Court name
Supreme Court
Case number
SA 6 of 2002

Aussenkehr Farms (Pty) Ltd and Another v Minister of Mines and Energy and Another (SA 6 of 2002) [2003] NASC 8 (05 March 2003);

Media neutral citation
[2003] NASC 8

CASE NO.: SA 06/2002


In the matter between:










CORAM: Strydom,
C.J., O’Linn, A.J.A., et Chomba, A.J.A.

ON: 07/10/2002

DELIVERED ON: 05/03/2003


By Notice of Motion the appellants applied to the Court a
, on an urgent basis, for the following relief, namely:

“1. Condoning the Applicant’s non-compliance with the time limits
and further procedural requirements as set out n the Rules of Court
and hearing this application as one of urgency;

2. Directing First Respondent to, within such period of time as may
be determined by this Honorable Court, bring out his decision on the
application for the renewal of exclusive prospecting license 2101,
made by Second Respondent during the course of 2000, relating to
Block 9 on the ‘Aussenkehr Farm’;

3. Granting to Applicants such further and/or alternative relief as
this Court may deem fit;

4. Ordering the Respondents, jointly and severally, to pay the costs
of this application.”

When the
matter was heard in the Court a quo, the respondents took a
point in limine namely, that the appellants did not show that
the matter was one of urgency. The Court upheld this point and the
application was dismissed with costs, such costs to be paid on an
attorney and client basis. The appellants thereupon filed a Notice
to Appeal directly to this Court. I intend to set out only the
headings under which the various grounds of appeal were divided.
The appellants appealed against:

  1. The
    final judgment on the merits;

  2. The
    unreasonable limitation of appellants’ Counsel’s address to the
    Court a quo;

  3. The
    costs order made in the Court a quo;

  4. Further
    procedural violation of appellants’ right to a fair trial;

  5. Urgency;

  6. Merits;

  7. First
    Respondent’s lacking bona fides; and

  8. The
    costs order in the Court a quo.

Because of certain developments, subsequent to the
launching and hearing of the appeal in the Court a quo,
further points were raised by means of affidavits filed by the legal
practitioner of the appellants. This was not the end of the paper
war. During argument Mr. Chaskalson, on questions by the Court,
explained a certain action by the first respondent. After argument
was completed and after the Court reserved judgment in this matter a
further application was made by the appellants to convert this
statement into new evidence. I will deal with these matters at a
later stage.

Mr. Barnard argued the appeal on behalf of the
appellants and Mr. Chaskalson appeared for the first respondent and
Mr. Rossouw for the second respondent.

There is a history of litigation between the
parties which, to a certain extent, is relevant to the present appeal
and it is therefore necessary to give a short resume thereof. Both
appellants cultivate and export grapes, in joint venture, from the
farm Aussenkehr. The second respondent is a private company, which
is the holder of an Exclusive Prospecting License No 2101 (EPL 2101)
entitling it to engage in exploration activities in an area,
demarcated as Block 9, on the Aussenkehr farm, the property of the
first appellant. This license was granted to second respondent by
first respondent in terms of his powers set out in the Minerals Act
No. 33 of 1992 (the Act). The second respondent became the holder
of the license on 26 April 1998, which was to continue until 25 April
2000. Notwithstanding the fact that the second respondent had
applied timeously for the renewal of the license no decision has been
made by the first respondent in that regard. According to the legal
practitioner of the appellants, Mr. Ndauendapo, who deposed to the
founding affidavit of the appellants, the respondents were of the
view that the issues relating to the renewal of the licence were

The first issue raised by the appellants, in
regard to the urgency of the matter, was the funding and financial
position of the second respondent. According to evidence given by
one P.W. Walker, the former managing director of the second
respondent, it operated on loan capital advanced by its major
shareholder, namely the Trans Hex group of companies. It was
alleged that the second respondent was an empty shell whose
liabilities exceeded its assets by far. From information obtained
it seemed that Trans Hex would no longer finance the activities of
the second respondent. With reference to various provisions of the
Act the appellants pointed out the financial obligations of the
second respondent and they tried to show that it did not have the
financial resources to carry on the prospecting operations and to
make good any damage caused to the environment once the activities
came to an end. The fear was expressed that any damage suffered by
the appellants, due to the activities of the second respondent, would
be impossible to recover. These fears were expressed in a letter
addressed to the first respondent, a copy of which was sent to the
legal practitioners of the second respondent. In reply to this
letter the second respondent’s legal practitioners denied that it
lacked the necessary funding to continue with its activities.

