SUMMARY
REPORTABLE

CASE NO.: A 128/2009

WERNER PETRUS vs. JASON
NGHIDINUA AND ANOTHER

PARKER, J

2009 April 29

Practice - Applications and motions – Urgent application –
Court affirming principle that application, urgent or otherwise, not
appropriate where there are bona fide, substantial and material
disputes of facts.

Practice - Applications
and motions – Application proceedings where action proceedings have
already been instituted to deal with the same disputes of facts –
Court finding that application cannot be allowed where grant of order
would have the effect of setting aside default judgment in the
absence of rescission application – Court dismissing application
with costs.

Held, On
the facts, it is not a proper case in which to send parties to trial
where default judgment granted in action proceedings subsists and is
valid.

REPORTABLE

CASE NO.: A
128/09

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

WERNER
PETRUS APPLICANT

and

JASON
NGHIDINUA 1^ST
RESPONDENT

JOHN
PULESTON 2^ND
RESPONDENT

CORAM: PARKER,
J

Heard on: 2009
April 16, 20, 21

Delivered on: 2009
April 29

JUDGMENT:

PARKER, J.:
[1] In
this matter, application is made by the applicant on urgent basis in
which he has prayed for relief in the following terms:

1. 
   Ordering the Respondents to
   fully restore possession and occupation of the farm Ekango Litoka,
   at Omangeti to the Applicant, and returning his livestock to the
   farm and other goods taken out of the farm on 03 April 2009 by the
   Respondents;

   
   

2. 
   Interdicting and restraining
   the first and second Respondents from interfering with the
   Applicant’s peaceful occupation of and farming at the farm Ekango
   Litoka;

   
   

3. 
   Pending the finalization of
   this application no steps shall be taken to deny the applicant, his
   family and his livestock peaceful occupation of the farm Ekango
   Litoka;

   
   

3. That orders sought and
granted under paragraphs 2.1; 2.2 and 2.3 serve as interim relief
with immediate effect;

4. Costs of suit to be paid by
any of the Respondents opposing this application;

5. Grants further and/or
alternative relief.

6. ……

[2] The applicant,
represented by Mr Namandje, filed the Notice of Motion on 14 April
2009, and gave notice that the application would be made at 09H00 on
16 April 2009 (or “as soon thereafter”). The Notice of Motion
was served on the first respondent’s legal practitioners at 14H27
on 14 April 2009. The applicant’s legal practitioners are aware
that the first respondent resides in one of the northern regions of
the country. The upshot of this is that the applicant gave the first
respondent less than 24 hours during which the first respondent would
give instructions telephonically to his legal practitioners who are
based in Windhoek for the legal practitioners to prepare opposing
affidavit and any confirmatory affidavit thereto, get those
affidavits settled by the deponents, file the papers in the Court and
serve them on the applicant’s legal practitioners - all before
09H00 on 16 April 2009. In my opinion, to expect the first
respondent to do all that in less than 24 hours is, on the facts of
the case as will become apparent shortly, to deny the first
respondent his constitutional right to fair trial guaranteed to him
by the Namibian Constitution (See Hewat
Beukes t/a M C Bouers and Others v Lüderitz Town Council and Others
Case No.: A 388/2009 (Unreported).)

[3] For the
aforegoing reasons, Ms Angula, counsel for the first respondent,
applied for a postponement of the hearing of the application in order
to afford the first respondent the opportunity to file opposing
papers. I granted Ms Angula’s application; and I think the
applicant ought to be mulcted in costs for the postponement, because
the postponement was brought about by the applicant’s unacceptable
conduct described above.

[4] I pass to
consider the main issues. On the facts of the case, should the Court
grant the relief sought in para (1) of the Notice of Motion and hear
the application on urgent basis? Ms Angula argued on a preliminary
point that the grounds for urgency relied on by the applicant have
been contrived by the applicant and the urgency is self-created.
Besides, this preliminary point, Ms Angula pressed on the Court to
dismiss the application because there are disputes of facts which
cannot be resolved on the papers in application proceedings. Mr
Namandje argues contrariwise: he says as follows: the applicant is
not seeking a final order but a rule
nisi;
and on the return date, the Court can revisit the order and discharge
it. With respect, I cannot accept that argument. If there are,
indeed, disputes of facts, which cannot be resolved on the papers, it
matters not whether the Court attempts to resolve them at the rule
nisi
stage or at the return date stage.

[5] For a good
reason which I shall demonstrate in due course. I shall deal with
the issue of disputes of facts first, because it would dispose of the
urgency issue, too.

