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 54

















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
JOSOB

….............................................................................
8th
APPLICANT





REGINA
JOHANNA BARKER
…..........................................................9TH
APPLICANT





WILHELMINA
SWARTZ

….................................................................
10th
APPLICANT





HEINZ
THIRO

…..................................................................................
11THAPPLICANT







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 & PFEIFFER

…...............................................
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

….......................................
14thRESPONDENT


THE
DEPUTY SHERIFF FOR WINDHOEK

…................................
15th
RESPONDENT


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











CORAM:
VAN NIEKERK J, SWANEPOEL, J
et
SHIVUTE,
J



Heard on: 29 November
2010 Delivered: 24 February 2011










JUDGMENT











SWANEPOEL,
J:
[1]
Since 19 September 2008 conflicting decisions subsist on the
question whether or not it is a pre-requisite to make a request or
give a notice in terms of Rule 30(5) before an application in terms
of Rule 30(1) of the High Court Rules is launched as to an alleged
irregular step or proceeding. On the one hand there are the
decisions requiring a notice namely
Standard
Bank of Namibia Limited v Nationwide Detectives and Professional
Practitioners cc,
(case
no.I 811/2007, an unreported judgment delivered on 11 July 2008) and
Hendrik
Christian t/a Hope Financial Services and Hewat Samuel Jacobus
Beukes v Namibia Financial Institutions Supervisory Authority
(case
no. A 273/2009, an unreported judgment delivered on 07 October
2009). In the latter judgment the interpretation and application of
rule 30 as found in
Arlene
Beukes v Erica Beukes and Another
Case
No A 22/2009 (Unreported) were reiterated and followed. On the other
hand there is the judgment of
Ondjava
Construction CC & Others v HAW Retailers t /a Ark Trading
2008
(1) NR 45 (HC) delivered on 19 September 2008 wherein it was decided
that no notice is required prior to a rule 30(1) application.















[2] In proceedings in
this matter before Hoff, J on 20 April 2009 the presiding judge







inter alia said the
following:



"Also in the
light of legal certainty I think it is imperative at this stage
that
a full bench of this Court decides this matter once and for
all. I have
discussed it with the Judge President as well as with
the Registrar of this
Court "







[3] The matter was then
referred to the Full Court as provided for in section 10(1) of the
High Court Act, Act No. 16 of 1990 ("the High Court Act").















[4] The applicants are
not represented by any legal practitioner and all appear in







person
save for the 4
th,
5
th,
7
th,
12
th,
13
th,
16
th
and
17
th
applicants
who were not



present
in Court when the case was called. The 13
th
applicant
joined after the tea adjournment as well as Terence Noble, the 7
th
applicant.











[5] None of the
applicants filed any Heads of Argument as required by the practice
of this Court, but instead filed a "STATEMENT BY APPLICANTS ON
RULE 30 APPLICATION(S) BEFORE FULL COURT ON 29 NOVEMBER 2010 at
14h55 ON 24



November
2010 (hereinafter the statement). It was co-signed by the 1
st,
2
nd,
3
rd,
5
th,
8
th,
9
th,
11
th,
13
th,
14
th,
15
th,
and 16
th
applicants.











[6]
Mr Totemeyer SC together with Mr Denk appear on behalf of the 6
th
and
9
th
respondents
instructed by legal practitioners Fisher, Quarmby and Pfeiffer as
well as for 7
th
and
10
th
respondents
instructed by legal practitioners Etzold-Duvenhage.







[7]
No objection was taken against the aforesaid Statement by the
applicants and Mr Beukes, the 2
nd
applicant,
delivered same on behalf of all the applicants with certain
amplifications.











[8]
The Court order preceding the constitution of this Court reads as
follows:
"IT
IS ORDERED







1.
That
the matter is postponed to the full bench for a date to be
arranged
with the Registrar and in respect of one issue only, to
wit:



Whether it is a
prerequisite for an applicant to give notice in terms of Rule 30(5)
before bringing a Rule 30(1) application?




  1. All those parties
    who have an interest in the outcome of the matter, when it is
    argued before the full bench, may join in the proceedings in
    accordance with the Rules of Court.



  2. No order as to
    costs."












[9] Despite my finding
that the Statement is not strictly relevant to the issue presently
before court, it was decided to hear arguments thereon and I will
briefly touch on some of the issues raised therein:



"1. There is no
Rule 30 application before the Court. There is no respondent legally
before the Court."







The applicants inter
alia made the statement that:



"1.1
Two Rule 30 applications were set down by 6
th
and
9
th
Respondents
and



7th
and
10
th
Respondents
respectively for 13
th
November
2009. 1.2 On 13 November 7
th
and
10
th
respondents
failed to appear and counsel for 6
th
and
9
th
respondents
misinformed the Court that he was appearing for 7
th
and
10
th
respondents."











