Court name
High Court
Case name
Goseb and Others v Minister of Regional and Local Government and Housing and Others
Media neutral citation
[2011] NAHC 147





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE



CASE NO: A 332/2009


IN THE
HIGH COURT OF NAMIBIA





In the
matter between:





WILLY
GOSEB
….............................................................1st
APPLICANT


HEWAT
BEUKES
….........................................................2nd
APPLICANT


ERICA
BEUKES
…...........................................................3rd
APPLICANT


WILLY
SWARTZ
…...........................................................4th
APPLICANT


FREDERICK
WILLY SCHROEDER
…................................5th
APPLICANT


APOLLUS
HOCHOBEB
….................................................6th
APPLICANT


TERENCE
NOBLE

…........................................................
7th
APPLICANT


JACOBUS
JACOBS
…......................................................8th
APPLICANT


REGINA
JOHANNA BARKER
…........................................9th
APPLICANT


WILHELMINA
SWARTZ
…..............................................10th
APPLICANT


HEINZ
THIRO
…...........................................................11th
APPLICANT


GENOVIVA
GOSEB
…....................................................12th
APPLICANT


LISA
RHODE
….............................................................13th
APPLICANT


JOSEF
KAROOLS
…......................................................14th
APPLICANT


MITCHELL
VAN WYK
…................................................15th
APPLICANT


LEILANI
VAN WYK
…....................................................16th
APPLICANT


ILONA
YA NANGOLOH
…...............................................17th
APPLICANT


and


MINISTER
OF REGIONAL AND LOCAL


GOVERNMENT
AND HOUSING
….................................1st
RESPONDENT


BANK OF
NAMIBIA
….................................................2nd
RESPONDENT


NAMIBIA
FINANCIAL INSTITUTIONS


SUPERVISORY
AUTHORITY
….....................................3rd
RESPONDENT


NATIONAL
HOUSING ENTERPRISE
…..........................4th
RESPONDENT


THE
REGISTRAR OF DEEDS

…...................................
5th
RESPONDENT


FIRST
NATIONAL BANK OF NAMIBIA LTD
…...............6th
RESPONDENT


STANDARD
BANK OF NAMIBIA
…...............................7th
RESPONDENT


BANK
WINDHOEK
…...................................................8th
RESPONDENT


FISHER,
QUARMBY & PFEIFER
…...............................9th
RESPONDENT


MUNICIPAL
COUNCIL FOR THE MUNICIPALITY


OF
WINDHOEK …......................................................10th
RESPONDENT


MINISTER
OF JUSTICE ….........................................11th
RESPONDENT


NEDBANK
NAMIBIA LIMITED …................................12th
RESPONDENT


THE
REGISTRAR OF THE HIGH COURT …................13th
RESPONDENT


THE
SHERIFF OF THE HIGH COURT ….....................14th
RESPONDENT


THE
DEPUTY SHERIFF FOR WINDHOEK …...............15th
RESPONDENT


THE
DEPUTY SHERIFF FOR WALVIS BAY ….............16th
RESPONDENT






CORAM: SCHIMMING-CHASE, AJ





Heard on:
17 and 18 May 2011


Delivered
on: 31 May 2011



______________________________________________________________________







JUDGMENT



______________________________________________________________________


SCHIMMING-CHASE,
AJ:






  1. This
    matter was referred back to this court by the Full Bench on 24
    February 2011 for a decision on the merits of identical Rule 30
    applications launched by the 6th, 9th, 7th
    and 10th respondents. In this judgment they will
    interchangeably be referred to as the respondents, or in their
    separate capacities where context requires it.







  1. The
    hearing of the Rule 30 application was the set down for
    17 May
    2011 at 10h00. In respect of the 6th and 9th
    respondents a notice of set down was delivered to the applicants by
    service on the address nominated by them in their notice of motion.
    Ex facie the notice of set down, service was accepted on
    behalf of the applicants at 15h52 on 6 April 2011.








