Court name
High Court Main Division
Case number
APPEAL 446 of 2013
Case name
Witvlei Meat (Pty) Ltd v Cabinet of the Republic of Ministry and Others
Media neutral citation
[2013] NAHCMD 379
Judge
Ueitele J










REPUBLIC
OF NAMIBIA





HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





CASE
NO.: A 446/2013





DATE:
19 DECEMBER 2013





In
the matter between:








WITVLEI
MEAT (PTY)
LTD...........................................................................................................APPLICANT





And





THE
CABINET OF THE REPUBLIC OF
NAMIBIA.................................................FIRST
RESPONDENT





THE
MINISTER OF TRADE AND
INDUSTRY....................................................SECOND
RESPONDENT





THE
MEAT BOARD OF
NAMIBIA.............................................................................THIRD
RESPONDENT





THE
MINISTER OF AGRICULTURE WATER


AND
FORESTRY.....................................................................................................FOURTH
RESPONDENT





MEATCO........................................................................................................................FIFTH
RESPONDENT





BRUCARROS
(PTY)
LTD..........................................................................................SIXTH
RESPONDENT








Neutral
citation: Witvlei Meat (Pty) Ltd v The Cabinet of the Republic of
Namibia (A 446/20123) [2013] NAHCMD 379 (19 December 2013)





Coram: UEITELE
J





Heard: 16
December 2013





Delivered: 19
December 2013





Flynote:





Practice
-
Applications and motions - Urgent applications. Urgency - What
it involves-When established filing and sitting times of the Court
can be departed from-Practitioners to carefully determine whether
greater or lesser degree of relaxation of the Rules and practice of
the Court is required - Rule of Court 6 (5) (b), (12).


Practice
-
Service of process - Service facsimile - Evidence should be
placed before court that that the facsimile number belongs to the and
the respondent received notice - Sheriff should record this fact in
return of service - Failure to do so resulting in service being
declared an irregular step.


Summary:
In this matter the applicant applied for the following relief in part
A of its notice of motion:





'1.
Condoning the applicant's non-compliance with the Rules of this
Honourable Court be with regard to service and filling and that this
matter be dealt with as one of urgency as contemplated in Rule 6 (12)
of the Rules of the above Honourable Court;





2.
That pending the finalization of the review proceedings that has been
instituted with this application by Applicant in this Honourable
Court against respondents, an order be granted by this Honourable
Court in the following terms :





2.1
Staying the decision of the first respondent contained in the letter
of 09 December 2013 in respect of the Norway Beef Export Quota, with
immediate effect pending the final determination of the Review
Application simultaneously filed herewith;


2.2
interdicting and restraining First Respondent, Second Respondent, and
third Respondent from carrying out or performing any activity in
furtherance of the decision referred to in 2.1 above pending the
final determination of the Review Application simultaneously filed
herewith;


2.3
compelling the third respondent to adjudicate over the application of
the applicant for a Norway Beef Export Quota filed in October 2013
pending the final determination of the Review Application
simultaneously filed herewith.







3
That prayer 2.1, 2.2 and 2.3 shall operate as an interim interdict
with immediate effect pending the return date determined by the
Honourable Court.





4
Ordering that the respondents are to pay the costs of this
application, the one paying the other to be absolved, in the event of
any of the opposing this application.





5.
Granting the applicant further and /or alternative relief.'





The
applicant applied (the Notice of Motion is dated 13 December 2013)
for this relief to be adjudicated by the court on a specific day,
namely 16 December 2013, but it did not in its notice of motion
provide for specific times when notice to oppose the application,
answering and replying affidavits should be filed.


In
the answering affidavits respondents make it clear that, they object
to lack of urgency of the application and that if any urgency exists,
it is caused by the applicant's own conduct. Apart from urgency,
respondents also took an objection that Mr Martin Winfried Sydney who
deposed to the affidavit on behalf of the applicant did not have the
authority to institute action on behalf of the applicant.





At
the hearing of the application, the court ordered that it intends to
hear arguments only in respect of the points in limine.


Held,
that the notice of motion is not ‘as far as practicable
possible in terms of the rules of this court.


Held,
further that there was no service on the sixth respondent ass
contemplated in rule 4(1)(a)(v), and the service on the sixth
respondent amounts to a nullity.


ORDER





1.
The application is struck from the roll.


2.
Applicant is ordered to pay respondents' costs, which will include
the costs of one instructing and one instructed counsel.


