SAMCO IMPORT AND EXPORT CC AND ANOTHER versus THE ...

SUMMARYREPORTABLECASE NO.: A 29/2009SAMCO AND ANOTHER vs. THE MAGISTRATE OF EENHANA ANDOTHERS2009 February 6PARKER, J_________________________________________________________________________Practice -Interim interdict – Application for – In instant caseorder of interim interdict made – Whether final order orinterlocutory order – Court finding by nature of theapplication the order made is interlocutory order notfinal order – Interlocutory order and final orderexplained – Unappealability of interlocutory order whenfinal order is not made.

2Held, the test whether an order is final or interlocutory was the nature ofthe application to the Court, and not the order which the Court made inrespect of such application.Held further, although the interim order granted is conclusive of thematter of the interim interdict it is not a final order because it is notconclusive of the main dispute or conclusive of the final rights of theparties which a decision in due course is to determine.Human rights - Order of the Court protecting basic human rights –Court finding the Order made was also meant to protectcertain basic human rights of applicants – Court findingfurther that noting of appeal by respondents adisingenuous stratagem to avoid execution of order ofthe Court – Consequently, applicants entitled toapproach Court to ensure obedience of the order – In soapproaching the Court, applicants not appealingagainst respondents’ notice of appeal.Held, The Court ought to set aside notice of appeal if the notice is adisingenuous stratagem to avoid execution of the order of the Court,especially if the order is aimed at protecting basic human rights of theother party.

3REPORTABLECASE NO.: A 29/2009IN THE HIGH COURT OF NAMIBIAIn the matter between:SAMCO IMPORT & EXPORT CCSHAMIL DIRK1 ST APPLICANT2 ND APPLICANTandTHE MAGISTRATE OF EENHANA 1 ST RESPONDENTINSPECTOR-GENERAL: NAMIBIAN POLICENAMIBIAN POLICE: STATION COMMANDEROHANGWENATHE MINISTER OF SAFETY AND SECURITYTHE PROSECUTOR-GENERAL2 ND RESPONDENT3 RD RESPONDENT4 TH RESPONDENT5 TH RESPONDENTCORAM:PARKER, JHeard on: 2009 February 5Delivered on: 2009 February 6_____________________________________________________________

4JUDGMENTPARKER, J:[1] In this matter the application has been bought on urgent basis by noticeof motion, moving the Court for an order in the following terms:(1) Condoning applicants’ non-compliance with the provisions of all therelevant Rules, including Rule 6(1) and such Rules pertaining to the serviceand time periods for serving the application and to hear the application asone of (extreme) urgency as provided for in Rule 6(12) of the High CourtRules and further seek condonation of the usage of a faxed applicant’saffidavit in addition to the oral evidence. Save to the applicants to seek therelief sought in this notice of motion upon the hearing of oral evidence.(2) Granting leave to the applicants to seek the relief sought in this notice ofmotion upon the hearing of oral evidence.(3) An order setting aside the notice of appeal, annexed hereto marked “A”.(4) In the alternative to prayer 2 and in any event granting an Order that theOrder of the Court handed down on 4 February 2009 be executed forthwithby second, third and fourth respondents failing which, second, third andfourth respondents are ordered to appear before this Court at 09h00 onFriday, 6 February 2009 to show cause why:(4.1) they should not be found guilty of contempt of Court;(4.2) they should not pay the costs of this application as on a scale asbetween attorney and own client;(4.3) further and/or alternative relief.[2] After hearing arguments, I read out the order I had made the followingday. I indicated then that my judgment was ready in my handwriting and thatit would be typed and distributed later. This is the type-written judgment.[3] In her submission, Ms Vivier, counsel for the applicants, applied toamend, and the application was granted, the chapeau of prayer 4, because theapplication was heard in the afternoon of yesterday, 5 February 2009, in orderfor the last line thereof to read: “at 14h15 on Friday, 6 February 2009 to showcause why: …”

