Court name
High Court Main Division
Case number
APPEAL 351 of 2015
Case name
Government of the Republic of Namibia v Matjila
Media neutral citation
[2016] NAHCMD 63
Judge
Angula J










REPUBLIC
OF NAMIBIA


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


JUDGEMENT


CASE
NO. A 351/15


DATE:
08 MARCH 2016


NOT
REPORTABLE


In
the matter between:


GOVERNMENT
OF THE REPUBLIC OF
NAMIBIA...........................................1ST
APPLICANT


MINISTER
OF HIGHER EDUCATION, TRAINING & INNOVATION............2ND
APPLICANT


And


MR
ANDREW
MATJILA.......................................................................................1ST
RESPONDENT


MS
ROLENE
BOER...............................................................................................2ND
RESPONDENT


MS
DORA
LEBEREKI-THLABANELLA..........................................................3RD
RESPONDENT


MR
PAUL
HELMUT..............................................................................................4TH
RESPONDENT


TIA
PROTECTION SERVICES
CC....................................................................5TH
RESPONDENT


MR
WALTER
LOUW.............................................................................................6TH
RESPONDENT


Neutral
citation
Government of the
Republic of Namibia
v Matjila (A
351/2015) [2016] NAHCMD 63 (8 March 2016)


Coram​:
ANGULA, DJP


Heard​:
12 February 2016


Delivered:
8 March 2016


Flynote:
 
Urgent application for a spoliation order. 
Termination of a lease agreement and ownership of the property raised
by the respondents as defence to an application for a spoliation
order.


Summary:
 The applicants are occupying a proper registered in the name of
a Trust in terms of an oral lease agreement entered into on or about
2008 and are further conduct avocational training center for people
with disabilities.  On about the same time discussions took
place between the parties with the aim of transferring the property
to the applicants but such process stalled during 2009.  On 25
June 2015 the trustees, through the Trust’s legal practitioner
gave notice of termination of the lease and further advised that the
property has been sold and that the Trust was under obligation to
handover the vacant property to the purchaser and therefore the
applicants must vacate the property by the end of November 2015. 
The Attorney- General responded to the letter pointing out that the
Government shall not vacate its own property. On 5 December 2015 the
first and the second respondent attended at the
property and ordered the applicants employees or people who were
occupying the property on behalf of the applicants to vacate the
property; they then proceeded to cut the padlocks securing access to
the premises and the buildings, with a bolt cutter and replaced it
with their own padlocks and then placed security guards on the
premises whose aim was to prohibit access to the premises by the
applicants and/or their employees.  On 7 December 2015 the
applicants’ legal practitioner of record addressed a letter to
the respondents’ legal practitioner of record requesting him to
advise the respondents to stop and desist with their conducts. 
The legal practitioner for the respondents’ responded saying
that the lease between the parties has been terminated and
accordingly his clients were thus entitled to lock the gates and
place guards at the gates.  The applicants then
launched
this applications seeking for a spoliation order.


Held
that by its own nature spoliation is urgent.  In the instant
matter the self-admitted conducts of the respondents constitutes the
taking the laws into their own hands by changing the padlocks to the
premises thereby denying the applicants and their employees access to
the property without due process of law.  Furthermore the people
affected by the respondents conducts were the physical challenge and
as such most vulnerable member of the society who were locked out
from their only place of abode without access to their personal
belonging.


Held
further, that the applicants have successfully discharged the
onus on them and have established that they were in a peaceful and
undisturbed possession of the property.


Held
further
that by changing
the padlocks to the doors or gates property the respondents
wrongfully and unlawfully despoiled the applicants’ possession
of the premises and their movables on the premises without due
process of law.  Accordingly the applicants are entitled to an
order restoring the status
quo
ante
.


 


ORDER


 


 


1.
 The spoliation order is confirmed.


2.
The offending paragraphs affidavit namely,
2.4, 2.5, 3.4, and 3.5 of the answering affidavit, are struck from
record.


3.   
The respondents are ordered to pay the
applicants’ costs occasioned by the affidavit filed by their
legal practitioner of record.


4.   
The respondents are ordered to pay the
applicants’ costs such costs to include costs of one
instructing counsel and one instructed counsel.


JUDGMENT


ANGULA,
DJP:


Background


[1] 
I have before me a spoliation application. The matter came before me
ex parte on 14 December 2015 on which date I granted a rule
nisi with a return date on 22nd January 2016.


