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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKRULING ON APPLICATION FOR CONSOLIDATION

Case no. A 427/2013

In the matter between:

HEWAT SAMUEL JACOBUS BEUKES 1ST APPLICANT

ERICA BEUKES 2ND APPLICANT

and

THE PRESIDENT OF THE REPUBLIC OF NAMIBIA 1ST RESPONDENT

THE MINISTER OF JUSTICE 2ND RESPONDENT

ATTORNEY-GENERAL 3RD RESPONDENT

THE JUDGE PRESIDENT OF THE HIGH COURT 4TH RESPONDENT

THE REGISTRAR OF THE HIGH COURT 5TH RESPONDENT

THE DEPUTY SHERIFF FOR THE DISTRICT OF WINDHOEK 6TH RESPONDENT

JOHN BENADE 7TH RESPONDENT

LILLY BENADE 8TH RESPONDENT

Neutral citation: Beukes & Another v The President of the Republic of Namibia &

Other (A 427/2013) [2016] NAHCMD 77 (16 March 2016)

REPORTABLE

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CORAM: MASUKU J.

Heard: 1 March 2016

Delivered: 16 March 2016

Flynote: RULES OF COURT – Rule 41 - Application for consolidation of

applications – implications of rule 70 (2) on applications for consolidation - filing of

heads of argument by parties to legal proceedings.

Summary: The 5th respondent filed an application in terms of rule 41 for the

consolidation of the above application with another application No. A 83/2014. The

application was opposed by the applicants, who on the date of hearing indicated their

change of heart. Held – although rule 41 is couched in terms that refer to action

proceedings, the same considerations apply with regard to applications for consolidation

via the application of rule 70 (2) – Held – in granting or refusing applications for

consolidation, the court exercises a discretion that should be applied judicially and

judiciously – Held further - applications for consolidation hinge on two main

considerations, namely the balance of convenience and absence of substantial

prejudice – Held further – that ‘convenience’ as used in the rule in question does not

only mean expediency, efficacy and desirability but also includes fairness, justice and

reasonableness. Held – that due to the applications sought to be consolidated referring

to the same parties and substantially the same cause of action, considerations of

convenience called for the consolidation of the applications.

Held further – that lay litigants are not exempted from filing heads of argument, even if

these will not be of the same standard drafted by legal practitioners. Held further –

heads of argument play an important role in assisting the court and the other side to

know the argument and case law to be relied upon and therefore serves to curtail the

time needed for hearing the case and ultimately delivering judgment. Application for

consolidation granted with no order as to costs.

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ORDER

1. Case No. A 427/2013 is ordered to be consolidated with Case No. A 83/2014

and shall proceed as one application.

2. There shall be no order as to costs.

RULING

MASUKU J.,

[1] Presently serving before court is an application in terms of rule 41, moved by the

5th respondent herein for the consolidation of the above application with another

application cited as A 83/2014 which is also serving before this court.

[2] Whereas the other respondents cited in the present application have indicated

that they are not opposed to the grant of the relief sought by the 5 th respondent herein,

the applicants, Mr. and Mrs. Beukes opposed the application and also filed an

answering affidavit in opposition to the grant of the order sought. I should pertinently

mention that the representatives of the other respondents have indicated that they will

abide by the decision of the court, having expressed a somewhat benign support for the

application for consolidation, however.

[3] In support of the application for consolidation is an affidavit deposed to by the 5 th

respondent, Mrs. E. E. Schickerling, the Registrar of the High Court. In her affidavit, she

deposes that she has been cited nominee officio in both the present application and in

Case No. A 83/2014 (the second application). She further deposes that in both

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applications, what is at issue is a declarator that the former rule 31 (5) (a) of the

repealed rules of this court, which previously authorized the registrar of this court to

grant default judgments culminating in some cases in immovable property being

declared executable should be set aside as having been unconstitutional.

[4] It is her further deposition that both matters are at judicial case management

stage and presently serve before Mr. Justice Geier (the second application) and the

present application having been dock-allocated to me. Mrs. Schickerling also states that

the balance of convenience favours the consolidation of the two applications because

the live issues for determination in both applications are substantially similar in both law

and fact. It is also contended by her that both matters centre on the same subject

matter, namely, the granting of a judgment by default which resulted in the sale of a

house in execution. Furthermore, Mrs. Schickerling deposed that the constitutional

attack launched by the applicants is based on the same factual and legal matrix.

