Court name
High Court Main Division
Case number
APPEAL 302 of 2013
Title

Goses v Hoff and Another (APPEAL 302 of 2013) [2013] NAHCMD 318 (06 November 2013);

Media neutral citation
[2013] NAHCMD 318
Coram
Unengu AJ












NOT REPORTABLE



REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION



WINDHOEK



REASONS








Case no: A 302/2013








In
the matter between:



JOHANNA
GOSES

...................................................................................
APPLICANT








and



SUSANNA
HOFF
.........................................................................FIRST
RESPONDENT








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













Neutral citation: Goses v
Hoff (A 302-2013) [2013] NAHCMD 318 (6 November 2013)








Coram: UNENGU AJ



Delivered: 6 November
2013








Flynote: Interdict –
Spoliation order – what must be proved by the applicant –
Application on urgent basis for an order to restore water and
electricity to the house where appellant and family live –
Order granted previously when application was heard confirmed.








Summary: The applicant
and family in possession of a property where they live since the
death of their mother and daughter, have their water and electricity
cut off by the respondents. The applicant on an urgent basis
approached the court for a spoliation order to order the respondents
to restore the peaceful and undisturbed possession supply of the
water and electricity to the house they live and to interdict and to
restrain first and second respondents from interfering; hampering or
preventing the applicant and others from having peaceful and
undisturbed possession of Erf 8687 in Shanghai Street, Katutura,
Windhoek and for an order of costs. The order of ‘Rule
confirmed with costs’ made on 15 October 2013 confirmed.










REASONS










UNENGU AJ:








[1] The applicant, on
Friday, 30th August 2013 at 9h00, came to Court by way of Notice of
Motion on an urgent basis as contemplated in Rule 6(24) in the
following terms:



1.
Condoning the Applicant’s non-compliance with the Rules of this
Honourable Court and dispensing, as far as need be, with forms and
service provided for in these Rules and authorizing the Applicant to
bring this application on urgent basis as contemplated in Rule 6(24).








2. That a Rule Nisi be
issued, calling upon the respondents to show cause, if any, on a date
to be determined by this Honourable court, why an order in the
following terms should not be granted:








3. That first respondent
be directed to forthwith and ante omnia restore applicant’s
peaceful and undisturbed possession of Erf 8687 Shanghai Street,
Katutura Windhoek, Republic of Namibia by causing water and
electricity to be reconnected to the said erf, failing which second
respondent be authorized and directed to forthwith and ante omnia
restore applicant’s peaceful and undisturbed possession of Erf
8687 Shanghai Street, Katutura Windhoek, Republic of Namibia by
reconnecting the electricity and water supply to the said erf.








4. Interdicting and
restraining First and Second Respondents from in any way interfering
and/or hampering and/or preventing applicant and other occupiers from
having peaceful and undisturbed possession of erf 8687 Shanghai
Street, Katutura Windhoek, Republic of Namibia.








5. Directing first
respondent to pay costs of the application on scale as between
attorney – own – client.








6. Alternative or other
relief.’








[2] I granted the relief
sought in the Notice of Motion after hearing counsel for the
applicant, and fixed as a return date of the rule nisi 2 October 2013
at 09h00, for the respondent to come and show cause, if any, why the
rule nisi should not be confirmed.








[3] On 2 October 2013,
the rule nisi was again extended until 15 October 2013 at 09h00 by
the Honourable Mr Justice Damaseb, JP, to serve before me.








[4] On 15 October 2013,
Ms Schulz of PD Theron & Associates appeared for the respondents
and Mr Coetzee of Tjitemisa & Associates acted on behalf of the
applicant.








[5] Ms Schulz applied for
condonation of the non-compliance with Rule 6(4) of the rules of the
court and the late filing of the opposing affidavit by the
respondent, which application was not opposed by the applicant
because no time limits were given in the Notice of Motion within
which the respondent to file notice of intention to defend or oppose
the application.








[6] After hearing
submissions from both counsel, I confirmed the rule nisi and
indicated that reasons therefore will only be provided upon a written
request. As expected, Ms Schulz has now filed a written request to
furnish reasons for the judgment. Therefore, what follows hereunder,
are the reasons for the order made on 15 October 2013.








[7] Before giving a brief
history of the matter, I wish to point out that the same parties in
the application are engaged in another litigation against each other,
in Case No. I 3927/2010 where ownership of the house which is
currently occupied by the applicant and her family, is the subject
matter. In this application, as it is clear from the Notice of
Motion, the relief sought by the applicant is the restoration of
water and electricity supply to the applicant at Erf 8687, Shanghai
Street, Katutura Windhoek which supply was disconnected by the second
respondent on the instructions of the first respondent; and an order
interdicting and/or restraining first and second respondent from
interfering and/or hampering and/or preventing applicant and other
occupiers of the house, in any way, from having peaceful and
undisturbed possession of the said house as well as the costs of the
application.








