Court name
High Court Main Division
Case number
APPEAL 80 of 2015
Title

Lindequest Investment Number Fifteen CC v Bank Windhoek Limited and Another (APPEAL 80 of 2015) [2015] NAHCMD 100 (27 April 2015);

Media neutral citation
[2015] NAHCMD 100
Coram
Masuku AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT






In
the matter between:


Case
no: A 80/2015


DATE:
27 APRIL 2015






LINDEQUEST
INVESTMENT NUMBER FIFTEEN
CC.............................................APPLICANT


And


BANK
WINDHOEK
LIMITED.............................................................................1ST
RESPONDENT


DEPUTY
SHERIFF –
WINDHOEK.....................................................................2ND
RESPONDENT


Neutral
citation: Lindequest Investment Number Fifteen CC v Bank Windhoek Ltd
(A 80/2015) [2015] NAHCMD 100 (27 April 2015)


CORAM:
MASUKU AJ.


Heard:
9 April 2015


Delivered:
27 April 2015


Flynote:
Practice – applications and motions – urgent
application. Requirements of Rule 73(4) – court held that
urgency is not satisfied where the applicant has created the urgency.
Court held that an applicant in urgent applications must make a full
and frank disclosure of all circumstances affecting urgency and that
failure to do so may imperil that party’s success. Held further
that the applicant was guilty of abusing court process. Urgency was
held to be self-created and the applicant was ordered to pay costs on
the punitive scale.





RULING








MASUKU,
AJ.:





[1]
After hearing argument on 9 April 2015, I issued an order captured
below and indicated that reasons would follow. The reasons follow
below.


[2]
The applicant, a registered close corporation, approached this court
on an urgent basis seeking the following relief as set out in the
notice of motion[1]:


1.
‘Condoning the applicant’s non-compliance with the Rules
of this Honourable Court and the time periods prescribed in therein
in so far as these have not been complied with and directing that
this matter be heard as one of urgency as contemplated in Rule 73 (3)
of the Rules of Court;


2.
Directing that the respondent stay the sale in execution under case
no. 1282/2006 planned to be held on 9 April 2015 at 12h00 in respect
of Erf 2621, Extension no.4, Khomasdal, Windhoek pending the hearing
in due course of the declaratory application under case no. A72/2015.


3.
Directing the respondent pays the costs of this application only in
the event of the respondent opposing this application.


4.
Directing that paragraph 2 above operates as an interim interdict
pending the hearing of case no, A72/2015.’



Applicant’s
case


[3]
The application was accompanied by a certificate of urgency signed
and a founding affidavit deposed to by Mr. Heinrich Schroeder, who
describes himself as the sole member of the applicant.  I will
in due course traverse the allegations contained in the affidavit
filed of record and on which the application is predicated. It is
important to mention that having listened to the arguments presented
by the parties herein, I indicated that the court’s refusal to
have the matter enrolled as one of urgency with costs, thereby
refusing to grant the application sought in terms of prayer 1
recorded above.


[4]
The applicant alleges that under Case No. 1282/06, the registrar of
this court granted a judgment against it by default on 7 June 2006.
It is alleged further that the said judgment was void
ab
initio

for the reason that the said Registrar, though being a public
officer
,
was
not, however, a judicial officer as envisaged in terms of the
provisions of article 78[2],
thus rendering the said default judgment liable to be set aside. As a
result of the said judgment, according to the applicant’s
papers, a sale in execution of judgment was advertised for 9 April
2015. It is this sale that the applicant seeks to have this court
distrain on the grounds that the Registrar of this court had no
authority and legal competence to issue the said order.


[5]
The applicant further alleges that when the said judgment by default
was issued, it was completely oblivious thereto and did not,
therefore, have any opportunity to make representations thereon. The
applicant further deposes that the said default judgment was ‘for
the past 9 years successfully suppressed’ by the respondent and
the applicant was unaware thereof[3].
The applicant states further that during March 2015, it was served
with a notice of sale in execution in pursuance of the said default
judgment. It deposes further that it thereupon wrote and served a
letter on the registrar claiming that the said writ had been issued
in the absence of a judgment and stated that it was unaware of the
judgment on which the writ was predicated and also requested a copy
of the writ[4]. The applicant
claims that the registrar did not respond to its letter.





