Court name
High Court Main Division
Case name
Quenet Capital (Pty) Ltd v transnamib Holdings Limited
Media neutral citation
[2016] NAHCMD 104
Judge
Masuku J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGMENT


CASE
NO. I 2679/2013


In
the matter between:


QUENET
CAPITAL (PTY)
LTD........................................................................................PLAINTIFF


And


TRANSNAMIB
HOLDINGS
LIMITED........................................................................DEFENDANT


Neutral
citation: Quenet Capital (Pty) Ltd v Transnamib Holdings Limited (I
2679/2015) [2016] NAHCMD 104 (8 April 2016)


CORAM:
MASUKU J


Heard:
29 March 2016


Delivered:
08 April 2016


FLYNOTE:
RULES OF COURT – Rule 55 – application for
condonation. Rule 103 – applications for rescission of judgment
and/or setting aside or varying an order of court – Certificate
in terms of Rule 130.  LEGAL ETHICS – a legal practitioner
should act as an officer of the court and avoid partaking of his or
her client’s cause in such a manner that affects his or
performance of his or her duty to court.


SUMMARY: 
The applicant filed an application for condonation of its failure
to attend a case planning conference, culminating in the court
striking out its defence. Held – in applications for
condonation, an applicant had to present a reasonable and acceptable
explanation for its non-compliance with the rules or a court order
and to show that it has a bona fide defence to the claim. Held
– the applicant failed to deal at all with the issue of its
defence and that for that reason the application should fail. Held
further –
that even if the application for condonation were
to succeed, it would be of no assistance to the applicant because the
order striking its defence was left unshaken. Held – the
applicant should have filed an application in terms of rule 103 for
rescission of the court order. Held further – that rule
103 applies not only at the post-trial stage but also in instances
where an order that is alleged to be erroneously sought or granted
has been granted by the court. Held further – that legal
practitioners, as officers of the court should avoid partaking in the
emotions of their clients’ causes and should bring an unbiased
and professional judgment to bear on the cases they present to court.
Held further - that counsel should ensure that when they file
a certificate in terms of rule 130, that the contents thereof are
true and correct. Legal practitioners warned not to merely pay lip
service to the requirements of the said rule. Application for
condonation dismissed with costs and applicant granted leave to file
a fresh application to deal with the order sought to be set aside.


ORDER


1.
The application for condonation is dismissed.


2.
The applicant is granted leave, if so advised, to file an
appropriate application within 14 days of this order, for appropriate
relief.


3.
The costs of this application are awarded to the respondent on the
basis of one instructing and one instructed counsel.


4.
Messrs. Murorua and Associates are called upon to show cause within
10 days of the grant of this order, why they should not be ordered to
pay the costs of the application de bonis propriis.


5.
The matter is postponed to 15 June 2016 at 15h15 for a status
hearing.


JUDGMENT


MASUKU
J.;


[1]
An order issued by this court, dated 27 January 2016, striking out
the defendant’s defence for failure to comply with a court
order is the subject of an application for condonation which is the
subject matter of this judgment. I will revert shortly to the
background of the present proceedings.


[2]
The plaintiff, by combined summons sued the defendant for an order
declaring a lease agreement inter partes valid and binding and
of full force and effect and an order directing the defendant to
comply with its obligations in terms of the aforesaid lease
agreement. In the alternative to the foregoing, the plaintiff prayed
for an order for payment of an amount of N$ 16 500 000 and costs of
suit.


[3]
The defendant entered its appearance to defend the suit, culminating
a case planning conference notice issued by this court dated 9
November 2015 calling upon the parties to attend court on 25 November
2015 and to file a joint case plan three days before that date. No
such case plan was filed and on the appointed date, the plaintiff
appeared by its legal practitioner Ms. Beukes but the defendant, for
unexplained reasons, did not. The court, on that day issued an order
calling upon the defendant to show cause on 27 January 2016 why its
defence may not be struck out.


[4]
There was no response to this court order. As a result, the court
issued an order dated 27 January 2016 striking out the defendant’s
defence and postponed the matter to 30 March 2016 for a status
hearing. By the latter date, the applicant had already filed an
application on notice, purportedly in terms of the provisions of rule
55, seeking the following relief:


1.
The defendant’s notice of intention to defend is reinstated.


2.
That the parties’ case plan be consequentially adjusted.


3.
Costs of the suit only in the event that this application is opposed
by the plaintiff.


4.
Further and/alternative relief.


[5]
The gravamen of the applicant’s application contained in an
affidavit deposed to by the applicant’s attorney of record Mr.
Lucius Murorua is that the application for condonation was that the
applicant was not aware of the case plan notice as same was not
addressed to and therefore not received by the said law firm. He
further deposed that for some inexplicable reason, the said law firm
failed to capture the status hearing of 27 January 2016 in the diary.
It is further deposed that it was only at the stage of filing the
plea that the defendant’s legal representatives that it first
dawned that an order striking out the applicant’s order had
been issued and this was brought to the applicant’s legal
practitioner’s attention by letter dated 17 November from the
respondent’s legal practitioners. It is then, it is claimed
that the applicant, for the first time, got to know about the order
hence the application for condonation.


