Author: jacky
Last saved by: Walter

CASE NO.: A 27/2012
								     
           REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

AUGUST MALETZKY	1^STAPPLICANT
WILMA EVELINE HOABES	2^ND APPLICANT
SALMAAN DHAMEER JACOBS	3^RD APPLICANT
ANNARINE JACOBS	4^TH APPLICANT
CALISTA ANNA BALZER	5^TH APPLICANT
RONNEY REINHOLD HANGULA	6^TH APPLICANT
SIEGFRIED BROCKERHOFF	7^TH APPLICANT
EVANGELINE EICHAB	8^TH APPLICANT
DORKA VICTORINE SHIKONGO	9^TH APPLICANT
EDUARD PAUL XOAGUB	10^TH APPLICANT
FRANCIS EVELINE XOAGUS	11^TH APPLICANT
ABRAHAM MAPELA PETRUS	12^TH APPLICANT
ROMEO MOUTON	13^TH APPLICANT
ANTON HERMANN	14^TH APPLICANT
JOHANNES NEUAKA	15^TH APPLICANT
LISA RHODE	16^TH APPLICANT
FILIMON HOXOBEB	17^TH APPLICANT
FRANCOIS DARIES	18^TH APPLICANT
FRANS NAIBAB	19^TH APPLICANT
ISABELLA ISABEAU	20^TH APPLICANT
CORISTOFFEL STEENKAMP	21^ST APPLICANT
KATRINA FRANCINA STEENKAMP	22^ND APPLICANT
LAZARUS GAROEB	23^RD APPLICANT
ANNA MARIE HENDRIKS	24^TH APPLICANT
VICKSON HANGULA	25^TH APPLICANT
GAFENI HAIKOTI	26^TH APPLICANT
PAULINA GARISES	27^TH APPLICANT
PHILLIPUS GARISEB	28^TH APPLICANT
JOHANNES HAGGINS AUPAPA NIIGAMBO	29^TH APPLICANT

and

STANDARD BANK NAMIBIA LIMITED	1^ST RESPONDENT
NEDBANK NAMIBIA LIMITED	2^ND RESPONDENT
HES SHIKONGO	3^RD RESPONDENT
FIRST NATIONAL BANK OF NAMIBIA LIMITED	4^TH RESPONDENT
WINDHOEK MUNICIPALITY COUNCIL	5^TH RESPONDENT
SWABOU INVESTMENTS (PTY) LTD 	6^TH RESPONDENT
VSV ENTERPRISES NUMBER SIXTY CC AND/OR
NOMINEE J P VAN STADEN OR L J VAN STADEN	7^TH RESPONDENT
ALEXANDER HOVEKA	8^TH RESPONDENT
HARTMUST GERHARD FOELSCHER	9^TH RESPONDENT
MINISTER OF JUSTICE	10^TH RESPONDENT
REGISTRAR OF HIGH COURT	11^TH RESPONDENT
CLERK OF THE MAGISTRATE’S COURT	12^TH RESPONDENT
REGISTRAR OF DEEDS	13^TH RESPONDENT
ATTORNEY-GENERAL	14^TH RESPONDENT
THE DEPUTY-SHERIFF	15^TH RESPONDENT
VAN DER MERWE-GREEFF INC.	16^TH RESPONDENT
BANK WINDHOEK LIMITED	17^TH RESPONDENT
SOUTH WEST AFRICAN BUILDING SOCIETY	18^TH RESPONDENT
RISTO SHIKULO	19^TH RESPONDENT
JULIA THANDU NEUAKA	20^TH RESPONDENT
GERARDT DE KLERK	21^ST RESPONDENT
SHARON DE KLERK	22^ND RESPONDENT
BANK OF NAMIBIA	23^RD RESPONDENT
BOY TOBIAS VAN WYK	24^TH RESPONDENT
MORVEN M LUSWENYO	25^TH RESPONDENT
BUILDERS WAREHOUSE (PTY) LTD	26^TH RESPONDENT
ANTHONY ABRAHAMS	27^TH RESPONDENT
ABRAHAM GARISEB	28^TH RESPONDENT
MIEMIE GENGOS	29^TH RESPONDENT
PETRUS VILJOEN	30^TH RESPONDENT
DAWID JOHANNES WERNER	31^ST RESPONDENT
WILLEM KARUOOMBE	32^ND RESPONDENT
ELVISIA KARUOOMBE	33^RD RESPONDENT
IVAN JOSEPH CECIL DROTSKY	34^TH RESPONDENT
NATIONAL HOUSING ENTERPRISE	35^TH RESPONDENT
RONALDT KAPUOO	36^TH RESPONDENT
WOERMAN BROCK & CO. WINDHOEK (PTY) LTD	37^TH RESPONDENT
CONSTANCE MBAPAHA	38^TH RESPONDENT
SAM HALUPE	39^TH RESPONDENT
ADRIAAN MICHAU BASSON	40^TH RESPONDENT

