Inter-Africa Security Services CC and Another v TransNamib Holdings Limited and Others (A 236/2015) [2017] NAHCMD 24 (02 February 2017);

Group

Full judgment

REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 236/2015

In the matter between:

INTER-AFRICA SECURITY SERVICES CC                                 1ST APPLICANT

TRIPLE ONE INVESTMENT CC                                                 2ND APPLICANT

and

TRANSNAMIB HOLDINGS LIMITED                                          1ST RESPONDENT

THE CHAIRPERSON OF THE TRANSNAMIB

TENDER COMMITTEE                                                               2ND RESPONDENT

INDEPENDENT SECURITY SERVICES                                       3RD RESPONDENT

NKASA SECURITY SERVICES                                                  4TH RESPONDENT

SPLASH INVESTMENT                                                             5TH RESPONDENT

CIS SECURITY SERVICES                                                        6TH RESPONDENT

SHILIMELA SECURITY SERVICES                                            7TH RESPONDENT

NAMIBIA PROTECTION SERVICES                                           8TH RESPONDENT

RUBICON SECURITY SERVICES                                               9TH RESPONDENT

SECURITY TRAINING COLLEGE OF NAMIBIA                          10TH RESPONDENT

OMBALA TRADING ENTERPRISES                                          11TH RESPONDENT

STEFMORY INVESTMENT                                                       12TH RESPONDENT

MAXI SECURITY ENTERPRISES                                              13TH RESPONDENT

ONE AFRICA INVESTMENT CC                                                14TH RESPONDENT

SIRIVA INVESTMENT CC                                                         15TH RESPONDENT

AMON SECURITY SERVICES                                                   16TH RESPONDENT

SITANA CONSTRUCTION                                                         17TH RESPONDENT

DIBASEN TRADING ENTERPRISE                                             18TH RESPONDENT

NAMIBIA PEOPLES PROTECTION                                            19TH RESPONDENT

SHANIKA PROTECTION                                                           20TH RESPONDENT

LION PROTECTION SERVICES                                                21ST RESPONDENT

WAAKALI SECURITY SERVICES                                              22ND RESPONDENT

SHINE CONSULTANT SERVICES                                              23RD RESPONDENT

BAOBAB SECURITY SERVICES                                               24TH RESPONDENT

TIGER SECURITY SERVICES                                                   25TH RESPONDENT

SOUTHERN SECURITY                                                            26TH RESPONDENT

NGATUKONDJE TRADING                                                       27TH RESPONDENT

LUKROSE INVESTMENT CC                                                   28TH RESPONDENT

WINDHOEK SECURITY SERVICES                                          29TH RESPONDENT

ROYAL SECURITY SERVICES                                              30TH RESPONDENT

SHIMWE TRADING ENTERPRISES                                       31ST RESPONDENT

WETU MULTI INVESTMENT                                                  32ND RESPONDENT

RENDORA COMMERCIAL ENTERPRISES                              33RD RESPONDENT

LC INVESTMENT                                                                  34TH RESPONDENT

KEETMANS LION FORCE SECURITY                                     35TH RESPONDENT

KATIMBO SECURITY SERVICES                                            36TH RESPONDENT

ONYEKA PROTECTION SERVICES                                         37TH RESPONDENT

NSS                                                                                       38TH RESPONDENT

CHISUMA MULTI SERVICES                                                   39TH RESPONDENT

OMLE SECURITY SERVICES                                                  40TH RESPONDENT

URAN SECURITY SERVICES                                                   41ST RESPONDENT

OTAMANZI SECURITY SERVICES                                            42ND RESPONDENT

GM SECURITY SERVICES                                                        43RD RESPONDENT

CHIPPA TRADING ENTERPRISES                                            44TH RESPONDENT

CHOBE SECURITY                                                                   45TH RESPONDENT

JJJ TRADING ENTERPRISES                                                   46TH RESPONDENT

MVINGU SECURITY SERVICES                                                47TH RESPONDENT

THATO CONSTRUCTION                                                         48TH RESPONDENT

MAYFIELD PROTECTION SERVICES                                        49TH RESPONDENT

IIPUMBU INVESTMENT SERVICES                                          50TH RESPONDENT

ONAMAPONGWA TRADING ENTERPRISES                             51ST RESPONDENT

KHAIBASEN SECURITY SERVICES                                          52ND RESPONDENT

 