  1. In respect of the 7th and 10th respondents, an
    affidavit deposed to by a messenger employed by their instructing
    legal practitioner alleges that an attempt was made to serve the
    notice of set down at the addressed nominated by the applicants on
    20 April 2011 but he was informed by an adult male person, who
    refused to give his name, that he would not accept any documents.
    These facts will be referred to in more detail below.








  1. At
    the commencement of the hearing of the Rule 30 application on 17 May
    2011, only the 5th and 6th applicants
    appeared. The 5th applicant informed the court that he
    was not aware of these Rule 30 proceedings, and that he had first
    heard about it in the corridor. He further informed the court that
    it no longer has jurisdiction to hear the Rule 30 application as an
    appeal had been noted to the Supreme Court against the judgment and
    order of the Full Bench. The 6th applicant aligned
    himself with the submissions of the 5th applicant. The
    notice of appeal dated
    30 March 2011 was signed by the 1st,
    2nd, 3rd, 5th, 6th, 8th,
    10th and 15th applicants only.








  1. The
    5th and 6th applicants were however
    constrained to accept that they had knowledge of the set down date
    by virtue of the notice of set down delivered by the 6th
    and 9th respondents. The notice was served on the address
    nominated by the applicants in the notice of motion and there was
    signature of acceptance of the document on behalf of all applicants
    at the given address.


  2. In
    response to these submissions, counsel for the respondents submitted
    that the judgment and order of the Full Bench was interlocutory in
    nature, and that the applicants had to apply for leave to appeal in
    terms of section 18(3) of the High Court Act,
    16 of 1990. As a
    result, it was argued, the notice of appeal is a nullity and should
    accordingly be ignored without the necessity of an application to
    set aside the notice as irregular.







  1. Section
    18(3) of the High Court Act, 16 of 1990 as amended, provides that no
    judgment or order where the judgment or order sought to be appealed
    from is an interlocutory order or an order as to costs only left by
    law to the discretion of the court shall be subject to appeal, save
    with leave of the court which has given judgment or has made the
    order, or in the event of such leave to appeal being granted by the
    Supreme Court.







  1. Counsel
    relied inter alia on an unreported judgment of the Supreme
    Court of Namibia delivered on 15 July 2010 in the matter of The
    Minister of Mines and Energy and Another v Black Range Mining

    where it was held that interlocutory orders are not appealable as of
    right, as they lack the attributes required for a judgment or order
    which is appealable in terms of section 18(1) of the High Court Act
    (see paragraph 57 of the judgment).








  1. The general principle is that if the decision is not definitive of
    the rights about which the parties are contending in the main
    proceedings and does not dispose of any of the relief claimed, such
    decision is not a judgment or order as intended in
    section 18 of
    the High Court Act and is not appealable as of right. In Minister
    of Mines and Energy
    supra it was held that if the
    interlocutory order was final in effect, although it may lack some
    of the attributes of a judgment or order, required for an appeal as
    of right, it may nevertheless have a definitive and final bearing on
    the rights of the parties, in which instance, it would be appealable
    as of right.







See also: Zweni v Minister of Law Order 1993 (1) SA 523 (AD)
at 533G-H and 536A-C, cited with approval in Aussenkehr Farms
(Pty) Ltd v Minister of Mines and Energy
2005 NR 21 (SC) at 29A-E






  1. In
    respect of the submission that the notice of appeal can be ignored
    without the necessity for an application to set it aside as
    irregular, reliance was placed on the case of China State
    Construction Engineering Corporation (Southern Africa) (Pty) Ltd v
    Pro Joinery CC
    2007 (2) NR 675 (HC) where Silungwe J considered
    whether a nullity can be condoned in terms of
    Rule 27(3) of the
    High Court Rules. After referring to a number of South African
    decisions, he held at paragraph 27 that:




The fact that the Court enjoys
unfettered discretion to condone a procedural irregularity does not,
in my view, perforce mean that all procedural irregularities (without
any exception whatsoever) are, per se, capable of being condoned. In
other words, not every single procedural irregularity is capable of
being condoned. Whereas it is probable that a large number of
procedural irregularities may be capable of being condoned, it is,
nevertheless, conceivable that there may well be occasional
procedural irregularities of such gravity as to constitute a nullity.
A nullity has no legal effect and, as such, it cannot be condoned.”






