REPUBLIC OF NAMIBIA
THE HIGH COURT OF NAMIBIA
Case no: I 396/2009
In the matter between
OF THE HIGH COURT
SHERIFF – REHOBOTH
OF DEEDS – REHOBOTH
Neutral citation: Januarie v Registrar of High Court & others
(I 396/2009)  NAHCMD 276 (8 October 2013)
Coram: Smuts, J
Heard on: 30 September 2013
Delivered on: 8 October 2013
 The applicant brought this application for review against the
Registrar of the High Court, cited as first respondent (the
Registrar), the Deputy-Sheriff, Rehoboth as the second respondent and
the Registrar of Deeds, Rehoboth as the third respondent. The
applicant, who has conducted this litigation in person, seeks the
Condoning any non-compliance with the Rules of the Honourable Court
insofar as it may be necessary.
2. Setting aside decision of the
first respondent to declare applicant’s property situated at
Erf No. 3, Block A, Rehoboth executable.
3. Setting aside the writ of
execution issued on the strength of the above decision in par. 2, by
the first respondent and the sale in execution.
4. Setting aside the decision of
the second respondent to sell Erf No. 3, Block A, Rehoboth by public
5. Setting aside the decision of
the second respondent to effect registration of transfer of Erf No.
3, Block A, Rehoboth on 1 November 2012.
6. Setting aside the decision of
the third respondent to execute registration of transfer of Erf No.
3, Block A, Rehoboth to certain Mr. Du Plessis on 1 November 2012.
7. Correcting by restoring (the)
status quo ante which existed before the registration of
transfer of Erf No. 3, Block A, Rehoboth on 1 November 2012, with
8. Further and/or alternative
 This application is opposed by the first and second respondents
who have each filed an answering affidavit. These respondents, as
well as the applicant, have referred to the history which has
preceded this application. It is of some relevance and significance
to this application.
 The main thrust of this application is this attack upon the
Registrar’s decision to declare certain immovable property
which belonged to the applicant (the property) as executable. This
happened in the course of a judgment granted by default at the
instance of Nedbank Namibia Limited (Nedbank). Nedbank’s claims
against the applicant were in respect of two loan agreements in the
sums of N$88 733.61 and N$736 340.33 each secured by first and second
mortgage bonds over the property in question. Nedbank’s action
against the applicant was not defended. Nedbank thereafter applied
for judgment by default which was granted by the Registrar on 19 May
2009 in those amounts. A further order was made, declaring the
property as executable.
 After judgment by default was granted, a writ was issued on 22
July 2009. After some considerable time thereafter, the applicant
brought an application to rescind the judgment and to stay a sale in
execution due to take place on 8 March 2012. This rescission
application was served on 23 February 2012 and set down for 2 March
2012. It was subsequently heard on 20 March 2012 and was dismissed
with costs by Ueitele AJ (as he then was) on that date.
 The applicant noted an appeal against the judgment of Ueitele AJ
on 22 March 2012. But the appeal subsequently lapsed by virtue of the
failure to file a record of proceedings.
 Given the lapsing of the appeal, Nedbank subsequently sought to
proceed with a sale in execution. It was set for 27 September 2012.
The applicant then brought an interlocutory application as one of
urgency and set it down for 25 September 2012. It was served on
Nedbank on the previous day. In this application, the applicant
applied to stay the sale in execution. This interlocutory application
was opposed by Nedbank. Given the short service upon it, Nedbank
sought time to file an answering affidavit. The interlocutory
application was postponed to 14h15 on 25 September 2012 for that
purpose. The applicant only received the answering affidavit at noon
on that day. That occurred after an indication had been given that it
would be served by 10h30. He asked that it should not be received as
a consequence. This was declined and the matter was however postponed
to the next morning, 26 September 2012, to enable the applicant to
consider the answering affidavit. More time was sought by the
applicant on the following morning and at the resumption of the
hearing at 12h00 on 26 September 2012, a full replying affidavit was
filed by the applicant.
