Lewcor Holdings (Pty) Ltd v Sperrgebiet Diamond Mining (Pty) Ltd [2024] NAHCMD 426 (29 July 2024)

Facts 

The applicants launched an urgent application on 23 January 2024, essentially seeking an interim interdict which was to prevent the respondent from removing certain mining assets, machinery, equipment, and accessory items from Elizabeth Bay Mine, situated at 455R+59P, Elizabeth Bay, Republic of Namibia, to Zimbabwe. 

The High Court, in early January 2024, issued an interim order with immediate effect restraining the respondent from transporting certain equipment, assets and machinery from Elizabeth Bay mine to Zimbabwe, pending the determination of an action instituted by the applicants against the respondent. Dissatisfied with that order, the applicants noted an appeal against the said order to the Supreme Court. 

The applicants regarded the step or proceeding by the respondent, to note the appeal directly to the Supreme Court, without seeking leave from the High Court, an irregular step or proceeding as contemplated in rule 61 of this court’s rules.

The applicants accordingly filed a rule 61 application, contending that the appeal constituted an irregular step for the reason that the order sought to be appealed against, is interlocutory in nature and does not have the attributes of a final judgment. It was alleged that the respondent did not seek leave to appeal from the High Court, notwithstanding that the appeal to the Supreme Court is one that requires the leave of the High Court. The respondent argued that the question whether the applicants’ proposition is correct in law, was one beyond the jurisdiction of the High Court. It falls within the exclusive domain of the Supreme Court, the respondent further argued.

The parties were at loggerheads on the question of whether the order of the High Court sought to be appealed to the Supreme Court, was interlocutory in nature and thus required leave of the High Court or not.

Issues

The court had to determine an unprecedented issue of whether the High Court has jurisdiction to declare a notice of appeal against its order or judgment an irregular step or proceeding in terms of rule 61 of the High Court rules? The High Court refrained from entering the debate of whether the order was interlocutory in nature and focused its eyes and attention on the question whether the applicant was correct in law to challenge the noting of the said appeal on the basis of rule 61.

Discussion

‘[13] Rule 61, titled ‘Irregular proceedings’, reads as follows:

‘61 (1) A party to a cause or matter in which an irregular step or proceeding has been taken by any party may, within 10 days after becoming aware of the irregularity, apply to the managing judge to set aside the step or proceeding, but a party that has taken any further step in the cause or matter with knowledge of the irregularity is not entitled to make such application.

(2) An application under subrule (1) is an interlocutory application and must be on notice to all the parties and must specify in the notice the particulars of the irregularity alleged as well as the prejudice claimed to be suffered as a result of the alleged irregular step. 

(3) The managing judge must give directions as to the hearing of such application. 

(4) If at the hearing of the application the managing judge is of the opinion that the proceeding or step is irregular or improper he or she may, with due regard to the alleged prejudice suffered, set it aside in whole or in part either as against all the parties or as against some of them and grant leave to amend or make any other order that the court considers suitable or appropriate. 

(5) A party that has not complied with an order of court made against him or her in terms of this rule is not entitled to take any further step in the cause or matter, except to apply for an extension of time within which to comply with the order.’

[14] The learned author P T Damaseb, in his work entitled ‘Court-Managed Civil Procedure of the High Court of Namibia,’  makes reference to a judgment of the Supreme Court on this issue. He states the following of the Supreme Court judgment regarding this rule:

‘It took the view that on the face of it the rule does not require prejudice and that it involves two separate but interrelated enquiries which should not be conflated. The first step, the court held, is whether the step or proceeding complained of is irregular, to be determined by considering the step itself in the light of the meaning of irregular step or proceeding. The second enquiry only arises if the answer to the first is in the affirmative; and it is what order must follow the wake of the finding that the step or proceeding is irregular. In the second enquiry, the court has a discretion whether or not to overlook the irregular step or proceeding and in that process prejudice is relevant.’

Determination

‘[20] What is apparent in this matter, is that the applicants have invoked the provisions of rule 61. The question to determine, is whether the noting of appeal is a proceeding or step taken in terms of the rules of this court. If it is, then, in my considered view, the applicants are correct. If it is not, it is my considered view that this court cannot properly countermand processes, proceedings and steps that are taken by a party in terms of the rules of the Supreme Court. 

