IN THE HIGH COURT OF NAMIBIA
NOT REPORTABLE
CASE NO: A 130/2011
IN THE
HIGH COURT OF NAMIBIA
In the
matter between:
AUGUST
MALETZKY …....................................................1st
APPLICANT
WILMA
EVELINE HOABES …...........................................2nd
APPLICANT
SALMAAN
DHAMEER JACOBS ….....................................3rd
APPLICANT
ANNARINE
JACOBS ….....................................................4th
APPLICANT
CALISTA
ANNA BALZER …..............................................5th
APPLICANT
RONNEY
REINHOLD HANGULA …...................................6th
APPLICANT
SIEGFRIED
BROCKERHOFF …........................................7th
APPLICANT
EVANGELINE
EICHAB ….................................................8th
APPLICANT
DORKA
VICTORINE SHIKONGO …..................................9th
APPLICANT
EDUARD
PAUL XOAGUB 10th APPLICANT
FRANCIS
EVELINE XOAGUS 11th APPLICANT
ABRAHAM
MAPELA PETRUS 12th APPLICANT
REMEO
MOUTON 13th APPLICANT
ANTON
HERMANN 14th APPLICANT
JOHANNES
NEUAKA 15th APPLICANT
LISA
RHODE 16th APPLICANT
FILEMON
HOXOBEB 17th APPLICANT
FRANCOIS
DARIES 18th APPLICANT
CHRELY
STEVENS NANUSEB 19th APPLICANT
WENDY
GLORIA NANUSES 20th APPLICANT
FRANS
NAIBAB 21st APPLICANT
and
STANDARD
BANK NAMIBIA LTD …..............................1st
RESPONDENT
NEDBANK
NAMIBIA LTD ….........................................2nd
RESPONDENT
HES
SHIKONGO …......................................................3rd
RESPONDENT
FIRST
NATIONAL BANK OF NAMIBIA LTD …...............4th
RESPONDENT
CITY OF
WINDHOEK (WINDHOEK MUNICIPALITY) …...5th
RESPONDENT
SWABOU
INVESTMENTS (PTY) LTD ….........................6th
RESPONDENT
VSV
ENTERPRISES NUMBER SIXTY CC AND/OR
NOMINEE
JP VAN STADEN OR LJ VAN STADEN …......7th
RESPONDENT
ALEXANDER
HOVEKA ….............................................8th
RESPONDENT
HARTMUT
GERHARD FOELSCHER
…..........................9th
RESPONDENT
MINISTER
OF JUSTICE ….........................................10th
RESPONDENT
REGISTRAR
OF THE HIGH COURT …........................11th
RESPONDENT
REGISTRAR
OF DEEDS ….........................................12th
RESPONDENT
ATTORNEY-GENERAL
…...........................................13th
RESPONDENT
THE
DEPUTY SHERIFF
….........................................14th
RESPONDENT
VAN DER
MERWE-GREEFF INC ….............................15th
RESPONDENT
BANK
WINDHOEK LTD …..........................................16th
RESPONDENT
SOUTH
WEST AFRICAN BUILDING SOCIETY …..........17th
RESPONDENT
RISTO
SHIKULO …....................................................18th
RESPONDENT
JULIA
THANDU NEUAKA ….......................................19th
RESPONDENT
GERARDT
DE KLERK …............................................20th
RESPONDENT
SHARON
DE KLERK …..............................................21st
RESPONDENT
BANK OF
NAMIBIA …...............................................22nd
RESPONDENT
BOY
TOBIAS VAN WYK …..........................................23rd
RESPONDENT
MORVEN
M LUSWENYO ….........................................24th
RESPONDENT
BUILDERS
WAREHOUSE (PTY) LTD ….......................25th
RESPONDENT
CORAM:
SCHIMMING-CHASE, AJ
Heard on:
6 June 2011
Delivered
on: 6 June 2011
______________________________________________________________________
JUDGMENT
______________________________________________________________________
SCHIMMING-CHASE,
AJ
The
1st, 10th and 11th applicants
launched an application on an urgent basis, seeking an interim
interdict to prevent the 1st and
14th
respondents from proceeding on 7 June 2011 with a sale in execution
of certain immovable property situate at Erf 6667, Aaron Tjatindi
Street, Katutura, Windhoek (“the property”) pending the
determination and finalisation of an application launched by the
applicants and 17 others against a total of
25 respondents,
including the 1st and 14th respondents (“the
main application”), for an order declaring it unconstitutional
for the Registrar of the High Court to declare immovable property
specifically executable when ordering default judgment under Rule
31(5) of the Rules of the High Court.