5[4] The amended “Notice of Appeal” by the respondents which theapplicants seek to have it set aside is against the order of this Court (per Hoff,J) granted on 4 February 2009. As I read that order, I see that the order is aninterim order, i.e. a rule nisi returnable on 13 March 2009.[5] The argument of Ms Vivier is that the aforementioned order is aninterim order and not a final order and therefore unappealable at this stage.Mr. Narib, counsel for the respondents, argued the opposite way that theaforementioned order is a final order. Mr. Narib repeats what appears in thesecond paragraph of the respondents Amended Notice of Appeal, namely thatthe appeal “is noted to this Honourable Court, despite the judgement beingcouched as an interim order, as the judgment has a final effect on the issuesargued before the Court a quo (i.e. this Court).”[6] Thus, Mr. Narib accepts that if I find that the aforementioned order isan interim order then it is unappealable at this stage.[7] I must, therefore, decide whether the aforementioned order of thisCourt is a final order or an interim (or interlocutory) order.[8] In support of her submission, Ms Vivier referred to me a number ofcases; so did Mr. Narib in support of his submission. I do not wish to garnishthis judgment with all the host of cases referred to me. I have consulted them– and others not referred to me by counsel.[9] In Standard Discount Co v La Grange (1877) 3 CPD 67 (CA) andSalaman v Warner [1891] 1 QB 734 (CA), Lord Esher, MR stated that the testwhether an order is final or interlocutory was the nature of the application tothe Court; and not the order which the Court made. I respectfully subscribe to

6that view. Additionally, it has been said that an order which does not dealwith the final rights of the parties is termed ‘interlocutory’; and it is aninterlocutory order even though not conclusive of the main dispute, may beconclusive as to the interim or preliminary matter with which it deals (See 22Halsbury (3 ed) para, 506.)[10] In the instant case, the nature of the application brought by theapplicants to the Court (before Hoff, J) was in the form of interim relief andthe Court there granted an interim order which may or may not be made finalby this Court in due course on the return date of 13 March 2009; that is to say,the aforementioned order is not final because it is alterable by this same Courtwhose order it is. (See Phillips and others v National Director ofProsecutions 2003 6 SA 447 (SCA).)[11] Thus, in the instant case, it is not only the nature of the application thatis in the form of interim relief; but even the order granted on 4 February 2009is an interim order. What is more, the aforementioned order may have beenconclusive of the interim relief, or of the issues argued there as Mr. Naribsubmitted, but that does not make the order that was made a final order. Thefact that an order is conclusive as to the preliminary or interim matter withwhich it deals does not make such order conclusive of the dispute orconclusive of the final rights of the parties which a decision in due course isto determine. (See Re Gardner, Long v Gardner (1894) 71 LT 412 (CA);Blakey v Latham (1889) 43 Ch D 23 (CA); Kronstein v Korda [1937] 1 AllER 357 (CA); Salter Rex & v Ghosh [1971] 2 QB 597 (CA).)[12] If the 4 February 2009 order is final, why then did the Court set a return

7date on which this same court may or may not confirm the interlocutory orderit had made? It seems to me indubitably clear that the order that this Courtmade on 4 February 2009 (per Hoff, J) is not final; it is susceptible toalteration by this same Court which had made the order (See AussenkehrFarm (Pty) Ltd v Minister of Mines and Energy 2005 NR 21 (SC).)Additionally, the grant of interdict pendent elite is interlocutory in its effectbecause it does not dispose of any issue or a portion of an issue in the mainaction or suit. (See Van Winsen, Cilliers and Loots, The Civil Practice of theSupreme Court of South Africa (4 ed): pp 882-3.) In any case, it isindubitable that the applicants did not apply for a final order, and the Courtdid not, and could not have, granted a final order: the nature of theirapplication was in the form of interim relief, as I have said ad nauseam.[13] For the aforegoing, I hold it established that the order granted by thisCourt on 4 February 2009 (per Hoff, J) is interlocutory or (interim) order. Ishould have said so by merely perusing the papers, even if I did not considerthe authorities; but after considering Philips and others; Gardner; Blakey;Kronstein; Salter Rex; Aussenkehr Farm (Pty) Ltd; Van Winsen, Cilliers andLoots; Halsbury, supra, I feel no doubt whatsoever that the aforementionedorder is interlocutory or interim order.[14] The following point submitted by Ms Vivier, and which I respectfullyaccept, must also be signalized and taken into account. It is this: if the grantof an interim interdict pedente lite, as in the present case, was appealable atthis stage, the interim order would be stayed or suspended until the appellatecourt decides in due course (when, no one can say); and this would have theundeniable effect of unjustifiably undermining the main object of an interiminterdict (which is so firmly embedded in our law, I should say), namely, tomaintain the status quo (See Cronshaw and another v Coin Security Group

