Rivoli Namibia (Pty) Ltd v Cmc/Otesa Civil Engineering (Pty) Ltd Joint Venture (HC-MD-CIV-ACT-OTH 747 of 2017) [2017] NAHCMD 303 (9 October 2017)

Rivoli Namibia (Pty) Ltd v Cmc/Otesa Civil Engineering (Pty) Ltd Joint Venture (HC-MD-CIV-ACT-OTH 747 of 2017) [2017] NAHCMD 303 (9 October 2017)

The first exception regarding misdescription of the defendant is dismissed as it is a technical defect curable by amendment and does not prejudice the defendant. The second exception is upheld because a joint venture is not a legal entity capable of being sued in Namibian law. The third exception is upheld as the plaintiff cannot approbate and reprobate by electing inconsistent remedies. The fourth exception is upheld as the plaintiff relies on unsigned documents not incorporated into the contract, failing to plead material facts necessary to sustain a cause of action.

Citation
[2017] NAHCMD 303
Parties
Plaintiff: Rivoli Namibia (Pty) Ltd; Defendant: CMC/Otesa Civil Engineering (Pty) Ltd Joint Venture
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
9 October 2017
Case Number
HC-MD-CIV-ACT-OTH 747 of 2017
Procedural Posture
Civil / Interlocutory Ruling on Exception
Outcome
Exceptions partly upheld, partly dismissed; leave to amend granted.
Legal Topics
Exception to Pleadings, Locus Standi of Joint Venture, Misdescription of Parties, Approbate and Reprobate, Unsigned Contract
Source Language
English
Civil Procedure Contract Law Exception to Pleadings Locus Standi of Joint Venture Misdescription of Parties Approbate and Reprobate Unsigned Contract

Case Brief

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Parties

Rivoli Namibia (Pty) Ltd

Plaintiff

CMC/Otesa Civil Engineering (Pty) Ltd Joint Venture

Defendant

Procedural Posture

Civil / Interlocutory Ruling on Exception

Legal Issues

  1. 1 Whether the citation of the defendant was a fatal misdescription
  2. 2 Whether a joint venture has locus standi to be sued in Namibian law
  3. 3 Whether the plaintiff can approbate and reprobate remedies

Ratio Decidendi

The first exception regarding misdescription of the defendant is dismissed as it is a technical defect curable by amendment and does not prejudice the defendant. The second exception is upheld because a joint venture is not a legal entity capable of being sued in Namibian law. The third exception is upheld as the plaintiff cannot approbate and reprobate by electing inconsistent remedies. The fourth exception is upheld as the plaintiff relies on unsigned documents not incorporated into the contract, failing to plead material facts necessary to sustain a cause of action.

Court Disposition

Exceptions partly upheld, partly dismissed; leave to amend granted.

Orders

  • Defendant's first exception dismissed.
  • Defendant's second, third, and fourth exceptions upheld with costs for one instructing and two instructed counsel.