REPORTABLE
CASE NO.:SA36/2011
IN
THE SUPREME COURT OF NAMIBIA
In
the matter between:
CARGO | Appellant |
and
MINISTER OF | First |
GOVERNMENT OF | Second |
Coram:
MARITZ JA, MAINGA JA andO’REGAN AJA
Heard
on: 2 November 2011
Delivered
on: 12 September 2012
APPEAL
JUDGMENT
O’REGAN
AJA(MARITZ JA and MAINGA JAconcurring)
This
appeal raises the question of the approach that should be taken to
urgent applications by the High Court. Cargo Dynamics
Pharmaceuticals (Pty) Ltd launched an urgent application in March
2011 seeking a rule nisi that the respondents (the Minister of
Health and Social Services and the Government of Namibia) be
required to show cause why they should not implement an agreement
that the appellant alleged that they had concluded with the
appellant in terms of which the appellant would be appointed as an
agent to procure and supply certain pharmaceuticals from Cuba. The
application also sought a temporary interdict restraining the
respondents both from procuring the pharmaceuticals themselves and
from appointing any other intermediary to do so.
The
respondents filed answering affidavits on 25 March 2011 and the
matter was enrolled for argument on 30 March 2011. On that day,
Unengu AJ gave an ex tempore judgment dismissing the
application with costs. On 20 April 2011, after being requested to
do so by the appellant, the judge provided further reasons. The
appellant now approaches this Court on appeal.
Facts
The
appellant is a company registered in Namibia. On 7 April 2010, itand
three other companies were approached by the Ministry of Health and
Social Services asking if it ‘would be interested to make a
proposalas to how you could assist the Ministry . . . to procure,
transport and supply clinical and pharmaceuticalitems from the
Republic of Cuba’. The company responded positively and on 21
April 2010, it received a letter from the Permanent Secretary of the
Ministry of Health and Social Services stating that ‘your
proposal for the services described in the caption has been
successful. I am therefore inviting you to contact my office to
discuss the schedule of the negotiation process’. The
appellant did so and entered into negotiations with the Ministry
towards the conclusion of a contract.
Although
a draft agreement, including a schedule of prices, was finally
prepared by July 2010, the agreement was never signed. Some months
later in October 2010, having heard nothing further from the
Ministry, the appellant instructed its legal representatives to
write to the Ministry.A response was received from the Ministry that
stated‘due to changed circumstances, our client is unable to
enter into an agreement with your client . . . ’. A request
for particulars elicited the following reply on 9 November 2010 –
‘after further diplomatic engagement on the matter with the
Cuban Government it became clear to the Namibian Government that
Cuban authorities preferred to deal with the Government of Namibia
as opposed to private organisations’.
High
Court proceedings
The
appellant thus launched urgent proceedings in the High Court on 8
March 2011 seeking the following relief:
‘1. That
the court deals with the matter as one of semi-urgency pursuant to
the provisions of rule 6(12).
2. That
a rule nisi be issued calling on the respondents to show cause on a
date to be determined by the above Honourable Court why the following
relief should not be granted.
2.1 Ordering
the respondents to implement and abide by the agreement entered into
between the applicant and first respondent in terms whereof applicant
is entitled to procure and supply pharmaceuticals and medical
equipment respondents agreed to obtain from Cuba for a period of 24
months from the date of this order;
2.2 ordering
the respondents to pay costs of this application jointly and
severally, the one paying the other to be excused. ..
3. Interdicting
and prohibiting the respondents either themselves or through any
intermediary from importing or arranging importation from Cuba any
medicines or pharmaceuticals products for use by the respondents in
Namibia pending the return date of the rule nisi;
4. Granting
the applicant such further and/or alternative relief as the Court
deems fit.’
Opposing
affidavits were filed asserting that the appellant was not entitled
to relief as no contractual relationship existed between the parties.
