Impala Shipping (Pty) Ltd v H & H Civil CC (AC 15 of 2001) [2001] NAHC 34 (28 September 2001);
CA.
15/2001
IMP
ALA SHIPPING (PTY) LTD v
H
& H CIVILS CC Levy,
AJ
2001/9/28
Application
that a matter brought to Court in terms of the Vice-Admiralty Rules
should proceed in terms of the Rules of the High Court of Namibia
considered and granted.
The Rule
that new matter introduced in a replying affidavit is to be struck
out is not an absolute rule. Application to strike out refused.
Words
written on a printed or typed agreement are entitled to greater
effect than the printed or typed words.
The words
"and/or" must be read conjunctively as well as
disjunctively and neither word can be ignored. They are "an
elliptical and embarrassing expression which endangers accuracy for
the sake of brevity".
Case
No.: AC 15/2001
IN THE HIGH
COURT OF NAMIBIA
(Exercising
its Admiralty Jurisdiction)
In the matter
between:
IMPALA
SHIPPING (PTY) LTD APPLICANT
and
H& HCIVIL
CC RESPONDENT
CORAM: LEVY,
AJ
LEVY,
AJ: On 22nd
June 2001 applicant (hereafter defendant) came by way of Notice of
Motion to this Court for the following relief:
"1.
Directing, in terms of Rule 55 of the Rules for the Vice-Admiralty
Courts in Her Majesty's Possessions Abroad ('the Rules'), that the
action instituted by respondent against applicant under case no.
AC15/2001 ('the action') be heard with pleadings.
2. Directing
that the filing of pleadings and the further prosecution of
this
action be conducted in accordance with the provisions and time
limits
contained in
the Namibian
Uniform Rules of Court ('the Uniform Rules').
3. Alternatively
to paragraph 2, directing that the time period set out in
Rule 56
be enlarged, in accordance with Rule 185, to provide:
respondent
file its particulars of claim within THIRTY (30) days from date of
the order granted herein; and
That
Applicant file its plea within THIRTY (30) days from the date of
receipt of the respondent's particulars of claim; and
That
applicant file its reply within THIRTY (30) days from the date of
the receipt of the applicant's plea.
Alternative
relief.
Directing
that the costs of this application be costs in the cause under case
no. AC 15/2001, alternatively that such costs be paid by respondent
in the event of it opposing the relief sought herein."
Respondent
(hereafter plaintiff) on 4th
July 2001, served a notice on defendant which purported to "oppose
applicant's Notice of Motion dated 9th
day of July 2001". There was and is no notice of motion dated
9th
July 2001, and I have assumed that plaintiff intended to oppose the
aforegoing notice of motion dated 22nJ
June 2001.
The
hearing of this notice of motion was set down for 14th
September 2001.
On 6th
September 2001, defendant brought further notice of motion
proceedings. The relevant portions of this notice of motion read as
follows:
"TAKE
NOTICE THAT at the hearing of the application for pleadings on 14
September 2001, applicant further intends to apply to this Honourable
Court for the following relief:
That the
allocation by the Assistant Registrar of the 16 October 2001 as the
trial date of the action herein be declared an irregular step and be
set aside.
Alternatively
to paragraph 1 above, that the trial of the action which has been
set down for hearing on 16 October 2001 be postponed to a date to be
determined by the Registrar in the ordinary course once the
pleadings have closed in accordance with the Rules of Court
applicable to the action.
Alternatively
to paragraph 2 above, and only in the event of Applicant's
application for pleadings and the application to the action of the
Uniform Rules being dismissed, that the trial of the action which
has been set down for hearing on 16 October 2001 be postponed to a
date to be determined by the Registrar in accordance with Rule 110
of the Rules of the Vice Admiralty Courts in her Majesty's
Possessions Abroad.
That such
further and/or alternative relief be granted to the Applicant as to
this Honourable Court may deem meet in the circumstances.
5. That
Respondent pay the costs of this application."
