Court name
High Court Main Division
Case number
HC-MD-CIV-ACT-DEL- 2558 of 2019
Title

Mahoto v Minister of Environmental Affairs & Others (HC-MD-CIV-ACT-DEL- 2558 of 2019) [2021] NAHCMD 195 (29 April 2021);

Media neutral citation
[2021] NAHCMD 195
Coram
Usiku J

REPUBLIC OF NAMIBIA

 

 

IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

Case Title:

 

Sibolile Hebert Mahoto                                               Plaintiff

 

and

 

Minister of Environmental Affairs                   1st Defendant

Frances Santambwa                                        2nd Defendant

Morgan Maiba Saisai                                       3rd Defendant

Warrant Officer Kaunda                                  4th Defendant

Case No:

HC-MD-CIV-ACT-DEL-2019/02558

Division of Court:

Main Division

Heard on:

29 April 2021

Heard before:

Honourable  Mr. Justice Usiku, J

Delivered on:

29 April 2021

 

Neutral citation:   Mahoto v Minister of Environmental Affairs (HC-MD-CIV-ACT-DEL-2019/02558) [2021] NAHCMD 195 (29 April 2021)

 

 

Order:

1.         The application for condonation of the defendants’ failure to file plea and discovery affidavits, is granted.

2.         The automatic bar is uplifted.

3.         The defendants are ordered to pay the costs of the plaintiff, jointly and severally, the one paying the other to be absolved. It is ordered that these costs not be capped in terms of rule 32(11).

4.         The matter is postponed to 19 May 2021 at 15:15 for a further case planning conference.

5.         The parties shall file a joint case plan on or before 12 May 2021.

 

Reasons for order:

USIKU, J:

Introduction

 

[1]        This is an application by the defendants for an order:

(a)          condoning the defendants’ non-compliance with the court order dated 10 February 2020 (ie failure by defendants to file plea by 28 February 2020 and failure to file discovery affidavits by 10 April 2020), and

(b)          uplifting of the automatic bar.

 

[2]        The application is opposed by the plaintiff.

 

Background

 

[3]        The plaintiff instituted action against the defendants in June 2019 claiming payment in the amount of N$3 006 000, as damages arising from an incident which occurred on 6 October 2016 during which the plaintiff was allegedly assaulted by the defendants and certain property taken from his possession.

 

[4]        On 10 February 2020 the defendants were directed to file plea, and/or counterclaim if any, on or about 28 February 2020 and to file discovery affidavits on or before 10 April 2020. The defendants did not do so.

 

[5]        On 20 April 2020 the defendants filed an application for condonation of the defendants’ non-compliance with the court order dated 10 February 2020. This application was struck from the roll on 24 September 2020 on account that the defendants did not comply with rule 32(9) and (10).

 

[6]        On 29 January 2021 the defendants filed the present application.

 

The application

 

[7]        The notice of motion is supported by two affidavits. The first one is deposed to by Jamunomundu Kazekondjo (“Mr Kazekondjo”) a Deputy Commissioner in the office of the Inspector-General: Directorate of Legal Affairs in the Ministry of Home affairs, Immigration, Safety and Security. The second affidavit is deposed to by Colgar Sisamu Sikopo (“Mr Sikopo”) a Deputy Director: Department of National Resource Management in the Ministry of Environment, Forestry and Tourism.

 

[8]        The explanation for the default, offered by Mr Kazekondjo, is that:

(a)          the legal representative of the defendants had difficulties in obtaining instructions from the defendants because some of the defendants live in Zambezi-East Region;

(b)          there was short notice as the court order was issued on 10 February 2020 and compliance therewith was due on 28 February 2020;

(c)          the defendants’ legal practitioner feared that there may be conflict of interest in representing all the defendants as defendants’ versions on what transpired may differ;

(d)          the regulations made pursuant to the onset of COVID-19 pandemic hindered the defendants’ legal practitioner from complying with the court order, as certain public servants and private company employees had to work from home and immediate response to correspondence could not be obtained.

 

[9]        On the aspect of prospects of success on the merits, Mr Kazekondjo states that the defendants hold the view that plaintiff’s claim has prescribed in terms of the Police Act and the Public Service Act. According to him, the alleged cause of action arose in 2016 and the claim was only instituted in 2020 which is more than 3 years.

 

[10]      Insofar as the deposition of Mr Sikopo is relevant to the present matter, he states that he only came to know about this matter in December 2020.

 

Plaintiff’s opposition

 

[11]      In response to the defendants’ application, the plaintiff contends that Mr Kazekondjo failed to state the legal basis for his authority to bring this application on behalf of the fourth defendant. According to the plaintiff, Mr Kazekondjo lacks legal standing to be a party to these proceedings and/or the main action. The plaintiff, therefore, submits that the application be dismissed on account of Mr Kazekondjo’s lack of locus standi.

 

[12]      Insofar as the merits of the application are concerned, the plaintiff submits that:

(a)          failure by the defendants to provide their legal practitioner with instructions is not an excuse to not complying with court orders;

(b)          the defendants do not state the basis for the perceived conflict of interest and it is not clarified whether such conflict still subsists;

(c)          COVID-19 regulations did not impact on the defendants’ failure to comply with the order dated 10 February 2020, because the regulations came into effect on 28 March 2020, whereas the defendants were directed to file plea by 28 February 2020;

(d)          the defendants did not explain why they did not apply for extension of time when they realized they would not be in a position to meet the 28th of February 2020 deadline.