[5] The last point made in the affidavit is that the rights and obligations which are the

subject of the dispute among the parties are the same, save that in the second

application, there is the addition of further respondents, being the 9 th to 11th

respondents. It is, however, contended that the addition of the said respondents does

not in any way jaundice or change the substance of the disputes inter partes. It is

accordingly prayed that in view of the all the foregoing factors that the demands of

practicality and convenience call for both matters to be consolidated.

[6] The response by the applicants to this application is curt. They mainly contend

that a consolidation of the two applications will ‘introduce an insoluble contradiction if

not quandary. Consideration of either one situation as a hypothesis will automatically

disqualify as unfeasible the other. This means that neither can be considered as a

logical viability to co-exist with the other’.1 As a parting shot, the second applicant, who

1 Para 4 of the applicants’ answering affidavit.

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deposed to the affidavit states that, ‘The constitutional issues do indeed overlap, but

same is not adequate for a consolidation.’2

[7] Notwithstanding this opposition evidenced by the contents of the answering

affidavit, when the matter was called into court and eventually argued, Mr. Beukes, who

made submissions on behalf of the second applicant as well stated that they do not

have any serious objection to the application for consolidation being granted as prayed.

This has made my task a little easier.

[8] I do, however find it necessary, in view of the enormity of the issues raised and

particularly the effort put by the parties, to consider the authorities to which the court

was referred and to also decide, all having been said and done, where the interests of

justice lie in this matter. The first thing to do is to consider the relevant rule and the case

law interpreting the said provision.

[9] As earlier indicated, the relevant provision in respect of application for

consolidation is rule 41, which provides as follows:

‘Where separate actions have been instituted the managing judge may on the

application of any party to any action after notice to all interested parties and if it appears to the

managing judge convenient to do so, make an order consolidating the actions, after which –

(a) the actions proceed as one action;

(b) rule 40 applies with the necessary modifications required by the context to the

actions so consolidated; and

(c) the court may make any order it considers suitable or appropriate with regard to the

further conduct of the matter and may give one judgment disposing of all matters in

dispute in the actions’.

2 Para 5 of the applicant’s answering affidavit.

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[10] The question that immediately springs to mind is whether the provisions of rule

41 apply to application proceedings as it would appear that the wording employed in

rule 41 refers incontrovertibly only to action proceedings. The key to this question, it

would appear to me, is to be found in the provisions of rule 70, entitled, ‘Miscellaneous

matters relating to applications’. Subrule (2) thereof reads as follows:

‘Rules 40, 41, 48, 50 and 64 apply with the necessary modification required by the

context to all applications’.

It is accordingly clear from the foregoing that the rule relating to consolidation of action

proceedings being rule 41, applies mutatis mutandis to application proceedings as well.

I am therefore fortified that the principles applicable to consolidation of action

proceedings apply with equal force to application proceedings as well. I am therefore on

firm ground in making reference to cases determining the application of rule 41 even if

they clearly relate to action proceedings.

[11] The court was referred to the case of Gerson Uakaera Kandjii v Elifas Awaseb

and Five Others.3In that case, the learned Judge dealt with the consolidation of action

proceedings. At para [10] of the cyclostyled judgment, the learned Judge propounded

the applicable legal principles in the following language:

‘In the matter of New Zealand Ins. Co. Ltd v Stone Corbett AJ observed that the onus is

upon the party applying to Court for a consolidation to satisfy the Court that such a course (i.e.

consolidation of actions) is favoured by the balance of convenience and that there is no

possibility of prejudice being suffered by any party. Although Rule 11 makes no mention of

prejudice I am of the view that if an order to consolidate the actions will not be convenient if it

causes prejudice to any of the parties.’ See also Douwleen Van Zyl v Bennie Venter Legal

Practitioners and Three Others4and Fynbosland 355 CC And Others v Nedbank Limited In re: the actions between Nedbank Limited and 1st to 16th Applicants.5

3 (I 2696/2012) [2014] NAHCMD 177 (11 June 2014) per Ueitele J.4 (I 3792/2012 [2013] NAHCMD 348 922 October 2013) per Smuts J.5 Case No. 19161/2012 per Cloete J (Western Cape High Court).