This
application was also opposed by plaintiff.
On 10
September 2001, plaintiff gave notice that "on 14 September
2001, the Respondent will make application to strike out the
following portions of the Applicant's replying affidavit on the
grounds that the averments constitute new matter which should
properly have been included in the Applicant's founding affidavits:
The
last sentence of paragraph 7.Paragraphs
8 to 10.Paragraphs
12 and 13.
Paragraph
15."
It must be
observed that at the stage that this application to strike out was
served, there were two applications duly issued and brought by
defendant. Although plaintiff did not identify which notice of motion
proceedings it was referring to it is obvious that plaintiff was
referring to the first one.
On 12Ih
September 2001, defendant gave plaintiff notice that it would oppose
this application.
Plaintiff who
is the respondent in all the matters except the application to strike
out, was represented by Mr M Wragge while defendant who is applicant
in all the matters except in the application to strike out is
represented by Ms M de Swardt SC.
Logically it
is necessary to consider an application to strike out new matter from
a replying affidavit before dealing with any other issue because if
the application to strike out is successful, the question which
arises is whether or not, the applicant in the notice of motion
proceedings has nevertheless made out a case for the relief claimed.
If the success of the application to strike out has no effect or
influence on the success of the notice of motion proceedings itself,
the application to strike out even if successful is nothing more than
a harassment and may therefore attract an appropriate order as to
costs. The aforesaid notwithstanding in order to deal effectively
with an application to strike out new matter, it is necessary to know
and understand what the notice of motion and supporting affidavits
deal with and what the object of the notice of motion is.
The general
rule is that supporting affidavits in notice of motion proceedings
must set out the cause of action justifying the relief claimed.
In The
Civil Practice of the Supreme Court of South Africa by
Herbstein & van Winsen, 4th
Ed.,
p.
365, the
learned authors say;
"The
necessary allegations must appear in the supporting affidavits, for
the court will not, save in exceptional circumstances, allow the
applicant to make or supplement his case in his replying affidavit,
and will order any
matter
appearing in it that should have been in the supporting affidavits to
be struck out. If, however, the new matter in the replying affidavits
is in answer to a defence raised by the respondent and is not such
that it should have been included in the supporting affidavits in
order to set out a cause of action, the court will refuse an
application to strike out. It is well established that there exists a
general rule that new matter may not be introduced by an applicant in
his replying affidavit, but this is not an absolute rule and the
court mayin an appropriate case allow an applicant to do so."
In Shcphard
v Tuckers Land and Development Corporation (Pty) Ltdd 1978(1)
SA 173 at 177 H, Nestadt, J referring to the general rule that new
matter should not be introduced in replying affidavits, said;
"This is
not however an absolute rule. It is not a law of the Medes and
Persians."
In the
present case Ms de Swardt has argued that except for paragraph 15,
all the paragraphs and the sentence in paragraph 7 which plaintiff
applies to strike out, are "conclusionary", that is, they
sum up and conclude a particular issue originating in the supporting
affidavit. In such circumstances she says they cannot be struck out.
To decide
this, reference must be made to the notice of motion itself and to
the supporting and opposing affidavits. If the opposing affidavits
raise matters not in the supporting affidavits and if the alleged
offensive facts in the replying affidavits are consistent with the
opposing affidavits, they should also not be struck out.
The High
Court Act, 16 of 1990, of the Republic of Namibia made provision for
the creation of a set of rules of practice in the High Court of
Namibia and the Rules formulated and gazetted pursuant thereto have
since 10th
October 1990, subject to certain amendments, been in force and of
application in Namibia. For convenience these rules hereafter are
referred to as the "Ordinary
Rules of
Court" or simply the Rules of Court. They are the product of
many years of experience both historical and practical and they make
provision for almost every contingency arising in litigation. They
constitute the procedural machinery of the courts of law and are
intended to expedite the business of the courts.
