Beukes t/s a MC Bouers and Others v Luderitz Town Council and Others (A 388/2009) [2009] NAHC 55 (03 March 2009);

SUMMARY REPORTABLE

Case NO.: A 388/2009

HEWAT BEUKES t/a MCBOUERS & OTHERS vs. LUDERITZ TOWN

COUNCIL & OTHERS

PARKER, J

2009 March 3

Court - High Court – Representation in – Artificial person cannot be represented unless by legal practitioner.

Practice - Applications and motions – Urgent application – Affidavits constitute pleadings and evidence – Consequently, e.g. founding affidavit must lay basis for applicant’s case and evidence relied on.

Human rights - Fair trial in terms of Article 12(1) of Namibian Constitution – Article 12(1) constitutional right in relation to urgent application where opposing Party not given sufficient time to file answering affidavit – Such conduct violating that party’s right to fair trial – Consequently, Court ought to be slow in granting indulgence to hear matter on urgent basis.

Held, the requirements in Rule 6(12) of the Rules of Court must be met fully before a Court decides to hear matter on urgent basis because by hearing a matter on urgent basis where the other party has not been given sufficient time to file answering affidavit amounts to eroding that party’s right to fair trial.

REPORTABLE

CASE NO.: A 388/09

IN THE HIGH COURT OF NAMIBIA

In the matter between:

HEWAT BEUKES t/a MC BOUERS 1^ST APPLICANT

COLIN MARK MARTIN t/a MC BOUERS 2^ND APPLICANT

MC BOUERS 3^RD APPLICANT

and

LUDERITZ TOWN COUNCIL 1^ST RESPONDENT

DEVELOPMENT BANK OF NAMIBIA 2^ND RESPONDENT

PUPKEWITZ & SONS (PTY) Ltd 3^RD RESPONDENT

CORAM: PARKER, J

Heard on: 2009 February 10

Delivered on: 2009 March 3

JUDGMENT

PARKER, J: [1] In this matter, application is made by the 1^st, 2^nd and 3^rd applicants (the applicants) in which the applicants have prayed for orders in the following terms:

(1) Condoning applicant’s non-compliance with the rules of the Honourable Court.

(2) That a rule nisi hereby issues calling upon the respondents to show cause on 17 February 2009 at 9H00 why an order should not be made in the following terms:

(i) Ordering first and second respondents to release the December 2009 payment due to third respondent in this matter to third respondent.

(ii) Ordering first and second respondents to pay the costs of this /application.

(3) Further and/or alternative relief.

[2] In virtue of reasons that will become apparent in due course, I set out herein the times that the application was filed with the Court and was served on the parties, and the times that notice of intention to oppose was filed by the 1^st respondent and served on the applicants, and, above all – and this is significant – the time that the application was set down to be heard, which is 09h00 on Tuesday 10 February 2009.

[3] The Notice of Motion was filed with the Registrar of the Court on Monday, 9 February 2009; and the 1^st applicant’s confirmatory affidavit was filed with the Registrar on Tuesday, 10 February 2009. The Notice of Motion was received by the 2^nd respondent (as I can read from the papers) at 14h50 on the aforementioned Monday, 9 February 2009. There is no indication on the papers that the confirmatory affidavit of the 1^st applicant was received by any of the respondents. The 3^rd respondent refused to accept service of the Notice of Motion; and according to the papers, which was at 14h20 on Monday, 9 February 2009 in Windhoek. It is not indicated when the 1^st respondent which is based in Luderitz received the Notice of Motion. Mr. Corbett, counsel for the 1^st respondent, informed the Court during his submission that the 1^st respondent received the Notice of Motion in Luderitz at 16h30 on Monday, 9 February 2009. I have no good reason not to accept that: it is reasonable, if regard is had to the fact that as aforesaid, the 3^rd respondent which is based in Windhoek refused to receive the Notice at 14h20 and the 2^nd respondent which is also based in Windhoek received the notice at 14h50 on Monday, 9 February 2009. The 1^st respondent’s legal practitioners filed Notice of Intention to Oppose on Tuesday, 10 February 2009; that is, the day of the hearing of the application. Dr. Akweenda is counsel for the 2^nd respondent. There is no appearance for the 3^rd respondent. The applicants appeared in person.

