CASE NO.: A 332/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
WILLY
GOSEB
…...................................................................................1st
APPLICANT
HEWAT
BEUKES
…..............................................................................2nd
APPLICANT
ERICA
BEUKES
…...............................................................................3RD
APPLICANT
WILLY
SWARTZ
…................................................................................4th
APPLICANT
FREDERICK
WILLY SCHROEDER
…...................................................5th
APPLICANT
APOLLUS
HOCHOBEB
….....................................................................6th
APPLICANT
TERENCE
NOBLE
….............................................................................7th
APPLICANT
JACOBUS
JOSOB
….............................................................................8th
APPLICANT
REGINA
JOHANNA BARKER
…..........................................................9TH
APPLICANT
WILHELMINA
SWARTZ
….................................................................10th
APPLICANT
HEINZ
THIRO
…..................................................................................11THAPPLICANT
GENOVIVA
GOSEB
….......................................................................12th
APPLICANT
LISA
RHODE
….................................................................................13th
APPLICANT
JOSEF
KAROOLS
….........................................................................14th
APPLICANT
MITCHELL
VAN WYK
…....................................................................15th
APPLICANT
LEILANI
VAN WYK
…........................................................................16th
APPLICANT
ILONA
YA NANGOLOH
….................................................................17th
APPLICANT
and
MINISTER OF REGIONAL AND
LOCAL GOVERNMENT
AND
HOUSING
…............................................................................1ST
RESPONDENT
BANK
OF NAMIBIA
…......................................................................2nd
RESPONDENT
NAMIBIA FINANCIAL
INSTITUTIONS
SUPERVISORY
AUTHORITY …......................................................3rd
RESPONDENT
NATIONAL
HOUSING ENTERPRISE ….........................................4TH
RESPONDENT
THE
REGISTRAR OF DEEDS
…....................................................5TH
RESPONDENT
FIRST
NATIONAL BANK OF NAMIBIA LTD …...............................6TH
RESPONDENT
STANDARD
BANK OF NAMIBIA
…................................................7TH
RESPONDENT
BANK
WINDHOEK
…........................................................................8th
RESPONDENT
FISHER,
QUARMBY & PFEIFFER
…...............................................9th
RESPONDENT
MUNICIPAL
COUNCIL FOR THE MUNICIPALITY
OF
WINDHOEK
…...........................................................................10th
RESPONDENT
MINISTER
OF JUSTICE
…..................................................................11th
RESPONDENT
NEDBANK
NAMIBIA LIMITED
…....................................................12th
RESPONDENT
THE
REGISTRAR OF THE HIGH COURT ….................................13th
RESPONDENT
THE
SHERIFF OF THE HIGH COURT
….......................................14thRESPONDENT
THE
DEPUTY SHERIFF FOR WINDHOEK
…................................15th
RESPONDENT
THE
DEPUTY SHERIFF FOR WALVIS BAY …..............................16th
RESPONDENT
CORAM:
VAN NIEKERK J, SWANEPOEL, J et
SHIVUTE,
J
Heard on: 29 November
2010 Delivered: 24 February 2011
JUDGMENT
SWANEPOEL,
J: [1]
Since 19 September 2008 conflicting decisions subsist on the
question whether or not it is a pre-requisite to make a request or
give a notice in terms of Rule 30(5) before an application in terms
of Rule 30(1) of the High Court Rules is launched as to an alleged
irregular step or proceeding. On the one hand there are the
decisions requiring a notice namely Standard
Bank of Namibia Limited v Nationwide Detectives and Professional
Practitioners cc, (case
no.I 811/2007, an unreported judgment delivered on 11 July 2008) and
Hendrik
Christian t/a Hope Financial Services and Hewat Samuel Jacobus
Beukes v Namibia Financial Institutions Supervisory Authority (case
no. A 273/2009, an unreported judgment delivered on 07 October
2009). In the latter judgment the interpretation and application of
rule 30 as found in Arlene
Beukes v Erica Beukes and Another Case
No A 22/2009 (Unreported) were reiterated and followed. On the other
hand there is the judgment of Ondjava
Construction CC & Others v HAW Retailers t /a Ark Trading 2008
(1) NR 45 (HC) delivered on 19 September 2008 wherein it was decided
that no notice is required prior to a rule 30(1) application.
[2] In proceedings in
this matter before Hoff, J on 20 April 2009 the presiding judge
inter alia said the
following:
"Also in the
light of legal certainty I think it is imperative at this stage
that
a full bench of this Court decides this matter once and for
all. I have
discussed it with the Judge President as well as with
the Registrar of this
Court "
[3] The matter was then
referred to the Full Court as provided for in section 10(1) of the
High Court Act, Act No. 16 of 1990 ("the High Court Act").
[4] The applicants are
not represented by any legal practitioner and all appear in
person
save for the 4th,
5th,
7th,
12th,
13th,
16th
and
17th
applicants
who were not
present
in Court when the case was called. The 13th
applicant
joined after the tea adjournment as well as Terence Noble, the 7th
applicant.
