Case No.: A.
340/2000

IN THE HIGH
COURT OF NAMIBIA

In the
application of:

TRANSNAMIB
HOLDINGS LIMITED APPLICANT

and

JOHAN
VENTER RESPONDENT

CORAM: LEVY,
AJ Heard on: 2000-11-15

Delivered
on: 2000-11-17

JUDGMENT

LEVY, AJ:
This application is brought to Court as a matter of urgency.

Mr P J v L
Henning S.C and with him Mr J A N Stryom appear for the applicant and
Mr R Heathcote is acting for respondent.

The applicant
alleges in its founding affidavit that it is a parastatal company and
the registeredowner of certain immovable property known as Phillip
Troskie Building. Applicant alleges further that respondent is in
possession of this building and lets rooms therein to a very large
number of students. All these allegations are not denied or disputed.
Applicant alleges that on 31^s1
May 1999 respondent purported to conclude a lease with a company
known as TransNamib Limited (copy whereof marked "B" is
annexed to its affidavit) but as from 1^st
April 1999 this company was no longer in existence. The aforegoing is
common cause. Respondent contends that it is entitled to a
rectification of the lease by substituting TransNamib Properties
(Pty) Ltd for the non-existing company. Applicant does not deny that
this is applicant's contention. The validity of the contention is
disputed. It is common cause that in terms of annexure "B",
the rental payable by respondent would have been N$60 000-00 per
month and that this has not been paid.

In its Notice
of Motion applicant prayed for the following orders:

"1. That
the Honourable Court shall, in terms of Rule 6(12)(a) of the Rules of
this Honourable Court dispense with the time limits provided for in
those rules and deal with this matter as one of urgency.

1. 
   Ejecting the
   respondent from the Phillip Troskie Building situated at Erf 842,
   Windhoek, as well as from house number 65 situated on Erf 1209,
   Windhoek ("the premises").

   
   

2. 
   In the
   alternative to paragraph 2, declaring the occupation of the premises
   by the respondent to be unlawful.

   
   

3. 
   Ordering the
   respondent to pay the costs of this application.

   
   

5. Granting
further and/or alternative relief."

But during
the hearing Mr Henning amended those prayers to ask for a rule nisi
returnable on 27^th

November
2000, granting applicant the same relief. Mr Heathcote argued four
points in
limine. Those
were:

4. 
   That the
   application was not urgent.

   
   

5. 
   That the
   students occupying rooms in the building should have been joined as
   co­respondents.

   
   

6. 
   That there
   was a pending lis
   between
   the parties.

   
   

7. 
   That
   applicant should not have come to court by way of Notice of Motion
   as to its knowledge, there was a dispute of material facts which
   could not be decided on motion.

   
   

I deal with
the question of non-joinder first because a certain admission in Mr
Heathcote's Heads of Argument goes to the root of the dispute between
the parties. In paragraph 14 of his heads he

says:

"The
Respondent in this matter, is not holding the property through or
under the Applicant."

He therefore
admits that there is no vinculum
juris between
respondent and applicant and therefore between the subtenants and
applicant.

It is common
cause furthermore that the students are sub-tenants of respondent.
Furthermore as students there is no degree of permanence in their
tenure.

It appears
from two judgments in the appellate division of the Supreme Court of
South Africa that in ejectment proceedings an applicant need not join
sub-tenants. This is indeed our law particularly in a vindicatory
action where the lessor of the sub-tenants is "not holding the
property
through
or under the applicant, who is the owner".

Sheshe v
Vereeniging Municipality 1951(3)
SA 661 (A) at 667 A-B

Ntai &
Others v Vereeniging Town Council & Another 1953(4)
SA 579 (A) at 589 G-H

See also
Cooper,
'Landlord and Tenant' 2^nd
Ed p 374.

1 therefore
dismiss Mr Heathcote's contention that the sub-tenants should have
been joined in these proceedings.

The main
thrust of Mr Heathcote's argument was that the applicant should not
have come to Court as a matter of urgency as the dispute between the
parties had been raging for over a year.

In support of
his argument he quoted Luna
Meubelvervaardigers v Makin & Another 1977(4)
SA 135 W, Gallagher
v Norman's Transport Lines (Pty) Ltd 1992(3)
SA 500 W and Salt
& Another v
Smith
1991(2)
SA 186 Nm.