[4] In all this truncation of times, it must be remembered that the 1^st, 2^nd and 3^rd respondents are artificial persons, and so they must appear in this Court represented by legal practitioner. (Dormehl’s Garage (Pty) Ltd v Magagula 1964 (1) SA 203 (T)) I have flagged this conclusion in order to make the all significant point that after receiving the Notice of Motion the 1^st respondent had barely one and half hours and the 2^nd respondent barely three hours - (1) to instruct instructing counsel, (2) for the instructing counsel to instruct instructed counsel (as happened in this case), (3) for counsel to file and serve Notice of Intention to Oppose, and (4) for counsel to prepare, file and serve answering affidavits before the time set down for the hearing of the application. I have no good reason to doubt the industry and diligence of counsel who practise in this Court but for any person to expect any counsel to carry out the activities in the aforementioned (1), (2), (3) and (4) within between one and a half hours and three hours is on any pan of scale superlatively unfair, unjust and unreasonable, and, therefore, cannot be countenanced.

[5] The extremely unfair, unjust and unreasonable conduct of the applicants is even put in sharper focus in the light of the following, which Mr. Corbett referred to in his submission. In terms of the Rules of Court, in a Notice of Motion, as in the instant matter, the Notice must be as near as may be in accordance with Form 2 (a) of the First Schedule of the Rules of Court, and in particular in terms of rule 6 (5)(b) of the Rules the applicant must comply with the requirement that the applicant must notify the respondent of a date by which the applicant must file a notice of opposition. The present Notice of Motion ignores these requirements which on the authority of Old Mutual Life Assurance Company Namibia Limited v Old Mutual Namibia Pension Fund and another are peremptory, and there is no rule which says that those requirements do not apply to an urgent application. The say-so of the applicants that there exists urgency does not entitle the applicant to do as they please, without regard to the Rules of Court that are peremptory, as in the instant case, as I say.

[6] It is my view that rule 6 (12) of the Rules of Court concerning urgent application must be applied cautiously and sparingly as it tends to violate the constitutionally guaranteed right to fair trial, particularly Article 12 (1) (a) and (e) of the Namibian Constitution. In my opinion, the essence of rule 6 (12) of the Rules is, therefore, that in the exercise of his or her discretion, it is only in a deserving case that a Judge may dispense with the forms and service provided in the Rules. In terms of rule 6 (12), as I see it, a deserving case is one where the applicant has succeeded – (1) in explicitly setting out the circumstances which the applicant asserts render the matter urgent and (2) in giving reasons why he or she claims he or she could not be afforded substantial redress at the hearing in due course. (Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd Case No.: (P) A 91/2007 (Unreported) where the Court relies on a long line of cases, including the Namibian cases of Bergmann v Commercial Bank of Namibia Ltd 2001 NR 48; Salt and another v Smith 1990 NR 87.) Thus, in deciding whether the requirements in (1) and (2) of rule 6 (12) have been met, that is, whether it is a deserving case, it is extremely important for the Judge to bear in mind that the indulgence – and indulgence, it is – that the applicant is asking the Court to grant, if the Court grants it, would whittle away the respondent’s right to fair trial guaranteed to him or her by the Namibian Constitution. Keeping these considerations and conclusions in view, I now proceed to determine whether this is a deserving case.

[7] In an attempt to meet the requirement in (1), the applicants set forth these circumstances in paras 33-38 of the founding affidavit:

(33) Respondents have no resources to continue with work and other contracts as third respondent is my supplier.

(34) My employees including first applicant have not been paid for work done and employees threatened again to impound on my equipment.

(35) I attach hereto a copy of one of my contracts amounting to N$2, 5 million with Seaflower, a fishing company in Luderitz.

(36) I stand to loose all my contracts as I am unable to buy the necessary material to begin work on same.

(37) My immaculate business name is set to suffer irreparably as I

cannot meet my obligations.

(38) Respondents unlawfully repudiate the out and out cession with third respondent and myself on behalf of third applicant.

