Court name
High Court
Case name
Katjivikua v Magistrate: Magisterial of Gobasis and Another
Media neutral citation
[2011] NAHC 340
Judge
Corbett AJ



















REPORTABLE





CASE
NO. A 208/2011





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:






















EWALD
KATJIVIKUA



APPLICANT























and







THE MAGISTRATE: MAGISTERIAL
DISTRICT



OF GOBABIS
….................................................................................1st
RESPONDENT







JESAYA EWALD KATJIVIKUA
…...................................................2nd
RESPONDENT







CORAM: CORBETT, A.J



Heard on: 31 October 2011



Delivered on: 4 November 2011



______________________________________________________________



















JUDGMENT







CORBETT, A.J: .







[1] On 24 August 2011 the first
respondent granted an interim protection order to the second
respondent on an ex parte basis, in terms of the Combating of
Domestic Violence Act, No. 4 of 2003 (“the Act”). The
order was subsequently amended on 10 October 2011 by the first
respondent.







[2] The applicant maintains that both
the granting of the initial protection order and the further order of
the Court amending the initial order are irregular. The applicant
accordingly brings this application on an urgent basis seeking an
order declaring the interim protection order, as amended, to be a
nullity, invalid and of no force and effect. In the alternative, the
applicant seeks an order reviewing and setting aside the interim
protection order. Costs are sought against both the respondents.







[3] The applicant is the 33 year old
son of the second respondent, the latter being at the advanced age of
89 years. The present dispute has its origins in a most unfortunate
“blood feud” within the Katjivikua clan. It is common
cause that the second respondent and his wife are currently estranged
and that certain of the children have taken sides with either the
second respondent or his estranged wife. The applicant acquired
ownership of the farm “Toekoms” in September 2003 and
resided on the farm until the interim protection order in this matter
was granted. The second respondent lives on the farm “Vredehof”
in the same district and there would appear on the disputed facts to
be an overlap between the farming operations on the two farms. As to
who precisely owns what cattle and other livestock on the Farm
“Toekoms” is disputed. The papers are replete with
accusations and counter-accusations of theft of cattle and other
livestock belonging to the second respondent by the applicant and
vice versa; allegations of malicious damage to property by the
one to the other’s property; and threats of assault allegedly
made by the applicant on the second respondent and his employees. The
applicant has on no less than three occasions in recent months laid
criminal charges against the second respondent. The level of acrimony
between the applicant and the second respondent is most unfortunate.
It is not necessary for the Court to make a finding in regard to many
of these disputed facts, except insofar as the facts are relevant to
the issue at hand, namely the validity or otherwise of the interim
protection order granted by the first respondent against the
applicant.







[4] The thrust of the argument
presented by Mr Denk, on behalf of the applicant, was that the first
respondent had no jurisdiction to grant the interim protection order,
and in amending the order, he acted ultra vires his powers in
terms of the Act. It was also contended that the first respondent, in
amending the order, failed to afford the applicant the right to be
heard. It was submitted by Ms Van der Westhuizen, who appeared on
behalf of the second respondent, that the application was not urgent
and that, in any event, the relief sought in this application was not
competent, being premature, and indeed without merit. The first
respondent simply opposes the matter on the narrow basis of the cost
order that is sought against him. I will deal with these issues in
turn.







JURISDICTION TO GRANT THE
INTERIM PROTECTION ORDER







[5] In terms of section 4(1) of the
Act any person who is in a domestic relationship may, in the manner
provided for in section 6, apply for a protection order against
another person in that domestic relationship. Section 3 of the Act,
under the heading “definition of domestic relationship
provides as follows:







3.
(1) For the purposes of this Act a person is in a “domestic
relationship” with another person, if, subject to subsection
(2) –








  1. ;









  1. ;









  1. .;









  1. they
    are parent and biological or adoptive child;









  1. they










    1. are
      or were otherwise family members related by consanguinity, affinity
      or adoption, or stand in the place of such family members by virtue
      of foster arrangements; or











