Trustco United Sports Club v Coetzee (HC-MD-CIV-MOT-GEN-2025/00168) [2025] NAHCMD 198 (25 April 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case No: HC-MD-CIV-MOT-GEN-2025/00168

In the matter between:

TRUSTCO UNITED SPORTS CLUB APPLICANT

and

KEVIN COETZEE RESPONDENT

Neutral citation: Trustco United Sports Club v Coetzee (HC-MD-CIV-MOT-GEN-2025/00168) [2025] NAHCMD 198 (25 April 2025)

Coram: AMBUNDA, AJ

Heard: 16 April 2025

Delivered: 25 April 2025

Flynote: Applications and Motions – Urgent applications – Trite principles that applicant must satisfy both requirements of rule 73(4) of the rules of court for the matter to be heard on an urgent basis – The Applicant failed to satisfy the requirements under rule 73(4) - The applicant have failed to set out the circumstances which render this application urgent as well as why the applicant will not be afforded substantial redress at a hearing in due course.

Summary: The applicant brought an application to have the respondent urgently evicted from a ‘Club House’ owned by the applicant and leased to the respondent under a lease agreement which terminated by the influx of time in terms of the agreed terms on 28 February 2025. It is common cause that the respondent refuses to leave despite the termination of the lease agreement. The applicant, as the title holder of the property, alleges unlawful occupation by the respondent, which such refusal is prejudicial to the applicant because a new tenant cannot occupy the Clubhouse, and the applicant is missing out on prospective interest in the form of increased rental income from the prospective tenant. The applicant argues that the exceptional circumstances that renders this matter urgent is the fact that since Applicant is a non-profit organization whose main purpose is not to generate income, an opportunity is currently present to earn the applicant more rental income through the prospective tenant, which such opportunity is being frustrated by the unlawful occupation of the respondent.

The respondent argued that that there is no signed agreement with the new tenant and the applicant and that there is no risk that the new tenant’s intention to conclude the new lease agreement is time barred to render the matter urgent.

Held that, the requirements of rule 73(4) are peremptory.

Held that, threat to commercial interest alone does not render the matter urgent and that the applicant must show more than mere financial prejudice. The applicant failed to establish the risk of new tenant withdrawing anytime soon or that the conduct of the respondent complained of happened recently and should form the basis of the matter being heard urgently.

Held that, the requirements of rule 73(4) not complied with and matter struck from the roll.

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ORDER

1. The application is struck from the roll for non-compliance with the provisions of rule 73(4).

2. The applicant must pay the costs of the respondent occasioned by this application.

3. The matter is removed from the roll and considered finalized.

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JUDGEMENT

___________________________________________________________________

AMBUNDA, AJ:

[1] The applicant is seeking relief from this Honourable court for a declarator that the respondent’s occupancy of the applicant’s premises, referred to as Clubhouse, situated on the property, being a certain portion of Erf 290, Olympia, Windhoek, is unlawful and that the respondent, and all persons claiming occupation through him, should be directed to vacate the premises forthwith. Indulgence is sought from this court for the relief to be granted on an urgent basis in terms of rule 73 of the rules of this court.

[2] The applicant, TRUSCO United Sports Club, is a Non-profit association registered in terms of s 21 of the Companies Act, 28 of 2004, with its principal objective to promote sport activities. Its premises, the Clubhouse is a substantial multi-sport institution which currently fields two men's rugby teams and one women's team, three cricket teams, three netball teams, a lawn bowls squad, and also supports padel. In addition, Curro Gymnasium conducts practices and hosts select sporting events at our facility, bringing total usage to more than 200 active club members plus 807 Curro students. Current tenants on our premises include Nico's Pub &Grill, GymX, United Carwash, Tatekulu, and United Padel. It is undisputed that the applicant is the owner and title holder of the premises whereon the Clubhouse is situated.