  1. In
    Namibia Development Corporation v Aussenkehr Farms (Pty) Ltd,
    an unreported judgment of this court delivered on
    6 November
    2009, Heathcote AJ, after approving the reasoning of Silungwe J in
    China State Construction Engineering Corporation supra
    further held at paragraph 33 that:







Obviously a null and void process can be
ignored with impunity, and even if a party has taken a further step
in the proceedings, the taking of a further step cannot blow life
into a legally dead step or procedure.”






  1. Subsequent
    to counsel for the respondents’ arguments, I invited the 5th
    and 6th applicants to contact the other applicants in
    this application to appear in court after lunch, to address this
    court on their non-appearance at the hearing of this application, as
    well as to respond to the submissions on the status of the notice of
    appeal which they filed. The matter was accordingly adjourned for
    this purpose.







  1. After
    reconvening, the 5th and 6th respondents were
    accompanied by the 1st and 2nd applicants. The
    1st applicant aligned himself with the submissions made
    by the 2nd applicant. The
    2nd applicant
    stated from the bar that he had not managed to contact all the
    applicants, and submitted that the reason for their non-appearance
    was that the notices of set down filed by the respondents were a
    nullity and accordingly could be ignored. From my understanding of
    the 2nd applicant’s submissions, support for his
    argument was based on the following:








    1. the
      applicants ignored the notice of application for a trial date in
      terms of Rule 39(2) read with Practice Directive
      No 1 of 2011
      and 3 of 2006 delivered on behalf of the 7th and 10th
      respondents, inviting the applicants to appear at the Office of the
      Registrar for the allocation of a trial date on 6 April 2011. They
      also ignored the letter emanating from the legal practitioners of
      the 6th and 9th respondents, also inviting
      them to appear at the Office of the Registrar on the same date and
      for the same reason, because this issue was to be dealt with as
      part of the appeal to the Supreme Court. It was not disputed that
      these notices were served at the address nominated by the
      applicants for service of process in terms of Rule 6(5)(b) of the
      Rules of Court;









    1. the
      notice of set down filed on behalf of the 6th and
      9th
      respondents delivered in terms of the Rules of Court at the
      nominated address for service referred to above, for which receipt
      was signed on behalf of the applicants on
      6 April 2011 at
      15h52, is a nullity because the notice of set down is dated 5 April
      2011. This also shows, so the argument went, that the date for
      hearing was allocated before the date on which the allocation was
      to take place, namely 6 April 2011 at 10h00 at the Registrar’s
      office;









    1. the
      notice of set down of the 7th and 10th
      respondents was never served on the applicants. Only a copy of the
      notice of set down was left on the doorstep and this was not proper
      service in terms of Rule 4 of the High Court Rules. In this regard,
      an affidavit deposed to by the messenger of the legal practitioners
      for the 7th and 10th respondents alleges that
      on 20 April 2011 at approximately 11h00 whilst he was attending at
      the nominated address, he was informed by a male person who refused
      to give his name that he would not accept any documents for the
      applicants. He therefore left a copy of the notice of set down on
      the doorstep.








  1. I
    pertinently requested the applicants to address me on the argument
    raised by counsel for the respondents that the notice of appeal
    against the Full Bench decision was a nullity. The
    2nd
    applicant submitted that he had not been informed about this
    argument, nor was he prepared to address me on this issue. This
    response came notwithstanding the adjournment of the proceedings for
    approximately 3 hours so that this court could be addressed on this
    issue.







  1. On
    the basis of the submissions of the 5th applicant (with
    which the 6th applicant aligned himself) referred to
    earlier, as well as the additional submissions of the 2nd
    applicant (with which the 1st, 5th and 6th
    applicants also aligned themselves) made when court reconvened, I
    ruled that the notice of appeal was indeed a nullity and that it
    would be ignored. I also ruled that the hearing on the merits of the
    Rule 30 application would proceed on 18 May 2011 at 10h00. Costs
    were stood over, to be determined at the end of the hearing of the
    Rule 30 application. I provide the reasons for my ruling in what
    follows.