The
appellant accepted that the written contract was never signed, but
asserted that a contractual arrangement had nevertheless been agreed
between it and the Ministry.In support of this assertion, the
appellant pointed to several documents. First, the letter dated 21
April 2010 (referred to above) sent to it by the Permanent Secretary
in the Ministry to the effect that‘your proposal for the
services . . . have been successful’ and inviting it ‘to
contact my office to discuss the schedule of the negotiation
process’. Secondly, a letter dated 14 June 2010 sent by the
Permanent Secretary of the Ministry to the Cuban ambassador which
stated that the Ministry had ‘engaged the services’ of
the appellant to be ‘the procurement and forwarding Agent for
the Ministry’. Thirdly, a certificate of authentication issued
by the Ministry of Foreign Affairs authenticating the letter of 14
June, as well as corporate documents of the appellant. Fourthly, an
email message from a Ms Perez of a Cuban supplier indicating the
supplier’s readiness to supply pharmaceuticals to the
appellant.
The
matter was argued in the High Court on 30 March 2011 when the High
Court ordered that the application be dismissed with costs. Brief ex
tempore reasons were given in support of the order. Those
reasons have been transcribed and form part of the record in this
appeal. Then on 17 April 2011, the appellant wrote to the Registrar
of the High Court requesting that reasons be furnished for the
dismissal of the application.
On
20 April2011 in response to this request, the High Court provided
further reasons for the order it had made on 30 March 2011. Those
written reasons conclude by stating that the application is
dismissed ‘on the ground that the requirements of rule
6(12)(b) have not been complied with. The additional reasons,
too, form part of the record in the appeal. A perusal of both the ex
tempore and written reasons discloses that they are not
identical although both sets of reasons are devoted in the main to a
consideration of the merits of the matter and address the issue of
urgency only briefly.
Theappellant
noted an appeal against the judgment on 13May 2011. Rule 5(1) of the
rules of this Court provides that a notice of appeal shall be lodged
within 21 days of the judgment or order against which the appeal is
noted. If the date of the judgment or order appealed against is
taken as 30 March, the notice of appeal was lodged seven days late.
The appellant has lodged an application for condonation for the late
filing of the notice of appeal, which the respondent opposes.
Issues for determination
Four
issues arise for decision in this case:
(a) What is the status of the second
set of reasons furnished by the High Court on 20 April 2011?
(b) Should the application for
condonation of the late filing of the appeal be granted?
(c) Is the order made by the High
Court appealable at all?
(d) Whether, if the answer to the
previous two questions is in the affirmative, the appeal should be
upheld?
A further issue was raised by the
respondents relating to the authority of the appellant’s
attorneys to act on its behalf. It is not necessary to deal with that
argument. Each of the four issues set out above will be dealt with
separately.
Status of reasons for order given
by High Court on 20 April 2010
The
first question concerns the status of the further reasons issued by
the High Court on 20 April. These reasons were furnished after the
appellant had written to the Registrar requesting the reasons for
the order despite the fact that Unengu AJ had given oral reasons in
court on 30 March.
The
general principle is that once a court has duly pronounced a final
judgment or order, it may not correct, alter or supplement it, as it
is functus officio.1There
are four main exceptions to this rule: the judgment may be
supplemented in respect of ancillary matters such as costs which the
Court overlooked;2it
may be clarified if its meaning is obscure or ambiguous provided the
clarification does not vary the ‘sense and substance’ of
the order;3a
court may correct a clerical, arithmetic or other error to give
effect to its true intention;4
and the Court may amend its costs order in specific circumstances.5
In
S v Wells,6the
South African Appellate Division considered the extent of a court’s
jurisdiction to revise a judgment given orally. In that case, the
Court had before it a typed transcript of the ex
tempore judgment
pronounced by the court below as well as a copy of the revised
judgment released some weeks later by the same court. The Court
noted that there were different approaches in the common law to the
question of the revision of judgments. After outlining these
differences, it held that it preferred the
‘.
. . more enlightened approach [that] permits a judicial officer to
change, amend or supplement his pronounced judgment, provided that
the sense or substance of his judgment is not affected thereby . .