On 20 November 2000 the deponent addressed a
letter to the first respondent in which a demand was made upon him to
come to a decision in regard to the application of the renewal of EPL
2101. First respondent then referred the letter to the Government
Attorney who, in a letter dated 20 November 2000, stated that the
matter of the renewal of the licence was deferred by the first
respondent “because of its clear inter-relation with the issues
pending before the High Court.” Mr. Ndauendapo explained the
reference to “issues pending before the High Court”, contained in
the letter by the Government Attorney. This referred to another
application instituted by the appellants, together with other
applicants, against the respondents, and in which the relief claimed
in that application was summarized as follows, namely an order:

  1. declaring part XV of the minerals Act to be

  2. declaring the exploration activities of
    second respondent as, inter alia, to be an infringement of
    Section 52 of the Minerals Act; and

  3. setting aside the renewal(s) of EPL 2101, as
    having taken place in breach of the audi-rule.

The appellants alleged that the deferral of his
decision by the first respondent on these grounds is without proper
foundation and smacks of an endeavour to assist the second
respondent. Mr. Ndauendapo further stated that both appellants were
seeking prospective business partners but that these were hesitant to
invest with the appellants as long as there was no certainty for how
long the activities, in terms of EPL 2101, would continue to cause a
disruption of the farming activities.

Mr. Ndauendapo further pointed out that in terms
of the Act no transfer of mineral rights could be accomplished
without an application in writing to the first respondent.
Deponent then referred to an affidavit made by Walker, the erstwhile
managing director of the second respondent, to the effect that the
Trans Hex group, the controlling company of the second respondent,
would not be carrying out any further exploration on Aussenkehr and
that this agreement was reached with the consent of the second
respondent. It was then alleged that this statement made it clear
that second respondent did not intend to exercise its rights in terms
of EPL 2101. It was further alleged that neither the first
respondent nor the appellants were informed of the above intentions
of second respondent and it was pointed out that to transfer such
rights in conflict with the provisions of the Act would constitute a
criminal offence. By not deciding the issue in regard to the
renewal of the licence the second respondent and the Trans Hex group
would be entitled, with impunity, so it was alleged, to continue with
their above unlawful activities.

Lastly the deponent explained the delay for
setting down the matter for hearing. Various documents to support
the allegations and contentions, set out in the affidavit of Mr.
Ndauendapo, formed part of the application. Affidavits, confirming
the contents of the founding affidavit, as far as the contents
related to the two applicants, were also filed by one Dusan
Vasiljevic, the managing director of the first appellant, and one
Achilles de Nayer, a director of the second appellant.

An answering affidavit was filed on behalf of the
first respondent by one Romanus Samuyenga, the Mining Commissioner in
the Ministry of the first respondent. Outlining the defences of the
first respondent, the deponent stated that bearing in mind the relief
sought by, inter alia, the two appellants in case no. A132/00,
the first respondent exercised his discretion not to take a final
decision on the application for the renewal of EPL 2101 up to the
time of the application. Secondly the deponent submitted that the
relief sought in the instant case was not urgent and that the
application should be dismissed on that account alone. Mr.
Samuyenga, in regard to the latter point, stated that the High Court,
on 5th May 2000, issued a rule nisi in favour of
the appellants with the result that there was no reasonable
possibility that the ancillary rights in terms of Chapter XV of the
Act, which the second respondent needed in order to do prospecting,
would be granted to the second respondent and he pointed out that
the proceedings before the Mineral Ancillary Rights Commission, which
is empowered to grant these rights, were postponed sine die
pending the outcome of Case No. A132/00. It was further alleged
that the only possible cause supportive of an urgent application was
second respondent’s financial position but that the appellants’
fears in this regard were unfounded. Furthermore Mr. Samuyenga
referred to the fact that the appellants were granted an order
whereby the second respondent was ordered to provide security for
costs in regard to its counter applications. The deponent further
stated that there was a clear inter-relationship between the relief
claimed in Case No. A132/00 and the relief claimed in the present
instance and gave his reasons for saying so.

