IN THE HIGH COURT OF NAMIBIA
NOT REPORTABLE
HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK
JUDGMENT
Case No: A 170/2012
In
the matter between:
KHOMAS
INVESTMENTS THREE SEVEN CC ...............................1ST
APPLICANT
VILLA
INVESTMENTS THREE SEVEN CC ....................................2ND
APPLICANT
and
MAIVHA
CONSTRUCTION CC
..........................................................RESPONDENT
Neutral
citation: Khomas Investments Three Seven CC v Maivha
Construction CC (A 170/2012) [2012] NAHCMD (30 August 2012)
Coram:
SMUTS, J
Heard
on: 15 August 2012
Delivered
on: 30 August 2012
_______________________________________________________________
ORDER
_______________________________________________________
The
application is struck from the roll, with costs, which include the
costs of one instructed and one instructing counsel.
____________________________________________________________
JUDGMENT
_______________________________________________________________
SMUTS,
J
The
first applicant, a property developer, entered into a construction
contract with the respondent, the building contractor, to develop 22
townhouses on property in Khomasdal owned by the second applicant.
The parties signed a building contract and the construction works
started soon afterwards in September 2011.
Although
it is common cause between the parties that they had entered into
the agreement, the respondent states that it does not set out its
full extent and that the further terms agreed upon between the
parties. Most importantly for purposes of the respondent’s
case is its assertion that it only agreed to construct the
superstructure for the
22 sectional title units and not
completed entities as is contended by the applicants. Disputes
between the parties started soon after the commencement of the
construction work. The project also ran behind schedule. Despite an
addendum to the agreement to extend time limits, the project was not
completed in time. The parties then made accusations concerning the
other as to the cause of the difficulties. On 5 June 2012, the
respondent’s legal practitioners declared a dispute in the
matter. The applicants’ legal practitioners soon afterwards on
15 June 2012 served a notice of cancellation of the building
contract upon the respondent, alleging breaches of that agreement.
The
respondent’s legal practitioners responded to the letter of
cancellation on the same day, 15 June 2012 and asserted that monies
were due to it by the first applicant and further asserted that it
would exercise its builder’s lien over the building works.
The
applicants however contend that the respondent is not validly
exercising a builder’s lien. Their principal argument rests
upon the value of the works done by the respondent in denying that
the first applicant owes any money to the respondent. The applicants
refers to a report by quantity surveyors engaged by them to the
effect that the value of the completed work at that stage was
N$1,035,883.77, constituting less than 35% of the total value of the
building price of just over N$3 million.
The
respondent on the other hand approached a different firm of quantity
surveyors who valued the work performed by the respondent in a sum
in excess of N$4 million.
It
soon became clear that the applicants disputed the respondent’s
entitlement to exercise a builder’s lien and also in the
founding papers disputed the validity of the lien itself.
The
applicants have brought this application as a matter of urgency
seeking to interdict the respondent and its employees from
interfering or obstructing or preventing the applicants’
building operations on the building site.
This
application was dated 2 August 2012 but served on the respondent at
its legal practitioners on the afternoon of the following day. It
was set down for 9 August 2012. Shortly before the set down, the
parties agreed to a short postponement to enable the respondent to
file an answering affidavit which was done on 10 August 2012.
The
applicants’ replying affidavit was however filed late on
13
August 2012 and only made available to the respondent’s
instructed counsel on the date of hearing, 14 August 2012. The
respondent’s counsel requested time to read and consider the
relatively lengthy replying affidavit (in excess of 40 pages with
several annexures). The matter then stood down for argument on 15
August 2012.
Mr
Dicks who represented the respondent argued that the matter had not
been properly brought as one of urgency and that any urgency was
self-created on the part of the applicants and that the application
should be struck from the roll for this reason alone. The respondent
also opposed the application on other grounds and contended that,
given that the relief would be final in nature as it would bring
about the end of the builder’s lien, disputed facts should be
approached in accordance with what has become known as the
Stellenvale-rule
thus on the basis of what is
contained in the respondent’s answering affidavit where the
facts are disputed.
Mr
Corbett on the other hand who appeared for the applicants submitted
that the application was properly brought as one of urgency and that
the delay in bringing the application was fully explained,
particularly in the replying affidavit after this aspect had been
challenged by the respondent.
Mr
Dicks referred to the fact that the respondent had already on 15
June 2012 made known that it asserted its builder’s lien and
that it soon appeared that the applicants took issue with this. Yet,
he pointed out, that the application was only brought more than 6
weeks later and served with very short notice upon the respondent.
