Reasons for order:
DE JAGER J:
The applicants seek leave to appeal to the Supreme Court against the whole ‘judgment and order’ of the court dated 14 October 2024 dismissing their application that the proceedings under HC-MD-CIV-MOT-EXP-2023/00169 be stayed pending finalisation of an appeal to the Namibia Financial Institutions Supervisory Authority (NAMFISA) appeal board.
In Shetu Trading CC v Chair, Tender Board of Namibia and Others (Shetu) the Supreme Court said if a decision does not fall within the class of ‘judgments or orders’ contemplated by section 18(1) of the High Court Act 16 of 1990 (the Act), it is not appealable at all, and not all decisions by the court constitutes a ‘judgment or order’ under that section. In considering section 18(3) of the Act, the Supreme Court, in Shetu, said given that section 18(3) repeats the phrase ‘judgment or order’ used in section 18(1), section 18(3) does not expand the scope of appealable judgments or orders, it merely provides that in the case of certain judgments or orders an appeal only lies with leave. In Di Savino v Nedbank Namibia Ltd the Supreme Court confirmed, amongst others, what was said in Shetu and held that two requirements must be met. Firstly, the judgment or order must be appealable. Secondly, if it is interlocutory, leave to appeal must first be obtained even if the nature of the judgment or order satisfies the first requirement.
The parties agree that the 14 October 2024 order is an interlocutory order requiring leave to appeal but they disagree on its appealability. The applicants contend it is appealable. The respondents’ position is that it is not appealable at all (not even with the court’s leave).
It is trite that an appealable judgment or order has three attributes. First, it must be final in effect and not susceptible to alteration by the court of first instance. Second, it must be definitive of the rights of the parties (it must grant definitive relief). Third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
The parties agree that the order has the first attribute in that it is final in effect and not susceptible to alteration by this court. The court accepts that position. The parties disagree on whether the order has the second and third attributes. The applicants contend it does, the respondents argue it does not.
The second attribute is that the order must be definitive of the rights of the parties in that it must grant definitive relief. According to the applicants, the right of which the order is definitive, is the applicants’ right to reply to the allegations contained in the respondents’ additional affidavit whereby reliance is placed on NAMFISA’s decisions which the applicants attack in the appeal to the appeal board. The applicants’ argument is not directed at the order being definitive of the parties’ rights in that definitive leave was granted, but rather that the effect of the order is definitive of its procedural right in the main application because they would be precluded from replying, sufficiently, to certain allegations if the appeal to the appeal board is not finalised first. The respondents argued no right was definitively dealt with and even if the appeal to the appeal board succeeds, it would not affect whether the Anton Piller order should be confirmed or discharged (the main case between the parties).
The question should be whether the 14 October 2024 order was definitive of the applicants’ right in the stay application (their right to reply, sufficiently, to the allegations in the respondents’ additional affidavit, being the right they sought to enforce through the stay application) and whether definitive relief was granted in that regard. The answer must be yes. The order has the second attribute.
For the third attribute (that it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings), the applicants argue that if they are prevented from replying, sufficiently, to the respondents’ additional affidavit after the outcome of the appeal to the appeal board, their success in the main case would be hampered as they need the appeal’s outcome to establish the first respondent’s state of mind for confirmation of the Anton Piller order. Conversely, they argue that a successful appeal outcome would substantially weaken the respondents’ case in the main application. Thereby, they contend it disposes of a substantial portion of the relief in the main application. The respondents contend that whether NAMFISA imposed a sanction or not, is irrelevant to the first respondent’s state of mind. The respondents pointed out that the first respondent admitted wrongdoing but explained it was a bona fide mistake because they misunderstood the law. The applicants, relying on S v Blom, argue that the first respondent, operating in a regulatory environment, cannot avail itself of the ignorance of law excuse. With that argument, and the fact that the appeal outcome would not mean the rise or fall of the main application, it cannot be said that the order has the effect of disposing of at least a substantial portion of the relief in the main application. The court finds the third attribute is absent.
The applicants further rely on Marmorwerke Karibib (Pty) Ltd v Transnamib Holdings Ltd (Marmorwerke) where this court granted leave to appeal, and the Supreme Court allowed the appeal, where an obvious interlocutory order have not met all three attributes of an appealable order, but it concerned an important contentious principle. The respondents argued Marmorwerke must be put in context. They contend it dealt with the first instance court’s erroneous interpretation of certain High Court rules, and its ratio decidendi was to give context and interpretation to those rules. The respondents rely on Government of the Republic of Namibia v Fillipus (Fillipus) that central to the sound policy reasons for restricting appeals in interlocutory matters is the avoidance of piecemeal appellate disposal of litigation issues with the unnecessary expense involved. The stay application does not, in the court’s view, fall within that category. It is not the type of order that would send the main application back and forth between the appellate and first instance court as a special plea in Fillipus or an amendment in Marmorwerke.
