Court name
High Court
Case number
CA 172 of 2006
Title

Van den Heever v Fermino Correia t/a Fishmar (CA 172 of 2006) [2008] NAHC 97 (12 September 2008);

Media neutral citation
[2008] NAHC 97













REPUBLIC OF NAMIBIA







CASE NO.: CA 172/06







IN THE HIGH COURT OF COURT OF
NAMIBIA







In
the matter between:







NOELENE VAN DEN HEEVER
APPELLANT








and





FERMINO
CORREIA t/a FISHMAR RESPONDENT






CORAM: VAN
NIEKERK, J







Heard on: 16 June 2006



Delivered
on:
12
September 2008



­­­­­­­­­­­­­­­­­­­­­­­­­________________________________________________________________________



JUDGMENT



VAN NIEKERK, J:



1 The
appellant appeals against an order by the Magistrate of Walvis Bay on
10 May 2005 dismissing an application for rescission of a summary
judgment and costs on an attorney and own client scale granted to the
respondent on 20 April 2004.







2 Respondent
had issued summons against appellant for payment of N$1 868 –
00, plus interest
a
tempore morae

from 20 January 2004 and costs of suit for professional services
rendered at appellant's special instance and request. Appellant
filed a notice of intention to defend the action, where after
respondent gave notice of an application for summary judgment. In
the application he gave notice that he would apply for the costs of
the application on an attorney and client scale. Appellant filed an
opposing affidavit, which was not on the court file when the
application for summary judgment was heard. In the absence of
appellant, summary judgment was granted on 20 April 2004.







[3] On
31 March 2005 appellant filed an application in terms of section 36
of the Magistrates’ Court Act, 32 of 1944, read with rule 49 of
that court's rules ("the rescission application") in which
condonation is also asked for the non-compliance with the
magistrates’ court rules with reference to the time limits
regarding such applications.







4 The
matter was set down for hearing on 19 April 2005. Respondent filed
an affidavit opposing the application and appellant filed a replying
affidavit. It is common cause that appellant on 14 April 2005 paid
an amount of N$1 027-50 into court as security for the costs
mentioned in rule 49(3). On 31 March 2005 when the rescission
application was set down for hearing on 19 April, respondent had
already recovered the total amount of N$1000 in terms of the summary
judgment by way of a garnishee order against appellant's salary.







5 On
19 April 2005 respondent's legal practitioner, Mr Thomas, took a
point
in
limine,
namely that the security was paid late. Mr Thomas also mentioned a
second point
in
limine
,
but did not disclose what it was. Appellant, being a lay person and
appearing in person, asked for a postponement to obtain legal
representation in order to answer to the point
in
limine
,
of which she had not been given notice in advance. She also wanted
legal representation to answer to the second point should counsel for
respondent raise it. A postponement was granted to 10 May 2005.







6 It
is necessary to deal in some detail with what occurred on 10 May 2005
and with the arguments by both parties. On that date, appellant
again appeared in person and applied for a further postponement for
another month. She filed detailed written submissions and also
addressed the court. She also filed a supplementary replying
affidavit attaching copies of her bank statements from which
documents it was evident that by 19 April 2005 the total sum of
N$1500 had been deducted from her salary by way of the garnishee
order. In support of her application for a postponement she placed
certain facts before the court. She pointed out that the respondent
would suffer no prejudice which could not be cured by a costs order
and drew the magistrate’s attention to the fact that respondent
had already recovered N$1500 from her. On the other hand, she
submitted, she would suffer irreparable harm if she is not legally
represented, because counsel for respondent was using “surprise
tactics”, as she called it, by taking points
in
limine

without warning. She mentioned that respondent's counsel had alluded
to a second point in
limine,
the details of which he did not disclose and which he would
presumably take once the first point had been disposed of.







[7] Appellant
further stated that she needed more time to obtain certain original
documentation as objections had been raised in the respondent’s
answering papers to the fact that the documents were uncertified
copies. It was clear that these documents were not in her possession
and that she was dependent on the co-operation of third parties to
obtain the originals or certified copies of them.