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[12] In The Maize Board v F.H. Badenhorst and 18 Others6 the Orange Free State

Provincial Division, in dealing with the meaning of the word ‘convenience’ occurring in

the said rule referred to the judgment in Minister of Agriculture v Tongaat Group Ltd7

where the following was said:

‘The word “convenient” in the context of rule 33 (4) is not used I think, in the narrow

sense in which it is sometimes used to convey the notion of facility or ease or expedience. It

appears to be used to convey also the notion of appropriateness; the procedure would be

convenient if, in all the circumstances, it appeared to be fitting and fair to the parties concerned.’

[13] In the Fynbosland 355 CC case (supra), Cloete J stated the following at para

[11]:

‘Erasmus: Superior Court Practice at B1-98A-99 explains that the purpose of a

consolidation of actions under this rule is to have issues which are substantially similar tried at a

single hearing so as to avoid the disadvantages attendant upon a multiplicity of trials. The rule

makes provision for the consolidation of actions, not for the consolidation of issues. The

paramount test in regard to consolidation of actions is convenience. It was held in Mpotsha v

Road Accident Fund and Another 2004 (4) SA 696 (C) I-J that the word “convenient” connotes

not only facility or expedience or ease, but also appropriateness in the sense that in all the

circumstances it appears to be fitting and fair to the parties concerned. Consolidation will not be

ordered where there is the possibility of prejudice being suffered by any party. By prejudice in

this context is meant “substantial prejudice sufficient to cause the court to refuse a consolidation

of actions, even though the balance of convenience would favour it.’

[14] It therefore seems to me from the authorities cited above that the applicable

principles in cases where an application for consolidation of application or actions is

moved, include the following: first, the court acts pursuant to an application by one of

6 Application No: 3260/2001 per Hancke J.7 1976 (2) SA 357 (D) per Miller J at 363 C-D.

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the parties involved in the matter. An application, in terms of the rules is one that is

subject to the provisions of rule 65 (1), namely, one brought on notice of motion,

accompanied by an affidavit which will set out the basis for the relief sought. In this

regard, it appears that the court ordinarily has to wait for such applications to be moved

by or on behalf of one of the parties. This does not, however appear to me, to totally

exclude the court from putting it to the parties, in appropriate cases, to consider whether

or not the exigencies of the case do not call for a consolidation of the causes, although

this should on all accounts be very rare, if it does happen.

[15] I particularly mention the latter in recognition of the overriding objective of the

rules of court, being, namely, ‘to facilitate the resolution of the real issues in dispute

justly and speedily, efficiently and cost effectively as far as practicable . . .’ It would

appear to me that consolidation of actions or applications, as the case may well be,

answers to the speedy, efficient and cost effective resolution of disputes. If the court

were to fold its arms and remain passive when the issue of consolidation which is

necessary to deal with, is overlooked or not perceived by the parties, it would in my view

be remiss and would amount to abdication of responsibility by the court to allow its hand

to be withered merely on account of none of the parties raising the issue of

consolidation by way of application.

[16] Second, the court, in granting or refusing the application exercises a discretion.

In this regard, as it is often said with the exercise of discretion, the court must exercise

that discretion judiciously and judicially. It should not be exercised whimsically,

maliciously or capriciously. Thirdly, the issue of convenience occupies centre stage in

the enquiry. In this regard, the court should consider the matters sought to be

consolidated and come to a decision whether in all the circumstances, the dictates of

convenience do favour that the cases be consolidated. In doing so, the court should

weigh all the applicable factors and come to a consideration as to whether the balance

of convenience, regard had to the entire conspectus of the cases scream, not merely

whisper for a consolidation of same.