[6]
In its further depositions, the applicant claims that in view of the
registrar demurring to its letter referred to above, and in view of
the cold reality that the sale in execution was going to proceed on
schedule, it then brought an application to stay execution of the
said judgment, which judgment it contends was issued ‘on the
strength of unlawful and unjust default judgment’ which is ‘per
se interdictable as a matter of urgency pending the outcome of Case
No. A27/2015.’[5] The
applicant stated further, that if pursued to its logical conclusion,
the execution of the sale would infringe on his fundamental rights to
housing and a fair trial. Finally, the applicant further alleged that
it was never afforded an opportunity to make representations before
the default judgment was entered and did not, have the opportunity to
submit its defence before the grant of the said judgment.





[7]
It must be mentioned in this regard and for the sake of completeness
that the applicant filed an application dated 31 March 2015 in which
it prayed for the default judgment forming the subject matter of the
present proceedings to be declared void. This was undertaken under
Case No. A72/2015. It will be seen that it is this application that
the applicant claims should be decided first by this court before the
writ of execution can be sanctioned as foreshadowed in prayer 4 of
the notice of motion. A very formidable case, it would appear, on the
applicant’s depositions. What did the respondents do?


[8]
Before I answer that question, it is fitting that I must first
comment on the manner in which the notice of motion was drafted by
the applicant. Prayer 2 of the notice of motion applies for stay of
execution and directing the ‘respondent’ to stay the said
sale. It is common cause, from a reading of the notice of motion that
two parties are cited in the papers as respondents. The respondent
against whom this prayer is directed between the two respondents has
not been identified with any or the requisite degree of
particularity. Furthermore, prayer 3 directs ‘the respondent’
to pay the costs of the application in the event same is opposed.
Once again, no particularity in that regard is achieved.


[9]
One may be tempted to conclude that the court is being fastidious in
these observations, particularly considering that the applicant is
represented by its sole member who is not a legal practitioner. That
is plainly not so. I say so because it must be recalled that the
notice of motion is not just a document that can or should be loosely
drafted. It is the basis on which any order the court may be minded
to grant should be predicated. For that reason, it must be drafted
with a presence of mind and particularity which will ensure that no
doubt or argument should take place regarding the nature, effect and
scope of the order sought. Furthermore, no debate should ensue
regarding which respondent is being ordered to do or perform or not
perform what duty in terms of the notice of motion. Where a loose
reference is made, as in this case to ‘the respondent’
without specifying which and where the respondents are more than one,
the applicant runs the real risk that the application is declared bad
for inexactitude. Notices of motion must be clear, direct and the
model of clarity as to whom the court should order to do what. In the
instant case, I will adopt a benevolent approach and consider the
applicant’s position as a litigant which is not represented by
a legal representative. This should not, however, be regarded as a
standard and a precedent to be followed in future. Even lay litigants
must be subject to the requirements of specificity and accuracy when
it comes to the framing of the notice of motion.



First
respondent’s case


[10]
In response to the application, the 1st respondent’s
counsel came to court at the time appointed by the applicant for the
hearing of the application and indicated their opposition to the
application. Despite strenuous opposition by the applicant at first,
the 1st respondent applied for an adjournment for an hour
and a half or so, to enable it to file an answering affidavit because
in the respondent’s counsel’s submission, the application
was frivolous and an abuse of the court process. I allowed the
respondents the time to do so and on resumption of the application,
they filed a brief affidavit deposed to by one Ms Elysia Liesel
Brits, the senior legal manager of the 1st respondent’s
collections branch in Windhoek. In the said affidavit, Ms. Brits
chronicled what appears to be the chequered history of the litigation
between the applicant and the first respondent.


