Court name
High Court Main Division
Case number
APPEAL 170 of 2013
Title

Du Plessis N.O v Strydom and Others (APPEAL 170 of 2013) [2014] NAHCMD 201 (25 June 2014);

Media neutral citation
[2014] NAHCMD 201
Coram
Unengu AJ










REPUBLIC OF
NAMIBIA





HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT





Case
no: A 170/2013




DATE:
25 JUNE 2014





In the matter
between:





SCHALK WILLEM DU
PLESSIS
N.O........................................................APPLICANT





And





HILDA STRYDOM
(previously DU PLESSIS)..............................FIRST
RESPONDENT





FRANCOIS ERASMUS
& PARTNERS....................................SECOND
RESPONDENT





THE REGISTRAR OF
DEEDS....................................................THIRD
RESPONDENT





J C P A
COETZEE...................................................................FOURTH
RESPONDENT





Neutral citation:
Du Plessis NO vs Strydom (A 170/2013) NAHCMD 201 (25 June 2014)





Coram: UNENGU, AJ





Heard: 8 April
2014





Delivered: 25
June 2014





Flynote:
Practice – Applications – and motions – Ex parte
urgent application – granted on 31 May 2013 – Respondent
in opposing affidavit alleges that application not urgent and not
necessary to approach court on ex-parte basis. On extended return
date rule nisi confirmed by Court.





Summary: The
applicant acting in his official capacity as the executor of the
estate of his late father sought certain relief on ex parte basis
which the Court granted him against the respondent. Court held that
the matter was urgent and necessary for the applicant to approach the
Court on ex parte basis. Held further that the applicant was honest
and did not suppress any information or failed to disclose same. The
rule nisi therefore confirmed.








ORDER





1. The rule nisi is
hereby confirmed.





2. The applicant is
awarded costs such costs to be taxed on a scale of party and party.








JUDGMENT








UNENGU, AJ





[1] The applicant,
Mr Schalk Willem du Plessis, in his official capacity as the executor
of his late father’s estate, by way of notice of motion,
approached the Court on 31 May 2013 on an urgent ex parte basis
seeking the relief in the notice of motion which relief was granted
as follows:





“1.1 Condoning
the applicant’s non-compliance with the forms and service as
provided for in the Rules of court and authorizing the applicants to
bring this application on an urgent ex parte basis as contemplated in
Rule 6(12) of the Rules of Court.





2. That a rule nisi
do hereby issue, calling upon any of the respondents to show cause,
if any, on Friday 21 June 2013 at 10h0, why an Order in the following
terms should not be made:





2.1 Authorising and
directing the Deputy Sheriff for the district of Windhoek to seize
and attach the first respondent’s right, title and interest in
respect of all monies due to her in the sum of N$ 6 800 000-00 to be
kept on her behalf in the trust account of the second respondent as
well as the sum of N$350 000-00 currently held in trust by the second
respondent on behalf of the first respondent, pending the final
resolution of the applicant’s action instituted by the
applicant (as plaintiff) against the first respondent (as defendant)
in this Honourable Court under case No: I 2087/2012, alternatively
such amount to be attached as the honourable court may deem fit;





2.2 Interdicting
and restraining the first and/or second respondents to pay out any
monies standing to the credit of the first respondent in any accounts
(including the aforesaid account) held by the second respondent
including but not limited the sum of N$6 800 000-00 to be kept on her
behalf in the trust account of the second respondent referred to in
paragraph. 2.1 above as well as the sum of N$350 000-00 currently
held in trust by the Second Respondent on behalf of the first
respondent, pending the final resolution of the action contemplated
in paragraph 2.1 above;





2.3 Interdicting
and restraining the first and/or second respondents from
transferring, depositing or in any other manner deal with the monies
of the first respondent currently being kept and to be kept in future
by the second respondent pending the final resolution of the action
contemplated in paragraph 2.1 above;





2.4 Alternatively
to paragraphs 2.1, 2.1 and 2.3 above, authorizing and directing the
Deputy Sheriff for the district of Windhoek to seize and attaché
all of the monies to be derived from the sale of the following
property to wit:





CERTAIN:
FARM RUSHOF NO 69





REGISTRATION
DIVISION: “B” OSHIKOTO REGION





MEASURING:
3002,6715 HECTARES





HELD BY: DEED OF
TRANSFER T685/1999





SUBJECT TO THE
CONDITIONS CONTAINED THEREIN





In the respective
amounts of N$6 8000 000-00 as well as N$350 000-00 currently kept and
to be kept in trust by the second respondent, pending the final
resolution of the action contemplated in paragraph 2.1 above;





2.5 Directing that
the first respondent pay the costs of this application, alternatively
and in the event of any other respondent opposing, directing that
such respondent together with the first respondent pay the costs of
this application, jointly and severally, the one paying the other to
be absolved.





