Court name
Supreme Court
Case number
SA 23 of 2010
Case name
Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd
Media neutral citation
[2012] NASC 15
Judge
Maritz JA













REPORTABLE







CASE NO.: SA 23/2010











IN THE SUPREME COURT
OF NAMIBIA











In the matter between:


















AUSSENKEHR
FARMS (PTY) LTD



APPELLANT












and


















NAMIBIA
DEVELOPMENT CORPORATION LTD



RESPONDENT
















Coram: Maritz JA, Mainga
JA etNgcobo AJA



Heard on: 28/03/2012



Delivered on: 13/08/2012







_________________________________________________________________







APPEAL JUDGMENT



_________________________________________________________________











NGCOBO AJA:



Introduction




  1. This appeal concerns the
    circumstances under which a court may: (a) dismiss the plaintiff’s
    action for abuse of the process of the court; and (b) declarethe
    filing of a pleading in the course of litigationan irregular step
    under Rule 30. Thesequestions arise from an action instituted by the
    Namibian Development Corporation Ltd, the respondent, against
    Aussenkehr Farms (Pty) Ltd, the appellant,in the High Court. For
    convenience, the parties will be referred to as in the court below.









  1. In the course of the
    proceedings in the High Court, the defendant launched two
    applications. In the one application, the defendant sought an order
    declaring that the late filing of the plaintiff’s amended
    particulars of claim without an application for condonation of such
    late filing, constituted an irregular step under Rule 30. In the
    other, it sought the dismissal of the plaintiff’s action on
    account of (a) inordinate delay in the finalisation of the
    litigation which, the defendant contended, constituted dilatory
    abuse of the process of court; and (b) vexatious proceedings which
    the defendant claimed were without merit.









  1. Heathcote, AJ, refused
    both applications and ordered the defendant to pay the plaintiff’s
    costs, including costs of one instructing and two instructed
    counsel.
    1The
    present appeal, which comes to us with the leave of the High Court,
    is against the refusal of those applications as well as the costs
    order.









  1. In addition to the above
    orders, the High Court upheld the application to strike out that had
    been brought by the plaintiff. At the commencement of oral argument
    in this Court, Mr Barnard, who appeared on behalf of the defendant,
    informed us that the defendant was no longer pursuing the appeal
    against the order of the High Court granting the application to
    strike out. He tendered costs occasioned by that appeal.









  1. In order to appreciate
    the merits of the defendant’s contentions, it is necessary to
    set out the material parts of the history of this litigation. That
    history appears from the pleadings and other papers filed of record.
    The defendant has yet to plead to the plaintiff’s action.








Relevant history of
litigation




  1. This litigation
    commenced some eight years ago, on 2 February, 2004,when the
    plaintiff instituted an action against the defendant for payment of
    N$5 228 267,96 together with interest. The original particulars of
    claim alleged that on 16 February 1994 the plaintiff and the
    defendant entered into a suspensive sale agreement and a loan
    agreement.In terms of these agreements, the defendant was obliged to
    pay the plaintiff certain monthly instalments. On 22 August 2000 the
    payment obligations of the defendant under these agreements were
    rescheduled pursuant to an addendum to both agreements (the
    addendum).









  1. In terms of the
    addendum, the defendant was obliged to pay equal yearly instalments
    of N$1 008 714,43, the first instalment being due on the last day of
    March 2001, and subsequent instalments on the last day of March each
    succeeding year.The particulars of claim alleged that in breach of
    the addendum, the defendant, despite demand, failed to pay the first
    instalment and anysubsequent instalment; and, that in terms of both
    the supensive sale agreement and the loan agreement the plaintiff
    became entitled to claim the full balance outstanding, due and owing
    by the defendant.









  1. On 25 February 2004, the
    defendant entered appearance to defend. This triggered an
    application for summary judgment by the plaintiff which was filed on
    19 March 2004. The defendant opposed summary judgment and filed a
    comprehensive opposing affidavit on 15 April 2004. It advanced a
    number of defences, including that: the allegations in the
    particulars of claim do not sustain the cause of action asserted;
    the claim is vexatious and without merit and constitutes an abuse of
    the court process. The plaintiff did not pursue the application for
    summary judgment; instead it called upon the defendant to file its
    plea.









  1. In response to the
    invitation to file a plea, on 21 October 2004, the defendant filed a
    request for further particulars. The plaintiff only delivered its
    response to this request on 12 March 2008, that is,some three and a
    half years later. Simultaneously with its further particulars, the
    defendant filed a notice of amendment. The effect of the proposed
    amendment was threefold: (a) it altered the amount claimed from N$5
    228 267,96 to N$6 211 472,28; (b) it alleged failure to pay the
    second instalment that was due and payable on 31 March 2002 instead
    of the first instalment as originally alleged; and (c) it alleged
    that the demand for the payment of this instalment was made on 9
    April 2002.

















  1. There was no objection
    to the proposed amendment within the period allowed by Rule 28(2).
    2
    In terms of Rule 28(3),
    the defendant was deemed to have consented to the proposed
    amendment. That being the case, the defendant was required by Rule
    28(5) to file its amended particulars of claim by end of March 2008,
    the precise date is not relevant. The defendant only filed its
    amended particulars of claim on 5 December 2008, some nine and a
    half months later.









  1. The delay in the filing
    of the further particulars as well as the late filing of the amended
    particulars of claim triggered three sets of Rule 30 applications.
    The first was filed on4 April 2008 by the defendant, in which it
    alleged that the plaintiff’s late filing of further
    particulars constituted an irregular step. At the time of filing
    this application, the amended particulars had not yet been filed. In
    response, the plaintiff launched its Rule 30 application on 10 April
    2008 alleging that the defendant’s Rule 30 application
    constituted an irregular proceeding because the defendant’s
    remedy for the plaintiff’s late filing of further particulars
    lay, not in Rule 30, but in Rule 21(6) which allows a non-defaulting
    party to compel the delivery of further particulars.
    3










  1. The defendant did not
    persist in its Rule 30 application, instead,on 15 July 2008, it
    filed an application to amend the notice of motion in its Rule 30
    application. The effect of the proposed amendment was to convert
    theRule 30 application into an application for the dismissal of the
    plaintiff’s action “on account of plaintiff’s
    inordinate delay in prosecuting its action, and the vexatious
    conduct of its proceedings”. The plaintiff indicated that it
    would oppose this application.









  1. The defendant’s
    notice of application to amend thenotice of motion as well as the
    plaintiff’sRule 30 application eventually came before Parker J
    on 16 September 2008. He granted the defendant’s application
    to amend its Rule 30 notice of motion and set out a schedule for the
    filing of further affidavits to what had become an application to
    dismiss the plaintiff’s action on the grounds of abuse of the
    process of court. It appears from the order made on that day that
    the plaintiff withdrew its Rule 30 application. This left the abuse
    of court process application that eventually come before Heathcote
    AJ on 29 September 2009.









  1. In the meantime the
    plaintiff filed its amended particulars of claimon 5 December 2008
    which, as I have said, were late by some nine and a half months.This
    triggered a further Rule 30 application by the defendant on 11
    December 2008. The defendant alleged that the late filing of the
    amended particulars of claim without an application for an order
    condoning such late filing, constituted an irregular step. The
    plaintiff resisted this application. This application was initially
    set down for 30 January 2009. It is this Rule 30 application that
    eventually came before Heathcote AJ.









  1. To complete the
    narration of the litigation history, the plaintiff filed its
    answering affidavit in the abuse of process application on 16
    December 2008. The defendant’s replying affidavit was filed on
    3 April 2009. It is this affidavit that contained portions that
    triggered the application to strike. In the light of the abandonment
    of the appeal against the order granting the application to strike
    out, nothing more need be said about this application.









  1. On 16 November 2009
    Heathcote AJ, made an order, inter alia: (a) dismissing the
    defendant’s Rule 30 application; (b) dismissing the
    defendant’s abuse of the process of court application;
    (d)ordering the defendant to pay costs including costs of one
    instructing and two instructed counsel; and (e)directing the
    defendant to file its next pleading within 15 days.It is these
    orders that are the subject of the appeal in this Court.









  1. If the appeal against
    the order refusing the defendant’s abuse of process
    application is upheld, that is the end of the litigation. It is
    therefore convenient to deal first with that appeal, and, if
    necessary, to consider the appeal against the dismissal of the
    defendant’s Rule 30 application. But before considering the
    specific forms of abuse of the process alleged by the defendant, I
    consider it appropriate to make some general observations on the
    inherent power of the court to prevent the abuse of it process








The abuse of process
of court application




  1. The Court has an
    inherent power
    to
    protect itself and others against an abuse of its process.
    4As
    was said in
    Hudson
    v Hudson and Another
    ,
    “when the court finds an attempt to use for ulterior purposes
    machinery devised for the better administration of justice, it is
    the duty of the court to prevent such abuse".
    5The
    power to prevent the abuse of the process of the court is an
    important tool in the hands of courts to protect the proper
    functioning of the courts and to prevent the judicial process from
    being abused by litigants who institute proceedings to harass their
    adversaries with vexatious litigation. It prevents the court process
    from being turned into an instrument to perpetuate unfairness and
    injustice, and the administration of justice from being brought into
    disrepute.
    6









  1. The
    exercise of this power protects the public interest in theproper
    administration of justice. As it has said,
    albeit in a
    different context:








Public
interest in the due administration of justice necessarily extends to
ensuring that the Court's processes are used fairly by State and
citizen alike. And the due administration of justice is a continuous
process, not confined to the determination of the particular case. It
follows that in exercising its inherent jurisdiction the Court is
protecting its ability to function as a Court of law in the future as
in the case before it. This leads on to the second aspect of the
public interest which is in the maintenance of public confidence in
the administration of justice. It is contrary to the public interest
to allow that confidence to be eroded by a concern that the Court's
processes may lend themselves to oppression and injustice."
7








  1. The
    primary function of a court of law is to dispense justice with
    impartiality and fairness both to the parties and to the community
    that it serves.
    Public
    interest in the administration of justice requires that the court
    protect its ability to function as a court of law by ensuring that
    its processes are used fairly to facilitate the resolution of
    genuine disputes. Unless the court protects its ability to function
    in that way,
    public
    confidence in the administration of justice may be eroded by a
    concern that the courts’ processes may be used to perpetrate
    unfairness and injustice, and ultimately, this may undermine the
    rule of law. And public confidence in the courts is vital to the
    judicial function because
    as,
    Justice Felix
    Frankfurter once reminded us,"[t]he Court’s authority -
    possessed of neither the purse nor the sword - ultimately rests on
    sustained public confidence in its moral sanction".
    8









  1. Abuse connotes improper
    use, that is, use for ulterior motives. And the term “abuse of
    process” connotes that “the process is employed for some
    purpose other than the attainment of the claim in the action”.
    9
    At times “vexatious”
    conduct or litigation is used synonymously with or as an instance of
    abuse of the process of court. In its legal sense, “vexatious”
    means “frivolous, improper; instituted without sufficient
    ground, to serve solely as an annoyance to the defendant”.
    10What
    amounts to abuse of process is insusceptible to precise definition
    or formulation comprising closed categories. Courts have
    understandably refrained from attempting to restrict abuse of
    process to defined and closed categories.