.’.7
The
Court in Wells then
examined the unrevised and revised judgments to determine whether
the revised judgment dealt with basically the same
rationesdecidendii
as the unrevised judgment ‘without changing or violating the
tenor of the unrevised judgment’.8It
concluded that the revised judgment did not change the sense or
substance of the unrevised judgment and therefore dealt with the
revised judgment as the judgment of the court below.
Following
this approach, the question in this case is whether the reasons
issued on 20 April deal with basically the same reasons as the ex
tempore judgment delivered on 30 March, and do not change or
violate the tenor of that judgment. If the judgment of 20 April
does not change the sense or substance of the earlier judgment, then
it may be considered a revised version of the judgment.
An
examination of the two judgments shows that there are similarities
between them, but there is at least one major difference between
them. In the ex tempore judgment, the Court appears to have
assumed that the appellant and the respondents had entered into a
contract and it concluded that the non-performance of that contract
by the respondents had arisen because of a supervening impossibility
of performance for which the respondents were not responsible. In
the reasons given on 20 April, the Court took the view that the
respondents were correct in asserting that the appellant was
‘relying on a contract which does not exist’. The Court
did go on to set out reasoning similar to that in the ex tempore
judgment on the supervening impossibility of performance,
perhaps in the alternative to its conclusion on the non-existence of
the contract.
It
cannot therefore be said that the reasons given on 20 April
constitute merely a supplementation of the ex tempore judgment
of 3 March that does not affect the sense or substance of that
judgment. Accordingly, the reasons of 20 April do not fall within
the acknowledged exceptions to the rule set out in Firestone
that a court may not correct, alter or supplement a final judgment
that it has pronounced. For the purposes of this appeal, therefore,
the judgment of the High Court are the reasons given
extemporaneously on 30 March and transcribed as part of the record
of the High Court proceedings.
Condonation for the late filing of
the appeal
The
appeal was noted seven days late.The appellant stated that the
appeal was noted late because it was waiting for the reasons for the
order to be furnished by the judge. The respondents, belatedly,
lodged an answering affidavit opposing the application for
condonation. The respondents did not assert prejudice, but opposed
the application on the ground that sufficient cause had not been
identified for the grant of condonation.
In
deciding whether to grant condonation for the late filing of the
appeal, this Court will consider first the reason given for the
delay, secondly, any prejudice caused by the delay and thirdly the
prospects of success.
Turning
to the first issue, the appellant asserts that the reason for the
late lodging of the notice of appeal was that it was waiting for the
reasons from the High Court. However, as mentioned above, the High
Court furnished ex tempore reasons on 30 March when it
dismissed the application. It is not clear why the appellant sought
further reasons by its letter dated 17 April. It is clear from what
has been discussed above that once the High Court had given a
judgment on 30 March, it was functus officio and therefore
not able to furnish fresh and different reasons, upon request by the
appellant. So the appellant erred when it approached the registrar
to ask for further reasons. In any event, the High Court judge
responded promptly and further reasons were furnished within three
days.
The
reason given by the appellant for the delay in lodging the appeal
does not therefore hold weight. First, the appellant was provided
with reasons by the High Court judge on 30 March. Secondly, once the
appellant decided mistakenly to ask for written reasons on 17 April,
the High Court judge provided the written reasons within three days.
Accordingly, the reason provided by the appellant for the late
lodging of the appeal notice is not persuasive.
As
to the question of prejudice, it is correct that the respondent does
not assert that it has been prejudiced by this delay. Nor has this
Court been prejudiced by the delay. Accordingly, the question of
prejudice does not need further consideration.
The
third issue that requires consideration is the question of prospects
of success; this is a matter to which this judgment now turns. An
assessment of the prospects of success requires a consideration of
the remaining two issues in the appeal: whether the High Court
judgment is appealable; and if it is appealable, whether the appeal
should succeed. After these two issues have been considered, it will
be possible to assess the appellant’s prospects and finally
determine the question whether condonation for late filing of the
appeal should be granted.
Was
the High Court judgment appealable?