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[17] This court, in Mingeli v Oshakati Electric (Pty) Ltd8 dealt with the meaning of the

word ‘convenience’ occurring in the Practice Directives. That issue arose in respect to

the transfer of cases from one division of the court to another in terms of Practice

Directive 47. At paragraph [9] thereof, the court dealt with the issue of convenience in

the following terms:

‘I am of the considered view that the main reasons which should persuade the court and

inform a decision to transfer a case are two, namely “convenience” or “reasonableness” as

captured in the relevant provision of the Practice Directive quoted above. In either case, it would

seem to me, the court must make a value judgment, based on the entire conspectus of the

case. Claasen defines “convenience” as “not limited to expediency, efficacy and desirability, but

includes fairness, justice and reasonableness”. It therefore seems to me that the above epithets

should be taken into account in determining whether the requirements of convenience have

been met.’

[18] In view of the foregoing, it would appear to me that the concept of convenience

also encompasses elements of fairness, justice and reasonableness. These should be

taken into account in addition to those of expediency, efficacy and desirability. In other

words, the concept of convenience must take into account what is fair, just, reasonable

and expedient, not only to one but all or at the least, most of the parties. By parity of

reasoning, these sentiments should, in my view also apply in relation to the question of

the consideration of convenience as it relates to consolidation of actions or applications.

[19] Fourth, it seems that the issue of prejudice also weighs in the consideration. In

this regard, it appears that the issue of prejudice is the other side of the coin of the

epithets mentioned in the foregoing paragraph. If the court comes to the conclusion that

justice, fairness and reasonableness require the court to go in a certain direction in

relation to consolidation, that view should necessarily eschew prejudice enuring to any

of the parties. As will be seen the case law cited above, the prejudice alleged or proved

must not be slight, trifling or inconsequential in order to induce the court not to

8 (I 3683/2014 [2015] NAHCMD 45 (6 March 2015).

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consolidate the cases. It must therefore be substantial. From the Fynbosland case, it is

also clear that even where the dictates of convenience do call for matters to be

consolidated, if there is serious prejudice that may result from the consolidation, the

court will in all probability, not grant the order for consolidation.

[20] Importantly, in the Fynbosland case once again, the court clearly spelt out that

consolidation is ordered in appropriate cases where it sought to join actions and not

issues. I think this important because if issues qua issues were to be joined, there would

be a host of unrelated actions that are consolidated for no other reasons than that the

issues serving for decision are the same, even if the facts, circumstances and the

parties thereto bear no close or any relationship at all. To elevate issues to the level of

consolidation would cause chaos, uncertainty and frustration at the judicial process, if

not at the judicial institution itself.

[21] Having disposed of the legal issues, the stage appears to be now set and ready

for the application of the principles enunciated above to the factual situation of the two

cases sought to be consolidated. I should in this regard perhaps start with the first

application. The application was launched by the applicants against the above

respondents. In their notice of motion, the applicants seek an order from the court in the

following terms:

‘1. Declaring Rule 31 (5) (a) of the High Court unconstitutional and setting aside the

said Rule 31 (5) (a);

2. Declaring the additional directive by the Registrar in granting default judgment by

declaring immovable property specifically executable, unlawful and setting aside

the said unlawful act;

3. Setting aside the writ of ejectment in this matter as a nullity;

4. Directing that such Respondents electing to oppose the application pay the costs

of this Application.’

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[22] At the heart of the application, it would seem from the founding affidavit jointly

deposed to by both applicants, is immovable property described as Erf 4479,

Khomasdal, Windhoek, at the corner of Kroonweg and Dodge Streets. It would appear

that the property was purchased by the applicants through a mortgage bond obtained

from what was known as the South West African Building Society. The latter, it would

seem, on 8 November 2001, applied for a default judgment to be entered in its favour in

relation to the said property. This order appears to have been granted by the Registrar

of this court on 26 November 2001.

[23] It would further appear that the property was later advertised for sale at the

behest of the First National Bank, on behalf of the said Building Society. The property

was apparently sold by the Deputy Sheriff on 24 March 2005 to the 7 th and 8th

respondents. Following the sale, it would appear, were applications launched by the

applicants seeking to set aside the sale, which disputes went up to the Supreme Court.

It would therefore appear that the gravamen of the applicants’ case is that the

provisions of rule 31 (5) (a) which allowed the Registrar to issue default judgments were

unconstitutional. I need not examine the grounds upon which it is contended that the

said rule is unconstitutional at this stage as that shall form part of the main issue for

determination once the application is heard on the merits.

