Court name
High Court Main Division
Case number
APPEAL 177 of 2013
Title

Tjikune and Others v Meuwessen NO and Others (APPEAL 177 of 2013) [2013] NAHCMD 157 (07 June 2013);

Media neutral citation
[2013] NAHCMD 157
Coram
Damaseb JP













NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 177/2013








In the matter between:








SALOMO BASIE TJIKUNE
...................................................................1ST
APPLICANT



HILDE MARTlN
.....................................................................................2ND
APPLICANT



RUTH KATUSUVA
................................................................................3RD
APPLICANT



LEA TJIKUNE
.......................................................................................4TH
APPLICANT



CHARLOTTE MUZENGUA
...................................................................5TH
APPLICANT








and








JOSHUA JACOBUS
MEUWESSEN NO
..........................................
1ST RESPONDENT



THE MASTER OF THE HIGH
COURT .............................................2ND
RESPONDENT



ELFRIEDE KAHIKOPO
....................................................................3RD
RESPONDENT



ALMA KARONDEUE TJAZAMO
......................................................4TH
RESPONDENT



SAMUEL TJIJUNE
............................................................................5TH
RESPONDENT



STEFANUS TJlKUNE
.......................................................................6TH
RESPONDENT



EMMA KAPUKARE
..........................................................................7TH
RESPONDENT



IAN McCLAREN N.O.
.......................................................................8TH
RESPONDENT



HILARIA TJIKUNE
............................................................................
9TH
RESPONDENT



GOTHARDT TJIKUNE
....................................................................10TH
RESPONDENT



TABITHA TJAMUAHA
....................................................................11TH
RESPONDENT



LAURENCIA KAARONDO
.............................................................12TH
RESPONDENT



JOHN TJIKUNE
..............................................................................13TH
RESPONDENT



ADELHEID MBUENDE
...................................................................14TH
RESPONDENT



ESRON TJIKUNE
...........................................................................15TH
RESPONDENT



NIKOLEUS
TJIKUNE-TJAZAM0
....................................................16TH
RESPONDENT



FRANS TJAZAMO
..........................................................................17TH
RESPONDENT








Neutral citation:
Tjikune v Meuwessen NO (A 177/2013) [2013] NAHCMD 157 (07
June 2013)



Coram: DAMASEB, JP



Heard: 6th
June 2013



Delivered: 7th
June 2013








Flynote: Practice
and Procedure – Motions and Applications – Urgent
Applications – Principles of Urgency reiterated – No
reasonable explanation as to why the urgent application was brought
one full court day before the advertised sale – Urgency not
made out on the papers.










ORDER










The application is struck
from the roll, with costs against first to fifth applicant, jointly
and severally, the one paying the other to be absolved. Such costs to
include the costs of one instructing and one instructed counsel.










JUDGMENT










Damaseb, JP:



[1]
Farm Tugab 21, the remaining Extent of Protion 6 (Rembrandt), has
been advertised for sale on 10 June 2013 on public auction. The
advertisement was placed by the executor of the estate of the late
Rosalia Tjikune (‘the mother’). The advertisement was
caused on 24 May 2013. The reason for the contemplated sale is to
liquidate the estate of the late Rosalia Tjikune and to distribute
the proceeds amongst her children. She left behind 12 children. One
of these children, Wilson Tjikune has since died leaving behind 23
children.
The mother died intestate and the
children are entitled to inherit from her in equal shares. A dispute
also exists whether the 23 children of late Wilson are entitled to
inherit by representation. The applicants think they are not
entitled.



[2]
The farm that is due for sale is the only asset in the estate of the
mother. Of the 12 children, the applicants want the farm not to be
sold except to them or to be subdivided. Some of the other children
want the farm to be sold on public auction. The applicants who want
to continue farming come to this court to stop the sale scheduled for
10 June 2013. They set down the application for hearing on 6 June
2013 at 14H15. The affidavit in support of the urgent relief was
deposed to on 4 June 2013. The application runs to 85 paragraphs and
22 pages. It is fairly uncomplicated. The nub of it is a dispute
amongst the heirs: some of them want the inheritance (a farm) from
their late mother sold and others want it subdivided, and then
transferred into a body corporate, so they can have the opportunity
to continue farming on it. They are dissatisfied with a decision of
the Master authorising the sale and the failure of the executor
(first respondent) to consider sub-division
.