In Marmorwerke, the Supreme Court said that:
‘While the decision of the court below may not meet all the three traditional characteristics of appealability described above, the court a quo was correct to have granted leave to appeal in an obviously interlocutory decision. It is self-evident from the reasons given for the grant of leave to appeal that the High Court was alive to the possibility that its interpretation of the relevant rules could be problematic and that the appellate court may come to a different conclusion on the matter. As earlier found, the approach to the interpretation of the relevant rules adopted by the court a quo is erroneous. The erroneous interpretation led the court to an incorrect conclusion upon which it made the order that followed. The decision is not susceptible to alteration by the court a quo. There was a final determination concerning a novel issue of importance regarding the proper approach to amendment of pleadings in the era of case management which had hitherto not been decided by our courts. In those circumstances, the decision is appealable and is properly before us.’
The court agrees with the respondents that Marmorwerke must be understood in context. The first instance court was alive to the possibility that its interpretation of the relevant rules could be problematic, and the appellant court may come to a different conclusion. The Supreme Court found the first instance court’s approach to interpreting the relevant rules was erroneous and that erroneous interpretation led the court to an incorrect conclusion whereupon its order followed. There was a final determination on an important novel issue regarding amendments of pleadings.
The court’s ‘judgment and order’ in question must also be understood in context. The basis for the stay application was that, for certain reasons (not falling under the common law grounds for stays), it was in the interest of justice to do so, and the respondents argued that such a basis does not exist in Namibian law. The applicants relied on Mokone v Tassos Properties CC and Another (Mokone) where the South African Constitutional Court said that, based on article 173 of the South African Constitution, it does not see why proceedings may not be stayed on grounds dictated by the interest of justice. Article 173 includes the provision ‘taking into account the interests of justice’ while the Namibian counterpart, article 78(4) of the Namibian Constitution, does not include such provision. The respondents relied on the Supreme Court’s caution in Menzies Aviation (Namibia) (Pty) Limited v Namibia Airports Company Limited (Menzies) against blindly following South African authorities based on the ‘interest of justice’ provision found in the South African Constitution but not in the Namibian counterpart. The applicants argued the respondents failed to deal with the part in Menzies that the court has the inherent jurisdiction to develop the common law to meet modern exigencies. By that submission, the applicants took the issue to development of the common law.
Against the backdrop of those arguments, this court said that under the prevailing common law in Namibia, it does not have the power to stay proceedings in the interest of justice. Meaning that ‘the interest of justice’ being a wide standalone ground for granting stays. Of course, in considering any recognised category as a ground for granting a stay, the court would consider whether it would be in the interest of justice to do so based on any of the recognised categories or others that may become recognised through developing the common law. In other words, ‘the interest of justice’ would be a relevant consideration when the court exercises its discretion but there is no such standalone ground.
The applicants rely on the following statements by Froneman J in Mokone for their argument that ‘the interest of justice’ was always a ground for granting a stay under the common law:
‘[79] The pre-constitutional case law in relation to whether courts have C an equitable discretion to stay proceedings in one matter until determination of a material legal point in another was at pains to separate law from equity in denying this wide equitable competence to our courts. If there is a broad theme of the Constitution, it is to unshackle our law from this painful historical dichotomy and tension between law and fairness. The Constitution demands that they run together, hand in hand. Ordinary folk assume that is the purpose of law — that it should be infused with fairness and justice. Lawyers should no longer be embarrassed to admit that there is nothing wrong with that view.
[80] The main judgment does not seek to locate the development of our E law in relation to these two issues in our new constitutional ethos, but in the common law's inherent competence to do so. I would prefer to bring the two together. Unarticulated in the common law's development were underlying notions of fairness and justice. The Constitution unashamedly tells us that we should no longer hesitate to bring the law in accord with constitutional notions of fairness and justice. Looking at agreements without baggage in favour of lessors brings equality in bargaining and good faith in the enforcement of agreements to the fore. So does the suspension of proceedings seeking to enforce rights that are subject to determination in another court. Those kinds of notions were not foreign to our common law.’
