Mondo v Messenger of Court: Grootfontein and others (APPEAL 70 of 2009) [2009] NAHC 96 (13 March 2009);
CASE
NO. A 70/2009
IN THE HIGH COURT
OF NAMIBIA
In the matter between:
DAVID
NKWANGA MONDO
APPLICANT
and
THE
MESSENGER OF COURT: GROOTFONTEIN
1ST
RESPONDENT
THE
CLERK OF THE MAINTENANCE COURT
2ND
RESPONDENT
THE
MAINTENANCE MAGISTRATE OF WINDHOEK 3RD
RESPONDENT
SPECIOZA
MONDO 4TH
RESPONDENT
CORAM: MANYARARA,
A.J.
Heard on: 13 March 2009
Delivered on: 13 March 2009
Reasons on: 11 June 2009
REASONS
MANYARARA, A.J.: [1] This
is an application brought on an urgent basis to nullify a warrant of
execution issued at the instance of the fourth respondent. At the
hearing, the application was removed from the roll for lack of
urgency, with no order for costs, with reasons to follow. These are
they.
[2] The parties were married to
each other but divorced by order of the court dated 24 February 2004.
In terms of the order, the applicant was ordered to pay maintenance
in respect of the fourth respondent at the rate of N$2000.00 per
month; custody and control of two minor children, namely Rachel and
Charles, was awarded to the fourth respondent and custody and control
of the third minor child, namely Christine, was awarded to the
applicant, subject to the non-custodian parent’s right of
reasonable access to the child under the custody and control of the
custodian parent. The applicant subsequently obtained a rule
nisi awarding
custody and control of Christine, then aged ten years and two months,
to him and the rule was confirmed on 23 July 2008.
[3] The affidavit founding this
application avers that, following the dissolution of the marriage,
the fourth respondent “brought a number of complaints against
(the deponent)” for failing to pay maintenance in terms of the
divorce order. The deponent gave his explanation as follows:
“I could not comply
with the court orders to pay maintenance to the custody and control
of the minor child and to the fourth respondent for two reasons, one
was that the minor child’s custody and control, Christine Mondo
was, shortly after divorce awarded to me and secondly I lost
employment and did not have the means to comply with the court order
and when I started working during or about 2004 I was simply not in a
position to comply with the court order to pay maintenance to the
fourth respondent.”
[4] The fourth respondent
instituted criminal proceedings against the applicant for failing to
pay maintenance to her and the minor child Rachel.
The applicant was acquitted on
the charge relating to Rachel but convicted of failing to pay
maintenance to the fourth respondent. He was sentenced to a fine of
N$2000.00 or 6 months imprisonment, wholly suspended for a period of
2 years on condition inter
alia that he
complies with the order to pay the arrear maintenance due the fourth
respondent at the rate of N$500 per month with effect from 30
September 2007. The applicant appealed against the judgment.
However, according to the affidavit founding the present application,
the parties thereafter entered into settlement negotiations. The
negotiations led to an oral agreement. The fourth respondent
demanded that the agreement be recorded in writing and the deponent’s
legal practitioner prepared a draft which was forwarded to the fourth
respondent. However, she did not respond to the draft agreement but
instead caused a warrant of execution to be issued and the first
respondent attached an assortment of the applicant’s goods by
notice dated 16 February 2009.
[5] It is this latest
development which triggered the urgent application whereby the
applicant sought an order in the following terms:
(1) Declaring the warrant of
execution dated 17th
January 2009 and the notice of attachment annexed thereto as unlawful
and invalid and setting aside the same and any other steps taken in
relation thereto.
That pending the finalization
of this application no steps shall be taken in relation to the
execution of judgment in relation to this matter.
Ordering the immediate release
from attachment of all goods attached in terms of the inventory
attached to the warrant of execution.
Costs of suit to be paid by
any of the respondents that opposes the application.
Further, that the order sought
serve as interim relief with immediate effect and that the applicant
advertise in a local English newspaper the order issued herein and
take such steps as may be necessary to serve the order on the fourth
respondent.
[6] The main thrust of the
application addressed the merits as set out above.
[7] The answering affidavit was
filed by Nomusa Sibanda, the Magistrate of the Maintenance Court at
Katutura, with a confirmatory affidavit filed by Willem Sebulon
Shikongo Mekondjo Nathinge, the Maintenance Officer. That this the
affidavit also clearly addressed only the merits is evident from the
averments.
[8] Sibanda’s affidavit
averred that, while the second and third respondents did not oppose
the application but would abide the court’s decision, the
deponent wished to address the submissions made by the applicant on
the Maintenance Act 9 of 2003 (the Act). My reading of the averment
was that the
respondents wished to deal only
with the merits, leaving the question of urgency for the court to
decide.
[9] As indicated, the crisp
issue for determination was the question of urgency of the
application and the applicant’s contentions on this issue may
fairly be enumerated as follows:
After the attachment,
advertisement would be made in the print media soon, which
publication has adverse business implications; the goods attached
would be sold “and
this will take place in the next few weeks as indicated by the first
respondent.”
No alternative remedy is
available to the applicant because of the impending removal and sale
of the goods attached.
The balance of convenience
favoured the applicant as “the
value of the goods attached is exceedingly higher than the amount
claimed.”
[10] Mr. Swanepoel for the
second and third respondents submitted that the applicant’s
contentions on urgency must fail on two grounds. Firstly, that the
applicant had not specified the dates of possible removal and sale of
the goods attached and, secondly, the applicant had not exhausted the
internal remedies open to him under the Act. The obvious reason was
that the dates were unknown to the applicant and, in any event,
subsections 29(5) and 29(8) provided ample time to suspend the
warrant of execution – a course which was open to the applicant
before he launched his application. Further, while the notice of
attachment was dated 16 February 2009, the applicant had not
explained why he had waited for a period of 4 weeks before launching
his application. Section 29(5) and (6) of the Act provide as
follows:
“1. A defendant
against whom a warrant of execution has been issued may, within 10
days of becoming aware of the existence of the warrant of execution
and in the prescribed manner, apply to the maintenance court where
the warrant was issued to set aside the warrant of execution.
2. An application made under
subsection (5) must-
(a) state the grounds on
which the warrant of execution should be set aside; and
(b) be served by the
defendant on the complainant at least 14 days before the date on
which the application is to be heard.”
And section 29(8) and (9)
provide as follows:
“1. A defendant
against whom a warrant of execution was issued under this section may
at any time, in the prescribed manner, apply to the maintenance court
for substitution or suspension of the warrant of execution.
2. An application made under
subsection (8) must-
(a) state the grounds on
which the warrant is sought to be substituted or suspended; and
(b) be served by the
defendant on the complainant at least 14 days before the date on
which the application is to be heard.”
[11] In any event, if the date
for the sale were to be announced, it would be open to the applicant
to approach the court on an urgent basis to interdict the sale and I
believe that such an application would have been favourably received.
But this has not happened and the applicant has jumped the gun by
seeking to set aside the proceedings in the maintenance court before
adopting the course suggested by Mr. Swanepoel.
[12] The applicant’s
counsel, Mr. Sisa Namandje, had no answer to the submissions made on
the respondents’ behalf for the obvious reason that there were
none. Accordingly, the application failed for lack of urgency and
the application was removed from the roll without consideration of
the merits.
__________________
MANYARARA, AJ
ON BEHALF OF THE APPLICANT
Mr Namandje
Instructed by:
Sisa Namandje & Company
ON BEHALF OF THE 2nd
and 3rd
RESPONDENTS Mr Swanepoel
Instructed by:
Government Attorneys