  1. While
    there can be no all-encompassing definition of the concept of “abuse
    of process”, that is not to say that the concept of abuse is
    without meaning.
    It
    has been said that ‘an attempt made to use for ulterior
    purposes machinery devised for the better administration of justice’
    would constitute an abuse of the process.
    11In
    Beinash
    v Wixley,
    the
    Supreme Court of Appeal in South Africa held that
    an
    abuse of process takes place where the procedures permitted by the
    Rules of the Court to facilitate the pursuit of the truth are used
    for a purpose extraneous to that objective”
    12.
    In
    Price
    Waterhouse Coopers and Others v National Potato Co-operative Ltd
    ,
    it was held the “[i]
    general,
    legal process is used properly when it is invoked for the
    vindication of rights or the enforcement of just claims and it is
    abused when it is diverted from its true course so as to serve
    extortion or oppression; or to exert pressure so as to achieve an
    improper end.
    13









  1. In Walton
    v Gardiner
    ,
    the High Court of Australia held that the power to strike out an
    action on the grounds of abuse of process “extends to all
    those categories of cases in which
    the
    processes and procedures of the court, which exist to administer
    justice with fairness and impartiality, may be converted into
    instruments of injustice or unfairness”.
    14









  1. As a general matter, an
    abuse of the process of the court occurs when the court process is
    used for improper purpose.
    But
    t
    he
    mere
    use
    of a court process
    for
    a purpose other than that for which it was primarily intended
    does
    not
    establish
    abuse
    .15In
    order to prove
    abusemore
    is required; it must be established that an improper result was
    intended is required.
    16Thus,
    a plaintiff who has no
    bona
    fide
    claim
    but intends to use litigation to cause the defendant financial
    (orother) prejudice will be abusing the process.
    17
    Improper
    result or motive can be established by way of inference.









  1. Whether the court
    process has been used for improper purpose and therefore constitutes
    an abuse of the process of the court is a question of fact that must
    be determined by the circumstances of each case.
    18The
    circumstances in which abuse of process can arise are varied. It is
    therefore neither possible nor desirable to attempt to list
    exhaustively the circumstances under which the inherent power will
    be exercised. Inordinate delay in the prosecution or finalisation of
    litigation and the institution of a groundless action are among the
    grounds frequently relied upon as evidence of the abuse of the
    process of the court.
    19









  1. Finally on this aspect,
    the exercise of the power to summarily dismiss an action on account
    of the abuse of process constitutes a departure from the fundamental
    principle that courts of law are open to all. It impedes the
    exercise of the right to “a fair and public hearing by an
    independent, impartial and competent Court”
    20,
    which includes the right to fully ventilate a case before the court.
    A court should be slow in closing its doors to anyone who desires to
    prosecute an action or to interfere with the fundamental right of
    the access to the court.
    21For
    this reason, it is a power that must be exercised sparingly and only
    in very
    exceptional
    cases.22It
    must be exercised “with great caution and only in a clear
    case”.
    23And
    the court has a discretion whether or not to dismiss the action on
    account of abuse of its process.









  1. I now turn to the
    grounds relied upon by the defendant for its contention that the
    plaintiff is guilty of abuse of the process of the court.








Grounds of abuse of
process relied upon




  1. In support of its
    contention that the plaintiff is guilty of abuse of process of
    court, the defendant submitted that (a) the manner in which the
    plaintiff has conducted the litigation is vexatious; (b) the
    plaintiff’s action lacks merit and is foredoomed to fail; and
    (c) plaintiff has conducted litigation in a dilatory manner. In
    relation to meritless abuse claim, the defendant raised various
    defences to the plaintiff’s action, including prescription, a
    counter-claim against the plaintiff, that the plaintiff is not
    entitled to claim under the agreement once the agreement is
    cancelled and that the plaintiff will not be able to establish
    entitlement to the interest claimed as it exceeds that which is
    permissible under the Usury Act, 1978.









  1. The High Court carefully
    considered the defendant’s submissions and concluded that (a)
    the plaintiff was not guilty of dilatory abuse and (b) the
    plaintiff’s action cannot be said to be “so hopeless
    that it can never succeed". It also added that even if its
    conclusion is wrong in relation to both grounds of abuse, this is
    not a case in which it would have exercised its inherent power
    against the plaintiff. It does not appear that the Court dealt
    separately with the ground that the plaintiff had conducted
    litigation in a vexatious manner.









  1. The essential question
    on appeal is whether (a) the High Court was correct in its
    conclusion that the plaintiff was not guilty of abuse of the process
    of court; and (b) regardless of the answer to (a), the High Court
    properly exercised its discretion in refusing relief.








Did the plaintiff
conduct the proceedings in a vexatious manner?




  1. Mr Barnard contended
    that the defendant has conducted its litigation in a vexatious
    manner. Conduct that was said to support this contention consisted
    in the delay in instituting the action; the abortive application for
    summary judgment; the institution and withdrawal of the two actions
    in the Magistrates’ Court based on the same cause of action;
    and the so-called procedural disorder in the conduct of litigation.
    The said procedural disorder relates to the confusing manner in
    which the erstwhile and present legal representatives of the
    defendant handled the withdrawal of the Magistrates’ Court
    actions.









  1. None of the conduct
    complained of, viewed either individually or cumulatively, amount to
    an abuse of the process of court.









  1. The plaintiff was within
    its procedural rights to apply for summary judgment and, if so
    advised, abandon the application and call upon the defendant to file
    its plea.









  1. Similarly, the plaintiff
    was entitled to institute proceedings in the Magistrates’
    Court and, if so advised, withdraw these actions and bring the
    action in the High Court. Clause 8.2 of the suspensive sale
    agreement gives the plaintiff the option to sue either in the
    Magistrates’ Court or in the High Court. The actions that were
    instituted in the Magistrates’ Court were subsequently
    withdrawn in 2004 and the plaintiff tendered to pay the defendant’s
    costs incurred in those proceedings. The timing of the withdrawal of
    those actions as well as the manner in which the withdrawalwas
    handled can be attributed partly to the change in the legal
    representatives of the plaintiff and partly to ineptitude on the
    part of the legal representatives concerned.









  1. The argument that the
    plaintiff conducted the proceedings in a vexatious manner cannot
    therefore be sustained.












Does the plaintiff’s
claim lack merit?




  1. It is by now axiomatic
    that the institution of a groundless claim is an abuse of the
    process of court.
    24
    The applicable test can
    be distilled from an examination of the case law on the subject in
    other jurisdictions. It is not necessary to discuss in any detail
    this case law, it is sufficient to refer to the principles they
    announce.









  1. In
    the English case of
    Lawrence v Norreys,
    Bowen, L.J. said that:








"It is an
abuse of the process of the Court to prosecute in it any action which
is so groundless that no reasonable person can possibly expect to
obtain relief in it . . . I quite agree that this power ought to be
exercised with the very greatest care, that it is not for the Court
on a motion of this kind to discuss the probabilities of the case
which is going to be made, except so far as to see whether the case
stands outside the region of probability altogether, and becomes
vexatious because it is impossible."
25
















  1. In
    the South African case of
    Ravden
    v Beeten
    ,
    it was held that this power should be exercised only in plain and
    obvious cases, i.e. cases that are obviously frivolous or vexatious
    or obviously unsustainable.
    26
    Although
    this case was decided under the Rules of Court, the same
    considerations would apply where the inherent jurisdiction of the
    Court is relied upon.
    Other
    cases have gone as far as to suggest that this power must be
    exercised onlyif it appears “as a certainty, and not merely on
    a preponderance of probability” that the action is
    unsustainable.
    27









  1. I do
    not understand this last statement to suggest that the standard for
    deciding civil disputes, namely, preponderance of probabilities, is
    not applicable in an application to dismiss an action on the ground
    that it is vexatious. This is merely to emphasise the degree of
    clarity required before the plaintiff’s claim can be summarily
    dismissed for lack merit. As was said in
    Hudson
    v Hudson and Another
    , this power must
    be exercised “only in a clear case".









  1. In Rogers
    v Rogers and Another
    ,
    the Zimbabwe Supreme Court held that an action is frivolous or
    vexatious in a legal sense “when it is obviously
    unsustainable, manifestly groundless or utterly hopeless and without
    foundation”.
    28









  1. A useful collection of
    the various phrases that courts have used to describe the test to be
    applied appears from the Australian case of
    General
    Steel Industries Inc. v. Commissioner for Railways (N.S.W)
    ,
    where Barwick CJ, after examining decisions in which the inherent
    power of the court to prevent abuse was invoked and those in which
    the statutory rules were relied upon, said:








"The test to be applied has been
variously expressed; “obviously unsustainable”, "so
obviously untenable that it cannot possibly succeed";
"manifestly groundless"; "so manifestly faulty that it
does not admit of argument"; "discloses a case which the
Court is satisfied cannot succeed"; "under no possibility
can there be a good cause of action"; "be manifest that to
allow them" (the pleadings) "to stand would involve useless
expense".
29








  1. It is clear from these
    authorities that t
    he
    fundamental right of free access to the courts should not be
    interfered with by the summary dismissal of an action without
    hearing evidence, on the ground that it is vexatious, unless it is
    manifest that the action is so unfounded that it could not possibly
    be sustained. It must be quite clear that failure of the action is a
    foregone conclusion.
    30What
    these authorities emphasise is that the plaintiff ought not to be
    denied access to court unless the lack of merit in the claim is
    clearly demonstrated or, to borrow the phrase from Lord Herschellin
    Lawrence
    v Norreys, supra,
    the
    story told in the pleadings is a myth that has no solid foundation.
    31









  1. And courts rightly
    emphasisethe clarity with which lack of merit must be demonstrated
    before an action can be dismissed; this is an extraordinary power.
    The power summarily to terminate an action is to be sparingly
    employed and is not to be used except in a clear case where the
    Court is satisfied that it has the requisite material to reach a
    definite and certain conclusion.









  1. Three points must be
    stressed in relation to the exercise of this power.Prima facie
    every litigant has a right to have matters of law as well as of fact
    decided according to the ordinary rules of procedure, which includes
    the full opportunity to presenthis or her case to the court. The
    inherent power of the court to protect its process from abuse by
    depriving a litigant of these rights and summarily disposing of an
    action as frivolous and vexatious should not be exercised unless the
    plaintiff's claim is so obviously untenable that it cannot possibly
    succeed. The purpose of the exercise of this power is to prevent the
    abuse of the judicial process but not to prevent litigants from
    approaching courts to have their disputes resolved.









