Standard Bank of Namibia Limited v Nationwide Detectives and Professional Practitioners cc (Case No.: (P) I 811/2007) (Case No.: (P) I 811/2007) [2008] NAHC 72 (11 July 2008);

Group

Full judgment
CASE NO

CASE NO.: (P) I 811/2007


SUMMARY



IN THE HIGH COURT OF NAMIBIA


In the matter between:



STANDARD BANK OF NAMIBIA LIMITED         Applicant

and

NATIONWIDE DETECTIVES AND PROFESSIONAL   Respondent
PRACTITIONERS CC


SILUNGWE, AJ

11/07/2008

PRACTICE         -        Irregular step or proceeding – Rule 30(1) requires party to apply to Court within fifteen days after becoming aware of irregular step or proceeding to set it aside – This is after expiry of ten-day period of notice to remove irregularity in terms of section 30(5) – Non-observance of requirement makes application irregular proceeding.

-       
Irregular step or proceeding – Request for further particulars, filing a plea and/or counterclaim, inter alia, constitute further step – Respondent conceding having taken further step in matter but alleging applicant not prejudiced thereby – Finding that financial prejudice suffered.

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Irregular step or proceeding – Rule 30(5) – Notice to be given to opponent to afford him opportunity to remove cause of complaint (alleged irregularity) within ten days – Though subrule (5) not in peremptory terms, it should nevertheless be complied with – Non-observance of the subrule may result in award of costs or probably dismissal of application – None compliance can in an appropriate case be condoned – One of purposes of subrule is to prevent unnecessary applications being brought and to put defaulting party on notice as to consequences of his default.










































CASE NO.: (P) I 811/2007
IN THE HIGH COURT OF NAMIBIA
In the matter between:



STANDARD BANK OF NAMIBIA LIMITED         Applicant

 and

NATIONWIDE DETECTIVES AND PROFESSIONAL   Respondent
PRACTITIONERS CC
CORAM:            SILUNGWE, AJ
Heard on:                 2008.07.01
Delivered on:             2008.07.11
JUDGMENT:
SILUNGWE, AJ:   
[1]      In this judgment, the applicant, who is the plaintiff in the main action, and the respondent, who is the defendant in the said action, will continue to be referred to as applicant and respondent, respectively.
[2]      There are, in this case, three applications brought in terms of Rule 30 of the Rules of the Court (Rule 30 Applications) and one notice, also in terms of the said Rule. Two of the applications are instituted by the respondent against the applicant whereas one application and one notice are brought by the applicant.
[3]      The first Rule 30 application was filed by the respondent on April 10, 2008, and reads:
                  “NOTICE OF MOTION
Take Notice that application will be made on the 16th of May 2008 at 10h00 a.m for an order in the following terms:
                 
