Court name
High Court
Case number
PA 327 of 2005
Case name
Clear Channel Independent Advertising Namibia (Pty) Ltd and Another v Transnamib Holdings Limited and Others
Media neutral citation
[2005] NAHC 44











CASE NO. (P) A 327/2005


IN
THE HIGH COURT OF NAMIBIA





In
the matter between:

















CLEAR
CHANNEL INDEPENDENT ADVERTISING NAMIBIA (PTY) LTD






FIRST
APPLICANT



PRIMEDIA
OUTDOOR (NAMIBIA) (PTY) LTD



SECOND
APPLICANT






And





















TRANSNAMIB
HOLDINGS LIMITED



FIRST
RESPONDENT



ALLIANCE
MEDIA (PTY) LTD



SECOND
RESPONDENT



MINISTER
OF WORKS, TRANSPORT AND COMMUNICATIONS






THIRD
RESPONDENT






CORAM: MULLER
A J


HEARD
ON:
2005/11/08


DELIVERED
ON:
2005/11/22


______________________________________________________________________



JUDGMENT



MULLER, AJ:



[1] The Applicants approached
the Court on an urgent basis by way of Notice of Motion. The relief
prayed for in the Notice of Motion are the following;







1. That the applicant’s
non-compliance with the Rules of Court be condoned and that this
matter be heard as one of urgency as envisaged in Rule 6(12) of the
Rules of Court.



2. That, pending the
outcome of the review application to be instituted by applicants
within 10 (ten) days from the date this order is granted, the first
and second respondents be interdicted from implementing the
provisions of the contract that was entered into between them and in
terms of which the second respondent leases property from the first
respondent, in order for the second respondent to erect billboards
for purposes of advertising on the first respondent’s property.



3. That the costs of this
application be costs in the cause of the review application.



4. Further and/or
alternative relief.



[2] This application was set
down for hearing on 7 November 2005, but after the First and Second
Respondents filed opposing affidavits, the hearing was postponed to
the next day. The Third Respondent did not oppose the application,
but apparently a legal practitioner was in Court on a watching brief.







[3] Counsel of Applicants, as
well as of the First and Second Respondents filed Heads of Argument
before the hearing commenced on 8 November 2005. In this Court the
Applicant was represented by Mr Heathcote, the First Respondent by Mr
Coleman and the Third Respondent by Mr Corbett. The three counsel
mentioned advanced arguments to this Court.



[4] It is necessary to set out
the background of this matter. It concerns a lease agreement in
terms whereof the First Applicant leased space on property of the
First Respondent for the purpose of installing large billboards, or
as the Applicant calls it “hoardings”. For this purpose the
First Applicant entered into a lease agreement with First Respondent
during 1995, whereafter a new “Memorandum of Lease” was entered
into on 17 November 1999. This lease agreement was valid for six
years and would transpire by effluxion of time on 31 October 2005.
However, in terms of clause 2(b) of the agreement the First
Applicant, as lessee, had the option to renew the lease for a further
period of six years by giving the First Respondent, as lessor, three
months written notice of renewal prior to expiry of the lease. The
First Applicant alleged that because the rental provisions of the
agreement with escalation thereof had become onerous it decided not
to renew the lease agreement by exercising the said option to renew.
This decision of the First Applicant was conveyed to the First
Respondent, who accepted it. Letters were written form 6
October 2005 onwards by the deponent on behalf of the First
Applicant, namely Mr Russel Stuart, General Manager of First
Applicant and thereafter by Mr Francois Erasmus of Van der
Merwe-Greeff, legal practitioners of First Applicant. A letter was
also written on behalf of Second Applicant on 29 September 2005 to
First Respondent. The main purpose of these letters addressed to
First Respondent was to indicate the wish of the Applicants to enter
into a lease contract for a similar purpose with First Respondent and
to enquire the procedure to be followed by First Respondent in
entering into a new lease agreement for the same purpose with another
party or whether it would be put out on tender with the intention to
enter such a new lease agreement. A certain Mr Black on behalf of
First Respondent did respond on 21 October 2005 to the letter by the
legal practitioner of First Applicant of 17 October 2005, but did not
reply to the question of whether First Respondent in fact entered
into a new lease agreement or put it out on tender.



[5] The facts set out above are
common cause and also forms the basis of the Applicants’ urgent
application for the relief prayed in the Notice of Motion.



[6] What is not common cause
and what is disputed by the First and Second Respondents in their
affidavits, and in particular by Mr Peter Gathuru, the General
Manager of Second Respondent, is the allegation by the First
Respondent that it was only discovered at a very late stage that
First Respondent in fact entered into a lease agreement with Second
Respondent, without replying to the various requests made by First
Applicant as well as by its legal representative and without invoking
a tender process. This then also forms the basis of the second
prayer contained in the Applicants’ Notice of Motion, namely that
an interim order be granted to interdict the implementation of the
contract between First and Second Respondents pending the outcome of
a review that Applicants intend to institute within 10 days of such
an order. There are also other disputes of the facts contained in
the Applicant’s founding affidavit by the First and Second
Respondents in their opposing affidavits. I shall deal with these
disputes later herein.



[7] It is on this factual basis
that the Applicants approached the Court on an urgent basis for the
relief requested by them. It is consequently clear that a Court
hearing the Applicants’ application on an unopposed basis had to
rely on the facts alleged by the Applicants in arriving at a
conclusion whether the relief prayed for in the Notice of Motion
should be granted or not. I shall refer later herein to the need of
full disclosure of all material facts to the Court to enable it to
make such a decision and the effect of non-disclosure thereof.



[8] As mentioned before, the
First and Second Respondents opposed the application of the
Applicants and filed affidavits in this regard. Both Respondents
averred that in the light of the short time that they had, full
answering affidavits dealing with each and every allegation by the
Applicants were not possible. However, both Applicants set out the
basis on which the application is opposed and also made certain
factual allegations which are in contrast with facts alleged by the
Applicants. In particular this appears from the affidavit on behalf
of the Second Respondent in the sense it is evident that there are
disputes of fact in respect of material issues, to which I shall
refer later herein. I shall summarize the main points raised by the
respective Respondents hereinafter.