 

[13]      As regards the aspect of prospects of success on the merits, the plaintiff submits that the defendants did not provide basis for their defence, should prescription not be upheld.

 

[14]      For the aforegoing reasons the plaintiff contends that the defendants’ application be dismissed with costs and that such costs not be limited in terms of rule 32(11), for the reason that this is a second condonation application and it amounts to unnecessary delay in the proceedings.

 

Legal Principles

 

[15]      An applicant for condonation is required to:

(a)          satisfy the court that he has a reasonable and acceptable explanation for the default;  and

(b)          show that he has reasonable prospects of success on the merits of the case.

 

[16]      As for the requirement of explanation for the default, it is settled law that condonation is not to be had for the asking. A full and detailed explanation for the default must be furnished to enable the court to understand the reasons for the default.

 

[17]      As regards the prospects of success, it is settled principle that if prospects of success are shown, they may mitigate the fault on the part of the applicant. A court may exercise its discretion in favour of the applicant despite a poor explanation for the default.[1]

 

 

Analysis

 

[18]      The plaintiff raised a point in limine to the effect that Mr Kazekondjo lacks legal standing to be a party to these proceedings and/or to the main action. In my opinion, Mr Kazekondjo has not purported to be a party to these proceedings. The act of swearing to an affidavit does not make one a party to the proceedings to which the affidavit relates. A deponent merely need to allege authority to depose to the affidavit that the facts he deposes to are within his personal knowledge. That has been done in the present case. In my view the point in limine does not have merit and stands to be rejected.

 

[19]      As regards the defendants’ explanation for the default, the defendants have not explained:

(a)     when the defendants’ legal practitioner did start seeking the necessary instructions to prepare drafting the plea. In addition, it is not explained when the legal practitioner did realise that he would not be in position to meet the deadlines set out in the court order dated 10 February 2020;

(b)     considering that the defendants’ legal practitioner was party to the joint case plan in which the defendants undertook to file their plea not later than 26 February 2020,it is not explained at which point did the defendants realise that the 28 February 2020 was “short notice” for the purpose of filing the plea; and

(c)     in the light of the fact that COVID-19 regulations only became operational with effect from 28 March 2020, the defendants did not explain how those regulations hindered them from filing their plea by 28 February 2020.

 

[20]      All in all, the defendants have put forth a very poor explanation for their default in complying with the relevant court order.

 

[21]      As for the requirement of prospects of success on the merits, the defendants put forth as a defence to the plaintiff’s claim, that the claim has prescribed in terms of the provisions of the Police Act (s 39(1)) and the Public Service Act (s 33). The defendants contend that the cause of action arose in October 2016. In terms of the aforesaid legislation, such a claim is required to be launched within 12 months. The plaintiff’s claim was only launched in or about June 2019.

 

[22]      In my opinion, the factual averments to the effect that the plaintiff’s claim may have prescribed on account of the provisions of s 39(1) of the Police Act and s 33 of the Public Service Act, if proved, could constitute good defence by the defendants to the plaintiff’s claim.

 

[23]      In the circumstances, I am of the opinion that the defendants’ prospects of success, in that regard, are capable of and do tip the scales of the condonation application in the defendants’ favour.

 

[24]      In other words, I am satisfied that the nature of the defence advanced, in the form of the provisions of the Police Act and the Public Service Act, constitutes sufficient prospects of success, in favour of the defendants. These prospects of success are capable of mitigating the poor explanation furnished by the defendants for the default. The court therefore exercises its discretion and grants the condonation application despite the poor explanation furnished for the default.

 

[25]      As regards the issue of costs, an applicant for condonation pays the costs occasioned by the application as he/she seeks the indulgence of the court.[2] In addition to that, I am of the opinion that the remissness on the part of the defendants in complying with the court order dated 10 February 2020 and poor explanation for default, warrant the granting of an order that the costs order not be limited in terms of rule 32(11). I shall, therefore, make an order to that effect.

 

[26]      In the result, I make the following order:

 

1.         The application for condonation of the defendants failure to file plea and discovery affidavits, is granted.

2.         The automatic bar is uplifted.

3.         The defendants are ordered to pay the costs of the plaintiff, jointly and severally, the one paying the other to be absolved. It is ordered that these costs not be capped in terms of rule 32(11).

4.         The matter is postponed to 19 May 2021 at 15:15 for a further case planning conference.

5.         The parties shall file a joint case plan on or before 12 May 2021.

 

Judge’s signature

Note to the parties:

B Usiku

Judge

Not applicable

Counsel:

Plaintiff:

Defendants:

Mr N Ferris

Of Adv. SS Makando

Windhoek

Mr L  Tibinyane

Of Office of the Government Attorney

Windhoek

     

 

 

[1] Sun Square Hotel (Pty) Ltd v Southern Sun Africa and Another: Case No. SA 26/2018 para 13.

[2] Town Council of Helao Nafidi v Northland Development Project Ltd I 2725/2014 [2015] NAHCMD 73 (27 March 2015) para 22.