NO.: A 332/2007
THE HIGH COURT OF NAMIBIA
the matter between:
AIRPORTS COMPANY LIMITED
E DUTY FREE TRADING (PTY) LTD
on: 17 December 2007
on: 19 December 2007
on: 12 April 2012
J:  This Court on 19 December 2007 gave the
1. That the respondent is
ordered with immediate effect to vacate the premises comprising a
duty free shop at the Hosea Kutako International Airport.
2. That the respondent is
ordered to pay the costs of this application on an attorney-client
3. That the
counter-application is dismissed with costs.
The following are the reasons for above-mentioned order.
This is an urgent application in terms of which the applicant sought
the eviction of the respondent from premises at Hosea Kutako
International Airport (hereinafter referred to as the premises)
comprising a duty free shop and an order that the respondent pay the
costs of this application on a scale as between legal practitioner
The respondent in a counter application sought an order that
respondent be permitted to continue to occupy the premises until this
Court has given a ruling in respect of a review application,
alternatively that the Court grants a provisional or final eviction
order but suspends such order pending the ruling in the review
application. (Case A 327/2007).
A point in limine was raised by the respondent that the
applicant has not proved ownership of the premises and has thus no
locus standi to bring this application.
was submitted on behalf of the respondent that the applicant should
have proved ownership in its founding affidavit and that a
certificate attached to the replying affidavit is of no assistance to
applicant to prove ownership. The certificate in question attached to
the replying affidavit is a certificate issued in terms of the
provisions of section 14(3) of the Airports Company Act, Act 25 of
1998. (hereinafter referred to as the Act).
is necessary in my view to read the provisions of section 14 (3) in
context with the provisions of subsections (1), (2) and (4). Section
14(1) of the Act provides that the Minister responsible for Civil
Aviation shall transfer to the Company (applicant) with effect from a
date determined by the Minister by notice in the Gazette the
aerodromes mentioned in the Schedule for the effective maintenance,
management, control and operation of such aerodromes.
Section 14(2) provides that notwithstanding any other law, the
company (applicant) shall, with effect from the transfer date, be
vested with the ownership of the aerodromes and other assets and
rights and be charged with the liabilities and obligations
transferred or assigned to it by virtue of subsection (1).
Section 14(3) provides that a certificate issued by the Minister in
which it is stated that any State land or a servitude or other real
right or lease or any other asset or right described in such
certificate has been transferred to the company in terms of
subsection (1), shall be sufficient proof that the asset or right
described vests in the company.
Section 14(4) provides that upon submission of a certificate referred
to in subsection (3) to the Registrar of Deeds, the Registrar shall
make such entries in the relevant register, title deed or other
document necessary to effect the transfer contemplated in that
subsection in the name of the company.
The applicant in its replying affidavit attached a copy of a
Government Notice (No. 19 dated 5 February 1999) in which the
aerodrome situated at Hosea Kutako International Airport was
transferred to the applicant pursuant to the provisions of section
14(1) of the Act together with a certificate issued in terms of the
provisions of section 14(3) of the Act stating that the ownership of
the aerodrome at Hosea Kutako International Airport, inter alia,
vests in the Company (applicant).
It was submitted on behalf of the respondent that the certificate in
terms of section 14 (3) should have been attached to the founding
affidavit deposed to on behalf of the applicant since an applicant
must make out its case in its founding affidavit.
was further submitted that the provisions of section 14(4) has not
been complied with and therefore the transfer to the applicant has
not been effected or has not been completed since on the
strength of an affidavit of respondent’s instructing attorney,
there are no entries by the Registrar in any relevant register kept
at the Deeds Registry which recorded the ownership of the applicant
in respect of the premises.
In reply to the submissions (supra) Mr Smuts who appeared on
behalf of applicant referred the Court to the founding affidavit of
the respondent in the review application which file was available at
this hearing and was not attached to the founding affidavit in the
present application to avoid duplication of annexures and an unduly
burdening of this application. It was submitted firstly that the
respondent under oath admitted ownership of the premises by the
applicant and that it was for this reason the certificate in terms of
section 14(3) (supra) had not been attached.
in its founding affidavit in the review application in paragraph 3
stated as follows:
Respondent is Namibia Airports Company Limited, a state owned
enterprise established in terms of the Airports Company Act No. 25 of
with the object to develop and manage airports in Namibia on a sound
business principle and is as such in control of Hosea Kutako
International Airports and acts
of the Hosea Kutako International Airport facilities including the
airport building and the premises let out by the first respondent to
the applicant (hereinafter referred to as the “duty
admission of ownership by the respondent of the premises was not
denied by counsel appearing on behalf of respondent but she stressed
that ownership of the premises was not proved by applicant in its
In my view as a matter of law and logic where the respondent has
acknowledged ownership of the premises by the applicant this would
obviate the need to prove ownership of the premises by the applicant
since ownership of the premises is not disputed.
In addition to the respondent’s acknowledgement of ownership
(supra) it is common cause that the respondent leased the
premises from applicant for a period of about 10 years.
applicant in this application alleged ownership of the premises as
follows in its founding affidavit:
“As specified in
section 4 of the Act, the object of the applicant is the acquisition,
establishment, development, provisions, maintenance, management,
control or operation of aerodromes relevant activities at such
aerodromes … One such aerodrome is the principle international
airport located outside Windhoek known as the Hosea Kutako
International Airport. As is further set out in the Act, the
applicant is the owner of the aerodromes including the Hosea Kutako
International Airport, as is specified in the Schedule to the Act.