 


[2] 
The applicants are well known and as such do not require any
introduction.  The first to fourth respondents are sued in their
capacities as trustees of Ehafo Trust (“
the
Trust
).  The Trust was
established during February 1995.  According to the Trust’s
document the objects of the Trust are amongst others, to take over
the then Association for the Handicapped as a going concern; to
introduce and promote measures for quality [life] for disabled
persons and to promote measure for the rehabilitation of disabled
persons.  The fifth respondent is a security services providing
entity which was tasked by the respondents to guard the premises
which forms the subject matter of this application.


 


[3]
The deponent to the founding affidavit filed on behalf of the
applicant is the Permanent Secretary for the second applicant. 
Mr Matjila, the first respondent, deposed to the opposing affidavit
on behalf of the respondents.  He dealt in detail about the
historic ownership of Erf 235, Klein Windhoek (“
the
property or the premises
).  It
appears from the papers that there is a dispute between the parties
about the ownership of the property, I must immediately point out
that ownership is not an issue this court is called upon to determine
in these proceedings.


[4]
One of the Trust’s activities was the operating or running a
Vocational Training Centre for disabled people (“the Centre”).
 It is common course that from about 2007 the applicants and the
trustees engaged in discussions aimed at the applicants to either
financially assist the trustees with the operation of the Centre or
to take over the operation of the Centre due to the fact that the
Trust had run out of money to continue with the activities of the
Centre in particular to continue to employ disabled people so as to
provide them with an opportunity of employment and to facilitate the
meaningful activities to enable such disabled people to earn an
income.  As an interim measure the applicants agreed to give the
Trust an annual allowance of N$1 million to enable the Trust to
continue with the operation of the Centre.  In the meantime
discussion between the parties continued for the possibility of the
applicants to take over the Centre including the property, however,
it would appear that such discussion somehow stalled sometime on or
about 2009.


[5]
It is common cause that during March 2007 the Government took over
the operation of the Centre and took occupation of the premises and
continued to be in occupation ever since.  On the 29 June 2015
the respondents’ trustees, through their legal representative,
gave a written notice to the applicants to vacate the property by the
end of November 2015 advising further that the property has been
sold. Further follow-up letters were addressed to the applicants
during July and August 2015.  On 25 August 2015 the Attorney
General responded to the letters from the legal practitioner for the
respondents in which he,
inter alia,
stated that the Government “
shall not
vacate its own property
.


[6] 
It is further common cause that on 5 December 2015 the first and
second respondents accompanied by security guards from the 5
th
respondent, attended at the property and ordered the applicants’
employees or people who were occupying the property on behalf of the
applicants to vacate the property;  they then cut off the
padlocks on the doors of the buildings or gates with a bolt cutter
and replaced it with their own padlocks and  further placed
security guards on the premises whose aim was to prohibit access to
the premises by the applicants and/or their employees.


[7
] On 7 December 2015 the applicants’ legal practitioner of
record addressed a letter to the respondents’ legal
practitioner of record requesting him to advise the respondents to
stop and desist from their conducts.  The legal practitioner for
the respondents’ responded saying that the lease between the
parties has been terminated and accordingly his clients were thus
entitled to lock the gates and place guards at the gates.  The
applicants then launched this application on 11 December 2015 saying
that they have been in peaceful occupation of the property and that
they have been unlawfully dispossessed of such possession and
occupation by the respondents.  I granted the rule
nisi
on 14 December 2015.  The return date on 22 January 2016.


[8]
After the application papers were served and the rule
nisi
issued, Mr Vaatz who says that he has been acting for the Trust and
not for the respondents, and that he has no instructions to act on
behalf of the respondents, filed an affidavit on 18 December 2015.
 The status of this affidavit is a subject of attack by the
applicants.  I will revert to this issue later in this
judgments.


Points
in
limine


[9]
Both parties have raised points
in
limine. I
prefer to first deal with the points
in
limine
raised on behalf of the respondents.  I will thereafter deal
with points
in limine
raised on behalf of the applicants.


Urgency


[10] 
The respondents contends that there was no urgency to move the
application on 14 December 2015, three days before most of the
attorneys’ firms, the courts and the deputy-sheriff office’s
closed for the Festive Season’s recess.  The respondents
say that the applicants were notified as earlier as 29 June 2015 that
the property had been sold and requested to vacate the property. 
Furthermore that at end of November 2015 the vocational school
conducted from two sheds situated on the property had closed down its
activities for the Festive Season.  Accordingly so the argument
goes, there was no need to bring the application on an urgent basis. 
The respondents however admit that they placed padlocks on the
buildings to secure access to the buildings during the recess in
order to prevent unauthorised person enter the buildings.  In
justification for their conducts the respondents state that if the
applicant required access to the property, they could have requested
the respondents to allow access to the premises or requested to be
provided with a copy of the keys to the property.