8 Appellant
set out what she had done in the meantime to obtain legal
representation. She had applied for a loan to pay for legal
representation, which had been granted only the day before. She was
hampered in her efforts because of several public holidays and long
weekends between 20 April 2005 and 10 May 2005. Although she had
approached several lawyers, none were willing to begin with
preparations to represent her before she was able to pay them. Mr
Steyn of the firm De Jager and Van Rooyen was prepared to assist her
if she could obtain a postponement to a later date. In fact, Mr
Steyn had approached Mr Thomas to agree to a postponement, but it was
refused.





9 Regarding
the first point in
limine,
she did come to court with some advice and argued the point. She
specifically mentioned to the magistrate that, at the stage she had
filed the application for rescission, respondent had already
collected N$1000 as deductions from her salary. She submitted that
it was not necessary for her to have paid the security. She referred
the magistrate to certain authorities.







[10]
Respondent's counsel did not answer to these submissions directly.
He objected to any further postponement as she was the applicant and
highlighted the fact that the rescission application was by her own
admission defective because of the problem with the documents. He
asked that judgment be given on the point
in
limine,
namely that the security was paid into court only after the
application was set down. He continued: “It is therefore also
abundantly clear that no application is on the roll at this stage.
What the applicant should have done was to remove its application and
again put a new application before this Court Your Worship. I
therefore again request that this application of Applicant be
dismissed with costs on an Attorney/own client scale.” Counsel
did not state in so many words on what basis he was seeking the
special costs order. He did complain about the fact that the
application was not in order and that applicant, being
dominis
litis

should have seen to it that she was ready to proceed before putting
the application down for hearing. He also complained about the costs
because applicant was already granted a postponement and was again
seeking a postponement.







[11]
After hearing the submissions, the record shows the magistrate to
have said the following:







The
Court have heard what was said before it and without wasting time the
Court have a few things to say, that the diffident [defendant]
Applicant in this matter had an ample time to get a lawyer of her
choice. If it was to say that week thereafter was over a long
weekend after the others, she could have brought her Attorney to
Court for such Attorney to ask postponement in this regard but not
submit a mere submissions to Court as if the case was postponed for
argument. The case was postponed for the Applicant, Defendant in
this matter to obtain a Legal Representative, therefore the Judgment
in
limine

is granted as prayed for.”











[12] On
16 May 2005 appellant requested the magistrate to provide her with a
written judgment and costs order in which he states the facts he
found to be proved and his reasons for judgment and the special costs
order. Appellant was provided with a document signed by the
magistrate and which reads:







COURT







Judgment
in lemine granted as prayed for Defendant had an ample time to
engaged an attorney of her choice.”







[13] Thereafter
appellant filed the following notice of appeal:







"NOTICE
OF APPEAL







KINDLY
TAKE NOTICE
that
the Appellant give Notice of Appeal to
THE
HIGH
COURT OF NAMIBIA

against the whole of the Judgment and Costs Order made on the 10
th
May
2005 by the Honourable Magistrate in an Application for Rescission
made by the Appellant in the terms of Rule 49 of the Magistrate's
Court Rules. The Honourable Magistrate made and recorded the
following judgment:
"Judgment
in lemine granted as prayed for Defendant had an ample time to
engaged an attorney of her choice."

and
to pay the costs of such Application on an attorney/client scale.
The Appellant appeals on the following grounds:







1. The
Honourable Magistrate erred in law by making and recording the
above-mentioned judgment. The judgment is ambiguous and vague in
that it is not clear what a "judgment
in
lemine
"
is and as such also constitutes a second judgment in the case. The
Magistrate also refused to enlighten the judgment by reasons in terms
of rule 51(1) of the Magistrate's Court;







2. If
the judgment implies that the application for rescission was
dismissed on the point
in
limine

taken by the Respondent, namely: That security of costs provided for
Rule 49(3) of the magistrate's court rules was paid in late and that
it should have been paid
simul
ac
semel

with the lodging or filing of the Notice of Application for
Rescission by the Appellant on the 31
st
March 2005 and that the Application is therefore defect; then the
honourable magistrate erred both in law and fact.







3. The
Honourable Magistrate erred in his implied rulings of law when he:







3.1 Dismissed
the Application without giving the Appellant an opportunity to
address the court on the merits of the Application;







3.2 Dismissed
the Application instead of striking it from the roll on the
technicality of security to be paid in terms of rule 49(3);







3.3 Found
that it was fatally defective for the Appellant not to have paid the
security simultaneously with the lodging of the application for
rescission.







