Court name
High Court
Case name
Kisilipile v First National Bank of Namibia Limited (Practice Directive 61)
Media neutral citation
[2019] NAHC 452
Judge
Rakow AJ

Practice Directive 61

IN THE HIGH COURT OF NAMIBIA

 

Case Title:

Niklaas T Kisilipile vs First National Bank of Namibia Limited

Case No:

HC-MD-CIV-MOT-GEN-2019/00425

Division of Court:

HIGH COURT (MAIN DIVISION)

Heard before:

Honourable Mrs Justice Rakow, AJ

Date of hearing:

31 October 2019.

Date of order:

01 November 2019

Neutral citation: Kisilipile vs First National Bank Of Namibia Limited (HC-MD-CIV-MOT-GEN-2019/00425) [2019] NAHCMD 452 (01 November 2019)

 

Having read the record of proceedings as well as submissions made by counsels for the applicants and the respondent:

IT IS HEREBY ORDERED THAT:

a)  The application is struck from the roll due to lack of urgency.

b)  The applicants must pay the costs of suit, such costs to include the costs of one instructing and one instructed counsel.

 

Reasons for orders:

[1]     The applicants approached this court on an urgent basis seeking an order to temporarily stay the sale of execution regarding Erf 1007, Koigab Street, Cimbebasia, Extension 3, Windhoek, that was due to take place on 31 October 2019 at 10h00. The sale stems from a summary judgment order granted by this court on 24 April 2019 under case number HC-MD-CIV-ACT-CON-2018/04596, in which order the court also noted that the applicants have not disclosed a bona fide defence to the respondent's claim and that there was no reason why the application for summary judgment should not be granted.  During that hearing, the applicants were afforded the opportunity to address the court and explained, according to the founding affidavit of the 1st applicant, that they could not afford to pay the instalments of the house due to the current economic situation and that they attempted to negotiate with the respondents to come to some or other understanding.

[2]    On 29 April 2019, the applicants filed an appeal with the Supreme Court, appealing against the order to declare their house executable.  This appeal was not prosecuted and in the meantime has lapsed.  The applicants filed an application for condonation together with an application to have the matter re-enrolled on 27 October 2019.   In the founding affidavit and the affidavit in support of the condonation application attached to the founding affidavit, the applicants at length attempted to explain all the steps they have taken during the process of dealing with the matter.  Unfortunately, it seems as none of these steps took the matter any further until such time as the matter became urgent and the need to file an urgent application arose.           

[3]     In the affidavit filed by the applicants regarding the urgent application, the applicants’ submitted that their failure to comply with the rules of court based on the fact that they were not abreast with the rules of court and further the procedure they were expected to follow. Further, the applicants submitted in their papers that initially they were under the impression and were advised that they had no prospects of success in that they had no other means to satisfy the debt they admitted is owed and due to the respondent, until they obtained a second opinion from counsel on record, as appointed through the office of the Directorate of Legal Aid, to which an appeal was further noted and is yet to be considered by the Supreme Court and the current urgent application being instituted before this court.

[4]       As indicated previously, summary judgment was granted against the applicants on 24 April 2019 to which an order to declare Erf 1007, Koigab Street, Cimbebasia, Extension 3, Windhoek, specially executable was granted. Similar thereto, the Registrar’s office endorsed a writ of execution on the 26th of April 2019 with respect to the order dated 24 April 2019 accordingly. At this juncture, it will suffice to say that the applicants became aware of the writ of execution on 26 April 2019. Therefore, if it is viewed objectively, approximately five months, give or take, had passed from the time of the judgement and the granting of the execution order before the urgent application being lodged on 30 October 2019 to be heard on 31 October 2019.

[5]       In explaining the gap period, the applicants submitted that they actively engaged the respondent to settle the matter out of court, which came to a naught. The applicants further submitted that it is only towards the end of May 2019 wherein they were advised that they can apply for legal aid, which due to other engagements by counsel appointed by the Directorate of Legal Aid which was granted at the end of July 2019 and in early August, they met with these legal practitioners for the first time.  A number of consultations took place but in essence, it is their case that their legal practitioner could only be attended to as from 25 October 2019 onwards, giving background as to why the urgent application was lodged at what would be considered as the eleventh hour, considering the facts of this matter.

