CASE NO
NOT
REPORTABLE
CASE
NO.: I 2400/2007
IN THE HIGH
COURT OF NAMIBIA
In the matter
between:
THE
COUNCIL OF THE MUNICIPALITY Plaintiff/Respondent
OF THE CITY OF
WINDHOEK
and
DB
THERMAL (PTY) LIMITED 1st
Defendant/Applicant
ZITON
(PTY) LIMITED 2nd
Defendant/Applicant
CORAM: PARKER
J
Heard
on: 2010 June 7
Delivered
on: 2010 August 13
________________________________________________________________________
JUDGMENT
________________________________________________________________________
PARKER
J: [1] This is an
application for leave to appeal by the applicants (defendants in the
action that was instituted in August 2000, and in which action the
present respondent is the plaintiff). In the applications to amend
that was heard by me on 2 October 2009 and judgment delivered on 28
October 2009 (‘the 28 October 2009 judgment’), I said
then that for the sake of clarity, I would refer to the applicant as
‘the plaintiff’ and the 1st
and 2nd defendants
as ‘the defendants'. I shall refer to the parties in like
manner in the present proceedings: the applicants remain as the
defendants, and the respondent remains as the plaintiff. The
defendants are represented by Mr. Kemack SC, assisted by Mr. Dicks,
and the plaintiff is represented by Mr. Tötemeyer SC, assisted
by Ms Schneider.
[2] In
an answer from the bench as to what the application that was heard by
this Court on 12 October 2009 was, Mr. Kemack answered, ‘My
Lord … it was an interlocutory application.’ Indeed,
for the defendants it is an interlocutory application and my order
interlocutory; hence the bringing of the instant application for
leave to appeal in terms of s. 18 (3) of the High Court Act,
1990 (Act No. 3 of 1990). Mr Tötemeyer
argued the opposite way briefly that the Court made a ruling that the
plaintiff’s application may proceed unopposed. It did not
grant the applications for amendments. Furthermore, counsel argued
that the ruling made by the Court ‘decided no definite
application for relief – it is merely a direction as to the
manner in which the case should proceed, and is thus not an order in
the legal sense, which falls within the meaning of the words
‘judgment or order’ in section 18 of the High Court Act
No. 16 of 1990.
[3] Section
18 provides:igh Court
Act No. 16 of 1990. Section 18 povidesd:
No judgment or order where the
judgment or order sought to be appealed from is an interlocutory
order or an order as to costs only left by law to the discretion of
the court shall be subjected to appeal save with the leave of the
Court which has given the judgment or has made the order, or in the
event of such leave to appeal being refused, leave to appeal granted
by the Supreme Court.
[4] I
do not, with respect,
accept Mr. Tötemeyer’s argument. The argument is, with the
greatest deference, over simplistic to the point of being fallacious.
I did make a ruling in the 28 October 2009 judgment in which I
upheld the plaintiff’s first point in
limine which was
brought to the Court by way of an elaborate answering affidavit and
replied to in equally elaborate replying affidavits and argued
extensively and fully by counsel – senior counsel for that
matter. Having upheld the point in
limine, in the
result, I did make an order in the following terms, apart from costs:
(1) The
defendants’ affidavits in opposition to the plaintiff’s
amendment applications are struck off.
(2) The
plaintiff’s amendment applications are to proceed on unopposed
basis.
Doubtless,
that is not a ruling on some simple matter argued by counsel from the
bar without any papers having been filed before hand.
[5] In
De Beers (Pty) Ltd v
Jacobus Izaaks Case
No. LCA 28/2008 (Unreported), I held that a decision of the erstwhile
district labour court (Windhoek) granting approval for the lodging of
a complaint by the respondent out of time was interlocutory. There I
reasoned as follows:
It
has been said authoritatively in 22 Halsbury
(3 edn): para 506 that an order which does not deal with the final
rights of the parties is termed “interlocutory”; and “it
is an interlocutory order, even though not conclusive of the main
dispute, may be conclusive as to the subordinate matter with which it
deals.” Thus, the fact that an order is conclusive as to the
subordinate or preliminary matter with which it deals does not make
such order conclusive of the main dispute or conclusive of the final
rights of the parties, which a decision in due course is to
determine. (Re
Gardner, Long v Gardner
(1894) 71 LT 412 (CA); Blakey
v Latham
(1889) 43 Ch D 23 (CA); Kronstein
v Korda
[1937] 1 All ER 357 (CA); Guerrera
v Guerrera
[1974] 2 All ER 460 (CA); Salter
Rex & Co. v Ghosh
[1971] 2 QB 597 (CA)) As Lord Esher, MR stated in Standard
Discount Co v La Grange
(1877) 3 CPD 67 (CA) and Salaman
v Warner
[1891] 1 QB 734 (CA), the test was the nature of the application to
the court; and not the nature of the order which the court made.
