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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKRULING ON APPLICATION FOR CONSOLIDATION
Case no. A 427/2013
In the matter between:
HEWAT SAMUEL JACOBUS BEUKES 1ST APPLICANT
ERICA BEUKES 2ND APPLICANT
and
THE PRESIDENT OF THE REPUBLIC OF NAMIBIA 1ST RESPONDENT
THE MINISTER OF JUSTICE 2ND RESPONDENT
ATTORNEY-GENERAL 3RD RESPONDENT
THE JUDGE PRESIDENT OF THE HIGH COURT 4TH RESPONDENT
THE REGISTRAR OF THE HIGH COURT 5TH RESPONDENT
THE DEPUTY SHERIFF FOR THE DISTRICT OF WINDHOEK 6TH RESPONDENT
JOHN BENADE 7TH RESPONDENT
LILLY BENADE 8TH RESPONDENT
Neutral citation: Beukes & Another v The President of the Republic of Namibia &
Other (A 427/2013) [2016] NAHCMD 77 (16 March 2016)
REPORTABLE
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CORAM: MASUKU J.
Heard: 1 March 2016
Delivered: 16 March 2016
Flynote: RULES OF COURT – Rule 41 - Application for consolidation of
applications – implications of rule 70 (2) on applications for consolidation - filing of
heads of argument by parties to legal proceedings.
Summary: The 5th respondent filed an application in terms of rule 41 for the
consolidation of the above application with another application No. A 83/2014. The
application was opposed by the applicants, who on the date of hearing indicated their
change of heart. Held – although rule 41 is couched in terms that refer to action
proceedings, the same considerations apply with regard to applications for consolidation
via the application of rule 70 (2) – Held – in granting or refusing applications for
consolidation, the court exercises a discretion that should be applied judicially and
judiciously – Held further - applications for consolidation hinge on two main
considerations, namely the balance of convenience and absence of substantial
prejudice – Held further – that ‘convenience’ as used in the rule in question does not
only mean expediency, efficacy and desirability but also includes fairness, justice and
reasonableness. Held – that due to the applications sought to be consolidated referring
to the same parties and substantially the same cause of action, considerations of
convenience called for the consolidation of the applications.
Held further – that lay litigants are not exempted from filing heads of argument, even if
these will not be of the same standard drafted by legal practitioners. Held further –
heads of argument play an important role in assisting the court and the other side to
know the argument and case law to be relied upon and therefore serves to curtail the
time needed for hearing the case and ultimately delivering judgment. Application for
consolidation granted with no order as to costs.
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ORDER
1. Case No. A 427/2013 is ordered to be consolidated with Case No. A 83/2014
and shall proceed as one application.
2. There shall be no order as to costs.
RULING
MASUKU J.,
[1] Presently serving before court is an application in terms of rule 41, moved by the
5th respondent herein for the consolidation of the above application with another
application cited as A 83/2014 which is also serving before this court.
[2] Whereas the other respondents cited in the present application have indicated
that they are not opposed to the grant of the relief sought by the 5 th respondent herein,
the applicants, Mr. and Mrs. Beukes opposed the application and also filed an
answering affidavit in opposition to the grant of the order sought. I should pertinently
mention that the representatives of the other respondents have indicated that they will
abide by the decision of the court, having expressed a somewhat benign support for the
application for consolidation, however.
[3] In support of the application for consolidation is an affidavit deposed to by the 5 th
respondent, Mrs. E. E. Schickerling, the Registrar of the High Court. In her affidavit, she
deposes that she has been cited nominee officio in both the present application and in
Case No. A 83/2014 (the second application). She further deposes that in both
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applications, what is at issue is a declarator that the former rule 31 (5) (a) of the
repealed rules of this court, which previously authorized the registrar of this court to
grant default judgments culminating in some cases in immovable property being
declared executable should be set aside as having been unconstitutional.
[4] It is her further deposition that both matters are at judicial case management
stage and presently serve before Mr. Justice Geier (the second application) and the
present application having been dock-allocated to me. Mrs. Schickerling also states that
the balance of convenience favours the consolidation of the two applications because
the live issues for determination in both applications are substantially similar in both law
and fact. It is also contended by her that both matters centre on the same subject
matter, namely, the granting of a judgment by default which resulted in the sale of a
house in execution. Furthermore, Mrs. Schickerling deposed that the constitutional
attack launched by the applicants is based on the same factual and legal matrix.
