Court name
High Court Main Division
Case name
Standard Bank Namibia Limited v Gertze
Media neutral citation
[2015] NAHCMD 144
Judge
Parker AJ










REPUBLIC OF NAMIBIA




HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: I 3614/2013





DATE: 18 JUNE 2015





In the matter between:





STANDARD BANK NAMIBIA
LIMITED........................................................................PLAINTIFF





And





RONNIE
GERTZE...........................................................................................................DEFENDANT





Neutral citation: Standard Bank
Namibia Limited v Gertze (I 3614-2013) [2015] NAHCMD 144 (18 June
2015)





Coram: PARKER AJ





Heard: 11 June 2015





Delivered: 18 June 2015





Flynote: Applications and motions –
Defendant failing to comply with order of court to file amended plea
to particulars of claim in an action within a time limit –
Defendant rather launching an application – Court found that
applicant failed to comply with court order and concluded that he was
accordingly barred – Court held that the principle in Christian
v Metropolitan Life Namibia Retirement Annuity Fund and Others 2008
(2) NR 753 (SC) about pleadings filed by lay persons representing
themselves not to be taken too far to cover situations where a rule
of court or an order of the court has not been complied with at all –
Relying on Kalenga Iyambo v S Case No. CA 165/2008 (Unreported) court
held that lay litigants representing themselves are just as much
under an obligation as those represented by counsel to comply with
orders of court – Invoking the rules of court respecting
consequences following upon non-compliance with the rules or orders
of the court, defendant’s application was dismissed with costs.





Summary: Applications and motions –
Defendant failing to comply with order of court to file amended plea
to particulars of claim in an action within a time limit –
Defendant rather launching an application – Court found that
applicant failed to comply with court order was accordingly barred –
Court held that the principle in Christian v Metropolitan Life
Namibia Retirement Annuity Fund and Others 2008 (2) NR 753 (SC) about
pleadings filed by lay persons representing themselves not to be
taken too far to cover situations where a rule of court or an order
of the court has not been complied with at all – Relying on
Kalenga Iyambo v S Case No. CA 165/2008 (Unreported) court held that
lay litigants representing themselves are just as much under an
obligation as those represented by counsel to comply with orders of
court – Defendant gave no explanation satisfactory to the court
for failure to comply with the court order which he acquiesced in and
which he informed the court he understood – Invoking the rules
of court respecting consequences following upon non-compliance with
the rules or orders of court, defendant’s application was
dismissed with costs.





ORDER





(a) The application filed on 10 June
2015 is dismissed with costs, including costs of one instructing
counsel and one instructed counsel.





(b) The plaintiff’s legal
practitioner and the defendant in person, if unrepresented by
counsel, must attend a status hearing this day (18 June 2015) at
08h30 at which the court shall determine the further conduct of the
matter.





JUDGMENT





PARKER AJ:





[1] In July 2014 the defendant, who
represents himself, launched an application in terms of rule 61 of
the rules of court. The application was heard on 18 March 2015 and
was struck from the roll, and reasons for the ruling is contained in
a judgment delivered on 31 March 2015. It was ordered then that the
‘plaintiff’s legal practitioner and the defendant in
person (if unrepresented) must at 08h30 on 30 April 2015 attend a
status hearing to determine the further conduct of the matter’.
As respects the status hearing on that date the following status
hearing order was made:





(a) The defendant to file amended plea
to the particulars of claim on or before 20 May 2015.





(b) The legal representatives or
parties in person (if unrepresented) must attend a status hearing at
08h30 on 11 June 2015 to determine the further conduct of the matter.





[2] Upon enquiry from the court then,
the defendant informed the court that he understood the order.
Meanwhile, without any explanation – satisfactory to the court
– why the 30 April 2015 order has not been complied with, the
defendant launched this application. The compliance with the order
(as I say, in particular para 1 of it) is important. It was to enable
the court on that day (11 June 2015) to direct the parties to the
next step in the proceeding in the judicial case management process.





[3] Mr Van Vuuren, counsel for the
plaintiff, submitted that the defendant has not complied with the 30
April 2015 order (in particular para 1 of the order), an order which
the defendant acquiesced in. For that reason, counsel submitted that
the defendant should be barred from doing so, and the matter should
proceed to pre-trial conference; and thence to trial.





[4] As I understand the defendant in
his submission, the defendant submitted that the plaintiff has no
case. I understood him to say that he has a good and bona fide
defence to the claim. If that is his position, I would have thought
that the defendant would want his day in court promptly in a trial
where he would have the opportunity to defend the claim. Besides, in
that event, before the trial, the defendant would have the
opportunity to set out in the parties’ proposed pre-trial
order, together with the plaintiff’s legal practitioners, the
dispute on issues of law and issues of fact that in his view divide
them for the court’s adjudication at the trial. But then when
Mr Van Vuuren submitted that if that was what the plaintiff wanted,
which incidentally was exactly what the plaintiff also desires, that
is, for the matter to proceed to trial promptly, then that being the
case, the defendant should withdraw the application. The defendant
was not prepared to do so, necessitating the determination of the
plaintiff’s preliminary objection at the threshold, that is,
the submission by Mr Van Vuuren that as a consequence of the
defendant’s non-compliance with the 30 April 2015 order, the
defendant is barred, and that the application should be struck and
the matter proceed to pre-trial conference; and thence to trial.





[5] I have considered the papers and
the submission of Mr Van Vuuren and that of the defendant. In this
regard, I have also taken counsel from the holding by the Supreme
Court that pleadings prepared by lay persons representing themselves
ought to be construed generously and in the light most favourable to
such litigants, and in that regard it is the substance of the
pleadings not the form in which the pleadings have been formulated
that ought to be considered. (Christian v Metropolitan Life Namibia
Retirement Annuity Fund and Others 2008 (2) NR 753 (SC). But, I said
in Heita v The Minister of Safety and Security (A 380/2013) [2013]
NAHCMD 330 (8 November 2013), para 4 -





‘the (Supreme Court) proposition
should not be taken too far to cover situations where a rule of court
has not been complied with at all …’





Damaseb JP states the position in even
starker terms thus in Kalenga Iyambo v S, Case No. CA 165/2008, para
10:





‘What we want to stress is that
lay litigants are just as much under an obligation as those
represented by Lawyers to follow the rules of court, and cannot, as
they please, (fail to) comply with the rules of court.’





[6] In the same vein, lay litigants who
represent themselves are just as much under an obligation as those
represented by counsel, and so, they cannot, as they please, fail to
comply with orders of the court. If they do, as is in the instant
matter, the consequences set out in the rules for such non-compliance
should follow; as they do in the present proceeding.





[7] Based on these reasons, the
application is truck from the roll. It remains to consider the
question of costs. In the judgment delivered on 31 March 2015, I did
not award costs to the plaintiff, albeit, the plaintiff was
successful. I gave reasons based on the considerations I articulated
there for my decision. The same considerations do not exist in the
instant proceedings. Therefore, in the instant proceedings, costs
should follow the event accordingly, as they do.





[8] In the result, I make the following
order:





(a) The application filed on 10 June
2015 is dismissed with costs, including costs of one instructing
counsel and one instructed counsel.





(b) The plaintiff’s legal
practitioner and the defendant in person, if unrepresented by
counsel, must attend a status hearing this day (18 June 2015) at
08h30 at which the court shall determine the further conduct of the
matter.





C Parker





Acting Judge







APPEARANCES





PLAINTIFF : A Van Vuuren


Instructed by Behrens &
Pfeiffer, Windhoek





DEFENDANT: In Person