Rentworks Namibia (Pty) Limited v Octagon Construction (Pty) Limited (HC-MD-CIV-MOT-GEN 503 of 2022) [2022] NAHCMD 614 (11 November 2022)

Case Title:

RENTWORKS NAMIBIA (PTY) LIMITED APPLICANT

and

OCTAGON CONSTRUCTION

(PTY) LIMITED 1^ST RESPONDENT

ONGOS VALLEY DEVELOPMENT

(PTY) LIMITED 2^ND RESPONDENT

WELWITSCHIA CONSTRUCTION

CC 3^RD RESPONDENT

Case No:

HC-MD-CIV-MOT-GEN-2022/00503

Division of Court:

HIGH COURT(MAIN DIVISION)

Coram:

Coleman J

Date of Hearing:

4 NOVEMBER 2022

Date of Order:

11 NOVEMBER 2022

Neutral citation: Rentworks Namibia (Pty) Limited v Octagon Construction (Pty) Limited (HC-MD-CIV-MOT-GEN-2022/00503) [2022] NAHCMD xxx (11 November 2022)

Order:

1. The urgent application is struck from the roll.

2. The applicant is to pay 1^st respondent’s costs to include one instructing and one instructed counsel.

3. The matter is removed from the roll and regarded as finalized.

Reasons for orders:

COLEMAN J:

Introduction

[1] This is an urgent application for specific performance of a breach clause in a rental agreement in respect of construction equipment. Applicant wants the equipment rented to first respondent returned on an urgent basis. In essence, applicant’s case is that first respondent is in breach of the rental agreement by being in arrears on payments. In the meantime, applicant alleges, first respondent ceded its rights in some equipment to second respondent and sold others to third respondent. This is all disputed by first respondent. First respondent insists the equipment in question are all in its possession. In my view all this raise substantial disputes of fact.

[2] First respondent also raises the point that applicant did not comply with the requirements of rule 73 of the rules of the High Court. In particular, first respondent contends that applicant did not explicitly set out the reasons why it could not be afforded substantial redress in due course. This is a peremptory requirement.

[3] The construction equipment in contention will certainly not disappear from the face of the earth. The fact that they will deteriorate in value is inevitable and will happen anyway. I agree with first respondent that applicant did not make out a case for urgency in this matter. It appears to be quite common in urgent applications in this jurisdiction that an applicant either under-estimate the importance of substantial redress in due course as a requirement for urgency, or entirely misses it.

[4] Substantial redress in due course does not only relate to damages as an ultimate remedy. It involves whether or not the applicant can achieve substantially the same result in the normal course as it is trying to achieve on an urgent basis.

[5] I take cognisance of the submissions on behalf of first respondent on costs, but do not see justification to award a higher scale of costs under the circumstances.

[6] Accordingly, I make the following order:

1. The urgent application is struck from the roll.

2. The applicant is to pay 1st respondent’s costs to include one instructing and one instructed counsel.

3. The matter is removed from the roll and regarded as finalized.

Judge’s signature

Note to the parties:

Coleman

Judge

Not applicable.

Counsel:

Applicant

Respondents

Adv Jacobs

Instructed by Danielle Lubbe Attorneys,

Windhoek

First Respondent

Adv Kauta

Instructed by Ndaitwah Legal Practitioners, Windhoek

Second Respondent

Ms Shigwedha (watching brief)

Of Dr Weder, Kauta & Hoveka Inc., Windhoek