[5] The last point made in the affidavit is that the rights and obligations which are the
subject of the dispute among the parties are the same, save that in the second
application, there is the addition of further respondents, being the 9 th to 11th
respondents. It is, however, contended that the addition of the said respondents does
not in any way jaundice or change the substance of the disputes inter partes. It is
accordingly prayed that in view of the all the foregoing factors that the demands of
practicality and convenience call for both matters to be consolidated.
[6] The response by the applicants to this application is curt. They mainly contend
that a consolidation of the two applications will ‘introduce an insoluble contradiction if
not quandary. Consideration of either one situation as a hypothesis will automatically
disqualify as unfeasible the other. This means that neither can be considered as a
logical viability to co-exist with the other’.1 As a parting shot, the second applicant, who
1 Para 4 of the applicants’ answering affidavit.
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deposed to the affidavit states that, ‘The constitutional issues do indeed overlap, but
same is not adequate for a consolidation.’2
[7] Notwithstanding this opposition evidenced by the contents of the answering
affidavit, when the matter was called into court and eventually argued, Mr. Beukes, who
made submissions on behalf of the second applicant as well stated that they do not
have any serious objection to the application for consolidation being granted as prayed.
This has made my task a little easier.
[8] I do, however find it necessary, in view of the enormity of the issues raised and
particularly the effort put by the parties, to consider the authorities to which the court
was referred and to also decide, all having been said and done, where the interests of
justice lie in this matter. The first thing to do is to consider the relevant rule and the case
law interpreting the said provision.
[9] As earlier indicated, the relevant provision in respect of application for
consolidation is rule 41, which provides as follows:
‘Where separate actions have been instituted the managing judge may on the
application of any party to any action after notice to all interested parties and if it appears to the
managing judge convenient to do so, make an order consolidating the actions, after which –
(a) the actions proceed as one action;
(b) rule 40 applies with the necessary modifications required by the context to the
actions so consolidated; and
(c) the court may make any order it considers suitable or appropriate with regard to the
further conduct of the matter and may give one judgment disposing of all matters in
dispute in the actions’.
2 Para 5 of the applicant’s answering affidavit.
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[10] The question that immediately springs to mind is whether the provisions of rule
41 apply to application proceedings as it would appear that the wording employed in
rule 41 refers incontrovertibly only to action proceedings. The key to this question, it
would appear to me, is to be found in the provisions of rule 70, entitled, ‘Miscellaneous
matters relating to applications’. Subrule (2) thereof reads as follows:
‘Rules 40, 41, 48, 50 and 64 apply with the necessary modification required by the
context to all applications’.
It is accordingly clear from the foregoing that the rule relating to consolidation of action
proceedings being rule 41, applies mutatis mutandis to application proceedings as well.
I am therefore fortified that the principles applicable to consolidation of action
proceedings apply with equal force to application proceedings as well. I am therefore on
firm ground in making reference to cases determining the application of rule 41 even if
they clearly relate to action proceedings.
[11] The court was referred to the case of Gerson Uakaera Kandjii v Elifas Awaseb
and Five Others.3In that case, the learned Judge dealt with the consolidation of action
proceedings. At para [10] of the cyclostyled judgment, the learned Judge propounded
the applicable legal principles in the following language:
‘In the matter of New Zealand Ins. Co. Ltd v Stone Corbett AJ observed that the onus is
upon the party applying to Court for a consolidation to satisfy the Court that such a course (i.e.
consolidation of actions) is favoured by the balance of convenience and that there is no
possibility of prejudice being suffered by any party. Although Rule 11 makes no mention of
prejudice I am of the view that if an order to consolidate the actions will not be convenient if it
causes prejudice to any of the parties.’ See also Douwleen Van Zyl v Bennie Venter Legal
Practitioners and Three Others4and Fynbosland 355 CC And Others v Nedbank Limited In re: the actions between Nedbank Limited and 1st to 16th Applicants.5
3 (I 2696/2012) [2014] NAHCMD 177 (11 June 2014) per Ueitele J.4 (I 3792/2012 [2013] NAHCMD 348 922 October 2013) per Smuts J.5 Case No. 19161/2012 per Cloete J (Western Cape High Court).
