“Behind the Bench: Rule 32(9) of the High Court Rules and Its Role in Streamlining or Hindering Case Management in Namibia”

INTRODUCTION

The High Court Rules of Namibia contain various provisions aimed at ensuring effective case management, one of which is rule 32(9). While this rule may seem straightforward and necessary to promote efficiency in the judicial process, there have been debates about whether it is an impediment to the objectives of judicial case management.

To better understand this subject, it is important to first define what is meant by judicial case management. Judicial case management refers to the process by which judges take an active role in managing cases, with the aim of ensuring that cases are resolved in a just, efficient, and timely manner. The process involves various activities, including setting timelines for case progression, identifying issues early on, encouraging settlement discussions, and managing the exchange of information between parties.[1] ?The detour, however for judicial case management can be found in rule 32 of the High Court rules which deals with interlocutory matters and applications for directions. In terms of rule 32(9) specifically, the handling of interlocutory applications is derailed from the court and left to the parties to decide on an amicable resolution and only after the parties have failed to resolve their dispute may such proceeding be delivered for adjudication by the court. Furthermore, when read together with rule 32(10) the rule requires the parties to also provide details on the steps taken to have the matter resolved amicably amongst them.

Our courts have delved on the consequence of non-compliance with rule 32(9) and (10) and a well-rounded jurisprudence has been developed regarding the positionality and purpose of the latter rules. In the matter of Studio Eighty-Eight Clothing (Pty) Ltd v Bezuidenhoudt & 2 Others?Geier J stated as follows:[2]

????????????‘?The provisions of rule 32(9) and (10) are clear and unambiguous; and so no words should be added by implication to the language of rule 32(9) and (10) in order to give those provisions sense and meaning in context. The sense and meaning in context of those provisions are abundantly clear. And one can find the true extent and meaning of the rule from the rules of court only...” [3]

Thus, according to Prinsloo J in the matter of Government of Republic of Namibia v Uupindi, in considering the use of the word ‘must’ in rule 32(9) and (10), there is not one iota of doubt that rule 32(9) and (10) ‘are peremptory, and non-compliance with them must be fatal’. The fatality is manifest in especially where the parties are able to find an ‘amicable’ solution to the issues which are contingent to an interlocutory application.? In furthering its reasons for judgement, the court in Uupindi was dismayed at the Plaintiff’s interlocutory application advanced from the stand without having regard to rule 32(9) and (10) and the court reasoned that even in the event where a party is of the opinion that an interlocutory application would not summit the indulgence of the other party, recourse must be had to the overriding objective of finding an amicable solution to an issue before court. The provisions of rule 32(9) and (10) have been remarked to not be discretionary for the parties when dealing with an interlocutory and that they are peremptory. The courts employ a strict application to rule 32(9) and (10), to a point where in?Namibia Airports Company vs IBB Military Equipment And Accessory Supplies Close Corporation, it was reasoned that even where there could be extra-ordinary or peculiar circumstances in a matter which would cause the court to overlook the blatant disregard to comply with rule 32(9) and (10) a cautionary approach is preferred by the courts.

Although, rule 32(9) can be seen as a necessary tool for ensuring that cases progress in a timely manner. By setting strict deadlines for the filing and service of pleadings, the rule helps to avoid delays that can arise from parties failing to meet their obligations in a timely manner. This can help to reduce the backlog of cases in the court system and promote efficiency in the administration of justice. On the other hand, critics of rule 32(9) argue that it can be overly punitive, particularly in cases where a party is unable to comply with the deadline due to circumstances beyond their control. For example, a party may be unable to file their pleading on time due to illness, the unavailability of legal representation, or other unforeseen circumstances. In such cases, the strict application of rule 32(9) can result in the dismissal of the case, even if doing so would be unfair or unjust.

Moreover, some argue that the rule can be an impediment to the objectives of judicial case management in situations where the parties are engaged in ongoing settlement negotiations. In such cases, the strict application of the rule can create pressure for the parties to quickly file and serve their pleadings, potentially disrupting ongoing settlement discussions and hindering the possibility of a mutually agreed resolution.

?In?Kambazembi Guest Farm CC t/a Waterberg Wilderness v The Minister of Lands and Resettlement Parker AJ in a strong worded ruling stated the following in respect of compliance with Rule 32(9) and (10):

CONCLUSION

In conclusion, whereas rule 32(9) can be seen as a necessary tool for promoting efficiency in the administration of justice, it is important to consider whether its strict application may sometimes be an impediment to the objectives of judicial case management. Ultimately, judges must strike a balance between ensuring that cases progress in a timely manner and allowing parties to fully present their cases, considering the specific circumstances of each case. This requires a flexible and nuanced approach to case management, with a focus on achieving a just and fair outcome for all parties involved.

? Charles Mukaya is a Candidate Attorney at Fisher Quarmby and Pfeifer Attorneys. He holds a Bachelors Degree in Laws (LLB), and a Diploma in Paralegal Studies and he writes this piece in his personal capacity.

[1] "Judicial Case Management: A Comparative Analysis" by Neil Andrews - This article provides an overview of judicial case management in different jurisdictions, including Namibia. It discusses the objectives of case management and the challenges that can arise in implementing effective case management practices.

[2] Government of Republic of Namibia v Uupindi (HC-MD-CIV-ACT-CON- 4068 of 2018) [2021] NAHCMD 585 (09 December 2021).

[3] See?Namibian Association of Medical Aid Funds v Namibian Competition Commission?(A 348/2014 [2016] NAHCMD 80 (17 March 2016), para 12.