High Court Notes 2004

2004 HIGH COURT PRACTICE Practical Legal Training The Association of Law Society of the RSA and The Law Society of Namibia

The ALS and the Law Society of Namibia retain copyright on this document, Except for PLT training courses, use or duplication is unauthorized 1

HIGH COURT PRACTICE CONTENTS: COURSE MATERIAL A.

AIM OF COURSE

B.

SYLLABUS •

The purpose of the course is to supply a broad overview of the subject from a practical point of view.

•

During training, instructors will only cover those aspects which candidate attorneys will encounter most often in practice.

•

The remainder of the course is self-study The syllabus is compiled by experts in practice.

C.

PRACTICE NOTES •

The purpose of the notes is to supplement the presentation of the instructors and, hopefully, to be of use in practice.

•

Notes do not form a complete manual on the subject – the use of the relevant sources is still necessary.

Notes were originally compiled and partially drafted by: Adv C F Eckard With contributions by: Adv. H J van der Merwe Scholtz * Adv D S Fourie Mr. A. de W Horak * Mr. A de Vries Adv M. Snyman 1997 updated by Adv D E van Loggerenberg and Namibianised and updated by: Mr. F.C. Brandt: Chris Brandt Attorneys - 2004 2

D.

FORMS AND PRECEDENTS

E.

REFERENCE SOURCES

IMPORTANT NOTICE

The attention of candidates is drawn to the fact that these notes are only meant to give an overview of practice in the High Court of Namibia

Candidates must see to it that they are aware of the practice rules 3

of the High Court of NAMIBIA.

4

A AIM OF THE COURSE Candidates should have a thorough practical understanding of civil procedure, with regard to various causes of actions, in the High Court of Namibia, from the stage of taking instructions through to appeal and review and taking into consideration aspects such as ethics, costs, drafting of bills of costs, other courts and alternative ways of dispute settlement. In particular candidates should: -

understand the functioning of the courts with specific reference to the various officials and the courts in which civil litigation can be instituted.

-

develop a complete knowledge of the rules of court in practical application.

-

understand the relationship between the profession and the Court with special reference to the Legal Practitioner’s responsibility as an officer of the court.

-

understand the relationship between the Legal Practitioner and client, be able to appraise at an early stage the factual and legal implications of the client’s case and be able to advise the client on: 1. 2.

prospects of success costs implications.

5

A.

INTRODUCTION

A1

SOURCES

A2

STRATEGIC PLANNING

A3

OFFICIALS OF THE COURT

A4

THE HIGH COURT AND THE SUPREME COURT

A5

GENERAL REMARKS CONCERNING COURT ETHICS

6

A.1 SOURCES 1.

Act and the rules The most important sources are the High Court Act, 16 of 1990, the Rules of Court issued in terms thereof.

2.

Practice directions The Judge President from time to time issues practice directions which contain important information regarding practice and procedure in the High Court of Namibia.

3.

Textbooks for South African High Courts and Namibian High Courts L T C Harms: Civil Procedure in the Supreme Court, Butterworths, Durban, 1990. H J Erasmus and A Breitenbach (D E van Loggerenberg, consulting editor): Superior Court Practice, Juta, Cape Town, 1994 Herbstein & Van Winsen: The Civil Practice of The Superior Courts in South Africa, Third Edition, Juta, Cape Town, 1979.

7

A.2 STRATEGIC PLANNING a.

It is very important to have a good background knowledge of how High Court litigation functions in practice. The application of the different rules that govern litigation must be well understood.

b.

Teamwork must be stressed throughout. The attorney and the advocate (legal practitioners) together form a legal team, each of whom applies his/her own expertise to render the best services possible to the client. The attorney must always remember that he/she plays a vital role within the team. Do not expect the advocate to handle the entire case by himself/herself giving him/her instructions.

c.

The key to successful High Court practice is proper planning.

d.

The ultimate success of a case often depends upon thorough preparation. It is like an operation: even though a brilliant doctor performs the operation, the death of the patient could still be caused through negligence.

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A.3 OFFICIALS OF THE COURT

1.

Judges They are usually appointed from the ranks of senior legal practitioners or senior academics or senior magistrates.

2.

3.

The Registrar (who is also Sheriff ex officio) a.

He is a senior official of the Ministry of Justice and is the head of the court administration at the High Court of Namibia and the Supreme Court of Namibia. The pleadings are issued from his/her office and are also filed there. He/she is in charge of the court files. (See Rule 3).

b.

According to section 30 of the High Court, the Ministry may, subject to the laws governing the public service, appoint to the High and Supreme Court, registrars, assistant registrars and other officers whenever they may be required for the administration of justice or the execution of the powers and the authorities of the said courts.

The Deputy Sheriff a.

Deputy Sheriffs are the executive officers of the court.

b.

The deputy sheriffs are appointed in terms of section 30 of the High Court Act No. 16 of 1990.

c.

The deputy sheriffs are appointed by the Minister as prescribed. The deputy sheriff performs all the executive actions as authorized by the aforesaid Act within the jurisdiction of the court for which he/she was appointed.

] 9

d.

4.

5.

The deputy sheriffs are responsible for the service of process through which an action is instituted or motion proceedings are launched, as well as the execution of attachments and removal orders that are made by the court.

The Taxing Master a.

He/she is an officer of the court in the office of the registrar who must see to it that the bills of costs of all legal practitioners, where costs were awarded, properly comply with the provisions of the rules with regard to costs.

b.

Rule 70(3) stipulates that the Taxing Master shall, on every taxation, allow all such costs and expenses as appear to him/her to have been necessary or proper for the attainment of justice or to defend the rights of any party.

c.

The Taxing Master therefore has a wide discretion to allow costs as party and party costs, however, this is done with consideration of the costs as set out in Rule 70 issued in terms of the High Court Act.

d.

Before a successful party is entitled to recover the costs of the action from the other party, his/her bill of costs must first be taxed unless the costs are agreed upon by the parties.

The Interpreters

a.

Interpreters play an important role in the courts.

b.

Any witness is entitled to speak in his/her mother tongue in court. However, only English shall be used as the official language medium in court, [See Article 3(1) of the Namibian Constitution] and therefore, interpreters are often used.

c.

An interpreter has to be properly sworn in as such.

10

6.

7.

8.

The Court Orderly a.

He/she is an officer (normally a Namibian Police official) in the registrar’s office who assists the court in the orderly progress of the civil proceedings.

b.

He/she will for example call out witnesses’ names, get documents that are handed in by legal practitioners to give them to the judge and must see to it in general that the judge is enabled to orderly run the court proceedings.

The Judge’s Clerks a.

Judge’s clerks are appointed for all the judges.

b.

They are paid by the Public Service.

c.

The Judge’s Clerk is the personal clerk for the judge and must assist the judge in diverse matter for example by making personal arrangements for judge i.e. the collection of law reports that are used, to take personal messages, to make telephone calls etc.

d.

Judge’s clerks may be seen as a kind of a personal secretary for every judge.

e.

Usually no legal practitioner will see a judge in his/her chambers unless he or she is accompanied to the judge by the judge’s clerk.

The Court Stenographer a.

They are usually official persons placed in the courts by a private organization who are responsible that all the proceedings in the High Court are mechanically recorded so that it, if necessary, may be made available by means of a record. 11

9.

b.

Not all records are typed.

c.

A record is usually only typed if the legal practitioners request it or if the court orders that the record be typed.

d.

These persons are paid by the private organizations in whose employ they are.

Legal Practitioners [The Attorneys and Advocates] They are officers of the High Court and must always act with the necessary dignity and respect towards the court and towards each other.

10.

11.

The Master of the High Court a.

The Master of the High Court is also an official of the Ministry of Justice but he/she does not directly deal as much with the court as the officers mentioned above.

b.

The Master of the High Court, however, must also often submit reports to judges in administration of estates and under the insolvency legislation.

The Prosecutor-General a.

The Prosecutor-General is in control of all prosecutions in Namibia in the High Court (See Article 88 of the Namibian Constitution).

b.

He/she and the persons under him/her that are known as “state prosecutors”, deal with prosecutions in the High Court in all criminal trials. They do not, however, have much to do with civil litigation.

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A.4

THE HIGH COURT AND THE SUPREME COURT OF NAMIBIA

The High Court is established in terms of Article 80 of the Namibian Constitution and the Supreme Court in terms of Article 79 of the Namibian Constitution. Both Courts are located in Windhoek.

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A.5

A FEW GENERAL REMARKS CONCERNING COURT ETHICS a.

Legal Practitioners must be suitably dressed.

b.

Witnesses must as far as possible be dressed neatly and formally.

c.

When a person enters or leaves the court, a courtesy bow is made in the direction of the bench. Every one stands up when the judge enters and when he/she leaves the court.

d.

When a legal practitioner stands up to address the court or to raise objections, his/her opponent must sit down.

e.

The form of address for a judge in the court is “My Lord”/”My Lady” and outside the court it is “Judge”.

f.

No legal practitioner may see a judge in chambers in connection with a case unless he/she is taken there by the judge’s clerk.

g.

One must always be accompanied by one’s opponent when a judge is seen in chambers in connection with an opposed case.

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B

SYLLABUS 15

B.

THE PRE-LITIGATION STAGE

B.1

THE TAKING OF INSTRUCTIONS

B.2

LEGAL OPINIONS OF COUNSEL (LEGAL PRACTITIONERS)

B.3

THE ATTORNEY’S (LEGAL PRACTITIONER’S) RESPONSIBLITIES TOWARDS THE CLIENT

B.4

CORRESPONDENCE

B.5

PRACTICAL FILE ADMINISTRATION

B.6

THE ATTORNEY’S (LEGAL PRACTITIONER’S) MANDATE

16

B.1 THE TAKING OF INSTRUCTIONS After this session, the student should be able to:

1.

Identify the importance of taking proper instructions.

2.

Brief Counsel with the view to obtaining a legal opinion

3.

Explain the importance of “careful” correspondence and file administration.

4.

Conduct a consultation with a client, with regard to a given set of facts.

a.

Although the following seems very simple, mistakes are often made because instructions were not taken properly from the client at the outset.

b.

Remember, the more meticulous the matter is handled from the start, the easier litigation is handled later on.

c.

It is often best to first have a general conversation in order to gain background knowledge, and then immediately start to take down the client’s complete statement.

d.

Cryptic loose notes like: “Divorce issue summons? Transnamib, two children plus minus N$600-00 per month Telephone number 12345” should not be used.

e.

The full names and the identity number, the residential and work address, the telephone and fax numbers of the client must be written down on top of the statement, as well as the date the statement was taken down.

f.

It often works best to dictate the client’s version point by point in the client’s presence so that the client can hear for himself/herself what the attorney’s precise instructions are.

g.

The statement must therefore be taken down briefly in paragraph form.

h.

Should the attorney give a project to the client, it should also be recorded, for example: “I undertake to phone Messrs ABC during this week and talk to Mrs X to ascertain if she is willing to make a statement. I shall report back to the client.” 17

”The client will bring me a copy of the contract together with all the receipts this week.” i.

Instead of dictating, the attorney can take down these notes by hand, but it remains a good idea that the client hears exactly what the attorney writes in his (the client’s) statement. Speak out aloud, while you are taking notes.

j.

Ask the client to take notes for himself/herself of what he/she must still bring to the attorney.

k.

In this way many misunderstandings can be removed and in this way the attorney as well as the client is obliged to pay attention to all relevant facts, i.e. dates, names, places and times. See, in general, Notes in 1986 De Rebus p 319.

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B.2 LEGAL OPINIONS OF COUNSEL (BRIEF) a.

Should the attorney decide to obtain a legal opinion from counsel, he/she must send a summary of all relevant facts as well as copies of all relevant documents to counsel with specific instructions concerning the aspects on which he/she wants a legal opinion.

b.

Should the attorney feel that there are possible aspects on which counsel himself/herself would want to question the client, he/she may instruct counsel to consult with the client and then give his/her legal opinion.

c.

In the last-mentioned case the attorney ought to give as much information as possible to counsel before the consultation in order to enable counsel to properly prepare for the consultation and to do the necessary legal research.

19

B.3 THE ATTORNEY’S (LEGAL PRACTITIONER’S) RESPONSIBILITIES TOWARDS THE CLIENT NOTE: THE INTENTION IS NOT TO ONCE AGAIN REPEAT THE RULES OF ETHICS. ONLY CERTAIN FACETS ARE ACCENTUATED. IT MUST ALWAYS BE REMEMBERED THAT THE ATTORNEY’S CONDUCT MUST SPEAK OF PROFESSIONALISM AND A SENSE OF DUTY.

1.

2.

Full information

a.

The attorney must, as mentioned above at “the taking of instructions”, always endeavor to ascertain all relevant information from the outset.

b.

Should he/she come upon certain “inconsistencies” in the client’s version, he/she ought to show it to the client and insist on gaining further information himself/herself to establish exactly what happened.

c.

In this way he can assist the client to recall certain facts.

Financial aspects a.

From the start the attorney has to speak to the client about the financial aspects.

b.

The attorney should never avoid giving the client an indication of the exact costs of litigation up to a certain stage or an estimate of the expected costs of litigation.

c.

The clients expect this frankness from their attorneys.

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3.

Time IT IS THE ATTORNEY’S MOST PRECIOUS POSSESSION AND NEEDS TO BE APPLIED WISELY. IMMEDIATELY MAKE A NOTE ON THE FRONT OF THE FILE OF THE TIME SPENT ON A CASE. THIS IS THE ONLY WAY TO ENSURE THAT YOU DO NOT COME SHORT.

4.

5.

The prospects of success a.

The attorney must at all times be absolutely honest with the client.

b.

Be careful not to promise the client too much, and on the other hand avoid being totally negative or overcautious towards one’s client’s case or his/her prospects of success.

c.

Once again it should be remembered that the more thorough the attorney knows the facts, the better will he/she be able to explain the prospects of success to the client.

The necessity of counsel a.

The attorney and the advocate (both are legal practitioners) always work together as a team.

b.

Advocates are the persons who normally must present the cases in the High Court; but the advocate does so with the full support and cooperation of the attorney. Attorneys may not abandon their responsibilities to assist him/her.

c.

An attorney is at all times entitled when he/she considers it necessary to render the best possible service to his/her client, to give counsel instructions to assist him/her.

d.

The attorney may decide which advocate he/she wants to approach for a specific case. In this regard attorneys usually build working relationships with particular advocates for specific types of cases.

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6.

Settlements a.

Settlement offers must be made carefully and accurately.

b.

The client must be consulted at all times and the attorney must keep the client well informed.

c.

It is interesting to note that the most common complaint of clients concerning attorneys is that they were not kept well informed at all times with the developments of the case.

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B.4 CORRESPONDENCE a.

(INCLUDING DEMANDS)

It must at all times be remembered that even the most simple letter that was written by an attorney, may later become the subject of penetrating enquiry and/or argument in the High Court.

b.

Letters must be short, official and courteous.

c.

If often helps when the letters are written in numbered paragraph form.

d.

Letters must contain complete references.

e.

If letters are written without prejudice, they must be clearly marked as such. Remember that not all letters marked “without prejudice”, are necessarily privileged. In order for a letter or part thereof to be privileged, the following three requirements must be present: -

There must be a dispute between the parties

-

The letter must be aimed at a bona fide settlement of the dispute

-

The letter or the relevant part thereof must form an integral part of the settlement negotiations.

f.

If letters are sent by registered post, they must be marked as such and the registered post slips must be attached to the file copy of the letter.

g.

Telephone calls and messages and conversations must be recorded on paper. It would be a great help to the attorney to have such paper handy on his/her desk beforehand, so that messages can be recorded immediately.

h.

It is even better to immediately confirm important telephone calls by letter. 23

i.

Various kinds of code words or abbreviations on loose pieces of paper do not make minutes of a telephone conversation.

j.

When letters of demand are written, they must be phrased with great care, almost like a pleading – all essential allegations must be made clearly, but concisely.

24

B.5 PRACTICAL FILE ADMINISTRATION a.

The key to successful litigation, especially in complicated High Court affairs, is successful file administration.

b.

From the start the file must be kept as neat and orderly as possible. The principle is to keep all types of documents together in date sequence.

c.

A ring file with different partitions is very useful when a case becomes comprehensive. However, if there is not too much documentation, an ordinary file cover with different sub-file covers may be used. The different sub-divisions in the attorney’s file can, for example, consist of the following: -

Statements

-

Correspondence

-

Processes or pleadings

-

Memoranda (including legal opinions)

-

Exhibits

-

Legal aspects (including photostats of court decisions and statutory provisions) that may play a key role in the litigation

d.

