pursue its claim, including on the basis of unjust enrichment.

Citation
[2021] NAHCMD 210
Parties
Plaintiff: Namibia Power Corporation (Pty) Ltd; Defendant: Congo Namibia Pty Ltd
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
5 May 2021
Case Number
HC-MD-CIV-ACT-CON- 3067 of 2019
Procedural Posture
Civil (contract) / Ruling on Special Pleas
Outcome
Special pleas dismissed with costs.
Legal Topics
Arbitration Clauses, Illegality of Contract, Licensing Under Electricity Act, Unjust Enrichment, Severability of Arbitration Clauses
Source Language
English
Contract Law Arbitration Energy Law Arbitration Clauses Illegality of Contract Licensing Under Electricity Act Unjust Enrichment Severability of Arbitration Clauses

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 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Namibia Power Corporation (Pty) Ltd

Plaintiff

Congo Namibia Pty Ltd

Defendant

Procedural Posture

Civil (contract) / Ruling on Special Pleas

Legal Issues

  1. 1 Whether the dispute should be stayed for arbitration under the agreement's arbitration clause
  2. 2 Whether the power supply agreement is void for contravening section 17(1)(e) of the Electricity Act, Act 4 of 2007

Ratio Decidendi

The defendant cannot succeed on either special plea because the arbitration clause is not severable from the main agreement, and the defendant cannot rely on its own failure to obtain a distribution license to invalidate the agreement. The plaintiff is entitled to pursue its claim, including on the basis of unjust enrichment.

Court Disposition

Special pleas dismissed with costs.

Orders

  • The special pleas are dismissed with costs.
  • Costs to include the cost of one instructing and one instructed counsel.