The
order issued on 30 March reads: ‘. . . the application is
hereby dismissed with costs’. This sentence, however, is
preceded by a sentence which, after referring to rule 6(12), states
that:
‘I
do not think it is really necessary for this Court to condone the
non-compliance of the rules of this Court . . . to allow the
Applicant to come on an urgent basis, to deal with this matter. So on
that basis alone I reject the application with costs.’
In
an urgent application, ajudge will ordinarily decide the question of
urgency on the assumed basis that the applicant has a case on the
merits before deciding the merits. If the court decides that an
applicant has not made out a case for the application to be heard as
a matter of urgency even assuming that the applicant has a case on
the merits, the application will ordinarily be struck from the
roll.9
The effect of striking the matter from the roll does not dispose of
the merits of the application.10The
applicant is entitled to re-enroll the application either in the
ordinary course not by way of urgency, or again as a matter of
urgency if circumstances change. Accordingly, a decision that a
matter does not disclose urgency is not ordinarily appealable,11
whereas a decision that an application has been dismissed in its
entirety is appealable.
In
this case, the High Court order of 30 March states that the
application has been dismissed. Such an order would ordinarily be
appealable as long as it is clear from the reasons that the High
Court order did deal with the merits. A perusal of the ex tempore
reasons discloses that theydeal in the main with the merits of the
application though in the final paragraph the question of urgency is
addressed.
This
case is therefore unlike Shetu
Trading,12
where the court had also made an order dismissing the application.
In that case, there was no consideration of the merits of the
application, only a consideration of the issues of urgency. This
Court decided that, properly construed, the effect of the High Court
order, given the reasons furnished by the High Court, was that the
application had not in fact been dismissed, but merely struck from
the roll. The result was that the High Court was not precluded from
a reconsideration of the merits of the matter (and as it happened
the matter had come again before the High Court before the matter
was heard by the Supreme Court). This Court thus concluded that the
order was not appealable and struck the appeal from the roll.
In
this case, however, unlike in Shetu Trading, the High Court
judge did deal with the merits of the application at some length in
his reasons, as well as briefly considering the issue of urgency.
It cannot be said therefore that, properly construed, the order made
by the High Court related to urgency only given the consideration of
the merits. In the circumstances, it is clear that the order is
appealable.
The
merits of the appeal
The
next question that arises for consideration is the question whether
the appeal has prospects of success. It is clear that the appellant
can only succeed in the relief it seeks if it can establish that it
had entered into a contract with the Ministry. The appellant’s
case does establish that the Ministry had identified it as a
suitable agent to procure pharmaceutical products from Cuba, but it
does not establish that a contract had been entered into between it
and the Ministry. There are several key facts that make this plain.
The
first of these is that the Ministry prepared a draft contract that
was never signed. Thatdraft contract contains, as the appellant
acknowledges, the terms of the proposed agreement between the
Ministry and the appellant. Clauses 19 and 21 of the draft
agreement makes it plain that the terms of the written agreement
embody the entire agreement between the parties, and that the
agreement will only come into force on signature. These provisions
in the draft contract are powerful indications of the fact that no
contractual arrangement was concluded between the appellant and the
Ministry.
Secondly,
it is clear that the Ministry intended at all times first to enter
into a formal written agreement once it had identified a suitable
agent and that the identification of the agent did not of itself
result in contractual obligations. This becomes plain if one
examines the procedure followed by the Ministry. First, the Ministry
wrote a letter to the appellant and three other companies on 7 April
2010 seeking an expression of interest. This letter wasfollowed by
the Ministry’s preliminary decision that the appellant would
be suitable as an agent and the appellant was notified of this on 21
April 2010. Crucial, however, is the statement in the letter of 21
April that negotiations would then commence with the aim of
finalisingthe terms of the agreement that
would govern the relationship between the Ministry and the
appellant. It is plain from this paragraph in the letter of 21 April
that the Ministry did not consider that the identification of the
appellant had itself resulted in any contractual obligations. The
precise terms and conditions of the contract were yet to be
negotiated. Appellant’s founding affidavit makes clear that
those negotiations, which covered key aspects of the agreement,
particularly the price, continued till July 2010.
