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REPUBLIC OF NAMIBIA

CASE NO. A 173/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

GIDEON HAMUKWAYA APPLICANT

and

MATIAS KAPOFI RESPONDENT

CORAM: UEITELE, AJ

Heard: 16 June 2010

Delivered: 16 July 2010

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JUDGMENT

UEITELE, AJ: [1] In this application the applicant applied for urgent relief and on an ex parte basis.

[2] In the Notice of Motion the applicant prayed that a rule nisi be issued ordering: “… the first respondent (sic) to remove his building extension to the applicant’s building forthwith so as to restore immediately unhindered and peaceful possession and use of applicant’s building to the applicant, by demolishing the new structure (the extension) added to the respondent’s building which is adjacent to the applicant’s building.”

[3] The respondent filed a notice to oppose (supported by an affidavit) that application. On the date (i.e. 16 June 2010) set down for the hearing of the application the respondent appeared and applied for leave to oppose the ex parte application. I decided to grant the respondent leave to oppose the ex parte application. The application thus did not proceed as an ex parte application.

[4] Mr Namandje appeared on behalf of the applicant and Mr Denk on behalf of the respondent.

[5] Mr Denk in limine submitted that the “Applicant has not set forth explicitly the circumstances which he avers renders the matter urgent and the reason why he claims he could not be afforded substantial redress at a hearing in due course.” Mr Denk thus submitted that “… the provisions of Rule 6(12)(b) had not been complied with …”.

[6] Before I venture into the details of the protest raised by Mr Denk, I find it appropriate to restate the provisions of Rule 6(12)(b) (which I will in this judgment refer to as the rule) at this juncture.

[7] Rule 6(12)(b) reads as follows:

“(a) …

(b) In every affidavit or petition filed in support of an application under paragraph (a) of this sub-rule, the applicant shall set forth explicitly the circumstance which he or she avers render the matter urgent and the reason why he or she claims that he or she could not be afforded substantial redress at a hearing in due course.”

[8] The rule entails two requirements namely that:

1. The applicant must in his affidavit explicitly set out the circumstance which renders the matter urgent; and

2. The applicant must also in that affidavit set out the reasons why the applicant could not be afforded substantial redress at a hearing in due course. [See the case of Salt and Another v Smith (1990 NR 97]

[9] Having restated the provision of the rule, I now return to the submission of Mr Denk quoted above in paragraph 5 he further argued that: “Applicant’s submissions on urgency are found in paragraphs 12 to 15 of his affidavit. The crux of his submissions are that: “I have been advised that this kind of remedy madament van spolie is always granted to applicants on an urgent and ex parte basis to restore possession ante omnia.”

[10] The submission by Mr Denk necessitates an analysis of the applicant’s affidavit in order to determine whether or not the requirements of the rule have been met or complied with. I do so below.

1. Paragraphs 1-4 of the applicant’s affidavit introduce the applicant and the relief that he is seeking from this court;

2. Paragraphs 5-6 of the applicant’s affidavit simply describes the property;

3. Paragraphs 7-11 of the applicant’s affidavit provides the background information, and how the applicant detected the alleged spoliation, and the extent of the alleged unlawful deprivation of the plaintiff’s undisturbed and peaceful possession of the building;

4. Paragraphs 12-14 of the applicant’s affidavit are the paragraphs that set out the circumstances which allegedly renders the matter urgent.

[11] In paragraph 12 of the applicant’s affidavit the applicant says:

1. He cannot fully exercise the right of possession of the building, because “the door facing the respondent’s building has completely been sealed off and windows necessary for the healthy and ventilated atmosphere inside the building are now placed inside respondent’s building.”

2. The sooner the respondent removes his building the better.

3. He will not be able to be afforded substantial redress in due course if this application were to be brought only in the normal course.

4. The entrance door that is enclosed in the “extension/new addition” to the respondent’s building was recently broken by suspected thieves.

5. He has real fear that the door may be used by the respondent or his employees to gain access to his building.

[12] In paragraph 13 of the applicant’s affidavit the applicant says:

1. If the air conditioners malfunction he will not be able to get access to the machines without entering through the respondent’s building when it is open.

2. If he is not granted assistance by the court on an urgent and ex parte basis he will suffer irreparable harm.

3. Dr Gonteb has threatened to terminate his lease agreement with the applicant.

[13] From the above analysis of the applicant’s affidavit it may be so that the applicant has set out the circumstances that render the matter urgent, and thus the applicant has complied with the first requirement of the rule.

[14] But do the facts set out in paragraphs 12, 13 and 14 (paraphrased above in paragraphs 11& 12) of the applicant’s affidavit set out the reasons why the applicant could not be afforded substantial redress at the hearing in due course. I do not think so. The reasons why I have come to that conclusion is the fact that in paragraph 12, the applicant simply states that “… I will not be able to be afforded substantial redress in due course if this application were to be brought in the normal course.” The basis of this conclusion of fact is not laid out in the affidavit. Secondly in paragraph 13 of his affidavit, the applicant simply says that if he is not granted assistance by the court on an urgent basis he will suffer irreparable harm. Again this statement is not supported by facts and the nature of the “irreparable harm” is not set out.

[15] In the Salt case (supra) Muller AJ (as he then was) quoted with approval from the South African case of Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another [t/a Makin’s Furniture Manufacturers] 1977 (4) SA 135 the judgment by Coetzee J where he said:

“Mere lip service to the requirements of Rule 6(12)(b) will not do and applicant must make out a case in the founding affidavit to justify the particular extent of the departure from the norm, which is involved in the time and day for which the matter is set down.”

[16] The present case is a clear example of the applicant paying lip service to the requirements of Rule 6(12)(b).

[17] In the light of my finding that the applicant has not complied with Rule 6(12)(b) and in particular the second requirement of that rule. I do not find it necessary to deal with the other points raised by the counsel in their arguments.

[18] In the result I make the following order:

The application by the applicant is refused, on the grounds that the requirements of Rule 6(12)(b) have not been met, with costs.

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UEITELE, AJ

ON BEHALF OF THE APPLICANT: Mr S Namandje

Of: Sisa Namandje & Co

ON BEHALF OF THE RESPONDENT: Mr A Denk

Instructed By: Neves Legal Practitioners

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