Hoebeb v Hoebes ((P) I 1035/2011) [2013] NAHCMD 57 (04 March 2013);

NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case no: (P) I 1035/2011

In the matter between:

ENGELHARD HOEBEB ...........................................................................PLAINTIFF

and

LEONIE KAREN HOEBES

(born HARAGAIS) ...............................................................................DEFENDANT

Neutral citation: Hoebeb v Hoebes ((P) I 1035/2011) [2013] NAHCMD 57 (4 March 2013)

Coram: Schimming-Chase, AJ

Heard: 4 March 2013

Delivered: 4 March 2013

Flynote: Practice- Calculation of days in terms of Practice Directive 4(1), whether calendar days or court days applicable.

Summary: Practice Directive 4(1) of the Consolidated Practice Directives provides that in divorce actions, a restitution order must be served not less than 14 days prior to the first restitution date. The practice directive does not refer to calendar days or normal days. It is trite that the practice directives are published as an ancillary mechanism to the Rules of court and are to be read together with the Rules of court in the absence of any provision to the contrary. Rule 1 of the Rules of court defines a court day as any other day than a Saturday, Sunday or public holiday, and provides further that only court days shall be included in the computation of any time expressed in days prescribed by the rules or by any order of court. Thus, for purposes of obtaining a final order of divorce, the calculation of the days between service of the restitution order and the first return date are court days.

ORDER

The days between service of a restitution order and the first return date in terms of Practice Directive 4(1) shall be calculated in court days as provided for in the Rules of court.

RULING

SCHIMMING-CHASE, AJ

1. On 25 February 2013 and on the return date of a Rule nisi, during second motion court Mr Grobler appearing on behalf of the plaintiff applied for a final order of divorce and submitted that the papers were in order. The court pointed out to Mr Grobler that there was one day short service to which Mr Grobler responded that according to the practice in the High court of Namibia the days between service of the restitution order and the first return date in a divorce proceeding were to be calculated as normal calendar days and not court days. Mr Grobler sought to extend the rule nisi for one week to the 4^th of March 2013 in order for him to make further submissions on this issue.

2. Mr Grobler deposed to an affidavit on 28 February 2013 in which he pointed out that he started to practice in the High Court of Windhoek in 1983 and in the years since then has acted in numerous divorce cases. He further stated in his founding affidavit that when he started practice he was told by more senior advocates who did a lot of divorce cases at the time that a restitution order must be served on the defendant at least 14 calendar days before the return date. No confirmatory affidavit has been filed by any of these senior legal practitioners.

3. Mr Grobler further alleges that in all his years of practice in Windhoek these requirements were never changed. As a result, he submitted that the calculation of the time from service of the restitution order to the first return date was normal days and not calendar days. He submitted that 14 calendar days are ample time to restore conjugal rights.

4. Practice Directive 4(1) of the Consolidated Practice Directives as amended issued by the Judge President of the High court of Namibia in 2009 provides that a restitution order must be served not less than 14 days prior to the first restitution date. I point out that the practice directive does not refer to calendar days or normal days. It is trite that the practice directives are published as an ancillary mechanism to the Rules of court and are to be read together with the Rules of court.

5. In Rule 1 of the Rules of court, court days are defined as follows:

“Court day means any other day than a Saturday, Sunday or public holiday, and only court days shall be included in the computation of any time expressed in days prescribed by these rules or by any order of court.”

6. As the practice directives are ancillary to the rules of court and the practice directives do not indicate that there should be normal days or calendar days calculated from the date of service of the restitution order and the first return date, I hold the view that the practice directives being read together with the Rules of court make it very clear that the days should be calculated as court days and nor calendar days.

7. Despite Mr Grobler’s extensive practice in this court, Mr Grobler was unable to provide the court with any authority in terms of which a decision of the High Court of Namibia or other legislative provision provides that the days should be normal days and not court days. Although there may well have been such a practice previously, the practice directives read with the Ruled of court have changed the situation. In the absence of any other authority to this effect, I hold that the Rules of court together with the practice directives are applicable and that any time expressed in days prescribed by these rules or fixed by any order of court, are court days and not normal or calendar days. In the result, there was one day short service of the restitution order.

______________________

EM SCHIMMING-CHASE

Acting Judge

APPEARANCES

PLAINTIFF Adv S Grobler

DEFENDANT: No appearance