[24] In the second application, the applicants are the same and so are the

respondents, by and large. The only difference is that also cited are two legal

practitioners Messrs. Patrick Kauta and Loius Herbert Du Pisani cited as the 9 th and 10

respondents, respectively. It would appear from the affidavit that they have been cited in

relation to dealing with the property in question in their professional capacities on behalf

of their respective clients. The other new respondent is the Registrar of Deeds.

[25] Having regard to the founding affidavit, which is deposed to by the 1 st applicant,

at issue in this application is again the sale of the property in execution of a judgment of

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an order of this court. The property is that described in para [21] above. This property, it

would seem from the affidavit, was sold to the 7 th and 8th respondents, as had been

stated in relation to the earlier application. The nub of the constitutional complaint in the

second application is the exercise by the Registrar of powers to grant default judgments

in terms of the then rule 31 (5) (a), which is alleged to be in conflict with the provisions

of Article 78 of the Constitution of Namibia and that the Registrar in so granting the

default judgment, acted ‘ultra vires his or her competence when he made the order “that

the hypothecated property wit Erf 4479, Cnr. of Kroonweg & Dodge Streets, Khomasdal,

Windhoek under security with Plaintiff, be declared executable.”’9

[26] It is therefore abundantly clear that the parties in the matter are for all intents and

purposes the same. The factual and legal matrix of the issues for determination centre

around the constitutionality of the Registrar’s power to act in terms of the provisions of

the repealed rule 31 (5) (a) in relation to the very property which has been described

above. The date of the sale of the property and all the other details in relation to the sale

of the property are the same in both applications.

[27] I may mention that in the second application, there are a few prayers that were

added and which are not included in the first application. These include a declarator that

the ‘collusion’ of the respondents in the said actions to evict applicants and sell their

property in question an abuse of both the court and its procedures; ordering the 12 th

respondent to desist from transferring the said property and to reverse the transfer of

2005 in the name of the applicants; declaring the ‘collusion’ of respondents in the said

actions to evict the applicants and sell the property in question an abuse of both the

court and its procedures; declaring that the 10th respondent in particular undermined the

dignity and integrity of the court. It would therefore appear, objectively speaking, that

when the second application was moved, further developments in the case, namely

proceedings for the eviction of the applicants had taken place.

9 Para 14:12 of the affidavit of the 1st applicant in relation to the second application.

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[28] Save the foregoing, it is plain that the relief sought is largely the same and that

even the new prayers mentioned in the immediately foregoing paragraph hinge on the

court finding the provisions of rule 31 (5) (a) aforesaid unconstitutional. There can be no

better case where the balance of convenience dictate for a consolidation than the

instant case. To truncate the hearing of these two applications, which essentially involve

the same parties, by and large, the same cause of action and in respect of the same

property would not only be unjust and improper, but it would result in the unnecessary

escalation of costs, loss of valuable court time in dealing with the same issue and would

cause manifold inconveniences to all the parties. In short, it would be inconvenient to

the parties and the interests of justice not to consolidate these two application. Any

contrary order would, in my judgment, be perverse.

[29] Having regard to the foregoing, I am of the view that the considerations of justice,

fairness and reasonableness loudly proclaim and in unison that the two applications

should be joined, as I hereby do. I do not for a minute find that there is any prejudice

that would be suffered by any of the parties if an order for consolidation were to be

issued. In any event, none was suggested to me.

[30] I need to address one issue that arose during the hearing and it relates to the

filing of heads of argument. When I enquired from the applicants regarding why they did

not file their heads of argument as I had not had sight of them, the 1 st applicant stated

that as lay litigants, they were not expected to file heads of argument and that the

expectation was limited, as I understood him, to litigants who were legally represented.

[31] There is nothing in the rules or in the Practice Directives or even in court

practice, from my reading and experience in this jurisdiction that suggests, even

remotely that parties who are represented should be treated any differently from those

who are not.10 Heads of argument serve a very important and useful purpose, namely,

to alert the other side and the court as what argument will be advanced at the hearing

10 See for instance rule 131 (9) and (12) relating to filing of heads of argument and the respective periods for doing so.

