REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 1522/2008
In the matter between:
JIN CASINGS & TYRE
SUPPLIES CC ................................RESPONDENT/PLAINTIFF
and
MR E HAMBABI t/a ALPHA
TYRES ....................................APPLICANT/DEFENDANT
Neutral citation:
Jin Casings & Tyre Supplies CC v Hambabi (I 1522/2008)
[2013] NAHCMD 215 (25 July 2013)
Coram: PARKER AJ
Heard: 4 March
2013; 6 – 8 March 2013; 11 March 2013; 16 April 2013; 3 July
2013
Delivered: 25
July 2013
Flynote: Practice
– Applications and motions – Variation of pre-trial
conference order – Order issued in terms of rule 37(13)(a)
of the rules of court – The parties proposed pre-trial order
upon which the pre-trial conference order was issued is a compromise
through and through and it has the effect of res judicata –
Moreover by signing the proposed order the legal practitioners of the
parties signified their assent to the contents of it.
Flynote: Legal
practitioners – Rights and duties – Authority of legal
practitioner – Relationship of legal practitioner and client
similar to that of principal and agent – Admission made by
counsel in a course or matter on behalf of client binding on the
client.
Summary: Practice
– Applications and motions – Variation of pre-trial
conference order – Order issued in terms of rule 37(13)(a)
of the rules of court – The parties proposed pre-trial order
upon which the pre-trial conference order was issued constitutes a
compromise through and through and has the effect of res judicata
and is binding on the parties – By signing the proposed order
the legal practitioners signified their assent to the contents
thereof upon the principle of caveat subscriptor – The
qualification to the rule, being where the signatory had been misled
either as to the nature of the document or as to its contents, not
applicable in this proceeding – The proposed order is therefore
binding on the parties on the basis that their legal practitioners in
signing the proposed order acted within their ostensible authority.
Summary: Legal
practitioner – Authority of legal practitioner –
Authority of the legal practitioner includes not only the power
expressly conferred on him or her but also such powers as are
necessarily incidental or ancillary to the performance of his or her
mandate – In instant case court finding that the settling of
the parties proposed pre-trial order and submitting same to the
managing judge in compliance with the rules of court are indubitably
necessarily incidental or ancillary to the performance of the mandate
of the legal practitioners – Accordingly, the court concluded
that admissions made by the defendant’s counsel in the proposed
pre-trial order in which the plaintiff has acted on the faith of it
to the plaintiff’s prejudice cannot be withdrawn –
Consequently, the court dismissed the application to vary the order.
ORDER
The interlocutory
application to vary the pre-trial conference order is dismissed with
costs, which include costs of one instructing counsel and one
instructed counsel.
Following immediately
upon delivery of this judgment a status hearing is to be held to
determine the further conduct of the matter.
JUDGMENT
PARKER AJ:
[1] This is about an interlocutory
application brought by the applicant (the defendant in the action
proceeding). The relief sought is primarily the ‘variation of
the pre-trial conference order’ that the court issued in terms
of rule 37(13)(a) of the rules of court on 2 October 2012. The
respondent (the plaintiff in the action proceeding) has moved to
reject the application. I shall refer to the parties as the plaintiff
and defendant in the rest of this judgment.
[2] Mr Denk represents
the defendant, and Ms Schneider the plaintiff. Both counsel did file
heads of argument; and I am grateful for their industry. I have
consulted the cases referred to me by counsel, and I have paid
particular attention to those that, in my opinion, are of real
assistance on the points under consideration.
[3] In the plaintiff’s answering
affidavit, the plaintiff raises a point in limine and it
concerns – according to the plaintiff – the defendant’s
non-compliance with para 26(1) of the practice directions which is
peremptory; and it provides:
‘26.
(1) Except where the Rules of Court otherwise provide, there shall be
not less than five days between the date of service, or delivery of
notice, of an interlocutory application and the date of set down.’
[4] What is the
defendant’s reply to the plaintiff’s averment? It is only
this:
‘At
the time when the application was to be made I was in Angola I was
only able to depose to the affidavit on 11 April 2013.’
And with this nude,
intrepid reason, the defendant prays ‘the Honourable Court’s
indulgence for condonation for not bringing the application for
variation of the Court Order of 2 October 2012 no less than five (5)
days before the date the matter is set down’.
[5] Where there has been
a non-compliance with a practice direction, a formal application to
condone the failure should be filed timeously. (See Johnston v
Indigo Sky Gems (Pty) Ltd 1997 NR 239.) In this regard, it should
be remembered that the so-called condonation that the defendant prays
for in its replying affidavit is an indulgence and for that reason
the litigant should show good cause in order to persuade the court to
grant the indulgence. That in seeking condonation the defendant is
seeking an indulgence of the court is appreciated by the defendant
who is represented by instructing counsel and instructed counsel; but
what the defendant does not see is that to succeed in persuading the
court to grant the indulgence, the defendant must establish good
cause. I say so for the simple reason that the defendant has not
brought a formal application – none at all – for
condonation of its non-compliance with the practice direction where
in a supporting affidavit it would have, as is expected of it, given
an acceptable, adequate and reasonable explanation for the
non-compliance in order to satisfy the court to grant the indulgence.
