Court name
High Court Main Division
Case name
QE Construction CC v Air Cool CC
Media neutral citation
[2014] NAHCMD 208
Judge
Hoff J










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 155/2014





DATE:
02 JULY 2014





REPORTABLE





In the matter
between:





QE CONSTRUCTION
CC..........................................APPLICANT





And





AIR COOL
CC.......................................................RESPONDENT








Neutral citation:
QE Construction CC v Air Cool CC (A 155/2014) [2014] NAHCMD 208 (02
July 2014)





Coram: HOFF J





Heard: 01 July
2014





Delivered: 02
July 2014





Reasons: 08 July
2014








Summary:
Urgent applications should be brought as far as is practical in terms
of the provisions of the Rules in order to facilitate procedural
fairness – Rule 65(4) applicable to urgent applications –
Applicants in urgent applications must responsibly strike a balance
between the duty to obey Rule 65(4) and the entitlement to deviate
from the Rules.





Rules 65(5)(a) and
(b) are peremptory except in extremely urgent circumstances.
Applicants should be conscious that their conduct, in an application
which is rushed to court on a ill-perceived urgent basis, may be
construed as a misuse or an abuse of process and that a court in
exercising its discretion may for that reason strike the urgent
application from the roll.








ORDER





The application is
struck with costs.








JUDGMENT








HOFF J:





[1] This court heard
this urgent application on 1 July 2014 and on 2 July 2014 struck the
application with costs. These are the reasons.





[2] The applicant in
this urgent application sought the following relief:





‘1. Condoning
the Applicant’s non-compliance with the forms and service as
contemplated for in the rules authorising the Applicant to bring this
application on an urgent basis as contemplated in Rule 6(12) of the
rules of the above Honourable Court.





2. That a Rule Nisi
is hereby issued calling upon the respondent and all interested
parties to show cause, if any, to the above Honourable Court, on
FRIDAY the 8TH day of AUGUST 2014 at 10H00 why an order in the
following terms should not be made:





2.1 That the
Respondent be directed or ordered to restore the peaceful and
undisturbed possession of the Applicant of:





2.1.1 two air
conditioner condenser units;





2.1.2. two air
conditioner booster units, and;





2.1.3 boxes with
equipment.





2.2 That the
Respondent be ordered to pay the costs of the Applicant.





2.3 Further and/or
alternative relief.





3. That the relief
set out in prayer 2.1 above shall operate as a temporary interim
interdict, with immediate effect upon service of this order, and
pending the interim date thereof.’





[3] The relief
sought by the applicant is a spoliation order on the basis that the
respondent resorted to self-help. At the inception of the hearing of
this urgent application Ms Campbell, who appeared on behalf of the
respondent, handed up a notice to oppose the application and
indicated that she held instructions at that stage to argue the issue
of urgency. No answering papers had been filed.





[4] This court was
referred to the provisions of the present Rule 73(4) (similarly
worded as the previous Rule 6(12) ) which require that an applicant
in an urgent application must set out explicitly the circumstances
which the applicant avers render the matter urgent and the reasons
why the applicant claims he or she could not be afforded substantial
redress at a hearing in due course. It was submitted that the
founding affidavit dealt only with the second leg of the requirement
referred to in Rule 6(12) and nowhere did the applicant explicitly
set out why this matter is so urgent that it had to be brought on
less than 24 hours notice to the respondent, whilst the applicant had
given itself about six days to prepare and bring this application.





[5] Rule 65(4)
provides that every application, other than brought ex parte, must be
brought on notice of motion on Form 17 and must be served on every
party to whom notice of the application is to be given. It is
apparent from the notice of motion before me that this was not
complied with. There is no indication ex facie the notice of motion
that it was served on the respondent.





[6] It does not
appear ex facie the notice of motion that the applicant has appointed
an ‘address within flexible radius of the court at which the
applicant will accept notice and service of all documents in the
proceedings’ as prescribed by Rule 65(5)(a).





[7] Ex facie the
notice of motion, no date is set out ‘on or before which the
respondent is required to notify the applicant in writing whether the
respondent intends to oppose the application, . . .’ as
prescribed by Rule 65(5)(b).





[8] In Luna Meubel
Vervaardigers v Makin and Another 1977 (4) SA 135 WLD, referred to by
Ms Campbell, the following was said in respect of important aspects
of ‘urgency’ at 136H:





‘Urgency
involved mainly the abridgement of times prescribed by the Rules and,
secondarily, the departure from established filing and sitting times
of the Court.’


and continues at
p137E-F as follows:





‘Practitioners
should carefully analyse the facts of each case to determine, for the
purpose 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.’





[9] My understanding
of counsel’s submissions in this regard is that the applicant’s
application for urgent relief was being criticised inter alia for the
lack of procedural fairness.





