Court name
High Court Main Division
Case name
Kambazembi Guest Farm CC t/a Waterberg Wilderness v Minister of Lands And Resettlement Minister of Agriculture Water And Forestry and Others
Media neutral citation
[2015] NAHCMD 128
Judge
Unengu AJ










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


Case
no: A 295/2013


DATE:
05 JUNE 2015


In
the matter between:


KAMBAZEMBI
GUEST FARM CC t/a WATERBERG


WILDERNESS....................................................................................................................APPLICANT


And


THE
MINISTER OF LANDS AND
RESETTLEMENT......................................1ST
RESPONDENT


THE
MINISTER OF AGRICULTURE, WATER AND


FORESTRY.............................................................................................................2ND
RESPONDENT


THE
MINISTER OF
FINANCE...........................................................................3RD
RESPONDENT


THE
CHAIRPERSON OF THE LAND REFORM


ADVISORY
COMMISSION..................................................................................4TH
RESPONDENT


THE
COMMISSIONER FOR INLAND
REVENUE..........................................5TH
RESPONDENT


THE
ATTORNEY-GENERAL OF
NAMIBIA.....................................................6TH
RESPONDENT


THE
VALUATION
COURT
...................................................................................7TH
RESPONDENT


Neutral
citation:
Kambazembi Guest Farm CC v The
Minister of Lands and Resettlement
(A
295/2013) [2015] NAHCMD 128 (05 June 2015)


Coram:
UNENGU AJ


Heard:
08 April 2015


Delivered:
05 June 2015


Flynote:
Practice – Applications and
motions – Interlocutory application – Applicant
contending that application is
sui
generis
therefore, rule 32 of the High
Court Rules not applicable – Court held that not persuaded that
rule 32(9) and (10) not applicable – Further, Court held that
application is of interlocutory nature, therefore, must comply with
the peremptory provisions of rule 32(9) and (10) of the Rules of
Court – In the result, the point
in
limine
upheld due to non-compliance
with rule 32(9) and (10) – and application struck from the roll
with costs.


Summary:
Practice – Applications and
motions – Interlocutory application – Applicant who
launched review application against the respondents in the main
application has launched another application to compel the
respondents to furnish him with certain documents – Application
was termed by the applicant
sui generis
excusing the applicant from complying with the provisions of rule
32(9) and (10) of the Rules of Court – However, the court held
that the point
in limine
raised by the respondents be upheld due to non-compliance with rule
32(9) and (10) and struck the application from the roll with costs.


ORDER


(i)
The point
in limine
raised by the respondents is upheld.


(ii)
The application is struck from the roll with costs.


JUDGMENT


UNENGU
AJ:


[1]
In his notice of motion filed on 01 October 2014, the applicant gave
notice to the respondents that an application will be made on his
behalf for orders in the following terms:


(i)
Directing the first, fourth and fifth respondents to furnish reasons,
within 20 days, for the decisions challenged at paragraphs B26, C27,
D28, E29, F30, G31, H32,K35.1 and K35.2 of the notice of motion in
the main application.


(ii)
Directing the first, fourth and fifth respondents to deliver, within
20 days, the original record of proceedings sought to be set aside
and reviewed in terms of paragraphs B26 to H32 and K35.2 of the
notice of motion in the main application, which record should include
but is not limited to the original documents appearing in Annexure A
attached to the notice of application.






(iii)
Directing the first, fourth and fifth respondents to deliver, within
20 days, the complete record of proceedings sought to be set aside
and reviewed in terms of paragraph s B26 to H32 and K35.1 and K35.2
of the notice of motion in the main application, which record should
include but is not limited to the original documents and related
particulars specified in Annexure B attached to the notice of
application.


(iv)
Costs of the application against those respondents opposing it,
jointly and severally if more than one.


(v)
Such further and or alternative relief as the court may deem
appropriate.’


[2]
The affidavit supporting the application was deposed to by Mr Rust,
the sole member of the applicant and who together with his wife
manage the day to day business of the applicant. In his affidavit, Mr
Rust stated that the purpose of the application is to compel the
respondents to furnish to the applicant reasons for the decisions
challenged by the applicant in the main application, to serve on the
registrar the original record of the proceedings under review; and to
serve on the applicant the complete record of the proceedings under
review which relief, he said, is constitutional in nature, embodied
in rule 76 of the rules of court.


[3]
In his opening address, Mr Tötemeyer confirmed that the
application arises from the main application concerning
Constitutional Review relief and essentially an application to compel
the first respondent to give reasons for decisions sought to be
reviewed in the main application. The main application, as already
indicated, is brought before court in terms of Rule 76 of the High
Court Rules.[1]


[4]
Mr Hinda, counsel for the respondents, as an introduction to his
written heads of argument, pointed out that the respondents were in
agreement with the general jurisprudence espoused in the applicant’s
heads of argument, but their concern is whether the applicant has
complied with the provisions of Rule 76 and, if so, whether the
records sought to be compelled are in existence and can be compelled
in proceedings of this nature.


[5]
That being the case, and as a result therefore, Mr Hinda raised a
point
in limine
that the new rules of this Court do not provide for an application to
compel the respondents to furnish to the applicant the reasons for
the decisions challenged, the procedure which was available under
Rule 35(7) of the previous Rules of Court. According to Mr Hinda, the
application to compel procedure in the old Rules has been jettisoned
in favour of the procedure controlled by the Managing Judge under
Rule 76(8) for the discovery and disclosure of reasonable and
identified additional documents which were not made available in
terms of Rule 76(2).


