REPORTABLE

CASE NO: SA 18/2019

IN THE SUPREME COURT OF NAMIBIA

In the matter between:

Coram:          SMUTS JA, HOFF JA and FRANK AJA

Heard:           24 June 2020

Delivered:     1 July 2020

APPEAL JUDGMENT

FRANK AJA (SMUTS JA and HOFF JA concurring):

Introduction

[1]        The appellants approached the court a quo on 20 December 2018 on an urgent and ex parte basis for a mandament van spolie to compel the respondent to restore the use of a road to them which they used to gain access to their places of residence and which allegedly fell within the jurisdiction of the tenth appellant.

[2]        The court a quo granted a rule nisi coupled with an interim interdict with immediate effect ordering the respondent to restore the appellants’ access to the road in question and calling on the respondent to show cause on 23 January 2019 why the order should not be made final.

[3]        On 23 January 2019, the return day was extended to 12 February 2019 and on the latter day it was further extended to 2 April 2019 with directions as to the filing of further papers and heads of argument prior to 2 April 2019. The matter was argued on 2 April 2019 and the rule was extended to 17 April 2019 for the delivery of judgment.

[4]        On 17 April 2019, the judgment a quo was delivered in which the rule nisi issued on 20 December 2018 was discharged and the application dismissed with costs.

[5]        The appeal lies against this order. As the appellants were the applicants in the court a quo, I shall refer to them as the applicants when referring to the proceedings a quo.

Judgment a quo

[6]        The rule nisi was discharged for two reasons, namely that the matter was not urgent as the urgency was self-created and that the applicants did not establish that they were in peaceful and undisturbed possession of the road in question.

[7]        The judge a quo was aware of the fact that his ruling on urgency was sufficient to have the rule discharged. After articulating his reasons for finding that the matter was not urgent he stated ‘on this ground alone, in my judgment the rule nisi should be discharged’. The judge a quo then immediately in the next paragraph stated: ‘Apart from this ground (lack of urgency) there is also this ground – and this is critical’ and then continues with his reasoning to conclude that the applicants did not establish that they were in peaceful and undisturbed possession of the road when the alleged spoliation took place.

[8]        In essence, the judgment boils down to ‘the applicants have not established that the matter is urgent but the application in any event lacks merits’. This is unfortunate as it lumps a procedural issue and a substantive issue together either of which would be fatal to the application. The problem that arises is that if the matter was disposed of by way of the procedural issue only, it would not have disposed of the merits of the case and the applicants would have been entitled to launch the application afresh if so advised. On the contrary, if the matter was disposed on the merits, the applicants would be saddled with a final judgment which can only be altered on appeal or it will become res judicata.

[9]        The court a quo expressly provides two reasons for its ultimate order, one procedural and the other substantive. As the clearing of the procedural hurdle was a prerequisite for the matter to be dealt with on the merits, it seems to me if this decision is upheld, there is no need to deal with the decision on the merits as then the ratio on the merits is superfluous to the procedural point under consideration and hence can be regarded as an obiter dictum.[1] The appellants can then, if so advised, institute an application afresh to have the possession of the road restored to them as the ratio of the court a quo being obiter dictum and not ratio decidendi in respect of the dismissal of the application will not prevent the applicants from such a course of action.

Ex parte application

[10]      As mentioned above the rule nisi coupled with the interim interdict was obtained ex parte and on an urgent basis. It follows that the applicants had to comply with the following two requirements. First, a case for urgency had to be established.[2] Second, applicants had to act in good faith and make a full and proper disclosure to the court or face the prospect of their ex parte order being discharged on the basis of non-disclosure if they failed to do so.[3] To in essence, mislead the court as to either the urgency or to obtain an order ex parte by way of non-disclosure of relevant facts amounts to an abuse of the process which a court will and should not countenance.[4]

[11]      The applicants aver that they are resident on a certain government farm and have been so resident since 2002 and for them to gain access to the nearest public road with links to Rehoboth and Windhoek, they had to use a private road that crosses an adjacent farm belonging to the respondent. For sake of convenience, I shall refer to the farm occupied by applicants as farm 202 and the one belonging to the respondent as farm 909.

