| |
JUDGMENT
DELIVERED BY THE PRESIDENT OF THE TRIBUNAL H.E. JUSTICE ARIRANGA G. PILLAY
[1] This is an application for a decision in default brought in terms of
Article 25 of the Protocol on Tribunal (the Protocol) read with Rule 68 of
the Rules of Procedure of SADC Tribunal (the Rules). The Applicant seeks an
order in the following terms:
“That the Government of the Democratic Republic of Congo (DRC) be ordered to
pay:
1. Damages to the Applicant in the sum of US$1,988 079.49 per annexure BT19
2. Costs of the suit at Attorney Client scale
3. 10% interest from October 2006 to May 2007
4. Further and/ or any alternative relief.”
[2] The application was filed with the Office of the Registrar on 29 August
2008. It was served on the Respondent through its Embassy in Lusaka, Zambia
on 2 November 2008. However, the Respondent failed to file a defence to the
application as required by Rule 36(1) of the Rules, which provides as
follows:
“The respondent shall file a defence within thirty (30) days of service of
the application or notification stating:
a) the name and address of the Respondent;
b) the name and address of the Respondent’s agent;
c) arguments of facts relied upon;
d) the form of Order sought by the Respondent;
e) the nature of any evidence offered by him or her or it in defence.”
[3] As a result of the Respondent’s failure to file a defence, the Applicant
made an application for a default decision. The hearing of the application
was set down for 17 July 2009.
[4] On 17 July 2009 when the application was about to be heard, the
Respondent’s agent appeared and raised a preliminary objection to the
application. He argued that the Respondent had never received the
application initiating proceedings. The record, however, shows that the
application had been served on the Respondent through its Embassy in Zambia
on 2 November 2008. The Tribunal then ordered that the Respondent should be
served with the application through its Embassy in Windhoek, Namibia on the
same day, that is, 17 July 2009. Service of the application was effected in
accordance with Rule 83(1) (a) of the Rules, which states as follows:
“Any notice or other document which is required to be served by these Rules
shall be served by registered post with a form for acknowledgment of receipt
or by personal delivery of the copy against a receipt.”
[5] Moreover, the application was also served personally on the Respondent’s
Agent at the Tribunal who promised to give a response thereto. However,
again, the Respondent failed to respond or file any defence to the
application.
[6] The application for a default decision was again set down for hearing on
25 March 2010. Agents for both parties were present at the hearing. Before
the Agents made their submissions, the Respondent’s Agents raised three
preliminary points. Firstly, they argued that the Applicant is not a legal
person capable of bringing an application before the Tribunal as provided
for in the Protocol. Secondly, the Agents argued that the Applicant had not
exhausted local remedies either in the DRC or Botswana. Thirdly, the
Respondent’s Agents challenged the amount of US$1, 988 079.49 claimed by the
Applicant. They argued that the amount is exaggerated and is not
commensurate with damages caused to the Applicant.
[7] We wish to note at this stage that it is clear to us that the
application has been filed and served on the Respondent by the Applicant in
accordance with the Rules. However, the Respondent did not file its defence
to the application.
[8] The power of the Tribunal to grant default decisions is provided for
under the Protocol and the Rules. In terms of Article 25 of the Protocol:
“1. The Tribunal may give a decision in default.
2. Before giving such a decision the Tribunal shall satisfy itself that it
has jurisdiction over the dispute and that the claim is well-founded in fact
and law.
3. A party against whom a default decision is made may apply to the Tribunal
for the rescission of such decision. The Applicant shall set out the ground
for such application.”
[9] Further, Rule 68 of the Rules provides as follows:
“1. Where a respondent on whom an application initiating Proceedings has
been duly served fails to file a defence to the application in the proper
form within the time prescribed in the Rules, the applicant may apply for a
decision in default.
2. The application shall be served on the respondent and the President shall
fix the date for the hearing of the application.
3. (a) Before granting the application, the Tribunal must be satisfied that
the application initiating proceedings is properly before it, discloses a
cause of action and that appropriate formalities have been complied with.
(b) ....”
