Court name
Supreme Court
Case number
SA 8 of 2005

Standard Bank of Namibia Ltd v Atlantic Meat Market (Pty) Ltd (SA 8 of 2005) [2014] NASC 14 (17 October 2014);

Media neutral citation
[2014] NASC 14
Maritz JA


CASE NO: SA 8/2005


the matter between:

LTD                                                                       Appellant


LTD                                                                 Respondent



7 April 2006

October 2014


CHOMBA AJA concurring):

The principal issue in these proceedings is whether the High Court’s
refusal to accord appellant more time to prepare and lodge answering
affidavits in opposition to respondent’s application for an
urgent interlocutory interdict constituted an irregularity in the
proceedings contemplated in s 16(1) of the Supreme Court Act, 1990 or
violated appellant’s right to a fair hearing as an aspect of
his right to fundamental justice in common law or to a fair trial
guaranteed by Art 12(1)(
of the Constitution. The adjudication of this issue calls for an
analysis of the purpose and place of urgent interlocutory interdicts
in our law of legal practice and procedure.

The proceedings in this court were
initiated by what, on the face thereof, purports to be a ‘notice
of appeal’ against an order of the High Court made by Silungwe
J on 15 March 2005 in an application brought by Atlantic Meat Market
(Pty) Ltd (respondent) against Standard Bank of Namibia, Ltd
(appellant) for a rule
and urgent interim interdictory relief. The relevant part of the
notice, which sets out the constitutional and other challenges to
the  proceedings in the court below and to the validity of the
order appealed against, reads:


TAKE NOTICE that the above-named appellant hereby notes an appeal
against the whole order including the order for costs handed down by
Mr Justice Silungwe on 15 March 2005 in case number (P) A 65/2005.

TAKE FURTHER NOTICE that the appeal is filed as of right on the basis
that the learned Judge erred in granting the order in conflict with
the provisions of Art 12 of the Namibian Constitution in that the
learned Judge refused to grant the appellant time to file affidavits
in opposition to the application lodged by the respondent, as a
result of which an irregularity occurred in the proceedings as
envisaged in s 16 of the Supreme Court Act 15 of 1990.

the hearing, Mr Henning SC (assisted by Mr Heathcote) for appellant
redefined the basis of appellant’s challenge: despite the
language used in the notice and the express label attached to it, he
stated that the matter before the court was not an appeal and, the
reference to s 16 of the Supreme Court Act[1]
in the notice notwithstanding, that the proceedings before this court
might not even be a review. He asserted that it was a constitutional
challenge directed against the refusal of the court

to grant appellant more time to file answering affidavits, thereby
denying appellant’s right to natural justice as embodied in the
alteram partem

rule and, as a consequence, violating its right to a fair hearing
guaranteed by Art 12(1)(
of the Constitution and derogating from the constitutional principles
of justice and the rule of law that underpin the foundation of our

expounded in argument on the principles of justice – which, he
contended, is the product of strict rules infused with fairness –
and the rule of law, by referring to
from the seminal work of De Smith, Woolf and Jowell on
Review of Administrative Action

standards applied by the courts in judicial review must ultimately be
justified by constitutional principles, which govern the proper
exercise of public power in any democracy. This is so irrespective of
whether the principles are set out in a formal, written document. The
sovereignty or supremacy of Parliament is one such principle, which
accords primacy to laws enacted by the elected Legislature. The rule
of law is another such principle of the greatest importance. It acts
as a constraint upon the exercise of all power. The scope of the rule
of law is broad. It has managed to justify - albeit not always
explicitly - a great deal of the specific content of judicial review,
such as the requirements that laws as enacted by Parliament be
faithfully executed by officials; that orders of court should be
obeyed; that individuals wishing to enforce the law should have
reasonable access to the courts; that no person should be condemned
unheard; and that power should not be arbitrarily exercised. In
addition, the rule of law embraces some internal qualities of all
public law: that it should be certain, that is ascertainable in
advance so as to be predictable and not retrospective in its
operation; and that it be applied equally, without unjustifiable

reminded the court of the remarks of Lord Morris of Borth-y-Gest in
v Borneman

on the concept of natural justice and the notion of fairness:[3] 

Lords, that the conception of natural justice should at all stages
guide those who discharge judicial functions is not merely an
acceptable but is an essential part of the philosophy of the law. We
often speak of the rules of natural justice. But there is nothing
rigid or mechanical about them. What they comprehend has been
analysed and described in many authorities. But any analysis must
bring into relief rather their spirit and their inspiration than any
precision of definition or precision as to application. We do not
search for prescriptions which will lay down exactly what must, in
various divergent situations, be done. The principles and procedures
are to be applied which, in any particular situation or set of
circumstances, are right and just and fair. Natural justice, it has
been said, is only "fair play in action". '

also referred to a number of authorities[4]
in support of the contention that ‘in our law the so-called
alteram partem

iudex in sua causa

rules are but part of . . . the "fundamental principles of
fairness"’[5] and, as
regards the application thereof, cited Tucker LJ's dictum in
v Duke of Norfolk and Others
which is in the following terms:         

are, in my view, no words which are of universal application to every
kind of inquiry and every kind of domestic tribunal. The requirements
of natural justice must depend on the circumstances of the case, the
nature of the inquiry, the rules under which the tribunal is acting,
the subject-matter that is being dealt with, and so forth.'

I interpose here to note that counsel for
respondent did not take issue with the relevance or substance of any
of these general propositions. The divergence in their contentions
relates to the application of these propositions in the circumstances
and exigencies of this case.

for appellant forcefully reasoned that, as in administrative law, a
reasonable time to prepare is inherent in the right to a fair hearing
contemplated in Art 12(1)(
Thus, he contends that the refusal of the court

to allow appellant time to answer the application constituted a
fundamental irregularity in the proceedings and, in effect,
restricted argument to the facts of an unanswered application. Given
the courts' constitutional duty to uphold and respect the fundamental
rights protected in Chapter 3 of the Constitution[8]
and the power of competent courts to ‘make all such orders as
shall be necessary and appropriate to secure (persons) the enjoyment
of their rights and freedoms under the provisions of (the)
Constitution’,[9] this
court is obliged to redress the violation of appellant's right to a
fair hearing by providing an effective remedy - if necessary, by
forging new and innovative procedural ‘tools’ to achieve
this goal.[10]

Vivier, on the other hand, argued with reference to
en ‘n Ander v Minister van Korrektiewe Dienste and Andere
that the
alteram partem

rule cannot be separated from the context in which it is applied. 
The headnote to the judgment captured the essence of the court’s
reasoning on that point as follows:

is no universally applicable set of requirements for compliance with
rule. On the contrary, because of the innumerable situations in which
it may be applied, the
rule is so flexible and adaptable that the requirements for
compliance therewith cannot be separated from the context in which it
is applied. The touchstone which must be utilised in determining
whether the
rule was complied with in a specific case is intimately connected
with the fundamental principle of the rule. The
principle is but one facet, albeit an important one, of the general
requirement of natural justice that in the circumstances the public
official or body concerned must act fairly.’

