Tebrak Trading and Contracting Company LLC and Others v Boulter (SA 13/2025) [2025] NASC 21 (9 June 2025)

# Tebrak Trading and Contracting Company LLC and Others v Boulter (SA 13/2025) [2025] NASC 21 (9 June 2025) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nasc/2025/21/eng@2025-06-09) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nasc/2025/21/eng@2025-06-09) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nasc/2025/21/eng@2025-06-09) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nasc/2025/21/eng@2025-06-09) [ __](mailto:?subject=Take a look at this document from NamibLII: Tebrak Trading and Contracting Company LLC and …&body=https://namiblii.org/akn/na/judgment/nasc/2025/21/eng@2025-06-09) [ Download DOCX (84.9 KB) ](/akn/na/judgment/nasc/2025/21/eng@2025-06-09/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nasc/2025/21/eng@2025-06-09/source.pdf) Report a problem __ * Share * [ Download DOCX (84.9 KB) ](/akn/na/judgment/nasc/2025/21/eng@2025-06-09/source) * [Download PDF](/akn/na/judgment/nasc/2025/21/eng@2025-06-09/source.pdf) * * * * * Report a problem __ ##### Tebrak Trading and Contracting Company LLC and Others v Boulter (SA 13/2025) [2025] NASC 21 (9 June 2025) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Tebrak Trading and Contracting Company LLC and Others v Boulter (SA 13/2025) [2025] NASC 21 (9 June 2025) Copy Media Neutral Citation [2025] NASC 21 Copy Hearing date 20 June 2025 Court [Supreme Court](/judgments/NASC/) Case number SA 13/2025 Judges [Damaseb DCJ](/judgments/all/?judges=Damaseb%20DCJ), [Angula JA](/judgments/all/?judges=Angula%20JA), [Smuts AJA](/judgments/all/?judges=Smuts%20AJA) Judgment date 9 June 2025 Language English Summary Read full summary * * * Skip to document content **NOT REPORTABLE** CASE NO: SA 13/2025 **IN THE SUPREME COURT OF NAMIBIA** In the matter between: **TEBRAK TRADING & CONTRACTING COMPANY LLC** | **First Appellant** ---|--- **AHMED BIN MUHAMMAD BIN ABULAZIZ AL OTHMAN** | **Second Appellant** **ABDUL HAB BIN MUHAMMAD BIN ABDULAZIZ** | **Third Appellant** **BADR BIN MUHAMMAD BIN ABDULAZIZ AL OTHMAN** | **Fourth Appellant** **BADRIA BIN SALEH BIN ABDULAH AL MADINI** | **Fifth Appellant** **MUHAMMAD BIN ABDULLA BIN MUHAMMAD AL HAMDANI** | **Sixth Appellant** | and | | **HARVEY ERIC BOULTER** | **Respondent** **Coram:** DAMASEB DCJ, ANGULA JA and SMUTS AJA **Heard: 9 June 2025** **Delivered: 20 June 2025** **Summary:** This is an appeal against the High Court’s judgment upholding an exception taken against the appellants’ particulars of claim and granting absolution. The appellants instituted an action against the respondent to enforce a foreign judgment granted in their favour in the Dubai Court of First Instance in the United Arab Emirates (UAE court). In the alternative, they also sought damages in delict (on the basis of fraudulent misrepresentation). The respondent excepted to the particulars of claim on the ground that it lacked averments necessary to sustain a cause of action in that there having been no prior recognition of the judgment by the High Court of Namibia, the appellants’ particulars of claim were excipiable as the court had no power to be seized with the matter prior to recognition of the foreign judgment. The court _a quo_ held that there was no notarial documentation accompanying the judgment which certified that it was indeed granted. Although the indication to such certification was made in the particulars of claim, it was never provided. It was also not clear, so that court held, whether the claim was for the enforcement of a judgment or whether it was a claim for moneys to be paid. That court concluded that the pleading, therefore, lacked the averments which were necessary to sustain an action and it then granted absolution from the instance and dismissed the claim. The appellants, aggrieved by the decision of the court _a quo_ , appealed to this Court. On appeal, this Court – _Held that_ , although the exception acknowledges that the appellants sought to hold the respondent liable in delict, the exception itself failed to appreciate the two pronged nature of the particulars of claim. The particulars sought recognition and enforcement of the judgment and order of the UAE court and in the alternative to hold the respondent liable in damages in respect of the delictual claim spelt out in the particulars of claim. _Held that_ , respondent’s counsel’s contention that the delictual claim stems from the UAE judgment is clearly wrong. The liability under delict is a self-standing claim arising from the allegations contained in the particulars of claim. _Held that_ , under the common law, foreign judgments are not directly enforceable in Namibia, but can only be enforced if requirements for enforcement are satisfied. A foreign judgment would then constitute a cause of action and be enforceable