REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

CASE NO. I 2892/2015

In the matter between:

HAMILTON AND PARTNERS PLAINTIFF

and

DIRK JOHANNES STEENKAMP (KOWA) N.O. 1ST DEFENDANT

MARIA PETRONELLA JACOBA (KOWA) N.O. 2ND DEFENDANT

ZACHARIAS JOHANNES GROBLER N.O. 3RD DEFENDANT

MARIA PETRONELLA JACOBA (KOWA) 4TH DEFENDANT

Neutral citation: Hamilton and Partners v Steenkamp & Others (I 2892/2015) [2016]

NAHCMD 314 (13 October 2016)

CORAM: MASUKU J.;

Heard: 13 September 2016

Delivered: 13 October 2016

FLYNOTE: PRACTICE OF COURT - RULES OF COURT – Rule 60 – Summary

judgment – whether filing of a supplementary affidavit without leave of court is

permissible - Considerations of prejudice to parties main objective of court – Rule 32 (9)

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(10) – compliance therewith – LAW OF EVIDENCE – admissibility of communications

marked -

‘without prejudice’ – Prematurity of motion to strike out.

SUMMARY: The Plaintiff moved a summary judgment application against the

defendants for an amount of N$ 43 125, for services rendered. The defendants filed an

opposing affidavit and later sought to introduce a supplementary affidavit to the

opposing affidavit, without applying for leave of court. They also sought to introduce

communication with the plaintiff in a bid to settle the matter as evidence.

Held – that civil procedure as set out in the rules of court stipulates the sets of affidavits

that may ordinarily be filed. Although authorities referred to relate to ordinary motion

proceedings, they cannot be jettisoned in summary judgment applications merely

because they ordinarily relate to motion proceedings. Furthermore, what is important, is

the principle that where a specific number of sets of affidavits has been set by the rules,

that must be obeyed and that any party seeking to file further affidavits must first seek

leave from the court before doing so.

Held – further that the provisions of rule 32 (9) and (10) are peremptory and non-

compliance with same is ordinarily fatal. There is no better way of enforcing compliance

therewith, than by refusing to entertain interlocutory applications brought in

contravention of the foregoing rule.

Held – that communication marked ‘without prejudice’ written in a genuine effort to

resolve the issues between the parties cannot be used against the writer as evidence.

Held – further that the argument that the application to strike out was premature and

should have been heard with the main application was dismissed.

In conclusion the court dismissed the defendants’ application to file the supplementary

affidavit and ordered the defendants to pay the costs of the application.

ORDER

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1. The defendants’ application dated 15 July 2016 is dismissed.

2. The plaintiff’s application to strike out the defendants’ additional affidavit to

the opposing affidavit filed in respect of the summary judgment is granted.

3. The plaintiff’s application for the striking out of the letter dated 5 July 2016 is

granted.

4. The defendants are ordered to pay the costs of the applications consequent

upon the employment of one instructing and instructed Counsel.

5. The matter is postponed for hearing of the summary judgment on a date to be

determined in consultation with the parties’ legal representatives.

RULING

MASUKU J.;

Questions for determination

[1] Submitted for determination are two main legal questions, and they acuminate to

this – may a defendant, in application for summary judgment, file a supplementary

affidavit in opposition to the application and which supplementary affidavit is to be

incorporated to the opposing affidavit? The second question that arises, relates to the

proper application of what are referred as ‘without prejudice’ settlement negotiations

and their disclosure in court proceedings. There are also a few minor legal issues that

also arise for determination.

Background to the issues for determination

[2] The questions for determination arise in the following setting: the plaintiff

instituted civil proceedings in which it claimed payment of an amount of N$43 125 in

respect of auditing services supplied by the plaintiff to the defendants. The claim was

defended by the defendants, who on that account then faced an application for

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summary judgment which they opposed. From their opposition arises the first question

for determination referred to in the preceding paragraph and which I proceed to deal

with below.

[3] I shall, for ease of reference, and for the sake of consistency, refer to the parties

as they appeal in the action proceedings. I will do so even in reference to the

interlocutory applications, namely as the plaintiff and the defendants.

Filing of supplementary affidavit opposing a summary judgment application

[4] By notice of motion, dated 15 July 2016, the defendant applied for an order in the

following terms:

‘1. That the affidavit of ZACHARIAS JOHANNES GROBLER attached hereto be

incorporated in the Defendant’s opposing affidavit to the application for summary judgment.