[3] The respondent operates a bar from the Clubhouse for his own commercial gain under the liquor license of the applicant. On or about 23 February 2022, the applicant concluded a written lease agreement with the respondent, for the latter to lease the Clubhouse. The lease commenced on 1 March 2022 and was for a fixed period of three years, expiring on 28 February 2025. The terms and conditions of the lease are not disputed between the parties.

[4] Clause 2.2 of the lease agreement dictates that at the termination of the lease, the respondent shall physically vacate the premises. It furthermore indicated that the respondent as the lessee would have the option to continue with the lease for another period of three years until 28 February 2028 upon the terms and conditions to be agreed upon between the parties. Clause 2.4 gave the respondent the first right of refusal after the initial contract has ended in order to renew the lease agreement. The applicant’s position in re clause 2.4 is that it bound itself towards the respondent, not to lease the Clubhouse to a third party upon the expiry of the Lease, unless the respondent has been afforded a reasonable opportunity to lease the Clubhouse of the same terms and conditions as offered to the third party.¹ The copy of the lease agreement is attached as annexure ‘B’ to the founding affidavit.

[5] The applicants case is that the lease terminated by influx of time on 28 February 2025 and that since no new terms were agreed to between the parties, the continued occupation of the respondent as of 28 February 2025 is unlawful. In argument, counsel for the applicant argued that the date on which the unlawfulness commenced was rather the 7 April 2025 after the final letter to terminate the lease agreement was sent to the respondent.

[6] A letter dated 12 August 2025² was sent to the respondent indicating the applicant’s position that the current lease agreement will not be renewed on the same terms and conditions, neither with the respondent or any other third party. In terms of this letter, the applicant was set to start with renovations on 1 March 2025. After the 28 February 2025, the applicant, through its current legal practitioners of record, sent further emails to the respondent in terms of which its stance changed to afford the respondent an opportunity to renew the lease agreement on new proposed terms. The email of 17 March 2025 (Annexure ‘D1’) forwarded the new lease agreement and sought confirmation from the respondent to have the new lease agreement signed by 21 March 2025. The respondent’s legal practitioners of record responded on the 18 March 2025 (Annexure ‘D2’) indicating that since respondent was out of town, it is ‘impossible to have the agreement signed on or before 21 March 2025’. An extension was granted by the applicant for the lease agreement to be signed by 26 March 2025 (Annexure ‘D3 & D4’), failure of which the respondent was expected to vacate the property by 28 March 2025. Counsel for the applicant in her reply then indicated that the unlawfulness arose on 28 March 2025.

[7] The respondent’s legal practitioner responded on 24 March 2025 (Annexure ‘D5’) highlighted four unreasonable and male fide alterations to the proposed lease agreement, of which one is the unilateral decision to refuse the three years option as contained in the old agreement. Another concern was the exorbitant increase in rent. The respondent’s position was that the applicant is not entitled to enforce these unreasonable amendments as contained in the proposed ‘new lease agreement’. The respondent proposed to hold bona fide negotiations with regard to the draft lease before he signs the agreement. Another extension was then given by the applicant for the draft lease agreement to be signed on or before 2 April 2025, failing which the respondent should vacate the property on 4 April 2025 (Annexure ‘D6’). It is common cause between the parties that the respondent did not leave the property on 4 April 2025.

[8] On 4 April 2025, the applicant wrote a letter to the respondent indicating that there is no legal basis to remain in occupation of the premises, that such occupation is without consent, is unlawful and is causing significant financial prejudice to the Applicant.

[9] On 7 April 2025, the respondent indicated that despite the unreasonable adjustments highlighted already on 24 March 2025, the applicant has refused to enter into bona fide negotiations with the respondent. The respondent refuses to vacate the property on the basis of exercising it’s right in terms of the old lease agreement, subject to the necessary escalation clause which the respondent has already made rental payments to the Applicant.³ In reply, Counsel submitted that the unlawfulness and urgency actually arose on 7 April 2025.

[10] Counsel submitted that this urgent application was promptly brought on 11 April 2025 as soon as the grounds of urgency presented themselves.

