COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: A 164/2015
10 AUGUST 2015
the matter between:
LAND BOARD OF THE
citation: Tjiriange v Kambazembi (A
164-2015)  NAHCMD 185 (10 August
10 July 2015, 21 July 2015, 30 July 2015
10 August 2015
Practice – Applications and
motions – Urgent applications – applicant is required to
set out in detail the circumstances which he/she 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.
Failure to set forth these facts explicitly is fatal to the urgent
The applicant applied for urgent interim relief
interdicting the respondents from preventing the applicant’s
livestock from grazing in the commonage of a communal area pending
finalisation of a review application launched in the normal course.
The applicant failed to adequately explain in his founding affidavit
the circumstances which render the matter urgent and the reasons why
he could not be afforded substantial redress in due course.
Application struck from the Roll. Principles relating to urgent
The application is struck from the roll
Review application is postponed to 3
September 2015 at 08h30 before Parker AJ on the application roll for
a case management conference
This is an application launched on
an urgent basis for interdictory relief pending the finalisation of a
review application launched in Part B of the notice of motion.
The urgent relief sought in Part A
is for an interim interdict restraining and interdicting the
respondents from preventing the applicant’s livestock from
grazing in the commonage of the communal area known as Camp A at
Onjamo No 1 Village, Otjituuo, Namibia. It is common cause that
the applicant and his cattle have been evicted from Camp A, and are
grazing in Camp B. The camps are currently separated by a
The review application launched in
the normal course, is for an order
the proceedings, decision or judgment and/or order of the Chief Sam
Kambazembi and/or the Kambazembi Traditional Authority, of which the
decision is contained in the letter dated 24 April 2015 and setting
aside and declaring such proceedings as unconstitutional, invalid and
of no force and effect.”
This case in essence involves the
unlawful limitation (according to the applicant) of his grazing
rights on communal land in the Otjozondjupa region. There is a
long and drawn out history between the parties (who are related)
concerning these grazing rights.
The certificate of urgency and
notice of motion was signed on 3 July 2015 by Mr Tjombe, the
applicant’s legal practitioner of record. The application
was set down for hearing on 10 July 2015 at 09h00 and was served on
the first to third respondents via Deputy Sheriff on 8 July 2015 at
14h45. It appears from the returns of service that attempts
were made to serve the fourth, sixth and eighth respondents who were
either on leave or not at the given address. There were no
returns of service in respect of the fifth and seventh respondents.
The first to third respondents,
represented by Mr Ncube from the Government Attorney, opposed the
application and filed a notice in terms of rule 66(1)(c) on 9 July
2015, raising the point of urgency.
At the hearing of the urgent
application on 10 July 2015, Mr Rukoro, appearing for the fourth to
eighth respondents, pointed out that as per their notice to oppose,
the application had not yet been served on the respondents. Mr
Rukoro was at that stage also not in possession of the founding
papers, but he requested time to receive the application and prepare
answering papers. Accordingly, this matter was postponed by
agreement between the parties to
21 July 2015 at 09h00 in order
to enable papers to be filed on behalf of the fourth to eighth
respondents. The fourth to eighth respondents were ordered to
file their answering affidavits on 15 July 2015 and the applicant his
replying affidavit on or before 20 July 2015.
The fourth to eighth respondents
filed substantial answering affidavits on 15 July 2015 and also took
the point in limine
that the matter was not urgent. On 21 July 2015 the matter was
again postponed by agreement to 30 July 2015 as the applicant was not
able to file his replying affidavit in time. Counsel for the
respondents did not oppose the request for additional time to file
the replying affidavit.
is noted at this stage that the answering affidavits ran into some
160 pages, 132 of which comprised annexures which were not even
properly referred to, either in terms of contents of the annexures,
the references thereto or what portions exactly the court was to
consider. The point in
relating to urgency comprised about 2 pages only. Needless to
say, this made consideration of the answering papers quite
cumbersome. Some documentation was not even filed in the
official language, and no translation was provided. It is
necessary to remind, regard being had to the function of affidavits,
that a deponent is required to identify the portion of the annexure
on which he or she intends to rely on, so an opponent knows what case
must be met. It is not
open to a party to merely annex documentation to an affidavit,
request the court to have regard to it and not at least point out to
court which portions of the annexure are relied on. This is
even more important when annexures are bulky or lengthy.
Urgency having been raised in limine
is considered at the outset. The submission of Mr Ncube, is in
essence that the applicant failed to comply with the requirements of
rule 73(4) and that the application is not urgent. It was
further stated in the notice that the applicant has not shown cause
why he cannot be afforded substantial redress at a hearing in due
course, and that he has not satisfactorily placed before the court
the circumstances which he avers renders the matter urgent.
