Court name
High Court Main Division
Case name
Kalipi v Hochobeb and Another
Media neutral citation
[2013] NAHCMD 142
Judge
Geier J













REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 65/2012








In the matter between:








RACHEL MAANO
NDESHIHAFELA KALIPI
..............................................APPLICANT



and








SIMON HENDRIK HOCHOBEB
........................................................1ST
RESPONDENT



EVA HOXOBES
................................................................................2ND
RESPONDENT













Neutral citation:
Kalipi v Hochobeb (A 65/2012) [2013] NAHCMD 142 (30 May
2013)








Coram: GEIER J








Heard: 04 April
2013



Delivered: 30
May 2013








Flynote:
Vindication - Actio rei vindicatio - the applicant had proved
that she was the registered owner of the property in question from
which she sought the eviction of the respondents, who admittedly
remained in unlawful occupation thereof - in such circumstances it
became incumbent on the respondents to allege and establish their
right to continue to occupy and hold the property
against the owner – in this regard respondents raising various
defences -













Constitutional defence -
Constitutional practice – High Court – respondents sought
to attack the constitutional validity of a default judgment granted
by clerk of the magistrate’s court and the subsequent execution
process as a result of which applicant obtained title to the property
from which she now sought the respondents eviction – no basis
for constitutional challenge of the Magistrate’s Court Act 1944
and Rules however laid in the papers - parties, seeking to challenge
the constitutionality of legislation however need to set out a proper
basis therefore in their founding papers – in which the
constitutional provisions relied upon should be identified - a basis
should then also be set out then as to how the to be impugned
legislation infringes the constitutional right in question - this
would include the placing of evidence before the court where required
- the placing of all relevant information is necessary in order to
warn the other party of the case it will have to meet, so as to allow
it the opportunity to present facts or material and legal argument to
meet that case - respondents’ constitutional challenge not
satisfying these requirements –








Constitutional defence -
Constitutional practice – High Court – also lay persons
not absolved from the duty - when raising a constitutional challenge
- to properly specify the constitutional provisions relied upon and
to place evidence in support of their challenge before the court –
respondents also failing in this regard -








Constitutional defence -
Constitutional practice – High Court – Non- Joinder -
where the constitutionality of legislation is challenged it is
normally also considered appropriate to cite the Government, in the
person of the Attorney- General or the relevant ministry or statutory
agency charged with the administration of the legislation in question
– respondents also failing to join necessary parties –
court not upholding constitutional defence also for that reason -








Jurisdiction — High
Court — Inherent jurisdiction — High Court has an
inherent jurisdiction to also stay civil proceedings pending the
outcome of other civil proceedings - in this regard the court has a
discretion, which must be sparingly exercised on strong grounds, with
great caution and in exceptional circumstances -discretion is a
judicial discretion of the Court to be exercised inter alia with due
regard to the parties’ conflicting rights and interests and the
incidence of convenience and prejudice - this power is exercised by
the court to prevent an abuse of its process in the form of vexatious
litigation - and if an action is already pending between the same
parties on the same cause of action -








Jurisdiction
— High Court — Inherent jurisdiction - in so far as the
courts have assumed
an equitable discretion to
grant a stay of proceedings
-
courts would exercise any such discretion in the
recognition that the courts
do not just simply
administer a system of equity in the abstract, as distinct from a
system of law, and that also in Namibia - when considering the
'equities’ of a case, in the broad sense - the courts will
always be desirous to administer ‘equity’ in accordance
with the principles of the Roman-Dutch law – and in accordance
with Namibian law - and if the courts cannot do so,
in
accordance with those principles, they cannot do so at all
.








Summary: Applicant
had purchased Erf No 3726 (a portion of Erf 2815), Boston Street,
Otjomuise, Windhoek, Republic of Namibia, at a sale in execution
pursuant to a default judgment which had been granted in the
Magistrate’s Court, held at Windhoek, under case no 7041/2007,
between the National Housing Enterprise (plaintiff) and the first
respondent (defendant). The property was subsequently registered in
the applicant’s name. The respondents were the previous
registered owners of the property in question - which they continued
to occupy - and refused to vacate. The only defence squarely raised
by respondents on the papers was a defence of
lis
pendens
. In heads of argument and
orally from the bar respondents also raising a constitutional defence
that the default judgement as a result of which their property had
been sold at a sale in execution was invalid because the judgment –
which had been granted in terms of the Magistrate’s Court Act
and Rules was unconstitutional – respondents also urging court
to stay current application.








Held:
Applicant had made out a case on the actio rei vindicatio.
In such circumstances it became incumbent on the respondent’s
to allege and establish their right to continue to occupy and hold
Erf No 3726 (a portion of Erf 2815), Boston
Street, Otjomuise, Windhoek, against the owner.








Held:
As respondents had not pleaded their
constitutional challenge as is required and having failed to join the
necessary parties, constitutional challenge had to fail on the papers
on those grounds.