[11]
She alleges, with reference to supporting documents for the most part
that:


a)
the registrar of this court granted default judgment against the
applicant on 7 June 2006, which included the declaration that the
said property be rendered executable;


b)
the
applicant launched an application under case I 1282/2006[6]
 dated 18 January 2007, (annexed to the papers) which was
dismissed by the court;


c)
the
applicant launched yet another application, dated 28 April 2008 for
stay of the default judgment under case no. I 1282/2008;[7]


d)
on 1 August 2008, the applicant lodged an application for an interim
interdict staying the sale in execution of the said judgment;


e)
the applicant filed an appeal to the Supreme Court of Namibia, which
lapsed.


I
shall, in due course, return to deal with this chronicle of events at
the appropriate time and what colour they paint on the entire
proceedings.





[12]
In essence, the respondents claim that the application is not urgent,
alternatively, that if it is urgent, the urgency was of the
applicant’s own making and an abuse of the process of the
court. They thus applied that the court should refuse the enrolment
of the case as one of urgency and order the applicant to pay the
costs thereof. In this regard, the court’s attention was drawn
to the founding affidavit of the applicant and some of the timelines
recorded therein.






The law
applicable


[13
The relevant rule governing urgent application is rule 73[8].
Rule 73 (1) provides the following:


An
urgent application is allocated to and must be heard by the duty
judge at 09h00 on a court day, unless a legal practitioner certifies
in a certificate of urgency that the matter is so urgent that it
should be heard at any time or on any other day.’


As
indicated earlier, this application was filed on and set down for
hearing at 09h00 on a court day and it was therefore not subject to
the further stringent conditions applicable to an application which
is heard on a day that is not a court day or at some other time than
that stipulated above. In the latter instance, it would seem to me,
even a certificate of urgency by a lay litigant would not suffice if
the matter is sought to be heard on some other day than a court day
or time than that prescribed in the sub-rule. This, it would seem to
me, is to avoid abuse of the urgency procedures and dragging the
court into sitting at ungodly times or hours and on days when no
extra degree of urgency exists than the normal one which would be met
if the application is heard on an urgent basis at 09h00 on a court
day.


[14]
[Sub-rule (4), on the other hand exacts a duty on an applicant for
the enrolment of a matter on urgency, to “explicitly”
state in the affidavit accompanying the application (a) the
circumstances which he or she avers render the matter urgent and (b)
the reasons why he or she claims he or she cannot be afforded
substantial redress at a hearing in due course. In the instant case,
the applicant claims that its property is due to be sold in execution
and that the sale was scheduled to take place at 12 noon on the date
on which the application was heard. In a normal case, one would hold
that the applicant had complied with the requirements of the said
sub-rule (4).]





[15]
In the instant case, the respondents argued quite strenuously that in
the instant case, the urgency that obtains has been the creation of
the applicant’s and that for that reason, the court should not
lend its processes to abuse by enrolling the matter as an urgent one.
In this regard, the court’s attention was drawn to certain
deposition made in the founding affidavit, which in the respondent’s
submission ineluctably shows that the urgency in this matter was
engineered, so to speak, by the applicant. First, is that the default
judgment sought to be set aside was granted in June 2006, almost some
9 years ago. The respondent also attached applications made by the
applicant challenging the judgment that were on the whole,
unsuccessful. This included an appeal to the Supreme Court, which was
unsuccessful.





[16]
More importantly, the applicant states that in March 2015, he was
served with a notice of sale in execution[9].
The applicant states that it thereupon, on 26 March 2015 addressed a
letter to the registrar ‘informing her that the notice of sale
in execution was issued without a judgment. I further informed her
that I am not aware of the judgment, and requested also a copy of the
writ of execution.’[10]
The applicant contends that the letter he wrote evoked no response
from the registrar or from the respondent. It was then that the
applicant decided to launch an application for the declaration of the
default judgment
void
ab initio.
As
mentioned earlier, this application is dated 31 March 2015.