SOS
Kinderdorf International v Effic Lentin Architects 1993(2)
SA 481 (Nm) at 491 D-E
The Ordinary
Rules of Court are interpreted and applied in a spirit that will
facilitate the work of the courts and enable litigants to resolve
their differences in a speedy and inexpensive manner.
The superior
courts of Namibia, like the superior courts of the Republic of South
Africa, possess inherent jurisdiction to grant relief when insistance
upon exact compliance with the ordinary rules of court would result
in injustice to one of the parties or where the rules fail to make
provision for a particular situation.
(See
Herbstein & van Winsen 'The
Civil Practice of the Supreme Court of South Africa 1
4th
Ed. p. 33)
The
provisions of the Colonial Courts of Admiralty Act 1890, were part of
the statute law of the Cape of Good Hope, when by Section 1(1) of
Proclamation 21 of 1919, the law as existing at that time in the Cape
of Good Hope became the law of the then Mandated Territory of South
West Africa.
S v
Redondo 1993(2)
SA 528 (NmSC)
Freiremar
SA v Prosecutor-General of Namibia and Another 1996
NR 18 (HC) Krueger
v Hoge 1954(4)
SA 248 (SWA)
Admiralty Law
as applied by the Colonial Courts of Admiralty Act 1890, was
therefore extended to South West Africa and perpetuated in Namibia
when the Republic of Namibia was established.
The
parliament of the Republic of South Africa has amended and adapted
the Admiralty jurisdiction to South African Courts (The South African
Admiralty Jurisdiction Regulation Act No. 105 of 1983) but this Act
was not extended to Namibia.
Freireinar
SA v The Prosecutor-General of Namibia and Another 1996
NR 18 (HC) Bourgwells
Ltd (Owners of the MFV "Ofelia ") v Vladimir JShepalov and
43 Others
1998
NR 307 (HC)
As can be
expected the Vice Admiralty Rules emanating from the Admiralty Act of
1890, and applicable in Namibia, have in certain respects, not kept
pace with the development and exigencies of modern commerce and
shipping and do not make provision for every contingency. In terms of
Rule 207 of the Admiralty Rules in cases not provided for in the
Admiralty Rules, the practice of the Admiralty Division of the High
Court of Justice of England, is to be applied. However, the practice
of the High Court of Justice of England may itself be silent in
respect of a practice which is peculiar to the circumstances of a
particular case in Namibia or maybe out of step with our practice and
procedure.
It is clear
that under these circumstances where this occurs in order to do
justice the ordinary Rules of the High Court of Namibia may have to
be invoked. The net result is that in these circumstances two sets of
rules are applicable.
In the
instant case, on 28lh
April 2001 before action was instituted in this matter the parties
came to an agreement concerning the jurisdiction of this Court. On
6lh
June 2001, plaintiff caused a writ of summons in
personam to
be issued out of the High Court of Namibia (exercising its Admiralty
jurisdiction.) together with an endorcement of claim wherein
plaintiff after alleging that it is a closed corporation registered
in the Republic of South Africa and that defendant is registered in
Singapore and
carrying on business as a charter and ships operator, says that
defendant has submitted to the jurisdiction of this Court in respect
of the claim reflected in its summons.
It was after
service of this summons and after defendant entered an appearance to
defend that defendant launched these notice of motion proceedings on
22nd
June 2001.
Before tiling
its opposing affidavit, the plaintiff caused to be issued and served
a document described as "Particulars of Claim". In the
particulars of claim, plaintiff repeats its allegation that defendant
has submitted to the jurisdiction of this court in respect of the
action it had instituted by writ of summons. Plaintiff says defendant
did this by way of an "undertaking" accepted by plaintiff
dated 28th
April 2001, and in proof hereof annexes to the particulars of claim
the alleged submission to jurisdiction.
The relevant
portion of the clause of the annexed agreement which plaintiff says
gives it jurisdiction, provides briefly that defendant agrees to be
liable to plaintiff in respect of any order;
" for
which Defendant and/or Impala Shipping is found liable by a final
judgment of
the Namibian
High Court exercising its Admiralty and/or ordinary jurisdiction."