3.
The second respondent is order to extend the date by which the bids
for the allocation of the Norwegian Quota have to be submitted to 27
December 2013.





JUDGMENT





UEITELE
J





A
INTRODUCTION





[1]
The operation of this court is governed by procedural law. Much of
this law is contained in the rules of court. The rules were made in
terms of s 39 of the High Court Act, 19901
and, as delegated legislation, are binding upon the Courts.





[2]
Rule 6 of the High Court Rules deals with applications. In terms of
Rule 6 (5)(a) every application other than one brought ex parte must
be brought on notice of motion as near as may be in accordance with
Form 2(b) of the First Schedule to the Rules and true copies of the
notice, and all annexures thereto, must be served upon every party to
whom notice of the application is to be given. In terms of Rule 6
(5)(b) the applicant must set forth a day, not less than 5 days after
service of the application on the respondent, on or before which that
respondent is required to notify the applicant, in writing, whether
he or she intends to oppose the application, and must further state
that, if no such notification is given the application will be set
down for hearing on a stated day, not being less than 7 days after
service on the respondent of the notice.





[3]
In terms of Rule 6(5)(d)(i) & (ii) any person opposing the grant
of an order sought in the notice of motion must within the time
stated in the notice of motion, give applicant notice, in writing,
that he or she intends to oppose the application, and within 14 days
of notifying the applicant of his or her intention to oppose the
application, deliver his or her answering affidavit, if any, together
with any relevant documents. In terms of Rule 6(5)(f) an applicant
upon delivering his or her replying affidavit may apply to the
Registrar to allocate a date for the hearing of the application.
Since the coming into operation of the case management rules the
matter will then be allocated to a managing judge who regulates the
proceedings up to date of hearing. It follows that at the moment, an
applicant would have to wait between three to nine months before his
matter is heard.





[4]
The above procedures apply in the ordinary course, more rapid
procedures are available to applicants both in review proceedings and
in other applications. Rule 272
entitles the Court upon application on notice and good cause shown
to make an order abridging any time prescribed by the rules. The
court may also on good cause shown condone any non-compliance with
the Rules. The hearing of applications may furthermore be expedited
under Rule 6(12) , that rule provides that the Court may dispose of
urgent applications at such time and place and in such manner and in
accordance with such procedure as to it seems meet. The circumstances
that an applicant avers render a matter urgent and the reasons why he
claims that he could not be afforded substantial redress at a hearing
in due course must, be set forth explicitly in the supporting
affidavit. Should the matter be too urgent for affidavits to be
prepared, the Court can condone non-compliance with Rule 6 (12)3
in terms of its powers under Rule 27. Matters of extreme urgency can
thus be brought before the court at any time, day or night.





B
BACKGROUND





[5]
In this matter the applicant applied for the following relief in part
A of its notice of motion (I quote verbatim from the notice of
Motion):


'1.
Condoning the applicant's non-compliance with the Rules of this
Honourable Court be with regard to service and filling and that this
matter be dealt with as one of urgency as contemplated in Rule 6 (12)
of the Rules of the above Honourable Court;


2.
that pending the finalization of the review proceedings that has been
instituted with this application by Applicant in this Honourable
Court against respondents, an order be granted by this Honourable
Court in the following terms :





2.1
Staying the decision of the first respondent contained in the letter
of 09 December 2013 in respect of the Norway Beef Export Quota, with
immediate effect pending the final determination of the Review
Application simultaneously filed herewith;


2.2
interdicting and restraining First Respondent, Second Respondent, and
third Respondent from carrying out or performing any activity in
furtherance of the decision referred to in 2.1 above pending the
final determination of the Review Application simultaneously filed
herewith;


2.3
compelling the third respondent to adjudicate over the application of
the applicant for a Norway Beef Export Quota filed in October 2013
pending the final determination of the review application
simultaneously filed herewith.


3.
That prayer 2.1, 2.2 and 2.3 shall operate as an interim interdict
with immediate effect pending the return date determined by the
Honourable Court.


4.
Ordering that the respondents are to pay the costs of this
application, the one paying the other to be absolved, in the event of
any of the opposing this application.


5.
Granting the applicant further and /or alternative relief.'





[6]
The applicant applied (the Notice of Motion is dated 13 December
2013) for this relief to be adjudicated by the court on a specific
day, namely 16 December 2013, but it did not in its notice of motion
provide for specific times when the notice to oppose, the answering
and replying affidavits should be filed. The applicant brought this
application as an 'extremely- urgent’ one.