Applicant’s case on urgency

[11] Counsel for the applicant argues that there are exceptional circumstances that renders this matter urgent and that the applicant will not be afforded substantial redress from a hearing in due course.

[12] The exceptional circumstances relied on for this matter to be considered and heard urgently appears from various paragraphs of the founding affidavit. In summary, the applicant complains against the conduct of the respondent while in occupancy of the Clubhouse. Accordingly, the respondent's conduct has negatively impacted applicant’s relationships with key suppliers, such as Castle and Heineken, who are increasingly reluctant to engage with him because of his aggressive disposition.⁴ These investors have accordingly withdrawn from the club as a result of fractions with the respondent.⁵ Although one of the fundamental understandings with the respondent was that the Clubhouse would remain available as a social hub for the club's members, applicant states that it has encountered significant difficulty in getting the respondent to open the Clubhouse for various sporting events -especially those without immediate financial benefit to the club, like junior cricket matches, or even members of the club.

[13] The applicant indicates that it has secured a prospective new tenant who is ready, willing, and able to occupy the Clubhouse immediately under the same terms and conditions as those proposed to the respondent. The applicant sets out further undertakings that the new tenant has indicated he is willing to do in addition to paying a deposit of N$25 000 and a monthly rental amount of N$25 000, compared to the N$11 000 being paid by the respondent. The applicant however, indicated that a deposit of N$ 28 750 was already paid (Annexure ‘G’). I wish to quote the undertakings allegedly⁶ agreed on with the new tenant and which the applicant indicates that the respondent is refusing to do⁷:

‘33.3. Upgrade the kitchen at its own cost for the purpose of serving food;

33.4. Offer a variety of food and beverages to members and patrons, including pub lunches and dinners;

33.5. Operate from 07h00 to 22h00, providing light meals, takeaways, and hot beverages;

33.6. Maintain, repair, and/or extend the deck at its own expense;

33.7. Not refuse the Applicant's members the right to host functions, provided these are scheduled in advance and subject to availability;

33.8. Refrain from displaying any third-party branding, advertisements, or sponsorships without written consent from the Applicant;

33.9. Contribute N$1,250.00 monthly toward security services for the Clubhouse, subject to annual increments.’

[14] The applicant persisted that the respondent refused to carry out the essential roles that the new tenant is willing to do and as long as the respondent remains in unlawful in occupation, the Applicant is prejudiced on two levels: firstly, it loses a significantly higher rental income stream; and secondly, it cannot introduce improved commercial operations that are consistent with the Clubhouse's core purpose within the sports club.⁸

[15] According to the applicant, its ability to capitalize on these improved commercial terms - indeed, at more than double the original rental - is directly undermined by the respondent's unlawful occupation and counsel argued that urgent relief is warranted to protect the applicant's interests and ensure that its members and patrons benefit from a properly managed, fully functional clubhouse.

[16] In addition to the above, the applicant indicated that because of the less advantageous commercial terms associated with the respondent's prior lease arrangement, the applicant could not negotiate improved financial terms with a new tenant, losing out on potential additional revenue streams and patron engagement. The applicant then sets out activities slotted for the period between 15 March 2025 -13 April 2025 and in future, without necessarily indicating the extend of the improved financial terms that the applicant could not negotiate on.⁹

[17] The applicant’s case is based on commercial harm that is ongoing for as long as the respondent remain in occupation of the Clubhouse. Accordingly, each delay in securing vacant possession not only prevents the applicant from entering into a more favorable lease agreement but also risks compromising the quality of the sporting and social experiences offered to members and visitors. The applicant wants to recover possession of its premises promptly to avoid further economic losses, reputational damage, and disruption to scheduled events.

[18] During argument, counsel for the applicant confirmed that the exceptional circumstances is that the applicant, a non-profit organization is losing out on an opportunity to make money should the prospective tenant leave.

