Court name
High Court Main Division
Title

Mbakile v Urayeneza () [2020] NAHCMD 302 (20 July 2020);

Media neutral citation
[2020] NAHCMD 302

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

 

RULING ITO PD 61

 

CASE NO: HC-HC-MD-CIV-MOT-GEN-2020/00169

 

In the matter between:

 

ARCHIE MBAKILE                                                                 1ST APPLICANT

 

ZIBO MBAKILE                                                                       2ND APPLICANT

 

and

 

PATRICE URAYENEZA                                                      1ST RESPONDENT

 

JOEL MWATONGWE                                                         2ND RESPONDENT

 

NATIVE BRICKS (PTY) LTD                                              3RD RESPONDENT

 

STANDARD BANK OF NAMIBIA                                       4TH RESPONDENT

 

 

Neutral Citation:     Mbakile v Urayeneza (HC-HC-MD-CIV-MOT-GEN-2020/00169) [2020] NAHCMD 302 (20 July 2020)

 

CORAM:        MASUKU J

 

Heard:           29 June 2020

Delivered:     20 July 2020

 


RULING


 

MASUKU J:

 

[1]    This is an application for a mandament van spolie, launched by the applicants on an urgent basis. In it, they essentially seek the restoration ante omnia, of the possession and control of premises described as those of Native Bricks (Pty) Ltd, the 3rd respondent and keys of certain trucks described as a Power Tipper Truck, bearing registration number N 155-034 W and a New Holland Front Loader and its keys. They also seek access to a bank account of the company, the 3rd respondent in which they are directors and shareholders with the 1st respondent.

[2]    The application is opposed by the 1st respondent, firstly on the basis that the application is not urgent and secondly, that the applicants failed to prove the elements of the relief they seek as the requirements for the mandament have not been met. Latterly, the 1st respondent argued that the applicants should not be granted a hearing on the doctrine of unclean hands. The 1st respondent also engaged the matter on the merits as well.

Background

[3]    It is apparent that disagreement in the boardroom of Native Bricks (Pty) Ltd, the 3rd respondent, in which the applicants and the 1st respondent are directors and shareholders, has given rise to the present proceedings. The applicants claim that the respondent unlawfully and without sanction of a court, deprived them of the access to the premises of the respondent including the keys of the vehicles mentioned above. It would appear that the 1st respondent also took charge of the 3rd respondent’s bank account, removed the applicants as signatories and transferred the money therein into another account, again without an order of court.

Urgency

[4]    I am satisfied that this matter is urgent, not only by virtue of the nature of the relief sought, but also that the applicants have established urgency in the papers as required in terms of rule 73(4) of the rules. They attempted at the initial stages of the dispute, to resolve the matter amicably without resort to the courts. The attempt to resolve the matter amicably cannot, in the circumstances, be held against the applicants, as it was a proper and reasonable step for them to adopt.

Merits

[5]    The 1st respondent alleges in his papers that he never despoiled the applicants of the property. He lays the blame for this squarely at the door of the Okahandja Municipality and refers to their a letter from the said Municipality, dated 3 June 2020. In reply, the applicants state that this letter was written after the spoliation had taken place and it is accordingly of no moment in the present matter. 

[6]    The applicants further attached a letter in their replying affidavit from the Chief Executive Officer of the Municipality concerned, denying the allegation that the latter was responsible for locking up the premises . The allegations by the 1st respondent in this regard are nothing but a smokescreen, raised by the 1st respondent to set the court on a wild goose chase and I so hold.

[7]    The 1st respondent also alleges that it was not him nor at his behest that the spoliation in respect of the premises took place. He alleges that it is the police who gave instructions that the property be locked up and this locking up seems to be linked to the letter referred to above.

[8]    In reply, the applicants traced an officer, Mr. Aribeb, who it was alleged locked up the premises. He filed an affidavit denying the allegations made about him by the 1st respondent. Mr. Aribeb states in no uncertain terms that ‘I informed Mr. Patrice to use his own initiative, but we didn’t give him permission to locked (sic) the gates or to stop that employees not to report on duty.’  This therefor puts paid the allegation that it was the police that locked or ordered the premises to be locked up. This points inexorably at the 1st respondent. To this extent, it is clear that the 1st respondent despoiled the applicants of the premises and the keys to the vehicles mentioned.

[9]    In argument, Mr. Rukoro sought to put a lot of store on Shaanika And Others v Windhoek City Police and Others,  namely, that the applicants had unclean hands and should for that reason not be heard by the courts as they acted dishonestly. Unfortunately, the alleged acts of dishonesty are raised in the heads of argument and were not squarely raised for the applicants to deal with them in the manner they appear.

[10]    When we speak of dishonesty in these circumstances, it must be in clear-cut cases and where there is no dispute regarding the impeachable conduct imputed to the applicants. Where the conduct alleged remains a mere allegation by the applicant and which is or can be gainsaid, I am of the view that the argument falls far short of constituting a bar to an applicant to approach the court in order to obtain the relief of a mandamus van spolie. This must be viewed against the constitutional imperatives of people being entitled to approach the courts to seek redress. 

[11]    There is also the issue of the bank account with which the 1st respondent interfered. He alleges that he removed the funds and placed them in another account with a different bank for safe-keeping and away from the reach of the applicants. This he admits and in law, it amounts to self-help. There is no reason why an order in that regard cannot be granted. 

[12]    In the premises, it appears to me that although the papers of the applicant were inelegantly drafted, a case for the granting of a spoliation order is made out. The 1st respondent took away the keys to the vehicles mentioned and also locked up the premises. The possession must be restored by the respondents to the applicant forthwith.

Order 

1.    The First Respondent, Mr. Patrice Urayeneza is ordered to forthwith restore possession and control of the premises of Native Bricks (Pty) Ltd to the Applicants.

2.    The First Respondent is ordered to forthwith restore possession of the keys to the following vehicles to the Applicants, namely keys to a Tipper Truck bearing registration number N 155-034 W and a New Holland Front Loader with its keys to the Applicants.

3.    The Fifth Respondent be and is hereby ordered to allow the Applicants access to the business account of Native Bricks (Pty) Ltd, held under account number 6000220141 at the Okahandja Branch.

4.    The First Respondent is interdicted and restrained from interfering with the involvement of the Applicants in the operations and management of the Third Respondent, including its bank accounts.

5.    The First Respondent is interdicted from paying out money from the Native Bricks (Pty) Ltd account, held with Standard Bank without the involvement of the Applicants. 
6.    First Respondent is ordered to pay the costs of this application.

 

 

 

____________

T.S. Masuku

Judge

 

 

APPEARANCES:

 

APPLICANT:             V. Uanivi

                                  Of Uanivi Gaes Incorporated

                                  Windhoek

.

RESPONDENT:       S. Rukoro

Instructed by Pack Law Chambers

                                 Windhoek

 

 

 

 


[1] Letter dated 3 June 2020 marked Annexure AM 1 to the replying affidavit.

[2] Para 10.6 of the applicants’ replying affidavit.

[3] SA 35/2010 NASC 9 July 2013.

[4] Article 12 of the Namibian Constitution.