- June 16, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Paragon raised the following legal issues:
Firstly, that the High Court had no jurisdiction to make an order which had the effect of trimming down or reviewing another Judge’s order. Secondly, Menzies’ application was a complete abuse of the court’s process. Thirdly, the Supreme Court order considered together with the order of Justice Sibeya was binding and final in terms of section 17 of the Supreme Court Act. Fourthly, the application could simply not be heard as it would result in a violation of the Second Respondent’s rights to a fair trial under Article 12 of the Namibian Constitution. Fifthly, there was no public law decision made by the Airports Company after the Supreme Court order which could be open for a review as the order of Justice Sibeya was operative and of immediate effect. Hence, the issue of more time before the eviction was res judicata between the parties. Lastly, that the matter was not urgent given the background.
At the hearing on 12 June 2023, the points in limine raised by Paragon were first decided by UEITELE J as follows:
‘Urgency
[18] Taking into account the fact that Justice Sibeya declared that Menzies’ contract with the Namibia Airports Company terminated on 30 June 2022 and that Menzies had to vacate HKIA by the end of the airport’s operations on that day and also that the Namibia Airports Company had all the right to enforce and execute the court’s orders and could thus enlist the services of the law enforcement machinery of this Republic to enforce its right if Menzies had not vacated HKIA by the time demanded by the Airports Company, the only option Menzies had was to approach this court. The urgency with which Menzies had to approach this court to ward off the eminent forceful eviction from HKIA cannot be disputed. I, therefore, find that the matter is urgent and can be heard on an urgent basis as contemplated in Rule 73.
Lack of jurisdiction
[23] But in the present matter, I do not understand that Menzies is seeking an order from this court that will have the effect to trim down or review Justice Sibeya’s order. My understanding of the relief sought by Menzies is that Menzies is seeking an order staying or put otherwise, delaying the execution of Justice Sibeya’s order of 29 June 2022 pending the determination of Menzies’s complaint that the Airports Company acted unreasonably and irrationally when it gave it three days and 10 hours notice to vacate HKIA.
[25] The inherent power granted to this court by Article 78(4) has been interpreted to include the inherent discretion to order a suspension of the execution of any of its orders or judgment. In Road Accident Fund v Legal Practice Council and Others 2021 (6) SA 230 (GP) the court stated that superior courts have an ‘inherent reservoir of power to regulate [their] procedures in the interests of the proper administration of justice: The court relying on Moulded Components and Rotomoulding South Africa (Pty) Ltd v Coucourakis and Another 1979 (2) SA 457 (W) at 462H – 463B per Botha J said:
‘I would sound a word of caution generally in regard to the exercise of the Court’s inherent power to regulate procedure. Obviously, I think, such inherent power will not be exercised as a matter of course. The Rules are there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade the Court to act outside the powers provided for specifically in the Rules. Its inherent power, in other words, is something that will be exercised sparingly. As has been said in the cases quoted earlier, I think that the court will exercise an inherent jurisdiction whenever justice requires that it should do so. I shall not attempt a definition of the concept of justice in this context. I shall simply say that, as I see the position, the Court will come to the assistance of an applicant outside the provisions of the Rules when the Court can be satisfied that justice cannot be properly done unless relief is granted to the applicant.’
[26] In view of my understanding of the relief sought by Menzies in this application, I come to the conclusion that this court does have the jurisdiction to consider the relief sought by Menzies in this application namely, the discretion to consider whether or not it will order a stay of execution of a judgment or court order. As Nepgen J said in Whitfield v Van Aarde 1993 (1) SA 332 (E) at 337E – G:
‘Execution is the process which enables a judgment creditor to obtain satisfaction of a judgment granted in his favour. The effect of holding that a Court is unable to control its own process would be to deprive a Court of what has always been considered to be an inherent power of such a Court. Of course, the discretion which a Court has must be exercised judicially, but cannot be otherwise limited, for example by stating that such discretion can only be exercised in favour of a judgment debtor in certain circumscribed circumstances.’
Abuse of Court process
Relying on Aussenkehr Farms (Pty) Ltd v Namibia Development Corporation Ltd 2012 (2) NR 671 (SC) para 18 to 25, stated that:
[28] In the present matter, Menzies contends that the three days’ notice that it was given by the Airports Company is irrational and unreasonable and that it has come to court for a declaration to that effect and seeks an order to stay the execution of Justice Sibeya’s order while that dispute (namely whether three days’ notice is rational and reasonable) is being determined by the court. I have therefore come to the conclusion that, in the instant matter, Menzies is not using the machinery of the Court which is devised for the better administration of justice for ulterior purposes. I, therefore, find that Menzies’ application does not amount to an abuse of the processes of the court.