  1. That the claim will not
    ultimately succeed at trial in itself does not establish that the
    litigant is abusing the process of court. Something more is
    required;claim must be so groundless that no reasonable person can
    possibly expext to it to succeeed. Where the claim is genuine and is
    supported on substantial grounds by other documents properly before
    the court, it cannot be said that the plaintiff is abusing the
    process of the court merely because the claim might not ultimately
    prevail at trial.
    32Nor
    can the court infer that the plaintiff’s case is vexatious
    merely from the fact that it is weak.









  1. The second point to
    stress is that an application to dismiss an action on grounds that
    it is without merit invariably requires the court to consider the
    merits and the demerits of the claim and the defence. As a general
    matter it is undesirable that the court should prematurely determine
    the merits of the case under the guise of determining whether to
    allow the claim to proceed or dismiss it. The court must always
    remind itself that the remedy of a defendant who seeks the dismissal
    of the plaintiff’s claim on the basis that it is bad in law is
    to raise the defences by way of an exception or a special plea. As
    the Australian High Courtpointed out, “the issues to be
    considered go beyond the question as to whether the claim is bad in
    law, the demurrer was developed to deal with that situation”.
    33









  1. This procedure was never
    intended to replace the special plea or exception as a test of the
    plaintiff’s case. Nor was it intended to provide the defendant
    with a unilateral advantage of testing the soundness of the
    defendant’s defences prior to trial. Where the ground relied
    upon for contending that the claim is vexatious can be properly and
    conveniently raised in a plea, the court in the exercise of its
    discretion would be justified in refusing relief. Indeed is has been
    held that the fact that the defences relied upon can be conveniently
    and properly raised in the pleadings would in itself justify the
    court in refusing relief.
    34









  1. The final point to be
    stressed is that, when dealing with applications of this nature a
    court should not deal with the matter as if it is deciding the case
    on its merits. This is not the occasion for a full ventilation of
    issues of fact and law and to decide finally the merits of the case.
    All that the court is required to decide is whether there is any
    question of fact or law that is fairly triable or arguable. As Bowen
    L.J. remarked, “[
    i]t
    is not for the Court on a motion of this kind to discuss the
    probabilities of the case which is going to be made, except so far
    as to see whether the case stands outside the region of probability
    altogether, and becomes vexatious because it is impossible”.
    35









  1. Thus where the pleadings
    raise a debatable question of law or fact or in cases of doubt or
    difficulty, the relief should not be granted. As was held by the
    High Court of Australia, “once it appears that there is a real
    question to be determined whether of fact or law and that the rights
    of the parties depend upon it, then it is not competent for the
    court to dismiss the action as frivolous and vexatious and an abuse
    of process”.
    36









  1. It now remains to apply
    these principles to the facts of this appeal.








Application of these
principles to this case




  1. Now all the defences
    relied upon by Mr Barnard as showing lack of merit and therefore
    vexatious abuse can be conveniently and properly raised in a
    pleading. The defendant is inviting the Court to consider the merits
    if its defence even before it has pleaded them. As Mr Barnard
    candidly conceded in the course of argument, a ruling against the
    defendant on these defences would mean that it can no longer rely on
    them at trial. In my view this is a classical case in which the
    court in the exercise of its discretion should refuse the relief
    sought by the defendant.









  1. Apart from this, there
    are further considerations that militate against granting the relief
    sought.First, the plaintiff’s claim is for the repayment of
    the balance outstanding under the loan agreement. The defendantdoes
    not dispute that it entered into the suspensive sale agreement and
    the loan agreement as alleged by the defendant. Nor does the
    defendant dispute that it failed to pay the instalment of N$1 008
    714,43 that was due and payable on 31 March 2002 and any subsequent
    instalments. It must therefore be accepted that the defendant has a
    genuine claim against the defendant. Once it is accepted, as it must
    be, that the plaintiff’sclaim is genuine and is supported on
    substantial grounds by other documents properly before the court, it
    cannot be said that the defendantis abusing the process of the court
    merely because the claim might not ultimately prevail at trial.
    37









  1. Second, I am not
    satisfied that the points raised by the defendantestablish that the
    plaintiff’s claim is obviously unsustainable. I do not propose
    to deal with all of them,
    it
    is sufficient to refer to at least three of those to illustrate the
    point. Where a right to performance under a contract has accrued to
    a party prior to the rescission of the contract, this right is not
    affected by rescission and it may be enforced despite the
    rescission.
    38
    The fact that the loan
    agreement has been cancelled does not necessarily preclude the
    plaintiff from enforcing rights that had already accrued to it prior
    to cancellation. Whether the plaintiff is entitled to claim the
    rights that had already accrued when cancellation took place and
    whether the rights sought to be enforced by the plaintiff had
    accrued to it prior to the cancellation, are debatable questions.









  1. The defence based on
    prescription is premised on the assumption that the amended
    particulars of claim introduced a new cause of action that had
    become prescribed when the amended particulars of claim were filed.
    Section 15(1) of the Prescription Act, 1969, provides that “the
    running of prescription shall…be interrupted by the service
    on the debtor of any process whereby the creditor claims payment of
    debt”.
    39
    The test for
    interruption of prescription is whether the plaintiff, in the
    earlier process, claim payment of the same or substantially the same
    debt which now forms the subject-matter of the claim that is said to
    be prescribed.
    40









  1. The fundamental enquiry
    in relation to the prescription defence is whether the debt claimed
    in the amended particulars of claim is the same or substantially the
    same debt that was claimed in the original particulars of claim.
    Having regard to the nature and effect of the amendment which
    alleged that the defendant failed to pay the second as opposed to
    the first instalment as alleged in the original particulars of
    claim, it cannot be said that the plaintiff’s contention that
    the debt claimed in the amended particulars of claim is the same or
    substantially the same debt that was claimed in the original
    particulars of claim is obviously unsustainable. This is a debatable
    question.









  1. Nor does the defence
    based on the existence of a counter-claim show that the plaintiff’s
    claim is obviously unsustainable. It is apparent from the letter of
    April 9, 2002, annexure B to the Further Particulars that
    theexistence of the alleged counter-claim isdisputed. Apart from
    this, it is at least arguable that under clauses 5.24 and 5.25of the
    loan agreement the defendant renounced its right to raise a
    counter-claim as a defence against the repayment of the loan. So
    too, is the defendant’s alternative argument that these
    clauses are contrary to public policy.Similarly, whether the
    defendanthas paid interest amounting to more than double theamount
    of capital is a matter that must canvassed by way of a plea.









  1. Theconclusion by the
    High Court thatit could not conclude that the plaintiff’s case
    is “so hopeless that is can never succeed”, cannot
    therefore be faulted.









  1. Third, the question
    whether or not to grant relief is a matter that is within the
    discretion of the court. The High Court also held that even if it
    was wrong in its conclusion, this is “certainly not a case in
    which [it] would have exercised the court’s inherent
    jurisdiction against the plaintiff”. I understand the Court to
    be saying that this is not a case in which it would have exercised
    its discretion in favour of granting the relief sought.Absent a
    vitiating misdirection or irregularity, the court of appeal will
    only interfere with the exercise of a judicial discretion if it is
    satisfied that no court, acting reasonably, would have come to the
    same conclusion.
    41.









  1. Regrettably the High
    Court did not indicate the basis of this conclusion. This Court is
    left to speculate on the factors that the High Court took into
    consideration in exercising its discretion. When a court is
    entrusted with the discretion whether or not to grant the relief
    sought and it exercises its discretion against granting the relief
    sought, it is incumbent on the court to indicate the factors that it
    took into consideration in exercising its discretion. This will
    enable the appeal court, if the matter should come on appeal and the
    exercise of discretion is challenged, to determine whether the
    discretion was exercised properly. The appeal court should not be
    left to speculate on what factors the High Court took into
    consideration in exercising its discretion.









  1. Although the High Court
    did not indicate the factors that it took into consideration in
    exercising its discretion against granting the relief sought, the
    exercise of that discretion has ample support in the circumstances
    of this case. First, the grounds relied upon by the defendant for
    relief sought can be conveniently and properly raised in a plea.
    Second,the power to dismiss an action on the grounds that it lacks
    merits is an extraordinary power that must be exercised very
    sparingly and in a clear case. This is not such a case. Third, the
    plaintiff has a genuine claim that is supported on substantial
    ground by documents that are before the court.









  1. The appeal against the
    order dismissing the claim based on vexatious proceedings must
    therefore fail.









  1. I now turn to the appeal
    against the dismissal of the claim based on dilatory abuse. But
    first the principles governingapplications for dismissal of actions
    based on dilatory abuse.












Principles applicable
to dilatory abuse claim




  1. South African and
    English courts have had occasion to consider the principlesthat are
    applicable to applications for dismissal of actions based on
    dilatory abuse. A review of these relevant decisions provides a
    useful guide to the question presented by this aspect of the case.









  1. A convenient starting
    point is the decision of the South African High Court in
    Molala
    v Minister of Law and Order and Another
    on
    which the parties and the High Court relied upon. There the
    plaintifftook some two years torespond to the defendants’
    request for further particulars in a claim involving a motor
    collision. The defendant brought an application for an order barring
    the plaintiff from proceeding with the action and advanced various
    grounds why the plaintiff should not be allowed to proceed with the
    action. The plaintiff did not oppose. The court had to consider
    whether it“had any discretion to debar the plaintiff from
    proceeding with the action”.
    42









  1. The
    court accepted that there is such discretion but acknowledged that
    “there is not always certainty about the basis of the
    discretion and therefore about the facts which should guide the
    exercise of the discretion”.
    43
    It
    held nevertheless that “in the Transvaal it was, despite
    doubts earlier in the year, accepted…that 'it is in the
    discretion of the Court to allow proceedings to continue where there
    has been this lapse of time'”
    44,
    and that “there are indications that the Court regarded such
    an order as resting upon the inherent power of the Court to control
    its own proceedings and that accordingly the Court should assess
    whether the plaintiff is guilty of an abuse of process”.
    45But
    immediately added that such“an approach could, because such
    abuse is not easy to prove, cause a rarity of orders similar to what
    will follow from the views expressed in other Divisions that the
    discretion should only be sparingly exercised”.
    46









  1. Against
    this background, t
    he
    court adopted the following approach to the question:








"The approach
which I am bound to apply is therefore not simply whether more than a
reasonable time has elapsed. It should be assessed whether a facility
which is undoubtedly available to a party was used, not as an aid to
the airing of disputes and in that sense moving towards the
administration of justice, but knowingly in such a fashion that the
manner of exercise of that right would cause injustice. The issue is
whether there is behaviour which oversteps the threshold of
legitimacy. Nor, in the premises, can plaintiff be barred simply
because defendants were prejudiced. The increasingly difficult
position of the defendants is a factor which may or may not assist in
justifying an inference that plaintiff's intentions were directed to
causing or to increasing such difficulties. But the enquiry must
remain directed towards what plaintiff intended, albeit in part by
way of
doluseventualis.
The increase in defendants' problems is, secondly, a factor insofar
as the Court, on an overall view of the case, is to exercise
discretion about how to deal with a proven abuse of process.
47"








  1. As I understand this
    approach it comes down to the question whether the court process was
    used for ulterior motives. On this approach neither the delay nor
    prejudice to the defendant is decisive. The enquiry is what the
    plaintiff intended by the delay and this can be established by way
    of inference. Prejudice may give rise to an inference of abuse of
    process. In addition, the Court held that where abuse has been
    established, the court “is to exercise discretion about how to
    deal with a proven abuse of process”.
    48
    Considerations that are
    relevant in the exercise of discretion include the impact of the
    delay on the administration of justice and prejudice to the
    defendant. As the court put it, “the order should not follow
    unless the administration of justice was in fact hampered”.
    49









  1. Subsequent court
    decisions have focussed primarily on the statement that “[t]he
    issue is whether there is behaviour which oversteps the threshold of
    legitimacy” as laying down the test for when the delay will
    amount to abuse. The unintended consequence of this, as I shall show
    presently, is that
    there does not appear to be harmony on
    precisely what the test to be applied entail or howthe test should
    be applied.









