Iuze Mukube

An exception against a man who sought more than N$70 million in compensation and restitution against Bank Windhoek for alleged fraudulent banking practices has been upheld in the Windhoek High Court.

In upholding the exception, Acting Judge David Mangota stressed that litigation is not child’s play.

He stated that litigation is serious business that must be treated as such by everyone who approaches the court seeking real and substantial justice.

He said the court could not continue to waste its time and limited resources on a matter in which the plaintiff had repeatedly failed to comply with the court’s rules, despite having been given two previous opportunities to rectify the same shortcomings.

He stated that granting the plaintiff a fourth opportunity would amount to a clear abuse of the court process.

The current was the plaintiff’s third indulgence which he failed to make good of, he said.

The judge found that the defendants proved their case on a balance of probabilities and upheld the exception.

The particulars of the claim of the plaintiff were struck out.

The matter arose from the plaintiff, Con Brand’s, allegations that Bank Windhoek Limited had engaged in fraudulent banking practices, which he claimed caused him financial loss and entitled him to compensation and restitution exceeding N$70 million.

Brand allegedly became aware of what he considered questionable and fraudulent banking practices being exercised by the bank intentionally.

He initiated what he described as a debt validation audit through conditional notices, with the first notice sent to the defendants on 12 September 2024, followed by others, with no response received.

Brand argued that the defendant’s continued failure to respond, despite what he claimed was a commercial duty to address the assertions made in the notices, amounted to prima facie evidence of fraud and misrepresentation.

He claimed that because of their “acquiescence”, he regarded their silence as tacit agreement to his demands.

These included his claim that the defendants were in default and had committed fraud and that he was entitled to rescind the agreements and mortgage bonds relating to the properties concerned.

Additionally, he claimed they had agreed to return the title deeds of the properties which he alleged had been fraudulently used as collateral security, invoke an estoppel against them, waive any rights of action against him and grant him power of attorney to file a commercial lien against the defendants.

From what was understood, Brand acted against the bank under the belief that the bank owed him money after it charged him interest for a loan that he did not owe.

Because of their actions, he suffered damages for alleged commercial damage, defamation, physical and emotional harm, and, among other things, his business and his income were affected.

Basically, he sought for the court to order that the debt that the bank was trying to collect from him was not legally valid and that the bank acted fraudulently.

He put the total claim at N$79 385 860. Bank Windhoek was the first defendant, with seven other defendants, comprising employees of the bank and Capricorn Group.

The bank, in response to the application, raised an exception to the plaintiff’s particulars of claim.

It argued that the claims failed to disclose a cause of action as recognised in law. It further argued that while the claim was based on contract, Brand failed to identify the contract, the parties, and when and where it was concluded. He failed to show the contract’s material terms, obligations allegedly breached and how the breach caused the claimed damages.

Additionally, Brand allegedly failed to set out the essential facts supporting fraud, including the alleged fraudulent representation.

In simple terms, the exception’s core argument is that even if everything the plaintiff alleged is accepted as true, the particulars of claim still do not contain enough legally recognised facts to establish that the bank is liable or that Brand is entitled to the N$79.3 million damages claimed.

Therefore, the judge found as such that the plaintiff did not show any facts to establish liability on the part of the defendants, especially the second to the eighth defendants.

He found that the plaintiff’s pleadings were vague so much that it was impossible to determine his claim.

“It is so bad in law in the sense that it does not disclose a discernible and legally recognised cause of action,” said Mangota.