3.4 Ignored
the fact that the amount of the costs awarded against Appellant were
not taxed at the date of the hearing on the 19
th
April 2005 as provided for in rule 49(4) of the same rules;







3.5 Ignored
the fact that the Appellant paid an amount of N$1 027.5 as security
on the 14
th
April 2005 as soon as it was assessed by the clerk of the court prior
to the hearing.







3.6 Ignored
the fact that the Respondent already collected N$1 000.00 from the
Appellant prior to the lodging of the above-mentioned application for
rescission and/or found that this amount recovered could not be first
appropriated to costs in favour of the Appellant relieving her from
the obligation to pay security.







4. The
Honourable Magistrate erred in his implied findings of fact when he
found that:







4.1 An
amount of N$1 000.00 was not already collected by the Respondent from
the Respondent on or before the 31
st
March
2005;







4.2 The
costs awarded was taxed prior to the date of the hearing on the 19th
April 2005;







4.3 That
security was not paid in full as soon as the clerk of the court,
prior to the hearing, assessed it.







5. The
Honourable Magistrate further erred in fact and law not to allow a
further postponement, under the circumstances, to allow the Appellant
to obtain legal representation or supporting affidavits from
witnesses in foreign countries, as requested, on the following
grounds:







5.1 The
Respondent would have suffered no prejudice;







5.2 The
Respondent did not disclose his points
in
limin
e
in
his

notice
to oppose and presented his points
in
limine
in
a surprising manner and was thus partly responsible for the need to
postpone;







5.3 The
magistrate ignored the facts in the Appellant's Replying Affidavit
dated the 19
th
April 2005, Supplementary Replying Affidavit dated the 10
th
of May 2005 and submissions dated the 10
th
of May 2005, made in this regard.







6. The
Honourable Magistrate erred in law by making a costs order against
the Appellant on an attorney/clients scale without allowing her an
opportunity to address the court on that issue.







7. The
Honourable Magistrate further erred in making the said cost order
against the Appellant on an attorney/clients scale on the following
grounds:







7.1 He
erred in finding any facts to grant such a cost order against the
Appellant;







7.2 He
erred in not finding any contributory facts on the part of the
Respondent causing the unnecessary costs;







KINDLY
FURTHER
take
notice that it is the intention of the Appellant to amplify her
grounds of appeal as soon as other or further grounds are found to
exist subsequent to the filing of a statement by the magistrate in
terms of rule 51(1) or (8) of the rules of this court.”







[14] The
magistrate then responded to the notice of appeal by furnishing
reasons for judgment on 18 July 2005, in which he stated the
following:







This
case came to Court on the 19/04/2005 for hearing, but after
submissions from both parties, the Court postponed the matter until
the 10/5/2005 for the Applicant to engage an Attorney of her choice
to represent her as she is not acquaints with the Court proceedings,
and she wants to study some documents of the Respondent.







On
the 10/5/2005, the Applicant again came to Court without an Attorney
of her choice, and as a result, the other party ask the Court to
grant the costs against her on the basis that she did not complied
with the rules should she not managed to engage one.







The
judgment is not ambiguous and vague, for the reason that she knew the
purpose of the proceedings for the latter date. In no way, and at no
stage did I refuse to give her the reason for granting the judgment
as prayed for in favor of the Respondent.







The
Applicant wasted the time of the Plaintiff in the main action, and
the Court applied the rules of the Magistrate's Court as they were
prayed for. It was not brought to the attention of the Court that
the Appellant did pay the security with the Clerk of Court on the
15/05/2005.







The
Magistrate did not misdirected himself in any way by granting the
judgment against the Appellant, and for her to pay the costs.







In
the premises, the Appeal to be dismissed with cost."







I note at this stage that the
reference to the date 14/05/2005 fourth paragraph is clearly wrong
and should have been 14/04/2005.







