CASE NO
NOT
REPORTABLE
CASE NO.: A
431/2009
IN THE HIGH
COURT OF NAMIBIA
In the matter
between:
JOHANNES
AMILCAR BEUKES Applicant
and
RICARDO
MARTINS First Respondent
ARLENE BEUKES
Second Respondent
MAGISTRATE P.
P. NANGULA Third Respondent
CORAM: PARKER
J
Heard on: 2009
December 16
Delivered on: 2010
January 20
_________________________________________________________________________
JUDGMENT
_________________________________________________________________________
PARKER
J: [1] The applicant has brought an
application by notice of motion, moving the Court on urgent basis to
grant an order in the following terms:
(1) Condoning any non-compliance
with Rule 53 and Rules 4 and 6 of this Honourable Court with regard
to service of court documents, prescribed time periods and the record
prescribed therein and to consider this application as one of
urgency.
(2) Ordering that the final
protection order of the Magistrate’s Court on 13th
July 2009 of Windhoek be enforced alternatively enforcing the interim
protection order granted on 6 January 2009 against first respondent.
(3) Reviewing and declaring the
temporary custody order of the Tsumeb Magistrate’s Court in
favour of second respondent in the above matter on 3 July 2009 a
nullity.
(4) Ordering the second
respondent to return the minor child Amilcar Walter Beukes to 4479
Dodge Avenue, Khomasdal, Windhoek – the residence of the
applicant – on or before Thursday, 17 December, 2009, 12H00.
(5) Ordering respondents to pay
the costs of this application.
(6) Alternatively granting
applicant custody of the minor child until finalization of the
Special Review and ordering respondents to pays costs.
(7) Further and/or alternative
relief.
[2] At
the commencement of these proceedings, I informed the applicant who
appears by himself and Ms Schimming-Chase, counsel for the 1st
and 2nd
respondents, and Mr Ncube, counsel for the 3rd
respondent, that I was going to hear and determine the question of
urgency alone.
[3] Mr
Ncube informed the Court that the 3rd
respondent was not opposing any substantive relief that affects the
3rd respondent,
and further that the 3rd
respondent was only opposing Prayer 5, being costs. Since the 3rd
respondent is not opposing the substantive relief, I do not think any
order as to costs should affect the 3rd
respondent.
[4] Ms
Schimming-Chase informed the Court that the 1st
and 2nd
respondents had been served with papers the previous day at about
13H00 in Tsumeb. They had to drive to Windhoek to meet with counsel
for counsel to draft opposing papers. I allowed the opposing
affidavit to be filed for a simple reason. As I have said on many
occasions in various decisions, I only hear an application if the
other party has been served properly with papers and that other party
has been afforded reasonable time to oppose the application. That is
fair trial within the meaning of Article 12 of the Namibian
Constitution. To hear an applicant who has come to the Court on
barely one-day’s notice and who expects an order to be made
against the other party when that party has not been heard is not
only unconstitutional but it also strikes at very core of the Court’s
sense of justice, which this Court has a constitutional duty to
dispense. I cannot emphasize this notion enough. The circumstances
– and they are few and far between – as described by this
Court in Bergman v Commercial Bank of Namibia
Ltd 2001 NR 48 where it may defeat the very
object of an application if papers were served on the other party for
that party to oppose the application do not arise in these
proceedings at all. It matters the least if counsel or persons
representing themselves characterize the application as urgent, as
the applicant has so described the application in these proceedings.
Indeed, in the instant case the need to permit the opposing parties
to file opposing papers in order to oppose the application is even
put in sharper focus considering the nature of the order the
applicant has moved the Court to grant, sc. custody of a minor child.
[5] Why
does the applicant say Prayer 1 should be granted; that is, on what
grounds does the applicant contend that his non-compliance with the
relevant Rules of Court should be condoned and the matter heard on
urgent basis? They are briefly these. There is a protection order
(coupled with a custody order), granted by the Windhoek Magistrates
Court, and that order was being disregarded, and furthermore, the
minor child was being continuously abused. Despite the existence of
that protection order, another Magistrate (the 3rd
respondent) made another order which, according to the applicant, did
‘incapacitate the (previous) protection order’. In sum,
according to the applicant, ‘I have a custody order …
since the 6th
January (2009), but that custody order had been discharged by
misleading court cases (I assume in the magistrates’ courts)’.