Vivier points out that the application under consideration was
brought on a basis of urgency in terms of High Court rule 6(12). The
sub-rule provides that, in applications of that nature, a court may
dispense with the forms and service provided for in the rules and may
dispose of the matter at such time and place and in such manner and
in accordance with such procedures (which shall as far as practical
be in terms of the rules) as it may deem fit. She argues with
reference to a number of authorities[12]
that the granting of urgent

relief (or, as in this case, where very short notice was given to
appellant) is one of the recognised exceptions to the strict
enforcement of the
alteram partem

rule. Given the nature of the proceedings and the relief sought, she
submitted, the refusal of the postponement and the order subsequently
made by the High Court were neither unfair nor irregular. As such,
they did not detract from appellant's right to a fair trial.

In order to consider these conflicting
contentions, it is necessary to briefly refer to the facts and
circumstances that gave rise to the dispute; to record the relief
prayed for and to summarise the proceedings in the High Court as they

Respondent, an incorporated private company
with limited liability, carries on the businesses of a butchery and
of a manufacturer, wholesaler and distributor of meat in Walvis Bay.
Appellant is a registered commercial bank and, at all relevant times,
acted as bankers for respondent and its sister company, Marketlink
Namibia (Pty) Ltd, both being subsidiaries in the Marketlink group of
companies. As security for a facility of N$5 million that appellant
extended as working capital, it sought and obtained securities to
cover the extent of respondent’s indebtedness from time to
time. The instruments of security included a number of unlimited
suretyships as well as a cession of respondent’s book debts.

During April 2004, respondent uncovered a
massive fraud which had been devised and perpetrated by the financial
manager of the Marketlink group of companies. In executing the
fraudulent scheme, the financial manager forged signatures on cheques
drawn against the accounts of companies within the group and used the
cheques to misappropriate funds that he channelled into his own
account and that of his wife whilst, at the same time, skilfully
avoiding detection by ‘shifting’ funds from one company's
account to that of another in the group. Unbeknown to respondent and
Marketlink Namibia at the time, seven forged cheques to the sum of
N$2 322 456,10 were drawn against respondent’s bank account and
23 cheques to the sum of N$9 250 133,47 were drawn against the bank
account of Marketlink Namibia. The cheques were honoured by appellant
notwithstanding the forged signatures and debited against the two
bank accounts during the period 31 December 2003 to 26 April 2004.

after the forgeries had been uncovered, respondent alerted appellant
to them and pressed criminal charges against the financial manager,
as a consequence of which both he and his wife were arrested and
charged in criminal proceedings. Respondent and Marketlink submitted
a report to appellant about the fraudulent transactions and demanded
that appellant rectify their respective banking accounts. Despite
numerous further enquiries over a number of months, appellant failed
to state its position as regards the forged cheques and the demand
for rectification, other than to state that the matter had been
referred to its Internal Audit Department for further ‘actioning’.
As a result, respondent and Marketlink Namibia issued summons on 26
October 2004 against appellant seeking, amongst others, an order that
their respective accounts be credited with amounts equivalent to the
unauthorised withdrawals and interest charged thereon. Appellant
entered appearance to defend the action.

As respondent maintained that it did not
owe appellant the debits passed against its bank account upon
presentation of the forged cheques, it declined to comply with
appellant’s demand that it should execute further securities in
favour of appellant or pay the balance outstanding occasioned by the
unauthorised withdrawals. On 2 March 2005, respondent became aware of
the fact that appellant had forwarded letters by registered mail and
telefax to respondent's debtors, informing them that it was holding a
cession of their debts owing to respondent and that it was entitled
to collect such debts in terms of the cession. It also notified
respondent's debtors that they should pay all amounts due to
respondent into the latter's account with appellant. In addition,
appellant aggressively pursued its quest to recover respondent's
debts by telephoning the latter’s debtors and demanding that
they should pay those debts directly to appellant. Appellant's
demands raised serious concerns amongst respondent’s debtors
about respondent’s financial health and its continuing ability
to honour contracts for the supply of meat products to them.
Respondent received more than 100 telephone calls from debtors within
a short period of time and the concerns raised by some of them have
been recounted in respondent's founding affidavit. As a result of
appellant's conduct, rumours began to circulate that respondent was
in serious financial difficulties and was facing possible
liquidation. This, in turn, had an extremely negative effect on
respondent’s credit standing with its suppliers. Respondent
found itself in the unenviable position that it was not only losing
clients as a result of appellant's conduct but, given the latter’s
demand that all respondent’s debtors should pay their debts
directly to appellant, respondent’s cash flow was in danger of
drying up within days and it would become unable to trade altogether.
If respondent had to close down, it would not only cause immeasurable
damage to its business, but would also result in the termination of
the employment of some 100 employees.

Respondent therefore directed a letter of
demand to appellant’s legal practitioners on 3 March 2005 to
provide it, by no later than the close of business on that day, with
an unequivocal undertaking that appellant would forthwith desist from
approaching respondent’s debtors and from collecting debts due
by them to respondent pending the outcome of the action instituted by
respondent against appellant. It was further recorded in the letter
that the cession of respondent’s book debts had been given to
appellant as security for respondent’s indebtedness to the bank
and, because it had a claim against appellant in excess of N$11
million, that respondent was not indebted to it at all. When
appellant failed to comply with the demand, respondent launched an
urgent application on 7 March 2005 for an order:

Condoning the non-compliance with the Rules of this Honourable Court
and granting leave to the applicant for this matter to be heard on an
urgent basis as provided for in Rule 6(12) of the High Court Rules;

In terms whereof a rule
be issued calling upon the respondent to show cause at 10h30 on 4
April 2005 why respondent should not be:

Interdicted and restrained from exercising any rights in terms of the
cession of book debts held by it;

Interdicted and restrained from contacting any of applicant’s
debtors in any manner whatsoever in order to recover applicant’s
book debts from them;

Ordered and directed to forthwith pay over each and every amount
received on applicant’s account held with respondent from 28
February 2005 to date;

Ordered to pay the costs of this application;

Such further and/or alternative relief as the above Honourable Court
may deem meet should not be granted to applicant;

An order in terms whereof subparagraphs 2.1 – 2.3 shall serve
as an interim interdict pending the outcome of the action instituted
by applicant against respondent under case number (T) I 2460/04 with
immediate effect.’

