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CASE NO. A 126/09

IN THE HIGH COURT OF NAMIBIA

In the matter between:

NAMIBIAN WATER SKI ASSOCIATION 1^st APPLICANT

NAMIBIAN WATER SKI CLUB 2^nd APPLICANT

VON BACH WATER SKI CLUB 3^rd APPLICANT

and

THE MINISTER OF WORKS, TRANSPORT AND

COMMUNICATION 1^st RESPONDENT

THE MINISTER OF ENVIRONMENT AND TOURISM 2^nd RESPONDENT

PENDA SHIMALI NO 3^rd RESPONDENT

CORAM: MANYARARA, A.J.

Heard on: 12 May 2009

Delivered on: 12 May 2009

Reasons on: 11 June 2009

REASONS

MANYARARA, A.J.: [1] On 12 May 2009 I dismissed with costs the respondents application which claimed inter alia the discharge the rule nisi granted in this matter, with reasons to follow. These are they.

[2] On 10 April 2009, which was Good Friday, the applicants approached this Court on an urgent basis for the following relief-

“1. That pending the outcome of the proceedings to be instituted in terms of B below:

1.1 First, second and third applicants’ peaceful possession of the premises, structures, facilities and infra-structure erected by the members of the applicants at the Von Bach Game Park be restored.

1.2 Respondents be ordered to remove all chains and locks on the access gates to the Von Bach Game Park, which were installed to prevent the members of the applicants to access their leased premises and property at the Von Bach Game Park.

1.3 Respondents be interdicted from dispossessing the applicants and their members from their leased premises and other moveable property situated at the Von Bach Game Park.

1.4 That the Station Commander of the Okahandja Namibian Police be ordered to assist the Deputy Sheriff in the execution of the Court order given by this Honourable Court for the interim relief.

1.5 Such further and/or alternative relief as the Court may deem fit.”

[3] The founding affidavit was filed by Martin Robert Heinrich Schmidt, the chairperson of the first applicant and member of the Management Committee of the third applicant on behalf of all the applicants. He averred that the second and third applicants entered into lease agreements with the first respondent in terms of which certain premises at the Von Bach Game Park were leased to them. The expiry date of the current renewed lease agreements is around or during November 2012 and at a meeting held on 03 April 2009 it was agreed between all parties that the current lease agreements are valid. However, there is a pending dispute concerning the rights of the applicants in terms of the lease agreements.

[4] The affidavit continues as follows:

“1. On the morning of Friday, 10^th April 2009 at around 7h20, the third respondent installed certain locks and chains onto the access gates of the Von Bach Game Park, thereby unlawfully preventing the members of the applicants to enter into and/or exit the premises which they are the lessees of, or the premises of the Von Bach Game Park at all.

2. The third respondent and/or the other officials, who it is believed are acting on instructions of the third respondent, have refused to remove such chains and/or locks from the entrance gates to allow the applicants and their members access to their property.

3. The measures taken by the third respondent is (sic) unlawfully preventing the applicants and their members to access their property situated at the leased premises.

4. Prior to the unlawful action of the third respondent referred to above, the applicants and their members were in peaceful possession of the leased premises and their other property, both moveable and immoveable, situated thereat.

5. It is submitted that the third respondent, by installing certain locks and chains at the gates, has unlawfully, without applicant’s consent and without due legal process, deprived the applicant of its peaceful possession of the leased premises.”

[5] The averments satisfied the Court that the matter was urgent and that the relief claimed is the relief normally granted under Mandament von Spolie for the restoration of peaceful possession of property. Accordingly, an order was granted in terms of the Notice of Motion and the applicant’s counsel undertook to have copies of the order served on the respondents.

[6] On 11 May 2009 the Government Attorney filed a document styled “Notice to Anticipate” and that “the matter will be heard on Tuesday 12 May 2009 at 09:00.” The notice cited the Government Attorney as “Legal Practitioners for Applicants” and the respondents’ lawyers as “Legal Practitioners for the Respondents.” This was ratter confusing as the document accompanying the above notice reverted to citing the parties’ legal representatives as cited in the spoliation application and the Order granted by the Court and in this judgment I shall refer to the parties as they are cited in the spoliation proceedings.

[7] On the morning of 12 May 2009 the respondents produced a further document, styled “Respondents’ Notes on Argument”, presumably in support of the first mentioned document. The second document stated as follows-

“1. On 10 April 2009 the applicants served the court order on the third respondent and the application was served on the other respondents on 14 April 2009 [It is recalled that 10 to 13 April 2009 was the Easter weekend].

2. The respondents served the first Notice to anticipate on the applicants’ legal practitioners on 11 April 2009 for hearing on 12 April 2009. This Notice was subsequently withdrawn. On 30 April 2009, the respondents served the second Notice to anticipate on the applicants advising that the application will be heard on 05 May 2009 at 09:00. This application was by agreement removed from the roll.

2. A fresh Notice to anticipate was filed on 11 May 2009, informing the applicants that the matter will be heard on 12 May 2009 at 09h00.

2. Notably absent from the ex parte final order (sic) is a rule nisi calling upon the respondents to show cause at a given date and time why the orders should not be made final (sic).

2. The final orders (sic) were granted in clear violation of the long established principle of audi alteram partem.

B. RULE 6(8)

6. Rule 6(8) of the High Court Rules reads;

“Any person against whom an order is granted ex parte may anticipate the return day upon delivery of not less than twenty-four hours notice.”

[8] It is apparent that the respondents have misconstrued Rule 6(8). The Rule does not dispense with Rule 4(a) which requires the notice to comply with Form 2(a) and be filed with the Registrar and set down before noon on the court day but one upon which it is to be heard.

[9] If followed that the documents filed by the respondents were fatally defective by reason of non compliance with the Rules and the respondents’ “application” stood to be dismissed on that ground alone.

[10] The respondents’ further contention that the Notice of Motion should have given a return date and time why the order should not be made final contradicts the respondents’ submission on the meaning of ex parte which they correctly set out as follows-

“The phrase ‘ex parte’ in Rule 6(4) contemplates the situation in which an application is brought without notice to anyone, either because no relief of final nature is sought against any person, or because it is not necessary to give notice to the respondent.”

[11] The contradiction is an acknowledgement, be it unintended, that no relief of a final nature is sought. What is sought is only interim relief “pending the outcome of the proceedings to be instituted….. declaring the applicants’ and its members’ rights in terms of the existing lease agreements with the first respondent.”

[12] It is trite that the Court is interested in the substance and not the form of pleadings.

[13] It followed that there was no merit in the respondents’ “application” by whatever name called and it was accordingly dismissed with costs.

__________________

MANYARARA, AJ

ON BEHALF OF THE APPLICANTS Ms Schneider-Waterberg

Instructed by: Francois Erasmus & Partners

ON BEHALF OF THE RESPONDENTS Adv. Hinda

Instructed by: Government Attorney

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