The essential
differences between those cases and the instant case is that in the
present case the evidence supported by photographs is that the misuse
of the premises by the students and the fdth and dirt in the premises
makes these premises look like the Augean stables which Hercules was
required to clean as one of his labours. In addition photographs show
handles off doors and even u damaged fire extinguisher on the floor.
Mr Heathcote argues that these photographs were taken at a time that
the cleaner was not on duty. It is unfair to blame a cleaner for the
condition of the rooms and passages which are being let for people to
live and study therein. A cleaner cannot he expected to repair broken
doors and tiles.

An applicant
is entitled to preserve its property from treatment of this nature.

Furthermore,
the owner is not receiving one cent for property which has an agreed
rental valuation of N$60 000-00 per month.

The
aforegoing makes this an urgent application and in the circumstances
of this case, applicant would not "have been afforded redress at
a hearing in due course". If applicant had come to Court in the
prescribed way, it would have involved considerable lapse of time.
It's property would have deteriorated further and the financial loss
would have increased and the prospects of recovering financial
compensation appears to be remote. Investigations into respondent's
financial position indicate that there is no immovable property
registered in his name and the business of "The Little Sex Shop"
which he once conducted is no longer functioning. Mr Heathcote points
out that the applicant has delayed four to five months during which
time he has not done anything and that the urgency is
"self-contrived". The fact that a creditor delays in suing
his debtor is not a justification for the debtor's failure to fulfil
its obligations. In this case, the applicant only had knowledge of
the condition of the building when an inspection thereof took place
and the photographs were taken.

I
point
out that at no stage did Mr Heathcote complain about the "shortage
of time" for filing affidavits and for preparing argument. The
affidavits filed were full and detailed and Mr Heathcote's argument
could not have been improved upon.

This is
indeed an urgent matter and recourse to Rule 6(12)(a) was fully
justified. Mr Heathcote's objection in respect of lack of urgency is
dismissed.

Mr
Heathcote's third objection in
limine was
that of lis
pendens.

It is true
that more than a year ago applicant instituted action against
respondent for ejectment and that an application for summary judgment
in that matter was dismissed. However, that matter was based on
contract and this application is a vindicatory action. The ghastly
condition of the premises, the filth and destruction of doors of
rooms used for human habitation was not in issue. This was only
recently discovered.

The present
lis
is
certainly not the same one of which Mr Heathcote complains.

Cf. Herbstein
& Van Winsen, "The Civil Practice of the Supreme Court of
South Africa' 4^th
Ed. 249.

Mr
Heathcote's fourth objection in
limine was
that there are many factual disputes which cannot be decided on
affidavit.

First of all
it is not every dispute of fact raised by a respondent on the
affidavits which prevents immediate adjudication. The dispute must be
material to the issue.

Room Hire
Co (Pty) LtdvJeppe Street Mansions (Pty) Ltd 1949(3)
SA 1155 (T)

The disputes
referred to by Mr Heathcote in no way deal with or affect applicant's
vindicatory action. Respondent does not dispute applicant's ownership
of the immovable property or that he is in possession thereof. In
fact, respondent concedes in his Heads of Argument (paragraph 14)
that he "is not holding the property through or under the
applicant". There is therefore no dispute on material issues.

Applicant
relies on its common law right to eject respondent and on certain
cases in support thereof, the classical case being Krugersdorp
Town Council v Fortuin 1965(2)
SA 335.

The fact that
an applicant sets out the history of the case in his affidavit does
not necessarily detract from his vindicatory action.

cf. Sorvaag
v Pettersen & Others 1954(3)
SA 636 (C)

Mr Henning
quoted Chetty
v
Naidoo
1974(3)
SA 13 (A) the head-note whereof reads as follows:

"Although
a plaintiff who claims possession by virtue of his ownership, must ex
facie his
statement of claim prove the termination of any right to hold which
he concedes the defendant would have had but for the termination, the
necessity of this proof falls away if the defendant does not invoke
the right conceded by the plaintiff but denies that it existed. Then
the concession becomes mere surplusage as it no longer bears upon the
real issues then revealed. If, however, the defendant relies on the
right conceded by plaintiff, the latter must prove its termination.
This is so, not only if the concession is made in the statement of
claim, but at any stage."