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[12] In The Maize Board v F.H. Badenhorst and 18 Others6 the Orange Free State
Provincial Division, in dealing with the meaning of the word ‘convenience’ occurring in
the said rule referred to the judgment in Minister of Agriculture v Tongaat Group Ltd7
where the following was said:
‘The word “convenient” in the context of rule 33 (4) is not used I think, in the narrow
sense in which it is sometimes used to convey the notion of facility or ease or expedience. It
appears to be used to convey also the notion of appropriateness; the procedure would be
convenient if, in all the circumstances, it appeared to be fitting and fair to the parties concerned.’
[13] In the Fynbosland 355 CC case (supra), Cloete J stated the following at para
[11]:
‘Erasmus: Superior Court Practice at B1-98A-99 explains that the purpose of a
consolidation of actions under this rule is to have issues which are substantially similar tried at a
single hearing so as to avoid the disadvantages attendant upon a multiplicity of trials. The rule
makes provision for the consolidation of actions, not for the consolidation of issues. The
paramount test in regard to consolidation of actions is convenience. It was held in Mpotsha v
Road Accident Fund and Another 2004 (4) SA 696 (C) I-J that the word “convenient” connotes
not only facility or expedience or ease, but also appropriateness in the sense that in all the
circumstances it appears to be fitting and fair to the parties concerned. Consolidation will not be
ordered where there is the possibility of prejudice being suffered by any party. By prejudice in
this context is meant “substantial prejudice sufficient to cause the court to refuse a consolidation
of actions, even though the balance of convenience would favour it.’
[14] It therefore seems to me from the authorities cited above that the applicable
principles in cases where an application for consolidation of application or actions is
moved, include the following: first, the court acts pursuant to an application by one of
6 Application No: 3260/2001 per Hancke J.7 1976 (2) SA 357 (D) per Miller J at 363 C-D.
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the parties involved in the matter. An application, in terms of the rules is one that is
subject to the provisions of rule 65 (1), namely, one brought on notice of motion,
accompanied by an affidavit which will set out the basis for the relief sought. In this
regard, it appears that the court ordinarily has to wait for such applications to be moved
by or on behalf of one of the parties. This does not, however appear to me, to totally
exclude the court from putting it to the parties, in appropriate cases, to consider whether
or not the exigencies of the case do not call for a consolidation of the causes, although
this should on all accounts be very rare, if it does happen.
[15] I particularly mention the latter in recognition of the overriding objective of the
rules of court, being, namely, ‘to facilitate the resolution of the real issues in dispute
justly and speedily, efficiently and cost effectively as far as practicable . . .’ It would
appear to me that consolidation of actions or applications, as the case may well be,
answers to the speedy, efficient and cost effective resolution of disputes. If the court
were to fold its arms and remain passive when the issue of consolidation which is
necessary to deal with, is overlooked or not perceived by the parties, it would in my view
be remiss and would amount to abdication of responsibility by the court to allow its hand
to be withered merely on account of none of the parties raising the issue of
consolidation by way of application.
[16] Second, the court, in granting or refusing the application exercises a discretion.
In this regard, as it is often said with the exercise of discretion, the court must exercise
that discretion judiciously and judicially. It should not be exercised whimsically,
maliciously or capriciously. Thirdly, the issue of convenience occupies centre stage in
the enquiry. In this regard, the court should consider the matters sought to be
consolidated and come to a decision whether in all the circumstances, the dictates of
convenience do favour that the cases be consolidated. In doing so, the court should
weigh all the applicable factors and come to a consideration as to whether the balance
of convenience, regard had to the entire conspectus of the cases scream, not merely
whisper for a consolidation of same.