[6] I accept Ms
Schneider’s submission that on this ground alone the
application falls to be dismissed. Nevertheless, I think, for good
reason, I should proceed to deal with the merits of the case. It is
this. Since the introduction of the system of judicial case
management (JCM) in the rules of court the court has been hard at
work with the view to developing Namibia’s jurisprudence on
JCM. Besides, it will be more useful to consider the remainder of the
points in limine not at the threshold of the proceeding on
account of the fact that, to some extent, the points about whether
the defendant has brought the application under rule 44(1) of the
rules of court or the common law and about the inordinate delay in
bringing the application have relevance on the merits, too. For all
these reasons, I think it would conduce to the development of
Namibia’s jurisprudence on JCM – as I say – to deal
with those preliminary points as such, that is, together with the
merits.
[7] The one pertinent
question that immediately arises is this: When did Mr Denk, the
instructed counsel, realize that what was contained in the parties
joint pre-trial order was not in accordance with the defendant’s
instructions? In this regard, one should not lose sight of the fact
that as instructed counsel Mr Denk did not take instructions directly
from the defendant as he practises without a fidelity fund
certificate in terms of the Legal Practitioners Act 15 of 1995. It
can, therefore, be safely said that the defendant gave instructions
to Mr Denk’s instructing counsel, Mr Philander, who has filed a
confirmatory affidavit to the founding affidavit. I shall return to
the confirmatory affidavit in due course.
[8] It is reasonable,
therefore, to say that what Mr Denk now tells the court at this late
hour in the proceedings might have been in the brief which Mr Denk
qua instructed counsel received from his instructing counsel. I say
‘late hour’ on account of the following significant
factors: Counsel tells the court about the ‘instructions’
(a) after the plaintiff has closed its case, (b) after the
defendant’s examination-in-chief evidence has been adduced and
(c) when what was ongoing was the adducing of the defendant’s
cross-examination-evidence. In this regard, the relevant facts and
circumstances at play in this proceeding are these. The present case
was subjected to JCM processes in terms of rule 37 of the rules of
court. The parties joint case management report indicates that a case
management meeting was convened by the parties on 26 March 2012. At a
status hearing held on 6 July 2012 the managing judge made the
following order:
‘1.
The legal representatives must not later than 6 September 2012 submit
the parties’ joint proposed pre-trial order, and attend a
pre-trial conference in open court at 09h00 on 20 September 2012.
2.
Set down trial date: 1 – 5 October 2012 at 10h00.’
[9] The question that
arises a priori is this: Did Mr Denk the instructed counsel do
that which is expected of any careful instructed counsel, namely, to
read his brief studiously? If he did, when did Mr Denk gain knowledge
that, according to him, what is contained in para 2(a) and (c) of the
parties joint proposed pre-trial order upon which the court issued
the pre-trial conference order does not truly reflect that which the
parties agreed and settled in the parties joint proposed pre-trial
order? Mr Denk does not tell the court. This leads me to the next
level of the enquiry.
[10] A pre-trial
conference was held on 2 October 2012 to consider the parties joint
proposed pre-trial order, and the judge issued a pre-trial conference
order thereafter. It is significant to note that Mr Philander (the
defendant’s instructing counsel) who has deposed to a
confirmatory affidavit to the defendant’s founding affidavit,
as aforesaid, appeared as counsel for the defendant. Thus, pursuant
to rule 37(12) of the rules of court, the parties filed with the
managing judge the aforementioned parties joint proposed
pre-trial order (Italicized for obvious emphasis). The order was
jointly submitted to the managing judge within the meaning of
rule 37(12)(a) of the rules of court. And rule 37(12)(b)
provides:
‘The
plaintiff or applicant must initiate communication with the defendant
or respondent, as the case may be, and must prepare the initial draft
of the order referred to in paragraph (a) of rule 37(12).’