[7]
The second respondent filed and served an answering affidavit with
annexures and the applicant replied thereto. The third and fifth
respondents also filed detailed answering affidavits. In the
answering affidavits the second third and fifth respondents make it
clear that, they object to lack of urgency of the application and
that if any urgency exists, it is caused by the applicant's own
conduct. Apart from urgency, the third and fifth respondents also
took an objection that Mr Martin Winfried Sydney who deposed to the
affidavit on behalf of the applicant did not have the authority to
institute action on behalf of the applicant.





[8]
At the commencement of the application, after the parties could not
agree on the procedures to be adopted, I ordered that the court
intends to hear arguments only in respect of the points in limine,
namely the urgency issue, whether Mr Martin had authority to bring
the application on behalf of the applicant and whether the first
applicant was properly. The applicant was represented by Mr Phatela,
the first second and fourth respondent by Mr Namandje, the Third
Respondent by Mr Van Vuuren, the fifth respondent by Mr Obbes and
there was no representation on behalf of the sixth respondents. I
will in the cause of this judgment return to the absence of the sixth
respondent. Arguments were then submitted in respect of the issues
mentioned, namely urgency and lack of authority, with the respondents
commencing with their arguments.





[9]
No heads of argument were filed and the legal representatives argued
the matter without heads. In his oral arguments Mr Namandje objected
to the prejudice that it suffered by being forced to compile an
answering affidavit in such short notice caused by the fact that, the
applicant brought this application as one of urgency, he further
claimed that, the first, second and fourth respondents were severely
prejudiced by this conduct of the applicant. At the conclusion of
oral arguments by counsel for the respondents and the applicants, the
court reserved judgment.





[10]
Although the merits of the application were not dealt with, I find it
necessary to refer to the background of this application. During 2006
the SACU4
countries of which Namibia is a member, entered into a Free Trade
Agreement with certain members of the European Free Trade Association
(EFTA), one of which is Norway, with the main objective of that
agreement being, inter alia, to achieve the liberalisation of trade
in conformity with the General Agreement on Tariffs and Trade to
increase investment opportunity in the Free Trade Area, promote
adequate and effective protection of intellectual property, and
establish a framework for the further development of their trade and
economic relations with a view to expanding and enhancing the mutual
benefits.





[11]
Pursuant to the Free Trade Agreements between the SACU and EFTA
countries, Namibia entered into an Agricultural Agreement with
Norway. In terms of that agreement and the Norwegian Generalised
system of Preference (GSP) Namibia was allocated a total beef quota
of 1600 tonnes of beef per annum for preferential market access into
the Norwegian market.





[12]
After Namibia was allocated the right to export 1600 tonnes of beef
per annum to Norway (I will in this judgment refer to the quota
allocated to Namibia as the ‘Norwegian quota’) on
preferential terms, the Cabinet of the Republic of Namibia made a
policy decision as to how the allocated quota will be exploited by
the government. The policy decision taken on 03 August 2010 and
communicated to the applicant on 10 August 2010 in material terms
provided as follows:





1.
Cabinet, at its meeting held on 3rd August 2010, took note of the
1,600 metric tons total quota allocated to Namibia to export beef to
Norway under Norway’s Generalised Systems of Preference (GSP)
import tariff regime; and


2.
Approved the sharing of the existing quota between Witvlei Meat and
Meatco on a 50/50 per cent basis.


3.
The quota sharing mechanism approved by Cabinet has the following
conditions and administrative procedures that will apply and must be
adhered to by the beneficiaries:


3.1
The total Namibian share of the beef export quota to Norway (1,600
metric tons) shall be shared between present and future registered
Namibian meat exporters who have obtained an EU meat export
qualification;


3.2
In light of the above, the Cabinet approved 50/50 sharing of the
total country quota between Witvlei Meat and Meatco takes into
account that these two entities are currently the only certified
exporters. However, the Government will review the quota allocation
to the current two approved exporters in order to accommodate new
applicants who meet and have been granted Namibian and EU or
Norwegian export approvals.


3.3
To ensure that the Norwegian market benefit is available to all
qualifying Namibian meat exporters, the Meat Board of Namibia shall,
by a notice in the media, invite applications for permits to export
beef to Norway three (3)months before the end of a calendar year (on
October 1st). This will take effect from 2011 in respect of the quota
for 2012 and subsequent years.