Respondent’s founding affidavit set
out the whole history of the relationship between the parties and the
manner in which appellant dealt with respondent's demands to credit
its account with the amounts earlier debited on presentation of the
forged cheques. It also pointed out that appellant, for almost a year
since the fraudulent scheme had been brought to its attention, had
failed to disclose a defence to respondent’s multiple demands
for rectification of its account.

also averred that it had no alternative remedy but to stop appellant
from further recovering the book debts of customers that were owing
to respondent. It asserted that it had a clear right to the relief,
as it was not indebted to appellant at all and that it would suffer
irreparable damage should it not be granted an interim interdict to
preclude such collection, pending the outcome of the instituted
action. It further stated that the balance of convenience favoured
the granting of the order prayed for, as appellant had additional
security in the form of sureties for any indebtedness of respondent,
that, although denied, may eventually be proven to exist. It averred
that it would be impossible to bring an application for the
interlocutory relief in the ordinary course since any delay in
launching the application would result in respondent’s complete

The application was delivered to the
offices of appellant's legal representatives at 08h45 on the morning
of Monday, 7 April 2005. When the application was called in court
later that morning, Mr Heathcote, who appeared on behalf of
appellant, immediately moved an application from the bar for a
postponement until Monday, 14 March 2005 to allow appellant time to
consult with its legal representatives and to lodge answering
affidavits in opposition to the application. Ms Vivier opposed the
application. She submitted that the relief in the main application
was being sought on a basis of urgency and that, in a letter received
from appellant's lawyers earlier during the day, appellant made it
clear that it would not comply with respondent’s demand to
desist from collecting the book debts due to it. She emphasised that,
absent an undertaking to the contrary, the continued collection of
such debts during the period of the postponement would defeat the
object of the application to obtain urgent interim relief
interdicting appellant’s conduct and saving respondent’s
business from ruin. During argument in reply, appellant's counsel
re-affirmed appellant's position, i.e. that it was entitled to
collect the debts in terms of the cession agreement and that it would
continue with the collection.

Having considered the application for
postponement, the urgency of the main application for interlocutory
relief and the submissions advanced by both counsel, the court
refused the application to postpone the main application. That,
however, was not the end of the hearing. Appellant also opposed the
granting of an order on the papers as they stood. Hence, Ms Vivier
advanced argument in support of the application.  After a
partial presentation of her argument, the court was constrained by
another pressing matter on the roll to delay continuance of the
hearing until 14h30 the next day. Appellant’s counsel indicated
at the time that appellant would probably utilise the opportunity ‘to
put some version’ before the court. When the hearing resumed on
the Tuesday, Mr Henning (assisted by Mr Heathcote) appeared on behalf
of appellant. He immediately moved an application for security of
costs, which appellant had lodged earlier the day. The application
was opposed but later granted with costs. Thereafter, further
submissions on the merits of the main application were advanced.
Eventually, after three days of argument, judgment was reserved and,
subsequently, handed down. For the reasons set out in its judgment,
the court
a quo
dismissed a number of substantive issues raised on behalf of
appellant in argument on the merits of respondent’s case and,
after dealing with the urgency and other considerations, held that
respondent had made out a case for the relief being sought and
granted an order in terms of the notice of motion.

Before I turn to the question of whether
the court
a quo
violated appellant's common law right to fundamental fairness or its
constitutional right to a fair trial when it refused to postpone the
urgent application in order to accord appellant an opportunity to
lodge answering affidavits, I must briefly interpose to remark on the
somewhat curious formulation of the two paragraphs in the notice of
motion referring to the rule
and interim interdict and the effect of the formulation of the one on
the other. It is apparent from the papers that respondent sought an
interim interdict in the terms set out in paras 2.1 – 2.3 of
the notice of motion pending the outcome of the action which had
already been instituted by it against appellant. One would therefore
have expected the terms of those sub-paragraphs in the rule
to be qualified accordingly and that the prayer in para 3 would be
limited to an interlocutory interdict pending the confirmation of the
In this instance, the prayers are formulated differently: the
expected qualification is absent from sub-paras 2.1 – 2.3 but
contained in para 3 which reads:

subparagraphs 2.1 to 2.3 shall serve as an interim interdict with
immediate effect pending the outcome of the action instituted by the
applicant (respondent) against the respondent (appellant) under Case
No (T) 12460/2004.’

concern was that the court’s order in those terms at the rule
nisi stage
of the proceedings may not be understood as meaning that the interim
interdict granted would apply for the entire period during which the
main action is pending, irrespective of whether the rule
is later be confirmed or not. On a closer reading thereof, however,
it must be clear that the granting of the interim interdict in terms
of para 3 is conditional on paras 2.1 to 2.3 being part of either the
or the later order confirming it.  If the relief sought as part
of the rule
were to be discharged, there would not be any residual order to serve
as a substratum for the interim interdict in terms of the prayer in
para 3, and the latter would have no further effect. So regarded, the
interim interdict granted on 15 March 2005 would have had an
interlocutory effect only until the return date or extended return
date of the rule
and its operation beyond that date would be conditional on the
confirmation of the rule. On that premise, I now turn to the main
issues in the proceedings: the challenge to the regularity and
fairness of the proceedings (on the basis that appellant was denied
an adequate opportunity to file answering affidavits in opposition to
the application) and appellant’s assertion that, as a result,
the order was granted in violation of its right to fundamental
fairness under common law or to a fair trial guaranteed by Art
of the Constitution and that, for those reasons, it should be set

counsel for respondent,[13]
and some of the authorities cited by appellant,[14]
emphasise, ‘the
alteram partem