[11] 
The following facts are advanced on behalf of the applicants in
support of the contention that the matter is urgent:  urgency,
is by its very nature, present in matters involving spoliation; the
application was launched within three court days from the date the
alleged spoliation took place; that there are presently about 66
employees who are unable to access their workstations and who are
unable to carry out their works as a result of the spoliation by the
respondents; that the employees personal belongings are on the
property and are unable to access such properties; and finally that
the premises is utilised as a vocational training for people with
disabilities that the Centre provides a caring environment for such
disabled people from which they have been denied access through the
conducts of the respondents.


[12] 
In my judgement two factors make this matter urgent; the
self-admitted conducts of the respondents constitute the taking of
the laws into their own hands by changing the padlocks on the doors
or gates to the premises thereby denying the applicants and their
employees or trainees access to the property without due process of
law; and secondly the persons affected by the respondents’
conducts are the physically challenged and most vulnerable members of
our society being unlawfully locked out from the only safe place of
abode in Windhoek without access to their personal belongings. 
I consider it unconscionable and highly inconsiderate to for the
respondents to lock out physical disable people from their only place
of safety and comfort.  In my view the facts set out made this
matter urgent and the applicants were entitled to launch the
application as a matter of urgency. It follows therefore that the
respondents’ point
in limine
in this respect falls to be dismissed.


Non-service
of the application papers and the court order on the respondents


[13]
 Mr Vaatz for the respondents submits that, neither the
application papers nor the court order was served on any of the
respondents;  that, only the court order was served at his
office on 19 January 2016.  Relying on the decision of
Knouwds
NO.v. Josea and Another
[1].
where it was held that where there had been a failure of service of
papers on the affected party and even though such party became aware
of the proceedings and entered appearance to defend, it matters not,
a proceeding which has taken place without service, is a nullity and
it is not competent for a court to condone such proceedings. 
Accordingly, Mr Vaatz submits that this application should be
dismissed on that ground alone.  In countering Mr Vaatz’s
submission, Mr Phatela for the applicants refers to the case of
Witvlei
Meat (Pty) Ltd and Others v The Disciplinary Committee for the Legal
Practitioners and Others
[2]
He submits that the facts in the
Knouwds
matter are distinguishable from the facts in the present matter in
that, the
Knouwds
application was concerned with a status of a person namely effect of
sequestration on the status of the respondent.  He points out
that in the
Witvlei
matter, the court held that any defect in the service would be cured
by the entering of opposition by the respondent; further that the
fundamental purpose of service is the bringing the proceedings 
to the attention of the party; and that if a the party proceeds to
defend the matter or files a notice to oppose through a legal
representative the fundamental purpose for service has been met,
particularly where the legal representative has been served with the
papers.  I associate myself with court’s view in the
Witvlei
matter.  What was said in the
Witvlei
matter is applicable in this matter. In this matter there was an
attempt to serve the papers on the office of legal representative for
the respondents but could not be served because the office was closed
for the Festive Seasons recess.  However the rule nisi was serve
on the offices of the legal representative for the respondents. 
After such service the legal representative for the respondents
proceeded to obtain a copy of the application from the Registrar’s
office after which he filed a notice to oppose together with an
answering affidavit before the return date of the rule
nisi
On the return date the rule was extended in order to allow the
applicants to file their replying affidavit and for counsel to file
heads of arguments. Relying on
Witvlei
judgment, I am satisfied that the fundamental purpose of service,
namely to bring the proceedings to the attention of the respondents
have been met in this matter. Accordingly this point
in
limine

likewise falls to be dismissed.