by an action in a court in Namibia. The first requisite was that the foreign court enjoyed ‘international competency’ (jurisdiction) to decide the matter. In second place, the foreign judgment would need to be final and conclusive in effect and should not have become superannuated. Furthermore, the recognition and enforcement must not be contrary to public policy in Namibia or seek to enforce a penal or revenue law of the foreign state. _Held that_ , respondent’s counsel’s contention concerning the absence of an authenticated judgment and translation was not raised in the exception. For this yet further reason, it was not competent or correct for the court to uphold the exception on a basis not raised in the exception, even if referred to in argument at the hearing of the exception. _Held that_ , the argument itself (concerning the absence of the attachment of an authenticated judgment) in any event formed no basis whatsoever for an exception and a contention that the averments in the particulars of claim did not disclose a cause of action. The argument was misplaced and failed to appreciate the nature of an exception. An exception is not directed against items to be provided in evidence. It is raised against the formulation of a claim. As was clearly stated by this Court in _Van Straten & another NO v Namibia Financial Institutions Supervisory Authority & another_ in following a long line of cases, when an exception is taken on the grounds that no cause of action is disclosed, the facts as alleged in the particulars of claim are taken as correct and only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars be found to be excipiable. _Held that_ , the court below erred not only in upholding the exception on a ground not raised in it, but also upon a basis which had no bearing on whether the claim was excipiable or not. _Held that_ , although no longer strictly relevant in view of the flawed approach to the exception, the court’s order granting absolution and dismissing the claim was also incompetent. Absolution would not arise in exception proceedings. _Held that_ , the appellants have sought an order, if successful, that the cost order of the High Court should be uncapped under rule 32 of the rules of that court. There is much merit in this request given the wholly baseless nature of the exception which has only served to delay the action proceedings unnecessarily. There is no reason why the appellants should be penalised by this utterly meritless dilatory step which they were required to address. Consequently, the appeal succeeded with costs. **APPEAL JUDGMENT** SMUTS AJA (DAMASEB DCJ and ANGULA JA concurring): 1. This appeal concerns an exception taken against the appellants’ particulars of claim which was upheld by the High Court which proceeded to grant absolution from the instance and dismiss the claim. 2. At issue thus are the pleadings and whether the court was correct in finding that a cause of action was not disclosed and furthermore whether its order was competent. The particulars of claim are to be examined in light of the exception and whether the order of the High Court was correct and competent. _The particulars of claim_ 3. The appellants (plaintiffs _a quo_) instituted an action against the respondent (defendant _a quo_) to enforce a foreign judgment granted in their favour in the Dubai Court of First Instance in the United Arab Emirates (UAE court). In the alternative, they also claimed damages in delict (on the basis of fraudulent misrepresentation). 4. In the particulars of claim, the appellants plead fraudulent misrepresentations made by the respondent. The appellants plead that the respondent knew those misrepresentations to be false and that the appellants were induced by them – in the belief that they were true – to advance amounts to the respondent’s companies. The appellants plead that those amounts were misappropriated and that they suffered damages in the amounts they so advanced. 5. As a consequence, the appellants instituted their action in the UAE where the UAE court granted orders against the respondent and one of his companies to pay to the appellants the amounts they claimed as damages. 6. The appellants plead that the UAE court enjoyed jurisdiction alternatively international jurisdiction to decide the claims and grant those orders. It is also pleaded that the orders were final, conclusive and had not become superannuated. They also plead that the enforcement of the UAE court’s judgment would not be against public policy or that its enforcement would not be in conflict with natural justice and that it is not the enforcement of a foreign penal or revenue law. 7. The particulars annex a document which purports to be an authenticated judgment of that court together with a translation. It is further pleaded that the appellants would produce at the trial the certificate of appointment of the authenticating notary and/or a duly authenticated and translated judgment in evidence. 