 During argument in that interlocutory application on 26 September
2012, it soon emerged that the applicant had been aware of the
pending sale for some time as well as the fact that the Registrar’s
office had taken the view that the appeal had lapsed which was
accepted by the applicant in the course of his argument. This meant
that the suspension of the judgment appealed against by him would no
longer arise and that Nedbank would be entitled to proceed with
execution in the absence of an order to the contrary effect.
 The applicant however was unable explain why he had taken until
the very eve of the sale in execution to bring the interlocutory
application. After the conclusion of argument on 26 September 2012,
this court declined to hear the application as one of urgency,
finding that any urgency had been self created or self induced. The
interlocutory application was then struck from the roll with costs.
 The sale in execution thereafter proceeded and a certain Mr M. Du
Plessis purchased the property at that sale. I understand from the
applicant’s founding affidavit in this application that the
Registrar of Deeds, Rehoboth proceeded to execute registration of the
transfer of the property to Mr Du Plessis on 1 November 2012 and that
transfer to that effect has thus taken place.
 The applicant then brought this application for review, seeking
to set aside the original decision of the Registrar to declare the
property executable and seeking the further and ancillary relief set
out in paragraphs 3, 4, 5, 6 and 7 of the notice of motion quoted
above, namely setting aside the writ and the purported decision of
the Deputy-Sheriff to sell the property by public auction and to
proceed with transfer and to set aside the ‘decision’ of
the Registrar of Deeds to execute registration of transfer. The
applicant also sought the restoration of the status quo ante
prior to 1 November 2012.
 The basis upon which the applicant seeks to review the decision
to declare the property executable and to challenge the other conduct
referred to in the notice of motion is a contention that it is
unconstitutional and invalid for the Registrar to have made such an
order – declaring the immovable property executable.
Significantly, the applicant does not challenge the other portions of
the default judgment in which he is directed to make payment of the
two claims in respect of the two loans in respect of which the
property was provided as security in the form of the two mortgage
bonds. As was pointed out by Mr Phatela with reference to the
applicant would not appear to have contest this liability in respect
of those loans (although he did briefly take issue with finance and
interest charges in his rescission application). In this application
he confines himself to challenge constitutionality of the Registrar
declaring the property executable. The further relief sought in the
notice of motion would appear to be consequential upon succeeding
with the objection to the constitutionality of the Registrar
declaring the property executable.
 In the founding affidavit, the applicant also seeks condonation
for any delay in bringing it. In support of the application for
condonation, the applicant states that he only acquired knowledge of
the default judgment during February 2012 and thereafter launched his
rescission application, set down in March 2012 and already referred
to. The affidavit in support of the rescission application is
attached to this application. In it, the applicant raised the
constitutionality of the Registrar to grant default judgment against
him. The applicant further stated that he is a lay litigant, lacking
knowledge and experience in law and procedure and mostly relying upon
his own research and preparation.
 In the first respondent’s answering affidavit, the
preliminary point is taken that there was an unreasonable and undue
delay in bringing the application. The first respondent points out
that the default judgment was granted on 19 May 2009 and points out
that the applicant does not explain details of the circumstances
which would render the considerable delay reasonable, apart from
stating that he only became aware of the default judgment in February
2012. It is contended that the failure to do so would result in the
application being dismissed.
 The second respondent also raises the preliminary point of the
failure to have brought the application within reasonable time. But
two further preliminary points are also raised. The point of
non-joinder is taken. The second respondent points out that Nedbank
and Mr. Du Plessis both have a direct and substantial interest in the
outcome of the application for review and points out that neither was
joined. The submission is made that their non-joinder is fatal to the
 A further preliminary point taken by the second respondent is
that the court is functus officio on the main relief sought.
He referred to the court file and the previous applications launched
by the applicant, including the rescission application in which the
rescission of the judgment was sought on the grounds that it was
unconstitutional for the Registrar to have granted the default
judgment in question, including the order that the property be
declared executable. The applicant sought to appeal against that
order. The Registrar also opposed the application on its merits.
