Court name
High Court Main Division
Case number
APPEAL 67 of 2014
Case name
Schroeder v Government of the Republic of Namibia and Others
Media neutral citation
[2014] NAHCMD 124
Judge
Unengu AJ


















SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance with the law
and
SAFLII
Policy



 








REPUBLIC
OF NAMIBIA







HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK






RULING





Case
no.: A 67/2014





DATE:
03 APRIL 2014





NOT
REPORTABLE








In
the matter between:


 



FREDRICH WILLY
SCHROEDER................................................................APPLICANT







And






GOVERNMENT
OF THE REPUBLIC OF NAMIBIA..................FIRST
RESPONDENT






MINISTER
OF SAFETY AND SECURITY...............................SECOND
RESPONDENT






THE
INSPECTOR-GENERAL OF THE.......................................THIRD
RESPONDENT


NAMIBIAN
POLICE      


DETECTIVE
EIMAN..................................................................FOURTH
RESPONDENT






MINISTER
OF
JUSTICE................................................................FIFTH
RESPONDENT






JOHN
SINDANO............................................................................SIXTH
RESPONDENT






THE
MUNICIPAL COUNCIL FOR THE...............................SEVENTH
RESPONDENT


MUNICIPALITY
OF WINDHOEK


ABRAHAM
KANIME...................................................................EIGHT
RESPONDENT






ANDRÉ
LOUW..............................................................................NINTH
RESPONDENT






DESIREE
LOUW...........................................................................TENTH
RESPONDENT






Neutral
citation:     
Schroeder
v Government of the Republic of Namibia
(A
67/2014) [2014] NAHCMD 124 (3 April 2014)


 


Coram:         
UNENGU AJ


Heard:          
3 April 2014


Delivered:    
3 April 2014


 


ORDER


 


1.        
That the point in limine by the first, second, third, fourth,
fifth and sixth respondents is upheld.


 


2.        
That the application is dismissed with costs on attorney and own
client scale, which costs must be paid first before any other
application on the same issue is brought to the High Court by the
applicant.


 


JUDGMENT





UNENGU
AJ:


 


[1]       
The applicant in this matter, Mr Frederich Willy Schroeder, brought
an urgent application based on Mandament van Spolie today on
Thursday, 3 April 2014 at 09h00, seeking the following:


 


MANDAMENT
VAN SPOLIE


 


KINDLY
TAKE NOTICE that the applicant intends to bring an urgent application
on Thursday, 3rd April 2014 at 9h00 or as soon thereafter
as applicant may be heard for an order in the following terms:


 


1.        
Condoning applicant’s non-compliance with the rules of the
Honourable Court.


2.        
Ordering respondents to restore applicant’s peaceful and
undisturbed possession of the property Erf 1…... J…..
S……, H…….. Park.


3.        
Ordering respondents to return applicant’s moveable property
namely a toolbox, a Bosch heavy-duty grinder and a Bosch heavy-duty
drill places in the kitchen at the above property at the time of the
spoliation in question.


4.        
Ordering respondents to hand over to applicant the keys to the
property.


5.        
Order respondents to pay costs of this application.


6.        
Further and/or alternative relief.


 


TAKE
NOTICE FURTHER that the affidavit of Fredrich Willy Schroeder will be
used in support of this application.


 


TAKE
NOTICE FURTHER that the applicants appoint Erf 3…… F……
N….. Street, K….. as the address where they will accept
all service of documents and process in the above matter.


 


KINDLY
SET DOWN THE MATTER TO BE HEARD ACCORDINGLY.


 


Dated
at WINDHOEK on this 2nd day of April 2014.’


           


[2]       
At 08h30 today, half an hour before the hearing of the urgent
application, the applicant filed another application with the
Registrar’s office in which he applied for my recusal to sit in
the urgent application on the grounds:


 


KINDLY
TAKE NOTICE that the applicant herewith applies for the sitting Judge
Petrus Unengu on the following grounds:


1.        
My complaint for bias and maladministration of justice in terms of
Section 4(c) of the Judicial Service Act of 1995 against the Judge is
still pending with the Judicial service Commission.  I have
applied for his impeachment.


2.        
The Judge is Head of the Magistrates Commission and as such has
interest in this matter given the involvement of sixth respondent.


3.        
The Judge refuses to give reasons in case no. I 471/2010 while
applicant has requested same.  Those reasons have bearing on
this matter.


4.        
The judge does not understand the legal principle of Mandament van
Spolie or wilfully ignore it.  He can thus not administrate
justice in this matter.


 


Wherefore,
the rightful course for the Honourable Judge is to recuse himself to
protect the integrity and dignity of this Honourable Court.


 


KINDLY
SET DOWN THE MATTER TO BE HEARD ACCORDINGLY.


 


Dated
at WINDHOEK on this 2nd day of April 2014.’


 


[3]       
However, in view of the fact that he did not serve the Recusal
Application on the respondents, as they, in law are entitled to be
served with such notice, I have disregarded the Recusal application
on account of non-service of such application on the respondents and
proceeded to hear the urgent application.


 


[4]       
Mr Chibwana, counsel for first, second, third, fourth, fifth and
sixth respondents raised a point in limine against the urgent
application which point in limine I upheld and made the
following order:


 


1.        
That the point in limine by the first, second, third, fourth,
fifth and sixth respondents is upheld.


 


2.        
That the application is dismissed with costs on attorney and own
client scale, which costs must be paid first before any other
application on the same issue is brought to the High Court by the
applicant.






 E
P UNENGU






Acting
Judge


 


APPEARANCE:


For
applicant            
In person


 


 


For
1-6 respondents:          Mr
Chibwana


Of
Government Attorney