Court name
High Court Main Division
Case number
APPEAL 267 of 2006
Title

Johnston v Johnston (APPEAL 267 of 2006) [2013] NAHCMD 346 (20 November 2013);

Media neutral citation
[2013] NAHCMD 346
Coram
Van Niekerk J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK






JUDGMENT






             
    Case
No: A267/2006


 


In the
matter between:


 


CHRISTOPHER
LYN
JOHNSTON                                                                                APPLICANT


 


and


 


KAREN
SUE JOHNSTON                                       
                                          RESPONDENT


     


 


Neutral
citation: 
Johnston
v Johnston
(A267-2006)
[2013] NAHCMD 346 (20 November 2013)


 


Coram:         
VAN NIEKERK J


 


Heard:           
2 March 2010


Delivered:    
20
November 2013


 


Flynote:        
Practice ­
Application
for condonation for non-compliance with rule 4(5)(b) and 17(3) of the
rules of the High Court – Practice regarding form of edictal
citation set out – Fact that edictal citation not signed by
registrar leads to irregularity but not nullity – Application
refused because of delay in bringing application for condonation
combined with unsatisfactory explanations for delay and
non-compliance with rules.


.





 



ORDER






 



1.    The
applicant’s application to strike is granted with costs.



2.    The
respondent’s application to strike is refused with costs.



3.    The
applicant’s application for condonation is refused with costs.


 






JUDGMENT





VAN
NIEKERK J:


 


[1]
This is an application for condonation for the applicant’s
non-compliance with rule 4(5)(b) and rule 17(3) of the rules of this
Court.  The application is opposed.






The
allegations in the affidavits filed






[2]
The application is supported by an affidavit by the applicant’s
legal representative, Mr Böttger, in which he states that the
applicant was on 25 September 2006 granted leave by this Court to sue
the respondent, who resides in the United States of America, for
divorce by way of edictal citation.  After leave was granted, he
drafted the citation and attached the intendit which formed part of
the application for leave.  He signed the citation and sent it
to the registrar in terms of rule 17.  Upon the return of the
citation from the registrar’s office, he proceeded to have same
served on the respondent in terms of the court order.  On 27
November 2006 the respondent entered an appearance to defend and
after further particulars were requested and provided, filed a plea
and counter-claim.  After pleadings had closed, he applied for a
trial date. However, the registrar then advised him that there was
non-compliance with rules 4(5)(a) and (b), 17 and 7.  In this
regard he attaches a memorandum dated 14 July 2008 from the
registrar.






[3]
Before I deal in more detail with the memorandum, it is useful to set
out the relevant rules.






[4]
Rule 4(5) provides:






(a)      
Unless the official language or one of the official languages of the
foreign country concerned is English or unless the court for
sufficient reasons otherwise directs, any process of court or
document to be delivered in such country shall be accompanied by a
sworn translation thereof into an official language of that country
or part of that country in which the process or document is to be
served, together with a certified copy of the process or document and
such translation.


(b)       
Any process of court or document to be served as provided in sub-rule
(3), shall be delivered to the registrar together with revenue stamps
to the value of N$50 fixed thereto ..........


(c)       
Any process of court or document delivered to the registrar in terms
of paragraph (b) shall, after defacement of the revenue stamps
affixed thereto, be transmitted by him or her together with the
translation referred to in paragraph (a), to the Permanent Secretary
for Foreign Affairs or to a destination indicated by the Permanent
Secretary for Foreign Affairs, for service in the foreign country
concerned, and the registrar shall satisfy himself or herself that
the process of court or document allows a sufficient period for
service to be effected in good time.’


 


[5]
Rule 4(b) refers to sub-rule (3), the relevant part of which
provides:






(3)      
Service of any process of the court or of any document in a foreign
country shall be effected –


(a) 
by
any person who is, according to a certificate of –


(i)           
the
head of any Namibian diplomatic or consular mission, any person in
the administrative or professional division of the public service at
a Namibian diplomatic or consular mission or any Namibian foreign
service officer grade VII;


(ii)          
any
foreign diplomatic or consular officer attending to the service of
process or documents on behalf of Namibia in such country;


(iii)         
any
diplomatic or consular officer of such country serving in Namibia; or


(iv)        
any
official signing as or on behalf of the head of the department
dealing with the administration of justice in that country,


authorized
under the law of such country to serve such process or document; or


(b) 
    ........................’


 


[6]
Rule 7(1) provides:






(1)      
Before summons is issued in any action at the instance of the
plaintiff’s counsel, the counsel shall file with the registrar
a power of attorney to sue.......’


 


[7]
Rule 17(3) states:






(3)      
Every summons shall be signed by the counsel acting for the plaintiff
............. or, if no counsel is acting, it shall be signed by the
plaintiff ............. and shall thereafter be signed and issued by
the registrar and made returnable by the sheriff to the court through
the registrar.’


 


[8]
In the memorandum, directed to “The Presiding Judge” and
copied to the lawyers for the parties, the registrar inter alia
states the following:






Upon
receipt of an application for a hearing date – dated 03 October
2007, the Registrar refused to allocate a hearing date for the
divorce action on the basis that no divorce action was formally
instituted.