[5] None of the
applicants filed any Heads of Argument as required by the practice
of this Court, but instead filed a "STATEMENT BY APPLICANTS ON
RULE 30 APPLICATION(S) BEFORE FULL COURT ON 29 NOVEMBER 2010 at
14h55 ON 24
November
2010 (hereinafter the statement). It was co-signed by the 1st,
2nd,
3rd,
5th,
8th,
9th,
11th,
13th,
14th,
15th,
and 16th
applicants.
[6]
Mr Totemeyer SC together with Mr Denk appear on behalf of the 6th
and
9th
respondents
instructed by legal practitioners Fisher, Quarmby and Pfeiffer as
well as for 7th
and
10th
respondents
instructed by legal practitioners Etzold-Duvenhage.
[7]
No objection was taken against the aforesaid Statement by the
applicants and Mr Beukes, the 2nd
applicant,
delivered same on behalf of all the applicants with certain
amplifications.
[8]
The Court order preceding the constitution of this Court reads as
follows: "IT
IS ORDERED
1.
That
the matter is postponed to the full bench for a date to be
arranged
with the Registrar and in respect of one issue only, to
wit:
Whether it is a
prerequisite for an applicant to give notice in terms of Rule 30(5)
before bringing a Rule 30(1) application?
All those parties
who have an interest in the outcome of the matter, when it is
argued before the full bench, may join in the proceedings in
accordance with the Rules of Court.
No order as to
costs."
[9] Despite my finding
that the Statement is not strictly relevant to the issue presently
before court, it was decided to hear arguments thereon and I will
briefly touch on some of the issues raised therein:
"1. There is no
Rule 30 application before the Court. There is no respondent legally
before the Court."
The applicants inter
alia made the statement that:
"1.1
Two Rule 30 applications were set down by 6th
and
9th
Respondents
and
7th
and
10th
Respondents
respectively for 13th
November
2009. 1.2 On 13 November 7th
and
10th
respondents
failed to appear and counsel for 6th
and
9th
respondents
misinformed the Court that he was appearing for 7th
and
10th
respondents."
This Statement was
probably based on the wording of the Court Order of the
proceedings
before Silungwe, AJ issued by the Registrar on 13th
November
2009
which
indicated that Mr Denk appeared only on behalf of the 7th
and
10th
respondents.
However, in his
introductory submission Mr Totemeyer handed up a certified copy of
the proceedings of that
day where the following inter alia appears:
"Mr
Denk:
The applicants are before your Lordship, I appear for 7, 10,
6
and 9 respondents my Lord. Court:
7, 10, 6 and 9?
Mr
Denk:
It is two different instructing counsels. Court:
That you are representing those? Mr
Denk:
Yes.
Court:
So you are representing 6, 7, 9 and 10. Mr
Denk:
Yes my Lord."
The
aforesaid prompted the 2nd
applicant
to exclaim that same was a fabrication and that fraud had been
committed. In the same breath he asked the Court: "May
we be excused?"
The
request was granted and the 2nd
applicant
left the Court together with all the other applicants. Needless to
say that Mr Totemeyer recorded his objections to the serious
allegations made. I consequently find in any event that there is no
merit based on the aforesaid statement that the 6th,
9th,
7th
and
10th
respondents
were not before the Court.
[10] Before the record
of the proceedings was handed up by Mr Totemeyer, Mr
Beukes amplified the
Statement and submitted as a further objection that by virtue of
the provisions of Act 10
of 2001, the full Court had been "replaced" with the
Supreme
Court and for that
reason this Court has no jurisdiction to hear this matter. This
submission is based on
an incorrect reading and interpretation of section 3(a) of Act
10 of 2001 which
substituted section 2 of the High Court Act, as same only pertains
to
appeals as follows:
"(2) An appeal
from any judgment or order of the High Court in civil proceedings
shall be -
(a)
in
the case of that court sitting as a court of first instance,
whether
the full court or otherwise, to the Supreme Court,
as of right,
and no leave shall be required;
(b) "
As
such the present application has nothing to do with an appeal
referred to in the said section 2 of the High Court Act. In any
event, section 10(1)(b) of the High Court Act provides that a
"single
judge may at any time discontinue the hearing of any matter being
heard before him or her and refer it for hearing to the full court."
[11] The aforesaid
finding (in paragraph [9] above) on whether all four respondents are
before Court, also takes care of the next 3 statements, to wit:
"2.
The full Court acted outside its jurisdiction to expel 14 applicants
for no express reasons and to embrace all four respondents, who had
no application on the roll, had failed to place it on the roll with
an application for condonation as required by the rules of Court. It
acted outside its jurisdiction to postpone a non-matter. (I
interpose here to mention that a reading of the Court record in no
way supports the statement that 14 applicants were expelled by the
Court.)
The re-enrolment
of the matter by the Court mero motu falls rankly outside the
jurisdiction of the Court. Nothing in law bestows the power on or
remotely suggests that the Court itself may initiate or bring
applications on behalf of the party to a dispute.
