Needless to say, the application is accompanied by a certificate of urgency and the founding affidavit of the second applicant, the contents of which are duly confirmed by the first applicant. [2] Unusually, also attached to the application is a document titled, “Notice of Intention” and appears to be an additional notice of motion as it sets out or rehashes the prayers the applicants move the court to grant, being to: (a) interpret Article 12 of the Constitution fair trial; (b) interpret Article 12 (1) (b) of the Namibian Constitution; (c) interpret Article 18 of the Namibian Constitution; (d) missing bail application proceedings and police docket in of CPA 51 of 1977; (e) that should the Honourable Court agree with the Applicants contention, that the Honourable Court should order the Respondents to acquit or withdraw the matter or grant bail pending the reconstruction of the missing proceedings of the proceedings at Katutura Regional Court. [3] It is perhaps appropriate, before commenting on some procedural issues that arise, to set the application in perspective by chronicling the facts alleged in the papers. The applicants are Namibian citizens who are presently facing a charge of robbery with aggravating circumstances. They allege that they were arrested on 19 May, 2008 and have remained in custody ever since. They allege further that they have appeared before various magistrates over the years and that certain documents and tapes crucial to their prosecution went missing and that these have hamstrung the commencement of their trial. [4] It would also appear from their affidavit that they have previously moved some applications for bail which were unsuccessful. They allege that they have previously refused to plead when called upon because of the failure by the prosecution to provide them with the documents and tapes they allege are missing. The prosecution joined issue and filed an affidavit deposed to by the Prosecutor General in which most of the trial
‘In an affidavit filed in support of an application under subrule (1), the applicant must set out explicitly – the circumstances which he or she avers render the matter urgent; and the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.’ [8] Before examining closely the requirements of this subrule, it is opportune to observe a few issues regarding the applicants’ application. First, the applicants, in their notice of motion, have alleged that the application is in terms of rule 6 (12) of the rules of the High Court. It is now common cause that the said rule was repealed and has been renumbered to be rule 73 in the new rules of court. I should hasten to mention though that the relevant part of the rule referred to in this matter and which forms the pivot or axis on which this argument turns, has not been changed. The nomenclature by and large remains the same. I do however take note of the notorious fact that the applicants are unrepresented litigants who are unlettered in law and it would be an exercise in sterile and fastidious formalism to dismiss or refuse the application on no other grounds than that the wrong rule has been cited. The second respondent also did not support that drastic approach. [9] In the premises, I will consider the application as though the correct rule had been cited, considering in particular, as mentioned earlier, that the substance of the relevant language remains largely undisturbed notwithstanding the repeal. It only remains for me to remind and exhort litigants, including lay litigants that they should ensure that they bring applications or other proceedings in terms of the relevant rules of court or legislation, as the case may be. This is so because courts will not always be charitable and entertain applications brought in terms of laws that have either been amended or repealed. There may be cases where courts may not be able to come to the assistance of lay litigants in this regard. [10] Second, the document referred to in the applicants’ application as a ‘Notice of Intention’ is not provided for in the rules of court. It is in fact unnecessary. The relief sought from the court must be clearly and unambiguously stated in the notice of motion.
that an applicant who creates the urgency either in bad faith or through his or her culpable remissness or inaction cannot be granted refuge under these provisions. Similar sentiments were stated by Damaseb J.P., in Mulopo v Minister of Home Affairs. The learned J.P. stated the following: ‘The Court has already warned that it will act sternly against those who come to this Court on self-created urgency.’ [20] In similar vein, in The President of the Court of Appeal (Justice Michael Mathealira Ramodibedi) v The Prime Minister (Dr. Motsoahae Thomas Thabane) And Others the Constitutional Court of Lesotho held that the applicant in that matter had created the urgency by being inactive and doing nothing until he suddenly approached the court on urgency to try to stop impeachment proceedings initiated against him. Importantly, the court made reference to the Lesotho High Court case of Marumo v National Executive Committee and Others where it was held as follows: ‘Urgency is not a hat that one can put on or off at one’s convenience. Urgency is a condition imposed upon by reasons of circumstances beyond his or her control . . .’ The issue could not have been better put. It would appear to me that there are no circumstances pleaded in this case which can be said to be beyond the applicants’ control. [21] In the instant case, it would seem to me, there is nothing alleged that has happened in recent days or weeks to suddenly create the urgency alleged. For lack of a better word, there must, in such circumstances be a “trigger” that activates the urgency as it were and signify that although the waters were previously calm, some violent tempest must have intervened to stir the waters and create panic, being the urgency. In this case there appears to be no trigger at all. It is of course a matter of grave concern to this court that the applicants have been in custody for such a long time but the reasons for this state of affairs are the subject of serious disputes with a cross fire of accusations and counter-accusations and which may not, from present indications, be easily resolved on motion proceedings.