[10] It is clear from both Article 25 of the Protocol and Rule 68 of the
Rules that the Tribunal has the power to grant default decisions. Before
granting a default decision, however, the Tribunal must satisfy itself of
the following: firstly, that it has the jurisdiction over the dispute or
that the application is properly before it; secondly, that the claim is
well-founded in fact and law or that it discloses a cause of action;
thirdly, that the application for a decision in default is in the proper
form within the time prescribed in the Rules, and fourthly, that the
appropriate formalities have been complied with.
[11] The first issue that the Tribunal should decide is whether it has
jurisdiction over the dispute. The issue of jurisdiction is regulated by
Article 15 (1) of the Protocol, which provides as follows:
“The Tribunal shall have jurisdiction over disputes between Member States,
and between natural and legal persons and Member States.”
[12] The Applicant is not a natural person. It is a legal person
incorporated under the Laws of Botswana (Doc.BT3) and has brought an action
against the Respondent, which is a Member State of SADC. This application,
therefore, concerns a legal person and a Member State and as such falls
within the ambit of Article 15(1) of the Protocol.
[13] Furthermore, Article 15(2) of the Protocol provides as follows:
“No natural or legal person shall bring an action against a Member State
unless he or she has exhausted all available remedies or is unable to
proceed under the domestic jurisdiction.”
[14] It should be noted that, although we raise the issue of exhaustion of
local remedies in so far as it is germane as to whether the Tribunal has
jurisdiction to hear the application, the Respondent has also raised it in
its preliminary objection.
[15] The Applicant’s representative had stated in paragraph 13 of his
Founding Affidavit as follows:
“I aver that all available avenues within DRC legal system were exhausted
and nothing fruitful was achieved even diplomatic channels also failed.”
[16] The Applicant’s representative also went on to state that after the
Applicant’s truck and trailer were impounded by the Congolese Control
Officers, he lodged a complaint with the Attorney General at the High Court
in DRC. The Attorney General advised him to contact a lawyer for assistance.
The Attorney General even called a lawyer for the Applicant by the name of
Eric Mumwena Kasongo of Muyabo & Associates. The services of one Mr. Eric
Kasongo were hired by the Applicant to get its truck and trailer released
from the Congolese Control Officers. However, the truck and trailer were not
released but sold at a public auction. Thereafter, the Applicant tried in
vain to contact Mr. Eric Kasongo for legal assistance and instructed another
lawyer by the name of one Mr. Vital Mbuyo Kinanzula who did nothing.
[17] The Applicant’s representative further averred that the problem was
compounded by the fact that the legal system of the Respondent uses French
as its official language, which he does not speak and every time he needed
documents to be translated into English he had to pay, which proved a costly
affair.
[18] Further, the Applicant’s representative stated in paragraph 12 of his
Founding Affidavit that:
“I aver that at one stage I was informed by my lawyer, Eric to pay him some
money so that he can in turn pay judges and other judicial officers. I
refused to do that and I believe that my case failed to go through the
system because of my refusal to pay the authorities.”
[19] Finally, the Applicant’s representative stated in his Founding
Affidavit that he contacted the Ministry of Foreign Affairs in Botswana
which in its turn contacted the Embassy of the Respondent in Lusaka and the
South African Consulate in the DRC but to no avail.
[20] Clearly, there is evidence supported by documents that the Applicant
tried to utilize the legal system of the Respondent to have its truck and
trailer released but was unsuccessful. It even tried to use the diplomatic
channels available but was equally unsuccessful. It was clearly unable to
proceed under the domestic legal system of the Respondent. In Mike Campbell
(PVT) Ltd v The Republic of Zimbabwe SADC (T) 2/2007, the Tribunal observed
at p. 21:
“However, where the municipal law does not offer any remedy or the remedy
that is offered is ineffective, the individual is not required to exhaust
the local remedies. ... These are circumstances that make the requirement of
exhaustion of local remedies meaningless, in which case the individual can
lodge a case with the international tribunal.”
[21] Consequently, the Tribunal considers that the Applicant has tried
unsuccessfully to obtain redress under the municipal legal system of the
Respondent. The Tribunal, therefore, holds that it has the jurisdiction to
entertain the application.