Held:
As respondents had failed to prove the elements of the defence of lis
pendens - defence not upheld and the discretion to stay the present
application - which comes into play, if the requirements of lis
pendens
have been established – did not come into play.








Held: In so far as the
court had an inherent jurisdiction to grant a stay of the present
application – such discretion should not be exercised in favour
of respondents on the facts of the matter – application granted
with costs.










ORDER
















  1. The Deputy Sheriff is
    authorised to evict the respondents and all persons claiming through
    them, their goods and possessions from and out of all occupation and
    possession whatsoever of Erf No 3726 (a portion of Erf 2815), Boston
    Street, Otjomuise, Windhoek, Republic of Namibia, to the end that
    the applicant herein may peaceably enter into and possess Erf No
    3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek,
    Republic of Namibia.










  1. The Deputy Sheriff is
    hereby authorised to remove the locks from the doors and gates of
    Erf No 3726 (a portion of Erf 2815), Boston Street, Otjomuise,
    Windhoek, Republic of Namibia, if necessary, in order to execute the
    eviction order.










  1. Costs of the
    application.










  1. The alleged conduct of
    Mr August Maletzky in this matter is to be referred to the Law
    Society of Namibia for further investigation.
















JUDGMENT





GEIER J:








[1] From
the papers exchanged between the parties it appears that the dispute
between them encompasses a narrow ambit.



[2]
The applicant had purchased Erf No 3726 (a portion of Erf 2815),
Boston Street, Otjomuise, Windhoek, Republic of Namibia,
at
a sale in execution,
pursuant to a default
judgment,
which had been granted in the
Magistrate’s Court,
held at Windhoek,
under case no 7041/2007, between
the National Housing Enterprise (plaintiff) and the first respondent
(defendant). The property was registered on 08 March 2012 in the
applicant’s name. She holds title by virtue of Deed of Transfer
T 955/2012.








[3] The respondents were
the previous registered owners of the property in question - which
they continue to occupy - and refuse to vacate.








[4] For purposes of
obtaining transfer the applicant had to clear the outstanding
municipal account - obviously incurred by the respondents - in
respect of rates and taxes, water and electricity with the City of
Windhoek - in an amount of N$20 948.70.








[5] A bond B1171/2012 was
registered over the property in the amount of N$490 000.00 in favour
of Standard Bank Namibia. In this regard the applicant continues to
have obligations towards the said bank.








[6]
The applicant has also entered into an agreement with the City of
Windhoek in terms of which she must renovate,
fix
and extend the property to conform with a certain building plan, by
the 6
thof
June 2012. Because of the respondents’ refusal to vacate the
property, applicant will not be able to comply with the obligations
imposed on her by the said agreement.








[7] It is in such
premises that the applicant seeks an order for the eviction of the
respondent’s and all persons claiming through them from Erf
No 3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek.

The applicant also seeks ancillary relief in terms if which the
deputy sheriff would be authorised to remove all locks from the doors
and gates in order to execute the sought eviction order.








[8] In their answering
affidavits, the respondents merely raised an in limine
defence, namely that of lis pendens, in that they submitted
that :








(a)
… there is already a pending Case No. A 27/2012 in the high
court on the constitutionality of the Registrar of the High Court
granting default judgments.



(b)
It is common cause in fact that our prpoperty Erf 3726 of Otjomuise,
on this strength of the default judgment granted by the Registrar of
the High Court was sold at auction.



(c)
This matter was postponed sine die on 20 April 2012.



(d)
Resultantly the matter is lis pendens.








It
is respectfully submitted that if the judgment on which the applicant
relies is unconstitutional, it follows automatically that all
proceedings based on such judgment is null and void and of no force
or effect inclusive the Sale in Execution held on 7 July 2011 at
which the applicant purchased the property in question.








Wherefore
the Applicant’s application stands to be dismissed and/or
alternative be stayed until the court pronounced itself on the
constitutionality of the Registrar granting judgments.’













[9] In reply the
applicant countered and pointed out:









  1. that
    neither of the respondents are a party to case no. A 27/2012 and
    that accordingly there exists no case where either of the parties
    are a party to an existing matter with the same cause of action; and



  2. that
    the underlying default judgment was granted in the magistrate’s
    court held at Windhoek under case No 7041/2007; and



  3. that
    the warrant of execution and the sale in execution was done in terms
    of the Magistrate’s Court Act and Regulations; and



  4. that
    the terms of the existing law were complied with;



  5. that
    the referred to pending case - case A 27/2012 - which challenges the
    constitutionality of evictions of persons from a property - has not
    yet been granted - and remains pending - seeing it was postponed
    sine die; and that



  6. the
    defence of lis pendens should therefore be rejected.’



