3. That the relief
set out in paragraphs 2.1-2.4 above shall serve and operate as an
interim order with immediate effect pending the resolution of the
action referred to in paragraph 2.1 above.





4. Directing that
any respondent intending to anticipate the rule nisi shall do so only
upon 48 hours’ notice to the applicants.”





[2] On 19 June 2013
the first respondent, Ms Hilda Strydom, previously married to the
late du Plessis, the father of the applicant, filed her notice of
intention to oppose the relief sought by the applicant through the
firm Francois Erasmus legal practitioners.



[3] However, on the
return date, 21 June 2013, none of the respondents was present before
court. The rule nisi was extended until 5 July 2013, at 10h00 with
costs to be costs in the cause. The rule nisi, was thereafter again,
on several occasions extended until 8 April 2014 when the applicant
applied for the rule nisi to be confirmed. The application was
opposed by the first respondent only who on her part requested the
Court to discharge the rule.





[4] Briefly, the
background facts of the application are the following: The first
respondent was married out of community of property to Mr Daniel
Rudolph du Plessis, who passed away on 6 May 2009 here in Namibia.
In 2000, the late Du Plessis and the first respondent acquired farm
Rushof, No 69, situated in the district of Otavi where they lived
until the death of Daniel Rudolph du Plessis ( the late).





[5] The farm Rushof
was registered in the name of the first respondent probably because
the late at the time when the farm was acquired, was still a South
African national, therefore not eligible to have an immovable
property registered in his name. That being the case, the late and
the first respondent agreed in writing and the latter under-took and
acknowledged that she was indebted to the late in an amount equal to
75% of the value of farm the Rushof as well as 75% of the value of
all implements and livestock on the farm. Further to that, the first
respondent, undertook to pay an amount equal to 75% to the late
against sale of the farm or within 90 days from a written demand for
payment of the amount.





[6] In a joint will,
the late Du Plessis and the first respondent bequeathed the farm in
equal shares to their children and the shares in Brumme Hotel (Pty)
Ltd of the first to die, in the event of one of them dying.





[7] Notwithstanding
the undertaking, the first respondent, sold the farm to the fourth
respondent Mr Coetzee for an amount of N$ 7 300 000-00 of which N$150
000.00 was made directly to her while N$350 000.00 paid into the
Trust Account of Mr Francois Erasmus, her legal representative.
Meanwhile, and in view of the fact that the first respondent is
denying any indebtness to the estate of the late Du Plessis, alleging
that she had signed the undertaking under duress, the applicant has
issued summons against her (first respondent) on behalf of the
estate. It is the reason, therefore, that the applicant is
requesting the Court to confirm the rule nisi to preserve the order
made on 31 May 2013 pending the finalization of the action brought
against the first respondent by the applicant. On the other hand,
the first respondent is fighting for the discharged of the rule nisi.





[8] Appearing on
behalf of the applicant is Mr Erasmus SC assisted by Mr Strydom,
while Mr Heathcote SC assisted by Mr Dicks, is acting on behalf of
the first respondent. Counsel prepared and filed extensive heads of
argument supported by a list of authority, which heads counsel
augmented with oral submissions.





[9] I do not intend
to repeat each and everything said by Counsel in their written heads
or in their oral submissions. However, in my judgment, I shall focus
on whether to confirm or discharge the rule nisi, and the reasons why
I shall confirm or discharge the said rule nisi. Before, I do so, I
want to deal with the complaint of the respondent as whether it was
justified for the application to be brought ex parte and on urgent
basis.





[10] Mr Heathcote
SC, attacked the course followed by the applicant to bring the
application before Court. His problem is that the applicant was not
open and honest with the Court by failing to disclose the
respondent’s counter-claim which might have an effect on the
discretion of the Court to grant or not to grant the order. Mr
Heathcote SC finds support from a decision of the matter between the
Prosecutor-General and Lameck1
and other cases.





[11] In the matter
of the Prosecutor-General vs Lameck, Damaseb, JP said: “It is
common cause that the order was obtained ex parte against the
defendants/ respondents, and for that reason is provisional only”.
The Judge President quoting from the matter of Pretoria Portland
Cement co. Ltd and Another vs Competition Commission and Others
continued that it must be borne in mind too that an order granted ex
parte is by its nature provisional, irrespective of the form it
takes. The party approaching the Court ex parte must make a full and
frank disclosure of all the relevant facts, and must act bona fide.