[8] In considering those circumstances, I bear in mind that to “set forth explicitly the circumstances” means to state the circumstances “in detail” and “expressly, leaving nothing merely implied (Concise Oxford Dictionary, 10 ed).” Applying this ordinary grammatical meaning, I find that the circumstance in para 33 is not set forth explicitly: it is not set out expressly and in detail, leaving nothing implied. To start with, what kind of resources is referred to in para 33; and what other contracts are referred to in that paragraph? The applicants leave this item implied. As to para 34; this circumstance is not only vague; it is also as obfuscatory as it is nebulous. Is the first applicant (sic, “respondent”) the second applicant’s partner or employee – which is which? Besides, this circumstance cannot be true; or at least, it contradicts, as Mr. Corbett correctly pointed out, para 21 of the founding affidavit where the 2^nd applicant avers that the 2^nd applicant borrowed N$45,000.00 from a friend in order to pay the workers and this averted immediate disaster. Additionally, para 34 leaves it to be implied as to which month or months the alleged employees had not been paid, how many employees are involved, how much wages or salary is due to them, and in what circumstances the N$45,000.00 was in one breadth adequate to avert disaster and in another breadth the employees had not been paid and now threaten seizing the 2^nd applicant’s equipment.

[9] I proceed to deal with the circumstances in paras 35. With respect, para 35 carries no weight at all. The first sentence of the “Letter of Tender” at p 10/4 is the tell-tale; and it reads:

Unless and until a formal agreement is prepared and executed, this Tender, together with your written acceptance thereof shall constitute a binding Contract between us. (My emphasis)

There is no written acceptance by the 2^nd applicant of the tender annexed to the founding affidavit. I, therefore, find that there is no credible evidence before this Court tending to establish that there is indeed “a binding contract” between the 2^nd applicant and Seaflower White Fish Corporation. Consequently, I do not accept the 1^st applicant’s submission that “the contract is attached and this contract cannot be proceeded with, because of the refusal of the 1^st respondent to pay the money.” What is attached is a Letter of Tender, there is no written acceptance thereof, as I have already demonstrated; ergo there is no contract to write home about. As to para 36; the 2^nd applicant does not state in detail and expressly, leaving nothing merely implied, as to how he is going to lose “all my contracts”. Which contracts? What is more, there is no credible evidence before this Court that any such contract exists in the first place. What is set out in para 37 cannot fare any better. As Dr. Akweenda and Mr. Corbett correctly stated, there is authority that financial problems and consequential hardships do not per se constitute a ground for urgency. (Beukes and others v National Housing Enterprise 2007 (i) NR 142 (LC)) Moreover, as Mr. Corbett correctly submitted, para 38 has nothing to do with any ground of urgency: what is contained in para 38 indubitably goes to the merits of the case.

[10] The second requirement, which is in (2) as I have already mentioned, is that the applicant must provide reasons why he or she claims he or she could not be afforded substantial redress at the hearing in due course. I accept submission by counsel that the applicants do not give any reasons. It follows reasonably that I find that the applicants do not deal with the requirements in (2) at all. There is authority that on this ground alone the application falls to be dismissed. (Mweb Namibia (Pty) Ltd supra)

[11] That is not the end of the applicants’ woes: an additional nail in the coffin of the instant application is this. While they have decided to drag the respondents to the Court on less than one day’s notice and while the applicants want the Court to take away the respondents’ constitutional right to fair trial, as I have said previously, the applicants have not offered a modicum of explanation why they waited for about six weeks before rushing to the Court at break-neck speed on less than one day’s notice with the present application on urgent basis. On the applicant’s own papers, in December the Chief Executive Officer (CEO) of the 1^st respondent had refused to make payment of N$1.351m to the applicants. A meeting between the 2^nd applicant and the said CEO did not make the CEO yield her position. Thus, in December 2008, there was a categorical refusal by the CEO to make any payment to the applicants, but the applicants decided to wait until 9 February 2009 – nearly six weeks later – to being the application; and no explanation, as I have said, has been forthcoming. Even if the parties were engaged in further negotiations to try to resolve the matter; that cannot assist the applicants (Bergmann supra).

[12] On this, Muller, J stated in Mweb Namibia (Pty) Ltd supra at pp 32-33:

An applicant should not delay in approaching the Court and wait until a certain event is imminent and then rely on urgency to have his/her matter heard.

“When an application is brought on the basis of urgency, institution of the proceedings should take place as soon as reasonably possible after the cause thereof has arisen.”

(Bergmann v Commercial Bank of Namibia Limited, supra, at 50G-I.

Prest, supra, at 260)

In casu, the cause of the matter arose in December 2008.

