Acting Deputy Sheriff for the District of Windhoek v Ochurub (SA 130/2024) [2024] NASC 37 (5 December 2024)

NOT REPORTABLE

 

CASE NO: SA 130/2024

 

 

IN THE SUPREME COURT OF NAMIBIA

 

 

In the matter between:

 

 

ACTING DEPUTY SHERIFF FOR THE DISTRICT OF WINDHOEK	First Applicant/First Respondent
BANK WINDHOEK LIMITED	Second Applicant/Second Respondent
and
CHARLES MICHAEL OCHURUB	Respondent/Appellant

 

 

 

Coram: HOFF JA

 

Heard: In Chambers

 

Delivered: 5 December 2024

 

 

 

Summary: The second applicant initiated legal proceedings against the respondent on 28 January 2022 (case HC-MD-CIV-ACT-CON-2022/00285). The proceedings remained unopposed, leading to a default judgment on 26 April 2022. Subsequently, a notice of motion relating to a rule 108 application was served on the respondent which resulted in a declaration of the premises as specially executable on 28 October 2022, followed by the issuance of a writ of execution on 9 November 2022. The first applicant was instructed to execute the sale of the premises, which was conducted via judicial auction on 26 March 2024, with the second applicant purchasing the property for N$773 148,10. The second applicant complied with all financial obligations related to the sale; however, the respondent refused to vacate the premises. Due to the respondent’s continuous residence at the property despite the sale, the first applicant filed for eviction (case HC-MD-CIV-MOT-GEN-2024/00367) on 30 July 2024. Although the respondent opposed this eviction application, the court ruled in favour of the first applicant on 20 September 2024.

 

The respondent has appealed against both the execution order of 28 October 2022 and the eviction order issued on 20 September 2024. It is this appeal that prompted the first applicant to bring this application in terms of rule 6 of the Rules of this Court for the summary dismissal of the respondent’s appeal on the grounds that it is frivolous or vexatious or otherwise has no prospects of success. There is an opposed condonation application for the late filing of the rule 6 application for the court’s consideration.

 

Held that, the first applicant has satisfied the requirements of a condonation application, although a poor explanation was given, the prospects of success on appeal in respect of the rule 6 application are very good.

 

Held that, there is currently no appeal against the execution order before the court. Ultimately, the application in terms of rule 6 read with s 14(7) of the Supreme Court Act 15 of 1990, succeeds on the basis that the appeal, launched by the respondent in case SA 130/2024, has no prospects of success in respect of the merits on appeal.

 

Consequently, the appeal in SA 130/2024 is summarily dismissed with costs.

 

 

 

 

____________________________________________________________________

 

JUDGMENT PURSUANT TO SECTION 14(7)(a) OF THE SUPREME COURT ACT 15 OF 1990 READ WITH RULE 6(1) OF THE RULES OF THE SUPREME COURT

____________________________________________________________________

 

HOFF JA:

1. This is an application in terms of rule 6 of the Rules of this Court for the summary dismissal of an appeal on the grounds that it is frivolous or vexatious or otherwise has no prospects of success.

 

2. In this judgment Charles Michael Ochurub is referred to as the respondent, the Acting Deputy Sheriff for the district of Windhoek as the first applicant, and Bank Windhoek Limited as the second applicant.

 

3. The High Court (court a quo) delivered a judgment on 20 September 2024 in which the following orders were issued:

 

1. That the respondent and all persons claiming any right or interest to occupy under him are ordered to vacate the premises situated at Erf no. 7607 Katutura (Extension no. 18) situated in the district of Windhoek measuring 279 square metres and held under Deed of Transfer No. T190/2025 (hereinafter referred to as the premises).

 

2. The Acting Deputy Sheriff or the Deputy Sheriff concerned is authorised and directed to evict any person who, within five days after service of this order fails or refuses to vacate the premises and to take such lawful steps as are necessary and required to evict the respondent and/or any occupant residing on the premises.

 

3. The respondent must pay the costs of the application.

 

Background

4. The application in terms of rule 6 is brought by the first applicant.

5. The second applicant had summons issued against the respondent on 28 January 2022 in the court a quo in the matter HC-MD-CIV-ACT-CON-2022/00285 (herein referred to as case 00285) and on 7 March 2022 this summons was personally served on the respondent.

 

6. The respondent did not oppose the action and subsequently on 26 April 2022 a default judgment was obtained.

 

7. On 6 June 2022, the respondent was personally served with a notice of motion and affidavit in terms of rule 108 of the Rules of the Court a quo. The respondent did not oppose the rule 108 application, and on 28 October 2022 the court a quo declared the premises specially executable. On 9 November 2022 a writ of execution was issued against the premises.

 

8. The first applicant was instructed by the second applicant’s legal practitioner to attach and sell the premises in execution.

9. The premises was attached and on 26 March 2024 the first applicant sold the premises by judicial auction to the second applicant for the amount of N$773 148,10.