    1. would
      be family members related by affinity if the persons referred to in
      paragraph (b) were married to each other;









and
they have some connection of a domestic nature, including, but not
limited to –








  1. the
    sharing of a residence; or









  1. one
    of them being financially or otherwise dependent on the other; or









  1. …”










[6] In argument Mr Denk focused on
section 3(1)(d) in contending that the first respondent did not have
jurisdiction to grant the interim protection order. Since the
definition of a child in the Act is a person under the age of 18
years it follows that the Court could not derive its jurisdiction
from this subsection. Ms Van der Westhuizen contended that the
Court’s jurisdiction is rather to be founded in section 3(1)(e)
of the Act. The second respondent’s reliance upon this section
3 is somewhat cryptic. He states:







I
do not take issue with the fact that the applicant is above 18 years
of age. The applicant however clearly did not have regard to section
3(1)(e) of the Act which clearly included the domestic relationship
between the applicant and me.



No reference is made to specific facts
to substantiate this conclusion. However, in view of the approach I
take in this matter, it is unnecessary to deal comprehensively with
this issue. On my reading of the Act, the legislature intended by the
enactment of section 3(1)(e) to bring within its reach a very broad
spectrum of familial relationships of a domestic nature, with the
purpose that protection orders may be sought by aggrieved family
members without having to seek recourse to more expensive and less
expeditious civil or criminal proceedings to keep the family peace.
Whilst the relationship between the applicant and the second
respondent is one of acrimony, on the facts put up by the second
respondent (which in the light of the Stellenvale rule I am
obliged to accept) suggests that there is some financial dependency
between the applicant and the second respondent in respect of the
payment of the instalments to Agribank for the Farm “Toekoms”.
This fact, in my view, clothed the first respondent with jurisdiction
to hand down the interim protection order.











THE CONTENT OF THE INTERIM
PROTECTION ORDER







[7] In making application for the
interim protection order, the second respondent deposed to an
affidavit in terms of section 6(2) of the Act. In the affidavit he
makes allegations of incidents of economic abuse, and sets out the
facts upon which he relies for the relief sought. These relate to
allegations of the applicant’s theft of his livestock; that the
applicant placed padlocks on the entrance gate to the farm “Toekoms”
and prevented the second respondent from gaining access to the farm;
that the applicant on several occasions chased the second
respondent’s farm workers away from the farm “Toekoms”;
that the applicant threatened to assault the second respondent on
several occasions; that the applicant, through these actions, had
generally frustrated the second respondent’s farming
operations; that the applicant has engaged in hunting activities on
the farm “Toekoms” without the second respondent’s
consent; and that the applicant killed one of the second respondent’s
goats without the latter’s consent. The second respondent then
concludes his affidavit by stating:







14.
I therefore pray that the respondent be ordered to desist from
subjecting me to acts of violence and abuse.







15.
In light of the aforegoing, the protection order which I hereby apply
for should restrain the respondent from subjecting me to domestic
violence, more specifically, physical abuse, economic abuse and
emotional, verbal or psychological abuse, threats or attempts to
carry out any of these threats
.







I pause to mention that in the
affidavit there are no allegations that the applicant committed
actual acts of physical violence against the second respondent.







[8] The application for the interim
protection order was made on Form 1 contained in Regulation 2 of the
Regulations promulgated in terms of the Act. It appears that, if
reference is had to the Regulations themselves, the document attached
to the founding papers professing to be the application in terms of
Form I is actually only the first page of Form 1 and the subsequent
pages constitute the pages referred to in Form 5 contained in
Regulation 6, being the standard form interim protection order
granted in terms of section 8 of the Act. It is unclear as to whether
this confusion has its origins in the form used by the Magistrate or
rather arises from a transposal of documents by the applicant’s
legal practitioners in preparing the papers. The first respondent, in
deposing to an answering affidavit, did not address this issue.







