Bergmann v Commercial Bank of Namibia Ltd and Another (APPEAL 336 of 2000) [2000] NAHC 25 (6 November 2000)

ALEXANDER RICHARD BERGMANN a nd COMMERCIAL BANK OF NAMIBIA LTD. DEPUTY-SHERIFF, WINDHOEK CASE NO. (P) A 3 3 6 / 2 0 00 2000/11/06 Maritz, J. CILVIL PROCEDURE URGENT APPLICATIONS Civil procedure - Rules of court - urgent applications - Court may decline to condone non-compliance when applicant has created urgency either mala fides or through culpable remissness or inaction. Civil procedure - Rules of Court - urgent applications - Rules designed, amongst others, to bring about procedural fairness in the ventilation and resolution of disputes - requirement that procedure in urgent applications should be "as far as practicable be in terms of the rules" constitute a continuous demand on the parties to give effect tot the objective of procedural fairness in urgent applications - urgent applications should be instituted as soon as the cause thereof has arisen and the respondent should be afforded tie to oppose the application, unless it would frustrate the objective of the application or it would be impractical or unreasonable to do so - applicant may not delay launching of urgent application to snatch a procedural advantage over adversary. CASE NO. (P) A 3 3 6 / 2 0 00 IN THE HIGH COURT OF NAMIBIA In the matter between: ALEXANDER RICHARD BERGMANN APPLICANT versus COMMERCIAL BANK OF NAMIBIA LTD. FIRST RESPONDENT DEPUTY-SHERIFF, WINDHOEK SECOND RESPONDENT CORAM: MARITZ, J. Heard on: 2 0 0 0 . 1 1 . 06 Delivered on: 2000.11.06 (ex tempore) JUDGMENT MARITZ, J.: This is an urgent application brought on Notice of Motion to stay a sale in execution. The applicant, Alexander Richard Bergmann, is the owner of a certain flat no. 14, Tal Valley Apartments, No. 7 Wecke Street, Windhoek. The first respondent is his j u d g m e nt creditor. The second respondent is the Deputy Sheriff for the district of Windhoek, who is charged with the sale of the flat in execution of the j u d g m e nt entered against the applicant. The issue t h at the Court is called u p on to decide at this point in the proceedings is whether or not the application should be allowed to proceed as one of urgency. Mr Bloch c o n t e n ds on behalf of the applicant t h at it is urgent. He s u b m i ts t h at the urgency is a p p a r e nt from the fact t h at the sale of the flat in execution of the j u d g m e nt is scheduled to take place tomorrow at 09:30. On the other h a n d, Mr Strydom, on behalf of the first respondent, contends t h at the application is not u r g e nt and, if it is, the urgency h as been created by the applicant's failure to take steps to stay the execution at an earlier point in time. He points out t h at the "Notice of Sale in Execution" a nd the "Conditions of the Sale in Execution" were served by the Deputy Sheriff on the applicant at the offices of his legal representative on 18 October 2 0 00 (more t h an 2 weeks ago). T h at m u ch is evident from the return of service, Exhibit "C", which was h a n d ed up in the course of the oral evidence of the first r e s p o n d e n t 's instructing counsel. Given the late service of the application on the first respondent, it was not afforded sufficient time to answer to the allegations m a de in the founding affidavit. That, and because the relief prayed for is of a final n a t u re as far as tomorrow's execution sale is concerned, p e r s u a d ed me to allow oral evidence in support of the first respondent's opposition to the application a nd the claimed urgency thereof. In reply to the first respondent's a r g u m e n t, Mr Bloch contends t h at the application h as not been brought at an earlier point in time b e c a u se the applicant was trying to negotiate some or other agreement with the first respondent a b o ut the payment of the j u d g m e nt debt a nd to establish the extent to which other securities, which the first r e s p o n d e nt held, were utilized in reduction of t h at debt. Furthermore, the applicant endeavoured to obtain permission from the first respondent to sell the property by private treaty. All t h e se a t t e m p ts came to nothing. The first respondent continued with the execution process. In the course of a r g u m e nt I enquired from counsel whether there was anything on the p a p e rs or in the evidence to suggest t h at there h ad been an agreement that, pending the outcome of the negotiations for payment of the j u d g m e nt debt in installments or the sale by private treaty, the procedures relating to the sale in execution would be stayed or t h at the sale would be postponed. I was not referred to any s u ch agreement a nd there a p p e a rs to be none. The Court's power to dispense with the forms a nd service provided for in the Rules of Court in u r g e nt applications is a discretionary one. That m u ch is clear from the u se of the word "may" in Rule 6(12). One of the circumstances u n d er which a Court, in the exercise of its judicial discretion, may decline to condone non-compliance with the prescribed forms a nd service, notwithstanding the a p p a r e nt urgency of the application, is when the applicant, who is seeking the indulgence, h as created the urgency either mala fides or t h r o u gh his or her culpable r e m i s s n e ss or inaction. Examples thereof are to be found in the Twentieth Century Fox Film Corporation a nd Schweizer Reneke - cases* (*Twentieth Century Fox Film Corporation and Mother v Anthony Black Films (Pty) Ltd, (3) SA (W) a nd Schweizer Reneke Vleismaatskappy (Edms) Bpk v Die Minister van Landbou en Andere, 1971 (1) PH F ll (T)). It is more so, when the relief being sought is essentially of a final n a t u re a nd no or very little opportunity h as been afforded to the respondent to properly present his or her defence. Obviously, each case is to be decided u p on its own facts a nd c i r c u m s t a n c e s, although I find it difficult to envisage t h at a Court would come to the assistance of an informed applicant who mala fides a b u s es the Rules of Court by delaying the institution of urgent application proceedings to score an advantage over his or her opponent. It often h a p p e ns that, whilst pleadings are being exchanged or whilst execution procedures are u n d er way, the litigating parties a t t e m pt to negotiate a settlement of their d i s p u t es or some a r r a n g e m e nt regarding payment of the j u d g m e nt debt in installments. The existence of s u ch negotiations does not ipso facto s u s p e nd the further exchange of pleadings or stay the execution proceedings. T h at will only be the effect if there is an express or implied agreement between the parties to t h at effect. The applicant does not offer any explanation why he delayed from the 1 8th of October 2 0 00 until today to bring the application for the stay of execution. He was not only fully informed a b o ut the date a nd conditions of the sale in execution b ut also h ad the benefit of legal advice t h r o u g h o ut t h at period. In the absence of any agreement to stay the sale or s u s p e nd the proceedings pending negotiations, the applicant h ad no right or reason to delay the application until the afternoon before the advertised sale. It is that delay, attributable to the applicant's inaction, t h at h as c a u s ed the matter to become urgent. It h a p p e n s, in my experience all too frequently, that this Court is being inconvenienced by last minute applications to stay sales in execution. J u d g es of in this Court heave h e a rd several applications of this n a t u re after ordinary Court h o u rs - t h us not only inconveniencing the Court itself b ut also the Court's staff (such as the Court's orderlies, clerks a nd stenographers). I appreciate t h at this application was called a b o ut an h o ur a nd a half later t h an the time mentioned in the Notice of Motion because of other urgent b u s i n e ss the Court h ad to attend to. But even if it h ad been called on time, its hearing would still have extended beyond the ordinary Court h o u r s. When an application is brought on a basis of urgency, institution of the proceedings should take place as soon as reasonably possible after the c a u se thereof h as arisen. Urgent applications should always be brought "as far as practicable" in t e r ms of the Rules. The procedures contemplated in the Rules are designed, amongst others, to bring a b o ut procedural fairness in the ventilation a nd ultimate resolution of disputes. Whilst rule 6(12) allows a deviation from those prescribed procedures in urgent applications, the requirement t h at the deviated procedure should be "as far as practicable" in accordance with the Rules constitutes a continuous d e m a nd on the Court, parties a nd practitioners to give effect to the objective of procedural fairness when determining the procedure to be followed in such instances. The benefits of procedural fairness in urgent applications are not only for an applicant to enjoy, b ut should also extend and be afforded to a respondent. Unless it would defeat the object of the application or, d ue to the degree of urgency or other exigencies of the case, it is impractical or u n r e a s o n a b l e, an applicant should effect service of an urgent application as soon as reasonably possible on a respondent a nd afford him or her, within reason, time to oppose the application. It is required of an applicant to act fairly a nd not to delay the application to snatch a procedural advantage over his or her adversary. Had the applicant so acted in this application, the matter could have been dealt with on a semi-urgency basis. The respondent would have h ad enough time to file a notice of opposition a nd answering affidavits. It could have been placed on the s e r m u r g e nt opposed motion roll, the issues would have been properly ventilated, the parties would have h ad an opportunity to reconsider their respective positions a nd the Court could have h ad t he benefit of considered a r g u m e nt before ruling on the matter. In this case, and because the application was only served earlier this m o r n i ng on the first r e s p o n d e n t, t he Court h ad to allow an application of t he r e s p o n d e nt to a d d u ce oral evidence in s u p p o rt of its opposition to the application - a time c o n s u m i ng p r o c e d u re t h at would have been u n n e c e s s a ry h ad it not been for t he applicant's dilatory conduct. I am of t he view t h at t he urgency in t h is application is self-created by culpable r e m i s s n e ss on the p a rt of t he applicant. Hence, I decline to condone his non-compliance with t he Rules of C o u rt or to h e ar this application as one of urgency. In the result, t he following order is m a d e: The application is s t r u ck from the roll with costs. ON BEHALF OF THE APPLICANT: MR BASIL BLOCH Instructed by: Attorney Basil Bloch ON BEHALF OF FIRST RESPONDENT: ADV J. A. N. STRYDOM Instructed by: Engling, Stritter & Partners