[6]
The applicant contends that its application for condonation is based
on the provisions of Article 12 (1) (e) of the Constitution of
Namibia which enshrines a party’s right to present a defence to
a case brought against it. This right, the applicant contends it was
denied. The applicant further submitted that from the events set out
in the preceding paragraphs, it had made out a case for condonation
and that it has demonstrated good cause and a valid and justifiable
explanation for the non-compliance with the aforesaid court order.
Lastly, it was urged upon the court to find that neither the conduct
of the applicant nor that of its attorneys was not tantamount to a
waiver of their constitutional right to present a defence.


[7]
The respondent’s position is that the application is totally
misplaced and must for that reason be dismissed. First, it is stated
on affidavit filed by Ms. Beukes that the applicant is barking the
wrong tree as it has approached the matter in terms of the provisions
rule 55 and not rule 103 as should have been the case. It is further
contended in the affidavit that the applicant has failed to disclose
what its defence to the claim was as required by case law on
condonation. Furthermore, Ms. Beukes states that on 26 November 2016,
a case plan was served by her office on the applicant’s legal
practitioner’s offices. This case plan indicated the status
hearing date of 27 January 2016 and which should have put the
applicant’s legal practitioners on red alert about that date.
It is thus submitted on the respondent’s behalf that the
failure to attend court on the said date can be said to be an
excusable error. The respondent accordingly applied for the court to
dismiss the application as meritless. 


[8]
Before I deal with the issues that arise, I find it proper to issue a
word of rebuke to the applicant’s legal representative. In his
opening address, Mr. Murorua went on an emotional tirade and
emphasized on how ‘his’, not even his client’s
estate was likely to suffer diminution in the amount on N$ 16 500.000
claim as a result of the striking out of the applicant’s
defence. I considered this emotive approach to the legal issues at
play to be unfortunate and tantamount to some emotional blackmail
that should not be part of legal practitioner’s arsenal in
arguing cases. It became evident that Mr. Murorua’s
professional judgment was very much clouded by his client’s
case such that he could not bring a dispassionate, impartial and
independent judgment to bear on the case as an officer of this court
and this is regrettable. I said as much during the hearing.


[9]
More importantly, it is very wrong and misleading to suggest, as he
did, that the applicant’s estate stood to be diminished in the
said amount and I say so primarily for the reason that the striking
out of the defendant’s defence did not automatically result in
the monetary claim being granted against the applicant. This is so
for the reason that the main claim by the respondent from the
particulars of claim was not for payment of the said amount but it
was for a declarator as stated earlier and for an order calling upon
the applicant to comply with its obligations in terms of the lease
agreement in issue. It is important to observe that the monetary
claim was presented as an alternative prayer and only in the event
that the court was, for any reason, not minded to grant the first two
prayers mentioned above. This sensationalism is totally out of order
and not expected from counsel. I would thus encourage legal
practitioners not to partake in their clients’ causes and to
also confine themselves strictly to legal issues and not play on the
court’s emotions in arguing cases. Persuasive legal argument,
without any emotional additives suffices. Only when practitioners do
so will they perform their twin duties to the court and their clients
in a proper, balanced and professional manner.  


[10]
Furthermore, even if it was correct that the monetary claim was to be
granted, it is trite that a court, acting properly does not grant an
order as claimed simply because the defendant has not defended or
because as in this case, the defence has been struck out. The court
has an extra duty, particularly where there is no opposition, or
where the opposition has fallen away, to ensure that the pleadings
are technically in order and that there is no anomaly glossed over
that may later ground an application for rescission or such other
order. This is even more pronounced when a claim to the extent of the
alternative claim is before court. The court would certainly act
scrupulously and with great circumspection to ensure that at the end
justice is done, even if one of the parties has for whatever reason,
been unable to present its case to the court.


