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Muruko and Another v Kamatuku and Others (PA282/3006) [2006] NAHC 44 (6 December 2006)

.RTF of original document
CASE NO.: (P) A 282//2006
IN THE HIGH COURT OF NAMIBIA
In the matter between:           
CONSTANCIA MURUKO                                   1st Applicant
WILFRED KAZEURUA                                    2nd Applicant
and
GODFRIEDINE KAMBATUKU                      1st Respondent
WILHELMINE KAUNE HENGUA                    2nd Respondent
KAMUHANGA S HOVEKA                                  3rd Respondent
ROSEN KAUTA KAUNE                                   4th Respondent
UAUNDJA MBAUKUA                             5th Respondent
TJIRITJA MERORO                                      6th Respondent
KAURE TITEL KAUNE                                   7th Respondent
KAHUI KANDJOU                                        8th Respondent
KANGUU KANANGANDA                                   9th Respondent
KATJAZAPI KAUNE                                      10th Respondent
KAZASU HOVEKA                                        11th Respondent
VATA KAUNE                                                    12th Respondent
KANDORE KANDJOU                             13th Respondent
KAIHUUE KATJIOVA                                    14th Respondent
KUVERI KANDJOU                                       15th Respondent
KAANA KAMBATUKU                             16th Respondent
JOONI MUNJONE                                        17th Respondent
JOGBETH KAMUHANGA                                   18th Respondent


CORAM:                     PARKER, J
Heard on:                          2006 November 28
Delivered on:             2006 December 6
_________________________________________________________
JUDGMENT:
PARKER, J.:
[1]      In this application brought on notice of motion, the applicants seek an order in the following terms:
1.      
That the Court condones the applicants’ non-compliance with the Rules of this Court (“the Rules”) and the time periods prescribed therein in so far as these have not been complied with, and direct that this matter be heard as one of urgency as envisaged in Rule 6 (12) of the Rules.
2.      
That a rule nisi be issued calling upon the respondents to show cause on a date to be determined by the Honourable Court why the following order should not be made:
2.1     
ordering first, second, third, fourth, seventh and eighth respondents to restore second applicant’s possession of the unlawfully dispossessed 130 head of cattle (including any offspring);
2.2     
ordering the respondents to restore first applicant’s possession of the following items unlawfully dispossessed:
2.2.1   
two plastic dams;
2.2.2   
176 sheep (including any offspring);
2.2.3   
113 goats (including any offspring);
2.2.4   
water pipes;
2.2.5   
the house situated in the Okoukambe Village;
2.2.6   
120 cattle (including any offspring);
2.2.7   
the zinc sheets;
2.2.8   
five black cooking pots;
2.2.9   
a feeding trough;
2.2.10  
two water troughs;
2.2.11  
three spades;
2.2.12  
100 metres of black plastic piping;
2.2.13  
one water tap;
2.2.14  
the 1972 Ford F pick-up motor vehicle;
2.2.15  
the trailer used for the conveyance of livestock;
2.2.16  
the axle belonging to the aforementioned trailer.
2.3     
ordering respondents to pay the costs of this application on a scale between attorney and client.
3.      
That the order in terms of subparagraphs 2.1 and 2.2 hereof shall serve as an interim interdict with immediate effect pending the finalisation of this application.
4.      
That the Court grants the applicants such further or alternative relief as the Court may deem fit.
[2]      The application, filed on 12 October 2006, was brought on urgent basis but it was heard in due course on 29 November 2006, after it had been postponed twice, on 13 November and 20 November 2006. The respondents had the opportunity to file answering papers before the hearing.

[3]      Before I deal with the main application, I wish to treat the preliminary applications that were brought by the applicants so as to get them out of the way at this stage:

(1)     
The r. 30 application: The respondents did not oppose the application; they, indeed, tendered costs for the applicants’ filing of the r. 30 application.
(2)     
Wasted costs, 13 November 2006 postponement: I find that the postponement was at the instance of the respondents.
(3)     
Wasted costs, 20 November 2006 postponement: It is common cause between the parties that the 20 November postponement was not at the instance of any party.
(4)     
Application to strike out parts of the 2nd respondent’s answering affidavit: It is important to note that the respondents did not file any opposing papers. Counsel for the respondents was allowed to argue their opposition from the Bar.
(a)     
With the greatest respect, I fail to see on what basis the applicants contend that subparagraph 3.7 and a certain portion of paragraph 32 introduce inadmissible and irrelevant opinion evidence. From the papers filed of record, I find that the deponent of the answering affidavit, Wilhelmine Kaune Hengua, the 2nd Respondent, is an adult sister of the late Erwin Kaune (whose estate is the subject of these proceedings) and they are of Otjiherero descent. I accept that she is stating in subparagraph 3.7 and in the portion of paragraph 32 what, according to her, are matters of her personal knowledge, and she swears that what she states is true: she does not put herself out as an expert. I am not satisfied that the applicants will be prejudiced within the meaning of r. 6 (15) of the Rules of the Court if the application to strike out is not granted. If during the hearing of the main application (the spoliation application) in due course subparagraph 3.7 and the portion of paragraph 32 are found to be not capable of assisting the Court in making a determination, the Court will not take cognizance of them. That being the case, the application to strike out subparagraph 3.7 and the portion of paragraph 32 cannot succeed.
(b)     
Mr. Obbes’s submission is that the confirmatory affidavits of the 5th, 6th, 7th, 8th, 10th, 11th, 12th, 13th, 14th, 15th and 18th Respondents (the 11 affidavits) predate the 2nd Respondent’s answering affidavit (settled on 9 November 2006), which the 11 affidavits (settled on 8 November 2006) sought to confirm. Consequently, he submitted, the 11 affidavits are irrelevant and a nullity, and so they should be struck out. Mr. Corbett concedes that the 11 affidavits do predate the answering affidavits, but he prayed from the Bar that the Court should condone the irregularity and accept the 11 affidavits. It is Mr. Obbes’s contention that a proper application ought to have been made in the circumstances. I agree with Mr. Obbes in that regard. But he does not persuade me in the least as to what prejudice the applicants would suffer if the application to strike out was not granted. Each of the 11 affidavits consists of two paragraphs – and they are all substantially identical in material respects: the first paragraph deals with the details of the person of the deponent, and the second the fact that the deponent confirms the answering affidavit of the 2