Court name
High Court Main Division
Case number
APPEAL 380 of 2013
Title

Heita v Minister of Saftey and Security and Others (APPEAL 380 of 2013) [2013] NAHCMD 330 (08 November 2013);

Media neutral citation
[2013] NAHCMD 330
Coram
Parker AJ












REPORTABLE



REPUBLIC OF NAMIBIA



HIGH
COURT OF NAMIBIA MAIN DIVISION,



WINDHOEK








JUDGMENT (EX-TEMPORAE)








Case no: A 380/2013








In the matter between:



THOMAS
HEITA
..APPLICANT








and








THE MINISTER OF SAFETY
AND SECURITY.....
..
RESPONDENT



THE COMMISSIONER OF
SERVICES..... .
SECOND RESPONDENT



THE OFFICER-IN-CHARGE
OF WINDHOEK CENTRAL PRISON.......THIRD
RESPONDENT



THE DEPUTY
OFFICER-IN-CHARGE OF



OPERATIONS FOR
WINDHOEK PRISON..
...
FOURTH RESPONDENT



THE UNIT MANAGER OF
UNIT 3 AT



WINDHOEK CENTRAL
PRISON...
..
FIFTH RESPONDENT








Neutral citation:
Heita v The Minister of Safety and Security (A 380/2013)
[2013] NAHCMD 330 (8 November 2013)








Coram: PARKER AJ



Heard: 8
November 2013



Delivered: 8
November 2013








Flynote: Applications
and motions – Urgent applications – Requirements for –
Requirements of rule 6(12)(b) are circumstances relating to
urgency which must be explicitly set out and the reasons why an
applicant could not be afforded substantial redress in due course
must also be explicitly set out in founding affidavit – The
court held that the nature of the orders sought is vague and they are
impermissible to grant.








Summary: Applications
and motions – Urgent applications – Requirements of rule
6(12)(b) are circumstances relating to urgency which must be
explicitly set out and the reasons why an applicant could not be
afforded substantial redress in due course must also be explicitly
set out in founding affidavit – In instant case the court found
that the applicant has not satisfied at all the two requirements of
rule 6(12)(b) of the rules of court – Court found
further that the facts relied on in the founding affidavit cannot
support the three disparate orders sought by the applicant –
Court concluded that the nature of the orders sought, namely,
‘interim injunction order’, ‘declaratory order’
and ‘mandatory injunction order’ in the same breath is
vague and the orders are impermissible to grant – Consequently
the court dismissed the application with costs.








Flynote: Pleadings
– Lay person representing himself or herself – Court held
that the fact that the court ought to construe generously and in the
light most favourable to the lay person representing himself or
herself should not be taken too far to render the rules of court
otiose because that would not conduce to due administration of
justice – Court held that a respondent must always be
sufficiently informed on the papers as to what case the respondent is
to meet to enable the respondent to answer adequately.








Summary: Pleadings
– Lay person representing himself – Court held that the
court ought to construe generously and in the light most favourable
to the lay person representing himself or herself should not be taken
too far to render the rules of court otiose because that would not
conduce to due administration of justice – A respondent should
always be sufficiently informed on the papers as to what case the
respondent is to meet to enable the respondent to answer adequately –
In the instant case court found that on the papers the nature of the
orders sought is vague and it was impermissible to grant the orders
sought – It is clear whether the applicant seeks interim or
final relief – The three orders sought are so disparate and yet
the applicant relies on the same facts for all the orders – In
any case, the court found that the facts relied on cannot support the
grant any of the orders sought – Consequently, the court
dismissed the application with costs.










ORDER










The applicant’s
application is dismissed with costs










JUDGMENT










PARKER AJ:








[1] In this matter the
applicant, who represents himself, has launched an application by
notice of motion and he prays for the following relief: (a) condoning
the urgency of application herein, and (b) interim injunction order.
It also contains an application for judicial review. The respondents
have moved to reject the application and they oppose the application
in terms of rule 6(5)(d)(iii) of the rules of court, that is,
they raise questions of law only. The questions are the applicant’s
non-compliance with rule 6(12)(b) of the rules of court which
provides for the peremptory requirements an applicant who prays that
his or her application be heard on urgent basis must satisfy in order
to succeed and the vagueness of the relief sought and the
impermissibility of the granting of the orders prayed for.








[2] Urgent applications
are governed by rule 6(12) of the rules of court; and rule 6(12)(b)
provides that in every affidavit or petition filed in support of any
application under para (a) of subrule (12) the applicant must set
forth explicitly the circumstances which he or she avers render the
matter urgent and the reasons why he or she claims that he or she
could not be afforded substantial redress at a hearing in due course.
The rule entails two requirements: first, the circumstances relating
to urgency which must be explicitly set out, and second, the reasons
why an applicant could not be afforded substantial redress in due
course which must also be explicitly set out in the founding
affidavit.








[3] Apart from a process
entitled, ‘certificate of urgency’ I find that there is
nothing on the papers tending to establish satisfaction of the two
requirements in rule 6(12)(b) of the rules. I, therefore,
conclude that the applicant has not satisfied the first requirement
under rule 6(12)(b) of the rules which is that the applicant
must set out explicitly the circumstances relating to urgency. He has
also not satisfied the second requirement under rule 6(12)(b)
which is that the applicant must set out explicitly the reasons why
the applicant claims that he could not be afforded substantial
redress in due course.








[4] Pleadings prepared by
lay persons representing themselves should, as Mr Ntinda, counsel for
the respondents, submitted, be construed generously and in the light
most favourable to the litigant. (Christian v Metropolitan Life
Namibia Retirement Annuity Fund and Others
2008 (12) NR 753 (SC))
But, in my opinion, the proposition should not be taken too far to
cover situations where a rule of court has not been complied with at
all, as is in the present case. In the present case, the applicant
has made no attempt – none at all – to satisfy the
peremptory requirements of rule 6(12)(b) of the rules of
court. For these reasons alone the applicant’s application
should fail.








[5] Besides, on the
papers it is impossible to decide what relief the applicant seeks
from the court. The nature of the orders sought by the applicant,
namely, ‘interim injunction order’, ‘declaratory
order’ and ‘mandatory injunction order’ in the same
breath, is vague and the orders are impermissible to grant, as Mr
Ntinda submitted. Again, the fact that pleadings prepared by lay
persons who represent themselves should be construed generously and
in the light most favourable to them ought not to be taken too far;
and each case must be considered on its own facts and in its own
circumstances.








[6] In the instant case,
the orders sought by the applicant are disparate and yet the
applicant relies on the same facts to support all those disparate
orders; and what is more, it is not clear on the papers whether the
applicant seeks an interim or final order. I do not think it is the
burden of the court to hunt in the nook and cranny of a lay
applicant’s pleadings in order to find what the court thinks
the lay applicant means and then proceed to adjudicate the case on
that basis. That would be unfair for the respondent who must always
be sufficiently informed on the papers as to what case he or she is
to meet in order to enable the respondent to answer adequately. In
any case, I find that the facts relied on in the so-called founding
affidavit cannot support the grant of any of the three orders sought.








[7] I hold that the fact
that the court ought to construe pleadings prepared by a lay person
represented himself or herself generously and in the light most
favourable to the lay person representing himself or herself should
not be taken too far to render the rules of court otiose because that
would not conduce to due administration of justice.








[8] For all the
aforegoing reasoning and conclusions, the applicant’s
application is dismissed with costs.













C Parker



Acting Judge













APPEARANCES








APPLICANT:...................................................................................................In
Person













RESPONDENTS:..............................................................................................S
Ntinda



.....................................................................Of
Government Attorney, Windhoek