THE APPLICANT”S
ARGUMENTS








[10]
During the hearing of this matter Mrs de Jager,
who
appeared on behalf of the applicant, made it clear that she was not
going to argue the constitutionality or unconstitutionality of the
judgment granted in the magistrate’s court. Her client’s
case was based on the
actio
rei vindicatio.
She submitted that it was clear from the founding papers that the
applicant is the owner of the property since she is the registered
owner. It was further clear from the papers that,
at
the date of the institution of the application,

respondents were residing
unlawfully at the property in question. It was pointed out that the
answering affidavit did not deal with the merits of the case at all
and that the respondents’ only defence was one of
lis
pendens
,
that the default judgment
granted was null and void and therefore of no effect and that all
proceedings flowing therefrom should be set aside. She pointed out
further that the applicant’s property was not sold at an
auction pursuant to a default judgment granted by the Registrar of
the High Court, as it was sold pursuant to a judgment granted against
the 1
st
respondent in the
Magistrate’s Court of Windhoek, that neither of the respondents
were a party to High Court case no A 27/2012 and where not involved
in that application. Accordingly the cause of action in that
application and the present matter was not the same. She submitted
with reference to the case of
Jacobson
and Another vs Machado
1
that the respondents have
not satisfied the requirements for a defence of
lis
pendens
.
She refined her argument by submitting that the relief sought in case
A 27/2012 was totally distinguishable from the present matter in
which the applicant sought an eviction order. This could be
established with reference to the notice of motion in case no A
27/2012 from which it appeared that the parties and the relief was
different in nature if compared with the present matter.








[11]
She also referred the court to the case of
Vlasiu
v President of the Republic of Namibia and Others
2
where the court held that
a court nevertheless retains a discretion whether or not to allow
court proceedings - whether in the form of action or application - to
continue - in the circumstances where the grounds for
lis
pendens
had
been established. She referred to p336 of the judgment where the
learned judge in that matter stated further:













Even
where the grounds for a plea of lis pendens are established, a Court
has a discretion whether or not to allow a Court proceeding, whether
in the form of an action or application, to continue.



The
present application is by applicant against the second respondent, ie
the Minister of Health and Social Services.



The
application relied on by the second respondent in this application is
one by the Government of the Republic of Namibia against Vlasiu, the
present applicant. The parties in the two applications are therefore
not the same.



In
the present application the applicant, Vlasiu, claims relief against
the Minister, cited as the second respondent.



In
the former application, the present applicant is the respondent and
the Government claims relief.



To
allow the present application to be stayed until the first one is
decided, will place the present applicant at the mercy of the
applicant in the first application. It seems to me that such a
situation must be distinguished from one where the same
applicant/plaintiff instituted proceedings pending in a Court and
subsequently institutes proceedings based on the same cause of action
and/or subject-matter’ …








and
continued to submit with reference thereto that although a similar
cause of action was the subject-matter of the presently pending High
Court case the relief claimed still differed greatly. Should the
applicant in the present application be compelled to await the
outcome of the ejectment application, she will be severely
prejudiced, inter alia because the requirements,
for
a successful plea of lis pendens,
had
not been established’.








[12]
She added that,
in
any event,
the
order,
on
which the sale in execution had been based,
had
not been challenged,
and
that it should therefore stand until set aside.








[13]
With reference to the alternative relief for a stay as sought by
respondents Mrs de Jager argued with reference to the

Samicor Diamond Mining
Ltd v Hercules
3
and South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
4
cases that the
requirements for stay,
pending
the finalisation of the other case,
had
also not been addressed at all.








THE RESPONDENTS
ARGUMENTS








[14]
In their written heads of arguments the respondents firstly submitted
that it was open to them to raise any legal contention on the facts
as they appeared from the affidavits. They then referred to Chapter 9
of the Namibian Constitution and Article 78(1) which provides that
judicial power is vested to the courts of Namibia and that it was
only the court that can exercise judicial power through the judiciary
which staffs them.
The clerk of the magistrate
court was however not such an official and the default judgment and
the subsequent execution process, which was governed by the
Magistrate’s Court Act and Rules,
were
subject to the provisions of the Constitution. Consequently and when
the clerk of the court granted judgment and issued the warrant of
execution the subsequent sale in execution,
which
was founded upon such judgment,
was a nullity in
law with no force and effect.








[15] As, so it was
submitted, ‘ … the respondents had made out a case for
the unconstitutionality of the Clerk of Court in the granting of
default judgment which was void and a nullity in law, the applicant’s
claim of ownership, based on such a void judgment and consequent
sale, was therefore without legal efficacy’ as ‘applicant
cannot claim ownership on nothing …’.








[16] In regard to the
plea of lis pendens it was submitted that case A 27/2012 was
still pending, that the cause of action in that case was the same and
that the presently pending litigation between the applicant and the
respondents, in the form of an intervention application, was based on
the same cause of action and in respect of the same subject matter.
As there was thus litigation between the respondent’s and
applicant in the form of an intervention application based on the
same cause of action and in respect of the same subject matter the
special plea should be upheld and the applicant’s case be
dismissed with punitive costs.