3.4
Effective from 2011 onward the Meat Board shall, two (2) months
before the end of a calendar year, inform applicants of the quota
amount awarded and will issue export permits valid for a year and
reflecting the meat export quota awarded to each beneficiary for that
year.


3.5
As a condition for the export permit, each permit holder must, by the
last day of June of each year, report back to the Meat Board on the
total exports achieved.


3.6
If an export permit holder has not fulfilled his export
commitment(s), by 30 June of each year, his permit may be revoked and
his allocated export quota share re-allocated to other exporters who
are meeting their export commitments and are in need of additional
market export opportunities.


3.7
Non-compliance with the terms and conditions of the export permit as
well as the general beef export quota allocation system stated herein
will render an entity ineligible for an export quota in the
subsequent year.’







[13]
Following the cabinet decision taken on 03 August 2010, the applicant
leased and built the necessary infrastructure and acquired the
accreditations necessary to enable its products to qualify for export
to Norway under the Norwegian quota. Since August 2010, the applicant
has been exporting beef products to Norway under the Norwegian quota.





[14]
On 4 October 2013 the third respondent invited all interested parties
(by way of a press advertisement to apply for a share in the
Norwegian quota. From the papers before me it appears that three
entities (the applicant, the fifth and the sixth respondents)
submitted applications to be granted a quota to export beef and
mutton products to Norway under the Norwegian quota.





[15]
It furthermore appears that pursuant to the applications received
during October 2013, the third respondent entrusted a body named the
National Livestock Marketing Committee to advise it on how to decide
on the three applications. The National Livestock Marketing Committee
met on 8 October 2013, to amongst others consider the allocation of
the Norwegian quota. I will in full quote the discussion and the
resolution relating to the allocation of the Norwegian quota taken at
the meeting of 8 October 2013. It reads as follows:





Mr
P Strydom (MBN) informed the meeting that the MBN has advertised that
applicants for the Norwegian Quota should contact the MBN regarding
the quota allocation for the next year. Unless there are new
applicants, the quota will again be allocated on a 50/50 basis to
Meatco and Witvlei.


Meatco
Representatives enquired whether the MBN approached the Ministry of
Trade and Industry (MTI) regarding the NLMC’s request that an
industry meeting be convened to discuss the current 50/50 allocation
of the Norwegian quota. Mr Strydom indicated that MTI indicated that
the Cabinet decision still stands on the 50/50 allocation and they do
not foresee that the protocol will be changed at this stage. The
Norwegian quota was mentioned at the Implementation and Monitoring
Committee meeting but was not discussed.


The
meeting noted members of the meeting’s objection to the fact
that the MBN did not adhere to the NLMC’s request for an
industry meeting with MTI and furthermore that the MBN did not share
MTI’s response on the allocation of the Norwegian quota with
the rest of the industry members.


The
meeting also highlighted their concerns that the protocol allows that
if a third party applies for quota to export to Norway, the quota
would be shared equally between all the applicants, regardless of
whether the newcomer adds value locally, especially in the Northern
Communal Areas, or has the production capacity so fill its quota
obligations.





RESOLVED:





Noted
concerns and objections raised at the meeting;


Requested
the MBN to convene a special meeting with the industry stakeholders
to discuss the industry’s concerns with regard to the
allocation of the Norway quota for beef and lamb products to
establish whether the industry’s position is still valid,
namely that the allocation of the quota should be based on
production/capacity of the export abattoir.’





[16]
Following the meeting of 08 October 2013, the third respondent on 14
October 2013 invited stakeholders in the meat industry to attend a
meeting, on 17 October 2013, at which meeting the allocation of the
quota will be discussed. The meeting of 17 October 2013, did not take
place and it was postponed to 30 October 2013.





[17]
The meeting of 30 October 2013 discussed the allocation of the
Norwegian quota and made the following recommendations:





4.1
That the different interest groups need to submit their position
papers to the MBN (i.e. the Meat Board of Namibia, the third
respondent) which will be incorporated in a submission to the MTI
(i.e. Ministry of Trade and Industry and Cabinet).