8. The appellants’ main claim is thus for recognition of the UAE court’s judgment under common law or under the Enforcement of Foreign Civil Judgments [Act 28 of 1994](/akn/na/act/1994/28) (the Act) if applicable and for the High Court to grant orders enforcing those awards. In the alternative, the appellants’ claim that the respondent is liable in delict to pay to them their damages suffered. _The respondent’s exception_ 9. The respondent excepted to the particulars of claim on the ground that it lacked averments necessary to sustain a cause of action on the following grounds: ‘1. The Plaintiffs plead that they instituted an action for damages against the Defendant in Dubai Court of First Instance. They allege that the Court enjoyed jurisdiction, alternatively international jurisdiction, to make the orders sought. 2\. Plaintiffs allege that the Defendant is liable in delict to pay to the Plaintiffs the damages suffered. 3\. The Defendant excepts that the Plaintiffs seek to directly enforce a foreign judgment without such judgment having been first recognised by this Court. 4\. Thus, there having been no prior recognition of the judgment by the High Court of Namibia, the Plaintiffs’ Particulars of Claim are excipiable as the court has no power to be seized with the matter prior to recognition of the judgment. 5\. The effect of the Plaintiffs’ simultaneously seeking damages and the Court’s recognition of the judgment, is that the Plaintiffs’ claim does not make out the necessary averments to sustain a course (_sic_) of action in relation to monetary damages at the time of institution of the action.’ _The approach of the High Court_ 10. The court correctly accepted that the claim for recognition was made under the common law as the UAE had not been designated under the Act. The exception itself was in effect dealt with in a solitary paragraph where the court held: ‘[17] There is further no notarial documentation accompanying the judgment which certifies that it was indeed granted. Although the indication to such certification is made in the particulars of claim, it was never provided. It is also not clear if the claim is for the enforcement of a judgment or whether it is a claim for monies to be paid. The pleading, therefore, lacks the averments which is necessary to sustain an action.’ (_sic_) 11. In upholding the exception the court further ordered: ‘The court grants absolution of the instance and the claim is dismissed.’ _Submissions on appeal_ 12. Counsel for the appellants argued on appeal that the High Court’s judgment and order were patently wrong and also irregular. Counsel pointed out that the appellants’ particulars of claim constituted two separate and independent causes of action and contended that this was a fact lost on both the respondent in its exception and upon the court. 13. It was further contended that the complaint contained in the exception is that the appellants should first have sought recognition before seeking to claim payment. That, so it was submitted, was the thrust of the exception. 14. Counsel further argued that the court dealt with an entirely different issue not raised in the exception and moreover failed to provide an opportunity to the appellants to amend their particulars of claim, even though counsel for the respondent disavowed an entitlement to an order dismissing the claim at that stage, conceding that if successful, the appellants would need to be afforded an opportunity to amend. 15. Counsel for the respondent supported the approach of the High Court in upholding the exception because the document purporting to be the judgment annexed to the particulars of claim of the UAE court was not authenticated. 16. Respondent’s counsel placed heavy reliance upon paras 21 and 22 of the particulars of claim. These paragraphs read: ‘[21] The Plaintiffs annex hereto: 21.1 a copy of the duly authenticated judgment of the Court (marked “A”); 21.2 a duly translated copy of such judgment (marked “B”). [22] The Plaintiffs shall produce the Certificate of Appointment as Notary from the Authenticating Notary and/or (insofar as the aforegoing may not constitute a duly authenticated and/or translated judgment) the duly authenticated and translated judgment, in evidence on or before any Order is sought or granted herein.’ 17. Counsel contended that the attached document is not accompanied by a certificate of translation and that the annexed judgment was not an authenticated judgment. Counsel argued that because there was no authenticated judgment before the court, the pleadings lacked averments necessary to sustain an action. 