Court name
High Court Main Division
Case number
APPEAL 95 of 2013
Case name
Tumas Granite Close Corporation and Another v Minister of Mines And Energy and Others
Media neutral citation
[2014] NAHCMD 210
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 95/2013





DATE:
10 JULY 2014





REPORTABLE





In the matter
between:





TUMAS GRANITE
CLOSE CORPORATION...............................FIRST
APPLICANT





JÜRGEN
HOFFMANN.............................................................SECOND
APPLICANT





And





THE MINISTER OF
MINES AND ENERGY.............................FIRST
RESPONDENT





THE MINING
COMMISSIONER........................................SECOND
RESPONDENT





THE PERMANENT
SECRETARY IN THE


MINISTRY OF MINES
AND ENERGY...................................THIRD
RESPONDENT





Neutral citation:
Tumas Granite Close Corporation v The Minister of Mines and Energy (A
95/2013) [2014] NAHCMD 210 (10 July 2014)





Coram: PARKER AJ





Heard: 18 June
2014





Delivered: 10
July 2014





Flynote: Practice –
Irregular proceeding – Two-stage approach enunciated by Supreme
Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation
Ltd 2012 (2) NR 671 (SC) adopted in present enquiry – If step
is irregular, court to determine whether innocent party prejudiced –
In instant case respondents’ filing of answering affidavit
constituting irregular step – Court held that the irregular
step prejudiced applicants because the step whittled away the
applicants’ procedural rights under rules of court –
Consequently, court upheld the rule 30 application and treated the
filing of the answering affidavit as a nullity.





Summary: Practice –
Irregular proceeding – Two-stage approach enunciated by Supreme
Court in Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation
Ltd 2012 (2) NR 671 (SC) adopted in present enquiry – If step
is irregular, court to determine whether innocent party prejudiced –
Applicants by notice requested respondents to deliver documents
required for the prosecution of applicants’ review application
– Respondents refused or failed to deliver the documents and
instead filed answering affidavit because in their view the documents
were not necessary for the applicants to pursue the application –
It is not up to an administrative body or official to decide that a
document which a person, who is aggrieved by a decision of that body
or official and who desires to bring that decision under review, is
not necessary or required for the person to pursue the review
application – Court found that the step taken by the
respondents was irregular – Court held that since the step
amounted to the taking away of the applicants’ procedural
rights under the rules of court the step substantially prejudiced the
applicants – Court concluded, therefore, that the irregular
step was a nullity – Court held that an irregular step that has
the effect of whittling away the right of a person must always
prejudice that person such and prejudice is undoubtedly substantial –
Consequently, the rule 30 application succeeded and the court struck
out the answering affidavit.








ORDER








(a) The respondents’
answering affidavit is struck out with costs, including costs of one
instructing counsel and one instructed counsel.





(b) The respondents
must on or before 29 July 2014 deliver to the applicants’ legal
practitioners of record the documents listed in the request, dated 27
May 2013 and filed of record the same date.





(c) The parties’
legal practitioners must attend a status hearing in open court at
08h30 on 31 July 2014 in order for the court to determine the further
conduct of the matter.








JUDGMENT








PARKER AJ:





[1] The provenance
of the present proceeding lies in the judgment delivered by the court
in November 2012 where the court ordered, among other things, that
the first respondent must take a decision on the first applicant’s
application for a reconnaissance licence not later than 31 January
2013. It would seem, in compliance with that order, the first
respondent took a decision and advised the applicants on 28 January
2013 that the application for a reconnaissance licence had been
unsuccessful.





[2] Aggrieved by the
first respondent’s decision the applicants launched an
application in terms of rule 53 of the repealed rules of court to
review and set aside that decision. In terms of those rules the
respondents delivered the record of proceedings respecting the making
of the decision. The applicants were not satisfied with the record
that they had received. Consequently, they delivered a notice in
terms of rule 53(1)(b) of the repealed rules of court, calling upon
the respondents to deliver further certain documents. It is important
to underline the significant point that the applicants asked for
clearly identified and specified documents. It cannot, therefore, be
said that, looking at the list of documents sought by the applicants,
the applicants were on a fishing expedition.





[3] To cut a long
story short, the respondents’ legal practitioners failed and
refused to show as much as professional courtesy by informing the
applicants’ legal practitioners that they would not deliver the
documents sought. Brushing aside the applicants’ notice without
justification, the respondents took the step of filing answering
affidavits.





[4] It is the filing
of the respondents’ answering affidavit that aggrieved the
applicants; and they have sought redress by launching a rule 30
application (rule 30 in the repealed rules of court). The basis of
the rule 30 application, as argued by Ms Schneider, counsel for the
applicants, is that by prematurely delivering their answering
affidavit (that is, the next set of affidavits after founding
affidavits in application proceedings) the respondents have in effect
deprived the applicants their procedural right to have the complete
record delivered to them which would in turn lead to their procedural
right to amend their notice of motion and supplement their supporting
papers after perusing the additional documents that they had
requested from the respondents, if the respondents had delivered
them.