  1. In terms of Rule 49 of the Rules of Court, an appeal as of right is
    noted by the delivery of a notice of appeal within 20 days after the
    date upon which judgment was given or order made. I am in agreement
    with the principle enunciated in the decisions referred to above
    that an appeal as of right only lies if the effect of the judgment
    or order has a final or definitive result on the rights of the
    parties. If the result is not final or definitive, the decision is
    interlocutory in nature and leave to appeal must be applied for in
    terms of section 18(3) of the High Court Act.







  1. The
    judgment and order of the Full Bench is clearly interlocutory in
    nature. The judgment and order of that court, against which an
    appeal was noted, is that it is not a prerequisite for an applicant
    to give notice in terms of Rule 30(5) before bringing a Rule 30(1)
    application. The Full Bench referred the decision on the merits of
    the rule application back to this court. This is the application
    that is to be heard in terms of the notices of set down. The effect
    on the applicants is simply that they need not be given prior notice
    of the Rule 30 application and that they must now ventilate their
    opposition to this application.







  1. In
    fact, as counsel for the respondents submitted, the Full Bench
    decision was an interlocutory order made within an interlocutory
    application. It is pointed out that the notices in terms of Rule 30
    were delivered by the respondents on 22 and 24 October 2009, in
    respect of the 6th, 9th and 7th and
    10th respondents respectively. Considering that it is now
    over 1½ years later, more than sufficient “notice”
    has been provided in any event showing that the applicants had ample
    opportunity to prepare their response to the notices.







  1. Accordingly,
    at the very best for the applicants, leave to appeal was required in
    terms of Rule 18(3) of the High Court Act if the applicants wanted
    to appeal against the judgment and order of the Full Bench of this
    court. In fact I doubt that this decision is even appealable,
    however I need not decide this issue in this instance. No
    application for leave to appeal was launched. Instead, some of the
    applicants filed a notice of appeal on
    30 March 2011.







  1. In
    the absence of an application for leave to appeal, the notice of
    appeal is a nullity. I respectfully agree with Silungwe J’s
    reasoning in China State Construction Engineering Corporation
    supra and Namibia Development Corporation supra,
    and find that I have no discretion to condone a nullity, and I
    therefore will have no regard to the notice of appeal.







  1. As
    regards the submissions by the applicants that appeared that the
    notices of set down for the hearing of the Rule 30 application are a
    nullity that this court should ignore, it is firstly not disputed
    that the applicants had received written requests from the 6th,
    9th, 7th and 10th respondents to
    attend at the Office of the Registrar at 10h00 on 6 April 2011 for
    the allocation of a trial date for the hearing of the application
    and that they were aware that they had to appear at the Office of
    the Registrar for the allocation of a hearing date for the Rule 30
    application. Incidentally it appears, ex facie the
    documentation, that the invitations to appear were received by the
    applicants, even before they filed their notice of appeal. The
    submission that these notices are part of the appeal is not an
    acceptable reason for the applicants’ non-appearance at the
    Office of the Registrar for the allocation of the dates, which the
    applicants did at their own peril.







  1. With
    regard to the submission that the notice of set down of the 6th
    and 9th respondents, was a nullity, it was submitted by
    their counsel that the date of the notice, namely 5 April 2011 could
    only be a typographical error.







  1. What
    is important to note is that the notice of set down was served on
    the applicants at their nominated address on
    6 April 2011 at
    15h52. Notwithstanding the incorrect date it was properly delivered
    in terms of the Rules of Court. By no stretch of the imagination can
    this notice of set down be a nullity, and it can also not be
    compared to a notice of appeal being filed when leave to appeal is
    required by law. The only “irregularity” contained in
    this document is the date of 5 April 2011. The applicants in this
    regard did not even file a Rule 30 application. They just decided
    not to appear.








  1. It is
    well established that this court has a discretion to overlook any
    irregular procedure that does not occasion any substantial
    prejudice.








