Court name
High Court Main Division
Case name
Kurtz v Kurtz and Another
Media neutral citation
[2013] NAHCMD 178
Judge
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT








Case no: A 115/2012








In the matter between:








RONALD PATRICK KURTZ
........................................................................APPLICANT








and








ERNA IRENE KURTZ (born
SIMEON) ........................................FIRST
RESPONDENT



ESSIE HERBST
.......................................................................SECOND
RESPONDENT













Neutral
citation:
Kurtz v Kurtz (A
115/2012) [2013] NAHCMD 178 (27 June 2013)








Coram: PARKER AJ



Heard: 29 May
2013



Delivered: 27
June 2013








Flynote: Practice
– Judgments and orders – Rescission of order –
Application in terms of rule 44(1)(a) of the rules –
Court finding that there was irregularity in the proceedings and the
court was not legally competent to grant the order sought to be
rescinded – Consequently the court concluded that the order was
erroneously sought and erroneously granted, and accordingly granted
the application.








Summary: Practice
– Judgments and orders – Rescission of order –
Application brought in terms of rule 44(1)
(a)
of the rules to rescind application
granted in the absence of the applicant – Court finding that
there was a clear error in the set down hearing date obviously
resulting in the absence of the applicant at the hearing –
Court found that the respondent’s counsel bore a duty to have
drawn the attention of the court to this material matter –
Court also found the court was not legally competent to grant the
order against the trust when the trust was not a party to the
proceeding – Court concluded that the applicant has succeeded
in establishing that the order was erroneously granted –
Consequently, court held that the order should be rescinded without
further enquiry and it is not necessary for the applicant to show
good cause for rule 44(1)
(a)
to apply.








Flynote: Costs:
Award of costs – Costs not to follow event where successful
party’s counsel disobeyed a court order for filing of heads of
argument.








Summary: Costs:
Award of costs – In instant case successful applicant’s
counsel failed to file heads of argument timeously – Court
found that para 20(6) of the practice directions should be invoked –
Consequently, in exercise of its discretion court refused to order
that costs should follow the event – Court accordingly made no
order as to costs.










ORDER










(a) The order granted by
the court on 7 September 2012 is rescinded.








(b) There is no order as
to costs.










JUDGMENT










PARKER AJ:








[1] The applicant, represented by Mr
Phatela, has brought an application on notice of motion in which he
seeks an order in terms appearing in the notice of motion. It is a
rescission application based on rule 44(1)(a) of the rules of
court. The first respondent (‘the respondent’) has moved
to reject the application and raises some points in limine.








[2] In his heads of argument, Mr
Dicks, counsel for the respondent, articulates the preliminary points
of objection briefly thus. At a case management conference the
applicant’s counsel undertook to file replying affidavit, which
was already overdue, on or before 20 March 2013 and so simultaneously
file an application for condonation of the late filing of the
replying affidavit. Counsel failed to file the applicant’s
replying affidavit. Furthermore, counsel failed also to file
timeously heads of argument in terms of the practice directions. Mr
Dicks submits that for the applicant’s contempt of court the
rescission application should be dismissed with costs.








[3] I find that no replying affidavit
is properly before the court; and so the court will not take
cognizance of the replying affidavit filed out of time. As to the
heads of argument; it is my view that heads of argument are for the
convenience of the presiding judge. In the instant case, I am able to
determine the application without the benefit of written heads of
argument of Mr Phatela. In any case, para 20(6) has an answer to the
issue at hand. In virtue of this provision in the practice directions
together with the reasoning and conclusions put forth in paras 4 et
al, I think it would be, unreasonable, unfair and unjudicial to
dismiss the rescission application at the threshold of these
proceedings. I would therefore determine the application on the basis
of the founding affidavit and the opposing affidavit. And I shall
invoke para 20(6) of the practice directions in dealing with Mr
Phatela’s late filing of his heads of argument.








[4] A prelude to the
present application (‘rescission application’) is briefly
this. Para 5.2 of a Settlement Agreement between the applicant and
the respondent which is incorporated in their final divorce order
records the following:








The
parties will endeavour, within 30 days from the date of the final
order of divorce, to reach an agreement as to how the estate is to be
equally divided between them, failing which the parties agree that an
independent mutually agreed upon receiver will be appointed to so
divide the joint estate with the normal functions and powers so given
to a receiver.’








[5] The parties failed to
agree as to who should be appointed receiver/liquidator. As a result,
on 11 June 2012 the respondent (applicant in that application)
brought an application in the court for the appointment of a
liquidator/receiver and other relief. The applicant (the respondent
in that application) then filed a notice of intention to oppose the
application which was set down to be heard on Friday, 22 June 2012 on
the motion court roll. It was not heard on that date. The hearing of
the application was postponed on three occasions until it was removed
from the motion court roll on 27 July 2012, apparently because it
became opposed.