[5] And what is the
argument on the other side, as articulated by Mr Nkiwane, counsel for
the respondents? It is only this. The proper procedure the applicants
ought to have followed according to Mr Nkiwane was for the applicants
to bring an application to compel the respondents to deliver the
identified and specified documents they had requested by notice after
the time limit to deliver same had expired and the respondents had
failed or refused to deliver them. Mr Nkiwane argued further that if
the respondents did not launch an application to compel, then the
respondents could not be expected to wait indefinitely; hence the
filing of the answering affidavit. Mr Nkiwane’s further
argument is, as I understand him, that the filing of the answering
affidavit does not prejudice the respondents because, so the
respondents’ decided, the documents requested would not assist
the applicants in pursuing the relief sought.





[6] At the threshold
of determining the present application I should deal with argument by
Mr Nkiwane in support of his objection to the applicants’
counsel, Ms Schneider, delivering from the Bar to the court, at the
commencement of the hearing of the application, a list of authorities
additional to those in her heads of argument. It seems to me
superficially attractive as counsel’s argument may be, it is a
reductio ad absurdum as I demonstrate. Mr Nkiwane’s argument
amounts to this. Since Mr Nkiwane has not had sight of the list of
authorities the court should disregard the authorities because since
Mr Nkiwane had not had sight of them Mr Nkiwane is not able to
comment on them by, for example, distinguishing them.





[7] I should say
that no counsel is entitled to prescribe to the court what
authorities the court should consider in the determination of an
issue in proceedings. When counsel refers authorities to the court,
counsel is merely assisting the court in the court’s own
research when adjudicating a cause or matter. The court does not have
to rely on only authorities referred to it by counsel in their heads
of argument.





[8] Assuming Mr
Nkiwane had sight of the authorities, Mr Nkiwane’s opinion –
and opinion it is – about them as to whether they are
distinguishable does not bind the court. The court is entitled to
pore over the authorities and form its own opinion about them;
whether to accept them as binding or persuasive or accept them as
binding or persuasive but distinguishable on the facts of the instant
matter. And as I have said previously, the court can do its own
research and if the court finds authorities, which are not in the
heads of argument of counsel, and which the court desires to rely on
the court does not call counsel back to court for the purpose of
affording counsel the opportunity to comment on those authorities the
court has unearthed. As I say, Mr Nkiwane’s argument is a
reductio ad absurdum: it has, with the greatest deference to counsel,
no logical and sustainable cogency and relevance.





[9] In any case, as
it turned out, two of the cases on the additional list are squarely
in point on the issues under consideration in the application. I am
referring particularly to China State Construction Engineering Corp v
Pro Joinery CC 2007 (2) NR 675 (HC) and Aussenkehr Farms v Namibia
Development Corporation Ltd 2012 (2) NR 671 (SC). For instance, the
Supreme Court case Aussenkehr Farms is binding on this court, and I
did not see any reason to declare it distinguishable. In sum, Mr
Nkiwane’s objection cannot on any pan of scale take the
respondents’ case any further: it is accordingly rejected. If
the objection and the argument in support of it succeeded in doing
anything; they succeeded in prolonging the proceedings unnecessarily.





[10] Having perused
the papers filed of record and having carefully considered
submissions by counsel on both sides of the suit it is my view that
the determination of the rule 30 application turns on a very short
and narrow compass.





[11] The respondents
do not dispute that they have failed and refused to respond to the
applicants’ request that they deliver certain identified and
specified documents which, as far as the applicants were concerned,
they needed and required in order to properly put their case before
the court. In my opinion it is not up to an administrative body or
official to decide that a document, which a person, who is aggrieved
by a decision of that body or official and who desires to bring that
decision under review, is not necessary or required for the person to
pursue the review application. In the instant case, the aggrieved
persons, the applicants, did request from the respondent certain
identified and specified documents which would enable them to amend,
add to or vary the terms of their notice of motion and supplement the
supporting affidavit in terms of the rules of court (rule 53 of the
repealed rules).





[12] From the
respondents’ papers and their counsel’s submission it
leaves no doubt that the respondents admit – unwittingly, may
be – that they took an irregular step; except that, as far as
they are concerned, they had a good reason to take the irregular
step. And the reason is that the time limit to respond to the
applicants’ request for the documents had expired and an
application to compel them to respond had not been forthcoming, and,
so, as Mr Nkiwane submitted, ‘it would be unjust and
unreasonable to expect the applicants to keep the matter in abeyance
until the end of time ….’