In
support of its argument that a contract had been concluded, the
appellant points to the letter dated 14 June 2010 sent by the
Permanent Secretary of the Ministry to the Cuban ambassador which
stated that the Ministry had ‘engaged the services’ of
the appellant to be ‘the procurement and forwarding Agent for
the Ministry’. On appellant’s own version, however, as
at 14 June, the negotiations regarding the contract terms were not
yet complete. Accordingly, the letter of 14 June 2010which was
addressed not to the appellant but the Cuban ambassador, cannot be
read as implying that a contract had been concluded between the
appellant and the Ministry, but only that the Ministry had
identified a suitable company to act as agent.Thirdly,
once the terms of the agreement were finalized, the draft contract
had to go to the Attorney-General for his input. The appellant
concedes this. The terms of the agreement remained provisional on
15 July when the draft was sent to the Attorney-General. As far as
the Ministry was concerned, the terms of agreement had to be
provisional and subject to variation depending on the advice of the
Attorney-General.
These
facts all point to the conclusion that no binding contract had been
entered into by the parties. The Ministry had identified the
appellant as a suitable agent and had commenced negotiations to
settle the terms of their contractual arrangement. Those
negotiations did not result in a signed contract.
Accordingly,
the appellant has on his own papers failed to make out a case that
the Ministry had entered into a contract with it to appoint it as an
agent. Given this conclusion, there are no prospects of success for
the appellant on appeal.
It
is time to return to the preliminary question whether the
appellant’s application for late filing of its notice of
appeal should be granted. Given that the appellant has not provided
a satisfactory explanation for the late lodging of the appeal
notice, and that the appellant has no prospects of success on
appeal, it is not appropriate to grant the application for
condonation.
In
the circumstances, the appropriate order is that the application for
condonation of the late lodging of the appeal is refused and the
appeal is struck from the roll.
Costs
Even
though the appeal is to be struck from the roll, the respondents
have incurred costs in opposing the appeal. It is appropriate,
therefore, to order the appellant to pay the costs of the
respondents, such costs to include the costs of one instructed and
one instructing counsel.
Order
The
following order is made:
1. The application for late lodging of
the notice of appeal is refused.
2. The appeal is struck from the roll.
3. The appellant is ordered to pay the
costs of the respondents, such costs to include the costs of one
instructed and one instructing counsel.
________________________
O’REGAN
AJA
________________________
MARITZ
JA
________________________
MAINGA
JA
APPEARANCES
APPELLANT: | G Instructed |
RESPONDENTS: | G Instructed by |
1
See the leading South African case, Firestone South Africa (Pty)
Ltd v Gentiruco AG 1977 (4) SA 298 (A) at 306 F-G.
3
Id. At para 307A. See also West Rand Estates Ltd v New Zealand
Insurance Co Ltd 1926 AD 173 at 176, 186-7; Marks v Kotze
1946 AD 29; S v Wells 1990 (1) SA 816 (A) at 819–820;
Ex parte Women’s Legal Centre v Greater Germiston TLC
2001 (4) SA 1288 (CC) at paras 4–5.
4Firestone,
cited above n1, at para 307 C –F; Wessels& Co v De
Beer 1919 AD 172; Randfontein Estates Ltd v Robinson 1921
AD 515 at 520.
7
Id 829 C. See also Ex parte Women’s Legal Centre v Greater
Germiston TLC, cited above n 3, at fn 3 of the judgment where
the Court held that the views expressed in Wells ‘seems
to be in general conformity’ with the views expressed by
Trollip JA in Firestone, above n 1,at 306 F–G.
9
See Shetu Trading CC v Chair, Tender Board of Namibia and
Others (SA 26/2011) as yet unreported judgment of this Court
dated 4 November 2011 at paras 17 and 34.
11Id
at para 27. See also Aussenkehr Farms (Pty) Ltd and Another v
Minister of Mines and Energy and Another 2005 NR 21 (SC) at 33
and Namib Plains Farming and Tourism CC v Valencia Uranium (Pty)
Ltd and Others 2011 (2) NR 269 (SC) at para 41.