THE
APPLICANT’S CASE ON THE
ACTIO
REI VINDICATIO








[17]
Given the undisputed facts of this matter
5
it is clear that the
applicant has made out a case on the
actio
rei vindicatio6,
as it
is uncontested that the applicant is the registered owner of the
property in question from which she seeks the eviction of the
respondents, who admittedly remain in unlawful occupation thereof.








[18]
In such circumstances it became incumbent on the respondents to
allege and establish their right to continue to occupy and hold
Erf
No 3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek,
against the owner.
7








HAVE THE RESPONDENT’S
SHOWN AN ENTITLEMENT TO HOLD THE PROPERTY AGAINST THE OWNER








THE CONSTITUTIONAL
DEFENCE








[19]
From a reading of the answering papers it becomes clear that
absolutely no grounds,
on
which the alleged unconstitutionality of the underlying judgment has
been based, have been set out. No basis for the attack on the alleged
unconstitutionality of the Magistrate’s Court Act 1944 and
Rules was thus laid in the papers.








[20]
This court has however on a number of occasions stated clearly that
parties,
seeking
to challenge the constitutionality of legislation,
need
to set out a proper basis therefore in their founding papers. The
constitutional provisions relied upon should be identified,

a basis should then also
be set out then as to how the to be impugned legislation infringes
the constitutional right in question, this would include the placing
of evidence before the court where required.
8








[21]
The courts have stressed that the placing of all relevant information
is necessary in order to warn the other party of the case it will
have to meet,
so
as to allow it the opportunity to present facts or material and legal
argument to meet that case.
9








[22]
It is without question that the respondents’ constitutional
challenge comes woefully short in all these respects.








[23] What compounds these
material shortcomings is that none of the necessary parties have been
cited in this application.








[24]
Where the constitutionality of legislation is challenged it is
normally also considered appropriate to cite the Government, in the
person of the Attorney- General or the relevant ministry or statutory
agency charged with the administration of the legislation in
question
10,
such as the Minister of
Justice or the Registrar of Deeds in this instance, all of whom were
not cited in this case.



[25]
I take into account this regard that the respondents are not
represented. It however became clear during the hearing that the
respondents sought the ‘legal’ assistance of one August
Maletzky in this matter. Mr Maletzky is not an admitted legal
practitioner. Nevertheless he drafted the relevant answering and
supporting affidavits on behalf of the respondents. In addition, Mr
Maletzky also drafted the heads of argument filed on behalf of the
respondents in this regard.
11








[26]
This court has however held that even lay persons are not absolved
from the duty,
when
raising a constitutional challenge,
to
properly specify the constitutional provisions relied upon and to
place evidence in support of their challenge before the court.
12
It emerges thus that also
this factor cannot avail the respondents.
Unfortunately
they have elected to place their trust – in a case of grave
importance to them – in the hands of an unqualified person and
must accordingly stand or fall with the shortcomings of such
services. Whether or not they, in turn, have a right of recourse
against Mr Maletzky, in such premises, is of course for them to
consider.



[27] It will have become
clear from the above that the mere submission in the answering papers
to the effect that:








‘ … It
is respectfully submitted that if the judgement on which the
applicant relies is unconstitutional it follows automatically that
all proceedings based on such judgement is null and void and of no
force or effect inclusive the Sale in Execution held on 7 July 2011
at which the applicant purchased the property in dispute’.








is insufficient to
effectively mount the constitutional challenge reflected in the
respondents’ heads of argument. This challenge can accordingly
not be upheld.








THE DILATORY DEFENCES








LIS
PENDENS








[28]
In their answering papers the respondents mainly confined themselves
to the defence of
lis
pendens
.








[29] With reference to
the requirements of this defence it is furthermore clear that the
submission made on behalf of the applicant in this regard have to be
upheld.








[30]
It is beyond doubt that the respondents were unable to prove the
elements of the defence
13
raised by them i.e:









  1. that
    there was presently litigation pending between the same parties in
    this and another case - in this regard it is clear that the
    applicants are not a party to the proceedings which are presently
    pending in case no A 27/2012;
    14
    or










  1. that such proceedings
    are based on the same cause of action – and in respect of the
    same subject and matter – no evidence was tendered in this
    regard save for the allegations quoted in paragraph [8] above.









[31]
In such circumstances, where the requirements of the special defence
have not been met, the discretion to stay the present application –
which would have come into play,
if
the requirements of
lis
pendens
would
have been established – does also not come into play.
15








[32]
Even if one accepts for the moment that the respondents have launched
an intervention application in case A 27/2012 – in respect of
which they have, through the omission of Mr Maletzky, failed to place
any evidence before the court - and even if one accepts that such
application might be granted, on some future date, I would, due to
the defective way in which their case has been pleaded and due to the
total lack of information before me, hesitate to exercise any
discretion in favour of the respondents,
as
this would place the present application not only ‘at the mercy
of the progress or lack thereof in case A27/2012’, but also at
the mercy of the progress or lack thereof of any intervention
application. The special plea of
lis
alibi pendens
is
accordingly not upheld.








