Court name
High Court Main Division
Case number
APPEAL 204 of 2012
Title

Hamutenya v Shipanga NO and Another (APPEAL 204 of 2012) [2013] NAHCMD 164 (13 June 2013);

Media neutral citation
[2013] NAHCMD 164
Coram
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 204/2012








In the matter between:








ESTHER NDAPEWA
KANDJELE HAMUTENYA .......................................APPLICANT








and








MARTIN SHIPANGA N.O



(IN HIS CAPACITY AS A
TRUSTEE OF M&N



SHIPANGA FAMILY TRUST)
.......................................................FIRST
RESPONDENT



TUSK INVESTMENT (PTY)
LTD .............................................SECOND
RESPONDENT








Neutral citation:
Hamutenya v Shipanga (A 204/2012) [2013] NAHCMD 164 (13 June
2013)








Coram: PARKER AJ



Heard: 27 May
2013



Delivered: 13
June 2013








Flynote:
Costs – First respondent’s points
in limine argued fully
by both counsel and there is delivered a fully reasoned judgment –
In those circumstances costs should not be ordered to be determined
in due course or to be in the cause.








Summary: Costs –
First respondent raised points in limine – Court
instructed counsel to argue those points before the merits of the
application were heard – Court held that since the points were
argued fully by both counsel and a fully reasoned judgment has been
delivered it is reasonable and fair that in those circumstances costs
are not ordered to stand over for determination in due course or to
be in the cause.








Flynote: Practice
– Applications and motions – Points in limine
raised by the first respondent – Points concern non-service of
process and non-joinder of certain trustees – Court found that
when it granted a rule nisi in an earlier proceeding the court
had condoned the applicant’s non-compliance with the rules –
Court found further that that order was a final order and the court
has no jurisdiction to set aside its own order, but certain
exceptions not present in casu – Court dismissing points
in limine with costs.








Summary:
Applications and motions – Points in limine raised by
first respondent – First point concerns non-service of process
on respondents and the second non-joinder of certain trustees –
In an earlier proceeding when a rule nisi was granted the
court had made an order condoning the applicant’s non-compliant
with the rules, including the non-service and non-joinder –
Court found that para 1 of that order which condoned the
non-compliance with the rules is a final order and the court has no
jurisdiction to set aside that order – Court held that, bar
certain exceptions, a judge of the court may not sit in judgment over
a decision of another judge of the court on essentially the same
facts and issues between the same litigants – Court held
further that in the present proceeding none of the exceptions to this
principle (eg the court’s power to rescind its own judgment) is
applicable – Accordingly points in limine dismissed with
costs.










ORDER










(a) The first
respondent’s points in limine are dismissed with costs
which include the costs of one instructing counsel and one instructed
counsel.








(b) The legal
representatives of the parties must attend a status hearing in open
court at 09h00 on 20 June 2013 for the purpose of the managing judge
determining the further conduct of the matter.










JUDGMENT










PARKER AJ:








[1] In this proceeding the first
respondent has raised points in limine in terms appearing in
paras 5 et al of the first respondent’s answering affidavit;
and they concern ‘non-service’ of process on the first
respondent and ‘non-joinder’ of certain trustees as
parties to the application. Mr Khama represents the applicant, and Mr
Jones the first respondent. I am grateful to both counsel for their
industry, particularly in bringing to the attention of the court
authorities on the points under consideration.








[2] The point on ‘non-service’
concerns the granting of an order by the court, per Van Niekerk J, on
1 September 2012 (‘the order’) in which the first
respondent’s contention is that the applicant did not comply
with the rule of court on service of process and yet the court
granted the order.








[3] For my present purposes, I should
say that, with respect, I do not give any deep look at Mr Jones’s
submission on the distinguishing features of a ruling, a judgment and
an order. Counsel’s submission is labour lost. It is otiose to
garnish this judgment with a discussion on what a ruling is, what a
judgment is and what an order is. What should be clear to any
reasonable and careful reader of the decision that my Sister Van
Niekerk J made is that, as appears in the chapeu of the formulation
of the decision, the learned judge ‘ordered’ the things
that are contained in paras 1, 2 and 3 of the order. Pace Mr
Jones, the decision that the court made on 1 September 2012 amounts
to an order through and through. There was a distinct application by
the applicant by notice of motion for a definite relief in the notice
of motion. (See Dickinson and Another v Fisher’s Executors
1914 AD 424, approved by the Supreme Court in Shetu Trading v
Tender Board of Namibia
2012 (1) NR 162.) The court’s
decision, therefore, as I have decided amounts to an order.








[4] Para 1 of the order
reads:








That
the applicant’s non-compliance with the requirements related to
forms and service
is
hereby condoned

and the matter is heard as one of urgency as contemplated in Rule
6(12) of the Rules of this Honourable Court.’
(Emphasis
added)








And the chapeu of para 2
reads:








That
a rule
nisi
is hereby issued calling upon the respondents to show cause, if any,
on the 28
th
September 2012 at 10:00 why an order in the following terms should
not be made.’