Documents

There must be short notes on the front or inside of the file cover concerning the highlights of the progress of the case e.g. consultations and the exchange of pleadings. Such notes have two objectives: -

It gives a survey of the progress of litigation, and

-

It immediately gives the attorney an idea of the amount of time spent on a particular case. 25

B.6 THE ATTORNEY’S MANDATE a.

A power of attorney is still necessary to issue a summons or to give notice of intention to defend: Rule 7(1).

b.

A power of attorney is also necessary when an appeal is prosecuted, i.e. when application is made for a date of hearing. The attorney who gives instruction to counsel to appear at the appeal on behalf of the respondent must also file a power of attorney before the date of hearing (Rule 7(3)(a).

c.

It is therefore not necessary to file a power of attorney when notice of appeal is given, but only before hearing thereof (Rule 7(3)(b).

C 26

PRACTICE NOTES

27

C.

THE ACTION PROCEDURE

C1

PREREQUISITES

C2

DIFFERENT TYPES OF SUMMONSES

C3

THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS

C4

JUDGMENT BY DEFAULT

C5

NOTICE OF INTENTION TO DEND

C6

SUMMARY JUDGMENT

C7

THE DECLARATION

C8

EXCIPIABLE AND IRREGULAR PROCEEDINGS

C9

PROCEDURES IN CASES OF DEFAULT

C10 THE DEFENDANT’S PLEA C11 CLAIM IN RECONVENTION C12 FURTHER PLEADINGS C13 THIRD PARTY PROCEDURE C14 CLOSING OF PLEADINGS C15 DISCOVERY C16 ENROLMANT C17 THE PRE-TRIAL PROCEDURES C18 GENERAL PREPARATION FOR TRIAL

28

C19 THE TRIAL – THE ATTORNEY’S DUTIES C20 OFFERS TO SETTLE INCLUDING INTERIM PAYMENTS C21 AMENDMENTS TO PLEADINGS AND DOCUMENTS C22 INTERLOCUTORY APPLICATIONS – RULE 6(11) C23 SECURITY FOR COSTS C24 PROCEDURE FOR PROVISIONAL SENTENCE

29

C.1 PREREQUISITES After this session, the candidate should be able to: 1.

Distinguish between different causes of action.

2.

Explain the concepts “locus standi” and “jurisdiction”.

3.

Distinguish between a “curator bonis” and a “curator ad litem.”

4.

Distinguish between the concepts “incola” and “peregrinus” and explain why the distinction is of relevance.

There are three prerequisites that must be noted namely the cause of action, the locus standi of the parties and the jurisdiction of the court.

The

prerequisites are shortly discussed hereunder. 1.

The cause of action a.

Liability never originates in vacua. It is always based on a legal fact, resulting in an obligation. We can call this legal fact the cause of action.

b.

Such a legal fact may originate out of a contract, a delict or various other causes.

c.

In the case of a contract, the parties thereto are contractually bound and should one party commit breach of contract, the other party would in principle be entitled to enforce the contract or to cancel the contract and claim damages.

30

d.

In the case of delict, the wronged party will be entitled to claim compensation from the wrongdoer or if there is a threatening injustice, the other party can be prevented to commit the delict by means of an interdict.

e.

Concerning the various other causes, the aim is not to give a list of such cases, but to give a couple of examples. 1.

A father for example, is liable to pay maintenance for his minor child; in which case the legal fact giving rise to the obligation is fatherhood.

2.

If one person is enriched at the expense of another, the law provides that the prejudiced person has a claim against the recipient on the grounds of unjust enrichment.

f.

A cause of action may briefly be described as a legal fact giving rise to an obligation, which again results in liability. Liability only follows when the cause of action is complete.

g.

To determine whether the cause of action is complete, notice must be taken of the relevant legal principles in each particular case.

(See

Amler’s Precedents of Pleadings, 5th edition, Butterworths. h.

Normally a letter of demand is not necessary before the Plaintiff may institute an action against the Defendant.

However, there are cases

where written notice or a letter of demand is essential for the completion of the Plaintiff’s cause of action. In this regard there are primarily three categories, namely:1.

where a contractual relationship is applicable, it may firstly be necessary to place the party in default in mora before action may 31

be taken against him/her. To determine when a letter of demand is necessary in this regard, the principles of the law of contract must be noted. 2.

where the parties (usually in the case of a contract) expressly or tacitly agreed that a letter of demand must first be delivered before an action may be instituted.

3.

where statutory provisions determine that a letter of demand is a prerequisite. So, for example section 2 of the Limitation of Legal Proceedings (Provisional and Local Authorities) Act 94 of 1970 (See also section 33 of the Local Authorities Act, No 23 of 1992 and Schedule 4 thereof) provides that no legal proceedings shall be instituted against an administration, local authority or officer (the “debtor”) unless the creditor has within ninety (90) days as from the day on which the debt became due, served a written notice on the debtor.

(For further examples, see Erasmus:

Superior Court Practice, part E7).

2.

Locus standi a.

Locus standi in judicio is the capacity to act as litigant.

b.

Some people do not have this capacity although the claim is rightfully theirs. So, for example, a minor who sustained injuries in a motorcar accident has a claim for compensation on account of the negligent cause of pain and suffering, but he/she does not have the capacity to enforce his/her claim as litigant. In such a case his/her incapability to act as litigant must be supplemented by the necessary assistance of his/her father or natural guardian.

c.

A partnership, a firm or an association may sue or be used in its name (Rule 14(2)). 32

d.

The following categories of persons do not have locus standi in judidio and the reason, why they do not qualify to act as litigant, is discussed below:

1.

Minors: Natural persons under the age of 21 are called minors. Minors under the age of 7 are incapable to act. It means that such a person (even with the assistance of his/her guardian) may not act as litigant.

In such a case the guardian must act on his/her

behalf, although the claim is still rightfully the minor’s claim. -

If he/she has no guardian, the court must be approached way of application procedure so that a curator ad litem may be appointed for him/her.

-

Minors between the ages 7 and 21 have limited capacity to act. This means that they, in contrast with minors under 7 years, may act as litigants provided that their lack of capacity to litigate is supplemented by assistance of a guardian. In such a case the claim is still rightfully the minor’s claim and the claim is instituted in his/her own name, while he/she is assisted by his/her guardian. Concerning this category of minors, his guardian may also, as in the case of minors under the age of 7, institute the claim on behalf of the minor in his (the guardian’s) name.

2.

Persons under curatorship: Curatorship is the official supervision under which an adult person (or his/her estate) remains, where such a person is incapable of managing his/her own 33

affairs.

In this regard one can mainly distinguish between the following

appointments:-

-

a curator bonis who is appointed to administer a person’s property and general affairs;

-

a curator ad litem who is appointed by the court to represent a person, whether a minor or a major, in civil litigation.

3.

The Married Persons Equality Act No. 1, 1996 abolish the marital power; to amend the matrimonial property law of marriages in community of property; to provide for domicile of married women; to provide for domicile and guardianship of minor children; to further regulate the liability for household necessaries of spouses married out of community of property; to amend certain laws to give effect to the abolition of marital power; and to provide for matters incidental thereto.

3.

Jurisdiction a.

Jurisdiction can generally be defined as the legal competence of a court to hear a specific matter and to grant an order in relation to it. Before litigation is instituted, it must first be determined which court has jurisdiction. See, in general, Erasmus: Superior Court Practice, pp A120 to A1-37.

b.

The High Court, differing in this respect from the Magistrate’s Court, has inherent jurisdiction.

34

c.

Certain statutes limit the jurisdiction of the High Court. So e.g. income tax appeals must be heard by a special income tax appeal court (273 of Act 24 of 1981).

e.

There are also further limitations on the jurisdiction of the High Court. These further limitations may be discussed under the following headings, namely:

1.

Territorial limits:

i.

The jurisdiction of the High Court is territorially limited to the boundaries of the relevant High Court’s seat. In order to determine whether the High Court has jurisdiction, there must be one or other link (nexus) between the persons over which the legal competence is exercised and the territory of Namibia as set out in Article 1(4) of the Namibian Constitution over which the jurisdiction of the court is valid.

ii.

In cases of contractual claims (ratione contractus) the nexus is in the fact that the contract in dispute, was concluded within the court’s jurisdiction or that the breach occurred there.

iii.

In cases of claims that result from a delict (ratione delicti commissi), the delict had to be committed within the area of jurisdiction of the court. 35

iv.

In cases concerning relief with regard to a real right or an immovable property the court will have jurisdiction if such real right or property (ratione rei sitae) is situated within the court’s territorial limits.

v.

If none of the above-mentioned requirements can be met, the court in general will still have jurisdiction if the defendant is domiciled or resident within the particular court’s area (action sequitur forum rei).

2.

(i)

Matrimonial Matters

A.

In regard to jurisdiction in matrimonial actions and proceedings ancillary thereto, see the Matrimonial Causes Jurisdiction Act 22 of 1939, as amended. s.1-Extended jurisdiction in matrimonial causes. s.2-Preliminary orders. s.4-Claims in reconvention. s.5-Orders as to property rights of spouses and custody, guardianship and maintenance of children. s.6-Law and practice applicable in actions or claims in reconvention for divorce or restitution of conjugal rights dealt with under this Act. s.6bis.-Recognition of certain decrees and orders.

B.

The Matrimonial Causes Jurisdiction Act No. 53 of 1945 confers on the High Court of Namibia temporary jurisdiction in certain matrimonial causes.

36

C.

The Matrimonial Affairs Act No. 37 of 1937 relates to property rights of spouses, to orders for maintenance, to the guardianship and custody of minors and to divorce.

D.

The Marriage Act No. 25 of 1961 consolidates and amends the laws relating to solemnization of marriages and matters incidental thereto as amended by Act 5 of 1987.

E.

Married Persons: Equality Act No. 1 of 1996 abolish the marital power; to amend the matrimonial property law of marriages in community of property; to provide for domicile of married women; to provide for domicile and guardianship of minor children; to further regulate the liability for household necessaries of spouses married out of community of property; to amend certain laws to give effect to the abolition of marital power; and to provide for matters incidental thereto.

Jurisdiction with regard to the nullity of a marriage is not regulated by this act. In this case the common law principles are still applicable and the distinction Between nullity on the one hand and voidable marriages on the other hand should be noted.

-

Concerning the former, the procedure is only declaratory in nature and does not alter the status of the parties. This means that the court of the place where the putative marriage was solemnized, the court of the parties’ common domicilium at the institution of the proceedings, the court of the Plaintiff’s domicilium at the institution of the proceedings or the court of the putative spouse’s domicilium at the solemnization of the putative spouse’s domicilium at the solemnization of the putative marriage, will have jurisdiction.

-

In the case of a voidable marriage, there is in fact a marriage and at the annulment thereof a change in the status of the parties takes place. In 37

such a case the court in whose jurisdiction the husband or wife is domiciled at the time of the institution of the action will be court that has jurisdiction. -

The Married Persons Equality Act, 1996 abolish the marital power; to amend the matrimonial property law of marriages in community of property; to provide for domicile of married women; to provide for domicile and guardianship of minor children; to further regulate the liability for household necessaries of spouses married out of community of property; to amend certain laws to give effect to the abolition of marital power; and to provide for matters incidental thereto.

3.

Confirmation and foundation of jurisdiction: Under this heading the assumption is made that the Plaintiff is an incola of the High Court’s jurisdiction, while the Defendant is a peregrinus of the entire Republic of Namibia.

a.

If the cause of action arose within the High Court’s jurisdiction, that court will also have jurisdiction over the person of the Defendant if the Defendant is arrested or his/her property is attached (confirmation of jurisdiction).

b.

If there is no relation between the person of the High Court’s area of jurisdiction (i.e. in the absence of any form of jurisdiction), the Defendant must be arrested or his/her property must be attached in order to found jurisdiction. See further, in general, Erasmus: Superior Court Practice, pp A128 to A1-31.

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C.2 THE DIFFERENT TYPES OF SUMMONSES After this session, the candidate should be able to:

1.

Distinguish between the three different summonses in the High Court, with reference to when each will be used.

2.

Indicate when the joinder of parties will be necessary.

3.

Explain the meaning of the so called “dies non” concept.

4.

Distinguish between the different methods of service of summons by the Deputy Sheriff.

5.

Distinguish between “Edictal Citation” and “Substituted Service”.

One can distinguish between three kinds of summonses in the High Court, namely: -

a simple summons

-

a combined summons and

-

a provisional sentence summons

The latter summons only exists in the High Court of Namibia.

39

1.

Simple Summons (rule 17) a.

What does the simple summons look like? Form 9 – See Rules of the High Court – GN No. 59/1990

b.

When is the simple summons used?

i.

Claims for payment of a debt or a liquidated amount:

iii.

A claim for a debt (usually ex contractu) is a liquidated demand. An example thereof is a claim for the payment of the (balance) purchase price with regard to goods purchased and delivered, money lent and advanced etc.

iv.

Note that a claim for damages (ex contracto or ex delicto) is in almost all cases unliquidated and that in all these instances the simple summons should NOT be used. Examples of this are the costs to repair defective and unskilled work (compensation for contractual claims) and claims for injuries or reparation costs caused by motor vehicle collisions (compensation for delictual claims).

ii.

Claims for delivery Claims for the delivery of a specific movable asset or for the delivery of an account, is a liquidated claim; 40

iii.

Claims for transfer A claim for the registration of transfer of immovable asset, is a liquidated claim.

iv.

Claims for eviction A claim for the eviction of a person from a specific property, is a liquidated claim.

v.

Claims for the cancellation of a contract A claim for the cancellation of a contract is a liquidated claim. NOTE: Claims in matrimonial matters Claims that are connected to matrimonial matters, e.g. divorce orders or nullity suits, may not be enforced by a simple summons. In these cases a combined summons must be used (as discussed below). Claim for a declaratory order A claim for a declaratory order is not a liquidated claim and a combined summons or the application procedure (if appropriate) must be used.

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2.

Combined summons (rules 17 and 18) a.

What does the combined summons look like? Form 10 – See Rules of the High Court – GN No. 59/1990.

b.

When is the combined summons used? i.

A combined summons may be used in all cases where the action procedure is applicable. This means that one does not have to distinguish in this case between liquidated and unliquidated claims.

ii.

This form of summons differs from a simple summons in that a statement (particulars of claim) which contains the material facts relied upon by the Plaintiff in support of his/her claim must be attached to the summons.

iii.

It further differs from a simple summons in that the particulars of claim should be signed by both an attorney and an advocate. (Now called counsel (Legal Practitioner: Compare the Legal Practitioners Act, No. 15 of 1995) (See amendment of Rules section 12 GN 81/1996).

3.

Provisional sentence summons This whole issue is discussed at C24 below. Form 3 – See Rules of the High Court – GN No. 59/1990

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C.3 THE CONTENTS, ISSUE AND SERVICE OF THE SUMMONS Contents of the summons Various basic matters concerning the contents of the summons are subsequently taken into consideration.

1.

When are parties joined

a.

All persons who have a direct and substantial interest in the relief that may possibly be granted by the court, must be joined as parties to the action.

b.

They may be joined as co-plaintiff or co-defendant.

c.

If a person has an interest and ought to have been joined, but was not joined, the court will as a general rule not adjudicate the matter until such person has been joined.

d.

Keep in mind that persons may themselves intervene as Plaintiffs or Defendants. Rule 12 provides that someone who is entitled to join as co-plaintiff, or who is merely liable to be joined as a defendant in an action, may after notice to all parties at any stage of the proceedings, apply for leave to intervene as a plaintiff or defendant.

e.

Parties can join and be joined as a matter of convenience in terms of rule 10.

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2.

What is meant by the joinder of different causes of action?

a.

See in general court rule 10.

b.

Distinguish between the following cases:

i.

A plaintiff may join several causes of action in the same action against the defendants.

ii.

Several plaintiffs, each of whom has a claim, whether jointly, jointly and severally, jointly or in the alternative, may join in one action against the same defendant (or defendants), provided that the cause of action of all the plaintiffs proposes the same question of law or fact.

iii.

Several defendants may be sued in the same action, whether jointly, jointly or separately, separately or in the alternative, provided that the question arising between them or any of them and any of the plaintiffs, depends upon the determination of substantially the same question of law or fact.

3.

How are the parties described? a.

Rule 17(4) provides that the name, including where possible the first name or initials by which the defendant is known to the plaintiff, his/her residence or place of business and where known, his/her occupation and if he/she is sued in any representative capacity, such capacity, his/her sex and if a female. 44

b.

Concerning the plaintiff, his/her full names, sex and occupation and his/her residential or business address must be mentioned. Where he/she sues in a representative capacity, such capacity must be mentioned.

4.

