SUMMARY

CASE
NO. A 48/2009

ONYEKA
CLEARING AND FORWARDING CC Applicant

and

MINISTRY
OF FINANCE Respondent

SILUNGWE,
AJ

2009/03/26

PRACTICE - Applications
and motions – Urgent application – Requirements for –
Requirements of Rule 6(12)(b) – Both requirements must be satisfied
– Requirement that applicant cannot be afforded substantial redress
at hearing in due course not proved – Consequence of.

- Applications
and motions – No urgency, urgency self-created through remissness.

PRACTICE - Applications
and motions – Affidavits – Leave to file confirmatory affidavit
on limited issue – Filing of further affidavit impermissible –
Applicant must make out case in founding affidavit.

INTERDICT - Interim
interdict – Requirements of – Failure to prove requirements of.

CASE
NO.: A 42/2009

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

ONYEKA
CLEARING AND FORWARDING CC Applicant

and

MINISTRY
OF FINANCE Respondent

CORAM: SILUNGWE,
AJ

Heard
on: 2009/03/03 – 04

Delivered on: 2009/03/26

JUDGMENT:

SILUNGWE,
AJ: [1] This
application is brought on an urgent basis for interim relief in the
following terms:

1. Dispensing with
the forms, service and compliance with the time limits prescribed by
the Rules of Court … and condoning the applicant’s failure to
comply therewith and directing that this matter be heard as one of
urgency as envisaged in Rule 6(12) of the Rules.

2. That a rule
nisi
do hereby issue calling upon the respondent to show cause, if any, to
this Court on a date to be determined by the Court why an order
should not be made in the following terms:

2.1 That the
respondent’s decision to close the applicant’s counters be set
aside;

2.2 An order
compelling the respondent to forthwith open the counters of the
applicant;

3. That the order
in terms of sub-paragraphs 2.1 to 2.2 hereof shall serve as an
interim interdict with immediate effect pending the finalization of
this application.

[2] The
applicant is a duly licenced and registered customs clearing and
forwarding agent whose director is Mr Malakia Elindi. It is
represented by Mr Boesak, while the respondent is represented by
Ms Katjipuka-Sibolile (Katjipuka).

[3] At
the conclusion of the hearing, the respondent was given leave to file
a confirmatory affidavit and the applicant, too, was given leave to
reply to the respondent’s confirmatory affidavit. Rather
inexplicably, the applicant has abused the occasion by filing a
further affidavit deposed to by Mr Naphtali Tuhafeni Haushona, the
“proprietor” of Global Marketing Agency CC. The respondent takes
issue with this turn of events, and properly so, as it is unable to
deal with Mr Haushona’s further affidavit, with the result that it
is thereby prejudiced. Ms Katjipuka contends that, as the matter had
been heard, it was only in respect of the limited issue for which
leave was granted that it was permissible for the respondent to file
a confirmatory affidavit and a reply thereto by the applicant. I
agree. In addition, she stresses that the applicant should make out
its case in its founding affidavit. I find merit in Ms Katjipuka’s
contentions and rule that Mr Haushona’s affidavit is impermissible.
Incidentally, Mr Haushona is the one whose whereabouts the applicant
claims (in his founding affidavit) that he has had no knowledge of
since last year, and against whom he has laid criminal charges,
jointly with Global Marketing Agency CC, for fraud and uttering.

[4] The
background of this matter is as follows. On July 7, 2008, the
applicant addressed a letter to the respondent’s Controller of
Customs & Excise, Trans Kalahari Border Post, in these terms:

We
would like to inform you that Onyeka Clearing & Forwarding is
giving authorization to the following person to use their bond No.
NAM 05 737.

