Claud Lemans Dexter Bosch N.O. and Others v Kaulinge and Others (HC-MD-CIV-MOT-GEN-2025/00062) [2025] NAHCMD 164 (11 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: HC-MD-CIV-MOT-GEN-2025/00062

In the matter between:

CLAUD LEMANS DEXTER BOSCH N.O. 1^st APPLICANT

ELIZABETH JOHANNA BRINK N.O. 2^nd APPLICANT

RUBEN JORDAAN BOSCH N.O. 3^rd APPLICANT

and

ALFONS EUSEBIUS KAULINGE 1^st RESPONDENT

REZ STUDENT LIVING ACADEMIA (PTY) LTD 2^nd RESPONDENT

CLAUD BOSCH AGAPITUS ARCHITECTS INCORPORATED 3^rd RESPONDENT

CLAUD BOSCH GROUP (PTY) LTD 4^th RESPONDENT

DEVELOPMENT BANK OF NAMIBIA LIMITED 5^th RESPONDENT

Neutral citation: Claud Lemans Dexter Bosch N.O. v Kaulinge (HC-MD-CIV-MOT-GEN-2025/00062) [2025] NAHCMD 164 (11 April 2025)

Coram: USIKU J

Heard: 2 March 2025

Delivered: 11 April 2025

Flynote: Civil Practice – Applications and motions – Urgent application – Requirements of urgent application restated.

Summary: The applicants brought an urgent application seeking an order authorising and directing the Deputy Sheriff for the District of Windhoek to sign any and all documents requiring a signature of a director of Rez Student Living (Pty) Ltd, upon presentation, which includes the signing of any and all deeds of sale, deeds of transfer, power of attorneys, rental agreements and other documents necessary for the proper administration and management of Rez Student Living (Pty) Ltd, more specifically to enable Rez Student Living (Pty) Ltd, the late estate of Claud Lemans Bosch, Claud Bosch Agapitus Architects Incorporated and the Claud Bosch Group (Pty) Ltd to comply with the settlement agreement dated 7 May 2024, which was made an order of this court on 7 May 2024 under case HC-MD-CIV-ACT-CON-2020/03441.

The application is opposed by the first respondent, contending that the factors, upon which the applicants rely, does not disclose urgency for the purposes of rule 73(4) of the Rules of the Court.

Held that, the application is heard as one of urgency and the requirements pertaining to forms and service are dispensed with.

Held further that, the applicants’ application is dismissed.

ORDER

1. The applicants’ application to have the matter heard as one of urgency is upheld and the requirements pertaining to forms and service are dispensed with.

2. The applicants’ application is dismissed.

3. The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying, the other to be absolved.

4. The matter is removed from the roll and is regarded finalized.

JUDGMENT

USIKU J:

Introduction

[1] This is an urgent application brought by the applicants, in which they seek the following order:

‘1. The applicants' non-compliance with the rules of court is hereby condoned and the applicants' application is heard as one of urgency, as contemplated in terms of Rule 73 and is hereby enrolled as such.

2. The Deputy Sheriff for the District of Windhoek is authorised and directed to sign any and all

documents requiring a signature of a director of Rez Student Living (Pty) Ltd, upon presentation, which includes the signing of any and all deeds of sale, deeds of transfer, power of attorneys, rental agreements and other documents necessary for the proper administration and management of Rez Student Living (Pty) Ltd, more specifically to enable Rez Student Living (Pty) Ltd, the late estate of Claud Lemans Bosch, Claud Bosch Agapitus Architects Incorporated and the Claud Bosch Group (Pty) Ltd to comply with the settlement agreement dated 7 May 2024, which was made an order of this court on 7 May 2024 under case HC-MD-CIV-ACT-CON-2020/03441.

3 The first respondent is ordered to pay the applicants' costs on attorney and own client scale, including the costs of one instructed and two instructed counsel.’

[2] The application is opposed by the first respondent. The applicants are represented by Mr Heathcote, whereas the first respondent is represented by Ms Mombeyarara.

Parties

[3] The first applicant is Claud Lemans Dexter Bosch N.O., a major male and one of three appointed executors of the late estate of Claud Lemans Bosch, cited in his nominal capacity, a self-employed architect with his principal place of employment situated at 8 Ballot Street, Windhoek, Namibia.

