Court name
High Court Main Division
Title

V5 Farming Boerdery CC v Teachers Union of Namibia () [2020] NAHCMD 388 (14 August 2020);

Media neutral citation
[2020] NAHCMD 388

“ANNEXURE 11”

IN THE HIGH COURT OF NAMIBIA

(TO THE SUPREME COURT OF NAMIBIA)

 

Case Title:

V5 FARMING BOERDERY CC V TEACHERS UNION OF NAMIBIA AND TWO OTHERS

Case No:

HC-MD-CIV-MOT-EXP-2020/00233

Division of Court:

HIGH COURT (MAIN DIVISION)

Heard before:

Honourable Mrs Justice Rakow, AJ

Date of hearing:

29 July 2020

Date of order:

14 August 2020

Neutral citation:

V5 Farming Boerdery CC v Teachers Union of Namibia (HC-MD-CIV-MOT-EXP-2020/00233) [2020] NAHCMD 388 (14 August 2020)

Having read the record of proceedings as well as submissions made by counsels for the applicant and the respondents:

IT IS HEREBY ORDERED THAT:

a)   The rule nisi relief granted by the Angula J on 21 July 2020  granting the applicant leave to access the premises situated at Erf 3083, Ranonkel Street,Khomasdal for the exclusive purpose of only removing its perishable goods, is hereby confirmed.

 

b)   The respondents are interdicted and restrained from unlawfully interfering with the applicant in removing its movable butchery equiptment from Erf 3083, Ranonkel Street, Khomasdal, Windhoek. This butchery equipment shall not include fixtures, especially the cold room and the airconditioners.

 

c)   Cost is granted to the applicant, to include costs of one instructing and one instructed council.

 

 

Reasons for orders:

Introduction

[1]       The Applicant initially approached this court on an ex parte basis with an urgent application seeking a rule nisi order calling on the respondnet to show cause, if any, why the following order should not be made final, namely:

 

[1.1]      The first and/or third respondents should restore peaceful and undistrubed possession and access to the applicant’s immoveable goods situated at Erf 3083 Ranonkel Street, Khomasdal; and that first respondent be directed to remove all chains and locks placed on the enterance gate to the buchery situated at the aforsaid address.

 

[1.2]    The respondents are interdicted and restrained from unlwfully interfering with the applicant in removing its moveable goods from Erf 3083 Ranonkel Street, Khomasdal, Windhoek, Republic of Namibia;

 

[1.3]       The applicant is autorized to access the butchery situated at Erf 3083 Ranonkel Street, Khomasdal, Windhoek, Republic of Namibia for the purpose of removing its stock in trade and equiptment.

 

[2]     The relief contained above was to operate as interm relief with immediate effect, pending the finalization of this application.   The initial application was heard by Justice Angula and he made the following order:

 

‘1.  That the non – compliance with the rules of the High Court of Namibia is condoned as envisaged in Rule 73(3) of the aforesaid rules and that this matter is heard as an urgent matter.

 

2.   A rule nisi is hereby issued, calling upon the respondents to show cause why the order in para. 2, below should not be made final on the return date, being 29 July 2020 at 11:00:

 

      2.1   Applicant is granted leave to access the premises situated at Erf 3083, Ranonkel Street, Khomasdal for the exclusive purpose of only removing its perishable goods.

 

     2.2     The respondents are interdicted and restrained from unlawfully interfering with the applicant in

removing its moveable goods from Erf 3083, Ranonkel Street, Khomasdal, Windhoek, Republic of Namibia.

 

     2.3     The respondents' attention is drawn to the provisions of Rule 72(7) which entitles them to anticipate the rule nisi on not less than 24 hours notice to the applicant.

 

3.  The application is in respect of the following relief

     3.1   The first and/or third respondents should restore peaceful and undisturbed possession and access to the applicant's immoveable goods situated at Erf 3083, Ranonkel Street, Khomasdal; and that first respondent be directed to remove all chains and locks placed on the entrance gate to the butchery situated at the aforesaid address.

 

    3.2   The applicant is authorized to access the butchery situated at Erf 3083, Ranonkel Street, Khomasdal, Windhoek, Republic of Namibia for the purpose of removing its equipment.

 

4. The respondents are directed, should they wish to oppose the relief sought, to file their notices of intention to oppose on or before Thursday 24 July 2020 and answering papers, if any, on or before Monday, 27 July 2020. The applicant may reply thereto on or before Tuesday 28 July 2020.

 

5. The deputy – Sheriff is authorized and directed to serve a copy of this order on the first respondent by way of email at kamuhanga@khslawinc.com and tun@mweb.com.na and personally on the second and third respondents.

 

6. Ordering the respondents, in the event of opposition, to pay the costs of this application, including the costs of one instructing and one instructed legal practitioners.

 

7. The case is postponed to 29/07/2020 at 11:00 for the Urgent Application hearing before Rakow, AJ (Reason: For respondents to be served and for hearing).’

 

[3]       Angula DJP therefore only granted a small part of the relief that was sought and proceeded to give timelines for managing the case.  This included an order as to before when the respondents are to file any notice to oppose as well as their opposing papers. The first respondent indicated his intention to oppose the relief the applicant sought, and the second and third respondents did not oppose the application. They filed their intention to oppose on 22 July 2020.  They however only filed their answering affidavit and subsequent supporting affidavits on 28 July 2020 instead as directed to do on 27 July 2020.  This was then also raised in limine by the applicant as it effectively meant that the respondent is barred from the proceedings unless the court condones the late filing. In this instance there was no application from the first respondent asking the court to condone the late filing and as such, the first respondent remained barred from the proceedings.