8(Pty) Ltd 1996 (3) SA 686 (A).)[15] But Mr. Narib argued that keeping the status quo would impede policeinvestigations into an alleged foreign exchange offence allegedly involvingthe applicants; for instance, it would mean returning a safe, the Police believecontains foreign currency, which is a subject of the alleged offence. Counseladded that if the safe was returned to the applicants, there was no guaranteethat the items the Police believe are in the safe would not be removed by the2 nd applicant. What counsel, with respect, does not seem to take into accountin his submission is this: the aforementioned order of this Court is that thewarrant of search issued by the first respondent is invalid and unlawful and sothe said warrant was set aside. What this means is that anything done,including the removal of the applicant’s safe by the 2 nd , 3 rd and 4 threspondents in execution of the aforementioned warrant is resultantlyunlawful and invalid. It follows inexorably and reasonably that therespondents have no right to any items seized in execution of the unlawfuland invalid warrant of search. A fortiori, the interim order is not concernedonly with a safe to which Mr. Narib kept on referring, but it also concernsprotecting certain basic human rights of the applicants that are referred to inparagraph 2.3 of the said order.[16] Mr Narib’s argument, with respect, does not add any weight; ifanything at all, it rather signifies the respondents’ firm resolve to disobey byhook or by crook the order made by this Court, and the noting of the appealwas merely a disingenuous stratagem to avoid execution of theaforementioned order, which, as I have already found, also aimed atprotecting certain basic human rights of the applicants. On that ground, it ismy view that the applicants were entitled to approach this same Court for anorder aimed at ensuring the respondents’ obedience of the aforementioned

9order of this Court, which, as I say, also protects the applicants’ certain basichuman rights. Consequently, by so approaching this Court, the applicants arenot appealing against the respondents’ noting of their appeal in this Court; andthe decision I make in the present proceedings is not in the form of an appealjudgment. In this regard, I have already found that the aforementioned order isan interlocutory order and therefore it is not appealable without the consent ofthis Court which granted the order within the meaning of s 18 (3) of the HighCourt Act, 1990 (Act No. 16 of 1990) (See South Cape Corporation (Pty) Ltdv Engineering Management services (Pty) Ltd 1977 (3) SA 534 (A).); and noleave to appeal had been sought or granted when this Court was moved by theapplicant’s notice of motion in the present application to set aside the noticeof appeal. And, as I have found previously, by noting the appeal, therespondents disingenuously sought to disobey an order of this Court, and so itbecomes necessary to set aside the notice of appeal.[17] For all the aforegoing conclusions and reasons therefor, I find that acase has been made out for the grant of the order prayed for in the Notice ofMotion in the present application.[18] In the result, I make the following order:(1) That the applicants’ non-compliance with any of the Rules of theCourt, in particular, but not limited to, the Rules pertaining toservice and time periods for serving applications is condoned andthis application is heard as one of urgency as provided for inRule 6 (12) of this Court’s Rules.(2) That the amended Notice of Appeal, a copy of which is annexedto the applicants’ Notice of Motion, is set aside.(3) That the Order of the Court granted on 4 February 2009 be

10executed forthwith by the 2 nd , 3 rd , and 4 th respondents, failingwhich the 2 nd , 3 rd , and 4 th respondents must appear before thisCourt at 14hl5 on Friday 6 February 2009, to show cause why:(a)(b)they should not be found guilty of contempt ofcourt.they should not pay the costs of this application on ascale between attorney and client.(4) Copies of this Order shall be served by any expeditious means,including the use of facsimile transmission, not later than 13h00today, 6 February 2009, which is the date of this Order.________________________Parker, J

11ON BEHALF OF THE APPLICANTS:Adv. S. VivierInstructed by:Sisa Namandje & CompanyON BEHALF OF THE RESPONDENTS: Adv G NaribInstructed by:The Government Attorney