Court name
High Court Main Division
Case name
Inkono v The Council of the Municipality of Windhoek
Media neutral citation
[2013] NAHCMD 140
Judge
Schimming-Chase AJ





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGMENT



Case no: A 55/2013








In the matter between:








PATRICK INKONO
.................................................................................APPLICANT



and



THE COUNCIL OF THE MUNICIPALITY OF
WINDHOEK ................RESPONDENT








Neutral citation: Patrick
Inkono v The Council of the Municipality of Windhoek
(A 55/2013)
[2013] NAHCMD 140 (28 May 2013)








Coram: Schimming-Chase, AJ



Heard: 7 March 2013



Delivered: 28 May 2013








Flynote: Practice –
Applications and motions – Urgent applications –
Requirement of Rule 6(12)(b) of Uniform Rules of Court that applicant
must show that he or she cannot be afforded substantial redress at
hearing in due course – Case to be made out in founding
affidavit.








Practice – Applications and
motions – In terms of Rule 6(5)(e) the court may in its
discretion permit the filing of further affidavits. Respondent
delivered a supplementary affidavit after the matter was heard. It
was simply placed on court file without leave of the court.
Supplementary affidavit accordingly not considered.








Summary: When an applicant
approaches the court in application proceedings on an urgent basis,
the applicant is required to show good cause why the time periods
provided for in Rule 6(5) should be abridged and why the applicant
cannot be afforded substantial redress at a hearing in due course.
The applicant should make out a case of clear urgency in the founding
papers. The applicant’s alleged urgency was related to a notice
by the respondent that eviction proceedings would be commenced
against him should he not vacate certain immovable property. It was
clear on the papers that the applicant had not be served with any
process dealing with the institution of any eviction proceedings
either in the High Court or the Magistrate’s Court. The
applicant approached the court on 24 hour’s notice for certain
relief that was clearly premature as well as for an order
interdicting the respondent from evicting the applicant. The
applicant had not made out a case for urgency in the founding papers.
Application accordingly dismissed with costs.








The respondent delivered a
supplementary affidavit after the court reserved judgment seeking to
place additional matters in evidence. Rule 6(5)(e) establishes
clearly that the filing of further affidavits in applications is only
permitted with the indulgence of the court. The supplementary
affidavit was simply delivered and placed on the court file without
leave of the court. No application was made for leave to place
additional facts before court. Supplementary affidavit accordingly
ignored.










ORDER










The application is dismissed with
costs.










JUDGMENT










SCHIMMING-CHASE, AJ









  1. This is an urgent application
    launched by the applicant, Patrick Inkono, in the form a rule nisi
    for the following relief:









(a)
interdicting the respondent / any other person from cancelling a
valid sale agreement between the applicant and the respondent;








(b)
interdicting the respondent from transferring Erf 3395 Okuryangava,
Katutura, Windhoek to the alleged heirs of the deceased or any other
person except the applicant; and








(c)
interdicting the respondent from evicting the applicant from Erf 3395
Okuryangava, Katutura, Windhoek.”









  1. The applicant also sought an order
    directed the respondent to transfer ownership of Erf 3395,
    Okuryangava, Katutura, Windhoek (“the property”), into
    his name. There was no prayer in the notice of motion requesting
    that the interdictory relief sought be immediately granted pending
    the return date of the rule nisi. This application was
    launched on 4 March 2013 and set down for hearing on 7 March 2013.
    It was served on the respondent on 5 March 2013 at 15h50. The
    respondent was accordingly provided one day to oppose this
    application.










  1. As is evident, the background to this
    application relates to the sale of the property. It appears from the
    founding papers that the respondent sold the property to the late
    Paulus Nghishiti on 30 October 2005. Mr Nghishiti passed away on 21
    June 2009 and one Gabriel Ndakolute was appointed as executor to his
    estate. Transfer of the property was not registered in the name of
    the deceased.










  1. The estate fell in arrears with
    certain payments and the respondent initially placed the property on
    auction. However before the auction took place Mr Ndakolute
    approached one Absalom Kaboy Tobias and a deed of sale was concluded
    between the respondent as the seller, Mr Ndakolute as the original
    purchaser and Mr Tobias as the proposed purchaser. This agreement
    was concluded on or about 20 January 2011.










  1. On the same date, Mr Tobias then sold
    the property to the applicant. On 4 February 2011 Messrs Ndakolute
    and Tobias settled the outstanding balance owing on the property. On
    5 May 2011 a formal deed of sale of the property was concluded
    between the respondent as seller, Mr Tobias as original purchaser
    and the applicant as proposed purchaser. On 26 May 2011 the
    respondent addressed a letter to the applicant confirming that he
    had been substituted as the purchaser of the property.