[12]      According to the applicants, there has been an ongoing dispute between the parties over the exact location of the border between the two mentioned farms. According to them, this led to their access to the private road being blocked by the respondent who put a padlock on the gate giving access from farm 202 to farm 909 and the road leading through farm 909 up to a point where one could move on to the public road. The correspondence between the parties’ legal practitioners dating back to 7 June 2018 is referred to in connection with this alleged dispute. The responses by the respondent’s legal practitioner to approaches from the legal practitioner of the applicants that this dispute be amicably resolved was that there is no dispute as to the position of the boundary between it and government and that there hence is nothing to resolve.

[13]      In short, the applicants state that their access to the road was blocked in May 2018. Thereafter there was an attempt to resolve the issue of the border between the farms. This came to nought and in August 2018, the applicants created an alternative route to the public road that according to them did not encroach on farm 909. However, the respondent did not agree and once again locked the gate sometime in August 2018. On advice of their legal practitioner, the applicants broke the padlock(s) to regain access to the road in what they submit was an act of counter spoliation. The respondent again locked the gate and threatened applicants with violence should they continue to use the road.

[14]      During October 2018, the parties met and an agreement was reached that allowed the applicants access across farm 909 to the public road. This access however came to an end on 5 November 2018 when the respondent once again locked the gate from farm 202 to farm 909 and threatened applicants with violence should they continue to use the road. It is this event that led to the urgent spoliation application.

[15]      The deponent to the founding affidavit states that on ‘14 November 2018 I managed to pass through the respondent’s farm’ to consult with the applicants’ legal practitioner. Thereafter the parties’ legal practitioners corresponded with one another but the respondent’s position was that the applicants were in breach of the agreement reached during October 2018 and this justified the action to close the access through farm 909. The respondent’s position is stated as follows:

‘With regard to the enjoyment of the right of way; our client have granted to your clients this concession subject to clear obligations on the part of your clients. Your clients have abused this concession granted to them and as such that concession is no longer applicable.’

[16]      The grounds for urgency are that some of the applicants were by reason of their ages in need of regular medical attention as they suffered from hypertension and arthritis. One applicant is stated to be ‘very sickly and needs urgent medical attention’ and that the use of the road was critical to him from a medical perspective. Indeed it is stated that the delays in getting medical attention may lead to ‘fatal consequences’. The further grounds related to their need to collect pension payments, access the markets which according to applicants are vital to subsistence farmers like them. Apparently even their right to claim drought relief was affected by the closure of the road.

[17]      The court a quo was satisfied on the founding papers of the applicants which was supported by the affidavit of one of them and who alleged the others had no access from their places of residence to finalise the affidavits, that the matter be dealt with on an urgent ex parte basis and issued the rule nisi coupled with mandatory interim interdict compelling the respondent to grant the applicants access to the road in question pending the return date of the rule nisi.

Answering affidavit

[18]      The respondent in its answering affidavit raises five issues. One deals with the merits of the alleged dispute concerning the boundary of the two farms involved which is of no moment as far as the spoliation application is concerned as the only issue is whether the applicants were unlawfully deprived of their undisturbed and peaceful possession irrespective of the right to such possession.[5] The other four issues fall in two categories, namely that the matter was not urgent and that the applicants did not make the full disclosure required from them when seeking ex parte relief.

[19]      The court a quo in its judgment does not make a clear distinction between the two considerations but clearly expresses the view that the history of the dispute between the parties was not sufficiently dealt with in the ex parte application because it is from this history that it is apparent that the applicants created the urgency themselves by not taking steps at an earlier stage to protect their access to the road in question.