[3] Being dissatisfied
with the Master’s decision and that of the executor, the
applicants say they intend to seek the review and setting aside of
the Master’s decision authorizing the sale, and to seek the
removal of the executor for alleged bias in favour of the heirs who
prefer an outright sale. The applicants maintain that the executor
has impermissibly failed to consider proposals made by them which
will prevent the sale of the farm and allow them the opportunity to
continue to carry on farming on the farm, while still making it
possible for the heirs who prefer not to farm to derive their lawful
benefit from the estate. In particular, they maintain that it is
possible (and they proposed as such to the executor) that the farm be
subdivided in half so that the one half be transferred into a
corporate entity in which the aspirant farmers will own shares, while
the other half is sold according to the wishes of the rest of the
heirs who will share in the proceeds in equal shares. It is this
proposal, the applicants say, the executor is dead set against and
which was not even considered by the Master. They had asked the
Master to reconsider the decision but the Master refused to do so
because, in her words, she has since become functus officio.
The applicants disagree that the Master is functus officio and
are also aggrieved by her failure, to this date, to provide them with
reasons for her decision. The final decision of the Master
authorising the sale was made on 8 April 2013.








[4] The problem is that
there is no review of the Master’s decision pending before this
court since the Master took the decision nor is there any pending lis
between the applicants and the executor for his removal on the
grounds I have set out above. The ambit of a possible review and the
possible removal of the executor is rather straightforward, both as
regards the factual matrix and the questions of law to be
adjudicated. I shall return to the implications of this later.








[5]
The applicants filed an urgent application on 4 June 2013 seeking to
stop the advertised sale of Farm Tugab, pending a review application
to set aside the Master’s decision authorizing the sale, and an
application seeking the removal of the executor on the grounds, in
either case, that I earlier summarized. No review application or
application for the removal of the executor was filed together with
the urgent application. There is no explanation whatsoever why not
and there is also no indication in the supporting affidavits when it
will be brought. As an afterthought, counsel for the applicants
stated in oral argument that the court could, is it wishes, direct
that the two-pronged proceedings be brought at a time directed by the
court. The executor and the heirs who prefer sale of the farm on
public auction have opposed the urgent relief. Some of the heirs have
not been served by the applicants.








[6] As for those heirs
who have not been served, the applicants’ explanation therefor
is:



An attempt will be
made to serve the application on all the respondents but because they
are soo many, it may not be possible to serve on all of them before
the matter is to be heard.

Should that
be the case, we will move that the sale of the farm initially be
postponed for a month to enable us to serve the application and to
give all respondents an opportunity to respond on a return date to be
determined by this Honourable Court where the interim relief can be
considered pending our main application.
1








[7] The applicants’
timing of the urgent application only one full court day before the
advertised sale is contained in two paragraphs as follows:



On or about 14 May
2013, my current legal representative of record received a letter
forwarded to her by Mr Elago in which he was notified that the
auctioneers intent to sell the farm by public auction on 10 June
2013. The sale was advertised in the Namibian newspaper of 24 May
2013. . . . I had by then approached my current legal representative
for advice on what options I have in order to prevent the farm from
being sold. She instructed counsel to provide us with the necessary
advice. We consulted with counsel on 8 May 2013 and she requested us
to provide her with all the facts in writing and undertook to provide
us with advice as soon as possible. Whilst she was in the process of
considering the matter, the advertisement came out. I m informed by
my legal representative that carousel could only finalise the
application by the week of 27 May 2013 because she was engaged in
other urgent matter as well during the same time. We consulted with
counsel on 3 June 2013 to finalise the application.








[8]
As far as the employment of instructed counsel is concerned, this
court had the following to say in
Hailulu
v Anti - Corruption Commission
2:



The
statutorily sanctioned bifurcation of the practising profession no
longer exists in Namibia. In fact where there is a legal practitioner
of record, the court has to specifically sanction costs in respect of
disbursements to (additional) instructed counsel. The rules of court
do however recognise that there is a place for forensic trial
specialisation. But whether or not its deployment is justified in a
particular case is a matter for the court and parties must satisfy
the court of the need therefor. Therefore, Kaaronda's assertion that
no counsel could be found to conduct the trial for the trade union
defendants does not satisfactorily explain why no one from the legal
practitioners of record were not able to.’








[9] The delay boils down
to two simple propositions: Firstly, they had to change counsel of
record. Secondly, instructed counsel was busy with other matters. It
is clear on the founding affidavit that during January and February
2013, the applicants were still represented by Tjombe-Elago Law firm.
When that law firm ceased to act for them and when the current
practitioners of record began to act for them is not explained. What
we know is that instructed counsel then became seized with the matter
on 8 May 2013. On the papers I find no explanation whatsoever why the
services of another instructed counsel could not be sought. There is
also no explanation why counsel of record, also an admitted
practitioner, could not assist the applicants in bringing the
application earlier. It is now trite in this jurisdiction that a
litigant has no right to insist on or rely only on a particular
lawyer. If one counsel is unavailable, an effort must be made to
secure the services of another. This is not an inflexible rule
though, but if there are reasons why that was not possible it must be
explained on the papers.