[12] Mr Heathcote SC
further referred the Court to the matter of De Jager v Hailbron and
Others2
with regard the duty of an applicant who brings an application ex
parte, to place all material facts before Court. However, it would
appear though that Mr Heathcote SC does not have any quarrel with the
urgency of the application as he had conceded that any judge hearing
the application would have granted it as urgent. The concession is in
my view, correctly made.





[13] The law
regulating urgent applications at the time this application was
launched, was Rule 6(12) which has been substitued with Rule 73 in
the new rules which came into operation on 16 April 2014. The
provisions of rule 6 (12) authorised a Court or judge a discretion to
dispense with the forms and service provided for in the rules to
dispose of an application in such time and place and manner and in
accordance with such procedure as the Court or such judge seems meet,
provided the requirements of sub rules (a) and (b) thereof were
complied with.





[14] In the instant
matter the requirements in both sub rules (a) and (b) of rule 6 (12)
were complied with. The legal principles applicable to urgent
applications have also been collated in the matter of Mweb Namibia
(Pty) Ltd v Telecom Namibia Ltd and Others3
where Muller, J amongst others said that Rule 6 (12) (b) makes it
clear that the applicant must in his founding affidavit explicitly
set out the circumstances upon which he or she relies that it is an
urgent matter. Furthermore, the applicant has to provide reasons why
he or she claims that he or she could not be afforded substantial
address at the hearing in due course. I agree.





[15] The evidence
in the founding affidavit is that the first respondent sold the farm
for N$ 7 300 000.00 (seven million three hundred thousand Namibian
dollars) of which the initial payments were made by the buyer, one
directly to the first respondent and N$350 000 00 (Three hundred and
fifty thousand Namibian Dollars) into a Trust Account of first
respondent’s legal practitioner.





[16] Similarly, an
attempt to have a caveat registered against the farm at the Deeds
Office for the amount owed or which the first respondent undertook to
pay to the deceased upon sale of the farm, by the applicant, was
unsuccessful. These events, in my opinion created the circumstances
and the reasons prompting the applicant to approach the court on
urgent basis. With that, if the applicant gave the first respondent
notice about his intention to approach the court on an urgent basis,
the money in the trust account could have been dispose of rendering
the application nugatory.





[17] With regard the
issue of the applicant coming to Court on an ex parte basis and the
failure to disclose the counterclaim by the first respondent, I am
not persuaded by submissions of first respondent’s counsel to
discharge the rule. As a result of that. I respectfully agree with
the submissions by Mr Erasmus SC that the counter-claim is for
un-liquidated claims. The claims have first to be proved by the
first respondent a trial. of the main action. In any event the Court
would have granted the interim relief even if such counterclaim was
disclosed.





[18] The facts in
the Lameck and others matter and cases cited therein are
distinguishable from the facts of the matter at hand. It is my view
that the applicant in this matter disclosed all facts which
influenced this Court to grant interim relief claimed. Further, the
applicant was honest and bona fide about the facts he had put in his
founding affidavit. He did not, in my view, suppress facts or
information in his founding affidavit.





[19] The opposite is
not the same. The respondent was and still not honest with the Court.
She says that the farm was registered in her name because she paid
the bulk of the purchase price, meaning that the deceased also paid
part of the purchase price. Even if a small part of it, I fail
therefore, to understand why the respondent is now resisting the
claim of the executor on behalf of the deceased’s estate. Or
does it mean that the deceased was one who paid the whole purchase
price of the farm and the first respondent does not want to admit it
for fear that she may lose all the money of the farm?





[20] In view of the
above facts, nature and circumstances of the matter together with
submissions and authorities referred to buy counsel, it is just
reasonable and fair that I should confirm the rule nisi for the court
hearing the main action is placed in a position to deal with the
disputes between the applicant, and the first respondent.
Discharging the rule nisi will grossly prejudice the applicant should
he be successful in the main action which is pending against the
first respondent. Meanwhile, the first respondent will loose nothing
should she be successful in due course in the pending action as the
money is kept in the trust account of her own legal representative
pending the outcome of the matter instituted by the applicant.





[21] With regard
costs, it is trite that the successful party should be awarded costs
as prayed for. In the absence of compelling reasons to deviate from
the general rule, I shall also not deviate from the said rule.





[22] Consequently, I
made the following order:





1. The rule nisi is
hereby confirmed.





2. The applicant is
awarded costs such costs to include costs of one instructing and two
instructed counsel to be taxed on a scale of party and party.








E P Unengu





Acting Judge








Apearances:





For
plaintiff: THEUNISSEN, LOUW & PARTNERS





For
defendant: FRANCOIS ERASMUS & PARTNERS






12010
(1) NR 156 (HC) at 167 J-168 B




21947(2)
SA 415




32012
(1) NR 331 (HC) at 338-339