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and what authorities will be relied upon to enable the one side to prepare to meet the

other’s case. In that way, the element of surprise and ambush is eliminated and the

court is served with a balanced meal, seasoned, as it were by prodigious efforts from

both parties. Where one party files heads of argument and the other does not, it leads to

unfairness and robs the court of fair and balanced argument on the case at hand.

[32] By way of example, Mr. Beukes, during argument in response to the application,

filed very pertinent and useful cases on consolidation and from which the court drew

some nuggets of wisdom and of which both the court and Mr. Khuphe were previously

unaware. Because these were not disclosed to the court and the other side in advance,

Mr. Khuphe had to engage in damage limitation by trying within a very short time

availed to him, to consider these judgments and to make quick responses to thereto. In

such cases, the court and justice become the major losers as only one side, the one

that did not disclose its heads of argument is placed in a privileged position. I would

therefore urge, for future purposes that this admonition be taken seriously as it will

result in fair and even-handed disposal of cases, with all parties having an equal

opportunity to try and persuade the court on their respective cases.

[33] The court will, as always, be reasonable and require of lay litigants to produce

heads equivalent to their educational and legal competence. Surely, it would be absurd

of the courts to expect properly and carefully manicured heads of argument to be filed

and ones at the same level expected of legal practitioners. The bottom line is that the

court and the other side would wish to see and benefit from what the said party wishes

to convey to the court in argument. I may even say from experience that I have

encountered some accused persons in criminal matters who lodged heads of argument

that in some cases left legal practitioners of long standing green with envy.

[34] In order to buttress the point I have made above, I wish to borrow from the wise

remarks expressed by this court in Hollard Insurance Company of Namibia Ltd v B J De

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Neyschen t/a Gecko Guest House11 where the learned presiding Judge said the

following at para [183] and [184] of the judgment:

‘In addition to these new developments it has in this jurisdiction, not become uncommon

that judges require the parties’ legal practitioners, appearing before them, also in a trial, to file

heads of argument, on a particular point, or in a particular interlocutory application and even in

support of closing argument at the end of the case. I know of no judge who would not welcome

heads of argument, particularly if they would be well-drawn and would have substance and

would be to the point. In a jurisdiction where judges are over-inundated with work, caused by an

ever-increasing case load, and were (sic) the public and justice demand that judgments be

delivered within a reasonable time – practically meaning actually that judgments should be

given as soon as would be humanly possible – and were (sic) judges are driven to also meet the

goals of case management – heads of argument constitute an important tool to alleviate the

workload imposed on judges in that it assists judges in their judgment delivery and thus meet

these demands.

[184] But the filing of heads of argument is not only to the advantage of judges alone. Also the

parties would obviously benefit from the written and structured aid afforded by properly drawn

heads, in support of oral argument. A judge and all counsel will be presumed to have read the

heads of argument by the time of the hearing – which are usually filed on behalf of the parties in

advance of oral argument – and all parties will thus come to court better equipped to deal with

oral argument and to raise and respond to pertinent question emanating therefrom. This does

not only facilitate succinct argument but also curtails court time, which may ultimately result in a

saving of legal costs.’

I would, in the light of the foregoing, encourage all parties to assist the court in carrying

out its difficult and lonely mandate by delivering on this very important arsenal in the

armoury of delivering timely justice.

[35] On the question of costs, Mr. Khuphe, out of the generosity of spirit, stated that

the applicant in this matter (being the 5 th respondent), would not insist on a prayer for

11 Case No. (I 147/201) [2013] NAHCMD 325 (12 November 2013)

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costs, and this appears to be in spite of the initial opposition to the application,

evidenced by the answering affidavit referred to earlier.

[36] In the result, I make the following order:

1. Case No. A 427/2013 is ordered to be consolidated with Case No. A 83/2014

and shall proceed as one application.

2. There shall be no order as to costs.

___________

T.S. Masuku

Judge

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APPEARANCES

APPLICANTS: Mr and Mrs Beukes

The first and second applicants In Person

RESPONDENTS: M. Khupe

Instructed by Government Attorney