Failure
by the applicants to present to the courts with all relevant facts


[14]
Mr Vaatz submits that the founding affidavit filed on behalf of
applicants is unsatisfactory and should not be used as foundation for
a court order.  He submits further that both the founding
affidavit as well as the replying affidavits there are allegations
which could not have been within the deponents’ knowledge. 
He then went on to point out those facts which he contends are not
within the deponent’s knowledge of the deponents or that such
alleged facts are untrue.  He points out
that
the applicants failed to inform the court that none of the applicants
had ever entered into an agreement of sale with the respondents in
respect of the property; that the applicants did not produce a deed
of transfer of the property indicating that they are the registered
owner of the property;  that the applicants failed to place
before court the minutes of the meeting between the officials of the
second applicant and the respondents dated 30 April 2010 where it was
inter alia
recorded that the Ehafo Board of Trustees are still the rightful
owners of the property;  that the applicants failed to place
before court a letter dated 25 June 2015 from the legal practitioner
for the respondents informing the applicants that the property has
been sold and that the applicants should vacated the property as well
as subsequent letters on the same subject-matter; that the applicants
failed to place before court the inter-ministerial committee’s
report on Ehafo Trust which recommended amongst other things that the
Trust should consider to dispose the current property to any
interested commercial entity in order to enable it to generate funds
to properly run the Centre; that the Government should donate a
portion of Ramatex facility to the Trust so that the Trust can
continue with its activities at Ramatex facility; and finally that
the Government should in future resist from taking over institutions
started by private citizens to provide services to certain group of
needy persons. It is then finally submitted that as a result of
failure to place this information before court, the court was not
correctly informed when the rule nisi order was issued.


[15] 
In my view all the facts or information detailed above would have
been relevant had the question of ownership of the property been the
issue for determination of this application.  As pointed earlier
in this judgment the issue of ownership of the property from which
the applicant has been spoliated is not
relevant
in these proceedings.  In my view the applicants were within
their right to disregard those facts and not to unnecessarily burden
the court with facts which are not necessary for determination of the
issue before court.  I am however satisfied that on the core
issue of spoliation, the affidavits filed on behalf of the applicants
make out a case for the relief sought.  In so far as these
complains are intended to constitute a combined point
in
limine
, they are dismissed for lack of
substance.  In the result this point
in
limine
equally falls to be dismissed. 


[16] 
The fourth point in
limine
raised by Mr Vaatz on behalf of the respondent is that of non-joinder
of the purchaser of the property.  Firstly the point is not
properly taken on papers.  It is raised for the first time in
the heads of argument.  In the heads of argument it is merely
stated that it is trite law that every person who has a material
interest in the proceedings before court must be joined in such
proceedings; that the purchaser of the property in this matter should
have been joined.  It is then pointed out that to the
respondents as sellers were under a legal obligation to handover the
property to the purchaser, vacant.  It would appear from the
papers before me that the purchaser has not taken occupation of the
property yet.  It would therefore appear to me that the
purchaser had no interest in the proceedings because all what the
purchaser was expecting to receive was a delivery of a vacant
property.  It follows therefore in my view that the purchaser
did not have any interest in the proceedings.  There is
accordingly no merit in this point
in
limine and
is similarly dismissed.


[17]
I now proceed to deal with the points
in
limine
raised on behalf of the
applicants.


[18] 
In the replying affidavit filed on behalf of the applicants notice
was given by the applicants of their intention to apply to strike out
certain portions in the respondents’ answering affidavit which
the applicants considered to contain scandalous, vexatious and/or
irrelevant matters. But before dealing with each such alleged
offending paragraphs as identified by counsel for the applicants, I
consider it necessary to briefly set out the legal principles against
which the alleged scandalous vexatious and/or irrelevant matters are
to be determined.


[19] 
Rule 58 of the Rules of this court stipulates that where a pleading
contains averments which are scandalous, vexatious or irrelevant, the
opposing party may make an application to  court to strike out
such averments but that the court may not grant the relief sought
unless it is satisfied that the applicant will be prejudiced in the
conduct of his or her defence if  such application is not
granted.  In the matter of
Vaatz
v Law Society of Namibia
[3]
the meanings of the words scandalous, vexatious and irrelevant
matters were explained as follows:


Scandalous
matter – allegations which may or may not be relevant, but
which are so worded as to be abusive or defamatory.  Vexatious
matter – allegations which may or may not be relevant, but are
so worded as to convey an intention to harass or annoy. 
Irrelevant matter – allegations which do not apply to the
matter in hand and do not contribute one way or the other to a
decision of such matter”
[4].


 


[20] 
In this context it is also necessary to keep in mind in terms of the
rules of the court that in motion proceedings a party is required to
answer to each and every allegation made by the other party and if
such party fail to do so he or she would do so at his/her own risk. 
The main consideration for not leaving such statements unchallenged
has been said to be that if the other party is required to deal with
scandalous or irrelevant matters the main issue could be side-tracked
but on the other hand if such statements are left unanswered, the
innocent party may be left defamed; that furthermore to leave such
statements unanswered would be prejudicial to the innocent party. 
Keeping the foregoing principles in mind I will now proceed to deal
with the specific alleged offending statements.