rule cannot be separated from the context in which it is applied’.
The procedural context in which it finds application in this case is
that of an application brought on a basis of urgency for a rule
coupled with an urgent interim interdict. The granting of a rule
in appropriate cases is, as Corbett JA remarked in
Forwarding (Johannesburg) (Pty) Ltd v National Transport
‘firmly embedded in our procedural law’ even though not
substantively provided for in the rules of court. He continued:

procedure of a rule
is usually resorted to in matters of urgency and where the applicant
seeks interim relief in order adequately to protect his immediate
interests. It is a useful procedure and one to be encouraged rather
than disparaged in circumstances where the applicant can show,
, that his rights have been
infringed and that he will suffer real loss or disadvantage if he is
compelled to rely solely on the normal procedures for bringing
disputes to Court by way of notice of motion or summons. The rule
procedure must be considered in conjunction with the provisions of
Rule 6 (12) which, in the case of urgent applications, permits the
Court to:       

with the forms and service provided for in these Rules and (to)
dispose of such matter at such time and place and in such manner and
in accordance with such procedure (which shall as far as practicable
be in terms of these Rules) as to it seems meet”.

see in this connection
Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk

1972 (1) SA 773 (A) at 781H - 782G.) In fact, the rule
procedure does make it possible for the application to come before
the Court for adjudication more speedily than the usual procedures
for the set down of applications or trials, and it does, in a proper
case, permit of the granting of interim relief.’

In a similar vein, the South African
Constitutional Court emphasised in
Director of Public Prosecutions and Another v Mohamed NO and Others

the need for flexibility in the application of the
rule, especially in circumstances where a rigid application thereof
would defeat the very rights sought to be enforced or protected:

Before considering the above arguments . . . it is convenient to
examine the common-law practice relating to
applications, the granting of
and the making of interim orders pending the return day of the rules
nisi, as
well as the importance of the
rule for procedural fairness. For the purposes of this case “an
ex parte application"
in our practice is simply an application of which notice was as a
fact not given to the person against whom some relief is claimed in
his absence.

Our common law has recognised both the great importance of the
rule as well as the need for flexibility, in circumstances where a
rigid application of the rule would defeat the very rights sought to
be enforced or protected. In such circumstances, the court issues a
calling on the interested parties to appear in court on a certain
fixed date to advance reasons why the rule should not be made final,
and at same time orders that the rule
should act immediately as a temporary order, pending the return day.
This practice has been recognised by the South African courts for
over a century:            

rule nisi
is derived from English law and practice, and the rule may be defined
as an order by a court issued at the instance of the applicant and
calling upon another party to show cause before the court on a
particular day why the relief applied for should not be granted. Our
common law knew the temporary interdict and, as Van Zyl points out, a
‘curious mixture of our practice with the practice of England’
took place and the practice arose of asking the court for a rule
returnable on a certain day, but in the meantime to operate as a
temporary interdict.”

The flexibility and utility of the rule
acting at the same time as an interim order, has been recognised by
the courts and it has been applied to modern problems in commercial

The nature of the relief sought on a basis
of urgency by respondent in this instance falls squarely within the
procedures and exigencies referred to in these authorities, and so,
too, the context within which the High Court had to apply the
rule. In determining whether the court
violated appellant’s right to
fundamental fairness in its application of the
rule (when it declined a postponement of the urgent application at
appellant’s behest, thereby limiting the opportunity that
appellant had to lodge answering affidavits before the court ruled on
the urgent application) a number of contextual considerations must be
taken into account. In what follows, I shall refer only to four of

The first is the urgency that attached to
the determination of respondent’s application for relief on an
interlocutory basis, more so, in view of appellant’s
uncompromising insistence that it would continue to assert its rights
in terms of the cession agreement if the application were postponed.
Had it been willing to relent in its efforts to collect the debts due
and owing to respondent, if only for the limited period and purpose
of a postponement, respondent would not have opposed its application.
The court
a quo
was satisfied that respondent complied with the requirements of rule
by setting forth the circumstances which rendered the application
urgent and the reasons why it would not be afforded substantial
redress at a hearing in due course.

by rule 6(12)(
with the duty to see to it that the measure of respondent’s
non-compliance with the rules were tailored to the concomitant degree
of urgency, and to dispose of the application in accordance with
procedures consistent with the rules as far as practical in the
circumstances, the court granted the prayer for condonation without
qualification. This ruling, as pointed out in
Mandela Metro Municipality and Others v Greyvenouw CC and Others

‘involves the exercise of a judicial discretion by a court
“concerning which deviations it will tolerate in a specific
case” in the exercise of its judicial discretion’[16]
It follows by necessary implication that, given the exigencies of
urgency and other circumstances demonstrated in the founding papers
of respondent, some of which I have summarised earlier in this
judgment, the court, in the exercise of its judicial discretion,
concluded that it was an appropriate case in which it should dispense
with the requirements of rule 6(5)(
and (
of the High Court rules as regards the period prescribed for
respondents to notify applicants of their intention to oppose
applications in the ordinary course and, more importantly for
purposes of this case, the time and sequential order within which
answering affidavits should be lodged. In this instance, that it was
in the interest of fairness and of doing substantial justice between
the parties that interlocutory relief should be granted without
further delay and that the answering affidavits could be lodged
thereafter for consideration on the return day of the rule
or at an anticipated earlier hearing.

turn now to the second consideration.  The purpose of
interlocutory interdicts, in essence, is to preserve the
effectiveness of the judgment of the court when rendered in due
course. To that end it protects existing rights that have been
clearly or

established[17] and
‘provisionally restrain(s) the parties to a civil suit from
taking any action that could endanger the final decision of the
Generally, the immediate objective is
obtain an order of court preserving or restoring the status quo
pending the final determination of the rights of the parties'.[19]
As such, i
is an extraordinary remedy judicially designed to ensure that the
court will ultimately be in a position to do substantial justice in
the case and that any judgment it may render in due course will be
effective. Given its extraordinary nature, access to the remedy is
filtered by a number of stringent requirements crisply summarised by
Corbett J (as he then was) in
Boshoff Investments (Pty) Ltd v Cape Town Municipality; Cape Town
Municipality v LF Boshoff Investments (Pty) Ltd

that the right which is the subject-matter of the main action and
which he seeks to protect by means of interim relief is clear or, if
not clear, is prima facie established, though open to some doubt;

that if the right is only
prima facie
established, there is a well-grounded apprehension of irreparable
harm to the applicant if the interim relief is not granted and he
ultimately succeeds in establishing his right;

that the balance of convenience favours the granting of interim
relief; and

that the applicant has no other satisfactory remedy.'