This Statement was
probably based on the wording of the Court Order of the



proceedings
before Silungwe, AJ issued by the Registrar on 13
th
November
2009



which
indicated that Mr Denk appeared only on behalf of the 7
th
and
10
th
respondents.



However, in his
introductory submission Mr Totemeyer handed up a certified copy of



the proceedings of that
day where the following inter alia appears:



"Mr
Denk
:
The applicants are before your Lordship, I appear for 7, 10,



6
and 9 respondents my Lord.
Court:
7, 10, 6 and 9?



Mr
Denk
:
It is two different instructing counsels.
Court:
That you are representing those?
Mr
Denk
:
Yes.


Court:
So you are representing 6, 7, 9 and 10.
Mr
Denk
:
Yes my Lord."







The
aforesaid prompted the 2
nd
applicant
to exclaim that same was a fabrication and that fraud had been
committed. In the same breath he asked the Court:
"May
we be excused?"



The
request was granted and the 2
nd
applicant
left the Court together with all the other applicants. Needless to
say that Mr Totemeyer recorded his objections to the serious
allegations made. I consequently find in any event that there is no
merit based on the aforesaid statement that the 6
th,
9
th,
7
th
and
10
th
respondents
were not before the Court.







[10] Before the record
of the proceedings was handed up by Mr Totemeyer, Mr



Beukes amplified the
Statement and submitted as a further objection that by virtue of



the provisions of Act 10
of 2001, the full Court had been "replaced" with the
Supreme



Court and for that
reason this Court has no jurisdiction to hear this matter. This



submission is based on
an incorrect reading and interpretation of section 3(a) of Act



10 of 2001 which
substituted section 2 of the High Court Act, as same only pertains
to



appeals as follows:



"(2) An appeal
from any judgment or order of the High Court in civil proceedings
shall be -



(a)
in
the case of that court sitting as a court of first instance,
whether
the full court or otherwise, to the Supreme Court,
as of right,
and no leave shall be required;



(b) "



As
such the present application has nothing to do with an appeal
referred to in the said section 2 of the High Court Act. In any
event, section 10(1)(b) of the High Court Act provides that a
"single
judge may at any time discontinue the hearing of any matter being
heard before him or her and refer it for hearing to the full court."











[11] The aforesaid
finding (in paragraph [9] above) on whether all four respondents are
before Court, also takes care of the next 3 statements, to wit:



"2.
The full Court acted outside its jurisdiction to expel 14 applicants
for no express reasons and to embrace all four respondents, who had
no application on the roll, had failed to place it on the roll with
an application for condonation as required by the rules of Court. It
acted outside its jurisdiction to postpone a non-matter.
(I
interpose here to mention that a reading of the Court record in no
way supports the statement that 14 applicants were expelled by the
Court.)




  1. The re-enrolment
    of the matter by the Court mero motu falls rankly outside the
    jurisdiction of the Court. Nothing in law bestows the power on or
    remotely suggests that the Court itself may initiate or bring
    applications on behalf of the party to a dispute.



  2. The Full Court
    acted outside its Constitutional genesis by extending the Bench to
    include the respondents."








[12] The last issue in
the Statement calling for comment is paragraph 5 which reads as
follows:



"The judgment
postponing this matter and inviting all and sundry with an interest
in the outcome of the matter falls outside the spirit and the letter
of the Constitution and the Law. The order is ultra vires the
Court's competence."







[13] Paragraph 2 of the
order of Court dated 27 April 2010 referred to in paragraph 8



supra was included as a
consequence of Mr Beukes's address to the Court on that


day
wherein he said the following:



"My Lords and My
Lords and Lady, a further question of concern is that the number of
Rule 30s, even in the ranks of the Applicants, are pending and that
these people have legal interest in having to be joined in that
Application. Surely it is surprising, it is just surprising that
this rush to have a Rule 30 Application which obviously need a lot
of ventilation and a lot of thought, especially because it is
referred to the full bench, it is surprising to us that people who
have interest in this matter, that these people are left out in this
Rule 30. Surely, those people who are already enrolled and whose
matters have been set down, under circumstances like that, as far as
I understand the rules, the Court will tend to join this Rule 30s.
Because there is a question of law that must be determined. Now to
me it seems chaotic to have a full argument now and in two months we
have the same argument with a different set of Applicants and two
months after that, I know that there are Rule 30s set down right up
to September this year. Now, I humbly ask whether the Court will not
consider it very chaotic that we are actually descending in the same
sort of scenario or setting the stage for the same sort of scenario
where we may develop different authorities, on the same question.
And where we will have to probably refer the matter somewhere else,
when such authorities might be developed. But this is something, I
ask the Court's indulgence to make such a remark because it is the
Court's decision, it is not mine...."







