COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: A 115/2016
27 MAY 2016
the matter between:
citation: ZZZ Trading Enterprises CC v Yanica Constructions CC (A
115/2016)  NAHCMD 152 (27 May 2016)
20 May 2016
27 May 2016
Applications and motions – Rule nisi – Revival
of in terms of rule 86 of the rules of court – Rule nisi
discharged in absence of applicant on the return day – Court
held that applicant must satisfy the court that good grounds (that
is, cogent and convincing grounds) exist to revive a discharged rule
Applications and motions – Rule nisi – Revival of
in terms of rule 86 of the rules of court – Applicant must
satisfy the court that good grounds (that is, cogent and convincing
grounds) exist to revive a discharged rule nisi – In
instant case court found that instructed counsel who had moved
application for rule nisi was more than aware of the return
day and yet did not appear – And if such instructed counsel was
not available any legal practitioner from the law firm which
instructed the instructed counsel, admitted and enrolled and
authorized to appear in the court could have appeared to do the case
himself or herself and, if he or she could not, give reasons for his
or her inability to do the case, or could have on good cause shown
asked for extension of the rule nisi to allow the instructed
counsel to appear on the extended return day – Applicants’
legal practitioners did neither – Court found that applicants
have failed to satisfy court that good grounds exist to revive the
discharged rule nisi – Consequently application
dismissed with costs.
application is dismissed with costs.
On 25 April 2016 the applicants brought an application by notice of
motion in which they prayed the court to hear the matter on the basis
of urgency; and the court did so hear the matter. Having found that a
case had been made out then for the relief sought, the court issued a
on 27 April 2016 returnable on 17 May 2016. It is important to note
that both applicants and respondents were represented by counsel in
those proceedings; and so, there is no question of lay litigants, not
being familiar with the law and the rules, represented themselves. I
shall return to this point in due course.
On the return day applicants did not appear in person or by counsel,
and no explanation was placed before the court in any shape or form
to explain the non-appearance. It need hardly saying that applicants’
counsel was very much aware of the return day, the 27 April 2016
order having been made in favour of the applicants on counsel moving
the application. The rule nisi
granted on 27 April 2016 was discharged and applicants were ordered
to pay the first and second respondents’ costs. The costs
followed the event; I should say. The third respondent, a Government
ministry, did not oppose the application and only held a watching
In the chapeau of the particular orders appearing in paras 1 and 2 of
the 17 May 2016 order I gave my reasons for discharging the rule nisi
as ‘having found that nothing has been placed before the court
to persuade the court to confirm the rule nisi’.
In that event, I had not one iota of doubt in my mind that the rule
should be discharged, and I did discharge it. It should be remembered
that what the court should do on the return day of a rule nisi
is either confirm the rule nisi
or discharge it. See Brayns v Lewis
Neethling Boerdery (Pty) Ltd (A
215/2014)  NAHCMD 378 (9 December 2014). In the instant case
the applicants fell on the sword of discharge, for reasons given.
Of course, that is not the end of the matter. Rule 86 of the rules of
court provides for revival of a rule nisi
‘discharged because of default of appearance of the applicant’
(as is the situation in the instant proceeding), upon application for
that purpose by a party interested in the matter. Rule 86 gives the
court the discretion to revive such rule nisi
if the application succeeds. And it need hardly saying that such
application will only succeed if good grounds, that is, cogent and
convincing grounds, exist. This conclusion leads me to the next level
of the enquiry.
The applicants took advantage of rule 86 of the rules, and on 19 May
2016 brought an application to revive the discharged rule nisi
(‘the revival application’) in terms of para 2 of the
notice of motion. I agree with Ms Visser, counsel for the applicants,
that the applicants were entitled to bring the revival application,
and that this is not an application to re-instate the rule nisi.
In the same breadth the applicants, in para 3 of the notice of
motion, apply for rescission of the costs order made on 17 May 2016.
The first respondent has moved to reject the present application. And
in doing so, it filed a rule 66(1)(c)
notice. I have no good reason, pace
Ms Visser, to fault the procedural course taken by the first
respondent. The rules of court allow such procedure.
I shall at the threshold consider applicants’ prayer that the
costs order be rescinded. It will be like the old town crier beating
the old gong to give the village the selfsame message from their
Chief about the Chief’s impending visit to the District
Commissioner in the city, to say that in our law costs follow the
event unless exceptional circumstances exist, entitling the court to
depart from the general rule. Put simply and plainly; the general
rule is trite.
