NOT REPORTABLE

CASE NO.: I 2247/2010
IN THE HIGH COURT OF NAMIBIA
In the matter between:

and

CORAM:	NAMANDJE AJ
Heard on: 							22 September 2010
Delivered on: 							 22 September 2010 				
Reasons released on:						12 October 2010

JUDGMENT : URGENT APPLICATION

[2] The application first came before me on 20 September 2010 at 14h15 on an urgent basis. At that time the application was not, as yet, served upon the respondent. I postponed the matter to 22 September 2010 and directed that the application be served upon the respondent. The respondent was subsequently served with the application.

[4] The applicant approached this court on an urgent basis initially without notice to the respondent and at a time later than 09H00 am. She sought the following relief:
"(i) Condoning the Applicant's non-compliance with the Rules of this Honourable Court and the time periods prescribed therein in so far as these have not been complied with and directing that this matter be heard as one of urgency as contemplated in rule 6(12) of the Rules of this Honourable Court.

(iiii) Granting Applicant such further and or alternative relief as the above Honourable Court may deem fit.

(v)      That the Respondent pays the costs of this application."

[5] The applicant's application was said to be in terms of Rule 43 of the Rules of the High Court. It comprises of forty A4 pages inclusive of annexures attached to the founding affidavit. During the hearing the court asked counsel whether the applicant's application complies with the provisions of Rule 43(2) which provides that:

[7] The parties are presently involved in divorce proceedings. Based on the court file's contents a plea to the respondent's counterclaim has just been filed. If the parties keep to time periods provided for in the Rules of this Court a trial date can soon be applied for.

[8]     The applicant set out the purpose of her application in the following terms:

[9] The applicant makes several allegations of domestic abuse against the respondent and other allegations relating to his social life. In a number of annexures attached to the applicant's founding affidavit in particular correspondences from the respondent's legal practitioners' counter allegations which equally put in doubt whether the applicant is better positioned to be in custody and control of the minor children are also made by the respondent's legal practitioners against the applicant.

[10] What triggered the applicant's application is said to be the fact that the respondent on 15 September 2010 picked up the two minor children from their respective schools and kept them when the applicant was at the time enjoying the right of custody and control.

[11]    In motivating why her application should be heard on an urgent basis the

39.	
40.	On the day of deposing to this affidavit - 20 September 2010 - I confirmed from the schools of the children that the Respondent did not take the children to school, thus jeopardising the education and well being of the children even further.
41.	The children have been with me since their birth, even at the times when the Respondent and I were together (he would always be intoxicated and or away partying, and not attending to the children's concerns, needs or well-being). It is not in the best interest of the children that they are suddenly uprooted and placed with a person who is violent and generally neglect the children."

[12] While this court has a duty to ensure that the best interest of the minor children is, at all times, safeguarded, any litigant approaching this court on an urgent basis is, notwithstanding the fact that the matter pertains to minor children, bound to satisfy the
court of the alleged urgency. Proper and explicit facts should be placed before court to satisfy the requirements of Rule 6(12). One of the most important requirements to be satisfied before the court grants condonation for a matter to be heard on an urgent basis is that the applicant on the facts alleged cannot be afforded a substantial redress at a hearing in due course but on an urgent basis.

[13] Amongst the annexures attached to the applicant's founding affidavit is a notice of set down by the clerk of the Domestic Violence Court in Windhoek setting down a pending domestic violence inquiry for hearing on 30 September 2010.

[15] I cannot think of a good reason, why the applicant on the facts of this application could not wait for the hearing set down for 30 September 2010 at the Domestic Violence Court where the relief sought in this application could as well have been sought seeing that the minor children's custody and control issue was already dealt with by that court and a hearing in due course was imminent.
[16] The most glaring deficiency in the applicant's application, is however her failure to allege facts explicitly, as required, that make out a case that the applicant could not be afforded a substantial redress at a hearing in due course.

[17] Those are the reasons why the applicant's application was struck from the roll with costs.

NAMANDJE, AJ.