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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING ON SPECIAL PLEAS AND EXCEPTION

CASE NO. I1611/2015

In the matter between:

JOHANNES HENDRICK CLOETE PLAINTIFF

and

DOROTHA BARBARA HAITENGU FIRST DEFENDANT

DAWID PAULUS CLOETE SECOND DEFENDANT

Neutral citation: Cloete v Haitengu (I 1611-2015) [2016] NAHCMD 178 (22 June 2016)

CORAM: MASUKU J

Heard: 7 June 2016

Delivered: 22 June 2016

Flynote:CIVIL PROCEDURE – Rule 57 – Exception – On grounds that particulars of claim do not disclose a cause of action – Special plea of Locus standi in judicio.LEGAL ETHICS – Duty of legal practitioners to assist the court and to cite relevant cases in argument.

Summary:The plaintiff instituted a claim for the removal of fences allegedly erected by the Defendants on a farm co-owned by the plaintiff, the defendants and some other persons not cited in the proceedings. The 2nd defendant, in addition to pleading over, also raised two special pleas of non-joinder and lack of locus standi in judicio. He further raised an exception on the grounds that the plaintiff’s particulars of claim lacked averments necessary to sustain an action.

The special plea of non-joinder was abandoned as the plaintiff filed an application for joinder. In respect of the special plea of locus standi - held – that as co-owner of the farm in question, the plaintiff had a real and substantial interest in the litigation and in the cause of action and therefore had the standing to bring the suit. Held further that in the circumstances of this case, it was not necessary to provide documents of title to have standing to sue in relation to landed property.

In respect of the exception – held that the exception must be raised directly in a notice in terms of rule 57 and should not be raised for the first time in heads of argument. Held further –that the procedure adopted by the 2nddefendant denied the plaintiff due notice regarding the exception and further robbed the plaintiff of an opportunity to address the cause of the complaint before the exception could be launched. Held that – in cases where an exception is upheld, the proper procedure is to grant the losing party an opportunity to amend its pleading and not to dismiss the action or the defence.Held further – that legal practitioners should read cases carefully and fully and ensure that when they cite cases, those cases are authority for the legal propositions alleged. Held further – that as far as possible, legal practitioners should direct the court to the exact portions of the judgment referred to and not allow the court to read through a morass of what may be irrelevant, in search of what may be relevant for the purpose of the case in question. The special plea of lack of standing to sue and exception were dismissed with costs.

ORDER

  1. The 2nd defendant’s special plea relating to the plaintiff’s locus standi in judicio is dismissed.
  2. No order is made regarding the special plea of non-joinder.
  3. The purported exception on the basis that the plaintiff’s particulars of claim lack averments sufficient to sustain an action is improperly raised and is therefore dismissed.
  4. The 2nd defendant is ordered to pay the costs of one instructing and one instructed Counsel.
  5. The matter is postponed to 10 August 2016 for a status hearing at 15:15 hours.
  6. The parties are ordered to file a status report regarding this matter three (3) days before the date mentioned in para 5 above.

RULING

MASUKU J.,

Introduction

[1]Presently serving for determination are two special pleas oflocus standi in judicio and non-joinder. The other issue for determination is an interlocutory application to determine whether or not the plaintiff’s claim is excipiable for the reason that it discloses no cause of action as alleged.

[2]It is necessary for the reader to understand the context in which these issues come up for determination. I will discuss the relevant background very briefly and it amounts to this: From the particulars of claim, it is alleged that the plaintiff and the 2nd defendant, together with other siblings, are heirs who inherited undivided shares in the estate of their parent in respect of Farm Fyndraai No. 250, Rehoboth District. The plaintiff, it would seem, bought the undivided shares of the farm from the five other siblings including the 2nd defendant.

The cause of action and relief sought

[3]The plaintiff’s bone of contention is that as a result of the farm being undivided, the owners share a common grazing area and watering area for the stock on the farm. It is further averred that the 2nd defendant sold a portion of the land to one Gerzon Uazeua without the plaintiff’s consent. The said Uazeua, it is alleged, further sold the portion he bought to the 1st defendant. It is averred that the defendants, in 2014 began to fence certain portions of the property without seeking the consent of the other co-owners.

[4]The plaintiff accordingly approached the court seeking an order interdicting the defendants from erecting any fences on the said farm; an order directing the said defendants to remove the fences already erected within 30 days of the order, failing which the Deputy Sheriff for the District be authorized to remove the said fences within 10 days of the expiration of the period of 30 days. The plaintiff also seeks an order for costs of suit.