[9] The affidavit on behalf of
First Respondent was deposed to by Mr Danie van Vuuren, the Manager:
Procurement of First Respondent and who is charge of First
Respondent’s procurement department. First Respondent opposes the
Application on the following grounds:



4.1 The Applicants do not
have the requisite interest in, or rights in respect of, the fact
that First and Second Respondents entered into an agreement to
approach the Court in the way they do. They are not entitled to
participate in any tender procedure or other form of competition to
enter into this agreement; and





    1. The decision by First
      Respondent to enter into the lease agreement with Second Respondent
      is not subject to review. Therefore, the interim interdict asked
      for is not a competent order.









The Deponent of the affidavit
on behalf of First Respondent then proceeds to aver that First
Respondent does not have any “tender regulations” and that for
procurements the First Respondent relies on its Purchasing Policies
and Procedures as well as its internal tender procedures. It is also
alleged that the Tender Board Act, Act no. 16 of 1996 and regulations
promulgated in terms thereof, is not applicable to First Respondent.
It is further averred that such policies and procedures are
exclusively for the procurement of goods etc. and concerns money to
be spent by First Respondent and not income earned by it. Such
procurement has to be distinguished from a situation as provided for
in the lease agreement that First Applicant had with First Respondent
and it is alleged that lease agreement also did not come into being
as a result of a tender process. It is further alleged that such a
lease agreement is purely a commercial contract and not the type of
contract that First Respondent enters into by virtue of any
administrative function. Consequently, First Respondent denied that
it acted ultra vires by entering into the agreement with
Second Respondent and avers that even if he did, it is none of
Applicants’ business. It is further denied that the entering into
the agreement with Second Respondent was unreasonable or unfair
towards Applicants.



[10] The basis of opposition to
the application by Second Respondent is the following:







5.1 The Applicants are
not entitled to bring this application as one of urgency.





    1. The Applicants do not have
      the necessary interest in, or rights in respect of, the subject
      matter of this dispute….



    2. In any event, the decision
      taken by the First Respondent to enter into the lease agreement
      with the Second Respondent is not a decision subject to any
      review.





Mr Peter Gathuru on behalf of
Second Respondent then makes the following allegations, the relevance
of which will be considered hereinafter against the facts disclosed
by the Applicants. He himself, apparently telephoned Mr Russel
Stuart, the General Manager of First Applicant (and Deponent) of the
affidavit on behalf of First Applicant, to request a meeting with
him, whereupon the reason for the meeting was required by Mr Stuart.
Mr Gathuru informed him that “the Second Respondent had signed the
lease agreement with the First Respondent for the lease of sites for
billboards and I wish to discuss the possible purchase of the First
Applicant’s billboards from it.” It is further alleged that Mr
Stuart agreed to such a meeting, which meeting took place at his
offices on 28 September 2005. In respect of this meeting Mr Gathuru
says: “At such meeting I specifically discussed with him the
purchase by Second Respondent of First Applicant’s billboards which
have been erected on the premises leased from First Respondent. Mr
Stuart advised me that, whilst he was unwilling to sell First
Applicant’s “City Light” billboards, he was prepared to enter
into negotiations for the sale of the remainder of the billboards.”
It is further alleged that Mr Gathuru also received information from
another director of Second Respondent, Mr Greg Benatar, that there
was a subsequent meeting between him and Mr Stuart in South Africa at
which meeting the purchase by Second Respondent of First Respondent’s
billboards were again discussed. Finally, Mr Gathuru said the
following in his opposing affidavit:



12. I submit that these
conversations are significant in that:





    1. Mr Stuart, acting on
      behalf of first applicant at that stage, by his conduct indicated
      that first applicant intended to abide by the first respondent’s
      decision to lease the premises to the second respondent;



    2. At no stage did Mr Stuart
      indicate that first applicant was dissatisfied with the decision of
      first respondent nor that the first applicant intended challenging
      such decisions;



    3. This conduct on the part
      of first applicant manifestly undermines the assertion made in the
      founding papers by first applicant that the decision was unfair and
      unreasonable and in conflict with Article 18 with the Constitution;
      and



    4. The first applicant was
      unaware of such decision more than a month before instituting these
      proceedings, but chose not to disclose this fact to the Court.





In conclusion the First
Respondent denied that the Applicants made out a case out for interim
relief and inter alia averred that the Applicants aggravated
the situation by their own conduct in refusing to remove the
billboards from First Respondent’s premises which they were obliged
to do upon termination of the lease agreement. It is also disputed
that the balance of convenience rests with the Applicants and alleged
that the balance of convenience in fact favours the refusal of the
interdictory relief.



[11] Despite the fact that the
affidavits on behalf of First and Second Respondents were filed and
served on the Applicants already the previous day, no replying
affidavit was filed on behalf of the Applicants before the matter was
heard on 8 November 2005. I shall refer to the significance hereof
later herein.



[12] The application was
brought on an urgent basis and it is trite that the Court has a
discretion to condone the non-compliance of the Rules of Court so
that the matter can be heard as one of urgency as envisaged in Rule
6(12) of the Rules of Court. This is an indulgence that the
Applicants seeks as appears in paragraph 1 of the Notice of Motion.
Rule 6(12) reads as follows:



12(a) In urgent
applications the Court or the Judge may dispense with the
forms and service provided for in these Rules and may dispose
of such matter at such time and place and in such manner and in
accordance with such procedure (which shall as far as practicable be
in terms of these Rules) as to it seems meet.



(b) In every affidavit or
petition filed in support of any application under (a) of this
subrule, the Applicant shall set forth explicitly the circumstances
which he or she avers render the matter urgent and the reasons
why he or she claims that he or she could not be afforded substantial
redress at the hearing in due course.
” (My underlining)



This Rule, and in particular
Rule 6(12)(a), makes it clear that the Court has a discretion in this
regard and in Rule 6(12)(b) such an Applicant is required to comply
with both legs contained therein, namely to explicitly set out the
circumstances which is relied upon to render the matter urgent and
secondly, the reasons upon which it is claimed that the Applicant
will not afforded substantial redress at the hearing in due course.
That the requirements in respect of both legs have to be complied
with, had been emphasized in several decisions by other courts and
also this Court.



