Court name
High Court Main Division
Case name
Standard Bank Namibia Limited v Gertze
Media neutral citation
[2015] NAHCMD 77
Judge
Parker AJ










REPUBLIC OF NAMIBIA





HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case no: I 3614/2013





DATE: 31 MARCH 2015





REPORTABLE





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 77 (31 March
2015)





Coram: PARKER AJ





Heard: 18 March 2015





Delivered: 31 March 2015





Flynote: Practice – Applications
and motions – Interlocutory application – Court held that
rule 32(9) and (10) of the rules are peremptory – Consequently
failure to comply with rule 32(9) and (10) is fatal and interlocutory
application falls to be struck from the roll.





Summary: Practice – Applications
and motions – Interlocutory application – Applicant
(defendant) launched application in terms of rule 61(1) of the rules
of court – Applicant failed to comply with rule 32(9) and (10)
which is peremptory – Such failure is fatal –
Consequently, application is struck from the roll.





ORDER





(a) The application in terms of rule
61of the rules is struck from the roll.





(b) Each party to pay its or his own
costs.





(c) 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.





JUDGMENT





PARKER AJ:





[1] It is one of the cases where a
brief background to the instant proceeding is apt. The plaintiff
instituted action in which it claimed the relief set out in the
particulars of claim. The combined summons was issued from the
registrar’s office on 18 October 2013. The defendant filed his
plea on 15 January 2014. The plaintiff filed a Filing Notice,
enclosing ‘Plaintiff’s Amended Particulars of Claim’
on 18 July 2014. On 23 July 2014 the defendant launched an
application in terms of Rule 61 of the rules of court on the basis
that ‘in terms of Rule 61 read with Rule 52(4), “plaintiff’s
amended particulars of claim” served on the applicant (i.e.
defendant) on 21 July 2014, constitutes an irregular and/or improper
step, and is hereby set aside’.





[2] Meanwhile, the defendant applied on
23 July 2014 to the Director: Legal Aid (in the Ministry of Justice)
for legal representation. To date the defendant has not received
legal representation from the Director: Legal Aid. That being the
case, the defendant appears in person. Mr Van Vuuren represents the
plaintiff.





[3] The plaintiff has raised a
preliminary point to the launching of the rule 61 application. The
bone and marrow of the basis of the preliminary point is that the
defendant launched the rule 61 application without complying with
rule 32(9) and (10) of the rules, when that application is an
interlocutory proceeding within the meaning of rule 32 of the rules.
Mr Van Vuuren argued the point in limine, and concluded that in the
circumstances the defendant’s rule 61 application is a nullity
and stands to be dismissed with costs, including costs of one
instructing counsel and one instructed counsel. The defendant did not
make any substantial submission in response to Mr Van Vuuren’s
submission.





[4] Rule 32 provides:





‘(9) In relation to any
proceeding referred to in this rule a party wishing to bring such
proceeding must, before launching it, seek an amicable resolution
thereof with the other party or parties and only after the parties
have failed to resolve their dispute may such proceeding be delivered
for adjudication by the court.





(10) The party bringing any proceeding
contemplated in this rule must, before instituting the proceeding,
file with the registrar details of the steps taken to have the matter
resolved amicably as contemplated in subrule (9), without disclosing
privileged information.’





[5] In holding that rule 32(9) and (10)
are peremptory provisions, I reasoned in Mukata v Appolus (I
3396/2014) [2015] NAHCMD 54 (12 March 2015), para 6 thus:





‘Considering the use of the word
“must’ in Rule 32(9) and (10) and the intention of the
rule maker as set out in Rule 1(2) concerning the overriding
objective of the rules (see The International University of
Management v Torbitt (LC 114/2013) [2014] NALCMD 6 (20 February
2014)), I conclude that the provisions of rule 32(9) and (10) are
peremptory, and non-compliance with them must be fatal.’





[6] In Mukata, having found that the
plaintiff had failed to comply with rule 32(9) and (10), the
application for summary judgment (ie the interlocutory application
which the plaintiff had launched) was struck from the roll. By a
parity of reasoning, I should strike the rule 61 application, which
is also an interlocutory proceeding, from the roll. I respectfully
decline Mr Van Vuuren’s invitation that I dismiss the
application.





[7] Furthermore, in Mukata, para 7, I
denied the defendant his costs, albeit he was successful, for the
following reasons:





‘[7] One last word; in keeping
with judicial case management process in which parties and counsel
are expected to cooperate among themselves and with the court in
order to attain expeditious and just disposal of cases by the court,
the defendant’s legal practitioner should have at an
appropriate judicial case management conference requested the court
not to set down the interlocutory application for hearing because
32(9) and (10) has not been complied with. Counsel should not wait
until during the hearing to argue that rule 32(9) and 10 has not been
complied with … For this reason, even though the defendant has
been successful, he should be denied his costs.’





[8] In the instant proceeding the rule
61 application was launched as long ago as 23 July 2014 and was set
down during a status hearing held on 30 October 2014 for hearing on
18 March 2015. Counsel should not wait until during the hearing to
argue that rule 32(9) and (10) has not been complied with by the
defendant. For this reason, just as in Mukata, the plaintiff should
be denied its costs.





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





(a) The application in terms of rule
61of the rules is struck from the roll.





(b) Each party to pay its or his own
costs.





(c) 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.





C Parker





Acting Judge





APPEARANCES





PLAINTIFF : A Van Vuuren





Instructed by Behrens &
Pfeiffer, Windhoek





DEFENDANT: In Person