CIVIL PROCEDURE – DISCUSSION OF LEGAL PRINCIPLES OF URGENCY, LOCUS STANDI, AND INTERIM INTERDICT

CIVIL PROCEDURE – DISCUSSION OF LEGAL PRINCIPLES OF URGENCY, LOCUS STANDI, AND INTERIM INTERDICT

Stated that:

Urgency

 

‘[21]       Rule 73(4) …The applicant in an affidavit in support of an application under subrule (1) must set our explicitly –

(a) the circumstances which he or she avers render the matter urgent; and

(b) the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.

[22]        The understanding is that both these averments must be contained in the affidavit of the applicant before a matter can be considered on an urgent basis. This is then also the bridge to cross before the merit of any application will be considered.  The logical sequence will be that as soon as a case is made out for urgent relief, rule 73(3) comes into play, and the court may then dispense with the forms and service provided in these rules and dispose of the application in such manner and in accordance with such procedure as the court considers fair and appropriate.

[24]        For purposes of deciding upon the issue of urgency, the court must assume that the applicant’s case is a good one and the applicant has a right to the relief it seeks.

Locus Standi

[27]        In the matter of Uffindell t/a Aloe Hunting Safaris v Government of Namibia and Others (PA 141 of 2000) [2009] NAHC 51 (20 April 2009) (PA 141 of 2000) [2009] NAHC 51 (20 April 2009) Maritz J, as he then was, unpacked the requirement of locus standi when applying for an interdict.

[28]        In the current matter the court finds that the business of Collexia is entwined with the business of Trustco Bank in that Collexia placed evidence before this court that it cannot simply walk away from their arrangement but needs to put certain systems in place, apply for approval from PAN for approval to use a new direct participant bank, being First National Bank, test the system, they install and see whether it in fact does what it is supposed to do. From my understanding, this would also involve the opening of new accounts by the merchants at the new bank.  It is not as simple as to say today I take my system and move away; it seems to be quite a complex task which involves the development and/or change of electronic software to make it compatible to run on the electronic framework of the new bank. But because of this dependency relationship that Collexia has with Trustco Bank, I find that they indeed have an interest in whether Trustco Bank can provide them with the necessary support or not, and as such whether Trustco Bank can still operate as a bank or whether it is winded-up.

[29]        …. It is my opinion that Collexia has not sufficiently shown that it has any interest in the review of the administrative decision to approach the High Court to wind-up Trustco Bank… I therefore find that Collexia do have locus standi, but only as far as within the parameters discussed.

Interim relief

[30]        The requisites for interim relief are well settled and were neatly summarized in Hix Networking Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391 (A) ([1996] 4 All SA 675) at 398 – 399 as follows:

‘The legal principles governing interim interdicts in this country are well known. They can be briefly restated. The requisites are:

(a)          prima facie right,

(b)          a well-grounded apprehension of irreparable harm if the relief is not granted,

(c)          that the balance of convenience favours the granting of an interim interdict; and

(d)          that the applicant has no other satisfactory remedy.’

[31]         In Nakanyala v Inspector-General Namibia and Others 2012 (1) NR 200 (HC), in addition to the above principles, it was said that ‘(t)o these must be added the fact that the remedy is a discretionary remedy and that the court has a wide discretion.’

Collexia Payments (Pty) Ltd v Bank of Namibia NAHCMD 07 November 2022 – Principles discussed