Court name
High Court Main Division
Case name
Kaune v Kaune
Media neutral citation
[2013] NAHCMD 117
Judge
Shivute J













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case No: A 112/2013








In the matter between:








ISSASKAR KAUNE
.....................................................................................APPLICANT








and








MURAERE KAUNE
..........................................................................1ST
RESPONDENT



HIJEE KAUNE
.................................................................................2ND
RESPONDENT



RIUNDJUA KAUNE
.........................................................................3RD
RESPONDENT



MUKANDI KAUNE
...........................................................................4TH
RESPONDENT



KAUNAHANGE KAUNE
..................................................................
5TH
RESPONDENT



THE INSPECTOR-GENERAL
OF THE NAMIBIA POLICE
.............6TH
RESPONDENT








Neutral citation:
Kaune v Kaune (A 112/2013) [2013] NAHCMD 117 (30 April
2013)








Coram: SHIVUTE, J



Heard: 29 April
2013



Reasons released:
30 April 2013








Flynote: Applications
and motions – such moved by urgent application – Court
finding that a case has been made out for the relief sought –
in terms of Rule 6 (12) (b) – matter heard on urgent basis.








Summary: Applications
and motions – Urgent Application – Mandament van
spolie
– Court finding that a case has been made out for
the relief sought – Matter heard on urgent basis and granted an
order of the restoration of the quiet and undisturbed possession to
the immovable property to the applicant - Pending the final
determination of case number I 3124/2012.










ORDER











  1. That the non-compliance
    with the forms and service provided for by the Rules of the above
    Honourable Court is condoned and the application is heard on an
    urgent basis as envisaged by Rule 6(12) of the Rules of the
    Honourable Court.










  1. That a Rule Nisi is
    hereby issued calling upon the Respondents and any interested party,
    if any, to show cause on the 18th June 2013 why an order
    in the following terms should not be made final:-









2.1. Ordering and
directing the 1
st,
2
nd,
3
rd,
4
th
and 5
th
Respondents to forthwith restore to the Applicant the undisturbed and
peaceful possession,
ante
omnia
,
of Farm Uithou No. 366, situated in the District of Gobabis, Republic
of Namibia, pending the final determination of Case Number I
3124/2012 by the Honourable Court.



2.2. Ordering and
directing the 1
st,
2
nd,
3
rd,
4
th
and 5
th
Respondents to forthwith vacate, together with their livestock and
any possession they have brought to Farm Uithou No. 366 situated in
the District of Gobabis pending the final determination of Case
Number I 3124/2012;



2.3. Ordering the 1st,
2
nd,
3
rd,
4
th
and 5
th
Respondents to refrain in any manner whatsoever from interfering with
the Applicant’s peaceful and undisturbed possession of Farm
Uithou No. 366 situated in the District of Gobabis;



2.4. That the 1st,
2
nd,
3
rd,
4
th
and 5
th
Respondents pay the Applicant’s costs of the application on a
scale as between attorney and client.









  1. That prayers 2.1, 2.2,
    2.3 and 2.4 shall operate as an interim interdict with immediate
    effect, pending the return date on 18 June 2013 at 10h00.






JUDGMENT










SHIVUTE J:








[1] This application is
brought before court by notice of motion whereby the applicant prayed
that it should be heard as a matter of urgency. The Applicant sought
the relief set out in the notice of motion. The Respondents did not
oppose the application. Having read the notice of motion and other
process and documents filed of record and having heard Mr Phatela
counsel for the Applicant and Mrs Yssel counsel for 1st,
2nd, 3rd, 4th and 5th
Respondents, I made the following order and I indicated that reasons
would follow in due course.








Here follows the order:




  1. That the non-compliance
    with the forms and service provided for by the Rules of the above
    Honourable Court is condoned and the application is heard on an
    urgent basis as envisaged by Rule 6(12) of the Rules of the
    Honourable Court.










  1. That a Rule Nisi is
    hereby issued calling upon the Respondents and any interested party,
    if any, to show cause on the 18th June 2013 why an order
    in the following terms should not be made final:-











    1. Ordering and directing
      the 1st, 2nd, 3rd, 4th
      and 5th Respondents to forthwith restore to the
      Applicant the undisturbed and peaceful possession, ante omnia,
      of Farm Uithou No. 366, situated in the District of Gobabis,
      Republic of Namibia, pending the final determination of Case Number
      I 3124/2012 by the Honourable Court.












