COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: I 2568/2014
18 JANUARY 2016
the matter between:
FRESH PRODUCTS (PTY)
citation: National Fresh Products (Pty)
Ltd v Mundjele (I 2658-2014)
 NAHCMD 2 (18 January 2016)
27 July 2015
18 January 2016
Practice – Pleadings - Amendment
of plea to introduce special plea. Amendment lodged just before
date of trial – Delay in seeking amendment of pleadings –
Such applications at advanced stage of proceedings frustrate the
overriding principle of judicial case management. Managing
Judge should be slow to allow any late interlocutory proceedings,
which might delay final determination of case – Exceptional
circumstances. – Legal practitioners appear to not have
properly assisted the defendant – Defendant obtaining new legal
representation who picked up an important issue which he wished to
raise via special plea by the introduction of same in a notice of
amendment – Defendant at the outset tendering wasted costs on
an attorney and client scale – Although the actions of the
defendant left much to be desired, the attitude and conduct of his
legal practitioners was such that the blame for his dilatoriness
could not be placed on his doorstep.
On 27 July 2015 I made the following
The defendant’s non-compliance with the judicial case
management report filed on 22 January 2015 is condoned.
The defendant is granted leave to file his witness statement, which
statement shall be delivered by close of business on 28 July 2015.
The defendant is granted leave to file a notice to amend his plea,
which notice shall be delivered by close of business on 28 July 2015.
The plaintiff shall be entitled to exercise its right to object to
the notice to amend in terms of the Rules of Court.
The defendant shall pay the wasted costs occasioned by the
postponement of this matter on an attorney client scale, such costs
to include the costs of one instructing and one instructed legal
The matter is postponed to 17 August 2015 at 15h30 for a status
Reasons for the above order were
requested by the plaintiff. Here are the reasons.
This matter first came before me at
a case management conference on 27 April 2015. The defendant’s
legal practitioner of record, Shikale and Associates, had filed a
notice of withdrawal on 22 April 2015. However, the defendant’s
correspondent legal practitioner based in Ongwediva had not filed a
notice of withdrawal. As such, in terms of the rules of court,
this firm was still the legal representative of the defendant for
purposes of appearance as well as the further conduct of this
matter. At the case management conference on 27 April 2015
there was no appearance by or on behalf of the defendant, but the
plaintiff was represented. In the result, an order was made
setting the matter down for trial on the civil floating roll
commencing on 5 to 8 May 2015 at 10h00. This court order was
faxed to the attorneys of the defendant based in Ongwediva. I
point out the pre-trial process was complete and that availability of
the representatives for the scheduled hearing date was agreed to by
the representatives before Shikale & Associates withdrew.
On 5 May 2015, the plaintiff’s
team appeared at court together with their instructed counsel. They
were prepared for trial. The defendant however appeared on his
own, having also been served with the court order dated 27 April
2015. However, there was no appearance by his legal
practitioner who had not yet withdrawn. The defendant himself
addressed the court. He did not appear to think that his
representative had withdrawn. The defendant made it clear that
he was at all material times ready to proceed in this case and that
his lawyer was the attorney of record based in Ongwediva, in spite of
the fact that no witness statements had been filed on his behalf at
the time. Accordingly, the following order was made on 5 May
The matter is set down for trial on the civil floating roll from 27
to 31 July 2015 at 10h00.
The matter is postponed to 18 May 2015 at 15h30 for a status hearing
and for argument on the issue of the wasted costs to the plaintiff
for the appearance on 5 May 2015.
The defendant’s legal practitioner of record Ms Inonge Mainga
is ordered to file an affidavit, not less than 2 days before the date
allocated for the status hearing in this matter explaining why:
she failed to appear in court for the defendant on 5 May 2015;
no witness statement was filed on behalf of the defendant on 7 April
she should not pay the wasted costs for the trial set down for 5 to 8
May 2015 de bonis propriis.
Any failure to comply with the obligations imposed on the parties by
this order will entitle the other to seek sanctions as contemplated
in rule 53 and 54.
A failure to comply with any of the above directions would ipso
facto make the party in default liable
for sanctions, at the instance of the other party or the court acting
on its own motion, unless it seeks condonation thereof within a
reasonable time before the next scheduled hearing, by notice to the
This court order was similarly faxed
to Inonge Mainga practitioners.
On 18 May 2015 there was still no
appearance nor any explanation by Ms Mainga. In the result, a
de bonis propriis
order was made against the legal practitioner concerned.
On 22 July 2015 (3 days before the
trial) the defendant applied for an order condoning short notice of
an application that the plea be amended by the inclusion of a special
plea of prescription (set out in the body of the application);
consequentially amending the pre-trial order dealing with all issues
of fact to be resolved during the trial; condoning the late delivery
of the defendant’s witness statement. In the alternative
the defendant applied for an order for the matter to be postponed to
a date to be allocated. As regards costs the defendant prayed
for the costs occasioned by the postponement to be held over and to
be decided at the trial, and that the defendant pays for the costs of
As this matter has to be heard I do
not delve into any detail concerning the factual basis of the plea of
prescription, save to point out that Mr Barnard, appearing on behalf
of the defendant as instructed counsel, with the instructing legal
practitioner of record, appearing again subsequent to coming back on
record, argued that based on the particulars of claim read with the
witness statements on behalf of the plaintiff made it apparent that
at the very least that the plaintiff’s claim had entirely
prescribed or a significant portion thereof had prescribed.
