CASE NO: A 279/2010

NOT REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

BEN ALUENDO ENGHALI 1^ST APPLICANT

JOSEF SHEFENI ENGHALI 2^ND APPLICANT

and

ERASTUS NGHISHOONO 1^ST RESPONDENT

DEPUTY SHERIFF OF THE HIGH COURT 2^ND RESPONDENT

MINISTER OF LANDS AND RESETTLEMENT 3^RD RESPONDENT

GOVERNMENT OF NAMIBIA 4^TH RESPONDENT

CORAM: HOFF, J

Heard on: 2010.09.13

Delivered on: 2010.09.14

Reasons on: 2010.09.21

JUDGMENT

Urgent Application

HOFF, J: [1] This is an urgent application, intended to be brought on an ex parte basis and heard on 13 September 2010 at 17h00. Ms Schulz appearing for second respondent opposed the application and indicated that the application was served on her at 16h00. No answering affidavit could be filed under the circumstances.

[2] This was an application for the staying of a warrant of execution as well as a notice of sale in execution in respect of 152 heads of cattle and 976 small livestock belonging to the applicants which had been attached by first respondent. The application was granted with costs. The sale in execution was scheduled for 14 September 2010 at 09h00. My ruling was given at 08h30 on 14 September 2010. These are my reasons.

[3] The applicants previously lived on the farm Drimiopsis. The Government of the Republic of Namibia evicted all people who had settled there including the applicants. The other occupants were resettled. Applicants also applied to be resettled. Unit B of Farm Schellenberg 79 (hereinafter referred to as Schellenberg) was allocated to them. It appears that their occupation was unlawful. In subsequent litigation this Court on 19 May 2009 ordered the applicants together with all their livestock to vacate Schellenberg within three months from the end of May 2009. A counterclaim of the respondents which particulars are unknown to this Court was granted, and the application of the applicants was dismissed. In subsequent litigation this Court on 07 May 2010 committed the applicants for contempt of court for failing to obey or comply with the Court order dated 19 May 2009 and once again ordered the applicants and their livestock to vacate Schellenberg. Cost orders in both instances were granted against the applicants.

[4] A notice of a sale in execution and a warrant of execution both dated 9 September 2010 were attached to first applicant’s founding affidavit. In the warrant of execution, it appears that the deputy sheriff (second respondent) was directed to realise by public auction the sum of N$132 953.98 together with interest thereon at the rate of 20% per annum a tempore morae in respect of the Court order dated 7 May 2010.

[5] Ms Hamutenya on behalf of the applicants submitted that the amount of N$132 953.98 was not taxed as required by Rule 45(2) of the Rules of this Court and thus could not be executed upon. First applicant in his founding affidavit stated that the execution came only to light on Friday (10 September 2010 presumably) when they approached counsel for the first respondent who informed them of the state of affairs. The applicants denied that the warrant of execution, the notice of sale in execution and an inventory of livestock referred to in a return of service (Annexure BAE 9) had been served on them. In this regard it was submitted on behalf of the applicants that it was impossible to have served the warrant of execution, notice of sale in execution and inventory on the applicants on 8 September 2010 as indicated in the return of service since the warrant of execution and notice of sale in execution were signed by the Registrar of this Court only on 9 September 2010, a day later. The applicants stated that the only document which had properly been served on them was the Court order dated 07 May 2010.

[6] The first applicant in his founding affidavit further stated that after a hearing to prohibit first respondent form disturbing their peaceful and undisturbed occupation of Schellenberg was dismissed, counsel informed them that they had good prospects of success on appeal since they went onto the farm on invitation of first respondent who is an official of third respondent and who was responsible for their resettlement. They still intend to prosecute this appeal it was submitted.

[7] Even though there is a taxed invoice in the amount of N$61 602.35 attached to the founding affidavit this Court is in the dark how the amount of N$132 953.98 (which amount is reflected in the warrant of execution) has been compiled.

[8] Ms Schulz concentrated her submission on the proposition that this application was not urgent and that the applicants had ample time to pay the relevant costs. The question was however whether they had ample time to approach the court for relief. In my view having regard to the circumstances mentioned in the founding affidavit, this might not have been the case.

[9] It must be stated that the ruling that this Court made was in the absence of any opposing affidavit by any one of the respondents.

_________

HOFF, J

ON BEHALF OF THE APPLICANTS: ADV. HAMUTENYA

Instructed by: VAN DER MERWE-GREEFF INC.

ON BEHALF OF THE FIRST RESPONDENT: MS SCHULZ

Instructed by: FRIEDA SCHULZ ATTORNEY