 In the heads of argument prepared on behalf the Registrar, the
point is also taken that the Registrar’s decision is not
reviewable in as much as it is deemed to be a judgment of the court.
The submission is made that the order is judicial, and not
administrative and therefore not reviewable.
 Mr. Boonzaier, who appeared for the first respondent also
developed the unreasonable or undue delay point in his heads of
argument. He cited the leading case of Disposable Medical Products
Pty Ltd v The Tender Board of Namibia and Others
and referred to several cases which had followed it. Mr. Boonzaier
also provided further argument on the merits.
 The applicant also filed heads of argument, albeit out of time.
In his heads of argument, bearing the date of hearing, the applicant
contended that the decision to declare his immovable property
executable was a judicial act which could only be exercised by the
courts under Article 78 of the Constitution and not by the Registrar,
who he says is a civil servant and employee of the executive branch
of government. He argued with reference to authority that the
decision was a nullity. He also contended with reference to English
authority that, as a nullity, it would not be subject to prescription
and the principle of res judicata.
 The second respondent developed the points raised in the
answering affidavit in heads of argument which were prepared by Mr.
Phatela who represented the second respondent in arguing the matter.
 When the application became opposed, it was referred to case
management and on 14 August 2013, it was set down for hearing on 30
September 2013. Despite being dominus litus in this
application, the applicant did not appear at case management hearing
on 14 August 2013. The court order setting the matter down for
hearing on 30 September 2013 was served on him by the Deputy-Sheriff.
As I have indicated, the applicant was however aware of the date of
hearing and filed heads of argument even though they were filed late.
Those heads referred to the date of hearing.
 On Wednesday 25 September 2013, the court file was requisitioned
by the applicant presumably for the purpose of preparing an index and
paginating the papers. But an index was not prepared. Nor were the
papers paginated. Instead on Friday 27 September 2013, a handwritten
memorandum on government stationary was placed on the court file. It
was addressed ‘to whom it may concern’. The heading was
Januarie Narcissus. It stated the following;
certified that the above named is under our care since 22/09/2013,
date of admission at Windhoek Central Hospital, for reason of his
medical condition, and he will be kept until he complete (sic) his
treatment. Kind regards.’
There then followed a signature and a name inscribed which is not
legible. But what is legible is the prefix ‘dr’. On this
memorandum and over the signature is the stamp of the Ministry of
Health and Social Services, the Windhoek Central Hospital, dated 27
September 2013. This memorandum was not accompanied by any affidavit
or application for postponement. As is clear from the memorandum
itself, it does not specify the nature of the medical condition. Nor
does it state the duration of treatment. What it does however state
is that the applicant was admitted to the hospital on 22 September
2013. Given the fact that the file was requisitioned from my chambers
in the name of the applicant on 25 September 2013, I enquired from
both my secretary and from my research assistant if they had seen who
had requisitioned the file. My research assistant, Ms Kemanya
Amkongo, stated that she did not see who had requisitioned the file
but had during that week, namely starting on 23 September 2013, seen
the applicant in town on two occasions.
 When the matter was called, the applicant was absent. His name
was then called in the foyer. He did not appear. When this occurred,
I then referred to the requisition form on the file in the
applicant’s name and placed that on record. I then called Ms
Amkongo to give evidence and place on record what she had informed me
prior to the commencement of the proceedings. This she did. She also
stated that she would easily recognise the applicant as she had been
in court when he had argued one matter and on another occasion when
he had attended to court.
 Given the fact that there was no application for postponement
and no admissible evidence which would form the basis for one, I
proceeded to hear the matter and argument advanced by Mr. Boonzaier
on behalf of the first respondent and Mr. Phatela on behalf of the
second respondent. It was incumbent upon the applicant to bring an
application for postponement should he have sought one and when doing
so to provide admissible evidence in support of it. There was only a
short memorandum placed on the court file. It did not state what the
condition referred to in it was and its prognosis. It merely
represented that the applicant had been admitted to hospital on 22
September 2013. After having carefully considered the heads of
argument and the papers in the matter and hearing the further
argument, I made an order dismissing the application with costs, to
include one instructed and one instructing counsel where engaged, and
that the costs would be on a legal practitioner and client scale.