Froneman J’s statements were made in light of the South African pre-constitutional case law relating to whether courts have an ‘equitable discretion’ to stay proceedings in one matter until determination of a material legal point in another and being at pains to separate ‘law from equity’ in denying courts a wide ‘equitable competence’ to do so. He then said the South African Constitution demands that law and fairness run together. What he said does not support the applicants’ contention that ‘the interest of justice’ was always a ground for granting a stay under the common law. Froneman J in Mokone dealt with whether a court could, if it were in the interest of justice, suspend proceedings before it pending determination of a material issue in other proceedings. The ground for the stay under question was not ‘the interest of justice’. It was a material issue that was pending in other proceedings. ‘The interest of justice’ was a conclusive consideration. In other words, it was in the interest of justice to stay the proceedings on the ground that there was a material issue pending in other proceedings.
To bring the leave to appeal application within the ambit allowed in Marmorwerke, the court’s arguably incorrect finding (that under Nambian common law, the court does not have the power to stay proceedings in ‘the interest of justice’, meaning as a standalone ground as the court found) must have led it to an incorrect conclusion (incorrectly refusing the stay application). The court will now consider whether that was the case.
The basis of the stay application was unclear to the court. It was said to be brought under the common law but also that it was premised on the interest of justice requiring a stay. For that reason, the court did not stop at its arguably incorrect finding. The court went further to consider the applicants’ arguments insofar as they may fall under the common law and considered the reasons why it may be argued that the stay was in the interest of justice.
The applicants’ case was that the stay was sought to prevent the first respondent from abusing the process by using their alleged purging of unclean hands based on unlawful decisions to evade the doctrine of unclean hands to be applied. In oral argument during the stay application, reliance on the unclean hands doctrine for the stay application was not persisted with save to use it to show the first respondent’s state of mind as it is material to the case. They further argued if the main application proceeds, the appeal board’s authority may be undermined or its findings pre-empted, the court should not usurp the appeal board’s jurisdiction and conflicting judgments could ensue. The court found that the issues before the appeal board and those in the main application are different and confirmation or discharge of the Anton Piller order would have no bearing on the appeal board’s authority or finding, and their jurisdiction would not be usurped. The court also considered the requirements when deciding whether to confirm or discharge the Anton Piller order and found that the first respondent’s alleged statutory contraventions and its consequences would not arise in the main application. As stated above, the appeal outcome would not result in the rise or fall of the main application.
When the court canvassed the further reason for refusing the stay application with the applicants’ counsel, it was submitted that if the Supreme Court agrees that the court’s finding on the ‘interest of justice’ ground was wrong, the Supreme Court should be at large to consider the matter afresh. The court does not agree with that submission. Orders are appealed against not their reasons. The applicants’ counsel also submitted that this court had a wide discretion whether to grant the stay, and based on the court’s findings, it is arguable whether the court approached the matter on the basis of a wide discretion and the Supreme Court would not be bound by the court’s exercise of that discretion. In their heads of argument, it was submitted that another court may come to a different conclusion.
Whereas the court did not decide the matter only on the arguably erroneous finding, the court was not led to an incorrect conclusion by that finding. The matter at hand is therefore distinguishable from Marmorwerke and the reason why leave to appeal was granted and why the Supreme Court proceeded to hear the appeal even though the order did not have all three attributes of an appealable order.
In the court’s view, there are no circumstances why leave to appeal should be granted even though the order does not have all three attributes of an appealable order. There are other authorities of the court which makes plain that the interest of justice is considered when the court exercises its discretion whether to stay proceedings. There can be no doubt about that being the legal position. For example, in Independent Patriots for Change v President of the Republic of Namibia (IPC) this court’s full bench said the court should, where it is in the interest of the administration of justice to temporarily stay proceedings, consider granting a stay. But like it was reiterated in IPC, a temporary stay of proceedings should not be granted upon mere asking and exceptional circumstances must be present for the proceedings to be stayed because the court is expected to duly and expediently adjudicate a matter. In IPC the ground raised mero motu by the court for the stay was that the challenge before it in respect of the National Assembly election was the same as the Presidential election challenge in the Supreme Court, both challenges attacked the impugned Proclamation on the exact same basis, and a determination of its legality by the Supreme Court, which would render guidance to it and by whose decision it would be bound, would have an effect on the National Assembly election challenge before it and may result in the proceedings before it becoming unnecessary, alternatively, leaving narrow issues for consideration. The interest of the administration of justice was a conclusive consideration. In other words, it was in the interest of justice to stay the proceedings on the grounds set out above.
That takes the court back to its finding that the order does not have all three attributes of an appealable order and therefore it is not appealable at all. The leave to appeal application cannot succeed. Costs should follow the event. The instruction of senior and junior counsel for both sides was justified by the nature of the disputes which arose in the leave to appeal application, including its complexity and also the main application’s sheer volume which cannot be separated from the leave to appeal application. In those circumstances, costs should not be capped under rule 32(11).
In conclusion, the order is as set out above. |