[6] In Hendrik
Christian v Metropolitan Life Retirement Annuity Fund and Others
Case No.: A 376/2008 (Unreported) at pp 6-7 I considered the
different ways whereby a litigant desirous of obtaining judicial
relief can proceed to the Court, and I stated as follows:

A litigant desirous of
obtaining judicial relief can proceed to the Court in one of the two
different ways. The litigant can issue an appropriate summons with
particulars of claim in which its case is set out and the defendant
will have to file a plea to reply to the allegations in the
particulars of claim. The plaintiff can but rarely does replicate to
the plea. In any event the matter will then be set down for trial
and both sides will call witnesses to give oral evidence, if so
advised. The witnesses are cross-examined and their credibility is
assessed by the Court. If documents are relied on, the makers of the
documents may be brought to Court to give evidence on them. By so
doing, the credibility of not only the witnesses but also the
documents is assessed; and what is more, the probative value of the
documents is also assessed in the process. The other procedure is by
way of notice of motion and affidavits. There can be no
cross-examination of affidavits and, therefore, an assessment of
credibility of witnesses is hardly possible. Consequently the
procedure by way of summons is the only correct procedure where there
is a genuine, material and substantial dispute of fact. In this
regard, a principle which is fundamental to all notice of motion
proceedings is that if a litigant knows in advance that there will be
a material dispute of fact, the litigant cannot go by way of motion
and affidavit. If he or she nevertheless proceeds by way of motion
he or she runs the risk of having his or her case being dismissed
with costs. (Mineworkers
Union of Namibia v Rössing Uranium Limited
1991 NR 299; Tamarillo
(Pty) Ltd v B N Aitken (Pty) Ltd
1982 (1) SA 398 (A))

[7] In the present
case, the applicant has opted to approach the Court by Notice of
Motion and affidavits. But from the papers I find that there is a
substantial and genuine dispute of facts on the material aspects
which go to the root of the lis
between the applicant and the first respondent. For example, the 2^nd
respondent has stated in his supplementary affidavit thus: ‘I
state categorically that I evicted the applicant from farm Onyaivale
and not from farm Ekango Litoka.’ The second respondent goes on to
state in the affidavit that he was able to determine that the farm in
respect of which he executed the eviction order granted by this Court
on 24 October 2008 in action proceedings instituted by the first
respondent (I shall return to the eviction order in due course.)
because, inter
alia,
the applicant’s wife ‘did not mention that we (i.e. the first
respondent and his assistant) were at the wrong farm’ and also
‘none of the people who were present at the eviction stated that
the eviction is being carried out at the wrong farm or that we (i.e.
the second respondent and his assistant) were at the wrong farm.’
But how would the wife of the applicant and ‘the people who were
present at the eviction’ tell the second respondent that he was
carrying out the eviction in respect of the ‘wrong farm’ when,
from the papers, it is not clear whether there is only one farm
involved and one may call it either ‘Onyaivale’ or ‘Ekango
Litoka’, depending on whether one is standing behind, so to speak,
the applicant or the first respondent or whether farm ‘Onyaivale’
and farm ‘Ekango Litoka’ are two different farms situated in
different land areas.

[8] In this
regard, take, for example, the contents of para 34.3 of the first
respondent’s opposing affidavit that was filed with the Court on 16
April 2009: ‘The farm presently occupied by the applicant is one
and the same farm I allege to be Onyaivale whilst applicant considers
the same farm to be Ekango Litoka.’

[9] The sum total
of the aforegoing is that there is not one grain of doubt in my mind
that there are genuine and substantial disputes of facts on the
material aspects on the papers. Accordingly, the principle in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 620 (A) is not of assistance on the facts of this case. I
am also alive to the proposition that:

It is equally undesirable to
accept disputes of fact at their face value, because if that were
done an applicant could be frustrated by the raising of fictitious
issues of fact by a respondent. Accordingly, a Court should in every
case critically examine the alleged issues of fact in order to
determine whether in truth there is a dispute of fact that cannot be
satisfactorily determined without the aid of oral evidence.