See: Gariseb v Bayerl 2003 NR 118 (HC) at 121I-122A/B, cited
with approval in China State Construction Engineering Corporation
supra at paragraph 15







  1. I do
    not believe that the incorrect date on the notice caused any
    prejudice to the applicants. It is not disputed that the applicants
    had received the notice of set down of the 6th and 9th
    respondents at the very least. They were accordingly aware of the
    date on which this matter would be heard. The typographical error
    can be, and is condoned. Incidentally, I am also inclined to believe
    the allegations contained in the affidavit referred to above, but
    this does not form the main basis of my ruling. In any event, the
    submission that there was non-compliance with Rule 4 with regard to
    service of the notice of set down of the 7th and
    10th
    respondents is also rejected. Rule 4 deals with service of process
    by the Deputy Sheriff, when an action or application is instituted,
    and not service after notices to oppose or defend with a nominated
    address have been filed in terms of Rule 6.


  2. I
    therefore find that the matter was properly set down and that the
    applicants had knowledge of the date for hearing of this
    Rule 30
    application.







See: Workers Advice Centre and Others v Mouton 2009 (1) NR 357
(HC) at paras 2 and 3






  1. For
    these reasons, I ruled that the notice of appeal was a nullity and
    could be ignored, and that the Rule 30 application would proceed on
    18 May 2011.







  1. Against
    this ruling, the applicants again noted an appeal before the hearing
    of the application was set to continue. After the matter was called,
    the same applicants appeared. It was argued by the 2nd
    applicant (with which the other applicants aligned themselves) that
    this hearing could not proceed as a notice of appeal was filed
    against my ruling. It was also argued that the notice of appeal
    filed against the Full Bench decision was not a nullity because the
    result of that order was final in effect. I again ruled that this
    new notice of appeal is not competent and that the hearing of the
    Rule 30 application would proceed. The reasons for this second
    ruling are the same as those for my first ruling.







  1. I
    also ruled that the Rule 30 proceedings would proceed, after which
    the applicants excused themselves from participating with the
    hearing. The applicants’ names were then called out, and the
    matter proceeded.







  1. I now
    deal with the merits of the Rule 30 application.







  1. The
    applicants launched an application seeking a broad and diverse range
    of declaratory relief against 16 respondents in total. The 2nd
    applicant deposed to the founding affidavit. Attached to the
    founding affidavit were a number of annexures which will be referred
    to in more detail below.







  1. The
    6th and 9th respondents (represented by one
    firm of legal practitioners) as well as the 7th and 10th
    respondents (represented by another firm of legal practitioners)
    filed identical Rule 30 notices , seeking to set aside the
    applicants’ application as irregular on a number of grounds.







  1. In
    the first ground the respondents allege that the notice of motion
    commencing the applicants’ application purports to be signed
    by 15 applicants however, when comparing the signatures appended by
    these applicants it is evident that:








    1. the
      1st applicant signed a notice per procurationem
      the
      12th applicant;









    1. the
      2nd applicant signed a notice per procurationem
      the
      4th applicant as well as the 7th
      applicant;









    1. the
      15th applicant signed a notice per procurationem
      the
      6th applicant.









  1. By
    virtue of a supporting affidavit of the Director of the Law Society
    it is stated under oath that the 1st, 2nd and

    15th applicants are not duly enrolled legal
    practitioners.







  1. Rule
    6(5)(a) read with Form 2(b) and Rule 16(2)(b) requires that a notice
    of motion must be issued and signed by a legal practitioner if a
    party is not litigating personally. Form 2(b) expressly provides for
    the signature of the applicant or his / her counsel.








  1. Section
    21(1)(c) of the Legal Practitioners Act further provides that:







(1) A person who is not enrolled as a
legal practitioner shall not -






(c) issue out any summons or process or commence, carry on or
defend any action, suit or other proceeding in any court of law in
the name or on behalf of any other person, except in so far as it is
authorised by any other law;”



  1. A
    person who contravenes the above provision is guilty of an offence
    and liable on conviction to a view not exceeding N$100,000.00 or to
    imprisonment for a period not exceeding to both such time and such
    imprisonment.







