Court name
High Court Main Division
Case name
Neves and Another v Arangies and Another
Media neutral citation
[2013] NAHCMD 135
Judge
Miller AJ













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I
3785/2012



In the matter between:








JORGE MANUEL BATISTA
NEVES .......................................................1ST
PLAINTIFF



MARIA ALZIRA ALVES
BATISTA NEVES
............................................
2ND
PLAINTIFF



and



RAINER ARANGIES
............................................................................1ST
DEFENDANT



THE COUNCIL FOR THE
MUNICIPALITY OF TSUMEB ...................2ND
DEFENDANT








Neutral citation:
Neves v Arangies (I 3785/2012) [2013] NAHCMD 135 (20 May
2013)








Coram: MILLER AJ



Heard: 17 May 2013



Delivered: 20 May
2013















ORDER





The application is
dismissed. The applicants must respond to the respondents request for
further particulars within 15 court days from the date of this order.
The applicants are ordered jointly and severally to pay the
respondents costs which will include the costs of one instructing and
one instructed counsel.










JUDGMENT










MILLER AJ :








[1] This is an
application brought in terms of Rule 30 of the Rules of this Court.








[2] The matter arose in
the following way:








The applicants as
plaintiffs issued summons against the respondent as the first
defendant and the Council for the Municipality of Tsumeb as the
second defendant on 30 November 2012. They seek the following relief:








A.
AD
BOTH THE PRINCIPAL AND ALTERNATIVE CLAIMS








1.



1.1.
An order declaring the plaintiffs have acquired a servitude of right
of way of at least 4 metres wide along the route as indicated on
annexures “A” and “B” annexed hereto over
first defendant’s property situated at Erf 646 (formerly open
space) (a portion of Erf 56 open space), Susan Nghidinwa Street,
Tsumeb, Republic of Namibia in terms of section 6 of Act 68 of 1969.








1.2.
An order declaring that plaintiffs have acquired a servitude of right
of way of 5 square metres immediately adjacent to the connecting
boundaries of the erven of the plaintiffs and the defendants over the
second defendant’s property situated at Erf 56 (open space),
Tsumeb, Republic of Namibia as indicated on annexure “B”.








1.3.
An order that defendants take the necessary steps to register the
rights of way over the routs indicated in paragraph 11 above, or over
such route as the Honourable Court may determine, over their
properties mentioned above.








1.4.
Should defendants fail to take the necessary steps pursuant to
paragraph 1.3 above within one month of this order, the sheriff is
authorized to perform all the necessary acts on defendants’
behalf to effect registration of the rights of way as aforesaid.








1.5.
An order that plaintiffs pay all the costs incurred (as tendered) in
respect of the surveying and registration of the servitudes mentioned
in paragraphs 1.1 and 1.2 above.








B.
AD ONLY THE ALTERNATIVE CLAIM








2.
Ordering the plaintiffs to pay the defendants as follows:








2.1.
N$25, 920-00 (twenty five thousand five hundred and twenty Namibian
dollars) to first defendant;



2.2.
N$2 250-00 (two thousand two hundred and fifty thousand Namibian
dollars) to second defendant.








C.
IN ANY EVENT








3.
Costs of suit (against second defendant only in the event of it
opposing the relief sought against it).



4.
Further and/or alternative relief.’








[3] The respondent as
well as the second defendant filed notices of their intention



to defend the matter. In
the case of the respondent that notice was filed on 11 January 2013.
Therefore and on 22 February 2013 the respondent filed a Request for
Further Particulars to the applicants particulars of claim.








[4] It is not in dispute
before that the request was filed outside the time period provided
for in the Rules and is in that sense irregular. This prompted the
applicants to file their application in terms of Rule 30 on 5 March
2013 in which they seek the following relief:








1.
That first defendant’s “FIRST DEFENDANT’S REQUEST
FOR FURTHER PARTICULARS TO PLAINTIFFS’ PARTICULARS OF CLAIM”
served on plaintiffs constitutes an irregular and/or improper and/or
impermissible step as envisaged by the provisions of Rule 30, read
further with the provisions of Rule 21 of the Rules of the above
Honourable Court.



2.
That first defendant’s “FIRST DEFENDANT’S REQUEST
FOR FURTHER PARTICULARS TO PLAINTIFFS’ PARTICULARS OF CLAIM”
be struck and set aside.



