S v BONIFATIUS KONSTANTINOS
NO. A 126/09
IN THE HIGH COURT
In the matter between:
NAMIBIAN WATER SKI
NAMIBIAN WATER SKI CLUB
BACH WATER SKI CLUB 3rd
THE MINISTER OF WORKS,
THE MINISTER OF ENVIRONMENT
AND TOURISM 2nd
PENDA SHIMALI NO
Heard on: 12 May 2009
Delivered on: 12 May 2009
Reasons on: 11 June 2009
A.J.:  On
12 May 2009 I dismissed with costs the respondents application which
the discharge the rule
granted in this matter, with reasons to follow. These are they.
10 April 2009, which was Good Friday, the applicants approached this
Court on an urgent basis for the following relief-
pending the outcome of the proceedings to be instituted in terms of B
second and third applicants’ peaceful possession of the
premises, structures, facilities and infra-structure erected by the
members of the applicants at the Von Bach Game Park be restored.
be ordered to remove all chains and locks on the access gates to the
Von Bach Game Park, which were installed to prevent the members of
the applicants to access their leased premises and property at the
Von Bach Game Park.
be interdicted from dispossessing the applicants and their members
from their leased premises and other moveable property situated at
the Von Bach Game Park.
the Station Commander of the Okahandja Namibian Police be ordered to
assist the Deputy Sheriff in the execution of the Court order given
by this Honourable Court for the interim relief.
further and/or alternative relief as the Court may deem fit.”
founding affidavit was filed by Martin Robert Heinrich Schmidt, the
chairperson of the first applicant and member of the Management
Committee of the third applicant on behalf of all the applicants. He
averred that the second and third applicants entered into lease
agreements with the first respondent in terms of which certain
premises at the Von Bach Game Park were leased to them. The expiry
date of the current renewed lease agreements is around or during
November 2012 and at a meeting held on 03 April 2009 it was agreed
between all parties that the current lease agreements are valid.
However, there is a pending dispute concerning the rights of the
applicants in terms of the lease agreements.
affidavit continues as follows:
the morning of Friday, 10th
April 2009 at around 7h20, the third respondent installed certain
locks and chains onto the access gates of the Von Bach Game Park,
thereby unlawfully preventing the members of the applicants to enter
into and/or exit the premises which they are the lessees of, or the
premises of the Von Bach Game Park at all.
third respondent and/or the other officials, who it is believed are
acting on instructions of the third respondent, have refused to
remove such chains and/or locks from the entrance gates to allow the
applicants and their members access to their property.
measures taken by the third respondent is (sic) unlawfully preventing
the applicants and their members to access their property situated at
the leased premises.
to the unlawful action of the third respondent referred to above, the
applicants and their members were in peaceful possession of the
leased premises and their other property, both moveable and
immoveable, situated thereat.
is submitted that the third respondent, by installing certain locks
and chains at the gates, has unlawfully, without applicant’s
consent and without due legal process, deprived the applicant of its
peaceful possession of the leased premises.”
averments satisfied the Court that the matter was urgent and that the
relief claimed is the relief normally granted under Mandament
for the restoration of peaceful possession of property. Accordingly,
an order was granted in terms of the Notice of Motion and the
applicant’s counsel undertook to have copies of the order
served on the respondents.
11 May 2009 the Government Attorney filed a document styled “Notice
to Anticipate” and that “the matter will be heard on
Tuesday 12 May 2009 at 09:00.” The notice cited the Government
Attorney as “Legal Practitioners for Applicants” and the
respondents’ lawyers as “Legal Practitioners for the
Respondents.” This was ratter confusing as the document
accompanying the above notice reverted to citing the parties’
legal representatives as cited in the spoliation application and the
Order granted by the Court and in this judgment I shall refer to the
parties as they are cited in the spoliation proceedings.
the morning of 12 May 2009 the respondents produced a further
document, styled “Respondents’ Notes on Argument”,
presumably in support of the first mentioned document. The second
document stated as follows-
10 April 2009 the applicants served the court order on the third
respondent and the application was served on the other respondents on
14 April 2009 [It
is recalled that 10 to 13 April 2009 was the Easter weekend].
respondents served the first Notice to anticipate on the applicants’
legal practitioners on 11 April 2009 for hearing on 12 April 2009.
This Notice was subsequently withdrawn. On 30 April 2009, the
respondents served the second Notice to anticipate on the applicants
advising that the application will be heard on 05 May 2009 at 09:00.
This application was by agreement removed from the roll.
fresh Notice to anticipate was filed on 11 May 2009, informing the
applicants that the matter will be heard on 12 May 2009 at 09h00.
absent from the ex parte final order (sic) is a rule nisi calling
upon the respondents to show cause at a given date and time why the
orders should not be made final (sic).
final orders (sic) were granted in clear violation of the long
established principle of audi alteram partem.
6(8) of the High Court Rules reads;
person against whom an order is granted ex parte may anticipate the
return day upon delivery of not less than twenty-four hours notice.”
is apparent that the respondents have misconstrued Rule 6(8). The
Rule does not dispense with Rule 4(a) which requires the notice to
comply with Form 2(a) and be filed with the Registrar and set down
before noon on the court day but one upon which it is to be heard.
followed that the documents filed by the respondents were fatally
defective by reason of non compliance with the Rules and the
respondents’ “application” stood to be dismissed on
that ground alone.
respondents’ further contention that the Notice of Motion
should have given a return date and time why the order should not be
made final contradicts the respondents’ submission on the
meaning of ex parte which they correctly set out as follows-
phrase ‘ex parte’ in Rule 6(4) contemplates the situation
in which an application is brought without
to anyone, either because no relief of final nature is sought against
any person, or because it is not necessary to give notice to the
contradiction is an acknowledgement, be it unintended, that no
relief of a final nature is sought.
What is sought is only interim relief “pending the outcome of
the proceedings to be instituted….. declaring the applicants’
and its members’ rights in terms of the existing lease
agreements with the first respondent.”
is trite that the Court is interested in the substance and not the
form of pleadings.
followed that there was no merit in the respondents’
“application” by whatever name called and it was
accordingly dismissed with costs.
ON BEHALF OF THE APPLICANTS
Francois Erasmus & Partners
ON BEHALF OF THE RESPONDENTS