Finality of the Supreme Court Order
The question is whether Menzies’ application will or attempts to remove the oxygen from the rule of law thus suffocating it. The court was referred to the Secretary of the Judicial Commission of Inquiry into Allegations of State Capture Corruption and Fraud in the Public Sector including Organs of State v Zuma [2021] ZACC 18; 2021 (5) SA 327 (CC); 2021 (9) BCLR 992 (CC) (State Capture), where Khampepe J writing the majority judgment said:
‘Like all things in life, like the best of times and the worst of times, litigation must, at some point, come to an end. The Constitutional Court, as the highest court in the Republic, is constitutionally enjoined to act as the final arbiter in litigation. This role must not be misunderstood, mischaracterised, nor taken lightly, for the principles of legal certainty and finality of judgments are the oxygen without which the rule of law languishes, suffocates, and perishes.’
[31] The factual setting of the present matter is, in my view, entirely distinguishable from the Zuma matter. In the present matter, Menzies did not come to this court asking the court to reconsider the correctness or otherwise of the orders of 29 June 2022 by Justice Sibeya or the correctness of the orders of 9 June 2023 of the Supreme Court. As I have indicated earlier my characterization and understanding of Menzies’ application is that it is seeking an order to delay the execution of the order of Justice Sibeya while this Court is determining the question of whether the three days’ notice that Menzies received from the Airports Company is rational, reasonable, fair, and just.
[32] In my view, the question of whether or not the three days’ notice given by the Airports Company to Menzies is rational, reasonable, fair, and just has no bearing whatsoever on the finality of the Supreme Court’s judgment. This court, as I indicated earlier in this judgment, is competent to, without violating the stare decisis doctrine or the finality of the Supreme Court’s judgment, consider the question of whether the Airports Company’s three days’ notice to Menzies to vacate HKIA is rational, reasonable, fair, and just.
Violation of Airport Company’s and Paragon’s right of a fair trial
[36] Standard Bank appealed to the Supreme Court, although originally styled as an appeal against the order, it actually was an application to the Supreme Court that the refusal by the High Court to grant the postponement it requested in order to afford it more time to prepare and lodge answering affidavits, constituted an irregularity in the proceedings as contemplated in s 16(1) of the Supreme Court Act or violated Standard Bank’s right to a fair hearing as an aspect of its rights to fundamental justice in common law or to a fair trial guaranteed by art 12(1)(a) of the Constitution.
[37] The Supreme Court held that with regard being had to the inherent flexibility of the audi alteram partem rule, the High Court had properly moulded its application to meet the circumstances and address the exigencies of the application under consideration in the interests of fairness and justice. The Supreme Court further held that Standard Bank’s common-law rights to fundamental fairness in the proceedings before the High Court were not violated and the manner in which the High Court applied the audi rule was procedurally right, just, and fair in the context and circumstances of the case.
[38] On the authority of Standard Bank v Atlantic Meat Market 2014 (4) NR 1158 (SC) I find that if this court hears the matter and issues a rule nisi the Airports Company and Paragon’s right to a fair trial as guaranteed under Article 12 of the Constitution will not be violated.
Absence of Public Law decision by the Airports Company (res judicata)
[40] The doctrine of res judicata, is a legal principle that states that a matter that has been finally determined by a court of competent jurisdiction cannot be re-litigated by the same parties or their privies in a later suit. In S K v S K (I 3754/ 2012) [2017] NAHCMD 344 (17 November 2017) Prinsloo J stated that res judicata is a Latin term meaning “a thing adjudicated”. This refers to an issue that has been definitely settled by judicial decision. The doctrine thus bars the same parties from litigating a second lawsuit on the same claim or any other claim arising from the same transaction that could have been but was not raised in the first suit.
The essential elements of res judicata are threefold, namely that the previous judgment was given in an action or application by a competent court; between the same parties, based on the same cause of action (ex eadem petendi causa), and with respect to the same subject-matter, or thing (de eadem re). The second and third requirements are not immutable requirements of res judicata. The subject-matter claimed in the two relevant actions does not necessarily and in all circumstances have to be the same.
[42] In The General Consulate of the Republic of Angola in Rundu v Van Schalkwyk (HC-MD-CIV-CON-2020/01309) [2020] NAHCMD 560 (4 December 2020), Prinsloo J reasoned that the concept of res judicata ascended as a method of preventing injustice to the parties of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones but also prevents litigants from multiplying judgments and confusion. Relying on Coetzee v Eva Salt Traders and Four Others (I 2728/2012) [2016] NAHCMD 359 (8 November 2016) the learned judge opined that the true basis of the doctrine is to prevent an abuse of the process.
[43] The learned judge further said 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.’
[44] In the present matter Menzies contends that after Justice Sibeya granted the declaratory orders on 29 June 2022, it and the Airports Company entered into another agreement in terms of which they agreed that ‘Menzies Aviation will continue to provide ground handling services at the HKIA until further notice’. If this allegation by Menzies is found to be established then the issue of res judicata does, in my view, not arise because then the question of whether the three days’ notice that the Airport’s Company gave Menzies to vacate HKIA is reasonable or not was never determined by either Justice Sibeya or the Supreme Court.
[45] In light of the reasons that I have set out, the findings that I have made and conclusions that I have reached in the preceding paragraphs, I am of the view that the points in limine raised must fail and do fail.