See: Luna Meubel
Vervaardigers (Edms) Bpk v Makin & Another (t/d Makin’s
Furniture Manufacturers)
1977 (4) SA 135 (W) at 137 F.



Salt and Another v Smith
1991 (2) SA 186 (Nm) at 187 A - G.



[13] The lack of urgency of
bringing this application is a specific point of opposition by the
Second Respondent and with which the First Respondent also associated
itself during argument. The Second Respondent averred urgency fell
away as a result of First Applicant’s own conduct, because already
in September 2005 it knew about First and Second Respondents’ new
contract. I asked Mr Heathcote whether the approach by the Courts in
evaluating affidavits wherein facts are disputed as set out in the
well known Stellenvale-rule, should be followed in respect of
the urgency of the matter. Mr Heathcote’s reply to this is that he
relies on the decision of Bandle Investments (Pty) Ltd v Registrar
of Deeds and Others
2001 (2) SA 203 (SECLD) at 213 E – I, where
the learned Judge remarked that the Court must assume that the
Applicants’ case is a good one and that he has a right to the
relief which he seeks. He also relied in this regard on the case of
Twentieth Fox Film Corporation and Another v Anthony Black Films
(Pty) Ltd
1982 (3) SA 592 (W) at 586 G. If I understand him
correctly, his argument is that where a matter is brought to the
Courts on an urgent basis the approach of the Court should be that
was set out in the Bandle Investment’s case and that the
Stellenvale-rule does not apply. If this is a valid argument,
it means that despite the facts brought to the attention of the Court
by the Second Respondent, which were not disclosed by the Applicants
in their affidavits, cannot be treated as set out in the
Stellenvale-rule and several other subsequent decisions which
approve of that type of approach. Because urgency is a relevant
issue for which the Applicants sought the Court’s indulgence in
order to have the matter heard not in the normal course, but as an
urgent matter with all the inconvenience to the Court and the
Respondents that it may include, it is necessary to deal with this
issue and in particular with the submissions made by Mr Heathcote in
this regard.



[14] The Bandle
Investment’s
-case on which Mr Heathcote relies was an
exceptional one. Urgent relief was sought in terms of the Sectional
Titles Act 66 of 1971. The Sectional Titles Amendment Act 44 of 1997
provided a cut-off date of 3 October 1997. To avoid the cut-off date
the Applicants launched an urgent application to obtain an order
authorizing the conversion of the right to extend areas referred to
in a certificate of registered real rights. To avoid injustice, the
Court granted this relief. After referring to the provisions of Rule
6(12)(a) against the peculiar circumstances of that matter, the
learned Judge said:



Although it could
concededly be argued that the Applicant was somewhat dilatory in
obtaining the required consent, the explanation furnished by the
Applicant for the delay is not unreasonable. The urgency of
commercial interest, as in casu, may justify the application
of Rule 6(12) no less than other interest and, for purposes of
deciding upon urgency, I must assume that the Applicant’s case is a
good one and that it has a right to the relief which it seeks.

(p. 213 E)



The learned Judge then referred
to the Twentieth Century Fox Film-case.



In the Twentieth Century Fox
Film
-case, an order was granted on an urgent basis in the
particular circumstances of that case. The Applicants in that case
sought to establish the copyright of the First Applicant in respect
of three films and applied for far reaching relief against the
Respondent, who was the seller of video cassettes of the films in
South Africa. The Applicants were associate companies and the First
Applicant was registered in the United States of America and the
Second Applicant in London England. Urgency was opposed. Goldstone
J referred to what Trengrove J said in Schweizer Reneke
Vleismaatskappy (Edms.) Bpk v Die Minister van Landbou en Andere

1971 (1) PH F11 (T). The passage referred to is in Afrikaans, but
loosely translated it says the following:



According to particulars
before the Court, it appears to me that the Applicant knew for more
than a month of the situation against which objection is now made.
The matter only became urgent because the Applicant’s delay and
because the Second Respondent, as the Applicant, knew for quite some
time, or should have known, that the business opened in Schweizer
Renecke. The Applicant might have waited for information from the
First Respondent as requested in the letter, but it was not necessary
for the purpose of this application, which was based on the
non-compliance with the audi alteram partem rule to wait so
long before approaching the Court. Taking all these circumstances in
consideration, I am not satisfied that Applicant provided sufficient
grounds why the Court should at this stage interfere as a matter of
urgency. In the circumstances I am not prepared to neglect the
normal provisions of Rule 6.



Based on this Goldstone J said
in the Twentieth Century Fox Film Corporation-case:



That principle, in my
opinion, would clearly have been applicable in the present case if
the Applicants have been South African companies. However, due
allowance must clearly be made in the case of a foreign company, or
foreign companies, and more especially in a case such as the present,
where the Applicants have international interest which must receive
attention from its executives. There is no reason to believe that
the Applicants have been dilatory in bringing this application, and I
was consequently not prepared to refuse to exercise my discretion in
favour of the Applicants on that account.”
(p. 586 C-D)



Goldstone J then continued:



In my opinion the urgency
of commercial interest may justify the invocation of Uniform Rule of
Court 6(12) no less than any other interest. Each case must depend
on its own circumstances. For the purpose of deciding upon the
urgency of this matter I assumed, as I have to do, that the
applicants’ case was a good one and that the Respondent is
unlawfully infringing the Applicants copyrights in the films in
question.”
(p. 586 G)



In neither of these cases it
had been decided that the Stellenvale-rule is not applicable
or cannot be applied in urgent applications. In both cases
exceptional circumstances existed.