[17]
There are a few matters that must be noted and which the respondent
pointed out during argument. First, the rule requires an applicant to
state ‘explicitly the circumstances which he or she avers
render the matter urgent:’ In
Stefanus
Nande Nghiimbwasha And Another v The Minister of Justice And
Others,
[11]
this
court  had occasion to deal with the importance of the word
‘explicitly’ occurring in the subsection. At paragraph 12
and 13, the court expressed itself in the following terms:





[12]
The first allegation the applicant must ‘explicitly’ make
in the affidavit relates to the circumstances alleged to render the
matter urgent. Second, the applicant must ‘explicitly’
state the reasons why it is alleged he or she cannot be granted
substantial redress at a hearing in due course. The use of the word
‘explicitly’, it is my view is not idle nor an
inconsequential addition to the text. It has certainly not been
included for decorative purposes. It serves to underscore the level
of disclosure that must be made by an applicant in such cases. [13]
In the English dictionary, the word “explicit” connotes
something ‘stated clearly and in detail. Leaving no room for
confusion or doubt’. This therefore means that a deponent in an
affidavit in which urgency is claimed or alleged, must state the
reasons for the urgency ‘clearly and in detail, leaving no room
for confusion or doubt’. This, to my mind, denotes a very high,
honest and comprehensive standard of disclosure, which in a sense
results in the deponent taking the court fully in his or her
confidence, neither hiding nor hoarding any relevant information
relevant to the issue of urgency.’


[18]
Has the applicant complied with this onerous degree of disclosure in
the present application? I think not. For starters, the applicant
appears to be economic with vital information that should, if
properly and fully disclosed, assist the court in making the correct
judgment call on the issue of urgency or lack thereof. In paragraph
19, the applicant states that, ‘During March 2015 I was served
with a notice of sale in execution marked Annexure ‘STAY 2’.
Crucially, the date when this notice was served is not stated and the
court is left in doubt and confusion as to when this may have been.
The dates when certain important events occur do become important in
such matters as the court should in exercising its discretion do so
on a full compendium of all relevant facts. How can an applicant, who
does not disclose all relevant materials and details expect the court
to find for him or her?


[19]
The date when this notice was received is in my considered view
critical as it has a direct bearing as to whether the applicant did
not take an unduly long period in approaching the court. This is so
considering the respondent’s contention that the applicant is
the one who created the urgency in this matter. In this regard, the
date when the applicant first became aware of the notice of sale and
when it took the steps to have same set side are in my view crucial.
In the
Stefanus
Nande Nghiimbwasha
case,
the court stated the following[12]:


In
this regard, an applicant can be chary in the affidavit on issues
relating to the urgency to its own detriment, thus affecting the
court’s ability to properly exercise its discretion in that
party’s favour and may actually render the court unable to
properly deal with the case at all or in accordance with the level of
dislocation necessary to preserve the interest or forestall the harm
alleged.’


In
this case, the non-disclosure of this date when the applicant became
aware of the notice is material. Whether it was at the beginning,
middle or whatever point in March should have been disclosed to the
court.


[20]
There is also a pattern that I must rebuke in the applicant’s
papers. It is that an applicant in such applications must make
truthful statements and not exaggerate, understate or deliberately
state facts inaccurately in a bid to gain the court’s sympathy.
Once such a course is adopted, litigants should know that this
concealment of the true facts may well have a different effect. In
this case, the applicant, for instance, states that the respondent
‘successfully suppressed the default judgment which it obtained
from the registrar and I was not aware of the default judgment’.
This is evidently false because the respondent has annexed to the
court applications that the applicant launched unsuccessfully over
the years, thus proving ineluctably that the applicant was aware of
the default judgment. Imputations of wrong-doing, which are
accompanied by insinuations of fraud, concealment and bad faith
should not be lightly made in the absence of proof. Where there is
evidence to the contrary, as in this case, and which is not
controverted, such a party should not expect the court to leave it
blameless as it would have sought to gain an order on the basis of
wrong information thus hoodwinking the court possibly into issuing
favourable orders on the basis of ill-gotten sympathy. This is a
serious matter.