The
basis/ground upon which the Registrar answers that no divorce action
was instituted are as follows:






.... 
Where edictal citation has been ordered, the practice hitherto has
been to issue a citation (the equivalent of a summons) and to follow
this up with an intendit (the equivalent of a declaration) which may
or may not be served simultaneously with the citation.  The
citation is usually drafted in the format of Form 1 of the First
Schedule of the Rules of the High Court which citation (summons) is
issued and signed by the Registrar in compliance with Rule 17 of the
Rules of the High Court.’






[9]
Having dealt with the provisions of rule 17, rule 7 and rule 4(5)(a)
and (b), the registrar continued:






The
circumstances of the above case are as follows:






1.   
The
edictal citation (summons) was never laid before the Registrar for
issuing purposes as is required by Rule 17 ..... and never issued and
signed by the Registrar, therefore no action was instituted.


2.   
No
Power of Attorney was filed as required by Rule 7.


3.   
The
provisions of sub-rules 5 (a) and (b) of Rule 4 were not complied
with.






To
date no divorce action complying with the provisions of Rule 17 and 7
was instituted, therefore the applicant is not entitled to apply for
hearing dates on divorce floating roll.






Mr
Böttger, legal practitioner of record for the applicant, was
during October 2007 and thereafter on various occasions before 18
June 2008 informed of these irregularities but he refused to accept
it as such and insisted that the application for leave to sue by way
of edictal citation was or may be converted into a divorce action,
therefore it would be proper to enrol the “divorce action”
under the application file.






Having
discussed the circumstances of this case as well as Mr Böttger’s
insistence that trial dates for the divorce be allocated, with the
Judge-President, the matter was enrolled and set down on the divorce
floating roll during the week 23 to 26 September 2008 in order for
the presiding judge to deal with the irregularities mentioned above
and to give procedural guidelines/directions regarding the
institution of an action where leave to sue by way of edictal
citation was granted by the court.’






[10]
Mr Böttger states further that, having received the memorandum,
he more closely inspected the court file and realized that, although
he forwarded the edictal citation, the registrar never signed same.
He further realized that the N$50 revenue stamp required on the
edictal citation was, instead, affixed to the applicant’s power
of attorney, a copy of which he attaches to his affidavit.  He
admits that there was thus non-compliance with rule 4(5)(b) and rule
17(3).  However, in his view rule 4(5)(a) does not apply to this
matter and rule 7 was complied with as the proper power of attorney
was indeed filed.






[11]
Counsel states that there were oversights at his office and at the
office of the registrar.  From the papers it becomes evident
that the oversight at the latter’s office was that the citation
was never signed and issued and that a divorce action number was
never allocated to the matter.






[12]
Counsel at this stage contacted Mr Hohne of the respondent’s
legal practitioners to discuss the matter with him in light of the
fact that the parties had already exchanged pleadings.  He says
that they decided not to take the matter further but to have the case
set down for hearing.  He states, in his own words, ‘I
then trusted that the matter had been addressed and would not cause
any difficulties further.’ The case was then set down for
hearing on the fixed roll from 26 to 28 May 2009.






[13]
On the first day of the hearing Tomassi, J informed the parties that
the non-compliance with the rules should be addressed before the
matter is to proceed, hence the application for condonation.






[14]
In opposing papers Mr Hohne deposes to the main affidavit on behalf
of the respondent.  He states, inter alia (I underline
certain words in the quotation to facilitate adjudication below of
the applicant’s application to strike):






8.2     
It
is submitted that the Deponent, being an officer of this Honourable
Court is not being truthful to this Honourable Court and for the
following reasons:


8.2.1   
The Edictal Citation so attached as annexure “MB2” was
part and parcel of the original “Application for leave to
have sued by way of Edictal Citation
” and was not
Subsequently being drafted in accordance with the rules
as alleged by the Deponent.


8.2.2   
As is evident from the date as it appear (sic) on the “Edictal
Citation
” (annexure “M2”) such document was
drafted on 19 September 2006 i.e. prior to 25 September 2006 when the
order for “Leave to sue by way of Edictal Citation
was granted and not subsequent” as the Deponent falsely
states in his affidavit.


8.2.3   
The “Edictal Citation” annexed as annexure “MB2”
was never independently and subsequently addressed to the Registrar
as alleged but was only an annexure to the original application for
Leave to sue by way of Edictal Citation” and was
never independently and subsequently addressed to the Registrar of
this Honourable Court as is falsely alleged by the Deponent.


8.2.4   
The Intendit so annexed as annexure “MB3” was also never
independently issued by and directed to the Registrar and was also
only an annexure to the original Application to sue by way of Edictal
Citation.


8.2.5   
It is consequently a blatant untruth that “Same
was then accordingly signed by myself and forwarded to the Registrar
of this Honourable Court in terms of rule 17

because
both annexures “MB2” (Edictal Citation) and
“MB3” (Intendit) were already signed at the time when
Application was made for leave to sue by way of Edictal Citation.’