 


[21] 
In paragraph 2.4 the following is stated:


Our
lawyer, Andreas Vaatz, who has been assisting the Ehafo Trust as from
January 2009, advised the Trustees that the duress exercised by the
First and Second Applicants in collusion with the worker and the
trade union officials to compel the Trustees to draw up and sign the
resolution of the 7
th
of March 2007 (Annexure “C” to application) as more fully
appears from the letter of the Second Respondent dated 8
th
of March (Annexure “B”) which literally orders the Board
of Trustees to hand over the assets of the Trust – at that time
worth more than N$18 000 000,00 – to the Government
was illegal and that anything done under such duress is illegal and
not enforceable and that in any event the takeover as demanded by the
Government was in conflict with Section 9 of the Trust Deed, which
provides that if the Trust wishes to dissolve, the assets must be
handed over to “an organization in Namibia having similar
objects to the Trust”.


 


[22]
 Having read the minutes of the meetings between the officials
of the applicants and the trustees as well as the correspondences
exchanged between or on behalf of the parties it leave me with the
impression it was conducted  in a spirit of co-operation and in
a honest effort by the parties to co-operate and to find a solution
to what appeared at that time to be rather a dire situation faced by
trustees with regard to precarious financial future operation of the
Centre.  In the light of that impression I consider it, at best,

to be vexations to label such discussions and
attempt to find a solution as an exercise of duress by the applicants
upon the trustees or to accused the applicants that they were acting
in collusion with the workers.  The trustees on their own
volition approached the applicants with a request to assist the
Trust.  It appears from the written communication between the
parties that the takeover of the Trust’s operation and
infrastructures was initiated by the trustees.  Annexure B being
lettered from the Permanent Secretary of Education clearly states
that
;  “after careful
consideration of the pleas of the Chairman of Ehafo Trust and the
plight [of the] workers of the Trust [the Government of the Republic
on Namibia] has decided on the following, that the Board of Ehafo
Trust takes a resolution to hand over assets and liabilities of the
Trust to the Government”. 
The
letter was merely an offer from the Government as it clearly appears
from its concluding paragraph which reads:  “
Hoping
that the Board of Ehafo Trust would take this offer in the very
serious light for the benefit of its employees and everyone
involved”
.  It appears further
from the papers that the take-over was an option discussed and agreed
upon by the parties and it was only after the legal advice was
obtained that it was pointed out that the take-over option was not
possible because of the terms of the dissolution clause of the Trust
Deed.  In any event I consider the allegations in the paragraph
in question to be irrelevant in the context of the issue of
spoliation before court.  Paragraph is 2.4 is accordingly struck
from the record with costs.


[23] 
Paragraphs 2.5 , 3.4, 3.5 and 3.6 read:


2.5
 Our lawyer also stated that any such “handover”
must be regulated in a comprehensive written agreement signed by both
parties, i.e. the Trust and the Government in which all aspects
relating to such a transfer are regulated, such as whether the
Government pays to the Trust the difference between the value of the
assets (N$18 000 000,00) and the amount which the
Government alleged to have disbursed on behalf of the Trust
(apparently N$3 500 000,00) and whether the Government
takes over all employees of Ehafo and all other responsibilities.’


3.4
 On that Friday, the 2
nd
of March 2007, we met with the workers committee at 10:00 in the
small boardroom of Ehafo and reported to them about the positive
outcome of the discussions we held with the PM as well as the
Permanent Secretary.  The chairperson of the workers committee
wanted to know why we didn’t just hand over Ehafo to the
Government.  I was taken aback because this was the first time
that the notion of a handover of Ehafo to the Government emerged. 
We proposed to the workers that we were prepared to give each worker
N$100,00 for the weekend and that we would then review the situation
the following Monday after discussions with the Government
officials.’


3.5
 An Ehafo official was then given a cheque to cash at the bank,
but we soon learned that he was prevented from leaving the premises
by workers who had locked the gates.  Then there was an
unexpected demonstration by the workers outside of the Ehafo office,
demanding that we hand over Ehafo to the Government.  I then
phoned the PM himself to inform him of the situation at Ehafo
whereupon be said he would phone a Mr Tjombumbi of the disability
desk in the office of the PM to come and call off the strike. 
It was when we heard that Mr Tjombumbi was already on the premises
agitating the workers to strike.  We call Mr Tjombumbi into our
office and remonstrated with him about what he was doing, which he
denied.  He later spoke to the workers to allow an official to
go to the bank.  The workers were later given each an amount of
N$100,00 for the weekend, awaiting the outcome of the Monday meeting
with Government officials.’