  1. I
    respectfully agree with the reasoning of Shivute J in the matter of
    August Maletzky and 14 Others v The Attorney-General and
    33
    Others
    , an unreported judgment delivered on 29 October 2010 in
    which objection was made to the notices of motion in that matter
    having been signed by a person who was not a legal practitioner on
    behalf of the other applicants. It was held that the notice of
    motion insofar as it was signed on behalf of the applicants by a
    person who was not a legal practitioner was a nullity.







  1. I
    accordingly find that with respect to the 4th, 7th,
    12th and
    16th applicants, the application
    is irregular and falls to be set aside.







  1. In
    respect of the second ground raised by the respondents, it was
    pointed out that the notice was not signed by or on behalf of the
    13th applicant. I agree with counsel for the respondents
    that as the notice is, as regards the 13th applicant,
    falls foul of the provisions of Rule 6(5)(a) read with Form 42(b)
    and Rule 16(2)(b) and should also be set aside as an irregularity.


  2. I
    deal with the third and fourth grounds together as it appears from a
    perusal of the application that the following papers littered with
    different and disjointed annexures containing affidavits deposed to
    by various applicants in applications lodged against some of the
    respondents only and that these are purportedly affidavits by some
    of the applicants in confirmation of the applicants’’
    application. It also appears that the title of the affidavits of the
    5th, 6th, 8th, 9th,
    10th, 11th, 14th, 15th
    and
    17th applicants is not the same title as the
    founding affidavit deposed to by the 2nd applicant, as
    well as the 1st and
    15th applicants.







  1. It
    was also pointed out that it is apparent ex facie the papers
    that only the affidavits of 1st, 2nd and 15th
    applicants are deposed to in support of the applicants’
    application.







  1. By
    way of further examples, an affidavit is, deposed to by one Emmanuel
    Hochobeb. who does not appear to be a party in this application. The
    affidavits of the 14th applicant, as well as the 15th
    applicant are filed late with no explanation or application for
    condonation. Furthermore, in respect of the 4th, 7th
    and
    13th applicants there appears to be no affidavit
    at all. There are some affidavits that do not even appear to confirm
    the allegations of the 2nd applicant. In respect of the
    16th applicant, a completely different case number is
    referred to. It would appear that the only affidavits that appear to
    be proper confirmatory affidavits are of the 1st, 2nd,
    3rd (belated) and 15th applicants.







  1. It is
    clear that in respect of the above affidavits, there is
    non-compliance with Rule 6(1) of the Rules of Court. Apart from the
    1st, 2nd and 15th applicants, these
    affidavits do not support the facts upon which the applicants rely
    for relief, either in the title or the body of the affidavits.







  1. It is
    contended by the respondent that the founding affidavit concerns an
    incorporation of various annexures which are attached willy nilly
    without any identification of the portions relied on in these
    annexures. It is also argued that the founding affidavit
    indiscriminately incorporates two annexures, namely “HB2”
    and “HB3” which appear to be assessments of
    Parliamentary public enquiries on the misadministration of housing
    loans previously held as well as a submission by the Aggrieved Home
    Owners Association. The issue with these two annexures is that they
    contain broad, sweeping and vague statements which are simply
    incorporated without identifying the portions relied on for purposes
    of the relief sought. It was also submitted that these two documents
    do not even comply with the provisions of Rule 62(3) of the Rules of
    Court which provides that petitions and the like shall be divided
    into concise paragraphs which shall be consecutively numbered.


  2. The
    following examples are given:








    1. paragraph
      42 of the founding affidavit of the 2nd applicant
      contains the following statement:









I attach hereto copies of two
submissions to the National Council on the issue of the abuse of home
loans by the respondents and mark it “HB1” and “HB2”
and I incorporate the factual contents therein in this affidavit as
duly affirmed.”







    1. in
      paragraphs 40 and 53, annexures attached to the affidavit of second
      applicant are simply incorporated and regarded as supporting the
      cause of action per se, without any indication of how they
      support the cause of action;









    1. further
      reference was made to the affidavit of the 8th applicant
      where he stated:








I attach hereto a copy of an extract of
my account with the fourth respondent.”