[9] The pro forma nature of the
Forms is presumably to assist the complainant in making application
for the protection order and at the same time assists the Magistrate
in that Form 5 sets out the full range of the orders that the Court
may hand down as part of the interim protection order. The Magistrate
can simply indicate in the appropriate spaces on Form 5 which of the
broad standard form orders shall become operative should he or she
grant the order. As with any form the danger exists that the person
completing it may not take care to do so clearly and with full regard
to all the sections which require attention. The end result is that
the pro forma form, instead of facilitating clarity in the
administration of justice and the orders of Court, becomes a sloppy
administrative process with little attention being given to crucial
details. This is precisely what happened when the Magistate filled in
the Form 5 in granting the interim protection order in this matter.







[10] Form 5 sets out the particulars
of the complainant and the respondent and in paragraph (b) under the
heading “Order of Court” two options are presented to the
presiding officer, firstly that the application for a protection
order is dismissed, and secondly, that the application for the
protection order is granted “as set out on the following
pages
”. I pause to note that, although in the context of an
application in terms of section 6 of the Act it must be assumed that
reference in the Form is to an interim protection order, paragraph
(b) does not distinguish between an interim and a final order.
However, should page 1 of Form 5 have been used, there would have
been no doubt that reference was being made to an interim order.
Presumably for the order to make sense the Magistrate must either
indicate on the dotted line in paragraph (b) which order he or she is
granting or delete the option that is not to apply. The Magistrate
did not fill in this part of the form, nor did he indicate which
option constitutes the order of court. Thus ex facie the order
itself, there is no indication whether the order was granted or not.







[11] The problems do not end there. In
paragraph 2 of the Form under the heading “Order to
Respondent
” the respondent is ordered not to commit “any
further acts of domestic violence against the complainant or the
complainant’s dependents
”. It further states:







You
are ordered to refrain from all acts of domestic violence and in
particular from the types of violence indicated in the list below:



physical
abuse;



sexual
abuse;



economic
abuse (including destruction or damage to property);



intimidation;



harassment
(including stalking);



trespass;



emotional,
verbal or psychological abuse;



threats
or attempts to carry out any of these acts;



exposing
a child to acts of domestic violence against another person.







Someone – it being unclear whom
– but perhaps the first respondent - has underlined certain of
the categories of violence indicated in the list, namely economic
abuse, trespass, emotional, verbal or psychological abuse and threats
or attempts to carry out any of these acts. However, it is not made
clear in the order whether the interim protection order includes the
wide ambit of all the types of violence listed, or only those
underlined. It is apparent that certain of these categories of
domestic violence, such as sexual abuse, are not applicable to this
case.







[12] In paragraph 3 of the Form –
which includes “no-contact provisions” - it
specifically states that the respondent (the applicant in these
proceedings) is to comply with the provisions ticked on the Form.
None of the provisions are ticked. Paragraph 5 of the Form under the
heading “Additional Orders” provides that the
Clerk of the Court must forward a copy of the protection order to the
station commander of a police station which must be specifically
indicated in the order “who must cause police protection …
to be provided to the complainant … until such time as the
interim protection order is made final …
”. No police
station is indicated in the Form.







[13] These are all examples of the
inept nature of the order handed down by the first respondent. This
is a strong indication of the complete failure by the first
respondent to apply his mind to the matter and to hand down an order
that is clear, unambiguous, and indeed intelligible to the person
subject to its ambit. In fact, the only indication on the Form that
the first respondent has applied his mind to the matter is a
signature above the word “magistrate” at the bottom of
the Form together with the date. Even the official Ministry of
Justice stamp which appears next to the Magistrate’s signature
is not his, but the Clerk of the Court’s stamp. On this basis
alone, I find that the interim protection order falls to be set aside
on review.







THE AMENDMENT TO THE INTERIM
PROTECTION ORDER







[14] The return date for the interim
protection order was 10 October 2011. On that date the second
respondent’s legal representative was present but the
applicant’s legal representative, Mr Louw, was unavailable and
did not attend the hearing. Correspondence was furnished to the first
respondent requesting on behalf of the applicant that the matter be
set down for 6 December 2011 to determine a new date for hearing. The
second respondent’s legal representative, Mr Rukoro, addressed
the Court and stated:







Mr Rukoro:…At
this stage, the complainant is not receiving any protection we have
requested from the Court. The Respondent is still at the farm,
frustrating the complainant. We therefore ask that the interim order
be amended no contact provisions.