[19] On the second leg of rule 73(4), the applicant indicates that it will have no substantial redress in due course because it may lose the opportunity with the current prospective tenant. The applicant states that there will be no substantial redress in the ordinary course for the applicant, for the following reasons:

‘55.1. A monetary damages award would be inadequate. The intangible nature of brand, membership satisfaction, sponsorship relations, and the synergy created by a well-run clubhouse cannot be captured post factum in a damages award.

55.2. A delay would cause irreparable harm to the Applicant. A delayed eviction could cause the new tenant to withdraw, members and sponsors to lose confidence, and the Applicant to lose crucial revenue for an extended period.

55.3. The continued occupation of the Respondent contravenes fundamental interests of the Applicant and its members. The purpose of a sports clubhouse is to enhance the sporting community. The Respondent's refusal to offer food, beverages, or membership-hosted functions undermines the day-to-day operation of the Applicant's sporting activities. Allowing this to continue until a standard hearing schedule would produce long-term harm to the Applicant's relationships and finances.’

[20] Accordingly, the actual and continuing loss of that revenue makes the damages claim extremely uncertain and unrecoverable and restitution by way of damages will not suffice.¹⁰ The applicant is of the view that an eviction may arrive too late as the tenant may have moved or lost interest and its unique opportunity to enhance its rental income would be irretrievably lost and that the applicant’s brand, membership satisfaction, and sponsor confidence might suffer irreparable damage in the interim.

The respondent’s opposition

[21] The respondents denies that there are any circumstances rendering this application urgent and that any urgency alleged would have been self-created. The respondent relies on annexure ‘KC-01’ which is a letter dated 7 August 2024 addressed to the applicant indicating that the respondent wishes to exercise its options to renew the lease agreement for another 3 years until 28 February 2028. The respondent therefore stated that the applicant already knew since 7 August 2024 that it will not vacate the property. In reply, the applicant stated that the 7 August 2024 correspondence from the respondent was understood as a request to negotiate renewal terms, not a statement that the respondent would remain in the premises against the club's will.

[22] The respondent further indicated that the applicant knew about the new tenant since mid-August 2024 since the new terms were presented to the respondent and the new tenant. The respondent’s case is that it occupied the premises from 1 March 2025 with the full consent of the applicant and has made its rental payments for the months of March 2025 and April 2025 (annexure ‘KC-02’ and ‘KC-03’). These payments are admitted by the applicant and counsel for the applicant submitted that they were received in leu of the occupation, and nothing should be made of that and surely not to insinuate that an agreement to continue leasing the property was reached between the parties.

[23] Although the lease agreement came to an end on 28 February 2025, the respondent deny that the exercise of its option to renew the lease and the continued occupation depended on new terms and conditions being agreed.¹¹ Accordingly, there was a tacit relocation upon expiry of the original lease, the applicant gave permission for continued occupation and therefore, the respondent was not in unlawful occupation of the premises 1 May 2025. The respondent’s position is therefore that failure to reach an agreement on the terms and conditions by 31 March 2025 did not render the occupation unlawful. Based on the above considerations, the respondent persisted that the applicant still bears the onus to satisfy the requirements of rule 73(4).

[24] As regards the alleged conduct of the respondent, such conduct is denied, it has been unsubstantiated as the allegations lack any intelligible specificity¹² and it is further denied that his conduct has negatively impacted the applicant’s relationship with key supplies or that his occupation undermines the Applicants ability to capitalize on the prospective new tent. Accordingly, the new tenant has been in the applicant’s sphere since August 2024 and counsel for the respondent argued that there is no indication that it will leave because of the continued occupation of the respondent. The respondent states that his obligations were as set out in the original lease agreement (annexure ‘B’, clause 17 thereof) and the alleged new terms which the respondent allegedly refuses to carry out is not part of annexure ‘B’, clause 17, neither was the respondent expected to offer anything other than what annexure ‘B’ provided.¹³

[25] The respondent maintains that in any event, there is no proof that the draft agreement was ever transmitted to the new tenant who was engaged by the applicant already during 2024. Furthermore, the respondent argues that the applicant’s allegation of loss of revenue and losses contradicts its initial stance as contained in annexure ‘C’ that it will not renew the lease agreement because it was set to start with renovations as of 1 March 2025.