Mr Rukoro agreed with Mr Ncube’s
submissions and added that the urgency was entirely self created and
an abuse of court process.
In support of the urgent relief
sought, the applicant alleged that the decision to restrict his
grazing rights to Camp B of the commonage, as opposed to Camp A was
purportedly taken either on 24 April 2015 or 28 May 2015. The
applicant’s case is that this decision was unlawful. It
is not in issue that the decision was taken on 24 April 2015, or that
the decision was only communicated to the applicant by the first
respondent on 28 May 2015.
In order to provide some context to
my reasoning, I deal very shortly with some of the salient background
facts. The first respondent made a decision in 2011 already
that the applicant be evicted from Camp A. A warrant of
eviction was ultimately issued against him and he was evicted on 26
March 2013. The applicant then challenged this decision via
motion proceedings in this court, and this application was settled
through a settlement agreement on 18 September 2014. Apart from
the warrant of eviction not being enforced, the settlement agreement
specified that the issue regarding the grazing rights in respect of
Camp A be referred back to the second respondent and/or the third
respondent for reconsideration.
Subsequent to this agreement the
applicant continued to reside and graze his livestock in Camp A and
Camp B at Ondjamo No 1 Village, Otjituuo.
On 19 January 2015, the applicant
was requested to attend a meeting at the offices of the first
respondent, where his grazing rights were discussed. The
applicant gave a history of his family’s resettlement at the
village, their grazing at Camps A and B and how the dispute between
the family members came about. The third respondent was also at
this meeting and gave his version of the dispute regarding the
grazing rights. The meeting was adjourned to
2015 and then postponed to 19 February 2015. The applicant
alleged that the final decision was read on 19 February 2015, namely
that no person owns communal land and that all must reside on both
Camps A and B. This is denied by fourth to eighth respondents,
but the denial is not relevant in view of the order made below.
On 28 May 2015 the applicant was
visited by the first respondent, four police officers and the fourth
to sixth respondents. The first respondent informed him that
the dispute over the grazing rights had been reconsidered, and that
the grazing rights would be divided between Camp A and Camp B.
Henceforth, the applicant, together with the sixth and seventh
respondents, would be allocated grazing rights at Camp B, while the
fourth, fifth and eighth respondents would be allocated Camp A.
The applicant was then informed that his livestock must be
immediately removed from Camp A, after which the gate between Camp A
and Camp B must be immediately closed. At this time, the
applicant specifically averred that most of his cattle were already
at Camp B at the troughs and there were “mostly calves”
in Camp A. The applicant was then handed a letter dated 24
April 2015 (bearing a date stamp of 28 May 2015).
The applicant stated that after his
cattle were evicted from Camp A. He immediately contacted his
legal practitioner for legal advice. He states that he only
managed to secure an appointment with his legal practitioner on 17
At the consultation of 17 June 2015
the applicant was advised that it would be prudent to obtain the
necessary documentation before considering the further conduct of the
matter. As a result a letter was addressed to the second
respondent on 19 June 2015. In the letter dated 19 June 2015,
the second respondent was referred to a previous request for
information pertaining to the dispute. The letter further
stated the following with regard to the unlawful eviction of the
actions and decisions are blatantly unlawful and in violation of the
Communal Land Reform Act, and as a result, we
demand that same be reversed immediately, failing which we are
instructed to institute legal action, including an urgent application
for appropriate orders.”
No response was forthcoming.
Accordingly a further letter was transmitted on behalf of the
applicant on 22 June 2015. Again, no response was forthcoming.
Yet another letter was sent on 29 June 2015, this time stating the
refer to our previous correspondence herein, and inquire when we may
receive the information i.e. a written report of the outcome of the
meeting or proceedings where at the decision was taken to allocate
Camp B to our client, and Camp A to be allocated to his brothers.
confirm that we are yet to receive any of the information, or
acknowledgement of receipt of our correspondence.
reply is urgently awaited, failing which we shall proceed to
challenge the decision in the High Court of Namibia.”
On 2 July 2015 the applicant’s
legal practitioner received an email confirming that its Council
would sit and reply to the letters, but no definite date had been set
for the reply. According to the applicant, it became apparent
that the documents would not be availed any time soon and because
“the matter is urgent and is increasingly becoming a desperate
matter” the applicant and his legal practitioner finalised the
application on 3 July 2015.
