Court name
High Court
Case name
Kakero and Another v Hekemo and Others
Media neutral citation
[2011] NAHC 100













NOT REPORTABLE







CASE NO: A 20/2011



IN THE HIGH COURT OF
NAMIBIA







In the matter between:





DAVID
KAKERO
…...............................................................................1ST
APPLICANT


GERSON
UHUPAMUJE NDJAVERA
…..............................................
2ND
APPLICANT





and





IMMANUEAL
HEKEMO
…................................................................1ST
RESPONDENT


TJAHEYA
MERORO
…....................................................................2ND
RESPONDENT


FLACON
TJIVASERA
…..................................................................
3RD
RESPONDENT


THE
STATION COMMANDER OF THE


KATUTURA
POLICE STATION
…...................................................4TH
RESPONDENT






CORAM: SMUTS, J



Heard on: 4 MARCH 2011



Delivered on: 1 APRIL
2011












JUDGMENT












SMUTS J: [1]
This is the latest salvo in an ongoing dispute between two opposing
factions within the St Stephan Romanna Apostolic Church of Africa in
Katutura, Windhoek.







[2] The applicants
approached this Court on an urgent basis on 18 February 2011 for
spoliation orders and further relief against the first to third
respondents on the basis of a rule
nisi.
The fourth respondent is the Station Commander of the Katutura Police
Station. The applicants served the application upon some – and
not all – of the respondents the previous evening. When the
matter was called in Court, Mr Rukoro appeared on behalf of the first
to third respondents and asked for a postponement so that his clients
could answer to the allegations contained in the founding affidavit.







[3] In view of the nature
of the allegations – primarily directed at the spoliation
relief – and the fact that the application was set down on
Friday afternoon (of 18 February 2011) with the spectre of Church
services over the weekend, I was reluctant to grant any postponement
for that purpose without undertakings being given. I indicated that
those undertakings could be made on the basis of not admitting any of
the allegations and entirely without prejudice to the first to third
respondents’ rights. The first to third respondents duly gave
undertakings concerning access to the Church building – which
was in issue. Those undertakings were on the basis of not making any
admissions. I then granted a postponement of the application to
Friday, 4 March 2011 subject to that undertaking with reference to
the applicants’ rights of access to the Church building in
Katutura, Windhoek.







[4] The first to third
respondents thereafter filed an answering affidavit on the date
designated in the order of postponement and the applicants filed a
replying affidavit shortly before the hearing on 4 March 2011.







[5] The exchange of these
further affidavits has resulted in factual disputes on almost every
issue. What did however emerge as common cause at the hearing on 4
March 2011 is that the applicants had access to the Church building
and that they had enjoyed that access after the matter was first
called in Court on 18 February 2011 when it was postponed and the
undertaking was given. Mr Narib, who appears for the applicants,
conceded that a spoliation order would accordingly no longer arise
and be necessary. The only live issue then in respect of the relief
sought in the first and second prayers of the notice of motion,
directed at restoring access to the first and second applicants
respectively, would be the question of costs. Surprisingly, the
applicants did not file a supplementary affidavit after their access
was restored in order to explain how this fact was achieved. Nor was
this aspect even addressed in the replying affidavit. This was
clearly relevant in view of the denials on the part of the first to
third respondents of having deprived the applicants of access at any
stage. With that key issue in dispute, I certainly would have thought
that the restoration of access – especially in view of the
strenuous denials of its deprivation – should have been
squarely addressed either by way of a supplementary affidavit and
most certainly in the replying affidavit.







[6] Mr Narib who appeared
for the applicants, however invited me to draw an inference from the
fact the applicants had access after approaching the Court and after
an undertaking was given. Whilst an inference adverse to the first to
third respondents may be reasonable with reference to the question of
access, particularly in view of the refusal on behalf of the first
respondent to receive the correspondence referred to in the papers,
it would not be the only reasonable inference to be drawn in the
circumstances, but is the more natural or plausible one by applying
the test in
Govan
v Skidmore,
1
despite the failure on
the part of the applicants to address this crucial aspect either in
the form of a supplementary affidavit or even in reply. It would
follow that the applicants should in the exercise of my discretion,
be entitled to their costs of bringing the application and up to and
including the appearance on 18 February 2011.