Court:
It must have been an oversight, that the no contact provisions were
inadvertently omitted. Only trespassing was ticked.



Respondent:
I would like Mr Louw to be present.



Mr
Rukoro: We are ready to proceed today with the hearing or apply for
the amendments.



Court:
There is no reason as to why Mr Louw could not be here today,
protection orders are urgent applications. I am of the opinion that
without the amendments as proposed by Mr Rukoro the interim order,
which will be extended at the request of the respondent, will not
afford the complainant any protection.
(sic)



The Magistrate makes reference to only
trespass” being ticked on the Form. This
statement is not borne out by the Form before Court. It is
self-evident that, as the owner, the applicant cannot trespass on the
farm “Toekoms”. The definition of “domestic
violence
” contained in section 2(1)(f) of the Act refers to







entering
the residence or property of the complainant, without the express or
implied consent of the complainant, where the persons in question do
not share the same residence
.







[15] The applicant states that he is
in fact the owner of the farm “Toekoms”. He attaches to
the founding papers the deed of transfer in respect of the farm which
confirms that the applicant obtained ownership of the farm in 2003.
This much is common cause. However, the second respondent claims that
the registration of the farm in the applicant’s name was no
more than a logistical arrangement in order to finance the purchase
of the farm through Agribank. The second respondent claims that due
to his advanced years the Bank would not have granted him a loan for
the purchase of the farm. That might have been the understanding.
However, irrespective of the manner in which the second respondent
might want to couch the arrangements between himself and the
applicant, the applicant still enjoys the right of ownership of the
Farm “Toekoms” with the attendant rights attached
thereto. These would include the right to possession of the farm
“Toekoms” together with the right to reside thereon. The
farm “Toekoms” is not the residence or property of the
complainant. It is evident from the affidavit deposed to by the
second respondent in support of the application for the interim
protection order that the gravamen of the complaint refers to alleged
misconduct of the applicant on the farm “Toekoms”. This
further misdirection by the Magistrate serves to underline the fact
that his order cannot stand.







[16] At the hearing on 10 October 2011
the Magistrate proceeded to extend the interim protection order to 6
December 2011 with substantial amendments, which included that:








  1. the applicant was ordered not to come
    near the second respondent, wherever the latter may be;



  2. a police officer from the Gobabis
    Police Station must accompany the applicant to collect his personal
    belongings from the farm “Toekoms”;



  3. the applicant was ordered not to
    enter or come near the farm “Toekoms”; and



  4. the applicant was ordered not to
    communicate in any way with the second respondent.








[17] The amendments to the interim
protection order were far-reaching. It is also undisputed that at the
time that the interim protection order was granted by the first
respondent, the applicant and his family were resident on the farm
“Toekoms”. This much is clear from the application form
filled in by the second respondent as part of the application for the
interim protection order where the home address of the applicant is
referred to as the farm “Toekoms”. This accords with what
the applicant states in his founding affidavit. Accordingly, the
effect of the interim protection order, as amended, is that the
applicant is removed from his home on the farm “Toekoms”,
together with his personal belongings and may not enter or come near
the farm “Toekoms”. This constitutes a considerable
deprivation of his rights as the owner of the property. It also
involves a curtailment of his property rights entrenched by Article
16 of the Constitution. He states that he has been effectively
evicted from his own property without just cause. The applicant
refers to a number of further negative consequences relating to his
livestock and livelihood derived from farming operations. He stresses
that the livestock are his income and that they form the basis of his
ability to repay the loan with Agribank, the most recent instalment
of N$50,000.00 being due and payable by the end of October 2011. This
would be paid through the applicant selling some of his cattle to
raise sufficient money for the instalment. He fears that should he
default on this payment, the remaining balance on the loan would
immediately become due and payable. For these reasons he states that
the matter is urgent. These allegations are strenuously placed in
issue by the second respondent. However, given the view I take in
this matter it is unnecessary to make a finding on these factual
disputes.