2. That the plaintiff to pay the costs of this application.

3. Further and/or alternative relief.’

Needless to say, this application is opposed by the plaintiff.

[5] The basis for the application, as can be gleaned from the defendants’ application

is that the plaintiff, in sending them some invoices in a bid to settle the matter, disclosed

some information thereunder and which form a basis for their defence and thus

necessitated that they file a supplementary affidavit. This affidavit, I must say, is

attached to the application. They did not seek for leave to file the said affidavit.

[6] In opposition, the plaintiff filed an affidavit from which it is plain that the main

basis for opposing the application is that the defendants seek to have incorporated an

additional affidavit to the one already filed of record and by which they seek to oppose

the granting of an application of the summary judgment application. This, is contended,

is not consistent with procedure and prejudicial to the plaintiff’s case in any event. The

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plaintiff accordingly applied to strike out the entire affidavit of the defendants which it is

sought to add to the one already filed in opposition to the summary judgment

application.

[7] In support of the application for striking out, the plaintiff relied on the following

passage from Juta Law Online Publications, where the following is recorded:

‘There are normally three sets of affidavits in motion proceedings. The court will exercise

its discretion in permitting the filing of further affidavits against the backdrop of the fundamental

consideration that a matter should be adjudicated upon all the facts relevant to the issues in

dispute. It is for the court to exercise its discretion. The registrar is not empowered to exercise it

and a party cannot take it upon himself to simply file further affidavits without having first

obtained the leave of the court to do so. It has been held that where further affidavits have been

filed without first having obtained the leave of the court, the court can regard such affidavits as

pro non scripto.’

[8] In further cementing its argument, the plaintiff referred to the case of Hano

Trading CC V JR Investments (Pty) Ltd and Another,1 where the court the Supreme

Court of South Africa cited the following remarks by Dlodlo J in Standard Bank of SA Ltd

v Sewpersadh and Another2:

‘The applicant is simply not allowed in law to take it upon himself to and . . . [to]

file an additional affidavit and put same on record without even serving the other party

with the said affidavit . . .. Clearly a litigant who wished to file a further affidavit must

make formal application for leave to do so. It cannot simply slip the affidavit into the

Court file (as it appears to have been the case in the instant matter). I am of the firm

view that this affidavit falls to be declared non pro scripto.’

1 2013 (1) SA 161 (SCA).2 2005 (4) SA 148 (C) at para 12-13.

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This is the fate that the plaintiff importunes the court to visit on the affidavit attached by

the defendants to their application.

[9] The court was also referred to Juntgen t/a Paul Juntgen Real Estate v Nottbusch3

where Flemming J dealt with circumstances in which an application for leave to file an

additional affidavit in summary judgment can be granted in the exercise of the court’s

discretion. I will have no regard to this decision, not because it does not contain the

relevant principles but because it deals with a situation where a party has properly

sought leave to file an additional affidavit. In the instant case, it is argued that the

defendants took the liberty to do so of their own accord without reference whatsoever to

the court.

[10] For his part, Mr. Mouton argued and very strenuously that by referring to the

authorities referred to above the plaintiff is barking the wrong tree. He argued that from

the very reading of the authorities, especially the first one, it is clear that the author was

referring to application proceedings. His argument in this regard was that the said

portion is inapplicable to the present matter as this is an application for summary

judgment, which is not motion proceedings, properly so called. Is his contention

sustainable?

[11] I am of the view that Ms. Campbell is correct in her submissions. Civil

procedure, as set out in the rules of court stipulate the sets of affidavits that may

ordinarily be filed. The authorities quoted, although relating to ordinary motion

proceedings cannot be jettisoned merely because they relate to motion proceedings.

What I think is important from the authorities, is the principle, namely that where a

specific number of sets of affidavits has been set by the rules, that must be obeyed and

that any party, who for any reason seeks to file a further affidavit has to seek leave from

the court before doing so. It may not arrogate upon itself the right to do so.

3 1989 (4) SA 490 (W).

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[12] There is in my reason a good reason for limiting the sets of affidavits to be filed.

Were it otherwise, there may be no end to litigation as parties may be tempted to file

affidavits ad infinitum, allowing all sorts of afterthoughts and recent inventions to derail

the early determination of cases. Furthermore, it may have the pernicious effect of

encouraging a lackadaisical approach to litigation and fishing expeditions to become a

usual meal, if not the daily manna. This may serve to hamper the early disposal of

cases and would also result in a morass of disputes, real and imaginary.

