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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 905/2013

DATE: 16 JUNE 2016

REPORTABLE

In the matter between:

EKONOLUX CCFIRST.....................................................................................................APPLICANT

LUKAS NDEITUNGA......................................................................................SECOND APPLICANT

And

JOSEPHINE SHADJANALE........................................................................................RESPONDENT

Neutral citation: Ekonolux CC and Another v Shadjanale (I 905/2014) [2016] NAHCMD 173 (16 June 2016)

Coram: MILLER AJ

Heard: 29 April 2016

Delivered: 16 June 2016

Flynote: Interlocutory application – Matter brought under the same case number as that of the action case - To set aside order of court – Effect of order given by court - Question of res judicata.

Summary: This is an application brought by the Applicant to seek an order from the Honourable Court that the judgement granted by this Honourable Court on 29 November 2013 be set aside and that the Respondent’s action instituted against the First and Second Applicants under case number I 905/2013, be dismissed.

ORDER

1. The application for these reasons, is dismissed.

JUDGMENT

MILLER, AJ:

Background

[1] This is an interlocutory application, in terms of Rule 32 of the High Court.

[2] This application is brought by the Applicants who are the Defendants in the main case; Ekonolux as first Applicant and Lukas Ndeitunga as the second Applicant, against the Respondent Josephine Shadjanale who is the Plaintiff in the main case.

[3] On or about, 28 March 2013, the Respondent issued a Combined Summons out of the above Honourable Court, which Combined Summons was served on the First and Second Applicant.

[4] On or about, 12 June 2013, the matter became defended by the First and Second Applicants.

[5] Thereafter, the Applicants proceeded to file a request for Further Particulars to the Respondents Particulars of Claim, to which the Respondent replied. The Applicants then proceeded to file its Special Plea to the Respondent’s Particulars of claim.

[6] On or about, 19 July 2013, the First and Second Defendant filed their Notice in terms of Rule 47(1) and 47(2), whereby the Applicants required the Respondent to furnish security in the amount of N$100 000.00.

[7] On or about 29 October 2013, the Legal Practitioners for the Respondent (then Plaintiff) withdrew and such notice of withdrawal was filed accordingly.

[8] On 01 November, the Honourable Justice Cheda, AJ, made an order in the following terms;

‘1. That the Respondent furnishes security to the satisfaction of the Registrar of the High Court for the First and Second Applicants’ cost in opposing the main application in the above matter, in the amount of N$100 000.00.

2. That the Respondent to furnish, the aforesaid security referred to in paragraph 1 above, within 10 days, from the date of this Court Order.

[9] A copy of the Court Order was duly served on the Defendant’s last known address, and despite the Court Order, the Respondent filed to provide security as ordered by the Court.

[10] On 20 November 2013, the Applicants, applied to this Court for dismissal of the Respondent’s action. On the 29^th of November, the matter was heard by the Mr Justice Ueitele, and the following order was granted:

‘The action in the above matter be stayed until the Plaintiff/Respondent pays the amount of N$ 100 000.00 for security of costs as order by the above Honourable Court on 01 November 2013.’

[11] I now turn over, to consider the application brought before me by the Applicants.

The Relief Sought

[12] In the application which is before me, the Applicants seek the following orders:

1.1. ‘Setting aside the judgement as granted by this Honourable Court on 29 November 2013;

1.2. Directing that the Respondent’s (Plaintiff’s) action instituted against the First and Second Applicants (Defendants) under case number I 905/2013, be dismissed;

1.3. Directing that the Respondent pays the costs of this application as well as the costs for defending action proceedings, such costs to include the costs of one instructed counsel and one instructing counsel.’

Issues

[13] Whether or not I am competent to set aside the order made by my learned brother Justice Ueitele on the 29th of November 2013.

Applicable Law

[14] The application for security was brought in terms of Rule 47(1) read with Rule 47(3) of the Rules of the High Court, which read as follows:

‘47(1) A 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.

47(3) If the party from whom security is demanded contests his or her liability to give security or if she fails or refuses to furnish security in the amount demanded or the amount fixed by the registrar within 10 days of the demand or the registrar’s decision, 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.’

[15] The question which falls for determination here in this matter and which calls for interrogation is that of res judicata.  The requisites of res judicata are that:

a) the two actions must have been between the same parties;

b) concerning the same subject matter and

c) Founded upon the same cause of complaint.

[16] Fish Orange Mining Construction (Pty) Ltd v Ghandy Gerson! Gerson & 3 others,[1] referring to the res judicata principle stated:

‘The rule appears to be that where a court has come to a decision on the merits of a question in issue, that question, at any rate as a causa petendi of the same thing between the same parties, cannot be resuscitated in subsequent proceedings.’

[17] The effect of the final judgment on a party’s cause of action has been described as follows:

‘The effect of a final judgment on a claim is to render the claimant’s cause of action res judicata. If therefore a party with a single cause of action giving rise to a single claim obtains a final judgment on part of his claim, the judgment puts an end to his whole cause of action, with the result that a subsequent claim for the balance of what is his cause of action entitled him to claim in the first instance can be met with a plea of res judicata. When a cause of action gives rise to more than one remedy, a plaintiff who pursues one of those remedies and obtains a judgment thereon can be met with a plea of res judicata if he should subsequently seek to pursue one of the other remedies, the reason being that the final judgment on part of one’s cause of action puts an end to the whole of such cause of action.’^[2]

Variation and rescission of order or judgment generally

[18] Rule 103 of the Rules of the High Court reads as follows:

‘103 (1) In addition to the powers it may have, the court may of its own initiative or on the application of any party affected brought within a reasonable time, rescind or vary any order or judgment –

(a) Erroneously sought or erroneously granted in the absence of any party affected thereby;

(b) In respect of interest or costs granted without being argued;

(c) In which there is an ambiguity or a patent error or omission, but only to the extent of that ambiguity or omission; or

(d) An order granted as a result of a mistake common to the parties.

(2) A party who intends to apply for relief under this rule may make application therefor on notice to all parties whose interests may be affected by the rescission or variation sought and rule 65 does, with necessary modifications required by the context, apply to an application brought under this rule.

(3) The court may not make an order rescinding or varying an order or judgment unless it is satisfied that all parties whose interests may be affected have notice of the proposed order.’

Applying the Law to the Facts

[19] The Applicants did not seek to bring their case within the ambits of Rule 103. In my view, it would in any event, given the facts of the matter, be impossible to bring the case within the ambits of the Rule.

[20] During the course of argument before me, Counsel for the Applicant submitted that in the present application, there are facts which were not placed before Mr Justice Ueitele. It is apparent that these facts were known to the Applicant when he brought the proceedings before Mr Justice Ueitele.

[21] In this circumstances it is not open to the Applicant to now have a so called second bite at the cherry and the argument lacks substance.

[22] It was incumbent upon the Applicants to place all the facts before Mr Justice Ueitele.

[23] The application for these reasons, is dismissed.

P J MILLER

Acting Judge

APPEARANCE:

APPLICANT: J A N STRYDOM

Theunissen, Louw & Partners, Windhoek

DEFENDANT: M Denk

Behrens & Pfeiffer Attorneys, Windhoek

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