And it consists of
subparas 2.1, 2.2, 2.3 and 2.4. Doubtless, para 3 is the paragraph
that settles conclusively the point under consideration. It reads –
significantly:








That
the orders in prayers 2.1, 2.2, 2.3 and 2.4 shall operate with
immediate effect pending the finalisation of this application.’








[5] It should also be
equally clear to any reasonable and careful reader that para 1 of the
order that my Sister Van Niekerk made is a final order; so is para 3.
The formulation of para 1 points irrefragably to such inevitable
conclusion; and the relevant clause in that paragraph is ‘is
hereby condoned’. It does not say condoned prima facie or that
the condonation granted is to ‘operate with immediate effect
pending the finalization of this application’, as it says about
paras 2.1, 2.2, 2.3 and 2.4, as aforesaid. Furthermore, as Mr Jones
admitted – unwittingly, I suppose – on the return date
the judge seized with the matter would decide whether to confirm the
rule nisi or discharge it. And counsel admitted also that in
that regard para 2 of the order would come into play. Even without
counsel’s wise admission, which had to be drawn from him after
a considerable length of time and much debate, para 3 of the order –
as I have found previously – says so.








[6] These reasoning and
conclusions lead me to the next level of the enquiry. Mr Jones argued
with great zeal and verve that my Sister Van Niekerk J gave the order
in the absence of the first respondent. And for counsel that means
that the first respondent’s constitutional right to a fair
trial was breached. That is Mr Jones’s bold contention. What Mr
Jones fails to see is that what in effect Mr Jones is seeking to
achieve by bringing in the alleged unconstitutionality of that order
is that he is asking the High Court to review and set aside the order
of the High Court, per Van Niekerk J, that is, the court’s own
order, for an alleged violation of the right to a fair trial.








[7] In this regard, it
has been said that –








a
judge of the High Court may not sit in judgment over a decision of
another High Court judge on essentially the same facts and issues
between the same litigants. Nor can the High Court review its own
decision under those circumstances. Subject to a few well-known
exceptions to the rule, the court is functus officio once it has
pronounced its order in the matter and cannot correct, alter or
supplement it. One of the recognized exceptions to this principle is
in the case of a rescission of a judgment. The power to rescind one’s
own judgment is an exception to this rule. And the grounds of
rescission are very narrowly specified. Outside of these grounds, an
aggrieved litigant must challenge any irregularity in the proceedings
which gave rise to the order by way of appeal or, if this court has
assumed review jurisdiction in the matter, by way of review to the
Supreme Court under s 16 of the Supreme Court Act 15 of 1990.’








(See
Mukapuli v SWABOU Investment 2013
(1) NR 238 (SC) at 241A-D, per Ngaobo AJA who wrote the unanimous
judgment of the court.)








[8] The learned acting
judge of appeal continued at 242D-I:








A
judge of the high court does not have the jurisdiction to review
earlier proceedings between the same or essentially the same parties
before another judge of the high court. The court that has the legal
authority to adjudicate the complaint by the appellants that the high
court violated their fundamental rights to a fair trial is the
Supreme Court.















A
judge of the high court has no jurisdiction to review the
constitutionality of the earlier proceedings in the same litigation
before another judge of the high court. The remedy of a litigant who
alleges that a high court has violated his or her fundamental right
is either to appeal to the Supreme Court which has the power to hear
appeals from the high court, including appeals which involve the
interpretation, implementation and upholding of this Constitution and
the fundamental rights and freedoms guaranteed by the Constitution or
take those proceedings to the Supreme Court after compliance with the
requirements of s 16 of the Supreme Court Act 1990.’








[9] It is as clear as
daylight and irrefragable – I must signalize – that the
applicant’s non-compliance with the rules of court, including
the rule on service and the rule on non-joinder, was condoned by the
court when it granted the order. And I do not have the jurisdiction
to review the earlier proceeding that culminated in the granting of
the order. (See Mukapuli loc. cit.) For all the aforegoing
ratiocination and conclusions, I hold that the first respondent’s
points in limine have no merit; not a modicum of merit, I
should say, and so, I respectfully reject them.








[10] As respects costs; I
should say that the points in limine were argued fully by Mr
Khama and Mr Jones for a like period that is normally taken by most
counsel to argue some applications before the court, and, what is
more, there is delivered a fully reasoned judgment thereanent. That
being the case, I think it is reasonable and fair that costs are not
ordered to stand over for determination at the hearing of the
application in due course or to be in the cause.








[11] For these reasons, I
make the following order:









  1. The first respondent’s
    points in limine are dismissed with costs which include the
    costs of one instructing counsel and one instructed counsel.










  1. The legal
    representatives of the parties must attend a status hearing in open
    court at 09h00 on 20 June 2013 for the purpose of the managing judge
    determining the further conduct of the matter.
























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



C Parker



Acting Judge




























APPEARANCES








APPLICANT : D Khama



Instructed by Sibeya &
Partners Legal Practitioners, Windhoek













FIRST RESPONDENT : J P R
Jones



Instructed by GF
Köpplinger Legal Practitioners, Windhoek













SECOND RESPONDENT : No
appearance