Dies Induciae Simple and Combined Summons – defendant within the jurisdiction of the court, minimum of 10 court days after service of the summons (Rule 19[1]). Simple of Combined Summons – defendant outside the jurisdiction of the High Court, minimum time, 21 calendar days (s 24 of Act No. 16, 1990), calculated in accordance with the provisions of the Interpretation Proclamation No. 37 o f 1920. Simple and Combined Summons – in an action against a Minister, Deputy Minister, officer or servant of the State, in his capacity as such, the State, not less than 20 court days after service of the summons (Rule 19[2]). The Provisional Sentence Summons – not less than 15 court days after service of the summons (Rule 8[1]). NB:

The Registrar may in exceptional circumstances issue process and accept documents at any time, and shall do so when directed by a court or a judge. (Rule 3: (Minister of Police v Johannes and Another 1982 (3) SA 846 (A)).

The different methods of service a.

All process by which an action or an application is initiated, must be effected by the sheriff.

45

b.

Concerning urgent applications, see comments made under D8 below.

c.

All other documents are served by the party himself/herself, should he/she act in person, or where he/she is represented by an attorney, by his/her attorney.

d.

Service must be effected as near as possible between the hours of 7 a.m. and 7 p.m. (Rule 4(1)(c)).

e.

No service may validly be effected on a Sunday, except the issue or execution of a warrant of arrest, unless the court or a judge otherwise directs (Rule 4(1)(c)).

f.

Note that in certain courts in the Republic of South Africa where an application for sequestration rests on a nulla bona return of service, the application does not have to be served on the respondent. (Vintners (Pty) Limited v Vermeulen 1978 (1) 771 (T).

g.

Rule 4(1)(a) prescribes the following ways of service by the sheriff: Personal service; i.

Personal service;

ii.

At the place of residence or business;

iii.

At the place of employment;

iv.

At the domicilium citandi;

v.

At the registered office of a legal person or its principal place of business that is situated within Namibia; 46

vi.

On an agent of the party who has written authority to accept service;

vii.

On a partnership, firm or voluntary association as prescribed by the rule.

viii.

On regional or local authority or any other statutory body as prescribed by the rule concerned;

ix.

Prisons Act 17 of 1998 by serving a copy of the process on the prisoner personally. [No clear provisions]

h.

Service is effected by the sheriff exhibiting the original process to the person on whom service must be effected, explaining the nature and contents thereof and leaving a copy with the person. The sheriff then gives a return of service in which he/she explains how service was effected. The original return of service is filed in the court file. A copy of the return of service is sent back to the attorney.

i.

If service cannot be effected in any of the ways set out above, e.g. because the person on whom service must be effected evades the service or cannot be traced, the court may be approached for further directions as to how service must be effected.

j.

One of the means of service the court may prescribe, is substituted service. Substituted service may, for example, be effected by means of a notice in a newspaper. SEE EXAMPLES, NO. 1

k.

An application for leave to sue by way of edictal citation is utilized where the process is served upon a person outside the Republic of Namibia. 47

SEE EXAMPLE, NO. 2

C.4 JUDGMENT BY DEFAULT After this session, the candidate should be able to:

1.

Indicate when Default Judgment may be applied for.

2.

Explain the procedure which is followed to obtain Default Judgment in the High Court, and distinguish the procedure that is followed with liquid as opposed to illiquid claims.

3.

Draft a request for Default Judgment with regard to a liquid claim.

4.

Brief Counsel with regard to an application for Default Judgment of an illiquid claim.

1.

When may judgment by default be applied for? a.

Where the defendant is in default with his/her notice of intention to defend.

b.

Where the defendant failed to plead pursuant to service of a notice in terms of Rule 26.

c.

Where the plaintiff failed to deliver a declaration (again pursuant to a Rule 26 notice).

d.

Where the plaintiff or defendant failed to appear at the hearing (after due notice). 48

2.

Judgment by default granted by the Registrar

a.

Rule 31(5)(a) provides that the Registrar may grant judgments by default in instances where the claim is for a debt or is otherwise liquidated and where the Defendant is in default with his/her notice of intention to defend. In these instances counsel is thus no longer briefed to make the application for judgment by default in open Court. According to the decision in Entabeni Hospital v Van der Linde; First National Bank v Puckriah 1994 (2) SA 422 (N) it is mandatory that all these applications be brought before the Registrar and that they no longer be dealt with by a Judge in open Court.

b.

A written application for judgment by default is filed by the plaintiff with the Registrar. SEE EXAMPLES NO. 3 AND 4 The Registrar may in terms of Rule 31(5)(b) – i.

grant judgment as requested;

ii.

grant judgment for part of the claim only or on amended terms;

iii.

refuse judgment wholly or in part;

iv.

postpone the application for judgment on such terms as he/she may consider just;

v.

request or receive oral or written submissions;

vi.

require that the matter be set down for hearing in open Court. 49

c.

Rule 31(5)(c) provides that the Registrar shall record any judgment or direction given by him/her.

d.

The Registrar shall grant judgment for costs on the appropriate scale applicable in magistrate’s court plus the Deputy Sheriff’s fees if the value of the claim as stated in the summons, apart from any consent to jurisdiction, is within the jurisdiction of the Magistrate’s Court and, in other cases, unless the judgment requires costs to be taxed or the Registrar requires a decision on costs from the Court, N$800-00 plus the Sheriff’s fees. In cases where there is a prior agreement between the parties that attorney and client costs will be payable in the event of legal proceedings, the registrar is not only entitled but also obliged to award attorney and client costs (Bloemfontein Board Nominees Ltd v Benbrook 1996 (1) SA 631 (O) at 635 D).

e.

In terms of Rule 31 (5)(f) a judgment by default which is granted and entered into by the Registrar in terms of Rule 31(5)(e)(i) shall be submitted to a judge in chambers for confirmation and thereafter shall be deemed to be a judgment of the court.

f.

Any party dissatisfied with a judgment granted or direction given by the Registrar may, within 20 days after he/she has acquired knowledge of such judgment or direction, set the matter down for reconsideration by the Court. [Rule 31(2)(b)]. In Erf 1382 Sunnyside (Edms) Beperk v Die Chipi BK 1995 (3) SA 659 (T) it was ruled that the facts and the grounds upon which the matter is brought before the Court for reconsideration must be stated clearly in either the Notice of Enrolment or by way of sworn affidavit or be placed before the Court in such other way as the Court deems fit.

50

In cases where the claim is not liquid, (in other words where the amount claimed is not fixed and determinate e.g. a claim for damages) oral evidence must be given during the application for judgment by default to prove the quantum of the plaintiff’s damages.

3.

What is a notice of bar?

When the defendant is in default of delivery of his/her plea, application for judgment by default cannot merely be done, but he/she must first be barred (Rule 26). This means that a notice of bar must first be given (SEE EXAMPLE, NO. 5).

a.

If the plaintiff is in default of delivering his/her declaration, the defendant must serve a notice of bar on the plaintiff to deliver his/her declaration.

b.

However, the defendant is not entitled to apply for judgment against the plaintiff in such case, but may only apply for absolution from the instance of the plaintiff’s claim.

4.

Failure to appear at the hearing

If the defendant does not appear at the hearing. The plaintiff may apply for judgment by default against the defendant provided that the claim is liquid. If the claim is not liquid, the plaintiff may still apply for judgment by default provided that evidence concerning the damage is tendered (Rule 31).

51

5.

Which documents must be filed in counsel’s brief in matters which are brought before the open court? a.

If the defendant is in default with his/her notice of intention to defend, the instructions must at least include the following.

b.

c.

i.

A copy of the summons,

ii.

A copy of the return of service,

iii.

A copy of the notice of set down.

Where the defendant is in default with his/her plea: i.

A copy of the summons,

ii.

A copy of the return of service (optional),

iii.

A copy of the notice of intention to defend,

iv.

A copy of the notice of bar,

v.

A copy of the notice of set down.

Where the plaintiff is in default with his/her declaration: i.

A copy of the simple summons,

ii.

A copy of the notice of intention to defend, 52

iii.

A copy of the notice of bar,

iv.

A copy of the notice of set down.

C.5 NOTICE OF INTENTION TO DEFEND

What does this notice look like?

SEE EXAMPLES, NO. 6.

The defendant must give a physical address within 8 kilometres of the office of the registrar where all documents in the action can be served upon him/her.

What happens when the notice of intention to defend is delivered late?

The notice of intention to defend may be delivered late and may not be ignored, provided that default judgment has not been granted yet (Rule 19(5)).

Notices that can accompany the notice of intention to defend

When the defendant gives notice of intention to defend, he/she may also deliver certain notices that require the plaintiff, in the case of a partnership, to supply the names of the partners and their addresses (Rule 14(5) and (6)).

53

C.6 SUMMARY JUDGMENT After this session, the candidate should be able to:

1.

Indicate the prerequisites for an application for Summary Judgment.

2.

Draft the Notice of Motion and founding affidavit in an application for Summary

3.

Judgment.

Indicate how a Defendant can avoid Summary Judgment being granted against him/her.

4.

List the documents which must be in Counsel’s brief when he/she appears for the Applicant or Respondent in an application for Summary Judgment.

1.

What are the prerequisites for a summary judgment? a.

The defendant has to give notice of intention to defend in one of the instances mentioned below (Rule 32 (1)).

b.

The instances are: i.

Where the claim is based on a liquid document

ii.

Where the claim is for a liquidated amount of money

iii.

Where the claim is for delivery of specified movable property 54

iv.

2.

Where the claim is for ejectment.

When may the plaintiff apply for summary judgment? It shall be done within 15 days after the defendant delivered notice of intention to defend. Rule 32 (2)).

3.

The application reads as follows: “Be pleased to take notice that the Plaintiff intends to make application on …… February 20…., at … am or as soon thereafter as Counsel may be heard, for summary judgment in terms of the prayers set out in the Plaintiff’s summons. And further take notice that the accompanying Affidavit of …….., marked Annexure A, will be used by the Plaintiff in support thereof at the hearing of this application. Kindly place the matter on the roll for hearing accordingly.” Notice is given to the Registrar and the defendant. An accompanying affidavit in terms of rule 32(2) may look as follows: Founding Affidavit I, the undersigned, _________________ do hereby make oath and say:

a.

I am the plaintiff is this matter.

b.

I have personal knowledge of the facts set out in the summons. 55

c.

I confirm that the facts verifying the cause of action and the amount claimed are true and correct and I also confirm the correctness of the cause of action and of the amount claimed.

d.

In my opinion the defendant has no bona fide defence to the action and he/she has delivered notice of intention to defend solely for the purpose of delay.

(“Take notice that the defendant may not adduce any additional evidence” (rule 32 (4); Trust Bank of Africa Ltd v Hansa and Another 1988 (4) SA 102 (V)).

4.

Courses open to the defendant The defendant may either file an affidavit in which he/she discloses the nature and grounds of his/her defence, or he/she may give security to the plaintiff to the satisfaction of the Registrar to satisfy any judgment , including costs, which may be granted against him/her (Rule 32(3)).

5.

How must the nature and grounds of the defence be set out? a.

It must be set out in detail and may not merely be a denial.

b.

It is open to the defendant to raise a claim in reconvention but then the nature, grounds and material facts of such claim must be set out fully.

c.

The claim in reconvention may be one that is liquidated or unliquidated. Even if the quantum of the claim in reconvention is less than the extent of the main claim, it will be sufficient to prevent summary judgment to be granted.

d.

The defendant does not have an onus of proof to prove his/her defence. See further Erasmus: Superior Court Practice, pp B1-223 to B1-228.. 56

6.

How must the security be given? In practice the plaintiff and the defendant agree upon the form of the security and if the Registrar accepts it, it is regarded as sufficient. NB. A replying affidavit by the Plaintiff is not permissible.

7.

What approach does the court follow?

a.

Summary judgment is a drastic remedy and the court must be convinced that the plaintiff has an unanswerable case before the court will grant the application. (Mmabatho Food Corporation v Fourie 1985 (1) SA 318 (T).

b.

Should the court give leave to the defendant to proceed with his/her defence, the declaration of the plaintiff will follow (where a simple summons has been issued) and after that the plea.

c.

The defendant does not have to set out his/her defence in the same detail as in a plea, but he/she must supply sufficient detail to enable the court to decide whether he/she has a bona fide defence (Maharash v Barclays Bank Limited 1976 (1) SA 418 (A)).

d.

The test is not whether the court is convinced of the probabilities of the defendant’s defence or of his/her credibility, but whether it would constitute a defence if the facts stated therein are true.

e.

Where the court grants leave to defend and does not determine the time allowed for the delivery of a declaration, it must be delivered within 20 days of the date leave to defend has been given (Rule 32(9)).

57

f.

Should leave be granted to defend, costs are usually reserved for decision by the trial Court.

g.

However, costs may be awarded against the plaintiff where the plaintiff in the opinion of the court knew that the defendant has a bona fide defence, and nevertheless continued with the application for summary judgment.

8.

Which documents must be in counsel’s brief when he/she appears for the plaintiff or the defendant?

a.

A copy of the summons.

b.

A copy of the return of service (optional).

c.

A copy of the notice of intention to defend.

d.

A copy of the application for summary judgment together with the supporting affidavit.

e.

9.

A copy of the opposing affidavit, if any.

Orders that the court may make at the hearing of the application for summary judgment. a.

The court has a discretion to grant summary judgment if the defendant could not find security or was unable to satisfy the court that he/she has a bona fide defence (Rule 32(5)). 58

b.

If the defendant satisfies the court that he/she does have a bona fide defence or if the defendant gives security, the court must give leave to defend and the action will proceed to trial.

c.

The leave to defend may be given unconditionally or subject to such terms as to security, the time allowed for the delivery of pleadings or otherwise, as the court deems fit.

b.

Orders as to costs

i.

Where the plaintiff, in the opinion of the court, knew that the defendant relied on a contention which would entitle him/her to leave to defend, the court may order that the action be stayed until the plaintiff has paid the defendant’s costs and that such costs be taxed between attorney and client.

ii.

Should it later appear at the trial that the defendant raised an unreasonable defence and that the plaintiff actually should have succeeded with his/her application for summary judgment, the court may order the plaintiff’s costs of the action to be taxed on the basis as between attorney and client (Rule 32 (10)).

59

C.7 THE DECLARATION (Rule 20) After this session, the candidate should be able to:

1.

Indicate when a declaration will be delivered and by whom.

2.

Indicate what happens if a Plaintiff has failed to deliver a Declaration.

3.

Draft with regard to a given set of facts, a Declaration.

4.

Distinguish between a Simple and a Combined Summons.

SEE EXAMPLES, NO. 7

1.

What is the declaration?

a.

It is the equivalent of the plaintiff’s particulars of claim (which is attached to the plaintiff’s combined summons) where a simple summons has been issued.

b.

It contains the particulars of the plaintiff’s claim and the relief, which is requested.

c.

It fully expounds the plaintiff’s claim, not only cursorily as in the case of the simple summons.

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2.

When will the declaration be used? a.

It will be used when the plaintiff sued by means of a simple summons and the defendant gave notice of intention to defend.

b.

The plaintiff must then deliver his/her declaration within 15 days of receipt of the notice unless the plaintiff successfully applied for summary judgment.

c.

If summary judgment was refused, the plaintiff must deliver his/her declaration within 20 days after judgment was refused, unless the court orders another period.

3.

What happens when the plaintiff fails to deliver his/her declaration and also does not apply for summary judgment?

a.

The defendant may serve a notice of bar on the plaintiff and compel the plaintiff to deliver his/her declaration within 5 days after service of the notice.

b.

If the plaintiff still fails to deliver his/her declaration, the defendant may, after adducing evidence, apply for absolution from the instance or ask that the action of the plaintiff be dismissed with costs.

61

C.8 EXCIPIABLE AND IRREGULAR PROCEEDINGS After this session, the candidate should be able to:

1.

List the grounds for an exception.

2.

Indicate when an exception must be raised.

3.

Explain the procedure to be followed in terms of Rule 30(1).

4.

Explain the difference between an application to set aside and an application to compel.

5.

Draft, with regard to given sets of facts: i) ii)

An exception; An application.

A.

THE EXCEPTION

1.

The exception is raised when the excipient alleges that a pleading against which he/she excepts is invalid as it stands.

2.

Grounds of an exception In terms of rule 23(1) the following are grounds for an exception: a.

The pleading is vague and embarrassing;

b.

The particulars of claim does not disclose a cause of action, or the plea does not disclose a defence.

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3.

A distinction must be made between exception and the notice to strike out. The latter is only used to strike out certain allegations in a pleading (in other words only a portion of a pleading) without having an effect of the balance of the pleading. An exception, however, is raised against a pleading as a whole. The purpose of the exception is to bring an end to the matter, or at least a part thereof.