[18] The applicant contends that the
amendment granted by the first respondent to the interim protection
order on 10 October 2011 was similarly irregular and of no force and
effect. It is contended on behalf of the second respondent that the
first respondent, in amending the interim protection order, exercised
his rights to correct the order which had omitted to include
provisions, such as the “no-contact” provision. It
is evident from the transcript of what transpired before the first
respondent on 10 October 2011 that the amendment was initiated by Mr
Rukoro by way of a submission from the bar. The first respondent then
conceded that his failure to include the “no-contact
provision was an oversight and proceeded to make the amendments to
the order, as referred to earlier.







[19] The statutory authority to do so
would appear to be that contained in section 17 of the Act under the
heading “Modification or cancellation of protection orders”.
It provides as follows:







17.
(1) The following persons may, in writing, apply to the court which
granted a protection order requesting the modification or
cancellation of such protection order –








  1. the
    complainant;









  1. an
    applicant; or









  1. the
    respondent.









  1. Where
    a person referred to in subsection (1)(a) or (b) wants to cancel or
    modify a protection order he or she must, in the prescribed
    manner submit an application to that effect to the clerk of court
    and that application must be accompanied by an affidavit and any
    other prescribed information.

















  1. If
    the application referred to in subsection (2), is for modification
    of a protection order, the court must proceed as if the application
    for modification were an original application for a protection order
    and, subject to necessary changes, the procedure set out in sections
    9, 10, 11 and 12 apply in respect of the application”.








[20] It is evident from the record
that there was not the slightest attempt by the first respondent to
require that the second respondent comply with the peremptory
provisions of section 17(2) of the Act when he granted the
modification or amendment to the interim protection order. There was
no application together with an affidavit deposed to by the second
respondent. An application from the bar simply does not constitute
compliance with the Act. That the interim protection order was
amended in this arbitrary manner in contravention of the procedure
provided for in the Act amounts, in my view, to a gross irregularity
in the proceedings. This constitutes a further basis for the
reviewing and setting aside of the interim protection order.







THE REVIEWABILITY OF THE INTERIM
PROTECTION ORDER







[21] It is contended on behalf of the
second respondent that, even should there be grounds for review, this
Court is not entitled to review the interim protection order since
the order is not a final order.







[22] In terms of section 20(1)(d) of
the High Court Act, No. 16 of 1990, the grounds upon which the
proceedings of any lower court may be brought under review by the
High Court include a “gross irregularity in the
proceedings
”. Ms Van der Westhuizen, on behalf of the
second respondent, takes the point that it is not competent for this
Court to review and set aside the interim protection order, since the
proceedings before the Magistrate’s Court are not yet
concluded. She contends that the applicant could have instead pursued
remedies in terms of the Act, such as anticipating the return date of
the interim order.







[23] In the matter of Rynders v
Bankorp Ltd t/a Trust Bank and Others, 1995 (2) SA 494 (W)
,
MacArthur J dealt with a situation where a Magistrate had granted a
provisional winding-up order and on the return day an application was
brought by the respondents seeking the setting aside of the
winding-up order. The applicant alleged that the Magistrate had
committed an irregularity in the proceedings. It was argued in this
matter that the applicant had certain remedies it could have sought
before the inferior Court. In this regard the Court stated:







It
was further submitted that the applicant had failed to exhaust its
remedies in the magistrate’s court and he could, for example,
have asked for extra time or even anticipated the rule. In my view
these remedies would be inappropriate here as it might for example be
construed as an acceptance of the provisional order granted. It seems
to me that the magistrate was not empowered to deal with the matter
in the first place and, in the absence of waiver or agreement, which
clearly does not apply in this case, that is the end of the matter. I
can see no basis for requiring a litigant in those circumstances to
pursue other remedies in the lower court. (See:
Van
Graan v Smith’s Mills (Pty) Ltd
1962
(3) SA 170 (T))
1







[24] It has further been stated that:







[21]
It is generally accepted that this Court will not readily intervene
in lower court proceedings which had not yet terminated, unless grave
injustice may otherwise result or where justice may not be obtained
by other means…







[22]
Intervention on review will be justified in the case of gross
irregularity which has caused, or is likely to cause, prejudice to
the applicant … .