INTERIM
STAY OF THIS APPLICATION








[33]
In so far as the respondents have implored the court from the bar,
and without notice, to stay this case pending the outcome of case
A27/2012, Mrs de Jager was quick to point out that, also in this
regard, no case had been made out. She made this submission with
reference to the decisions of
Samicor
Diamond Mining Ltd v Hercules
2010
(1) NR 304 (HC) and
South
Cape Corporation (Pty) Ltd v Engineering Management Services (Pty)
Ltd
1977
(3) SA 534 (A), as mentioned above.








[34]
She submitted further that the respondents had not brought any
substantive application for a stay of the present application –
outside and separate from the parameters of the intended stay to be
achieved through the reliance on the special plea of
lis
pendens
but
given the requirements set for such relief, as set by the relied upon
cases - the respondents had simply failed to address them altogether.








[35]
On closer analysis of this argument it however emerges that the cases
relied on by Mrs de Jager are not in point as they relate to the
court’s power to stay the execution of its judgments pending an
appeal.
16
This
is clearly not such a case where the respondents seek a stay of one
civil application pending the outcome of another.








[36] Unfortunately, and
in such circumstances, the court was not provided with any authority
on the point by either party.













THE COURT’S
INHERENT JURISDICTION TO STAY CIVIL PROCEEDINGS













[37]
It would however appear that the High Court does have an inherent
jurisdiction to stay the hearing of a civil action or application,
pending another
17.








[38]
The initial focus of the applicable case law pertaining to the stay
of proceedings seems to have been to prevent vexatious litigation,
18
or was applied in
instances where civil actions have been stayed,
pending
the outcome of criminal prosecution.
19








[39]
It seems that this inherent power has also been exercised in certain
more well-known instances, such as, for example,
where
the actions between the parties were
lis
pendens
,
or where there were previous costs unpaid,
or
in instances where parties had agreed in writing to submit their
disputes to arbitration
20.








[40] In the Fisheries
Development Corporation
case Nicholas J held that:








It
is well established that the Court has an inherent right to prevent
the abuse of its process in the form of frivolous or vexatious
litigation (
Western
Assurance Co v Caldwell's Trustee

1918
AD 262 at 271;
Corderoy
v Union Government

1918
AD 512 at 517). And, when the Court finds an attempt made to use for
ulterior purposes machinery devised for the better administration of
justice, it is the duty of the Court to prevent such abuse (
Hudson
v Hudson and Another

1927
AD 259 at 268). This power, however, is one which must be exercised
with very great caution, and only in a clear case (ibid). The reason
is that the Courts of law are open to all, and it is only in very
exceptional circumstances that the doors will be closed upon anyone
who desires to prosecute an action. (See the
Western
Assurance Co

case
at 273.)’
21













[41]
In
Southern
Metropolitan Substructure v Thompson and Others
22
where a
temporary stay was considered in the context of an application for
eviction and were a review application was also pending between the
parties,
Pretorius
AJ said the following:








It
is for the respondents to establish a case for the stay of the
eviction application. Counsel for the applicant argued that the
respondents must show ‘strong grounds’ in order to
justify a stay and that a Court would order a stay only in
‘exceptional circumstances’. Reference was made to
Western Assurance Co v Caldwell’s Trustee 1918 AD 262 at 273-4
and to Herbstein and Van Winsen
The
Civil Practice of the Superior Courts in South Africa

3
rd
ed at 267.








In
Township Management
Consultants (Ply) Ltd v Simmons
1991
(3) SA 56 (W) the respondent sought a stay of civil proceedings
pending the outcome of related criminal proceedings. Schabort J held
(at 460E) that: ‘
(T)he
relief which the respondent is seeking is a matter vesting in the
judicial discretion of this Court to be exercised inter alia with due
regard to the parties’ conflicting rights and interests and the
incidence of convenience and prejudice
.23








What
the respondents seek in this case is not a stay of proceedings as was
considered in
Western
Assurance Co v Caldwell’s Trustee
,
but what amounts to a postponement
24
… ‘
.













[42]
The judgment of Nicholas J in the
Fisheries
Development Corporation of SA Ltd
case
was endorsed by the Cape Provincial Division in
Spier
Properties (Pty) Ltd v Chairman, Wine and Spirit Board, and Others
25
where Davis J stated:








As
appears from the judgment of Nicholas J in
Fisheries
Development Corporation of SA Ltd v Jorgensen and Another; Fisheries
Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and
Others

1979
(3) SA 1331 (W) at 1340, a stay can be granted by the Court in the
exercise of its inherent discretion to avoid injustice and inequality
but in this enquiry Courts do not act on abstract ideas of justice
and equity. They must act on principle. Accordingly, where there is
such an application for a stay on the grounds of prejudice, such
prejudice and harm must not be 'problematical, hypothetical and
speculative' (at 1341).
26













