Semba v The Municipal Council of Windhoek (HC-MD-CIV-ACT-GEN-2020/00115) [2020] NAHCMD 129 (21 April 2020);

Group

Full judgment

Practice Directive 61

IN THE HIGH COURT OF NAMIBIA

 

 

Case Title:

IGNATIUS SEMBA v

THE MUNICIPAL COUNCIL OF WINDHOEK

Case No:

HC-MD-CIV-ACT-GEN-2020/00115

Division of Court:

HIGH COURT(MAIN DIVISION)

Heard before:

HONOURABLE LADY JUSTICE PRINSLOO, JUDGE

Date of hearing:

21 April 2020

Date of order:

21 April 2020

Reasons delivered on:

22 April 2020

 

Neutral citation: Semba v The Municipal Council of Windhoek (HC-MD-CIV-ACT-GEN-2020/00115) [2020] NAHCMD 136 (21 April 2020)

Results on merits:

Merits not considered.

The order:

Having heard EVA SHIFOTOKA assisted by LAURA PACK, for the Applicant and GERSON NARIB assisted by VERNON LUTIBEZI, for the First and Second Respondents, and having read the documents filed of record:

IT IS HEREBY ORDERED THAT:

1.    The matter is struck for lack of urgency.

2.    The Applicant is hereby ordered to pay costs such costs to include the costs of one instructing and one instructed counsel.

Reasons for orders:

 

[1]        Herewith my reasons for the order delivered ex tempore.

Background

[2]            The City Police was established in 2002 and since its establishment was headed by Chief Abraham Kanime (Chief Kanime). Chief Kanime tendered his resignation on 30 January 2020 effective as of 30 April 2020. On 7th of February 2020 the third respondent1 set in motion the process in terms of the relevant regulations to seek for a suitable candidate to be appointed for the position of Head of City Police. On 18 February 2020 the second respondent2 as per the advice of the fourth respondent3 requested the relevant members of the Security Cluster, consisting of fifth to the ninth respondents, to provide no more than two names of senior offices within their respective institutions that could be considered for possible appointment in the position of Head: City Police. On 19 February 2020, the Security Cluster through the fifth respondent provided the name of a possible candidate.

[3]            Then on 27 February 2020, during a council meeting of the first respondent, a decision was taken as per Resolution 58/02/2020 to retain Chief Kanime as the Head of the City Police. The applicant objected to the decision and indicated that the decision was contrary to the regulations. The applicant’s objection was noted but his fellow councillors, as the majority, indicated that the decision be approved and as a result, the applicant left the meeting.

The relief sought

[4]            The applicant, as a member of the first respondent, and duly sworn in councillor, instituted an urgent application, which application was set down for hearing on 20 April 2020 at 09h00, seeking two separate types of relief, ie:

(a)  Part A sought a rule-nisi (interim interdict), interdicting and restraining the first respondent from interfering with or obstructing the applicant’s rights, powers, duties and functions to appoint the Head: City Police Chief and pending the outcome of Part B of this application first respondent be interdicted from commencing or proceeding to implement Resolution 58/02/2020;

(b)  Part B sought a review and setting aside first respondent’s Resolution 58/02/2020 dated 27 February 2020 that provides for the retaining of the service of Chief AK Kanime, Head: City Police

[5]            In respect of Part A of the notice of motion, the timelines for the filing of papers were as follows:

(a)  The notice to oppose was due on Friday 17 April 2020 at 16h00;

(b)  The answering affidavit was due on Saturday, 18 April 2020 at 18h00; and

(c)   The replying affidavit was due on Sunday, 19 April 2020 at 18h00.

1 Chief Executive Officer

2 Chair Person of the Municipal Council

3 Service Advisory Committee

[6]            Despite the very truncated time set by the applicant the first to fourth respondents filed their notice of intention to oppose by 15h52 on 17 April 2020.

[7]            When the first to the fourth respondents failed to file their answering affidavits by the due date on 18 April 2020 the applicant filed a status report on Sunday, 19 April 2020 proposing that the respondents be granted the opportunity to file their papers later that day at 19h00 and that the hearing of the matter is moved to 21 April 2020. Later during the same day, the applicant filed an amended status report retracting his earlier proposition as the respondents did not respond to the proposals of the applicant. However, as the first and second respondents filed their answering affidavit on the time proposed the court disregarded the amended status report and set the matter down for hearing on 21 April 2020 at 10h00.

[8]            In their answering papers the first and second respondents raised three points of law in limine, ie urgency, non-joinder and no cause of action re interim interdict sought.

[9]            At the commencement of the hearing the court directed that the issue of urgency should be addressed first as a finding on the issue of urgency may render it unnecessary for this court to make a determination in respect of any of the other issues raised.