[15] The relief prayed for in
paragraph 2 of the Notice of Motion is for an interim interdict. The
requirements for an interim interdict has been set out in the well
known case of Setlogelo v Setlogelo 1914 AD 221 at 227.
Summarized, it means that an applicant must have a prima facie
(clear) right, a well grounded apprehension of irreparable harm,
that the balance of convenience favours the applicant and that he/she
has no other satisfactory remedy.



[16] The consideration at this
time in respect of interdictory relief has been set out in Gool v
Minister of Justice and Another
1955 (2) SA 682 (C) at 688 D –
E. This approach is based on the views expressed by Clayden J, in
Webster v Mitchell 1948 (1) 1186 (W). With reference to what
was said in the case of Webster v Mitchell Ogilvie Thompson J
(as he then was) said the following in Gool’s-case:



“…in Webster v
Mitchell
, supra, the head-note of which reads as follows:



In an
application for a temporary interdict applicant’s rights need not
be shown by a balance of probabilities; it is sufficient if such
right is prima facie to establish, though open to some doubt.
The proper manner of approach is to take the facts as set out by the
Application together with any facts set out by the Respondent which
Applicant cannot dispute and to consider whether, having regard to
the inherent probabilities, applicant could on those facts obtain
final relief at the trial. The facts set up in contradiction by the
Respondent should then be considered, and if serious doubt is thrown
upon the case of applicant he could not succeed.



With the greatest respect, I
am of the opinion that the criteria prescribed in this statement for
the first branch of inquiry thus outlined is somewhat too favourably
expressed towards the applicant for an interdict. In my view the
criteria on the applicant’s own averred or admitted facts is:
should (not could) the applicant on those facts obtain final relief
at the trial. Subject to that qualification, I respectfully agree
that the approach outlined by Webster v Mitchell, supra,
is the correct approach for ordinary interdict applications.”
Gool-case, supra, p. 688 D – E



[17] On the other hand when
considering a final interdict or a final order, the approach of our
courts is based on what is normally called “the Stellenvale-rule”.
The Stellenvale-rule is of course based on the general rule
stated by Van Wyk J in the case of Stellenbosch Farmers Winery v
Stellenvale Winery,
1957 (4) 234 C.



This approach was followed by
several decisions and qualified in the case of Plascon-Evans
Paints Limited v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623
(A) at 634 H – 645 C. Corbett JA said in this regard:



Secondly, the affidavits
reveal certain disputes of facts. The appellant nevertheless sought
a final interdict, together with ancillary relief, on the papers and
without the resort to oral evidence. In such the general rule as
stated by Van Wyk J (with whom De Villiers JP and Rosenow J
concurred) in Stellenbosch Farmers Winery v Stellenvale Winery
(Pty) Ltd,
1957 (4) SA (234) C at 235 E –G, to be



‘…where
there is a dispute as to the facts a final interdict should only be
granted in notice of motion proceedings if the facts as stated by the
respondent together with the admitted facts in the applicant’s
affidavit justify such an order … where it is clear that facts,
though not formally admitted, cannot be denied, they must be regarded
as admitted.



This rule has been referred
to several times by this Court. (Burnkloof Caterers (Pty) Ltd v
Horseshoe Caterers (Greenpoint) (Pty) Ltd
1976 (2) SA 930 (A) at
938 A – B; Tamarillo (Pty) Ltd v B N Aitkin (Pty) Ltd 1982
(1) SA 398 (A) at 430-1; Associated South African Bakeries (Pty)
Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd en Andere

1982 (3) SA 893 (A) at 923 G – 924 D). It seems to me, however
that this formulation of the general rule, and particularly the
second sentence thereof, requires some clarification and, perhaps,
qualification. It is correct that, where proceedings of notice of
motion disputes of fact have arisen on affidavits, a final order,
whether it be an interdict or some other form of relief, may be
granted if those facts averred in applicant’s affidavits which have
been admitted by respondent, together with the facts that are alleged
by the respondent, justify such an order. The power of the Court to
give such relief on the papers before it is, however, not confined to
such a situation. In certain circumstances the denial by the
respondent of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact. (See in
this regard Room Hire Company (Pty) Ltd v Jeppe Street Mansions
(Pty) Ltd
1949 (3) SA 1155 (T); Da Mata v Otto NO 1972 (3)
SA 858 (A) at 882 B – H).




See also Tamarillo (Pty) Ltd
v B N Aitkin
1982 (1) SA 398 (A) Muller AR said the following on
page 430 G to 431 A:



A litigant is entitled to
seek relief by way of notice of motion. If he has a reason to
believe that facts essential to the success of a claim will probably
be disputed he chooses that procedural form at his peril, for the
Court in exercise of his discretion might decide neither to refer the
matter for trial nor to direct that oral evidence placed before it,
but to dismiss the application. (Room Hire Company (Pty) Ltd v
Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T) at 1168.)
But if, notwithstanding that there are facts in dispute on the papers
before it, the Court is satisfied that on the facts stated by the
respondent, together with the admitted facts in the applicant’s
affidavit, the applicant is entitled to relief (whether in respect of
all his claims or one or more of them) it will make an order giving
effect to such finding, with an appropriate order as to costs. (Cf
Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd

1957 (4) SA 234 (C) at 235; Burnkloof Caterers (Pty) Ltd v
Horseshoe Caterers (Greenpoint) (Pty) Ltd
1976 (2) SA 930 (A) at
928.)”



[18] This approach was also
followed by Namibian Courts where there were disputes of fact on the
papers in motion applications.



See: Mineworkers Union of
Namibia v Rossing Uranium Ltd
1991 NR 299 (HC) at 302 D;



Republican Party of Namibia
& Another v Electoral Commission of Namibia and 7 Others
an
unreported case no. A 387/2005, delivered on 26 April 2005 by Damaseb
JP, at p. 70; and



Else Kavendjaa v Kenneth Koo
Kaunozondunge NO and 2 Others,
an unreported case no. P (A)
62/2003 delivered by Damaseb JP at p. 26 and p. 29 - 30.



