REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING
Practice Direction 61
Case Title: Harold Schmidt 1st Applicant Faces Properties CC 2nd Applicant Central Park Investments CC 3rd Applicant Prestige Properties CC 4th Applicant Newton One Eight Nine CC 5th Applicant Shawnee's Investments CC 6th Applicant and Jean-Paul Schmidt 1st Respondent Naomi Schmidt 2nd Respondent Nemi Investments 71 CC 3rd Respondent Leo 107B CC 4th Respondent | Case No: HC-MD-CIV-MOT-GEN-2023/00312 | |
Division of Court: Main Division | ||
Heard: 28 July 2023 | ||
Heard before: Honourable Lady Justice Rakow | Delivered: 18 August 2023 | |
Neutral citation: Schmidt v Schmidt (HC-MD-CIV-MOT-GEN-2023/00312) [2023] NAHCMD 516 (18 August 2023) | ||
Order: | ||
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Reasons for order: | ||
RAKOW J: Introduction and background
Relief
‘The forms and service provided for in the rules of court are dispensed with, the applicants’ non-compliance with the forms and service provided for in the rules of court is condoned, the applicants are authorised to bring this application on an urgent basis, and this application is disposed of on an urgent basis as contemplated in rule 73 of the rules of court. 2.The respondents and or any person claiming occupation and or possession and or control through and or under them of the following immovable properties, including all buildings situated thereon (“the immovable properties”), owned by the second and third applicants as follows, are evicted with immediate effect from the immovable properties: Second applicant: CERTAIN: Erf no. 3188 Ongwediva (Extention no. 4) SITUATE: In the Town of Ongwediva Registration Division “A” MEASURING: 6,240 (six thousand two hundred and forty) square metres HELD BY: Deed of Transfer T1774/1997 Second applicant: CERTAIN: Erf no. 8384 (a Portion of Erf 3188) Ongwediva (Extention no. 4) SITUATE: In the Town of Ongwediva Registration Division “A” Oshana Region MEASURING: 2,324 (two three two four) square metres HELD BY: Deed of Transfer no. 8442/2018 Second applicant: CERTAIN: Erf no. 8385 (a Portion of Erf 3188) Ongwediva (Extention no. 4) SITUATE: In the Town of Ongwediva Registration Division “A” Oshana Region MEASURING: 1,089 (one nil eight nine) square metres HELD BY: Deed of Transfer no. 8443/2018 Third applicant: CERTAIN: Erf no. 6329 (a Portion of Erf 3304) Ongwediva (Extention no. 5) SITUATE: In the Town of Ongwediva Registration Division “A” Oshana Region MEASURING: 8,011 (eight thousand and eleven) square metres HELD BY: Deed of Transfer no. 6542/2007 Third applicant: CERTAIN: Erf no. 6330 (a Portion of Erf 3304) Ongwediva (Extention no. 5) SITUATE: In the Town of Ongwediva Registration Division “A” Oshana Region MEASURING: 1,1813 (one comma one eight one three) hectares HELD BY: Deed of Transfer no. 6542/2007 3. The respondents and or any person claiming occupation and or possession and or control of the immovable properties through and or under them are ordered to restore with immediate effect occupation, possession and control of the immovable properties to the second and third applicants respectively. 4. In the event that the respondents and or any person claiming occupation and or possession and or control of the immovable properties through and or under them fail and or refuse and or neglect to vacate and restore the immovable properties as ordered above, the sheriff of the Court or his deputy is authorised and directed to immediately effect their eviction and restore occupation, possession and control of the immovable properties to the second and third applicants respectively. 5. Any and all costs occasioned by the eviction and restoration shall be paid by the respondents and or any person claiming occupation and or possession and or control of the immovable properties through and or under them jointly and severally, the one paying the other to be absolved. 6. The respondents and or any person claiming occupation and or possession and or control of the immovable properties through and or under them are interdicted and restrained from: 6.1 dealing with the immovable properties in any way whatsoever; 6.2 interfering, in any way whatsoever, with the second and third applicants’ respective ownership, occupation, possession and control of the immovable properties. 7. The respondents and or any corresponding contracting person claiming occupation and or possession and or control of the immovable properties through and or under them are ordered to immediately provide the second and third applicants with any and all lease agreements concluded in respect of the immovable properties. 8. The respondents and or any person who holds same on their behalf are ordered to immediately provide the applicants with all of the applicants’ respective book keeping and financial records, including all of the applicants’ respective financial information and documentation, in their possession and or control. 9. In the event that the respondents and or any other person referred to in the two preceding paragraphs fail and or refuse and or neglect to provide the lease agreements, the book keeping and financial records, and or the financial information and documentation as ordered above, the sheriff of the Court or his deputy is authorised and directed to search and seize same from them in any way necessary for handover to the applicants respectively. 10. Any and all costs occasioned by the search and seizure shall be paid by the respondents and or such other person referred to in the preceding paragraph jointly and severally, the one paying the other to be absolved. 11. In the alternative to paragraphs 2 to 10 above: 11.1 The relief set out in paragraphs 2 to 10 above are granted, effective immediately, operative as an interim interdict, pending finalisation of action proceedings to be instituted by the applicants against the respondents within 30 days. 12. The respondents and or any other person who opposes this application shall pay the costs of this application, jointly and severally, the one paying the other to be absolved, such costs to include the costs of one instructing and one instructed legal practitioner. 13. Further and or alternative relief.’ Urgency
The requirements an urgent application must meet.
‘The first thing to note is that the said rule is couched in peremptory language regarding what a litigant who wishes to approach the court on urgency must do. That the language employed is mandatory in nature can be deduced from the use of the word “must” in rule 73 (4). In this regard, two requirements are placed on an applicant regarding necessary allegations to be made in the affidavit filed in support of the urgent application. It stands to reason that failure to comply with the mandatory nature of the burden cast may result in the application for the matter to be enrolled on urgency being refused. [12] The first allegation the applicant must “explicitly” make in the affidavit relates to the circumstances alleged to render the matter urgent. Second, the applicant must “explicitly” state the reasons why it is alleged he or she cannot be granted substantial relief at a hearing in due course. The use of the word “explicitly”, it is my view is not idle nor an inconsequential addition to the text. It has certainly not been included for decorative purposes. It serves to set out and underscore the level of disclosure that must be made by an applicant in such cases. [13] In the English dictionary, the word “explicit” connotes something “stated clearly and in detail, leaving no room for confusion or doubt.” This therefore means that a deponent to an affidavit in which urgency is claimed or alleged, must state the reasons alleged for the urgency “clearly and in detail, leaving no room for confusion or doubt”. This, to my mind, denotes a very high, honest and comprehensive standard of disclosure, which in a sense results in the deponent taking the court fully in his or her confidence; neither hiding nor hoarding any relevant and necessary information relevant to the issue of urgency.’
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Judge’s signature | Note to the parties: | |
E RAKOW Judge | Not applicable | |
Counsel: | ||
Applicant(s): | Respondent(s): | |
B De Jager (with S Horn) Instructed by Theunissen, Louw & Partners, Windhoek | PCI Barnard (with T Rieth) Instructed by Rieth Legal Practitioners, Windhoek |
1Nghiimbwasha and Another v Minister of Justice and Others [2015] NAHCMD 67 (A 38/2015); 20 March 2015.
Cited documents 1
Judgment 1
1. | Nghiimbwasha v Minister of Justice and Others (APPEAL 38 of 2015) [2015] NAHCMD 67 (20 March 2015) | 29 citations |