4.

When must the exception be raised? The exception must be raised within the period allowed for the filing of any subsequent pleading (Rule 23(1)).

5.

The form of the exception: a.

In terms of rule 23(1) the notice of exception must clearly state the ground(s) for the exception. The exception must also contain a prayer, namely that the particular pleading or the relevant part thereof be struck out. Barclays National Bank v Thompson 1989 (1) SA 547 (A) on 552; Group Five Building Ltd v The Government of the Republic of South Africa 1993 (2) SA 593 (A); 1991 (3) SA 842 (T) on 845.

b.

The notice of exception may for example be drafted in the following form: “BE PLEASED TO TAKE NOTICE that the Defendant hereby raises an exception against the Plaintiff’s Particulars of Claim by reason of the fact that the Particulars of Claim does not indicate that the Plaintiff has locus standi, because there are no allegations that indicate that the Plaintiff personally suffered the damage alleged by him. WHEREFORE the Defendant prays that the Plaintiff’s particulars of claim be struck out with costs.”

c.

Before an exception can be raised on the grounds that it is vague and embarrassing, the party intending to take an exception should be notice afford his/her opponent an opportunity to remove the cause of complaint within 14 days. (Rule 23(1)).

d.

This notice may, for example, be as follows:

63

BE PLEASED TO TAKE NOTICE that unless the Plaintiff removes the cause of complaint set out hereunder within 14 days, the Defendant intends to raise an exception against the Plaintiff’s Particulars of Claim on the grounds that the said Particulars of Claim are vague and embarrassing. The complaint is as follows: The Plaintiff alleges in paragraph 3 of his Particulars of Claim that the Defendant’s conduct resulted in a breach of contract or some other unlawful act was perpetrated against the Plaintiff”. The above sentence is vague and embarrassing because it is not clear on what grounds the Plaintiff alleges that he suffered damages.”

6.

The hearing of the exception The exception is heard as an opposed motion and the Court may uphold the exception or dismiss it or order that the adjudication of the exception stands over until the hearing of the matter.

B.

IRREGULAR PROCEEDINGS I.E. STEPS NOT TAKEN IN TERMS OF THE COURT RULES Take note that the following three different remedies that are available to a party to compel his/her opponent to abide by the rules of litigation. These remedies apply in action as well as motion proceedings.

1.

Application to set aside Any party to any cause in which an irregular or improper step or proceedings has been taken by any other party, may within 15 days after becoming aware of the irregularity, apply to court to set it aside, provided that no party who has taken any further step in the cause with knowledge of the irregularity or impropriety shall be entitled to make such application (Rule 30(1)).

2.

Application to compel

64

In some cases specific provision is made that a party may compel the opponent to comply with a request or with the rules by means of an application to the court (e.g. Rule 21(4): Further particulars for purposes of the trial).

3.

Application to strike out In other cases a party may give notice to the defaulting party to comply with the rules within 10 days and if the rules are not complied with, the party concerned may apply to the court that the claim or the defence be struck out. Such a notice may read as follows: “BE PLEASED TO TAKE NOTICE that unless the Plaintiff complies with the provisions of Rule 18(1) within 10 days, namely to supply the amounts of medical costs and hospital expenses, the defendant intends to make application to the abovementioned Honourable Court that the Plaintiff’s claim be struck out and such other relief as the court may deem just.” (Rule 30(5)). The Court will not easily strike out a claim or a defence. The Court will rather grant condonation and give an order that the party concerned must comply within a reasonable time with the rules and then make a suitable order as to costs. So, for example, the court may order that the respondent must produce a document for inspection by the Applicant within 14 days if the Respondent has failed to produce the document in terms of Rule 35(12) (Gehle v McLoughlin 1986 (4) SA 543 (W)).

65

C.9 PROCEDURE BY DEFAULT (NOTICE OF BAR)

After this session, the candidate should be able to:

1.

Indicate when a Notice of Bar will be delivered and the consequences of a failure to respond thereto.

2.

Draft a Notice of Bar.

a.

A party who fails to deliver any pleading within the time laid down in the rules or within the time granted to him/her in terms of an extension, may be barred by the other party.

b.

A party is barred through a notice that is served upon him/her, in which it is demanded that the relevant pleading be delivered within five (5) days after the notice of bar has been served. Should he/she failed to deliver the pleading, he/she will be barred from delivering afterwards (Rule 26).

c.

The notice of bar looks as follows: “Notice of Bar Be pleased to take notice that the Plaintiff requires the Defendant to deliver his/her plea within 5 days after delivery of this notice, and in the event of the defendant failing to deliver the said document, he/she will be barred from doing so.”

d.

Take notice that for the purpose of this rule the days between 16 December and 15 January (both inclusive) shall not be counted in the time allowed for the delivery of any pleading. This time is known as the dies non (Rule 26). 66

e.

Removal of the notice of bar Application may be made to the court to remove a notice of bar, but good cause must be shown (Rule 27).

67

C. 10

THE DEFENDANT’S PLEA After this session, the candidate should be able to:

1.

Indicate with which general requirements a Plea should comply.

2.

Explain the meaning of a “Special Plea.”

3.

Draft, with regard to given set of facts:

1.

2.

i)

A Plea;

ii)

A Special Plea;

When to be delivered a.

In the case of a combined summons the defendant has to deliver a plea within 20 days after the delivery of his/her notice of intention to defend (Rule 22(1)).

b.

In the case of a simple summons or a provisional sentence summons where the defendant entered into the principal case, the defendant also has to deliver his/her plea within 20 days after the service of the declaration.

c.

If the defendant wants to institute a claim in reconvention, it must (in the absence of agreement with the Plaintiff or an order of court) be delivered simultaneously with the plea (Rule 22(1)).

Requirements for the plea a.

The plea must in general comply with the following requirements (Rule 22 and 18): 68

i.

All the material facts alleged in the combined summons or declaration must be admitted or denied or confessed and avoided. Every allegation of fact by the plaintiff, not admitted or denied, will be deemed to be admitted;

ii.

All the material facts on which the defendant relies must be stated clearly and concisely;

iii.

If any explanation or qualification of any denial is necessary, it must be stated;

iv.

If the defendant relies on a contract, it must be stated whether it was a written or an oral contract, and when, where and by whom it was concluded. In the case of a written contract, a copy of the contract should be attached of the pleading;

v.

If the defendant is represented, the plea must be signed by a legal practitioner.

b.

A plea which does not comply with these requirements, may be set aside as an irregular pleading in terms of Rule 30 – see the provisions of Rule 22 in this regard.

c.

A defendant may admit the allegations of a claim in his/her plea, but request that the judgment be postponed until judgment be given on his/her claim in reconvention. The prayer reads more or less as follows “WHEREFORE the defendant prays for judgment in his/her favour together with costs, alternatively that judgment on the claim in convention be suspended until after adjudication of the claim in reconvention filed evenly herewith, and thereafter that the plaintiff’s claim be dismissed with costs.”

d.

Such a claim in reconvention may be raised even if the claim in reconvention is smaller than the claim in convention and even if the claim in convention is for a liquidated amount and the claim in reconvention a claim for damages (Du Toit v De Beer 1955 (1) SA 469 (T)).

e.

In the case of a claim for damages based on a delict it may be pleaded that the plaintiff’s own negligence contributed to the damages and an apportionment of damages between joint wrongdoers may be requested. Note that the court may make an apportionment even though the 69

defendant did not claim an apportionment (AA Mutual Insurance Association Limited v Nomeka 1976 (3) SA 45 (A). However, see also Ndaba v Purchase 1991 (3) SA 640 (N)).

3.

Instructions to counsel In consideration of the requirements set out above, counsel must be furnished with complete instructions if it is his/her instruction to draft a plea. The following documents must accompany his/her instructions:

4.

a.

In the case of a combined summons, a copy thereof and in the case of a simple summons, a copy of the summons and declaration;

b.

Full instructions with regard to the defendant’s defence;

c.

Copies of all documents relevant to the defendant’s defence, e.g. correspondence and the contract if it is relied upon a written contract.

Special Plea

What is a special plea? A special plea does not raise a defence on the merits of the plaintiff’s claim, but raises a special defence apart from the merits. A special plea, depending on its nature, may be dilatory or declinatory. In the case of a dilatory special plea, the special defence that is raised does not abate the plaintiff’s claim and in the case of a declinatory plea the special defence that is raised has as its object to abate or squash the plaintiff’s claim entirely. a.

Dilatory special pleas: The following are examples of dilatory special pleas:

70

i.

lis pendens: if the same cause of action is pending between the same parties in another court, the defendant may plead lis pendens;

ii.

arbitration:

if the parties have agreed previously that the dispute

will be subjected to arbitration, the defendant may plead arbitratio; iii.

non-joinder: if the plaintiff failed to join another party who has a “direct and real interest” in the proceedings, the defendant may raise it as a special plea.

b.

Pleas in abatement: The following are examples of pleas of abatement: i.

prescription:

if the plaintiff’s claim is completely or partially

prescribed, prescription may be raised as a special plea. ii.

res judicata: when the same cause between the same parties has already been tried and finally decided upon by some other court, a special plea of res judicata may be raised. Absolution from the instance is not a final order.

ii.

absence of jurisdiction: if the court does not have jurisdiction, the defendant may raise it as a special plea.

Note that the special plea shall always be filed as part of the plea. It is set out first in the plea under the heading “special plea”. In other words, the defendant must thereafter go on to “plead over” on the merits.

71

C. 11

CLAIM IN RECONVENTION (RULE 24) After this session, the candidate should be able to:

1.

Indicate when a counterclaim should be instituted.

2.

Explain the meaning of a conditional counterclaim.

3.

Draft with regard to a given set of facts, a counterclaim.

a.

A defendant who wants to institute a claim in reconvention must do so simultaneously with the filing of his/her plea. However, a defendant may deliver a claim in reconvention at a later stage where he/she does so with the plaintiff’s consent or with the leave of the court. A claim in reconvention must comply with the same requirements as a declaration.

b.

If the defendant is entitled to take action against any other person as well as the plaintiff, he/she may with the leave of the court proceed in such action by way of a claim in reconvention against the plaintiff and such other persons, in such manner and on such terms as the court may direct.

c.

The defendant may also raise a conditional claim in reconvention against the plaintiff. It means that he/she may subject his/her claim in reconvention to the failing of the claim in convention or the defence.

A conditional claim in

reconvention is often raised in actions for damages resulting from injuries sustained in motor vehicle collision.

72

C. 12

FURTHER PLEADINGS (RULE 25)

After this session, the candidate should be able to:

1.

Indicate when a replication and a rejoinder respectively will have to be file.

2. Draft, with regard to given sets of facts, a replication and rejoinder respectively.

a.

Replication Within 15 days of the service upon him/her of a plea, the plaintiff shall where necessary deliver a replication to the plea. A replication that is a bare denial of allegations in the plea, is necessary (Rule 25(2)). This means that if the plaintiff does not replicate, the allegations contained in the plea will be deemed to be denied. The following cases are examples of where a plaintiff will replicate to a defendant’s plea: i.

Where the plaintiff wants to reply on estoppel.

ii.

Where the plaintiff admits certain allegations on the plea, but wants to qualify his/her admission as in the case of a confession and avoidance.

iii.

Where the defendant pleads prescription.

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b.

Rejoinder Within 10 days after delivery of a replication, the defendant may deliver a rejoinder, where necessary, on the plaintiff’s replication. The defendant’s rejoinder may be followed up with a surrejoinder from the plaintiff and after that a second rejoinder and second surrejoinder may follow. All these further pleadings must be served within 10 days after delivery of the previous pleading. In terms of the present rule, the leave of the court is not necessary for the filing of such further pleadings.

74

C. 12

THIRD PARTY PROCEDURE (RULE 13)

After this session, the candidate should be able to:

1.

To explain the third party procedure.

2.

To draft a third party notice.

1.

A party to an action or an application can involve another party in such action or application by serving a third party notice on such person.

2.

A third party notice can be issued under the following circumstances:

a.

Where the party in the action claims that he/she is entitled, in a respect of any relief claimed against him/her, to a contribution or indemnification from the third party; or

b.

Where any question or issue in the action is substantially the same as a question or an issue which has arisen or will arise between such party and the third party, and should probably be determined not only as between the parties to the action but also as between such parties and the third party or between any of them.

75

3.

The third party notice must contain the following: a.

the nature and grounds of the claim of the party issuing it;

b.

the question or issue to be determined;

c.

the relief or remedy claimed.

4.

The formulation of the claim follows that of a pleading and the rules relating to pleadings are mutates mutandis applicable.

5.

The third party notice must be served before the close of pleadings. After the close of pleadings the notice may only be served with the leave of the Court. The notice must be accompanied by a copy of all pleadings filed in the action up to date of service of the notice. In application proceedings the notice must be accompanied by all notices of motion and affidavits which have been filed from date of service of the original notice of motion.

6.

The third party is, after service upon him/her of a third party notice, a party to the action/application. If he/she intends to defend/oppose, he/she must deliver a notice of intention to defend.

7.

See further the provisions of Rule 13 and Form 7 of the First Schedule of the Rules of the High Court.

76

C. 14

CLOSE OF PLEADINGS

After this session, the candidate should be able to:

1.

Indicate when pleadings are deemed to be closed.

2.

Explain the meaning of “litis contestation”.

3.

Advise a client on steps to be taken with the view to: i.

obtain a trial date

ii.

preparation for trial

iii.

briefing counsel iv.

financial consideration – costs aspect

a.

The closing of pleadings (litis contestation) is a concept that is used to indicate that from a given moment the parties are no longer entitled to exchange pleadings. This means that both parties had ample opportunity to define their cases by way of pleadings.

b.

Pleadings are deemed to be closed in terms of rule 29:

77

i.

if either party has joined issue without alleging any new matter and without adding any further pleading;

ii.

if the last day allowed for filing of a replication of subsequent pleading has elapsed and it has not been filed;

iii.

if the parties agree in writing that the pleadings are closed and such agreement is filed with the registrar; or

iv.

if the parties are unable to agree as to the close of pleadings, and the court upon the application of a party declares them closed.

78

C. 15

DISCOVERY After this session, the candidate should be able to:

1.

Explain the purpose of discovery.

2.

Explain how tape recordings are treated in terms of Rule 35(15).

3.

Indicate what the consequences are if, having been called upon to discover, one fails to do so.

4.

Distinguish between discovery before the close of pleadings and discovery after the close of pleadings.

5.

List those documents which are privileged and explain how privileged documents are treated in a Discovery Affidavit.

6.

Draft a Notice in terms of Rule 35(1), (5) and (10).

1.

The principles underlying discovery is that no party may for any purpose use a document at the trial if the document has not been disclosed previously.

2.

The other p arty in the matter, who was not obliged to discover the document, will, however, be entitled to use such document at the trial. (Rule 35(4)). Such a case is found where the other party uses a document which the other party was obliged to disclose for cross-examination purposes.

79

3.

Note that in terms of Rule 35(15) tape recordings are treated just like documents and must also be disclosed. A tape recording also includes a sound track, film, magnetic tape, record or other material on which visual images, sound or other information may be recorded.

4.

Discovery is aimed at giving parties the opportunity to properly discover and inspect documents before such documents are used at the trial. It prevents parties from being unexpectedly surprised by all sorts of “new” evidence at the trial.

5.

A party who fails to give discovery in time runs the risk that the documents he/she intends to use in the course of his/her case, will not be permissible; or he/she runs the risk that a postponement will be granted with an order for costs against him/her.

6.

Specific types of documents a.

General: A documents and tape recordings not privileged and relating to any matter in question and such action (whether such matter is one arising between the two parties concerned or not) and which are or have at any time been in the possession or control of such other party, must within 20 days after the other party required it by notice in writing, be discovered on affidavit. This procedure is only applicable after the close of pleadings, except with the leave of a judge.

b.

Qualification: A party is only obliged to make discovery of documents and tape recordings which are detrimental to his/her own case or which may advance the case of his/her adversary. Documents or tape recordings which only tend to advance the case of the party making the discovery, need not be disclosed, unless such party intends to use it at the trial.

c.

Privileged documents or tape recordings: Documents or tape recordings which are privileged need not be disclosed for inspection of the adversary, but must be stated and identified individual (and not only in general). In this regard it is important to note that statements of witnesses taken for purposes of the proceedings, communications between attorney and client and between attorney and advocate, pleadings and affidavits and notices in the action, must not be stated. See, with regard to privilege, Erasmus: Superior Court Practice, pp B1252 to B1-256.

d.

