- July 13, 2022
- |Law Everyday
NOT EVERYTHING NEEDS TO GO TO COURT – ABUSE OF COURT PROCESS IS REAL!
The former POTUS, Donald Trump was known for his love to sue, and for threatening to sue people. The same can be said about some people in Namibia because they believe that anything and everything can be taken to court. While the court would not summarily dismiss a matter from the onset, it can be found in the end that a matter should not have been instituted in the first place and that a litigant abused the court process. This is exactly what happened in the recent case of Olivier v Oosthuizen (9 March 2022). The matter started in the Magistrates Court and made its way to the Supreme Court (probably not as intended by the parties). The facts are briefly as follows: The one partner in a partnership school (the defendant) was sued in the Magistrates Court for payment of N$7500 which had been paid into the partnership account by the plaintiff (the other partner’s husband).
Following the closure of the school, the plaintiff sought a refund of the deposit he paid in respect of his two daughters in a letter to first defendant. First defendant replied positively and indicated that the refund could be done by plaintiff’s wife uploading the payment on the internet banking platform of the school whereafter she (defendant) will authorise the payment. The banking platform was set up so as to allow one partner to upload envisaged payments to anyone whereafter the other partner had to authorise such payments. In this manner, both partners were involved in all payments. In this instance, however, plaintiff’s wife never uploaded the transaction and plaintiff regarded the defendant’s response as evasive. When summons was issued against defendant in the Magistrate’s Court, an offer to refund the plaintiff was again made by the defendant (i.e., that she would upload the payment), so that plaintiff’s wife can authorise the payment by ‘push of the button’. In this instance, the defendant uploaded both plaintiff’s and her husband’s refund concerning her children. Plaintiff’s wife refused to authorise both payments, reasoning that it was not clear to her that defendant’s husband had to be repaid because of possible claims the partnership have against him.
Defendant then opposed the summons, but after realizing that her plea was meritless, she approached the High Court for an order compelling plaintiff’s wife to co-operate with her to pay the refund claimed by her husband from the partnership account. In these proceedings, the defendant became applicant and plaintiff’s wife became respondent. The application was opposed by respondent who filed a counter-application for the appointment of a liquidator to liquidate the partnership. The High Court found that the institution of the action by plaintiff in the Magistrate’s Court amounted to an abuse of process and that as the money was available in the partnership account, and his wife (respondent) was ordered to co-operate with applicant to repay the N$7500 deposit to the plaintiff. The respondent (now appellant) appealed to the Supreme Court against the High Court’s order compelling her to co-operate with the applicant (now respondent) to pay the refund from the partnership account. The Supreme Court stated, in summary, the following regarding abuse of process:
a) The general rule is that partners are liable jointly and severally for all the obligations of the partnership. The only practical limitation to this principle is that a creditor of a partnership, during the existence of a partnership, cannot sue any one of the partners but must proceed against all of them.
b) The court a quo was correct when it found that the action instituted in the Magistrate’s Court was an abuse of process. The reason for obstructing payment from the partnership initially was contrived and without any substance. This meant that if the plaintiff really wanted his refund urgently, he could have gotten it. He however did not want it from the partnership because this would not immediately and directly compel the defendant to come up with N$7500 from her own pocket. He decided to subject her to legal proceedings with the concomitant stress and costs – he wanted to victimise and harass her. This was his primary motive rather than the fear that without such action he would not be reimbursed his deposit.
c) The fabrication of a defence and the raising of defences which one knows to be unmeritorious in a plea is a serious matter that should not simply be accepted as a response to a claim where one is of the view that the institution of such claim constitutes an abuse of process.
d) The question of abuse of process was raised in the plea when it should have been raised in an application to stay (postpone). Furthermore, the question of an abuse of process where one denies the merits of the claim is quite different from an abuse of process where one cannot dispute the merits of the claim.
e) The Magistrate’s Court has the power to award punitive costs where its process is abused or where a party acts solely with the purpose to delay or deliberately raises a false defence. The High Court also has the inherent jurisdiction to avoid an abuse of its process.
f) The courts must deal with abuses of its processes in terms of their powers.
g) The application in the High Court was an abuse of process – it was part of a vendetta between the parties following the notice to dissolve the partnership.
The court is not a quick-fix avenue for settling personal scores. Due consideration must be given to the merits of the case, and alternative ways to resolve it before suing or before raising a defence to a lawsuit because abuse of process is real, and it attracts punitive costs.
Fedden Mainga Mukwata – Legal Pundit