[13] With respect,
Mr Nkiwane misses the point. It need hardly saying that the review
application is not the respondents’ application; and if the
domini litis, the applicants, failed to move the application forward,
as Mr Nkiwane alleges, there are rules of court that ‘provide
procedural devices to force a dilatory party to progress to the next
step in litigation’. See Aussenkehr Farms v Namibia Development
Corporation Ltd 2012 (2) NR 671 at 697A. Taking an irregular step as
the respondents did cannot be one of the devices. And, pace Mr
Nkiwane, it is the respondents’ failure to respond to the
applicants’ request and the irregular step the respondents took
that are causing inordinate delay in resolution of the dispute. As I
have said more than once, the applicants’ request to deliver
the aforementioned documents was by notice. Mr Nkiwane has not
explained to the court what stood in the way of the respondents that
prevented them from responding to the legitimate request in like
manner and inform the applicants the reasons why they would not
deliver the identified and specified documents. I do not think it
conduces to fair and reasonable approach in an application proceeding
for the counsel of a respondent, who receives such notice, not to
extend the courtesy of responding in like manner by notice to the
applicant’s counsel but rather keep silent and take a step that
has the effect of whittling away the procedural rights of the
applicant guaranteed to him or her by the rules of court.





[14] One courteous
thing that Mr Nkiwane could have done was not to file the answering
affidavit of the respondents but to respond to the request in which
the respondents would, for example, inform the applicants that the
respondents, based on reasons advanced in the response, would not
deliver the aforementioned documents and that if the applicants did
not bring an application to compel the delivery within a specified
time limit, then the respondents would go ahead and file their
answering affidavit.





[15] In that regard,
it must be remembered that it is not open to a party to assume that
the other party has waived his or her rights. A right may be waived
only at the instance of the party concerned. (Rally for Democracy and
Progress and Others v Electoral Commission of Namibia and Others Case
No. A 01/2010 (Unreported), para 41) And, furthermore, a person who
desires to rely on a waiver must prove it. (David Hendrik de Waal and
Another v Adrian Louw Case No. A 19/2011 (Unreported), para 6) I did
not hear from the applicants’ counsel that the applicants
waived their rights; and the respondents’ counsel has not
proved any waiver.





[16] Based on these
reasons I have not one iota of doubt in my mind in holding that by
filing the answering affidavit the respondents took an irregular step
within the meaning of rule 30 of the repealed rules. The next
question is: What order should follow the finding of the irregular
proceeding? This enquiry becomes necessary as I exercise my
discretion whether to overlook the irregularity. See Aussenkehr Farms
v Namibia Development Corporation Ltd at 703C-D. In my opinion any
irregularity that has the effect of whittling away the right of a
person must always prejudice such a person, and such prejudice is
undoubtedly substantial. And, as I say, the filing of the answering
affidavit in the circumstances set out previously occasioned
substantial prejudice to the respondents; and so I accept Ms
Schneider’s submission on the point. ‘On the basis of
these provisions (ie rule 30(1)(a) of the repealed rules of court)’,
stated Silungwe AJ in China State Construction Engineering Corp v Pro
Joinery CC 2007 (2) NR 675 at 678H, ‘a proper course for a
party who is prejudiced by an irregular step or proceeding is not
simply to ignore or to treat it as if no such (step) proceeding has
been taken; he should apply to court under rule 30 for an order to
set aside the irregular step or proceeding’. Thus, in the
instant proceeding, it is, therefore, not only proper but also an
entitlement for the applicants to bring the rule 30 (of the repealed
rules) application.





[17] I hold that the
irregular proceeding is a nullity; not least because it has the
effect of taking away a right guaranteed to the applicants by the
rules in their approach to the seat of judgment of the court. And as
Silungwe AJ stated in China State Construction Engineering Corp at
683H, ‘A nullity has no legal effect and, as such, it cannot be
condoned’. In any case, the critical consideration to take into
account in the instant proceeding is that the respondents have not
applied to the court to condone the irregular proceeding – not
by application or from the Bar; and so the discretionary power of the
court in rule 27(3) (of the repealed rules) referred to by Silungwe
AJ in China State Construction Engineering Corp is not available to
the respondents. And, I should add; the first respondent is an
administrative official. In taking the irregular step without
extending as much as courtesy to the applicants by responding to the
applicants’ request, the first respondent acted in breach of
the requirements of fair and reasonable administrative act within the
meaning of art 18 of the Namibian Constitution.





[18] Based on these
reasoning and conclusions I hold the view that the application should
succeed, and it succeeds, and, furthermore, that this is a proper
case where the court, in the exercise of its discretion, should not
overlook the irregular proceeding which, as I have held, is a
nullity. The applicants are, therefore, entitled to the relief sought
in the notice of motion. On the facts and in the circumstances of the
case the reasonable order to make is this: it is ordered that -





(a) The respondents’
answering affidavit is struck out with costs, including costs of one
instructing counsel and one instructed counsel.





(b) The respondents
must on or before 29 July 2014 deliver to the applicants’ legal
practitioners of record the documents listed in the request, dated 27
May 2013 and filed of record the same date.





(c) The parties’
legal practitioners must attend a status hearing in open court at
08h30 on 31 July 2014 in order for the court to determine the further
conduct of the matter.








C Parker





Acting Judge



APPEARANCES








APPLICANT : H
Schneider





Instructed by Dr
Weder, Kauta & Hoveka Inc., Windhoek








RESPONDENTS: S
Nkiwane





Of Government
Attorney, Windhoek