Procedural fairness

[10]          Before addressing the issue of urgency I feel constraint to address the issue of procedural fairness raised by the respondents in this matter.

[11]          The applicant issued the notice of motion on 17 April 2020 and served same on the first to fourth respondents at 12h07 and had to respond thereto by 16h00 on the same day and file answering papers the very next day (Saturday). One should bear in mind that this is an application against a local authority council, a public body which has many members, including the applicant. The applicant had to know that a body such as the first respondent, which operates by decisions of its members, requires time to make decisions and to consider matters.

[12]          Over and above that one cannot lose sight of the fact that we are finding ourselves in a very difficult time where the country is in a State of Emergency declared in terms of Article 26 of the Constitution and is under a national lockdown due to the COVID -19 pandemic.

[13]          I can do no better than to refer to what Maritz J (as he then was) stated regarding procedural fairness in urgent applications in Bergmann v Commercial Bank of Namibia Ltd4:‘[W]hilst Rule 6(12) allows a deviation from those prescribed procedure in urgent applications, the requirement that the deviated procedure should be “as far as practicable” in accordance with the Rules constitutes a constant demand on the Court, parties and practitioners to give effect to the objective of procedural fairness when determining the procedure to be followed in such instances. The benefits of procedural fairness in urgent applications are not only for an applicant to enjoy, but should also extend and be afforded to a respondent. Unless it would defeat the object of the application or, due to the degree of urgency or other exigencies of the case, it is impractical or unreasonable, an applicant should effect service of an urgent application as soon as reasonably possible on a respondent and afford him or her, within reason, time to oppose the application. It is required of any applicant to act fairly and not to delay the application to snatch a procedural advantage over his or her adversary.’

[14]          I agree with Mr Narib that this remains good law in our jurisdiction, despite the adoption of the new Rules of Court. In the matter before this court the respondents were hardly afforded a reasonable time to respond to the Notice of Motion and file answering papers. The manner in which the applicant conducted this application is indeed unfair and oppressive and he did not serve the application as soon as was reasonably possible. The reason for this finding will become clear in my discussion of urgency.

Urgency

[15]                The relevant rule governing urgent applications is rule 73 and more specifically rule 73(4)5.

[16]                Our law on the practice of urgent application in terms of rule 73(4) of the Rules of Court is well entrenched, and on the interpretation and application of rule 73(4) respecting the issue urgent applications, Parker AJ said in Fuller v Shigwele6 said as follows:

‘[2] Urgent applications are now governed by rule 73 of the rules of court (ie rule 6(12) of the repealed rules of court), and subrule (4) provides that in every affidavit filed in support of an application under subrule (1) the applicant must set forth explicitly the circumstances which he or she avers render the matter urgent and the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course. Indeed, subrule (4) rehearses para (b) of rule 6(12) of the repealed rules. The rule entails two requirements: first, the circumstances relating to urgency which must be explicitly set out, and second, the reasons why an applicant claims he or she could not be afforded substantial redress in due course. It is well settled that for an applicant to succeed in persuading the court to grant the indulgence sought, that the matter be heard on the basis of urgency, the applicant must satisfy both requirements. And Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 tells us that where urgency in an application is self-created by the applicant, the court should decline to condone the applicant’s non-compliance with the rules or hear the application on the basis of urgency.’

[17]                The applicant bears the onus to make out a case in his founding affidavit to justify the grant of the indulgence that the application be heard as a matter of urgency7.

Circumstances that renders the matter urgent

[18]                  The first and second respondents take the point that the applicant failed to make out a case for urgency and does not address the reasons why he would not be afforded substantial redress at a hearing in due course.

[19]          It is the case of the applicant that on 27 February 2020 the majority of councilors approved the decision to retain Chief Kanime as the head of the City Police as per Resolution 58/02/2020. He was not in agreement with this decision and recorded his disapproval but he was overruled by a majority vote and he left the meeting.

[20]          Hereafter the applicant attended a special council meeting on 19 March where the item of the appointment of Chief Kanime was raised but it was withdrawn and no discussion took place on the matter.

[21]          On 7 April 2020 after a Management Committee meeting the applicant approached the third respondent to enquire regarding the decision to retain Chief Kanime as head of the City Police and he was informed that the decision was party implemented as the Management Committee has already negotiated terms and conditions with Chief Kanime and that a draft contract of employment was already in place.

[22]          According to the applicant this prompted him to seek legal assistance and he secured a consultation with his legal practitioner on 14 April 2020 who engaged the services of counsel and the Notice of Motion was issued on 17 April 2020.

[23]          The applicant submitted that the matter became even more urgent as a council meeting is scheduled for 22 April 2020 (which he later corrected to be 23 April 2020) and he further submitted during this council meeting the recommendations by the Management Committee to sign the draft contract of employment of Chief Kanime will be tabled for endorsement.