This
application by the 1st, 10th and 11th
applicants was launched on 6 June 2011, 1 day before the scheduled
auction of the property. It was also set down for 16h30 on this
date, due, it would appear, to the 1st applicant, Mr
Maletzky, not being available between 09h00 and 16h00 as he is
writing an examination. The certificate of urgency is also signed by
Mr Maletzky. After hearing argument, this application was struck
from the roll with costs. The reasons now follow.
At
the outset of the hearing of this application, Mr Maletzky addressed
this Court as a party on the basis that he is also a party in the
main application, as the owner of the certain immovable property
that was also declared specifically executable by the Registrar in
terms of Rule 31(5). However, it is common cause that this
application for interim relief only affects the 10th and
11th applicants as it is their property that is to be
sold in execution on 7 June 2011. Mr Maletzky’s property is
not the subject matter of a looming sale in execution to take place
in less than 24 hours. He accordingly does not have locus standi
in this interim application to address this Court. I accordingly
ruled that I would only hear the 10th and 11th
applicants who appeared in person.
The
issue that this Court is called upon to decide at this point in the
proceedings is whether or not the application should proceed as one
of urgency. The point of urgency was raised in limine at the
outset by Mr Maasdorp, acting on behalf of the first respondent. I
exercised my discretion to hear this point.
In
his founding affidavit 10th applicant, supported by his
wife, the 11th applicant, stated in support of their
grounds for urgency that they are incola of the Court, and
that should the sale of the property continue on 7 June 2011 without
the intervention of the Court they would incur irreparable damage
which would not be able to be cured by an action for damages. They
further state that the sale of the property is premised on a default
judgment granted by the Registrar which the applicants in the main
application contend is unconstitutional, and that the 10th
and
11th applicants have paid a total of N$41,600.00
to the
1st respondent in a futile attempt to stop the
sale of their immovable property. They also state that they did not
create the urgency themselves but that the 1st respondent
is simply unreasonable as it seeks to sell the property which is the
subject matter of the main application.
Mr
Maasdorp argues that the urgency in this application is entirely
self-created and accordingly does not comply with
Rule 6(12)(b).
Mr Maasdorp drew the Court’s attention to a letter dated 11
May 2011 authored by the 1st applicant, Mr Maletzky and
addressed to the legal practitioners of the 1st
respondent. This letter is attached to the 10th
applicant’s founding papers in this application. It indicates
inter alia that Mr Maletzky represents the 10th
and 11th applicants, and that he was instructed by them
to inform the 1st respondent that the default judgment
granted against the 10th and 11th applicants
is unconstitutional.
It is
also stated in this letter that the first time that the 10th
and 11th applicants obtained meaningful knowledge of the
action instituted against them was on 30 November 2010, when the
Court process was sent to them via facsimile, and that
Mr
Maletzky holds instructions to appoint counsel to approach the Court
for rescission of the default judgment should the 1st
respondent not abandon the default judgment.
It is
common cause that no such application was ever brought. Mr Maasdorp
also handed up a return of service by the Deputy Sheriff showing
that the notice of sale in execution of the property was served at
the 10th and 11th applicants’ residence
on
12 May 2011.
The
Court was also informed that this application was served on the 1st
respondent on 6 June 2011 in a sealed envelope at approximately
12h00, and that accordingly the 1st respondent has not
yet had an opportunity to consider and respond to the merits of this
application in any event, due to the extremely short time period in
which this application was set down.