[11] It follows that,
pace Mr Philander; it is not offensive of the rules that the
plaintiff’s legal practitioners prepared the initial draft of
the parties joint proposed pre-trial order and thereafter the
plaintiff’s legal practitioners and the defendant’s legal
practitioners signed the proposed order, signifying their assent to
the contents of the proposed order. The following rudimentary
principle of law applied by the court in the recent case of Standard
Bank Namibia Limited v Alex Mabuku Kamwi (I 2149/2008 [2013]
NAHCMD 63 (7 March 2013) (Unreported) is apropos. There, it was
stated:
‘[20]
It is a general principle of our law that a person who signs a
contractual document thereby signifies his assent to the contents of
the document and if the contents subsequently turn out not to be to
his or her liking, as is in the present case, he or she has no one to
blame but himself. (R H Christie, The
Law of Contract in South Africa,
5th
ed (2006): pp 174 – 175). This is the caveat
subscriptor
rule which Ms Williams reminded the court about. And the true basis
of the principle is the doctrine of quasi mutual assent; the question
is simply whether the other party (in this case the plaintiff) is
reasonably entitled to assume that the signatory (in this case the
defendant), by signing the document, was signifying his intention to
be bound by it (see Christie, The
Law of Contract in South Africa,
ibid., p. 175). The only qualification to the rule is where the
signatory had been misled either as to the nature of the document or
as to its contents. (Christie The
Law of Contract in South Africa,
ibid., p 179)’
[12] I find that on the
facts, it is as clear as day that the qualification of the principle
does not apply in the instant case. For this reason, the full force
of the caveat subscriptor rule must apply in this proceeding,
and so I apply it. It follows that in my judgment the defendant is
bound by the pre-trial conference order; and if the order is not to
the defendant’s liking the defendant has no one to blame but
itself. This conclusion disposes also of Mr Philander’s
uncalled for vituperations levelled against a colleague without a
wraith of justification. With the greatest deference to Mr Philander,
I find Mr Philander’s conduct to be unprofessional, and so I do
not give any respectable look at those vituperative statements in his
affidavit. Indeed, I cannot see how they advance the case of his
client: they are plainly vexatious, and the only reasonable and fair
thing to do is to struck them. I accept Ms Schneider’s
submission thereanent.
[13] The pre-trial
conference order binds the parties on another ground. The order is a
compromise through and through. (See Farmer v Kriessbach I
1408/2010 – I 1539/2010 [2013] NAHCMD 128 (16 May 2013)
(Unreported).) There, relying on the authorities I had this to say at
paras 4-5 about the legal effect of a compromise in respect of an
earlier order that the court had made in the case:
‘[4]
It is therefore, with respect, cynical for (counsel) to submit with
great verve and persistence that the instant proceeding should only
concern itself with the 25 February 2013 order. I cannot accept that.
The 21 September 2012 order was made upon an agreement between the
parties; that is a compromise (a transactio),
and the compromise is embodied in the 21 September 2012 order. And
whether extra-judicial or embodied in an order of court, a compromise
has the effect of res
judicata
(Metals
Australia v Amakutuwa
2011 (1) NR 262 (SC) at 268G-H).
[5]
Accordingly, in my judgement, the 21 September 2012 order has the
effect of res judicata. That being the case the 21 September
2012 order extinguished in jure and ‘superseded’
the 25 February 2013 order. (See Green v Rozen [1955] 1 WLR
741 at 746; Metals Australia v Amakutuwa at 269A.) Besides,
(counsel’s) submission that the present proceeding should only
dwell on the 25 February 2013 can be rejected on a second ground.
There is a valid order of the court (the 21 September 2012 order);
and the court has a duty to enforce the 21 September 2012 order for
the benefit of the defendants who were granted some relief. To
overlook the 21 September 2012 order, as (counsel) submits, would be
tantamount to the court setting at naught its own order, and that
would not conduce to due administration of justice. (See The
Minister of Education and Another v The Interim Khomas Teachers
Strategic Committee and All Persons Forming Part of the Collective
Body of the First Respondent and Others Case No. LC 166/2012
(judgment delivered on 5 December 2012) (Unreported).)’
[14] And what is more; it
should be remembered that in all this the parties were represented by
legal practitioners. I make this significant observation for a
purpose. It is to signalize the point that the parties came to the
judicial arena with equal arms. It is not the case where one party
may be heard to say that as a lay litigant representing himself or
herself he was done in by the other party’s legal
representatives.
[15] From the aforegoing,
the conclusion is inescapable that the defendant has failed to
establish that there is a mistake common to both parties in the
order. By a parity of reasoning, I respectfully reject Mr Denk’s
submission that ‘it cannot be said that the lawyers of the
parties were ad idem as to the contents of the order’. By their
signatures they signified their assent to the contents of the order,
as I have found in paras 10, 11 and 12. But that is not the end of
the matter. I now proceed to deal with the defendant’s
contention, which is taken in refrain by Mr Denk in his submission,
that what is contained in the paragraphs sought to be varied did not
reflect the instructions of the defendant to its legal practitioners.
[16] It was held by Lord
Denning MR in H Clark (Doncaster) Ltd v Wilkinson I [1965] ALL
ER 934 (Court of Appeal) at 936E that -
‘An
admission made by counsel in the course of proceedings can be
withdrawn, unless the circumstances are such as to give rise to an
estoppel. If the other party has acted to his prejudice on the faith
of it, it may not be withdrawn ….’