It was further contended by the applicant that the 3rd
respondent arrogated to himself greater power than what he has, and
so this Court ought to set aside the 3rd
respondent’s order. In conclusion, the applicant submitted
that the matter should be heard on urgent basis because ‘the
child is under abusive circumstances’.
[6] Ms
Schimming-Chase submitted that as far as the applicants were
concerned, the matter should not be heard on urgent basis, and in
support of such contention counsel submitted as follows. The
applicant seeks an urgent review of the decision by the 3rd
respondent made on 3 July 2009 and declaring the decision a nullity;
but on his own papers the applicant states that he has already
applied for special review of that decision, and that application is
pending in this Court. The result is that this same Court, which has
a special review pending before it, is now been asked to disregard
that pending review and carry out a review on urgent basis. The
applicant has not given one iota of reason why the Court should toss
and turn on its own Rules just to suit the whims and caprices of the
applicant.
[7] In
Hewat Beukes t/a MC Bouers and others v
Luderitz Town Council and others (Judgment on
3 March 2009) (Unreported) at pp. 4-5, I said the following about the
requirements which an applicant must satisfy before the Court may
exercise its discretion in favour of condoning the applicant’s
non-compliance with the Rules of Court and hearing the application on
urgent basis:
In my opinion, the essence of
rule 6(12) of the Rules is, therefore, that in the exercise of his or
her discretion, it is only in a deserving case that a Judge may
dispense with the forms and service provided in the Rules. In terms
of rule 6(12), as I see it, a deserving case is one where the
applicant has succeeded – (1) in explicitly setting out the
circumstances which the applicant asserts render the matter urgent
and (2) in giving reasons why he or she claims he or she could not be
afforded substantial redress at the hearing in due course. (Mweb
Namibia (Pty) Ltd v Telecom Namibia Ltd
Case No.: (P) A 91/2007 (Unreported), where the Court relies on a
long line of cases, including the Namibian cases of Bergmann
v Commercial Bank of Namibia Ltd
2001 NR 48; Salt and
another v Smith 1990
NR 87). Thus, in deciding whether the requirements in (1) and (2) of
rule 6(12) have been met, that is, whether it is a deserving case, it
is extremely important for the Judge to bear in mind that it is
indulgence that the applicant is asking the Court to grant.
[8] As
to requirement (1); from the papers, as I have summarized it above,
the circumstances that the applicant puts forth as grounds rendering
the matter urgent have nothing to do with urgency: they go to the
merits of case. The applicant does not fare any better as respects
requirement (2). The applicant does not provide any reasons why he
claims he could not be afforded substantial redress at the hearing in
due course. Indeed, on the contrary, as Ms Schimming-Chase
submitted, the applicant will be afforded substantial redress in due
course when the special review that is pending before this Court, as
aforesaid, is carried out. What is more, as respects the question of
custody of the minor child, the applicant will also obtain
substantial redress in due course when the issue of custody comes up
for determination in the divorce matter that is pending before this
Court involving the applicant and the 1st
respondent. Indeed, the matter has been set down for hearing on the
Divorce Floating Roll of 9-12 March 2010; that is, barely two months
away, and the applicant knows about this. The determination by this
Court of the custody issue will put a stop to the ongoing judicial
tug-of-war between the Windhoek Magistrates Court and the Tsumeb
Magistrates Court, stoked up by the applicant and the 1st
respondent. I shall revert to this conduct of the applicant and the
1st respondent
when I come to determine the question of costs in these proceedings.
[9] To
sum up; the applicant has failed, as I have shown above, to satisfy
requirement (1) and requirement (2). I conclude, therefore, that
there is lack of urgency on the papers. As regards costs, I think
this is a proper case where costs should not follow the event. In
this regard, I take into account the insufferable conduct of the 1st
respondent – together with the applicant – in stoking up
the judicial running battle between the Windhoek Magistrates Court
and the Tsumeb Magistrates Court, as aforesaid.
[10] In the
result, I make the following order:
The application
is removed from the Roll for lack of urgency.
There is no order
as to costs.
_______________________
PARKER J
COUNSEL ON
BEHALF OF THE APPLICANT:
In Person
COUNSEL
ON BEHALF OF THE 1ST
AND 2ND
RESPONDENTS:
Adv. E
Schimming-Chase
Instructed
by: Neves Legal
Practitioners
COUNSEL
ON BEHALF OF THE 3RD
RESPONDENT:
Mr Ncube
Instructed
by: Government
Attorney
Beukes v Martins and Others (A 431/2009) [2010] NAHC 12 (20 January 2010);