Court name
High Court
Case number
APPEAL 340 of 2000
Case name
Transnamib Holdings Limited v Venter
Media neutral citation
[2000] NAHC 28




























TRANSNAMIR
HOLDINGS

I .TT vs .TOHAN VENTER


A.
340/2000












Levy. A J
2000-12-05























Vindicatory
action - Defence of lack of urgency
lis
pendens,
non-joinder,
factual dispute dismissed.

























Case No.: A.
340/2000





IN
THE HIGH COURT OF NAMIBIA




















In
the matter between:















TRANSNAMIB
HOLDINGS LIMITED
APPLICANT



and



JOHAN
VENTER
RESPONDENT







CORAM:
LEVY,



AJ Heard on:
27
th
November 2000 Delivered on: 5
th
December 2000



JUDGMENT


LEVY,AJ:
This is the return day of a
rule
nisi
granted
on 17
th
November 2000.











Applicant is
represented by Mr P J van L Henning, SC duly assisted by Mr P Ellis
and respondent is represented by Mr R Heathcote.











On 15th
November 2000, applicant came to Court as a matter of urgency and on
17
th
November 2000 this Court granted the following
rule
nisi,
calling
upon respondent to show cause, if any, on Monday, 27
th
November 2000, why:















"(i) he
should not be ejected forthwith from the Phillip Troskie Building
situated on Erf 842, Windhoek and from house number 65 situate on
Erf 1209, Windhoek.







(ii) in
the event of respondent or anyone holding under him failing
to
vacate the premises when called on so to do, the Deputy
Sheriff
shall not physically remove such person or persons with
their
belongings from the aforesaid premises.







(iii) he
should not pay the costs of these proceedings which shall
include
the costs of two instructed counsel and one instructing
counsel."







In its
founding affidavit applicant alleged
inter
alia
that
it is a parastatal company and the registered owner of immovable
property known as the Phillip Troskie Building situated on Erf 842
Windhoek and a house situate on Erf 1209 Windhoek. In the affidavit
both properties were for convenience referred to as "the
property" and in this judgment unless the context requires
otherwise the terminology will be maintained.











Applicant
alleged that the respondent was in possession of the property and in
the circumstances applicant was entitled to an order of ejectment of
the respondent from the property.











Originally,
applicant did not ask for a
rule
nisi
but
requested an outright order. During argument, Mr Henning moved for
the grant
of
a rule nisi
instead
of an outright order.











The rule
nisi
was
not served on respondent but Mr Heathcote agreed that inasmuch as
counsel was in Court and noted judgment when the
rule
nisi
was
granted, service would have been superfluous and unnecessary.











In response
to a query from Mr Heathcote, the Court ruled that applicant was
obliged to prove its case and that any objections taken by
respondent at the initial hearing could be taken again and argued
afresh. The matter "transcends from the
rule
nisi
stage
to the final stage".



Safcor
Forwarding (Johannesburg) (Pty) Ltd v National Transport



Commission
1982(3)
SA 654 (A) at 676 E











Similarly,
in this judgment a certain amount of repetition of matter and law
referred to in the initial judgment is inevitable.











Mr Heathcote
repeated the argument that this application was not a matter of
urgency and that applicant has not shown why the normal rules in
respect of time periods should be dispensed with and that applicant
would not be afforded substantial redress at a hearing in due
course.











Mr Heathcote
argues that the matter has been allowed to linger for some four or
five months and that any urgency is self-contrived.











It is common
cause that there are a large number of rooms in the Phillip Troskie
Building and that a large number of student hire these rooms. In his
affidavit respondent lists the number of students and the months
during which they occupied the rooms.















I quote from
paragraph 28 of his affidavit:



"MONTH TOTAL
NUMBER OF STUDENTS















































































July
1999



125



August
1999



130



September
1999



130



October
1999



129



November
1999



97



December
1999



81



January
2000



29



February
2000



66



March
2000



85



April
2000



95



May
2000



102



June
2000



106



July
2000



118



August
2000



117



September
2000



121



October
2000



119



November
2000



115'








Except for
the months of August and September 1999 their numbers fluctuate.
Respondent says he receives NS450-00 per month for each student.











It is
obvious therefore that the property has a high rental valuation to
the owner. The parties agree that it is approximately N$60 000-00
per month.











Applicant
says that rental has not been paid or received for some time and
that its loss is accumulating and is in excess of one million
dollars. Respondent, however, says that it has tendered to pay N$72
000-00 and refers to a letter annexed to his affidavits but this
letter as read with respondent's affidavit shows that the NS72
000-00 was tendered to TansNamib Properties (Pty) Ltd. The latter
company is not applicant. TransNamib Properties (Pty) Ltd is a
separate and distinct company with a legal persona of its own.