 

[4]      It further seems from the arguments put up by the applicant, that they were only interested in recovering the movable butchery equipment still within the premises of the first respondent and no longer in being placed in undisturbed possession of the premises. 

 

Background

[5]           The applicant is the Lessor of an immoveable property situated at Erf 3083 Ranonkel Street Windhoek, which property is being operated as a butchery.  This rental is governed by a rental agreement between the applicant and the first respondent’s agents that expired on 31 April 2020 (sic) which is presumably a typo in the contract.  From the papers it seems that the applicant did not indicate in writing, as per the contract, that they intend to extend the lease and was then informed that the lease will terminate end of April 2020.  Some correspondance followed between the legal practitioners of the parties and it was eventually agreed that the premises will be vacated by 15 July 2020 although there seems to be on the side of the applicant an indication that they might have intended to remain on the premises, which was then abandoned during this application. 

 

[6]       It appears from the papers that the business V5 Farming Boerdery CC during 2018-2019 operated the butchery in a joint venture with Greensquare Investment CC, of which the second respondent was the sole member.  The previous rental agreements with the first respondent appears not to have been in the name of V5 Farming Boerdery CC.  It appears that the joint venture between V5 Farming Boerdery CC and Greensquare Investments CC came to an end during October 2018 and that V5 Farming Boerdery CC purchased the movable goods constituting of the butchery equipment for the purchase price of N$600 000. 

 

[7]       During email correspondence between the applicant’s legal practitioners and the first respondent’s legal practitioners on 11 June 2020 the issue of an inventory was raised.  The first respondent wanted to have the second respondent present when the inventory was done as he seemingly had some interest in the inventory that was drawn up.  The applicant’s response was that the inventory can be taken after they vacated the premises.  Items contained on the inventory list that was also forwarded to the applicant, are items like a cold room, 6 channel DVR system, 2 x 220 litre deep freezers, 1 x 110 deep freeze, display unit, meat cutting machine, scales, etc. According to the letter accompanying the inventory from the legal practitioners of the first respondent, it seems that Mr. Gaya, the third  respondent illegally sub-let the premises and therefore needed to be present as the inventory list was signed by Mr. Gaya during the initial rental. On the papers it therefore appears that there might be a dispute regarding the ownership of at least some of the butchery equipment. 

 

[8]          On 6 July 2020, Mr Gaya, the third respondent informed the production manager of the applicant that none of the butchery equipment should be removed as it belongs to him.  On 15 July 2020 at about 11h00 representatives of the first respondent attended to the butchery premises and demanded that the premises be locked.  The employees of the applicant were then forcefully removed from the premises and the entrance was locked. Initially there was meat products in the butchery to the value of N$130 00 and equipment to the value of N$400 000. 

 

Spoliation

[9]      It has been held that ‘the essence of the mandament van spolie is the restoration, before all else, of unlawfully deprived possession to the possessor.  The spoliation order is meant to prevent the taking of possession otherwise than in accordance with the law.  The main purpose of the relief is to preserve public order by restraining persons from taking the law into their own hands and by inducing them to follow due process’[1]

 

[10]        Paker AJ in Witvlei Meat (Pty) Ltd v Agricultural Bank of Namibia,[2] stated as follows about mandament van spolie and what applicant for a spoliation order should establish in order to succeed:

 

            ‘It is trite that an applicant for a spoliation order must first and foremost establish that he or she was in peaceful and undisturbed possession of the thing in question at the time he or she was illicitly deprived of such possession. That is all that an applicant must establish in order to succeed. (Kuiiri and Another v Kandjoze and Others 2007 (2) NR 747 (HC) para 9.) And such possession is not merely ‘possession’ simpliciter: it is ‘peaceful and undisturbed possession’. (Kuiiri loc cit, applying a dictum in Mbangi and Others v Dobsonville City Council 1991 (2) (SA) 330 (W) at 335H-I.)  “

 

[11]         For the applicant to be successful in bringing the spoliation application to be restored in possession of the butchery equipment, it has to show that it was in possession of the property at the time that possession was deprived and that it was wrongfully deprived of such possession. In this instance the first respondent had no accompanying court order to deny the applicant access to the premises or to attach the equipment inside the premises.  The two requirements were therefore met and the court makes the following order:

 

a)   The rule nisi relief granted by the Angula J on 21 July 2020  granting the applicant leave to access the premises situated at Erf 3083, Ranonkel Street,Khomasdal for the exclusive purpose of only removing its perishable goods, is hereby confirmed.

b)   The respondents are interdicted and restrained from unlawfully interfering with the applicant in removing its movable butchery equiptment from Erf 3083, Ranonkel Street, Khomasdal, Windhoek.This butchery equipment shall not include fixtures, especially the cold room and the airconditioners.

c)   Cost is granted to the applicant, to include costs of one instructing and one instructed council.

 

 

____________

E Rakow

Acting Judge

 

Judge’s signature

Note to the parties:

 

Not applicable.

Counsel:

Applicants

 Respondent

Mr Diedericks

Instructed by Delport Legal Practitioners

Mr Hengari

Instructed by Kamuhanga Hoveka Samuels Inc for first respondent

 

 

 


[1] Ngqukumba v Minister of Safety & Security & Others 2014 (5) SA 112 (CC) para 10.

[2] 2016 (2) NR 547 (HC).