Reportable

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

RULING

Case No: HC-MD-CIV-ACT-MAT-2017/03674

In the matter between:

B                                                                                                       APPLICANT/PLAINTIFF

and

B                                                                                             RESPONDENT/DEFENDANT

Neutral citation:      B v B (HC-MD-CIV-ACT-MAT-2017-03674) [2020] NAHCMD 316 (17 July 2020)

CORAM:        NDAUENDAPO

Heard:            7 July 2020

Delivered:     17 July 2020

ORDER

1.         The application is struck from the roll.

2.         There is no order as to costs.

JUDGMENT

NDAUENDAPO, J

Introduction

This is an application in terms of Rule 90 of the Rules of his Court.

[1]        By notice of motion, the applicant prays for an order in the following terms:

(a) Maintenance pendent lite for the applicant in the amount of N$34 260 per month;

(b)       Arrear maintenance, for the bond instalments, in the amount of N$411 120;

(c) Contribution towards the pending matrimonial action between the applicant and the respondent in the amount of N$300 000;

(d) Cost of this application if defended, such costs to include one of instructed and one of instructing counsel.

The respondent opposed the application.

[2]        The notice of motion is supported by an affidavit by the applicant.

In the affidavit she states that:

‘10. I pause to mention that of particular importance to this application is the fact that by virtue of the bond so registered over my immovable property the respondent always accepted the fact that he carried the burden and obligation for the repayment of the bond instalments.

11. However, he has since breached these obligations in that respect as a result of which I am compelled to launch this application. Essentially, and for reasons to be stated below and to be advanced by counsel during the course of legal argument I am currently facing my own financial demise as well as the fact that I will lose my residential property by virtue of this breach committed by the Respondent.’

Submissions by respondent

Points in limine

[3]        Counsel for the respondent raised four Points in limine:

She argued that the heads of argument of the applicant were filed late. The application for condonation is totally flawed as it is not detailed and does not explain the entire period of default. Further that the application for condonation fails to deal with the prospect of success on the merits.

[4]        Secondly, counsel argued that the substratum for Rule 90 has fallen away. In the founding affidavit the applicant is asking that the respondent reinstate the repayment of bond instalments on the immovable property but the immovable property was sold in execution, so there is no bond instalments to be paid.

[5]        Thirdly, counsel argued that the application does not comply with Rule 90(2). The supporting affidavit consists of 201 pages, only three and half pages concern maintenance and one page concerns legal contribution.  The bulk of the affidavit consists of irrelevant annexures and pages. The myriad of annexures attached only “P” and “O” concern maintenance. “P concerns” expenditure, “O” is a copy of salary slip, “R” concerns costs and “D” annexure of the POC. The rest of the annexures are annexures in the main divorce. Some of the annexures are in Afrikaans and should be disregarded. The bulky annexures are to overburden the court not to simplify the matters as envisaged by Rule 90(2).

[6]        Fourthly, counsel argued that the applicant did not come to court expeditiously. The last bond instalment payment was in December 2018 and she came to court only in November 2019, almost a year. It is impossible/incompetent to grant prayer (b) in the notice of motion as per Rule 90(1). Counsel further argued that prayer (c) is not allowed in terms of Rule 90(1)(b).

[7]        Relying on Stoman v Stoman ,[1] counsel argued the applicant should have made her case on the papers filed, but we do not have an application for maintenance pendete lite. Annexure “P” which supports her application is not clear and there are many question marks about her expenses. She earns a salary of N$10 000 and she did not take that into account. Counsel further argued that for all those reasons the application must be dismissed with costs. Unusual for court to make a costs in Rule 90 application, but in this case because of the bulky, irrelevant, documents in Afrikaans as a mark of disapproval court should grant costs on the scale of one instructing and one instructed counsel.

Submissions by applicant

[8]        Counsel argued that there is no opposition to the application to condone the late filling of the heads of argument. No opposing affidavit was filed and whatever prejudice there may have been, was cured by the postponement and the matter was postponed because counsel was booked off. Counsel conceded that the issue of prospects of success is not addressed in the condonation application.

[9]        Counsel further conceded that the attachment in Afrikaans should not have been attached and counsel has no quarrel if that is struck off. On the issue of rule 90(2) not being complied with, counsel argued that the documents set out the chronological events that led to the financial demise of the applicant. Counsel also agreed that the immovable property for which the bond instalments had been claimed had been sold. At the time the application was launched the house was not sold.

[10]      As far as contribution towards legal costs is concerned, counsel submitted that the lengthy attachments are but because of the circumstances as it existed. She is in need of the contribution towards legal costs.

Discussion

[11]      Rule 90 provides: The purpose of Rule 90 (old Rule 43) proceedings was captured in the words of Theron J in Colman v Colman[2] in which the learned judge said:

‘The whole spirit of Rule 43 seems to me to demand that there should be only a very brief statement by the applicant of the reasons why he or she is asking for the relief claimed and an equally succinct reply by the respondent and that the court is then to do its best to arrive expeditiously at a decision as to what order should be made pendent lite.’

[12]      In Stoman v Stoman[3] Hoff J as he then was stated the following with reference to other applicable authorities:

‘[30]     In Walenga one of the issues considered was to what extent an applicant or a respondent in Rule 43 applications should provide particulars or details of the allegations of fact. Van Niekerk J referred to decisions (Varkel v Varkel 1967 (4) SA 129 (C) at 132C-F; Smit v Smit 1978 (2) SA 720 (WLD; Zouendijk v Zouendijk 1975 (3) SA 490 (TPD)) where it was held that the applicant’s declarations should be a document containing a concise statement of the facts and conclusions of law on which the claim is founded with a statement of the relief sought and it was further held that this declaration is not supposed to contain unnecessary narrative and evidential facts intended to be adduced at the trial in support of the claim.”

[13]      The applicant’s application consists of 201 pages. The notice of motion consists of 3 pages; her sworn affidavit consists of 13 pages (of which only three and a half pages address her claim for interim maintenance and 1 page address her claim for a contribution to her legal costs. She has annexed 185 pages of annexures to the sworn reply. That is clearly against the spirit of rule 90.and not a very brief statement as envisaged by rule 90. In prayer (a) the applicant is claiming maintenance pendent lite in the amount of N$ 34 260. 00. Annexure “P” concerns the claim for maintenance. Some of the items (expenses) listed such as insurance and legal fees per month are in Afrikaans and have not been translated into English.

[14]      In prayer (b) the applicant is claiming “arrear maintenance”, for the bond instalments, in the sum of N$411,120. Rule 90(1) does not make provision for a claim for arrear maintenance for bond instalment.

[15]      Counsel for the respondent correctly argued that the applicant’s prayer (c) of her notice of motion is vague as she is claiming a contribution towards the pending matrimonial action between the applicant and the respondent in the amount of N$300,000. Rule 90(2) provides for contribution towards the costs of a pending matrimonial action.

Having regard to the above issues, the application is not proper before court and should be struck from the roll.

Order

1.         The application is struck from the roll.

2.         There is no order as to costs.

______________________

G N NDAUENDAPO

 Judge

APPEARANCES:

FOR THE PLAINTIFF/APPLICANT:                  C Coetzee

                               De Klerk Horn & Coetzee Inc) 

                                                                           Windhoek

FOR THE DEFENDANT/RESPONDENT:         A Harmse          

                                                                          (Fisher, Quarmby & Pfeifer) 

                                                                           Windhoek