4.2
The MBN will grant a opportunity to interest groups to have a insight
in the submission prepared for MTI).’







[18]
On 18 November 2013, the third respondent called for a further
meeting to be held on 27 November 2013, in order to discuss the
allocation of the “Norwegian Quota”. The meeting of 27
November 2013 was motivated as follows:





Background:





The
Meat Board invited (through media publishes on 8th October 2013)
applications for the utilization of the GSP and EFTA quota for
intended beef exports to Norway during 2014. Applications were
received from Meatco, Witvlei and Brukkaros abattoirs, respectively.
Since there was a new entrance (sic) (Brukkaros) the need arose to
re-look at the quota allocation arrangement for the interest of the
total industry. Hence, on the 30th October 2013, Meat Board convened
and chaired a stakeholder meeting to deliberate on the future
allocation formula of the Quota. However, the stakeholders were
having different views with regard to the Norwegian allocation
formula. Hence the need to deliberate it further to arrive at the
mutual beneficial position.





Way
forward





The
Board, on its meeting (12th November 2013) therefore decided that the
issue needs to be discussed with broader stakeholders, ie National
Livestock Marketing Committee (NLMC), after which the BOARD will
forward an “industry position” to the MTI based on the
advice of the NLMC. It is on the backdrop of the above cited matter
that my office extends an invitation to you for a “Special
National Livestock Marketing Committee meeting” scheduled as
follows:





Date:
27 November 2013.’





[19]
On 19 November 2013, the applicant responded as follows to the
invitation by the third respondent:


We
fail to see the need of this meeting, however, if you intend to
proceed with it, please schedule for the afternoon of the 3rd
December 4th or 5th December any time, as we have a conflict in our
diaries for the 27th November!’





[20]
From the documentation before me it appears that the third respondent
did not adhere to the request to postpone the meeting scheduled for
27 November 2013. It also did not provide reasons to the applicant
why the postponement cannot be granted. The National Livestock
Marketing Committee at its meeting of 27 November 2013 in material
terms resolved to make the following recommendations:





3.1
Allocation formula





The
Norway quota to be allocated proportionally based on throughput -
cattle numbers slaughtered-using three years’ slaughtering
data. This arrangement will ensure that maximum benefits accrue to
all producers nationwide.





3.2
New entrants







In
future new applicants will be required to obtain the necessary EU
approval certificate for beef exports to Norway and quota will be
allocated based on estimated capacity as determined by EU
standards/regulations.





3.3
Brukkaros Meat Processors’ allocation of quota


BMP
to be awarded 50 tons - based on their slaughter estimate for the
first year and thereafter the allocation should be based on
historical slaughter performance. Should BNP fail to utilize the
quota by 31 September 2014, the quota will be redistributed to the
remaining eligible exporters based on the proposed formula.





4.
WAY FORWARD





The
meeting supported the following route:





MBN
to formulate the industry position for submission to the Ministry of
Trade and Industry for Cabinet’s consideration. Timeframe:
Submission on 29 November 2013;


MBN
to attach the Attendance List to the Industry’s Position Paper;


MBN
to follow up with MTI on progress and inform the industry
accordingly.’





[21]
On 9 December 2013, the Minister of Trade and Industry communicated
the following to the applicant. I, again in full quote verbatim the
communication to the applicant:


We
are writing to you in response to your application for a beef export
quota to Norway, which we have received through the Meat Board.


The
Ministry of Trade and Industry has received applications for beef
export quotas to Norway from three export abattoirs. In order to
enable us to allocate such quotas in a transparent manner and in
conformity with existing policies Cabinet was approached to approve
that such quotas are allocated through a bidding process.


Please
be informed that Cabinet agreed that the beef export quotas for
Norway for the year 2014 be allocated through a bidding process. The
criteria that will be considered for allocating the quotas are as
follows:





1.
The price paid to producers (north and south of the veterinary cordon
fence);


2.
The total additional employment that will result from the quota
amount applied for;


3.
Detailed outline of current value addition activities;


4.
Binding offer for additional value addition and processing capacity
improvement;


5.
Outlook towards secondary industry development both for inputs and
output products; and


6.
The reinvestment of proceeds from quotas allocated.’





[22]
The letter of 09 December 2013, is the source of the applicant’s
grieve and the catalyst to this application. I will now proceed to
evaluate the objections raised by the respondents.





