Naruseb and Others v Government of the Republic of Namibia and Another (A 12/2014) [2014] NAHCMD 74 (19 February 2014);


Legal practitioner - Misconduct - Unprofessional conduct - what constitutes - applicants’ legal practitioner failing to appear on two occasions at the time that he had set down the same urgent application – Court holding that it is a legal practitioner’s professional duty, to present him or herself – punctually - at court - at the set time - for any hearing – and – that the failure to do so without lawful excuse amounted to unprofessional conduct.

Practice – effect of court’s order striking an application from the roll - Where a court refuses to condone the non-compliance with the rules that is, generally speaking, the end of that particular process unless the court gives other directions regarding its prosecution or unless the parties otherwise agree. Because there was no adjudication on the merits of the disputes between the parties, a litigant may, now in the ordinary course and using the prescribed form, bring such dispute before the court. However, once the matter is struck from the roll for lack of urgency, it is no longer part of the litigious process and an applicant is left with various options which he can choose from.

Practice - in Swakopmund Airfield CC v Council of The Municipality of Swakopmund applied – the Supreme Court formulated the general rule that, once a matter has been struck from the roll, it is no longer before the court and that generally speaking, that is the end of that process.  The Supreme Court has however qualified this general rule by also expressly stating that this would only be so, unless the court gives other directions, regarding the further prosecution of such application, or unless the parties otherwise agree - In casu the court did give such other directions, regarding the further prosecution of the application, in its case management orders of 7 and 14 February 2014 - In addition the application was also served on the respondents after it was struck on three prior occasions – In order to blow new life into the struck application, the applicants were obliged to serve the application, which they did – applicants also delivering a further notice of re-instatement on 18 February 2014, in their quest to formalise the renewed hearing of the application - In the circumstances it was then held that the application did serve properly before the court.

Spoliation - Mandament van spolie - Applicants possession of water and electricity supply interfered with – Water and electricity supply capable of being protected through spoliation proceedings - Possessor must prove actual possession and not right to possess - On papers not contested that applicant had uninterrupted possession - Respondent not denying interference with possession - Spoliation order accordingly granted pendent lite.



Headnote and Holding: 

The 1st respondent had disconnected the water and electricity supply to Block A and B of the Nurses Home affiliated to the Windhoek Central Hospital – applicants were residing is such quarters – right of occupation disputed and subject to pending eviction proceedings in the High Court – as the applicants had shown their actual possession of water and electricity – and in circumstances were the 1st respondent did not deny interference with such possession in pursuance of a notice to cut off water and electricity to the nurses quarters – spoliation order granted until finalization of pending eviction proceedings.