CASE NO.: A 332/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

MINISTER OF REGIONAL AND LOCAL GOVERNMENT 

NAMIBIA FINANCIAL INSTITUTIONS

MUNICIPAL COUNCIL FOR THE MUNICIPALITY 

Heard on:    29 November 2010 Delivered:    24 February 2011

JUDGMENT

[2]     In proceedings in this matter before Hoff, J on 20 April 2009 the presiding judge

inter alia said the following:
"Also in the light of legal certainty I think it is imperative at this stage that
a full bench of this Court decides this matter once and for all. I have
discussed it with the Judge President as well as with the Registrar of this
Court	"

[3] The matter was then referred to the Full Court as provided for in section 10(1) of the High Court Act, Act No. 16 of 1990 ("the High Court Act").

[4]     The applicants are not represented by any legal practitioner and all appear in

[5] None of the applicants filed any Heads of Argument as required by the practice of this Court, but instead filed a "STATEMENT BY APPLICANTS ON RULE 30 APPLICATION(S) BEFORE FULL COURT ON 29 NOVEMBER 2010 at 14h55 ON 24

Whether it is a prerequisite for an applicant to give notice in terms of Rule 30(5) before bringing a Rule 30(1) application?
1.	All those parties who have an interest in the outcome of the matter, when it is argued before the full bench, may join in the proceedings in accordance with the Rules of Court.
2.	No order as to costs."

[9] Despite my finding that the Statement is not strictly relevant to the issue presently before court, it was decided to hear arguments thereon and I will briefly touch on some of the issues raised therein:
"1.    There is no Rule 30 application before the Court. There is no respondent legally before the Court."

The applicants inter alia made the statement that:

This Statement was probably based on the wording of the Court Order of the

However, in his introductory submission Mr Totemeyer handed up a certified copy of
the proceedings of that day where the following inter alia appears:

[10]   Before the record of the proceedings was handed up by Mr Totemeyer, Mr
Beukes amplified the Statement and submitted as a further objection that by virtue of
the provisions of Act 10 of 2001, the full Court had been "replaced" with the Supreme
Court and for that reason this Court has no jurisdiction to hear this matter.   This
submission is based on an incorrect reading and interpretation of section 3(a) of Act
10 of 2001 which substituted section 2 of the High Court Act, as same only pertains to
appeals as follows:
"(2)   An appeal from any judgment or order of the High Court in civil proceedings shall be -

(b)   	 "

[11] The aforesaid finding (in paragraph [9] above) on whether all four respondents are before Court, also takes care of the next 3 statements, to wit:

3.	The re-enrolment of the matter by the Court mero motu falls rankly outside the jurisdiction of the Court. Nothing in law bestows the power on or remotely suggests that the Court itself may initiate or bring applications on behalf of the party to a dispute.
4.	The Full Court acted outside its Constitutional genesis by extending the Bench to include the respondents."

[12]   The last issue in the Statement calling for comment is paragraph 5 which reads as follows:
"The judgment postponing this matter and inviting all and sundry with an interest in the outcome of the matter falls outside the spirit and the letter of the Constitution and the Law. The order is ultra vires the Court's competence."

[13]   Paragraph 2 of the order of Court dated 27 April 2010 referred to in paragraph 8
supra was included as a consequence of Mr Beukes's address to the Court on that
day wherein he said the following:
"My Lords and My Lords and Lady, a further question of concern is that the number of Rule 30s, even in the ranks of the Applicants, are pending and that these people have legal interest in having to be joined in that Application. Surely it is surprising, it is just surprising that this rush to have a Rule 30 Application which obviously need a lot of ventilation and a lot of thought, especially because it is referred to the full bench, it is surprising to us that people who have interest in this matter, that these people are left out in this Rule 30. Surely, those people who are already enrolled and whose matters have been set down, under circumstances like that, as far as I understand the rules, the Court will tend to join this Rule 30s. Because there is a question of law that must be determined. Now to me it seems chaotic to have a full argument now and in two months we have the same argument with a different set of Applicants and two months after that, I know that there are Rule 30s set down right up to September this year. Now, I humbly ask whether the Court will not consider it very chaotic that we are actually descending in the same sort of scenario or setting the stage for the same sort of scenario where we may develop different authorities, on the same question. And where we will have to probably refer the matter somewhere else, when such authorities might be developed. But this is something, I ask the Court's indulgence to make such a remark because it is the Court's decision, it is not mine...."

[14] Furthermore, bearing in mind the many unrepresented applicants in similar matters before the High Court, it was only a re-statement of the law that anyone with an interest may apply in terms of the Rules of Court to join or be joined. In my view the invitation by the Court falls squarely in the spirit and letter of the Constitution. In any event, no person made an application for joinder. Only Mr August Maletsky sought leave to hand up heads of argument to make some submissions, which was refused as he is not a party to these proceedings nor has he formally applied to be joined.
[15] I now turn to the question this Court has to decide as stated before. Rule 30 of the High Court and Rule 30 of South Africa before 1996 are identical and read as follows:
"30(1) A party to a cause in which an irregular step or proceeding has been taken by any other party may, within 15 days after becoming aware of the irregularity, apply to court to set aside the step or proceeding: Provided that no party who has taken any further step in the cause with knowledge of the irregularity shall be entitled to make such application.
5.	Application in terms of sub-rule (1) shall be on notice to all parties specifying particulars of the irregularity or impropriety alleged.
6.	If at the hearing of such application the court is of opinion that the proceeding or step is irregular or improper, it may set it aside in whole or in part, either as against all the parties or as against some of them, and grant leave to amend or make any such order as to it seems meet
7.	Until a party has complied with any order of court made against him or her in terms of this rule, he or she shall not take any further step in the cause, save to apply for an extension of time within which to comply with such order.
8.	Where a party fails to comply timeously with a request made or a notice given pursuant to these rules, the party making the request or giving the notice may notify the defaulting party that he or she intends, after the lapse of 10 days to apply for an order that such notice or request be complied with, or that the claim or defence be struck out, and failing compliance within the 10 days, application may be made to court and the court may make such order thereon as to it seems meet".
The South African rule 30(5) was subsequently deleted and substituted with the following;
"30A (1) Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice, or request be complied with or that the claim or defence be struck out.

