Court name
High Court Main Division
Case name
Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands And Resettlement
Media neutral citation
[1970] NAHCMD 118
Judge
Parker AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 21/2015


In
the matter between:


KAMBAZEMBI
GUEST FARM CC


t/a
WATERBERG
WILDERNESS
....................................................................................APPLICANT





And





THE
MINISTER OF LANDS AND
RESETTLEMENT................................FIRST
RESPONDENT


THE
MINISTER OF AGRICULTURE, WATER


AND
FORESTRY..........................................................................................SECOND
RESPONDENT


THE
MINISTER OF
FINANCE.....................................................................THIRD
RESPONDENT


THE
CHAIRPERSON OF THE LAND REFORM


ADVISORY
COMMISSION.......................................................................FOURTH
RESPONDENT


THE
COMMISSIONER FOR INLAND
REVENUE....................................FIFTH
RESPONDENT


THE
ATTORNEY-GENERAL OF
NAMIBIA...............................................SIXTH
RESPONDENT


Neutral
citation: Kambazembi Guest Farm CC t/a Waterberg Wilderness v The
Minister of Lands and Resettlement
(A 21/2015) [2016] NAHCMD 118
(21 April 2016)


Coram:
PARKER AJ


Heard:
5 April 2016


Delivered:
21 April 2016


Flynote:
Practice – Applications and motions – Interlocutory
application – Court held that the relief sought by the
applicant is an interlocutory order through and through – It
matters tuppence whether the order concerns an application to review
and set aside a decision of respondents and a constitutional
challenge in the main application – Accordingly, court held
that the instant application is an interlocutory application and
therefore subject to the rule 32(9) and (10) of the rules of court –
Court held further that whether rule 32(9) and (10) has been complied
with is a question of fact – And court found that it has not
been established factually that rule 32(9) and (10) has been complied
with – Applying Mukata v Appolus (I 3396/2014) [2015]
NAHCMD 54 (12 March 2015) court held that non-compliance with rule
32(9) and (10) is fatal – Consequently, court upheld the point
in limine and struck the application from the roll with costs
– Principle of publicum ius privatorum pacis mutari non
potest
applied.


Summary:
Practice – Applications and motions – Interlocutory
application – Applicant launched an application to review and
aside a decision of respondents and a constitutional challenge
application – Meanwhile applicant brought application to compel
respondents to deliver reasons for the decision, taken by respondents
and to produce certain documents – Court found that the fact
that ‘the reasons and documentation’ sought concern ‘a
case for constitutional review’ matters tuppence – Court
found application was for an interlocutory order through and through
and therefore was an interlocutory application – Consequently,
rule 32(9) and (10) applied – Court found that it has not been
established factually that rule 32(9) and (10) was complied with –
Consequently, court upheld point in limine and struck the
application from the roll with costs.


ORDER


The
application is struck from the roll with costs, including costs of
one instructing counsel and one instructed counsel.


JUDGMENT





PARKER
AJ:


[1]
There is filed with the court an application (main application) for
the review and setting aside of ‘the assessment issued to the
applicant for the payment of land tax pursuant to Act 6 of 1995 and
the regulations issued under Government Gazette (No.) 120 of 3 July
2007 payable on or before 28 February 2015’. The application in
the instant proceeding, ie
an
interlocutory application
, concerns
an application to obtain a complete record and reasons for the
decision sought to be reviewed and set aside in the main application.
(Underlined and italicized for obvious emphasis)


[2]
The respondents have moved to reject the main application and the
instant interlocutory application. The latter application is the
burden of this judgment.


[3]
The respondents have raised a point
in
limine
, and the long and short of it is
that before launching the interlocutory application the applicant
failed to comply with the peremptory provisions of rule 32(9) and
(10); and such failure is fatal. It behoves me to determine this
point
in limine
at the threshold because a decision upholding the point will dispose
of the interlocutory application.


[4]
In my view, the provisions of rule 32(9) and (10) are as clear as day
and they are unambiguous; and so, I do not think one is entitled to
add any words to them by implication to attain a purpose which is
outwit the intention of the rule maker. It has been said:


Plainly,
words should not be added by implication into the language of a
statute unless it is necessary to do so as to give the paragraph
sense and meaning in context.’