[15] I
have difficulty in following the reasons, such as they are, given
ex
tempore

by the magistrate when he granted judgment on the point
in
limine
.
The written reasons provided on 18 July 2005 do not assist the Court
much either as they are vague. I can quite understand that the
appellant was at a disadvantage when formulating her grounds of
appeal, which she did with admirable thoroughness, having to rely on
several possible inferences that might be drawn about the
magistrate's reasoning. I agree with appellant's statement in
paragraph 5 of her heads of argument that:











"5







It
appears from the judgment and reasons, provided on the 17th July
2005, that the learned Magistrate:







5.1 Refused
the Appellant a further postponement to obtain legal representation
and to file further affidavits;







5.2 Dismissed
the application for rescission of the Appellant on a point taken
in
limi
ne
by the Respondent, namely, that the Appellant did not pay the
required security into court together with the lodging of the
application for rescission;







5.3 Granted
costs order on an attorney and client scale against the Appellant "on
the basis that she did not comply with the rules should she not
managed to engaged one." And further on: "Appellant wasted
the time of the Respondent in the main action."















[16] Respondent
did not oppose the appeal, which was argued by appellant in person.
In her heads of argument she expanded upon the grounds of appeal and
during the appearance in this Court highlighted certain aspects in
the heads. I shall first deal with the ground of appeal dealing with
the postponement.







[17] In
regard to this issue I bear in mind the following principles in
regard to an appeal on the issue of a postponement as set out in
Myburgh
Transport v Botha t/a SA Truck Bodies

1991 NR 170 (SC) at 174D-175H:







1. The
trial Judge has a discretion as to whether an application for a
postponement should be granted or refused (
R
v Zackey

1945 AD 505).




2. That
discretion must be exercised judicially. It should not be exercised
capriciously or upon any wrong principle, but for substantial
reasons. (
R
v Zackey (supra); Madnitsky v Rosenberg

1949 (2) SA 392 (A) at 398-9;
Joshua
v Joshua

1961 (1) SA 455 (GW) at 457D.)




3. An
appeal Court is not entitled to set aside the decision of a trial
Court granting or refusing a postponement in the exercise of its
discretion merely on the ground that if the members of the Court of
appeal had been sitting as a trial Court they would have exercised
their discretion differently.




4. An
appeal Court is, however, entitled to, and will in an appropriate
case, set aside the decision of a trial Court granting or refusing a
postponement where it appears that the trial Court had not exercised
its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it has reached a
decision which in the result could not reasonably have been made by a
Court properly directing itself to all the relevant facts and
principles. (
Prinsloo
v Saaiman

1984 (2) SA 56 (O);
cf
Northwest
Townships (Pty) Ltd v Administrator, Transvaal, and Another

1975 (4) SA 1 (T) at 8E-G;
Johannesburg
Stock Exchange and Another v Witwatersrand Nigel Ltd and Another

1988 (3) SA 132 (A) at 152.)







5. A
Court should be slow to refuse a postponement where the true reason
for a party's non-preparedness has been fully explained, where his
unreadiness to proceed is not due to delaying tactics and where
justice demands that he should have further time for the purpose of
presenting his case.
Madnitsky
v Rosenberg

(supra
at 398-9).







6. An
application for a postponement must be made timeously, as soon as the
circumstances which might justify such an application become known to
the applicant.
Greyvenstein
v Neethling

1952 (1) SA 463 (C). Where, however, fundamental fairness and justice
justifies a postponement, the Court may in an appropriate case allow
such an application for postponement, even if the application was not
so timeously made.
Greyvenstein
v Neethling (supra

at 467F).







7. An
application for postponement must always be
bona
fide

and not used simply as a tactical manoeuvre for the purposes of
obtaining an advantage to which the applicant is not legitimately
entitled.







8. Considerations
of prejudice will ordinarily constitute the dominant component of the
total structure in terms of which the discretion of a Court will be
exercised. What the Court has primarily to consider is whether any
prejudice caused by a postponement to the adversary of the applicant
for a postponement can fairly be compensated by an appropriate order
of costs or any other ancillary mechanisms. (Herbstein and Van Winsen
The
Civil Practice of the Superior Courts in South Africa

3rd ed at 453.)




9. The
Court should weigh the prejudice which will be caused to the
respondent in such an application if the postponement is granted
against the prejudice which will be caused to the applicant if it is
not.