C
THE POI NTS IN LIMINE


Urgency





[23]
As I have indicated above applications are dealt with in rule 6 of
the rules of the High Court of Namibia. This rule is applicable to
each and every application brought by way of notice of motion.
Because this application was not brought ex parte, rule 6(4) is
ignored for the purpose of this application. Rule 6(5) sets out what
is required in respect of an application such as this. This rule has
been subjected to interpretation by this Court in a number of
decisions. In the case of Mweb Namibia (Pty) Ltd v Telecom Namibia
Ltd and Others5
Muller J with Mainga J and Damaseb JP concurring remarked as
follows:


Rule
6(12) deals with urgent applications. It is trite that the court has
a discretion in this regard, which also clearly appears from the
wording of rule 6(12)...Rule 6(12)(b) makes it clear that the
applicant must in his founding affidavit explicitly set out the
circumstances upon which he or she relies that it is an urgent
matter. Furthermore, the applicant has to provide reasons why he or
she claims that he or she could not be afforded substantial address
at the hearing in due course.’





[24]
In the matter of Luna Meubel Vervaardigers v Makin and Another (t/a
Makin's Furniture Manufacturers)6
Coetzee, J remarked as follows:


Undoubtedly
the most abused Rule in this Division is Rule 6(12) ... Far too many
attorneys and advocates treat the phrase " which shall as far as
practicable be in terms of these rules", in sub-rule (a) simply
pro non scripto ... Once an application is believed to contain some
element of urgency, they seem to ignore (1) the general scheme for
presentation of applications as provided for in Rule 6 ... These
practitioners then feel at large to select any day of the week and
any time of the day (or night) to demand a hearing. This is quite
intolerable and is calculated to reduce the good order which is
necessary for the dignified functioning of the Courts to shamble ...
Urgency involves mainly the abridgement of times prescribed by the
Rules and, secondarily, the departure from established filing and
sitting times of the Court. Practitioners should carefully analyse
the facts of each case to determine, for the purposes of setting the
case down for hearing, whether a greater or lesser degree of
relaxation of the Rules and of the ordinary practice of the Court is
required. The degree of relaxation should not be greater than the
exigency of the case demands. It must be commensurate therewith. Mere
lip service to the requirements of Rule 6 (12) (b) will not do and an
applicant must make out a case in the founding affidavit to justify
the particular extent of the departure from the norm, which is
involved in the time and day for which the matter be set down’.7





[25]
In the case of Bergmann v Commercial Bank of Namibia Ltd and Another3
Maritz, J had the following to say:


The
Court's power to dispense with the forms and service provided for in
the Rules of Court in urgent applications is a discretionary one. One
of the circumstances under which a Court, in the exercise of its
judicial discretion, may decline to condone non-compliance with the
prescribed forms and service, notwithstanding the apparent urgency of
the application, is when the applicant, who is seeking the
indulgence, has created the urgency either mala fides or through his
or her culpable remissness or inaction ... It is more so when the
relief being sought is essentially of a final nature and no or very
little opportunity has been afforded to the respondent to properly
present his or her defence. Obviously, each case is to be decided
upon its own facts and circumstances, although I find it difficult to
envisage that a Court would come to the assistance of an informed
applicant who mala fide abuses the Rules of Court by delaying the
institution of urgent application proceedings to score an advantage
over his or her opponent. ... It happens, in my experience all too
frequently, that this Court is being inconvenienced by last minute
applications to stay sales in execution. Judges of this Court have
heard several applications of this nature after ordinary Court hours
- thus not only inconveniencing the Court itself but also the Court's
staff (such as the Court's orderlies, clerks and stenographers). ...
When an application is brought on a basis of urgency, institution of
the proceedings should take place as soon as reasonably possible
after the cause thereof has arisen. Urgent applications should always
be brought as far as practicable in terms of the Rules. The
procedures contemplated in the Rules are designed, amongst others, to
bring about procedural fairness in the ventilation and ultimate
resolution of disputes. Whilst Rule 6(12) allows a deviation from
those prescribed procedures in urgent applications, the requirement
that the deviated procedure should be 'as far as practicable' in
accordance with the Rules constitutes a continuous demand on the
Court, parties and practitioners to give effect to the objective of
procedural fairness when determining the procedure to be followed in
such instances. The benefits of procedural fairness in urgent
applications are not only for an applicant to enjoy, but should also
extend and be afforded to a respondent. Unless it would defeat the
object of the application or, due to the degree of urgency or other
exigencies of the case, it is impractical or unreasonable, an
applicant should effect service of an urgent application as soon as
reasonably possible on a respondent and afford him or her, within
reason, time to oppose the application. It is required of any
applicant to act fairly and not to delay the application to snatch a
procedural advantage over his or her adversary.’ (My Emphasis)





[26]
Having set out the legal principles which guide the court as to how
to exercise its discretion, I will now proceed to evaluate whether
the applicant has satisfied the requirements of Rule 6 (12).