affidavit set forth facts to the satisfaction of these requirements
and the court
a quo
found that they were sufficient to justify the granting of
interdictory relief, at least for the period preceding the return day
(or anticipated return day) when the confirmation or discharge of the
could be considered.  Except for joining issue on a number of
grounds with respondent's assertion that it had established a clear
prima facie
right in its founding affidavit - grounds the court considered and
dismissed - I did not understand appellant to say that respondent had
not satisfied the other requirements. Respondent stated that it had
no alternative remedy to stop appellant from continuing to collect
debts due to it (respondent) and made it clear, in no uncertain
terms, that if it had to bring the application in the normal course,
appellant's continuing conduct in the interim would result in
respondent’s complete demise. The implication thereof must have
been clear to the court
a quo:
aside from the devastating consequences respondent's demise would
have on the engagement of its more than 100 employees, respondent
would also not be in a position to pursue justice by having its claim
against appellant in the main action adjudicated.

The third consideration is that the issuing
of a rule
is neither a final nor definitive determination of the rights of the
parties in the application. By its nature, the rule does not dispose
of the relief being sought – that may only happen on the return
day of the rule or, depending on the nature of the relief, in the
main proceedings.  Generally, if, due to the urgency and
exigencies of the matter, it is directed that the rule
or any part thereof, should apply immediately as a temporary order
without first according other affected or interested parties an
opportunity to answer to the allegations that underpin the relief,
such parties are expressly called upon by the court ‘to show
cause’ before the return date why the relief as set out therein
should not be granted. Thus, they are thereby granted an opportunity
to state their case in opposition to the application before the
relief being sought is finally determined.

procedure, compelled by the exigencies of matters in circumstances
where a rigid application of the
rule would otherwise frustrate or obviate the very purpose of the
proceedings, demonstrates the more flexible application of the rule.
 It allows for an opportunity to respond to the application
after a provisional ruling has been made and interim relief has been
granted, but before the matter will be enrolled on the return date
for final determination (or, in instances such as the application
under consideration, whether interdictory relief should be accorded
pending the outcome of the main proceedings, which are to be
adjudicated in due course).

interpose here to remark that, whatever the position may be in other
jurisdictions, the evidential burden that applicants bear to
establish their entitlement to interdictory relief on the return day
is not lessened by the fact that rules
or interlocutory interdicts have been granted at an earlier stage
during the proceedings. On the contrary, in instances where final
interdicts are sought on the return day, the overall basis on which
the courts approach the evidence, especially in the event of factual
disputes, will generally be more favourable to respondents compared
to the approach adopted by the courts when they consider the granting
of interdictory relief of an interlocutory nature in the first

fourth consideration is based on the provisions of rule 6(8) of the
High Court rules: any person ‘against whom an order is granted

may anticipate the return day upon delivery of not less than 24
hours' notice’. The effect of the rule is clear: if a rule
or interim interdict has been granted against a person without first
according him or her an opportunity to oppose or respond to the
application, he or she need not wait for the return date to challenge
the rule
or interim interdict, but may anticipate it at a hearing on 24 hours’
notice, or even shorter, if justified under the circumstances.[22]
 The sub-rule, therefore, creates a procedural mechanism for
affected parties to be heard on very short notice for the purposes of
challenging a rule
or interlocutory relief granted against them on a


these reasons, I am satisfied that, regard being had to the inherent
flexibility of the
rule, the court

properly moulded its application to meet the circumstances and
address the exigencies of the application under consideration in the
interests of fairness and justice. The context which informed the
manner of the rule’s application included the following: the
interlocutory nature of the relief sought and granted; the urgency
that attached to the application; the

strength of the case as established by respondent; the unavailability
of any other satisfactory remedy to redress the devastating effect of
appellant’s conduct on the liquidity and survival of
respondent’s business; the balance of convenience which
favoured the granting of the relief; the well-grounded apprehension
established in the founding affidavit that respondent would suffer
irreparable harm if the interim relief was not granted and ultimate
relief was granted later; the invitation directed to appellant in
terms of the rule
to show cause why the rule should not be confirmed and the ample
opportunity allowed for appellant to do so; the procedural mechanisms
available to appellant to expedite, on short notice, a setting down
of the hearing in order to show that the rule should be discharged;
the extent to which the court already granted appellant a hearing
(albeit on the founding papers only) and the failure of appellant to
‘put some version’ before the court during the three days
of argument (notwithstanding an indication its lawyer had given at
the end of the first day’s argument that appellant would
‘probably’ do so). In these circumstances, I must
conclude that appellant’s common law right to fundamental
fairness in the proceedings before the court

was not violated and that the manner in which that court applied the
rule was procedurally ‘right and just and fair’[23]
in the context and circumstances of this case.

Inasmuch as the same assertion, i.e. that
the High Court should have accorded appellant more time to prepare
and lodge answering affidavits in opposition to respondent's
application, underpins the claim that its common law right to
fundamental fairness in the hearing had been violated as well as the
claims that an irregularity in the proceedings before the High Court
as contemplated in s 16 of the Supreme Court Act, 1990 had occurred,
and that its fundamental right to a fair trial guaranteed by Art
of the Constitution had been violated, the conclusion that I have
arrived at in the previous paragraph as far as the sustainability of
first claim must, by inferential reasoning and on the same grounds,
also impact on the substance of the other two. There are, however,
certain additional observations that need to be made in relation to
the latter two claims.

for Democracy & Progress and Others v Electoral Commission of
Namibia and Others
this court had occasion to restate the purpose of the rules of court
and deal with their application:

The rules of court are devised to further and secure procedures for
the inexpensive and expeditious institution, prosecution and
completion of litigation in the interest of the administration of
justice; to facilitate adjudication of the litigation in a manner
that meets the convenience of, and resources available to the court;
to allow the litigants an equal, fair and reasonable opportunity to
present their respective cases fully for final determination to the
court; to accommodate public interest in the efficiency, regularity,
orderliness and finality of the legal process and, finally, to give
procedural effect to the constitutional demand that, in the
determination of their civil rights and obligations, all persons
shall be entitled to a fair and public hearing.’

