sense, the courts will always be desirous to administer in accordance with ‘equity’ the principles of the Roman-Dutch law and I might add in accordance with – – Namibian law - and if the courts cannot do so, in accordance with those principles, they cannot do so at all. [47] It has also emerged from the above I cannot just simply come to the assistance of the respondents on equitable grounds alone. Their prayer from the bar will have to be determined with reference to the applicable legal principles - in terms of which I have to exercise any discretion on the facts and circumstances before me - and not in the abstract. [48] If one then reverts to the facts and circumstances of this case it appears that any such discretion must be exercised in this instance with reference to the following factors: the respondents main defence, the special plea of lis alibi pendens was not upheld in this regard it was not shown that there was already an – action/application pending between the same parties based on the same cause of action; the respondents also failed to show that their case was sufficiently linked to case A 27/2012; or that their case should not be separately conducted until such time that the litigation under case A 27/2012 had been resolved; no case - never mind a strong case - nor one with exceptional circumstances - for a stay has been made out on the papers or from the bar in this regard it – is taken into account that no substantive application for a stay had been made - and that no effective constitutional challenge had been mounted in the papers and - that the special plea of lis pendens was not upheld; regard is – also had to the failure of the respondents to prove any intervention application in case A 27/2012 or that same was, or is likely to be granted; on the other hand, the applicant has made out a case on the actio rei vindicatio, whereas the respondents have failed to establish their right to
sense, the courts will always be desirous to administer ‘equity’ in accordance with the principles of the Roman-Dutch law – and I might add – in accordance with Namibian law - and if the courts cannot do so, in accordance with those principles, they cannot do so at all. [47] It has also emerged from the above I cannot just simply come to the assistance of the respondents on equitable grounds alone. Their prayer from the bar will have to be determined with reference to the applicable legal principles - in terms of which I have to exercise any discretion on the facts and circumstances before me - and not in the abstract. [48] If one then reverts to the facts and circumstances of this case it appears that any such discretion must be exercised in this instance with reference to the following factors: the respondents main defence, the special plea of lis alibi pendens was not upheld – in this regard it was not shown that there was already an action/application pending between the same parties based on the same cause of action; the respondents also failed to show that their case was sufficiently linked to case A 27/2012; or that their case should not be separately conducted until such time that the litigation under case A 27/2012 had been resolved; no case - never mind a strong case - nor one with exceptional circumstances - for a stay has been made out on the papers or from the bar – in this regard it is taken into account that no substantive application for a stay had been made - and that no effective constitutional challenge had been mounted in the papers – and - that the special plea of lis pendens was not upheld; regard is also had to the failure of the respondents to prove any intervention application in case A 27/2012 or that same was, or is likely to be granted; on the other hand, the applicant has made out a case on the actio rei vindicatio, whereas the respondents have failed to establish their right to