[26] Commercial harm is denied as being illusionary than real. Counsel for the respondent argued that Castle and Heineken have already withdrawn, and an urgent application will not return them. In fact, counsel argued that it was not indicated that these investors will return if the respondent vacates the property, and the new tenant takes occupation of the premises. Accordingly, an eviction can be sought from a hearing in due course and not on an urgent basis.

[27] The respondent highlighted that in addition to the matter not being urgent, the applicant‘s conduct amounts to abuse of court process by giving the respondent merely a day to respond to the founding affidavit. Accordingly, this is a breach of the procedural fairness envisaged in terms of rule 65. Accordingly, the application stands to be struck on that basis.

Principles on urgency

[28] The first prayer in the notice of motion of the applicant is for an order condoning applicant’s non-compliance with the forms and service as contemplated for in the rules and authorising applicant to bring this application on an urgent basis. It is trite that the court’s power to dispense with the forms and service provided for in the Rules of Court in urgent applications is a discretionary one. The applicant bears the onus to satisfy the requirements of rule 73(4) before the court can exercise its discretion in favour of the applicant.¹⁴

[29] Counsel for the applicant argued that in urgent applications, the court will assume that the applicant is entitled to obtain the relief sought¹⁵ or as frequently indicated, it is a well-established principle that for purposes of deciding urgency, the court’s approach is that the court accepts that the applicant’s case is a good one.¹⁶

[30] This case concerns commercial interest which the applicant alleges to suffer should the respondent not be evicted from the premises. I reiterate that commercial urgency is well recognized in our courts, provided that the commercial urgency is sufficient to invoke the provisions of rule 73. Prinsloo J in the SME judgement however stated that ‘it does, however, not follow as a matter of course that just because the matter is one of a commercial nature it would entitle the applicant to have its matter treated on an urgent basis.¹⁷ Thus, even in instances of commercial urgency, the court must still be satisfied that the matter is urgent, and that the applicant will suffer prejudice if the application is not dealt with on an urgent basis.

[31] Where irreparable harm is claimed, the fact that irreparable damages may be suffered is not enough to make out a case for urgency. As Counsel for the respondent argued, irreparable harm may be a ground for an interdict but does not make the application urgent.

[32] When the applicant is seeking the court’s indulgence and has created the emergency, through culpable remissness or inaction, Applicant cannot succeed on the basis of urgency. In short, the urgency should not be self-created. An applicant should therefore not delay in approaching the court and wait until a certain event is imminent and then rely on urgency to have his/her matter heard.¹⁸

[33] Rule 73(4) stipulates that:

‘(4) In an affidavit filed in support of an application under subrule (1), the applicant must set out explicitly –

1. the circumstances which he or she avers render the matter urgent; and

2. the reasons why he or she claims he or she could not be afforded substantial redress at a hearing in due course.’

[34] It is trite that the affidavit in support of the urgent notice of motion must set out the circumstances that renders the matter urgent and the reasons why the applicant is of the opinion that he/she could not be afforded substantial redress in due course.

Are there circumstances that renders this matter urgent?

[35] Counsel argued that the circumstances that renders this matter urgent is that the applicant, a non-profit organisation, runs the risk of losing sponsorships and goodwill. Adv Lewis Argued that the applicant is a s 21 association and has a prospectus tenant who is willing to move into the premises currently occupied by the respondent and the applicant has an opportunity to gain commercial benefit. Accordingly, for as long as the respondent is in occupation, such possibility is frustrated. The urgency therefore is in the opportunity that may be lost if the new tenant leaves while the respondent is refusing to vacate the property. The commercial interest as alluded to has been summarized above under the applicant’s case.