[43] After an analysis of
the underlying disputes pertaining to the case before him, Davis J
concluded:








For
these reasons I consider that the disputes, while linked, are
sufficiently separate in law to justify a conclusion that the review
of the first respondent's decision should not require a stay until
such time as the remaining litigation has been resolved. The
application to review Board Notice 80 of 1996 involves a separate
enquiry and affects different rights to those pertaining to the trade
marks. That one right might affect another is in the very nature of
rights but this does not mean that the enquiry relating to the review
cannot and should not be separately conducted.’
27








[44]
The South African Supreme Court of Appeal,
while
considering the High Court’s discretion to stay contempt
proceedings in
Clipsal
Australia (Pty) Ltd and Others v Gap Distributors and Others
28,
per Streicher ADP,
dealt
with the question as follows:








[16]
As stated above, Joffe J held that he had a discretion to stay the
contempt application if he considered it to be in the interest of
justice to do so. In this regard he relied on cases dealing with the
stay of proceedings pending the payment of costs incurred in
substantially similar previous proceedings between substantially the
same parties (see
Western
Cape Housing Development Board and Another v Parker and Another

2005 (1) SA 462 (C) ([2006] 3 All SA 84) at 465I - 466C; and
Herbstein and Van Winsen The Civil Practice of the Supreme Court of
South Africa 4 ed (1997) at 254 - 61).








[17]
It is clear that a court does have the power to stay civil
proceedings in certain circumstances, eg to prevent an abuse of the
process of the court (see Corderoy v Union Government (Minister of
Finance)
1918 AD 512 at 517) and if an action is already pending
between the same parties on the same cause of action (see Herbstein &
Van Winsen op cit at 245). However, Joffe J did not quote any
authority to the effect that a court has a general discretion to stay
proceedings whenever it considers it to be in the interests of
justice to do so.








[18]
In Abdulhay M Mayet Group (Pty) Ltd v Renasa Insurance Co Ltd and
Another
1999 (4) SA 1039 (T) at 1048H - I Van Dijkhorst J
accepted that he had a discretion to stay an application for an
interdict restraining the respondents from infringing a registered
trademark pending an application in terms of s 14 of the Trade Marks
Act 194 of 1993 on the basis of honest, concurrent use and/or other
special circumstances. He added that at best for the respondents it
was a discretion that had to be exercised sparingly and in
exceptional circumstances. But Van Dijkhorst J apparently based his
acceptance of a discretion to do so on the authority of Fisheries
Development Corporation of SA Ltd v Jorgensen and Another; Fisheries
Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and
Others
1979 (3) SA 1331 (W) at 1340D - 1341A in which it was
merely assumed that a court had jurisdiction to stay civil
proceedings on equitable grounds. In that case, dealing with a
request that an action should be stayed in the exercise of the
court's 'inherent discretion to avoid injustice and inequity'
Nicholas J said at 1340B - D:








'The
Courts do not however act on abstract ideas of justice and equity.
They must act on principle. Cf the Western Assurance Co case
supra at 275. And see the remarks of Innes CJ in Kent v
Transvaalsche Bank
1907 TS 765 at 773 - 774: H








(The
appellant) also asked us to stay the proceedings on equitable
grounds, urging that we had an equitable jurisdiction under the
insolvency law. The Court has again and again had occasion to point
out that it does not administer a system of equity, as distinct from
a system of law. Using the word 'equity' in its broad sense, we are
always desirous to administer equity; but we can only do so in
accordance with the principles of the Roman-Dutch law. If we cannot
do so in accordance with those principles, we cannot do so at all.'








Nicholas
J then proceeded to deal with the application on the assumption that
the court had the power to grant a stay of the proceedings on
equitable grounds and concluded that 'even if it had the power to do
so' a case had not been made out for such a stay.
29








[19]
As I shall presently indicate, I am of the view that if the court
below did have a discretion, on equitable grounds, to stay the
contempt application, the exercise of that discretion in favour of
the respondents was not justified and should be set aside. I shall,
therefore, likewise assume that the court below had such a
discretion. I shall furthermore assume in favour of the respondents
that the discretion is a discretion in the strict or narrow sense, ie
a discretion with which this court as a court of appeal can interfere
only if the court below exercised its discretion capriciously or upon
a wrong principle, or has not brought its unbiased judgment to bear
on the question, or has not acted for substantial reasons, or
materially misdirected itself.
30








[45] To sum up : it
appears from these cases that all the learned judges, who had
occasion to deal with this issue, accepted:









  1. that the High Court has
    an inherent jurisdiction to also stay civil proceedings pending the
    outcome of other civil proceedings;










  1. that this power is to be
    exercised by the court to prevent an abuse of its process in the
    form of vexatious litigation; and if an action is already pending
    between the same parties on the same cause of action;










  1. that in this regard the
    court has a judicial discretion, which must be sparingly exercised
    on strong grounds, with great caution and in exceptional
    circumstances.