3.
That first defendant be ordered to pay the costs of this application,
including the costs of one instructing and two instructed counsel.



4.
Further or alternative relief.’








[5]
The applicable legal principles which guide me in matters of this
kind appear from the judgment in
Namibia
Development Corporation v Aussenkehr Farms (Pty) Ltd

2012 (2) NR 703 and I refer to the following passage:








This
debate is apparently still raging on in South Africa, but was
addressed in Namibia by Silungwe AJ in
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC
2007
(2) NR 675 (HC).
The
facts are these. The plaintiff served summons on the wrong party, but
nevertheless, and with the knowledge of the wrong citation, obtained
default judgment. Silungwe AJ made a number of pertinent observations
regarding the application in terms of rule 30. These were:









  1. When
    an irregular step has been taken, it cannot simply be ignored, but
    application should be made to set the proceedings aside.



  2. The
    court has a discretion to refuse to set the proceeding aside even if
    an irregularity is established.



  3. The
    general rule is that in a proper case, the court is entitled to
    overlook any irregularity which does not occasion any substantial
    prejudice. This approach was subsequently confirmed by this court.



  4. Prejudice
    is prerequisite for success in an application in terms of rule 30.



  5. Where
    an irregular step or proceedings causes no prejudice, the best thing
    to do would be to ignore it, because a rule 30 application will in
    any event be dismissed.



  6. In
    a proper case, the court may condone an irregularity or allow the
    party in default an opportunity to cure the defect, as long as such
    condonation does not unfairly prejudice the party which applied for
    the irregular step to be set aside. Although the court may make use
    of its inherent jurisdiction to condone such non-compliance where
    justice so demands, the exercise of such jurisdiction remains
    subject to the requirement, and safeguard, that good cause be
    shown.’









[6] The focal point in
the Heads of Argument filed by Mr. Wylie who appeared for the
applicants and Mr. Barnard who appeared for the respondents and in
their respective submissions during the course of the hearing was the
aspect of substantial prejudice. The applicants accepted, rightly so,
that in order for them to succeed they had to establish that they
were substantially prejudiced by the fact that the request was filed
some 15 court days late.








[7] In his Heads of
Argument Mr. Wylie submitted that substantial prejudice was suffered
by the applicants because the matter was delayed by the late filing.
He stated his argument in the following way:








19.
It is humbly submitted that this irregularity does substantially
prejudice applicants/plaintiffs in that they are not tasked to deal
with a request for further particulars that has been filed far out of
time. Furthermore, respondent/first defendant is delaying and abusing
the judicial process by extending the time period within which he is
allowed to file his plea.



20.
Justice delayed, is justice denied – and a delaying and denial
of justice is definitely substantially prejudicial to
applicants/plaintiffs.’








[8] Mere delay in itself
does not always amount to substantial prejudice to either of the
parties. What needs to be shown is in what manner the delay causes
substantial prejudice. Nothing of that sort was placed before me.








[9] During the course of
the hearing Mr. Wylie added a second string to his bow. If I
understood him correctly, the argument is that the applicants are
prejudiced because there is uncertainty as to the status of the
pleadings which makes it difficult to determine the way forward. That
simply cannot be so.








[10] The options open to
the applicants were twofold. If they are not substantially
prejudiced, the irregularity of the step taken should be ignored and
the request for further particulars should be responded to. The
second option is to bring an application in terms of Rule 30. That
course comes with the concomitant duty and risk perhaps that
substantial prejudice will have to be established.








[11] On neither basis can
there be any prejudice.








[12] At best the option
exercised may prove to be the wrong option, but that is an entirely
difficult matter.








[13] In my view the
applicants cannot be said to have suffered any prejudice, let alone
substantial prejudice.








[14] In the result I make
the following orders:









  1. The application is
    dismissed.



  2. The applicants must
    respond to the respondents request for further particulars within 15
    court days from the date of this order.



  3. The applicants are
    ordered jointly and severally to pay the respondents costs which
    will include the costs of one instructing and one instructed
    counsel.







































----------------------------------



P J MILLER



Judge





























































































APPEARANCES








PLAINTIFFS
: T WYLIE



Instructed by Neves Legal
Practitioners













DEFENDANTS: T BARNARD



Instructed by Mueller
Legal Practitioners