It was argued that there was no indication on which parts of his
account he relies for his cause of action;







    1. further
      the 17th applicant in paragraph 3 stated:








I attach hereto an extract of my account
and mark it “A”. I have been debited with legal fees and
life insurance illegally and I had not been [in] arrears at no time
relevant to this matter.”






It was argued that no part of this annexure “A” is
highlighted and explained as evidence on which the Honourable Court
should rely to find the illegalities complained of;








    1. the
      15th applicant in paragraph 3 of his confirmatory
      affidavit stated:








I attach hereto a copy of my supporting
affidavit in case number (P) I 1954/2008 and I incorporate the
contents thereof into this affidavit as true and correct.”






It was argued that no reliance was placed on any part of the said
affidavit (which consists of 46 pages in total) to sustain the
applicants’ cause of action.






  1. The
    respondents allege that they are prejudiced by these irregularities
    because it is not clear in which manner and in respect of which
    applicants the respondents have allegedly acted unlawfully. The
    respondents are at a complete loss as to what case exactly to
    answer. They are unable to discern on which parts of the allegations
    in the founding papers or the annexures they are required to
    respond.








  1. It
    was accordingly argued that the applicants’ reliance on
    annexures which were simply incorporated into their affidavits
    without identification of the portion on which reliance was placed,
    results in a failure to indicate what case is sought to be made out
    and that the application as a whole should be set aside as irregular
    on this basis.








  1. In
    support of these arguments, counsel for respondents referred to the
    well established principle that the annexures to an affidavit are
    not an integral part of it and that an applicant cannot justify his
    case by relying on facts which emerge from annexures to the founding
    affidavit, but which have not been alleged in the affidavit and to
    which the attention of the respondent has not been specifically
    directed. This is in the line with the rule that the applicant must
    make out a case in the founding affidavit.








See: Port Nolloth Municipality v Xhalisa; Luwalala v Port Nolloth
Municipality
1991 (3) SA 98 (C) at 111B-I quoted with approval in
Otjozondu Mining (Pty) Ltd v Minister of Mines and Energy and
Another
2007 (2) NR 469 (HC) at 475A-C



  1. In
    Swissborough Diamond Mines (Pty) Ltd and Others v Government of
    the Republic of South Africa and Others
    1999 (2) SA 279 (T) at
    324F-G, the court held as follows:







Regard being had to the function of
affidavits, it is not open to an applicant or a respondent to merely
annexe
(sic) to
its affidavit documentation and to request the Court to have regard
to it. What is required is the identification of the portions thereof
on which reliance is placed and an indication of the case which is
sought to be made out on the strength thereof. If this were not so
the essence of our established practice would be destroyed. A party
would not know what case must be met.”






See also: Herbstein and Van Winsen, The Civil Practice of the
Supreme Court of South Africa,
5th ed, p 443






  1. In
    Minister of Land Affairs and Agriculture v D & S Wevell Trust
    2008 (2) SA 184 (SCA) at 200 the court observed the following:







It is not proper for a party in motion
proceedings to base an argument on passages in documents which have
been annexed to the papers when the conclusions sought to be drawn
from such passages have not been canvassed in the affidavits. …
Trial by ambush cannot be permitted.”



  1. I am
    in respectful agreement with the principles enunciated in the above
    authorities that in motion proceedings, an applicant must when
    annexing documentation in support of the relief sought, identify the
    portions thereof on which reliance is placed and indicate the case
    that is sought to be made out on the strength thereof, and that
    without this, a party would not know what case must be met. Without
    compliance with these requirements, an impermissible trial by ambush
    takes place.







  1. In
    light of the above authorities and on the facts, I am of the view
    that the manner in which the annexures were attached to the
    affidavits without any indication on which part of the annexures
    reliance is placed, and without any indication of what cause of
    action relates to which respondent, renders the application
    irregular. Almost none of the annexures referred to in the founding
    affidavit even provide the remotest indication of exactly which
    portion of the annexures reliance is placed upon. In most cases the
    annexure is not even identified.