Applicant
alleges in its founding affidavit that on 31
st
May 1999 respondent purported to conclude a lease with a company
known as TransNamib Limited and it annexed a copy of the purported
lease to its affidavit. Notwithstanding the aforegoing as from 1
st
April 1999 the company TransNamib Limited had already ceased to
exist. The aforegoing is common cause. Respondent contends, and has
now contended for several months, that it is entitled to a
rectification of the purported lease by substituting TransNamib
Properties (Pty) Ltd for the non-existing company. This accounts for
the tender of N$72 000-00 as rental to TransNamib Properties (Pty)
Ltd. Despite respondent's contention that it is entitled to
rectification and despite the lapse of well over one year, he has
not instituted the said action for rectification.











Applicant
denies that respondent is entitled to rectification but whether he
is so entitled or not, is irrelevant to these proceedings.
Applicant's case against respondent is based on the simple
proposition that applicant is the owner of the property and
respondent is in possession thereof.











In the
initial judgment the Court referred to
Krugersdorp
Town Council v Fortuin
1965(2)
SA 335 and to
Chetty
v Naidoo
1974(3)
SA 13 (A) which specifically deal with the principles of vindicatory
actions and their nature and it is unnecessary to repeat these
principles.











Respondent
tries in vain to meet the situation by denying that he is in
possession of the Phillip Troskie Building. He says the students are
in possession thereof. This is naive particularly as he is the
lessor of the students. Mr Heathcote furthermore, argued previously
and repeats the argument that "the respondent in this matter is
not holding the property through or under the applicant". It
would appear that respondent maintains that he "holds" the
property because of some rectification action against TransNamib
Properties (Pty) Ltd, an entirely separate entity, which he has not
instituted despite the lapse of more than one year.











In any event
applicant denies that respondent is entitled to rectification and
denies that respondent is entitled to "hold the property"
which phrase in the circumstances of this case is a euphemism (for
"posses" the property) . According to the judgments
aforesaid and referred to the Court's initial judgment, the onus is
on respondent to show that he has a right to possess the property.
As respondent has not been able to do this (and in fact even alleges
that the students and not he are in possession thereof) he has
resorted to several procedural and technical defences.











The Court
has already referred to respondent's contention that these
proceedings should not have been brought as an urgent application. I
shall return to that defence later.











At the
initial hearing and again on the return day, Mr Heathcote argued
that there was a non­joinder in that all the students, these
fluctuating tenants of respondent, had to be joined as
co­respondents. For this proposition he relied on the judgment
of the
Rehoboth
Bastergemeente & Another
v
The
Government of the Republic of Namibia and Others
delivered
on 22
nd
October 1993.











An analysis
of the reasoning in that case reveals that the case supports the
argument advanced by Mr Henning and not Mr Heathcote. In that case
the Court relied on the case of
United
Watch and Diamond Co. (Pty) Ltd and Others v Disa Hotels Ltd and
Another
1972(4)
SA 409 (C) where Corbett J (as he then was) said;



"It is
settled law that the right of a defendant to demand the joinder of
another party and the duty of the Court to order such joinder or to
ensure that there is waiver of the right to be joined (and this
right and this duty appear to be co-extensive) are limited to cases
of joint owners, joint contractors and partners and where the other
party has a direct and substantial interest in the issues involved
and the order which the Court



might
make In
Henri
Viljoen (Pty) Ltd v Awerbuch Bros
1953(2)
SA



151 (O),
Horwitz AJP (with whom Van Blerk J concurred) analyzed the concept
of such a 'direct and substantial interest' and after an exhaustive
review of the authorities came to the conclusion that it connoted
(see at 196) -







' an
interest in the right which is the subject matter of the litigation



and not
merely a financial interest which is only an indirect interest



in such
litigation'.







This view of
what constitutes a direct and substantial interest has been



referred to
and adopted in a number of subsequent decisions and it is



generally
accepted that what is required is a legal interest in the
subject
-matter of the action which could be prejudicially
affected by the
judgment of the Court "







In the
Bastergemeente
case
it was common cause that if the order asked for were granted, the
effect would be to render a large number of sales of immovable
property void. Accordingly, the contracting parties to those sales
had a direct and substantial interest in the outcome of the
proceedings and should have been joined. Their interest was not an
indirect interest which a sub­tenant has in litigation by the
owner or lessor against the tenant for the latter's ejectment.