[5]The 2nd defendant filed his plea in which he not only pleaded over on the merits but also encompassed some special pleas mentioned above, together with what appears to be an exception. The special pleas are those of non-joinder and that the plaintiff lacks the standing in law to sue. The exception is premised on the allegation that the particulars of claim do not disclose a cause of action and this is premised on grounds that I shall presently deal with.

[6]I intend dealing with the latter issue first for the reason that it appears to be quite straightforward and devoid of any complications. I should perhaps mention at this nascent stage that the 2nd defendant did notmake common cause with either of the parties and has, in her wisdom, chosen to abide by the decision of the court on the matters presently due for determination. I shall, for that reason say no more of the said defendant henceforth.

The Exception

[7]The first complaint lodged by the 1st defendant is that the particulars of claim are excipiable on the grounds that they are not in compliance with the provisions of rule 57 (6). The said subrule provides the following:

‘Where an exception is taken to a pleading on the ground that such pleading lacks averments which are necessary to sustain an action or defence, no plea, replication or other pleading over is necessary.’

I will deal shortly with this issue but should hasten to point out, as intimated earlier, that the 1st defendant has pleaded over on the merits already and this is evident from what I have said in preceding paragraphs.

[8] The Supreme Court has recently had occasion to deal with the requirements to be met in dealing with an exception under this head in Alwyn Petrus Van Straten and Another v Namibia Financial Institutions Supervisory Authority and Another[1] and stated the requirements in this regard as follows:[2]

‘Where an exception is taken on the grounds that no cause of action is disclosed or is unsustainable on the particulars of claim, two aspects are to be emphasized. Firstly, for the purpose of deciding the exception, the facts as alleged in the plaintiff’s pleadings are taken as correct. In the second place, it is incumbent upon an excipient to persuade this court that upon every interpretation which the pleading can reasonably bear, no cause of action is disclosed. Stated otherwise, only if no possible evidence can be led on the pleadings can disclose a cause of action, will the particulars of claim be found to excipiable.’

[9]I am of the view that there is no need in the circumstances, to even deal with the requirements so carefully set out in the Supreme Court judgment. I say so for the reason that I am of the considered opinion that the exception in this matter is irregular and I put this to Mr. Diedriecks during the hearing. I hold this view so primarily for the following reasons. First, the said exception is not raised in the pleadings filed. It was introduced for the first time in the said defendant’s heads of argument. This is a novel approach to matters of exception.

[10]This is not only novel but it is also irregular for the reason that rule 57 (1) provides the following:

‘Where a pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, the opposing party may deliver an exception thereto within the period allowed for the purpose in the case plan order or in the absence of provision for such period, within such time as directed by the managing judge or the court for such purpose on the directions in terms of rule 32 (4) being sought by the party wishing to except’.

[11]It is clear that the procedure set out above was never followed by the excipient in this matter. Firstly, the issue of the exception was not set out in the case plan notice. Secondly, it was not even raised, as stated, in the plea to serve as some kind of notice to the plaintiff. It simply mushroomed, it would seem, in the heads of argument without any prior notice or indication of whatever nature. This is improper and amounts to litigating by ambush. Furthermore, it denied the plaintiff in this case the right he has at law to be notified of the proposed basis of the exception in order to consider it and thereafter decide whether it has merit or not.

[12]These infractions, in my view are not inconsequential as they actually amount to a denial of a fair opportunity for the plaintiff to meet the case sought to be mounted by the defendant against him. For that reason, I am of the view that since the said exception has not been properly raised and considering that the manner in which it has been raised has effectively robbed the plaintiff of his fair trial rights, it is liable to be dismissed for want of proper procedure and form. If the defendant is persuaded to file an exception on whatever grounds, he must do so in terms of the clear and unambiguous procedure set out in the rules. Nothing less than that shall be entertained.

Special plea of non-joinder

[13]The 2nd defendant also attacks the particulars of claim on the basis that they have not joined a necessary party. In this regard, the 2nd defendant alleges that although the plaintiff alleges in his particulars of claim that he is a co-owner with others in undivided portions in the farm in question, those others have not been joined in the proceedings as they are necessary parties.

[14]It does not appear that the parties dealt properly at all with this aspect of the special plea in their respective heads of argument. It is however unclear from the particulars of claim whether the plaintiff purchased all the shares that the other siblings owned in undivided shares or they still hold certain portions notwithstanding that they have sold certain portions to the plaintiff. Towards the end of the particulars of claim, it appears that they still do have some interest in the property. If they do still hold certain portions of the property, it would seem to me that they are interested parties and ought to have been joined as any order issued has the potential to affect their interests in the property, thereby suggesting ineluctably that they should have been cited as parties.