Neutral citation:      Inter-Africa Security Services CC v Transnamib Holdings Limited (A 236/2015) [2017] NAHCMD 24 (2 February 2017)

 

Coram:          PARKER AJ

Heard:            1 November 2016

Delivered:     2 February 2017

 

Flynote:         Practice – Applications and motions – Urgent application – Applicant’s urgent application for interim interdict struck from the roll for lack of urgency – Applicant enrolling and setting down a judicial review application in place of the interim interdict application and under the selfsame interim interdict application case number – Such not permitted – The court held that where a court refuses to condone non-compliance with the rules of court that is the end of the particular process – There having been no adjudication of merits of the dispute, a litigant may in the ordinary course and using the prescribed form bring such dispute before the court – In the instant case applicant enrolled and set down a totally new application, viz. a judicial review application, but that application was not brought in terms of rule 76 of the rules of court as the law has prescribed and demands – Accordingly, court found the application to be defective and the procedure irregular – In the result the court held was that there was no judicial review application before the court for the court to determine – Consequently, application struck from the roll with costs. Principles in Swakopmund Airfield v Council of the Municipality 2013 (1) NR 205 (SC); and in Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Institutions Supervisory Authority and Registrar of Stock Exchange (HC-MD-CIV-MOT-GEN-2016/00233) [2016] NAHCMD 365 (17 November 2016) applied.

Summary:     Practice – Applications and motions – Urgent application – Applicant’s urgent application for interim interdict struck from the roll for lack of urgency – Applicant enrolling and setting down a judicial review application in place of the interim interdict application and under the selfsame interim interdict application case number – Such not permitted – Where a court refuses to condone non-compliance with the rules of court that is the end of the particular process – There having been no adjudication of merits of the dispute, a litigant may in the ordinary course and using the prescribed form bring such dispute before the court – In the instant case applicant enrolled and set down a totally new application, viz. a judicial review application, but that application was not brought in terms of rule 76 of the rules of court as the law has prescribed and demands – Accordingly, court found the application to be defective and the procedure irregular – Applicant instituted urgent application for interim interdict and prayed for a rule nisi – Applicant’s urgent application struck from the roll for lack of urgency – Applicant bringing fresh application on the same papers for judicial review of decision of 1st respondent to award tender to 3rd, 4th, 5th and 6th respondents – Applicant’s bid was unsuccessful – Since subsequent application was for judicial review it should have been brought under rule 76 of the rules of court – Court found the present application to be defective and the procedure to be irregular – The result being that there was no judicial review application before the court for the court to consider – Consequently, application struck from the roll with costs.


ORDER


(a)    The application is struck from the roll.

(b)    The applicants must, one paying the other to be absolved, pay to the 1st respondent and 2nd respondent their costs of the application, including costs occasioned by the employment of one instructing counsel and one instructed counsel.

(c)     The applicants shall, one paying the other to be absolved, pay to the 3rd respondent its costs of this application, including costs occasioned by the employment of one instructing counsel and one instructed counsel.


JUDGMENT


PARKER AJ:

[1]        Once again we have before us, and it is our duty to determine, an application which appears to mount a challenge to a decision of the 1st respondent to award a tender to 3rd, 4th, 5th and 6th respondents. Applicants were part of the unsuccessful tenderers. The 1st and 2nd respondents, as well as the 3rd respondent, have moved to reject the application.

[2]        The manner in which the application under case No. 236/2015 has been pursued by the applicants raises very important issues of practice and procedure of motion proceedings in the court; and so, they should be dealt with at the threshold, and also for the reason that if the preliminary points raised by the 1st, 2nd, 3rd respondents were upheld, it would dispose of the application.