[4] The second applicant is Elizabeth Johanna Brink N.O., a major female and one of three appointed executors of the late estate of Claud Lemans Bosch, cited in her nominal capacity, a fiduciary specialist employed by Capricorn Private Wealth with her employment address situated at 2nd Floor, Capricorn Corner, c/o Nelson Mandela and Hofmeyer Street, Klein Windhoek, Windhoek.

[5] The third applicant is Ruben Jordaan Bosch N.O., a major male and one of three appointed executors of the late estate of Claud Lemans Bosch, cited in his nominal capacity, a businessman with his principal place of employment situated at 8 Ballot Street, Windhoek.

[6] The first respondent is Alfons Eusebius Kaulinge, a major male, shareholder and director of the second respondent, Rez Student Living (Pty) Ltd, with his place of residence situated at Erf 1265, Tobias Akuenje Street, Kleine Kuppe, Windhoek.

[7] The second respondent is Rez Student Living Academia (Pty) Ltd, a private company with limited liability duly registered and incorporated in accordance with the applicable laws of the Republic of Namibia (under registration number 2018/0796) with its registered address situated at Shop 32, Bougain Villas, 78 Sam Nujoma Drive, Windhoek. The second respondent was formerly known as Omata Consultancy Services CC, which was converted into a private company and its name changed to Rez Student Living Academia (Pty) Ltd.

[8] The third respondent is Claud Bosch Agapitus Architects Incorporated, an architecture firm and company duly incorporated in terms of the laws of the Republic of Namibia, with its registered address situated at Shop 32, Bougain Villas, 78 Sam Nujoma Drive, Windhoek. The third respondent was previously incorporated and known as Claud Bosch Architects Incorporated.

[9] The fourth respondent is Claud Bosch Group (Pty) Ltd a private company with limited liability duly registered and incorporated in accordance with the applicable laws of the Republic of Namibia under registration number 2008/0696, with its registered address situated at Shop 32, Bougain Villas, 78 Sam Nujoma Drive, Windhoek.

[10] The Fifth Defendant is Development Bank Of Namibia Limited, a company with limited liability duly established in terms of s 2 of the Development Bank of Namibia Act, 8 of 2002, and duly registered and incorporated in terms of the relevant banking laws of the Republic of Namibia and with its principal place of business situated at 12 Daniel Munamava Street, Windhoek. No relief is sought against the fifth respondent.

Background

[11] On or about 21 August 2020 and 16 September 2021, respectively, the fifth respondent (DBN) instituted action proceedings against the late Mr Claud Lemans Bosch and the 1^st to 4^th respondents herein. The relief DBN sought in these consolidated action proceedings were, in summary, the cancellation of a loan agreement and payment in the amount of N$70 783 220,92, together with interest and costs. Both the late Mr Claud Bosch and Mr Kaulinge (the 1^st respondent) were cited in the above proceedings as sureties.

[12] The parties however, entered into a settlement agreement during May 2024, which settlement agreement was made an order of court on 7 May 2024. Both Mr Bosch and Mr Kaulinge personally signed the settlement agreement in question.

[13] The settlement agreement so made an order of court, now forms the basis upon which the applicant relies for purposes of the application before court. The relevant portions of the settlement agreement read:

‘AND WHEREAS the defendants have entered their appearance to defend this action;

AND WHEREAS this matter has now become settled between the parties, as per the conditions set out in this written settlement agreement which the parties are desirous to be made an order of court;

NOW THEREFORE the parties agree as follows:

3.1. The defendants consent to judgment to pay the plaintiff jointly and severally, in the amount of N$41,000,000.00 (Forty-One Million Namibia Dollars)

3.2. That payment of the amount of N$41,000,000.00 (Forty-One Million Namibia Dollars) be held over for a period of two years from date of the court order, within which the units in Khomas Views are to be sold by the defendants;

3.3. The units are to be sold at market-related prices and the proceeds paid over to the Plaintiff.

3.4. Should any balance remain, compound interest at prime rate will commence running on such a balance after expiry of the two year period.

3.5. During the two year period the net rental recovered through rental of the units (subject to what is stated in paragraph 3.6 below) will be paid over to the Plaintiff. This payment on a monthly basis will be accompanied by a reconciliation showing the calculation of the net amount paid over. The Defendants shall remit Payment into the following bank account:

…

3.6. From the gross monthly rental, the reasonable expenses in maintaining the premises in a state fit for rental and sale may be deducted.