10. Where
the applicant for a postponement has not made his application
timeously, or is otherwise to blame with respect to the procedure
which he has followed, but justice nevertheless justifies a
postponement in the particular circumstances of a case, the Court in
its discretion might allow the postponement but direct the applicant
in a suitable case to pay the wasted costs of the respondent
occasioned to such a respondent on the scale of attorney and client.
Such an applicant might even be directed to pay the costs of his
adversary before he is allowed to proceed with his action or defence
in the action, as the case may be.
Van
Dyk v Conradie and Another

1963 (2) SA 413 (C) at 418;
Tarry
& Co Ltd v Matatiele Municipality

1965 (3) SA 131 (E) at 137.”








[18] It
seems to me that the magistrate held it against the appellant that
she did not come to court with a legal representative. It would seem
that he was willing to consider a further postponement, provided it
was requested by a legal representative on behalf of appellant. In
my view the appellant placed sufficient and compelling facts on
record to show what she had done to obtain legal representation. She
mentioned in court that Mr Steyn was willing to represent her
provided she could obtain a postponement and that he had asked Mr
Thomas to agree to a postponement. Mr Thomas did not deny this. The
magistrate mentions nothing about these facts. One therefore does
not know why they were found wanting. He only mentions something
incomprehensible about a long weekend. He blames appellant for not
bringing her legal practitioner to court to ask for a postponement.
However, he ignores her explanation. He does not say why it is
unacceptable, if indeed he did consider her explanation. If he did
take those facts and explanation into consideration and nevertheless
exercised his discretion to refuse a postponement, such exercise of
discretion would be grossly unreasonable on the facts. I agree with
appellant's submission that a further postponement should have been
granted. There was no prejudice to respondent which could not have
been cured by an order as to costs.







[19] After
refusing to postpone the matter, the magistrate granted judgment "
in
limine
as prayed for." Again he provided no proper reasons for this
order. In fact he states in his written reasons that he was not
aware that appellant had paid the security with the Clerk of the
Court on 14 April 2005. I find this part of the reasons very hard to
understand, as the very essence of the point
in
limine

was that the security had been paid late. Even if he might not have
been aware of the precise date on which it had been paid, his
statement must be understood to mean that he was not aware that
appellant did pay the security. It then becomes difficult, if not
impossible, to understand on what basis he upheld the point
in
limine
.
I am constrained to conclude that he must have misconstrued its
import. It would seem that the magistrate thought that if he refused
the postponement the point
in
limine

had to be upheld. The further conclusion is, inevitably, that he did
not consider the facts and the legal submissions made by appellant
when she addressed him on the merits of the point
in
limine
,
to which I now turn.







[20] Rule
49(3) and (4) provide as follows:







"(3) Save
where leave has been given to defend as a
pro
Deo

litigant in terms of rule 53, no such application shall set down for
hearing until the application has paid into court, or has secured to
the satisfaction of the plaintiff, to abide the directions of the
court, the amount of the costs awarded against him under such
judgment and also the sum of N$600 as security for the costs of the
application: Provided that the judgment creditor may, by consent in
writing lodged with the clerk of the court, waive compliance with
this requirement.







(4) Where
the amount of the costs awarded against he applicant under such
judgment has not at the date of the hearing of the application been
taxed the clerk of the court shall assess the approximate amount of
such costs and the amount so assessed shall be paid into court."







[21] As
I understand it Mr Thomas in the Court
a
quo

submitted that because the security was paid into court after the
application was set down, it was paid late and that therefore there
is, in effect, no application on the roll. However, the words "the
amount of the costs awarded" in Rule 49(3) must be taken to be a
reference to taxed costs. Rule 49(4) clearly provides for the
situation where, even at the date of the hearing, assessed costs may
be paid into court.
In
casu

appellant pointed out in her notice of appeal that the judgment costs
had not been taxed at the date of the first hearing on 19 April 2005
and that assessed costs were paid on 14 April 2005. This was not
disputed by the magistrate in his reasons, nor by respondent on
appeal. The security was therefore not paid late, as appellant could
still have paid the assessed costs on the date of hearing. The
magistrate should therefore not have upheld the point
in
limine
.