18. Respondent’s counsel also pointed out that the absence of an authenticated judgment was raised in argument at the hearing of the exception and that the appellants had failed in their commitment, set out in para 22 of the particulars of claim, to provide an authenticated judgment with the requisite certificates regarding the translation at the hearing. 19. It was stated that it was the respondent’s case that both the main and alternative claims ‘stemmed from’ the foreign judgment and, in the absence of an authenticated judgment, a cause of action was not disclosed. It was not however explained how the delictual claim ‘stemmed from’ the foreign judgment. Counsel also criticised the manner in which the claims were formulated in the particulars of claim. 20. Counsel for the respondent further relied upon _Westdeutsche Landesbank Girozentrale (Landesbausparkasse) v Horsch_ 1 for the contention that a certified copy of a judgment annexed to the summons is required to obtain judgment. 21. Respondent’s counsel confirmed that the respondent no longer relied upon the ground raised in the exception but supported the High Court’s judgment that the absence of an authenticated judgment meant that a cause of action was not disclosed. _Should the exception have been upheld?_ 22. The principles governing exceptions are well-settled and were thus summarised by this Court in _Van Straten & another NO v Namibia Financial Institutions Supervisory Authority & another_:2 ‘Where an exception is taken on the grounds that no cause of action is disclosed or is sustainable on the particulars of claim, two aspects are to be emphasised. Firstly, for the purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as correct.3 In the second place, it is incumbent upon an excipient to persuade this court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed.4 Stated otherwise, only if no possible evidence led on the pleadings can disclose a cause of action, will the particulars of claim be found to be excipiable.5 23. Although the exception acknowledges that the appellants seek to hold the respondent liable in delict, the exception itself fails to appreciate the two pronged nature of the particulars of claim. The particulars seek recognition and enforcement of the judgment and order of the UAE court _and_ in the alternative seek to hold the respondent liable in damages in respect of the delictual claim spelt out in the particulars of claim. 24. The exception is flawed for this reason alone by conflating the two claims and failing to appreciate that they are raised in the alternative. Respondent’s counsel’s contention that the delictual claim stems from the UAE judgment is clearly wrong. The liability under delict is a self-standing claim arising from the allegations contained in the particulars of claim. 25. No coherent complaint is raised in the exception against the delictual damages claim. 26. The complaint raised in the exception would appear to be directed against the recognition of the UAE judgment and order by contending that recognition would need to be obtained prior to seeking enforcement. That ground is correctly no longer persisted with. 27. It is correct that the appellants’ particulars of claim does not seek recognition as a prior step but instead seeks both recognition and enforcement. 28. The parties correctly accept that the Act does not apply. 29. Under the common law, foreign judgments are not directly enforceable in Namibia, but can only be enforced if requirements for enforcement are satisfied. A foreign judgment would then constitute a cause of action and be enforceable by an action in a court in Namibia. The first requisite is that the foreign court enjoyed ‘international competency’ (jurisdiction) to decide the matter. In second place, the foreign judgment would need to be final and conclusive in effect and had not become superannuated. Furthermore, the recognition and enforcement must not be contrary to public policy in Namibia or seek to enforce a penal or revenue law of the foreign state.6 30. Respondent’s counsel’s contention concerning the absence of an authenticated judgment and translation is not raised in the exception. For this yet further reason, it was not competent or correct for the court _a quo_ to uphold the exception on a basis not raised in the exception, even if referred to in argument at the hearing of the exception. 