[10 It is therefore
apposite to refer to what was said in Bergmann v Commercial Bank of
Namibia Ltd 2001 NR 48 at 50H-51B by Maritz J regarding the nature of
urgent applications:





‘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 procedure in urgent applications, the
requirement that the deviated procedure should be “as far as
practicable” in accordance with the Rules constitutes a
constant 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.’





[11] This court in
Petroneft International and Another v The Minister of Mines and
Energy and Others an unreported case, case no. A 24/2011 and
delivered on 28 April 2011 (per Smuts J) at par [26]
confirmed the objective of procedural fairness and that a respondent
should be afforded reasonable time within which to oppose an urgent
application.





[12] The requirement
of notice as well as the fact that a respondent may find himself or
herself in a precarious position was explained as follows by Fagan J
in IL & B Marcow Caterers v Greatermans SA Ltd and Another, Aroma
Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108
WLD at 110E:





‘When an
applicant believes that his matter is one of urgency, he may himself
decide what times to allow affected parties for entering appearance
to defend and for delivering answering affidavits. He may without
consulting the other parties arrange a date for hearing.’ and
at 110G:





‘Applicants,
by so doing, became obliged to persuade the court that the matters
were of such urgency that their non-compliance with the Rules should
be condoned and that the matters should be heard forthwith.
Respondents had no option; they were compelled by applicants to
adhere to the time periods chosen by the applicants and to appear in
Court on the day selected by applicants. Then only, save if
respondents had anticipated the hearing and made an earlier
application to Court, could respondents object to the procedure
followed by applicants. See Republikeinse Publikasies (Edms) Bpk v
Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 A where at
782A-E this course and its implications are discussed by RUMPFF JA as
he then was.’





[13] The applicant
in its founding affidavit narrated the background which gave rise to
this urgent application. The deponent to the founding affidavit, Mr
Quintus Erasmus, the sole member of the applicant, stated that at all
material time up and until Wednesday 11 June 2014 the applicant was
in peaceful and undisturbed possession of two condenser units, boxes
with material and two white boosters (air-conditioning equipment)
that were at a partially constructed building at the district
hospital in Keetmanshoop. This equipment was delivered by the
respondent during November/December 2013. On 11 June 2014 three men,
employees of the respondent, came to applicant’s construction
site and started to remove the air-conditioning equipment from the
building where it had been previously installed by the respondent.





[14] The applicant
then explained the circumstances why he could only consult with legal
practitioners on Tuesday 17 June 2014 which resulted in a letter of
demand, addressed to the respondent’s legal practitioners, for
the return of the equipment so removed by the respondent, by ‘close
of business’ on Thursday 19 June 2014’, failing which,
applicant would approach this court for ‘an urgent ex parte
spoliation interdict’.





[15] The response by
respondent’s legal practitioners was to ask that the matter be
kept in abeyance until Tuesday 24 June 2014 in order to resolve the
matter amicably between the parties. This extention of time was
granted. Thereafter in a letter dated 24 June 2014, and addressed to
the legal representatives of the applicant, the respondent tried to
justify the action of its employers on 11 June 2014 on the basis of
ownership of the equipment, and demanded payment in respect of the
equipment. This letter came to the attention of the applicant on 25
June 2014. The notice of motion in this application was signed and
date stamped by the Registrar on 30 June 2014 and was set down for
hearing the next day, on 1 July 2014.





[16] The applicant
avers in its founding affidavit that its claim for an extention of
time for the completion of the project will be jeopardised by the
fact that the equipment had been removed. This according to the
applicant will not only impact severely on any future claims for
extention of time, but may give the employer a basis on which to
cancel the contract. Should this happen the applicant stands to
suffer irreparable damage, not only financially but also in its
reputation. The applicant further stated that it has been advised
that an application for restitution of possession in its normal
course will consume many months before it is heard and may take up to
a year to be heard.





[17] It is trite law
that the protection of a commercial interest can justify urgent
relief under Rule 73 (previously Rule 6(12)) as was stated in
Twentieth Century Fox Film Corporation and Another v Antony Black
Films (Pty) Ltd 1982 (3) SA 582 (W) at 586F-G by Goldstone J:





‘In my opinion
the urgency of commercial interests may justify the invocation of
Rule 6(12) no less than other interests. Each case must depend upon
its own circumstances. For the purpose of deciding upon the urgency
of this matter I assumed, as I have to do, that the applicant’s
case was a good one and that the respondent was unlawfully infringing
the applicant’s copyrights in the films in question.’


See also Bandle
Investments (Pty) Ltd v Registrar of Deeds and Others 2001 (2) SA 203
(SE) at 213E-F; Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd and
Others (unreported case no. (P) A 91/2007 Full Bench decision)
delivered on 31 July 2007; Shetu Trading CC v The Chair of the Tender
Board of Namibia and Others (unreported case no A 352/2010 delivered
on 4 July 2011; and Petroneft (supra).





