Court name
High Court Main Division
Case number
HC-MD-CIV-ACT-DEL- 3339 of 2020
Case name
Inamutira v Shilongo
Media neutral citation
[2021] NAHCMD 149
Judge
Rakow AJ

REPUBLIC OF NAMIBIA

 

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

RULING

Case Title:

Paulus Inamutira Inamutira

v

Petrus Shilongo

 

Case No.:

HC-MD-CIV-ACT-DEL-2020/03339

Division of Court:

High Court (Main Division)

Heard before:

Honourable Lady Justice Rakow

Date of hearing:

16 March 2021

Delivered on:

1 April 2021

Reasons:

7 April 2021

Neutral citation: Inamutira v Shilongo  HC-MD-CIV-ACT-DEL-2020/03339 [2021] NACHMD 149 (1 April 2021)

 

IT IS ORDERED THAT:

 

  1. The application for condonation is struck from the roll as well as the application for irregular proceedings. The application for condonation for the late filing of the heads of arguments of the respondents is granted.
  2. Costs of this application as contemplated in rule 32(11) is awarded to the plaintiff/respondent.

 

Reasons for orders:

 

Introduction

 

[1]           The applications before the court are the defendant’s (the applicant herein) application for condonation and if that is not successful, then there is application by the plaintiff (the respondent herein) to declare the filing of the plea by the defendant an irregular step. The plaintiff further brought a condonation application seeking condonation for the late filing of its heads of argument.

 

[2]           The cause of action of the claim by the plaintiff against the defendant is based on damages suffered by the plaintiff when his motor vehicle was in a collision with a motor vehicle driven by the defendant in June 2020. The matter became defended and the court ordered the defendant, to file his plea on or before 1 December 2020. The legal practitioner for the defendant then filed his plea on the afternoon of 1 December 2020 at 16h15 with the effect that it was regarded as served by the electronic case management system as only served on 2 December 2020. This was pointed out to the defendant, which necessitated the defendant to bring a condonation application which is opposed by the plaintiff. If the court does not grant condonation for the late filing of the plea, the application by the plaintiff is that the filing of the plea of the defendant is an irregular proceeding as they were barred from filing such plea.

 

[3]           The application for condoning the late filing of the heads of argument by the plaintiff is not opposed by the defendant and after considering the application, the court condones the late filing of the said heads of argument.

 

Rule 32(9) and 32(10) engagement

 

[4]     The respondent raised a point under rule 32(9) and 32(10) regarding the compliance with rule 32(9) and 32(10) in that the applicant's legal practitioners of record informed the legal practitioners of the respondent that they intend to bring an application seeking condonation from the court regarding the upliftment of bar for the late filing of their plea. The request was that if they had any issues with this application, such issues should be discussed at the negotiations after the settlement proceedings of 15 December 2020. On 8 December the respondent wrote to the applicant that the grounds relied upon were not sufficient to sustain good cause and on that basis, the application will be opposed by the respondent.

 

[5]     The contention on behalf of the respondent is that there was no proper consultation as envisaged by the rules and for that reason, the application should be struck from the roll. The court was referred to Bank Windhoek Ltd v Benlin Investment CC[1] where the court held that a letter is an initial step to what should be an actual meeting that needs to take place. The report that follows should indicate that a meeting indeed took place but the issue could not be resolved. Judge Masuku stated in this matter that legal practitioners should take preemptory provisions in question seriously and make every effort to fully engage in the process of attempting to resolve matters amicably.

 

[6]     On behalf of the applicant, it was argued that the legal practitioner of the applicant indeed tried to engage the practitioner for the respondent as soon as they realized they had to bring a condonation application and wrote a letter in that regard to the legal practitioner of the respondent. They did not receive a reply and then proceeded to apply for condonation and filed the rule 32(10) report. It is the applicant’s submission that to have waited to discuss it on 15 December 2020 would have unreasonably prolonged the bringing of the condonation application. The applicant submitted that the legal practitioner for the respondent had ample time from 4 December 2020 to 7 December 2020 when the application was filed to indicate their stance.

 

Consideration

 

[7]        It is clear from the reply of the respondent that they were interested in resolving the issue around the application for condonation and amicable to meet with the applicant’s legal practitioner. It was further pointed out that the respondent requested for the matter to be discussed after the court-connected mediation session. The applicant was not interested in granting them that request and proceeded to file a rule 32(10) report although the issue of settlement was not yet fully canvased.

 

[11]      Rule 32(10) further states that the party bringing the proceeding contemplated in this rule must, before instituting the proceeding, file with the registrar details of the steps taken to have the matter amicably. In the present instance, rule 32(10) contained no details of the steps taken or a summary of the interaction, it simply states that the matter is at a stalemate, which indeed was not the case.

 

[12]      In light of the above reasons and especially applying the arguments set out in Bank Windhoek Limited v Benlin Investment CC (supra) by Justice Masuku, I come to the conclusion that there was no proper or genuine compliance with rule 32 (9) and (10) before the application for condonation was lodged. In I Mukata v Appolus,[2] Justice Parker held that the above provisions in rules 32(9) and 32(10) were, on account of the language used by the rule-maker, peremptory in nature and effect. The learned Judge said the following:

 

            ‘I conclude that the provisions of rule 32 (9) and (10) are peremptory, and non-compliance with them must be fatal. I, therefore, accept Mr. Jacob’s submission that the summary judgment is fatally defective because the plaintiff has failed to comply with rules 32 (9) and (10). Consequently, the application is struck from the roll’.

 

[13]      As a result, the application for condonation by the defendant/applicant is improperly before the court and has to be struck from the roll for non-compliance as stated in the Mukata judgment (supra). The court, therefore, did not consider the merits of the condonation application.

 

[14]   Order;

  1. The application for condonation is struck from the roll as well as the application for irregular proceedings. The application for condonation for the late filing of the heads of arguments of the respondents is granted.
  2. Costs of this application as contemplated in rule 32(11) is awarded to the plaintiff/respondent.

 

            Judge’s signature

 

Note to the parties:

 

E Rakow

Judge

 

 

 

Not applicable

Counsel:

 

Applicant

Respondent

 

M Mwandingi

Of

Mwandingi Attorneys

Windhoek

 

R Beukes

of

Henry Shimutwikeni & Co Inc.

Windhoek

 

 

[1] 2017(2) NR 403 (HC).

[2] (I 3396/2014) [2015] NAHCMD 54 (12 March 2015)