In this regard I must point out that
Mr Barnard appears for the first time as instructed counsel for the
defendant, instructed by the erstwhile legal practitioner of record,
Shikale and Associates who inexplicably came back on record via
notice of representation. With regard to the plea of
prescription Mr Barnard submitted that it was a good plea and that he
had only noticed the facts giving rise to the special plea when he
was preparing for trial.
van der Westhuizen, appearing for the plaintiff as before, indicated
that the application was opposed and that she will deal with the
merits of same during argument. She pointed out at the outset
that there was non-compliance with rule 32(9) and on that basis the
interlocutory application should summarily be struck from the roll.
I must mention that at the outset of the proceedings when the matter
was opposed, I stood the matter down in order for Mr Barnard to
discuss certain anomalies that I had noted, specifically with regard
to affidavits filed by the defendant’s legal practitioners and
dealt with below, but I also gave them an opportunity to consider the
matter in terms of rule 32(9) and to report to court whether or not
that had been complied with. Ms van der Westhuizen also pointed
out that should the court be inclined to grant the application for
leave to amend and to introduce the special plea, a postponement
would be required in order to enable her to obtain instructions on
the special plea.
from the objection to the lack of following of the rule 32(9)
procedure, Ms van der Westhuizen argued on the merits that the
application for leave to amend should be dismissed as it had been
brought at an unacceptably late stage and as such fell to be
dismissed along the lines as done by the full bench of this court in
Bell Equipment Company Namibia (Pty) Ltd v Road Stone Quarries
She pointed out that the plaintiff was ready to proceed and should
her submissions be successful that the trial be permitted to proceed
with the defendant essentially being in default.
It is true that this application for
leave to amend is being brought what can only be described as an
unacceptably late stage. This is the type of behaviour that the
court frowned upon in the IA Bell
matter. At the pre-trial stage these issues should have been
sorted out way in advance. However the facts in the IA
Bell matter are different.
I pause that this point to deal
shortly with the conduct of the legal practitioners of the
defendant. As stated above the instructing legal practitioner
for the defendant withdrew and then came back on record later on to
appear as instructing counsel in this matter. The correspondent
legal practitioner in Ongwediva did not comply with the court orders
referred to above. In some way or form, an affidavit deposed to
by the correspondent legal practitioner of the defendant, Ms Inonge
Mainga, was filed with court on 12 June 2015, sometime after the
order of 5 May 2015. It was specifically arranged that the
order of 5 May 2015, in view of its potential prejudice to that legal
practitioner was faxed directly to her office on 6 May 2015. In
the affidavit on 12 June 2015 the legal practitioner sought to allege
that the cause of the delays had been due to the failure of the
defendant to pay her account and that he refused to attend at her
offices or at the offices of the erstwhile instructed counsel to
finalise witness statements. There was also an allegation that
the defendant failed to settle invoices from instructed counsel.
She further stated that she tried to get the defendant to attend at
the offices for consultation but he refused to do so. In
addition, she states that on 15 April 2015 her notice of withdrawal
as legal practitioners was sent to Shikale & Associates but it
was apparently not immediately served on the plaintiff’s legal
practitioners. I point out that no notice of withdrawal from
the legal practitioners concerned was attached to the affidavit of Ms
The defendant on the other hand
stated that in his affidavit dated 21 July 2015 that his relationship
with his attorney Ms Mainga was not good, that they did not consult
face to face and that she took instructions via telephone and never
kept him informed of events.
In spite of the belated explanation
of the legal practitioner, what is really difficult to understand
especially coming from an officer of the court, is that the court
could not be informed at the outset of the situation. To date,
there is still no notice of withdrawal from Ms Mainga in the court
file. There is no explanation by Ms Shikale on the question of
the notice of withdrawal of Ms Mainga, considering she is back on
record and could have assisted the court.
In this instance, I cannot on the
facts before me place the blame for conduct that is clearly
prejudicial to the plaintiff squarely on the defendant. The
defendant attended the court appearances by himself every time.
He indicated that he was still being represented by his legal
practitioner in Ongwediva. He indicated that he wanted to
continue with this matter and that he was very intent on defending
this matter until the end.
The defendant has the funds to
litigate in this matter and at the outset of the proceedings Mr
Barnard submitted that it was his instructions that the defendant
tendered costs for a postponement on an attorney and client scale.
I am in agreement and understand the
frustrations of the plaintiff, having prepared to come to court this
time again prepared and not have the matter dealt with immediately.
However, as previously stated, this is not a matter where the blame
can be placed squarely on the defendant and I believe that the
conduct of the legal practitioner concerned exasperated the
situation. The defendant did not deserve to have the trial
continue in his ‘absence’ in these circumstances.
The court has a responsibility to dispense justice and in order to do
so, both sides must be considered.
It is on these bases and on these
particular and exceptional facts alone, that the order dated 27 July
2015 was made, and this case should not, in the absence of a full and
acceptable explanation on the particular facts, be used as any
authority going against the clear principle that the court should be
slow to allow any late interlocutory proceedings with serve to
frustrate the principle of judicial case management.
Ms van der Westhuizen
by Engling, Stritter & Partners
by Shikale & Associates
 NAHCMD 306 (17 October 2014)