3.6
 At this stage, I must highlight a very traumatic incident I
experienced at Ehafo.  During the meeting with the workers, it
became quite clear that I was being kept hostage.  Gates were
locked and the trellis-gate of the office was also locked so that no
one could go out.  That day, I could not go home for lunch and
was sure that something very serious was going to happen to me
personally.  The workers were highly strung and watched me like
a pack of wild dogs about to pounce on prey.  I could not
believe that people with disabilities could adapt such attitudes.’


[24] 
In my view the contents of these paragraphs are not scandalous or
vexations.  It is clearly irrelevant if considered in the
context of a spoliation application.  It is irrelevant in that
it does not contribute one way or the other to the resolution of this
matter.  It is accordingly struck from the record.


[25] 
Paragraph 11. Reads:


It
is correct that the workers came every day to the premises, but they
were not working as such any real work for the Applicants.  They
merely signed an attendance register and then disappeared again. 
The presence of the workers on the site cannot be treated as proof
that the Applicant was exercising any peaceful possession or control
over the premises.  What is proveN though is that the tenants of
the premises, the said Chinese company was working every day on the
garden section of the premises which was by far the biggest piece of
land and producing vegetables, that was the only production that was
taking place on the premises and they sold whatever vegetables they
produced and paid a regular rent to the Trust.  In fact, the
workers did not come to the premises in the period 2007 - 2008 at
all.  They started to come to the premises again in 2009. 
The only persons from the 1
st
& 2
nd
Applicants were eleven persons who were working in the training shed
managing the training of student workers.’


[26] 
In my view this paragraph is a legitimate response to what is stated
in the paragraph 7 of the applicants founding affidavit.  In my
view the paragraph cannot be said to be scandalous, vexatious or
irrelevant. The respondents are required by the rules to respond to
each and every allegations made by the applicants. The application to
strike it is accordingly declined.


[27]
The next point
in limine
raised on behalf of the applicants was an objection to the unstamped
lease agreement which was attached to the respondents’
affidavit allegedly in contravention of the Stamp Duties Act, 1993. 
This point was not persisted with after Mr Vaatz produced a copy of
the lease agreement indicating that the lease agreement had been duly
stamped in compliance with the Stamp Duties Act; 1993.


[28]
The next issue challenged by Mr Phatela for the applicants, was the
status of the affidavit filed by Mr Vaatz, on 18 December 2015,
before he was instructed by the trustees to act on their behalf. 
In that affidavit Mr Vaatz points out that he had no instruction to
act on behalf of any of the respondents; that he had never been the
lawyer for the trustees of Ehafo Trust, therefore there was no
justification by the lawyers for the applicants to have tried to
serve the application papers at his office.  He went on to say
that notwithstanding the lack of instructions from the respondents he
felt obliged to place before court facts which he considered
important to be brought to the attention of the court.


[29] 
I accept the good intention of Mr Vaatz however procedurally and in
terms of the rules his affidavit does not fit anywhere in the
application.  He is not a party to the proceedings and on his
own admission at the time he deposed to the affidavit he did not have
instructions from the respondents to depose to such an affidavit.
 Under these circumstance I have decided not have regard to the
content of Mr Vaatz’s affidavit in considering the issues
before me.  However the affidavit have a costs implication for
the parties which I will deal with when considering the costs aspect
at the end of this judgment.


[30]
 I now proceed to deal with the merits of the case. But before
considering the merits it is necessary to set out the legal
principles which are applicable to a spoliation application such as
this one.