[13] More importantly, the issue of seeking leave from the court, serves as a sieve

and a bulwark against the abuse that may result, as dealt with above. For that reason,

before a party may file an additional affidavit, it must satisfy the court that the reasons

advanced for the remedy sought is warranted. In this regard, the reasons must be

compelling and a satisfactory explanation given for not having placed the new material

sought to be included on affidavit in the first place.

[14] Coming to applications for summary judgment, I am of the view that the same

principles apply. Critically, in summary judgment, only two sets of affidavits are

ordinarily permitted. The plaintiff is not allowed to respond to the allegation raised by the

defendant in the opposing affidavit as that may serve to destroy the very summary

nature of the proceedings. As indicated, above, in the Juntgen case, the court may, on

application, in exercise of its inherent discretion, allow the filing of an additional affidavit

in summary judgment. In this regard, as stated earlier, sound and convincing reasons

must be advanced for the defendant not having included the information belatedly

sought to be traversed.

[15] In the instant case, there is simply no application for leave and predictably, there

is no explanation tendered as to why the court should exercise its discretion in the

defendants’ favour that will allow the defendants to transgress the ordinary applicable

rules. Parties should not be allowed to throw away the rules and procedures established

long ago into the dustbin for their transient convenience and at will. A party which seeks

to rewrite the rules by arrogating itself the power to add a new set of affidavits without

recourse to the court must face a stern resistance from the court, resulting in the

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affidavit irregularly filed affidavit being regarded and in fact treated as pro non scripto. In

my view, this is the only fate that awaits the defendants’ attempt to assume to itself the

powers that reside in the court. The plaintiff’s point of law in this regard must, in my view

be upheld as I hereby do. The additional ‘affidavit’ is therefore struck out and no regard

shall be had to it in these proceedings.

Rule 32 (9) and (10)

[16] A further contention raised by the plaintiff, is that the application should fail

because the defendants failed to comply with the provisions of rule 32 (9) and (10). In

support of this contention, the plaintiff cited the now celebrated case of Mukata v

Appollus.4 A proper starting point, however, is the provision of rule 32 and (10), which

read as follows:

‘In relation to any proceeding referred to in this rule, a party wishing to bring such

proceeding, must, before launching it, seek an amicable resolution thereof with the other party

or parties and only after the parties have failed to resolve their dispute may such proceeding be

delivered for adjudication by the court.

(10) The party bringing any proceeding contemplated in this rule must, before instituting the

proceeding, file with the registrar details of the steps taken to have the matter resolved amicably

as contained in sub rule (9), without disclosing privileged information.’

[17] Reverting to Mukata, there the court expressed itself as follows:

‘Considering the use of the word “must” in Rule 32 (9) and (10) and the intention of the

rule maker as set out in Rule 1 (2) concerning the overriding objective of the rules. . . I conclude

that the provisions of Rule 32 (9) and (10) are peremptory, and non-compliance with them must

be fatal.’

4 (I 3396/2015 [2015] NAHCMD 54 (12 March 2015).

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See also Standard Bank Namibia Limited v Ronnie Gertze,5 Kambazembi Guest Farm

CC t/a Waterberg Wilderness v The Minister of Lands and Resettlement,6 and Malenko

v Coetzee.7

What is plain from all he foregoing cases, is that where a party has failed to comply with

the said provisions, which are clearly peremptory in nature, the court may well be

justified in striking the matter from the roll.

[18] In the case of Visagie v Visagie,8 the court expressed itself in regard to this issue

as follows:

‘It is plain, in my view that failure to comply with either or both requirements in rule 23 (9)

and (10), is fatal. The court cannot proceed to hear and determine the interlocutory application.

The entry into the portals of the court to argue an interlocutory application must go via the route

of rule 32 (9) and (10) and any party who attempts to access the court without having gone

through the route of the said rules can be regarded as improperly before court and the court

may not entertain that proceeding. In colloquial terms, that party can be said to have

“gatecrashed” his or her way into court. Gatecrashers are certainly unwelcome if regard is had

to the provisions of the said rules’.

[19] In the circumstances, there is no doubt that the defendants did not comply with

the said provisions and there is no application before court for condonation. The

irresistible conclusion, to use the language in Visagie is that the defendants have

attempted to gatecrash their way into court and they have to be ‘ejected’ for that reason.

The result is that the interlocutory application should be struck from the roll for non-

compliance with what are clearly mandatory provisions of the rules. There is no better

way of enforcing compliance than by refusing to entertain interlocutory applications

brought in contravention of the foregoing rules.