[6]
In paragraph 4 of his main heads of argument, Mr Hinda submits that
the fact that the applicant designated the relief it seeks as
constitutional does not elevate it to a level different from an
ordinary review application in terms of Rule 76 of the Rules of
Court. He further argues that all review applications are predicated
on constitutional provisions and that there is no difference between
this application and any other review application. According to him
the application must comply, not only with rule 76 but also with rule
32(9) and (10).


[7]
On his side, Mr Tötemeyer argues that judicial review of public
law action is a
sui generis
remedy, vested in the judiciary by the Constitution dating back to at
least 1855. He said that the reliance on rule 32(8) and (9) by the
respondents cannot succeed because it is common cause that rule 32
does not apply to this matter, and also that when the hearing of this
matter was determined by Hoff, J on 20 November 2014, the respondents
did not raise objections. It is further his submission that this
review relief is embodied in Article 18 of the Constitution and
finally expressed in Article 25(1), that no rule of court can change
or qualify the Constitution.


[8]
Reference has been made to about what transpired before Hoff, J
during the hearing and determination of the application on 20
November 2014. I was unfortunately unable to locate the proceedings
of 20 November 2014 to acquaint myself with what transpired before
Hoff, J on the said date. Counsel for the applicant is also not
helpful in his heads of argument as he only say ‘when the
hearing of this matter was determined by Hoff, J on 20 November 2014
the respondent did not raise objections. It is too late now to
reverse the process’, without stating what was determined by
Hoff, J which cannot now be reversed.


[9]
A perusal of the correspondence exchanged between the legal
practitioners of the applicant and the respondents shows that there
is a disagreement between them as to whether the application is
interlocutory in nature or not. The applicant is determined that the
application is not interlocutory, therefore, the provisions of rule
32 are not applicable, while the respondents are of the opposite
view.


[10]
It was argued on behalf of the applicant during the hearing of the
application that the application was brought to direct the first,
fourth and fifth respondents to furnish reasons for the decisions
challenged in the main application. This is also the relief sought by
the applicant in his notice of application filed on 01 October 2014
supported by an affidavit of Mr Joachim Rust; which, in paragraph 3
thereof states the purpose of the application as ‘to compel the
respondents to furnish to the applicant reasons for the decisions
challenged by the applicant in the main application; to serve on the
registrar the original record of the proceedings under review and to
serve on the applicant the complete record of the proceedings under
review.’


[11]
It is therefore clear from the abovementioned statements that the
present application is interlocutory as it is incidental to the main
application which is still pending between the same parties, and of
which the same legal practitioners are litigating on behalf of the
parties. Also because of the fact that the ruling in this application
will not terminate or dispose of the dispute of the parties in the
main application. Therefore, the application, in my opinion, is pure
interlocutory in nature, and rule 32 is applicable.


[12]
The fact that the review relief is embodied in Article 18 of the
Constitution read with Article 25(1), cannot make it different from
other interlocutory applications. I agree with Mr Hinda that all
review applications are constitutional in nature and embodied in
Article 18 of the Constitution as, in most instances, these reviews
are directed against the decisions of administrative bodies or
against decisions of administrative officials.


[13]
It is trite that the new rules of the court discourages interlocutory
applications to court on matters which can amicably be resolved
between the parties. The party who wishes to institute an
interlocutory proceeding is enjoyed first, under Rule 32(9) to
approach the other party in an attempt to try and resolve the issue,
a procedure provided for in an attempt to avoid unnecessary
interlocutory proceedings. This application is not an exception to
the rule. The parties must comply with the peremptory terms of
subrules (9) and (10) of rule 32 of the Rules of Court[2].
In
Mukata
v Appolus
[3],
Parker, AJ stated, in para [6] of the judgment that a non-compliance
with the provisions of rule 32(9) and (10) is fatal. I agree. In this
application, I am not persuaded by the applicant that, it is a
sui
generis

application therefore, rule 32(9) and (10) should not apply. All
interlocutory applications must follow the procedure provided for in
the rule, a failure to comply with the rule, therefore, will have
dire consequences to the applicant – in the sense that the
application will be defective (See
Mukata
v Appolus

supra).


[14]
That being the case, and for reasons stated above, I came to the
conclusion that the point
in limine
raised by the respondents must succeed.


[15]
In the result the following orders are made:


(i)
The point
in limine
raised by the respondents is upheld.


(ii)
The application is struck from the roll with costs.





E
P UNENGU AJ


Judge


APPEARANCES


APPLICANT
: R Tötemeyer SC


Instructed
by LorentzAngula Inc., Windhoek


RESPONDENTS:
G Hinda SC


of
Government Attorney, Windhoek






[1]
Rule
76 deals with review applications, in general. Subrule (1) provides
that all proceedings to bring under review the decision or
proceedings of an inferior court, a tribunal, an administrative body
or administrative official are unless a law otherwise provides, by
way of application directed and delivered by the party seeking to
review such decision or proceedings to the magistrate or presiding
officer of the court, the chairperson of the tribunal, the
chairperson of the administrative body or administrative official
and to all other parties affected.




[2]
South African Poultry Association v The Ministry of Trade and
Industry (A 94/2014) [2014] NAHCMD 331 (07 November 2014).




[3]
(I 3396/2014) [2015] NAHCMD 54 (12 March 2015).