Further in regard to the possibility that the
second respondent may not be able to pay the costs if the appellants
were successful in their application in terms of Case No. A132/00,
Mr. Samuyenga made the point that the first respondent opposed that
application on the same grounds as the second respondent which would,
in the event that the appellants were successful, result in a joint
costs order also against the first respondent.

In regard to allegations made by the appellants
concerning the financial position of the second respondent as well as
the issue of the alleged transfer of its prospecting rights by second
respondent, in contravention of the provisions of the Act, Mr.
Samuyenga, although he stated that he had no knowledge thereof,
pointed out that these aspects would have to be investigated once the
first respondent decided the issue of the renewal of the licence.

Mr. Aaron Mushimba, a director of the second
respondent, deposed to the answering affidavit of the respondent.
Various issues were raised in regard to the application launched by
the appellants, inter alia the issue of urgency and the
inter-relationship of the present application with the pending Case
No.132/00. Mr. Mushimba stated that he was a director of the
Namibian Company, Namarco, which is a 50% shareholder of the second
respondent. In turn Namarco is supported by Lazare Kaplan
International Inc., a listed USA company, which is able and willing
to make funds available to the second respondent to continue its
litigation and exploration. In regard to the latter issue Mr.
Mushamba stated that the second respondent intended to spend a
further N$ 20 to 30 million on exploration.

One George John Zacharias stated that he was the
company secretary of Trans Hex Group Limited and that it was resolved
by this company that it would make available the necessary funds and
resources to second respondent for purposes of the continuation of
exploration activities up to 75% of funding required until the
viability of the site for purposes of diamond mining has finally been
established. Also that the Group would fund the pending litigation
against the second respondent in the present case as well as in case
No A132/00. A company resolution to that effect was attached to the
affidavit. One James Lewellyn Barnes, a director for Africa at
Lazare Kaplan International Inc. deposed to the fact that the
company, through Namarco, would fund the remaining 25%.

In a replying affidavit Mr. Ndauendapo found it
necessary to again explain the delay occasioned by the setting down
of the matter. If I understood the appellants correctly this was
caused by a concatenation of various factors such as the fact that
the Court was in recess, the closing of the offices of the second
respondent etc. A new issue was raised in the replying affidavit
namely the alleged contempt of court committed by the second
respondent. This flowed from a report in a local newspaper which,
allegedly, published extracts from some of the affidavits filed on
behalf of the second respondent. Mr. Ndauendapo further alleged
that this information was published before the answering affidavit of
the second respondent was filed in the proceedings and he submitted
that such information could only have emanated from the second

The deponent further stated that it was incorrect
to say that the first respondent would be jointly responsible, with
the second respondent, for the costs in case A32/00 if the
respondents were unsuccessful. In regard to the security order Mr.
Ndauendapo said that the amount determined was N$200 000 of which an
amount of N$130 000 was already expended. The deponent again
explained the difficulty or impossibility of finding investors,
because of the uncertainty caused by the activities of the second
respondent on the property of the appellants. Reference was again
made to various other factors pointing to the lack of financial
viability of the second respondent and how this might affect the

Issue was joined with the defences raised by the
first respondent in the affidavit of Mr. Samuyenga and it was denied
that the latter had personal knowledge of all the facts to which he
had deposed.

In regard to the affidavit filed on behalf of the
second respondent the replying affidavit dealt at length with the
allegations, in the answering affidavit of Mr. Mushimba, concerning
the propriety of Mr. Ndauendapo, as attorney of record, to depose to
the main affidavit in the application of the appellants. The
deponent also pointed out that the Transhex Group’s preparedness to
provide funding amounted only to an ‘in principle’ preparedness
and that the undertaking was in any event limited. It was further
stated that the liability of Namarco to make funds available was
phrased so vaguely that it was meaningless.