[6] The respondent
restored the matter to the opposed motion roll, and it was set down
to be heard on ‘7 September 2010’. The set down hearing
date is indubitably an error. It is, therefore, significant for my
present purposes to advert to the letter under the hand of the
applicant’s legal representatives which primarily drew the
attention of the respondent’s legal representatives to this
important error. And did the respondent’s legal representatives
respond and attend to the obvious error which – as I have said
– is very important? No. They did not. They disregarded their
colleagues’ concern and rushed recklessly to court on 7
September 2012 and moved the application and obtained an order in the
absence of the applicant – for obvious reasons.








[7] The obvious reason is
that the application was set down for hearing on a date that had long
passed. The reasonable, just and decent thing the respondent’s
legal representatives should have done was to be grateful to the
applicant’s legal representatives for drawing their attention
to the wrongness of the set down hearing date and take appropriate
steps to cure the error, instead of recklessly rushing to court and
moving the application. In this regard, I respectfully reject the
respondent’s contention that when I granted the 7 September
2012 order I had condoned the error in the set down hearing date.
This contention does not accord with reality and logic. I could not
have condoned that which was not brought to my attention at all.








[8] Thus, it is my view
that the respondent’s counsel bore a duty to have brought to
the attention of the court such an important matter about the error
in the set down hearing date. If the attention of the court had been
drawn by counsel to the erroneous and misleading set down date, a
material matter on any pan scale, the court would most certainly not
have heard the application and would most certainly not have made the
7 September 2012 order. In this regard, I stated in Disciplinary
Committee for Legal Practitioners v Murorua
2012 NR 481 at 493F
that –








‘… in
England a solicitor who failed to inform the court of all material
matters within his knowledge and about which the court should have
been informed, is guilty of professional misconduct; so, too, is a
solicitor who failed to implement an undertaking given to another
solicitor and a solicitor who gave false information to another
solicitor, guilty of professional misconduct. (Halsbury’s
Laws
of England

4 ed paras 299, 304) I do not see any good reason why such acts of
misconduct should not, in terms of Part IV of the LPA (the Legal
Practitioners Act), be judged to be unprofessional conduct in Namibia
(with its unified legal profession), considering the interpretation
and application of s 31, read with s 32(1)
(b),
of the LPA which I discussed previously. Furthermore, it is my view
that the conduct of a legal practitioner that is found to be
unprofessional may also be dishonourable or unworthy conduct.’








For these reasons I find
that there was an irregularity in the proceeding in which the order
was granted.








[9] In view of what is
said in paras 3, 6, 7, 8, 10 and 11 it would (as I have intimated
previously) be unreasonable, unfair and unjudicial to dismiss the
present rescission application at the threshold of the present
proceedings. The first respondent’s point in limine is,
accordingly dismissed.








[10] A relevant point
raised on the answering affidavit, which the court cannot overlook,
and argued by Mr Phatela is this. Para 2 of the 7 September 2012
order is interwoven with some substantial parts of the order and they
concern the Kurtz family trust. It is not disputed that the parties
are trustees of the trust. It is therefore indubitably fair and
reasonable and in accordance with the rules of court for the
respondent to have joined the trust so that the trust could be heard.
The trust has a direct and substantial interest in the outcome of
that application and any order gravely and substantially affected it,
but the trust has not been joined; and so, the court was not legally
competent to have made such a deadly order in para 2 (and the related
paragraphs of the 7 September 2012 order) dissolving the trust, which
– as I have said previously – is not a party to that
application.








[11] It is trite that in
our law a court is not entitled to grant an order against a party
which is not a party to the proceedings concerned. This principle of
law is so fundamental to our notions of justice and fair trial that I
need not cite any authority in support of it. Thus, in the instant
case, I find that it was not legally competent for the court to make
the 7 September 2012 order.








[12] Accordingly, I am
satisfied that the applicant has established that the 7 September
2012 order was erroneously granted in the absence of the applicant,
within the meaning of rule 44(1)(a) of the rules of court.
Having so found the order should be rescinded; and it is not
necessary for the applicant to show good cause for rule 44(1)(a)
to apply. (H J Erasmus, Superior Court Practice, ibid., pp
B1–308–309)








[13] As respects the
issue of costs; in invocation of para 20(6) of the practice
directions, although the applicant has been successful, in the
exercise of my discretion, I decide that costs should not follow the
event.








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









  1. The order granted by the
    court on 7 September 2012 is rescinded.










  1. There is no order as to
    costs.
























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



C Parker



Acting Judge


















APPEARANCES








APPLICANT: T C Phatela



Instructed by Murorua &
Associates, Windhoek.













FIRST RESPONDENT: G Dicks



Instructed by Kirsten & Co. Inc.,
Windhoek













SECOND RESPONDENT: No
appearance