[20]      The applicants in the founding affidavit sketched a picture of poor persons with chronic medical conditions who were being prevented by the locking of the gate from obtaining medicine or treatment for their conditions as well as their pensions, to purchase essential goods and food as a result. The difficulty for them to claim drought aid is also thrown in to sketch a picture of the applicants being deprived of their livelihood (and potentially their lives) as a result of the blocking of their access to the road in question.

[21]      This dire picture as to the applicants’ position must have played a role in the court a quo agreeing to issue an order ex parte. It is stating the obvious that ex parte orders are the exception to the rule and ex parte interdicts should only be granted in the most exceptional circumstances. The order did not inform the respondent that it was entitled to anticipate the return day on 24 hours’ notice. This is provided for in the Rules of the High Court[6] but it is important that this rule must be brought to the attention of any respondent in an ex parte application so that such respondent is aware of the fact that the court will revisit the matter long before the return day if the respondent is unduly prejudiced by the granting of such ex parte order.

[22]      As pointed out above, the pleadings in the matter were eventually finalised on the basis of dates determined by the court. There is no suggestion that the respondent was in any way prejudiced by these dates in the presentation of its opposition to the application. The question thus arises on what basis the respondent could have raised the issue of urgency? The usual prejudice a respondent faces in an urgent application is that the time limits imposed on such respondent by the applicant are such that the respondent is unable to properly consult and respond to the application within such truncated time periods. Where a respondent agrees to a timetable for the finalising of the pleadings in an urgent application, this prejudice falls by the wayside and so does the issue of urgency.

[23]      Thus, with one exception which I deal with below, where a respondent agrees to a timetable for the filing of pleadings, the point of urgency on the basis that such respondent is prejudiced by the truncated time limits set by the applicant is implicitly abandoned. Where a respondent agrees to a timetable for the exchange of pleadings in response to an urgent application but also reserves the right to still raise urgency as a point in limine, the urgency that can be raised must relate to something other than the lack of time to properly respond to the urgent application.

[24]      Where the court determines the dates for the further exchange of pleadings, the point of prejudice caused by the timelines also falls away as the court would have determined such timelines only after hearing the respondent who would have made submissions on the aspect of the prejudice caused as a result of the timelines suggested by an applicant or applicants.

[25]      Thus, if a respondent in an urgent application’s sole prejudice is the timelines indicated by the applicant, he must take the point of urgency on this basis. The court can then determine the issue, taking into account the normal criteria and decide whether the timelines for the finalisation of the pleadings should be altered to cater for the respondent’s concerns or not. The respondent cannot thereafter take the point that the matter is not urgent because the original timelines stipulated by the applicant were prejudicial to such respondent.[7]

[26]      The exception to this situation is where the respondent attacks the factual basis of the alleged urgency. In such case, the respondent must put up facts to show the urgency was contrived, self-created or amounts to an abuse of the process.

[27]      Where an application is brought ex parte, the respondent is basically in the same position. Once he has answered to the application, the prejudice caused because the court did not have his version is cured. Yet, to avoid the abuse of ex parte applications, the respondent is entitled to point out that such applicant has not made proper and full disclosure so as to obtain the order and if such disclosure had been made, it is likely that an ex parte order would not have been granted. In such a case, the court will be entitled to dismiss the application without dealing with the merits as it, in essence, amounted to an abuse of the ex parte process.[8]

[28]      For the reasons set out above, it is not necessary to refer to the answering affidavit of the respondent save to state that it gives a detailed response to the allegations of applicants a lot of which is not germane to the issue of spoliation and points out that there is another road from farm 202 to a public road and hence that the only access to a public road was not via the road over farm 909 as alleged. The lack of this alternative road is not put in dispute in any meaningful manner and undermines the earlier ratio for urgency and the grounds for obtaining an ex parte order.