[11]
I now turn to consider whether the applicant is entitled, in terms of
the law, to the orders sought in the notice of motion. The first
issue to consider is whether the respondent is correct in submitting
that the application for condonation is ill suited regard had to the
entire conspectus of the matter. The first issue to do in this
regard, is to consider are the provision of rule 55. The said
provision provides the following:


(1)
The court or the managing judge may, on application on notice to
every party and on good cause shown, make an order extending or
shortening a time prescribed by these rules or by an order of court
for doing an act or taking any step in connection with proceedings of
any nature whatsoever, on such terms as the court or managing judge
considers suitable or appropriate.


(2)
An extension may be ordered although the application is made before
the expiry of the time prescribed or fixed and the managing judge
ordering the extension may make any order he or she considers
suitable or appropriate as to the recalling, varying or cancelling of
the consequences of default, whether such consequences flow from the
terms of any order or from these rules’.  


[12]
There is plethora of local jurisprudence on the application of the
rule relating to condonation, both at the High Court and Supreme
Court levels. It is to these cases that we need to turn to consider
whether the application for condonation is the correct one and
particularly whether the requirements for condonation stipulated in
case law have been met by the applicant.


[13]
One of the important cases on condonation and to which Ms. Van der
Westhuizen for the respondent referred to in her eloquent and
persuasive address was that of
Beukes
and Another v South West Africa Building Society (Swabou) and 5
Others
[1]
Langa
AJA stipulated the principles applicable to applications for
condonation even under the new rules. In dealing with condonation,
the learned Judge of Appeal stated the following[2]:


An
application for condonation is not a mere formality. The trigger for
it is non-compliance with the Rules of Court. Accordingly, once there
has been non-compliance, the applicant should, without delay, apply
for condonation and comply with the Rules. . . In seeking
condonation, the applicants have to make out their cases on the
papers submitted to explain the delay and the failure to comply with
the Rules. The explanation must be full, detailed and accurate in
order to enable the Court to understand clearly the reasons for it.’


[14]
At para [20], the court reasoned as follows regarding prospects of
success:


I
have borne in mind that prospects of success are often an element,
sometimes an important factor that could influence a decision whether
or not to grant condonation in a proper case. It is however also true
that, in the jurisprudence of both South Africa and Namibia, although
prospects of success would normally be a factor in considering
whether or not condonation should be granted, this is not always the
case when non-compliance of the Rules is flagrant and there is
glaring and inexplicable disregard of the processes of the court.’


[15]
It therefore appears that for an application for condonation to
succeed, it is important for the applicant to address the twin
elements of a reasonable explanation for the delay or non-compliance
together with the issue of prospects of success. If there should be
any doubt about this, the Supreme Court spoke unequivocally on this
issue in
Petrus
v Roman Catholic Archdiocese,
[3]
O’Regan
AJA spoke in the following terms:


In
determining whether to grant condonation, a court will consider
whether the explanation is sufficient to warrant the grant of
condonation, and will also consider the litigant’s prospects
of success on the merits, save in cases of “flagrant
non-compliance with the rules which demonstrate a “glaring and
inexplicable disregard” for the processes of the court.”’
(Emphasis added).


[16]
Mr. Murorua argued strenuously that local jurisprudence does not
require a party seeking condonation to deal with the issue of
prospects of success. I must emphatically say that that is not the
position of the law in this jurisdiction. Prospects of success play a
pivotal role in some cases and have to be specifically addressed on
affidavit as the court may be faced with a perilous situation where a
good and acceptable explanation is given by the party applying for
condonation, yet if there are no prospects of success, granting
condonation may well be a waste of time and money as the case on the
merits may be bound to fail. See also
I
A Bell Equipment (Pty) Ltd v E S Smith Concrete Industries CC.
[4]


[17]
In
Teek
v President of the Republic of Namibia and Others
[5]
the Supreme Court reasoned as follows:


The
court has a duty to consider whether condonation should in the
circumstances of the case be granted. In this regard the court
exercises a discretion. That discretion must be exercised in the
light of all the relevant factors. These factors include the degree
of delay, the reasonableness of the explanation for the delay, the
prospects of success,
the importance of the case, the interest in
the finality of litigation and the need to avoid unnecessary delay in
the administration of justice. These factors are interrelated and not
exhaustive.’ (Emphasis added).


[18]
A last word on this issue! In
Balzer
v Vries
[6]
the
Supreme Court once again pronounced itself on this matter in a manner
adverse to the submissions of the applicant. The court said:


[20]
It is well settled that an application for condonation is required to
meet the two requisites of good cause before he or she can succeed in
such an application. These entail firstly establishing a reasonable
and acceptable explanation for the delay and secondly satisfying
the court that there are reasonable prospects of success on appeal.’
(Emphasis added).


