Court name
High Court
Case name
Khomas Investments Three Seven CC and Another v Maivha Construction CC
Media neutral citation
[2012] NAHC 235
Judge
Smuts J





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE







HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK







JUDGMENT



Case No: A 170/2012








In
the matter between:





KHOMAS
INVESTMENTS THREE SEVEN CC
...............................1ST
APPLICANT


VILLA
INVESTMENTS THREE SEVEN CC
....................................2ND
APPLICANT


and


MAIVHA
CONSTRUCTION CC
..........................................................RESPONDENT





Neutral
citation:
Khomas Investments Three Seven CC v Maivha
Construction CC
(A 170/2012) [2012] NAHCMD (30 August 2012)


Coram:
SMUTS, J


Heard
on:
15 August 2012


Delivered
on:
30 August 2012



_______________________________________________________________







ORDER



_______________________________________________________


The
application is struck from the roll, with costs, which include the
costs of one instructed and one instructing counsel.






____________________________________________________________







JUDGMENT



_______________________________________________________________


SMUTS,
J







  1. The
    first applicant, a property developer, entered into a construction
    contract with the respondent, the building contractor, to develop 22
    townhouses on property in Khomasdal owned by the second applicant.
    The parties signed a building contract and the construction works
    started soon afterwards in September 2011.








  1. Although
    it is common cause between the parties that they had entered into
    the agreement, the respondent states that it does not set out its
    full extent and that the further terms agreed upon between the
    parties. Most importantly for purposes of the respondent’s
    case is its assertion that it only agreed to construct the
    superstructure for the
    22 sectional title units and not
    completed entities as is contended by the applicants. Disputes
    between the parties started soon after the commencement of the
    construction work. The project also ran behind schedule. Despite an
    addendum to the agreement to extend time limits, the project was not
    completed in time. The parties then made accusations concerning the
    other as to the cause of the difficulties. On 5 June 2012, the
    respondent’s legal practitioners declared a dispute in the
    matter. The applicants’ legal practitioners soon afterwards on

    15 June 2012 served a notice of cancellation of the building
    contract upon the respondent, alleging breaches of that agreement.








  1. The
    respondent’s legal practitioners responded to the letter of
    cancellation on the same day, 15 June 2012 and asserted that monies
    were due to it by the first applicant and further asserted that it
    would exercise its builder’s lien over the building works.







  1. The
    applicants however contend that the respondent is not validly
    exercising a builder’s lien. Their principal argument rests
    upon the value of the works done by the respondent in denying that
    the first applicant owes any money to the respondent. The applicants
    refers to a report by quantity surveyors engaged by them to the
    effect that the value of the completed work at that stage was
    N$1,035,883.77, constituting less than 35% of the total value of the
    building price of just over N$3 million.







  1. The
    respondent on the other hand approached a different firm of quantity
    surveyors who valued the work performed by the respondent in a sum
    in excess of N$4 million.







  1. It
    soon became clear that the applicants disputed the respondent’s
    entitlement to exercise a builder’s lien and also in the
    founding papers disputed the validity of the lien itself.







  1. The
    applicants have brought this application as a matter of urgency
    seeking to interdict the respondent and its employees from
    interfering or obstructing or preventing the applicants’
    building operations on the building site.







  1. This
    application was dated 2 August 2012 but served on the respondent at
    its legal practitioners on the afternoon of the following day. It
    was set down for 9 August 2012. Shortly before the set down, the
    parties agreed to a short postponement to enable the respondent to
    file an answering affidavit which was done on 10 August 2012.







  1. The
    applicants’ replying affidavit was however filed late on
    13
    August 2012 and only made available to the respondent’s
    instructed counsel on the date of hearing, 14 August 2012. The
    respondent’s counsel requested time to read and consider the
    relatively lengthy replying affidavit (in excess of 40 pages with
    several annexures). The matter then stood down for argument on 15
    August 2012.







  1. Mr
    Dicks who represented the respondent argued that the matter had not
    been properly brought as one of urgency and that any urgency was
    self-created on the part of the applicants and that the application
    should be struck from the roll for this reason alone. The respondent
    also opposed the application on other grounds and contended that,
    given that the relief would be final in nature as it would bring
    about the end of the builder’s lien, disputed facts should be
    approached in accordance with what has become known as the
    Stellenvale-rule
    1
    thus on the basis of what is
    contained in the respondent’s answering affidavit where the
    facts are disputed.







  1. Mr
    Corbett on the other hand who appeared for the applicants submitted
    that the application was properly brought as one of urgency and that
    the delay in bringing the application was fully explained,
    particularly in the replying affidavit after this aspect had been
    challenged by the respondent.







  1. Mr
    Dicks referred to the fact that the respondent had already on 15
    June 2012 made known that it asserted its builder’s lien and
    that it soon appeared that the applicants took issue with this. Yet,
    he pointed out, that the application was only brought more than 6
    weeks later and served with very short notice upon the respondent.
    He referred to the incident on 17 July 2012 canvassed in the papers
    in which the applicants’ legal practitioner had attended at
    the site together with his client in a bid to evict the respondent
    from the site. On this occasion there was an exchange between the
    parties’ legal practitioners telephonically, culminating in
    the applicants’ legal practitioner threatening the bringing of
    an urgent application the following afternoon. This was confirmed in
    writing on the following day by the respondent’s legal
    practitioner. A few days later and on 20 July 2012 the applicants’
    legal practitioner of record again complained about the respondent’s
    occupation of the building site and again threatened to lodge an
    urgent application. These developments were referred to in the
    founding affidavit. The next development referred to in that
    affidavit in the context of urgency was the further statement that
    counsel was instructed on 30 July 2012 to prepare papers, after
    further documentation was sought, the papers were settled by 2
    August 2012 and the application launched on the following day, 3
    August 2012.