(Rally
for Democracy and Progress v Electoral Commission

2009 (2) NR 793 (HC), para 7)


[5]
The provisions of rule 32(9) and (10) are clear and unambiguous; and
so no words should be added by implication to the language of rule
32(9) and (10) in order to give those provisions sense and meaning in
context. The sense and meaning in context of those provisions are
abundantly clear. And one can find the true extent and meaning of the
rule from the rules of court only. See
Namibian
Association of Medical Aid Funds v Namibian Competition Commission

(A 348/2014 [2016] NAHCMD 80 (17 March 2016), para 12. Thus,
considering the use of the word ‘must’ in rule 32(9) and
(10), there is not one iota of doubt that rule 32(9) and (10) ‘are
peremptory, and non-compliance with them must be fatal’.
(
Mukata v Appolus
(I 3396/2014) [2015] NAHCMD 54 (15 March 2015), para 6)


[6]
The applicant seeks to compel the respondents to deliver to the
applicant ‘a complete record’ and ‘reasons’
for the decision taken respecting the aforementioned assessment in
order to pursue the main application. Rule 32(9) and (10) concern
‘Interlocutory matters’ and applications for directions,
that is
all
matters, so long as they answer to the epithet ‘interlocutory’.
(Italicized and underlined for emphasis) The rules do not exempt any
interlocutory matters. That being the case, with the greatest
deference to Mr Tötemeyer SC, counsel for the applicant, it is a
sheer idle argument to put forth, as Mr Tötemeyer appears to do,
that rule 32(9) and (10) does not apply to the instant application.


[7]
I have no difficulty – none at all – in holding that in
the instant application the applicant seeks an interlocutory order
through and through. I should have said so if I had not looked at the
authorities. But when I look at
Hendrik
Christian t/a Hope Financial Services and Others v LorentzAngula Inc
and Others
Case No. A 244/2007
(Unreported), where the authorities are gathered, I feel no doubt in
holding that this application is for an interlocutory order to compel
respondents to produce documents and give reasons sought by the
applicant which have a bearing on the main application; and so, this
is an interlocutory application. And
Kambazembi
Guest Farm CC v The Minister of Lands and Resettlement

(A 295/2013) [2015] NAHCMD 128 (5 June 2015), para 12, tells us that
‘the fact that the review relief is embodied in Article 18 of
the (Namibian) Constitution, read with Article 25(1), cannot make it
different from other interlocutory application’. Thus, the fact
that the ‘reasons and documentation’ sought concern,
according to the applicant’s legal representatives, ‘a
case for constitutional review’ matters tuppence: It is of no
moment.


[8]
Accordingly, it is with firm confidence that I reject Mr Tötemeyer’s
argument that rule 32(9) and (10) does not apply to this
interlocutory matter. But that is not the end of the matter. Mr
Tötemeyer has a second bow to his string. He says if rule 32(9)
and (10) applies, then rule 32(9) and (10) has been complied with.


[9]
Doubtless, whether rule 32(9) and (10) has been complied with, is a
question of fact. There is nothing on the papers which establishes
factually that rule 32(9) and (10) has been complied with. Indeed, it
has all along been the position of the applicant and his legal
representatives that rule 32 does not apply, apparently on the basis
that it ‘is a case for constitutional review’ and it is
to complete the (main) application, and the applicant seeks an order
for the production of ‘documentation in terms of the rule of
law and/or rule 76(2)
(b)’.


[10]
The series of correspondence the applicant’s legal
representatives refer the court to (ie Annexures A-H to their letter
dated 16 April 2015, p 87 of the Bundle) do not on any legal
imagination constitute a rule 32(9) attempt to resolve any dispute as
to the delivery to the applicant of the reasons and documents the
applicant seeks. The legal representatives of applicant and the legal
representatives of respondents were, if anything, only wrangling over
the interpretation and application of rules 76(2)
(b),
76(2), 76
(b),
76(7), 76(8) and 76(9) and (10) and over the applicability of rule
32(9) and (10) to the interlocutory application.


[11]
In sum, the exchanges between Mr Visser (for the applicant) and Mr
Nekwaya (for the respondents) were nothing but a battle of wits
between these two legal practitioners. It is not the case where it is
clear on the papers that real steps were taken in line with rule
32(9) of the rules to resolve some interlocutory matter amicably. See
Blaauw’s Transport (Pty) Ltd v
Auto Truck & Coach CC
(A 96/2015)
[2015] NAHCMD 268 (12 November 2015), paras 7 and 8.


[12]
One last point; it is trite that pacts entered into by parties in
contravention of the public or general law of the country are not
enforceable (
Schierhout v Ministry of
Justice
1925 AD 417): The principle is
publicum ius privatorum pacis mutari non
potest
. It follows that any agreement
reached by the parties that rule 32(9) and (10) do not apply to the
bringing of the interlocutory application for an order to compel
respondents to give the reasons and to produce the documents is of no
force. The irrefragable fact that remains is that rule 32(9) and (10)
have not been complied with. And the matter of law that stands is
that rule 32(9) and (10) applies to the interlocutory application
brought by the applicant for the interlocutory order.


[13]
Based on these reasons the point
in
limine
on the issue of rule 32(9) and
(10) is upheld; whereupon, I make the following order:


The
application is struck from the roll with costs, including costs of
one instructing counsel and one instructed counsel.


C
Parker


Acting
Judge


APPEARANCES


APPLICANT:
R Tötemeyer SC


Instructed
by ENSafrica (Incorporated as LorentzAngula Inc., Windhoek


RESPONDENTS:
G Narib


Instructed
by Government Attorney, Windhoek