Court name
High Court Main Division
Case number
APPEAL 231 of 2013
Title

Diergaardt v Magistrate: Magisterial District of Gobabis and Another (APPEAL 231 of 2013) [2013] NAHCMD 231 (01 August 2013);

Media neutral citation
[2013] NAHCMD 231
Coram
Parker AJ













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT (EX TEMPORAE)








Case no: A 231/2013








In the matter between:








CHARLES ALBERTUS
CORNELIUS DIERGAARDT .................................APPLICANT








and








THE MAGISTRATE:



MAGISTERIAL DISTRICT
OF GOBABIS ....................................FIRST
RESPONDENT



VALENTIA ELSABE
DIERGAARDT .......................................SECOND
RESPONDENT













Neutral citation:
Diergaardt v The Magistrate: Magisterial District of Gobabis (A
231/2013) [2013] NAHCMD 231 (1 August 2013)








Coram: PARKER AJ



Heard: 31 July
2013



Delivered: 1
August 2013








Flynote: Practice
– Applications and motions – Urgent applications –
Granting of application to hear matter on urgent basis is an
indulgence – To succeed in an application applicant must
satisfy the two requirements prescribed by rule 6(12)(b) of
the rules of court – No urgency where urgency is self-created.








Summary: Practice
– Applications and motions – Urgent applications –
Applicant sought urgent relief aimed at principally the court staying
proceedings in the lower court for discharging or confirming an
interim protection order granted by the lower court in terms of the
Combating of Domestic Violence Act 4 of 2003 – Court found that
the applicant has not given any reason why the applicant could not
obtain substantial redress at a hearing in due course and has not set
them out explicitly the circumstances the applicant avers makes the
matter urgent – Court held that applicant could receive
substantial redress in due course in the ongoing enquiry before the
lower court and on appeal in terms of s 18(1) of Act No 4 of 2003 –
Court finding that the urgency is self-created since applicant waited
for some seven months to bring the application when he could have
appealed from the decision of the magistrate within 30 days of the
giving of the decision – Consequently, the court declined to
hear the matter on an urgent basis and the application was struck
from the roll.










ORDER










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








(b) I make no order as to
costs respecting wasted costs occasioned by the postponement of the
hearing on 30 July 2013.










JUDGMENT










PARKER AJ:








[1] In this application brought on
notice of motion the applicant seeks the relief set out in the notice
of motion. The application concerns the granting of an interim
protection order on 24 January 2013 by the first respondent against
the applicant and for the benefit of the second respondent in terms
of s 8 of the Combating of Domestic Violence Act 4 of 2003 (‘the
Act’). The applicant has prayed the court to hear the
application on urgent basis. The second respondent has moved to
reject the application on the merits and also against the application
being heard on urgent basis; and in that behalf, the second
respondent did file an opposing affidavit on 29 July 2013. For the
sake of convenience, I shall hereinafter refer to the second
respondent simply as the respondent because the first respondent has
not filed opposing papers.








[2] The application was set down by
the applicant to be heard at 09h00 on 30 July 2013. At the
commencement of the hearing Mr Denk, counsel for the applicant,
applied from the Bar for the hearing of the matter to be postponed to
the following day, that is, 31 July 2013, to enable the applicant to
file a replying affidavit. Mr Van Zyl, counsel for the respondent,
opposed the from-the-Bar application on the ground that the applicant
has dragged the respondent to court on a short notice and the
respondent was expected to answer to a voluminous bundle of papers
replete with a whole host of facts and complex issues of law; and so,
the applicant cannot now turn around and ask for a postponement to
enable him to file a replying affidavit.








[3] Mr Denk’s response is
briefly that if the respondent had not waited until a day before the
hearing of the application to file her answering affidavit and had
rather filed it earlier than that the applicant would have filed his
replying affidavit before the hearing, and he would not have asked
for a postponement. I understood Mr Van Zyl to soften his stand to
the extent that if the court granted the postponement at the behest
of the applicant, then the applicant should be ordered to pay wasted
costs for the day.