[15]
In paragraph 11.2 Mr Hohne deals with the registrar’s
memorandum and in paragraph 11.3 he states (again the underlining is
mine):






11.3         
The
aforesaid quoted is another indication that Mr Böttger is not
telling the truth and especially also
with
regard to the allegations made in paragraph 5 i.e. “
Upon
return of the Edictal citation from the Registrar’s office...”
As
well as in paragraph 6 i.e. “
Same
was then signed by myself and forwarded to the Registrar of this
Honourable Court in terms of rule 17”
because
it is clear from the memorandum of the Registrar (annexure “MB5”)
that Mr Böttger refused to listen to the advice of the Registrar
but proceeded to have the Edictal Citation and Intendit converted
into an action and refused to have followed the correct procedure
which would have allowed the Registrar to have signed and issued the
Edictal citation (Summons) which he did not do because the incorrect
procedures were followed.’






[16]
Mr Hohne states that Mr Böttger did approach him with regard to
the issues under discussion, but he denies that he agreed not to take
the matter any further. He states that he conveyed to Mr Böttger
that ‘since the Court has mero motu raised the issue we
would not take the point if the Judge President was of the opinion
and satisfied that the Rules of Court were complied with as I was
made to understand from Mr Böttger which turned out not to be
the case.’  He further denies that the respondent ever
waived the right to object to non-compliance with the rules; that the
respondent only proceeded to file a plea and counter-claim in order
to prevent the applicant from obtaining judgment against her by
default.






[17]
Mr Hohne further states that the respondent had already instituted
divorce proceedings in the United State of America, this country
being her domicile and the place of marriage and in respect of which
the parties hold citizenship; that the proceedings are at an advanced
stage and that his client will suffer prejudice  if the
application for condonation is granted.






[18]
The respondent annexed a confirmatory affidavit by the registrar in
which, inter alia, any oversight as alleged is denied and the
memorandum confirmed.  It is also denied that the edictal
citation was ever forwarded to his office to be signed and stated
that receipt of it was never recorded in any of the registrar’s
books and that no divorce action number was allocated to it. He
points to the fact that the power of attorney attached to the
founding affidavit is dated 6 June 2008 and re-iterates that there
was no power of attorney on the court file when the application to
sue by way of edict was made.






[19]
In reply Mr Böttger states on behalf of the applicant that he in
fact sent the edictal citation and intendit to the registrar’s
office on 8 November 2006. He says that the documents attached to the
founding affidavit (“MB2” and “MB3”) are the
wrong documents and he attaches a copy of the edictal citation and
intendit dated 8 November 2006 as “MB1” and “MB2”.
 He denies that Mr Hohne has any personal knowledge of whether
these documents were sent to the registrar’s office.  He
further points out that the registrar does not personally deal with
all documents sent to his office and that he can also not state
categorically that the documents were never received.  He
mentions that it is not uncommon that mistakes are made by the staff
in the registrar’s office and that sometimes documents are sent
back to lawyers without being signed as required. 






[20]
He further records astonishment at Mr Hohne’s denial that he
ever agreed not to take the matter any further.  He denies that
he indicated to Mr Hohne that the Judge-President was satisfied that
the rules have been complied with, but states that he indicated to Mr
Hohne that the matter may be enrolled subsequent to a letter which he
had addressed to the Judge-President.  He attaches a copy of
this letter dated 24 June 2008 as “MB”.  In it he
states, inter alia:






My
dilemma concerns procedural aspects pertaining to an Edictal Citation
and the subsequent process of a divorce matter currently pending in
the High Court.


The
procedural history of the matter, which I will set out below, serves
to illustrate the nature of the dilemma which has befallen this
matter.


On
the 20th September 2006, I enrolled an application for
leave to sue by way of Edict in the High Court of Namibia.  That
order was granted on the 25th of September 2006 by the
Honourable Mr. Justice Silungwe.  The granted Edict together
with the Intendit was then served by a Process Server in the United
State of America on the Respondent on the 21st of November
2006.


At
this stage, the Application number initially allocated to this matter
was used on all subsequent pleadings filed.  With the benefit of
hindsight, I submit that it is at this stage where the clerks at the
office of the registrar ought to have issued an appropriate case
number used for action proceedings.


After
service of the citation and the intendit upon the respondent in
Kansas, USA, the respondent instructed Messrs Stern & Barnard,
who then files a Notice of Appearance to defend.  Further
pleadings, including a plea, a counterclaim and a plea to
counterclaim were exchanged between the parties, all using the
initial case number being A 267/2006.


I
would now like to apply for a hearing date to hear this divorce, but
my attempts to enrol this case have been thwarted on repeated
occasions by the Registrar, who refuses to allocate a date. 
Despite my attending on his office more than once, and indicating to
him that no more is required than converting the Application number
to an Action number, he remains unwilling to do that.


I
have showed him the authorities on the matter, most eminently Erasmus
on Superior Court Practice, and showed him other divorce actions in
which I have been involved, which have run the full course from
Edictal Citation to a Final Order, which are no different in
procedure to this particular matter, barring the technicality of the
allocation of an “A” number to the file.


...........................................


As
stated earlier, and upon Counsel’s suggestion, I now address
this letter to you in an attempt to solve this matter which requires
no more than the mere issuance of an Action number on the Court file
and the allocation of a hearing date.’