  1. The
    question for me to determine now is whether I can condone these
    irregularities. As previously stated, I am able to condone an
    irregularity if there is no prejudice to the respondent (see: China
    State Construction Engineering Corporation
    supra). If
    however, there is prejudice, the irregularity should be set aside.







  1. The
    question to be determined, is whether the respondents have any idea
    of the case that must be met with regard to the whole application.
    It is clear that the irregular manner that the annexures were
    annexed to the founding affidavit, without any indication or
    direction as to what portions thereof are relied upon by the
    applicants, show that the respondents simply would not know where or
    how to even start responding to the allegations. There is no way on
    the facts in the founding papers as they stand, that they can know
    what case they would have to meet and what answer needs to be
    provided. In essence it is a trial by ambush. I am accordingly of
    the view that the respondents are indeed prejudiced. I therefore
    exercise my discretion not to condone this irregularity.








  1. In
    the result the application in terms of Rule 30 succeeds and the
    entire main application launched by the applicants set aside as
    irregular.








  1. An
    issue that is a cause for concern is the fact that the notice of
    motion in the applicants’ application was not signed
    personally by all the applicants but by other persons who are not
    legal practitioners. I have dealt with this aspect above. This is in
    conflict with section 21(1)(c) of the Legal Practitioner’s
    Act, and it would appear therefore, that a criminal offence has been
    committed. I accordingly have decided to refer this issue to the
    Prosecutor-General for further investigation and action.


  2. What
    remains is the question of costs. With regard to the costs stood
    over from my previous ruling it was submitted by counsel for the
    respondents, that one cannot punish all the applicants, due to one
    day being wasted on argument on a number of preliminary points as
    opposed to the hearing of the Rule 30 application. I am in agreement
    with these submissions. These points were taken by the 1st,
    2nd, 5th and 6th applicants.
    Therefore in respect of the costs of 17 May 2011, I find that the
    wasted costs of that day are to be paid jointly and severally, by
    the 1st, 2nd, 5th and 6th
    applicants, the one paying the other to be absolved. These costs are
    to include the costs of one instructing and two instructed counsel
    in respect of the 6th and
    9th applicants,
    and one instructing and two instructed counsel in respect of the 7th
    and 10th applicants.







  1. In
    respect of the costs of the hearing of the Rule 30 application, the
    notice of opposition to the Rule 30 application was not signed by
    the 7th applicant. I therefore find that the costs of
    that hearing should be paid by all the applicants (except the 7th
    applicant), jointly and severally, the one paying the other to be
    absolved.







  1. In
    the result the following order is made







  1. The
    applicants’ application in case number A 332/2009 is set aside
    in its entirety as irregular.


  2. The
    1st, 2nd, 5th and 6th
    applicants are directed to pay the wasted costs for the proceedings
    on 17 May 2011 jointly and severally the one paying the other to be
    absolved. These costs are to include the costs of one instructing
    and two instructed counsel in respect of 6th, 7th,
    9th and
    10th respondents.








  1. The
    applicants (excluding the 7th applicant) are directed to
    pay the costs of the Rule 30 application jointly and severally, the
    one paying the other to be absolved. These costs are to include the
    costs of one instructing and two instructed counsel in respect of
    6th, 7th, 9th and
    10th
    respondents.








  1. The
    signing of the notice of motion in the applicants’ application
    by persons who are not admitted legal practitioners is referred to
    the Prosecutor-General for further investigation and action.















___________________________



SCHIMMING-CHASE, AJ



ON BEHALF OF THE APPLICANTS



In person











ON BEHALF OF 6THAND 9TH
RESPONDENTS



Adv Tötemeyer SC


Assisted
by: Adv Denk



Instructed by: Fisher, Quarmby & Pfeifer









ON BEHALF OF 7THAND 10TH
RESPONDENTS



Adv Tötemeyer SC


Assisted
by: Adv Denk



Instructed by: Etzold-Duvenhage