[21]
What becomes clear from the applicant’s own papers is that it
has been aware of the judgment against it for a very long time as it
was issued in 2006 and that it made efforts to set same aside, which
do not appear to have wrought the desired fruit. Secondly, as early
as 18 March 2015, the applicant was aware of the notice of sale and
the intended date of sale, being 9 April 2015. That this is the
position, can be seen from the letter written by the applicant
addressed to the 1
st
respondent, dated 18 March 2015[13].
In that letter, the applicant requested the judgment on which the
sale was predicated. I will not comment on this request. The
applicant requested a reply by close of business on even date. This
letter, it would appear elicited no response from the 1
st
respondent. It is clear that the applicant did not approach the court
at that time for any relief and at a time when the matter would not
have the degree of urgency it eventually allegedly had.


[22]
By letter dated 7 April 2015[14],
the applicant sought an undertaking from the deputy sheriff that the
sale would not proceed on schedule on 9 April. The applicant
discloses that it only obtained a copy of the judgment it sought on
31 March 2015. The applicant does not appear, from the papers, to
have taken any urgent step to stop the sale before the hearing. This
must be viewed from the position that it has already been established
that the applicant knew about the judgment for a long time and did
not over the years take effective steps to have the said judgment set
aside. I recall that the applicant in argument, alleged that Mr.
Justice Smuts did grant an order setting the said judgment aside.
Strangely, no reference was made to this in the application nor was a
copy of the said judgment supplied. It is a basic position of the law
that he who alleges must prove. This was a very important judgment to
the applicant and it had every right to brandish it to anyone who
exhibited any intention to enforce the said judgment. That a copy of
the judgment is not attached and no allegations about it are made
under oath are telling.


[23]
The application dated 31 March must, in my opinion, seen in proper
perspective. It was nothing but an attempt to stifle the enforcement
of a judgment that the applicant knew had been granted many years ago
and which judgment stands until properly set aside. Furthermore, the
applicant did not disclose to this court that previous attempts to
have the said judgment set aside had failed. Nor did it disclose that
it had, as alleged in argument, obtained an order setting aside the
judgment by Mr. Justice Smuts. The only reasonable conclusion, in the
circumstances, is that the applicant sought to abuse the court’s
processes by submitting an application that it well knew was
ill-founded and sought to use same as a basis for the stay. Such
behavior by a litigant ought, in my view, to be deprecated in the
strongest possible terms.


[24]
In dealing directly with the urgency, the applicant states the
following at paragraph 32.1 of its affidavit, ‘The cause of the
urgency has arisen upon the applicant obtaining knowledge from the
second respondent on 7 April 2015 of the first respondent’
intention to proceed with the sale in execution on 9 April 2015. The
applicant knew from the time it was served with the notice of sale in
execution and did not take steps to have the sale stopped in good
time, as I have said more than once. The filing of the application on
31 March 2015 without an immediate hearing and an interim interdict
being applied for and granted, was not going to stop the sale. Only
an agreement or an order of court would suffice for that purpose.”


[25]
At paragraph 32.2 of its affidavit, the applicant again alleges that
it had been unaware of the default judgment until the end of March
2015, an allegation that has been proved to be undoubtedly false. As
pointed out earlier, the respondents filed an affidavit to which they
attached applications which ineluctably show that the applicant knew
about this judgment and made numerous unsuccessful attempts to have
it set aside. The existence of the applications was not denied by the
applicant in argument. Further incendiary allegations are made that
the respondents ‘unreasonably and unfairly suppressed the
default judgment,’ an issue I have commented upon above.


[26]
All the foregoing point inexorably in one direction, namely, that the
respondent knew of the judgment in question for a long time and was
served with the notice of sale in good time. He did not take
appropriate steps and waited until the last hour to apply for the
matter to be heard on urgency. The only reasonable conclusion one can
come to, taking all the matters into account, is that, as the
respondent argues, any urgency in this matter that can  be said
to exist, is of the applicant’s own making. To crown it all,
the applicant deliberately withheld pertinent information from the
court and in addition, volunteered information it knew to be false.
This is serious and cannot be left to be consigned to the sea of
forgetfulness without incident.