The applicant submitted that the
delay from 28 May 2015 to date of launching of application was not an
unreasonable delay because the respondents caused the delay by not
timeously providing the requested documents to enable the applicant
to make a decision whether or not to challenge the matter. The
applicant also averred that his legal practitioner had to thoroughly
consult with him and make the necessary enquiries. In this
regard Mr Tjombe expressed the wisdom of obtaining documentation
evidencing the reasoning behind the decision sought to be set aside
before a review application is launched.
The applicant further submitted that
he would not be afforded substantial redress if the application is
heard in the normal course. In this regard the applicant
submitted that he will not be able to conduct his farming business
without any loss to his livestock and that he has no alternative
remedy but to obey the decision of the second respondent in the
Mr Tjombe submitted that the
following facts advanced by the applicant need to be considered in
support of his submission that the application is urgent:
the applicant suffered and continues to
suffer a debilitating drought, which is particularly acute in the
communal area where he resides;
his livestock is suffering with lack of
adequate grazing, and will continue to suffer before the grazing
he received very little rain this rainy
season, and that was not enough for proper grazing;
the water pans are dry;
that follows a drought of 2012 to 2013
where he lost 15 head of cattle (also because of similar conduct
complained of in this application);
3 cows already died in June 2015 as a
result of the lack of adequate grazing;
as a result of that a hearing in due course
would not afford him substantial redress.
Numerous judgments of this court
have set out the principles relating to what must be averred in order
for a matter to be heard on an urgent basis. I mention only a
few in this judgment.
applicant is required to explicitly
set forth in his founding affidavit the circumstances which he
renders the matter urgent and
the reasons why he claims that he cannot be afforded substantial
redress in due course (emphasis supplied).
The essence of an urgent application is thus a request for a
deviation from the forms that the Rules of Court prescribe.
Thus that deviation must be fully justified.
It is trite that in considering
whether an applicant has complied with the above, each case is
decided upon its own particular set of facts and circumstances. To
my mind, this is why our law requires the applicant to provide full
detail, so that there are sufficient facts to enable the court to
make an informed decision whether on the relevant facts and
circumstances presented in the founding papers, a matter is indeed
The court will exercise a discretion
based on judicially accepted principles which include but are not
necessarily limited to the following:
complying with the provisions of rule 73(3) and (4) the applicant
must show good cause why the normal time limits provided for in the
rules of court should be abridged and why he or she cannot be
afforded substantial redress in due course. A failure to
provide reasons can be fatal to the application, and it can be struck
from the roll as a result.
an application is brought on the basis of urgency, institution of the
proceedings should take place as soon as reasonably possible.
an applicant believes that the matter is urgent, he or she must
decide what times to allow affected parties for entering an
appearance to defend and for the filing of answering affidavits.
In essence, the applicant forges his own rules, subject to the
court’s control. Unless it would defeat the object of the
application or, due to the degree of urgency or other exigencies of
the case, it is impractical or unreasonable, an applicant should
effect service of an urgent application as soon as reasonably
possible on a respondent and also afford him or her, within reason,
time to oppose the application.
the purpose of determining urgency, the court’s approach is
that it must be accepted that the applicant’s case is a good
one and that the respondents are unlawfully infringing the
interests may justify the implementation of rule 73(3) and (4), no
less than any other interest, but each case must depend on its own
circumstances. Thus even in instances of commercial urgency,
the court must still be satisfied that the matter is urgent and that
the applicant will suffer prejudice if the application is not dealt
with on an urgent basis.
convenience of the court is an important consideration.
Thus, when urgent applications are thrust upon an already extremely
busy court roll, all the more reason for an applicant to provide full
and satisfactory detail as to why his or her case is sufficiently
urgent in the circumstances to warrant the roll being dislocated and
the court coming to the assistance of the applicant, before other
litigants who are patiently waiting their turn and going through the
case management process in order for their matters to be heard.
are varying degrees of urgency, and the measure of an applicant’s
non-compliance with the rules must match the degree of urgency
alleged to exist.
I think it is accepted that an
applicant cannot be faulted for taking time, where necessary, to
consult and properly prepare papers before launching an application,
but this must similarly be explicitly set out in the founding papers
and in some way relate to the degree of urgency and complexity of the
I have considered the above
authorities as well as the applicant’s averments in his
founding papers and submissions made by Mr Tjombe on his behalf.
I have similarly considered the arguments of counsel appearing on
behalf of the respondents. Bearing in mind what should be set
out in an urgent application the following is not present in the
There is no proper explanation why,
considering the dire and desperate circumstances alleged to be
present by the applicant, a consultation could only be secured on 17
June 2015 and not earlier. Mr Tjombe submitted that the fact
that the applicant could only secure an appointment with his legal
practitioner on this date cannot be the cause of a complaint.