The
applicant’s application to strike






[21]
The applicant applied in the replying papers that the allegations
that Mr Böttger had been untruthful and made false statements
under oath be struck as being scandalous and/or vexatious. 
These allegations are by their very nature extremely serious and
prejudicial as they project the legal representative of the applicant
and an officer of the court in such a light that the very application
for condonation becomes suspect. In my view litigants should be very
careful before they make such allegations under oath.  I find it
most regrettable that in this case the allegations were made about
one officer of the court by another.  Such allegations tend to
cause acrimony, to turn the hearing into an unbecoming display and to
divert the attention from the real issues before the court. 
While there are cases where such allegations may justifiably be made,
it is in my view generally better to leave it to the court to
pronounce itself on the cogency or otherwise of evidence before the
court.  A party can usually with ample clarity and emphasis deny
factual allegations made by its opponent and present contradictory
evidence or point out discrepancies or inaccuracies without attaching
the label of falsehood to them under oath.  It should also be
borne in mind that what may at first appear false may turn out to be
quite the opposite when the other side of the matter has been heard
or when all the facts are considered.






[22]
My ruling in this regard is that the words underlined in the
quotation in paragraph [14] and [15] supra be struck from the
respondent’s main opposing affidavit.






[23]
The applicant also applied that paragraph 18.9 of the main opposing
affidavit be struck.  The last sentence contains scandalous,
vexatious and irrelevant comments about Mr Böttger.  I
agree that this sentence should be struck.


 


The
respondent’s application to strike






[24]
The respondent applied for the striking of matter in the following
paragraphs of the applicant’s replying affidavit, with I shall
deal seriatim.






Ad
paragraph 4






[25]
Part of the complaint is directed at the allegation that the edictal
citation and the intendit were sent to the registrar on 8 November
2006, whereas in the founding affidavit the date was not mentioned. 
Further complaint is directed at the two documents attached in place
of the documents attached as “MB2” and “MB3”
to the founding affidavit, namely the edictal citation dated 8
November 2006 in place of the edictal citation dated 19 September
2006 and the intendit dated 8 November 2006 in place of the intendit
dated 5 September 2006. 






[26]
Mr Mouton on behalf of the respondent submitted that these
documents constitute new matter which should have been annexed to the
founding affidavit.  Counsel is quite correct that these should
have been so annexed.  However, the documents are identical in
all respects, except for the dates mentioned and for the handwriting
in which the case number (“(P) A 267/06”) is inserted in
the open space at the top of the edictal citation. The copy of the
court order issued on 25 September 2006 and which is attached to the
founding affidavit as “MB1” also bears the registrar’s
stamp dated 8 November 2006.  One of the inferences that may in
my view be drawn is that a copy of the court order was, for whatever
purpose, received and stamped by the registrar on 8 November 2006. 
In the circumstances the order, read with the edictal citation and
intendit dated 8 November 2006, affords evidence that these documents
may indeed have been forwarded to and received by the registrar on
that date, although one does not know for what purpose.






[27]
If these documents are permitted to remain on record, it does negate
some of the material allegations on which the respondent’s case
is based.  However, it seems to me that one could easily have
attached the wrong edictal citation and intendit by mistake.  My
attention was drawn during argument to the fact that the original
court order bound as part of the record in the action proceedings
before Tomassi J also bears this date stamp and that the original
edictal citation and intendit following thereon are also dated 8
November 2006.  I further bear in mind that the edictal citation
and intendit were served on the respondent on 21 November 2006, which
affords some probability to the chronology of events as alleged by
the respondent. It was also open to the respondent to attach the
documents actually served on her to show that they were not dated in
September 2006, but she did not do so.






[28]
While I take Mr Mouton’s point that the respondent and
the registrar did not have the opportunity to answer to the
allegation that the documents were received by the registrar on 8
November 2006, it should also be noted that they were at liberty to
apply for leave to file a further set of affidavits if they were able
to provide further evidence.  In the circumstances I cannot
imagine that this relief would have been refused.






[29]
While it is further so that a deponent should take utmost care in
attaching the correct documents to its founding papers, I am
inclined, somewhat reluctantly, to the view that, considering all the
facts and circumstances of this particular case, the application to
strike should not succeed in this respect.






Ad
paragraph 10, 13, and 15 and annexure “MB3” to the
replying affidavit






[30]
This application relates to the letter addressed to the
Judge-President and allegations relating thereto.  The
application was abandoned during argument.






Ad
paragraph 12






[31]
This paragraph contains allegations that it is well known that
documents are often lost (i.e. mislaid) at the registrar’s
office; that it is not uncommon that documents are returned unsigned;
that the registrar cannot be personally aware of each and every
document filed in that office and so on.  The complaint is that
the allegations are pure speculation and consequently irrelevant,
alternatively, hearsay.  In my view there is no merit in this
aspect of the application.  The circumstances sketched in this
paragraph were indeed well known to persons who regularly had
business at the registrar’s office and to staff and judges of
the Court at the time the affidavit was deposed to and do not amount
to speculation.






Ad
paragraphs 16 and 17 and annexure “MB4” to the replying
affidavit






[32]
The complaint is that new matter is introduced in reply.  My
view is that the allegations and “MB4” constitute a
relevant reply to allegations made in the main opposing affidavit. 
They are consequently not struck.






