Court name
High Court Main Division
Case number
APPEAL 33 of 2013
Title

Hamutenya v Gameb and Others (APPEAL 33 of 2013) [2013] NAHCMD 45 (20 February 2013);

Media neutral citation
[2013] NAHCMD 45
Coram
Parker AJ













REPORTABLE








REPUBLIC OF NAMIBIA








HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 33/2013








In the matter between:








ADV. LUCIA PANDULENI
HAMUTENYA
..................................................APPLICANT








and








ISACK GAMEB
............................................................................FIRST
RESPONDENT



ALFEUS AUCHAB
.................................................................
SECOND
RESPONDENT



SIMEON PAULUS
.......................................................................
THIRD
RESPONDENT



PAUL GAMEB
........................................................................FOURTH
RESPONDENT








Neutral citation:
Hamutenya v Gameb (A 33/2013) [2013] NAHCMD 45 (20 February
2013)








Coram: PARKER AJ



Heard: 20
February 2013



Delivered: 20
February 2013








Flynote: Applications
and motions – Urgent application – Requirements for –
Salt and Another v Smith 1990 NR 87 relied on.








Summary:
Applications and motions – Urgent application –
Requirements for – Interpretation and application of rule
6(12)(b) in Salt and Another v Smith 1990 NR 87 relied on –
In casu applicant did not appear in person or by counsel when
applicant set the matter down for hearing of application on 15
February 2013 resulting in application being removed from the Roll –
On restoring application on the roll some three court days later
applicant did not explain why she failed to appear for the hearing on
15 February 2013 – Relying on Hewat Beukes t/a MC Bouers &
Others v Luderitz Town Council and Others
Case No. A 388/2009
(Unreported) Court finding that this is not a deserving case where
the court should grant indulgence to the applicant and hear the
matter on urgent basis – Additionally, court finding that
applicant has not satisfied the requirements in rule 6(12)(b) of the
rules of court – Court finding further that urgency is
self-created – Court accordingly dismissing application for
lack of urgency.










ORDER










The application is
dismissed for lack of urgency.










JUDGMENT










PARKER AJ:








[1] The applicant launched this
application on notice of motion and prayed that it be heard on urgent
basis. The application was set down by the applicant for hearing at
09h00 on 15 February 2013. There by no appearance for the applicant
and the respondents in person or by counsel I removed the matter from
the roll. Barely three days later the applicant now restores the
application on the Roll and still prays it to be heard on urgent
basis.








[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.








[3] The rule on urgent applications
plays a useful role in the administration of justice, and it must not
be prostituted or stultified to such an extent that it loses its
usefulness and efficacy.








[4] At the hearing today
(20 February 2013), there is no appearance for the respondents in
person or by counsel, bar the second respondent against whom the
application has been withdrawn. And the applicant, who appears in
person, does not give one iota of explanation why after setting the
matter down on short notice and praying that it be heard on urgent
basis she did not appear on 15 February 2013 for the hearing of her
application. The conduct of the applicant on its own is sufficient
for the court to refuse to grant the indulgence that the applicant
seeks. As I said in Hewat Beukes t/a M C Bouers & Others v
Luderitz Town Council and Others
Case No. A 388/2009 (Unreported)
(para 5), in deciding whether the requirements in rule 6(12)(b) have
been met, that is, whether it is a deserving case, it is extremely
important for the Judge to bear in mind that the indulgence –
and indulgence, it is – that the applicant is asking the Court
to grant, if the Court grants it, would whittle away the respondent’s
right to fair trial guaranteed to him or her by the Namibian
Constitution, and so it is only in deserving cases that the court
should grant such indulgence.








[5] Besides, the
applicant has not satisfied the two requirements in rule 6(12)(b).
She has not set out explicitly on the papers the circumstances which
render the matter urgent. She has also not given reasons why she
could not be afforded substantial redress in due course. See Salt
and Another v Smith
1990 NR 87 at 88A-C. The urgency is
self-created, I should add.








[6] For all the
aforegoing and in the exercise of my discretion I conclude that this
is not a deserving case where this court should hear the matter on
urgent basis.








[7] Whereupon, the
application is dismissed for lack of urgency.


















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



C Parker



Acting Judge













APPEARANCES








APPLICANT : In person













RESPONDENTS: No
appearance