Court name
High Court Main Division
Case number
APPEAL 295 of 2014
Case name
Purity Manganese (Pty) Ltd v Maritima Consulting Services CC and Another
Media neutral citation
[2014] NAHCMD 350
Judge
Parker AJ










REPUBLIC OF
NAMIBIA




HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 295/2014





DATE:
20 NOVEMBER 2014





In the matter
between:





PURITY MANGANESE
(PTY)
LTD...........................................................APPLICANT





And





MARITIMA
CONSULTING SERVICES CC.............................FIRST
RESPONDENT





NORTHGATE
DISTRIBUTION SERVICE LTD...................SECOND
RESPONDENT





Neutral citation:
Purity Manganese (Pty) Ltd v Maritima Consulting Services CC (A
295/2014) [2014] NAHCMD 350 (20 November 2014)





Coram: PARKER AJ





Heard: 30 October
2014





Delivered: 20
November 2014





Flynote: Practice –
Applications and motions – Urgent applications – Court
held that applicant must satisfy the two requirements under rule
73(4) of the rules (ie rule 6(12)(1)(b) of the repealed rules) –
Court found that the applicant has failed to satisfy the
requirements, in particular the requirement in rule 73(4)(b) of the
rules – Consequently, the court refused the application on that
basis.





Summary: Practice –
Applications and motions – Urgent applications – Court
held that applicant must satisfy the two requirements under rule
73(4) of the rules (ie rule 6(12)(1)(b) of the repealed rules) –
The applicant launched an urgent application for an order to
intervene in, and oppose, a pending application in which a rule nisi
had been granted – Applicant sought to intervene in, and
oppose, that application – On the papers the court found that
applicant has not satisfied the requirements under rule 73(4), in
particular the requirement under para (b) of rule 73(4) –
Consequently, the court refused, with costs, the application on the
basis that the requirements of rule 73(4) of the rules of court have
not been satisfied.








ORDER








The application is
refused, with costs, on the grounds that the requirements of rule
73(4) of the rules of court have not been satisfied, including costs
of one instructing counsel and one instructed counsel.








JUDGMENT








PARKER AJ:





[1] The applicant
has brought an application on notice of motion (case no. A 295/2014)
for the relief set out in the notice of motion, and prays the court
to hear the matter as an urgent application. It is primarily for
leave not only to intervene in, but also to oppose, the application
under case no. A 282/2014 which is ongoing and pending. The parties
in case no. A 282/2014 are Maritima Consulting Services CC as the
applicant (‘Maritima’) and Northgate Distribution
Services Ltd as the respondent (Northgate). It, therefore, makes no
sense – none at all – for the applicant’s legal
practitioners to have insisted that the registry open a new file with
a new case number for the application. If there is no pending
application (case no. A 282/2014), as a matter of rudimentary logic,
there would be no application to intervene in and oppose. The
application for leave to intervene and to oppose cannot exist on its
own, with its own case number.





[2] I have made
these observations for a purpose. It is to underline the point that a
multiplicity of files with different case numbers in respect of an
ongoing, pending case serves no purpose – none at all –
except to obfuscate proceedings in the court, and so, therefore, the
practice should not be encouraged.





[3] The application
which the applicant applies for leave to intervene in and to oppose
(case no. A 282/2014) was heard ex parte and on urgent basis within
the meaning of rules 72 and 73 of the rules of court. Having been
satisfied that a case had been made out for the relief sought the
court ordered a rule nisi to issue, with the return date of 21
November 2014, and it was further ordered that the return date may be
anticipated by the respondent Northgate on not less than 24 hours’
notice to the applicant Maritima, as contemplated in rule 72(7) of
the rules of court. Maritima had applied to the court to attach 174
containers of manganese which, as far as Maritima was concerned, were
the property of Northgate and which Northgate kept at the Port of
Walvis Bay ad fundandam jurisdictionem, alternatively ad confirmandam
jurisdictionem over Northgate, a peregrinus of the court.





[4] In this present
application to intervene the applicant is Purity Manganese (Pty) Ltd
(‘Purity Manganese’) and the first respondent is Maritima
and the second respondent Northgate. In its papers, Purity Manganese
says that the purpose of the application is to seek leave to
intervene in, and to oppose, the application under case no. A
282/2014, ‘on the strength that the applicant herein (Purity
Manganese) has a real and substantial and ultimately a protectable
interest which has been affected by a rule nisi issued on Wednesday
22 October 2014, by this Court, and pursuant to that application’.
And what is the ‘real and substantial and ultimately a
protectable interest’? It is based on this, so says Purity
Manganese: Northgate is not the owner of the containers and their
contents (manganese ore): they are owned by Purity Manganese.





[5] The first
respondent Maritima has moved to reject the application to intervene
and to oppose. Accordingly, Maritima has filed opposing papers in
which Maritima has raised a preliminary objection to the effect that
the applicant has failed to make out a case for urgency. It is to a
consideration of whether the court should grant the relief sought in
para 1 of the Notice of Motion, that is, that the matter be heard as
an urgent application, that I now direct the enquiry. Thus, at the
threshold, I should determine whether prayer 1 should be granted.





[6] Urgent
applications are now governed by rule 73 of the rules of court (ie
rule 6(12) of the repealed rules of court), and subrule (4) provides
that in every affidavit filed in support of an application under
subrule (1) 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 he or she could not be afforded substantial redress at
a hearing in due course. Indeed, subrule (4) rehearses para (b) of
rule 6(12) of the repealed rules. Thus, the rule entails two
requirements: first, the circumstances relating to urgency which must
be explicitly set out, and second, the reasons why an applicant
claims he or she could not be afforded substantial redress in due
course. It is well settled that for an applicant to succeed in
persuading the court to grant the indulgence sought that the matter
be heard on urgent basis the applicant must satisfy both
requirements.





[7] In the instant
case, I find from the applicant Purity Manganese’s papers that
the applicant has not satisfied all the two requirements. While it
has set out the circumstances that render the matter urgent, it has
not, as Ms Van der Westhuizen, counsel for the respondent Maritima,
submitted, given reasons – not one grain of reason – why
it could not be afforded substantial redress in due course. See Salt
and Another v Smith 1990 NR 87. And I did not hear Mr Oosthuizen
(with him Mr Jones), counsel for the applicant Purity Manganese, to
contradict the fact that the applicant has not satisfied the second
requirement under subrule (4)(b) of rule 73 of the rules of court. In
sum, the applicant has failed to comply with the requirements of rule
73(4) of the rules, in particular the second requirement under para
(b) of rule 73(4). I should, consequently, refuse grant the
indulgence the applicant seeks.





[8] In the result,
the application is refused with costs on the grounds that the
requirements of rule 73(4) have not been satisfied, including costs
of one instructing counsel and one instructed counsel.








C Parker





Acting Judge



APPEARANCES








APPLICANT : G H
Oosthuizen (assisted by J P R Jones)





Instructed by
Hohne & Co., Windhoek





FIRST RESPONDENT:
C E van der Westhuizen





Instructed by
Engling, Stritter & Partners, Windhoek