Discussion

[24]          There can be no doubt that the decision to retain Chief Kanime as head of City Police did not come as a surprise to the applicant. He attended the meeting on 27 February 2020 when the council approved the decision to retain Chief Kanime on contract. I accept that the details of the contract were not ironed out yet as it appears to have been the duty of the Management Committee but the majority decision was taken in principle. The applicant was present, raised his objection and left the meeting.

[25]          The applicant was aggrieved by the decision taken by the council to the extent that he engaged a fellow councillor, who is a member of Namibia United Democratic Organization (NUDO), and who also objected to the appointment of Chief Kanime, to join forces and institute legal action against the respondents. This engagement happened around 19 March 2020 but it did not materialize from their discussions.

[26]          By 19 March 2020 the applicant already anticipated taking legal action against the respondents yet he delayed in taking action for almost a further month. It appears that the reason for this delay was the fact that he did not receive the amended minutes of the 27 February 2020 meeting. I fail to understand why the applicant had to wait to receive the minutes of the meeting in order to seek legal advice. There is no reason why the applicant could not follow the cue of his fellow councillor (NUDO) whose counsel addressed correspondence regarding the resolution to negotiate the extension of Chief Kanime’s contract on 19 March 2020 already. The applicant was aware of this letter as it was delivered to the second respondent on 19 March 2020. The applicant also annexed this letter to his founding papers.

[27]           The applicant makes the averment that the resolution 58/02/2020 is contrary to the regulations and unlawful and if the first respondent endorses the Management Committee recommended the appointment would be unlawful. However, an alleged unlawful decision does cause the application to be per se urgent.

[28]           The delay in approaching this court timeously is not satisfactorily explained by the applicant. I agree with the respondent’s counsel that the applicant delayed unreasonably to institute proceedings and in this instance the urgency was self-created.

The reasons why the applicant claims that he could not be afforded substantial redress at a hearing in due course

[29]                The second leg of rule 73(4) that needs to be satisfied for a matter to be considered as urgent is that the applicant is to provide under 73(4)(b) ‘the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.’

[30]          After careful reading of the founding affidavit it is clear that the applicant did not attempt to provide reasons why he will not be able to obtain substantial redress at a hearing in due course.

[31]          It is trite that both requirements for urgency must be set out explicitly in the founding affidavit.

Conclusion

[32]            For the reason discussed above this court declines to condone the applicant’s non-compliance with the Rules of Court or hear the application as one of urgency.

[33]            The last issue that I need to address is the fact that the applicant’s counsel raised a challenge to the authority of Francina Kahungu, the Chair Person of the Municipal Council, to oppose this application. This was a rather watered-down challenge, if I may say so. A similar challenge was raised in Otjozondu Mining (Pty) Ltd v Purity Manganese (Pty) Ltd8 and Damaseb JP said the following in para 52 of the judgment:

‘It is now settled that in order to invoke the principle that a party whose authority is challenged must provide proof of authority, the trigger - challenge must be a strong one. It is not any challenge: Otherwise motion proceedings will become a hotbed for the most spurious challenges to authority that will only protract litigation to no end.’

 

[34] There is no strong challenge by the applicant against the authority of the chairperson of the municipal council. The applicant alleges in his replying papers that Mrs Kahungu is duly authorized to deposed to and oppose this application. In her answering papers, Mrs Kahungu states:

‘1.1 I am,

1.4 duly authorized to depose to this affidavit on behalf of the first respondent herein, and to oppose the relief sought in terms of the notice of motion. I too, oppose the application in my capacity as cited by the applicant.’

[35]          During her opening remarks Ms Shifotoka merely pointed out that the applicant did not receive the resolution authorizing the Chairperson to oppose the application was not received yet but Ms Shifotoka did not push the point. As in the Otjozondu case, I am satisfied that the averments meet the minimum –evidence requirement and the challenge to Mrs Kahungu’s authority is rejected.

[36]       My order is therefor as set out above.

Judge’s signature

Note to the parties:

 

Not applicable.

Counsel:

Applicant

Respondent

Adv E Shifotoka Instructed by

Pack Law Chambers

Adv G Narib Instructed by

Kwala and Company Inc.

 

 


1 Chief Executive Officer

2 Chair Person of the Municipal Council

3 Service Advisory Committee

4 2001 NR 48.

5 Rule 73 (4) read as follows:

‘(4)            In an affidavit filed in support of an application under subrule (1), the applicant must set out explicitly

(a)            the circumstances which he or she avers render the matter urgent; and

(b)           the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.”

6 (A 336/2014) [2015] NAHCMD 15 (5 February 2015)

7 Salt and Another v Smith 1990 NR 87 at 88 A-C

8 (A 140/08) [2011] NAHC 8 (26 January 2011)

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