In the instant matter I should, with respect, say that nothing
resembling exceptional circumstances was placed before the court by
the applicants, entitling the court to depart from the aforementioned
general rule. All that the applicants say is that the costs order
granted against the applicants in favour of the respondents stands to
be rescinded ‘since same was erroneously sought and erroneously
granted in the absence of the applicants’. But that is not
I cannot see on what basis a costs order made pursuant to the
aforementioned general rule and where no exceptional circumstances
existed, entitling the court to depart from the general rule, can be
said to be ‘erroneously sought and erroneously granted’
within the meaning of rule 103(1)(a)
of the rules of court. I cannot see in what manner can it be
seriously argued that an error occurred where a rule of law is
applied correctly by the court? I did not hear Ms Visser argue that
the general rule should not have been applied. In this regard, I
cannot emphasize it enough that costs followed the event of the
discharge of the rule nisi
on 17 May 2016 on the basis that there was nothing placed before the
court for the court to confirm the rule nisi
granted on 27 April 2016.
And as I have previously, the 17 May 2016 order discharging the rule
remains valid and enforceable. The fact that rule 86 enabled the
applicant to bring the present revival application is of no moment.
The revival application is an application by the applicants: it is
not an order of a competent court setting aside the 17 May 2016 order
on the basis that the order is wrong.
In all this, the applicants’ counsel overlooks an important
rule which is there to control vexatious conduct by which applicants
drag parties to court and fail to appear in court themselves to
pursue their own case and which is there to promote the overriding
objectives of the rules of court. The rule is rule 68(a).
buttresses this court’s entitlement to discharge the rule nisi
on 17 May 2016 and to make an order as to costs, apart from the
general rule on the granting of costs in the circumstances.
Based on these reasons, the relief sought in para 3 of the notice of
motion on costs is refused. This holding also disposes of the first
respondent’s question of law on costs. I now proceed to
consider the relief sought in para 2 of the notice of motion which,
as I have said previously, is the revival application.
In an application in terms of rule 86 of the rules of court to revive
a rule nisi
discharged in the absence of applicant on the return day, applicant
must satisfy the court that good grounds, that is, cogent and
convincing grounds, exist to revive the rule nisi.
I have carefully considered the applicants’ affidavits, and
having done that I see that what emerges clearly from them converge
on the following: The applicants’ legal representatives had
some telephonic communication problems in their effort to get hold of
Mr Small, the instructed counsel who had appeared during the hearing
of the urgent application on 27 April 2016 when the rule nisi
was ordered to issue.
The starting point in the consideration of the applicant’s
explanation is this. In our law a litigant instructs a law firm not
one particular practitioner of the law firm. And so in the instant
case the applicants instructed Dr Weder, Kauta & Hoveka Inc; and
so, any legal practitioner of that firm, admitted and enrolled and
authorized to practise in the court, could have appeared on the
return day (1) in order to do the case himself or herself, and if he
or she could not, explain the reason for his or her inability do the
case himself or herself or (2) in order to, on good cause shown,
apply for an extension of the rule nisi
to allow that instructed counsel to appear on the extended return
day. The applicant’s instructed law firm did neither.
As respects the first course (ie (1)), I take a cue from rule
of the rules. In any case, it should be remembered that, as I have
said previously, Mr Small, the instructed counsel, was in court to
move the application on 27 April 2016; and so, he was more than aware
of the return day. And we do not have the advantage of an affidavit
from Mr Small to explain his conduct in the fiasco.
In virtue of the aforegoing, I conclude that the applicants have
failed to satisfy the court that good grounds exist for the court to
exercise its discretion in favour of granting the applicants’
application to revive the discharged rule nisi
in terms of rule 86 of the rules. The application should,
accordingly, fail; and it fails.
The preponderance of the foregoing reasoning and conclusions is not
atrophied, and is not affected, by submission of Mr Diedericks,
counsel for the first respondent, that the court should not hear the
instant application on the basis of urgency (see first respondent’s
first question of law) because the requirements of rule 73(4),
particularly the second requirement, have not been met and Ms
Visser’s contrary argument that the urgency that existed as at
27 April 2016 has not gone away.
In the result, the application is dismissed with costs.
by Dr Weder, Kauta & Hoveka Inc., Windhoek
RESPONDENT: J J Diedericks
Diedericks Incorporated, Windhoek
Government Attorney, Windhoek