It has also been decided by the
South African Appeal Court in judgment by Rabie ACJ that the approach
by the Courts in applying the Stellenvale-rule is applicable
whether the onus is on the Applicant or the Respondent. In that case
the learned Acting Chief Justice discussed the Stellenvale-rule
and a subsequent decision in that regard with approval.



See: Ngqumba/Damons/Jooste v
Staatspresident
1988 (4) SA 224 at 259 C – 263 D



[19] Rule 6(5) of the Rules of
Court provide for applications and all applications should comply
with the requirements of that Rule. An urgent application remains an
application, but in Rule 6(12), the Court is provided with a
discretion to allow such application to be brought without complying
with the normal requirements, provided that there is compliance with
the provisions of Rule 6(12) itself.



See: Erasmus Superior Court
Practice
B1-55 and the decisions referred to.







[20] Although the Applicants’
second prayer in his Notice of Motion is for an interim interdict,
the first prayer is for condonation based on the alleged urgency of
the matter. The question arises in determining the issue of urgency,
what approach the Court should follow in these circumstances, the
normal approach where an interim interdict is prayed for or the
Stellenvale-rule approach. In this application the Applicants
used a hybrid form to approach the Court. It is not an ex parte
application, because the papers were served on the Respondents,
which is not the purpose of an ex parte application. A Notice
of Motion should be used in ex parte applications in the form
of Form 2 (a) of the First Schedule to the Rules and for applications
not brought ex parte, Form 2(b) of the First Schedule must be
used. Form 2(b) was not used in this instance. However, the purpose
of serving the Notice of Motion and founding affidavit on the
Respondents, was to bring them before Court and in fact inviting them
to reply to the supporting affidavits. Both the First and Second
Respondents did respond and both filed answering affidavits. Should
I now in considering the issue of urgency ignore important and
material allegations contained in such affidavits, which may be in
direct contrast of what the Applicants said in respect of urgency? I
am mindful of the criterion used in the well-known case of I L &
B Macow Caterers (Pty) Ltd Greatermans SA Ltd and Another; Aroma Inn
v Hypermarkets and Another
1981 (4) SA 108 (WLD) at 112 H-113A,
namely:



It is clear from the
requirements set out in Rules 27 and 6 (12) that the Court’s power
to abridge the times prescribed and to accelerate the hearing of the
matters should be exercised with judicial discretion and upon
sufficient and satisfactory grounds being shown by the applicants.
The major considerations normally and in these two applications are
three in number, viz the prejudice that applicants might suffer by
having to wait for a hearing in the ordinary course; the prejudice
that other litigants might suffer if the applications were given
preference; and the prejudice that respondents might suffer by the
abridgment of the prescribed times and early hearing.”



That matter comprised of two
cases. In the Macow Caterers-matter no answering affidavits
were filed by the Second Respondent, but the First Respondent filed
an affidavit, inter alia denying that the matter was one of
urgency. In the Aroma-Inn-matter there was also only an
affidavit by the First Respondent. Certain times were given by the
Applicant in both matters that the Respondents had to comply with.
In the present matter no times were given to the Respondents, because
the Applicant wrongly made use of the 2(a) type of form. However,
Fagan J, did not indicate in his judgment how he approached the
disputed issue of urgency.




[21] In my opinion a Court
should not side-step the issue of urgency and on what basis it should
be approached if an answering affidavit disputing the allegations of
urgency for which the Court’s indulgence is sought, had been filed,
which contains facts that contradict those contained in the
Applicant’s founding affidavit. Simplified the question to be
answered is whether the Court should approach it on the Applicant’s
affidavits or on that of the Respondent.



[22] The Stellenvale-rule
was also followed in matters where an application was brought as a
matter of urgency.



See: Townsend Productions
Ltd v Leech and Others
2001 (4) SA 33 (C) at 38 A, 40 D – E



In the Townsend-case the
applicant sought in the first instance a final interdict or in the
alternative a rule nisi in the event of the Court finding
there is a dispute of fact. The learned judge referred to both
approaches and then said the following on p. 41D



In the application of the
rules of procedure set out above I shall adopt the approach set out
in Basson v Chilwan and Others 1993 (3) SA 742 (A) at 753 B
and decide the matter on the three sets of affidavits before me.”



In the South African Appeal
Court case of Basson, Eksteen JA referred to the fact that the
Applicant did not apply for the acceptance of further replying
affidavits and said:



He did not, however do
so, and I am prepared, for the purposes of this judgment, to accept
that the matter must be decided on the three sets of affidavits
before us, and that the ordinary rules of procedure in such a case
will apply. These rules have been crystallized in the well-known
dictum by Corbett JA in Plascon – Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634 H – 635 C,
where he held that …”



[23] In my opinion the answer
lies in the nature of the relief that is prayed for in the first
prayer of the Notice of Motion. This is a final order or can be a
final order in respect of one or either of the Applicants. If the
Court should decide that one of the Applicants, or either of them,
did not comply with the provisions of Rule 6(12) or the Court is not
persuaded to grant the request for condonation, which is in the
discretion of the Court, that Applicant is effectively out. This is
what has happened in a recent decision in the case of Willem
Grobbelaar and Another v The Council of the Municipality of Walvis
Bay
an unreported judgment of three judges of this Court
delivered on 16 April 2004 in case no. (P) A 46/2004. In that
application condonation was granted in respect of only the First
Applicant and not the Second Applicant, whereafter interim relief was
granted. Because of the nature of the relief in respect of the
urgency issue, I believe I am entitled to follow the
Stellenvale-approach in this regard. In doing so I accept the
allegations of fact in the Applicants’ affidavits as admitted by
the Respondents, together with the facts alleged by the Respondents.



[24] In following this
approach, I cannot come to any other conclusion than that the First
Applicant, and in particular its Managing Director, Mr Stuart,
already knew in September 2005 that the Second Respondent entered
into a lease agreement to become operative upon termination of First
Applicant’s lease agreement with First Respondent, namely from 1
November 2005. Already since the last week of September 2005, but
definitely after the meeting between Mr Stuart himself and Mr Peter
Gathuru of Second Respondent, the First Applicant knew that an
agreement was entered into between First and Second Respondents. Not
only did he know, the possible purchase of the billboards were
discussed and there are indications that First Applicant might have
positively considered selling the billboards (or some of them).
There were also further discussions between First Respondent and Mr
Stuart in this regard.



