‘Not
Reportable’

CASE NO.: A 277/2010

IN THE HIGH COURT OF
NAMIBIA

In the matter between:

REGISTRAR OF
CO-OPERATIVES
…..........................................................Applicant

and

AGRA CO-OPERATIVE LTD
….................................................................Respondent

CORAM:
PARKER J

Heard on: 2011 August 31

Delivered on: 2011
September 14

_________________________________________________________________

JUDGMENT

_________________________________________________________________

PARKER
J: [1] In this matter, the applicant has brought an
application on a Notice of Motion, moving the Court to hear the
matter on urgent basis and grant orders in terms contained in prayers
1, 2, 3 and 4 of the Notice of Motion. The respondent has moved to
reject the application.

[2] I proceed to consider
prayer 1 of the relief sought. I did not hear Mr. Maasdorp, counsel
for the respondent, to oppose that relief. In any case, I think the
prayer should be granted otherwise the very purpose of bringing the
application would be rendered nugatory if the matter is heard in the
ordinary course.

[3] It is worth noting
from the outset that the burden of this Court in these proceedings is
to decide whether to stay the operation and execution of the order
that the Court, per Muller J, granted on 29 July 2011 (‘the
29 July 2011 order’) pending the outcome of the applicant’s
application for rescission of that order in terms of Rule 44 (1) (a)
of the Rules of the Court.

[4] To start with; Mr
Chibwana, counsel for the applicant, does not tell the Court under
what section of the High Court Act, 1990 (Act No. 16 of 1990) or the
common law or the rule of the Rules of Court that this Court should
determine the application; that is, the source of power of the Court
to stay the operation and execution of the 29 July 2011 order, which
is valid and , therefore, enforceable, on the basis that there is
filed with the Court an application to rescind that order. Mr
Chibwana’s submission dwelt almost exclusively and entirely –
I must say – on the interpretation and application of rule 44
(1) of the Rules, but that rule concerns ‘Variation and
Rescission of Orders’ and that is not the burden of this Court
in these proceedings, as appears clearly in the relief sought in the
Notice of Motion.

[5] A party, particularly
a party which is represented by counsel, must point out clearly to
the Court in an application of this nature, which seeks on urgent
basis to stay the operation and execution of a valid and enforceable
order of the Court, the rule of law the applicant relies on for the
relief sought to enable the Court to interpret and apply such rule,
and also the power – statutory or common law – which the
Court is being asked to exercise in determining the application in
order for the Court to decide whether, in truth, it has such power
and also to determine the limits of such of its power. In this
regard, it would seem the applicant seeks interim interdict as Mr
Chibwana sets out in his submission the requirements of interim
interdict, and submits that the applicant has a prima facie right in
satisfaction of the ‘prima facie’ right requirement of
the grant of interim interdict. With the greatest deference to Mr
Chibwana, I do not find anything on the papers remotely resembling a
right – prima facie or clear – worthy of protection –
that the applicant has demonstrated exists in his favour. If anything
at all, it is rather the respondent who has a right that needs
protection by this Court, to wit, her right to enforcement of a valid
order of this Court in pursuit of his basic human right under Article
12 (1) of the Namibian Constitution. For this reason alone, the
application stands to be dismissed.

[6]
Be that as it may, I am aware that apart from such grounds as the
noting of appeal, there are miscellaneous grounds for staying
execution (Herbstein &
Van Winsen: The Civil Practice of the High Courts of South Africa,
5 edn: 1089-1090, and the cases there cited). For example, the Court
may order stay of execution where all parties were not before the
Court. But in the instant case, all parties were by their respective
counsel before the Court when the 29 July 2011 order was made.
Additionally, the papers filed of record and placed before Muller J
showed unmistakably that the applicant (respondent then) filed notice
to oppose the application instituted by the respondent (applicant
then) which resulted in the granting of the 29 July 2011 order. But
thereafter the applicant (respondent then), within 14 days of filing
the notice to oppose, failed to deliver his or her answering
affidavit as required by rule 6 (5) (d) (ii) of the Rules, or notice
of his or her intention to raise a question of law only as required
by rule 6 (5) (d) (iii); and a
fortiori, there was nothing
placed before Muller J to explain why rule 6 (5) (d) (ii) or rule 6
(5) (d) (iii) was not complied with. That being the case, in my
opinion, the Court, per
Muller J, was entitled to grant the 29
July 2011 order; he had no good reason not to grant the order. In
view of these circumstances, coupled with what I have said previously
about the entitlement of the respondent to have its Constitutional
right protected by the Court, it would be unjust, unfair and
unjudicial for this Court to grant the relief sough in prayer 2 of
the Notice of Motion, that is, to stay the operation and execution of
the 29 July 2011 order. In this regard, the rearguard action taken by
Mr Chibwana with reference to judicial case management under the
Rules cannot rescue the applicant’s doomed application. After
the fourteen years’ time limit had expired, there was no case
for the Judge to manage. By his failure to act in terms of rule 6 (5)
(d) (ii) or rule 6 (5) (d) (iii) and there being no explanation
therefor filed with the Court, as aforesaid, the applicant had
evinced a clear intention that he could not be bothered and the train
of justice could proceed without him; and the train of justice did
proceed. It is too late in the day for Mr Chibwana to talk about
judicial case management.

[7] In the result, I make
the following order:

1. 
   The applicant’s
   failure to comply with the forms and service and time limits
   prescribed by the Rules of Court, as may be necessary, is condoned,
   and that the matter be heard on urgent basis.

   
   

2. 
   The application to stay
   the operation and execution of the order granted by the Court, per
   Muller J, on 29 July 2011, is dismissed with costs; such costs shall
   include costs occasioned by the employment of one instructing
   counsel and one instructed counsel.

   
   

__________________

PARKER J

COUNSEL ON BEHALF OF
THE APPLICANT:

Mr T Chibwana

Instructed by:
Government Attorney

COUNSEL ON BEHALF OF
THE RESPONDENT:

Adv. R Maasdorp

Instructed by:
Engling, Stritter & Partners