[6] The
test enunciated by Lord Esher MR in La
Grange supra is in a
way in tune with the test enunciated by Harms AJA in Zweni
v Minister of Law and Order
1993 (1) SA 523 at 532I and approved by Strydom CJ in Andreas
Vaatz and Another v Ruth Klotzsch and Others Case
No. SA 26/2001 (Unreported) at p. 13. There, Strydom CJ stated, ‘…
“not merely the form of the order must be considered but also,
and predominantly, its effect.”’
[7] Thus,
to argue, as Mr. Tötemeyer does, that the order is not an order
in law within the meaning of s. 18 (3) of the High Court is to split
semantic – not legal – hairs without any justification
whatsoever. It follows that on the authority of both De
Beers (Pty) Ltd v Jacobus Izaaks supra and
Andreas Vaatz and others v Ruth Klotzsch and
others supra, that the order I made in the 28
October 2009 judgment is an order, albeit an interlocutory order
within the meaning of s. 18 (3) of the High Court Act, is put beyond
doubt.
[8] In
his submission, Mr. Kemack referred me to some principles enunciated
in some South African cases on the point under consideration. I am
looking particularly at the principle that the approach nowadays ‘has
been directed more to doing what is appropriate in the particular
circumstances, than to elevating the distinction between orders that
are appealable an those that are not.’ (National
Director of Public Prosecution v King
(Unreported); and Zweni
supra) From what I have said previously, this principle cannot take
the defendants case any further than it is. In Andreas
Vaatz and another v Ruth Klotzsch
supra Strydom CJ accepted counsel’s argument that in Namibia
under s. 18 (3) of the High Court Act all interlocutory orders are
appealable provided leave to appeal is obtained, while in South
Africa the position seems to be that simple or pure interlocutory
orders are not appealable and where relevant this difference must be
kept in mind when dealing with authority on the point. This high
judicial instruction is significant in these proceedings. Thus,
without doing any injustice to Mr. Kemack’s industry, I must,
however, say that it is not necessary to refer to those authorities.
I have already held that the order I made in the 28 October 2009
judgment is an interlocutory order and so the defendants are entitled
in terms of s. 18 (3) of the High Court Act to apply for leave to
appeal that order.
[9] This
conclusion effectively disposes of Mr. Tötemeyer’s
argument that the said ruling did not in any manner have the effect
of disposing of any portion of the relief claimed in the main
proceedings and so the application for leave to appeal is
ill-conceive and stands to be struck from the roll with costs. With
the greatest deference to Mr. Tötemeyer, counsel’s
submission is not well founded. Yes, indeed, the ruling I gave and
the order I made thereanent do not dispose of any portion of the
action; and that is why, as I have held previously, that order is
interlocutory within the meaning of s. 18 (3) of the High Court Act.
That being the case, this application for leave to appeal in terms of
s. 18 (3) of the High Court Act is indubitably properly before this
Court.
[10] Having so
concluded, what remains to be determined is whether the defendant’s
have made out a case for the grant of the relief sought; namely,
leave to appeal the order of 28 October 2009 (the order). I now
proceed to determine the application for leave to appeal against the
order.
[11] In
Lasarus Tutu Nowaseb
v State 2007 (2) NR
630 at 640H-641A, I distilled the following principles from the
authorities that I had reviewed; that is to say –
… an
application for leave to appeal should not be granted if it appears
to the Judge that there is no reasonable prospect of success. And it
has been said that in the exercise of his or her discretion, the
trial Judge … must disabuse his or her mind of the fact that
he or she has no reasonable doubt as to the guilt of the accused.
The Judge must ask himself or herself whether, on the grounds of
appeal raised by the applicant, there is a reasonable prospect of
success on appeal; in other words, whether there is a reasonable
prospect that the court of appeal may take a different view …
But, it must be remembered, “the mere possibility that another
Court might come to a different conclusion is not sufficient to
justify the grant of leave to appeal.” (S
v Ceaser
1977 (2) SA 348 (A) at 350E)
[12] Further
on in Nowaseb supra
at 642-C, the Court approved as correct statement of law the
following passage in
S v Sikosana 1980
(4) SA 559 (A) at 562H-563A:
If
he (the Judge) decides to refuse the application he must give his
reasons (see s. 316 (6) of Act 51 of 1977). It may be that his
reasons for his refusal will appear from the reasons for convicting
(R
v White
1952 (2) SA 538 (A) at 540) but where he decides to grant the
application his reasons for so doing are less likely to be found in
his judgment.
[13] The
authorities that this Court reviewed and cited with approval in
Nowaseb
supra, as I have said, concern criminal appeals. But I do not see
any good reason why the legal principles enunciated there cannot
apply to civil appeals with necessary modifications required by
context. That is the manner in which I approach the determination of
the present application.
[14] The
first peg on which Mr. Kemack hangs the defendants’ application
is this. It ‘is reflected in the Namibian cases … that
it is not necessary for the deponent to any affidavit to have
authority to act as a witness just as is not necessary for a person
who steps in the witness box.’ With the greatest deference to
Mr. Kemack, I fail to see how this proposition of law can advance the
case of the defendants in these proceedings. First, that has never
been the case of the plaintiff; and, indeed, in his submission, Mr.