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[17] This court, in Mingeli v Oshakati Electric (Pty) Ltd8 dealt with the meaning of the
word ‘convenience’ occurring in the Practice Directives. That issue arose in respect to
the transfer of cases from one division of the court to another in terms of Practice
Directive 47. At paragraph [9] thereof, the court dealt with the issue of convenience in
the following terms:
‘I am of the considered view that the main reasons which should persuade the court and
inform a decision to transfer a case are two, namely “convenience” or “reasonableness” as
captured in the relevant provision of the Practice Directive quoted above. In either case, it would
seem to me, the court must make a value judgment, based on the entire conspectus of the
case. Claasen defines “convenience” as “not limited to expediency, efficacy and desirability, but
includes fairness, justice and reasonableness”. It therefore seems to me that the above epithets
should be taken into account in determining whether the requirements of convenience have
been met.’
[18] In view of the foregoing, it would appear to me that the concept of convenience
also encompasses elements of fairness, justice and reasonableness. These should be
taken into account in addition to those of expediency, efficacy and desirability. In other
words, the concept of convenience must take into account what is fair, just, reasonable
and expedient, not only to one but all or at the least, most of the parties. By parity of
reasoning, these sentiments should, in my view also apply in relation to the question of
the consideration of convenience as it relates to consolidation of actions or applications.
[19] Fourth, it seems that the issue of prejudice also weighs in the consideration. In
this regard, it appears that the issue of prejudice is the other side of the coin of the
epithets mentioned in the foregoing paragraph. If the court comes to the conclusion that
justice, fairness and reasonableness require the court to go in a certain direction in
relation to consolidation, that view should necessarily eschew prejudice enuring to any
of the parties. As will be seen the case law cited above, the prejudice alleged or proved
must not be slight, trifling or inconsequential in order to induce the court not to
8 (I 3683/2014 [2015] NAHCMD 45 (6 March 2015).
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consolidate the cases. It must therefore be substantial. From the Fynbosland case, it is
also clear that even where the dictates of convenience do call for matters to be
consolidated, if there is serious prejudice that may result from the consolidation, the
court will in all probability, not grant the order for consolidation.
[20] Importantly, in the Fynbosland case once again, the court clearly spelt out that
consolidation is ordered in appropriate cases where it sought to join actions and not
issues. I think this important because if issues qua issues were to be joined, there would
be a host of unrelated actions that are consolidated for no other reasons than that the
issues serving for decision are the same, even if the facts, circumstances and the
parties thereto bear no close or any relationship at all. To elevate issues to the level of
consolidation would cause chaos, uncertainty and frustration at the judicial process, if
not at the judicial institution itself.
[21] Having disposed of the legal issues, the stage appears to be now set and ready
for the application of the principles enunciated above to the factual situation of the two
cases sought to be consolidated. I should in this regard perhaps start with the first
application. The application was launched by the applicants against the above
respondents. In their notice of motion, the applicants seek an order from the court in the
following terms:
‘1. Declaring Rule 31 (5) (a) of the High Court unconstitutional and setting aside the
said Rule 31 (5) (a);
2. Declaring the additional directive by the Registrar in granting default judgment by
declaring immovable property specifically executable, unlawful and setting aside
the said unlawful act;
3. Setting aside the writ of ejectment in this matter as a nullity;
4. Directing that such Respondents electing to oppose the application pay the costs
of this Application.’
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[22] At the heart of the application, it would seem from the founding affidavit jointly
deposed to by both applicants, is immovable property described as Erf 4479,
Khomasdal, Windhoek, at the corner of Kroonweg and Dodge Streets. It would appear
that the property was purchased by the applicants through a mortgage bond obtained
from what was known as the South West African Building Society. The latter, it would
seem, on 8 November 2001, applied for a default judgment to be entered in its favour in
relation to the said property. This order appears to have been granted by the Registrar
of this court on 26 November 2001.
[23] It would further appear that the property was later advertised for sale at the
behest of the First National Bank, on behalf of the said Building Society. The property
was apparently sold by the Deputy Sheriff on 24 March 2005 to the 7 th and 8th
respondents. Following the sale, it would appear, were applications launched by the
applicants seeking to set aside the sale, which disputes went up to the Supreme Court.
It would therefore appear that the gravamen of the applicants’ case is that the
provisions of rule 31 (5) (a) which allowed the Registrar to issue default judgments were
unconstitutional. I need not examine the grounds upon which it is contended that the
said rule is unconstitutional at this stage as that shall form part of the main issue for
determination once the application is heard on the merits.