    1. Ordering and directing
      the 1st, 2nd, 3rd, 4th
      and 5th Respondents to forthwith vacate, together with
      their livestock and any possession they have brought to Farm Uithou
      No. 366 situated in the District of Gobabis pending the final
      determination of Case Number I 3124/2012;












    1. Ordering the 1st,
      2nd, 3rd, 4th and 5th
      Respondents to refrain in any manner whatsoever from interfering
      with the Applicant’s peaceful and undisturbed possession of
      Farm Uithou No. 366 situated in the District of Gobabis;












    1. That the 1st,
      2nd, 3rd, 4th and 5th
      Respondents pay the Applicant’s costs of the application on a
      scale as between attorney and client.











  1. That prayers 2.1, 2.2,
    2.3 and 2.4 shall operate as an interim interdict with immediate
    effect, pending the return date on 18 June 2013 at 10h00.









[2] The Applicant is a
sibling to the 1st, 2nd, 3rd, 4th
and 5th Respondents. He had applied for a mandament van
spolie
in respect of the restoration of the quiet and undisturbed
possession to him of the immovable property referred to in the notice
of motion. He considered himself to be the owner of farm Uithou No.
366 situated in Gobabis district and he had enjoyed undisturbed
possession in respect of the farm since 1988. He owns a considerable
heads of stock which are kept at the farm in issue.








[3] He had inherited the
farm from his father who died intestate. However, prior to his death
he had called the applicant and his other siblings who are not
parties to this application and decided inter alia that the
applicant would inherit the farm.








[4] However, last year
the applicant had instituted legal proceedings which are pending
before this court seeking a declarative relief that he is the lawful
heir to the farm in issue in terms of Otjiherero customary law.
Whilst the matter is still pending the Respondents unlawfully
dispossessed him of certain portions of the farm. On 26 April 2013
the third respondent whilst he was herding the cattle allegedly
belonging to the 1st, 2nd, 4th and
5th respondents invaded the said farm and threatened him
with violence. The 3rd respondent was joined by the 1st,
2nd, 4th and 5th respondent who came
with seventy five cattle and entered the farm forcefully and also
threatened the applicant with threats of violence.








[5] Due to the
Respondent’s head of cattle the farm has more cattle than its
capacity and this may put the sustainability of the farm in jeopardy.








[6] The farm is currently
overstocked; overgrazed and water resources are being over utilized.
The Applicant and his family are living in fear due to threats of
violence from the respondents. The applicant sought assistance from
the police but it was not forth coming. He had no other remedy which
could afford him redress at a hearing in due course, hence he lodged
an urgent application seeking for the relief prayed for in the Notice
of motion.








[7] In deciding the
question or urgency I would like to consider the provisions of Rule 6
(12) (b) set out below:








In
every affidavit or petition filed in support of any application under
paragraph (a) of this subrule, the applicant shall set forth
explicitly the circumstances which he avers render the matter urgent
and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course.”








[8] Having considered the
applicant’s founding affidavit I am of the opinion that the
applicant had set out in his affidavit the circumstances which
rendered the matter urgent when he pointed out the background and
facts of the matter. The same background and facts further contains
the reasons why the applicant claimed that it could not be afforded
substantial redress at a hearing in due course. I am therefore
satisfied that the complainant had succeeded to satisfy the
requirements of Rule 6 (12) (b) of the rules of court.








[9] The Applicant was in
peaceful and undisturbed possession of the property and the
respondents wrongfully deprived the applicant of his peaceful and
undisturbed possession of the property and the rights of the
applicant as to his possession has been infringed by the unlawful
conduct of the respondents by taking the law into their own hands.








[10] It is my considered
opinion that since the Applicant had met the requirements of Rule 6
(12) this is a deserving case where I should consider the application
as a matter of urgency and grant the relief prayed for in the notice
of motion.






































----------------------------------



N N Shivute



Judge






































APPEARANCES








APPLICANT : Mr Phatela



Instructed by Dr Weder,
Kauta and Hoveka Inc.



Windhoek








RESPONDENTS
1
STTO 5TH
: MRS YSSEL



Engling Stritter &
Partners



Windhoek