Court name
Supreme Court
Case name
Cargo Dynamics Pharmaceuticals (Pty) Ltd v Minister of Health Social Services and Another
Media neutral citation
[2012] NASC 18
Judge
Maritz JA













REPORTABLE



CASE NO.:SA36/2011





IN
THE SUPREME COURT OF NAMIBIA








In
the matter between:
















CARGO
DYNAMICS PHARMACEUTICALS (PTY) LTD



Appellant









and




















MINISTER OF
HEALTH AND SOCIAL SERVICES



First
Respondent



GOVERNMENT OF
THE REPUBLIC OF NAMIBIA



Second
Respondent












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)









  1. 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.







  1. 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



  1. 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.







  1. 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



  1. 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.






  1. 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.







  1. 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.







  1. 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.







  1. 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



  1. 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



  1. 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.







  1. 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







  1. 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



  1. 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.







  1. 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.







  1. 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.







  1. 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



  1. 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.







  1. 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.










  1. 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.







  1. 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.







  1. 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.







  1. 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?



  1. 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.’







  1. 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.







  1. 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.










  1. 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.







  1. 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



  1. 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.







  1. 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.







  1. 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.







  1. 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.


  2. 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.







  1. 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.







  1. 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.







  1. 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.







  1. 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



  1. 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



  1. 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
B Coleman


Instructed
by SisaNamandje&Co Inc



RESPONDENTS:



G
S Hinda


Instructed by
the Government-Attorney








1
See the leading South African case, Firestone South Africa (Pty)
Ltd v Gentiruco AG
1977 (4) SA 298 (A) at 306 F-G.




2Id
at para 306H.




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.




5Firestone,
cited above n1, at para 307G–H.




6
Cited above n3 at 819G-820G.




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.




8S
v Wells
, cited above n 3 at 820H.




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.




10
Id. Especially at para 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.




12
See above n 9 at para 42.