[46]
In so far as the courts have assumed
an equitable
discretion,
I hesitate to make that same
assumption in the absence of considered argument on that aspect. On
the other hand I have no doubt that also our courts would exercise
any such discretion in the recognition that also the courts in
Namibia
do not just simply administer a system of
equity in the abstract, as distinct from a system of law,
and
that also in this country, when considering the 'equities’ of a
case,
in the broad sense, the courts will always
be desirous to administer ‘equity’ in accordance with the
principles of the Roman-Dutch law – and I might add – in
accordance with Namibian law - and if the courts cannot do so,

in accordance with those principles, they cannot do so
at all
.













[47] It has also emerged
from the above I cannot just simply come to the assistance of the
respondents on equitable grounds alone. Their prayer from the bar
will have to be determined with reference to the applicable legal
principles - in terms of which I have to exercise any discretion on
the facts and circumstances before me - and not in the abstract.













[48] If one then reverts
to the facts and circumstances of this case it appears that any such
discretion must be exercised in this instance with reference to the
following factors:




  1. the respondents main
    defence, the special plea of lis alibi pendens was not upheld
    – in this regard it was not shown that there was already an
    action/application pending between the same parties based on the
    same cause of action; the respondents also failed to show that their
    case was sufficiently linked to case A 27/2012; or that their case
    should not be separately conducted until such time that the
    litigation under case A 27/2012 had been resolved;















  1. no case - never mind a
    strong case - nor one with exceptional circumstances - for a stay
    has been made out on the papers or from the bar – in this
    regard it is taken into account that no substantive application for
    a stay had been made - and that no effective constitutional
    challenge had been mounted in the papers – and - that the
    special plea of lis pendens was not upheld; regard is also
    had to the failure of the respondents to prove any intervention
    application in case A 27/2012 or that same was, or is likely to be
    granted;















  1. on the other hand, the
    applicant has made out a case on the actio rei vindicatio,
    whereas the respondents have failed to establish their right to
    continue to occupy and hold Erf No 3726 (a
    portion of Erf 2815), Boston Street, Otjomuise, Windhoek, against
    the owner;










  1. there is nothing before
    the court, which indicates that the applicant is abusing the court’s
    process or that her application was frivolous or vexatious;















  1. there are no exceptional
    circumstances before the court, which indicate that the doors of the
    court should be closed to the applicant.














[49] These facts and
circumstances then reveal that the respondents were not able to show
the strong grounds and exceptional circumstances required for the
relief sought.








[50]
It is then also with these factors in mind that I am driven to the
conclusion that they do not,
cumulatively,
militate towards the granting of the prayed for stay or
that I should exercise my discretion in favour of the respondents.














COSTS













[51] The applicant
continues to seek a special costs order on the attorney and client
scale, such costs to include the costs of one instructed- and one
instructing counsel. Such order was sought mainly on the basis that
the respondents had not really made out any defence on the papers and
that their opposition of this application was frivolous and had
caused the applicant unnecessary costs.








[52] In the circumstances
of this matter however, and where the respondents were fighting to
remain in occupation - of what they still consider their residence -
and where they turned - in their desperation – ill-advisedly -
to Mr Maletzky – and where with professional assistance they
might have been more successful and effective in warding off their
eviction – at least on a temporary basis - I do not consider
that these are circumstances, which show, that a special costs order
is warranted.








[53] I also do not
consider the complexity of this matter such, so as to warrant a costs
order which should include the costs of one instructed- and one
instructing counsel.








[54] I accordingly
decline to grant the special costs order sought by the applicant.








[55] In premises I do
however grant the following relief:














  1. The Deputy Sheriff is
    authorised to evict the respondents and all persons claiming through
    them, their goods and possessions from and out of all occupation and
    possession whatsoever of Erf No 3726 (a portion of Erf 2815), Boston
    Street, Otjomuise, Windhoek, Republic of Namibia, to the end that
    the applicant herein may peaceably enter into and possess Erf No
    3726 (a portion of Erf 2815), Boston Street, Otjomuise, Windhoek,
    Republic of Namibia.















  1. The Deputy Sheriff is
    hereby authorised to remove the locks from the doors and gates of
    Erf No 3726 (a portion of Erf 2815), Boston Street, Otjomuise,
    Windhoek, Republic of Namibia, if necessary, in order to execute the
    eviction order.















  1. Costs of the
    application.




















  1. The alleged conduct of
    Mr August Maletzky in this matter is to be referred to the Law
    Society of Namibia for further investigation.





























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



H GEIER



Judge



























































































































APPEARANCES








APPLICANT: B de Jager



Instructed by Du Toit &
Associates, Windhoek.








