Court name
High Court
Case number
237 of 2011
Title

Maletzky and Another v Market Motors CC and Others (237 of 2011) [2012] NAHC 204 (25 July 2012);

Media neutral citation
[2012] NAHC 204
Coram
Parker J





CASE NO







Unreportable’








CASE NO.: A 237/2011








IN THE HIGH COURT OF
NAMIBIA













In the matter between:













AUGUST MALETZKY
...........................................................................First
Applicant



EDWARD JEFFREY PLATT
…........................................................Second
Applicant








and








MARKET MOTORS CC
….................................................................First
Respondent



SANTAM NAMIBIA
…..................................................................Second
Respondent



DEPUTY-SHERIFF OF THE
HIGH COURT …................................Third
Respondent













CORAM:
PARKER J








Heard on: 2012 July 18



Delivered on: 2012 July
18 (ex tempore)



Delivered on: 2012 July
25 (reasons)



_________________________________________________________________








JUDGMENT



_________________________________________________________________


PARKER
J
: [1] In this matter the applicants brought application by
notice of motion and prayed for the orders appearing in the notice of
motion. The first respondent moved to reject the application. I take
it that the second and third respondents will abide by the decision
of the Court: they have not answered to the application. There being
no appearance for the applicants at the hearing of the application,
as explained in some detail infra, Dr Akweenda, counsel for
the first respondent, submitted that in the circumstances the
application should be dismissed with costs. I accepted counsel’s
submission and dismissed the application with costs, and I added then
that reasons therefor would follow in due course. The following are
the reasons.






[2]
On 26 January 2012, upon the appearance of Ms Rix, counsel for the
first respondent, and there being no appearance for the applicants,
by themselves or by counsel, the Court made an order thus:







The
parties and the legal representatives (if applicable) must attend
status hearing in open court at 09h00 on 1 March 2012, and in that
behalf their attention is drawn to rule 37(16) of the Rules.






On
1 March 2012, the following occurred. Upon the appearance of Mr
Maletzky, the first applicant in person, Mr Platt, the second
applicant in person and Ms Rix the Court issued the following order
in terms of rule 6 (5C):









  1. The
    parties and the legal representatives (if any) must hold at 09h00 on
    20 March 2012 in the Chambers of Adv. Akweenda a case management
    meeting for the purpose of preparing a case management report in
    terms of rule 6 (5A)(b) of the Rules and must on or before 15 March
    2012 submit to the managing judge a report pursuant to rule
    6(5A)(c), read with (d) thereof, of the Rules.










  1. The
    parties and the legal representatives (if any) must attend case
    management conference in open court at 09h00 on 5
    April 2012
    .










  1. The
    attention of the legal representatives (if any) is drawn to rule
    37(14) and (16) of the Rules.









Thereafter, on 5 April
2012 the following occurred. Upon the appearance of Mr Maletzky, the
first applicant in person, and Mr Platt, the second applicant in
person, and Adv. Akweenda, for the first respondent, and having had
regard to the parties’ joint case management report, and having
had further regard to the fact that the issues were straightforward,
the Court issued the following order in terms of rule 6(5B):









  1. The
    respondents’ legal representatives and the applicants must
    file heads of argument in accordance with the Consolidated Practice
    Directions.










  1. Set
    down hearing date: 18 July 2012 at 09h00.








Then
at the commencement of the present hearing and as an indulgence to
the applicants, I caused the Court orderly to announce the names of
the applicants through the corridors up to the Main Gate of the
Court, as is the usual practice, to call them to the hearing. There
was no response from any of them.






[3]
I have sketched the aforegoing for a purpose and good reason. It is
to demonstrate irrefragably that by their conduct the applicants
evinced a clear and unmistakable intention, without any explanation,
not to move their application for which they had dragged the
respondents to court. It is the applicants’ application, and
they refused or failed to appear in order to move it. In such a
situation I do not find any good reason why the train of justice
should wait for the applicants to board at their whims and caprices
and convenience (Hendrik Christian t/a Hope Financial Services and
Others v LorentzAngula Inc and Others
Case No. A 244/2007
(Judgment delivered on 22 March 2012) (Unreported)); and what is
more, I do not see any good reason why rule 40(3) of the rules which
applies to actions should not apply with modifications by context to
applications, and, furthermore, I also invoke rule 37(16) of the
Rules. Having taken into account all these considerations, the only
reasonable and fair order to make was, therefore, as Dr Akweenda
submitted, to dismiss the application with costs; and such costs were
to include costs occasioned by the first respondent’s
employment of one instructed counsel and one instructing counsel.

















_______________



PARKER J















ON BEHALF OF THE
APPLICANTS:
No Appearance













COUNSEL ON BEHALF OF
THE FIRST RESPONDENT:



Adv. Dr. S Akweenda








Instructed by: Rix &
Co.


















ON BEHALF OF THE
SECOND AND



THIRD RESPONDENTS: No
Appearance