After the matter was heard and judgment was handed
down in the Court a quo, an application was made by the
appellants to file a further affidavit by Mr. Ndauendapo. These
documents were served shortly before the hearing of the appeal in
this Court, namely on 1st October 2002. The basis for
this application was a reference in the heads of the second
respondent’s Counsel that “EPL 2101 was renewed by the first
respondent shortly prior to its expiry in April 2002.” It
transpired that the first respondent took this decision on 19 April
2002 and it was alleged that no notice thereof was given to the
appellants. In the said affidavit an attack was launched on the
bona fides of the first respondent and it was alleged that the
defence raised to the effect that the present application was
inter-related to the proceedings in Case No. 132/00 and that the
first respondent could, for that reason, not decide the renewal of
EPL 2101, was without substance. The deponent further submitted
that his allegations, concerning this issue, and made in the founding
affidavit, became unassailable and applied that the affidavit be
accepted as new evidence relating to the issues now to be considered
on appeal.

In regard to this application the stance of
Counsel for the first respondent, Mr. Chaskalson was that the new
evidence did not advance the case of the appellants at all and should
therefore be refused. In the event that the evidence was admitted
Counsel indicated that he would ask for an opportunity to deal with
the allegations concerning the bona fides of the first
respondent and to explain the context of the correspondence,
emanating from the office of the first respondent. In the end Mr.
Barnard agreed not to continue with the application on the basis that
the letter dated 11th March 2002 and the decision taken on
19th April 2002 be regarded as common cause facts on which
the parties may rely in presenting their arguments. Mr. Chaskalson
was satisfied to deal with the matter on that basis.

After argument was completed and the Court
reserved judgment, a further application was made to introduce new
evidence. This new application was sparked off as a result of an
explanation given by Mr. Chaskalson during argument and in reply to a
question by a member of the Court. It concerns the first
respondents decision, taken on the 19th April, to renew
the license of the second respondent in contrast to the attitude
taken by him that because of the interrelationship between the
present application and case A132/00 he was entitled to wait until
the disputes in that case were resolved by the Court before deciding
the new application. The explanation, given by Counsel, was to the
effect that on investigating the matter he advised the first
respondent that he was obliged to come to a decision, one way or the
other, in regard to the application to renew second respondent’s
application to avoid a lapse in perpetuity thereof, which would
further have the effect, in practical terms, of rejecting the

All these applications and side issues tend to
obscure the fact that the appeal, which is before us, is not an
appeal on the merits of the application brought before Silungwe, J,
In the Court a quo the first and second respondents took a
point in limine that the application, which was brought as an
urgent application, was in fact not urgent and that there was no
reason why the appellants, setting the matter down in the ordinary
way, would not be afforded redress in due course. The Court a
upheld the point in limine and dismissed appellant’s
application with costs. An appeal was then launched directly to
this Court and because of this background, we requested Counsel to
address us also on whether the appeal was properly set down before
this Court and whether it was not necessary for the appellant to, at
least, first obtain leave to appeal.

Appeals to the Supreme Court are governed by the
provisions of section 18 of the High Court Act, Act 16 of 1990. Of
these sections 18(1) and 18(3) are relevant. These sections provide
as follows:

“18(1) An appeal from a judgment or order of the High Court in any
civil proceedings or against any judgment or order given on appeal
shall, except in so far as this section otherwise provides, be heard
by the Supreme Court.


  1. 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 subject to
    appeal save with 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 being granted by the Supreme Court.”

In the case of Andreas Vaatz and Another v Ruth
Klotzsch and Others,
an unreported judgment of this Court,
delivered on 11/10/2002, this Court, with approval, referred to the
meaning ascribed to the words ‘judgment’ or ‘order’ as set
out by Erasmus in his work Superior Court Practice, pa. A
1-43. With reference to various judgments of the South African
Court of Appeal, the learned author concluded that to be an
appealable judgment or order it had to have the following three
attributes, namely

“(i) the decision must be final in effect and not susceptible to
alteration by the Court of first instance;

  1. it must be definitive of the rights of the parties, i.e. it must
    grant definite and distinct relief; and

  1. it must have the effect of disposing of at least a substantial
    portion of the relief claimed in the main proceedings.”