[18] The applicant
in this matter was therefore perfectly entitled to have approached
this court on an urgent basis, however in doing so, had to comply
with procedural fairness by affording the respondent a reasonable
period within which to oppose this application. As indicated (supra)
no date was set by which the respondent was required to indicate its
intention to oppose and to file an answering affidavit, neither did
the applicant, as required by Rule 65(5)(a), appoint an address at
which the applicant would accept notice and service of all process in
this application.





[19] A consequence
of the failure to comply with Rule 65(5)(a) was that the notice to
oppose was handed up at the hearing of this application. A further
consequence of the non compliance of Rule 65(5)(b) was that even in
the event of respondent being successful in drafting an answering
affidavit, the respondent would not have known where to serve such a
document.





[20] Had the
respondent been afforded a reasonable time within which to file a
notice of opposition and an answering affidavit ‘the issues
would have been properly ventilated, the parties would have had an
opportunity to reconsider their respective positions and the court
could have had the benefit of considered argument before ruling on
the matter’.


(See Bergmann
(supra) at p 51C-D).





[21] In as far back
as 1976, Coetzee J in the Luna Meubel matter (supra), stated the
following at p 136D-E:





‘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. That this phrase deserves emphasis is apparent also
from the judgment of RUMPFF J.A. (as he then was), in Republikeinse
Publikasies (Edms) Bpk., 1972 (1) SA 773 (A.D.) at p. 782 B. 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; . . . ’


(See also Bergmann
(supra) p 50I).





[22] The first
prayer in the notice of motion of the applicant is for an order
condoning applicant’s non compliance with the forms and service
as contemplated for in the rules and authorising applicant to bring
this application on an urgent basis. As was stated in Bergmann
(supra) 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.





[23] In the Mweb
matter it was held that the fact that irreparable damages may be
suffered is not enough to make out a case of urgency. It may be a
ground for an interdict, but does not make the application urgent.





[24] Rule 65(5)(b)
requires from an applicant to set out a day on or before which the
respondent is required to notify the applicant in writing whether or
not the respondent intends to oppose the application. In urgent
applications a truncated period for the filing of a notice of
opposition may obviously be stipulated by an applicant, but the
provisions of this subrule may not simply be ignored, except in
extremely urgent circumstances and on good cause shown. The present
application was not brought as an ex parte application where
initially no notice is required to be given to a respondent.





[25] My
interpretation, with due regard to the word ‘must’ in
Rule 65(5), is that an applicant is obliged to give effect to the
provisions of ss 65(5)(a) and (b), also in urgent applications.





[26] In this regard
Flemming DJP in Gallagher v Norman’s Transport Lines (Pty) Ltd
1992 (3) SA (WLD) at 502E expressed himself as follows (with
reference to Rule 6(5)(a) which is similarly worded as our
present rule 65(4) which requires notice of motion on Form 17:





‘Rule 6(5)(a)
of the Uniform Rules of Court is peremptory.’





and on 502F:





‘No Rule says
that any of the said obligations do not apply to an urgent
application. Such an application is an “application” in
terms of Rule 6(5). The only qualification is that in an urgent
matter an applicant may amend “the rules of the game”
without asking prior permission of the Court.’





and further at
502I-503A:





‘The applicant
must, in all respects, responsibly strike a balance between the duty
to obey Rule 6(5) and the entitlement to deviate, remembering that
that entitlement is dependent upon and thus limited according to the
urgency which prevails.’





[27] I agree with
such a balanced approach and wish to emphasise that though a litigant
is required to comply with Rules of Court especially rules which are
peremptory, courts should eschew inflexible formalism, since Rules of
Court ‘are designed to ensure a fair hearing and should be
interpreted in such a way as to advance, and not reduce, the scope of
the entrenched fair trial right’.





(See D F Scott (EP)
(Pty) Ltd v Golden Valley Supermarket 2002 (6) SA 297 (SCA) at 301G).





[28] Applicants
should be conscious that their conduct, in an application which is
rushed to court on an ill-perceived urgent basis without complying
with the mandatory provisions of ss 65(5)(a) and (b), may be
construed as a misuse or an abuse of process and that a court in the
exercising its discretion may for that reason strike the ‘urgent
application’ from the roll.





[29] I am of the
view that the applicant in this matter, with due regard to the
circumstances of this case, has misconstrued the degree of urgency.
This application was not so urgent which could have justified the
applicant to simply ignore the provisions of ss 65(5)(a) and (b) and
to launch this application on such a short notice to the respondent.








E P B HOFF





Judge





APPEARANCES





APPLICANT : J
Schickerling





Instructed by Van
der Merwe-Greeff Andima Inc., Windhoek








RESPONDENT: Y
Campbell





Instructed by
Behrens & Pfeiffer, Windhoek