Consignee
Name: Global Marketing Agency

145
Nelson Mandela Avenue

Windhoek

Commodities: Cigarettes

Value: USD
55 000-00

Quantity: 440
Cartons

[5] It
is not in dispute that at the time the consignment entered the
country, the applicant was, and apparently still is, in possession of
two licences, one of which entitles him to operate as a clearing
agent; this licence requires him to provide a bond or guarantee from
a bank in the sum of N$10 000-00, which, according to Mr Elindi’s
replying affidavit (on behalf of the applicant) has been increased to
N$20 000-00. In terms of this licence, the bond is required for the
purpose of covering duties and taxes relating to goods cleared as
well as to taxes imposable upon the clearing agent. This is the
licence that has been “suspended temporarily” and is the subject
of these proceedings. Mr Elindi points out in his replying affidavit
that, in all correspondence, the respondent refers to closure of the
applicant’s customs & excise clearing agent counter. The second
licence, which is number NAM OS 737, entitles the applicant to
operate a Customs & Excise Ordinary Storage (OS) Warehouse for
which the applicant had to provide a bank bond or guarantee in the
sum of N$50 000-00. This licence requires the applicant to store
juice, fruit, electrical parts and motor vehicle parts. Strangely
enough, this licence relates to the applicant’s warehouse that was
earmarked for the storage of Global Marketing Agency’s imported
cigarettes which the licence did not cover!

[6] On
July 10, 2008, the applicant addressed another letter to the
respondent’s Chief Customs and Excise Office, Windhoek Regional
Office, which reads:

…

We
at Onyeka would like to apply for a temporary (sic) storage of 440
cartons cigarettes for a period of 30 days only, as from 11 July
2008. The reason for keeping the goods is to give time for Global
Marketing to arrange the duties money or export the cigarettes
outside common monetary area.

…

[7] It
is common cause that the foregoing application was received by the
respondent and that no response thereto was made in writing.

[8] Mr
Godfrey Libetwa Kabozu, the Director of Customs & Excise, avers
in his answering affidavit, on behalf of the respondent, that despite
the fact that the applicant had not received the authorization
requested on July 11, 2008, it went ahead and obtained “the customs
declaration form” (attached to its founding affidavit) on the basis
of which it was “allowed to remove the 440 master case of
cigarettes” from the Regional Customs and Excise Office. The
declaration form, continues Mr Kabozu, (purportedly) authorized the
applicant to store the consignment of 440 cigarettes in its NAM OS
737 warehouse. Instead, the applicant stored the consignment in the
warehouse of Atlantic Leather CC which had not been indicated in the
declaration form neither was it duly registered with Customs &
Excise as a bonded warehouse and was thus unauthorized to hold
excisable goods. It is further affirmed as follows:

I
point out that neither applicant nor Atlantic Leather CC claim to
have been in possession of the required authority by Customs and
Excise. I also point out that by taking possession of the consignment
and storing it in a warehouse without the requisite authorization,
applicant not only contravened the terms of the purported declaration
form … but also the Act in this regard.

[9] Mr
Kabozu states that Mr Sackaria Nambahu, a Senior Customs & Excise
Officer of his Directorate, who had carried out investigations in the
matter, revealed that the address given by Global Marketing Agency as
145 Nelson Mandela Avenue is in fact the seat of Nampol Explosive
Unit, as is borne out by Mr Nambahu’s confirmatory affidavit.

[10] In
his founding affidavit Mr Elindi states, on behalf of the applicant,
that in the morning of 11^th
July, 2008, the applicant was approached by Global Marketing Agency
CC, the importer of the cigarettes, for assistance regarding the
temporary storage of the consignment in transit to Angola. The
applicant then requested the respondent’s “customs officials for
a waiver of the applicable rules concerning storage of excisable
goods and for authorization to store the 440 cartons of cigarettes
for a 30 day temporary storage period”. According to the deponent,
“authority for temporary storage was granted” and an inspection
of the place – which Mr Elindi personally attended, was conducted
on 14^th
July 2008. Upon inspection, it was established that about 10 cartons
of cigarettes were missing. The consignment was then stored at a
designated warehouse of Atlantic Leather CC. It is pointed out that
the Customs & Excise officials never queried about the place at
which the consignment was stored.

