Case No.: A. 340/2000

IN THE HIGH COURT OF NAMIBIA

In the application of:

and

CORAM: LEVY, AJ Heard on: 2000-11-15
 Delivered on:  2000-11-17
 JUDGMENT
LEVY, AJ:    This application is brought to Court as a matter of urgency.

Mr P J  v  L Henning S.C and with him Mr J A N Stryom appear for the applicant and Mr R Heathcote is acting for respondent.

In its Notice of Motion applicant prayed for the following orders:

"1. That the Honourable Court shall, in terms of Rule 6(12)(a) of the Rules of this Honourable Court dispense with the time limits provided for in those rules and deal with this matter as one of urgency.
1.	Ejecting the respondent from the Phillip Troskie Building situated at Erf 842, Windhoek, as well as from house number 65 situated on Erf 1209, Windhoek ("the premises").
2.	In the alternative to paragraph 2, declaring the occupation of the premises by the respondent to be unlawful.
3.	Ordering the respondent to pay the costs of this application.

4.	That the application was not urgent.
5.	That the students occupying rooms in the building should have been joined as corespondents.
6.	
7.	That applicant should not have come to court by way of Notice of Motion as to its knowledge, there was a dispute of material facts which could not be decided on motion.

I deal with the question of non-joinder first because a certain admission in Mr Heathcote's Heads of Argument goes to the root of the dispute between the parties. In paragraph 14 of his heads he

says:

"The Respondent in this matter, is not holding the property through or under the Applicant."

It is common cause furthermore that the students are sub-tenants of respondent. Furthermore as students there is no degree of permanence in their tenure.

1 therefore dismiss Mr Heathcote's contention that the sub-tenants should have been joined in these proceedings.

The main thrust of Mr Heathcote's argument was that the applicant should not have come to Court as a matter of urgency as the dispute between the parties had been raging for over a year.

The essential differences between those cases and the instant case is that in the present case the evidence supported by photographs is that the misuse of the premises by the students and the fdth and dirt in the premises makes these premises look like the Augean stables which Hercules was required to clean as one of his labours. In addition photographs show handles off doors and even u damaged fire extinguisher on the floor. Mr Heathcote argues that these photographs were taken at a time that the cleaner was not on duty. It is unfair to blame a cleaner for the condition of the rooms and passages which are being let for people to live and study therein. A cleaner cannot he expected to repair broken doors and tiles.

An applicant is entitled to preserve its property from treatment of this nature.

Furthermore, the owner is not receiving one cent for property which has an agreed rental valuation of N$60 000-00 per month.

The aforegoing makes this an urgent application and in the circumstances of this case, applicant would not "have been afforded redress at a hearing in due course". If applicant had come to Court in the prescribed way, it would have involved considerable lapse of time. It's property would have deteriorated further and the financial loss would have increased and the prospects of recovering financial compensation appears to be remote. Investigations into respondent's financial position indicate that there is no immovable property registered in his name and the business of "The Little Sex Shop" which he once conducted is no longer functioning. Mr Heathcote points out that the applicant has delayed four to five months during which time he has not done anything and that the urgency is "self-contrived". The fact that a creditor delays in suing his debtor is not a justification for the debtor's failure to fulfil its obligations. In this case, the applicant only had knowledge of the condition of the building when an inspection thereof took place and the photographs were taken.

This is indeed an urgent matter and recourse to Rule 6(12)(a) was fully justified. Mr Heathcote's objection in respect of lack of urgency is dismissed.

It is true that more than a year ago applicant instituted action against respondent for ejectment and that an application for summary judgment in that matter was dismissed. However, that matter was based on contract and this application is a vindicatory action. The ghastly condition of the premises, the filth and destruction of doors of rooms used for human habitation was not in issue. This was only recently discovered.

First of all it is not every dispute of fact raised by a respondent on the affidavits which prevents immediate adjudication. The dispute must be material to the issue.

The disputes referred to by Mr Heathcote in no way deal with or affect applicant's vindicatory action. Respondent does not dispute applicant's ownership of the immovable property or that he is in possession thereof. In fact, respondent concedes in his Heads of Argument (paragraph 14) that he "is not holding the property through or under the applicant". There is therefore no dispute on material issues.

The fact that an applicant sets out the history of the case in his affidavit does not necessarily detract from his vindicatory action.

The applicant was in the circumstances entitled to an order vindicating his property. I am not prepared to grant an order or express an opinion in respect of prayer 3 as this was not properly argued.

The order of the Court therefore is:
8.	That the applicant's failure to comply with the Rules of Court in respect of time limits in motion proceedings is condoned and the matter is heard on an urgent basis.
9.	

For the applicant:

\
instructed by
:
Advocate P.J.vL. Henning S.C. and with him Advocate J.A.N. Strydom
Messrs Ellis & Partners

For the respondent: Instructed by:

Advocate R. Heathcote

Messrs van Vuuren & Partners