RESPONDENTS: In person





























11992
NR 159 HC





21994
NR 332 LC





32010
(1) NR 304 (HC)





41977
(3) SA 534 (A)





5It
must be kept in mind that the respondent’s failed to respond
to the merits of the applicant’s case





6See
for instance :
Goudini Chrome (Pty) Ltd v MCC
Contracts (Pty) Ltd
1993 (1) SA 77 (A) at 81
– 82,
Unimark Distributors (Pty) Ltd v
Erf 94 Silvertondale (Pty) Ltd
1999 (2) SA
986 (T) at 995I - 996D;
Chetty v Naidoo
1974 (3) SA 13 (A) at 20C; Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours

1958 (3) SA 285 (A) at 297E; Sorvaag
v Pettersen and Others
1954 (3) SA 636 (C)
at 639G and 641B and
Shingenge v Hamunyela
2004 NR 1 (HC) at p 3





7Shingenge
v Hamunyela
at p 3





8See
:
Zaahl
and Others v Swabou Bank Limited and Others

(Case No A
35/2006) delivered on 23 November 2006 - reported at

http://www.saflii.org/na/cases/NAHC/2006/16.html
-
following
Prince
v President, Care Law Society and Others

2001 (2)
SA 388 (CC) at paragraphs [22] – [28],

Shaik v
Minister of Justice and Constitutional Development and Others

2004 (3)
SA 599 (CC) in paragraphs [24] and 25],
Phillips
and Others v The National Director of the Public Prosecutions

2006 (1)
SACR 78 (CC) at paragraph [43]

Lameck
v President of Namibia

2012(1)
NR 255 (HC) at par [58], p 271 and the authorities referred to in
footnote 21,

Shalli
v Attorney-General

case POCA 9/2011 delivered on 16 January 2013 reported at
http://www.saflii.org/na/cases/NAHCMD/2013/5.html
at para
[6]





9Lameck
and Another vs President of the Republic of Namibia & Others

2012(1) NR 255 HC at paragraph [58] cited
with approval in
Shalli v Prosecutor-General
at [7]





10Kaunozondunge
NO and Others, Kavendjaa
v 2005 NR 450 (HC)
at 465, see also
Majiedt and Others, Minister
of Home Affairs
v 2007 (2) NR 475 (SC) at
paras [7] to [11]





11Although
not relevant for determination of this matter it is to be noted
that, according to respondents, the respondent’s heads of
argument were filed late due to Mr Maletzky holding them back until
such time that the respondents had paid him for the drafting of the
said heads of argument.





12Zaahl
and Others v Swabou Bank Limited and Others at
[29]





13See
for instance : Jacobson and Another v Machado 1992 NR 159
(HC) at 162 - 163





14It
is to be noted in this regard that in the heads of argument,
allegedly drawn by Mr Maletzky, reference is made to an intervention
application of the respondents in Case A 27/2012, which is allegedly
still pending – and therefore has probably not yet been
granted - a copy of which he intended to annex to his heads - but
which was not annexed. Curiously this intervention application was
never mentioned, nor relied on, in the answering affidavit allegedly
also drawn by him. It was also not produced during the hearing.





15Vlasiu
v President of the Republic of Namibia and Others
at 336





16See:
South Cape Corporation
(Pty) Ltd v Engineering Management Services (Pty) Ltd at 545
and
Samicor Diamond Mining Ltd v
Hercules
at[30] to
[37]





17Western
Assurance Co Appellant v Caldwell’s Trustee Respondent

1918 AD 262 at p 273 to 275, Hudson Appellant v Hudson and
Another Respondents
1927 AD 259 at p 267,
Fisheries Development Corporation of SA LTD v Jorgensen and
Another; Fisheries Development Corporation of SA LTD v AWJ
Investments (Pty)Ltd and Others
1979 (3) SA 1331 (W) at p 1338 F
to G, Spier Properties (Pty) Ltd and
Another v Chairman, Wine and Spirit Board, and Others
1999 (3)
SA 832 (C) at p 840 E to F Clipsal Australia (Pty) Ltd and Others
v GAP Distributors and Others
2010 (2) SA 289 (SCA) at p 298 B
to C





18Western
Assurance Co v Caldwell’s Trustee op.cit
at p 272 and p
274





19Western
Assurance Co v Caldwell’s Trustee
op.cit at p 275





20See
generally : Herbstein and van Winsen, The Civil Practice of the
Supreme Court of South Africa, 4th Edition at p 248





21at
p1338





221997
(2) SA 799 WLD





23Southern
Metropolitan Substructure v Thompson and Others at 804J –805B





24Southern
Metropolitan Substructure v Thompson and Others at 805F





251999
(3) SA 382 CPD





26Spier
Properties (Pty) Ltd and Another v Chairman, Wine and Spirit Board,
and Others at 840 E-F





27Spier
Properties (Pty) Ltd v Chairman, Wine and Spirit Board
at p 840
J to 841 A





28at
p 297 to 298 paras [16]
to
[19]





29At
1341A





30Malan
and Another v Law Society, Northern Provinces
2009 (1) SA 216
(SCA) ([2009] 1 All SA 133) para 13