He referred to the incident on 17 July 2012 canvassed in the papers
in which the applicants’ legal practitioner had attended at
the site together with his client in a bid to evict the respondent
from the site. On this occasion there was an exchange between the
parties’ legal practitioners telephonically, culminating in
the applicants’ legal practitioner threatening the bringing of
an urgent application the following afternoon. This was confirmed in
writing on the following day by the respondent’s legal
practitioner. A few days later and on 20 July 2012 the applicants’
legal practitioner of record again complained about the respondent’s
occupation of the building site and again threatened to lodge an
urgent application. These developments were referred to in the
founding affidavit. The next development referred to in that
affidavit in the context of urgency was the further statement that
counsel was instructed on 30 July 2012 to prepare papers, after
further documentation was sought, the papers were settled by 2
August 2012 and the application launched on the following day, 3
August 2012.
No
explanation was provided in the founding affidavit for the delay
from the commencement of the exercising of the lien on
15 June
2012 to the date of bringing the application except for the events
stated. More importantly, no explanation is provided for the failure
to bring an application after it was threatened already on
16
July 2012 by the applicants’ legal practitioner who said that
it would be brought overnight. The threat of an urgent application
was reiterated a few days later on 20 July 2012 but no explanation
is given in the founding papers for the delay between 20 July 2012
and
30 July 2012.
In
the respondent’s answering affidavit this aspect was addressed
in some detail with the respondent’s squarely taking issue
with the urgency with which the application was brought. In the
replying affidavit, it is explained that instructed counsel had been
briefed already on 11 July 2012 but had only on 25 July 2012
indicated that he was not available. There was an attempt to brief
other identified instructed counsel following this although no date
was stated as to when the second counsel was approached. But it is
stated that on 27 July 2012 he indicated that he was not available
to assist with the urgent application. It was then stated that the
current counsel was approached on 27 July 2012 and a consultation
arranged for
30 July 2012.
Mr
Dicks submitted that the explanation provided was inadequate and
that it should in any event have been set out in the founding
affidavit.
Whilst
this Court has recognised that there are varying degrees of urgency
including in commercial matters, it has been repeatedly emphasised
that it is incumbent upon applicants to demonstrate with reference
to the facts of the specific matter that they are unable to receive
redress in the normal course and that the facts of their matter
would justify the urgency with which the application has been
brought. It has also been repeatedly stressed that applicants would
need to show that they have not created their own urgency and that
the respondents have been afforded sufficient opportunity to deal
with the matters raised.
It
has also been stressed that a Court could also take into account
logistical difficulties in the bringing of an application, provided
that these are fully and satisfactorily explained.
The
applicants however did not adequately or properly explain their
delay in the founding affidavit. There was no explanation at all for
the period between 20 and 30 July 2012. The fact that this is then
dealt with in the replying affidavit does not in view avail the
applicants. They were required to have set out their explanation in
their founding affidavit so that it could be investigated,
challenged and dealt with fully by the respondent.
The
explanation itself eventually provided in reply is in my view by no
means adequate either. It is in my view entirely unacceptable for an
instructing practitioner to wait for 2 weeks before receiving a
reply from instructed counsel that the latter is not available to
assist in an urgent application. It is incumbent upon an instructing
practitioner to establish from instructed counsel forthwith or
preferably before even forwarding a brief, whether the instructed
counsel in question would be able to assist in a matter. To wait for
a period for some 2 weeks before establishing this is in my view
entirely unreasonable and unacceptable. Whether or not instructed
counsel can assist in the matter is in my view a matter which is to
be established at the outset and can and should be done immediately.
There is no reason why this should take so long. If counsel is not
available then other counsel should likewise be approached
immediately and their availability ascertained immediately. Where
there has been remissness or inaction, a party cannot not proceed on
the basis of urgency as was made clear in the Bergmann
matter.
It
is well settled that this Court has a discretion to condone
non-compliance with its Rules and that an applicant has the onus in
establishing urgency in seeking the indulgence of the Court to hear
the matter as one of urgency.
Having
carefully considered the submissions made by the parties in respect
of urgency I find myself unable to exercise my discretion in favour
of the applicant. I accordingly refuse to condone the non-compliance
with the Rules of this Court on the basis of urgency. It follows
that it is not necessary for me to address and canvass the further
arguments made by the parties.
I
accordingly make the following order:
The
application is struck from the roll, with costs, which include the
costs of one instructed and one instructing counsel.
___________________________
D Smuts
Judge
APPLICANTS AW Corbett
Instructed by BD Basson Incorporated,
Windhoek
RESPONDENT G Dicks
Instructed by AngulaColeman, Windhoek