The
requirements for an application for condonation






[33]
Rule 27(3) provides that the Court may, on good cause shown, condone
any non-compliance with the rules of this Court.  The sub-rule
clearly gives a very wide discretion.  As to the requirement of
showing good cause, it is trite that the applicant ‘must at
least furnish an explanation of his default sufficiently full to
enable the Court to understand how it really came about, and to
assess his conduct and motives.’ (Silber v Ozen Wholesalers
(Pty) Ltd
1954 (2) SA 345 (AD at p353A; Van Zyl and Another v
Smit and Another
2007 (1) NR 314 (HC) at 0315F-G).






The
argument that the edictal citation is a nullity and incapable of
being condoned






[34]
Mr Mouton on behalf of the respondent submitted that the fact
that the citation was not signed and issued by the registrar means
that it is a nullity and of no force and effect.  As such it is
incapable of being condoned, he submitted.  If this argument is
upheld, it is not necessary to consider the merits of the application
for condonation.  I therefore deal with it first.






[35]
Counsel relied on authority which deals with the effect of a failure
to have an ordinary summons or combined summons signed and issued by
the registrar.  In this regard he referred to Chasen v Ritter
1992 (4) SA 323 (SE) where the court stated (at p327B –C):






According
to Rule 17 to 'sign' a summons and to 'issue' are separate elements
standing next to one another, joined by the conjunctive 'and'. There
is no indication in the Rules of what is meant by 'issued by the
Registrar', but it must signify something else than signature by the
Registrar. 'Issued by the Registrar' probably covers the steps taken
by the Registrar which are not expressly stated: noting it in the
records of  his office, allocation of a number, cancellation of
the revenue stamps, stamping it with the stamp of his office and
delivery for transmission to the deputy sheriff. One decision defines
it merely as 'to send (hand) out, publish or put in circulation'. See
Protea
Assurance Co Ltd v Vinger

1970 (4) SA 663 (O) at 664-5 for the meaning of 'issue'.’






[36]
The court earlier (at p326B) referred to what it stated is an obiter
dictum
in Republikeinse Publikasies (Edms) Bpk v Afrikaanse
Pers Publikasies (Edms) Bpk
1972 (1) SA 773 (A) at 780G, where
Rumpff JA (as he then was) said: 






''n
Dagvaarding wat nie deur die Griffier uitgereik is nie, sou 'n
nulliteit wees en deur betekening van so 'n dagvaarding sou geen
geding ingestel word nie.';






and
then continued to say (at p327F-G):






If
I am correct in the meaning of 'issue' set out above, the
obiter
dictum

of Rumpff JA is understandable and valid: a summons that is not
'issued' by the Registrar is a document to which the Registrar is not
a party. A document that has not taken the course through the office
of the Registrar is a 'nullity'. If the document has followed the
proper course through the Registrar's office, but somewhere along the
way it happened that one requirement of the Rules was not complied
with, it can be condoned in terms of Rule 27(3).’






[37]
In this regard Mr Mouton submitted that, as it is clear that
the citation had not taken the required course though the office of
the registrar, it is a nullity.






[38]
Mrs van der Westhuizen for the applicant, on the other hand,
submitted that the matter before me is distinguishable because in
this case the Court had already given leave that action be instituted
by way of the citation as opposed to a case where a summons had not
been issued and signed by the registrar and therefore the process was
not clothed with the necessary authority.






[39]
I think there is merit in this submission.  There is a
difference between a summons and a citation.  The learned author
Erasmus, Superior Court Practice (See commentary under rule
5(1)) explains it thus:






In
superior court practice a litigant does not direct a summons at his
opponent; the registrar directs it to the sheriff who then serves it
upon the opponent.  If a litigant want to proceed by way of
edict (which means by way of a demand directed at his opponent by the
court),
he obviously has to ask the court to direct this demand.  Hence
the necessity for obtaining leave to
sue
by edict in the superior courts.’






[40]
In Mcguire v Fourie 1962 (3) SA 302 (SR) 304D the court had
this to say:






Although
there is no difference in effect between the issue of a summons and
the issue of edictal citation, the two processes are different. 
A summons is addressed to the Sheriff who is directed to command the
defendant to answer the plaintiff's claim. An edictal citation on the
other hand is addressed to the defendant, presumably because the
Sheriff has no power outside the jurisdiction of the Court.’






[41]
In Pretoria-Noord se Stadsraad v Stander 1964 (3) SA 210 (T)
the court explained it as follows (at p212B-213G):






Daar
heers heelwat verwarring oor die begrip wat deur 'edik' of 'ediktale
sitasie' weergegee word, en voordat oorweeg word of bogenoemde Reël
daardie begrip insluit, moet groter helderheid oor die begrip self
verkry word. In ons prosesreg, soos in die prosesreg van Holland
onder die Romeins-Hollandse regstelsel, kan 'n prosesstuk wat vir
betekening aan 'n persoon of party uitgereik word, een van twee vorms
aanneem. Dit kan 'n opdrag, in naam van die Staat of die Staatshoof,
aan die balju wees om die stuk aan die persoon wie se naam daarin
genoem word, te beteken; of dit kan 'n opdrag van die Hof, in naam
van die  Regter-President en Regters, regstreeks aan die persoon
wees om voor die Hof te verskyn. Laasgenoemde is 'n edik en dit word
gebruik waar die adres van die persoon onbekend is of waar hy hom op
'n plek bevind waar die balju hom beswaarlik of glad nie kan bykom
nie, hetsy binne die landsgrense hetsy daarbuite. So 'n edik kan
rugbaar gemaak word deur dit op die voordeur van die Hof aan te
bring, in koerante te publiseer, deur iemand anders as die balju of
geregsbode te laat beteken, deur die pos te versend, ens.


