11
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING
Case Title: Raphael Hijangungo Kapia and another v Minister of Urban and Rural Development and 4 others | Case No: HC-MD-CIV-MOT-REV-2019/00395 | |
Division of Court: HIGH COURT(MAIN DIVISION) | ||
Heard before: HONOURABLE LADY JUSTICE PRINSLOO, JUDGE | Date of hearing: 24 January 2023 | |
Date of order: 13 February 2023 | ||
Neutral citation: Kapia v Minister of Urban and Rural Development (HC-MD-CIV-MOT- REV- 2019/00395) [2022] NAHCMD 47 (13 February 2023) | ||
Results on merits: Merits not considered. | ||
The order:
Further conduct of the matter:
| ||
Reasons for orders: | ||
Introduction
The parties
The basis for the applicants’ application
The opposition
Applicable legal principles
‘(2) The applicant may, within 14 days of the service on him or her of the affidavit and documents referred to in subrule (1)(b), deliver a replying affidavit and the court may in its discretion permit the filing of further affidavits.’ (my emphasis) ‘[17] It is trite that in motion proceedings the ordinary rule is that three sets of affidavits are allowed, i.e. the supporting affidavits, the answering affidavits and the replying affidavit. In the matter of Ritz Reise (Pty) Ltd v Air Namibia (Pty) Ltd5, this Court stated that it may in its discretion permit the filling of further affidavit. Quoting from the South African case of Juntgen T/A Paul Juntgen Real Estate v Nottbusch6, it said: ‘Generally a Court has a discretion, which is inherent to the just performance of its decision reaching process, to grant that relief which is necessary to enable a party to make a full representation of his true case.’ [18] In the matter of Maritima Consulting Services CC v Northgate Distribution Services Ltd7, the Court held that leave to file further affidavits by a party will be granted only in special circumstances or if the court considers such a course advisable. Thus, the filing of further answering affidavits will be permitted where, for instance, ‘there is a possibility of prejudice to the respondent if further information is not allowed’.’ (my underlining)
‘[11] In the South African case of James Brown & Hamer (Pty) Ltd v Simmons N.O9 the Court said: ‘It is in the interests of the administration of justice that the well-known and well-established general rules regarding the number of sets and the proper sequence of affidavits in motion proceedings should ordinarily be observed. That is not to say that those general rules must always be rigidly applied: some flexibility, controlled by the presiding Judge exercising his discretion in relation to the facts of the case before him, must necessarily also be permitted. Where, as in the present case, an affidavit is tendered in motion proceedings both late and out of its ordinary sequence, the party tendering it is seeking not a right, but an indulgence from the Court: he must both advance his explanation of why the affidavit is out of time and satisfy the Court that, although the affidavit is late, it should, having regard to all the circumstances of the case, nevertheless be received. Attempted definition of the ambit of a discretion is neither easy nor desirable.’ [12] The above principle was endorsed by this Court when it held that leave to file further affidavits by a party will be granted only in special circumstances or if the court considers such a course advisable. Thus, the filing of further answering affidavits will be permitted where, for instance, ‘there is a possibility of prejudice to the respondent if further information is not allowed.’10 The court will allow the filing of further affidavits only in exceptional circumstances and will expect an explanation as to why the filing of further affidavits is necessary.11 [13] The court exercises a judicial discretion when it considers whether or not to allow the filling of a further affidavit. In the exercising of the discretion, the Court essentially asks the question 'Do the circumstances of the case demand the filling of an additional affidavit?' The authorities that I have perused indicate that special circumstances have been held to exist and a departure from the general rule has been allowed where there was something unexpected in the applicant's replying affidavits12 or where a new matter was raised therein and also where the Court desired to have fuller information on record. [14] Where, however, there is a possibility of prejudice to the respondent if further information is not allowed the Court will, so the learned authors Herbstein and van Winsen13 say, admit the further affidavits. There must, however, be a proper and satisfactory explanation which negatives mala fides or culpable remissness as to the cause of the facts or information not being put before the Court at an earlier stage and what is more important is that the Court must be satisfied that no prejudice is caused by the filing of the additional affidavits which cannot be remedied by an appropriate order as to costs.’ (my underlining)
Amendment
Costs
| ||
Judge’s signature | Note to the parties: | |
| Not applicable. | |
Counsel: | ||
Applicants | Respondents | |
R Tötemeyer SC assisted by C Kavitjene Instructed by Kangueehi & Kavendjii Inc., Windhoek | J Ncube Of Government - Office of the Government Attorney, Windhoek N Bassingthwaighte assisted by S Nambinga, Instructed by Palyeenime Incorporated, Windhoek |
1 (2) The applicant may, within 14 days of the service on him or her of the affidavit and documents referred to in subrule (1)(b), deliver a replying affidavit and the court may in its discretion permit the filing of further affidavits.