[24] In the second application, the applicants are the same and so are the
respondents, by and large. The only difference is that also cited are two legal
practitioners Messrs. Patrick Kauta and Loius Herbert Du Pisani cited as the 9 th and 10
respondents, respectively. It would appear from the affidavit that they have been cited in
relation to dealing with the property in question in their professional capacities on behalf
of their respective clients. The other new respondent is the Registrar of Deeds.
[25] Having regard to the founding affidavit, which is deposed to by the 1 st applicant,
at issue in this application is again the sale of the property in execution of a judgment of
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an order of this court. The property is that described in para [21] above. This property, it
would seem from the affidavit, was sold to the 7 th and 8th respondents, as had been
stated in relation to the earlier application. The nub of the constitutional complaint in the
second application is the exercise by the Registrar of powers to grant default judgments
in terms of the then rule 31 (5) (a), which is alleged to be in conflict with the provisions
of Article 78 of the Constitution of Namibia and that the Registrar in so granting the
default judgment, acted ‘ultra vires his or her competence when he made the order “that
the hypothecated property wit Erf 4479, Cnr. of Kroonweg & Dodge Streets, Khomasdal,
Windhoek under security with Plaintiff, be declared executable.”’9
[26] It is therefore abundantly clear that the parties in the matter are for all intents and
purposes the same. The factual and legal matrix of the issues for determination centre
around the constitutionality of the Registrar’s power to act in terms of the provisions of
the repealed rule 31 (5) (a) in relation to the very property which has been described
above. The date of the sale of the property and all the other details in relation to the sale
of the property are the same in both applications.
[27] I may mention that in the second application, there are a few prayers that were
added and which are not included in the first application. These include a declarator that
the ‘collusion’ of the respondents in the said actions to evict applicants and sell their
property in question an abuse of both the court and its procedures; ordering the 12 th
respondent to desist from transferring the said property and to reverse the transfer of
2005 in the name of the applicants; declaring the ‘collusion’ of respondents in the said
actions to evict the applicants and sell the property in question an abuse of both the
court and its procedures; declaring that the 10th respondent in particular undermined the
dignity and integrity of the court. It would therefore appear, objectively speaking, that
when the second application was moved, further developments in the case, namely
proceedings for the eviction of the applicants had taken place.
9 Para 14:12 of the affidavit of the 1st applicant in relation to the second application.
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[28] Save the foregoing, it is plain that the relief sought is largely the same and that
even the new prayers mentioned in the immediately foregoing paragraph hinge on the
court finding the provisions of rule 31 (5) (a) aforesaid unconstitutional. There can be no
better case where the balance of convenience dictate for a consolidation than the
instant case. To truncate the hearing of these two applications, which essentially involve
the same parties, by and large, the same cause of action and in respect of the same
property would not only be unjust and improper, but it would result in the unnecessary
escalation of costs, loss of valuable court time in dealing with the same issue and would
cause manifold inconveniences to all the parties. In short, it would be inconvenient to
the parties and the interests of justice not to consolidate these two application. Any
contrary order would, in my judgment, be perverse.
[29] Having regard to the foregoing, I am of the view that the considerations of justice,
fairness and reasonableness loudly proclaim and in unison that the two applications
should be joined, as I hereby do. I do not for a minute find that there is any prejudice
that would be suffered by any of the parties if an order for consolidation were to be
issued. In any event, none was suggested to me.
[30] I need to address one issue that arose during the hearing and it relates to the
filing of heads of argument. When I enquired from the applicants regarding why they did
not file their heads of argument as I had not had sight of them, the 1 st applicant stated
that as lay litigants, they were not expected to file heads of argument and that the
expectation was limited, as I understood him, to litigants who were legally represented.
[31] There is nothing in the rules or in the Practice Directives or even in court
practice, from my reading and experience in this jurisdiction that suggests, even
remotely that parties who are represented should be treated any differently from those
who are not.10 Heads of argument serve a very important and useful purpose, namely,
to alert the other side and the court as what argument will be advanced at the hearing
10 See for instance rule 131 (9) and (12) relating to filing of heads of argument and the respective periods for doing so.
