Court name
High Court Main Division
Case number
APPEAL 287 of 2013
Title

Mungendje v Ngunovandu and Another (APPEAL 287 of 2013) [2013] NAHCMD 360 (29 November 2013);

Media neutral citation
[2013] NAHCMD 360
Coram
Unengu AJ










REPUBLIC
OF NAMIBIA







HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT








Case
no: A 287/2013





DATE:
29 NOVEMBER 2013





In
the matter between:








ZAAPI
MUNGENDJE
….....................................................................................
APPLICANT





And





EMMANUEL
NGUNOVANDU.........................................................FIRST
RESPONDENT





INSPECTOR
GENERAL OF NAMIBIA POLICE....................SECOND
RESPONDENT





Neutral
citation: Mungendje v Ngunovandu and another (A 287-2013) [2013]
NAHCMD 360 (29 November 2013)





Coram: UNENGU
AJ





Heard: 29
August; 17 October 2013





Delivered: 29
November 2013





Flynote:
Practice – Applications and motions – Urgent
application – Rule nisi granted – On extended date, the
rule confirmed.





Summary:
By way of notice of motion, the applicant came to Court on urgent
basis seeking certain and ancillary relief. The application was
granted on 29 August 2013 as the respondents did not oppose it.
However, on extended return date of the rule, first respondent
opposed the confirmation of rule but after hearing arguments from
counsel of first respondent and the applicant, the Court confirmed
the rule nisi as prayed for in prayers 2.1, 2.2, 2.3, 2.4 and 2.5 of
the notice of motion.








ORDER








In
the result, I make the following order:





1.
The rule nisi is confirmed as prayed for in prayers 2.1, 2.2, 2.3,
2.4 and 2.5 of the Notice of Motion.





2.
The costs in prayer 2.5 of the Notice of Motion to include the costs
of one instructing and one instructed counsel.








JUDGMENT








UNENGU
AJ:





[1]
The applicant, Mr Zaapi Mungendje, on an urgent basis, applied for
and was granted the following relief on 29 August 2013:





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





2.
That a rule nisi is hereby issued, calling upon the first respondent
and any interested party, if any, to show cause, if any, on 1 October
2013 at 9h00, why an order in the following terms should not be made
final:





2.1
Ordering and directing the first respondent to forthwith restore to
the applicant the undisturbed and peaceful possession, Erf 4956,
situated in the District of Katutura, Windhoek, Republic of Namibia
pending the final determination of this application by the above
Court.





2.2
Ordering and directing the first respondent to forthwith vacate
together with all his possession all his immovable he has brought to
Erf 4956, situated in the District of Katutura, Windhoek, Republic of
Namibia pending the final determination of this application by the
above Court.





2.3
Ordering the first respondents to refrain in any manner whatsoever
from interfering with the applicant’s peaceful and undisturbed
possession of Erf 4956, situated in the District of Katutura,
Windhoek, Republic of Namibia.





2.4
Ordering the second respondent to remove the first respondent from
Erf 4956, situated in the District of Katutura, Windhoek, Republic of
Namibia in event that the first respondent does not willfully vacate
the aforesaid Erf as ordered by this Court.





2.5
That the first respondent pays the applicant’s costs of the
application on a scale as between attorney and client.





3.
That prayers 2.1, 2.2, 2.3 and 2.4 shall operate as an interim
interdict with immediate effect, pending the return date, 1 October
2013 at 10h00.’




[2]
The facts of the matter are briefly as follows. The applicant is the
registered owner of a house situated on Erf 4956 in Katutura,
Windhoek. But, the house is still occupied by the first respondent.





[3]
In January 2012, the applicant instituted legal proceedings in the
Magistrate’s Court, wherein he sought, amongst others, an
eviction order against the first respondent and another from his
house at Erf 4956 in Katutura.





[4]
The magistrate on 17 February 2012 granted him the eviction order by
default against the first respondent and his friend. A warrant of
ejectment was also issued the same day and as a result thereof, the
first respondent and his friend were ejected from the house at Erf
4956 by the Messenger of Court during March 2012. Thereafter, locks
to the gates of the erf and doors to the house were changed and
replaced with new locks by the applicant together with the Messenger
of Court.





[5]
The next day, after the first respondent and his friend were evicted
from the house, the applicant and a cousin went back to the house for
the cousin to occupy the house, in the meantime, but found the first
respondent and his friend back in the house in defiance of the order
granted against them by the magistrate.





[6]
The applicant, in view of what happened, sought assistance from the
Messenger of Court to remove the first respondent and his friend from
the house, but was not. The Messenger of Court told him that he had
discharged his obligation already when he evicted the first
respondent and his friend from the house the previous day.





[7]
On 22 February 2013 he approached the Magistrate’s Court
through his legal practitioner for an order of contempt of court in
terms of common law, but the court dismissed his application on the
ground that the Magistrate’s Court is a creature of statute, it
does not have inherent jurisdiction like the High Court to hear the
application.





[8]
That being the case, the applicant felt that he was without relief to
protect him against the first respondent and his friend and decided
to approach the High Court on an urgent basis for the relief
indicated above.





[9]
As indicated above, the applicant, on 29 August 2013, was granted the
relief sought in the Notice of Motion in the form of a rule nisi with
a return date of 1 October 2013, at 9h00.





[10]
I must, however, mention that Rudolph Ndukireepo, who was the first
respondent in the proceedings before the Magistrate’s Court, is
not a party to this application. I gather from the founding
affidavit of the applicant that he (Rudolph Ndukireepo) has died.
Therefore, the second respondent in this application is the
Inspector-General of the Namibian Police who is cited solely for the
purpose of removing the first respondent from the house at Erf 4956
in Katutura, if the applicant is successful.