Given the importance of furthering these objectives and interests,
there are compelling reasons why the court, as a general rule, would
not countenance non-adherence to its procedures in the absence of
sufficient cause. The rules, however, "are not an end in
themselves to be observed for their own sake". It has often been
said, that the rules "exist for the court, not the court for the
rules" and that the court will not "become the slave of
rules designed and intended to facilitate it in doing justice". 
It will interpret and apply them, not in a formalistic and inflexible
manner, but in furtherance of the objectives they are intended to
serve. But, because the rules cannot conceivably be exhaustive and
cater for every procedural contingency that may arise in the conduct
of litigation, the court may draw on its inherent powers to relax
them or, on sufficient cause shown, excuse non-compliance with them
to ensure the efficient, uniform and fair administration of justice
for all concerned.

What would constitute "sufficient cause" for the court to
grant condonation for the non-compliance with the rules in any given
instance, must be determined with reference to the facts and
circumstances of each case.’

condonation is sought under the provisions of rule 6(12) for
non-compliance with the rules on grounds of urgency, the exigencies
of the case must satisfy the requirements of the sub-rule to justify
any dispensation to be granted by the court. Moreover, when urgent
applications are brought on an

basis for relief that affects the rights or obligations of other
persons, our courts will remain vigilant to ensure that the procedure
adopted and the extent of any dispensation or condonation granted in
such matters would be tailored, as far as practical in the
circumstances, so as not to deviate from the procedures prescribed by
the rules of court or impinge on the rights of affected persons
thereunder, including the right to be heard, more than the urgency
and other exigencies in the matter require. However, if the court
finds that the

application is urgent; that the extent to which an applicant has
failed to otherwise comply with the requirements of the rules may be
condoned and that it is an appropriate instance to give directions
which deviate from the procedures prescribed by the rules for the
further conduct of the proceedings, the court’s ruling and
directions are interlocutory by nature and made in the exercise of
the court’s inherent judicial discretion to lay down fair
procedures and put interim measures in place that ultimately will
allow it to do substantive justice between the parties in the matter.
Although those rulings and directions may impact on the procedural
rights of the litigants and the further conduct of the proceedings,
they are not ‘final or definitive of the rights of the parties
nor (have) . . . the effect of disposing of at least a substantial
portion of the relief claimed in the main proceedings. An order that
an application should be heard in terms of rule 6(12) is analogous to
an order giving a direction in regard to evidence or referring a
matter to trial’.[25] As
such, it may be revisited and altered by the court of first instance
and is not appealable without leave.

condonation granted in this instance by the court below and the
directions it gave as regards the further conduct of the proceedings
(including the time and opportunity to be accorded to appellant to
file answering affidavits) clearly fall within the inherent powers of
the court under Art 78(4) of the Constitution[26]
and ambit of the judicial discretion accorded to it under rule 6(12)
of the rules of court. For the reasons I have given earlier in this
judgement, I am satisfied that the court below has exercised its
discretion judicially, given the exigencies and circumstances of the
case and the overarching interests of fairness and justice. In my
view, appellant failed to demonstrate that an irregularity has
occurred in the proceedings before the court below. In the result, I
do not propose that this court must assume its review jurisdiction
and exercise its powers in terms of s 16 of the Supreme Court Act.

It also follows from my reasoning and
conclusions that appellant's common law right to fundamental justice
has not been impinged, that no irregularity has occurred in the
proceedings before the High Court and that appellant's constitutional
right to a fair trial under Art 12(1)(
has not been violated.

Before I turn to the remaining issues
raised in the appeal, I must refer to a threshold issue that bears on
appellant’s reliance on Art 12(1)(
of the Constitution. The relevant part of the Sub-Art reads:

the determination of their civil rights and obligations
. . , all persons shall be entitled to a fair and public hearing by
an independent, impartial and competent Court or Tribunal established
by law’. (Emphasis added.)

is clear from the wording of the Sub-Art, if considered in a civil
context, that the fair trial guarantee extends to proceedings that
concern ‘the determination’ of a person's civil rights
and obligations. This, it seems to me, is a threshold requirement for
aggrieved persons who claim redress for violations of their fair
trial-rights under the Sub-Art. This is also how a similarly worded
provision of the European Convention of Human Rights[27]
has been understood and applied by the European Court of Human
Rights. According to earlier case law of that court[28]
on the applicability of Art 6 to civil matters –

. . proceedings before the domestic courts amount to “the
determination” of an applicant’s civil rights and
obligations if there is a real “dispute” (“
over these rights and obligations. The result of the proceedings in
question must thus be directly decisive for such a right or
obligation . . . .

Art 6 does not apply to proceedings in which only interim or
provisional measures are taken prior to the decision on the merits,
as such proceedings do not, as a rule, affect the merits of the case
and thus do not yet involve the determination of civil rights and
obligations . . . .  Only exceptionally has the Court considered
Art 6 to be applicable to proceedings relating to interim orders.
This concerned, in particular, cases in which an interim decision in
fact already partially determined the rights of the parties in
relation to the final claim . . . or in which an interim order
immediately led to the institution of main proceedings deciding on
the dispute in question.’

recently, however, the European Court held[29]
that it was no longer ‘justified to automatically characterise
injunction proceedings as not determinative of civil rights or
obligations’ for the following reasons:

(I)n circumstances where many contracting states face considerable
backlogs in their overburdened justice systems leading to excessively
long proceedings, a judge’s decision on an injunction will
often be tantamount to a decision on the merits of the claim for a
substantial period of time, even permanently in exceptional cases. It
follows that, frequently, interim and main proceedings decide the
same “civil rights or obligations” and have the same
resulting long lasting or permanent effects; and

it was no longer convinced ‘that a defect in such proceedings
would necessarily be remedied at a later stage, namely, in
proceedings on the merits governed by art. 6 since any prejudice
suffered in the meantime may by then have become irreversible and
with little realistic opportunity to redress the damage caused,
except perhaps for the possibility of pecuniary compensation.’[30]

European Court, therefore, adopted a new approach:[31]

As previously noted, art 6 in its civil “limb” applies
only to proceedings determining civil rights or obligations. Not all
interim measures determine such rights and obligations and the
applicability of art 6 will depend on whether certain conditions are

First, the right at stake in both the main and the injunction
proceedings should be “civil” within the autonomous
meaning of that notion under art 6 of the Convention.

