NO.: I 177/2010
THE HIGH COURT OF NAMIBIA
the matter between:
Dawn Faith SCHROEDER ….....................FIRST
A J.: 
In this matter the 1st
brought an application for the removal of bar on the 27th
On the 30th
August 2010 a notice to oppose such application was filed by the 1st
The application was initially set down for hearing for the 10th
September 2010. It was on that date postponed for the first time to a
date to be arranged with the Registrar.
On 1 October 2010 an application for a date for the hearing of this
matter was made, in response to which, the 1st
filed a 'Request for a Postponement', of the hearing of the matter
which had been scheduled for the
The ground for requesting such postponement was for purposes of
applying for legal assistance through the office of the Ombudsman.
By way of a notice dated 18 October 2010, the hearing was then set
down for Tuesday 23 November 2010.
On that same date the 1st
filed a document, headed 'Trial Date allocated for 23 November 2010',
in which she purportedly informed the applicants that the Ombudsman
had replied to her request for Legal Aid and that the matter should
not proceed as per attached letter of the Ombudsman which indicated
that the matter was under investigation and as a result of which the
requested that the matter not be set down for 23 November
On the 11th
November 2010 the 1st
also brought an 'Application in terms of Article 12' in which she
gave notice that she intended to apply, in absentia, for the matter
to be postponed sine die for the purpose of a fair hearing, giving
notice also that an affidavit would be deposed to by her and which
would be used in support of this application.
It is to this affidavit that a physiological assessment report from
Dr Juergen Hoffmann was annexed from which it appears that the 1st
was referred for an assessment for purposes of compiling a vocational
expert report regarding her earning potential, pre-incident and
This report did in no manner indicate that the 1st
was unable to represent herself or that she would be unable to appear
in person at any hearing.
On the 23rd
November 2010 the matter was postponed once again to
On 15 February 2011 undercover of a 'Filing Notice', the 1st
informed the applicants that 1st
counsel will be Advocate Ephraim
who, however, would not be available on 15 March 2011 for the hearing
of the above matter.
Notice was also given that said counsel would enter a notice of
representation 'at his earliest convenience' and that 1st
therefore requested a 'convenient postponement'.
No affidavit was annexed to such 'filing notice'.
It appears therefore that the first matter, which requires
determination, today, is the renewed quest, on the part of the 1st
in absentia, to have the hearing of this matter postponed again
It also appears immediately that the 'filing notice' which was given
in this matter does not amount to a substantive application for
postponement and that no explanation is offered what Mr Kasuto's
position currently is, or whether the services of alternative counsel
were sought. There is also no explanation why Mr Kasuto was not able
to, at least, file a notice of representation within the period of
Mr Barnard, who appeared on behalf of 1st
opposed this 'application'.
He agreed with the Court that the non-availability of counsel per se
would not amount to a valid reason for a postponement. In this regard
reference is made to what the Supreme Court stated in Atztec
Granite Pty Limited v Green and Others
NR 399 (SC).
Damaseb J P in a recent decision handed down in the unreported High
Court case of Vincent
Hailulu v The Anti Corruption Commission & Five others
number I 2191/2009, delivered on 11 November 2010, stated at page 33
of his judgement that
The principles for the consideration of a postponement are settled.
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. An application for postponement must be bona
fide and must not be used as a tactical manoeuvre. A Court should be
slow to refuse a postponement where the true reason for a party's
non-preparedness has been fully explained and is not due to delaying
tactics. The overriding consideration and the Courts exercise of the
discretion whether or not to grant a postponement is the need to do
substantial justice between the parties. The Court is principally
concerned with one question, what is the prejudice to be suffered by
the party adversely affected by the postponement and can it be cured
by an appropriate order of costs. It must now be accepted as settled,
that it is unacceptable to assume that as long as the opponents
prejudice is satisfactorily met with an appropriate cost order
nothing else matters."
It is indeed so in this matter that the 1st
gave timeous indication that the matter might again be postponed due
to the non- availability of counsel, but it appears however that it
should be of concern whether or not this renewed attempt, at securing
a postponement, in a technically deficient manner, is bona
whether or not a further postponement is really in the interests of
justice, or put otherwise, would do substantial justice between the
Relevant in this regard is that the 1st
quite competently was able to issue summons, to which particulars of
claim, under the 1st
own hand, are annexed. It appears that the 1st
has some knowledge of the Rules of Court and that she was therefore
able to draft an Application for Default Judgement in which she also
discloses technical expertise in that she attacks the validity of the
applicants' notice to defend as same was delivered allegedly without
a valid resolution and power of attorney.
was also competent enough to file the Notice of Bar which has become
the central point of focus of this application.
It appears further that she also appeared in person, in Court, at the
hearing of the 27th
Finally it needs to be mentioned in regard to the 1st
competence that she was also able to file a substantive application
for a postponement on the 11th
It must therefore be accepted that the 1st
was acutely aware of the requirements of a substantive application,
as a necessary vehicle for securing a further postponement, also on
this latest occasion.
Once the 1st
however launched their Application for the Removal of Bar, the 1st
stance and modus
dramatically. All of a sudden she required legal assistance. This, of
course, is her good right, but why, all of a sudden, her stance
changed in this regard is not explained at all? Particularly and why
she abandoned her quest to represent herself, once faced with a
relatively simple interlocutory application, remains unclear.
The upshot of such a change in attitude was that this stance resulted
in a number of postponements since the matter was first postponed on
September 2010, which delayed the adjudication of a simple
interlocutory application by some six months. This smacks of a
tactical manoeuvre and impacts negatively, in my view, on the bona
Ultimately her stance brought about a situation where the main action
could also not progress at all, until this interlocutory matter would
have been disposed of.