(Ter
Beek v United Resources CC and Another
1997 (3) SA 315 (C) at 336C-E, cited with approval in Erastus
Tjiundikua Kahuure and Others v Mbanderu Traditional Authority and
Others
Case No.: (P) A 114/2006 (Unreported))

[10] With respect,
I fail to see what assistance the applicant can derive from
Ripoll-Dausa
v Middleton NO and Others
2005 (3) SA 141, referred to me by Mr Namandje. I cannot see how by
merely looking at the papers in the instant case, this Court is able
to decide that the probabilities do not favour the first respondent
and that reasonable prospects exist that oral evidence would tip the
balance in favour of the applicant. What I am rather certain about,
as I have mentioned previously, is that the first respondent’s
papers raise bona fide or genuine disputes of facts on material
aspects that go to root of the matter and the first respondent’s
denial of the applicant’s averments are not far-fetched or
untenable (See Ripoll-Dausa
supra.) and so, therefore, I hold that the issues dividing the
applicant and the first respondent cannot be resolved on affidavits;
and for that reason, I have come to the inexorable and reasonable
conclusion that I should exercise my discretion in favour of refusing
to hear the application on urgent basis or at all.

[11] But that is
not all. The first respondent has stated in his opposing affidavit
that it was because, in his view, the disputes of facts could not be
resolved on affidavits, and that was why he instituted summons in
action proceedings. As I mentioned previously, in the action
proceedings, this Court granted a default judgment in which it
granted an order on 24 October 2008 (the 24 October 2008 order) where
it was ordered that:

1. 
   The defendant be evicted from
   farm Onyaivale situated in the Omangeti area, Oshikoto region; and

   
   

2. 
   Costs of suit.

   
   

[12] The 24
October 2008 order still subsists and it is valid; but the applicant
has decided not to apply for a rescission of the default judgment
that was granted in his absence in which that order was made. He has
rather taken the route of making an application on notice of motion.
In my opinion, if the application were granted, it would have the
irrefragable effect of setting aside the 24 October 2008 order in the
absence of a rescission order; and that, this Court should not and
cannot do. In this regard, in response to a question by me as to
what effect the relief the applicant has prayed for in the present
application would have on the 24 October 2008 order, Mr Namandje said
that the present application is in respect of farm Ekango Litoka.
That, with respect, is a disingenuous response by all account; just
as the present application on notice of motion is a disingenuous
attempt by the applicant to skirt around the aforementioned eviction
order granted in action proceedings in a default judgment. I say so
because whether the applicant was evicted from farm Onyaivale or farm
Ekango Litoka and whether farm Onyaivale and farm Ekango Litoka is
one and the same farm constitute genuine, substantial and material
disputes of facts which divide the applicant and the first
respondent. And it was for that reason that the first respondent
instituted action proceedings in order for the Court to resolve the
dispute in trial, as aforesaid. Furthermore, in pursuit of this
chicanery, the applicant did not even disclose in the present
application the summons that was served on him on 4 September 2008
and which generated the default judgment given by the Court on 24
October 2008, as I have mentioned previously.

[13] Besides, in
March 2009, the applicant’s wife was warned to vacate the premises,
failing which the eviction would take place on 3 April 2009. No
action was taken by the applicant. The applicant decided to wait
until 3 April 2009 to be evicted and then rush to the Court with the
present application which he now prays the Court to hear on urgent
basis.

[14] In reality,
from the aforegoing reasons and conclusions I find that what the
applicant now requests the Court to do is for the Court to disregard
the default judgment granted by this same Court, which, as I have
mentioned previously, is valid and still exists, even if the
applicant’s request is dressed in the cloak of interim interdict.
If I were to grant the applicant, I would be setting a dangerous
precedent in that I would be telling litigants that they are at
liberty to simply disregard default judgments and institute
application proceedings to resolve disputes decided by the default
judgments. On this point, I accept Ms Angula’s submission
thereanent. For the aforegoing reasons, too, I have come to the
conclusion that I should exercise my discretion in favour of refusing
to hear the application on urgent basis or at all.

[15] For the
aforegoing reasons and conclusions therefor, I hold that this is not
a proper case where the Court may order the parties to go to trial.
There are already instituted action proceedings on the same disputes
in which a valid default judgment exists, as I have said more than
once. The views I have expressed and the reasons therefor logically
dispose of the issue of urgency because, as I have mentioned more
than once, for the reasons given, this Court cannot hear the
application on urgent basis or at all. It follows that the
application falls to be dismissed with costs.

[16] In the
result, the order of this Court is that the application is dismissed
with costs, including costs occasioned by the postponement of the
matter on 16 April 2009.

PARKER, J

ON BEHALF OF
THE APPLICANT: Mr Sisa Namandje

Instructed
by: Sisa Namandje & Company

ON BEHALF OF
1^ST
RESPONDENT Ms E M Angula

Instructed
by: LorentzAngula Inc.