[27]
I have already pointed out the Notice of Motion is dated 13 December
2013 (which is a Friday). The notice of motion did not inform the
respondents as to when they must give notice of their intention to
oppose the application, it also did not inform the respondents as to
when they must file their answering affidavits. Can it in the
circumstances be said that the notice of motion is ‘as far as
practicable in terms of these rules. I am of the view that the answer
is in the negative.





[28]
The matter was set down for hearing on Monday morning 16 December
2013 at 09H00. The Deputy Sherriffs return of services indicate that
the Notice of Motion was served on the Government Attorney (who is by
statute authorised to receive service on behalf any Government
Agency, Ministry or Department) at 14H56 on the 13th December 2013,
on the Third Respondent at 14H47 also on the 13th December 2013, on
the Fifth Respondent at 15H09 also on the 13th December 2013. As
regard the sixth respondent the Deputy Sherriff s return of service
simply indicates the following:





Address
where served:


Fax:
26463228820





RETURN
OF SERVICE


ON
13 Dec 2013 AT 14:35DOCUMENT SEVED PER FAX’





[29]
I have above quoted Coetzee, J who in the matter of Luna Meubel
Vervaardigers v Makin and Another (t/a Makin's Furniture
Manufacturers8
held that urgency involves mainly the abridgement of times
prescribed by the Rules and, secondarily, the departure from
established filing and sitting times of the Court. Urgency does not
mean the disregard of the rules. Rule 6(5)(a) in material term
provides as follows:





(5)(a)
Every application other than one brought ex parte shall be brought on
notice of motion as near as may be in accordance with Form 2(b) of
the First Schedule and true copies of the notice, and all annexures
thereto, shall be served upon every party to whom notice thereof is
to be given.’ (My Emphasis).





[30]
Although there is no notice to oppose and no affidavit filed on
behalf of the sixth respondent before me, it cannot be disputed that
it has a substantial interest in this application. Had the sixth
respondent not been joined in the application, it would certainly
have been considered to be a mis-joinder, which would cause the
application to fail. However, the fact is that the sixth respondent
had been joined and the application had to be served on it in
compliance with of the rules of court and the High Court Act. Rule
4(1)(a)(v) of the High Court Rules in material terms provides as
follows:





Service





4.
(1)(a) Service of any process of the court directed to the sheriff
and subject to the provisions of paragraph (b) any document
initiating application proceedings shall be effected by the sheriff
in one or other of the following manners, namely -





(v)
in the case of a corporation or company, by delivering a copy to a
responsible employee thereof at its registered office or its
principal place of business within Namibia, or if there be no such
employee willing to accept service, by affixing a copy to the main
door of such office or place of business, or in any manner provided
by law;’





[31]
In the matter of Knouwds NO v Josea and Another9
the Judge-President, Damaseb,


said
:10





"Service1
of process is the all-important first step which sets a legal
proceeding in train. Without service, can there really be any
argument that proceedings are extant against a party? Speaking of
'short service', the learned authors Herbstein and Van Winsen The
Civil Practice of the Supreme Court of South Africa 4 ed comment at
283:





If
the defendant or respondent has not been allowed sufficient time, the
service will be bad and fresh service will have to be made. In two
cases, Brussels & Co v Barnard & another and Cole &
others v Wilmot, the courts condoned short service but no reasons are
given in the reports. If these cases lay down the principle that it
is in the discretion of the court to condone short service, they are,
with respect, wrongly decided. It has been suggested that the test
the court should apply is whether the defendant has suffered any
prejudice through the short service. In later cases, however, the
courts have not accepted that it is necessary for the defendant to
show either that he has been prejudiced or that he has a good defence
to the action, and in Salkinder v Magistrate of De Aar & another
short service was held to be a fatal irregularity. In another case
the court granted provisional sentence but reserved leave to the
defendant to move the court to set aside the order on the ground of
short service. (Footnotes omitted.)


If
short service is fatal, a fortiori, non-service cannot be otherwise.
Where there is complete failure of service it matters not that,
regardless, the affected party somehow became aware of the legal
process against it, entered appearance and is represented in the
proceedings. A proceeding which has taken place without service is a
nullity and it is not competent fora court to condone it.’ (My
Emphasis)





[32]
In the case of Beauhomes Real Estates (Pty) Ltd v Namibia Estate
Agents Board11


Hoff,
J said the following:





It
has been held that the issue of a summons is the initiation process
of an action and has certain specific consequences, one of which is
that it must be served in terms of the methods of service prescribed
by the rules and that mere knowledge of the issue of a summons is not
service which could relieve a plaintiff of his or her obligation to
follow the prescribed rules. (See First National Bank of SA Ltd v
Ganyesa Bottle Store (Pty) Ltd and Others; First National Bank of SA
Ltd v Schweizer Drankwinkel (Pty) Ltd and Another 1998 (4) SA 565
(NC) at 568B – C).





