Standard Bank (Namibia) Ltd v Muukua () [2020] NAHCMD 309 (23 July 2020);
Civil Procedure – Rule 108 – where unopposed – the proper approach of the court.
Serving before court was an application for the declaration of certain property specially executable. The application was opposed but the respondent did not, as ordered by the court, file his answering affidavit. The court considered the application, together with the fact that the respondent did not file his affidavit and further did not apply for condonation of his non-compliance with the order of court issued in that regard.
Held: that applications in terms of rule 108 are viewed by the courts in a serious light because once granted, they have the potential to render the respondent without a roof over his or her head. For that reason, the court prefers to render written reasons for the judgment issued.
Held that: the fact that an application in terms of rule 108 may not be opposed does not mean that the court will grant the application merely for the asking. The court is bounden in duty, to ensure that the papers before it filed in support of the application, are technically correct and also rule-compliant.
Held further that: the respondent in this case did not comply with an order of court directing him to file his answering affidavit and as such reasons why the order prayed for could not be granted, were not advanced by the respondent.
Held: that furthermore, after realising his non-compliance, the respondent did not file an application for condonation of the non-compliance, the court noting that the respondent was represented at the critical stages of the matter.
The court held that the applicant’s papers were technically in order and that there was no reason for the application not to be granted. The application in terms of rule 108 was thus granted with costs in favour of the applicant.
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
JUDGMENT
HC-CIV-MD-ACT-CON-2017/00457
In the matter between:
STANDARD BANK NAMIBIA LIMITED APPLICANT
and
NELSON VERINAO MUUKUA RESPONDENT
Neutral Citation: Standard Bank (Namibia) Ltd v Muukua (HC-CIV-MD-ACT-CON-2017/00457) [2020] NAHCMD 309 (23 July 2020).
CORAM: MASUKU J
Heard: On the papers
Delivered: 23 July 2020
ORDER
- An order in favour of the Applicant, declaring the property described below as specially executable is hereby granted, namely:
A unit consisting of –
- Section No. 10 as shown and more fully described on Sectional Plan No. SS 26/2016 in the development scheme known as D SQUARE COURT in respect of the land and building or buildings situated at ERF NO. 2268 OTJUMUISE (EXTENSION NO. 4) in the Municipality of Windhoek, Khomas Region, of which the floor area according to the said Sectional Plan is 102 (One Hundred and Two) Square Metres in extent; and
- An undivided share in the common property in the development scheme apportioned to the said section in accordance with the participation quota as endorsed on the said sectional plan
Held by Sectional Deed of Transfer No. ST 50/2017, SUBJECT to such conditions as set out in the aforesaid Title Deed.
- The Respondent is ordered to pay the costs of the application.
- The matter is removed from the roll and is regarded as finalised.
JUDGMENT
MASUKU J:
Introduction
[1] This is an unopposed application for the granting of an order, in terms of rule 108, declaring certain property, to be described shortly, specially executable. This is a matter with a relatively short but eventful history as will become evident as the judgment unfolds in earnest.
[2] The question might arise from an enquiring mind as to why a judgment is necessary to be written in this matter, seeing that the application is strictly speaking unopposed. The answer to this question lies in the fact that this court regards applications in terms of rule 108 very serious, as they have the potential, to render respondents and their families without a roof over their heads. When such drastic measures are taken by the court, in compliance with the law, it is not only ideal but also appropriate that the court should proffer its reasons. I do so in this matter.
Background
[3] This is an application, as indicated above, brought by Standard Bank (Namibia) Limited, the applicant against the respondent, Mr. Muukua, for an order declaring property specially executable. The said property is described as a unit of Section No.10 as shown and more fully described on Sectional Plan No. SS 26/2016 in the development scheme known as D SQUARE COURT, situated at Erf. No. 2268 OTJUMUISE (Extension No. 4) in the Municipality of Windhoek, Khomas Region, measuring 102 square metres and an undivided share in the common property in the development scheme apportioned to the said section in accordance with the participation quota as endorsed sectional plan, held by Sectional Deed of Transfer No. ST 50/2017.
[4] The application is a sequel to a default judgment issued by this court against the respondent in favour of the applicant on 7 March 2018, for payment of an amount of N$ 976 841.83 and costs on the attorney and client scale. A nulla bona return, reflecting that there was no movable property that could be found to satisfy the amount of the writ, was issued on 29 March 2019. This paved the way for the applicant to move the present application.
[5] The present application was launched on 3 May 2019 and was duly accompanied by a founding affidavit deposed to by Mr. Nolan William Christians, a responsible employee of the applicant. The application, together with its annexures, was personally served on the respondent on 29 March 2019.
[6] As he was entitled to, the respondent filed a notice of intention to oppose the granting of the application. The matter was thereafter struck from the roll for non-compliance by the applicant with the practice directions. It was subsequently re-enrolled pursuant to an application by the applicant by Ndauendapo J on 8 November 2019.