[10]
Since
Ecker
v Dean in 1939
,3
Namibian courts have been
reluctant to accept that a litigant is entitled to insist on being
represented by a particular counsel. The ratio for the rule was
recently restated by O’Regan AJA in
Da
Cunha do Rego v Beerwinkel
4
where the learned judge
observed as follows:








The
principle that a litigant is not entitled to delay the process of
justice by insisting on being represented by a particular legal
representative is an important one. Underlying it are two concerns.
The fist is that the convenience of one party cannot be put above the
convenience of the other parties. The second concern, as important as
the first, if not more important, is the need to protect the general
public interest in the timely and efficient administration of
justice. The principle that a litigant may not cause delays by
insisting on a particular legal representative is one that will not
ordinarily be relaxed simply because there have already been delays
in the conduct of a dispute. Nor will it be departed from because the
other party is not prejudiced. For the principles protects not only
the interest of the other parties to the litigation but also the
public interest in the efficient administration of justice’.








Urgency



[11] 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.








[12]
In
Salt
and Another v Smith
5
Muller AJ (as he then
was) held that rule 6(5) obliges an applicant in an urgent
application to provide reasons why he cannot be afforded substantial
redress at the hearing in due course, and that mere lip service to
the requirements of the rule will not be allowed. The applicant must
make out a case in the founding affidavit to justify the particular
extent of the departure from the normal procedure. The applicant must
also show direct and substantial interest in the relief prayed. This
court stated the following in
Bergman
v Commercial Bank of Namibia and Another
6:








The
Court's power to dispense with the forms and service provided for in
the Rules of Court in urgent applications is a discretionary one.
That much is clear from the use of the word 'may' in Rule 6(12). One
of the circumstances under which a Court, in the exercise of its
judicial discretion, may decline to condone non-compliance with the
prescribed forms and service, notwithstanding the apparent urgency of
the application, is when the applicant, who is seeking the
indulgence, has created the urgency either mala fides or through his
or her culpable remissness or inaction. It is more so when the relief
being sought is essentially of a final nature and no or very little
opportunity has been afforded to the respondent to properly present
his or her defence. Obviously, each case is to be decided upon its
own facts and circumstances, although I find it difficult to envisage
that a Court would come to the assistance of an informed applicant
who mala fide abuses the Rules of Court by delaying the institution
of urgent application proceedings to score an advantage over his or
her opponent.








[13] And the judge also
said:








When
an application is brought on a basis of urgency, institution of the
proceedings should take place as soon as reasonably possible after
the cause thereof has arisen. Urgent applications should always be
brought as far as practicable in terms of the Rules. The procedures
contemplated in the Rules are designed, amongst others, to bring
about procedural fairness in the ventilation and ultimate resolution
of disputes. Whilst Rule 6(12) allows a deviation from those
prescribed procedures in urgent applications, the requirement that
the deviated procedure should be 'as far as practicable' in
accordance with the Rules constitutes a continuous demand on the
Court, parties and practitioners to give effect to the objective of
procedural fairness when determining the procedure to be followed in
such instances. The benefits of procedural fairness in urgent
applications are not only for an applicant to enjoy, but should also
extend and be afforded to a respondent. Unless it would defeat the
object of the application or, due to the degree of urgency or other
exigencies of the case, it is impractical or unreasonable, an
applicant should effect service of an urgent application as soon as
reasonably possible on a respondent and afford him or her, within
reason, time to oppose the application. It is required of any
applicant to act fairly and not to delay the application to snatch a
procedural advantage over his or her adversary.’








[14] Although, standing
alone, each is not decisive, the following circumstances demonstrate
to me that the applicants do not appreciate the urgency in the
finalization of the liquidation of their late mother’s estate.
The first is the inexplicable delay in bringing the review
application and for the removal of the executor. I cannot conceive
that such applications could raise complex factual or legal issues.
An executor has a duty to liquidate an estate: Creditors must be
paid, the asset requires maintenance before it is alienated and heirs
need to know what is due to them and to enjoy the benefit of that. If
there is disagreement amongst heirs, ultimately the Master must
determine the question. Anyone unhappy with her decision must have
recourse to court and resolve it, but that must be done with some
sense of urgency.