[11] Mr
Boesak contends that, although there was no written response to the
applicant’s application, the respondent’s subsequent conduct,
such as the inspection of the goods in question, by the respondent’s
Customs & Excise officials at the warehouse where the consignment
had been stored, was evidence that such authority had been tacitly
granted! On the contrary, however, Ms Katjipuka is categorical in her
submission that the applicant’s application for permission to store
the consignment was never granted, either expressly or tacitly. She
submits that the Customs and Excise Act, Act 20 of 1998 (Act), makes
no provision for waiver; that such an application can only be made to
the Commissioner of Customs and Excise, in terms of section 67(4) of
the Act, and that the Commissioner alone can grant or refuse such
application. In any event, the allegation that the application
(authorization) was granted by conduct of the respondent’s Customs
& Excise officials is vehemently denied. According to Mr Kabozu,
prior to Mr Elindi’s involvement in private business, he was a
civil servant in the respondent’s Directorate of Customs and Excise
from May 5, 1995, to July 4, 2001, and that he served in the Regional
Office, which is mandated with clearing responsibilities. In the
light of this averment, Ms Katjipuka contends that Mr Elindi is, or
should be, presumed to be conversant with the provisions of the
Customs and Excise Act.

[12] Mr
Kabozu states in his answering affidavit that, when it became clear
to him that the applicant had contravened provisions of the Act and
that the consignment which had last been in the applicant’s
possession had disappeared, he convened a meeting scheduled for
January 27, 2009, to which Mr Elindi was invited to come and provide
clarity. The meeting was attended by Mr Elindi, Messrs Marenga and
Titus as well as Ms Salimi Shikulo, the latter three being staff
members in the Directorate of Customs and Excise. Also in attendance
was, of course, Mr Kabozu. At the meeting, Mr Elindi was requested
to provide information concerning the whereabouts of his client (i.e.
Global Marketing Agency CC); to provide proof of the alleged
authorization that he claimed to have obtained and which allowed him
to store excisable goods (in a third party’s non-bonded warehouse
that had not been registered with the respondent’s Customs and
Excise Office). Mr Elindi was accorded time until January 30, 2009,
within which he was required to provide the requisite information.
When such information was not forthcoming, the respondent addressed
the following letter to the applicant on February 3, 2009 (which is
attached to the applicant’s founding affidavit as Annexure F18):

…

Subject:
Closure of your Customs and Excise Clearing Agent counter.

We
are hereby informing you that following an incident in which Mr
Naftali Uushona of Global Marketing Agency imported a consignment of
440 boxes of cigarettes that disappeared from the Warehouse; Customs
has made several attempts to trace him. However, we did not manage to
do so.

Due
to the fact that you acted as Clearing Agent, you are hereby notified
that Customs and Excise has decided to extend its request for your
cooperation in this regard until Friday the 6^th
of February 2009 before 14h00. Failure to do so will result in your
counter being closed with immediate effect due to the following
reasons.

1. You
have been informed verbally on the 27^th
January 2009 to get hold of Mr Naftali Uushona (your client) and
furnish us with the information before the 30^th
of January 2009, which never materialized.

2. Secondly,
you have contravened the Customs and Excise Act No. 20 of 1998,
section 19, subsection 8, based on the excisable goods (Cigarettes)
that you cleared to be stored in your Warehouse. Whereas your Storage
Warehouse is not authorized to store any excisable goods.

3. 
   Thirdly, you have
   stored these goods in a non registered Storage Warehouse without
   customs authorization as per Customs and Excise Act, section 19(9).

   
   

…

Mr
Elindi claims, in his correspondence of February 5 (misdated January
5, 2009), that he responded to the respondent’s letter of February
3, as follows:

…

CLOSURE
OF ONYEKA CLEARING AND FORWARDING COUNTER

We
acknowledge receipt of your letter dated 3^rd
of February 2009. In relation to the above subject the following
(sic) is pertinent:

1. Onyeka
Clearing and Forwarding is aware that its bond does not cater for
excisable products; therefore I wrote a letter to Customs asking
permission to store goods (cigarettes) temporary for 30 days before I
pass the IM 7.

