Beukes v Martins and Others (A 431/2009) [2010] NAHC 12 (20 January 2010);

Group

Full judgment
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:


  1. The application is removed from the Roll for lack of urgency.


  1. 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




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