  1. I point out that the property was not
    registered into the names of any of the above purchasers. Sections
    14(1)(a) and (b) of the Deeds Registries Act, 47 of 1937 provide the
    following:









14
Deeds to follow sequence of their relative causes








(1)
Save as otherwise provided in this Act or in any other law or as
directed by the court-








(a)
transfers of land and cessions of real rights therein shall follow
the sequence of the successive transactions in pursuance of which
they are made, and if made in pursuance of testamentary disposition
or intestate succession they shall follow the sequence in which the
right to ownership or other real right in the land accrued to the
persons successively becoming vested with such right;








(b)
it shall not be lawful to depart from any such sequence in recording
in any deeds registry any change in the ownership in such land or of
such real right: ...”








Section 14(1)(b) contains certain
provisos which are not applicable in this matter.









  1. On or about 24 September 2012 and to
    the applicant’s surprise, he received a letter from the
    Department of Planning, Urbanisation and Environment at the
    respondent informing that the sale of the property to him was in the
    process of being cancelled. The applicant’s legal practitioner
    of record then addressed various correspondence to the respondent.
    This correspondence was merely attached to the founding papers. No
    reference was made to what portion of the correspondence the
    applicant wished to draw the respondent’s attention to or what
    portion(s) were relevant for purposes of adjudicating this matter. I
    am constrained to reiterate the principles set out in Port
    Nolloth Municipliaty v Xhalisa; Luwalala v Port Nolloth
    Municipality
    1
    that the annexures to an affidavit are not an integral part of it,
    and an applicant cannot justify its case by relying on facts which
    emerge from annexures to the founding affidavit but which have not
    been alleged in the affidavit and to which the attention of the
    respondent has not been specifically directed. The principles
    relating to the contents of affidavits were generally set out in
    Swissborough Diamond Mines (Pty) Ltd v Government of the Republic
    of South Africa
    2
    as follows:









It
is trite law that in motion proceedings the affidavits serve not only
to place evidence before the Court but also to define the issues
between the parties. In so doing the issues between the parties are
identified. This is not only for the benefit of the Court but also,
and primarily, for the parties. The parties must know the case that
must be met and in respect of which they must adduce evidence in the
affidavits.”









  1. It was also held in that case3
    that it is not open to an applicant or a respondent to merely annex
    to its affidavit documentation and to request the court to have
    regard to it. What is required is the identification of the portions
    thereof on which reliance is placed and an indication of the case
    which is sought to be made out on the strength thereof.4










  1. The contents of the correspondence
    was dealt with in argument by
    Mr Ipumbu, appearing for the
    applicant, and related mainly to the respondent’s allegedly
    unlawful cancellation of the agreement of sale of the property,
    coupled with allegations that the respondent had not complied with a
    dispute resolution clause contained in the agreement. I do not
    propose to deal with these facts in view of the order I make. Mr
    Ipumbu however submitted that the respondent never responded to this
    correspondence but instead addressed a final eviction notice to the
    applicant on 26 February 2013. In this eviction notice the following
    was stated:









RE:
FINAL EVICTION NOTICE – ERF 3395 OKURYANGAVA








Reference
is made to previous communication regarding erf 3395 Okuryangava.
Reference is further made to our letter dated 24 September 2012
whereby you were informed that the sale of Erf 3395 Okuryangava to
you will be cancelled and that the City will transfer the said
property to the rightful heirs of the deceased, further reference is
made to the letter dated 25 October 2012 of which you were given
until 25 November 2012 to vacate the property of which you did not
do.








You
are herewith kindly given a final notice to vacate the property not
later than 10 March 2013.








Should
you fail to obey this final notice,
further
action will be taken
.”



(emphasis supplied)









  1. This, according to applicant, gave
    rise to the urgency of this application as a result of which the
    respondent was given one day’s notice to oppose the urgent
    relief sought. The respondent opposed the matter and only raised a
    point in limine of lack of urgency.










  1. Mr Tjombe appearing for the
    respondent, submitted that the matter was not urgent and that
    nothing in the communications of the respondent to the applicant or
    his legal practitioners suggest that the respondent would take any
    unlawful or extrajudicial action to effect the eviction of the
    applicant from the property. Furthermore, the allegations in the
    answering affidavit on this issue was to the effect that any action
    to be taken by the respondent to evict the applicant would be way of
    summons or application proceedings, and the applicant could, if so
    advised, defend or oppose such proceedings. Mr Tjombe further
    submitted that our law clearly provides the applicant an opportunity
    to participate in such proceedings either by defending an action for
    eviction or by opposing an application for eviction, either the
    Magistrate’s Court or the High Court.