2. Global
Marketing represented by Naftali Uushona removed the consignment from
the warehouse without any consent and with customs supervision
according to Naftali.

3. Subsequently,
I laid a charge of fraud and uttering against Global Marketing for
framing an export document with Onyeka Password without my
authorization.

All
the above information will be presented on or before the 20^th
February 2009, as I will travel out of town tomorrow the 7^th
February and be back only after the 15^th.

I
pose here to mention that the allegation in para 2 of Mr Elindi’s
letter above that the removal of the consignment was done with
customs officials’ supervision is highly contentious.

It
is quite clear from the applicant’s own papers (see annexure F19
dated February 19, 2009: an Appeal to the respondent’s Permanent
Secretary against closure of the applicant’s Clearing and
Forwarding Counter) the foregoing letter was sent “to a wrong fax
number”. Mr Kabozu avers that the said letter was received by his
Directorate’s Bond Section on February 19, 2009, at 16h30, as
Annexure GK5 to his answering affidavit demonstrates.

[13] As
the respondent received no response to the letter of February 3, it
addressed the following letter to the applicant on February 12:

Subject:
Closure of your Customs and Excise Clearing Agent Counter.

The
letter dated 3^rd
of February 2009 has reference:

You
have failed on several occasions to meet our request by providing us
with the relevant needed information.

Therefore,
the Directorate of Customs & Excise decided to close your counter
with immediate effect at any Customs operational office, until you
furnish us with the required information.

[14] Mr
Kabozu explains that the words “closing the applicant’s counter”
are an expression of art which essentially means that the suspension
of his licence as a clearing agent is of a “temporary nature”.

[15] At
a meeting of February 18 held with the applicant, represented by Mr
Elindi, Mr Kabozu upheld the respondent’s decision to keep the
applicant’s Clearing and Forwarding Counter closed until duties and
taxes due to the respondent were paid in full.

[16] On
February 19, the applicant launched an appeal to the respondent’s
Permanent Secretary against the respondent’s decision to close the
applicant’s Clearing and Forwarding Counter. The Permanent
Secretary wrote back the same day stating thus:

RE: APPEAL FOR
LIFTING OF THE CLOSURE OF ONYEKA CLEARING AND FORWARDNG COUNTER

Your
letter dated 19 February 2009 with regard to the above refers.

After
thorough consultations and reflection on the facts submitted to me by
the officials in the Directorate of Customs and Excise I am of the
opinion that as a Clearing agent you were responsible for the
movement of the cigarettes consignment up to the time it leaves
Namibia to Angola.

Since
the cigarettes have disappeared whilst in your custody and no
indication has been established that they have left Namibia to Angola
you are solely responsible for the duties and taxes due to the State.
Until such time that the excise duties are paid in full, I cannot see
my way clear to instruct the opening of your Clearing and Forwarding
Counter.

The
said duties and taxes amount to N$1 768 801-00. The significance of
the Permanent Secretary’s letter is that, once the condition of
payment in full is met, the suspension of the applicant’s Clearing
and Forwarding Counter would be lifted. It was that unsuccessful
appeal that prompted the applicant to institute these proceedings.

[17] Against
the foregoing background, the applicant claims that the matter is an
urgent one in that the closure of its Clearing and Forwarding Counter
has adversely affected its business and operations as it has more
than 120 clients with different goods awaiting to be cleared. Other
reasons that allegedly make the matter urgent are that -

2. the
applicant has a shipment that was supposed to be cleared by the 19^th
of February worth in excess of N$20 million which it could not clear
because of the closure of its clearing counter;

3. it
has an average earning of N$30 000-00 per day in all customs clearing
outlets and has employees and families who rely on the applicant’s
clearing and forwarding operations; and

4. there
is no prejudice that the respondent is likely to suffer as the
applicant’s bond in excess of N$50 000-00 is in the respondent’s
possession.