[8] The applicant is a
daughter of the late Elfriede Goses who worked for the respondent,
before she passed away on 17 April 2010. The late Goses lived in this
house with her children, including the applicant in this matter until
the day of her death. As already indicated, ownership of the house is
in dispute and is an issue to be resolved in the other case where the
respondent is the plaintiff and the applicant and others are the
defendants.








[9] Meanwhile, since
their mother (Elfriede Goses) passed away in 2010, the house did not
have water supply until the end of January 2013. The water was
disconnected by the Municipality of Windhoek on the instruction of
the respondent.








[10] On 2 February 2013,
Ms Thusnelda Gawanas, the grandmother of the applicant made an
arrangement with the Municipality to pay off the outstanding balance
of N$9 842.96. The Municipality agreed and reconnected the water
to the house.








[11] However, on 2 April
2013, the water and electricity of the house were disconnected on the
request of the first respondent who alleged that the applicant and
others were occupying her house unlawfully. The disconnection was
done despite the arrangement to pay off the outstanding balance and
while payments were being made by the grandmother towards the
outstanding balance.








[12] That did not
discourage the grandmother. On 17 July 2013 she returned to the
Municipality when she signed an acknowledgement of debt for the
outstanding balance and as such the water and electricity were
reconnected again. However, these services, even though payments of
the outstanding balance did not stop, were disconnected by the second
respondent again on the instruction of the first respondent. Hence
this application for relief to place the applicant in her previous
position.








[13] The aforesaid is
briefly the background history of the matter.








[14] Ms Schulz argued
that the applicant did not establish a clear right in order to be
granted a final order; that she is not entitled to perform and to
enjoy all the benefits and privileges associated with a lawful owner
of the property as the first respondent is the holder of a title
deed. Therefore, Ms Schulz further argued, that the applicant cannot
compete with the first respondent as far as these rights and powers
are concerned.








[15] Meanwhile, Mr
Coetzee, counsel for the applicant submitted that the only issue for
determination by the Court, is whether in the circumstances of the
matter, spoliation has taken place.








[16] I pointed out
already that there is a case pending between these parties wherein
the first respondent is the plaintiff where ownership of the same
property is the subject matter. Therefore, in this application,
ownership of the property is not an issue – the issue is
whether the respondents have despoiled the application of her
peaceful and undisturbed possession of the property by disconnecting
the water and electricity supply to the house.








[17] That the applicant
and her family are in occupation of the house, is not in dispute.
Similarly, it is not in dispute that water and electricity supply
were peacefully and without disturbances used by the applicant and
family from 17 July 2013 until 7 August 2013 when the second
respondent disconnected the supply of both the water and electricity.
In my view, the argument of counsel for the first respondent that the
application is not entitled to perform and enjoy all the benefits and
privileges that are associated with a lawful owner of property and
that applicant cannot compete with the first respondent as far these
rights and powers are concerned is irrelevant and is rejected.








[18] Further, what is
required of the applicant is to prove possession and that she was
unlawfully deprived of such possession. Which is the issue in the
matter at hand. The fundamental principle of the remedy (spoliation)
is that no one is allowed to take the law into his or her own hands.
See Yeko v Qana1
and Willie’s Principles of South African Law by Hutchison et
al2
referred to by counsel for the applicant where the following was
said: ‘If a person has been deprived of possession by violence,
fraud stealth or some other illicit method, he may obtain from court
a mandament van spolie or a spoliation order, commanding the
dispossessor to restore the possession to himself, the applicant. It
is a fundamental principle that no man is allowed to take the law
into his own hands. Consequently if a person without being authorised
by judicial decree dispossess another person, the court, without
inquiring into the merits of the dispute, will summarily grant an
order for restoration of possession to the appellant, as soon as he
has proved two facts, namely that he was in possession, and that he
was despoiled of possession by the respondent. The policy of law is
neatly summed up in the maxim, spoliates ante Omnia restituendus
est’.








[19] There is no doubt
about it, that it is what happened to the applicant in this
application. She has been deprived of her possession of water and
electricity by the two respondents by means of some other illicit
method, without a judicial decree.








[20] In paragraph 23 of
her founding affidavit, the applicant states that she has been
unlawfully deprived of the supply of water, basic amenities like
drinking water and ablution facilities are unavailable to the
property. She states that the family is living under inhumane and
unhygienic manner in which is health hazard which can result in
serious health problems for her family. I agree. Water is one of the
basic needs. To refuse the application will amount to the
perpetuation of an injustice to the applicant and her family which
they are already experiencing.








[21] That being the case
and considering the facts of the matter as well as the decisions of
authorities referred to by counsel for the applicant in his written
heads of argument which he amplified by oral submission it is my
humble view that the applicant has established the requirements for
spoliation order for this court to confirm the order granted on 15
October 2013.








Consequently, the
aforesaid are the reasons for the order made on 15 October 2013.








PE Unengu



Acting



APPEARANCE:



For
applicant:
......................................................................................
Mr
E Coetzee



................................................................................................................................Of
Tjitemisa & Associates








For
respondents:................................................................................
Ms F Schulz



...........................................................................................................................Of
PD Theron & Associates














11973
(4) SA 735 (A) at 739 E-G





28th
Edition at page 267