  1. In Gopaul
    v Subbamah
    ,
    Richings AJ sitting in the KwaZulu-Natal High Court, observed that
    while it is clear that the court has inherent power to dismiss an
    action for delay in the prosecution of an action,
    what
    is less clear is the circumstances under which this power may be
    exercised.
    50After
    referring to the above statement in
    Molala
    v Minister of Law and Order
    ,
    he held that “the
    proper
    approach for the Court is to weigh up the period of delay and the
    reasons therefor against the prejudice caused to the defendant”.
    51In
    addition, the court held thatthe Court should also have regard to
    the reasons for the defendant's inactivity in the matter.
    52 










  1. In Sanford v Haley
    NO,
    Moosa J of the Western Cape High Court said the following
    concerning the test:








"The
prerequisites for the exercise of such discretion are, first, that
there should be a delay in the prosecution of the action; secondly,
that the delay is inexcusable and, thirdly, that the deceased is
seriously prejudiced by such delay. (
Gopaul
v Subbamah
2002
(6) SA 551 (D).) The test for the dismissal of an action enunciated
by Innes CJ and reinforced by Solomon JA in the case of
 Western
Assurance Co
(supra
)
is whether plaintiff has abused the process of the Court in the form
of frivolous or vexatious litigation. Such test formulated by
Flemming DJP in
Molala's
case supra
is whether the
conduct of plaintiff oversteps the threshold of legitimacy. The test
is a stringent one. It is understandable that the relief will not
easily be granted. It will depend on the facts and circumstances of
each case and on the basis of fairness to both parties. (Herbstein
and Van Winsen
The
Civil Practice of the Supreme Court of South Africa

at 547.)53"












  1. In Golden
    International Navigation SA v Zeba Maritime Co Ltd; Zeba Maritime Co
    Ltd v MV VISVLEIT
    ,
    Griesel J of the Western Cape High Court, in dealing with delay,
    held that: “
    The
    crisp question for decision is whether the delay in this instance
    has been so unreasonable or inordinate as to amount to an abuse of
    the process of the court”.
    54









  1. What the court held in
    Molala v Minister of Law & Order is that in determining
    whether delay amounts to an abuse the court shouldassess whether a
    process that is designed to facilitate the administration of justice
    was used for some other purpose other than the attainment of the
    claim in the action and with knowledge that if so used it would
    cause injustice. This may be inferred from the prejudice to the
    defendant which“may or may not” justify “an
    inference that the plaintiff’s intention were directed to
    causing” prejudice. But the basic enquiry “must remain
    directed towards what the plaintiff intended”.It is in this
    context that the statement “[t]he issue is
    whether there is behaviour which oversteps the threshold of
    legitimacy” must be understood.









  1. InGopaul
    v Subbamah
    the
    court expressedthe view that South African law on this point was
    “very similar to that of the Supreme Court of Judicature in
    England”. And the court in
    Sanford
    v Haley NO
    appears
    to have accepted this as, in explaining the test, itinvoked the
    principles enunciated by the Court of Appeals in
    Allen
    v Sir Mc Alpine & Sons Ltd
    55
    that were later adopted
    by the House of Lords in
    Birkett
    v James
    .56
    The High Court in this
    case criticised reliance on English law, which it held differs from
    ”our law”because it does not require intention.
    57The
    High Court went on to hold that “[a]lthough some of the
    elements referred [in English law] may be helpful when a Namibian
    Court determines whether a dilatory-abuse has occurred [it] would be
    extremely reluctant to adopt the English law as if it is the same as
    our law”.
    58









  1. It will be convenient to
    refer to English law on the subject.









  1. The
    approach of English courts is set out in speech of Lord Diplock in
    the House of Lord’s decision in
    Birkett
    v James
    where he said:








The power
should be exercised only where the court is satisfied either (1) that
the default has been intentional and contumelious, e.g., disobedience
to a peremptory order of the court or conduct amounting to an abuse
of the process of the court; or (2) (a) that there has been
inordinate and inexcusable delay on the part of the plaintiff or his
lawyers, and (b) that such delay will give rise to a substantial risk
that it is not possible to have a fair trial of the issues in the
action or is such as is likely to cause or to have caused serious
prejudice to the defendants either as between themselves and the
plaintiff or between each other or between them and a third party.”
 59








  1. The first limb of the
    grounds for dismissal for want of prosecution included “conduct
    amounting to an abuse of the process of the court". However, in
    Grovit v Doctor, the House of Lords seemed to regard abuse of
    process as constituting a separate ground to strike out for delay
    under the inherent power of the court. Lord Woolf who delivered the
    speech of the House said:








"Mr. Jacob submits that this
appeal raises that issue because the conduct by the plaintiff of
which complaint is made is insufficient by itself to amount to an
abuse of the process of the court so as to satisfy principle (1) [in
Birkett v James]. Furthermore principle (2) is not satisfied
since, although Mr. Jacob accepts there has been inordinate and
inexcusable delay, there has been no serious prejudice to the
defendants.







Although principle
(1) links abuse of process with delay which is intentional and
contumelious, the prevention of abuse of process, has by itself long
been a ground for the courts striking out or staying actions by
virtue of their inherent jurisdiction irrespective of the question of
delay and Lord Diplock's statement of the principles does not affect
this separate ground for striking out or staying proceedings.
60"












  1. Later on he also said:-








“…I am
satisfied that both the deputy judge and the Court of Appeal were
entitled to come to the conclusion which they did as to the reason
for the appellant’s inactivity in the libel action for a period
of over two years. This conduct on the part of the appellant
constituted an abuse of process. The courts exist to enable parties
to have their disputes resolved. To commence and to continue
litigation which you have no intention to bring to conclusion can
amount to an abuse of process. Where this is the situation the party
against whom the proceedings is brought is entitled to apply to have
the action struck out and if justice so requires (which will
frequently be the case) the courts will dismiss the action. The
evidence which was relied upon to establish the abuse of process may
be the plaintiff’s inactivity. The same evidence will then no
doubt be capable of supporting an application to dismiss for want of
prosecution. However, if there is an abuse of process, it is not
strictly necessary to establish want of prosecution under either of
the limbs identified by Lord Diplock in
Birkett
v. James
[1978]
A.C. 297. In this case once the conclusion was reached that the
reason for the delay was one which involved abusing the process of
the court in maintaining proceedings when there was no intention of
carrying the case to trial the court was entitled to dismiss the
proceedings.”
61








  1. It is clear from this
    passage that the House of Lords regards the inherent power to
    prevent abuse as a separate ground for striking out proceedings on
    account of delay. Commencing and continuing litigation that the
    plaintiff has no intention to bring to conclusion can amount to
    abuse of process. To succeed, the defendant would have to establish
    that the plaintiff has commenced litigation that it has no intention
    to conclude and this may be inferred from the plaintiff’s
    inactivity. In this respect English law does not appear differ much
    from what was said in Molala v Minister of Law & Order.
    There the court postulated the enquiry as what plaintiff intended by
    the manner in which the process was used. If plaintiff commences
    litigation with no intention to conclude it, this can amount to
    abuse of process.









  1. Apart from the inherent
    power to prevent abuse, proceedings may also be struck out on the
    basis of the principles enunciated in Birkett v James which
    include intentional or contumelious delay;inordinate and inexcusable
    delay that will give rise to a substantial risk that a fair trial of
    issues will not be possible or is likely to cause prejudice to the
    defendant and other parties. These grounds including the
    continuation of litigation with no intention to bring it to
    conclusion are to my mind all examples of abuse of the process of
    the court.Indeed, it is apparent from the decisions of the House of
    Lords in Birkett v James and Grovit v Doctor that the
    foundation for the power to strike out an action on account of delay
    is predicated on the abuse of process.









  1. Against this background,
    the principles, which are by no means exhaustive,that should be
    applied in considering applications for dismissal of an action on
    account of delay are these:









  1. Inordinate and
    inexcusable delay can amount to abuse of the process of court. But
    as the authorities that I have reviewed show, mere delay and the
    resulting prejudice are not sufficient to justify the dismissal of
    an action for abuse of process. The delay must be both inordinate
    and inexcusable, and must constitute an abuse; the reason for the
    delay must involve the abuse of the process of court.









  1. The question whether the
    delay complained of constitutes an abuse of process is a question of
    fact. The enquiry must be directed towards what the plaintiff
    intended by the delay or to put differently, what were the reasons
    for the delay;why did plaintiff act in the way in
    which he or she did.
    This may be inferred from the
    circumstances of the case.









  1. Thus if the reason for
    the delay is to maintain proceedings which the plaintiff has no
    intention to finalise, this can amount to abuse. This is the example
    of abuse that was involved in
    Grovit
    v Doctor
    .
    In that case the proceedings were dismissed because the reason for
    the delay involved abusing the process of the court in maintaining
    proceedings when there was no intention of carrying the case to
    trial.
    62Where
    the reason for the delay is to prejudice the defendant in the
    conduct of his or her defence, this too can amount to abuse. This is
    the abuse that the court in
    Molala
    v Minister of Law & Order
    had
    in mind.This form of abuse is probably covered by the first limb of
    the statement of Lord Diplock in
    Birkett.









