Court name
High Court Main Division
Case number
CA 59 of 2012
Title

Enslin v Enslin (CA 59 of 2012) [2013] NAHCMD 51 (26 February 2013);

Media neutral citation
[2013] NAHCMD 51
Coram
Smuts J













UNREPORTABLE



REPUBLIC OF NAMIBIA






IN THE HIGH COURT OF
NAMIBIA MAIN DIVISION







JUDGMENT



Case no: CA 59/2012



In the matter between







YOLANDA ENSLIN
..........................................................................................APPELLANT







and







STEPHANUS JOHANNES ENSLIN
.............................................................RESPONDENT







Neutral citation: Enslin v Enslin
(CA 59/2012) [2013] NAHCMD 51 (26 February 2013)







Coram: Smuts, J



Heard on: 25 February 2013



Delivered on: 26 February 2013







Flynote: Interim protection
order struck from the roll by magistrate on the return day because it
was not signed. Appeal against this ruling upheld. The original order
was sought and granted ex parte. The need for compelling
circumstances stressed for granting ex parte orders.







ORDER







The order of the court below is set
aside and replaced with an order discharging the interim protection
order with no order as to costs.







JUDGMENT







SMUTS, J



[1] On the return date of an interim
protection order obtained under the Combating of Domestic Violence
Act, 4 of 2003 (the Act), the presiding magistrate struck the matter
from the roll, ruling that the order which had been served on the
respondent was invalid because it had not been signed by the
magistrate who granted the interim protection order.







[2] The applicant appealed against
that ruling, and is represented by Ms Nambinga. The respondent has
not opposed the appeal.







[3] The applicant had approached the
magistrate’s court on an ex parte basis for interim protection
order on 15 June 2012. The basis for the application was described as
economic abuse. It concerned allegations of the respondent seeking to
dispossess the applicant of items of a luxury nature in the form of
television set and surround sound music and entertainment equipment.
The items were purchased in the name of the respondent but the
applicant claimed that she had provided the funds for their purchase.
The parties were then in the early stages of a contested divorce
action.







[4] The applicant obtained an interim
protection order without service or notice of the application to the
respondent. The order was granted by a magistrate, Ms Anyolo. The
order was subsequently served and the applicant secured possession of
the items in question.







[5] The respondent filed an extensive
answering affidavit in advance of the return date on 2 August 2012,
disputing the factual basis for the application. At that hearing, the
presiding magistrate, Mr Endjala at the outset raised with the
representatives of both parties the fact that the interim protection
order had not been signed by Magistrate Anyolo on the designated
space. The applicant’s representative, who was also then Ms
Nambinga, pointed out that a competent order had been granted and
that regard should be had to the recorded proceedings of that day
and, if need be, the magistrate who had presided could be called to
confirm that she had granted the order.







[6] Mr Denk, who appeared for the
respondent opportunistically latched onto the issue. He contended
that s8(3) of the Act required that the order should be set out in
the prescribed form set out in the regulations which in turn made
provision for signature by the magistrate who had granted it. He
submitted that, without being signed, there was not sufficient proof
that it was issued, and that it should be set aside and the matter
struck from the roll with costs. This point had not been taken in the
detailed opposing affidavit filed by the respondent. The magistrate
then proceeded to express the view that the order was null and void
and struck the matter from the roll and directed that the applicant
should start proceedings afresh.







[7] As I have said, the applicant
appealed against this ruling. In the record of proceedings filed on
appeal, there is a handwritten extract from Magistrate Anyolo’s
book which confirms that the order had been given and briefly sets
out her considerations in doing so. Whilst it is correct that the
form prescribed in the regulations provides for a place for the
presiding magistrate to sign the order, it would certainly not seem
to me that the absence of a signature on the order which was served
and acted upon would mean that the order was void, as found by the
court below. The court had after all granted an order in those terms.
That was not disputed. The shortcoming (of not having a signature on
the prescribed form) was plainly capable of being rectified and would
not result in the invalidity of the order itself, as found by the
court a quo. At best the return date could, if need be, have been
extended to address this issue. But in this instance, it is not all
clear to me this was required. In view of the conclusion I have come
to in this matter, it is not necessary to further address this issue.







[8] Ms Nambinga, who appeared for the
appellant, argued that the matter should be remitted to the court
below for an enquiry as envisaged in s12 of the Act. I enquired from
her whether the failure to serve the application before the interim
order was granted should preclude such an eventuality and should have
resulted in the rule being discharged. Ms Nambinga submitted that the
applicant had in her affidavit stated that she apprehended that the
respondent may damage or alienate the moveable property in question.
But this statement is made without raising any factual matter in
support of the apprehension. Ms Nambinga also referred me to the fact
that the respondent had said that the appellant should leave the
common home. That statement was however contained in correspondence,
exchanged between the parties’ lawyers. After receiving the
letter in which this statement is contained, the applicant had to
wait a few days before being able to secure an appointment with her
own lawyers. It was after that consultation that the application was
brought as a matter of urgency on an ex parte basis.







[9] This court has made it abundantly
clear that whilst a magistrate’s court may grant an interim
protection order on an ex parte basis, there is no entitlement to
such an order from that court on that basis
1.
I respectfully agree with the approach adopted in that matter. There
would plainly need to be compelling circumstances to justify
approaching a court on an ex parte basis, thus depriving a respondent
of the right to be heard before such an order is granted,
particularly where the issue raised in the application was to the
knowledge of the applicant disputed, as was the case in this matter.
This application had been preceded by correspondence exchanged
between the parties’ lawyers raising the very dispute at the
heart of this application, namely the ownership of the items in
question. To then bring an ex parte application in the absence of
compelling circumstances should in my view not be permitted and may
even amount to an abuse of process.







[10] The respondent had understandably
taken the point that the interim protection order should not have
been sought and granted on an ex parte basis. But, as Ms Nambinga
points out, this issue was not argued in the court below.







[11] I then invited her submissions as
to why the rule should not have been discharged for this reason. As I
have indicated Ms Nambinga referred me to the unsubstantiated
apprehension of damage or alienation in the founding affidavit and
the preceding correspondence. There is however a dispute in the
correspondence concerning the ownership of the items. This would
undermine the unsupported assertion of an apprehension of alienation
and damage, seeing that the respondent was asserting ownership of
those items.







[12] Whilst the presiding magistrate
misdirected himself in striking the matter from the roll because the
order was not signed, it would not in my view serve any purpose to
remit the matter if the order should have been discharged because of
the misuse of ex parte proceedings.







[13] It follows that the order made by
the court below is set aside. In view of the failure to have served
the application, it is my view that the matter should not be remitted
for an enquiry but that the interim protection order should be
discharged. As far as costs are concerned, the applicant has
succeeded in setting aside an order which was given at the respondent
incorrect urging. That would ordinarily entitle her to her costs. But
in view of the inappropriate invocation of ex parte proceedings in
the first place, I would, in the exercise of my discretion, consider
that it would be fair and first that no order as to costs be made.







[14] The order I make is that the
order of the court below is set aside and replaced with an order
discharging the interim protection order with no order as to costs.















______________



DF SMUTS



Judge










APPEARANCE





APPELLANT:
S Nambinga


AngulaColeman
Inc.








RESPONDENT:
No appearance



1LS
v MB and Another 2010(2) NR 655 (HC)