Court name
High Court
Case number
APPEAL 336 of 2000
Title

Bergmann v Commercial Bank of Namibia Ltd and Another (APPEAL 336 of 2000) [2000] NAHC 25 (06 November 2000);

Media neutral citation
[2000] NAHC 25
















ALEXANDER
RICHARD BERGMANN



and



COMMERCIAL
BANK OF NAMIBIA LTD. DEPUTY-SHERIFF, WINDHOEK



CASE
NO.
(P)
A
336/2000
2000/11/06



Maritz,
J.















CILVIL
PROCEDURE URGENT APPLICATIONS







Civil
procedure - Rules of court - urgent applications -Court may decline
to condone non-compliance when applicant has created urgency either
mala
fides
or
through culpable remissness or inaction.







Civil
procedure - Rules of Court - urgent applications -Rules designed,
amongst others, to bring about procedural fairness in the ventilation
and resolution of disputes -requirement that procedure in urgent
applications should be "as far as practicable be in terms of the
rules" constitute a continuous demand on the parties to give
effect tot the objective of procedural fairness in urgent
applications -urgent applications should be instituted as soon as the
cause thereof has arisen and the respondent should be afforded tie to
oppose the application, unless it would frustrate the objective of
the application or it would be impractical or unreasonable to do so -
applicant may not delay launching of urgent application to snatch a
procedural advantage over adversary.



















CASE
NO. (P) A 336/2000












IN
THE HIGH COURT OF NAMIBIA

















In
the matter between:



ALEXANDER
RICHARD BERGMANN
APPLICANT
versus






COMMERCIAL
BANK OF NAMIBIA LTD.
FIRST
RESPONDENT


DEPUTY-SHERIFF,
WINDHOEK
SECOND
RESPONDENT

















CORAM:
MARITZ,
J.











Heard
on:
2000.11.06





Delivered
on: 2000.11.06
(ex
tempore)















JUDGMENT







MARITZ,
J.
:
This
is an urgent application brought on Notice of Motion to stay a sale
in execution. The applicant, Alexander Richard Bergmann, is the owner
of a certain flat no. 14, Tal Valley Apartments, No. 7 Wecke Street,
Windhoek. The first respondent is his judgment creditor. The second
respondent is the Deputy Sheriff for the district of Windhoek, who is
charged with the sale of the flat in execution of the judgment
entered against the applicant.











The
issue that the Court is called upon to decide at this point in the
proceedings is whether or not the application should be allowed to
proceed as one of urgency. Mr Bloch contends on behalf of the
applicant that it is urgent. He submits that the urgency is apparent
from the fact that the sale of the flat in execution of the judgment
is scheduled to take place tomorrow at 09:30.











On
the other hand, Mr Strydom, on behalf of the first respondent,
contends that the application is not urgent and, if it is, the
urgency has been created by the applicant's failure to take steps to
stay the execution at an earlier point in time. He points out that
the "Notice of Sale in Execution" and the "Conditions
of the Sale in Execution" were served by the Deputy Sheriff on
the applicant at the offices of his legal representative on 18
October 2000 (more than 2 weeks ago). That much is evident from the
return of service, Exhibit "C", which was handed up in the
course of the oral evidence of the first respondent's instructing
counsel. Given the late service of the application on the first
respondent, it was not afforded sufficient time to answer to the
allegations made in the founding affidavit. That, and because the
relief prayed for is of a final nature as far as tomorrow's execution
sale is concerned, persuaded me to allow oral evidence in support of
the first respondent's opposition to the application and the claimed
urgency thereof.











In
reply to the first respondent's argument, Mr Bloch contends that the
application has not been brought at an earlier point in time because
the applicant was trying to negotiate some or other agreement with
the first respondent about the payment of the judgment debt and to
establish the extent to which other securities, which the first
respondent held, were utilized in reduction of that debt.
Furthermore, the applicant endeavoured to obtain permission from the
first respondent to sell the property by private treaty. All these
attempts came to nothing. The first respondent continued with the
execution process.











In
the course of argument I enquired from counsel whether there was
anything on the papers or in the evidence to suggest that there had
been an agreement that, pending the outcome of the negotiations for
payment of the judgment debt in installments or the sale by private
treaty, the procedures relating to the sale in execution would be
stayed or that the sale would be postponed. I was not referred to any
such agreement and there appears to be none.











