ZZZ Trading Enterprises CC and Another v Yanica Constructions CC And Others (A 115/2016) [2016] NAHCMD 152 (31 August 2018);

Group

Full judgment

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: A 115/2016

DATE: 27 MAY 2016

REPORTABLE

In the matter between:

ZZZ TRADING ENTERPRISES CC...................................................................FIRST APPLICANT

JJW CONSTRUCTION CC.............................................................................SECOND APPLICANT

And

YANICA CONSTRUCTIONS CC....................................................................FIRST RESPONDENT

STANDARD BANK NAMIBIA LIMITED................................................SECOND RESPONDENT

MINISTRY OF EDUCATION.........................................................................THIRD RESPONDENT

Neutral citation: ZZZ Trading Enterprises CC v Yanica Constructions CC (A 115/2016) [2016] NAHCMD 152 (27 May 2016)

Coram: PARKER AJ

Heard: 20 May 2016

Delivered: 27 May 2016

Flynote: 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 nisi.

Summary: 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.

ORDER

The application is dismissed with costs.

JUDGMENT

PARKER AJ:

[1] 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 rule nisi 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.

[2] 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 brief.

[3] 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 nisi 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) [2014] NAHCMD 378 (9 December 2014). In the instant case the applicants fell on the sword of discharge, for reasons given.

[4] 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.

[5] 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.

[6] 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.

[7] 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 enough.

[8] 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.

[9] And as I have previously, the 17 May 2016 order discharging the rule nisi 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.

[10] 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). Doubtless, 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.

[15] As respects the first course (ie (1)), I take a cue from rule 124(3)(b) 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.

[16] 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.

[17] 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.

[18] In the result, the application is dismissed with costs.

C Parker

Acting Judge

APPEARANCES

APPLICANT: I Visser

Instructed by Dr Weder, Kauta & Hoveka Inc., Windhoek

FIRST RESPONDENT: J J Diedericks

Of Diedericks Incorporated, Windhoek

THIRD

RESPONDENT: A Shimakeleni

Of Government Attorney, Windhoek


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