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and what authorities will be relied upon to enable the one side to prepare to meet the
other’s case. In that way, the element of surprise and ambush is eliminated and the
court is served with a balanced meal, seasoned, as it were by prodigious efforts from
both parties. Where one party files heads of argument and the other does not, it leads to
unfairness and robs the court of fair and balanced argument on the case at hand.
[32] By way of example, Mr. Beukes, during argument in response to the application,
filed very pertinent and useful cases on consolidation and from which the court drew
some nuggets of wisdom and of which both the court and Mr. Khuphe were previously
unaware. Because these were not disclosed to the court and the other side in advance,
Mr. Khuphe had to engage in damage limitation by trying within a very short time
availed to him, to consider these judgments and to make quick responses to thereto. In
such cases, the court and justice become the major losers as only one side, the one
that did not disclose its heads of argument is placed in a privileged position. I would
therefore urge, for future purposes that this admonition be taken seriously as it will
result in fair and even-handed disposal of cases, with all parties having an equal
opportunity to try and persuade the court on their respective cases.
[33] The court will, as always, be reasonable and require of lay litigants to produce
heads equivalent to their educational and legal competence. Surely, it would be absurd
of the courts to expect properly and carefully manicured heads of argument to be filed
and ones at the same level expected of legal practitioners. The bottom line is that the
court and the other side would wish to see and benefit from what the said party wishes
to convey to the court in argument. I may even say from experience that I have
encountered some accused persons in criminal matters who lodged heads of argument
that in some cases left legal practitioners of long standing green with envy.
[34] In order to buttress the point I have made above, I wish to borrow from the wise
remarks expressed by this court in Hollard Insurance Company of Namibia Ltd v B J De
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Neyschen t/a Gecko Guest House11 where the learned presiding Judge said the
following at para [183] and [184] of the judgment:
‘In addition to these new developments it has in this jurisdiction, not become uncommon
that judges require the parties’ legal practitioners, appearing before them, also in a trial, to file
heads of argument, on a particular point, or in a particular interlocutory application and even in
support of closing argument at the end of the case. I know of no judge who would not welcome
heads of argument, particularly if they would be well-drawn and would have substance and
would be to the point. In a jurisdiction where judges are over-inundated with work, caused by an
ever-increasing case load, and were (sic) the public and justice demand that judgments be
delivered within a reasonable time – practically meaning actually that judgments should be
given as soon as would be humanly possible – and were (sic) judges are driven to also meet the
goals of case management – heads of argument constitute an important tool to alleviate the
workload imposed on judges in that it assists judges in their judgment delivery and thus meet
these demands.
[184] But the filing of heads of argument is not only to the advantage of judges alone. Also the
parties would obviously benefit from the written and structured aid afforded by properly drawn
heads, in support of oral argument. A judge and all counsel will be presumed to have read the
heads of argument by the time of the hearing – which are usually filed on behalf of the parties in
advance of oral argument – and all parties will thus come to court better equipped to deal with
oral argument and to raise and respond to pertinent question emanating therefrom. This does
not only facilitate succinct argument but also curtails court time, which may ultimately result in a
saving of legal costs.’
I would, in the light of the foregoing, encourage all parties to assist the court in carrying
out its difficult and lonely mandate by delivering on this very important arsenal in the
armoury of delivering timely justice.
[35] On the question of costs, Mr. Khuphe, out of the generosity of spirit, stated that
the applicant in this matter (being the 5 th respondent), would not insist on a prayer for
11 Case No. (I 147/201) [2013] NAHCMD 325 (12 November 2013)
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costs, and this appears to be in spite of the initial opposition to the application,
evidenced by the answering affidavit referred to earlier.
[36] In the result, I make the following order:
1. Case No. A 427/2013 is ordered to be consolidated with Case No. A 83/2014
and shall proceed as one application.
2. There shall be no order as to costs.
___________
T.S. Masuku
Judge
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APPEARANCES
APPLICANTS: Mr and Mrs Beukes
The first and second applicants In Person
RESPONDENTS: M. Khupe
Instructed by Government Attorney