......................................


Vir
'n edik wat in die buiteland moet geld, moet die eiser hom noodwendig
tot die Hooggeregshof wend, wat sedert oudsher regsgesag ook ten
aansien van persone in die buiteland het waar die skuldoorsaak binne
die Hof se regsgebied ontstaan het. 'n Aksie teen 'n persoon wat in
die buiteland woon, kan derhalwe alleen in die Hooggeregshof gevoer
word.’






[42]
In Kerbel v Kerbel 1987 (1) SA 562 (W) at p566D-F clarifies it
further:






............in
earlier times it was the sovereign who issued this edict but later it
was the
praetor,
when the summons could not be served. In our modern practice, the
Court gives leave to sue in this manner when by ordinary summons, the
action can not be commenced, because our ordinary summons is a
command to the Sheriff (that is a South African Sheriff) to do
certain things;  amongst others, to serve the summons. A South
African Sheriff can obviously not serve the summons in a foreign
country. Nor can a South African Court command an official in a
foreign country to do anything. If the Court is satisfied that it has
jurisdiction, the applicant for leave to sue by edict is to my mind
entitled as of right to obtain leave to sue in this fashion.’






[43]
As far as I am aware the practice of this Court is that the edictal
citation is dated and signed by the legal practitioner for the
plaintiff and the registrar after the court has given leave for the
action to be instituted by way of edict.  The registrar states
in his memorandum that the citation is usually drafted in the format
of Form 1 of the First Schedule of the rules.  This Form
provides for a short form of process and may, according to rule 5(2),
be used where service by publication is ordered.  In this
regard rule 5(2) states that ‘where service by publication is
ordered, it may be in a from as near as may be in accordance with
Form 1 of the First Schedule, approved and signed by the registrar.’ 
This makes sense, as service by publication is costly and the
shortened form is meant to cut costs.






[44]
For the above reason I do not agree with the view that the citation
should be drafted in the format of Form 1, (unless service by
publication is ordered), as can also be seen from the many available
precedents of this Court.  The form used in the instant matter
is the customary long form of process. In Namibia it is also
customary to provide that a copy of the application for leave to sue
by way of edict, the court order, and the intendit (sometimes also
referred to as the particulars of claim), be served with the edictal
citation.






[45]
In this case the intended edictal citation is attached to the
application for leave to sue by edict and was approved by the Court
to be served ‘in the form (or substantially in the form)
annexed to the application.  Bearing in mind that the actual
citation served in this case is in that form and that all the papers
and the Court’s order were served on the respondent, it seems
to me that, although the citation was not signed by the registrar and
is irregular, the citation in itself is not a nullity. 






[46]
I pause to state that I have given consideration to the question
whether the Court, by authorising the form of the citation, did not
authorise the use of a citation which does not provide for the
registrar to sign it.  However, bearing in mind the practice of
this court to require the registrar’s signature; the provisions
of rule 17(3) which in the case of a usual summons requires the
registrar’s signature; that the citation is the equivalent of a
summons; and the fact that the Court communicates with litigants
through the registrar, one would at least have expected an
application for condonation or leave to omit the requirement of the
registrar’s signature for whatever reason.  There is no
such relief sought in the application for leave to sue by edict. 
It would appear that the failure to provide for the registrar’s
signature was simply overlooked by the Court.






The
delay in launching the condonation application






[47]
It is trite that an application for condonation should be made as
soon as the defaulting party becomes aware of the non-compliance. 
This is part of the requirement of showing good cause for condonation
as is required by rule 27.






[48]
From the affidavit filed by the registrar it is abundantly clear that
the applicant’s legal representative knew since October 2007
what the registrar’s objections were concerning the matters
under discussion. It is common cause that these objections were
concerned with the non-compliance with rules 4(5), 7 and 17. These
same objections were subsequently repeatedly pointed out to and
debated with him. Yet no application for condonation was launched
until after the matter was called before Tomassi, J.


[49]
Mr Böttger’s explanation is to the effect that because he
and Mr Hohne had agreed some time after receipt of the registrar’s
memorandum of 14 July 2008 not to take the matter any further but to
set the matter down for hearing, he then trusted that the matter had
been addressed and would not cause any difficulties further. He
further states in paragraph 10 of the founding affidavit:






10.     
On the first day of the hearing of this matter the presiding judge,
Mrs Justice Tomassi, informed the parties that the non-compliance
with the rules as set out
supra,
should
be addressed before the matter is to proceed, hence this
application.  I had however trusted that the matter had been
attended to and was no longer a concern as aforesaid. 
Nevertheless, the parties then agreed that the matter be postponed
sine die.’