2 Witbooi v Minister of Urban and Rural Development (HC-MD-CIV-MOT-REV-2019/00225) [2022] NAHCMD 172 (05 April 2022).
3 Fischer v Seelenbinder (A 217/2015) [2017] NAHCMD 323 (10 November 2017).
4 Also see Serve Investments Eight Four Pty Ltd v Agricultural Professional Services Pty Ltd & 6 Others (HC-MD-CIV-MOT-GEN-2021/00096) [2021] NAHCMD 470 (08 October 2021).
5 Ritz Reise (Pty) Ltd v Air Namibia (Pty) Ltd 2007 (1) NR 222 (HC), Also see the matter of Gabrielsen v Coertzen Case No: (P) I 3062/2009 an unreported judgment of this Court delivered on 29 June 2011.
6 Juntgen T/A Paul Juntgen Real Estate v Nottbusch 1989 (4) SA 490 (W).
7 Maritima Consulting Services CC v Northgate Distribution Services Ltd (A 282-2014) [2015] NAHCMD 121 (29 May 2015).
8 The Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-MOT-EXP-2016/00275) [2018] NAHCMD 36 (16 February 2018).
9 James Brown & Hamer (Pty) Ltd v Simmons N.O 1963 (4) SA 656 (AD) at 660.
10 See the unreported judgment in the matter of Maritima Consulting Services CC v Northgate Distribution Services Ltd A 282-2014) [2015] NAHCMD 121 (delivered on 29 May 2015).
11James Brown & Hamer (Pty) Ltd v Simmons N.O 1963 (4) SA 656 (AD).
12 Rens v Gutman N.O 2002 4 All SA 30 (C).
13 In their book The Civil Practice of the Supreme Court of South Africa, 5 ed, p 433.
14 Bangtoo Bros and Others v National Transport Commission and Others 1973 (4) SA 667 (N) at 680B.
15 Rule 121(2) of the Rules of Court.
Cited documents 7
Judgment 6
- Fischer v Seelenbinder and Another (APPEAL 217 of 2015) [2017] NAHCMD 323 (10 November 2017)
- Maritima Consulting Services CC v Northgate Distribution Services Ltd (APPEAL 282 of 2014) [2015] NAHCMD 121 (29 May 2015)
- Namibian Competition Commission v Puma Energy (Pty) Ltd (HC-MD-CIV-MOT-EXP 27 of 2016) [2018] NAHCMD 36 (16 February 2018)
- Serve Investments Eight Four Pty Ltd v Agricultural Professional Services Pty Ltd and Others (HC-MD-CIV-MOT-GEN 96 of 2021) [2021] NAHCMD 470 (8 October 2021)
- Vihanga v Tjindere (HC-MD-CIV-ACT-DEL- 2166 of 2020) [2022] NAHCMD 47 (11 February 2022)
- Witbooi and Others v Minister of Urban and Rural Development and Others (HC-MD-CIV-MOT-REV 225 of 2019) [2022] NAHCMD 172 (5 April 2022)