Secondly, the nature of the interim measure, its object and purpose
as well as its effects on the right in question should be
scrutinised. Whenever an interim measure can be
effectively to determine the civil right or
obligation at stake, notwithstanding the length of time it is in
force, art 6 will be applicable.

However, the Court accepts that in exceptional cases - where, for
example, the effectiveness of the measure sought depends upon a rapid
decision-making process - it may not be possible immediately to
comply with all of the requirements of art. 6. Thus, in such specific
cases, while the independence and impartiality of the tribunal or the
judge concerned is an indispensable and inalienable safeguard in such
proceedings, other procedural safeguards may apply only to the extent
compatible with the nature and purpose of the interim proceedings at
issue. In any subsequent proceedings before the court it will fall to
the Government to establish that, in view of the purpose of the
proceedings at issue in a given case, one or more specific procedural
safeguards could not be applied without unduly prejudicing the
attainment of the objectives sought by the interim measure in

for a somewhat different purpose, Ms Vivier contended that the
interim order issued by the court below was not final in effect and
remained susceptible to alteration by that court.[32]
The interlocutory nature of the order in this matter pertinently
raises the question of whether it constitutes a ‘determination’
of appellant’s civil rights and obligations within the
contemplation of Art 12(1)(
I have grave reservations - even on an application of the more recent
approach – that it does. This is particularly so because
appellant had delayed for months to assert its rights in terms of the
cession of book debts and because the restrictive effect of the
interim relief was of a purely financial nature and coupled to a rule
with a short return date which, in any event, could have been
anticipated on 24 hours’ notice.  Had the rule
been discharged, the interlocutory interdict would have ceased to
have any further operation.

this point has not been argued with reference to the ‘admissibility’
of appellant’s complaint and I have already concluded on a
different basis that appellant failed to demonstrate that the
proceedings before the High Court violated its constitutional right
to a fair trial, I do not propose to make any formal finding on this
threshold issue. It may well be a matter to be addressed by this
court if and when the occasion arises in the future.

It is for the reasons given earlier in this
judgment that appellant’s three-pronged attack (constitutional,
common law and procedural) against the fairness and regularity of the
proceedings in the High Court and the validity of its order must be
dismissed on the merits.

Had we been seized with these issues in an
appeal – and appellant’s counsel assures us that it is
not one, regardless of the label that might have been attached to the
proceedings – I would have proposed to dismiss the appeal. As I
do not propose that the Court should exercise its review jurisdiction
in terms of s 16 of the Supreme Court Act, the court may also not
dispose of the matter, as we would have done with a review. Since I
propose to dismiss appellant’s challenges on the merits, there
is also no cause why this court should forge a new or different
remedy to redress appellant’s grievances. It, therefore, seems
to me that justice will be served if this matter is struck off the
roll with costs, such costs to include the costs of one instructing
and one instructed counsel.

There are, however, also a number of
ancillary matters raised in connection with these proceedings that
must be addressed, mainly because of the cost implications they have.
In what follows, I shall deal with them in brief.

The rule nisi
and interlocutory relief were granted by the High Court on 15 March
2005 and the return date was set for 4 April 2005. Before the reasons
of the presiding judge became available, appellant’s counsel
moved an application for leave to appeal to this court from the Bar.
The application was only partly heard, when it had to be postponed
until the next day. Due to unforeseen circumstances, the application
could also not proceed on that day and had to be postponed to a date
to be arranged with the registrar of the High Court. Appellant's
counsel subsequently enrolled the partly heard application for
hearing on 11 April 2005. This enrolment notwithstanding, appellant
unexpectedly lodged a ‘notice of appeal’ (quoted above)
with the registrar in terms whereof it gave notice that the appeal
was filed ‘as of right’. However, on 18 April 2005
appellant's counsel required respondent's counsel to meet at the
office of the registrar ‘for the purpose of obtaining a trial
date for the hearing of the partly heard application for leave to
appeal’, only to serve a notice of withdrawal of the
application for leave to appeal on 10 May 2005 without tendering any
wasted costs in that application. In these circumstances, appellant
should bear the costs of respondent occasioned by the application it
initiated but later withdrew and I propose to make an order

The record of proceedings in the High Court
that was lodged in this court was not complete, as it did not include
a transcript of the proceedings before the High Court on 7 March 2005
when appellant's application for a postponement of the urgent
application was refused.  Respondent applied by notice of motion
at the hearing for the record to be supplemented. Appellant did not
oppose the application and tendered the costs occasioned by it.

remains is an application that the court should condone appellant's
failure to lodge a power of attorney within the time period
prescribed by rule 5(4)(
and to deal with the consequences, if any, of appellant’s
failure to lodge security as is required in appeals by rule 8. I do
not propose to deal with these matters at length. Suffice it to say
that the rules referred to regulate the prosecution of appeals and,
inasmuch as appellant made it abundantly clear during argument that
this was not an appeal, it must follow that those rules do not apply.
It must be noted however, that the disavowal of the nature of the
proceedings, notwithstanding the label of an ‘appeal’
having been attached to the notice by which they were initiated,
happened only at the hearing in this court. Until then, respondent
was entitled to proceed on the basis that appellant intended the
proceedings to be an appeal in the hope that this court would assume
its review jurisdiction in terms of s 16 of the Supreme Court Act, as
it had in the matter of
and Another v Klotzsch and Others.
It, therefore, based its objections on the procedural permissibility
of the appeal without leave of the High Court[34]
and appellant’s failure to comply with the rules of this court
relating to appeals.

In my view, respondent was quite entitled
to act on the representation made by appellant about the nature of
the proceedings (at least until the hearing) and appellant,
therefore, should bear the costs occasioned by respondent’s
opposition to the condonation application.

The following orders are therefore made:

The appeal is struck off the roll.

Appellant pays respondent’s cost in the matter, such costs to
include –

the costs occasioned by the application for leave to appeal in the
High Court;

the costs of respondent’s application to supplement the record
of the proceedings in this court;

the costs of appellant’s application for condonation and any
opposition thereto; and further to include the costs of one
instructing and one instructed counsel.