[50]
Without at this stage taking into consideration Mr Hohne’s
denials regarding the alleged agreement, I fail to see on what basis
Mr Böttger could have thought that the matter had been attended
to and would not create further difficulty.  In the last
paragraph of the registrar’s memorandum it was plainly spelled
out that the trial judge would be dealing with the irregularities. 






[51]
Moreover, rule 27 which deals with extension of time, removal of bar
and condonation for non–compliance with the rules clearly
provides for the exclusion of the Court’s discretion by
agreement between the parties only in cases where there has been
non-compliance with time limits (see rule 27(1)).  As far as
other non-compliance is concerned, an agreement between the parties
does not have this effect.  Although the attitude towards the
non-compliance by the party affected thereby is usually relevant, it
certainly does not bind the court, and with good reason.  The
applicant’s lawyer, being acutely aware of the registrar’s
objections to the applicant’s non-compliance which had not been
resolved, must have realised that the presiding judge might very well
require an application for condonation.






[52]
Lastly, there is no explanation whatsoever why no condonation
application was launched during the period from 7 October 2007 to the
date of the registrar’s memorandum.






The
applicant’s explanation for non-compliance






[53]
Mr Böttger states in his affidavit that he forwarded the edictal
citation to the registrar ‘in terms of rule 17’.  If
this is accepted it can only mean that he intended the registrar to
sign it.  Yet he did not make provision for the registrar to
sign the citation.  The citation is directed at the respondent
to take notice that the applicant has obtained leave to sue her by
edictal citation and further inter alia states that the
applicant ‘hereby institutes action against you by way of
edictal citation, in which action the Applicant claims the relief on
the grounds set out in the Intendit annexed hereto.’ After
further explaining what is expected of the respondent as is usually
done in a summons dating the citation, Mr Böttger made provision
for himself to sign the citation as legal practitioner for the
applicant and indeed signed the citation.  Below his signature
as is customary in all documents filed with the registrar, the words
‘TO: THE REGISTRAR OF THE HIGH COURT WINDHOEK’ appear.






[54]
He does not attach a copy of any covering letter which accompanied
the documents he allegedly forwarded to the registrar to indicate
what his request to the registrar was.  In the absence of
evidence that he requested the registrar to sign the citation and
without providing in the document any place for the registrar to sign
as is done in the case of a summons or combined summons it is not
surprising that it was indeed not signed. I do not think in the
circumstances this affords evidence of any oversight by the
registrar.






[55]
Later in his affidavit Mr Böttger states that he had forwarded
the citation to the registrar ‘for issuing’.  He
does not state how the registrar should have issued the citation if
no provision was made for the registrar to sign the citation. 
He also does not explain why he made no provision for the registrar
to sign nor does he state that an error was made when he drew the
citation.






[56]
From his letter to the Judge-President I in fact have the distinct
impression that he did not forward the citation to the registrar to
be signed and issued.  I say this because by then he well knew
what the registrar’s objections were and that the main
objection related to the fact that he never signed and issued the
citation.  Yet Mr Böttger does not mention anything about
this in the letter.  He mentions that the order was granted on
25 September and that the granted edict and intendit were served on
the respondent.  In the following paragraph he states that ‘at
this stage’ the application number initially allocated to the
matter was used on ‘all subsequent pleadings filed.’ He
then states: ‘With the benefit of hindsight, I submit that it
is at this stage where the clerks at the office of the registrar
ought to have issued an appropriate case number used for action
proceedings.’  From this I understand that he later
realized that an action number should have been allocated to the
matter after the citation and intendit had been served.  It may
also be that he meant to convey that the action number should have
been allocated at some earlier time.  However, it is clear from
his explanation that the citation was not forwarded to the
registrar’s office for the purpose of the clerks issuing an
action number, hence the reference to hindsight.






[57]
From the rest of Mr Böttger’s letter it remains clear that
he attempted to resolve the matter on the basis that the registrar’s
objection is a mere technicality which could be resolved by the
‘conversion’ of the application number into an action
number.  This does not align well with the explanation offered
in the founding affidavit that there was non-compliance with rule
17(3) because the registrar failed to sign the citation.






[58]
During argument counsel for the applicant suggested that, because of
the alleged agreement between Mr Böttger and Mr Hohne, the fact
that the citation was not signed was ‘a non-issue’ and
therefore there was no reference to this fact in the letter.
 However, as I understand the founding affidavit, Mr Böttger
only contacted Mr Hohne about the ‘oversights’ he
discovered after he received the memorandum dated 14 July 2008 from
the registrar.  By then the letter had already been written. 
The letter was also not copied to Mr Hohne.






[59]
Since October 2007 the registrar also complained that there was
non-compliance with rule 4(5)(a) and (b).  I agree with the
applicant’s submission that sub-rule (5)(a) is irrelevant
because the official language in the United States of America is
English.  However, in regard to the N$50 revenue stamp Mr
Böttger states in his affidavit that he found that this stamp
had inadvertently been placed on the power of attorney instead of on
the edictal citation as required by sub-rule (5)(b).  The
problem with this explanation is that the particular power of
attorney was only signed on 5 June 2008 and therefore could not have
been on the file when the application for leave to sue was moved or
when the citation was allegedly forwarded to the registrar for
signing. 