3.7. Should the defendants not make their best efforts to effect sales and transfers or fail to make a monthly payment or provide a reconciliation, and continue with this failure after 30 days' notice, the N$41,000,000.00 (Forty-One Million Namibia Dollars) will be due and payable immediately.

3.8 Each party to pay its' own costs.

GENERAL

4.1 No act of relaxation, indulgence or extension of any of the terms of this Settlement Agreement granted by any party to any other party shall operate or be deemed to be waiver of his or her rights hereunder or a novation of this Settlement Agreement.

4.2 No alteration, cancellation, variations of, or additions hereto shall be of any force and effect unless reduced to writing and signed by all Parties to this Settlement Agreement.

4.3 The persons signing this Settlement Agreement on behalf of the Parties warrant and confirm that they are duly authorized to do so.

4.4 The Parties agree that they have not been forced and/or coerced into signing this Settlement Agreement and do so voluntarily and out of their own free will.

4.5 The Parties herewith confirm that they have read through this Settlement Agreement prior to signing same and that they are fully acquainted with the full contents thereof.

4.6 The parties agree that this Settlement Agreement be made an Order of Court, should the Honourable Court deem it so fit.’

[14] Clause 3.2 of the above settlement agreement provides that, the applicants, including Mr Kaulinge have only until 7 May 2026 to make payment to DBN in the amount of N$41 million. The source of the above funds should be generated through the sale of the Khomas Heights Units. Further, in the event that DBN is not satisfied that the applicants, which includes Mr Bosch and Mr Kaulinge, are making their best efforts to effect sales and transfers of the Khomas Heights Units, during the 2-year period, DBN may, after 30 days’ notice, demand full payment of the judgment debt and foreclose upon the entire Khomas Views development.

[15] Subsequent to the signing of the above agreement, on 14 August 2024, Mr Claud Lemens Bosch passed away. On 17 September 2024, a meeting was scheduled at DBN’s offices in order for the parties to discuss the way forward after Mr Bosch’s passing. At the said meeting various conclusions were reached and decisions made, which this court will not regurgitate in this judgment.

[16] The 1^st respondent is a 50 percent shareholder of the 2^nd respondent, and is the only remaining director of the 2^nd respondent and a co-signatory of the settlement agreement.

[17] The applicants contend that the 1^st respondent refuses to sign the necessary documents requiring a signature of a director of Rez, to enable Rez, the applicants and the respondents to comply with the order of this court, as detailed in the settlement agreement. The applicants assert that the 1^st respondent’s refusal is based upon his demand to be paid an accumulated amount of N$10 000 monthly, calculated from 2017 to date which, at this time, surpasses almost N$1 million. According to the applicants, such a payment would be contrary to clause 3.5 of the court ordered settlement agreement of 7 May 2024, which states that the net rental income must be paid over to DBN on a monthly basis. In the alternative, the 1^st respondent seeks that the late estate of Mr Bosch waive its entitlement to the same benefit.

[18] The applicants contend that, despite being entitled to apply for an order to hold the 1^st respondent in contempt, that approach does not resolve the immediate issue, which is the payment to DBN of N$41 million before 7 May 2026. For that reason, the applicants apply for an order to permit the Deputy Sheriff to sign all documents requiring signature so that they comply with the court order.

[19] The 1^st respondent asserts that it was only after the death of the late Mr Bosch that his involvement as the only remaining director and shareholder in Rez was required by the applicants and the managing agent. According to him, he made various requests at various meetings that were held by the parties, so as bring himself up to date with the affairs of the business, and so that he is in position to conclude the necessary transactions and append his signature to the required documents for the purpose of giving effect to the settlement agreement.

[20] In regard to the issue of refusal to sign the required documents, the 1^st respondent contends that he has only been provided with one partially signed contract of sale on 11 December 2024 (attached to applicants’ founding affidavit as annexure ‘W’). He submits that he was surprised that a contract was already signed by a purchaser and that a purchase price was already agreed upon, notwithstanding the fact that he is the only director and shareholder of Rez and as such, had not resolved, inter alia, on the selling price and the terms of the sale.

[21] The 1^st respondent contends that the applicants and the managing agent of Rez do not have authority to enter into and conclude such major transactions with third parties, in the absence of relevant resolutions. He therefore, argues that he was under no legal obligation to simply sign that contract.

Analysis

[22] The requirements of rule 73 regarding urgent applications, have been the subject of determination in many cases. In this regard, rule 73(4) set out two requirements to be met by an applicant, namely, stating in explicit terms the reasons why the matter is rendered urgent and secondly, stating in explicit terms why the applicant claims he or she cannot be afforded substantial redress at a hearing in due course.