[21] I say this for the plain reason that this court’s rules, unless otherwise stated, are designed to apply to steps, proceedings and processes that take place before this court and in line with this court’s rules. Where matters appertain to the Supreme Court, that court has its own rules to govern its processes. 

[22] It should be stated in this regard that appeals from judgments and orders of this court are noted in terms of the rules of the Supreme Court. This accordingly suggests that the rules of this court are simply implicated in that connection. For that reason, it is accordingly clear that the provisions of rule 61 cannot, in that event apply. 

[23] I am of the considered view that the mere fact that a notice of appeal to the Supreme Court as of right is filed with this court as well, does not necessarily result in that proceeding being one serving before this court and therefor subject to the rules of this court. The filing of the notice of appeal before this court, it appears to me, is for no other purpose than for purposes of information to this court of the developments regarding that case. 

[24] In my considered view, it is necessary to file with this court an appeal noted against a judgment or order of this court. This is so because it is common cause that once an order has been issued by this court, it needs to be executed accordingly, in terms of the relevant rules. The filing of an appeal with this court therefor sends a message to the registrar that in the particular matter, execution of the order may not be embarked upon because of the staying effect of the noting of an appeal with the Supreme Court. It is for that very reason that it is necessary for an appeal noted with the Supreme Court in terms of the rules of that court, to be filed of record with this court.

[25] What should not be allowed to sink into oblivion, is that the question whether the appeal should be noted directly to that court or with leave of this court must be answered by the Supreme Court when the matter eventually serves before that court. It would be disruptive for this court to pronounce itself on matters in which it is otherwise functus officio and may cause confusion or uncertainty as the Supreme Court may, when the matter eventually lands on its desk, take a different position on the matter.

[26] It seems to me as well that to follow the reasoning of the applicants in this case, may also serve to run up costs unnecessarily. I say so because the question whether the appeal was properly noted, must be answered by the Supreme Court when the matter serves before that court. Furthermore, to sanction the applicants’ position, would also take up this court’s time and resources that it should be dedicating to matters that are unquestionably properly before it for adjudication.

[27] There is accordingly no opportunity or need for this court to interpose itself once an appeal is noted in the Supreme Court. The court that should decide and with finality, the question whether the appeal should have been noted with this court’s leave or not, is the Supreme Court. As stated earlier, the only exception, is where the provisions of rule 121, are implicated. 

[28] This is, in my view, the case even if this court would have a view on the question whether leave of this court was necessary or not. There are so many cases where at the nascent stage of a matter before the Supreme Court, that court is seized with a determination whether the matter is properly before it because of the question whether leave of this court was necessary or not. 

[29] It does seem to me that the question, which might loom large even at this stage regarding whether the leave of this court is necessary, is not one for this court to determine. This is because by noting the appeal, the matter thereby transcends the jurisdiction of this court. Whether this court has finally exercised its jurisdiction in this case, with the appeal having been noted as of right, is one that the Supreme Court must answer.

Conclusion 

[31] In view of the considerations and conclusions reached above, albeit belatedly, it seems to me that the question for determination in this matter must be answered in favour of the respondent. I accordingly find that the application in terms of rule 61 filed before this court, is bad. It is an issue that should be dealt with by the Supreme Court. This court does not, in the circumstances of this case, have the wherewithal to determine the propriety of the appeal lodged by the appellant.’

Held that rule 61 applies in circumstances where certain steps or proceedings, taken in terms of the rules of this court, are alleged to be irregular.

Held that that the one clear instance in which this court may correctly deal with an appeal noted to the Supreme Court, is when an application is made in terms of rule 121 for the execution of the judgment or order, notwithstanding the noting of the appeal.

Held further that, in view of the decision of South African Druggists v Beecham plc 1987 (4) SA 876, the decisive criterion is whether the appeal noted, is being prosecuted by the appellate court or has been listed for hearing. If not, then the appellate court is not yet seized with the matter and this court has the jurisdiction to entertain the application. This is so for the reason that the filing of the notice of appeal is a step filed in the cause of this court.

Held that a party, in the applicants’ shoes, which has had an order in its favour issued, should be able, while the matter is not yet ready to be prosecuted in the Supreme Court, to urgently approach a tribunal to complain about the irregular step or proceeding, if it is of the view that same is defective.

Court order

The application in terms of rule 61 was refused with costs. 

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