[14] Furthermore,
bearing in mind the many unrepresented applicants in similar matters
before the High Court, it was only a re-statement of the law that
anyone with an interest may apply in terms of the Rules of Court to
join or be joined. In my view the invitation by the Court falls
squarely in the spirit and letter of the Constitution. In any event,
no person made an application for joinder. Only Mr August Maletsky
sought leave to hand up heads of argument to make some submissions,
which was refused as he is not a party to these proceedings nor has
he formally applied to be joined.



[15] I now turn to the
question this Court has to decide as stated before. Rule 30 of the
High Court and Rule 30 of South Africa before 1996 are identical and
read as follows:



"30(1) A party
to a cause in which an irregular step or proceeding has been taken
by any other party may, within 15 days after becoming aware of the
irregularity, apply to court to set aside the step or proceeding:
Provided that no party who has taken any further step in the cause
with knowledge of the irregularity shall be entitled to make such
application.




  1. Application in terms
    of sub-rule (1) shall be on notice to all parties specifying
    particulars of the irregularity or impropriety alleged.



  2. If at the hearing of
    such application the court is of opinion that the proceeding or
    step is irregular or improper, it may set it aside in whole or in
    part, either as against all the parties or as against some of them,
    and grant leave to amend or make any such order as to it seems meet



  3. Until a party has
    complied with any order of court made against him or her in terms
    of this rule, he or she shall not take any further step in the
    cause, save to apply for an extension of time within which to
    comply with such order.



  4. Where a party fails
    to comply timeously with a request made or a notice given pursuant
    to these rules, the party making the request or giving the notice
    may notify the defaulting party that he or she intends, after the
    lapse of 10 days to apply for an order that such notice or request
    be complied with, or that the claim or defence be struck out, and
    failing compliance within the 10 days, application may be made to
    court and the court may make such order thereon as to it seems
    meet".




The South African rule
30(5) was subsequently deleted and substituted with the following;



"30A (1) Where a
party fails to comply with these rules or with a request made or
notice given pursuant thereto, any other party may notify the
defaulting party that he or she intends, after the lapse of 10 days,
to apply for an order that such rule, notice, or request be complied
with or that the claim or defence be struck out.







(2) Failing
compliance within 10 days, application may on notice be made to the
court and the court may make such order thereon as to it seems
meet."







[16]
Hoff J has in the Ondjava-case
(supra)
in
a, with respect, well reasoned judgment inter alia analysed and
discussed the provisions of rule 30 in detail with inter alia
references to South African cases
Khunou
and Others v M Fihrer & Son (Pty) Ltd and Others
1982(3)
SA 353 W;
Absa
Bank Ltd v The Farm Klippan 490 CC
2000(2)



SA
211 (W) and
Norman
& Co (Pty) Ltd v Hansella Construction Co (Pty) Ltd
1968(1)



SA 503 T. Aware thereof
that same were not binding on the Namibian High Court, he



found the reasoning
thereof convincing and adopted same as also being applicable to



our
rule 30. He also found that the
Standard
Bank v Nationwide Detectives
case



(supra) was wrongly
decided because of a misplaced reliance on non-applicable case



law
and an obvious oversight of existing governing case law
(Hansella
and
Absa
Bank



cases
infra).
I
content myself with some of the extracts of the
Ondjava
case:



"[22] Prior to
December 1996 the South African rule 30(5) was worded exactly the
same as our rule 30(5) and thus South African case law on the
application and interpretation of rule 30(5), although not binding,
may be persuasive authority.





Trollip J (as he then
was) considered the applicability of the provisions of rule 30(5) in
respect of rule 21(6) in Norman & Co (Pty) Ltd v Hansella
Construction Co (Pty) Ltd 1968 (1) SA 503 (T) and concluded at 504E
- G as follows:







"... the general
rule in Rule 30(5) was obviously intended to apply in all those
cases where a particular Rule did not itself provide for a special
sanction for non-compliance with a notice or request, as, for
example, in Rules14(5), 14(9), 36(2) and 37(1). But where such
special sanction was provided as, for example, in Rules 21(6) and
35(7), that was to apply instead of Rule 30(5). To try to read such
Rules with and subject to Rule 30(5) would be not to supplement them
but to supercede or destroy them. In fact, if Rule 30(5) does apply
then Rule 31(6) would have been quite unnecessary and can be
ignored. That could never have been the intention."







[23] In my view, the
reference to rule 31(6) (supra) is erroneous and should read rule
21(6). There was no rule 31(6).