[28]
Under the circumstances, the applicant was fully justified in
approaching this Court, despite the fact that the liquidation order
was only provisional and the liquidation proceedings were hence not
yet terminated. The extremely serious and aggravating nature of the
irregularity committed by the first respondent stridently called for
intervention by this Court to right the obvious wrong done to the
fifth respondent. This Court is, in fact, enjoined, in the
circumstances of the case to make full use of its inherent power to
review and set aside the irregular proceedings.

2







[25] In the circumstances, I find that
the applicant was entitled to approach Court to seek the review and
setting aside of the interim protection order granted by the first
respondent, despite the fact that the proceedings have not as yet
been concluded. This is particularly so where, as I have found, the
impugned order was inept and the “amendment” thereof was
granted in contravention of the peremptory provisions of section 17
of the Act, rendering such order reviewable both in terms of the
inherent powers of this Court at common law and in terms of the
express provisions of section 20 of the High Court Act. There is no
basis in law to require that the applicant first exhaust his remedies
before the Gobabis Magistrate’s Court.



















URGENCY







[26] The second respondent disputes
that the applicant is liable to pay the instalments for the bond in
respect of the Farm “Toekoms”, alleging that he in fact
pays these amounts. It was contended by Ms Van der Westhuizen, on
behalf of the second respondent, that, in any event, the applicant
had failed to make out a case for urgency in that the applicant had
not established that he could not obtain substantial redress in due
course. This contention was based on the submission that in terms of
section 11(2) of the Act a respondent (i.e. someone who is the
subject-matter of an interim protection order), may request the Clerk
of the Court to set an earlier date for the enquiry. It is apparent
from this sub-section that the discretion lies in the Clerk of the
Court. It was further contended that, in any event, on 6 December
2011 the applicant could obtain substantial redress by appearing in
Court and seeking the discharge of the interim protection order.







[27] This Court has emphasized that
the urgency of commercial interests may justify the invocation of
Uniform Rule of Court 6 (12) no less than any other interests and
that each case must depend upon on its own circumstances.
3
In exercising this discretion, there
are varying degrees of urgency.
4







[28] Whilst there is some truth in the
argument that the applicant could obtain substantial redress in due
course on 6 December 2011, in my view, this submission ignores the
situation where the applicant claims that his constitutional rights
to the enjoyment of his property under Article 16 have been violated
by the interim protection order and that the order itself falls to be
set aside as having no basis in law. For the purposes of considering
the matter of urgency, I am obliged to accept that the allegations of
the irregular nature of the order are sound in law
5.
On this basis, I can find no justification to require that the
applicant marks time for a further five weeks where his rights have
been infringed on the basis of an interim protection order that was
erroneously granted. This is even more so where the effect of the
order makes serious inroads on the applicant’s common law right
of ownership and indeed his property rights protected by Article 16
of the Constitution, more particularly the applicant’s right to
reside in his home on the farm “Toekoms”. In the
circumstances, I find that the application was correctly brought as
one of urgency and condonation is granted under Rule 6 (12).







COSTS







[29] There is no reason why, in the
circumstances, the costs should not follow the result as far as the
second respondent is concerned. However, the applicant also seeks
costs
de bonis propriis
against the first respondent on the
basis that the first respondent committed a gross irregularity in the
proceedings. Ms Machaka, who appeared on behalf of the first
respondent, resisted such a cost order. In fact, the only basis of
opposition was in respect of the cost order. She contended that the
first respondent had not made himself a party to the merits of the
matter and was only opposing on the narrow basis of resisting a cost
order against him. Reliance was placed on the matter of the
Regional
Magistrate Du Preez v Walker, 1976 (4) SA 849 (A)
,
where the Court considered the circumstances under which it would be
open to a Court, in its discretion, to grant an order
de
bonis propriis
against a
judicial officer, whose actions in the performance of his or her
duties as such have been corrected or set aside on review. Van
Winsen, A.J.A. said
6:







It
is a well-recognised general rule that the Courts do not grant costs
against a judicial officer in relation to the performance by him of
such functions solely on the ground that he has acted incorrectly. To
do otherwise could unduly hamper him in the proper exercise of his
judicial functions … .