1.       That the plaintiff’s fresh action against the defendant is set aside as an irregular step or proceedings.
2.       That plaintiff pays the costs occasioned by this irregular step or proceedings on third defendant’s fees.
Take further notice that the particulars of the irregularity relied upon by the … defendant are that:
1.       In terms of Rule 49(1) of the High Court the execution and operation of Honourable Mr Justice Heathcote AJ’s judgment is suspended pending the decision of the appeal, therefore in term of this Rule plaintiff cannot continue with its fresh summons.
2.       In the premises the continuous on slaughts by plaintiff through Case No. I 811/07 is an irregular proceeding and should be set aside.”
This application, like the respondent’s second one, does not specify any particulars of the alleged irregularity.
[4]      The applicant’s reaction found expression in its notice (previously referred to) of April 21, wherein the respondent was notified, inter aliathat its application of April 10 was an irregular proceeding. After setting forth particulars of the alleged irregularity, the applicant cautioned that it was affording the respondent an opportunity to remove the cause of its complaint within ten days from the date of that notice (pursuant to Rule 30(5)), failing which the plaintiff would apply to the Court for an order to strike out the defendant’s application as an irregular proceeding.
[5]      When no response was forthcoming from the respondent within the stipulated time, the applicant filed its Rule 30 application on May 12 for an order (essentially) in these terms:
1.       that the respondent’s/defendant’s application be set aside; and
2.       that the respondent/defendant pays the costs of this application.
[6]      In an apparent attempt not to be outdone by the applicant in what I would term (for lack of a better expression) the application game, the respondent filed his second Rule 30 application on May 14, its principal prayers being that the applicant’s Rule 30 application be set aside as an irregular proceeding; and that an award for wasted costs be made in its favour.
[7]     To put the matter into its proper perspective, a further brief background is apposite. The applicant initially instituted an action against the respondent for the recovery of N$29 774-69 which, as the applicant alleged, had mistakenly been paid into the respondent’s bank account. Interest on that amount was also claimed by the applicant. The respondent entered a notice to defend, but after an exchange of pleadings between the parties, the applicant withdrew the action on March 14, 2007, without tendering wasted costs.
[8]      When the applicant subsequently reinstituted the action, the respondent filed a notice of intention to defend, coupled with an application under Rule 42 of the Rules for the recovery of wasted costs in the withdrawn proceedings. In that application, a further order was sought for a stay of the reinstituted proceedings pending the recovery of the wasted costs.
[9]      On hearing the respondent’s application, the Court held that the respondent, being a lay litigant, was neither entitled to wasted legal costs nor to a stay of (the reinstituted) proceedings but that the respondent was entitled to recover only reasonably incurred disbursements. The respondent appealed against that order but judgment is yet to be handed down.
[10]     The applicant is represented by Mr Linus Mokhatu of Metcalfe Legal Practitioners while Mr Alex M Kamwi, a layperson, appears on behalf of the respondent, a closed corporation. I do not find anything wrong with Mr Kamwi appearing on behalf of the respondent of which he is the sole member. See: Nationwide Detectives & Professional Practitioners CC v Telecom NamibiaCase No. I 2947/2005 (unreported – delivered on August 14, 2006); Society, Zimbabwe v Lake1988 (4) SA 532; Import and Export v Zimbabwe Banking Corporation Ltd.1999 (4) SA 119 at 1123 D.
[11]     At the outset, it is agreed between the parties not to press any preliminary issues but to confine their argument to Rule 30. Hence, the only fundamental issue that falls for decision is whether or not the applicant’s application is sustainable.
[12]     Mr Mokhatu strenuously contends that the respondent is not entitled to succeed with its first Rule 30 application because it took a further step with the full knowledge that the applicant’s application was allegedly irregular, namely, that it filed a request for further particulars; a plea; and a counterclaim.
[13]     Mr Kamwi readily concedes that he took the further step as reflected in para. 12 above but argues that the applicant has not been prejudiced thereby.
[14]     Obviously, neither Mr Kamwi’s concession in regard to having taken further steps in the matter nor the alleged lack of prejudice suffered by the applicant is derived from the papers filed in the matter, not even from the respondent’s own heads of argument. What is more is that the bold argument that the applicant has not been prejudiced lacks amplification and substance. In any event, it is submitted by Mr Mokhatu that the applicant has suffered (and continues to suffer) a financial prejudice and hence it has an interest to have the main action finalized without having to wait for an uncertain event to occur. Moreover, nowhere does the respondent refute the applicant’s argument that when the respondent took its first further step on August 1, 2007, by filing a request for further particulars, it did so with full knowledge of the applicant’s alleged irregularity. It is common cause that the respondent’s initial Rule 30 application was launched on April 10, 2008, a period of about eight months and nine day’s from the time that the first further step was taken. This is a violation of Rule 30(1) where a party to a cause in which an irregular step or proceeding has been taken by any other party may, within fifteen days after becoming aware of the irregularity, apply to Court to set aside the step or proceeding. This would obviously be after the expiry of the ten-day period of notice to remove the irregularity in terms of section 30(5). There is here not even an application by the respondent for condonation of its non-compliance with Rule 30(1). Clearly, the non-observance of Rule 30 makes the respondent’s application of April 10 an irregular proceeding.
[15]     A further argument proffered by Mr Mokhatu is that, unlike the applicant’s Rule 30 application, the respondent’s similar application was not in conformity with the provisions of Rule 30(5) as it failed to afford the applicant an opportunity to remove the alleged irregularity within the prescribed time limit of ten days. It is, therefore, contended that the respondent’s Rule 30 application of April 10, is defective because of failure to observe subrule (5). Mr Mokhatu cites the cases of Gauiseb v Minister of Home Affairs1996 NR 90 and v Malama-Keen2008 NR 11 at 13f–g for purposes of comparison.
[16]     It seems obvious to me that Mr Mokhatu’s submission rests on Gauiseb’scase, There is, however, a sharp contrast between that case, which had to do with Rule 23(1), and the present case which relates to Rule 30(5). The contrast is readily discernible in that the proviso to Rule 23(1) is couched in peremptory terms whereas Rule 30(5) is not. In terms of subrule (5), a party that invokes Rule 30 against another party should give notice to his opponent to afford him an opportunity to remove the cause of complaint within ten days of becoming aware of the irregularity. Although the subrule is not peremptory, it should, nevertheless be complied with for the reason that non-compliance will, in the ordinary course, result in an award of costs against the defaulting party and probably a dismissal of the application. One of the purposes of the subrule is to prevent unnecessary applications being brought and to put a defaulting party on notice as to the consequences of his default. See: and Others v Fhirer & Son1982 (3) SA 353 at 361A–B. In an appropriate case, however, the court can condone non-compliance with the requirement. See: ’scase, at 360G – 361B. Anyhow, in the question of condoning the respondent’s non-compliance with subrule (5) of Rule 30 does not arise in the absence of an application for condonation.
[17]     The final issue for consideration is the respondent’s second Rule 30 application for an order that the applicant’s application aforesaid is an irregular proceeding which falls to be set aside. This application, which has seemingly been brought out of a lack of appreciation of the full import of Rule 30, is also irregular, unnecessary and utterly misconceived. It is wholly uncalled for, and even vexatious, for a party to launch a multiplicity of similar interlocutory applications before the first one is ventilated and disposed of. In any event, the findings pertaining to the respondent’s first application are equally applicable to the second one. Consequently, the respondent will be unable to escape the consequences of its conduct.
[18]     Under the circumstances, the following order is made:
1.       The applicant’s Rule 30 application is upheld.
2.       The respondent’s first Rule 30 application filed on April 10, 2008, is hereby declared an irregular proceeding and is, therefore, set aside with costs.
3.       The respondent’s second Rule 30 application of May 14, 2008, is misconceived and irregular; accordingly, it is also set aside with costs.
_____________________
SILUNGWE, AJ

COUNSEL ON BEHALF OF THE APPLICANT:
         Mr Mokhatu

 Instructed by:   Metcalfe Legal Practitioners

COUNSEL ON BEHALF OF THE RESPONDENT:
Mr Kamwi

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