[23] In the matter of Nghiimbwasha v Minister of Justice¹ this court indicated that a deponent to an affidavit in which urgency is alleged, is required to state:

‘(a) the circumstances which he or she avers render the matter urgent; and

(b) reasons why he or she could not be afforded substantial redress at a hearing in due course; clearly and in detail, leaving no room for confusion or doubt’.

[24] In the present matter, the founding affidavit filed in support of the application is deposed to by Mr Claud Lemans Dexter Bosch, one of three appointed executors of the estate of the late Claud Lemans Bosch. He deals with the issue of urgency as follows:

‘URGENCY

81. As I have already explained, DBN’s set deadline for the applicants to respond to, amongst others, with a written resolution regarding who would be the representative to deal with the sales of Khomas Views units have already passed (i.e. 31 January 2025).

82. In addition to the imminent threat of DBN’s 30-day notice, which can happen at any time, DBN will thereafter seek to enforce and execute upon the entire judgment debt of N$41 million against the defendants, jointly and/or severally.

83. Whether or not DBN actually gives notice, the fact that defendants still need to pay a N$41 million judgment debt within the next 14 months is an overwhelming responsibility. Throughout the development of Rez it has already been excruciatingly difficult to sell the units of Khomas Views. Now, faced with this looming threat of foreclosure if Rez cannot proceed to sell all of its units – which requires and authorised signature on all pending and future sale agreements without further interruption – the defendants simply do not have prospects of complying with the court ordered deadline of 7 May 2026. All of Mr Bosch’s, ours and Green Door’s efforts would have been in vain.

84. If DBN forecloses on Rez and sells the Khomas Views units on auction on a forced sale value, DBN may very well not recover the amount due to it. In that event, as any other creditor would do, it will seek to recover the balance of the judgment debt from the sureties, which includes the late estate of Mr Bosch. It follows that not only will DBN be placed at risk of not recovering its debt, but the sureties may suffer severe financial consequences, if the units are not sold expeditiously and at their best value. The potential financial harm to all parties – even to Mr Kaulinge himself – is immense.

85. As I have already mentioned, my co-executors and I have a fiduciary obligation to protect the late estate and, in these circumstances, we cannot allow that Rez and the other defendants be held hostage by Mr Kaulinge anymore.’

[25] As regards the second requirement in terms of rule 73(4), to state in explicit terms why the applicant claims he or she cannot be afforded substantial redress at a hearing in due course, the deponent had this to say:

‘86. I am advised that if this application is brought in the ordinary course, it may take 6 to 24 months before it is finally determined and that excludes an appeal to the Supreme Court:

86.1 After 6 months’ time, the defendants have less than 8 months to sell all Khomas Views units to raise N$41 million. This will be extremely difficult;

86.2 After 12 months, the defendants have less than 2 months to sell all Khomas Views units to raise N$41 million, ‘which will be near’ – if not altogether - impossible; and

86.3 Any period after 14 months, the defendants would be in breach and in contempt of the court order dated 7 May 20024.

87. I respectfully submit that, a clear right has been established. The rights of second, third and fourth respondents to perform in terms of the settlement agreement concluded with DBN, and to comply with the order of this Honourable Court, are being interfered with. Based upon the reasons above, the matter is urgent and that the applicants will not be afforded similar protection by any other ordinary remedy.’

[26] The respondents deny that the applicants have met the requirements set by rule 73(4). The respondents contend that the bank has yet to issue the 30 day notice as contemplated in clause 3.7 of the settlement agreement, the application is thus premature and as a result fall want of urgency.

[27] Mr Bosch dealt with both aspects of rule 73(4) in his founding affidavit, as referenced above. Whether the reasons advanced for the purported urgency are adequate, will be determined by the court in the following paragraphs.

[28] This application is driven by the applicant`s anticipation of a 30 day notice to be issued by DBN for the parties` failure to reach consensus insofar as it pertains to the repayment of the judgment debt. Ms Mombeyarara, for the 1^st respondent contends that, the said notice has not yet been issued by the bank despite its knowledge of the internal conflict between the parties and the parties’ failure to appoint a representative by 31 January 2025. The first respondent thus submits that the application is mala fide at worst and premature at best.