P J v R Henning SC

(with him R Heathcote)

Instructed by
LorentzAngula Inc



S Vivier

Instructed by Koep &

this Court with powers of review as a Court of first instance in
defined instances.

ed, 2

(Sweet & Maxwell, London, 1995) at 14-15
cited with approval in
Manufacturers Association of SA and Another:  In re Ex parte
President of the Republic of South Africa and Others

2000 (2) SA 674 (CC) para 40.

[1971] AC 297 (HL) ([1969] 3 All ER 275) at 308H-309B (AC) and
278C-E (All ER) – cited in
Huyssteen and Others NNO v Minister of Environmental Affairs and
Tourism and Others

1996 (1) SA 283 (C) at 304F-H.

Amongst them
Huyssteen and Others NNO v Minister of Environmental Affairs and
Tourism and Others
v Durban Turf Club and Others

AD 112 at 126.

v South African Railways

AD 583 where Innes CJ spoke of the fundamental principles of justice
as: ‘Certain elementary principles, speaking generally, they
must observe; they must hear the parties concerned; those parties
must have due and proper opportunity of producing their evidence and
stating their contentions and the statutory duties must be honestly
and impartially discharged.’

1 All ER 109 (CA) at 118D-E. This dictum, as Farlam noted in
been quoted with approval from time to time in South African
decisions: see for example
v Jockey Club of South Africa

1974 (3) SA 633 (A) at 646E.

He referred, amongst others, to
Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and

1980 (3) SA 476 (T) at 486F-G where it was stated ‘that the
person concerned must be given a reasonable time in which to
assemble the relevant information and to prepare and put forward his
representations’ and, by parity of reasoning, also to Art
of the Constitution.

See: Art 5 of the Constitution.

Compare: Art 25(3) of the Constitution.

Counsel referred in support to
v Minister of Safety and Security

1997 (3) SA 786 (CC), para 69 where Ackermann J said the following
with reference to the South African Constitution: ‘this Court
has a particular duty to ensure that, within the bounds of the
Constitution, effective relief be granted for the infringement of
any of the rights entrenched in it. In our context an appropriate
remedy must mean an effective remedy, for without effective remedies
for breach, the values underlying and the right entrenched in the
Constitution cannot properly be upheld or enhanced. Particularly in
a country where so few have the means to enforce their rights
through the courts, it is essential that on those occasions when the
legal process does establish that an infringement of an entrenched
right has occurred, it be effectively vindicated. The courts have a
particular responsibility in this regard and are obliged to "forge
new tools" and shape innovative remedies, if needs be, to
achieve this goal.’

(3) SA 472 (SCA) at 479l/J to 480C. Compare also
case at 305C-D where the Court held that what is of importance is
that ‘the principle and procedures which, in the particular
situation or set of circumstances, are right and just and fair’
are applied.

Such as
v Minister of Law and Order and Others; Naidoo and Others v Minister
of Law and Order and Others

1986 (2) SA 264 (W) at 274B–275C;
Parte Beach Hotel Amanzimtoti (Ptv) Ltd

1988 (3) SA 435 (W) at 439C and
v State President and Others

1989 (3) SA 859 (A) at 865A-D.

With reference, amongst others, to the passage from
case, cited earlier in this judgment.


case at 305C-D: ‘What he is entitled to is, in my view, what
Lord Morris of Borth-y-Gest described as "the principle and
procedures . . . which, in (the) particular situation or set of
circumstances, are right and just and fair".'

(3) SA 654 (A) at pp 674G-675C.  

(2) SA 81 (SE) para 37 and the authorities referred to therein.


(1993, Juta and Co, Ltd), p 2.

As the European Court of Human Rights, taking its decision during a
plenary session of the Court noted with reference to ‘interlocutory
injunctions’ in the case of
and Guardian v The United Kingdom

(1992) 14 E.H.R.R. 153 noted.

Prest, ibid.

(2) SA 256 (C) at 267B–D. Endorsed in this jurisdiction by the
High Court, amongst others, in
v Minister of Health & Social Services

2006 (1) NR 377 (HC) at 387E-F.

for Democracy & Progress and Others v Electoral Commission of
Namibia and Others

(3) NR 664 (SC) para 99, and the authorities referred to therein,
a brief discussion of the differing approaches in considering the
granting of interim interdicts as opposed to that applied in the
case of final interdicts.

Compare, for instance,
v Ferela (Pty) Ltd and Others (No 1)

1998 (3) SA 281 (T) at 290B-C where Southwood J applied the sub-rule
as follows: ‘In terms of Rule 6(8) any person against whom an
order is granted

may anticipate the return day upon delivery of not less than 24
hours' notice. Respondents advised the applicants before 13:00 on 6
November 1997 that they wished to set aside the order and they
indicated this clearly to the applicants' legal representatives when
they met at Court. Sufficient notice was given and, if this is not
so, if this is not strictly in terms of the Rule, it can and must be
condoned. Insofar as this may be relevant I grant condonation for
any failure to comply with the provisions of rule 6(8).’

To borrow the phrase from
Morris of Borth-y-Gest in
v Borneman

Para 40.

v Presbyterian Church of Africa

1994 (3) SA 241 (SE) at 242G–243I and the quotations and
authorities referred to therein.

It reads: ‘The Supreme Court and the High Court shall have the
inherent jurisdiction which vested in the Supreme Court of
South-West Africa immediately prior to the date of Independence,
including the power to regulate their own procedures and to make
court rules for that purpose.’

Article 6 of the Convention, in so far as relevant, reads: ‘1.
In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair . . .
hearing within a reasonable time by [a] . . . tribunal established
by law.'

Summarised by the Court sitting as a Chamber on 10 July 2007 in the
application of
Foundation and Others v Liechtenstein

(Application No 696/05) at 13-14

v Malta

(2010) 50 E.H.R.R. 37

ibid, paras 79 and 80 of the judgment.

Ibid, paras 83 – 86 of the judgment.

She referred to a number of authorities to this effect, including:
Trading Ltd and Others v Commissioner South African Revenue Services

2005 (3) SA 1 (SCA) paras 19 and 23;
and Others v National Director of Public Prosecutions

2003 (6) SA 447 (SCA) at 452F to 453; Van Winsen, Cilliers and
Civil Practice of the Supreme Court of South Africa
ed.) at 882 - 883.

judgment of this court in Case No SA 26/2001, dated 11 October 2002.

As is required by s 18(3) of the High Court Act, 1990.