These
sentiments should put paid to and sound a death knell to any
prospects of the sustainability of Mr. Murorua’s argument.


[19]
In the instant case, the applicant has not bothered at all to deal
with the issue of prospects of success or a bona fide defence
at all and for the foregoing reason, it is very difficult for the
court to come to the assistance of a party in such a position as it
has not given the court the wherewithal to be able to exercise its
discretion accordingly. This is, assuming of course that the court is
satisfied with the explanation that the applicant has tendered. In
the premises, I am of the opinion that the applicant is not entitled
to condonation as he has failed to set out all the requirements for
same. I accordingly refuse to exercise the court’s discretion
in its favour.


[20]
It is also important to point out that applications for condonation
in terms of rule 55 apply in instances where a party has for reasons
to be canvassed and found to be satisfactory to the court, been
unable to comply with time limits prescribed by the rules or an order
of court. In this regard, the situation may be such that the party
seeks an extension of time in order to be able to comply or the
shortening a period set out. It would also appear that the rule can
be used in circumstances where a party seeks to uplift a bar that has
been imposed, either automatically or by an order of court. It
therefore becomes clear that the rule cited by the applicant is not
of assistance to it as the non-compliance in this case was followed
by an order precipitated by the said non-compliance.


[21]
There is another issue that I raised with Mr. Murorua during the
hearing and it relates to the view I hold that the application for
condonation, even if granted by the court, would not have been of
assistance to the applicant and thus fortifying the respondent’s
position that the application for condonation was ill-suited for
these proceedings. My view was premised on the fact that even if
condonation were granted, that would not in any way dispose of the
order dismissing the applicant’s defence. It was in my view
necessary for the applicant to have applied for rescission or setting
aside of that specific order as it is the one that closes the court’s
portals to the applicant regarding defending the matter at the
present moment. Condonation would still not assist the applicant at
all.


[22]
Mr. Murorua argued that he could not have brought the application in
terms of rule 103 for the reason that the said rule applies to
post-trial situations. In this regard, he brought the court’s
attention to the heading of Part 11 of the said rule, which reads,
‘Post-trial or Post hearing Matters’. I indicated that
the heading does not in any event state that applications for
rescission of judgments may only be made post-trial. In any event,
the rule makes reference as well to ‘post-hearing’ and
this would, to my mind envisage situations where after a hearing it
becomes necessary to move an application for rescission or variation
of a court order or a judgment.


[23]
It should not be forgotten that viewed in its proper context, this
rule has been uplifted line, hook and sinker as it were from the
repealed rules of court where it was rule 42. It is common cause that
that rule was applicable at any stage where it was alleged that a
judgment or order had been erroneously sought by an applicant or
granted by the court. In the instant case, an order of court was
granted and in respect of which the applicant has a complaint,
arguing in essence that it was granted erroneously. The wording of
‘post-hearing’ employed by the lawgiver in the new rules
applies squarely to the present scenario in my view.


[24]
I do not, for that reason accept Mr. Murorua’s argument that he
could not have brought an application for the rescission of the order
in terms of rule 103 for the reasons suggested. I am of the
considered view that as matters stand, the order complained of stands
as is and has not been the subject of any application for rescission
or other order to have it set aside or varied. It is a wholesome
legal principle that an order of court, even if perceived to be wrong
stands and is valid and binding unless properly set aside by the
court, either on its motion or at the instance of a party affected
thereby.


[25]
Mr. Murorua made a startling proposition to the effect that an order
that is granted in error has no binding effect and that a party
affected thereby has a right to ignore the said order. He cited the
case of
Dada
v Dada
[7]
where
Nicholas J. stated the following:


When
an action has been begun without due citation of the defendant, the
subsequent proceedings are null and void, and any judgment given is
of no force or effect whatsoever.’


I
entirely agree with the statement of the law by the learned Judge but
it does not, with respect, apply at all in the instant matter as the
applicant in casu was cited in the combined summons as a
defendant. The Dada case is therefore of no application
whatsoever to the present proceedings.


[26]
The statement of the law by Mr. Murorua is dangerous and appears to
suggest that a party can choose which orders to respect and which
ones not to, based on whether in that litigant’s view, the said
order is correct or not. Such an approach would be highly subversive
and inimical to the rule of law.


