compliance with s 39 of the Police Act against each of the three claims. Respondent had instituted the claims more than 12 months after the cause of action had arisen as is required by s 39. The court a quo upheld the special pleas in respect of claims 1 and 2, but dismissed the special plea against claim 3. The court reasoned that a claim of malicious prosecution is in a different category to claims 1 and 2. According to the court a quo prosecution is malicious or otherwise at the instance of the Prosecutor-General and not the Namibian Police and that with s 39 would not be required The question was raised as to whether leave to appeal is required in an appeal against the dismissal of a special plea akin to prescription in the form of compliance with s 39 of the Police Act 1990. Leave to appeal appellant referring to authorities decided at a time when the s – 20(2)(b) of the then applicable Supreme Court Act, 1959 argued that the special plea is a self-contained defence which is conclusive of the issue and is thus not interlocutory as the court a quo could not revisit its decision on that special plea. These authorities were no longer applicable following a new system emerging in South Africa with the introduction of Act 105 of 1982 which diminished the distinction between simple interlocutory orders and other orders. Di Savino was applied. It had found that a wide meaning is to be accorded to interlocutory orders and thus includes all orders to the main upon matters ‘incidental dispute, preparatory to, or during the progress of the and not merely, litigation’ – what have been described as or interlocutory orders. In developing “simple” “pure”
with s 39 of the Police Act against each of the three claims. Respondent had instituted the claims more than 12 months after the cause of action had arisen as is required by s 39. The court a quo upheld the special pleas in respect of claims 1 and 2, but dismissed the special plea against claim 3. The court reasoned that a claim of malicious prosecution is in a different category to claims 1 and 2. According to the court a quo prosecution is malicious or otherwise at the instance of the Prosecutor-General and not the Namibian Police and that compliance with s 39 would not be required The question was raised as to whether leave to appeal is required in an appeal against the dismissal of a special plea akin to prescription in the form of with s 39 of the Police Act 1990. Leave to appeal – appellant referring to authorities decided at a time when the s 20(2)(b) of the then applicable Supreme Court Act, 1959 argued that the special plea is a self-contained defence which is conclusive of the issue and is thus not interlocutory as the court a quo could not revisit its decision on that special plea. These authorities were no longer applicable following a new system emerging in South Africa with the introduction of Act 105 of 1982 which diminished the distinction between simple interlocutory orders and other orders. Di Savino was applied. It had found that a wide meaning is to be accorded to interlocutory orders and thus includes all orders upon matters ‘incidental to the main dispute, preparatory to, or during the progress of the litigation’ – and not merely, what have been described as “simple” or “pure” interlocutory orders. In developing compliance
Government%20of%20the%20Republic%20of%20Namibia%20v%20Junias%20(SA%2050%20-%202016)%20[2018]%20NASC%20(6%20April%202018).docx