  1. But what must be
    stressed is a point that has already been made, namely, that the
    question whether delay constitutes an abuse must be determined by
    the circumstances of a case. Factors that will generally be relevant
    to this enquiry include the length of the delay; any explanation put
    forward for the delay; the prejudice caused to the defendant by the
    delay; the effect of the delay on the conduct of the trial, in
    particular, whether there is a substantial risk that a fair trial of
    issues will no longer be possible; the effect of the delay on other
    litigants and other proceedings; the extent, if any, to which the
    defendant can be said to have contributed to the delay; the conduct
    of the claimant and the defendant in relation to the action; other
    special factors of relevance in the particular case.









  1. From what is said above,
    it clear that prejudice has a particular role in applications of
    this nature. While the plaintiff’s action may not be dismissed
    simply because of prejudice to the defendant, prejudice to the
    defendant is a factor that “may or may not assist in
    justifying an inference” to abuse of process.
    63
    It can justify the
    inference that the plaintiff intended to abuse the court process by
    causing prejudice to the defendant in the conduct of his or her
    defence.









  1. It seems to me that
    where the delay is inordinate and inexcusable and is such that it
    will give rise to a substantial risk that a fair trial of issues
    will no longer be possible or where it is such that it is likely to
    cause serious prejudice to the defendant, this can amount to abuse.
    In
    Molala
    v Minister of Law & Order
    the
    court found that “[o]bjectively, the administration of justice
    was also burdened in this case with a decreased prospect of
    accurately finding the truth and of justice being satisfactorily
    administered” and that this was prejudicial to the defendant.
    64
    In effect the court
    found that the delay was such that it was no longer possible to have
    a fair trial of issues.This is the example of abuse that is referred
    to in the second limb of the statement of Lord Diplock in
    Birkett
    v James
    .
    Prejudice here is relevant to establish abuse.









  1. As would have been
    apparent from what is said above, even in the case whether abuse has
    been established, the court has a discretion whether or not to
    dismiss the action. Prejudice will be a relevant consideration when
    the court exercises its discretion to decide how to deal with the
    abuse in question. As the court said in
    Molala
    v Minister of Law & Order
    prejudice
    to the defendant “is…a factor insofar as the Court, on
    an overall view of the case, is to exercise a discretion about how
    to deal with a proven abuse of process”.
    65
    Obviously, at this
    stage, the court will, in the exercise of its discretion, also
    consider prejudice to the plaintiff. I therefore agree with the High
    Court that prejudice has a dual role in matters of this nature.









  1. But while prejudice has
    an important role to play in the exercise of the court’s
    discretion, it is not the only consideration. The court must have
    regard to the drastic nature of remedy to summarily dismiss an
    action. It is a remedy that interferes with the right of a litigant
    to fully present his or her case in court. It must therefore be used
    sparingly.









  1. Equally relevant is the
    impact of the delay in the conduct of the trial. That it is no
    longer possible to have a fair trial of issues is a relevant factor
    as it has an impact on the proper administration of justice. No
    court of justice can insist on proceedings continuing when it is
    manifestly clear that a fair trial is no longer possible as a result
    of the delay. To do otherwise, may very well bring the
    administration of justice into disrepute and, ultimately, may erode
    public confidence in the judiciary.









  1. Finally, it is apparent
    from the authorites referred to above that the ultimate
    consideration is the interests of justice. Once an abused has been
    established, the ultimate question to ask is what is in the
    interests of justice, in other words, on an overall view of the
    case, what does justice demands.









  1. Before leaving this
    aspect of the case,
    it
    is necessary to deal with the High Court’s criticism of the
    view expressed in
    Gopaul
    v Subbamah
    that
    the court must also look at the conduct of the defendant and if

    a
    defendant had failed to avail himself of the remedies to compel a
    dilatory plaintiff to progress to the next step in litigation when
    he might reasonably have been expected to do so, the Court will look
    askance at an application by him to dismiss the plaintiff's action
    merely because of a delay in the prosecution.
    66The
    High Court took the view that as
    dominislitisthe
    plaintiff bears the responsibility to prosecute the action and that
    the use of the procedural devices is “discretionary in nature”
    and that therefore“the defendant may, quite legitimately, sit
    back and do nothing”.
    67









  1. There are sound reasons
    why courts should not sanction the proposition that because the
    plaintiff is the dominislitis, the defendant may legitimately
    sit idly by while delays accumulate. In the first place it is
    inimical to the public interest in the administration of justice
    that disputes be brought to trialand be resolved expeditiously,
    effectively and efficiently. Inordinate delays in the administration
    of justice, undermines public confidence in the administration of
    justice. To this extent Rules of Court provide procedural devices to
    force a dilatory party to progress to the next step in
    litigation.These devices not only facilitate speedy resolution of
    disputes, but they also prevent prejudice to the non-defaulting that
    may be caused by inordinate delay.









  1. While inactivity of the
    defendant does not justify the dilatory conduct of the plaintiff, it
    is certainly relevant in the court’s exercise of its
    discretion whether or not to grant relief. But apart from this, the
    use of compelling devices may, in an appropriate case, strengthen
    the defendant’s case by showing a history of a plaintiff who
    had to be compelled to take the next step in litigation at every
    step of the way. Such conduct on the part of the plaintiff, viewed
    with other conduct in the course of litigation may justify a
    conclusion that the plaintiff has no intention to bring litigation
    to conclusion.









  1. In the second place, it
    may cause delays in the justice system. It encourages the defendant
    to do little or nothing to progress litigation.And this may in turn
    encourage litigation tactics on the part of some defendants to
    permit actions “to go to sleep” and to adopt the “let
    sleeping dogs lie” attitude. These defendants sit
    idly by while delays accumulate in the hope that, if of sufficient
    length, the delay can lead to a chance to apply for the dismissal of
    the action. They will then use the very delay that they have allowed
    to occur and the very prejudice that they have not sought to prevent
    through the compelling devices, as the basis for the relief.









  1. Inordinate delays have
    become a blot in the administration of justice. One of the foremost
    factors that accounts for these delays is that the pace of
    litigation, with few exceptions, is left in the hands of the
    litigants. This is exacerbated by the adversary system that prevails
    in our courts. With certain irrelevant exceptions, the courts cannot
    act of their own motion but on the application of one or other of
    the parties. Courts are passive and only get involved when the
    parties choose to involve them. In this atmosphere procedural
    devices that are designed to expedite litigation and prevent delays
    as well as the resultant prejudice are seldom used. Parties grant
    one another generous extensions of time and only bring matters to
    court at their convenience.









  1. It is this feature of
    the civil justice system that has prompted the introduction of the
    judicial case management system in many countries including this
    country. The advent of the judicial case
    management introduced by the Judicial Case Management(JCM) Ruleshas
    brought about a fundamental change in the litigation culture. As
    Damaseb JP recently commented on the JCMRules:








"The case
management rules of this court represent a radical departure from the
civil process of old. Litigation is now no longer left to the parties
alone. The resolution of disputes is now as much the business of the
judges of this court as it is of the parties. Courts exist to serve
the public as a whole and not merely the parties to a particular
dispute before court at a given time.
68"








  1. This radical departure
    is apparent from the objectives JCM which include:








(a) to ensure the speedy
disposal of any action or application;







(b) to promote the prompt and economic
disposal of any action or application;







(c) to use efficiently the available
judicial, legal and administrative resources;







(d) to provide for a court-controlled
process in litigation;







(e) to identify issues in dispute at
an early stage;







(f) to determine the course of the
proceedings so that the parties are aware of succeeding events and
stages and the likely time and costs involved;







(g) to curtail proceedings;







(h) to reduce the delay and expense of
interlocutory processes…”












  1. And the JCM Rules spell
    out the obligations of the parties and their legal representatives,
    which is to :








(a) assist the managing judge
in curtailing the proceedings;







(b) comply with rule 37 and other
rules regarding judicial case management;







(c) comply with any direction given by
the managing judge at any case management conference or status
hearing; and







(d) attend all case management
conferences, pre-trial conferences and status hearings caused to be
arranged by the managing judge.”












  1. The
    main purpose of the JCM is to bring about a change in litigation
    culture. The principal objectives of the JCM are to: ensure that
    parties to litigation are brought as expeditiously as possible to a
    resolution of their disputes, whether by way of adjudication or by
    settlement; increase the cost effectiveness of the civil justice
    systemand to eliminate delays in litigation; promote active case
    management by the courts and in doing so, not only facilitate the
    expeditious resolution of disputes, but also bearing in mind the
    position of other litigants and the courts’ own resources; and
    inculcate a culture among litigants and their legal representatives
    that there exists a duty to assist the court in furthering the
    objectives ofJCM.









  1. With
    the advent of the JCM Rules where all parties to the proceedings
    have the obligation to prosecute the proceedings and assist the
    Court in furthering the underlying objectives, it would be highly
    relevant to consider any inaction on the part of the parties.And
    there is no place for defendants to adopt the attitude of “letting
    sleeping dogs lie” and for a defendant to sit idly by and do
    nothing, in the hope that sufficient delay would be accumulated so
    that some sort of prejudice can then be asserted.









  1. To
    conclude this aspect of the case, in the exercise of their
    discretion whether or not to summarily dismiss an action on account
    of delay, courts must bear in mind that t
    he
    rule of law requires the existence of courts for the determination
    of disputes and that litigants have a right to use the courts for
    this purpose. But courts must also, however, be alert to their
    processes being used in a way that results in an injustice or that
    would bring the administration of justice into disrepute. They
    should guard against this as it may undermine public confidence in
    the administration of justice and, ultimately, the rule of law. And
    the court cannot afford the loss of confidence in the administration
    of justice, as their authority “ultimately rests on sustained
    public confidence in its moral sanction".
    69









  1. And now to the facts of
    this case.








Application of the
principles to this case




  1. The manner in which the
    plaintiff has conducted the litigation leaves a great deal to be
    desired. The litigation has been punctuated by two inordinate
    delays; it took more than three and a half years for the plaintiff
    to respond to a request for further particulars, and it took a
    further nine and a half months for the plaintiff to deliver its
    amended particulars of claim. While the change in the status of the
    plaintiff and the resultant reduction in its personnel, the
    subsequent uncertainty over its future status that prevailed since
    15 May 2003 when the coming into operation of the winding up
    provisions of Namibia Development Bank Act, 2000, were suspended,
    and the change in its legal representatives, relied upon by the
    plaintiff, cannot be ignored, these do not provide a satisfactory
    explanation for the inordinate delay.









  1. Nevertheless,
    the existence of some explanation though not satisfactory, and the
    facts supporting it, casts doubt as to whether the conduct of the
    plaintiff can be said to amount to abuse of the process of the
    court.
    Merely for the plaintiff to commence litigation and
    then delay, which often involves a failure to comply with the
    applicable Rules of Court, will not necessarily amount to an abuse.
    The appropriate remedy in such a case is to seek an order to compel
    compliance on pain of dismissal of the action. For delay to justify
    the dismissal of an action, it must be clear that the plaintiff is
    abusing the process of the court.









