IN THE HIGH COURT OF NAMIBIA
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.
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ORDER
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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.
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RULING
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SCHIMMING-CHASE, AJ
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 4th
of March 2013 in order for him to make further submissions on this
issue.
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.
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.
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.
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.”
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.
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