What follows are my reasons for doing so.
 It is abundantly clear that Nedbank and Mr. Du Plessis have a
direct and substantial interest in the relief sought by the
applicant. They were not joined. The point was squarely taken in the
second respondent’s answering affidavit filed on 15 February
2013. Despite this, the applicant took no steps to join them.
 Nedbank Namibia was after all the judgment creditor and had
obtained the order sought to be set aside. Mr. Du Plessis was the
purchaser of the property. It had been registered in his name.
Plainly both of these parties had a very real substantial and direct
interest in the relief sought in this application. The applicant had
notice of the point of non-joinder on 15 February 2013. But despite
this did not join them.
 On this basis alone, and in the exercise of my discretion, I
would and do dismiss the application with costs.
 There are further reasons why the application would fall to be
 As was contended by Mr Phatela, this court has already dealt
with the fundamental issue raised in this application when the
applicant applied on the same basis for rescission of the judgment
and the order. The basis upon which rescission was sought was that it
was unconstitutional for the Registrar to have made that order. That
is the basis upon which the applicant has in this application sought
to set aside the very same order.
 This court dismissed the rescission application on 20 March
2012. The applicant noted an appeal against that dismissal. Not only
would this court appear to be functus officio in relation to
that issue, the decision having been made by Ueitele, AJ in the
rescission application, but it would also appear to be res
judicata, given the fact that final judgment had been given
between the same parties in respect of the same thing on the same
ground. The fact that an appeal had been noted is of course no answer
to a plea of res judicata which is essentially the
point taken by the second respondent in raising a functus
 There is also further reason why the application would fall to
be dismissed. It concerns the point taken on behalf of the second
respondent that the order declaring the property as executable does
not constitute administrative action for the purpose of a review and
is thus not susceptible to review proceedings in the High Court. As
was argued by Mr. Boonzaier with reference to authority,
the order itself is judicial in nature and deemed to be a judgment of
this court. As an order of this court, that it would not therefore be
susceptible to review in an application to this court. For
this reason as well, the application would fall to be dismissed.
 There is a yet further reason why the application would in my
view be dismissed without even turning to the merits. That is on the
basis of the point taken by both respondents opposing the application
that it had not been brought within a reasonable time and that there
had been undue delaying in doing so.
 In applying the Disposable Medical Products matter, it is
clear to me that the delay in this matter caused prejudice to the
other parties which had not even been cited. The other important
principle referred to in that matter would also apply, namely that
there should be finality in proceedings. The applicant in this
application failed to adequately explain his delay in bringing the
review application. It would follow that it also would fall to be
dismissed on this ground as well.
 Given the fact that the application would in my view be
dismissed on one or more of these preliminary grounds, it is not
necessary for me to canvass the further issues raised by it,
including whether the conduct referred to in paragraphs 3 to 6 of the
notice of motion constitutes decision making and administrative
action susceptible to review.
 As for the question of costs, the second respondent has sought a
special order as to costs in the answering affidavit. Mr. Phatela
argued that the application constituted an abuse of process in the
circumstances given the fact that the point upon which this
application is based had already been raised and decided in the
rescission application. I am persuaded that his submission is sound
in all the circumstances of this matter and given its history. I am
not however persuaded that an order on the scale requested, namely
the attorney and own client should be given. But I am persuaded that
an order on the scale of attorney and client would be appropriate in
the exercise of my discretion. I accordingly granted an order on that
scale and also to also to include the costs one instructing and one
instructed counsel, where engaged.
 These are the reasons for the order I gave on 30 September 2013.
FOR THE APPLICANT: Non appearance
FOR THE 1ST RESPONDENT: Mr Boonzaier
Instructed by: Government Attorney
FOR THE 2ND RESPONDENT: Mr Phatela
Instructed by: Dr Weder, Kauta & Hoveka Inc.