REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: A 99/2013
In the matter between:
BV INVESTMENTS 264 CC
FNB NAMIBIA HOLDINGS
MINISTRY OF TRADE AND
INDUSTRY: REGISTRAR OF
COMPANIES AND CLOSE
REGISTRAR OF DEEDS
Neutral citation: BV
Investments 264 CC v FNB Namibia Holdings Ltd (A 99/2013) 
NAHCMD 130 (17 April 2013)
Coram: GEIER J
Heard: 16 April
Applications and motions - Urgent application – For
leave to bring an urgent application for a stay in execution of the
applicants’ home – applicants had been interdicted from
instituting further proceedings against first respondent - the
sale in execution, which the applicants had
intend to stop, had however already
occurred, at the time that the application for leave was heard –
court holding that it clearly and obviously served no purpose to
grant the applicant’s leave to bring any such application after
the fact and to grant to the applicants the indulgences sought,
in circumstances, which
would render the bringing of the intended application futile,
as the to be interdicted event, was
already overtaken by events. In the circumstances the court’s
discretion to grant the relief sought could not, and should not,
be exercised in favour of the applicants –
application accordingly refused.
law - Urgent application –
For leave to bring an urgent application for a stay in execution of
the applicants’ home – applicants had been interdicted
from instituting further proceedings against first respondent –
applicants’ relying on Articles 25(2) and 12(1) of the
Constitution – court holding that in
circumstances of the case- where the to be interdicted event,
was already overtaken by events - no infringement
of Articles 25(2) or 12(1) would occur if the application were to be
refused and any such refusal would also not, in
such circumstances, deny the applicants
access to justice – application accordingly dismissed with
The application is
dismissed with costs.
 The 2nd
applicant, and all who purport to act on his behalf, were interdicted
by court order, dated 5 April 2013, issued in Case Number I 471/2010
from launching and or instituting and or issuing and or pursuing any
further actions and or applications against the 1st
respondent for an indefinite period of time alternatively until such
time that the presently pending matter between the parties under case
number I 471/2010 has been finalised, unless granted leave by this
court to do so.
 The first and or
second applicant’s house was apparently due to be sold at a
sale in execution set for 12h00 on 16 April 2013.
 The applicants
apparently attempted to bring an urgent application at 09h00 in the
morning of the 16th of April 2013, to stop the said sale
 Although this was not
set out on the papers it seems that the applicants were advised that,
in order to bring such application, they would first have to obtain
leave from the court to do so, hence the present application.
 The founding papers
filed in support of this application briefly indicate that a writ of
execution, to sell on auction, the house of second applicant, was
issued. No date on which such writ was applied for or when it came to
the applicant’s notice was supplied.
 No other details were
supplied relevant to the execution process.
 Reference was then
made to the referred to interdict and that the applicants desired to
obtain the requisite leave.
 In support of their
quest to obtain such leave, reliance was placed on Articles 25(2) and
12(1) of the Namibian Constitution.
 The second applicant,
who appeared in person, on behalf of both applicants, underscored the
applicants’ reliance thereon in oral argument and, in essence,
he submitted that these rights would be infringed should leave to
bring the intended urgent application not be granted.
 Mr Schickerling who
appeared on behalf of the first respondent, who opposed the
application, submitted, in the main, that the applicants’
application was so defective that no relief could be granted on it.
 More particularly,
he pointed out that the Notice of Motion contained no prayer for the
main relief sought, save for the requisite prayer, standard to urgent
applications, and in terms of which the court’s indulgence was
sought for the non-compliance with the normally applicable rules and
forms and the prayer that the matter be heard as an urgent one.
 Mr Schickerling also
pointed out that Rule 61(2)(b) had not been complied with in the
sense that the circumstances, which rendered the matter urgent, had
not been set out explicitly nor had the reasons, why the applicants
could not be afforded substantial redress at a hearing in due course
been set out therein.
 He submitted that no
prima facie case had been made out and - as the applicant had
to stand or fall by his founding papers - which were lacking in these
respects - the application would have to be dismissed with costs.
 During argument the
court enquired from the second applicant whether he intended to amend
the Notice of Motion in order to counter Mr Schickerling’s
first argument as any such amendment would not be prejudicial, in
circumstances, where it was clear what the purpose of the application
was, and which had been expressly stated in the founding papers.
 On the application
of the second applicant the notice of motion was then amended through
the insertion therein of a further prayer - to be numbered 2 - to the
effect that the applicants be granted leave to bring an urgent
application to stop the sale in execution of the second applicant’s
house situated at Erf 152 Hochland Park.
