Court name
High Court Main Division
Case number
APPEAL 228 of 2012
Title

Westcoast Fishing Properties v Gendev Fish Processors Ltd and Another (APPEAL 228 of 2012) [2013] NAHCMD 185 (03 July 2013);

Media neutral citation
[2013] NAHCMD 185
Coram
Geier J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








REASONS



Case no: A 228/2012








In the matter between:








WESTCOAST FISHING
PROPERTIES
.......................................................APPLICANT



and








GENDEV FISH PROCESORS
LIMITED ...........................................1ST
RESPONDENT



R HEATHCOTE SC
..........................................................................2ND
RESPONDENT













Neutral citation:
Westcoast Fishing Properties v Gendev Fish Processors Limited
(A 228/2012) [2013] NAHCMD 185 (28 June 2013)













Coram: GEIER J



Heard: 28 June
2013



Reasons: 03
July 2013








Flynote & Summary:
Practice – compliance with Practice Directive 37 –
citation of foreign case law – parties failing to comply with
Practice Directive – court analysing rationale for Practice
Directive and importance for complying therewith – court
concluding that Practice Directive was ultimately put in place as a
safeguard and to ensure the achievement of the proper adjudication of
all cases in accordance with applicable Namibian legal authorities –
as this premise was not given in the present instance – court
refusing to hear matter – matter accordingly removed from the
roll to enable counsel to comply with Practice Directive in question
-










ORDER










1. The matter is removed
from the roll due to the parties’ non-compliance with Practice
Directive 37.








2. The costs of today are
to stand over.










REASONS










GEIER J:








[1] The Consolidated
Practice Directives issued by the Judge President of the High Court
of Namibia on 2 March 2009 require where counsel in his or her heads
of argument relies on foreign authority in support of a proposition
of law that:








(a)
such counsel must certify that he or she is unable, after diligent
search, to find Namibian authority on the proposition of law under
consideration; and








(b)
whether or not Namibian authority is available on the point, counsel
must certify that he or she has satisfied himself or herself that
there is no Namibian law, including the Namibian Constitution, that
precludes the acceptance by the Court of the proposition of law that
the foreign authority is said to establish.’
1








[2]
The fundamental rationale for the Practice Directive is clear.
Although South Africa and Namibia, at date of Independence, shared,
what can generally be described as a common legal system, with a
largely similar body of statutory and common law - (as recognised in
the Constitution and in respect of which transitional provisions
where required)
2
- and
where,
since
Namibia’s Independence,
the
legal systems of Namibia and South Africa have started to diverge –
as - in each country – the respective Parliaments continued to
legislate – and where the courts continued to hand down
judgments, in a legal environment that thus continued to change
accordingly - it became important to take into account the developing
differences,
so
that the general body of jurisprudence of this court would be
developed in accordance and with reference to the particular- and
often different legal developments which had -

and
were occurring in each respective country.








[3] When I therefore
noticed, during my preparation for the hearing, from the Heads of
Argument, filed in this case, that counsel, for both parties, had
relied exclusively on South African authority, I felt that this
matter was not ripe for hearing.








[4] The court thus raised
the issue of the parties’ non-compliance with Practice
Directive 37 with counsel at the hearing of this matter. Both counsel
– being foreign counsel - confessed that they were not aware of
the requirements set by the Practice Directive, although both parties
had also engaged the services of Namibian legal practitioners, albeit
on a correspondent basis only. Inexplicably the locally based
practitioners had obviously failed to bring this requirement to
counsels’ attention.








[5]
I should add that Mr Fitzgerald SC, who appeared with Mr Traverso, on
behalf of the first respondent, informed the court that they had
spent time,
the
previous day,
studying
and acquainting themselves with the applicable Namibian case law,
which fact Mr Fitzgerald demonstrated with reference to the
Shikunga
matter3.








[6]
I nevertheless indicated to counsel that I was not prepared to hear
the matter in the circumstances particularly as there were indeed a
number of applicable Namibian authorities available on the various
issues raised by the parties in their heads of argument.
4








[7] While I made it clear
to counsel that I might have condoned a lesser degree of
non-compliance in different circumstances, I was not prepared to do
so in a case where not a single Namibian authority had been referred
to in the heads of argument by both the parties.








[8] I also tried to
emphasise the importance of compliance with the Practice Directive in
question as it is clearly incumbent on this court to base its
decisions on the applicable Namibian authorities.








[9] Although a court is
probably never totally absolved from conducting its own research of
the applicable case law pertaining to a matter serving before it, the
question of research is surely not the predominant task of any court.
On the other hand a court will obviously also be entitled to place
reliance on counsel’s heads of argument, which are intended to
assist the court in arriving at a proper decision in each case before
it with reference to the applicable authorities and the facts.








[9]
In addition it must be taken into account that it has in any event
also been stated in numerous decisions of this court that South
African case law,
subject
to Article 140(1), is not binding on this court and merely
constitutes persuasive authority – which a Namibian Court is
free to adopt in all fitting cases
5.








[10]
Ultimately therefore it must be concluded that the Practice Directive
was put in place as a safeguard,
and
to ensure the achievement of the proper adjudication of all cases,

in
this jurisdiction,
in
accordance with the applicable Namibian authorities.








[11] This premise was not
given in this instance.








[12] Accordingly I
ordered that the matter be removed from the roll to enable counsel to
comply with the requirements set by the Practice Directives of this
court.








[13] I also indicated to
counsel that, prima facie, I considered it fair and equitable in such
circumstances that each party pay its own wasted costs occasioned by
the postponement of this matter. Counsel where however agreed that
they preferred such costs to stand over for later determination.




























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



H GEIER



Judge








APPEARANCES








APPLICANT: T P Krüger
SC



(with him Mr G L van der
Westhuizen)



Instructed by Fisher,
Quarmby & Pfeifer,



Windhoek.













RESPONDENTS: M J
Fitzgerald SC



(with him N Traverso)



Instructed by Engling, Stritter &
Partners,



Windhoek




1See
Practice Directive 37





2See
Article 140 of the Namibian Constitution





3S
v Shikunga and Another
1997 NR 156 (SC)





4Some
of these issues where for example : the effect of a non-admitted
legal practitioner in civil proceedings, the effect of an
irregularity in criminal proceedings, the effect of fraud or mistake
on a contract …





5See
for instance :
De
Villiers v Axiz Namibia
(Pty)
Ltd 2012 (1) NR 48 (SC) at [9],
S
v Malumo and 112 Others
2011
(1) NR 169 (HC) at [55],
Goseb
and Others v Minister of Regional and Local Government and Housing
and Others
2011
(1) NR 224 (HC) at [16],
Gabriel
v Minister of Safety and Security
2010
(2) NR 648 (HC) at [10],
Shikongo
v Trustco Group International Ltd and Others
2009
(1) NR 363 (HC) at [4],
Nationwide
Detectives and Professional Practitioners CC v Standard Bank of
Namibia Ltd
2008
(1) NR 290 (SC) at [30] etc