[29]      The court a quo was thus entitled to, at the hearing of the matter, on the return day of the rule nisi revisit the question of urgency and the question as to whether the ex parte application was brought in good faith. Whereas the two mentioned issues were not clearly delineated, it is evident that the court a quo formed the view after being supplied with the full factual background that the urgency which also underpinned the basis for an ex parte order was contrived, ie self-created.

[30]      As the court a quo was in the circumstances of this case entitled to reject the application and discharge the rule on the basis of the contrived urgency, it is the end of the matter as the decision regarding the ruling on urgency is not appealable.[9]

Urgency an issue on appeal?

[31]      The decision to discharge the rule and dismiss the application is not a final one as the matter can always be revisited in the normal course. In fact it is not even a judgment or order. It is a ruling and thus not appealable. The only criticism of the order is that it should have discharged the rule and struck the application from the roll instead of dismissing it. This however is a question of semantics as it is clear from the ruling that the merits were not considered in this context.[10]

[32]      The legal practitioner for the respondent in his heads of argument submits that this court is precluded from dealing with the aspect of urgency as the court a quo despite ruling that the application be dismissed because the urgency was self-created, also expressed itself on the merits. For this submission, reliance is placed on the case of New Era Investment (Pty) Ltd v Ferusa Capital Financing Partners CC & others.[11] In that case, submissions were made on behalf of the appellant that a ‘material misdirection on the part of the High Court in respect of urgency’ occurred.[12] The misdirection appears to have been the statement by the judge a quo in his reasoning that, as he determined the merits against the applicant it was not ‘necessary to decide on urgency’.[13]

[33]      In support of his submission in this regard the legal practitioner for the respondent refers to the following passage that appears in the New Era Investment case at para 31:

‘Quite why the point of urgency was raised by the appellant on appeal is not apparent as the application was determined on the merits. Even though the court stated that is was not necessary to decide the question of urgency, it did so in effect by correctly expressing the view that spoliation applications are “by their very nature urgent” and had proceeded to deal with the merits of the application.’ (sic)

[34]      The distinction between the New Era Investment case and the one under discussion is self-evident. Firstly, in the New Era Investment case, the judge did not deal with the urgency issue separately and upfront – he even suggested that he had not dealt with it at all. In the present matter, the judge a quo dealt with it expressly upfront and ruled against the applicants on this score and gave the resultant order before moving on to the merits. Secondly, as is evident from the New Era Investment’s judgment, the judge a quo did consider the fact that spoliation applications are in their nature urgent and it was implicit from the fact that the merits were dealt with that the matter was accepted as being urgent. In the present matter, there is no need to seek an implicit finding as the judge a quo expressly dealt with the issue of urgency.

[35]      From what is stated above with regard to the issue of urgency it follows that:

35.1    The court cannot ignore the fact that the court a quo made a finding or ruling in this regard;

35.2    The court a quo’s finding or ruling on urgency is not appealable. Because of this feature in this appeal, it was not necessary to spell out the contents of the answering affidavit of the respondent in any more detail than the cryptic summary above; and

35.3    The court a quo’s unnecessary elaborations on the merits cannot undo the ruling on urgency and were thus superfluous and obiter.

Condonation application

[36]      The record and the power of attorneys in respect of some of the appellants were filed late and the appeal deemed to lapse. A condonation application was filed to have these non-compliances with the rules condoned so as to reinstate the appeal. As the ruling in respect of urgency is not appealable it is not necessary to deal with the condonation application.

Conclusion

[37]      The court a quo’s ruling that the application did not muster the requirements for urgency it was not a judgment or order but a ruling and the order given consequent to this finding is thus not appealable.

[38]      It follows that the appeal is to be struck from the roll.

[39]      In the result the following order is made:

The appeal is struck from the roll with costs, inclusive of the costs of one instructing and one instructed legal practitioner.

__________________

FRANK AJA

__________________

SMUTS JA

__________________

HOFF JA

APPEARANCES