The
underlined portion was added in script to the typed document.
The rule of
interpretation of contracts is that where a printed or typed form has
been altered by written words specially inserted, such words are
entitled to have greater effect attributed to them than the printed
words, inasmuch as the written words are the immediate language and
words selected by the parties themselves for the expression of their
meaning.
Hayne &
Co Ltd v Central Agency for Co-Operative Societies 1938
A.D. at pp 365/366.
The words
"and/or" which are frequently found in legal documents and
which are prominent in the aforesaid added provision have been
interpreted from time to time by the Courts.
In the
instant case, Mr Wragge argues that to give the word "and"
its ordinary meaning would render the submission to jurisdiction
absurd and that "and" must be ignored. InBennan
v Teiman 1975(1)
SA 756 (WLD) the Court considered these words as discussed in other
judgments, including an Australian judgment, where that court
referred to "and/or" as "an elliptical and
embarrassing expression which endangers accuracy for the sake of
brevity". InBennan's
case
(at p 757 G to II) the learned judge added;
"The
words must, however, be given a meaning and they must be read
disjunctively as well as conjunctively - see Aird
v Hockly's Estate 1937
EDL 34 at 42."
Similarly the
words "and/or" must, for the reasons already traversed, be
given a meaning, in the instant case and they must be read
conjunctively as well disjunctively. When this is done it is apparent
that the effect of the word "and" is that exclusive
Admiralty jurisdiction is specifically excluded and the effect of the
word "or" is that the Ordinary Rules of the Court
exclusively,can be applicable instead of Admiralty and the Ordinary
Rules.
Accordingly
plaintiff when it issued summons claimed to be acting according to
and in terms of Vice Admiralty Rules. Thereafter, however, it has
followed and acted in terms of the Ordinary Rules of the High Court
of Namibia.
In terms of
the Admiralty Rules, every action is to be heard without pleadings,
unless the Court otherwise orders (Admiralty Rule 55). There was at
the time of the service of the parttulars of claim no application to
this Court for an order that this Court direct that this action
should be heard with pleadings. Nevertheless on 29th
June 2001 plaintiffmero
motu issued
and caused to be served "Particulars of Claim" a form of
pleading not known in Admiralty Rules but common in the Ordinary
Rules of Court.
During the
course of the argument, it was pointed out to Mr Wragge that in terms
of Ordinary Rule of Court 7, a power of attorney had to be fded
before summons could be issued. A debate ensued as to whether or not
a power of attorney was necessary in the instant case. Whether or not
such power of attorney was or was not necessary, Mr Wragge tendered
such power and asked for condonation in terms of Ordinary Rule of
Court 27. Ms de Swardt agreed that condonation should be granted.
Accordingly, in so far as it may be necessary invoking the Ordinary
Rules of Court, this Court grants condonation in this respect.
It is now
necessary to refer briefly to the claim made by plaintiff as refbeted
in its particulars of claim. It will be observed that plaintiff
relies on the bill of lading and throughout emphasizes this document.
Plaintiff
alleged that it was the owner of, and at all material times had the
risk, in and to the cargo which it described as 53 bundles containing
265 pieces of ductile cast iron spun pipes, shipped on board the "MV
Impala" in Calcutta, India, for carriage to and discharge at
Luderitz, Namibia, under bill of lading CALOO dated 27th
March 2001.
Plaintiff
then pleads that it attaches to the particulars of claim, the front
and reverse sides of the bill of lading which it has marked "RCW1".
