Court name
High Court
Case number
APPEAL 280 of 2008
Title

Power Line Africa (Pty) Ltd v Siemens Ltd and Another (APPEAL 280 of 2008) [2011] NAHC 265 (14 September 2011);

Media neutral citation
[2011] NAHC 265
Coram
Silungwe AJ














7














CASE NO: A 280/2008



IN THE HIGH COURT OF
NAMIBIA



In the matter between:








POWER LINE AFRICA (PROPRIETARY)
LIMITED ….............................................APPLICANT








and








SIEMENS LIMITED
…................................................................................
FIRST
RESPONDENT



BANK WINDHOEK LIMITED
…...........................................................
SECOND
RESPONDENT








CORAM: SILUNGWE , AJ








Heard on: 22nd October 2008



Delivered on: 22rd October
2008



Reasons Delivered on: 14 September
2011



_________________________________________________________________________



REASONS
FOR JUDGMENT



_________________________________________________________________________



SILUNGWE, AJ:
[1] On October 23, 2008, after hearing an application that had been
brought on an urgent basis, I made an ex tempore ruling that
the applicant had failed to meet the requirements of rule 6 (12) with
particular reference to paragraph (b) thereof. In the circumstances,
the Court could not exercise its discretion to condone the
applicant’s non-compliance with the rules of the court for lack
of urgency (MWEB Namibia (Pty) Ltd v Telecom Namibia and Others
(P)A 91/2007(unreported)), and therefore, dismissed the application
with costs, including the costs of two instructed counsel.








[2] Shortly after the
preceding order had been made, the parties brought a settlement
agreement which was made an order of the Court.








[3] The purpose of
writing this judgement is to give reasons for the order for costs. A
brief background leading to the said costs order is set out
hereinafter.








[4] On September 30,
2008, the applicant launched an "urgent application" in
terms of rule 6 (12) for an order declaring that the performance
guarantee (the performance bond) which had been issued by the second
respondent in favour of the first respondent, pursuant to the terms
of a construction contract between the applicant and the first
respondent had expired and become unenforceable as from September 20,
2008. A further order was sought by the applicant against the first
respondent, alternatively, the second respondent, to release and
return the performance bond to the applicant. In addition, orders for
certain interdicts, directions and costs were also prayed for by the
applicant.








[5] On October 1, 2008,
the day of set down, Mr. Coleman and Ms. Van der Merwe appeared for
the applicant and the first respondent, respectively, before
Manyarara, AJ, and the Court made an order as follows:



that by
agreement between the parties, the matter is hereby postponed to
22-23 October 2008 at 9:00 a.m. to be disposed of on an urgent basis
on the following terms:




  1. The first respondent shall deliver
    its answering affidavit by 10 October 2008;



  2. That applicant shall deliver its
    replying affidavit by 17 October 2008;



  3. The applicant shall deliver its heads
    of Arguments by 20 October 2008 and the first respondent shall
    deliver its Heads of Arguments by 21 October 2008;



  4. The second respondent shall not pay
    any sum under the performance guarantee to the first respondent
    pending the decision of the Court;



  5. Costs will stand over.’









[6] Mr. Reinecke, learned
counsel for the first respondent properly submitted that the order
made by the Court on 1st October 2008, to wit, that the
matter should be heard as one of urgency did not dispose of the
question of urgency as the issue was (or must have been) anticipated
to be determined on any of the return days, that is: 22nd
or 23rd October, 2008. In any event, it is clear on the
papers that urgency had not, and could not have, been decided on the
1st of October, 2008, as no opportunity had yet been
accorded for the filing of answering (and replying) papers, in
conformity with, at least, the audi alterem partem rule. It
was further contended that any urgency was self-created by the
applicant who had been made aware of the first respondent’s
intention – through a notice dated 11 September, 2008 –
to exercise its right under clause 4.2 of the General Conditions by
claiming damages under the performance Guarantee.








[7] It is indeed common
cause that on 11 September, 2008, the first respondent formally gave
notice in terms of clause 4.2 of the General Conditions of the
contract between the parties to claim damages against the applicant.
The Notice reads:



"NOTICE OF INTENDED CLAIM AGAINST
PERFORMANCE SECURITY DELAY DAMAGES




  1. The employer has made a determination
    with respect to the delay Damages charged in terms of the above
    contract on 5 August 2008 in terms of which he determined that the
    amount of €1 062 000.00 was due and payable to him due to the
    contractor’s failure to complete the works within the stated
    time for completion.



  2. To date hereof the contractor has
    failed and/or neglected to pay the above amount to the employer.



  3. In terms of clause 4.2 of the General
    Condition of the contract entered into between the parties, the
    employer now notifies the contractor of his intention to make claim
    under the performance security in the event that the said amount
    remains unpaid by 16 September, 2008..."









Under the general
Conditions of the Contract between the parties, the applicant is
referred to as the contactor and the first respondent as the
employer. Although the applicant initially rejected the first
respondent’s determinations referred to in the Notice, it
capitulated and accepted the aggregate claim.








[8] Mr Reinecke further
submited that it was an opportune moment for the applicant to bring
the application on an urgent basis when the notice was received,
rather that to wait for more than a week before it could do so. I
agree that the applicant should have been spurred into action earlier
than 30 September when the application in the matter was launched. To
add insult to injury, the applicant failed to give good and
acceptable reasons for the delay in bringing the "urgent
application".








[9] Rule 6 (12), which
make provision for urgent applications, reads:



6(12)(a) In
urgent applications, the court or a judge may dispense with the forms
and service provided for in these rules and may dispose of such
matter in such time and place in such manner and in accordance with
such procedure (which shall as far practicable be in terms of these
rules) as to it seem meet.



(b) In every affidavit or petition
filed in support of any application under paragraph (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 a hearing in due course".








[10] In terms of Rule
6(12)(b) the applicant must, in his or her founding affidavit, not
only explicitly set out the circumstances upon which he or she relies
that it is an urgent matter, but must also provide reasons why he or
she claims that he or she could not be afforded substantial redress
at the hearing in due course. (MWEB Namibia (Pty) Ltd v Telecom
Namibia and others
(P) A 91/2007(unreported)). In this matter,
the applicant was found wanting in both respects. As regards the
latter requirement, it is common cause that the General Conditions of
Contract between the parties make provision for Arbitration
proceedings in the event of a dispute between them; hence, the
applicant failed to show that it could not be afforded substantial
redress at a hearing in due course. In the circumstances, the Court
could not exercise its discretion to condone the applicant’s
non-compliance with the rules of the Court for lack of urgency. In my
view, the purported urgency was the applicant’s own making.








[11] The aforegoing are
the reasons that led to the costs order.








__________________________



SILUNGWE, AJ









































































COUNSEL FOR THE APPLICANT:



ADV. A. THOMPSON, SC



ADV. A, CORBETT



Instructed by: THEUNISSEN, LOUW AND PARTERS








COUNSEL FOR THE RESPONDENT



ADV. J. J. REINECKE



ADV. L. MORRISON



Instructed by: LORENTZANGULA INC.