Without prejudice communications5 (I 3614/2013 NAHCMD [2015] (31 March 2015).6 (A 21/2015) [2016] NAHCMD 118 (21 April 2016).7 (I 3557/2013) [2016] NAHCMD 88 (1 April 2016).8 (I

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[20] The last issue relates to the disclosure of what the plaintiff clams in privileged

information that was marked ‘without prejudice’ and brought into existence for no other

purpose than in a genuine effort to settle the matter between the parties. The plaintiff in

the circumstances moved the court to grant an order striking out the said document. In

order to decide whether the application by the plaintiff is sustainable, it is necessary to

consult authorities dealing with the issue of without prejudice documents. I do so below.

[21] The defendants adopt a different stance on the document in question. They

argue that the letter in question, although marked ‘without prejudice’ was not related to

any past, present or future bona fide attempts to settle the matter. It was their further

contention that the said letter did not relate to the prevention of ‘the use of anything said

in negotiations as evidence of anything expressly or impliedly admitted’. For that

reason, the defendants applied that the application for striking out of the letter should be

dismissed.

[22] From the authorities cited by the parties, some of which are common to both, it

becomes clear that both parties have no gripe with the principle applicable and its

interpretation as found in case law. What they differ on, is its application in relation to

the letter in question. I proceed to deal with a few authorities on the subject negotiations

privilege below.

[23] The learned author Zeffert9 states the following as being the rationale for the

existence of the rule. They say that it is, ‘on the ground that public policy rendered the

relevant letters inadmissible since they were written in the course of bona fide

negotiations for the settlement of the parties’ dispute.’ Perhaps the most celebrated

case on this subject is Gcabashe v Nene,10 where James J.P. dealt with the principle as

follows:11

‘The mere fact that the subsequent letters were not marked “without prejudice” does not

make them acceptable in evidence because if they form part of negotiations for a settlement

9 D. T. Zeffert et al, The Law of Evidence,10 1975 (3) SA 912.11 Ibid at p. 914 D-G.

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they are also protected from disclosure whether they bear the label or not. . . The whole

question to be determined is, therefore, whether a binding agreement was created by the

meeting of 19 March 1969. As far as the general application of the without prejudice rule is

concerned, I adopt with respect what was said by Kekewich J., in Kurtz & Co v Spence & Sons12

“I shall not attempt to define the word without prejudice- but what I understand by

negotiation without prejudice is this: the plaintiff or defendant- a party litigant may say to his

opponent: Now you and I are likely to be engaged in severe warfare; if that warfare proceeds,

you understand I shall take every advantage of you that the game of war permits; you must

expect no mercy and I shall ask for none; but before bloodshed let us discuss the matter, and let

us agree that for the purpose of this discussion we will be more or less frank; we will try to

come to terms, and that nothing that each of us says shall ever be used against the other so as

to interfere with our rights at war, if unfortunately, war results, That is what I understand to be

the meaning , not the definition, of ‘without prejudice’.”

[24] Stripped to the bare bones, the interpretation to be given to the magical words

‘without prejudice’, is that where parties, locked in a dispute, consciously decide to put

aside their weapons and sit under a tree, so to speak to smoke the peace pipe and try

to resolve their differences on the issue, if their settlement proposals do not culminate in

an agreement, and hostilities have to resume, the content of the proposed settlement

may not be disclosed as they are privileged.

[25] The letter in question in this matter, authored by Ms. Cagnetta, is marked ‘without

prejudice’. It is not the label but the content and the context in which it was written that

decides whether its introduction is inadmissible. In this regard, one has to look at the

context in which it was written and this may be seen from its content. That letter is dated

5 July2016 and the tenor of the letter is that the author says that she has considered the

defendants’ affidavit opposing summary judgment and formed the view that same did

not constitute a defence.

[26] Critically, at para 4 of the letter, Ms. Cagnetta says the following:

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‘Although it is not customary practice of our clients to provide itemized bills but as a

gesture of goodwill, without admitting that our particulars of claim are incomplete in any manner,

we attach hereto the following documents that would assist you in reconsidering your position to

the claimed amount. . .’

I am of the considered view that seen in the context of the entire trajectory of the matter,

this letter was written after an effort by the parties to resolve the matter and this is

evident from the second paragraph thereof, where the defendants awaited a response

from the plaintiff. The paragraph quoted immediately above shows that the plaintiff

offered the defendants what may otherwise be classified information in a bid to try and

resolve the matter without the necessity of going through the motions of summary

judgment.