Other documents or tape recordings: If any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring him/her to 80

make the same available for inspection in accordance with sub-rule (6), or to state on oath within 10 days that such documents are not in his/her possession, in which event he/she shall state their whereabouts if known to him/her (Rule 35(3)).

7.

e.

Documents not in possession or control of the other party: If a party wants to prevent that he/she will be surprised by documents and tape recordings which may possible be used by the other party, but which are not in the possession or control of the other party, he/she may demand the other party to specify in writing particulars of dates of and parties to documents or tape recordings intended to be used at the trial of the action on behalf of the other party (Rule 35(8)).

f.

Discovery before the close of pleadings for purposes for pleading: After appearance to defend has been entered, an party to any action may, for purposes of pleading, require any other party to make available for inspection within five (5) days a clearly specified document or tape recording in his/her possession which is relevant to a reasonable anticipated issue in the action and to allow a copy or transcription to be made thereof (Rule 35(14)).

g.

Discovery by persons not parties to the proceedings: Where a registered company/Fund, as defined in the Motor Vehicle Accidents Act No. 4 of 2001 (payment of compensation to victims of motor vehicle accidents and incidental matters) is a party to an action, any party may obtain discovery against the driver or owner of the vehicle insured by such Fund/company and the same applies to the driver of a vehicle that is owned by a person, state, government or body as defined in the above-mentioned Act. (Rule 35(5)).

h.

Failing to discover: If a party fails to make discovery, the other party may apply to the court for an order to compel discovery. If discovery is insufficient, the other party must first make use of Rule 35(5) and if the other party still fails to make discovery, the court may order sufficient discovery and at further default thereof, the court may upon application strike out the claim or defence (Rule 35(7)).

Any party to any proceeding may at any time before the hearing thereof deliver a notice as near as may be in accordance with Form 15 of the First Schedule to any other party in whose pleadings or affidavits reference is made to any document or tape recording to produce such document or tape recording for his/her inspection and to permit him/her to make a copy or transcription thereof. Any party failing to comply with such notice shall not, save with the leave of the court, use such document or tape recording in such proceedings, provided that any other party may use such document or tape recording (Rule 35(12)). This 81

sub-rule is applicable in cases where the documents do not appear in the discovery affidavit. It is even applicable in applications. 8.

It is essential that the documents are sorted in proper chronological order, paginated and supplied with an index.

9.

Clear, readable copies must be made for the other party, for counsel, witnesses and the court.

10.

These documents must be put in order in good time, do not wait until shortly before the hearing. In this regard it is extremely important that the attorney should do his/her work properly. Many high court cases result in disappointment for the clients because the attorney failed to make the necessary arrangements for discovery in good time.

82

C.16

SET-DOWN PROCEDURE (RULE 39)

After this session, the candidate should be able to:

1. Explain the procedure one will follow to apply for a trial date in the High Court. 2.

Draft an application for a trial date.

a.

Application for a trial date must be made in writing to the Registrar, usually on Wednesday morning by prior notice to the other party.

b.

The Registrar allocates a day on which the trial will take place.

c.

It is then the duty of the plaintiff’s attorney to give notice to the opponent and all other parties of the day on which the trial will take place. This notice reads as follows: “Please take notice that the trial in the abovementioned case is set down for hearing on the …………. day of ……………. 200… at 10 a.m. or as soon thereafter as the case may be heard.” 83

d.

Note that if the plaintiff fails to set the matter down for hearing within the time allowed therefore, the defendant is then entitled to set the matter down for hearing.

SEE EXAMPLE NO 8. The practice is to hold the Rule 37 conference after closing of the pleadings. After the pre-trial conference is held, the Registrar is requested to allocate a date.

84

C.17

THE PRE-TRIAL PROCEDURES

After this session, the candidate should be able to:

7.

Indicate when a notice in terms of Rule 36(4) and 36(10) respectively will be delivered.

8.

Indicate when a Notice in terms of Rule 36(9)(a) and (b) will be delivered.

9.

Explain under which circumstances Counsel will be briefed to obtain advice on evidence.

10.

Explain the difference of a Request for Further Particulars in the Magistrate’s Court as opposed to the High Court, with reference as to when such a request may be delivered in the High Court.

11.

Explain the difference between a Pre-trial conference in the Magistrate’s Court as opposed to the High Court.

12.

Explain the aim of a Pre-trial conference.

13.

Draft the following notices: i. ii.

Rule 36(4) and 36(10) Rule 37(1) iii. Rule 36(8)(a) and (b)

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It is especially these procedures which are extremely important and they must be followed closely by counsel/attorneys. These procedures are the following: -

The Rule 36 notices. The expert notices. Instructions to counsel (including a request for advice on evidence). Particulars of trial. The pre-trial conference.

Some of these different procedures are briefly discussed:

14.

General No person shall, save with the leave of the court or the consent of all the parties to the suit, be entitled to call as a witness any person to give evidence as an expert upon any matter upon which the evidence of expert witnesses may be received unless he/she has, not less than 15 days before the hearing, delivered notice of his/her intention to do so as has, not less than 10 days before the trial, delivered a summary of such expert’s opinion and his/her reasons therefore (Rule 36(9)). No person shall, save with the leave of the court or the consent of all the parties, be entitled to tender in evidence any plan, diagram, model or photograph unless he/she has, not less than 15 days before the hearing, delivered a notice stating his/her intention to do so, and has offered inspection thereof and required the party receiving notice to admit the same within 10 days of receipt of the notice (Rule 36(10)).

15.

Inspections If it appears that the state or condition of any property of any nature whatsoever, whether movable or immovable, may be relevant with regard to the decision of any matter in issue in any action, any party may at any stage give notice requiring the party relying upon the existence of such state or condition of such property or having such property in his/her possession or under his/her control, to make it available for inspection or examination, and may in such notice require that such property or a fair sample thereof remains available for inspection or examination for a period of not more than 10 days from the date of the receipt of the notice (Rule 36(6), (7) and (8)).

16.

Examinations 86

Any party to proceedings in which damages or compensation in respect of alleged bodily injury is claimed shall have the right to require any party claiming such damage or compensation, whose state of health is relevant for the determination thereof, to submit to medical examination. Any party requiring another party to submit to such examination shall deliver a notice specifying the nature of the examination required, the person or persons by whom, the place where and the date (being not less than 15 days from the date of such notice) and time when it is desired that such examination shall take place. Any party to such an action may at any time by notice in writing require any person claiming such damages to make available in so far as he/she is able to do so to such party within 10 days any medical reports, hospital records, X-ray photographs, or other documentary information of a like nature relevant to the assessment of such damages, and to provide copies thereof upon request (Rule 35(1) to (7)).

17.

Instructions to counsel It is important that counsel is briefed as soon as possible in order to reserve himself/herself for the trial. Counsel must receive all relevant documentation as soon as possible to enable him/her to properly prepared for the trial.

18.

Advice on evidence If there is any doubt about which evidence must be presented, counsel must be briefed for an advice on evidence. The costs of this advice on evidence may be taxed as costs between party and party. Such instructions must be given to counsel in good time. All the pleadings must be submitted to counsel together with copies of all statements of witnesses already taken down. It is also desirable that the brief for advice on evidence is given after discovery has been made, because then counsel can have insight into the discovered documents of both parties. Counsel must be urged to let you have the advice well in advance of the trial to enable you to give effect thereto as part of your pre-trial preparation.

19.

Request for particulars for purposes of trial 87

7.

a.

After a close of pleadings any party may, not less than 20 days before trial, deliver a notice requesting only such further particulars as are strictly necessary to enable him to prepare for trial. Such request shall be complied with within 10 days of receipt thereof by the other party. The request for further particulars and the reply thereto shall be signed by counsel, save where the party concerned is litigating in person (Rule 21(4)).

b.

If the party requested to furnish any particulars as aforesaid fails to deliver them timeously or sufficiently, the party requesting the same may apply to court for an order to compel their delivery. Should the party requested to furnish further particulars still fail to comply with such an order, the court may be requested on application to dismiss the action or to strike out the defence (Rule 21(6)).

c.

In order to prevent the abuse of this procedure, the court shall at the conclusion of the trial mero motu consider whether the further particulars were strictly necessary, and shall disallow all costs of and flowing from any unnecessary request or reply, or both, and may order either party to pay the costs thereby wasted, on an attorney and client basis or otherwise (Rule 21(7)).

The pre-trial conference (Rule 37) a.

See, in general, Erasmus: Superior Court Practice, pp B1-272 to B1274C.

b.

An attorney/counsel desirous of obtaining a date for the hearing of an action must deliver a notice in which he/she appoints a date mutually convenient time, date and place for a pre-trial conference as soon as possible after the close of pleadings and before requesting such date in writing (Rule 37(1)).

c.

The object of such a conference is of reaching agreement as to possible ways of curtailing the duration of such trial and in particular as to all or any of the following matters, namely:-

d.

i.

the possibility of obtaining admissions of facts and of documents;

ii.

the holding of any inspection or examination;

iii.

the making of any discovery of documents;

iv.

the exchange between parties of the reports of experts; 88

v.

the giving of any further particulars reasonably required for the purposes of trial;

vi.

the plans, diagrams, photographs, models, and the like, to be used at the trial;

vii.

the consolidation of trials;

viii.

the quantum of damages;

ix.

the preparation and handing in at the trial of copies of correspondence and other documents in the form of a paged bundle with copies for the bench and all parties;

x.

any agreement regarding the production of proof by way of an affidavit;

xi.

which party will be responsible for the copying and other preparation of documents;

xii.

which documents or copies of documents will, without further proof, serve as evidence of what they purport to be, which extracts may be proved without proving the whole document or any other agreement regarding the proof of documents.

g.

The minutes shall be filed with the Registrar together with the notice to meet at the Registrar’s office to obtain a trial date suitable to the parties.

h.

Minutes of such a conference shall be prepared by the Plaintiff.

i.

When giving judgment in the action the court may make an order for the payment by a party of any portion of the costs when such party has refused or failed to attend such conference. For an example of a pre-trial minute see EXAMPLES, NO 9.

89

C. 18

GENERAL PREPARATION FOR TRIAL After this session, the candidate should be able to:

1.

Explain which witnesses may be interviewed and when.

2.

Explain the purpose of a “subpoena”.

3.

Explain why issues such as “merits” and “quantum” are occasionally separated for purposes of a trial.

4.

Explain the procedure of indexing and pagination, with reference to the consequences of a failure to attend thereto.

5.

List the documents which should form part of Counsel’s brief for purposes of the trial.

6.

Indicate when it will be necessary – and why – to arrange an interpreter.

7.

The golden rule Preparation must be done fully and timeously (as early as is reasonably possible) and it must not be discussed with the opposing party.

8.

Consultation with witnesses

90

a.

Consultations with the client or witnesses must be complete. It means that all relevant facts must be discussed, also facts that may be detrimental to the client’s case.

b.

It is improper to tell a person who is interviewed with what to say, or to bring him/her under the impression that his/her version must be coloured in a specific way.

c.

Some people may be under the impression that during such a consultation his/her evidence will be groomed to sound good. In such a case it is the duty of the counsel/attorney to tell the person that it is expected of him/her to speak only the truth.

d.

The attorney must at all times be aware that he/she acts as an officer of the court and may under no circumstances be a party to the distortion of evidence or the production of false evidence.

3.

Consultations with witnesses of the opponent

c.

The general principle is that a litigant’s legal representatives are entitled to consult with any person who they believe are in possession of information that will help the client in the preparation or presentation of his/her case.

d.

This right is not taken away from the legal representative of the litigant merely because the other party has already summoned such a person to give evidence in the case or because he/she has already been consulted with.

e.

The only restrictions to this right are the following: i.

Where the law-suit has already started, but before the person has given evidence, he/she may not be consulted with until the legal representatives of the other party has been notified in time and in an adequate manner of the proposed consultation. Should the legal representative of the opposition, after he/she/they has been notified of the proposed consultation, object to it, such objection does not prevent the consultation and the legal representative of the other party is not entitled to attend or be present at the consultation.

ii.

Where the law-suit has already started and a person has already given evidence for the opposition in the matter, such person may only be consulted with if the legal representative of the opposition is informed in time and in an adequate manner of the proposed consultation. In such a case the legal representative of the opposition is entitled to attend or be 91

present at the consultation, unless he/she/they has waived such right. A mere objection to the consultation is, however, no impediment. 4.

Statements of witnesses In general it is permissible for legal practitioners to get statements from proposed witnesses, but as a rule no affidavits should be taken down, except where it is necessary in cases where evidence must be adduced on affidavit.

5.

6.

Subpoenas a.

Any party desiring the attendance of any person to give evidence at the trial, may as of right issue a subpoena for that purpose, as near as may be in accordance with form 16 of the First Schedule to the Rules, containing the names of not more than four persons (Rule 38(1)).

b.

Service of a subpoena must be effected by the sheriff in the manner prescribed by Rule 4.

c.

If any witness has in his/her possession or control any deed, instrument, writing or thing which the party, requiring his/her attendance, desires to produce in evidence, the subpoena must specify such document or thing and require him/her to produce it to the court at the trial. Such a subpoena is called a subpoena duces tecum.

d.

Whenever any person subpoenaed to attend any civil proceedings as a witness fails without reasonable excuse to obey the subpoena and it appears from the return of the sheriff that the subpoena was served upon the person to whom it is directed and that his/her reasonable expenses calculated in accordance with the prescribed tariff), have been paid or offered to him/her, or if he/she fails to remain in attendance, the court may issue a warrant directing that he/she be arrested and brought before the court at a time and place stated in the warrant.

Separation of trials a.

If it appears to the court that there is a question of law or a question of fact that may conveniently be decided upon before evidence is tendered, the court may mero motu or on application prescribe the determination of 92

such question as it may think fit and order that all further proceedings be stayed until then (Rule 33(4)). b.

7.

In the case of an action in terms of the Motor Vehicle Accidents Fund Act 2001 (Act No. 4 of 2001(payment of compensation to victims of motor vehicle accidents and incidental matters) (come into operation on 8/20/3002) and on application of a party to such action that the question of liability (the merits) be decided separately from that of the amount of damages (the quantum), the court shall order that such questions must be decided separately, unless it appears that the questions cannot conveniently be decided separately.

Preparation of court papers

a.

c.

It is the duty of the plaintiff’s attorney to arrange, paginate and bind together all delivered papers and to deliver a complete index thereof at least three days before the hearing. In practice it means the following: i.

All pleadings are bound together and numbered consecutively in one bundle and then such bundle is indexed.

ii.

All notices which are filed at Court are bound together and numbered consecutively and then the concerned bundle is also indexed.

iii.

The procedure as described above must be done to the court file and an index of each particular bundle must be served on the other party.

iv.

If there are hand-written annexures to the pleadings or to the notices, such annexures must be typed so that it can be read easily.

vi.

If at a trial a variety of other documentation is going to be used (e.g. correspondence or other documentary proof) such papers must be bound together in a bundle, numbered consecutively and provided with a separate index.

Failure to see that the court file is indexed and paginated in time may cause the court to strike the case off the roll with an appropriate order as to costs against the plaintiff. It may also cause the court to order the 93

attorney/counsel of the plaintiff to pay the wasted costs out of his/her own pocket (de bonis proriis). 2.

Evidence on commission (Rule 38) a.

A court may, on application on notice, in any matter where it appears convenient or necessary for the purposes of justice, make an order for taking the evidence of a witness before or during the trial before a commissioner.

b.

The court may permit any party to any such matter to use such deposition in evidence on such terms, if any, as it seems meet, and in particular may order that such evidence shall be taken only after the close of pleadings or after the making of discovery or the furnishing of any particulars in the action.

c.

Where the evidence of any person is to be taken on commission before any commissioner within Namibia, such person may be subpoenaed to appear before such commissioner to give evidence as if at the trial.

d.

At completion of the evidence taken down before the commissioner, record of the evidence shall be returned by the commissioner to registrar with his/her certificate to the effect that it is the record of evidence given before him/her, and shall thereupon become part of record of the case.

e.

When an application is made to the court to order that the evidence of a witness be taken down before a commissioner of the court, the court has a discretion whether or not to grant such order. At the exercise of such discretion the following factors will be taken into consideration:

the the the the

i.

the inability of or inconvenience for a witness to give evidence during trial, e.g. where the person concerned is a patient in hospital or is abroad;

ii.

which degree of injustice will be done to the opposite party if evidence is obtained in this manner;

iii.

the nature of the evidence to be given and its bearing on the issues in dispute. 94

f.

9.

The affidavit supporting such an application must at least contain the following allegations: i.

the name of the witness;

ii.

the name of the commissioner;

iii.

the nature of the proposed evidence and its bearing on the issues in the action;

iv.

the reasons why evidence must be taken on commission.