There
are, however, exceptions to this rule. Thus if the judicial officer
chooses to make himself a party to the merits of the proceedings
instituted in order to correct his action and should his opposition
to such proceedings fail, the Court may, in its discretion, grant an
order for costs against him … .







It
is also a recognised exception to the general rule that if it is
established that the judicial officer’s decision has been
actuated by malice the Court setting aside or correcting such
decision may grant costs against him even although he has not made
himself a party to the merits of the proceedings.







[30] In the matter of Ntuli
v Zulu and Others, 2005 (3) SA 49 (N)
the
Court dealt with the argument advanced on behalf of a judicial
officer in the context of a procedural irregularity, as follows
7:







The
argument advanced on behalf of the second respondent is as follows:
It is not competent to award costs against a judicial officer in
his/her official capacity, as such an award is in effect an award
against the State or the relevant government department which employs
the judicial officer concerned. The State and/or the department
concerned is not a party to the review proceedings and has,
therefore, no interest whatsoever in the outcome of these
proceedings. Moreover the State and/or the relevant department has
not made itself a party to the proceedings by opposing the
proceedings for review. It was further submitted that, unlike the
position of officials performing administrative functions, the State
has no power of control or supervision over a judicial officer in the
conduct of judicial proceedings. The judicial officer exercises a
purely personal discretion and is not a servant of the State
.







[31] The irregularities in casu
resulted from the first respondent’s lack of attention to the
detail in filling in the Form constituting the interim protection
order and his overlooking the provisions of section 17 of the Act. I
am disinclined to the view that such oversight constitutes an
irregularity of the nature requiring that the first respondent be
mulcted in costs, let alone costs de bonis propriis. I
accordingly decline an order in these terms.







[32] In view of the conclusions I have
reached in this matter, the order I make is:









    1. The applicant’s non-compliance
      with the forms and service provided for by the Rules of this Court
      is condoned and the matter is heard as one of urgency as
      contemplated by Rule 6 (12).











    1. The protection order issued by the
      first respondent on 24 August 2011, and amended by the first
      respondent on 10 October 2011, is hereby reviewed and set aside.











    1. The second respondent is ordered to
      pay the costs of this application.





















_______________



CORBETT, A.J














































































ON
BEHALF OF THE APPLICANT
: Adv. A Denk



Instructed by Tjitemisa &



Associates








ON
BEHALF OF THE FIRST RESPONDENT
: Ms C. Machaka


Instructed
by the Government Attorney







ON BEHALF OF THE SECOND RESPONDENT:
Adv. C. Van der



Westhuizen



Instructed by Lorentz Angula
Incorporated









1at
497 B - D




2Adonis
v Additional Magistrate, Bellville and Others, 2007 (2) SA 147 (C),
154, paras [21] – [22]; 156, para [28]




3Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd, 1982 (3) SA 582 (W), 586 G


Approved
in Bandle Investments (Pty) Ltd v Registrar of Deeds and Others,
2001 (2) SA 203 (SC), 213 E - F




4Luna
Meubelvervaardigers (Edms) Bpk v Makin and Another, 1977 (4) SA 135
(W);


Approved
in Sheehama v Inspector General, Namibian Police, 2006 (1) NR 106
(HC);


Clear
Channel Independent Advertising Namibia (Pty) Ltd v Transnamib
Holdings Ltd, 2006 (1) NR 121 (HC)


Bergmann
v Commercial Bank of Namibia Ltd, 2001 NR 48 (HC)




5Bandle
Investments, supra, at 213E - F




6At
852H – 853E




7at
52C - I