[25] Mr Heathcote attempted to
explain this serious dispute by referring to the letters written by
Mr Stuart and thereafter Mr Erasmus to First Respondent. Mr
Heathcote argued that if these allegations by Second Respondent of
prior knowledge of the agreement between First and Second Respondent
were true, they contradict the underlying reason for the letters, and
the request contained therein. Whatever the reasons for these
letters are, the letters do not provide an answer under oath to the
direct allegations by the Second Respondent in respect of the
meetings, and negotiations contained in the affidavit deposed to by
Mr Gathuru which I have to accept. These allegations are in direct
contrast with what is alleged by the Applicants and they form the
basis of the so-called urgency that Applicants rely on. It is
significant that the Applicants did not reply to these allegations,
although they had the opportunity to deal with it and one would have
expected that they would have done so within a day, particular in the
light of the urgent manner in which the Respondents were brought to
Court. Although it is trite that an applicant has to make out its
case in the founding affidavit and not in a replying affidavit, one
would have expected at least a denial of these allegations in
particular. The Applicants had a day to do it, but didn’t.



[26] The next question that
should be raised is why did the Applicants keep silent about material
facts, namely those facts alleged by the Second Respondent. If the
Court had not been apprised of these facts concerning the prior
meetings between and First Applicant and Second Respondent, the Court
may very well have been persuaded by the facts disclosed by the
Applicants to exercise its discretion in condoning the non-compliance
with the Rules of Court as prayed for by the Applicants. The
question is whether a Court of law would have granted the first
prayer if all the material facts were disclosed as have been done by
the First and Second Respondents. I doubt it would have condoned
such non-compliance and would have regarded this as an urgent matter.



See: Adbro Investment Co
Ltd v Minister of the Interior
1956 (3) SA 345 (A)



Although, I am mindful of what
Smalberger JA said in Trakman NOV Livshitz and Others 1995 (1)
SA 282 (A) at 288 F – G, namely that the principle in ex parte
applications of the utmost good faith should not be extended to
motion proceedings and that material non-disclosure of facts should
rather be dealt with by making adverse or punitive orders as to
costs, the way that the Applicants approached the Court by using Form
2(a) designed for ex parte applications, should in my opinion
not excuse the Applicants from not at least taking the Court in their
confidence by disclosing these facts. Utmost good faith may be too
high a requirement in such a matter, but there should at least be
some bona fide disclosure, which in my mind distinguishes the
Trakman-criterion from this matter.



[27] If I accept the
allegations by the Second Respondent, as I do, the First Applicant
knew about this new contract for more than a month before the lease
agreement between First Applicant and First Respondent terminated by
effluxion of time. There was consequently no urgency. Any urgency
that may have existed is clearly of the First Applicant’s own
making. In respect of the Second Applicant, the matter of urgency is
clearly based on the alleged reasons for urgency averred by the First
Applicant and Second Applicant has no individual basis for requesting
the Court’s indulgence to condone its non-compliance with the Rules
of Court. Thus, in the light of approaching the disputed facts in
terms of the Stellenvale-rule, this first prayer should be
dismissed with costs in respect of both First and Second Respondents.



[28] Even if the approach that
I have applied (the Stellenvale-approach), is not the correct
approach in respect of urgency where an interim interdict is applied
for, I believe that in applying the Gool-approach, the
Applicants failed to establish the necessary requisites for an
interim interdict. According to the Gool-approach, I have to
take the facts set out by the Applicants, together with any facts set
out by the Respondent, which the Applicant cannot dispute, in order
to consider whether, having regard to the inherent probabilities, the
Applicants should on those facts obtain final relief at the
trial. The first hurdle that the Applicants fail to cross is in my
opinion the fact that on the deponent Stuart’s own affidavit, its
lease contract with the First Respondent ran out and the First
Applicant informed the First Respondent it will not avail itself of
its right of renewal. Second Respondent had no individual right and
only confirmed First Respondent’s allegations. It is clear that
Second Applicant was just riding on the back of the First Applicant
in this regard.







[29] The allegations by the
Second Respondent in respect of the meetings and discussions with Mr
Stuart of First Applicant are not really disputed, because First
Applicant did not reply thereto. If the allegations by Second
Respondent is then taken into consideration, namely that First
Applicant knew of its agreement with First Respondent for more than a
month before the application was launched and even discussed and
negotiated the purchasing of some of the billboards, I cannot agree
that the First Applicant should have obtained final relief. Although
I do think that this is the correct approach in respect of urgency,
but even if it is applied, the Applicants cannot succeed.



[30] The first prayer should
therefore also be dismissed with costs. In any event, I am not
prepared to exercise my discretion to condone the Applicants’
non-compliance with the Rules of Court.



[31] Consequently, the
application for condonation is refused with costs.



[32] Although the application
cannot succeed for lack of urgency I shall also consider whether the
Applicants would be entitled to approach the Court in due course for
the order that they seek in terms of the prayer 2 of their Notice of
Motion.



[33] Several interesting
arguments were submitted by Mr Heathcote in respect of the
non-compliance by the First Respondent with its own Act, the National
Transport Services Holding Company Act, no. 28 of 1998, and in
particular section 14(4) thereof, as well as an argument based on
Article 18 of the Constitution of Namibia. Mr Heathcote’s argument
in this regard, as I understand it, is that because First
Respondent’s Act makes it clear that it is controlled by Government
and in several instances has to a report to Government, etc., it has
to comply with the provisions of the Constitution and in particular
when entering into agreements, to the extent that the process should
be fair and reasonable to the public, which, Mr Heathcote submits can
only be done by way of a public tender. In this way Mr Heathcote
submitted everybody, including the Applicants and Second Respondent
would have a fair and reasonable opportunity to be awarded the
contract. These arguments were responded to by Mr Coleman and Mr
Corbett on behalf of the First and Second Respondents, but although
they may be interesting, I agree with the Respondents that the
possibility of a review of the contract entered into between the
First and Second Respondents is not feasible if the Applicants do not
have the necessary interest and/or right to approach the Court for
the relief claimed in prayer 2 of their Notice of Motion. In my
opinion the Applicants do not have such a right or standing to apply
for review. In this regard I shall deal with these aspects
hereinafter.