[29] The applicants submit that, in the absence of cooperation from the 1^st respondent, the parties might not comply with the court order and/or settlement agreement by May 2026, placing them in contempt of court and that, should the bank execute on the units in question, the amount received from such proceeds might fall short and the bank might seek to recover the remainder of the debt from the personal estates of the late Mr Bosch and that of the 1^st respondent.

[30] In regard to the issue of either of the parties being placed in contempt of court, I am of the opinion that the facts of the present case to not support a possible contempt case. It is clear from the facts that the parties have for sometime now been locked into a variety of disputes generally relating to the management of Rez. It is apparent that the acrimony between the parties make cooperation in relation to the agreed sales difficult. In terms of the settlement agreement, should the parties not make their best efforts to effect the required the sales, then the entire debt amount becomes due and payable immediately. It therefore, appears to me that if the present bickering between the parties become insoluble, the settlement provides an in-built mechanism rendering the entire debt becoming immediately payable. In this context, a failure by either party to make his or her best efforts to effect the sale cannot be a ground of approaching the court on urgent basis.

[31] It is trite that the crucial test to be applied in urgent applications is whether or not the applicant will be afforded substantial redress at a hearing in due course. The issue for determination is, whether the present matter is so urgent that it cannot wait to be dealt with as an ordinary application, at a hearing in due course.

[32] In Mweb Namibia v Telecom Namibia Ltd and Others², the court held that:

‘The fact that irreparable damages may be suffered is not enough to make out a case of urgency. Although it may be a ground for an interdict, it does not make the application urgent.’

[33] Furthermore, it has been held that, as a general rule, financial hardship or loss of income cannot be regarded as a ground for urgent relief. For an applicant to succeed when relying on financial hardship or loss of income he must show the existence of exceptional circumstances justifying the granting of an order on an urgent basis³.

[34] The above principles are applicable to the present matter. In the present matter, the applicants have not shown existence of special circumstances for the granting of the relief sought on urgent basis.

[35] In conclusion, on the facts of the present matter, I am not persuaded that the applicants have satisfied the requirement of showing absence of a substantial redress at a hearing in due course. The loss that the applicants aver they might suffer by not being afforded an immediate hearing, is not the kind of loss that justifies the applicants’ matter being put at the top of the queue and receiving priority on the roll.

[36] Ordinarily, that would have disposed of the matter. However, I intend to dispose of the application, instead of pushing it further down the road and trouble another justice with a similar application one day. For this reason only, I shall entertain this application as one of urgency.

[37] In effect the applicants seek to have the powers of the 1^st respondent as director taken away and have same vested in the Deputy Sheriff, to sign all relevant documents ‘upon presentation’. In my opinion, the order sought by the applicants has the effect of divesting the 1^st respondent of his power as sole director in Rez.

[38] The parties’ papers filed of record relate a tale of a longstanding dispute between the late Mr Bosch and the 1^st respondent, about money and about the management of Rez. The gist of the 1^st respondent’s gripe is that he is sidelined when it comes to the management Rez, and cannot be expected to merely sign a document upon presentation.

[39] It is trite law that any dispute of fact in application proceedings should be adjudicated on the basis of the facts averred in the applicant’s founding affidavit which have been admitted by the respondent together with facts alleged by the respondent whether or not the latter has been by the applicant⁴.

[40] In my opinion, when the aforegoing principles are applied to the present case, the conclusion is that there is no evidence that the respondent has unjustifiably refused to sell or to authorize the sale of the units in question. In other words, I find that there are no sufficient facts placed before court to warrant the court to divest the 1^st respondent’s powers as director of Rez insofar as the sale and letting of the units are concerned.

[41] Consequently, I am of the opinion that the applicants have failed to make out entitlement to the relief they seek.

[42] As regards the issue of costs, the general rule is that costs follow the result. The general rule would therefore, find application.

[43] In the result, I make the following order:

1. The applicants’ application to have the matter heard as one of urgency is upheld, and the requirements pertaining to forms and service are dispensed with.

2. The applicants’ application is dismissed.

3. The applicants are ordered to pay the costs of the first respondent, jointly and severally, the one paying, the other to be absolved.

4. The matter is removed from the roll and is regarded finalized.

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B USIKU

Judge

APPEARANCES:

APPLICANTS: R Heathcote SC (with him J Visser)

Instructed by Koep & Partners,

Windhoek

1^st RESPONDENT: M Mombeyarara

Of M M Legal Practitioners,

Windhoek