[27]
This court has spoken emphatically about cases where urgency is a
creation of the applicant. For instance, in
Mulopo
v Minister of Home Affairs
[15],
Damaseb
JP stated the following, ‘The Court has already warned that it
will act sternly against those who come to this Court on self-created
urgency’. Evidently, the applicant falls into this very
category from the picture painted in this judgment, as can be seen
from the papers filed of record, read as a whole. It only remains for
the court to remind practitioners and litigants, representing
themselves, the timeless words of wisdom that fell from the lips of s
judge of the High Court of Lesotho in
Marumo
v National Executive Committee and Others
[16],
where
the learned judge said:


Urgency
is not a hat that one can be put on or off at one’s
convenience. Urgency is a condition imposed upon by reasons of
circumstances beyond his or her control . . .’


It
follows therefore, that where a party contrives and ferments
conditions that ultimately are made to appear urgent, the court
should sternly turn its face. This is the conclusion I have come to
regarding the urgency alleged in this matter and the dilatory and at
times disruptive conduct of the applicant. The urgency alleged is the
creation of the applicant and which additionally hid and hoarded
critical information that had a possibly critical and decisive
bearing on the very question of urgency.


[28]
There is one submission that the applicant’s representative
made in the course of argument. He contended that the respondent’s
attorneys of record had not been authorized to represent the
respondent in the proceedings. No authority was cited in support of
this position. I have had a look at the rules of court and they do
not make it a requirement for a legal practitioner who appears on
behalf of a respondent in application proceedings to file authority.
Even if there was such a requirement, I am of the considered view
that the court should be at liberty to relax this requirement,
particularly in the context of the current application where the
respondent is literally dragged to court on very short notice.


[29]
Furthermore, there is also another factor that would, in my view,
militate against upholding the applicant’s contention in this
regard. It is this – this is, strictly speaking not a new
application, i.e. one that is being launched for the first time for a
new type of relief against the respondent. It is a sequel to earlier
numerous bouts of proceedings, where the above protagonists, save the
2nd respondent, have slugged it out in the boxing ring as
it were. One would, for lack of a better word, term it renewed
hostilities between the protagonists. It would be an exercise in
sterile formalism to require of a defendant, every time a new
interlocutory application is launched to have it file authority in
each and every such application. I entertain no doubt in the present
proceedings that it was the respondent that was desirous of defending
the proceedings and the applicant said and showed nothing to detract
from that clear position, all the facts taken into account.


[30]
I have noted that in the order granted, I inadvertently did not make
an order regarding the scale at which the costs should have been
granted. It is a matter of record that Mr. Schickerling, counsel for
the 1st respondent, applied for costs to be granted on the
punitive scale for the reason, he contended, that the applicant is
abusing the processes of this court and has made scurrilous
allegations regarding the respondents ‘suppressing’ the
judgment. It is not a case where the scale of costs was not addressed
during the hearing of the application. I agree. Furthermore, as
demonstrated above, the applicant withheld critical information to
the court and also placed information before the court under oath
which it knew was incorrect. No other case can be shown to deserve
the court’s censure than such a case. That being the case, the
scale of costs is that of legal practitioner (attorney) and client.





TS
Masuku, AJ


APPEARANCES


APPLICANT:
The Applicant in person


RESPONDENTS:
J. Schickerling


Instructed
by Dr Weder, Kauta & Hoveka Inc.



[1]
See Notice of Motion dated 8 April 2015.




[2]
Constitution of the Republic of Namibia.




[3]
See paragraph 18 of the Notice of Motion.




[4]
See paragraph 20.




[5]
See paragraph 25.




[6]
See annexure “EB 2” of the 1
st
respondent’s affidavit.




[7]
See annexure “EB 4” of the 1st respondent’s
affidavit.




[8]
Rules promulgated by the Judge President which came into operation
on 16 April 2014.




[9]
Paragraph 19 of the founding affidavit.




[10]
Paragraph 21.




[11]
(
A
38/2015) [2015] NAHCMD 67 (20 March 2015).




[12]
Paragraph 24 of the judgment.




[13]
Letter marked ‘Stay 3’ attached to the founding
affidavit.




[14]
Letter (also) marked ‘Stay 3’ (duplication by the
applicant it must be noted).




[15]
[2004 NR 164 (HC).




[16]
[2011] (LsHC) 92.