[3]        On 3 September 2015 applicants instituted an interim interdict application by notice of motion and prayed for the court to hear the matter on the basis of urgency (‘the urgent application’). For good reason that will become apparent in due course, I set out, hereunder, the relevant part of the notice of motion:

BE PLEASED TO TAKE NOTICE THAT applicant shall make application in this Court on 16 October 2015 at 09h00 or as soon thereafter as counsel maybe heard, for the following orders:

1.     Condoning the applicants’ non-compliance with the Rules of this Court relating to service and time periods and ordering that the matter be heard on an urgent basis.

2.     Authorizing the applicants to serve the order (rule nisi) to all interested parties in the Namibian newspaper within 10 (ten) working days of the order and further directing the applicants to, by notice in the same newspaper, invite all interested parties to obtain the application from the applicants’ legal practitioners’ offices.

3.     Issuing a rule nisi calling upon the respondent and all interested parties to show cause on FRIDAY, 27 NOVEMBER 2015 why the order in paragraph 3.1 hereof cannot be made final:

3.1   Reviewing and setting aside the second alternatively first respondent’s decision to award tenders to the third, fourth, fifth and sixth respondents and referring the decision back to the third, fourth, fifth and sixth respondents and referring the decision back to the first respondent to be considered in accordance with the judgment of this court and in terms of the law.

4.     Ordering that the order obtained under paragraph 3.1 serve as an interim interdict with immediate effect, pending the return date.

5.    Costs of suit.

6.     Further and/or alternative relief.’

[4]        It is abundantly clear that the substantive orders sought by the applicants in the 3 September 2015 urgent application appear in paras 3 and 4 of the notice of motion. The following analysis is important and significant for our present purposes: (a) On 3 September 2015, the applicants did not approach the court to review the decision of the ‘second alternatively first respondent’s decision to award tenders to the third, fourth, fifth and sixth respondents’. The applicants came to court to pray to the court to grant an interim interdict (see para 4 of the notice of motion) and prayed for a rule nisi (see para 3 of this judgment). The irrefragable conclusion that arises inevitably is this. The urgent application was not an application to review the decision of the 1st respondent and/or 2nd respondent on the basis of urgency, as was the case in New Era Investment v Roads Authority 2014 (2) NR 596 (HC). There, the applicant instituted an application to review on urgent basis the decision of the 1st respondent for awarding a tender to the 5th respondent. Having heard arguments, the court ‘was persuaded to hear the matter (ie the review application) as an urgent application’ (see para 13 of the judgment in New Era Investment).

[5]        In the instant case, unlike the New Era Investment case, the applicants did not in September 2015 institute a review application in which they asked the court to hear on urgent basis the urgent review application; the applicants instituted an application in which they prayed the court to grant an interim interdict order and prayed for the issuance of a rule nisi, returnable on Friday, 27 November 2015. In any case, the fact must be stated, asking an administrative body or official to justify its, his, or her administrative action is not part of our law. See Immanuel v Minister of Home Affairs and Others 2006 (2) NR 687 (HC).

[6]        It follows inexorably that the application that was ‘refused’ by the court ‘on the basis that the requirements of rule 73 (4) of the rules have not been met’ (see para 20 of the 17 November 2015 judgment) was not a judicial review application but an application for an interim interdict (see paras 3 and 4 of the September 2015 urgent application). (Italicised for emphasis) The upshot of this finding is that – and this is extremely important and significant – the applicants have not instituted any application to review the decision of the 1st respondent and/or 2nd respondent – not in September 2015 or at all.