Rule
6(12)(b) of the Rules of Court requires of an applicant in an urgent
application to provide reasons why he or she cannot be afforded
substantial redress at a hearing in due course. Mere lip service to
the requirements of the Rule will not do and an applicant must make
out a case in the founding affidavit to justify the particular
extent of the departure from the normal procedure.
See: Salt and Another v Smith 1990 NR 87 (HC)
An
unsatisfactory explanation may result in the Court declining to
exercise its judicial discretion to condone the failure to comply
with the Rules regarding forms and service and to hear the matter on
an urgent basis, notwithstanding the apparent urgency of the
application, especially in instances where there was culpable
remissness or inaction on the part of the applicant.
See: Bergmann v Commercial Bank of Namibia Ltd and Another
2001 NR 48 (HC) at 49H-J
It is
also important to note that when an application is brought on an
urgent basis, institution of the proceedings should take place as
soon as reasonably possible after the cause thereof has arisen.
These procedures contemplated in the Rules are designed to bring
about procedural fairness to both sides.
See: Bergmann v Commercial Bank of Namibia Ltd supra at
51H
Not
only is this application set down for hearing at 16h30 on
6 June
2011 to stop a sale in execution taking place on
7 June 2011, it
was also only served on the 1st respondent (at its mail
room ex facie the papers) at approximately 12h00 on
6
June 2011, leaving the respondents approximately 4½ hours to
prepare to oppose the application. To exacerbate matters,
Mr
Maletzky sought to have the matter set down after 16h00 as he was
apparently busy writing exams between 09h00 and 16h00.
The
applicants themselves concede that they were aware on
30
November 2010 of the default judgment against them, and that they
were aware at the very latest on 12 May 2011 that their property
would be sold in execution on 7 June 2011. The main application for
constitutional relief was instituted on
24 May 2011.
There
is unfortunately no proper explanation whatsoever on the papers, why
this application was brought on such extremely short notice,
considering that Rule 6(12)(b) requires an applicant to explicitly
set forth the circumstances which renders the matter urgent. Even
when given an opportunity to add additional explanations for the
time frame in which the application was set down which opportunity
was provided to assist the 10th and
11th
applicants as lay litigants, all they could say was that they had
sought assistance from a number of legal practitioners in Windhoek,
that they had made substantial payments to the
1st
respondent and that no one from the 1st respondent was
prepared to hear their attempts to settle their arrears.
It
often happens that whilst execution procedures are underway, the
litigating parties attempt to settle their disputes or make some
arrangements regarding payment of the judgment debt in instalments.
Unfortunately, the existence of such negotiations does not ipso
facto stay the execution proceedings in the absence of an
agreement.
See: Bergmann v Commercial Bank of Namibia Ltd supra at
50C
It is
also important to note that the convenience of the Court is an
important factor. The main application is particularly voluminous,
and wide ranging constitutional relief is sought. It is not feasible
to properly consider and determine the requirements for interim
relief on such complex issues of law in a matter of hours,
especially when the applicants on their own version could have
launched this application on 12 May 2011 or even
24 May 2011,
and enabled these questions to still be considered on an urgent
basis, but within a time frame that enabled the respondents to
prepare proper papers, and the Court to consider the merits.
See: Mweb Namibia (Pty) Ltd v Telecom Namibia Ltd and
4
Others, unreported Full Bench decision delivered on
31 July
2007 in case number A 91/2007
There
is unfortunately no averment in the founding papers providing the
Court with any reasonable explanation why this application was
launched at such short notice in such a short period of time. There
is no compliance with Rule 6(12)(a) whatsoever. I am of the view
that the urgency in this application is entirely self-created by the
culpable remissness on the part of the 10th and 11th
applicants. In these circumstances, I decline to condone their
non-compliance with the Rules of Court or to hear this application
as one of urgency.
In
the result the following order is made:
(a) The application is struck from the roll with costs.
___________________________
SCHIMMING-CHASE, AJ
ON BEHALF OF THE APPLICANTS In person
ON BEHALF OF 1st, 4th,
6th, AND 17th
RESPONDENTS
Mr
Maasdorp
Instructed by: Fisher, Quarmby & Pfeifer