Where
proper service had not been effected, such service may be regarded as
a nullity. In SA Instrumentation (Pty) Ltd v Smithchem (Pty) Ltd 1977
(3) SA 703 (D) at 706E - F it was held that where there was no
service on the defendant company in terms of the provisions of rule
4(1)(a)(v) such a service was a nullity and that the court could
under the particular circumstances of that case not condone the
improper service.’





[33]
In the present instance there was no service at all on the sixth
respondent in terms of the provisions of rule 4(1)(a)(v). The service
on it was purportedly done by way of a facsimile. There is no proof
and no evidence was led that the fax number to which the Notice of
Motion and the attached documents were send belongs to the sixth
respondent. There was equally no proof or evidence that the sixth
respondent received the Notice of Motion and the documents attached
to it. This may explain why the sixth respondent is not before court.
In my view the service on the sixth respondent amounts to a nullity
which is fatal to this application. In the light of my finding that,
the application was not properly served on the sixth respondent I
find it unnecessary to deal with the other points in limine raised by
the respondents or with the merits of the matter.





Costs





[34]
The only issue that remains to be determined is the question of cost.
The basic rule is that, except in certain instance where legislation
otherwise provides, all awards of costs are in the discretion of the
court.12
It is trite that, the discretion must be exercised judiciously with
due regard to all relevant considerations. The court's discretion is
a wide, unfettered and equitable one 13.
There is also, of course, the general rule, namely that costs follow
the event, that is, the successful party should be awarded his or her
costs. This general rule applies unless there are special
circumstances present.14
In the present matter, I have no special circumstances have been
placed before me as to why, I should not follow the general rule.





[35]
Before, I make my order, I pause here to observe that, the second
respondent has set the date of 20 December 2013, as the date on which
the bids for the allocation of the Norwegian quota had to be
submitted as 20 December 2013. I am of the view that, the applicant’s
challenge of the decision of the first respondent was not vexatious
and unreasonable. I, therefore direct that the second respondent must
extend the date for the submission of the tenders to 27 December
2013.





[36]
In the result I make the following order:





1.
The application is struck from the roll.


2.
Applicant is ordered to pay respondents' costs, which will include
the costs of one instructing and one instructed counsel.


3.
The second respondent is order to extend the date by which the bids
for the allocation of the Norwegian Quota to 27 December 2013.








SFI
Ueitele


Judge





APPEARANCES:





APPLICANT: T
PHATELA





Instructed
by Mueller Legal Practitioners





FIRST,
SECOND & FOURTH RESPONDENT: S Namandje





Instructed
by Government Attorney





THIRD
RESPONDENT: AvanVuuren





Instructed
by Engling, Stritter & Partners





FIFTH
RESPONDENT: D Obbes





Instructed
by Lorentzangula Inc









1Act
16 of 1990.




2Any
such extension may be ordered although the application therefor is
not made until after expiry of the time prescribed or fixed, and the
court ordering any such extension may make such order as to it seems
meet as to the recalling, varying or cancelling of the results of
the expiry of any time so prescribed or fixed, whether such results
flow from the terms of any order or from these rules.




3The
court may, on good cause shown, condone any non-compliance with
these rules.’




4Southern
African Customs Union is regional trade block consisting of Namibia,
South Africa, Botswana, Swaziland and Lesotho.




52012
(1) NR 331 (HC).




61977
(4) SA 135 (W).




7The
case of
Luna
Meubels
was
approved by this court in the matter of
Salt
and Another v Smith
1990
NR 87 (HC) at 88.




8Supra
footnote 6 at 136.




92007
(2) NR 792 (HC).




10At
798A [22].




112008
(2) NR 427 (HC) at 43.




12Hailulu
v Anti-Corruption Commission and Others and China State Construction
Engineering Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC
2007 (2) NR 674.




13Intercontinental
Exports (Pty) Ltd v Fowles 1999 (2) SA 1045.




14China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC 2007 (2) NR 674.