[36] Mr Diedericks for the respondent argued that there is in fact no contract between the applicant and this new tenant. Annexure ‘E’ to the founding affidavit is draft agreement not concluded between the parties and annexure ‘F’ is a letter of intent to form the basis for further discussions between the parties to finalizing the lease agreement. Counsel in fact indicated that the new tenant did not even confirm these allegations.

[37] The applicant’s primary position is that it is unable to finalize an attractive new lease with a higher-paying third party and that failure of that means that the applicant is losing favorable commercial interests. Although this is an issue of commercial interest, is the applicant suffering prejudice and does it render the matter to be decided urgently? I am not so convinced. The applicant’s opportunity with the new tenant is not time- capped and the Applicant has not indicated that the offer will be valid only to a certain point in time, which is imminent. Annexure F being the letter of intent from the new tenant does not even indicate that the offer to negotiate on the new lease lapse on an imminent date. I therefore agree with Mr Diedericks argument that there is no threat that the new tenant will leave soon so as to cloth this application with any urgent nature. For as long as the applicant therefore relies on the risk of the new tenant leaving or withdrawing, the applicant has not established this fact to be a consideration by this court in exercising its discretion.

[38] The applicant’s position is further mounted on the fear that it will lose more sponsors as it lost Castle and Heineken, and that for as along as the respondent remains in occupation, the applicant is at risk of losing sponsorships and goodwill, that suffers ongoing reputational damage among its members, who are denied open access to the Clubhouse. This much is based on the conduct of the respondent complained of as summarized above which is continuing. Firstly, the applicant fail to specify in detail what these conducts or aggressions were on the part of the respondent. Secondly, the applicant does not specify the time period when these aggressions were made or experienced by the applicant. This is particularly important so as to indicate whether they were done during the time of unlawful occupation, ie after 7 April 2025. I doubt that these aggressions were done during that time. In fact, it is a logical conclusion that the conduct complained off was done in the past and only being used as a ground to urgently seek the respondent’s eviction at the present moment.

[39] The applicant indicate that the only meaningful remedy to halt the ongoing financial and reputational harm is to regain possession promptly and that waiting months for a standard eviction application would be commercially ruinous. No facts have been set out to indicate that the applicant would be in a worse commercial position if the respondent is not urgently removed. In fact, Annexure ‘E’ is a mere draft lease agreement which was allegedly forwarded to the new tenant. There is no proof as to when that was done. Therefore, technically, there is no binding agreement in terms of which the applicant would be entitled to advantageous commercial interest, and which could stand to lose if the respondent is not evicted. There is therefore no actual loss or continued harm of any revenue. The applicant failed to establish that risk.

[40] As regards the reputational harm based on the conduct of the respondent, I have indicated above that such conduct was not only scantly mentioned, but the Applicant does not indicate how the urgent order will restore the reputational dignity and most importantly improve or return the investors that already left.

[41] Without alleging that the new tenant threatened to leave imminently and without indicating that the conduct complained of happened lately justifying the matter urgent, I am not satisfied that the applicant has set out the circumstances which render this application urgent.

Will the applicant be afforded substantial redress at a hearing in due course?

[42] Mrs Lewis argued that monetary damages claim against the respondent would be neither immediate nor necessarily collectible, and it would not recoup intangible reputational harm or restore lost opportunities with sponsors. Accordingly, a delay would cause irreparable harm to the applicant. A delayed eviction could cause the new tenant to withdraw, members and sponsors to lose confidence, and the applicant to lose crucial revenue for an extended period. In fact, the applicant does not indicate that it could not be afforded substantial redress at a hearing in due course as required by rule 73(4)(b). What it merely says is that such relief may be a bit too late and the applicant would have lost out on an opportunity to make more money.

[43] Counsel for the respondent argued that the applicant does not indicate that if the matter has to come in the long run, the new tenant will leave or that the applicant will not get more tents. In fact, Adv. Lewis indicated that it is not the applicant’s case that it will not get new tenant. With respect, this is a concession that the applicant will still be able to get new prospective tenants in due course. There is therefore no irreparable harm suffered by the applicant. On this concession alone, it defeats logic why this matter should be decided on an urgent basis.