[27] For the foregoing reasons, I am of the considered view that the letter, over and

above being marked ‘without prejudice’ was written in a genuine effort to resolve the

matter amicably and it appears that the defendants seized upon the documents

disclosed in an effort to inform them better in the settlement of the matter and sought to

file an additional affidavit using that very information given to them on a without

prejudice basis. This, in my view should not be allowed. The letter in question is

accordingly struck out as it contains privileged information and was written on a without

prejudice basis.

Premature application to strike out

[28] I have granted the applications to strike out certain offensive matter as evidenced

above. I have done so not in oblivion to the argument so forcefully advanced by Mr.

Mouton. He argued that the applications to strike out should not be heard at this stage

but should be heard and decided at the main hearing, namely, at the hearing of the

summary judgment application. In this regard, the court was referred to Meinert (Pty)

Ltd v Administrator of SWA Executive Committee 13 and Bezuidenhout v Reitz

13 1959 (2) SA 498 (SWA).

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Waardasiehof.14 I must pertinently mention that the latter case is not in the language of

this court and I have, for that reason, not derived any benefit from the wisdom His

Lordship may have imparted.

[29] Regarding the former case, Hall J.P. appears to have upheld the sentiments

expressed by Price J in Elher (Pty) Ltd v Silver,15where it was held that where an

application to strike out matter is moved, it should ordinarily be moved at the hearing of

the main application for purposes of convenience. From that approach seems to have

grown what was referred to as the ‘prematurity’ principle. It would appear that

considerations of convenience informed the decision not to hear the issues arising in a

truncated form, resulting inevitably in two or more separate hearings when one could

have sufficed to deal with all the issues on the agenda.

[30] I am of the considered view that in the instant case, whatever merits may be said

to derive from the approach in Elher that in the instant case, it is rather convenient and

sensible to deal with the application to strike out at this stage. What should not be

allowed to sink into oblivion is that it is the very defendants who have provided the

platform to have these matters ventilated by bringing an interlocutory application to

allow them to incorporate an affidavit to the affidavit opposing summary judgment. Since

all these matters are related, it would have made very little sense to freeze the hearing

of these matters until the summary judgment was heard.

[31] It would appear to me that there are other reasons that favour the plaintiff’s

approach in any event and which will assist the defendants and it is this – the

defendants are facing a summary judgment application, which has been described as a

stringent remedy. In this regard, it would have been of critical importance for the

defendants. Before presenting themselves for the hearing to know beforehand what

ammunition they have at their disposal to launch as hostilities begin.

14 1964 (1) SA 838 (O) 841 C-D.15 1947 (4) SA 173 (W).

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It would have been disruptive and to some extend unjust for the defendants coming to

the hearing of the summary judgment application and after preliminary argument, for

argument’s sake, being told that the affidavit is struck out. They would, in all probability,

have needed to reconfigure their strategy and throw away live ammunition they had in

their chamber as same would have been declared redundant. To the contrary, I am of

the view that the approach of dealing with the preliminary issues at this stage has

served to clarify the matters and make argument more focused and certain on the date

of arguing the summary judgment.

[32] It is with the foregoing thoughts in mind that I found it fitting, notwithstanding Mr.

Mouton’s spirited address that the hearing of the applications to strike out are not only

convenient in the circumstances, but also serve to redound to the clarity and focus

required for the hearing of the main application.

[33] In view of the foregoing, I am of the considered opinion that the application by the

defendants for the incorporation of the affidavit should fail and the plaintiff’s applications

for the striking out of the affidavit of Mr. Grobler and the letter dated 5 July 2016 should

be granted.

[34] I accordingly issue the following order:

1. The defendants’ application dated 15 July 2016 is dismissed.

2. The plaintiff’s application to strike out the defendants’ additional affidavit to

the opposing affidavit filed in respect of the summary judgment is granted.

3. The plaintiff’s application for the striking out of the plaintiff’s letter dated 5 July

2016 is granted.

4. The defendants are ordered to pay the costs of the applications consequent

upon the employment of on instructing and instructed Counsel.

5. The matter is postponed for hearing of the summary judgment on a date to be

determined in consultation with the parties’ legal representatives.

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____________

TS Masuku

Judge

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APPEARANCES:

PLAINTIFFS: Y. Campbell

Instructed by Koep & Partners

DEFENDANTS: C. Mouton

Instructed by Grobler & Co.