CORAM:			MILLER, AJ

Heard on:			03 July 2012
Delivered on:			31 July 2012

JUDGMENT 

MILLER, AJ.: 	[1]	This is an interlocutory matter in terms of Rule 30 of the Rules of this Court.

[2]	The application is directed at what certain of the respondents allege are irregular steps taken by the applicants when they instituted motion proceedings against them and several other respondents.

[3]	At the hearing before me Mr. Totemeyer SC together with Mr. Obbes appeared for the 1^st, 6^th and 18^th respondents.  Mr. Totemeyer SC together with Ms. van der Westhuizen also appeared for the 5^th respondent.  Mr. Mouton appeared for the second respondent.  The first and 10^th applicants appeared in person to oppose the matter.

[4]	As matters turned out I heard submissions from Mr. Totemeyer only on behalf of the respondents, Mr. Mouton associated himself with the submissions made by Mr. Totemeyer.  Mr. Maletzky, the first applicant was the only applicant to address me at the hearing.

[5]	The first applicant submitted as a first point in limine that there was no clarity as to which legal practitioners had been instituted by the respondents.  He went on to challenge the authority of the legal practitioners to act on behalf of the respondents and submitted that it was incumbent upon the legal practitioners to file a power of attorney authorizing them to appear and act on behalf of the respondents.  I need not dwell on this point save to say it has no merit 

[6]	There is no such requirement in motion proceedings.  The point taken is dismissed.

[7]	In turn to consider the grounds advanced by Mr. Totemeyer I bear in mind that in so doing, I have discretion to grant or refuse the relief sought.  My discretion must be exercised judicially, and based upon a consideration of all the circumstances and what is fair to both sides.  Northern Assurance Co. Ltd v Somdaka 1960 (1) SA 588 A.

[8]	A Court will be entitled to condone in appropriate circumstances irregularities which do not have as their result that the other party is prejudiced by such irregularities.

[9]	In SA Lewensversekering v Leuw NO 1981 (4) SA 329 (O) Flemming J, held that:
	
“...the exercise of the Court’s discretion has been consistently led by the presence or absence of prejudice in relation to the exercise of a party’s procedural right or duty to respond to a communication received, or to the taking of a next step in the sequence of permissible procedures to ripen the matter for properly orderly hearing.  Where such prejudice is absent, a decision to set the irregular proceeding aside should not be granted.”

[10]	Likewise in Trans-African Insurance Co. Ltd v Mololeka 1956 (2) SA 273 (A) the Court stated at page 278 F the following:

“No doubt parties and their legal practitioners should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice.  But on the other hand technical objections to less than perfect procedural steps should not be permitted in the absence of prejudice to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

[11]	I do not deem it necessary to deal exhaustively with each of the steps taken by the applicants which the respondents contend are irregular.  I am prepared to accept that individually and collectively, the steps taken and complained of are to a greater or lesser degree irregular thus rendering the papers filed by the applicants less than perfect.

[12]	However when looking at the papers as a whole imperfect as they may be, none of the respondents who complain about them, can show that they are prejudiced by these irregularities.

[13]	In the result the applications are dismissed with costs, such costs to be limited to necessary expenses and disbursements. 

__________
MILLER AJ

ON BEHALF OF THE 1^ST & 10^TH APPLICANTS:		Appearing in person

ON BEHALF OF THE 1^ST, 6^TH & 18^TH RESPONDENTS:	Mr. Totemeyer assisted by
								Mr. Obbes
INSTRUCTED BY:						Fisher, Quarmby & Pfeifer

ON BEHALF OF THE 5^TH RESPONDENT:			Mr. Totemeyer assisted by 
								Ms. van der Westhuizen
INSTRUCTED BY:						Etzold-Duvenhage

ON BEHALF OF THE 2^ND RESPONDENT:			Mr. Mouton
INSTRUCTED BY:						Koep & Partners