31. But the argument itself (concerning the absence of the attachment of an authenticated judgment) in any event forms no basis whatsoever for an exception and a contention that the averments in the particulars of claim do not disclose a cause of action. The argument is misplaced and fails to appreciate the nature of an exception. An exception is not directed against items to be provided in evidence. It is raised against the formulation of a claim. As was clearly stated by this Court in _Van Straten (supra)_ in following a long line of cases, when an exception is taken on the grounds that no cause of action is disclosed, the facts as alleged in the particulars of claim are taken as correct and _only if no possible evidence led on the pleadings can disclose a cause of action_ will the particulars be found to be excipiable. (Own emphasis) 32. Paragraph 22 of the particulars of claim expressly states that the duly authenticated judgment and related certificates including that pertaining to translation _will be produced_. Respondent’s counsel would appear to consider that the production should have occurred prior to the hearing of the exception. This notion is also misplaced. 33. The appellants brought action proceedings against the respondent as they were entitled to do.7 The production of evidence occurs when the matter goes on trial and most certainly not at exception stage which is only concerned with whether the averments can sustain a cause of action. Issues of evidence do not conceivably arise. 34. Respondent’s counsel’s point about the annexure to the particulars of claim, particularly in view of the express wording of para 22, relates to evidence and has no bearing on whether the claim is excipiable on the basis that it can sustain a cause of action. 35. The court below erred not only in upholding the exception on a ground not raised in it, but also upon a basis which has no bearing on whether the claim is excipiable or not. 36. The reliance by respondent’s counsel upon the High Court judgment in _Horsch_ is also misplaced. That matter concerned recognition and enforcement of a foreign court order by way of provisional sentence. Plainly an authenticated judgment and order, duly translated with the requisite certificates was required to succeed in provisional sentence proceedings applicable at the time, as that court correctly decided. 37. Although no longer strictly relevant in view of the flawed approach to the exception, the court’s order granting absolution _and_ dismissing the claim was also incompetent. Absolution would not arise in exception proceedings. 38. Finally it is to be noted that the order of the High Court is also incorrect because it failed to provide the unsuccessful party with the opportunity to remove the cause of the complaint. _Conclusion_ 39. It follows that the High Court erred in upholding the exception which was entirely without merit and that it also erred in its further order. _Costs_ 40. The appellants correctly acknowledged in their practice note that approximately 30 per cent of the record concerned items which ordinarily do not form part of the record and should have been omitted. This tendency occurs all too frequently despite the numerous admonitions given by this Court which continue to go unheeded. Given the confined record, comprising only one volume, no special order as to costs on this issue is made. 41. The appellants have sought an order, if successful, that the cost order of the High Court should be uncapped under rule 32 of the rules of that court. There is much merit in this request given the wholly baseless nature of the exception which has only served to delay the action proceedings unnecessarily. I see no reason why the appellants should be penalised by this utterly meritless dilatory step which they were required to address. _Order_ 42. The following order is made: 1. The appeal succeeds with costs, including the costs of one instructing and two instructed legal practitioners. 2. The order of the High Court is set aside and replaced with the following order: ‘(a) The exception is dismissed. (b) The defendant is ordered to pay the plaintiffs’ costs, uncapped, and including the costs of one instructing and two instructed legal practitioners.’ **______________________** **SMUTS AJA** **______________________** **DAMASEB DCJ** **______________________** **ANGULA JA** APPEARANCES APPELLANTS: | J Marais SC (with him Y Campbell) Instructed by ENS | NAMIBIA (Incorporated as Lorentz Angula Inc) ---|--- RESPONDENT: | S Namandje Instructed by Kadhila Amoomo Inc 1 _Westdeutsche Landesbank Girozentrale (Landesbausparkasse) v Horsch_ 1993 (2) SA 342 (Nm) 344 (_Horsch_). 2 _Van Straten NO & another v Namibia Financial Institutions Supervisory Authority & another_ 2016 (3) NR 747 (SC) para 18. 3 _Marney v Watson & another_ 1978 (4) SA 140 (C) at 144F. 4 _Lewis v Oneanate (Pty) Ltd & another _1992 (4) SA 811 (A) at 817F-G followed by the High Court in _Namibia Breweries Ltd v Seelenbinder, Henning & Partners _2002 NR 155 (HC) at 158H-J. (_Seelenbinder_). 5 _McKelvey v Cowan NO_ 1980 (4) SA 525 (Z) at 526D-G; see also _Seelenbinder_ at 159A. 6 Joubert _et al_ _The Law of South Africa_(2 ed) Vol 2 part 2 para 345. 7 Respondent’s contention that proceedings for the recognition and enforcement of foreign judgments are to be brought by way of application is without any basis at all and is unfounded. #### __Related documents ▲ To the top >