In Zweni v Minister of Law and Order, 1993
(1) SA 523 (A) at p. 536 A-C it is stated that a ‘ruling’ is the
antithesis of a ‘judgment or order’, it being a decision which is
not final because the court of first instance is able to alter it,
nor is it definitive of the rights of the parties and nor has it the
effect to dispose of at least a substantial portion of the relief
claimed in the main proceedings.

The ruling by a Court that a matter is urgent and
that it should proceed on that basis was found not to be an
appealable ‘judgment or order’. In the case of Lubambo v
Presbyterian Church of Africa,
1994 (3) SA 241 (SECLD), Jansen,
J, came to the conclusion that such a ruling or order is analogous to
an order giving a direction in regard to evidence or referring a
matter to trial and was therefore not appealable, not even with
leave. (p. 243 A-B). The position may be somewhat different where
a Court ruled that a matter was not to proceed because of lack of
urgency in that such finding of the Court may, in a sense, be final
in that the Court would not be able to change it. However the
finding that the matter lacks urgency does not preclude an applicant
to again set the same matter down, in the ordinary way, and according
to the Rules of Court. In the present instance it would not even
require an application for condonation as the application is not
under restraint of time. Although the order by the Court, in the
present instance, may have the first attribute of a final judgment or
order, it lacks the other two attributes. That, in itself, is
sufficient to affect the appealability of the order. In my opinion
the ruling in the present instance concerns the procedure that was
followed and not the substance of the application. See e.g. the case
of Guardian National Insurance Co. Ltd v Searle N.O.,1999 (3)
SA 296 (SCA). :

The Guardian Insurance-case, supra,
concerned a case of loss of support by a minor after her parents were
killed in a motorcar accident. Two actuaries differed in regard to
what factors were to be applied in the calculation of the damages
suffered by the minor. A memorandum, containing the disputes, was
put before the Court and it was asked to decide which approach
should be adopted. The Court delivered a judgment in which it made
the necessary rulings. Thereafter it granted leave to appeal
against its orders. When the matter was argued before the Supreme
Court of Appeal, Counsel were requested to address the Court on the
appealability of the orders. At p. 301F – I the Court expressed
itself as follows:

“Plainly, the rulings here have neither the second nor third of the
required attributes. That is enough to disqualify them as
appealable decisions. I say that because the first attribute –
assuming it were present - cannot on its own confer appealability.
A trial court’s factual findings are unalterable (absent
re-opening) but they are merely steps along the way towards the final
conclusion and consequent order. They certainly do not in
themselves dispose of even a portion of the relief claimed. At best
for the defendant the rulings in this case were merely such findings
or to be equated with such findings. However, the point goes
further. Even if the rulings were unalterable it is distinctly
questionable at this stage whether they will have any final effect.
It is clear that, if in due course the trial proceeds, the various
actuarial calculations will be made and presented to the Judge. On
long-standing authority he will not be bound by any of them.
Rather, it will be for him to consider their impact and assess their
conformity to the general equities of the case before making such
award as in his view is fair to both sides.”

In my opinion it is clear that an order whereby
the Court ruled that an application, which was brought as a matter of
urgency, was not urgent, is not ordinarily an order which is
appealable. At best for the appellant it may be interlocutory in
which case leave to appeal would be necessary.

When this point was argued, both Mr. Barnard and
Mr. Rossouw, for the second respondent, were of the opinion that the
appeal was properly before the Court, albeit for different reasons.
Mr. Chaskalson, on the other hand, submitted the opposite.