The aforesaid notwithstanding the said portions of the bill of lading
were not annexed. Plaintiff says the said bill of lading evidenced
the contract in terms whereof defendant was to carry on the vessel
from Calcutta, the cargo aforesaid and in terms of the contract,
defendant was obliged (I quote verbatim):
"1. to
deliver the pipes at Luderitz to the holder of the bill of lading, in
the same good order and condition in which they were shipped on board
the vessel at Calcutta, and
2. before
and at the beginning of the voyage to:
make the
vessel seaworthy;
properly
man, equip and supply the vessel;
make the
holds and all other parts of the vessel in which the pipes were to
be carried fit and safe for the reception, carriage and preservation
of the pipes.
to properly
and carefully handle, stow, carry, keep, care for and discharge the
pipes;
to provide a
vessel suitable to safely load, carry and discharge the pipes."
Plaintiff
says that on 27th
March 2001, defendant discharged the pipes at Luderitz but the cargo
was in a "damaged and discrepant condition". In particular
the outer coating of the entire consignment of pipes was damaged and
structural damage was sustained to 380 of the 500 nominal bore pipes
(constituting 1091.6 m), 27 of the 400 nominal bore pipes
(constituting 165 m) and 18 of the 250 nominal pipes (constituting
110m). Plaintiff then says that the damage to the pipes was caused by
the defendant's breach of contract, as set out above. It will be
noticed that plaintiff pleaded, (apparently quoting from the bill of
lading), several obligations which rested on the defendant in terms
of the alleged contract but it did not specify the breach of the
particular obligation which resulted in any particular damage.
Plaintiff did
allege that as a result of the damage to the pipes, the plaintiff
suffered damages in the amount of N$6,968,473.54 broken down as
follows (once again verbatim):
"replacement
pipes N$881,280-00 repairs to pipes N$6,087,193-54."
Other than
the aforegoing there are no details of the nature of the damages and
which pipes had to he replaced and which had to be repaired and how
the damages are quantified.
According to
plaintiffs particulars of claim, these damages were a "direct,
natural and foreseeable consequence of the breach of contract by the
defendant" and accordingly plaintiff claims damages in the sum
of N$6,968,473-54 interest and costs.
I have
pointed out that there is no provision in the Admiralty Rules for the
filing of particulars of claim and unless it is so ordered by the
court there can be no pleadings. In this case there had been no such
order. Furthermore in terms of Admiralty Rule 56, if pleadings are
ordered, the plaintiff is obliged to file a "petition
(not particulars of claim) within a period of one week from the date
of the order and the defendant is obliged to file an Answer within
one week from the filing of the petition whereafter a Reply, if any,
is also filed within one week. No pleadings are allowed beyond the
aforesaid Reply, unless the Court so orders.
This
cumbersome procedure far from expediting a decision of this Court
could delay it, and furthermore it militates against accuracy. There
is no provision in Admiralty Rules for a Request for Further
Particulars to be made as of right. Should the plaintiff in this case
be ordered to plead and should it file a "petition"
embracing the provisions in the language and form which it has
pleaded in the particulars of claim, such "petition" would
lack the degree of precision required by the Ordinary Rules of Court
in a particulars of claim (See Ordinary Rule of Court 18(4)). A
defendant faced with a petition
of this nature could not know what the case is which it has to meet
and furthermore could not request essential particulars such as
asking for the bill of lading which was not annexed by plaintiff and
asking for those necessary details referred to above, which would
help to define the issues between the parties and which would place
defendant in a position to plead.
Admiralty
Rules 62 and 63, permits a Court to order interrogatories to be
answered either on affidavit or by oral evidence. This is a clumsy
way to define the issues between the parties and in comparison to the
Ordinary Rules of Court would delay a decision in the matter
concerned and increase costs.
Furthermore,
in terms of the Ordinary Rules of Court a party need not apply to
Court for an order that the other party discover. Under Admiralty
Rules discovery and inspection of documents takes place in terms of a
court order.
According to
Admiralty Rules before almost every step is taken, steps which are
required for accuracy, application has to be made to Court for an
order.
It is clear
that before a dispute governed by Admiralty Rules is ripe for
decision and reaches the trial court, there could be a large number
of applications to Court. En route some applications if not all may
even be opposed.