[13] Additionally, Maritz, J (as he then was) summed it all up in the following passage with great insight:

Whilst Rule 6(12) allows a deviation from those prescribed procedures in urgent applications, the requirement that the deviated procedure should be ‘as far as practicable’ in accordance with the Rules constitutes a continuous demand on the Court, parties and practitioners to give effect to the objective of procedural fairness when determining the procedure to be followed in such instances. The benefits of procedural fairness in urgent applications are not only for an applicant to enjoy, but should also extend and be afforded to a respondent. Unless it would defeat the object of the application or, due to the degree of urgency or other exigencies of the case, it impractical or unreasonable, an applicant should effect service of an urgent application as soon as reasonably possible on a respondent and afford him or her, within reason, time to oppose the application. It is required of any applicant to act fairly and not to delay the application to snatch a procedural advantage over his or her adversary.

[14] I find myself in respectful agreement with the views expressed in Mweb Namibia (Pty) Ltd and Bergmann supra.

[15] The law is so trite and so there is no need to cite a particular authority that the Court has discretion to condone the non-compliance with the Rules of Court and also that what applicants seek, as I have already said, is an indulgence of the Court to hear the matter on urgent basis and furthermore that the applicant bears the onus of persuading the Court that the matter be treated as urgent. Additionally, and this is important, as far as I am concerned; as I have said previously, in the exercise of its discretion the Court must always bear in mind that by granting the indulgence the Court is in effect taking away the respondent’s constitutional right to fair trial and, therefore, there must be in existence good grounds, e.g. where to refuse to grant the indulgence would defeat the object of the application (see Bergmann supra at 51A), to persuade the Court to exercise its discretion in favour of granting such indulgence. In casu, the applicants have not acted fairly; they have not afforded the respondents, within reason, time to oppose the application; the applicants were undoubtedly minded to snatch procedural advantage over the respondents. All in all, the applicants have by their conduct shown that it would be unfair, unreasonable and unjust for the Court to grant the indulgence they seek; that is, for the Court to erode the respondents constitutional right to fair trial. I for one do not wish to have anything to do with a perversion of rule 6 (12) of the Rules of Court, as has occurred in the instant case, because such misuse of the rule puts the respondents beyond the pale of constitutional protection of Article 12 (1) of the Namibian constitution.

[16] Thus, having considered the applicants’ papers filed of record and all the submissions against the backdrop of the aforegoing considerations and conclusions and the authorities in respect of urgency, I have come to the inexorable and reasonable conclusion that the instant matter is far from being a deserving case for the grant of the indulgence sought. Accordingly, I refuse to exercise my discretion in favour of the applicants: I decline to condone the applicants’ non-compliance with the Rules of Court and hear the application as one of urgency.

[17] It remains to deal with the question of costs. Mr. Corbett urged me to take into account the gross abuse of the process and the Rules of Court and the gross inconvenience of the respondents and to the Court and award costs on the attorney-and-client scale and in respect of instructing and instructed counsel. In the main, Dr. Akweenda submitted likewise on the question of costs. On their part, in a spirited obsecration, the applicants urged this Court to merely dismiss the application if I find against them. In this regard the 1^st applicant submitted that he would have brought to the attention of the Court authorities that support the proposition that “the conduct of the respondents is crucial in the award of costs.” What the applicants forget is that it is the applicants who dragged the respondents to the Court on less than one day’s notice and a fortiori that in application proceedings affidavits serve as both pleadings and evidence (see Stipp and another v Shade Centre and others 2007 (2) NR 627 (SC)) and there is no evidence before the Court tending to show any untoward conduct of the respondents which I might take into account in considering the award of costs. It follows that, in my opinion, this is a proper case where costs must surely follow the event. It is my view, therefore, that it is fair, reasonable and just that in the exercise of my discretion I order costs to follow the event; but I decline to award punitive costs; but in a proper case I shall not hesitate to award costs on the attorney and own client scale.

[18] In the result, I make the following order:

1. that paragraph 1 of the Notice of Motion is dismissed with costs on party and party scale; and the costs shall include the costs of instructing counsel and instructed counsel in favour of the 1^st and 2^nd respondents.

2. that the applicants shall, jointly and severally, the one paying, the other to be absolved, the aforementioned costs of the 1^st and 2^nd respondents.

_________________________

PARKER, J

ON BEHALF OF THE APPLICANTS: In person

ON BEHALF OF THE 1ST RESPONDENT: Adv S Akweenda

Instructed by: LorentzAngula Inc

ON BEHALF OF THE 2^ND RESPONDENT: Adv A Corbett

Instructed by: Engling, Stritter

and Partners

ON BEHALF OF THE 3^RD RESPONDENT: No appearance