(2) Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems meet."

SA 503 T. Aware thereof that same were not binding on the Namibian High Court, he
found the reasoning thereof convincing and adopted same as also being applicable to

(supra) was wrongly decided because of a misplaced reliance on non-applicable case

"[22] Prior to December 1996 the South African rule 30(5) was worded exactly the same as our rule 30(5) and thus South African case law on the application and interpretation of rule 30(5), although not binding, may be persuasive authority.

Trollip J (as he then was) considered the applicability of the provisions of rule 30(5) in respect of rule 21(6) in Norman & Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd 1968 (1) SA 503 (T) and concluded at 504E - G as follows:

"... the general rule in Rule 30(5) was obviously intended to apply in all those cases where a particular Rule did not itself provide for a special sanction for non-compliance with a notice or request, as, for example, in Rules14(5), 14(9), 36(2) and 37(1). But where such special sanction was provided as, for example, in Rules 21(6) and 35(7), that was to apply instead of Rule 30(5). To try to read such Rules with and subject to Rule 30(5) would be not to supplement them but to supercede or destroy them. In fact, if Rule 30(5) does apply then Rule 31(6) would have been quite unnecessary and can be ignored. That could never have been the intention."

[23] In my view, the reference to rule 31(6) (supra) is erroneous and should read rule 21(6). There was no rule 31(6).

[24] Rule 30(5) was deleted by subsequent legislation in South Africa and substituted with rule 30A which reads as follows:
9.	Where a party fails to comply with these rules or with a request made or notice given pursuant thereto, any other party may notify the defaulting party that he or she intends, after the lapse of 10 days, to apply for an order that such rule, notice, or request be complied with or that the claim of defence be struck out.

Failing compliance within 10 days, application may on notice be made to the court and the court may make such order thereon as to it seems meet.

[25] In Absa Bank Ltd v The Farm Klippan 490 CC 2000(2) SA 211 (W) Eksteen AJ supported the reasoning of Trollip J (in Hansella) and stated the following at 213G-H:

'Certainly the old Rule 30(5) was out of place in a Rule where all the other subrules of Rule 30 deal with irregular proceedings. It is not an irregular proceeding to fail to comply with a request or notice. It therefore does seem anomalous that the old Rule 30(5) was used to compel compliance with Rules which did not within themselves provide a specific remedy or sanction. What is now clear is that Rule 30A is the procedure to use where a party wishes to compel compliance with a notice or request given in terms of those Rules which have no special remedy for failing to comply or respond
thereto.' "

Hoff J concluded as follows:
"[26] I support the passages quoted (supra) in the Hansella and Absa Bank cases and accordingly find that the provisions of our rule 30(5) are not applicable to the rest of the subrules of rule 30."

"In my view, the aforementioned second preliminary objection relates to a step that amounts to an irregularity or impropriety of form within the meaning of rule 30 of the Rules of Court, and it is my opinion that it would rather have been more efficacious if the applicant had taken the route open to her by rule30; in which case the respondent would have been given the opportunity of removing the cause of the complaint in terms of rule 30 (2). The applicant did not follow this simple procedure whose efficacy lies in the fact that a party which has taken the irregular or improper step complained of is given the opportunity to remove the cause of the complaint without the immediate intervention of the Court. The Court may enter on the scene to set aside the irregularity or impropriety only if the offending party has failed to remove such complaint; and moreover, in that event, that party is not even permitted to take any further step in the matter unless and until that party has complied with any order of the Court in that regard".

[18] Mr Totemeyer made the submission with which I agree that rule 30(1) and rule 30(5) are mutually exclusive and if rule 30(5) is applied to rule 30(1) - (4) same would lead to absurdities. He further submitted that the reference to rule 30(2) in the abovementioned citation leaves one with the inescapable inference that when the learned judge delivered the two judgments he had the substituted rule 30(2) read with rule 30(1) of South Africa in mind, which was of course not applicable in Namibia. Our rule 30(2) is clear and unambiguous and only prescribes how the irregularity or impropriety in terms of rule 30(1) should be specified in the notice of application.

[20]   In the result the question posed above is answered as follows:

It is not a prerequisite for an applicant to give notice in terms of Rule 30(5) before bringing a Rule 30(1) application.

[21]   The following orders are made:
10.	
11.	

SWANEPOEL, J

I concur

VAN NIEKERK, J

I concur

SHIVUTE, J

ON BEHALF OF THE APPLICANTS					In Person

Instructed by:

Instructed by:
Adv. Totemeyer S.C assisted by Adv. Denk Fisher, Quarmby & Pfeiffer

Adv. Totemeyer S.C assisted by Adv. Denk Etzold-Duvenhage