 

10. In compliance with the terms of the conditions of sale, the second applicant paid the deposit (ten per cent of the purchase price) and the Deputy Sheriff’s charges, fees and commission. The second applicant has tendered performance and compliance with all such obligations which are necessary for it to obtain transfer of the premises.

 

11. The respondent continues to reside on the premises despite the sale in execution and refused to enable the first applicant or the second applicant to take possession of the premises.

 

12. As a consequence of the respondent’s refusal to vacate the premises, the second applicant remains unable to obtain transfer of the premises.

 

13. On 30 July 2024 the first applicant filed an application to evict the respondent in the matter HC-MD-CIV-MOT-GEN-2024/00367 (hereinafter referred to as 00367). The respondent opposed the eviction application and filed answering papers. On 20 September 2024 the court a quo delivered judgment in favour of the first applicant.

 

14. The respondent has now lodged an appeal against the orders granted on 28 October 2022 (the execution order) and against the judgment of 20 September 2024 (the eviction order).

 

15. The respondent filed one notice of appeal (SA 130/2024) in spite of the fact that cases 00285 and 00367 are two completely different matters which were concluded on different dates.

 

16. In his notice of appeal the respondent stated that on 5 August 2024, and in the motion court, an application was sought (which application was apparently unopposed), declaring the orders granted in case numbers 00285 and 00367 void ab initio, and ‘ordering all steps and proceedings found on those two orders be stayed pending the application’.

 

17. The grounds of appeal listed in the notice of appeal are the following:

 

The court a quo misdirected itself in ordering that the appellant:

 

1. had in ‘her’ discretion disbanded the 21 days allowed for an appellant to appeal as of right to the Supreme Court, and replaced it with five days after the order to vacate the premises;

 

2. the court order is inconsistent with the general rule that there is an automatic stay after the order of the court a quo;

 

3. the court a quo erred in law to entertain the eviction application in the face of a pending case;

 

4. the court a quo misdirected itself by not applying the law of unjust enrichment where the second applicant unjustly ‘purchased’ the primary home at an ‘alleged public auction’ for less than 75 per cent of its value; and

 

5. that the applicants were obliged to have opposed the pending case or had to wait until the finalisation of the pending case.¹

 

The condonation application

18. The first applicant launched a condonation application for the late filing of the rule 6 application. This application was opposed by the respondent. The deponent of the founding affidavit in support of the condonation application, a legal practitioner, stated that the application was filed out of time (three days late) as the respondent has remained out of reach or unavailable to be served with the documents since the respondent was in Gobabis and would have returned (to Windhoek) on 29 October 2024. It was contended that the 21 days within which the application had to be served ended on 24 October 2024 and that the rule 6 application would have been served on the respondent on 29 October 2024.

 

19. The deponent stated that first applicant attempted to serve the application at one address as provided in the notice of appeal, and that it was always the intention of the first applicant to file the rule 6 application.

 

20. The deponent stated the first applicant has reasonable prospects of success on appeal based on the grounds and reasons provided for in the founding affidavit in support of the rule 6 application.

 

21. The respondent in his answering affidavit opposing the condonation application pointed out that the application could have been served at his chosen domicilium citandi and that the fact that he was in Gobabis and unavailable made no sense at all.

 

22. The respondent listed the factors this Court will look at in considering the condonation application, namely:

 

1. the explanation for the delay;

2. the degree of lateness;

3. the importance of the matter;

4. prospects of success; and

5. prejudice.

 

23. The respondent, incorrectly, contended that the first applicant has (in his founding affidavit) not fully covered a single one of these factors and that the application was filed out of time due to the first applicant’s wilful disregard of the Rules of this Court.

24. I agree with the respondent that where he has chosen a domicilium citandi a copy of the application could have been left there, and the fact that he was unavailable made no sense at all why the application could not have been served. There are a number of ways in terms of the rules of the court a quo in which service on a natural person may be effected other than personal service. The dogged insistence for personal service by the legal practitioner, who explained the delay, is unfathomable.

 

25. It is trite that in a condonation application an applicant must show good cause for the non-compliance. This entails that a reasonable accurate and acceptable explanation must be provided for the non-compliance with the rule, and that there are reasonable prospects of success on appeal. An application for condonation may be refused without having regard to the prospects of success where the non-compliance had been glaring, flagrant and inexplicable.

 

26. There is an interplay between the obligation to provide a reasonable and acceptable explanation for the non-compliance and the reasonable prospects of success in respect of the merits on appeal, for example good prospects of success on appeal may compensate for an explanation less than satisfactory, as in this instance.

 

27. The respondent, correctly in my view, did not contend that the non-compliance with a rule by the first applicant had been glaring, flagrant or inexplicable, but that there was a wilful disregard of the rules. Although the explanation for non-compliance was less than satisfactory, I do not agree that non-compliance was wilful since the first applicant in his founding affidavit stated that they attempted to serve the application at the address provided for on the notice of appeal.