[7]        On the high authority of Strydom AJA in Swakopmund Airfield v Council of the Municipality 2013 (1) NR 205, para 28 –

‘In Namibia, as in other divisions in South Africa (see IL & B Marcow Caterers (Pty) Ltd v Greatermans SA Ltd and Another; Aroma Inn (Pty) Ltd v Hypermarkets (Pty) Ltd and Another 1981 (4) SA 108 (C) at 110G), and as was also submitted by Ms Schneider, an urgent application generally starts with a prayer for condonation with the non-compliance with the rules of court, particularly in regard to the form in which the application is brought and the limited time or service whereby notice of the application is given to the other party. Where a court refuses to condone non-compliance with the rules that is, generally speaking, the end of that particular process unless the court gives other directions regarding its prosecution or unless the parties otherwise agree. Because there was no adjudication on the merits of the disputes between the parties, a litigant may, now in the ordinary course and using the prescribed form, bring such dispute before the court. However, once the matter is struck from the roll for lack of urgency, it is no longer part of the litigious process and an applicant is left with various options which he can choose from. He can again use the affidavit evidence which supported the urgent application but he will have to adapt his notice of motion to now comply with the rules in regard to forms and times prescribed in regard to forms and times prescribed for delivery of a notice to oppose, delivery of answering affidavits, etc. He could bring a totally new application or he may choose to take no further steps. In this particular instance the applicant chose to bring a new application based on a fresh affidavits and, in my opinion, it could do so without risking a plea of lis alibi pendens because the urgent application was struck from the roll and was no longer a pending lis. (See in this regard Mahlangu and Another v Van Eeden and Another [2000] 3 All SA 321 (LCC) at 335 para 25; and Commissioner, South Africa Revenue Service v Hawker Aviation Partnership and Others 2006 (4) SA 292 (SCA) [2006] 2 All SA 565 at para 9.) Another indication that the matter, once struck from the roll, was not alive, is that whatever choice an applicant should make, it would again have to serve that process on the other party.’

[8]        In the instant case, once the urgent interim interdict application was struck from the roll for lack of urgency; ‘it was no longer part of the litigious process’, and applicants were at liberty to ‘bring a totally new application based on fresh affidavits’. The applicants chose to bring a totally new application, viz, a judicial review application. In that event, the applicants were bound by the rules to bring the judicial review application under rule 76. Because the applicants failed to do that, the application is defective and the procedure irregular. (See Namibia Financial Exchange (Pty) Ltd v The Chief Executive Officer of the Namibia Financial Institute Supervisory Authority and Registrar of Stock Exchanges (HC-MD-CIV-MOT-GEN-2016/00233) [2016] NAHCMD 365 (17 November 2016).) The irrefragable result is that there is no judicial review application before the court for the court to determine.

[9]        I, therefore, accept submission by Mr Mouton, counsel for 3rd respondent, that ‘it was not competent (I would say it was highly irregular) for the Applicants to simply have continued to have enrolled this matter in the fashion they did’. Mr Obbes, counsel for 1st and 2nd respondents, made submissions in similar vein and with similar import.

[10]      Based on the aforegoing reasoning and conclusions, I hold that there is no application brought in terms of the rules of court and the law to review the decision of the 1st respondent to award the tender to the 3rd, 4th, 5th, and 6th respondents. If there is no review application, then there is nothing before the court for the court to determine; for, ex nihilo nihil fit.

[11]      In the result, the preliminary points raised by the 1st and 2nd respondents and 3rd respondent succeed, whereupon, I make the following order:

(a)      The application is struck from the roll.

(b)      The applicants must, one paying the other to be absolved, pay to the 1st respondent and 2nd respondent their costs of the application, including costs occasioned by the employment of one instructing counsel and one instructed counsel.

(c)      The applicants shall, one paying the other to be absolved, pay to the 3rd respondent its costs of this application, including costs occasioned by the employment of one instructing counsel and one instructed counsel.

----------------------------

C Parker

Acting Judge

APPEARANCES

APPLICANTS:                  S Namandje

                                       Of Sisa Namandje & Co. Inc., Windhoek

FIRST AND SECOND

RESPONDENTS:              D Obbes

                                        Instructed by ENSafrica|Namibia (Incorprated as LorentzAngula Inc.), Windhoek

THIRD

RESPONDENT:                 C J Mouton

                                        Instructed by Neves Legal Practitioners, Windhoek

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