[6]       As it has become trite, whenever applications are brought on a basis of urgency, the instituting thereof should always take place as soon as reasonably possible after the cause thereof has arisen. In Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 (HC), Maritz J (as he then was) made the following observations:

“'The Court's power to dispense with the forms and service provided for in the Rules of Court in urgent applications is a discretionary one. That much is clear from the use of the word "may" in Rule 6(12). One of the circumstances under which a court, in the exercise of its judicial discretion, may decline to condone  non-compliance with the prescribed forms and service, notwithstanding the apparent urgency of the application, is when the applicant, who is seeking the indulgence, has created the urgency either mala fides or through his or her culpable remissness or inaction. Examples thereof are to be found in Twentieth Century Fox Film Corporation and Another v Anthony Black Films (Pty) Ltd 1982 (3)  I  SA 582 (W) and Schweizer Reneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbou en Andere 1971 (1) PH F11 (T).”

The court went on further to hold that:

“It often happens that, whilst pleadings are being exchanged or whilst execution procedures are under way, the litigating parties attempt to negotiate a settlement of their disputes or some arrangement regarding payment of the judgment debt in instalments. The existence of such negotiations does not ipso facto suspend the further exchange of pleadings or stay the execution proceedings. That will only be the effect if there is an express or implied agreement between the parties to that effect.”

[7]        In Twentieth Century Fox Films Corporation supra; and Schweizer-Renecke Vleis Maatskappy (Edms) Bpk v Minister van Landbou en Andere 1971 (1) PH F11 (T), the court held the view that:

 "when the applicant, who is seeking the indulgence, has created the emergency, either mala fides or through her culpable  remissness or inaction, he cannot succeed on the basis of urgency.

[8]       Therefore, the fact that the applicants tried to settle the matter with the respondents in effect does not alter the position the respondent took as per its writ of execution served on the applicants on 26 April 2019. Further, it can be considered that the applicants had five months, give or take, to try all avenues to prevent the sale in execution going forward on 31 October 2019. If the applicants, as they submit in their founding affidavit, indicate that they were made aware that they could apply for legal aid towards the end of May 2019, to which such was granted, the further delay in seeking relief against the execution order of April 2019, for a further four months depreciates the urgency in the applicants’ case, regardless of the failed attempts in settling as well as the attempted appeal lodged in the Supreme Court that was considered withdrawn due to non-compliances with court rules.

[9]      As was held in Bergmann v Commercial Bank of Namibia Ltd and Another above, the urgency in the application became self-created the longer the applicants delayed in bringing an urgent application before this court. Although it is clear that the delay was not mala fides or remissness in nature, the gap between the time when the cause of action bringing rise to this application arose and the application as present is too great to consider the applicants’ application as urgent. The applicants took a gamble in approaching the Supreme Court without first obtaining the services of a legal practitioner and due to applicants’ not complying with the rules of court, further delaying the matter altogether.  And in the event that they obtained legal representation, it took still more than two months to make an attempt to re-enroll the appeal for hearing in the Supreme Court.

[10]        As the applicants submit, the Directorate of Legal Aid approved the applicants’ legal aid application already on 30 July 2019 by appointing the offices of Nixon Marcus Public Law Office and the relevant papers were delivered on 31 July 2019. Rather, objectively speaking, the applicants’ were legally represented as from August 2019 to date, therefore the urgency brought about in this matter is at most self-created in that it was clear that there was a lack urgency at the side of the legal representatives of the applicants to deal with this matter as soon as possible. Urgency primarily diminished as negotiations and consultations proceeded until 30 October 2019, when the applicants’ took the decision to institute the urgent application.

[11]        Therefore, I decline to condone the non-compliance with the rules of court or to hear this application as one of urgency as I find that the urgency is self-created. The only issue remaining therefore is the issue of costs. The general rule is that costs should normally follow the event, however, in the present matter, the applicants’ were represented by counsel appointed by the Directorate of Legal Aid.

[12]       Section 18 of the Legal Aid Act 29 of 1990 states that '(n)o order as to costs shall be made against the State in or in connection with any proceedings in respect of which legal aid was granted and neither shall the State be liable for any costs awarded in any such proceedings'. I can therefore find no provision to indicate that the clients themselves cannot be held responsible for costs. 

[13]        In the result, the urgent application is struck from the roll. The applicants must pay the costs of suit, such costs to include the costs of one instructing and one instructed counsel.

____________

E Rakow

Acting Judge

 

Judge’s signature

Note to the parties:

 

Not applicable.

Counsel:

Applicants

 Respondent

Ms Mondo

On instruction of the Directorate of Legal Aid

Ms Campbell

On instruction of Fisher, Quarmby & Pfeifer