[31] 
It is trite that in the spoliation application the applicants bear
the onus to prove that they had been in peaceful and undisturbed
possession of the property and that they have been despoiled
therefrom.  Furthermore the principles were recently collected
by this court in an unreported judgment of
Kandombo
v The Minister of Land Reform
delivered
by this court on 16 January 2016 Case No. A352/2015.  The
principles are as follows:


1. 
In spoliation proceedings it is only necessary to prove that the
applicant was in possession of a thing (movable, immovable or
incorporeal) and that there was a forcible or wrongful interference
with his or her possession of that thing;


2. 
The purpose of the remedy is to preserve law and order and to
discourage persons from taking the law into their own hands;


3. 
To give effect to the objectives of the remedy it is necessary for
the status
quo ante
to be restored until such time a court has assessed the relative
merits of each party;


4.
The lawfulness or otherwise of the applicant’s possession of
the thing does not fall for consideration during the hearing of the
spoliation application, the question of ownership in the thing is
equally not considered;


5. 
The applicant for a spoliation order must establish that he/she was
in peaceful and undisturbed possession of the thing at the time
he/she was deprived of possession;


6. 
The words ‘peaceful and undisturbed’ possession mean
sufficient stable or durable possession for the law to take
cognisance; and


7. 
As a form of remedy spoliation is not concerned with the protection
of rights “in the widest sense”.’


[32]
 It is common cause between the parties that following
negotiations between the parties during 2007 to 2009 the applicants
took over the operation of the Centre which is situated on the
property.  The applicants also took occupation of the premises
and also took over the former employees of the Trust.  The
respondents admit that the second applicant is operating a vocational
training centre on the property under an oral or implied lease
agreement then existing between the parties; that such relationship
continued for a number of years during which the second respondent
paid the Trust an annual fee of N$1 million.  However the
respondents state that the trustees acting on behalf of the Trust as
owner of property, they were entitled to terminate the lease
agreement between the parties by giving notice of such termination. 
They continue to say that on 29 June 2015 they gave the applicants a
written notice of termination of the lease indicating that the
property has been sold and requesting the applicants to vacate the
property by the end of November 2015.  It is not disputed that
on 5 December 2015 the first and second respondents accompanied by
guards from the 5
th
respondent, the security entity,  attended at the property and
ordered the applicants employees or people who were occupying the
property on behalf of the applicants to vacate the property; that
they proceeded to cut the padlocks securing access to the premises
and the buildings,  with a bolt cutter and replaced it with
their own padlocks and then placed security guards on the premises
whose aim was to prohibit entrance to the premises by the applicants
and/or their employees.


[33]
 On 7 December 2015 the applicants’ legal practitioners of
record addressed a letter to the respondents’ legal
practitioner of record requesting him to advise the respondents to
stop with and desist from their conducts.  The legal
practitioner for respondents’ then replied on behalf of the
respondents saying that his clients were entitled to lock the gates
and place guards at the gates.  The applicant then launched this
application on 11 December 2015.


[34] 
Mr Vaatz requests that before the court deals with the issue of
spoliation issue,  the court should first make a decision on two
issues; firstly whether the Trust is the owner of the property; and
secondly whether the applicants have a clear right to occupy the
property.


[35]
 With regard to the issue of ownership of the property, it is
trite law in a spoliation application the question of ownership in
the property does not fall for consideration.  [5]
It has been held that in an application for spoliation order the
court is not called upon to decide what, apart from possession, the
rights of the parties to the property spoliated were before the act
of spoliation took place and that the court merely orders that the
status
quo
ante

be restored
.
 [6] 
 The applicants in this application are not required to prove
their ownership in the property or disprove the respondents’
ownership in the property; all what is required from the applicants
is to prove that they were in peaceful and undisturbed possession of
the property and that they have been despoiled from such possession,
in order to succeed with the spoliation application.  In the
light of this clear and well established legal position Mr Vaatz
first request or point in this regard cannot prevail and stands to be
rejected.


[36] 
As to Mr Vaatz second point whether the application have a clear
right to occupy the property;  the legal position is clear that
it is irrelevant whether the respondents have a stronger right of
possession or not. It is the actual possession which is protected and
not the right to possession.[7] 
In this connection Mr Vaatz points out that the respondents’
admit that the applicants did not have the right to possess or use
the whole property which is apparently 37 729 square meters but that
the applicants’ possession was only in respect of about 3 500
square metres of the property.  It is then argued that the
applicant’s right of occupation of that portion of the property
has been terminated and once the termination took effect then the
applicants no longer have a right to stay on the premises.  In
support of this proposition Mr. Vaatz referred to the judgment of
Maritz JA in the case of
Kuiri
v. Kandjoze
[8]
In that matter the appellants (applicants in the court a
quo)
had leased the premises from the respondent they had in turn sub-let
the premises to a third party.  The sub-tenant then terminated
the lease and handover the key to the premises to the appellant’s
son who continued to stay on the premises.  Thereafter the
respondent put padlocks on the door of the premises.  The court
then stated at para 14 that:


The
appellants’ case is therefore not that they had been spoliated
during the currency of the lease, but that it happened after the
termination thereof
.  The court then
proceeded at para. 15 to say that [
In De
Beer v. First Investments
1980 (3) SA.
1087 (w) at 1092 (H) Coetzee J emphasised that a “on
termination of a lease the lessee’s right to the use and
enjoyment of the property leases absolutely and he is bound to
restore the property to the leaser”
.’