It is trite
that where the relief in litigation involves a decision on the
validity of a contract joinder of all contracting parties is
essential unless there is a waiver.







Abrahamse
& Others v Cape Town City Council
1953(3)
SA 855







confirmed on
appeal in 1954(2) SA 178















However, it
is also trite that persons who are not parties to the contracts
concerned need not and should not be joined. Thus a subtenant has no
legal
interest in the contract between the landlord and the tenant and
need not be joined in an action either on the landlord's lease with
the landlord's tenant or in ejectment proceedings brought by the
landlord against his tenant.
Sheshe
v Vereeniging Municipality
1951(3)
SA 661 (A)



The Henri
Viljoen
case
quoted by Corbett J and referred to in the
Bastergemeente



case.



The United
Watch and Diamond
case
supra



Ntai &
Others v Vereeniging Town Council & Another
1953(4)
SA 579 (A)











In the
instant case respondent is not even applicant's tenant although the
students are respondent's tenants. Respondent "holds" the
property but he does not hold the property "through or under
the applicant" according to Mr Heathcote.











The students
therefore have no "direct and substantial interest" in
this litigation which is not contractual but is brought by applicant
to recover possession of its property. It is vindicatory. Once again
I find that respondent's objection to non-joinder fails.















Mr Heathcote
once again argued most strenuously the question of
lis
pendens.











The general
principle is that "if an action is already pending between
parties and the plaintiff brings another action against the same
defendant on the same cause of action and in respect of the same
subject matter, it is open to the defendant to take the objection of
lis
pendens,
that
is, that another action respecting the identical subject matter has
already been instituted, whereupon the court in its discretion may
stay the second action pending the decision of the first".







(Herbstein
& Van Winsen 'Supreme Court Practice
4th
Ed. P 249)











It is
common
cause that on 22
nd
November 1999, applicant issued summons out of the High Court
against respondent. Applicant's cause of action in the original
Particulars of Claim as well
as
its
action as set out in the amended Particulars of Claim, was based on
contract and the relief which applicant claimed included an Order
confirming cancellation of the contract, the payment of large sums
of money alleged to be due by respondent arising from rentals and an
order ejecting respondent from the very property in respect whereof
applicant has now brought this application.











Respondent
tries to draw strength from the fact that on or about 7
lh
November 2000, subsequent to the service of the present application
on respondent, applicant gave respondent notice of an amendment to
its Particulars of Claim in the earlier case of 22
nd
November 1999, withdrawing its claim for ejectment of respondent
from the property.











Mr Heathcote
argued that a plaintiff cannot withdraw or amend pleadings as of
right and that applicants attempt to do so is an admission of the
fact that there is a pending
lis
between
the parties in respect of the same subject matter.











It is
abundantly clear that the
cause
of action

in the case launched by applicant in 1999, is not the same as the
cause of action in the present proceedings. The present case is a
vindicatory action for the property concerned whereas in the former
action the claim is for a cancellation of a contract and for
ejectment from the property concerned. One of the many consequences
of a contract for ejectment from property pursuant to a cancelled
lease (I am not saying that this is the case here) could be that if
there is damage to the property concerned, applicant's claim may
well be for payment of damages arising from the contract, while in a
vindicatory action should the property be damaged, the owner would
probably have to look to the person or persons who cause the damage.
This aspect was not argued before me and inasmuch as it is possible
to decide this matter on other grounds it is unnecessary to consider
this aspect.











The action
instituted on 22
nd
November 1999 has as yet not been set down for hearing and in terms
of Rule of Court 42, a litigant can amend its pleadings any time
before set down provided it pays the costs. Applicant has tendered
such costs. The pleadings in that action having now been amended to
delete the claim for ejectment the claim and the cause of action
certainly bear no resemblance to the cause of action in the
vindication proceedings. Even had the amendment not been made, the
cause of action would be substantially different.











Mr Heathcote
protests that, because the amendment was made after the vindicatory
proceedings were instituted, the plea of
lis
pendens
was
not adversely affected.











Both counsel
relied on
Ntshicja
v Andreas Supermarket (Pty) Ltd
1997(1)
SA 184, where the purported withdrawal of the earlier proceedings
was after the second case was instituted.











The Ntshicja
case
is of no help to either side. In
Ntshiqa's
case
the applicant purported to withdraw an action instituted by him in
the Magistrate's Court but the Transkei Supreme Court w here the
second action was being prosecuted held that on the facts placed
before it, it "could not be concluded that the action had been
effectively withdrawn". In the instant case by virtue of
compliance with Rule of Court 42(l)(a) the claim for ejectment from
the property in the Particulars of Claim has been effectively
withdrawn.