This is true. But the cause of the complaint is that there is
no explanation why, in view of the urgency contended for, a
consultation could not be secured earlier or even with an alternative
legal practitioner for that matter.
Mr Tjombe further submitted that the
applicant has no readily available transport, and lives in a remote
village some 100km from Coblenz village, which is the nearest
settlement with some semblance of amenities, such as a mobile phone
network or fax machine. In addition it was submitted that the
applicant’s village is about 600km from Windhoek, and it is
also not as if his legal practitioner is on standby to attend to him
immediately. That may be so, but these facts should have been
set out in the founding papers, as part of setting out explicitly the
reasons why the matter was urgent, and not contained in heads of
argument or submissions before court. These ‘facts’
can thus simply not be considered.
There is also no explanation why,
after no response was received to the letter dated 19 June 2015
(where it was specifically stated that urgent legal action will be
instituted should the decision not be reversed) the application was
not instituted then. Instead after 19 June 2015, another letter
was written on
22 June 2015 and a further letter on 29 June
2015. In my opinion when no response was received from the
letter dated 19 June 2015, even though it is important to get as much
documentation as possible for review purposes, the applicant by this
date (bearing in mind his desperate circumstances) should at the very
least have known, and already had the jurisdictional facts available
in order to launch an application for urgent interim interdictory
relief pending review. A record would in any event have been
filed at a later stage;
Also to be considered is the short
time periods that the respondents were initially given to oppose the
application and to file answering papers. The application was
launched on 3 July 2015 and set down for 10 July 2015 literally 5
days from date of institution of the application. The applicant
was evicted on 28 May 2015. The application was served on 8
July 2015, allowing the first to third respondents (the fourth to
eighth respondents not having been served yet) a matter of 1 day to
oppose the application. This application was heard on 30 July
2015 by agreement between the parties, and space had to be allocated
for the hearing in a busy court roll.
It is insufficient to allege that
substantial redress will not be received in due course without
explaining why this is so. It is true, there is a drought in
Namibia, but this does not mean that the applicant could not take
other steps to protect his cattle or his financial interests pending
finalisation of a review application. The explanation to my
mind is simply inadequate. Drought is a nationwide problem that all
farmers are trying to cope with through seeking alternative measures
to maintain their livestock.
In light of the foregoing I hold the
view that the applicant has unfortunately failed to comply with the
provisions in Rule 73(4), and the arguments made on behalf of the
respondents are sound. As such I decline to condone his
non-compliance with the rules of court or to hear this application as
one of urgency. In the result the following order is made:
The application is struck from the roll
Review application is postponed to 3
September 2015 at 08h30 before Parker AJ on the applications roll for
a case management conference.
THE APPLICANT Mr N Tjombe
by Tjombe-Elago Inc
THE FIRST TO
RESPONDENTS Mr J Ncube
by Government Attorney
FOURTH TO EIGHTH
Mr S Rukoro
by Dr. Weder, Kauta & Hoveka Inc.
Diamond Mines (Pty) Ltd and Others v Government of South Africa
(2) SA 279 (T) at 324F-G; Minister
of Land Affairs and Agriculture v D & S Wevell Trust
2008 (2) SA 184 (SCA) at 200 par .
Rule 73(4), read with Rule 73(3)
South African Revenue Services v Hawker Air Services (Pty) Ltd;
South African Revenue Services v Hawker Aviation
2006(4) SA 292 (SCA) at para 9, approved in Shetu
Trading CC v Chair, Tender Board of Namibia
2012(1) NR 162 SC at 173J-174B.
Namibia (Pty) Ltd and Others
2012(1) NR 331 (HC) at par - and the authorities collected
v Commercial Bank of Namibia Ltd and Another
NR 48 (HC) at 50H.
at par .
at par ; Nakanyala
v Inspector-General Namibia
2012 (1) NR 200 at par .
at par ; Wal-Mart
Stores Inc v Chairperson of the Namibian Competition
unreported (case A 61/2011) delivered on 28 April 2011 at par 
and the authorities referred to; Petroneft
International v The Minister of Mines and Energy
unreported (case 24/2011) delivered on 28 April 2011 at par
- and the authorities referred to.
at par  and the authorities referred to there.
Meubelvervaardigers (Edms) Bpk v Makin
1997(4) SA 135 (W); Sheehama
v Inspector General Namibian Police
2006(1) NR 106 (HC) at 109 A-B.