  1. Mr Tjombe also submitted that the
    order sought in terms of prayer 2(b) of the notice of motion, namely
    interdicting the respondent from transferring the property to the
    heirs of the deceased was premature and thus there could be no
    urgency therein.










  1. I agree with Mr Tjombe’s
    submissions on the lack of urgency of the application. I find that
    on the papers, the applicant has failed to show good cause why the
    time periods provided in Rule 6(5) should be abridged and why he
    cannot be afforded substantial redress at a hearing in due course.
    It is clear that the applicant was not served with an eviction order
    but a notice indicating that further action would be taken should he
    not vacate the property by a certain date. He was simply given
    notice that eviction proceedings would commence. The applicant
    cannot jump the queue on 24 hour’s notice without there being
    any pending threat of eviction, irrespective of whether or not the
    applicant has a right to reside in the property or not. Before the
    court considers the merits of the application the applicant must
    make out a case for urgency and this was not done.5










  1. In light of the above the application
    is dismissed with costs. Although
    Mr Tjombe submitted that this
    was a case which warranted a special costs order the applicant will
    be sufficiently mulcted with a party party costs order for
    proceeding with this ill-conceived application.










  1. What remains is to deal shortly with
    an issue regarding the filing of a further supplementary affidavit
    by the respondent on 11 March 2013 after the court had reserved
    judgment, as well as correspondence in response from the legal
    practitioner of the applicant. The supplementary affidavit was filed
    with the Registrar after it was delivered to the applicant, and then
    placed on the court file without leave of the court. In this regard
    it should be noted that Rule 6(5)(e) establishes clearly that the
    filing of further affidavits in application proceedings is only
    permitted with the indulgence of the court. A court, as arbiter, has
    the sole discretion whether to allow the affidavits or not. A court
    will only exercise its discretion where there is good reason for
    doing so. I am in respectful agreement with the approach adopted in
    James Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer
    & Co Ltd) v Simmons N.O.
    6
    as follows:









It
is in the interests of the administration of justice that the
wellknown and well established general rules regarding the number of
sets and the proper sequence of affidavits in motion proceedings
should ordinarily be observed. That is not to say that those general
rules must always be rigidly applied: some flexibility, controlled by
the presiding Judge exercising his discretion in relation to the
facts of the case before him, must necessarily also be permitted.
Where, as in the present case, an affidavit is tendered in motion
proceedings both late and out of its ordinary sequence, the party
tendering it is seeking not a right, but an indulgence from the
Court: he must both advance his explanation of why the affidavit is
out of time and satisfy the Court that, although the affidavit is
late, it should, having regard to all the circumstances of the case,
nevertheless be received.”
7









  1. I would have expected in light of the
    above authority an application for leave for the court to receive
    these further sets of affidavit. Considering the move towards a case
    management based system, even an approach in chambers by the parties
    would have considered. However, none was forthcoming. In light of
    the above, I exercise my discretion against the receiving of the
    further supplementary affidavit and have not had regard thereto.










  1. In light of the foregoing I make the
    following order:









The application is dismissed with
costs.













______________________



EM Schimming-Chase



Acting Judge



APPEARANCES








APPLICANT Mr Ipumbu



Of Titus Ipumbu Legal Practitioners,
Windhoek








RESPONDENT Mr Tjombe



Of Tjombe-Elago Law Firm Inc, Windhoek









11999
(3) SA 98 (C) at 111B-
I.





21999
(2) SA 279 (T) at 323F.





3At
324F-G.





4Approved
in Otjozondu Mining (Pty) Ltd v Minister of
Mines and Energy and Another
2007 (2)
NR 469 (HC) at para [11].





5Mweb
Namibia (Pty) Ltd v Telecom Namibia and Others
2012
(1) NR 331 (HC);
Salt and Another v
Smith
1990 NR 87 (HC).





61963
(4) SA 656 (A) at 660D-H.





7Approved
in
O’Linn v Minster of
Agriculture, Water and Forestry and Others
2008
(2) NR 792 (HC) at para [30] and in
Hano
Trading CC v JR 209 Investments (Pty) Ltd and Another

2013 (1) SA 161 (SCA) at para [11]-[12].