[27]
I can do no better, in this regard, than to cite with approval the
sentiments expressed by Mogoeng CJ in
Economic
Freedom Fighters v Speaker of the National Assembly and Others;
Democratic Alliance v Speaker of the National Assembly and Others
[8]
in
the following language:


The
rule of law requires that no power be exercised unless it is
sanctioned by law and no decision or step sanctioned by law may be
ignored based purely on a contrary view we hold. It is not open to
any of us to pick and choose which of the otherwise effectual
consequences of the exercise of constitutional or statutory power
will be disregarded and which will be given heed to. Our foundational
value of the rule of law demands of us, as law-abiding people, to
obey decisions by those clothed with legal authority to make them or
else approach the courts of law to set them aside, so we may validly
escape their binding force’.


[28]
This excerpt, though appears at first blush to be referring, in the
initial parts, to constitutional and statutory powers, applies with
equal force to court orders. If there should be any doubt, the last
sentence places the matter well beyond a shadow of doubt. I have no
doubt in my mind that Namibia, just like South Africa, also
subscribes to the notion of the rule of law as a foundational
principle that helps cement this great Nation together.


[29]
In the premises, and for the foregoing reasons, I am of the view that
the applicant’s application should fail. It has failed to make
a sustainable case for condonation and has also not applied for the
rescission, variation or indeed the setting aside of the order dated
29 January 2016.


[30]
In view of the aforegoing, there is no basis upon which the court, in
the absence of necessary allegations, may exercise its discretion in
the applicant’s favour and particularly as I am of the
considered view that there is no patent error on the papers that may
allow the court on its own initiative, to vary, rescind or set aside
the said order. Clearly, allegations from the applicant as to how the
order came not to be complied with and the error alleged, if any,
must be pointed out by the applicant on affidavit.


[31]
There is one other matter that I am in duty bound to comment about in
this case. This relates to the certificate to be filed by
practitioners in terms of rule 130. In terms of that rule, a legal
practitioner who relies on foreign authority in heads of argument or
in written or oral submissions in support of a proposition of the
law, must certify that he or she was, despite a diligent search,
unable to find Namibian authority on the said proposition and further
certify that there is no Namibian law, including the Namibian
Constitution, that precludes the acceptance by the court of the
proposition of law that the foreign authority is said to establish.


[32]
I note that most practitioners do not pay heed to the latter
certification at all. That should not be the case. In relation to the
former, it must be mentioned that the requirements of this rule are
not pedantic and a mere shibboleth or religious incantation to be
mumbled as a magic wand. The rule is to ensure homogenous growth and
development of autochthonous jurisprudence and also to avoid
conflicting judgments ushered in by foreign judgments which may
unwittingly filter into our jurisprudence and bring uncertainty and
hence confusion.


[33]
It is incorrect for a legal practitioner to rely on foreign authority
when local authority on the subject abounds. In the instant case for
instance, most of the cases relied on by the applicant’s legal
representative were obtained from the Republic of South Africa and
they relate to legal propositions which abound in this jurisdiction.
That this is the case can be seen from the local case law that
decorates this judgment.


[34]
Mere lip service to the requirements of rule 130 will not do.
Practitioners must appreciate that the court takes and is entitled to
take their word, including any certification by them on the face of
it and as a bank guaranteed cheque. This is so because they occupy an
especial position of being the officers of the court. If the court
must start investigating the true circumstances behind a legal
practitioner’s certificate, it is a sign that we have tough
times ahead and that a legal practitioner’s certificate may be
well returned marked ‘refer to the drawer’.


[35]
Having regard to the foregoing, I am of the view that the following
order will suffice:


1.
The application for condonation is dismissed.


2.
The applicant is granted leave, if so advised, to file an
appropriate application within 14 days of this order, for appropriate
relief.


3.
The costs of this application are awarded to the respondent on the
basis of one instructing and one instructed counsel.


4.
Messrs. Murorua and Associates are called upon to show cause within
10 days of the grant of this order, why they should not be ordered to
pay the costs of the application de bonis propriis.


5.
The matter is postponed to 15 June 2016 at 15h15 for a status
hearing.


T.S.
Masuku


Judge


APPEARANCES


PLAINTIFF:
C. Van der Westhuizen


Instructed
by Engling, Stritter & Partners


DEFENDANT:
L. Murorua


Instructed
by Murorua & Associates



[1]
(SA 10-2006) [2010] NASC 14 (5 November 2010).




[2]
Para 12 and 13of the judgment.




[3]
2011 NR 637 at para [10].




[4]
(I 1860/2014) [2015] NAHCMD 68 (23 March 2015) at para [9] and [10].




[5]
2015 (1) NR 51 (SC) at 61 E-H.




[6]
2015 (2) NR 547 (SC) at 661 J – 552 F.




[8]
(CCT 171/15) ZACC 11 (31 March 2016) at para 75.