 

28. I shall therefore now consider the prospects of success on appeal.

 

Prospects of success

29. In his founding affidavit, in support of the rule 6 application, the first applicant stated that the matter leading up to the execution order has been finalised, that the respondent’s purported rescission application was removed from the court’s roll due to respondent’s non-appearance, and that this matter (the rescission application) is not pending on any court roll. The respondent in his answering affidavit does not deal with this statement of the first applicant at all, and the statement must therefore be accepted as correct, since it is not specially denied.

 

30. It was further submitted by the first applicant, in the founding affidavit in support of the rule 6 application, that the appeal against the execution order should have been launched within 21 days of that order; that the respondent has not sought condonation for the late filing of his appeal, filed two years late, and there is thus no such appeal before this Court. This submission was also not dealt with at all in the respondent’s answering affidavit, in opposing the condonation application.

 

31. Therefore, in my view, until such time that this Court condones the late filing of the appeal against the execution order there is no appeal currently before the court. The prospects of success on appeal (regarding the rule 6 application) in respect of the merits of the execution order are excellent.

 

32. Regarding the matter 00367 (the eviction order) the respondent, save to state in his answering affidavit that the first applicant must show prospects of success in the condonation application, did not point out why there are no prospects of success in respect of the merits of the application. Further in this regard the respondent in his notice of appeal simply stated that there are reasonable prospects of success and that this Court may come to a different conclusion than the court a quo without motivating his contention.

 

33. In respect of the grounds listed in the notice of appeal:

 

1. Firstly, in respect of the contention that a female judge had ‘disbanded’ the 21 days allowed for the respondent to appeal, no female judge sat on any of the matters (00285 and 00367) and there is no decision on record in which the court a quo ‘disbanded’ the respondent from appealing within 21 days.

 

2. Secondly, the respondent is wrong to state that there is a general rule to the effect that ‘there is an automatic stay after the order of the court a quo’. The only automatic stay is if an appeal is lodged.

 

3. Thirdly, in the notice of appeal, the respondent contended that the second applicant was unjustly enriched at the expense of the respondent. From the judgment of the court a quo, the contention of unjust enrichment was never an issue to be considered – the court a quo did not refer to it at all. It was raised impermissibly so, for the first time in the notice of appeal.

 

4. Fourthly, the respondent contended that the court a quo should not have entertained the eviction order application in view of a pending case which had allegedly not been finalised. As stated hereinbefore, and it must be accepted as correct, that the rescission application in the matter 00285 had been removed from the roll due to the non-appearance of the respondent. This contention is without any merit.

 

34. The court a quo in its judgment in the eviction application stated that the essentialia for an eviction order are well entrenched in law. The court a quo considered the respondent’s contention in his answering affidavit, opposing the eviction application, namely, that there was a fundamental defect in the orders granted in respect of the default judgment and the order declaring the premises specially executable.

 

35. The court a quo concluded that these contentions were not valid in law and have no force, and that the respondent has not offered any defence or answer to the cogent evidence placed by the first applicant before court.

 

36. The court a quo further held that the respondent’s refusal to vacate the premises was unlawful conduct which thwarted the first applicant from carrying out his statutory duties in terms of the rules of the court a quo and prevented the purchaser from taking possession of the property. It was pointed out by the court a quo that in terms of rule 11(2) of the rules of the court a quo, that the first applicant is obliged to transfer the property to the purchaser against payment of the purchase price.

 

37. The undisputed facts are that the respondent had been personally served with the summons which resulted in the default judgment, and was served with the rule 108 application and its supporting affidavit. The respondent was in both instances given the opportunity to oppose the legal procedures against him but in both instances chose to ignore those procedures. The respondent has only himself to blame for the situation he finds himself in. There is no explanation by the respondent why he chose to ignore process served on him personally.

 

38. The premises were sold at a public auction and the respondent was fully aware of the publication of the sale and auction and did not bring an application to stop the auction. There are in my view no prospects of success in respect of the appeal against the eviction order.

 

39. In my view, the first applicant satisfied the requirements of a condonation application, although a poor explanation was given, the prospects of success on appeal in respect of the rule 6 application are very good. There are absolutely no prospects of success on appeal in respect of the merits of the respondent’s notice of appeal against the judgment and orders issued by the court a quo as referred to in para [3] supra.

 

40. In conclusion, it is my considered view that the application in terms of rule 6 read with s 14(7) of the Supreme Court Act 15 of 1990, in respect of the eviction order should succeed on the basis that the appeal, launched by the respondent in case SA 130/2024, has no prospect of success in respect of the merits on appeal.

Order

41. In the result, the appeal in SA 130/2024 in respect of the eviction order is summarily dismissed with costs.

 

 

 

 

 

 

 

__________________

HOFF JA

 

 

 

 

 

 

 

 

 

REPRESENTATION

 

FIRST APPLICANT/FIRST RESPONDENT:	C TURCK
	Dr Weder, Kauta & Hoveka Inc.
RESPONDENT/APPELLANT:	In Person