In the
present case common experience tells us that it would most certainly
be necessary to have expert evidence as to the nature of the damage
to the pipes and how such damage was caused.
Summaries of
the expert opinions according to the Ordinary Rules are filed to
facilitate cross-examination. While a similar procedure may be
possible in terms of the Admiraty Rules, the Court's direction will
again be necessary.
I am
satisfied that if the present dispute between the parties were
governed by the Ordinary Rules of the High Court as opposed to the
Admiralty Rules, the dispute would be resolved far more expeditiously
and cost effectively.
In the
meantime and in reply to defendant's notice of motion proceedings an
affidavit signed by one Thomas Nicholas German du Toit, on behalf of
the plaintiff, was served purporting to be the opposing affidavit in
these notice of motion proceedings. It is necessary to quote verbatim
from this affidavit.
Paragraph 19
thereof provides:
"On 30
July 2001 the Applicant served particulars of claim on the
Respondent. The particulars of claim were served in order to deal
with the Applicant's complaint that it was unable to ascertain the
true nature of the action instituted against it without pleadings."
(This
affidavit was signed on the 3rd
July 2001 and 30 July is clearly incorrect.)
Du Toit
concludes his affidavit as follows:
'80. The
Applicant prays that this application be dismissed with costs, on the
tariff contained in the uniform rules, and that the action proceeds
on the basis set out in paragraphs 59 and 60 of this affidavit!'
Paragraphs
59, 60 and 61 of Du Toit's affidavit provide as follows:
"59. The
cargo damaged by the Applicant was intended for the construction of
an underground water system for the zinc mine at Rosh Pinah. This is
an important project for the Namibian economy. It is in the interest
of the various parties involved in the project that the Respondent
recovers its damages as soon as possible. Any delays in the
prosecution and hearing of the action will severely prejudice, inter
alia, the
Applicant.
60. The
Respondent submits that this Honourable Court should direct the
Registrar of the court to set down the action for the earliest date
possible. The Respondent's Namibian correspondents, Fisher Quarmby &
Pfeifer, have advised that according to the Registrar of this court
trial dates are available in November.
61. In
order to regulate the trial the Respondent is prepared to agree that
the following provisions of the uniform rules apply to the action:
Uniform rule
21 (further particulars);Uniform
rule 35 (discovery);
Uniform ride
36 (inspections, examinations and expert
testimony);
Uniform rule
37 (pre-trial conference);Uniform
nde 38 (procuring evidence for trial);Uniform
rule 67 (tariff of court fees);
Provided the
trial is set down immediately on a date in November 2001 agreed
between the parties, the Applicant is directed to deliver its plea
within ten court days of receipt of the particulars of claim already
served on his Namibian attorneys, the Applicant responds to the
notice to produce and the uniform rules referred to in this paragraph
are applied within a time frame that allows the action to proceed on
the agreed date in November 2001."
Despite the
impression conveyed that the matter should be set down in November
2001, the plaintiff applied to the Registrar of this Court and was
allotted the 16th
October 2001 for the hearing of this action.
Paragraph 61
of the opposing affidavit of Du Toit indicates that plaintiff is
clearly of the view that the Vice Admiralty Rules are inadequate and
should be augmented by the Rules of the High Court of Namibia
1 am
satisfied that the applicant in notice of motion dated 22" June
2001 has made out a case justifying an order in terms of claims 1 and
2 of its notice of motion and I arrive at this decision without
having to rely on any allegations in paragraphs 8 to 10, 12 and 13,
and 15 and the last sentence in paragraph 7, of its replying
affidavit. In any event I am satisfied that all those
facts and argument appearing in paragraph 15 was indeed not referred
to in Tucker's supporting affidavit but Mr du Toit in paragraph 61.3
of his opposing affidavit specifically suggests that the Ordinary
High Court Rule 36 which governs expert evidence should be ordered by
this Court to apply to this trial.