[22] By
granting the judgment
in
limine
without
any qualification, the magistrate must be taken to have dismissed the
rescission application with costs on an attorney and own client
scale. The question which arises is whether this judgment is
appealable in terms of section 83(b) of the Magistrates’ Court
Act, which provides that a party to any civil suit or proceeding in a
court may appeal against “any rule or order made in such suit
or proceeding having the effect of a final judgment ………
and any order as to costs.”







[23] As
appellant pointed out, the merits of the rescission application were
not addressed during the hearing. The issue of the security was
concerned with a procedural step which did not relate to the merits
of the rescission application. As appellant submitted, the
magistrate, having upheld the point
in
limine
,
should have struck the application from the roll, instead of
dismissing it (Jones and Buckle,
The
Practice of the Magistrates’ Courts in South Africa
,
(7
th
ed) Vol II, p371). However, the fact that the magistrate dismissed
the rescission application did not mean that the appellant could not
renew the rescission application in the magistrate’s court
(
Venmei
Beleggings (Edms) Bpk v Bue

1980 (3) SA 372 (TPD) 377A-H). The provisions of rule 49(9), in
terms of which a judgment becomes final if the rescission application
is dismissed, are no impediment to appellant renewing the rescission
application, as the sub-rule applies only if the dismissal occurs
after adjudication of the application on the merits (
Vleissentraal
v Dittmar

1980 (1) SA 918 (O) 921F;
Eldred
v Van Aardt & Bell

1924 SWA 79;
Ottens
v Korf

1927 TPD 58;
Venmei
Beleggings

(
supra)).
The judgment on the point
in
limine

did not have the effect of a final judgment as meant in section
83(b). It was a simple interlocutory order according to the
well-known test stated in
Pretoria
Garrison Institutes v Danish Variety Products (Pty) Ltd
1948
(1) SA 839 (A) 870:



“……[A]
preparatory or procedural order is a simple interlocutory and
therefore not appealable unless it is such as to ‘dispose of
any issue or any portion of the issue in the main action or suit’
or …… unless it ‘irreparably anticipates or
precludes some of the relief which would or might be given at the
hearing.’ ”







[24] As
the judgment dismissing the rescission application did not have the
effect of a final judgment, it is not appealable. However, the
accompanying costs order is appealable in terms of section 83(b). In
determining whether the costs order is correct, the Appeal Court is
bound to enquire into the correctness of the non-appealable judgment
(
Gordon
v Taub

1942 SWA 17, 18;
Pretoria
Garrison Institutes

(
supra)
863). If the non-appealable judgment was wrong, the appealable costs
order is also wrong, although the dissent expressed by the Court of
Appeal on the correctness of the non-appealable judgment has no legal
effect on it (
Pretoria
Garrison Institutes

(
supra)
846). The inevitable result in this case is therefore that the costs
order made by the magistrate must be set aside.







[25] I
pause as this juncture to mention that I did not raise the issue of
the appealability of the magistrate’s judgment with appellant
at the time of the hearing as it did not occur to me at the time.
However, I do not think that she is prejudiced by this fact for the
following reasons. She probably would not have been able to address
me on the legal issues without a postponement and incurring further
expense. Some of the legal submissions she made in regard to her
grounds of appeal proved to be relevant to this issue and in fact
alerted me to the very question of appealability while preparing this
judgment and I accepted those submissions in coming to my finding on
the matter of whether the judgment has final effect. Furthermore,
the appeal is partly successful and my finding that the judgment of
dismissal is not appealable does not close the door in appellant’s
face. I point out again, for clarity’s sake, that it is open
to the appellant to renew the rescission application in the
magistrate’s court, as the dismissal did not have the effect of
a final judgment.







[26] I
now come to the order to be made. Although appellant did not ask for
the costs of the appeal, she must have had some disbursements in
connection with the appeal. I think in the circumstances that it is
just that she should be awarded the costs of the appeal, as it was
the respondent who raised the point
in
limine

and asked for the special costs order which led to this appeal. In
the result I make the following order:







[27] The
appeal against the costs order is allowed with costs. The costs
order made by the magistrate is set aside.















__________________________



VAN NIEKERK, J















APPEARANCE FOR THE PARTIES:







For appellant:
In
person