[18] The
respondent denies that the matter is urgent, adding that the alleged
urgency is self-created by the applicant’s remissness in that,
despite various requests by the Directorate of Customs and Excise,
the applicant has failed to cooperate. It is further contended, not
only that at no time has the applicant attempted to purge its
“illegal behaviour” but also that the applicant has tendered no
valid guarantee in respect of the consignment aforesaid concerning
which the applicant’s liability started to run from the time it
took possession thereof until such consignment was exported or
transferred to a third party. Besides, Ms Katjipuka submits that the
applicant has failed to meet all the requirements of urgency in terms
of Rule 6(12) of the Rules of the Court. For ease of reference, that
Rule provides that –

6(12) (a) In
urgent applications the Court or the Judge may dispense with the
forms and service provided for in these Rules and may dispose of such
matter at such time and place and in accordance with such procedure
(which shall as far as practicable be in terms of these Rules) as to
it seems met.

(b) In
every affidavit or petition filed in support of any such application
under (a) of this subrule, the applicant shall set forth explicitly
the circumstances which he or she avers render the matter urgent and
the reasons why he or she claims that he or she could not be afforded
substantial redress at the hearing in due course.

[19]
On a proper reading of Rule 6(12)(b), it is evident that, for an
applicant to succeed under this subrule, both requirements stipulated
therein must be satisfied, to wit, the applicant shall set forth
explicitly:

1. the
circumstances which he or she avers render the matter urgent; and

2. the
reasons why he or she could not be afforded substantial redress at he
hearing in due course.

See:
Clear Channel
Independent Advertising Namibia (Pty) Ltd and Another v TransNamib
Holdings Ltd and Others
2006 (1) NR 121 at 126H-127A-B. Whereas the first requirement has, in
my view, essentially been satisfied in
casu,
the second one has not. Nowhere in the applicant’s founding
affidavit, let alone in the replying affidavit, are any reasons
provided why the applicant cannot be afforded substantial redress at
the hearing in due course. As it is imperative for an applicant to
comply with both requirements, compliance with one requirement only,
as in casu,
is not enough, with the result that it augers badly for the
applicant. See: Clear
Channel Independent Advertising v TransNamib Holdings,
supra,
at 127A-B and the cases there cited.

[20] In
her further argument, Ms Katjipuka highlights Mr Kabozu’s averment
that there is no urgency and that the alleged urgency is
self-created. This is so, continues Ms Katjipuka, because the
applicant’s Mr Elindi had been requested both in person and in
writing to furnish the requisite information and had been given
adequate time, and even time limits, within which to do so, but all
that came to nothing. He was even given notice as to the consequence
of his failure to comply with the respondent’s request, namely,
closure of his clearing and forwarding counter, but this too cut no
ice with him. When the appeal was unsuccessful, the applicant was
informed in writing that its clearing counter would remain closed
until full payment of the specified duties and taxes had been
effected, but that condition still remains outstanding. For the
reasons given by the respondent, I find merit in the argument that
the applicant’s apparent urgency is self-created through its
culpable remissness. See: Bergmann
v Commercial Bank of Namibia Ltd and Another
2001 NR 48 at 49G-I.

[21] Even
if my conclusions on the issue of urgency were to be wrong, which, in
my view, are not, I am, in any event, not satisfied that the
requirements of an interim interdict have been met by the applicant.
The requirements are that the applicant must establish. (1) a prima
facie
right, though open to some doubt; (2) a well-grounded apprehension of
irreparable harm if the interim relief is not granted and he is
ultimately successful; (3) that the balance of convenience favours
the applicant; and (4) that he has no other satisfactory alternative
remedy. See: Mudge
vs Ulrich No and Another
2006 (2) NR 616 at 619B-C.