[60]
I have noted that this power of attorney states that it is given
‘insofar as I need to do so for formal requirements having
already authorized most of the undermentioned in a Power of Attorney
dated the 6th of September 2006’.  The original
power of attorney dated 6 September 2006 is not on the court file. 
Instead there is a document which appears to be a ‘file copy’
of a document which would normally be held on the files of the
applicant’s lawyers.  This seems to bear out the
registrar’s complaint that there was no power of attorney on
the file when the application for leave was moved or at least at
about 7 October 2007. 






[61]
I do not know whether Mr Böttger means to convey that he
attempted to rectify the problem by filing the power of attorney
dated 5 June 2008 and also whether there was a subsequent attempt to
put right the complaint of the N$50 which was then inadvertently
fixed on the second power of attorney.  He does not say anything
about whether he forwarded any document bearing a N$50 stamp during
November 2006. I regret to say that I do not know quite what to make
of the explanation.  It is not for the Court to search high and
low for pieces of the puzzle and to embark on conjecture in an
attempt to find a reason to grant what is an indulgence. 






[62]
To sum up, the various explanations raise more questions than they
provide answers.  The combined effect of the delay in launching
this application, the unsatisfactory explanation for this delay and
the unsatisfactory explanation for the non-compliance with the rules
is such that I am satisfied that the application for condonation
should be dismissed on these grounds alone.






Costs
and the question whether the respondent should have brought a rule 30
application






[63]
The applicant submitted that the respondent waived her right to
oppose the application for condonation because she did not bring a
rule 30 application when the irregularities became known to her. 
I deal with this aspect only because it may have a bearing on costs. 
It was contended on behalf of the applicant that the court should not
make an order for costs against the applicant because the respondent
had waived her right to object.






[64]
It was further submitted, at least in the applicant’s heads of
argument, that it is common cause that the respondent proceeded to
take further steps in the proceedings by filing a plea and
counterclaim while being aware of the irregularities.  This is
not correct.  These pleadings had already been filed during 2007
about a year before Mr Hohne first became aware of the irregularities
at some time after 14 July 2008, the date of the registrar’s
memorandum.   In this context Mr Hohne’s statements
that the respondent filed a plea and counterclaim ‘only’
to avoid judgment by default from being taken against her cannot be
accepted.  It is so, though, that on 20 August 2008 the
respondent filed a notice of intention to amend her plea by
introducing special pleas of res judicata and lis pendens
and actually filed the amended plea on 6 October 2008.  These
steps would constitute further steps in the proceedings at a time
when there probably was knowledge of the irregularities.






[65]
Mr Hohne denies in his affidavit that when Mr Böttger discussed
the issues with him he agreed not to take the matter any further. 
He does not state exactly when the discussion took place. He states:






13.4   
I at the time conveyed to Mr Böttger that, since the Court has
mero
motu

raised the issue we would not take the point if the Judge President
was of the opinion and satisfied that the Rules of Court were
complied with as I was made to understand from Mr Böttger which
turned out not to be the case.’






[66]
This explanation is not clear.  As I understand it, the
discussion took place sometime after 14 July 2008, although neither
Mr Böttger nor Mr Hohne states exactly when it took place. 
The impression is conveyed by Mr Böttger that it occurred
shortly after the memorandum was received and he had discovered the
‘oversights’. By then the Court had not mero motu
raised the issue.  This only happened at the hearing before
Tomassi J in May 2009.  However, what is clear is that, by the
time Mr Hohne became aware of the irregularities, the matter had
already been enrolled and set down on the divorce floating roll at Mr
Böttger’s insistence and with the approval of the
Judge-President.  The registrar’s memorandum also conveys
that the presiding judge would be dealing with the irregularities. 
In this sense one can understand that the presiding judge would ‘mero
motu
be raising the issue’.  It seems to me that the
explanation is clumsily worded, which is unfortunate. However, read
with the further contents of Mr Hohne’s affidavit, I am
satisfied that there was no express waiver of the respondent’s
right to oppose the application. 






[67]
Bearing in mind that the respondent only became aware at a very late
stage of the irregularities at a stage when the matter had already
been set down for trial and with the declared purpose of dealing with
those irregularities I am of the view that, in the peculiar
circumstances of this case, the fact that the respondent did not
bring a rule 30 application, should not be considered to be a bar to
opposition of the application for condonation or a reason to mulct
her in costs.






[68]
The result is then as follows:


1.   
The
applicant’s application to strike is granted with costs.


2.   
The
respondent’s application to strike is refused with costs.


3.   
The
applicant’s application for condonation is refused with costs.


 


 


 


 


_______(signed
on original)_________________


K
van Niekerk


Judge


APPEARANCE


 


For
the
applicant/applicant:                                           Adv
C van der Westhuizen


                                                                                              
Instr. by LorentzAngula
Inc


 


 


For
the respondent/respondent:                                  Adv
C J Mouton


                                                                                             
Instr. by Hohne & Co
Legal Practitioners