[34] In order to determine
whether the Applicants have any standing to approach the Court for
the relief contained in the second prayer of the Notice of Motion, it
is necessary to consider the contract between First Applicant and
First Respondent. When I discussed the background of this
application, I have already indicated that the Memorandum of Lease
between First Applicant and First Respondent would have expired on 31
October 2005, namely after a period of 6 years. In his authoritive
work, A J Kerr makes the following remarks in respect of the
termination of the contract:



“When all obligations
resting on both parties have been performed or otherwise ceased to
exist the whole contract is at an end, it terminates, it passes into
history.



See: Kerr: The Principles of
the Law of Contract
– 4h edition,



p. 379.



In respect of a lease for a
fixed period the lease is complete when that period ends. The lease
terminates automatically. No notice is necessary.



See: Tiopaizi v Bulawayo
Municipality
1923 AD 317 at 325



This is similar to the
situation that we have here. First Applicant and First Respondent
had a lease which terminated after the expiry of six years.
Thereafter it ends and passes into history.



[35] In another authorative
work by the same author it is said that renewal after termination may
bring a new lease into being, but it cannot extend the old lease.



Kerr: The Law of Sale and
Lease
– Second edition, p. 402.



There is an exception, namely
where an option to renew is contained in the lease agreement. In
this regard Kerr says on page 403 than an option is a contract to
keep the offer open for a period and that such an option normally
gives the lessee the power to renew the lease i.e. to accept the
offer to extend the lease for a further period or periods.



[36] In this instance First
Applicant clearly had such an option to accept the offer made by the
First Respondent in the agreement of lease. That offer was contained
in clause 2(b) of the Memorandum of Lease.



(b) The Lessee shall have
the option to renew this lease for a further period of six (6) years
by giving the lessor three (3) months written notice of renewal prior
to the expiry of this lease.”



[37] Such an opinion, the
author Kerr says, must be exercised before the termination of
the lease. In this regard he relies on several cases:



Bowhay v Ward 1903 TS
772 at 777 to 778;



Buys v South Rand
Exploration Co. Ltd
1910 TS 1058 at 1062;



Hitzroth v Brooks 1965
(3) SA 444 (A) at 449 F – G;



Mittermeier v Skema
Engineering (Pty) Ltd
1984 (1) SA 121 (A) at 126 D – E;



Kerr: The Law of Lease and
Sale,
p. 404; and



Rhoodie v Curitz 1983
(2) SA 431 (C) at 437 F – H, 438H – 439G



In respect of when such option
should be exercised, Kerr says that the period stipulated must be
before termination of the lease. Consequently, notice before the
first day of the period is effective, but notice thereafter is of no
effect.



Mayor and Councillors of
Borough of Durban v Ellen Serridge
(1904) NLR 303 at 305-6.



In this instance the First
Applicant had an option to renew the lease, but it had to exercise
that option not later than three months before the expiry of the
lease
, in other words before the 31st July 2005.



[38] The onus of proving
fulfillment of the condition which entitles the Lessee to exercise
the option rests on the lessee.



Naiker v Pensil 1967 (1)
SA 198 (N) at 200 B – C; and



OK Bazaars (1929) Ltd v
Cash-In CC
1994 (2) SA 347 (A) at 360 I



[39] There is only one other
possibility in respect of renewal of leases, namely where a
conditional right to renew a lease is contained in a contract, giving
a lessee the right to renew the lease if a certain condition is
satisfied. If a lease does contain such a clause, the lessee has
preference if the lessor decides or desires or proposes to let the
property for a further period. However, such a clause is not
contained in the Memorandum of Lease between the First Applicant and
the First Respondent.



[40] In its own supporting
affidavit the First Applicant says that it considered the lease to be
onerous and for that reason it informed First Respondent in writing
that it will not exercise its option to renew the lease. This
was accepted by First Respondent according to the First Applicant.
Unfortunately the First Applicant did not consider it necessary to
provide the Court with that letter and the response by the First
Respondent. Consequently, I have to assume that it was a clear and
unambiguous conveyance of the First Applicant’s intention not
to exercise an option provided to it in terms of clause 2(b) of the
Memorandum of Lease. I also have to assume that the acceptance by
First Respondent leaves no room for any misunderstanding, namely that
it accepted the First Applicant’s election not to review the lease.



[41] Of course the First
Applicant still had the obligation to remove its billboards from the
First Respondent’s property upon termination or cancellation of the
agreement of the agreement. These are the billboards which the
Second Respondent, according to the affidavit of Mr Gathuru, offered
to purchase from First Applicant and which would of course have
released First Applicant of this obligation. The fact that such
negotiations took place is a further indication that the lease
agreement between the First Applicant and the First Respondent came
to an end.



[42] The lease agreement
between the First Applicant and First Respondent expired by effluxion
of time. The only possible way to extend it, was for the First
Applicant to exercise its option in terms of clause 2(b) thereof not
less than three months before the end of October 2005. Not only did
the First Applicant not do this, it decided not to avail itself of
this option and made this intention clear in writing to First
Respondent, who accepted it. With that action any right that the
First Applicant might have had in respect of the lease of the
property belonging to First Respondent came to an end and passed into
history. First Respondent does not even have a prima facie right
and did not establish or showed a clear right to obtain an interim
interdict.



[43] The Second Applicant had
no such lease with the First Respondent and its involvement in this
application seems to be purely supportive of First Applicant by
conveying its intention to enter into a similar contract with First
Respondent. The Second Respondent never had any right to expect the
First Respondent to enter into an agreement with it and did not show
a prima facie right which is a prerequisite for an interim
interdict.