  1. In these circumstances,
    I am unable to conclude that the High Court was wrong in its
    conclusion that the plaintiff was not guilty of dilatory abuse. Nor
    can I say that the High Court exercised its discretion wrongly.
    While the High Court did not indicate the factors that it took into
    account in exercising its discretion, there is amply evidence to
    warrant the manner in which the High Court exercised its discretion.
    The relief sought is a drastic measure and must be resorted to in a
    clear case. It is true the plaintiff has been guilty of inordinate
    delay and there is no satisfactory explanation for this, but
    such delay will not normally, in the absence of some other special
    feature, be sufficient to justify an order dismissing the
    plaintiff’s action. T
    here is nothing to show that the
    plaintiff intended to abuse the process of court by this delay.









  1. On
    the issue of prejudice, the defendant submitted that it has lost the
    opportunity to pursue its counter-claim because it has become
    prescribed. It says it did not take any steps to safeguard its
    counter-claim from becoming prescribed because it believed “that
    the plaintiff did not seriously intend to pursue its claims”.

    It now complains that it was plaintiff’s
    inordinate delay in prosecuting its action and not its inaction that
    has resulted in its counter-claim to become prescribed. In effect
    what the defendant is saying is that it sat idly by and adopted the
    “let the sleeping dogs lie attitude” in the hope that
    the main claim will die together with its counter-claim. Unbeknown
    to the defendant, the plaintiff’s claim was simply unconscious
    while its counter-claim went into permanent sleep.









  1. The defendant’s
    counter-claim, if it has become prescribed, has become prescribed
    due to the defendant’s inactivity.It could
    have taken a number of steps to safeguard its counter-claim by, for
    example, resort to the procedural devices to force the plaintiff to
    progress expeditiously with the litigation. It did nothing other
    than to wait for the delay to be long enough for it to contend that
    the plaintiff has no intention to bring its claim to conclusion. To
    this extent it was even prepared to sacrifice its counter-claim.
    Apart from this, it is debatable whether the defendant is entitled
    to rely on the alleged counter-claim. I am unable to conclude that
    the delay and the circumstances of this case justify the inference
    that the plaintiff intended to prejudice the defendant in its
    counter-claim.









  1. What
    must be stressed here is that mere prejudice is not sufficient to
    establish abuse. The plaintiff cannot be “barred simply
    because the defendants were prejudiced”.
    70
    Prejudice
    is a factor that may assist in justifying the inference that the
    plaintiff intended to prejudice the defendant and thus abused the
    court process. The evidence simply does not justify the inference
    that the reason for delay in this case involved abusing the process
    by prejudicing the defendant in the conduct of its defence.









  1. The defendant has made
    sweeping statements about a fire that ravaged some of its
    storerooms, withoutindicating whether the documents relevant to this
    case were kept in those storerooms; and that a number of witnesses
    who could have been of assistance to it if the action had been
    prosecuted timeously, including the official who signed all the
    agreements, may in future not have a clear recollection of the
    facts. There is no indication why these particular witnesses may not
    have a clear recollection of facts.









  1. It is true over time
    memories fade, but as the High Court correctly observed, the nature
    of the issues involved are relatively straight forward. The signing
    of the agreements is not in dispute. Nor is it in dispute that the
    defendant only paid the first installment that was due on 31 March
    2001 and did not pay subsequent installments. Apart from the legal
    issues raised by the defendant, the question will, as the High Court
    found, how much, if anything, must the defendant pay the plaintiff.
    In any event, having regard to the defences raised by the defendant,
    I am not satisfied that the defendant will be prejudiced in the
    conduct of its defence or that the delay in this case involve
    abusing of the process of court in causing prejudice to the
    defendant.









  1. On facts and
    circumstances of this case, it cannot be said that a fair trial of
    issues in this case is no longer possible. Nor does the prejudice
    alleged, justify an inference of abuse. The evidence in this case
    falls far short of establishing that the reason for the delay
    involved the abuse of the process of court.









  1. In all the
    circumstances, I am unable to find fault with the conclusion of the
    High Court on this aspect of the case. Nor can the conclusion of the
    High Court that even if it were to conclude that the plaintiff was
    guilty of abuse, this is not such an exceptional case where the
    court should exercise its discretion in favour of the defendant. As
    can be seen from the history of the proceedings, the defendant has
    not itself shown much enthusiasm in revealing the true nature of its
    defence other than the technical defences nor to progress the
    proceedings to an effective resolution of its dispute with the
    plaintiff.









  1. It is the conduct of the
    defendants who adopt the attitude of “letting sleeping dogs
    lie” and failure to use the procedural devices that are
    available under the Rules to compel the dilatory plaintiff to bring
    the actions to finality that accounts for some of the delays in the
    civil justice system. Eight years since litigation commenced, it has
    hardly progressed beyond the delivery of amended particulars of
    claim, the defendant has yet to plead and the case is nowhere near
    trial. There is nothing to suggest that the procedural devices to
    force a dilatory plaintiff to take the next step in litigation were
    at any stage used in the course of the delay now complained of.









  1. Overall justice in this
    case does not demand that the plaintiff’s claim be dismissed.
    While there is much that could have prompted the defendant to seek
    the dismissal of the plaintiff’s action, this is by no means a
    clear case of abuse that would prompt the court to dismiss the
    action; certainly it is by no means plain and obvious that this
    ultimate sanction should be utilized. No doubt, with the delay that
    has already taken place in this action, the present applications
    have, to date, taken over three years to resolve, the court and the
    parties will now be keen to move these proceedings along at a more
    acceptable pace. This will be in the interest of everyone.









  1. It follows therefore
    that the appeal against the order refusing to
    dismiss the plaintiff’s action on account of inordinate delay
    must therefore fail. It now remains to consider the appeal against
    the dismissal of the defendant’s Rule 30 application.
















The appeal against the
dismissal of Rule 30 application.




  1. As pointed out above the
    plaintiff’s amended particulars of claim were filed some nine
    and a half months late and the plaintiff did not seek condonationfor
    such late filing. It is this step that the defendant contended was
    irregular within the meaning of Rule 30. That Rule provides that
    “[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 set aside the step or
    proceeding”.
    71









  1. The High Court dismissed
    this application holding that the defendant had failed to allege and
    establish prejudice, a prerequisite for success in a Rule 30
    application.
    72In
    this Court, the defendant challenged this finding of the High Court
    and submitted that Rule 30 does not require prejudice. It maintained
    that the late filing of the amended particulars of claim without an
    application for condonation is an irregular step as envisaged in
    Rule 30. For its part, the plaintiff supported the reasoning of the
    High Court, and in addition, contended that the defendant’s
    remedy lay in Rule 26 to compel the delivery of the amended
    particulars of claim.
    73
    It submitted that the
    resort to Rule 30 in the circumstances was an abuse of Rule 30.









  1. The key finding of the
    High Court was that:








"As the
defendant has not shown that it has suffered prejudice as envisaged
in Rule 30, the result should therefore be that defendant's Rule 30
application be dismissed. Naturally, it should then follow that
plaintiff's amended particulars of claim is not an irregular step,
but a regular one.
74"












  1. The reasoning
    underpinning this finding appears from the following passage:








"Rule 30
concerns 'irregular proceedings or steps'. Rule 30 does not determine
that a step or proceeding can be set aside if it 'does not comply
with the Rules'. In short, all non-compliances with the Rules do not
necessarily constitute irregular steps or proceedings as envisaged in
Rule 30. Something more is required: prejudice. Rule 30(1) leaves a
litigant who receives a proceeding or document which does not comply
with the Rules, with an option. He can either lodge a Rule 30
application, or take a further step. If a further step is taken, or
if he waits longer than 15 days to lodge a Rule 30 application, the
non-compliance of the Rules by his adversary is automatically
condoned by Rule 30(1) — without a formal condonation.
75"








  1. The reasoning of the
    High Court raises the question as to whether prejudice is a
    prerequisite for declaring a step irregular under Rule 30. On its
    face the Rule does not require prejudice. Rule 30 contemplates two
    separate but interrelated enquiries, which should not be conflated.
    The first is whether the step or proceeding complained of is
    irregular. The answer to this question must be determined by
    considering the step itself in the light of the meaning of an
    irregular step or proceeding. The second enquiry, which only arises
    once it is established that the step complained of is irregular, is
    what order should follow the finding of an irregularity. In this
    enquiry, the court has discretion whether or not to overlook
    irregularity.
    76
    It is in this enquiry
    where prejudice is relevant.









  1. Prejudice is therefore
    relevant not to the enquiry whether the step is irregular, but to
    the second enquiry, whether or not the irregular step ought to be
    set aside. Irregularity must be determined by reference to the
    pleading complained of. The irregularity of a step does not depend
    on whether or notthe non-defaulting party has suffered any prejudice
    but depends on the character of the step or proceeding complained
    of.









  1. The High Court relied
    upon the judgment of Silingwe J in
    China
    State Construction Engineering Corporation (Southern Africa) (Pty)
    Ltd v Pro Joinery CC
    77for
    its conclusion that prejudice is a prerequisite for a successful
    Rule 30 application. There the court was concerned with the issue of
    costs in an application for default judgment. In the course of
    argument, it was submitted that the applicant was entitled to ignore
    the summons because it was excepiable. The High Court considered
    this submission in the context of a Rule 30 application. It held
    that the proper course for a party who is prejudiced by an irregular
    step is not simply to ignore the step but to have it set aside under
    Rule 30.









  1. The key passage in the
    judgment is the following:








"It
is, of course, important to be mindful of the fact that the court has
discretion whether or not to grant the application, even if the
irregularity is established. The general approach is that, in a
proper case, the court is entitled to overlook any irregularity in
procedure which does not occasion any substantial prejudice. Such an
approach was affirmed by Hoff J in
Gariseb
v Bayerl
2003
NR 118 (HC)
,
where he said at 121I - 122A-B:







This Court
has a discretion to overlook any irregularity in procedure which does
not work any substantial prejudice…’







In Trans-African
Insurance Co Ltd v Maluleka

1956 (2)
SA 273 (A) at 278F - G Schreiner JA said the following:



'(T)echnical
objections to less than perfect procedural steps shouldnot be
permitted in the absence of prejudice, to interfere with the
expeditious and, if possible, inexpensive decision of cases on the
real merits.’
78"








  1. Significantly, the court
    held that “the court has a discretion whether or not to grant
    the application even if the irregularity is established”,
    79
    and further that “the
    court is entitled to overlook any irregularity in procedure which
    does not occasion substantial prejudice”.
    80
    It was in this context
    that the Court held that “prejudice is a prerequisite to
    success in an application in terms of Rule 30”.
    81









  1. What is apparent from
    this passage is that the High Court made a distinction between a
    finding that a step or proceeding is irregular and the order that
    must follow from such finding. A court hearing a Rule 30 application
    must first make a finding as to whether or not the step complained
    of is irregular. If the court finds that the step is irregular,
    subrule 30(3) gives the court discretion whether or not to “set
    it aside …and grant leave to amend or make any such order as
    to it seems meet”. It is a discretion that, like all
    discretions, must be exercised properly and in the course of which
    prejudice will be an important consideration.