[44] Allegations for ongoing reputational damage which culminates into a defamatory claim is based on the conduct of the respondent which were not indicated when they happened and on a logical conclusion did not happen recently. Furthermore, the conduct complained off borders on breach of contract and the terms of reference between the parties and various remedies are available under law of contract in such instances. The applicant conceded under paragraph 52 of the founding affidavit that the continued occupation of the respondent constitutes continuous breach of the lease, infringement of the applicant's rights, and further breaches of the applicant's rules. The mere fact that there is breach of contract, or the Applicants rights, even assuming that the applicant’s case is a good one, would not render the matter urgent as there are substantial redress that may be afforded to the applicant at a hearing in due course.

[45] There is therefore no reason advanced as to why the applicant will not be afforded substantial redress at a hearing in due course. The application is not urgent, and the Applicant will be well within its rights to seek redress and to be granted its relief at a hearing in due course.

[46] As summarized above, the urgency procedures are discretionary and may be resorted to when the court is satisfied that the imperatives of rule 73(4) have been met. I am not satisfied that the imperatives of rule 73(4) has been complied with and the matter must not be heard as one of urgency.

[47] There is further grounds to indicate that the urgency was self-created. Already during August 2024, the respondent made its intention clear that it will exercise its option to renew the lease agreement. The applicant did not dispute the fact that the new tent was already in its knowledge since 2024 and no threat of withdrawing was ever indicated that the new tenant will withdraw. In fact, annexure ‘E’ is dated 10 April 2025 indicating an intention to enter into a lease agreement as opposed to a threat to withdraw as possible tenant because of the respondent’s occupation. The applicant therefore created its own urgency without the facts supporting such sense of urgency. On the authorities above, applicant cannot succeed on the basis of urgency.

[48] Resultantly, the applicant failed to satisfy the requirements under rule 73(4). The applicant have failed to set out the circumstances which render this application urgent as well as why the applicants will not be afforded substantial redress at a hearing in due course. The application is struck from the roll for lack of urgency and non-compliance with the provisions of rule 73. The applicant did not satisfy this court why it must jump the que.

[49] This court further notes the limited time frame that was given to the respondent to oppose the application and to file its answering affidavit. Although the applicant in this matter was perfectly entitled to have approached this court on an urgent basis, the applicant had to comply with procedural fairness by affording the respondent a reasonable period within which to oppose this application and to prepare the answering affidavit. Once an application is believed to contain some element of urgency, parties must not ignore the general scheme for presentation of applications as provided for in rule 65 and such applications must still, as far as practicable, be in terms of these rules. In urgent applications a limited period for the filing of a notice of opposition and the filling of the answering affidavit may obviously be stipulated by an applicant, but it must set out reasonable time frames within which a respondent may exercise its procedural rights. The parties’ determination on the timelines should also be cognisance of the right to fair trial and right to be afforded reasonable time to present once’s case, especially when the relief sought is of a final nature such as in these present proceedings.

[50] The applicants should be conscious that their conduct, in an application which is rushed to court on an ill-perceived urgent basis without taking cognisance of the mandatory provisions of ss 65(5)(a) and (b), may be construed as a misuse or an abuse of process and that a court in the exercising its discretion may for that reason strike the ‘urgent application’ from the roll.¹⁹

[51] I am of the view that the applicant in this matter, with due regard to the circumstances of this case, has misconstrued the degree of urgency. This application was not urgent.

[52] The following order is made:

1. The application is struck from the roll for non-compliance with rule 73(4).

2. The applicant must pay the respondent’s costs occasioned by this application.

3. The matter is removed from the roll and considered finalized.

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L AMBUNDA

Acting Jugde

APPEARANCES:

APPLICANT: R Lewis

Instructed by ENSafrica Namibia, Windhoek

RESPONDENTS: J Diedericks

Instructed by Viljoen, Vilhoen & Associates

Windhoek