Counsel for the appellants submitted that the
judgment by the learned Judge was in effect a final judgment. In
this regard Counsel referred to what was stated by the learned Judge
in regard to the contention of the appellants that there was no
inter-relationship between the present application and case A132/00
and that that could not be a basis for the first respondent to
withhold his decision to decide the application for renewal.
Dealing with the arguments raised by Counsel for the appellants in
regard to the issue of urgency the Judge a quo stated that he
had no hesitation whatsoever to come to the conclusion that the first
respondent was entitled to defer his decision on the above ground.

I agree with Mr. Chaskalson that this part of the
judgment must not be seen in isolation. A reading of the judgment
clearly, in my view, shows that what the Court was deciding in this
instance was not the merits of the case but the issue of urgency.
The Court ruled so at the outset and before argument was even
presented namely that the issue of urgency be dealt with separately
from all other issues. (See p. 458 to 459 of the record.) A
reading of the judgment itself showed that the Court meticulously
dealt with the points raised by Counsel for the appellants as to why
the matter was to be regarded as urgent. The excerpt relied upon by
Mr. Barnard was given in the course of the Courts reasons for finding
that the matter was not urgent. In my opinion what was said by the
Court was not the last word spoken on the matter. Nothing prevented
the appellant from again enrolling the matter in the ordinary way.
Bearing in mind the context in which the statement was made it would,
in subsequent proceedings, bind neither the parties nor the Court.
Dealing with the merits of the application the Judge, even if it is
the same one, will be able to consider the same issue in the light of
the totality of the evidence, also the alleged new evidence, then
presented to the Court. (See the Guardian Insurance – case,
supra, p 301 at F-I) The finding by the Court a quo
is not a finding of fact which is unalterable but a legal conclusion
drawn by the Court which in my opinion does not materially differ
from the situation where a Court dismissed an exception. In
Blaauwbosch Diamonds Ltd v Union Government (Minister of Finance),
1915 AD 599 at 601 the following was stated in regard to the
appealability where an exception was dismissed:

“…a convenient test was to inquire whether the final word in the
suit had been spoken on the point; or, as put in another way, whether
the order made was reparable at the final stage. And regarding this
matter from that standpoint, one would say that an order dismissing
an exception is not the final word in the suit on that point that it
may always be repaired at the final stage. All the Court does is to
refuse to set aside the declaration; the case proceeds; there is
nothing to prevent the same law points being re-argued at the trial;
and though the Court is hardly likely to change its mind there is no
legal obstacle to its doing so upon a consideration of fresh argument
and further authority.”

Mr. Barnard argued the matter of urgency, inter
, on the basis that the deferment of his decision by the
first respondent, because of the inter relationship with case
A132/2000, was without foundation and therefore added to the urgency.
The Court rejected this submission of Mr. Barnard and Counsel can
hardly now blame the Court that it considered this issue in that
context. What is more this Court is then urged by Mr. Barnard to
draw the conclusion that the refusal to hear the application was much
wider than only the issue of urgency and that we should conclude that
that was evidence that the Court a quo indeed made a
definitive finding on the merits. In my opinion there is no basis
for coming to such a conclusion.

Counsel also referred the Court to the case of
Moch v Nedtravel (Pty) Ltd t/a American Express Travel Service,
1996 (3) SA 1 (AD) and further argued that the Court has the
inherent power to regulate its procedure and hear the application
without a prior order for leave to appeal. In regard to the latter
submission the issue was dealt with in the Vaatz-case, supra,
and I do not wish to add anything more. In my opinion the
Moch-case, supra, is distinguishable because of my
finding that the order of the Court does not have a final bearing on
the issues between the parties.

Mr. Rossouw mainly raised two points to
substantiate his submission that the appeal was properly before the
Court. The first is that because of the difference in wording of
the legislation regarding appeals in South Africa and that of
Namibia, it does not follow that the words ‘judgment or order’
should bear the same meaning where it is used in Act 16 of 1990.
Counsel referred the Court also to the case of Administrator,
Cape, and Another v Ntshwaqela and Others,
1990 (1) SA 705 (AD).
Although there are differences between the different sections
regulating appeals in South Africa and Namibia, e.g. the South
African legislation provides for procedures of appeals to and from a
Full Bench, which is not the case in Namibia, the use of the words
‘judgment or order’, in the context of the different Acts, does
not differ. This Court accepted that that was so in the Vaatz-case,

