CASE
NO. A 196/2010

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

AUGUST
MALETZKY & OTHERS
…....................................................1^st
APPLICANT

HAROLD
GORASEB
….......................................................................2^ND
APPLICANT

ALLEN
ROSTIEN GORASES
…...........................................................3^rd
APPLICANT

and

JAQUEL
KAHUARUKUA NJEMBO
….........................................1^st
RESPONDENT

DEPUTY
SHERIFF OF THE HIGH COURT
…..............................2^nd
RESPONDENT

CORAM:
SMUTS
J

Heard
on: 2011.02.16

Delivered
on: 2011.02.17

JUDGMENT

SMUTS
J;
[1]
This Court granted judgment in favour of the first respondent against
the second applicant for the latter's eviction and certain sums of
money. This was under case number, I 4048/2009. The judgment was
granted by Ndauendapo, J on 16 September 2010.

[2]
An appeal has been noted against that judgement. It was explained to
me in argument that this was primarily on the basis of the third
applicant not having been cited in the matter.

[3]
It is stated in the urgent application before me that the second and
third applicants are married in community of property. It was argued
that the third applicant should have been cited in that matter. But
that is the subject of that appeal.

[4]
After that judgment was granted, the first respondent applied for
execution of that judgment. This was granted by Unengu, AJ on 1
February 2011. When granting his order, he stated that, the second
applicant had not submitted any argument and the order was granted in
his absence.

[5]
The execution of the judgment then proceeded. It has however given
rise to this urgent application in which the following relief is
essentially sought, declaring that two judgments namely those given
under case numbers I 4048/2009 and A 196/2009, be declared null and
void for non-citation of the third applicant. Furthermore, an order
is sought declaring the execution of those judgments to be unlawful
and a nullity on the same basis.

[6]
Thirdly, an order is sought declaring or ordering the respondents to
refrain from interfering with the third applicant's peaceful and
lawful occupation of Erf 1200 Gamma Street, Khomasdal, Windhoek
Namibia. Further orders are sought to stay the execution of those
judgments pending the finalisation of the appeals and directing that
all proceedings and execution of all writs and summonses and other
processes be stayed or not instituted or proceeded with, without the
leave of the Court and directing the third applicant can take
immediate control of the property in question. Costs were also sought
in the event of opposition.

[7]
When the matter was called I raised certain questions with Mr
Maletzky who has joined the application together with the second and
third applicants. I pause to reiterate that the judgment in question
had been granted against the second applicant at the time-in favour
of the first respondent.

[8]
Mr Maletzky stated that his standing arose by virtue of the fact that
he was an applicant in other proceedings referred to in paragraph 3
of the founding affidavit in which constitutional rights were raised
in the form of what he termed as a class action, directed at securing
further judicial oversight and supervision of sales in execution of
immovable property. He submitted that the ejectment of one of his
co-applicants in that matter, which he contends has a direct bearing
upon this application, would afford him standing in these
proceedings.

[9]
He also made further submissions expanding upon the right asserted in
paragraph 3 of the founding affidavits. I have carefully considered
those submissions and also put it to him in argument that I would be
bound by full bench decision of this Court in Kerry
McNamara Architects Inc v The Minister of Works Transportation, and
Communication and Others
2000
NR 1 (HC).

[10]
It would appear to me that interest asserted by him as being direct
and substantial is however too remote to meet the threshold of that
test. His application would thus fall to be dismissed on this basis
alone. But he correctly pointed out that the second and third
applicants are before Court, as is their application which would also
need to be considered.

[11]
When the matter was argued yesterday, I enquired from him about the
nature of the prima
facie right
sought to be also asserted in these proceedings. He pointed out that
the prima
facie right
is based upon the right to set aside the judgments referred to in
paragraph 1.2 of the notice of motion by reason of not citing the
third applicant in the proceedings in question. I must also point out
that one of the judgments referred to in paragraph 1.2 of the notice
of motion namely I 196/2009 is not referred to at all in the founding
papers. No connection to it is raised. I am unable to understand
quite why it is raised in these proceedings because there is no basis
in the founding papers which in any way seeks to connect it to the
relief which is sought.

[12]
What may have been intended was a reference to case number A 313/2010
in which Unengu, AJ granted an order directed at the execution of the
judgment pending the appeal. I am prepared to accept for present
purposes that the reference may have been intended to that case
number, seeing that the correctness of that ruling was raised in
argument as well as in the founding affidavit.

[13]
But these issues are however sought to be raised on appeal. What the
remaining applicants essentially seek to do in this urgent
application is to stop the execution of the judgment granted by
Ndauendapo, J in case number I 4048/2009 on 16 September 2010. Leave
to proceed with the execution of that judgment has as recently as the
1 February 2011 been granted and authorised by Unengu, AJ. What this
application thus seeks to achieve is to undo the very order granted
by Unengu, AJ. That cannot however be secured in the manner sought by
the applicants.

[14]
A notice of appeal directed at that order is attached to the founding
affidavit. But this would not have any effect because the order was
an interlocutory order and is not appealable without leave. It
follows that the prima
facie right
asserted is essentially without foundation. The applicants correctly
understand that the judgment would need to be appealed against. That
can only occur with leave of this Court. Only then could such an
application conceivably arise.

[15]
A party accordingly cannot by an application of this nature seek to
undo an order of the nature granted by Unengu, AJ. These proceedings
are not competent and the prima
facie right
asserted is thus without basis. The application must fail on this
basis alone.

[16]
It follows that the order I make is to dismiss this application with
costs.

SMUTS,
J

ON
BEHALF OF THE APPLICANT
IN
PERSON

ON
BEHALF OF THE RESPONDENT
ADV.
GROBLER

Instructed
by: GROBLER
& COMPANY