[7] I turn now to the
other relief sought. The applicants also seek an interdict against
the first to third respondents from interfering with their rights of
access to and use of the Church building and for an order committing
the first to third respondents for contempt of Court for violating
orders of this Court of 29 October 2009 and 17 November 2010. The
other relief sought by the applicants is a mandatory order against
the Station Commander of the Katutura Police Station to direct
members of the Namibian Police under his command to give effect to
the order sought by the applicants. The Station Commander has not
opposed the application and has not placed any factual matter before
me with reference to the order sought against him. The applicants
have in any event not placed sufficient material before me to justify
an order of that nature. I would be disinclined to give such an
order, even if the requisites for the other interdictory relief
sought were to be established.







[8] Mr Narib moved for a
rule
nisi
and that the interdict to
operate as interim relief pending the return date. This was
presumably in view of the fact that the application sought a rule
nisi
when the matter was
originally called on 18 February 2011 because of the very short
service at the time – and indeed non-service on one of the
respondents. As the parties have since had a full opportunity to file
answering and replying affidavits, it would not in my view serve any
purpose to grant a rule
nisi
at this stage and the
matter should be approached on the basis of final relief being
sought. When I put this to Mr Narib, he accepted this and moved for
final relief in the form of the interdict and committing the first to
third respondents for contempt of Court and the order sought against
the Station Commander. In the alternative he applied for these issues
to be referred to trial in view of the factual disputes on the
papers.







[9] Ms Bassingthwaighte,
who appeared for the first to third respondents when the matter was
agued on 4 March 2011, opposed the interim order and submitted that
on the basis of the well established approach to contested facts in
motion proceedings articulated in
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
2
that the applicants were
not entitled to any final relief at this stage. I agree with that
submission. In view of the factual disputes which affected almost
every element for the interdictory relief as well as establishing
contempt of Court, it is clear to me there can be no question of
final relief at this stage. The only question is whether the
application for an interdict and to commit the first to third
respondents for contempt of Court, should be referred to trial as
applied for by Mr Narib on behalf of the applicants or dismissed by
reason of the fact that the applicants should have anticipated a
dispute of fact on these issues, as was submitted by Ms
Bassingthwaighte.







[10] Before addressing
this issue, I refer briefly to the position of the second applicant
with regard to the interdict he seeks against first to third
respondents. It was pointed out by Ms Bassingthwaighte that even on
the papers at this stage, it serve no purpose to refer that dispute
to trial or to oral evidence, given the fact that his right to occupy
the Church building for the purpose of teaching had expired pursuant
to the earlier settlement agreement reached between the parties. He
would thus not be able to establish an entitlement in the form of a
clear right to continue with those teaching activities at the
premises in the absence of permission given by the executive
committee pursuant to the settlement agreement after the expiry of
his right to do so on 10 February 2011.
Mr Narib in reply
conceded that this right in these circumstances was of a precarious
nature after the expiry of the period referred to in the settlement
agreement. This concession is in my view correctly made. It would
follow that the second applicant would not be able to establish a
clear right for the purpose of teaching at the Church building in the
absence of an extension to his right to do so. It would further
follow that he would not be able to establish this important
requisite for a final interdict and would fail in his application for
the interdict for this reason alone.







[11] As to the two
remaining issues upon which the applicants seek a referral to trial,
Ms Bassingthwaighte submitted that in view of the history of the
matter, the applicants should have anticipated a factual dispute with
reference to that relief and should not have approached the Court on
an urgent basis for such far reaching relief and should have either
sought that relief separately or, as I understood her submissions, by
way of action. She went so far as to contend that the seeking of this
relief on such short notice amounted to an abuse of process.







[12] Whilst it is not
clear to me that the application for these forms of relief on an
urgent basis constituted an abuse of process, given the relationship
between that relief to the spoliation relief sought, it would
certainly seem to me that the applicants should have anticipated that
there would be disputes of fact with reference to is further relief
sought – over and above the spoliation relief, given the
history of disputes between the parties. It would furthermore seem to
me that the spoliation order was the principal and primary relief
sought when the application was launched. The need for that relief
has since fallen away.