In such circumstances the question has to be asked whether or not a
further postponement, - to some unknown date, - i e. until such time
counsel might become available - and might eventually deem it fit to
enter his 'notice of representation' - at his so called 'earliest
convenience', -would be in the interests of justice.
The related question, which immediately arises, is whether or not
this would be the type of postponement where the resultant prejudice
could simply be cured by a cost order?
I believe the answer to these questions must be answered in the
Even if I am wrong it is clear from Justice Damaseb's judgment that
these factors are not the only considerations, which come into play.
At paragraph 34 of the aforesaid judgment the following is stated:
the litigation process litigants and their legal practitioners have a
duty not only towards each other but also towards the Court and the
interests of the administration of justice. A litigant's duty is to
avoid conduct that imposes a supererogatory cost burden on the
opponent. The duty towards the Court and the interests of the
administration of justice has two aspects to it: the first is the
convenience of the judge assigned to hear the case and second is the
proper functioning and control over the Court roll. When an
indulgence is sought from the Court, the litigants'duty towards the
Court and the interests of the administration of justice was stated
as follows by this Court:
The grant of an indulgence for failure to comply with Rules of Court
or directions is in the discretion of the Court to be exercised
judicially. Lack of prejudice to the opposing party is an important
consideration in assessing whether or not to grant condonation -but
in this day and age it cannot be the sole criteria. In my view, the
proper management of the roll of the Court so as to afford as many
litigants as possible the opportunity to have their matters heard by
the Court is an important consideration to be placed in the scale in
the Court's exercise of the discretion whether or not to grant an
is a notorious fact that the roll of the High Court is overcrowded
many matters deserving a placement on the roll do not receive Court
time because the roll is overcrowded. Litigants and their legal
advisors must therefore realise that it is important to take every
measure reasonably possible and expedient to curtail the cost and
length of litigation and to bring them to finality in a way that is
least burdensome to the Court.
hope it does not reveal a of streak of immodesty for me to state that
from the vantage point as head of this Court I know that the
Registrar invariably has files awaiting allocation to Judges who
might become free. It is important therefore for the Court
administration to know in good time that the Judge is going to become
free from an assigned case so that new case(s) are allocated to such
judge with sufficient reading time before the case is called. This
reality can no longer be an irrelevant consideration in whether or
not an indulgence should be granted or a party should be mulcted in
costs and to what extent".
His Lordship then continues to set out the factors, which a Court
should take into account.
In my view this is also the further area in which the 1st
'application' for a postponement falls short. All the above raised
considerations apply to this case.
Ultimately it is in the interests of justice, and so it would appear,
also in the interest of all parties herein, that the issue of the
applied for removal of bar be disposed of without further delay.
This would either bring finality to the 1st
application for Default Judgement or if granted would allow the
applicants to plead their case. In both instances the litigation
initiated by the 1st
would be advanced one stage nearer to completion.
Finally Damaseb JP made it clear in paragraph 36 of his judgement
that an applicant for a postponement also bears the onus and should
make out a case on the papers, which the Applicant, here, has simply
not done. A postponement, particularly a repeated request for a
postponement, is not simply to be had for the asking, this is what
In the result and taking into account all the abovementioned factors
I exercise my discretion against the granting of a further
This leaves the application for the removal of bar.
The circumstances which led to the out- of- time filing of the 1st
plea were set out in an affidavit explaining, that, the late filing
thereof, came about as a result of a mistaken calculation of the
applicable Court days, which erroneously took into account a day as a
public holiday when this clearly should not have been so.
As a result of such miscalculation, and in the bona
mistaken belief that sufficient time was left to file the 1st
plea, such plea was filed on the 21st
May 2010 instead of the 20th
The application for removal of bar was also brought without undue
delay and is bona
There simply was no reckless or intentional disregard of the rules of
What is more, it appears from such plea that the applicants have set
out a number of prima
to the 1st
claims. This appears for instance from paragraphs 6 to 13 of such
Ultimately and considering the aspect of prejudice it would appear
that, should the relief sought not be granted, this would indeed
allow the 1st
'to snatch a technical advantage' which would have the effect of
shutting the doors of the Court in the face of the applicants. Surely
this cannot be in the interests of justice in
appears therefore that the applicants have satisfied the requirements
set out in the case of TransNamib
v Essjay Ventures Limited 1996 NR188 HC
page 193 G - I, which also cites with approval what was stated by the
Court in Smith
N O v Brummer N O and Another
(3) SA 352 (O) at page 358G.
Mr Barnard also urged me to award the costs of the application for
the removal of bar to the applicants as 1st
opposition to the application was frivolous. I need to state that, in
the circumstances of this matter, and as appears from the history set
out above, that the 1st
never filed any substantive answering affidavits in response to the
application for the removal of bar. Accordingly the grounds of the
intended opposition were never disclosed to the Court and it
therefore becomes speculative as to whether or not any substantial
grounds of opposition would ever have been disclosed. In such
circumstances I decline to make the order prayed for.
I therefore find that the application for the removal of bar must
succeed and accordingly the following orders are made.
application for a further postponement is dismissed with costs.
notice of bar, dated 11th
May 2010, as delivered by 1st
is hereby removed and uplifted.
in the main action instituted by 1st
herein, are granted leave to deliver their plea within ten days of
the granting of this order.
BEHALF OF THE PLAINTIFF
BEHALF OF DEFENDANT