 It appeared further
that Mr Schickerling’s other points were well taken, as upon
closer analyses of the founding papers, it indeed appeared that the
grounds for urgency had not been explicitly set out, as is required
by the Rule. I was not convinced however, that in the circumstances
of where a party seeks access to the courts in order to interdict a
sale in execution, timeously and properly, he should allow such sale
in execution to proceed and seek readdress at a hearing in due
 Mr Schickerling
however, importantly and crucially informed the court from the bar,
no answering papers having been filed, that the sale in execution had
already taken place. It is to be noted in this regard that this
application was only heard in the afternoon of 16 April 2013 at about
15h00. The court also inquired from the second applicant whether he
wanted an opportunity to verify this information, which invitation
the second applicant declined.
 I might add that it
was disclosed during further argument, which occurred at the
resumption of this hearing, on 17 April 2013, that the second
applicant indeed was able to verify that the said sale in execution
had taken place, in fact he even submitted from the bar that the sale
and execution had commenced 10 minutes after the time set for the
 At the close of
argument, on 16 April 2013, the second applicant however then raised
the issue of the 1st respondent’s locus standi
and demanded proof of authorisation for the opposition by first
respondent to his application.
 In such
circumstances the court postponed the matter to the following day to
allow the 1st respondent to file the necessary resolutions
and power of attorney.
 This was duly done
and it emerged that the 1st respondent had thus duly and
properly authorised its legal practitioners to oppose the applicants’
 During argument on
17 April 2013, the second applicant then also properly and correctly
informed the court that he considered the filed power of attorney,
the resolution and accompanying certificates, in compliance with the
requirements set by the rules of court and, accordingly, he no longer
persisted with this point as he was satisfied that the opposition to
this application was duly authorised.
 Also the applicants
filed a further document on 17 April 2013. It was addressed to Van
der Merwe- Greeff Incorporated and it is stated:
refer yourself to paragraph 8 of the Affidavit at Barend Jacob Van
Der Merwe dated 19 October 2011, in the matter PI 471/2010. Not to
waste the Honourable Court’s precious time applicants request
yourself to cancel the sale of 16 April 2013 as first Respondent sold
the property without a Court Order in its favour’,
at Windhoek on this 17th day of April 2013.
to: The Register of High Court.’
 It appears that the
contents of this document was no longer relevant to the adjudication
of this application which is only a precursor to the bringing of the
intended urgent application for substantive relief relating to the
sale in execution which had already occurred.
 What is however
relevant and which determines the outcome of the present application
is the fact that the sale in execution, which the applicants intend
to stop, had already occurred, at the time that this application was
heard yesterday, on 16 April 2013, in the afternoon.
 It clearly and
obviously serves no purpose to grant the applicant’s leave to
bring any such application after the fact and to grant to the
applicants the indulgences sought, in circumstances, which would
render the bringing of the intended application futile, as the to be
interdicted event, was already overtaken by events.
 In such
circumstances no infringement of Articles 25(2) or 12(1) would occur
if this application were to be refused and any such refusal would
also not, in such circumstances, deny the applicants access to
 In the circumstances
I consider that the court’s discretion to grant the relief
sought cannot, and should not, be exercised in favour of the
 On behalf of the
first respondent a special cost order was also sought.
 It has however
emerged that when the applicants tried to bring an urgent application
prior to the sale in execution they were apparently advised that they
would firstly have to bring an application for the requisite leave.
This the applicants did, obviously under severe time constraints, and
as the facts of this matter show, they were ultimately not able to
lodge and serve their further application in time.
 Although the parties
continuously endeavoured to go outside the papers and although I
recognise that also this application is preceded by a history between
the parties, which seems to have culminated in the court order of 5
April 2013, which resulted in the referred to interdict of the second
applicant to launch further proceedings, without leave, it does not
appear from that order that the applicants were in fact declared to
be vexatious litigants. One may want to infer this from the type of
order that was granted, but I am not prepared to accept this without
 In any event I have
no doubt that most courts will have sympathy and, in the normal
course of events, will grant a party leave to try and prevent, or try
to interdict the sale of such a party’s home.
 And, in any event, I
cannot in the circumstances of this case find that the applicants’
attempt to obtain leave, for purposes of interdicting the said sale
in execution, is vexatious, or that there are any circumstances which
warrant an extra ordinary costs order.
 Mr Schickerling has
also requested that the court award the costs of one instructed and
one instructing counsel. In my view however, the complexity of this
matter is not such that it warrants a cost order on that scale.
 In the result the
application is dismissed with costs.
APPLICANTS: In Person
1st RESPONDENT: J
Instructed by Van der Merwe-Greeff