[13] As far as the
application for a final interdict was concerned,
Ms
Bassingthwaighte also submitted that the applicants had not
discharged the onus of showing the absence of an alternative remedy.
The parties had after all agreed upon an executive committee to
manage the affairs of the Church in settlement of the previous round
of litigation. She pointed out that the applicants had not properly
sought to resolve the regulation of access to the Church before that
committee. There had only been an attempted meeting on short notice,
attended by only one of the factions. Whilst the applicants should
have exhausted the possibilities of resolving the dispute in that
forum before approaching the Court, I must also point out that this
requirement for an interdict is the absence of an adequate
alternative remedy. In view of the conclusion I reach, it is not
necessary to determine whether sufficient facts were placed before me
to establish that the adequacy of the alternative remedy. But it
would seem to me that the parties should clearly ensure that this
committee becomes properly functional so that the affairs of the
Church can be properly regulated by that body.







[14] As to whether these
remaining issues in dispute should be referred to trial, I asked Mr
Narib whether he could rather delineate the issues in dispute so that
any further proceeding could be confined to those. He had difficulty
in doing so and persisted with his application that the interdict and
application for committal for contempt should merely be referred for
trial in terms of Rule 6 (5) (g).



[15] Having carefully
considered the submissions by both counsel, I found myself reluctant
to do so and decline that application. In exercising my discretion
not to do so, I have taken the following factors into account. Most
importantly, the applicants would and could have anticipated serious
disputes of fact on these issues in the contests of the long history
of disputes between the parties.
3
Instead they proceeded
with an urgent application at very short notice against the
respondents seeking these forms of relief, including that the
interdict operate as an interim interdict pending the finalization of
the application, even in the absence of service on one of the
respondents. I further take into account that the primary relief
sought was of spoliation and that the need for that relief has fallen
away. I also take into account that one of the applicants’
witnesses, Ms Vindeline Tjihenda made a false statement to the police
concerning an aspect of some importance to the application, namely
whether she had her key in her possession at a relevant point in
time, this was common cause and there was an attempt to explain this
way in reply.







[16] I accordingly
decline the application for referral to trial, and dismiss the
application for the relief in prayers 2.3 and 2.5 of the notice of
motion. The relief sought against the Station Commander (in paragraph
2.4) is also dismissed.







[17] The question which
now arises is one of costs. Mr Narib has pointed out that it was only
after the applicants approached this Court that their access was
restored and that they thus needed to approach the Court and, as a
consequence, should be awarded costs. I have already addressed this
issue and I am prepared to make such an order, but limiting costs
to18 February 2011. I do so despite the failure on the part of the
applicants to have explained how their possession was restored in the
face of the vehement denials of deprivation. I also take into account
that that was the primary relief sought and that the need for a
spoliation order fell away after the bringing of the application. The
respondents may consider that they have obtained a measure of success
in their defense of this application, as I decline to refer the
further relief to trial. I have carefully considered the factual
matter raised in the application and the conduct of the respective
parties. I was especially not impressed with the first respondent’s
refusal to even accept correspondence emanating from the applicants.
Had he done so and had the correspondence been properly addressed and
lawyers been engaged on both sides at that stage, the need for the
application may not even have been arisen. But he has been mulcted
with the costs up to 18 February 2011. As the respondents succeeded
in dismissing the application for further relief, they would be
entitled to the costs following 18 February and including the hearing
on 4 March 2011. In the exercise of my discretion, I accordingly make
those orders as to costs.







[18] Given the fact that
the relief sought in prayers 2.1 and 2.2 has fallen away. I make no
order in that regard. I further decline to refer the relief sought in
prayers 2.3 and 2.5 to trial and dismiss the application for the
relief sought in these prayers. I would furthermore not grant the
relief sought in prayer 2.4. The first to third respondents are
directed to pay the applicants’ costs up to and including 18
February 2011. The applicants are directed to pay the first to third
respondents’ costs incurred after 18 February 2011. Both costs
orders include the costs of one instructing and one instructed
counsel, where engaged.











___________________________



SMUTS, J











ON BEHALF OF THE
APPLICANTS ADV. G NARIB



Instructed by: VAN DER
MERWE-GREEFF INC











ON BEHALF OF DEFENDANT
ADV. N. BASSINGTHWAIGHTE



Instructed by:
LORENTZANGULA INC







11952
(1) SA 732 (N) at 734, see also Ocean & Accident Guarantee SA
Corp Ltd v Koch 1963 (4) SA 147 (A)




21984
(3) SA 623 (A)




3Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd 1949 (3) 1155
(T) at 1162