[15]The plaintiff, in his heads of argument at para 6, states that he has already filed an application for joinder and which is still under consideration and will be dealt with in due course in the event that it is opposed. This, it would seem to me, may be an indication that the 2nd defendant’s point may well hold a lot of merit. Since I am informed there is such an application, it would not be appropriate for me to make any order on this special plea. Costs occasioned in respect of that application can be made at the end of the said application. I will, for that reason, make no order regarding this legal issue as it would appear to be receiving attention in separate proceedings.

Locus standi in judicio

[16]The last issue that remains for consideration relates to the 2nd defendant’s contention that the plaintiff, proper regard had to his particulars of claim, lacks the standing in law to institute the present proceedings. From the 2nd defendant’s plea, the basis for the special plea it is alleged that the plaintiff seeks interdictory relief over the entire property in his capacity as a co-owner with other joint owners. It is accordingly alleged that in the absence of an allegation of cession, he has no standing to institute the proceedings on his own.

[17]It is further stated in the heads of argument thatalthough the plaintiff alleges that he is an owner of the property, he has not annexed to the papers any document evidencing the ownership of the property he allegedly owns. Are these contentions supportable?

[18]The plaintiff’s counsel, in argument, referred the court to a number of cases (five to be precise), including Minister of Local Government and Land Tenure and Another v Sizwe Development and Others: In re Sizwe Development v Flagstaff Municipality[3]and Ex Parte Sudurhavid (Pty) Ltd: In re:Namibia Marine Resources (Pty) Ltd v Ferina (Pty) Ltd.[4]These cases, as far as I could read them, do not have a direct bearing or sufficient bearing on the issues in dispute. I say so for the reason that the portions referred to do not at all deal with the issue of locus standi in judicio but rather with the elements that a party that seeks to intervene in proceedings, in terms of Rule 12, should satisfy.

[19]Counsel should ensure that they read all cases they refer to the court carefully (not only the headnotes) and should ensure that their heads of argument refer to cases that are relevant to the issues at hand and not cite cases to decorate and show an impressive degree of scholarship that is not eventually borne out by the actual reading of the cases referred to. They should not send judges on a wild goose chase, expending time and effort in meritless pursuits.

[20]Furthermore, where the principles sought to be relied on in argument, are found in particular paragraphs of a judgment referred to, it is fair in those circumstances to refer the court to the particular paragraphs and not compel a judgeunnecessarily, to plough through all the pages of what may, in some cases be lengthy judgments with little or no relevance to the matters at hand.

[21]In the circumstances, not having gained the necessary assistance from the cases cited by the plaintiff’s counsel, I have had to do my own research in determining the matter at hand. In D Z Franz F. Stellmacher v W.T. Christiaans and Four Others,[5]in dealing with the concept of locus standi in judicio, Silungwe J cited with approval the remarks by Innes C.J. in Director of Education, Transvaal v McCagie and Others,[6]where the learned Chief Justice said:

‘The principle of our law is that a private individual can sue only on his own behalf . . . The right which he seeks to enforce, or the injury in respect of which he claims damages, or against which he desires protection, will depend upon the nature of the litigation. But the right must be available to him personally, and the injury must be sustained or apprehended by himself.’

[22]Further down, at para [15], the learned Judge, after citing with approval a dictum from Family Benefit Friendly Society v Commissioner of Inland Revenue,[7]per Van Dijkhorst J, proceeded to say the following at para [16]:

‘The expression interested person judicially means someone who has a direct and direct substantial interest in the subject matter and the outcome of litigation. The interest must be a real interest, not merely an abstract or academic interest. A mere financial or commercial interest will not suffice.’

[23]In the instant case, it is clear that the plaintiff has alleged that he is a co-owner of the farm in question. A cursory reading of the plea, which as I have previously mentioned, is also filed, shows that the 2nd defendant does admit that the plaintiff, as he avers, is a co-owner of the said property and there appears to be no dispute about the issue of his co-ownership whatsoever. Furthermore, in para [6] of the particulars of claim, the plaintiff alleges that he purchased some portions of the farm and is thus the owner of 356.931 ha in undivided shares of the farm in question. This allegation is also not denied by the 2nd defendant either directly or indirectly.

[24]The only issue that appears to be in serious contention, it would seem, relates to the issue of the fencing allegedly done on the land, regard had to the 2nd defendant’s plea. In the premises, I am of the view that it cannot be contended and to good effect that the plaintiff does not have the necessary standing in law to institute these proceedings when regard to his allegations regarding co-ownership of the property, and which as I have pointed out above, are in essence not denied. It is therefore clear that the plaintiff has a direct and substantial interest in the litigation and the subject matter. Furthermore his interest is one which is real and substantial. It is not even fleeting or transient.