[11]
The first respondent opted to oppose the confirmation of the
application on the grounds, amongst others, that the application is
not urgent because the applicant, in his founding affidavit, did not
set out explicitly the circumstances which he avers render the matter
urgent and the reasons why he claims that he could not be afforded
substantial redress at a hearing in due course. Secondly, that the
application is not urgent because a similar application was brought
to this Court on 5 April 2013 but was subsequently withdrawn. These
issues were raised in the answering affidavit by the first respondent
as points in limine.





[12]
Further, in paragraph 3.4 of his answering affidavit, the first
respondent states that he did not oppose the application initially on
29 August 2013 because he did not have the funds to instruct lawyers
but was of the view that this application would not have been granted
had the court’s attention been drawn to the glaring
discrepancies and deficiencies therein.





[13]
Unfortunately, it is too late for the first respondent. The issue of
urgency or otherwise was dealt with on 29 August 2013, when this
Court condoned the non-compliance with the forms and service provided
for by the Rules of this Court in Rule 6(12) and allowed the
application to be heard on an urgent basis. Therefore, the points in
limine raised by the first respondent at this stage of the
proceedings are outdated, irrelevant and as such will not be
considered. In any event, the Court is functus officio in respect of
paragraph 1 of the order of Thursday, 29 August 2013.





[14]
I shall now consider the issue of whether or not the Court should
confirm or discharge the rule nisi on this return date.





[15]
Both counsel, Mr Phatela for the applicant and Mr Rukoro for the
respondents, prepared and filed written heads of argument which they
supplemented with oral submissions.





[16]
Counsel also referred the Court to various case laws as authorities
to support their submissions.





[17]
As already pointed out above and as it is evident from the evidence
contained in the founding affidavit of the applicant, it is not in
dispute between the parties that the applicant had obtained an
ejectment order in the Magistrate’s Court for the district of
Windhoek, in case no 304/203 against the first respondent and another
who has died, to be ejected from a house situated at Erf 4956,
Katutura in Windhoek.





[18]
Further, it is not in dispute that the order was executed by the
Messenger of Court of the district of Windhoek on 17 February 2013
when the first respondent and his colleague were ejected from the
house whereafter other locks were placed on the gate of the premises
as well as to the entrance of the house. However, in defiance of the
magistrate’s order, the first respondent and his friend
returned to the house, a day after their eviction and since then, the
first respondent is refusing to vacate the house.





[19]
The conduct of the first respondent, in my view, is not only
calculated to bring the administration of justice in general into
contempt, but also intended with impunity to impede and obstruct or
otherwise interfere with the due course of justice.





[20]
It has been argued in this Court by counsel of the first respondent,
among many others, that this matter has already been dealt with at
the level of the Magistrate’s Court, therefore, the only way,
the High Court could get involved, is by way of an appeal or
application for review.





[21]
Counsel further argued that the applicant elected to start
proceedings afresh or de novo in the High Court after failing to get
her relief in the Magistrate’s Court which is an abuse of the
process and requested this Court to dismiss the application and to
discharge the rule nisi.





[22]
I disagree with counsel. His argument is without substance. The
relief sought and granted in the Magistrate’s Court is an order
for ejectment against the first respondent and his friend. In this
Court, by way of Notice of Motion, not by action proceedings as she
did in the Magistrate’s Court, the applicant is seeking a
different relief which she had set out in paragraphs 2.1, 2.2, 2.3,
2.4 and 2.5 of the Notice of Motion. The relief the applicant is
seeking before this Court was created by a new circumstance, namely
the defiance of the Magistrate’s Court order by the first
respondent when he returned to the house he was evicted from. That
cannot be regarded as an abuse of process.





[23]
One should remember and take into account that the applicant first
approached the Magistrate’s Court to hold the first respondent
into contempt – the court dismissed her application. She also
approached the Police for assistance but not assisted even though the
first respondent could have been charged with criminal offences of
trespass and malicious damage to property.





[24]
The other submission of counsel for the first respondent with regard
the deed of sale of the house concluded between the applicant, as the
buyer and the seller of the house due to alleged non-compliance with
the formalities in respect of contracts of sale of Land Act 71 of
1969, are irrelevant for the purposes of this application, therefore,
rejected. If the first respondent disagreed with order of ejectment
by the Magistrate’s Court, he had a right to either apply for
the rescission of the default judgment or appealed the judgment.
This, the first respondent did not do, instead he decided to violate
the judgment and an order of a court.





[25]
Consequently, when regard is had to the facts in the founding
affidavit to the effect that the applicant is the registered owner of
that house at Erf 4956, Katutura in Windhoek coupled with the fact
that he has been granted a default judgment for the ejectment of the
first respondent, still in force, and the authorities referred to by
counsel for the applicant, I am satisfied that the applicant on a
balance of probabilities, established a right of ownership to the
house, which right this Court must protect against the first
respondent. Therefore, the rule nisi should be confirmed.





[26]
In the result, I make the following order:





1.
The rule nisi is confirmed as prayed for in prayers 2.1, 2.2, 2.3,
2.4 and 2.5 of the Notice of Motion.





2.
The costs in prayer 2.5 of the Notice of Motion to include the costs
of one instructing and one instructed counsel.







PE
Unengu





Acting





APPEARANCE:





For
applicant: Mr TC Phatela



Instructed
by Tjituri Law Chambers








For
respondents:Mr S Rukoro





Instructed
by Dr Weder, Kauta & Hoveka Inc