[37] 
The above quotation appears to be the basis of Mr Vaatz’s
submission.  As a statement of law it is correct but it does not
deal with the lessor’s right where the lessee remains in
occupation or possession of the property after termination of the
lease.  Is the lessor then entitled to put padlocks on the doors
to the premises?  The answer is clearly “
No.
 Because such act would amount to self-help.  The court
then went on to say at para 18 page 470 at A:


that
respondents did not have keys to the building and, in dispossessing
the appellant on 2 September 2006, were constrained to put padlocks
on the doors; in doing so, they despoiled the second appellant’s
possession of the premises and movables therein illicitly i.e in
manner which the law will not countenance
.’


[38]
 This is exactly what happened in the instant matter.  The
applicants were in physical possession of the property through their
employees, the respondents despoiled the applicants’ possession
of the property by cutting the padlocks to the premises with a bolt
cutter and replacing the applicants’ padlocks with their own
padlocks and then ordered the employees of the applicants off the
premises and placed their own guards on the property to guard it. The
court is not called upon to determine the exact location of the area
which the applicants had occupied prior to the spoliation, all what
the court is required to do is to order the status
quo
ante be
restored, whatever the area of occupation might have been prior to
the spoliation.  In summary and in response to Mr Vaatz two
points the position legal is this: neither ownership in the property
nor the termination of the lease by the lessor would constitute a
defence to the application by the occupier of the property, for a
spoliation order.


[39]
 I am satisfied that the applicants have established that they
were in peaceful and undisturbed possession of the property and that
they were unlawfully and wrongfully dispossessed on such possession
by the respondents.  Accordingly they are entitled to an order
restoring the status
quo ante.


Costs


[40] 
What remains is the question of costs.  I indicated earlier in
the judgment that I would deal with costs occasioned by the affidavit
deposed to and filed by Mr Vaatz before he was instructed to act on
behalf of the respondents.  Mr Phatela argued that the content
of the affidavit is irrelevant and prejudicial to the applicants. 
The respondents did not disassociate themselves from the affidavit;
that they approved or acquiesced themselves with the Mr Vaatz’s
affidavit appears to be borne out by the fact that they thereafter
instructed him to act on their behalf.  Under these circumstance
I cannot see any reason why the respondents should not be ordered to
bear the applicants costs occasioned by Mr Vaatz’s affidavit.


[41]
Mr Phatela applied for the court to grant a costs order on attorney
and client scale.  He submits that the unlawful conducts of the
respondent were perpetrated while being represented by an experience
and a legal practitioner.  I do not think it would be a proper
exercise of discretion to penalise a litigant for the wrong advice he
might have received from his legal representative whatever the
experience or seniority of such a legal practitioner.  The
application for costs on attorney and client costs is refused and the
applicants are awarded costs on party and party costs, such cost to
include costs of one instructing counsel and one instructed counsel.


[42]
In the result I make the following order:


1.   
The spoliation orders is confirmed;


2.   
The offending paragraphs namely 2.4, 2.5,
3.4 and 3.5 are struck from record;


3.   
The respondents are order to pay the
applicants’ costs occasioned by the affidavit filed by their
legal practitioner of record.; and


4.   
The respondents are ordered pay the
applicants’ legal costs such cost to include the costs of one
instructing counsel and one instructed
counsel­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­



H Angula


Deputy-Judge
President


APPEARANCES


1st
& 2nd


APPLICANTS:
Mr Phatela


Instructed
by the Government Attorney


1st,
2nd, 3rd, 4th, & 6th


RESPONDENTS:
Mr A Vaatz



Instructed
by Andreas Vaatz & Partners



[1]
2007
(2) NRL 792.




[2]
2013 (1)NR 245 (HC).




[4]
Vaatz
v Law Society of Namibia

1990 NR 332 at pages 334 to 335 J to A.




[5]
Kandombo
case supra
.




[6]
Hiember
v. Stuckey

1946 AD 1049 at 1053.




[7]
Harms,
Amlers Precedents of Pleadings
,
3 ed at p. 276.




[8]
2009
(2) NR447 at 467.