  1. No
    explanation was provided in the founding affidavit for the delay
    from the commencement of the exercising of the lien on
    15 June
    2012 to the date of bringing the application except for the events
    stated. More importantly, no explanation is provided for the failure
    to bring an application after it was threatened already on
    16
    July 2012 by the applicants’ legal practitioner who said that
    it would be brought overnight. The threat of an urgent application
    was reiterated a few days later on 20 July 2012 but no explanation
    is given in the founding papers for the delay between 20 July 2012
    and
    30 July 2012.







  1. In
    the respondent’s answering affidavit this aspect was addressed
    in some detail with the respondent’s squarely taking issue
    with the urgency with which the application was brought. In the
    replying affidavit, it is explained that instructed counsel had been
    briefed already on 11 July 2012 but had only on 25 July 2012
    indicated that he was not available. There was an attempt to brief
    other identified instructed counsel following this although no date
    was stated as to when the second counsel was approached. But it is
    stated that on 27 July 2012 he indicated that he was not available
    to assist with the urgent application. It was then stated that the
    current counsel was approached on 27 July 2012 and a consultation
    arranged for
    30 July 2012.







  1. Mr
    Dicks submitted that the explanation provided was inadequate and
    that it should in any event have been set out in the founding
    affidavit.







  1. Whilst
    this Court has recognised that there are varying degrees of urgency
    including in commercial matters, it has been repeatedly emphasised
    that it is incumbent upon applicants to demonstrate with reference
    to the facts of the specific matter that they are unable to receive
    redress in the normal course and that the facts of their matter
    would justify the urgency with which the application has been
    brought. It has also been repeatedly stressed that applicants would
    need to show that they have not created their own urgency and that
    the respondents have been afforded sufficient opportunity to deal
    with the matters raised.
    2







  1. It
    has also been stressed that a Court could also take into account
    logistical difficulties in the bringing of an application, provided
    that these are fully and satisfactorily explained.
    3







  1. The
    applicants however did not adequately or properly explain their
    delay in the founding affidavit. There was no explanation at all for
    the period between 20 and 30 July 2012. The fact that this is then
    dealt with in the replying affidavit does not in view avail the
    applicants. They were required to have set out their explanation in
    their founding affidavit so that it could be investigated,
    challenged and dealt with fully by the respondent.







  1. The
    explanation itself eventually provided in reply is in my view by no
    means adequate either. It is in my view entirely unacceptable for an
    instructing practitioner to wait for 2 weeks before receiving a
    reply from instructed counsel that the latter is not available to
    assist in an urgent application. It is incumbent upon an instructing
    practitioner to establish from instructed counsel forthwith or
    preferably before even forwarding a brief, whether the instructed
    counsel in question would be able to assist in a matter. To wait for
    a period for some 2 weeks before establishing this is in my view
    entirely unreasonable and unacceptable. Whether or not instructed
    counsel can assist in the matter is in my view a matter which is to
    be established at the outset and can and should be done immediately.
    There is no reason why this should take so long. If counsel is not
    available then other counsel should likewise be approached
    immediately and their availability ascertained immediately. Where
    there has been remissness or inaction, a party cannot not proceed on
    the basis of urgency as was made clear in the
    Bergmann
    matter. 4







  1. It
    is well settled that this Court has a discretion to condone
    non-compliance with its Rules and that an applicant has the onus in
    establishing urgency in seeking the indulgence of the Court to hear
    the matter as one of urgency.







  1. Having
    carefully considered the submissions made by the parties in respect
    of urgency I find myself unable to exercise my discretion in favour
    of the applicant. I accordingly refuse to condone the non-compliance
    with the Rules of this Court on the basis of urgency. It follows
    that it is not necessary for me to address and canvass the further
    arguments made by the parties.







  1. I
    accordingly make the following order:







  1. The
    application is struck from the roll, with costs, which include the
    costs of one instructed and one instructing counsel.













___________________________



D Smuts



Judge



APPLICANTS AW Corbett



Instructed by BD Basson Incorporated,
Windhoek







RESPONDENT G Dicks



Instructed by AngulaColeman, Windhoek









1As
set out in
Stellenbosch Farmers’
Winery Ltd v Stellenvale Winery (Pty) Ltd
1957
(4) SA 234 (C) at 235 as followed and explained in
Plascon-Evans
Paints v Van Riebeek Paints
1984 (3)
SA 623 (A) at 634 and consistently applied in this Court.




2Petroneft
International and Another v Minister of Mines and Energy and Others
,
unreported, 28 April 2011, case no A 24/2011;
Bergmann
v Commercial Bank of Namibia and Another
2001
NR 48 (HC);
Mweb Namibia (Pty) Ltd v
Telecom Namibia and Others
2012 (1) NR
331 (HC)




3Petroneft
International and Another v Minister of Mines and Energy and Others

supra at 14; The
Three Musketeers (Pty) Ltd and Another v Ongopolo Mining and
Processing Ltd and Others
, unreported,
30 November 2006




4Supra
at 49-50