The Full Court
acted outside its Constitutional genesis by extending the Bench to
include the respondents."
[12] The last issue in
the Statement calling for comment is paragraph 5 which reads as
follows:
"The judgment
postponing this matter and inviting all and sundry with an interest
in the outcome of the matter falls outside the spirit and the letter
of the Constitution and the Law. The order is ultra vires the
Court's competence."
[13] Paragraph 2 of the
order of Court dated 27 April 2010 referred to in paragraph 8
supra was included as a
consequence of Mr Beukes's address to the Court on that
day
wherein he said the following:
"My Lords and My
Lords and Lady, a further question of concern is that the number of
Rule 30s, even in the ranks of the Applicants, are pending and that
these people have legal interest in having to be joined in that
Application. Surely it is surprising, it is just surprising that
this rush to have a Rule 30 Application which obviously need a lot
of ventilation and a lot of thought, especially because it is
referred to the full bench, it is surprising to us that people who
have interest in this matter, that these people are left out in this
Rule 30. Surely, those people who are already enrolled and whose
matters have been set down, under circumstances like that, as far as
I understand the rules, the Court will tend to join this Rule 30s.
Because there is a question of law that must be determined. Now to
me it seems chaotic to have a full argument now and in two months we
have the same argument with a different set of Applicants and two
months after that, I know that there are Rule 30s set down right up
to September this year. Now, I humbly ask whether the Court will not
consider it very chaotic that we are actually descending in the same
sort of scenario or setting the stage for the same sort of scenario
where we may develop different authorities, on the same question.
And where we will have to probably refer the matter somewhere else,
when such authorities might be developed. But this is something, I
ask the Court's indulgence to make such a remark because it is the
Court's decision, it is not mine...."
[14] Furthermore,
bearing in mind the many unrepresented applicants in similar matters
before the High Court, it was only a re-statement of the law that
anyone with an interest may apply in terms of the Rules of Court to
join or be joined. In my view the invitation by the Court falls
squarely in the spirit and letter of the Constitution. In any event,
no person made an application for joinder. Only Mr August Maletsky
sought leave to hand up heads of argument to make some submissions,
which was refused as he is not a party to these proceedings nor has
he formally applied to be joined.
[15] I now turn to the
question this Court has to decide as stated before. Rule 30 of the
High Court and Rule 30 of South Africa before 1996 are identical and
read as follows:
"30(1) A party
to a cause in which an irregular step or proceeding has been taken
by any other party may, within 15 days after becoming aware of the
irregularity, apply to court to set aside the step or proceeding:
Provided that no party who has taken any further step in the cause
with knowledge of the irregularity shall be entitled to make such
application.
Application in terms
of sub-rule (1) shall be on notice to all parties specifying
particulars of the irregularity or impropriety alleged.
If at the hearing of
such application the court is of opinion that the proceeding or
step is irregular or improper, it may set it aside in whole or in
part, either as against all the parties or as against some of them,
and grant leave to amend or make any such order as to it seems meet
Until a party has
complied with any order of court made against him or her in terms
of this rule, he or she shall not take any further step in the
cause, save to apply for an extension of time within which to
comply with such order.
Where a party fails
to comply timeously with a request made or a notice given pursuant
to these rules, the party making the request or giving the notice
may notify the defaulting party that he or she intends, after the
lapse of 10 days to apply for an order that such notice or request
be complied with, or that the claim or defence be struck out, and
failing compliance within the 10 days, application may be made to
court and the court may make such order thereon as to it seems
meet".
The South African rule
30(5) was subsequently deleted and substituted with the following;
"30A (1) Where a
party fails to comply with these rules or with a request made or
notice given pursuant thereto, any other party may notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such rule, notice, or request be complied
with or that the claim or defence be struck out.
(2) Failing
compliance within 10 days, application may on notice be made to the
court and the court may make such order thereon as to it seems
meet."
[16]
Hoff J has in the Ondjava-case (supra)
in
a, with respect, well reasoned judgment inter alia analysed and
discussed the provisions of rule 30 in detail with inter alia
references to South African cases Khunou
and Others v M Fihrer & Son (Pty) Ltd and Others 1982(3)
SA 353 W; Absa
Bank Ltd v The Farm Klippan 490 CC 2000(2)
SA
211 (W) and Norman
& Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd 1968(1)
SA 503 T. Aware thereof
that same were not binding on the Namibian High Court, he
found the reasoning
thereof convincing and adopted same as also being applicable to
our
rule 30. He also found that the Standard
Bank v Nationwide Detectives case
(supra) was wrongly
decided because of a misplaced reliance on non-applicable case
law
and an obvious oversight of existing governing case law (Hansella
and
Absa
Bank
cases
infra).
I
content myself with some of the extracts of the Ondjava
case:
"[22] Prior to
December 1996 the South African rule 30(5) was worded exactly the
same as our rule 30(5) and thus South African case law on the
application and interpretation of rule 30(5), although not binding,
may be persuasive authority.