[24] Rule 30(5) was
deleted by subsequent legislation in South Africa and substituted
with rule 30A which reads as follows:




  1. Where a party fails
    to comply with these rules or with a request made or notice given
    pursuant thereto, any other party may notify the defaulting party
    that he or she intends, after the lapse of 10 days, to apply for an
    order that such rule, notice, or request be complied with or that
    the claim of defence be struck out.








Failing compliance
within 10 days, application may on notice be made to the court and
the court may make such order thereon as to it seems meet.





[25] In Absa Bank Ltd
v The Farm Klippan 490 CC 2000(2) SA 211 (W) Eksteen AJ supported
the reasoning of Trollip J (in Hansella) and stated the following at
213G-H:







'Certainly the old
Rule 30(5) was out of place in a Rule where all the other subrules
of Rule 30 deal with irregular proceedings. It is not an irregular
proceeding to fail to comply with a request or notice. It therefore
does seem anomalous that the old Rule 30(5) was used to compel
compliance with Rules which did not within themselves provide a
specific remedy or sanction. What is now clear is that Rule 30A is
the procedure to use where a party wishes to compel compliance with
a notice or request given in terms of those Rules which have no
special remedy for failing to comply or respond



thereto.' "











Hoff J concluded as
follows:



"[26] I support
the passages quoted (supra) in the Hansella and Absa Bank cases and
accordingly find that the provisions of our rule 30(5) are not
applicable to the rest of the subrules of rule 30."







[17]
The abovementioned finding was in direct conflict with Parker J's
finding in the
Christian-Namfisa-case
(supra)
where
he relied on a former judgment by himself in
Arlene
Beukes v Erica Beukes and Another
case
No. A22/2009 wherein the following was stated:



"In my view, the
aforementioned second preliminary objection relates to a step that
amounts to an irregularity or impropriety of form within the meaning
of rule 30 of the Rules of Court, and it is my opinion that it would
rather have been more efficacious if the applicant had taken the
route open to her by rule30; in which case the respondent would have
been given the opportunity of removing the cause of the complaint in
terms of rule 30 (2). The applicant did not follow this simple
procedure whose efficacy lies in the fact that a party which has
taken the irregular or improper step complained of is given the
opportunity to remove the cause of the complaint without the
immediate intervention of the Court. The Court may enter on the
scene to set aside the irregularity or impropriety only if the
offending party has failed to remove such complaint; and moreover,
in that event, that party is not even permitted to take any further
step in the matter unless and until that party has complied with any
order of the Court in that regard".











[18] Mr Totemeyer made
the submission with which I agree that rule 30(1) and rule 30(5) are
mutually exclusive and if rule 30(5) is applied to rule 30(1) - (4)
same would lead to absurdities. He further submitted that the
reference to rule 30(2) in the abovementioned citation leaves one
with the inescapable inference that when the learned judge delivered
the two judgments he had the substituted rule 30(2) read with rule
30(1) of South Africa in mind, which was of course not applicable in
Namibia. Our rule 30(2) is clear and unambiguous and only prescribes
how the irregularity or impropriety in terms of rule 30(1) should be
specified in the notice of application.











[19]
I am in respectful agreement with the reasoning and finding by Hoff
J in the
Ondjava
matter
which in my view correctly reflects the law on the interpretation of
Rule 30 in Namibia. That said, I am furthermore of the view that
there is merit, through the correct channels, to advocate for
substituting our present Rule 30(5) on similar lines as in South
Africa which would make the rule more readily understood.



[20] In the result the
question posed above is answered as follows:







It is not a prerequisite
for an applicant to give notice in terms of Rule 30(5) before
bringing a Rule 30(1) application.















[21] The following
orders are made:




  1. The
    decision on the merits of the rule 30 application is referred back
    to the court
    a
    quo.



  2. The
    applicants (save for the 4
    th
    and
    17
    th
    applicants
    who neither signed the statement nor were present nor have made
    submissions in Court) are ordered to pay the costs of these
    proceedings which costs shall include the costs of the two
    instructing counsel (messrs Fisher, Quarmby & Pfeiffer and
    Etzold Duvenhage) and their two instructed counsel.


























SWANEPOEL, J















I concur






















VAN NIEKERK, J





I
concur





SHIVUTE,
J








ON BEHALF OF THE
APPLICANTS In Person




















ON
BEHALF OF THE 6
th
and 9th
RESPONENTS















Instructed by:















ON
BEHALF OF THE 7
th
and
10
th
RESPONENTS















Instructed by:



Adv. Totemeyer S.C
assisted by Adv. Denk Fisher, Quarmby & Pfeiffer










Adv. Totemeyer S.C
assisted by Adv. Denk Etzold-Duvenhage