7
“PRACTICE DIRECTION 61 ORDER AND REASONS”
IN THE HIGH COURT OF NAMIBIA
Case Title: NABIL BENNANI PLAINTIFF and CYNTHIA KOTCHANOVA 1ST DEFENDANT NICOLAI KOTCHANOVA 2ND DEFENDANT ELLIS ELTON TA-GORA-ATE HARADOEB 3RD DEFENDANT CONSETHA DESIREE KGOBETSI-HARDOES 4TH DEFENDANT REGISTRAR OF DEEDS 5TH DEFENDANT STANDARD BANK NAMIBIA LIMITED 6TH DEFENDANT | Case No: HC-MD-CIV-ACT-OTH-2017/02915 | |
Division of Court: High Court, Main Division | ||
Heard before: Honourable Mr Justice Oosthuizen | Date of hearing: 17 May 2022 | |
Delivered on: 17 June 2022 | ||
Neutral citation: Haradoeb v Bennani (HC-MD-CIV-ACT-OTH-2017/02915) [2022] NAHCMD 300 (17 June 2022) | ||
Result on merits: Application for variation and amendment of the pre-trial order is successful. | ||
COURT ORDER | ||
IT IS ORDERED THAT:
| ||
REASONS FOR ORDERS: | ||
Introduction
‘2.1 Varying and amending the joint pre-trial order report filed on 15 November 2019 and made a court order on 25 November 2019, by removing the entire paragraph 26(6)(c)(2) that reads “On 10 March 2009, in Windhoek, the plaintiff, acting personally and the first defendant, acting personally and on behalf of the second defendant, concluded a written deed of sale, in respect of erf no. 1431 Pioneerspark Extension 1, Windhoek in the Republic of Namibia attached to the particulars of claim as POC1.” 2.2. Costs of suit (only if opposed). 2.3. Further and or alternative relief.’
Background
Legal Principles
'[27] The pre-jcm culture placed great accent on the so-called litigant- freedom in the conduct of litigation. Thus, the core inquiry in an amendment dispute was whether the proposed amendment ventilated the real dispute between the parties and whether any prejudice was occasioned thereby to the opponent. The Namibian Supreme court pointed out in DB Thermal (Pty) Ltd and Another v Council of the Municipality of City of Windhoek2 at para 38: ‘The established principle that relates to amendments of pleadings is that they should be “allowed in order to obtain a proper ventilation of the dispute between the parties… so that justice may be done”, subject of course to the principle that the opposing party should not be prejudiced by the amendment if that prejudice cannot be cured by an appropriate costs order, and where necessary, a postponement.3 [28] In South Africa, Watermeyer, J reflected the widely held view in Moolman v Estate Moolman4 that: ‘The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is mala fide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which it is sought to amend was filed.’
‘[17] Late amendments of pleadings or a pre-trial order violate the overriding objective of judicial case management to bring expeditious closure to litigation. [18] Parties are usually bound by their pre-trial reports, which constitute their binding compromise. Vide Rule 26(10) of the Rules of the High Court. [19] Late amendments call for reasonable explanations. [20] In the circumstances of this case and taking into account the pleadings in the matter, instructing counsel's explanation was reasonable and satisfactory, and is accepted. [21] The amendment is allowed in part.’
Conclusion
Order
[23.1] The applicant is granted leave to vary and amend the joint pre-trial order report filed on 15 November 2019 and made a court order on 25 November 2019, by removing the entire paragraph 26(6)(c)(2) that reads “On 10 March 2009, in Windhoek, the plaintiff, acting personally and the first defendant, acting personally and on behalf of the second defendant, concluded a written deed of sale, in respect of erf no. 1431 Pioneerspark Extension 1, Windhoek in the Republic of Namibia attached to the particulars of claim as POC1. [23.2] No order as to costs. | ||
Judge’s signature: | Note to the parties: | |
Oosthuizen Judge | ||
Counsel: | ||
Plaintiff/Respondent | Defendant(s)/Applicant(s) | |
J. Janser Shikongo Law Chambers Windhoek, Namibia | M. Ntinda Sisa Namandje & Co.Inc Windhoek, Namibia |
1 I A Bell Equipment Company (Namibia) (Pty) Ltd v Roadstone Quarries CC (I 601-2013 & I 4084-2010) [2014] NAHCMD 306 (17 October 2014).
2 DB Thermal (Pty) Ltd and Another v Council of the Municipality of City of Windhoek (SA 33-2010)[2013] NASC 11(19 August 2013).
3 See further Trans-Drakensberg Bank Ltd (under judicial management) v Combined Engineering (Pty) Ltd and Another 1967 (3) SA 632 (D) at 638A.
4 Moolman v Estate Moolman 1998 (1) SA 53 (W) p 56.
5 Lee’s Investment (Pty) Ltd v Shikongo (HC-MD-CIV-ACT-CON-2016/03394) [2018] NAHCMD 321 (12 October 2018).