Evidence on affidavit a.

A court may at any time, for sufficient reason, order that all or any of the evidence be given on affidavit instead of such person appearing at the trial to give oral evidence. Where it appears to the court that any other party reasonably requires the attendance of a witness for crossexamination, and such a person a witness can be produced, the evidence of such witness shall not be given on affidavit (Rule 38(2)).

b.

This procedure is, however, limited and is usually only applicable when it is impossible or very inconvenient for a witness to attend the court proceedings and where his/her evidence shall be merely formal in nature.

10.

Consolidation of actions

95

a.

Where separate actions have been instituted and it appears to the court convenient to do so, it may upon the application of any party thereto and after notice to all interested parties, make an order consolidating such actions, whereupon the said actions shall proceed as one (Rule 11)).

b.

The provisions of Rule 10 will apply in such a case with the necessary alteration and the court may make any order which to it seems meet, with regard to the further procedures.

c.

The court may give one judgment disposing of all matters in dispute in the said actions.

11.

Instructions to counsel a.

The counsel must be provided with complete instructions for purposes of the trial. It is improper to send only the attorney’s office file to counsel.

b.

Counsel’s brief must contain at least the following: i.

copies of all pleadings;

ii.

copies of all statements of witnesses;

iii.

copies of all relevant documentation;

iv.

copies of all expert notices and summaries of expert evidence;

v.

copies of discovery affidavits of both parties;

vi.

copies of all relevant documents discovered by the opposition; 96

12.

vii.

copies of all relevant correspondence exchanged between the different attorneys having a bearing on the points in issue;

viii.

copies of all previous opinions and or memoranda drafted by counsel;

ix.

a copy of the advice on evidence if it has already been prepared.

Interpreters Lastly it has to be kept in mind that it is the duty of every attorney to see to it that there is an interpreter available during the trial should one or more witnesses not be able or prepared to testify in English.

97

C. 19

THE TRIAL - ATTORNEY’S DUTIES After this session, the candidate should be able to:

1.

Explain the role of the attorney viz-a-viz that or Counsel.

Once again it is stressed that it is the duty of the attorney to support counsel with the conduct of the trial. For this reason the attorney or at least his/her clerk ought to be present during the course of the whole trial. The attorney should have a thorough knowledge of the fact of the case, the law involved and the relevant rules of evidence and procedures.

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C. 20

SETTLEMENT OFFERS INCLUDING INTERIM PAYMENTS After this session, the candidate should be able to:

1.

Distinguish between an unconditional offer of settlement and a settlement offer without prejudice.

2.

Indicate when an interim payment will be made.

3.

Draft with regard to a given set of facts,

1.

i.

an offer of settlement and;

ii.

the document accompanying an interim payment.

The settlement offer The words “payment into court” are falling into disuse. “settlement offer” is rather used.

2.

Today the term

When a plaintiff tries to settle a case, he/she need not to pay in the money to the registrar any more, but he/she makes a settlement offer either unconditionally or without prejudice.

99

3.

The settlement offer is signed either by the defendant personally or by his/her legal practitioner.

4.

A settlement offer may read as follows: “Be pleased to take notice that in terms of the written authorization of the defendant, the amount of N$50 000-00 is hereby offered together with the taxed costs up to date without prejudice to the defendant’s rights in full and final settlement of the plaintiff’s claim.”

5.

An unconditional offer of settlement If the offer is made unconditionally with regard to the entire claim, the opposite party may accept it. The litigation then comes to an end. Note that an unconditional offer may also be made with regard to part of the claim. The opposite party may accept this offer and still continue with litigation with regard to the balance of the claim.

6.

Settlement offer without prejudice This offer means that the party who makes the offer denies liability. The offer is made only to try and settle the case out of the court.

If the opposite party accepts this offer, litigation comes to an end and he/she cannot continue with litigation for the balance of his/her claim.

7.

The acceptance of the offer a.

The party to whom the offer or tender is made, is entitled to accept it within 15 days after receipt of notice.

b.

After 15 days have expired, the offer may be accepted only with the written consent of the party who made the offer.

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c.

The court may also, under certain circumstances, authorize the party to whom the offer or tender was made to accept it after 15 days have expired.

d.

Note that an offer that is made without prejudice, may not be disclosed to the court. In practice it means that the notice that contains the offer may not be in the court file when the case is set down for hearing.

e.

The aim of this offer made without prejudice is not only to bring litigation to an early end, but also to protect the party who makes the offer against costs should the opposite party not accept the offer and a lower amount is later on granted by the court.

f.

Should the offer not be accepted, the trial continues in the usual way. After judgment has been given, the contents of the offer may be disclosed to the court in order to request the court to make a suitable order as to costs in the light of the offer that was made and the court ultimately granted by the court.

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C. 21 AMENDMENTS TO PLEADINGS AND DOCUMENTS (RULE 28) After this session, the candidate should be able to:

1.

Distinguish between “pleadings” and “documents”.

2.

Explain the procedure to be followed in bringing about an amendment to a pleading/document.

3.

Explain how an affidavit could be rectified.

4.

Draft, with regard to a given set of facts, an application for amendment.

1.

General a.

A variety of reasons may exist why a pleading or a document (not an affidavit) must be amended, e.g. the amount claimed in the summons is wrong or a material allegation in the plea is omitted.

b.

Should an affidavit have to be rectified, a supplementary affidavit has to be made in which the error is rectified or further allegations are made.

c.

The relevant rule distinguishes between a pleading and a document which does not include an affidavit. i.

Pleadings involve the following: a simple summons, a declaration, a combined summons, a plea, a claim in 102

reconvention, a request for further particulars for purposes of trial and the answer to that, a replication and a rejoinder; ii.

2.

Documents involve the following: annexure to the pleadings and notices. With regard to notices, it also includes the annexures, e.g. a summary of an expert’s opinion and his/her reasons for it.

Procedure a.

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

b.

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

c.

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

d.

In such event, the party in whose favour the amendment has been granted must thereupon effect the amendment by delivering each relevant page in its amended form.

e.

If objection is made within the said period, which objection must clearly and concisely state the grounds on which it is founded, the party wishing to pursue the amendment shall within 10 days of the receipt of such objection apply to court on notice for leave to amend and set the matter down for hearing.

f.

Unless the Court directs otherwise, each party that wishes to amend his/her pleading effect such pleading by delivering the page in its amended form.

g.

The court may make such order thereon as to it seems meet. 103

h.

When an amendment to a pleading has been delivered, the other party shall be entitled to plead thereto or amend consequently any pleading already filed by him/her within 15 days of the receipt of the amended pleading. A party giving notice of amendment shall, unless the court otherwise orders, be liable to pay the costs thereby occasioned to any other party.

i.

Amendment to pleadings or documents may be done at the commencement of or during the trial.

j.

The general principle is that a party desiring to amend his/her pleading or document, must give notice thereof as quickly as possible to the opposite party. Should an amendment be requested shortly before the trial or during the trial and such amendment is prejudicial to the opposite party in the conduct of his/her case, the court may grant a postponement on request of the opposite party and order the party desiring the amendment to pay the wasted costs.

k.

Should any party desire to amend a pleading or a document before the commencement of the trial but within 10 days of the date of the trial, the notice of intention to amend cannot specify that an objection in writing musts be made against the proposed amendment within 10 days. In such a case the notice must state that the amendment will be requested during the trial.

l.

Amendments will normally be allowed unless the application to amend is mala fide or would cause an injustice to the other side which cannot be compensated by an appropriate order as to costs. The following aspects need to be noted in this regard: i.

An amendment that will introduce a new cause of action or a second cause of action, ought to be allowed.

ii.

An amendment that contains the withdrawal of an admission will only be allowed if such admission has been made in error and there is no prejudice to the other side. In such a case and where objection is made against the amendment, an interim application must be made to the court to allow the amendment.

iii.

The affidavit supporting such an application must contain evidence of the circumstances under which the admission was made in error. 104

C. 22

INTERLOCUTORY APPLICATIONS (RULE 6(11)

After this session, the candidate should be able to:

Explain the concept “interlocutory application.”

1.

It must be kept in mind that a court case often consists not only of a single trial, but that all kinds of applications may be brought in between to give effect to the abovementioned rule. For that matter, any other interlocutory relief may be raised in the course of a case from the issuing of the summons to the final hearing thereof.

2.

In this regard notice should be taken of the provisions of Rule 6(11) which provides that interlocutory (i.e. interim) applications and other applications incidental to pending proceedings may be brought on notice supported by such

105

affidavits as the case may require and be set down at a time assigned by the Registrar or as directed by a Judge.

C. 23

SECURITY FOR COSTS

After this session, the candidate should be able to:

1.

Explain when Security for Costs may be demanded.

2.

Explain what happens if it is not given.

3.

Draft an application for Security of Costs.

a.

When may security for costs be demanded ?

i.

Actions by peregrini

106

When the plaintiff is a peregrinus of Namibia and does not own unmortgaged immovable property in Namibia, the defendant is entitled to demand security for costs for the action from the plaintiff. ii.

Actions by a company or close corporation Where the plaintiff is a company or close corporation and there is reason to believe that the company or close corporation will be unable to pay the costs of the defendant, if successful in his/her defence, the court may order the plaintiff to furnish security for costs of the defendant.

iii.

Actions by insolvent An insolvent who acts as plaintiff may be ordered to furnish security for costs of the action.

The court will not ordinarily give such an order, unless the defendant can prove that the action is reckless or vexatious. Note that the High Court rules do not indicate in which case one party is entitled to demand security from another, but that the rules only indicate the procedure to be followed when security is applied for. These cases are all derived from the common law. See further Erasmus: Superior Court Practice, pp B1-340 to B1-344.

b.

What do the court rules stipulate? i.

The party entitled and desiring to demand security for costs from another shall, as soon as practicable after the commencement of proceedings, deliver a notice setting forth the grounds upon which such security is claimed, and the amount demanded (Rule 47 (1)).

ii.

If the amount of security is contested, the Registrar shall determine the amount to be given and his/her decision shall be final (Rule 47(2)).

iii.

If the party refuses to furnish security, the other party may apply to court on notice for an order that such security be given and that the proceedings be stayed until such order is complied with (Rule 47(3)).

107

c.

What happens if the security be not given? The court may, if security be not given within a reasonable time, dismiss any proceedings instituted or strike out any pleadings filed by the party in default, or make such other order as to it may deem meet (Rule 47(4)).

d.

Bear in mind that security for costs may also be demanded in motion proceedings.

C. 24

PROCEDURE FOR PROVISIONAL SENTENCE

After this session, the candidate should be able to:

1.

Indicate when the provisional sentence summons will be used.

2.

Determine whether or not a certain document is a liquid document.

3.

Indicate how an application for Provisional Sentence may be opposed.

4.

Explain the different orders that a court may make in connection with an application for Provisional sentence.

5.

Draft Provisional Sentence Summons.

SEE FORM 3 OF FIRST SCHEDULE OF THE RULES OF THE HIGH COURT

1.

When will this procedure be used? 108

a.

It is a special form of summons (Form 3)

b.

Rule 8 of the High Court Rules is applicable.

c.

It is only used where the cause of action relies on a liquid document. i.

A liquid document is a written acknowledgement of unconditional liability for the payment of a fixed sum of money to the plaintiff, signed by the defendant or his/her agent (Rich v Lagerwey 1974 (4) SA 748 (A) at 754H.)

ii.

Do not confuse the concept liquid document with the concept liquidated claim. A liquidated claim is a claim for something specific, e.g. ejectment or delivery or payment of a certain amount of money. (A claim for damages is usually not a liquidated claim because the court still has to determine the quantum thereof). The following cases may be distinguished to determine whether or not a certain document is a liquid document.

(1)

a written acknowledgement of debt: This is usually a liquid document provided that it is clear form the document itself that all the conditions as discussed above are complied with.

(2)

negotiable instruments: Cheques , bills of exchange and promissory notes are usually liquid documents, provided that the plaintiff can prove that he/she is the holder thereof.

(3)

judgment: Provisional sentence may be granted on a judgment of the magistrate’s court or on a foreign judgment, provided that a copy of the magistrate’s court judgment and in the case of a foreign judgment, a certified extract from the civil judgment book is attached to the provisional sentence summons.

(4)

mortgage bonds: A mortgage bond must be approached carefully. Usually covering bonds stipulate that the mortgagor acknowledges indebtedness up to a specified maximum amount. It does not necessarily imply that the mortgagee lent and advanced an amount equal to the maximum. If the extent of the 109

mortgagor’s liability is to be determined by another document (as, for example, a certificate of a building society), the covering bond will not be a liquid document. On the other hand it happens more often that an ordinary mortgage bond is indeed a liquid document. It must be stressed once again that the particular document must be analysed to determine whether it complies with the requirements of a liquid document or not. (5)

deed of sale: These should also be carefully considered. Not every deed of sale is necessarily a liquid document. Deeds of sale are reciprocal agreements which place an obligation on the seller to deliver and an obligation on the purchaser to pay. Usually the purchaser is only liable for payment after the seller has delivered. This means that liability (in contrast with payment) is subjected to a condition. It is not simple condition.

(6)

architect’s certificate: An architect’s certificate given under the usual form of a building contract, is usually a liquid document. It must be stressed once again that the nature and content of the document concerned must be analysed properly to determine whether or not it is really a liquid document. In the case of an architect’s certificate, the building contract on which it was given, must also be attached to the provisional sentence summons. See further Erasmus: Superior Court Practice, pp B1-65 to B170.

j.

3.

Keep in mind that a plaintiff may decide to use a simple or even a combined summons when his/her cause of action rests upon a liquid document. Usually, however, the provisional sentence summons is used. Examples of liquid documents that are most common are cheques and mortgage bonds.

What does the summons look like? a.

Rule 8(1) of the Rules of the High Court provides that the example, as set out in Form 3 of the First Schedule to the High Court Rules, must be used.

b.

The wording of the instruction in the form, “here set out the cause of action” usually reads as follows: “(amount) together with interest thereon at the rate of … % per annum a tempore morae, claimed by the Plaintiff as being an amount due and payable by Defendant to Plaintiff by virtue of a cheque dated …… drawn by Defendant on the ….. bank 110

….. (address) in favour of the Plaintiff and of which cheque Plaintiff has been at all material times and remains the legal holder thereof. The said cheque was duly presented for payment at the bank aforesaid where same was dishonoured by non-payment as a result of a lack of funds in the account of Defendant at the said bank. The said cheque remains unpaid and is in Plaintiff’s possession. A copy of the said cheque is annexed hereto marked “A”.

3.

c.

A copy of the liquid document (the cheque) shall be annexed to the completed summons form (Rule 8(3)). (It must be emphasized that Rule 8(3) provides that copies of all documents upon which the claim is founded shall be annexed to the summons and served with it) If there is a nexus between the documents, e.g. in the case of a building contract which stipulates that the certificate of an architect is sufficient to prove the amount to be paid by the building contractor, all the relevant documents must be attached e.g. the building contract as well as the architect’s certificate.

d.

A photocopy of the liquid document must be attached to the summons. The front and reverse sides must be photocopied. It is dangerous to attach the original documents – they may get lost! The original document is handed in by counsel from the bar at the hearing of the application for provisional sentence. In Namibia counsel must be in possession of the original liquid document when the matter is heard in case the judge requires that it be handed up when judgment is granted.

e.

The dies inducia must be calculated accurately and completed on the summons form. i.

If the defendant is within the jurisdiction of the court, a minimum period of 15 court days must expire from the date on which the summons was served (Rule 8(1)).

ii.

If the defendant is outside Namibia, the provisions of section 24 of the High Court Act apply and 21 calendar days must expire.

Issuing and Serving a.

The provisional sentence summons is issued by the registrar and served by the deputy sheriff.

b.

At issuing a N$5-00 revenue stamp is attached in the top-right corner of the first page of the summons.

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4.

5.

Enrolment a.

After the dies inducia have expired, the matter must be set down for hearing before 12.00 a.m. on the court day but one preceding the day upon which the provisional sentence application is to be heard.

b.

The provisional sentence application is to be heard with the ordinary applications.

c.

For an example of a notice of set down see EXAMPLE, NO. 10.

d.

When service of the summons was defective or the dies inducia insufficient, the matter cannot be postponed on the date for which it is set down. In such cases it must be removed from the roll and the summons, with a fresh date of hearing, must be reserved.

e.

On omission to set the matter down for hearing on the date appearing in the summons, the plaintiff may subsequently set it down for hearing upon service of the notice of set down.

