REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING I.T.O. PRACTICE DIRECTIVE 61

HC-MD-CIV-MOT-POCA-2018/00140

In the matter between:

BUSINESS INTELLECTUAL PROPERTY                          APPLICANT/RESPONDENT

AUTHORITY                                                                                                                                    

and

THE PROSECUTOR-GENERAL                                             RESPONDENT/APPLICANT

Neutral Citation: Business and Intellectual Property Authority v The Prosecutor-General (HC-MD-CIV-MOT-POCA-2018/00140) [2020] NAHCMD 308 (22 July 2020)

Coram: Masuku J

Heard on:                  Matter determined on the papers 

Delivered on:                       22 July 2020

1. The application for leave to appeal is refused.
2. The applicant for leave is ordered to pay the costs of the application.
3. The matter is removed from the roll and is regarded as finalised.

MASUKU J:

[1]        The applicant in this matter lodged an application for leave to appeal after it was dissatisfied with an order granted by this court on 24 July 2019 refusing to grant it condonation in terms of section 60 of the Prevention of Organised Crime Act 29 of 2004 (“POCA”).

[2]        The applicant sought an order granting it leave to appeal on the grounds as set out in its Notice of Appeal filed on 14 August 2019. The grounds set out therein are rather lengthy and will not be repeated herein.

[3]        The main issue to determine in this application is whether, the order granted by the court, is final in nature and effect and therefor amenable to being appealed to the Supreme Court with leave of this court.

[4]        The applicant strongly contends that the order granted was not final in nature and effect and is thus appealable and before the right forum. In other words, the applicant is of the view that leave to appeal is required. The respondent argues to the contrary.

[5]        With reliance being placed on various decided cases by the parties in their respective sets of heads of argument, the question the court ultimately has to answer in relation to any application for leave to appeal is this: Is the order it issued (on 24 July 2019) final in nature and effect and thus appealable?

[6]        Whether or not a judgment or order is appealable was laid down by the Supreme Court in Shetu Trading CC v Tender Board of Namibia[1]. The Supreme Court, in its decision, relied on other judgments in this jurisdiction and beyond.^[2]

[7]        The elements that must be shown to exist, in order to render a judgment or order appealable, as found in the case law referred to above are the following:

1. It must be final in effect and not susceptible to alteration by the Court of first instance;
2. It must be definitive of the rights of the parties; and
3. It must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.

Application of the attributes to the present matter:

[a] It must be final in effect and not susceptible to alteration by the Court of first instance

[8]        The effect of the order granted on 24 July 2019 when one has regard to the condonation application by the applicant, it suffices to state that the refusal by this court to grant the application for condonation has the effect of rendering the matter ‘final in effect’ for the reasons that follow immediately below.

[9]        The condonation by the applicant was brought in terms of section 60 (1) of POCA after having failed to give notice in terms of s 52 (3) within the time limits as stipulated in s 52 (4) of the same Act. Upon a reading of the relevant sections of the Act, particularly s 64 (1), this court may order a forfeiture by default where it is satisfied that no person has given notice in terms of s 52 (3). It therefore suffices to say that since the applicant’s condonation application was refused, it is, strictly speaking, no longer a participant in the present proceedings as the refusal of the condonation application is tantamount to the applicant not having given notice in terms of the aforementioned section. In essence, the refusal of the condonation application renders the applicant’s participation in the proceedings final in that it can no longer part take in the pending forfeiture application.

[10]      It is trite that an order that does not finally dispose of the rights of the parties or does not dispose of a substantial part of the dispute between the parties is not appealable,^[3] same can of course not be said about the refusal of the condonation application that was brought by the applicant and refused by this court.

(b) It must be definitive of the rights of the parties

[11]      There is no doubt that the condonation application of the applicant which was refused by this court, brought its participation in the proceedings to an end.

[12]      The applicant argues that to refuse it leave to appeal would preclude it from participating in the forfeiture proceedings in respect of property in which it has a substantial interest. It argues further that that such refusal of leave to appeal and condonation would defeat the ends of justice and close the door of the courts on it on grounds of formalism when it is engaged in protracted litigation of national interest and importance.

[13]      The law is trite and the mere fact that a decision or order issued may cause a party inconvenience or place it at a disadvantage in the litigation which nothing but an appeal can correct, is not taken into account in determining the question of the  appealability of the order or judgment.^[4]

(c) It must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings

[14]      It would appear that the application by the applicant also meets this requirement in that its inability to no longer participate in the proceedings disposes of the relief claimed in the forfeiture proceedings for the reason that the application will, all things being equal be granted by default.

[15]      In essence, the refusal of the condonation application is final in effect and thus leave to appeal is not required from this court. The application for leave to appeal by the applicant is thus refused.

[16]      There was an application for condonation by the applicant, for the late filing of its heads of argument. In view of the conclusion reached by the court on the main application, it is unnecessary to determine the application for condonation.

Order:

1. The application for leave to appeal is refused.
2. The applicant for leave is ordered to pay the costs of the application.
3. The matter is removed from the roll and is regarded as finalised.

_______________

T.S. Masuku

Judge 

APPEARANCES:

APPLICANT/RESPONDENTS                              M. Kuzeeko

                                                                               Of Dr Weder, Kauta & Hoveka Inc. Windhoek

RESPONDENT/APPLICANT                                A. Keulder

                                  Of The Government Attorneys Office