[7] In his aforestated order, the learned Judge placed the parties to terms. The respondent was directed to file his opposing affidavits on or before 15 November 2019 and the applicant was to file its replying affidavit, (erroneously referred to as the answering affidavit in the said order), on 22 November 2019. The applicant was further ordered to file its heads of argument on 28 November and the respondent, the following day, namely, 29 November 2019. The matter was postponed for hearing on the residual roll on 6 December 2019.
[8] Alas! The matter was once again struck from the roll in chambers on 5 December 2019 for non-compliance with PD 58(4)(b). It was again re-enrolled by order of court dated19 March 2020, at the applicant’s behest. It is fitting to mention that the applicant did comply with the court order regarding the filing of its heads of argument.
[9] It is however important to point out that the respondent did not comply with the order of Ndauendapo J. He did not file his answering affidavit as ordered and also did not file his heads of argument in line with the court order. It is for that reason that the matter is unopposed. In this regard mention should be made of the fact that the respondent seems to have parted ways with his legal practitioners on two separate occasions. While represented, there was no application filed on his behalf for the non-compliance with the order of 8 November 2019. He remains in default of the said order as we speak.
Discussion
[10] In the absence of any papers filed in opposition by the respondent, the court is left to consider the matter on the papers filed by the applicant. In the circumstances, the court is not able to exercise any discretion in carrying out what is referred to as judicial oversight in this matter. This is because the respondent has placed no material before court for consideration in the exercise of the court’s discretion.
[11] Applications in terms of rule 108 cannot, even in the absence of opposing papers by the respondent cannot be granted merely for the asking by the applicant. The court is in bounden duty to ensure that the application filed is technically in order and more importantly, that it is rule-compliant.
[12] I have carefully gone through the papers in the present matter and I am satisfied that the provisions of rule 108 were religiously followed and to the letter. As mentioned above , there was personal service of the application on the respondent. Furthermore, a nulla bona return was filed. The proverbial ball was served into the respondent’s hands and he dropped it by not filing his answering affidavit as ordered by the court.
[13] I take particular notice that the respondent was represented both at the default judgment stage and at the rule 108 stage as well. Metcalfe Attorneys were his legal practitioners at the default judgment stage and F.B. Law Chambers represented him at the rule 108 stage. It is at the latter stage where he dropped the ball leading to this application. As pointed out earlier, he has, despite having counsel in his corner, not brought an application for condonation, which may perchance, have afforded him an opportunity to belatedly file an affidavit and seek to stave the process of execution at this juncture.
[14] I am, in the present circumstances, of the considered view that there is nothing placed before me that can serve to prevent the granting of the application in terms of rule 108. The respondent had an opportunity to place material before court to prevent that eventuality but he did not take advantage of that golden chance. As the papers are technically in order, there is nothing, in the premises, that would prevent the court from granting the order as prayed.
[15] It should be pertinently mentioned that F.B. Law Chambers withdrew as the respondent’s legal practitioners of record by notice of withdrawal dated 17 June 2020, which was uploaded on eJustice on 2 July 2020. I am of the considered view that the notice of withdrawal, which does not appear to have been served on the respondent in any event, is of no moment.
[16] It is of no moment, for the reason that the matter was postponed by the court on 14 May 2020, for judgment on the rule 108 application. At the time the notice of withdrawal was issued by F.B. Law Chambers, judgment in the matter had already been reserved and as stated above, the respondent, in any event, stood in non-compliance with the court order dated 8 November 2019 for months on end.
Order
[17] In view of the issues discussed above, it would appear that the proper order to issue in the circumstances, is the following:
- An order in favour of the Applicant, declaring the property described below as specially executable is hereby granted, namely:
A unit consisting of –
- Section No. 10 as shown and more fully described on Sectional Plan No. SS 26/2016 in the development scheme known as D SQUARE COURT in respect of the land and building or buildings situated at ERF NO. 2268 OTJUMUISE (EXTENSION NO. 4) in the Municipality of Windhoek, Khomas Region, of which the floor area according to the said Sectional Plan is 102 (One Hundred and Two) Square Metres in extent; and
- An undivided share in the common property in the development scheme apportioned to the said section in accordance with the participation quota as endorsed on the said sectional plan
Held by Sectional Deed of Transfer No. ST 50/2017, SUBJECT to such conditions as set out in the aforesaid Title Deed.
- The Respondent is ordered to pay the costs of the application.
- The matter is removed from the roll and is regarded as finalised.
____________
T.S. Masuku
Judge
APPEARANCES:
APPLICANT: M. Kuzeeko
Of Dr Weder, Kauta & Hoveka Inc.
Windhoek
RESPONDENT: No Appearance