Rusch v Rusch (HC-MD-CIV-MOT-GEN-2022/00455) [2023] NAHCMD 270 (17 May 2023)

Case Title:

LYDIA RUSCH vs GEORGE HARALD RUSCH

Case No:

HC-MD-CIV-MOT-GEN-2022/00455

Division of Court:

HIGH COURT (MAIN DIVISION)

Heard before:

PARKER AJ

Date of hearing:

25 APRIL 2023

Delivered on:

17 MAY 2023

Neutral citation: Rusch v Rusch (HC-MD-CIV-MOT-GEN-2022/00455) [2023] NAHCMD 270 (17 May 2023)

ORDER:

1. The plea of res judicata is upheld.

2. The application is dismissed with costs; and the costs are to include the costs occasioned by the employment of one instructing counsel and one instructed counsel.

Reasons for the Order:

PARKER AJ:

[1] The bonds of marriage that existed between the parties were dissolved by a final order of divorce granted on 4 June 2021 in Case No. HC-MD-CIV-ACT-MAT-2019/01753. In paragraph 2 of the order, the court ordered that a liquidator must be appointed to assist the parties with the calculation of the accrual of their estate and the division thereof. In an application by the applicant (plaintiff in the action) under Case No. HC-MD-CIV-MOT-GEN-2022/00455, the applicant seeks an order to amend/vary the final order of divorce whereby the appointment of a liquidator is to be replaced with the appointment of a receiver. Ms Petherbridge represents the applicant.

[2] The respondent (the defendant in the action), represented by Mr Small, has moved to reject the application and pleaded res judicata.

[3] In that regard, what the respondent should establish to succeed is to show that the same cause between the same parties (or their successors in title), concerning the same subject matter and founded upon the cause of complaint has been tried and a final judgment has been delivered. Thus, a plea of res judicata will succeed if it was established also that a matter in a subsequent case formed an integral part of the determination in the earlier case.¹

[4] For the conclusion that the divorce order granted on 21 June 2021 is a final order, I need only to cite Di Savino v Nedbank Namibia 2017 (3) NR 880 (SC).² Therefore, Ms Petherbridge’s reliance on the passage in Court–Managed Civil Procedure of the High Court³ is misplayed. That passage concerns rulings on procedural proceedings, eg condonation applications, which do not ‘finally dispose of the rights of the parties’, because they are ‘interlocutory in nature’; and in ‘such circumstances, an issue such as res judicata could not be raised’. As I have said, the 21 June 2021 order is a final order through and through, and so Knouwds NO is of no assistance on the point under consideration. Furthermore, the matter to be determined in the present application (ie the subsequent case) formed an integral part of the determination in the earlier case.⁴

[5] The applicant does not say that the 21 June 2021 order is wrong or that the court was not competent to grant it. The applicant is unhappy with ‘the lack of cooperation on the side of the respondent’ in the implementation of that order. If that is the case, then the applicant’s remedy lies elsewhere.

[6] On the papers and upon the foregoing authorities, I find that the respondent has made out a case to sustain the special plea of res judicata. In the result, I order in the following terms:

1. The plea of res judicata is upheld.

2. The application is dismissed with costs; and the costs are to include the costs occasioned by the employment of one instructing counsel and one instructed counsel.

Judge’s signature

Note to the parties:

Not applicable.

Counsel:

Applicant

Respondent

M PETHERBRIDGE

of

Petherbridge Law Chambers, Windhoek

A J B SMALL

of

Theunissen, Louw & Partners, Windhoek