  1. It is in this context
    the statement in the China State Construction Engineering
    Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC
    relied
    upon by the High Court, namely, that “prejudice is a
    prerequisite to success in an application in terms of Rule 30”,
    must be understood. It means success in the sense that the irregular
    step is set aside and not success in the sense of a finding that the
    step complained of is irregular. If the High Court and the court
    inChina State Construction Engineering Corporation (Southern
    Africa)(Pty) Ltd v Pro Joinery CC
    intended to hold that
    prejudice is a prerequisite for a finding that a step is irregular
    under Rule 30, I am unable to agree with that view.









  1. The threshold question
    therefore is whether or not the late filing of amended particulars
    of claim without an application for condonationis an irregular step
    under Rule 30. The Rules do not define the meaning of irregular; it
    must therefore bear its ordinary dictionary meaning. The Concise
    Oxford Dictionary defines “irregular” to mean “contrary
    to a rule, standard or convention”; “having inflections
    that do not conform to the usual rule”. The word “irregular”
    as used in the Rule is wide enough to include non-compliance with
    the Rules, for non-compliance with the Rules is as contrary to the
    Rules as a summons that is not properly signed.









  1. The High Court cited the
    following passage fromMolala v Minister of Law & Order and
    Another, supra,








"Then it was
contended that respondent's
failure
to deliver
further
particulars within a reasonable time is an irregular step within the
meaning of Court Rule 30. If it were at all possible for the omission
of a step to be regarded as a 'step', I am unconvinced that failure
to deliver a plea within the permissible time falls within Rule 30.
In any event I do not understand what the Court is supposed to set
aside if nothing was done; nothing was brought into being.







Turning to the
third prayer, the complaint is that the lateness of delivery
caused the
delivery
of the further
particulars in 1991 to be an 'irregular step'. (If that is so, almost
every action in this Division is tainted by such an irregular step.)
The further particulars were in proper form. Plaintiff, in contrast
with a step which a party is entitled to omit, for example asking for
the production of documents at the trial, remained obliged to
delivery thereof. In fact, it is when (and because) delivery is
overdue that the Court compels a party to deliver his response. It
would make no sense if it were so that a Court thereby compels the
plaintiff to an irregular step or to believe that compliance with
such an order will leave the delivery open to an application in terms
of Rule 30. The only defect affecting delivery of the particulars
rendered it a belated step but not an irregular one within the
meaning of Rule 30.
82"












  1. The Court in Molala
    v Minister of Law & Order
    did
    not cite any authority for the statement that “[t]he only
    defect affecting delivery of the particulars renders it a belated
    step, but not an irregular one within the meaning of Rule
    30”.However, there is a line of cases which appear to express
    a contrary view. Cases dealing with the question whether a plaintiff
    is entitled to seek default judgment and simply ignore appearance to
    defend that was filed late seem to hold otherwise.In each of these
    cases it was accepted that the late filing of entry of appearance to
    defend was an irregular step.
    83
    The principle upon which
    the decision in these cases seems to rest is that the filing of a
    pleading outside the time limit allowed by the Rules is an irregular
    step.









  1. Apart
    from these cases, it has been held that the Rule is applicable
    where, for example: a proper power of attorney had not been filed
    84;
    pleadings are not signed in accordance with the Rules or do not
    comply with the Rules as to form
    85;
    notice of intention to defend is delivered out of time
    86;
    a notice of appeal is defective
    87;
    an application is brought on short notice on grounds of urgency, but
    no reasons of urgency are set out in the supporting affidavits
    88;
    and a party failed to give notice resulting in the proceedings
    taking place in the absence of the opposite party.
    89In
    each of these cases the act complained of was not in compliance with
    the Rules of Court. The act itself was in breach of the Rules and,
    on that account, constituted the irregular step or proceeding.









  1. The principle involved
    in these cases is that a step or proceeding taken in breach of the
    Rules constitutes an irregular step or proceeding. This principle is
    in accord with the ordinary meaning of the word “irregular”.
    The word “irregular” is a word of wide importand there
    is nothing to suggest that it was not intended to apply to pleadings
    filed late. That the non-defaulting party may have some other remedy
    under the Rules such as that contemplated in Rule 30(5) does not
    detract from the wide ambit of the word. The existence of other
    remedies such Rule 30(5) may be a factor for the court to take into
    consideration in the exercise of its discretion whether or not to
    set aside the irregular step. But it does not affect the question
    whether or not the step complained of is irregular.









  1. In resisting the
    application, the plaintiff submitted that the defendant’s
    remedy lay in Rule 26 which permits a non-defaulting party to
    deliver a notice of bar to the defaulting party. But that remedy is
    available while the pleading remains outstanding. And as I have
    pointed out above, the existence of this remedy does not affect the
    question whether or not the pleading delivered late is an irregular
    step.









  1. For these reasons, I
    conclude that the late delivery of the amended particulars of claim
    without an application for condonationconstituted an irregular step.
    The question is whether in the exercise of its discretion, the court
    should set asidethe amended particulars of claim. The High Court did
    not consider this aspect of the case as it took the view that the
    defendant did not allege or establish prejudice. This Court is
    entitled to consider this aspect.









  1. As pointed out above,
    the court has discretion whether or not to set aside the irregular
    step.This is implicit, if not explicit from Rule 30(3). I endorse
    the statement in
    China
    State Construction Engineering Corporation (Southern Africa) (Pty)
    Ltd v Pro Joinery CC
    that
    the court has discretion whether or not to grant the application to
    set aside the irregular step even if the irregularity has been
    established. The court may, in the exercise of its discretion,
    overlook the irregularity. A relevant consideration in this regard
    is prejudice. Prejudice that is required relates to the “exercise
    of a party’s procedural right or duty to respond to a
    communication received or to the taking of a next step in the
    sequence of permissible procedure to ripen the matter for
    properorderly hearing”.
    90









  1. The principle involved
    here is that enunciated by Schreiner JA, namely, that while legal
    practitioners should not be encouraged to become slack in the
    observance of the Rules, which are vital to the administration of
    justice, “technical objections to less than perfect procedural
    steps should not be permitted, in the absence of prejudice, to
    interfere with the expeditious and if possible, inexpensive decision
    of cases on their real merits”.
    91
    Thus where prejudice is
    absent, an order to set aside a step under Rule 30 will not be
    granted.









  1. And then to the facts of
    this case.








Application of the
principles to this case




  1. The complaint here
    relates to the late filing of the amended particulars of claim. The
    defendant knew at least nine and a half months prior to the filing
    of amended particulars of claim that the plaintiff intended to amend
    its particulars of claim and the extent of the amendment. It did not
    have any objection to the proposed amendment. The only prejudice
    that the defendant suffered was delay and inability to exercise its
    procedural right to respond to the amended particulars of claim.
    This prejudice could have been avoided by resorting to Rule 26 and
    compelling the plaintiff to file its amended particulars of claim or
    be barred.









  1. But now that the
    particulars of claim have been filed, it is difficult to see what
    prejudice, if any, that the defendant will suffer if the amended
    particulars of claim are not set aside. Counsel was unable to point
    out to any such prejudice. Indeed, he could hardly do so in the
    light of the fact that throughout the period of delay, the defendant
    knew the extent of the proposed amendment and acting diligently it
    could safeguarded its rights. And weighing prejudice, if any, to the
    defendant if the amended particulars of claim is not set aside
    against prejudice to the plaintiff if the amended particulars of
    claim is set aside, the prejudice to the plaintiff outweighs that of
    the defendant.









  1. In these circumstances,
    it will not be just and proper to set aside the amended particulars
    of claim. The appeal against the dismissal of Rule 30 application
    must therefore be dismissed.









  1. It now remains to
    consider the question of costs








Costs




  1. As a general matter,
    costs should follow the result. Pursuant to this general rule the
    High Court awarded costs against the defendant. Sitting as the court
    of first instance, in view of the conduct of the plaintiff which
    justified these proceedings being brought, I would have ordered each
    party to bear its own costs. But that is not the test. The proper
    approach to the issue of costs on appeal is that set out by Corbett
    JA (as he then was) inAttorney-General, Eastern Cape v Blom and
    Others
    where he said:








In awarding
costs, the Court of first instance exercises a judicial discretion
and a Court of appeal will not readily interfere with the exercise of
that discretion. The power of interference on appeal is limited to
cases of vitiation by misdirection or irregularity, or the absence of
grounds on which a court, acting reasonably, could have made the
order in question. The Court of appeal cannot interfere merely on the
ground that it would itself have made a different order.”
92








  1. In determining costs,
    the High Court took into consideration the conduct of the plaintiff
    which it found dilatory though bona fide and awarded costs on
    an ordinary scale. I am unable to find any misdirection or
    irregularity on the part of the High Court. The order for costs made
    by it must therefore left undisturbed.









  1. Different considerations
    apply to costs in this Court. The manner in which the plaintiff
    conducted litigation is sufficiently reprehensible to warrant a
    departure from the general rule that the costs should follow the
    result. There were two inordinate delays and no satisfactory
    explanation was offered. While I have found that that the plaintiff
    was not guilty of dilatory abuse, that does not detract from the
    unacceptable manner in which it has conducted this litigation.
    Justice demands that it be deprived of the costs though successful.
    The costs must therefore be allowed to lie where they fall.









  1. In the event, the
    following order is made:










  1. The appeal is dismissed.



  2. There will be no order
    for costs in this Court.



  3. The order of the High
    Court is upheld.













________________________



NGCOBO AJA



















I agree.



















________________________



MARITZ, JA















I agree.



















________________________



MAINGA, JA































































COUNSEL
ON BEHALF OF THE APPELLANT:



Mr
T A Barnard



Instructed
by:



Diekmann
Associates











COUNSEL
ON BEHALF OF RESPONDENT:



Mr
T J Frank SC



Assisted
by:



Mr
G Dicks



Instructed
by:



Engling,
Stritter& Partners









1The
decision of the High Court is reported as Namibian Development
Corporation v Aussenkehr Farms (Pty) Ltd
2010 (2) NR 703.





2Rule
28 provides:



28. (1) Any party
desiring to amend any pleading or document other than an affidavit,
filed in connection with any proceeding, may give notice to all
other parties to the proceeding of his or her intention so to amend.



(2) Such notice shall
state that unless objection in writing to the proposed amendment is
made within 10 days the party giving the notice will amend the
pleading or document in question accordingly.