[17] In the instant case,
as Ms Schneider submitted, the plaintiff has acted to its prejudice
on the faith of the order issued by the court. The plaintiff has
closed its case on the faith that it did not need to adduce evidence
to prove that which the defendant has assented to and so not in
dispute. It follows that the defendant cannot withdraw the contents
of para 2 of the pre-trial conference order.
[18] Furthermore, the
learned Master of Rolls continued at 936F-G:
‘We
are referred to cases where a compromise or settlement has been made
by counsel acting within his ostensible authority. That of course is
binding, as in the case of Strauss
v Francis;
… and they rest on the simple principle that a principal is
bound by a contract made by his agent within his ostensible
authority.’
[19] Agreeing with Lord
Denning Salmon LJ stated the law even more succinctly thus at 937E:
‘No
doubt a statement made by counsel, just like a statement made by the
other side to their prejudice, cannot be withdrawn. This is because
an estoppel would then arise. Further, counsel is the ostensible
agent of his client to make an agreement during the course of a trial
settling the case. If he does so, his client is bound by the
agreement, just as anyone is bound by an agreement made on his behalf
by another who is ostensibly his agent to make the agreement.’
[20] Furthermore, it has
also been stated (see Halbury’s Laws of England (3 ed)
Vol. 3 at para 118I) that -
‘At
the trial of an action, counsel’s authority extends, when it is
not expressly limited, to the action and all matters incidental to it
and to the conduct of the trial such as … a compromise …’
[21] The essence of these
English authorities on the relationship between counsel and his or
her client in proceedings is in sync with the principles enunciated
by the Supreme Court in Worku v Equity Aviation 2010 (2) NR
621. There, at 630E-F Chomba AJA, who wrote the unanimous judgment of
the court, stated the law thus:
‘[27]
The lawyer and client relationship is no more than that of principal
and agent. As such it is trite that when an agent acts within his
apparent or ostensible authority, the principal is bound thereby even
if he or she has given private or secret instructions to the agent
limiting the authority. It is equally trite that the authority of the
agent is generally construed in such a way as to include not only the
powers expressly conferred upon him or her, but also such powers as
are necessarily incidental or ancillary to the performance of his
mandate. In order to escape liability it would be necessary for the
principal to give notice to those who are likely to interact with the
agent, qua agent, of the limitations imposed by him or her upon the
agent’s apparent authority.’
[22] Having carefully
considered the facts and circumstances of the instant case, as I have
found them to exist, against the backdrop of the authorities, I come
to the following inevitable conclusions: The parties joint proposed
pre-trial order is a compromise through and through. In settling the
proposed pre-trial order, ie the compromise, the legal practitioners
acted within their apparent or ostensible authority. The authority of
the legal practitioners extends – and it has not been expressly
limited – to all matters incidental to the action and the
conduct of the trial, including the settling of the parties joint
proposed pre-trial order (ie the compromise). The settling of the
proposed order and submitting same to the managing judge in
compliance with rule 37(12) are indubitably necessarily incidental or
ancillary to the performance of the mandate of the legal
practitioners of the defendant. The defendant did not give notice to
the plaintiff of any limitations imposed by the defendant upon the
apparent authority of the defendant’s legal practitioners to
assent to the contents of the parties joint proposed pre-trial order.
The defendant is, accordingly, firmly bound by the pre-trial order
that the court issued. The defendant cannot now attempt to square it
up with the plaintiff and escape the consequences of the order just
because it has subsequently turned out not to be to its liking.
[23] For these reasons, I
refuse to grant the application to vary the pre-trial conference
order issued on 2 October 2012. Rule 37(13) is not available to the
defendant. If I varied the order that would fly in the teeth of the
well-founded principles discussed previously; and, a fortiori, it
would, on the facts and in the circumstances of the case, visit
manifest injustice on the plaintiff as I have indicated previously.
Accordingly, in my judgment the interlocutory application must fail;
and it fails.
[24] In the result, I
make the following order:
The interlocutory
application to vary the pre-trial conference order is dismissed with
costs, which include costs of one instructing counsel and one
instructed counsel.
Following immediately
upon delivery of this judgment a status hearing is to be held to
determine the further conduct of the matter.
----------------------------
C Parker
Acting Judge
APPEARANCES
RESPONDENT/PLAINTIFF: H
Schneider
Instructed by Du Pisani
Legal Practitioners, Windhoek
APPLICANT/DEFENDANT: A H
G Denk
Instructed by
LorentzAngula Inc., Windhoek
Jin Casings & Tyre Supplies CC v Mr E Hambabi t/a Alpha Tyres (I 1522/2008 ) [2013] NAHCMD 215 (25 July 2013);