Tötemeyer actually says so, and that is why he reminded the
Court of the Court’s own decision on the point in Wlotzkasbaken
Home Owners Association and another v Erongo Regional Council and
others 2007 (2) NR
799. Second, and this is significant, that is also my view as I
expressed it in Wlotzkasbaken
Home Owners Association and another v Erongo Regional Council and
others, supra; and I
referred to it in my judgment in which the order of 28 October 2009
was made. What this amounts to inexorably is that Mr. Kemack sees an
issue that is not in dispute and very unnecessarily proceeds to argue
in resolution of the selfsame issue which does not exist. It does not
exist because it is not an issue that divides the parties. Thus, in
my opinion and with the greatest respect, Mr. Kemack’s effort
in this regard is a purposeless enterprise on any pan of scale and by
any account. That being the case, it is otiose to pay any heed to
the authorities referred to me by Mr. Kemack on this point. Another
equally purposeless burden Mr. Kemack has taken upon himself concerns
what he asks rhetorically, ‘My Lord the question then is, do
you need to put in a new Power of Attorney for every single
opposition to an interlocutory application?’ The 28 October
2009 judgment against which Mr. Kemack seeks leave (on behalf of the
defendants) to appeal does not deal with that question. For reasons
given in the judgment (at para. 15), I did not find it necessary to
deal with the plaintiff’s objection in that regard.
[15] The
point which has relevance and which is purposeful in these
proceedings is that concerning the plaintiff’s objection
challenging the authority of the deponent, Uli Weiler, to oppose the
applications. I gave a fully-reasoned judgment, supported by
authorities, when I upheld the plaintiff’s first point in
limine which deals
with a challenge of Uli Weiler’s authority to oppose the
plaintiff’s applications for amendment.
[16] In
our rule of practice the principle is now entrenched that the
institution of proceedings and the prosecution thereof must be
authorized and where that authority is challenged sufficient proof
acceptable in law must be placed before the Court, for instance, in
terms of Rule 63 of the Rules of Court. What is more, pace
Mr. Kemack, the authorities do not differentiate between ‘substantive
application’ and ‘interlocutory one’. The
authorities say ‘institution of proceedings and prosecution
thereof’; that is, all proceedings (e.g. Wlotzkasbaken
Home Owners Association and another v Erongo Regional Council and
others supra, at
805F-806C, approving Ganes
and another v Telecom Namibia Ltd
supra at 615G-H). In the 28 October 2009 judgment, I made the
factual finding that no such proof credible and acceptable in law had
been placed before me. I do not think any appeal court acting
carefully and judicially will find that that decision is wrong, and
so take a different view thereanent.
[17] As I saw it,
there had been a material breach of important and purposeful
requirements under Rule 63; requirements which I described as
‘efficacious and protective’. In that regard, I added
that given the nature of the circumstances of the case, which I
described in the judgment I said then, ‘I would be throwing
away caution to the wind; caution, that typifies the object of Rule
63 of the Rules of Court, and, more important, that would not be in
the interest of justice or of the parties, particularly of the
plaintiff …’ (para. 14 of the 28 October 2009 judgment).
[18] As
to costs; I exercised my discretion as explained in para. 16 of the
28 October 2009 judgment, when I awarded costs in line with the
well-established rule that unless special circumstances existed costs
should follow the event. What is more, both Mr. Tötemeyer and
Mr. Kemack were one in their invitation to me then that ‘I
should determine costs here and now as respects the hearing of the
plaintiff’s points in
limine.’ That
is what I did. I upheld the plaintiff’s first point in
limine; and that
disposed of the applications, and costs followed as a matter of
course, as aforesaid.
[19] I
have demonstrated in the aforegoing that I have given considerable
thought objectively to the application for leave to appeal. And
disabusing my mind, as far as is humanly possible, of the fact that I
had found for the plaintiff in respect of the plaintiff’s first
point in limine
which disposed of the interlocutory applications brought by the
plaintiff and which resulted in the order I made, I am not at all
satisfied that there are reasonable prospects that the Supreme Court
may take a different view. It follows that in my judgement the
defendants have failed to show that there are reasonable prospects of
success on appeal.
[20] In
the result, the application for leave to appeal is dismissed with
costs; such costs to be paid by the defendants jointly and severally,
the one paying the other to be absolved; and such costs to include
costs occasioned by the employment of one instructed counsel.
______________________
PARKER
J
COUNSEL ON
BEHALF OF THE PLAINTIFF/RESPONDENT:
Adv. R. Tötemeyer
SC
Adv. Schneider
Instructed
by: LorentzAngula Inc.
COUNSEL ON
BEHALF OF
THE
1ST
AND 2ND
DEFENDANTS/APPLICANTS:
Adv. Kemack SC
Adv. G Dicks
Instructed
by: Engling, Stritter & Partners
Council of the Municipality of the City of Windhoek v DB Thermal (Pty) Ltd and Another (I 2400/2007) [2010] NAHC 70 (13 August 2010);