Check-list for Counsel’s brief in the case of an unopposed application for provisional sentence

The following must be placed in the brief: a.

a copy of the provisional sentence summons,

b.

a copy of the return of service,

c.

the original liquid document. Where a mortgage bond is relied upon, the original mortgage bond does not have to be handed in (it is too precious a document to file in a court file). A court will generally accept a notarial copy of the mortgage bond. 112

d.

6.

the notice of set down which at the same time constitutes the draft order. At the hearing of the application counsel will usually ask for “an order in terms of prayers 1,2 and 3 of the notice of set down.”

The opposing of the application for provisional sentence What may the defendant do when the provisional summons is served upon him/her? a.

The defendant may personally or by Counsel appear in court and raise his/her defence.

b.

The defendant may file an opposing affidavit as he/she is notified to do in the summons.

c.

When such an affidavit is filed, the plaintiff is allowed to file a replying affidavit.

d.

What shall the opposing affidavit contain? The defendant may attack the nature of the liquid document by alleging the following:

7.

i.

It is not his/her or his/her agent’s signature that appears on the document.

ii.

The amount is not liquid or the defendant may raise a defence underlying to the liquid document by alleging the following: he/she is released from payment of the amount claimed is already settled.

Enrolment of the opposed application for provisional sentence The application is set down in the manner in which opposed applications are usually set down.

113

8.

9.

Check list for counsel’s brief at the opposed application a.

copy of the summons together with the documents on which the claim rests,

b.

copy of the return of service,

c.

the original liquid document,

d.

a copy of the defendant’s opposing affidavit,

e.

a copy of the plaintiff’s replying affidavit,

f.

a copy of the notice of set down.

What is the arrangement with regard to the onus of proof in the case of an opposed application for provisional sentence ? a.

Should the defendant deny the liquidity of the document (e.g. the authenticity of the signature or the authority of his/her agent), the onus of proof will rest on the plaintiff.

b.

Should the defendant rely on an underlying defence, e.g. defence on the merits, the onus of proof will rest on himself/herself. See further Erasmus: Superior Court Practice, pp B1-80 to B1-81.

10.

Which orders may the court make? a.

The court may: i.

give final judgment; 114

ii.

grant provisional sentence, where the plaintiff discharged his/her onus of proof or if the defendant is unable to discharge the onus of proof that rested upon him/her;

iii.

refuse provisional sentence. In such a case the defendant is usually ordered to file a plea within a stated time. The court may make a suitable order as to costs.

b.

The effect of a provisional sentence is that the defendant may only enter into the principal case if he/she has satisfied the amount of the judgment and taxed costs (Rule 8(10)).

c.

The plaintiff shall on demand furnish the defendant with security de restituendo to the satisfaction of the Registrar against payment of the amount due under the judgment (Rule 8(9)).

d.

The defendant must deliver a notice of his/her intention to enter into the principal case within 2 months of the grant of provisional sentence. Should he/she fail to do this, the provisional sentence becomes final after 2 months (Rule 8(11)).

e.

The plaintiff may, at any time after provisional sentence has been granted issue a warrant of execution against the defendant.

115

116

D.

THE APPLICATION PROCEDURE

D1

THE DIFFERENCE BETWEEN THE ACTION PROCEDURE AND THE APPLICATION PROCEDURE

D2

THE EX-PARTE APPLICATION

D3

APPLICATION ON NOTICE TO THE RESPONDENT

D4

THE FOUNDING AFFIDAVIT

D5

THE ISSUING AND SERVING OF THE NOTICE OF MOTION

D6

UNOPPOSED APPLICATION

D7

OPPOSED APPLICATION

D8

A NUMBER OF SPECIFIC APPLICATIONS

D9

REVIEW APPLICATION – RULE 53 117

D.1 THE DIFFERENCE BETWEEN THE ACTION PROCEDURE AND THE APPLICATION PROCEDURE After this session, the candidate should be able to: 1.

Explain the difference between the action and the application procedure.

2.

List examples of relief that are usually requested by means of application.

3.

List examples of relief that HAS to be requested by way of motion.

4.

List the instances where the motion procedure may NOT be used at all.

5.

Explain when a real dispute of fact will develop.

NOTE THAT THE EXPRESSIONS APPLICATION AND MOTION ARE USED AS SYNONYMS

1.

This section deals with applications which are applied as independent proceedings to obtain certain relief.

118

SEE FORM NO. 2 (a) and 2 (b) OF THE FIRST SECHEDULE OF THE RULES OF THE HIGH COURT OF NAMIBIA

2.

An application consists of the notice of motion and the founding affidavit together with the supporting documentation.

3.

The form of notice of motion is found in form 2 of the Rules.

4.

Such an application is issued in the office of the Registrar as a new process and it gets its own number and file in the office of the Registrar. A N$5 revenue stamp must be affixed to the notice of motion (Rule 67).

5.

Although it is customary that such an application must be issued in the office of the Registrar before it is served, it is not a requirement and service of such an application before it is issued, is not a nullity. It is in contrast with the provision that a summons must first be issued from the office of the Registrar before it is served. Thus this provision does not apply in the case of notice of motion. (Republikeinse Pers Publikasies (Edms) Bpk v Afrikaanse Pers (Edms) Beperk 1972 (1) SA 773 (A)).

6.

In the application notice must be given to the Registrar and to the Respondent concerned as well as to all interested parties that may possibly be affected by the order given by the court.

7.

Because relief may be requested by means of application or by means of summons and seeing that the application procedure can be dealt with much quicker and is less expensive, it is often a consideration to rather approach the court for the necessary relief by means of the application procedure.

8.

It is important to consult the following case in respect of the question when the application procedure and when the summons procedure must be used respectively: Room Hire Company (Pty) Ltd v Jeppe Street Mansions (Pty) Limited 1949 (3) SA 1155 (T).

9.

Examples of relief that are usually requested by means of application:

119

10.

11.

a.

Eviction / Ejectment

b.

Interdicts

c.

Rei vindicatio (vindication)

d.

Cancellation of contracts

f.

Mandament Van spolie (spoliation)

There are mainly three tests that must be applied to determine whether the action or application procedure must be used. In this regard the following must be noted:

a.

cases where the action procedure is compulsory, e.g. in divorce proceedings and in unliquidated claims for damages;

b.

cases where the application procedure is compulsory, e.g. applications for review and applications for liquidation and sequestration;

c.

cases where there is a choice between action and application procedure (see par 9 above);

d.

concerning the last category, the choice is not unrestricted. The test in every case is whether it can be foreseen that a real dispute of fact will develop which cannot be resolved satisfactorily without the hearing of oral evidence.

A real dispute of fact will develop: a.

Where the respondent denies substantial factual allegations of the applicant and makes conflicting factual allegations against those of the applicant which the applicant will deny in his/her turn.

b.

Where the respondent admits substantial factual allegations, but on the other hand alleges facts that the applicant denies.

120

12.

13.

14.

c.

Where the respondent alleges that he/she does not have knowledge of the allegations made by the applicant, but that the applicant or his/her deponents are unreliable, untrustworthy or prejudiced and that he/she therefore denies the allegations made by the applicant.

d.

Where the respondent merely denies the allegations made by the applicant without making any counter allegations, a real dispute of fact will not arise.

a.

Where an application cannot properly be decided on affidavit (e.g. where a real dispute of fact developed), the court may dismiss the application or make such order as to it seems meet with a view to ensuring a just and expeditious decision.

b.

In particular, but without affecting the generality of the aforegoing, it may direct that oral evidence to heard on specified issues with a view of resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave to him/her or any person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definition of issues, or otherwise.

In practice the said principles are usually applied as follows: a.

If the dispute of fact was foreseeable, the court may dismiss the application with costs.

b.

If the dispute of fact was not foreseeable, the court may refer the matter for evidence where the dispute is simple and a speedy determination of the dispute desirable.

c.

If the dispute of fact was not foreseeable and the issue was comprehensive or complicated, the court may refer the application to trial with appropriate directions as to the exchange of pleadings.

In practice it unfortunately often happens that a party erroneously starts with the application procedure. It is most important to remember that if a dispute of fact is foreseeable in which oral evidence will have to be adduced, the application procedure may not be used, but the action procedure must be used.

121

D.2 THE EXPARTE APPLICATION After this session, the candidate should be able to: 1.

Explain when the ex parte application must be used and what the exceptions to the general rule are.

2.

Draft, with regard to a given set of facts, an ex parte application.

1.

2.

When must the ex parte application be used? a.

An ex parte application is an application where notice of the application is not given to the opposite party (respondent).

b.

This procedure is usually used where an order is requested that does not affect another person and the applicant is the only interested party to the proceedings, e.g. an application for admission as Legal Practitioner.

What are the exceptions to the general rule as mentioned above? 122

3.

a.

Where immediate relief is essential and notice of the application to the respondent will frustrate the requested relief e.g. an application for arrest suspectus de fuga.

b.

Where preliminary relief is essential in a proceeding that will later be followed up with notice to the opposition, for example an application to institute action by way of edictal citation or an application for the appointment of a curator ad litem for a minor.

c.

Where a nulla bona return is relied upon in the case of an application for sequestration and notice of the application to the respondent is not given.

Urgent applications are usually brought on the basis that the relief needed is so urgent that the ordinary provisions of the court rules in relation to time cannot be complied with. SEE FORM NO. 2(a) OF THE FIRST SCHEDULE OF THE RULE SOF THE HIGH COURT OF NAMIBIA

4.

Take note that the founding affidavit must contain allegations as to why the case is so urgent that the court must dispense with the ordinary times and forms as provided for the Rules.

5.

There are different grades of urgency and proper notice must be taken of the decision in Luna Meubelvervaardigers v Makin 1977 (4) SA 135 (W). See also Twentieth Century Fox Film Corporation v Black Films 1982 (3) SA 586 (W).

6.

In an urgent application it is even permissible to refer to hearsay evidence. The application must, however, give reasons why the best evidence is not available and why he/she believes that the hearsay evidence is indeed true and correct. (Mia’s Trustee v Mia 1944 WLD 102 and Gemeenskap Ontwikkelingsraad v Williams and Others 1977 (2) SA 692 (W)).

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D.3

APPLICATIONS ON NOTICE OF MOTION TO THE RESPONDENT (FORM 2 b)

After this session, the candidate should be able to:

1.

Distinguish between an ex parte application and an application with Notice to the Respondent.

2.

Draft, with regard to a given set of facts, an application with Notice of Motion.

1.

The definition of an application is a “notice of motion, in which the relief claimed is set out, together with an affidavit.”

2.

The notice of motion supported by the founding affidavit must be served on the respondent by the deputy-sheriff.

3.

The notice of motion must be as near as may be in accordance with Form 2(b) of the First Schedule of the Rules. 124

SEE FORM NO. 2(b) 4.

Take note of the period of time that must be given to the respondent to oppose the application and the time limits for the filing of further affidavits (Rule 6(5)(b), (c), (d), and (e)). a.

A respondent within the jurisdiction of the court must be given 5 days notice to deliver his/her notice of intention to oppose. SEE EXAMPLES, NO. 11

b.

After delivery of his/her notice to oppose, the respondent must file his/her answering affidavit within 14 days.

c.

The applicant may file his/her replying affidavit within 7 days thereafter.

d.

If the respondent intends to raise a question of law only, he/she must give notice of his/her intention to do so within 15 days after he/she has entered appearance to oppose the application.

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D.4

THE FOUNDING AFFIDAVIT After this session, the candidate should be able to: Explain which facts should be set out in a founding affidavit.

1.

Which facts must be set out in the founding affidavit? There are two important aspects that must be set fourth:

2.

a.

The essential allegations to make out the cause of action and to justify the relief.

b.

The evidence to prove the relief requested.

Take notice of the following matters in particular: a.

The description of the parties i.

It is customary to devote the first paragraph to a description of the applicant as follows: “I, the undersigned, 126

FELICITAS SCHEEPERS do hereby make oath and say:

b.

1.

I am the applicant in the above application and I have personal knowledge of the contents hereof, unless expressly stated otherwise, which contents are true and correct.

2.

I am a major female in the Ministry of Home Affairs and residing at Scholossberg Street, Mariental, Namibia.

3.

The respondent is Christophel Doubtfire, a major businessman residing at 12 Anna Street, Ludwigsdorf, Windhoek, Namibia.

ii.

Where the deponent (a person who makes the affidavit) does not act personally but in a representative capacity, for example as the interested party of a close corporation or a shareholder of a company, he/she must expressly state that he/she has the necessary authority to bring the application on behalf of the close corporation or the company. (Naturally in these cases the close corporation or the company will be the applicant.

iii.

Where a legal person acts as applicant it is always advisable that resolution is obtained from the legal person in which the person who makes the affidavit is authorized to do so. Failure to attach such a resolution does not render the procedure invalid (SAW National Union v Tjozongoro & Others 1985 (1) SA 376 (SWA)); Tattersall v Nedcor Ltd 1995 (3) SA 222 (A)).

iv.

The fact that the sex and the marital status of the applicant and the respondent is not indicated will not necessarily render the application invalid. (Carson N.O. v Spencer 1982 (2) SA 755 (T)). Note, however, the provisions of the Insolvency Act No. 24 of 1936, in respect of applications for sequestration.

Jurisdiction The jurisdiction of the court must be evident from the facts that are mentioned by the applicant. 127

c.

Exposition of facts i.

The affidavit must consist of paragraphs and every paragraph must contain separate factual allegations.

ii.

If more than one factual allegation appear in a paragraph, the applicant ought to set it out in sub-paragraphs.

iii.

All relevant facts must be stated.

iv.

The general rule is that an applicant must state his/her case in his/her founding affidavit. Where he/she failed to make essential allegations in his/her founding affidavit he/she will not, as a general rule, be allowed to make it in his/her replying affidavit.

v.

The applicant must once again request his/her relief in his/her founding affidavit or refer back to his/her notice of motion. What usually happens in practice is that the applicant says in closing: “I therefore respectfully request the Honourable Court to grant me the relief as set out in my Notice of Motion.”

vi.

The applicant attaches to his/her founding affidavit so-called verifying affidavits. These will be affidavits of persons who give evidence in their affidavits in which they briefly support the factual allegations that the deponent in the main founding affidavit makes. In other words, they are evidence for the applicant.

vii.

It is also important that the applicant attaches all supporting documentation by way of annexure to the affidavit.

viii.

At all times keep in mind that the court will necessarily be requested to make a finding with regard to the facts on the papers in front of it and the court is only able to do this if it has all the facts at his disposal.

ix.

If the annexures to the applicant’s founding affidavit, for example, consist of handwritten documents (e.g. letters), a typed edition of the written document must also be attached.

x.

Keep in mind that the annexures must be clearly marked in bold, black letters so that the court would not have trouble in finding the annexures.

xi.

The founding affidavit is closed by way of a sworn statement or by Way of a solemn statement. Concerning the procedure at the attesting of an affidavit, reference must be made to Section 3 of Act 16 of 1963, read together with the regulations issued in terms 128

of that Act. (Regulations A G 128 of 1982 (Designation of Commissioners of Oaths) and No. R 1258 of 21/7/72 and No. 1648 of 19/8/77 and No. R 1428 of 11/7/80). SEE EXAMPLES, NO. 11

D.5 THE ISSUE AND SERVICE OF THE NOTICE OF MOTION After this session, the candidate should be able to: 1.

Indicate when an application need not be served on the respondent, or need not be served by the deputy sheriff.

1.

All applications are issued by the Registrar of the High Court.

2.

Like a summons, applications are served by the deputy sheriff.

3.

In cases where it will be impractical to effect service upon the respondent beforehand, for example where the respondent is about to leave the country, such notice need not be served on the respondent.

4.

i.

a.

In cases where it is impossible because of time limits to have the 129

documents served by the deputy sheriff, service may be effected in any way or the application may be brought to the attention of the respondent by any means. The applicant may, for example, say: “My attorney notified the respondent by telephone that the application will be heard on ____ before the Honourable Court. In this regard I refer the Honourable Court to my attorney’s affidavit attached hereto, marked X”. b.

In these cases the manner in which the application was brought to the attention of the respondent must be set out clearly.

D.6

UNOPPOSED APPLICATIONS After this session, the candidate should be able to:

1.

Explain the procedure to be followed to enroll an unopposed application.

2.

Draft a Notice of Set down of such an application.

a.

Notice of set down In terms of the provisions of Rule 6(4)(a) every application is brought ex parte shall be filed with the Registrar and set down before noon on the court day but one preceding the day upon which it is to be heard (Form 2(a)).

Every

application other than one brought ex parte, and which is brought in accordance with Form 2(b) and which is unopposed, may be placed on the roll for hearing by giving the notice of set down before noon on the court day, but one preceding the day upon which the same is to be heard. b.