It is common cause that
Wilson , who is also an heir to the estate has passed away, leaving
behind 23 children. The executor in his estate and the Master take
the view that Wilson’s children are entitled to inherit from
the mother by representation. That view is not shared by the
applicants. It appears to me that most of the heirs are pensioners
who are advanced in age. All kinds of other disputes are therefore
likely to arise if they die without the estate being finalised. I
mention this not as a factor militating against the urgent
application but simply to demonstrate that time appears to be of the
essence in the estate being finalised. I have no explanation at all
why the two-pronged relief has not been sought to this day. The
second is the reason why the application has not been served on some
of the respondents. It must have been obvious that the relief such as
the one sought now is undesirable without affected persons being
given notice of it. What is troubling is the lack of urgency by the
applicants in properly establishing the whereabouts of the
individuals from the moment the court challenge was anticipated.
Lastly, there is simply no satisfactory or reasonable explanation for
the delay in coming to court one full court day before the advertised
public auction.








[15] The applicants’
stated purpose for seeking the stay of the sale is to have the
Master’s authorisation thereof set aside and to compel the
present executor, or his replacement, to properly consider all viable
options in the finalisation of the estate of their late mother and
ensuring as fair and equitable a distribution of the proceeds from
the estate amongst all heirs. On careful examination though, what the
applicants seek is to have their preferred option of subdivision or
private sale to them take precedence over the wishes of the other
heirs who prefer sale on public auction. Their unexplained failure to
date to have brought any proceedings adds credence to that
conclusion. In fact in paragraph 84 of first applicant’s
founding affidavit he sates as follows:



As
indicated above, we intent to bring an application in which we will
apply for the first respondent to be removed as executor. We will
also apply for the decision of the second respondent to be reviewed,
set aside and corrected, that first respondent ( if not removed) be
ordered to apply for a subdivision of the farm, alternatively, to
sell Wilson and third to seventeenth respondents’ share of the
estate to us out of hand, and that he requires all heirs to collate’.








[16] Although I do not
share respondents’ counsel’s argument that the fact of
non-service of the application on some respondents in essence amounts
to the present being an Ex parte application, I find it significant
(in the exercise of my discretion whether or not to condone
non-compliance with the rules of court) that the applicants have gone
about effectively straight-jacketing the court in granting them the
urgent relief they seek. That much is clear from the applicants’
explanation of their anticipated non-service already quoted above.



[17] The applicants no
doubt knew the logistical difficulties that would be associated with
service of their papers given the multitude of persons with an
interest in this matter. All persons with an interest in this matter
have just as much interest in whether or not the sale proceeds on 10
June as the applicants have in it not proceeding. They have the right
to be heard by this court as the order this court makes affects their
interests. The manner in which the applicants have gone about
bringing this application is such that it is impossible for the court
(if it were minded to do so in exercise of its inherent jurisdiction
to regulate its own procedure in order to do justice) to stand the
matter down and to require the applicants to serve on the un-served
respondents to give them audi. To make it possible for the
un-served respondents to be served, the sale cannot materialize; and
if the sale does not proceed on 10 June the applicants succeed in
staying the sale on 10 June. That is not a path that leads to
justice. I am compelled by the applicants’ conduct to exercise
my discretion against granting condonation for non-compliance with
the rules of court and to hear this application as one of urgency.



[18]
Counsel for the respondents asked me to dismiss the application for
lack of urgency. Recently, the Supreme Court (Per O ‘Regan AJA)
stated in
Cargo
Dynamics Pharmaceutical (Pty) Ltd v Minister of health and Social
Services
as
follows
7:



[25]
In urgent application, a judge will ordinarily decide the question of
urgency on the assumed basis that the applicant has a case on the
merits before deciding the merits. If the court decides that an
applicant has not made out a case for the application to be heard as
a matter of urgency even assuming that the applicant has a case on
the merits, the application will ordinarily be struck from the roll.
The effect of striking the matter from the roll doe not dispose of
the merits of the application. The applicant is entitled to enroll
the application either in the ordinary course not by way of urgency,
or again as a matter of urgency if the circumstances change.
Accordingly, a decision that a matter does not disclose urgency is
not ordinarily appealable, whereas a decision that an application has
been dismissed in its entirety is appealable.’













[19] I make the following
order:








The application is struck
from the roll, with costs against first to fifth applicants, jointly
and severally, the one paying the other to be absolved. Such costs to
include the costs of one instructing and one instructed counsel.


















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



P T Damaseb



Judge-President


















APPEARANCES








APPLICANTS:
N
Bassingthwaigthe



Instructed by Ueitele &
Hans Inc, Windhoek.













RESPONDENTS: TM Wylie



Instructed by Dr Weder, Kauta and
Hoveka Inc. Windhoek




1Vide
para 83.





22001
(1) NR 363 (HC) para 43.





31939
SWA 22.





42012
(2) NR 769 at 774I-775B para 20.





51990
NR 87 (HC)





62001
NR 48 (HC) at 49H-50A, footnotes omitted.





72012,
unreported judgment, para 26-28.