The
Court's power to dispense with the forms and service provided for in
the Rules of Court in urgent applications is a discretionary one.
That much is clear from the use of the word "may" in Rule
6(12). One of the circumstances under which a Court, in the exercise
of its judicial discretion, may decline to condone non-compliance
with the prescribed forms and service, notwithstanding the apparent
urgency of the application, is when the applicant, who is seeking the
indulgence, has created the urgency either
mala
fides
or
through his or her culpable remissness or inaction. Examples thereof
are to be found in the
Twentieth
Century Fox Film Corporation
and
Schweizer
Reneke
-
cases*
(*Twentieth
Century Fox Film Corporation and Mother v Anthony Black Films (Pty)
Ltd,
1982
(3) SA 582 (W) and
Schweizer
Reneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbou en
Andere,
1971
(1) PH Fll (T)). It is more so, when the relief being sought is
essentially of a final nature and no or very little opportunity has
been afforded to the respondent to properly present his or her
defence. Obviously, each case is to be decided upon its own facts and
circumstances, although I find it difficult to envisage that a Court
would come to the assistance of an informed applicant who
mala
fides
abuses
the Rules of Court by delaying the institution of urgent application
proceedings to score an advantage over his or her opponent.











It
often happens that, whilst pleadings are being exchanged or whilst
execution procedures are under way, the litigating parties attempt to
negotiate a settlement of their disputes or some arrangement
regarding payment of the judgment debt in installments. The existence
of such negotiations does not
ipso
facto
suspend
the further exchange of pleadings or stay the execution proceedings.
That will only be the effect if there is an express or implied
agreement between the parties to that effect.











The
applicant does not offer any explanation why he delayed from the 18
th
of October 2000 until today to bring the application for the stay of
execution. He was not only fully informed about the date and
conditions of the sale in execution but also had the benefit of legal
advice throughout that period. In the absence of any agreement to
stay the sale or suspend the proceedings pending negotiations, the
applicant had no right or reason to delay the application until the
afternoon before the advertised sale. It is that delay, attributable
to the applicant's inaction, that has caused the matter to become
urgent.











It
happens, in my experience all too frequently, that this Court is
being inconvenienced by last minute applications to stay sales in
execution. Judges of in this Court heave heard several applications
of this nature after ordinary Court hours - thus not only
inconveniencing the Court itself but also the Court's staff (such as
the Court's orderlies, clerks and stenographers). I appreciate that
this application was called about an hour and a half later than the
time mentioned in the Notice of Motion because of other urgent
business the Court had to attend to. But even if it had been called
on time, its hearing would still have extended beyond the ordinary
Court hours.











When
an application is brought on a basis of urgency, institution of the
proceedings should take place as soon as reasonably possible after
the cause thereof has arisen. Urgent applications should always be
brought "as far as practicable" in terms of the Rules. The
procedures contemplated in the Rules are designed, amongst others, to
bring about procedural fairness in the ventilation and ultimate
resolution of disputes. Whilst rule 6(12) allows a deviation from
those prescribed procedures in urgent applications, the requirement
that the deviated procedure should be "as far as practicable"
in accordance with the Rules constitutes a continuous demand on the
Court, parties and practitioners to give effect to the objective of
procedural fairness when determining the procedure to be followed in
such instances. The benefits of procedural fairness in urgent
applications are not only for an applicant to enjoy, but should also
extend and be afforded to a respondent. Unless it would defeat the
object of the application or, due to the degree of urgency or other
exigencies of the case, it is impractical or unreasonable, an
applicant should effect service of an urgent application as soon as
reasonably possible on a respondent and afford him or her, within
reason, time to oppose the application. It is required of an
applicant to act fairly and not to delay the application to snatch a
procedural advantage over his or her adversary.











Had
the applicant so acted in this application, the matter could have
been dealt with on a semi-urgency basis. The respondent would have
had enough time to file a notice of opposition and answering
affidavits. It could have been placed on the sermurgent opposed
motion roll, the issues would have been properly ventilated, the
parties would have had an opportunity to reconsider their respective
positions and the Court could have had the benefit of considered
argument before ruling on the matter. In this case, and because the
application was only served earlier



this
morning on the first respondent, the Court had to allow an
application of the respondent to adduce oral evidence in support of
its opposition to the application - a time consuming procedure that
would have been unnecessary had it not been for the applicant's
dilatory conduct.











I
am of the view that the urgency in this application is self-created
by culpable remissness on the part of the applicant. Hence, I decline
to condone his non-compliance with the Rules of Court or to hear this
application as one of urgency.















In
the result, the following order is made:















The
application is struck from the roll with costs.



ON
BEHALF OF THE APPLICANT:
MR
BASIL BLOCH



Instructed
by:
Attorney
Basil Bloch



















ON
BEHALF OF FIRST RESPONDENT: ADV J. A. N. STRYDOM
Instructed
by:
Engling,
Stritter & Partners