(3) If no objection in
writing be so made, the party receiving such notice shall be deemed
to have agreed to the amendment.



(4) If objection is made
within the said period, which objection shall clearly and concisely
state the grounds upon which it is founded, the party wishing to
pursue the amendment shall within 10 days after the receipt of such
objection, apply to court on notice for leave to amend and set the
matter down for hearing, and the court may make such order thereon
as to it seems meet.



(5) Whenever the court
has ordered an amendment or no objection has been made within the
time prescribed in sub-rule (2), the party amending shall deliver
the amendment within the time specified in the court’s order
or within 5 days after the expiry of the time prescribed in sub-rule
(2), as the case may be.



(6)
When an amendment to a pleading has been delivered in terms of this
rule, the other party shall be entitled to plead thereto or amend
consequentially any pleading already filed by him or her within
15
days of the receipt of the amended pleading.



(7) A party giving
notice of amendment shall, unless the court otherwise orders, be
liable to pay the costs thereby occasioned to any other party.



(8) The court may
during the hearing at any stage before judgment grant leave to amend
any pleading or document on such terms as to costs or otherwise as
to it seems meet.


(9)
Where any amendment is made it shall be made on a separate page to
be added in an appropriate place to the pleading or the document
amended.





3Rule
21(6) provides: “If the party requested to
furnish any particulars as aforesaid fails to deliver them timeously
or sufficiently, the party requesting the same may apply to court
for an order for their delivery or for the dismissal of the action
or the striking out of the defence, whereupon the court may make
such order as to it seems meet.”





4Western
Assurance Co v Caldwell’s Trustees
1918 AD 262 at 272;
African Farms Township v Cape Town Municipality 1963(2) SA
555 (A) at 565D-E; Corderoy v Union Government 1918 AD 512 at
517; Hudson v Hudson and Another1927
AD 259 at 268;
Beinash v Wixley
1997 (3) SA 721 (SCA) at 734C-G.





5At
268.





6Hunter
v Chief Constable of the West Midlands Police
[1981] UKHL 13
(1982) AC 529 at 536.





7Moevao
v. Department of Labour
(29) (1980) 1 NZLR 464, at p 481.





8Baker
v Carr
369 US 186, 267 (1962).





9Varawa
v Howard Smith Co Ltd
(1911) 13 CLR 35 at 91.





10Short
Oxford English Dictionary
; Fisheries Development Corporation
of SA Ltd v Jorgensen and Another: Fisheries Development Corporation
of SA Ltd v AWJ Investments (Pty) Ltd and Others
1979 (3) SA
1331 (W) at 1339E-G.





11Hudson
v Hudson and another
supra at 268





12Beinash
v Wixley, supra,
at 734C-G.





13[2004]
ZASCA 64; 3 All SA 20 (SCA) (1June 2004) SAFLII at para 50





14Walton
v Gardiner
[1993] HCA 77; (1993) 177 CLR 378; (1993) 112 ACR
289.





15Price
Waterhouse Coopers and Others v National Potato Co-operative Ltd
,
supra, at para 50.





16Id.





17Id.





18Beinash
v Wixley, supra,
at 734F-G.





19African
Farms Township v Cape Town Municipality
1963(2) SA 555 (A) at
565D-F; L F Boshoff Investment v Cape Town Municipality 1969
(2) SA 256 at 275B-C.





20Article
12 (1) (a) of the Constitution. In this case we are not called upon
to consider the constitutionality of this inherent power and
therefore express no opinion on that issue





21Corderoy
v Union Government
1918 AD 512 at p 519.





22Western
Assurance Co v Caldwell’s Trustees
, supra, at 274.





23Hudson
v Hudson and Another
1927 AD 259 at p 268.





24Western
Assurance Co v Caldwell’s Trustees
1918 AD 262 at 272;
African Farms Township v Cape Town Municipality 1963(2) SA
555 (A) at 565D-F; Corderoy v Union Government 1918 AD 512 at
517;Beinash v Wixley1997 (3) SA 721 (SCA).





2539
Ch.D. at p. 234.





261935
CPD 269 at p. 276; See also
African Farms Township v Cape
Town Municipality
at 565D-FTexas Company
(S.A.) Ltd v Wilson Bros. Garage
, 1936
NPD 510 at p. 515.





27Ravden
v Beeten
1935
CPD 269 at 276;
Burnham
v Fakheer
1938
NPD 63;
African
Farms Township v Cape Town Municipality
at
565D-E;
LF
Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town
Municipalityv LF Boshoff Investments (Pty) Ltd
1969
(2) SA 256(C)
at275B-D;Bisset
and Others v Boland Bank Ltd and Others, 1991 (4) SA 603 (D) at
608F-G.





28[2008]
ZEST 7 (27 May 2008) SAFII.





29General
Steel Industries Inc. v. Commissioner for Railways (N.S.W.
)
[1964]
HCA 69
; (1964)
112 CLR 125
at 129.





30Argus
Printing & Publishing Co Ltd v Anastassiades
1954 (1) SA 72
(W) at 74.





31Per
Lord Herschell at 220





32Western
Assurance Co v Caldwell’s Trustees
, supra, at 275





33Batistatos
v Road and Traffic Authority NSW,
[2006] HCA 27 at para 11





34Western
Assurance Co v Caldwell’s Trustees, supra
at 272.





3539
Ch.D. at p. 234.





36Per
Dixon J (as he then was) in Dey v Victoria Railway Commissioners
[1949] HCA 1 at p 91 at para 13.





37Western
Assurance Co v Caldwell’s Trustees
, supra, at 275.





38Nash
v Golden Dumps (Pty) Ltd
1985 (3) SA 1 (A) at 22D-H.





39Act
No 68 of 1969.





40Mazibuko
v Ginger
1979 (3) SA 258 (W) at 266B-C; Standard Bank of SA v
OneanateInvestment (In Liquidation)
1998 (1) SA 811 (SCA) at
826H-I.





41In
S v Kearney 1964 (2) SA 495 (A), Holmes JA stated (at 504B –
C): “When a court of first instance gives a decision on a
matter entrusted to its discretion, a Court of appeal can interfere
only if the decision is vitiated by misdirection or irregularity or
is one to which no Court could reasonably have come - in other words
if a judicial discretion was not exercised.” Compare also:
Mahomed v Kazi's Agencies (Pty) Ltd and Others 1949 (1) SA
1162 (N); Ex parte Neethling and Others 1951 (4) SA 331 (A)
at 335D - E and the discussion of those and other authorities on the
matter in TjospomieBoerdery (Pty) Ltd v Drakensberg Botteliers
(Pty) Ltd and Another
1989 (4) SA 31 (T) at p. 40A-J.





42At
676B.





43At
676C-E.





44At
677I.





45At
677I-678B.





46Id.





47Id
at 677C-E.





48At
677C-E.





49Id
at 677G-H.





50Gopaul
v Subbamah
2002 (6) SA 551 (D) 2002
(6) SA 551.





51At
557H - 558B.





52At
558A-C.





53Sanford
v Haley NO
2004 (3) SA 296 (C)




54Golden
International Navigation SA v Zeba Maritime Co Ltd;Zeba Maritime Co
Ltd v MV VISVLIET
2008 (3) SA 10 (C).




55Allen
v Sir Alfred McAlpine& Sons Ltd; Bostik v Bermondsey and
Southwark Group Hospital Management Committee; Sternberg and Another
v Hammond and Another
[1968] 1 All ER 543 (CA).





561977
2 ALL ER 801 at 805.





57High
Court Judgment paras 74-78.





58Id
at para 78. It also criticised the decision in Sanford v Haley,
supra,
for conflating the English law test and that in Molala
v Minister of Law & Order
.





59Id
at 805.





60642H-643A





61At
647G-648A.





62Molala
v Minister of Law & Order, supra,
at 648A.





63At
677C-E.





64Id
at 678C-D.





65Id.





66At
559.





67At
para 77.





68De
Waal v de Waal
2011 (2) NR 645 (HC) at





69Baker
v Carr
369 US 186, 267 (1962).





70Molala
v Minister of Law & Order, supra,
at 678A-B.





71Rule
30 (1)(a)





72At
para 37..





73Rule
26 provides: “Any
party who fails to deliver a replication or subsequent pleading
within the time stated in rule 25 shall be ipso facto barred, and if
any party fails to deliver any other pleading within the time laid
down in these rules or within any extended time allowed in terms
thereof, any other party may by notice served upon him or her
require him or her to deliver such pleading within 5 days after the
day upon which the notice is delivered, and any party failing to
deliver the pleading referred to in the notice within the time
therein required or within such further period as may be agreed
between the parties, shall be in default of filing such pleading,
and be ipso facto barred: Provided that for the purposes of this
rule the days between 16 December and 15 January, both inclusive
shall not be counted in the time allowed for the delivery of any
pleading.”





74Id
at para 37.





75Id
at para 39.





76China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC
2007 (2) NR 675 (HC) at para 15.





772007
(2) NR 675 (HC). It also relied on Gariseb v Bayer, 2003 NR
118 (HC) at 121I-122A-B.





78Id
at para 15.





79Id.





80Id.





81At
para 16.





82At
para 675E-I.





83Theron
v Coetzee
1970 (4) SA 37 (T);Gibson & Jones (Pty) Ltd v
Smith
1952 (4) SA 87 (T); Paterson, NO v Standard Bank of SA,
1967 (4)SA 524 (E); Bank van die Oranje-VrystaatBpk v Cronje
1966(4) SA 4 (O); Creux& Sons (Pty) Ltd v Groenewald1953
(3) SA 726 (O); KDL Motorcycles (Pty) Ltd v Pretorious Motors
1972 (1) SA 505 (O).




84Employers'
Liability Assurance Corporation Ltd v Potgieter
1959
(1) SA 850 (W)
.





85Union
& SWA Salt Snoek Corporation (Pty) Ltd v Lancashire Agencies
1959
(2) SA 52 (N)
.Bredenkamp
v Dart
1960
(3) SA 106 (O)
.




86Bank
van die Oranje-VrystaatBpk v Cronje
1966
(4) SA 4 (O)
.





87D
& H (Pty) Ltd v Sinclaire
1971
(2) SA 157 (W)
.




88Eniram
(Pty) Ltd v New Woodholme Hotel (Pty) Ltd
1967
(2) SA 491 (E)
.





89Brenners’
Service Station and Garage (Pty) Ltd v Milne and Another
1983
(4) SA 233 (W).





90SA
Metropolitan Lewensversekering v Louw NO
1981 (4) SA (0) 329 at
334A-B.





91Trans-African
Insurance Co Ltd v Maluleka
1956 92) SA 273 (A) at 278F-G.





92Per
Corbett JA (as he then was) in Attorney-General, Eastern Cape v
Blom and Others
1988 (4) SA 645 (A) at 670D – E.