[22] As
regards the first requirement, Ms Katjipuka urges the Court to find
that the applicant has failed to establish a prima
facie
right since he had no licence and no suitable Warehouse in which to
store excisable goods. Moreover, he stored excisable goods in the
third party’s warehouse which was not licensed with the respondent
to store such goods; thus, the applicant acted in contravention of
the Act.

[23] In
my judgment, Ms Katjipuka’s argument is well founded. It is
abundantly clear, on the facts of this matter, that from the
inception of his involvement with the cigarettes imported into
Namibia, the applicant was fully cognizant of its own status, namely,
that it was not licensed to “cater for excisable products”, to
use its own expression which features in his misdated letter of
February 5, 2009 (Annexure F19(b)) to his founding affidavit). Thus,
even when the applicant addressed the letter of July 7, 2008, to the
respondent’s Controller of Customs & Excise at Trans Kalahari
Border Post in which it informed the respondent that it was giving
authorization to Global Marketing CC to make use of its (the
applicant’s) Bond No. NAM 05 737; and addressed the application of
July 10, 2008, to the respondent’s Chief Customs & Excise
Office at the Windhoek Regional Office, seeking authorization for
temporary storage of 440 cartons of cigarettes for a period of 30
days, the applicant was well aware that it was not licensed to handle
such excisable cargo. It is common cause that the applicant received
no written response to its application for authorization to store
excisable goods. In the course of argument, the Court has drawn Mr
Boesak’s attention to the fact that the Act does not seem to make
provision for waiver, as alluded to by the applicant. Ms Katjipuka
reiterates her submission that the Act makes no provision for the
alleged waiver. After making submissions in favour of the applicant,
Mr Boesak accepts that, in the event that the legislation does not
expressly provide for waiver, then it (presumably such waiver) “is
deemed to be unlawful”. Ms Katjipuka contends that, the
Commissioner did not grant a licence to the applicant in respect of
the excisable consignment in question. Indeed, as the applicant’s
Mr Elindi is a former employee in the Directorate of Customs and
Excise, and did carry out his duties in the Regional Office, he knew,
or ought to have known, that the respondent had no power to grant him
the waiver he had applied for as any such grant would be ultra vires
and unlawful.

[24] There
is no averment or argument on behalf of the applicant that the
respondent acted unlawfully in closing the applicant’s clearing and
forwarding counter; the argument is that the counter was arbitrarily
closed. In this regard, Ms Katjipuka submits that, on the contrary,
the counter was not arbitrarily closed, as alleged; that the
applicant had been given ample opportunity and notice that failure to
act as requested would result in the closure of its counter. I am
satisfied that the applicant clearly saw the writing on the wall, but
chose to disregard it, at its peril.

[25] For
the reasons given, I have no hesitation in finding that the applicant
has failed to establish a prima
facie
right.

[26] Turning
to the requirement of a well-grounded apprehension of irreparable
harm, should the interim relief not be granted, the applicant has an
option to pay the duties and taxes and to thus avert such harm. Much
of course, depends upon his ability to pay, or to raise, the
requisite funds. Hence, this requirement too, has not been met.

[27] The
next requirement is that the balance of convenience favours the
granting of an interim relief. Here, I am of the view that, as the
provisions of the Act are evidently on the side of the respondent,
the balance of convenience favours it.

[28] The
final requirement is that the applicant must show that it has no
other satisfactory alternative remedy. Quite clearly, the applicant’s
satisfactory alternative remedy would be to pay the necessary customs
duties and taxes as these are seemingly inescapable.

[29] In
the final analysis, I find that the applicant has failed to meet any
of the requirements for an interim relief.

[30] In
conclusion, I make the following order:

1. The
application for the interim relief is dismissed.

2. The
applicant is to pay the costs of these proceedings to the respondent.

_____________________

SILUNGWE,
AJ

COUNSEL
ON BEHALF OF THE APPLICANT:

Adv.
Boesak

Instructed
by: B
D Basson Incorporated

COUNSEL
ON BEHALF OF THE RESPONDENT:

Ms
Katjipuka-Sibolile

Instructed
by: Government
Attorney