Instructions to counsel 130

The following documents must be included in counsel’s brief: i.

a copy of the notice of motion with the annexure thereto;

ii.

if it is an application in accordance with Form 2(b), (where the respondent did not give notice of intention to oppose), a copy of the return of service;

iii.

c.

a copy of the notice of set down.

Hearing i.

In the case of an ex parte hearing, the court will normally grant a rule nisi. This is an order calling on any person who may have an interest to show cause on a specified day why the order nisi, should not be made absolute.

ii.

In the case of an urgent application brought on an ex parte basis, the court will still grant a rule nisi, but it may also grant part thereof with interim effect. Any form of an order nisi must be served on all parties having an interest in the matter.

D.7 OPPOSED APPLICATIONS After this session, the candidate should be able to: 131

1.

With reference to time limits, explain the procedure to be followed to enroll an opposed application.

2.

Explain the purpose of to oppose.

3.

Draft, with regard to a given set of facts, a notice to oppose.

1.

The time limits in the case of opposed applications a.

Where the respondent intends to oppose the application, he/she must file his/her notice of intention to oppose within 5 days of service of the application (Rule 6(5)(b) and 6(5)(d)(i)).

b.

Within 14 days thereafter the respondent must deliver his/her answering affidavit together with any documentation on which he/she relies and also any verifying affidavits of witnesses which confirm the case of the respondent (Rule 6(5)(d)(ii)).

c.

Note that if the respondent wants to raise a point in limine or any question of law only, he/she need not deliver an answering affidavit, but only a notice in which he/she sets out the point in limine which he/she intends to raise (Rule 6(5)(d)(iii)).

2.

Counter Application

a.

The respondent may bring a counter-application or may join any party to the same extent as would be competent if the party desiring to bring such counter-application or join such party were the defendant in an 132

action and the other parties to the application were parties to such action (Rule 6(7)).

b.

In the latter event Rule 10 shall apply mutates mutandis.

c.

In practice it means that the respondent who wants to bring a counterapplication, usually sets out such a counter application in his/her answering affidavit under the heading “Counter Application”. In other words it is not necessary to file two separate affidavits.

3.

Replying affidavit Within 7 days of service upon him of the answering affidavit, the applicant may deliver a replying affidavit. The court may in its discretion permit the filing or further affidavits (Rule 6(5)(e)).

4.

Enrolment a.

Where an answering affidavit is delivered, the applicant may apply 6to the Registrar to allocate a date for the hearing of the application within 5 days of the delivery of his/her replying affidavit or, if no replying affidavit is delivered, within 5 days of the expiry of the period of 15 days in which the applicant could have filed his/her replying affidavit.

b.

If the applicant fails so to apply within the appropriate period aforesaid, the respondent may do so immediately upon the expiry thereof. Notice in writing of the date allocated by the Registrar shall forthwith be given 133

by the applicant or respondent, as the case may be, to the opposite party. c.

As soon as the matter is set down, the application must be indexed and paginated.

d.

Keep in mind that such applications may often continue for a day or longer and that they have to be treated as seriously as any other case in which evidence is tendered.

The same provisions that apply in

connection with the presence of the attorney or his/her clerk at the hearing of trials also apply with regard to opposed applications.

D.8 A NUMBER OF SPECIFIC APPLICATIONS

After this session, the candidate should be able to:

1.

List the requirements for an interdict.

2.

Distinguish between temporary and final interdicts.

3.

Indicate when an interpleader notice will be issued.

4.

Explain the purpose of a Rule 57 application.

5.

Distinguish between the duties of the “curator ad litem” and the “curator bonis” respectively in a Rule 57 application.

6.

Draft, with regard to a given set of facts, a Rule 57 application.

134

A number of specific applications which often appear in practice are briefly discussed:

1.

Interdicts a.

Interdicts are granted to protect a person against the wrongful violation on his/her rights.

b.

There are three types of interdicts: i.

Prohibitive interdicts These are interdicts which prohibit a person from committing an act which infringes the rights of others or which threatens to infringe it. Examples thereof are trespassing or nuisance.

ii.

Commanding interdicts These are interdicts which require positive conduct on the part of the wrongdoer to determine the continuing wrongfulness of an act that has already been committed.

When the acts

has to be

conducted by a public officer, such an interdict is called a mandamus.

iii.

Restoring interdicts Where a person is wrongfully deprived of his/her property, he/she is entitled to immediate re-possession by means of a spoliation order.

135

c.

Interdicts may be temporary or final. A temporary interdict is granted pending the outcome of an action in which the rights of the parties are to be determined. A final interdict is granted without attaching any time limit to it.

d.

There are three requirements for a final interdict: i.

The applicant must have a clear right.

ii.

There must be an infringement of his/her rights or at least a threatening infringement thereof.

iii. e.

No other remedy must be available to the applicant.

Final interdicts are usually obtained by way of action, while temporary interdicts are usually obtained by way of motion. See further Erasmus: Superior Court Practice, pp E8-1 to E8-15.

2.

Urgent Applications a.

In cases of urgency the relief may be requested by way of an ex parte application, but in such cases a rule nisi will be given in which the respondent is called upon to show cause why a final interdict should not be granted on the return day.

b.

An example of the latter is where a lessor evicted his/her lessee and prohibits him/her access to the leased premises. In such a case the court may be approached by way of an ex parte application for urgent relief and the following may serve as an example of the prayers which has to be set out in the Notice of Motion: 136

1.

A rule nisi do hereby issue in terms whereof the respondent is called

upon to show cause, if any, on the return day to be

determined by the above Honourable Court, why the following final order should not be granted: a.

An order compelling the respondent to place the applicant in undisturbed possession of the property known as _____;

b.

An order compelling the respondent not to disturb the applicant in his/her undisturbed possession of the above property;

c.

An order that the respondent is ordered to pay the costs of the application.

2.

An order that pending the confirmation or discharging of the above rule nisi a temporary interdict is granted in terms of subparagraphs (a) and (b) above.

3. c.

Alternative relief.

The verifying affidavit must give the full background and specifically state that there is a valid lease agreement and that the tenant properly fulfilled all his/her duties in terms of the lease agreement and that he/she was in undisturbed possession of the property and that the respondent maliciously prohibited him/her access to the premises and that the applicant is accordingly entitled to be restored in undisturbed possession of the premises. The applicant has further to convince the court that he/she has a clear right to the undisturbed possession of the premises and that no other remedy is available to compel the respondent to respect his/her rights.

137

d.

In exceptional circumstances, however, it is not necessary that a notice of motion, though it may initiate a case, be issued before service thereof. In urgent cases the notice of motion will first be served and later issued. In such a case the court will require that the respondent at least knows that an application is brought against him/her. The attorney must then see to it that the process is served on the opponent, though it is not necessarily served by the deputy sheriff. Then the process is issued and put in a court file before it is handed to the judge for adjudication. SEE EXAMPLES, NO. 12 FOR THE FORM OF THE NOTICE.

3.

Interpleaders Rule 58(1 provides as follows:

a.

Where any person (called “the applicant”), alleges that he/she is under any liability in respect of which he/she is or expects to be sued by two or more parties making adverse claims, (in the rule referred to as “the claimants”), in respect thereto, the applicant may deliver a notice (called an “interpleader notice”) to the claimants. In regard to conflicting claims with respect to property attached in execution, the deputy-sheriff shall have the rights of an applicant and an execution creditor shall have the rights of a claimant.

b.

i.

Where the claims relate to money the applicant shall be required, on delivering the notice, to pay the money to the Registrar who shall hold it until the conflicting claims have been decided.

ii.

Where the claims relate to a thing capable of delivery, the applicant shall tender the subject-matter to the Registrar when 138

delivering the interpleader notice or take such steps to secure the availability of the thing in question as the Registrar may direct. iii.

Where the conflicting claims relate to immovable property, the applicant shall place the title deeds thereof, if available to him/her, the possession of the Registrar when delivering the interpleader notice and shall at the same time hand to the Registrar an undertaking to sign all documents necessary to effect transfer of such immovable property in accordance with any order which the court may make or any agreement of the claimants.

c.

The interpleader notice shall 1.

state the nature of the liability, property or claim which is the subject-matter of the dispute;

2.

call upon the claimants within the time stated within the notice, not being less than 15 days from the date of service thereof, to deliver particulars of their claims; and

3.

state that upon a further date, not being less than 15 days from the date specified in the notice for the delivery of claims, the applicant will apply to court for its decision as to his/her liability or the validity of the respective claims.

d.

There shall be delivered together with the interpleader notice an affidavit by the applicant stating that 1.

“he/she claims no interest in the subject-matter in dispute other than for charges and for costs;

2.

he/she does not collude with any of the claimants; 139

3.

he/she is willing to deal with or act in regard to the subject-matter of the dispute as the court may direct.” SEE EXAMPLES, NO. 13

4.

Applications for the appointment of curators a.

Rule 57 makes provision for applications to the court for orders declaring patients to be of unsound mind and as such incapable of managing their affairs (Rule 57(1)) or, by reason of some disability, mental or physical incapable of managing their affairs (Rule 57(13)), and appointing a curator to the persons or property of such patients to represent them in the proceedings.

b.

In the first instance an application must be made to the court for the appointment of a curator ad litem for such patient to represent him/her in the proceedings.

c.

Such application is brought ex parte and the prayers may read as follows: 1.

That a curator ad litem is appointed for Hans Weber, a businessman presently residing at 99 Burg Street, Windhoek, to report to the Honourable Court in terms of rule 57 with regard to the application in which the applicant requests the following relief: “1.1

An order that such Hans Weber is incapable of managing his own affairs; and

1.2

An order in terms of which _____ be appointed as curator bonis for the estate of the said Hans Weber with the 140

powers as set out in Annexure A, attached hereto, provided that such powers are exercised subject to the approval of the Master of the High Court. 1.3

That the costs of the application including the costs of the said curator ad litem be paid out of the estate of the said Hans Weber on the basis as between attorney and own client.

1.4

That leave is granted to the applicant to approach the Honourable

Court

on

the

same

papers,

duly

supplemented, for relief in terms of prayers 1.1, 1.2 and 1.3 above.” d.

The Master has a standard list of powers which is usually attached as an annexure to the Notice of Motion. The form of the orders prayed is set out in the judgment of Ex parte Hulett 1968 (4) SA 172 (D).

e.

The rule provides as follows: 1.

Any person desirous of making application to the court for an order declaring another person to be of unsound mind and as such incapable of managing his/her affairs, and appointing a curator to the person or property of such patient, shall in the first instance apply to the court for the appointment of a curator ad litem to such patient.

2.

Such application shall be brought ex parte and shall set forth fullya.

the grounds upon which the applicant claims locus standi to make such application;

141

b.

the grounds upon which the court is alleged to have jurisdiction;

c.

the patient’s age and sex, full particulars of his/her means, and information as to his/her general state of physical health;

d.

the relationship (if any) between the applicant,

and

the

duration

and

patient and the intimacy

of

their

association (if any); e.

the facts and circumstances relied on to show that the patient is of unsound mind and incapable of managing his/her affairs;

f.

the name, occupation and address of the respective person suggested for appointment by the court as curator ad litem, and subsequently as curator to the patient’s person or property, and a statement that these persons have been approached and have intimated that, if appointed, they would be able and willing to act in these respective capacities.

3.

The application shall, as far as possible, be supported by a.

an affidavit by at least one person to whom the patient is well known and containing such facts and information as are within the deponent’s own knowledge concerning the patient’s mental condition. If such person is related to the patient, or has any personal interest in the terms of any order sought, full details of such relationship or interest, as the case may be, shall be set forth in his/her affidavit; and

b.

affidavits by at least two medical practitioners, one of 142

whom shall, where practicable, be a psychiatrist, who have conducted recent examinations of the patient with a view to ascertaining and reporting upon his/her mental condition and stating all such facts as were observed by them at such examinations in regard to such condition, the opinions found by them in regard to the nature, extent and probable duration of any mental disorder or defect observed and their reasons for the same and whether the patient is in their opinion incapable of managing his/her affairs. Such medical practitioners shall, as far as possible, be persons unrelated to the patient, and without personal interest in the terms of the order sought.

f.

Upon the hearing of the application, the court usually apppoints counsel as curator ad litem should the patient reside near the seat of the court. Should the patient be resident far from the court, an attorney/counsel is usually appointed.

g.

When the curator ad litem has delivered his/her report and the Master’s report has been obtained, the application is again enrolled for an order as set out in paragraph 4 c.1.1 to 1.3 above.

h.

When the curator ad litem is an advocate, he/she must also be present at the hearing of the matter. NOTE: One can combine the first and second orders prayed in a single notice of motion. See Ex parte Hulett 1969 (4) SA 172 (D). SEE EXAMPLES, NO. 14 143

D.9 REVIEW APPLICATIONS – RULE 53

After this session, the candidate should be able to:

1.

List the grounds for review.

2.

Explain the procedure to be followed to launch a review application.

3.

Draft, an application for review in terms of Rule 53, with regard to a given set of facts.

144

a.

The grounds for review (s 20 of the High Court Act): i.

absence of jurisdiction or bias on the part of the court.

ii.

malice or corruption on the part of the presiding judicial officer.

iii.

gross irregularity in the proceedings.

iv.

the admission of inadmissible or incompetent evidence or the rejection of admissible or competent evidence.

b.

Against which proceedings may applications be brought? Proceedings of an lower court or any tribunal, board or officer performing judicial, quasi-judicial or administrative functions.

c.

In which way must a review be brought? Review shall be by way of notice of motion and specifically in terms of the provisions of Rule 53: i.

The notice of motion is directed to the magistrate or to the presiding officer or the quasi-judicial body and with notice to all other parties affected.

ii.

In the notice the presiding officer is called upon to show cause why such decision should not be reviewed or corrected or set aside.

145

iii.

Within 15 days of the receipt of the notice of motion, the presiding officer must dispatch his/her reasons, as well as the record of such proceedings.

iv.

The notice of motion shall be supported by affidavit setting out the grounds for the application.

v.

The record is then dispatched to the Registrar by the presiding officer and the Registrar shall make it available to the applicant.

vi.

The applicant shall thereupon cause copies to be made and furnish the Registrar with two copies and the opposite party with one.

vii.

The applicant shall prepare copies for himself/herself and one for his/her counsel. The costs hereof shall be borne by the applicant and shall be costs in the cause.

viii.

The applicant may within 10 days after the Registrar has made the record available to him/her, by notice and accompanying affidavit amend, add to or vary the terms of his/her notice of motion.

ix.

Should the presiding officer desire to oppose the application, he/she shall within 15 days of the receipt by him/her of the notice of motion, notify the attorney of the applicant and he/she may within 30 days of the receipt of the notice, deliver his/her answering affidavit.

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UNDEFENDED ACTIONS SEE RULE 12 (1) (a)

If a defendant has failed to enter appearance to defend within the time limited by the summons or before the lodgement of the request hereinafter mentioned, and has not consented to judgment, the plaintiff may lodge with the clerk of the court a written request, in duplo together with the return of service, for judgment against such defendant for(i) Any sum not exceeding the sum claimed in the summons or for other relief so claimed; (ii) the costs of the action; and (iii) interest from the date of the summons to the date of the judgement 147

at the rate specified in the summons or, if no rate be specified, at the rate prescribed under section 1(2) of the Prescribed Rate of Interest Act, 1975 (Act 55 of 1975). (b)

If the defendant has entered appearance but has failed to deliver a plea within the time limited by rule 19 or within any extended time allowed, the plaintiff may deliver a notice in writing calling upon the defendant to deliver a plea within three (3) days of the receipt of such notice, and, on failure of the defendant so to do, may lodge with the clerk of the court a written request for judgment in the same manner as when the defendant has failed to enter an appearance to defend.

(2)

…………………

(3)

………………….

(4)

The clerk of the court shall refer to the court any request for judgment for an unliquidated amount and the plaintiff shall furnish to the court evidence either oral or by affidavit of the nature and extent of the claim. The court shall thereupon assess the amount recoverable by the plaintiff and shall give an appropriate judgment.

(5)

The clerk of the court shall refer to the court any request for judgment on a claim founded on any cause of action arising out of or based on an agreement governed the Credit Agreement Act 1980 (Act 75 of 1980), and the court shall thereupon make such order or give such judgment as it may deem just.

(6)

If the action be on a liquid document The plaintiff shall before judgment is filed of record the original of such document duly stamped or an affidavit setting out reasons to the satisfaction of the court why such original cannot or should not be filed. 148

(7)

The clerk of the court may refer to the court any request for judgment and the court may thereupon(a)

if a default judgment be sought, call upon the plaintiff to produce such evidence either written or oral in support of his/her claim as it may deem necessary;

(b)

if a judgment

149