In any event
on 30
,h
October 2000 Mr Tjitemisa on behalf of applicant and one J.D.
Strauss inspected Phillip Troskie Building and found the premises
neglected, dirty and damaged. The said Strauss supports the
allegations of applicant of and concerning the damage to and neglect
of the property and photographs are annexed to the proceedings to
illustrate this. Considering that these are residential premises the
fdth deposed to is astounding. Furthermore door knobs were found
lying on the floor and floor tiles removed while "the removal
of equipment" from the walls left bare wires exposed. The fire
fighting extinguisher was lying on the floor with powdery substance
thereon indicating that it had been activated.











The
condition of the premises came to the notice of the applicant only
on 30
lh
October 2000 when the premises were inspected. This fact as well as
the fact that the applicant was losing income from the property
which loss exceeded a million dollars and was appreciating monthly,
were factors influencing this Court's discretion. I stress, however,
that these were not the only factors. The action on contract with or
without the amendment involves a protracted trial and is not the
same
"lis"
as
a vindicatory action where an owner of property implements a
fundamental right, that is, to regain possession of his property.















The plea of
lis
pendens
therefore
fails.



Mr Heathcote
once again contended that applicant launched these motion
proceedings knowing full well that there was a material dispute of
fact. Therefore he argued the application must be dismissed.











There is
general judicial agreement that the Court can entertain proceedings
on motion only when there is no genuine dispute of fact.











Whether or
not a genuine dispute of fact exists, is for the court to decide and
the respondent's allegations thereanent are of little, if any,
assistance. In
Peterson
v
Cuthbert
& Co Ltd
1945
A.D.







420 at 428
the Appellate Division said; "In every case the Court must see
whether in
truth







there is a
real issue of fact which cannot be satisfactorily determined without
the aid of oral







evidence."



See also
Ismail
& Another v Durban City Council
1973(2)
SA 362 (N) at 374
Room
Hire Co (Pty) LtclvJeppe Street Mansions (Pty) Ltd
1949(3)
SA 1155 (T)











In the
present case this principle is well illustrated by respondent's
denial that he is in possession of the property whereas in truth and
in fact he is clearly in possession thereof. A respondent should not
make a bare denial of an essential fact but should produce some
evidence to support such denial. The respondent in this matter
claims that he has produced such evidence namely that the students
his sub-tenants are the possessors. The students may indeed be
occupiers but it is clear that respondent's admission that he
"holds" the property but not "through or under
applicant" is an admission of possession.



The dispute
which respondent has with TransNamib Properties (Pty) Ltd has
nothing whatsoever to do with applicant's vindicatory action.











The
applicant has established the essentials to vindicate the property
from respondent who is clearly in possession thereof.











The only
question left for decision is whether this application could have
been brought as a matter of urgency.











I have
already dealt with the loss, applicant is sustaining which is
accumulating monthly. I have already dealt with the condition of the
property. The condition of the fire-extinguisher may well constitute
a threat to the property should there be a fire in the premises.











Mr Heathcote
says that applicant must show that it would not "have been
afforded redress at a hearing in due course".











If applicant
had come to Court by way of summons and Particulars of Claim, there
would have been a considerable lapse of time before the matter could
be heard. The property would have deteriorated further and
applicant's financial loss would have become very much greater while
the prospects of recovering financial compensation would become more
and more remote. Even at this stage respondent does not offer to pay
any debt due to applicant. If respondent was
bona
fide
the
"rental" could have been paid into
trust
^pending the result of the rectification action. It has failed to
launch such action and furthermore fails to allege that it can pay
all monies which may become due to applicant. The fact that
applicant has delayed until now before instituting this applicant,
is of no assistance to respondent. A creditor is not obliged to sue
his debtor immediately the debt falls due.















I
am
satisfied that applicant was entitled to come as a matter of
urgency.











Applicant
has asked this Court that the
rule
nisi
issued
on 17
th
November 2000 and referred to above be made final and absolute. The
court dismisses opposition to the rule being made final.











Accordingly,
the
rule
nisi
issued
on 17
,h
November 2000 is made final and absolute and respondent is ordered
to pay the costs as therein provided and to pay the costs incurred
by opposition to the application to have the rule made final and
which costs shall include the costs of two instructed counsel and
one instructing counsel.

















For the
applicant:
Advocate
P.J.v.L. Henning and with him Mr P. Ellis







Instructed
by:
Messrs
Ellis & Partners





For
the respondent:







Instructed
by:


Advocate
R. Heathcote







Messrs van
Vuuren & Partners