The second point made by Counsel concerns the
order made by the Court a quo in dismissing the application
with costs on an attorney and client scale. I agree with Counsel
that it would have been more correct to strike the matter from the
roll instead of dismissing it. However, in my opinion, the order
itself could not change the character of the proceedings before the
Court. To do so would put form before substance. In the case of
Administrator, Cape, supra, it was pointed out that in
the case of ambiguity the Court, interpreting a judgment, is entitled
to look at the reasons for judgment in order to establish the intent
of the Judge. (P 715 F-H). See also Firestone South Africa (Pty)
Ltd v Gentiruco A.G.,
1977 (4) SA 298 (AD) at 304 D-F and SA
Eagle Versekeringsmaatskappy Bpk v Harford,
1992 (2) SA 786 (AA)
at p 792 C – H.

On the face of it the order granted by the learned
Judge is not ambiguous. However that is not the end of the matter.
It was argued before us that the dismissal was final in that it also
took care of the merits of the application. On the other hand it
was submitted that the order meant only the dismissal of the
application in so far as it lacked urgency. It therefore seems to
me that a dismissal of an application could, in certain
circumstances, have more than one meaning.

In the present instance it is at least common
cause that the Court heard argument and dealt with a point in
to the effect that the matter lacked urgency and could
therefore not be dealt with on the basis of the rules applicable to
urgent matters. What is not common cause is whether the Court,
thereafter, also decided the merits of the case, or part thereof.
In this matter we also had the benefit of reading the argument which
was presented to the Court a quo by all the parties. This
was put before us by the appellants. Although not relevant to the
present proceedings, a reading thereof clearly showed that what the
Court was asked to deal with was the matter of urgency of the
application and only that. In this regard it at least does not
detract anything from the finding namely that all that the learned
Judge was deciding was the issue of urgency. A reading of the
judgment and the initial ruling of the Judge made that clear. I
therefore find that it was never the intention of the Judge a quo
to dismiss the whole application. In my opinion the learned Judge
could also not do so.

A dismissal of an
application on the grounds of lack of urgency cannot close the doors
of the Court to a litigant. A litigant is entitled to bring his
case before the Court and to have it adjudicated by a Judge. If the
arguments, raised by Mr. Barnard and Mr. Rossouw, are taken to their
full consequence, it would mean that, at this preliminary stage of
the proceedings, a Court would be able to effectively close its doors
to a litigant and leave the latter with only a possibility to appeal.
To do so would not only incur unnecessary costs but would in my
opinion, also be in conflict with Article 12(1)(a) of the
Constitution which guarantees to all persons, in the determination of
their civil rights and obligations, the right to a fair and public
hearing before a Court established by law.

I want to make it clear
however that there may be instances where the finding of a Court,
that a matter was not urgent, might have a final or definitive
bearing on a right which an applicant wanted to protect and where
redress at a later stage might not afford such protection. See
Moch’s- case, supra, at p 10 F – G. In such an
instance no leave to appeal would be necessary. However, the
present case is not such an instance and there was no reason why the
appellants could not seek redress in the ordinary way, by setting the
matter down again or, if they wanted to appeal, to comply with the
provisions of Act 16 of 1990. A refusal to hear a matter on the
basis of urgency may, in the Namibian context, be regarded as what
was termed a ‘simple interlocutory order’ for which leave to
appeal would be necessary in terms of section 18(3) of Act 16 of
1990. (See South Cape Corporation (Pty) Ltd v Engineering
Management Services (Pty) Ltd,
1977 (3) SA 534 (AD) at p 549 G –

I have therefore come to the conclusion that the
appeal is not properly before us and that it should be struck from
the roll. This being the case it is not necessary to deal with
other interesting points raised by Counsel on both sides. It also
follows that this Court cannot allow further evidence and the costs
involved in the various applications by the appellants must also be
borne by the appellants.

In the result the appeal is struck from the roll
with costs.



I agree.



I agree