[44] A Court is usually
requested to determine the locus standi of a person or party
to bring a review application. Even if it has to be determined
whether First Applicant, and to an extent, Second Applicant, had an
interest in future contracts for the lease of the premises of First
Respondent for the purpose of erecting billboards thereon, and I have
to consider what is being regarded mainly in administrative law as
locus standi in judicio, the Applicants do not have the
required interest.



[45] The requirements for a
person to have locus standi to have his matter heard by the
Court have been dealt with in numerous decisions. Such a party has
to show that it has “a direct and substantial interest” in
the subject matter and outcome of the application.



United Watch and Diamond
Company (Pty) Ltd and Others v Disa Hotels and Another
1972 (4]
SA 409 (C) at 415 B.



This interest has been
described as a “legal interest” in the case of Henri
Viljoen (Pty) Ltd v Awerbach Brothers
1953 (2) SA 151 (O) at 166
A.



[46] Even in a liquidation
application the question of an adequate interest had been considered
by the South African Appeal Court. In Nieuwoudt v The Master and
Others NNO
1988 (4) 513 (A) at 522 C – D van Heerden JA said
that such an interest can have a wide meaning and can be interpreted
only in compliance within the relation that it appears. The learned
Judge further referred to the meaning of interest as defined in the
Oxford English dictionary as:



the relation of being
objectively concerned in something, by having the right or title to,
claim upon, or share in”;



the relation of being
concerned or affected in respect of advantage or detriment
”,
and



the feeling of one who is
concerned or has a personal concern in any thing.”



[47] Even a derivative right is
not enough. In Wistyn Enterprises v Levy Strauss and Company and
Another
1986 796 (T) at 803 H – 804 E, it was decided that a
subtenant only has a derivative right in the lease agreement that a
tenant has and that such a derivative right is one which depends on
the validity and continued existence of a right by another person.



See: Kerry McNamara Inc.
and Others v Minister of Works,
Transport and Communication
and Others
2000 NR 1.





[48] In Milani and Another v
South African Medical and Dental Council and Another
1990 (1) SA
899 (T) on p. 303 A – B it was said that a person should have at
least the same interest as a person desiring to intervene in
litigation to the Supreme Court. Even if such a person can be
financially effected by a decision or even deprived of a defence, he
does not have a strong enough interest.



See: Standard General
Insurance Co. v Gutmann
1981 (2) SA 426 (C) at 434 C - G



P E Bosman Transport Wks Con
v Piet Bosman Transport
1980 (4) SA 801 T at 804 B.



[49] It has also been decided
by Brand J in the case of Plettenberg Bay Entertainment v Minister
van Wet en Orde
1993 (2) SA 396 (C) at 401 E that a Court has no
discretion to grant an interdict to protect a right that does not
exist anymore.



[50] I have come to the
conclusion that the only possible interest that First Applicant could
have had to provide it with any standing came to an end with a
termination of its lease agreement with First Respondent, which was
effectively three months before the end of October 2005.
Consequently, the First Respondent did not have an adequate interest
to apply for the review in terms of the second prayer of the Notice
of Motion. The Second Respondent never had any such interest to
apply for any review of a decision by First Respondent to enter into
a new contract with anybody else, including Second Respondent.



[51] Finally, there are certain
allegations contained in the Respondents’ affidavits which do not
seem to establish factual disputes, but which tend to support the
Respondents’ attitude that First Respondent is not prohibited to
enter into commercial agreements without complying with tender
procedures. These allegations by the Respondents support my finding
that the Applicants did not show sufficient interest to apply for the
relief in prayer 2 of the Notice of Motion. The allegations that I
refer to are the following:



The Tender Board Act no. 16
of 1996 does not apply to First Respondent. Furthermore, First
Respondent only possesses provisions for tenders with regard to the
procurement of goods or services in terms of purchasing policies and
procedures and internal tender procedures. This is set out in the
affidavit on behalf of First Respondent and copies thereof had been
provided to me for perusal. It is clear that these documents provide
for the purchase of goods and services and not for commercial
contracts in terms whereof the First Respondent can earn income. It
is in fact alleged by First Respondent that commercial contracts such
as the lease agreement that existed between First Applicant and First
Respondent and the new lease agreement entered into between First
Respondent and Second Respondent are such commercial contracts, which
do not come into being by way of any administrative function. It is
alleged that the lease agreement between First Applicant and First
Respondent was not subject to a tender process in 1995. These
allegations supports my finding that the Applicants had no interest
to apply for the relief in prayer 2 of the Notice of Motion.



[52] It has also been decided
if an applicant has no locus standi to bring the application,
urgency is not shown.



See: Moleko v Min. of Plural
Relations and Development
1979 (1) SA 125 (T) at 129 H – 130 A;
and



Nathan, Barnett and Brink –
Uniform Rules of
Court – Third Ed., p. 52.



I have found that the
Applicants did not have locus standi to bring the application.
This decision consequently also proves that there was no urgency to
bring the application on that basis.



[53] In the light of my
conclusion it is not necessary to consider whether the Applicants
complied with all the requirements for an interim interdict, nor to
deal with any of the other arguments advanced.



[54] I have come to the
conclusion that



(a) there is no urgency in this
matter, nor am I prepared to exercise my discretion in this regard
and



(b) that First and Second
Applicants do not have any right or interest to approach this Court
for the relief claimed in the second prayer of the their Notice of
Motion.











[55] The application is
dismissed with costs.











_______________



MULLER A J















































































ON BEHALF OF THE
APPLICANTS Adv Heathcote







Instructed By:
Van Der Merwe-Greeff







ON BEHALF OF THE FIRST
RESPONDENT Adv Coleman







Instructed By:
Shikongo Law Chambers







ON BEHALF OF THE SECOND
RESPONDENT Adv Corbertt







Instructed By:
Kauta, Basson & Kamuhanga Inc.