[4] It is worth noting
that the application was served on the first respondent on 18 July
2013 and in her answering affidavit she has explained the reasons why
she could only file the opposing affidavit on 29 July 2013. I accept
as sufficient and reasonable the respondent’s explanation as to
why she failed to file her answering affidavit before 29 July 2013.
This, however, does not detract from the fact that in the
circumstances of this case and considering the nature of the cause or
matter, it was reasonable that I gave the applicant a day to file the
replying affidavit. I do not think on that score the applicant should
be mulcted in wasted costs for the short postponement. In the
circumstances; it would, in my opinion, be fair and just that each
party pays his or her own costs for the day.








[5] I should at the
threshold consider the question of urgency, that is, whether I should
grant the order prayed for in para 1 of the notice of motion, bearing
in mind that what the applicant seeks is an indulgence. (See Hewat
Beukes t/a MC Bouers and Others v Luderitz Town Council and Others

Case No. A 388/2009 (Unreported).)








[6] It has been well
settled since Salt and Another v Smith 1990 NR 87, which
interpreted and applied rule 6(12)(b) of the rules of court,
that rule 6(12)(b) entails two requirements; and for an
applicant to succeed in persuading the court to grant the indulgence
sought for the matter to be heard on urgent basis the applicant must
satisfy both requirements. The two requirements are (a) the
circumstances relating to urgency which have to be explicitly set
out, and (b) the reasons why the applicant could not be afforded
substantial redress in due course. It is also well settled that where
urgency is self-created the court will refuse to grant the indulgence
that the matter be heard on urgent basis (Bergmann v Commercial
Bank of Namibia Ltd
2001 NR 48)








[7] In the instant case,
it is clear from the papers that the applicant had been aggrieved by
the granting of the interim protection order since the granting of
the order on 23 January 2013, but he did nothing to seek redress
under the Act which the Act afforded him in the form of appeal in
terms of s 18 of the Act. He was entitled to seek such redress within
one month of the decision of the learned magistrate. He has waited
for some seven months to drag the respondents to court on short
notice; and now prays the court to hear the matter on urgent basis.
It is important to note that at all material times the applicant was
represented by legal practitioners.








[8] I do not, with
respect, accept Mr Denk’s argument that since 23 January 2013
the applicant was of the view that he must exhaust domestic remedies.
The remedy, in the form of appeal, to which he is entitled in terms
of s 18(1) of the Act is a domestic remedy; and he did not pursue it.
Section 18(1) provides:








Where
a court has made or refused to make a protection order, or included
or refused to include a particular provision in a protection order,
the applicant or the respondent may appeal to the High Court, but,
the appeal must be lodged within one month of the decision in
question.’








And what is more, s 18(1)
applies to both an interim protection order, as in the present
proceeding, and a final protection order. I find that the applicant
failed or refused to seek redress that was open to him by the very
Act under which the order by which he is aggrieved was made. He could
have sought redress on or before 22 February 2013. He did not, as I
have said previously.








[9] Furthermore, I find
that the applicant has not given reasons why the applicant could not
be afforded substantial redress in due course. Indeed, the
consideration of the interim order during which the lower court will
decide whether to confirm the interim order or discharge it is set
down for continued hearing in the magistrates’ court on 5-7
August 2013, that is, barely two court days away. In this regard, it
has been said that the court will not readily intervene in lower
court proceedings which have not yet terminated, unless grave
injustice may otherwise result or where justice may not be obtained
by other means. (Adonis v Additional Magistrate, Bellville and
Others
2007 (2) SA 149 (c)) In the instant case, the applicant
will obtain justice in the lower court in barely two court days away.
Besides, the applicant is entitled to lodge an appeal against the
protection order in terms of s 18 of the Act. It follows inexorably
that the applicant will obtain justice in a few days time in the
lower court or on appeal in terms of the Act.








[10] For all these
reasons, I decline to condone the applicant’s non-compliance
with the rules of court or to hear this application as one of
urgency. In the result, I make the following order:









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










  1. I make no order as to
    costs respecting wasted costs occasioned by the postponement of the
    hearing on 30 July 2013.
























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



C Parker



Acting Judge


















APPEARANCES








APPLICANT: A Denk



Instructed by
Petherbridge Law Chambers, Windhoek.













FIRST RESPONDENT: No
appearance













SECOND RESPONDENT: C Van
Zyl



Instructed by Etzold-Duvenhage,
Windhoek