[22] Article 25 of the Protocol and Rule 68 of the Rules also require that
the Tribunal should satisfy itself that the claim is well-founded in fact
and in law. This means that the application should have both a factual and
legal basis.
[23] The application brought against the Respondent is a claim for damages
in the sum of US$1, 988 079.49. The damages arose from the unlawful seizure
and sale by public auction of the Applicant’s truck and trailer by the
Respondent’s Control Officers in Lubumbashi in the DRC. The circumstances
relating to the unlawful seizure and sale of the truck and trailer and the
costs incurred by the Applicant relating to such seizure and sale are spelt
out in the Founding Affidavit of the Applicant’s Representative. The
Respondent did not file any defence challenging the unlawful seizure and
sale of the Applicant’s truck and trailer and the costs incurred by the
Applicant relating to such seizure and sale. We consider that the
Applicant’s claim is well-founded in law and fact, as envisaged by Article
25 of the Protocol as read with Rule 68 of the Rules.
[24] With regard to the issue of formalities for initiating an application
as laid down in Rule 32 of the Rules, we are satisfied on the record before
us that they have been complied with by the Applicant. Rule 35 deals with
service of applications and notifications. It provides in paragraph 1 that
the Registrar shall transmit a certified copy of the application to the
Respondent. Rule 35 (1) is complemented by Rule 83(1) (a) which provides
that service of notice or document required to be served under the Rules
shall be served by registered post with a form or acknowledgement of
receipt.
[25] It is abundantly clear, from the record before us that the application
was initially served on the Respondent through its Embassy in Zambia on 2
November 2008, as indicated already. The application was also served on the
Respondent’s Agent at the Tribunal when he appeared to argue the case, on 17
July 2009. The application was subsequently served on the Respondent through
its Embassy in Namibia on the same day.
[26] The last issue that remains to be decided is whether the Applicant is
entitled to the amount of damages it has claimed. It was argued on behalf of
the Respondent that the Applicant’s claim was exaggerated and that the true
value of the truck and trailer of the Applicant was estimated by an
insurance company in April 2007 at US$25,000. It was further contended that
the truck and trailer had been in operation since 1996 and there was no
basis for the Applicant’s claim.
[27] We note, however, that the Respondent did not adduce any evidence to
substantiate the argument of its Counsel that the Applicant’s claim was
exaggerated or to indicate the value of the truck and trailer at the time
they were impounded by the agents of the Respondent. We also note that the
Applicant had later recovered its truck, which was damaged due to constant
use but that its trailer had never been found.
[28] In the circumstances, the Tribunal holds that the Applicant is entitled
to a default decision in terms of Article 25 of the Protocol and Rule 68 of
the Rules.
[29] We therefore make the following orders:
1) The Respondent shall pay damages to the Applicant in respect of its truck
and trailer and such damages are to be assessed by the Registrar.
2) The Respondent shall pay legal interest on such damages.
[30] With regard to costs, we shall first refer to Rule 78 of the Rules.
Rule 78 provides as follows:
“1. Each party to the proceedings shall pay its own legal costs.
2. The Tribunal may, in exceptional circumstances, order a party to the
proceedings to pay costs incurred by the other party.”
[31] In terms of Rule 78, each party bears its own costs except where there
are exceptional circumstances warranting the grant of costs, in the
interests of justice, against a party.
[32] We consider that there are exceptional circumstances on the particular
facts of the present case justifying the award of costs to the Applicant in
the interests of justice. We have taken into account, in this respect,
especially the fact that the Applicant has had to suffer prejudice and
material damages when its truck and trailer were unlawfully impounded in
October 2006 by the agents of the Respondent and that the Respondent tried
all means of delaying tactics to prevent the Applicant from getting a
decision from the Tribunal. We accordingly award costs to the Applicant
under Rule 78(2) of the Rules. The costs are to be determined by the
Registrar in case of disagreement between the parties.
Delivered in open court this 11th day of June 2010, at Windhoek in the
Republic of Namibia.
|
|