In the
circumstances there is no substance in the application to strike out
and if there is some substance, such cannot effect the result of this
case and exercising the discretion vesting in me, I reject the
application.
Admiralty
Rules 55 and 56 entitles this Court to Order that this matter proceed
by way of pleadings and this Court is also given the power in terms
of those rules to regulate time periods for filing such pleadings. It
does not, however, refer to the right of either party to request
further particulars, nor file exceptions or applications to strike
out on the various grounds recognized in Namibian law relating to
practice and procedure.
I am
satisfied that it would be in the interest of justice and far more
cost effective, if this matter proceed to trial and be prosecuted in
terms of the Ordinary Rules of the High Court of Namibia.
I am fully
aware that this Court has the inherent jurisdiction and power to
regulate the procedure to be followed by litigating parties. By
ordering this matter to proceed in terms of the Ordinary Rules of
Court, I am not riding rough-shod over the wishes of plaintiff. The
written agreement whereon plaintiff relies for jurisdiction
specifically provided that the jurisdiction would be Admiralty and
Ordinary jurisdiction or simply ordinary jurisdiction and as pointed
out plaintiff itself has departed from the requirements of the
Admiralty jurisdiction and invoked the Ordinary jurisdiction of the
Court. It did so again on 10th
September when it applied to strike out paragraphs in plaintiffs
replying affidavit. Furthermore in his opposing affidavit Du Toit on
behalf of plaintiff recognized the inadequacy of the Vice Admiralty
Rules.
This Court
agrees with the views expressed by Ms de Swardt that the Admiralty
Rules would not lead to an expeditious and cost effective result in
this matter. It is clear from the opposing affidavit of Mr du Toit,
that he too realizes that certain of the Ordinary Rules of the High
Court should be invoked. Should only some of the Ordinary Rules of
Court be invoked and not others, this could create uncertainty and
lead to further confusion and a delay in finality.
It would
appear from the affidavit of Mr du Toit quoted above that the date of
hearing which plaintiff originally wanted, was not 16lh
October 2001. In any event both counsel agree that the parties are
not in a position to proceed on that date.
A. In
respect of the Notice of Motion instituted on 22nd
June 2001, the orders of this Court are:
In terms of
Rule 55 of the Rules of the Vice Admiralty Courts in Her Majesty's
Possessions Abroad, the action instituted by H & H Civil CC
against Impala Shipping (Pty) Ltd under case no. AC 15/2001, shall
be heard with pleadings;
The filing
of pleadings and the further prosecution of this action shall be
conducted in accordance with the provisions and time limits
contained in the Ordinary Rules of Court of the High Court of
Namibia subject to (3) hereunder.
The
Particulars of Claim dated 2nd
July 2001 shall stand as Particulars of Claim in the action AC
15/2001 and the defendant in that action is authorized to request
further particulars if it so desires in respect of such Particulars
of Claim provided such request is made within 10 (ten) court days of
this Order.
(4) The
costs of this application dated 22nd
June 2001, shall be costs in the cause under case no. AC 15/2001.
B. In
respect of the Notice of Motion proceedings dated 6th
September 2001, the Order of this
Court is:
The trial of
the action AC 15/2001 which has been set down for hearing on 16'
October 2001 is postponed to a date to be determined by the
Registrar in the ordinary course, once the pleadings in the said
action have been closed in accordance with the Rules of the High
Court of Namibia.
The costs
shall stand over for decision by the Court when action AC 15/2001 is
adjudicated.
C. In
respect of the application dated 10th
September 2001, brought by H & H Civils CC to
strike out
certain matter from the replying affidavit of Impala Shipping (Pty)
Ltd, this Court
orders:
The
Application is dismissed.
There is no
order as to costs.
For the
applicant: Advocate
M de Swardt SC
Instructed
by: Messrs
Weder, Kruger & Hartman
For
the respondent: Instructed by:
Advocate
M Wragge
Messrs
Fisher, Quarmby & Pfeifer