This ownership includes
the buildings located at and forming part of that airport.”
It was submitted on behalf of applicant that by operation of law
(section 14(2) ) applicant was vested with ownership of airports
inter alia the Hosea Kutako International Airport and that
lack of entries in the Deeds Office is not fatal in proving
The fact that applicant alleged in its founding affidavit that it is
the owner of the premises and the fact that respondent previously
admitted such ownership (in the review application) is in my view
sufficient proof that applicant is the owner of the premises and the
point in limine is dismissed.
The respondent was the lessee of the premises and operated a duty
free shop at the Hosea Kutako International Airport in terms of a
lease which was granted to it.
lease came to an end on 30 November 2007. This lease has not been
anticipation of the expiration of the lease applicant during July
2007 invited tenders to lease the premises for a period of 5 years.
Occupation of the premises by the successful tenderer was to commence
on 1 December 2007.
respondent submitted a tender but was not successful. The tender was
awarded to a concern known as Paragon Investment Holdings (Pty) Ltd
(hereinafter referred to as Paragon). There was also a third tenderer
which was unsuccessful.
respondent was informed on 26 September 2007 that its tender was
respondent set out its concerns for being unsuccessful in a letter
dated 1 October 2007 and addressed to the applicant. Respondent
complained that the tender procedure followed by applicant was
unfair, unreasonable, in contravention of Aricle 18 of the
Constitution of Namibia and stated that applicant acted ultra
vires its own tender procedures.
In a letter dated 8 October 2007 applicant denied the allegations and
informed the respondent that it was unable to accede to the proposal
that the allocation of the tender be reversed. On 9 October 2007
respondent demanded full reasons why the tender was not allocated to
it. The applicant provided reasons in a letter dated 12 October 2007.
The respondent was not satisfied and demanded further reasons. On 29
October 2007 applicant provided the requested fuller reasons. No
further correspondence was subsequently received from the respondent.
30 November 2007, the day respondent was required to vacate the
premises, applicant received a letter (dated 29 November 2007) from
the instructing attorneys of respondent part of which reads as
clients’ instructions are that we take on review your decision
and the appropriate review proceedings will be served in due course.
Pending the outcome of the review, my clients will continue to stay
on the premises and will continue to pay the rent as reflected in
On the same day (Friday, 30 November 2007) the respondent’s
review application (dated 29 November 2007) was served upon the
The applicant thereafter on Monday, 3 December 2007 approached its
legal practitioner for an urgent consultation with counsel the next
day. On 4 December 2007 applicant’s legal representative
addressed a letter to respondent’s legal representatives
informing him that respondent’s occupation of the premises was
unlawful and required respondent to vacate the premises by 21h00 on
Thursday, 6 December 2007.
deadline expired and the respondent remained in occupation of the
premises. The present application was launched on 7 December 2007.
The applicant relies on two grounds establishing urgency.
it was submitted that self-help and taking the law into one’s
own hands is in itself an inherent urgent matter. I agree with this
submission. The refusal of the respondent to vacate the premises in
the absence of any legal justification amounts in my view to unlawful
In Ross v Ross 1994 (1) SA 865 (SECLD) the court in
considering an spoliation application referred to the work of Price,
The Possessory Remedies in Roman-Dutch Law at p. 107 where the
author remarked as follows:
“ … Indeed,
there are many cases which seem to imply that the courts is even more
interested in discouraging conduct conducive to a breach of the peace
or calculated to bring the law into contempt or to undermine respect
for orderly conduct than in assisting the disposed person, and that
it will therefor not look too closely into the judicial nature of the
possession alleged, provided that some reasonable or plausible claim
can be maintained, together with an attempt by the respondent to
“take the law into his own hands”, in which case he will
be required to restore the status
Reference is also made in Ross (supra) at 870 B to the writer
Van der Walt (1984) THRHR 435 who goes so far as to
conclude that the mandament van spolie is a remedy for protection of
the public order, rather than a purely possessory remedy.
The Court in Ross (supra) at 870 D emphasises that the
question to the decided in a spoliation application was whether the
relationship between the person deprived and the thing was such as to
require protection in the interests of public order.
The present application is analogous to a spoliation application.
The second ground is that commercial considerations can justify
Channel Life Namibia Ltd v Finance in Education (Pty) Ltd and
Others Case No. (P) A 215/2004 delivered on 5 August 2004
(unreported) this Court referred with approval to the case of
Twentieth Century Fax Film Corporation and Another v Antony Black
Films (Pty) Ltd 1982 (3) SA 582 where the Court said the
following at 586 F – G:
“In my opinion the
urgency of commercial interests may justify the invocation of Uniform
Rule of Court 6(12) no less than any other interests. Each case must
depend upon its own circumstances. For the purpose of deciding upon
the urgency of this matter I assumed, as I have to do, that the
applicant’s case was good and that the respondent was
unlawfully infringing the applicant’s copyright in the films in
also Bandle Investments (Pty) Ltd v Registrar of Deeds and Others
2001 (2) SA 203 (SE) at 213 E – F).
The applicant in its founding affidavit sets out the circumstances of
this commercial urgency. It stated that the successful tenderer’s
tender involves alterations and refurbishments to the premises which
would take more than a month to complete and required immediate
occupation of the premises to do so. Should the applicant not be able
to provide vacant occupation of the premises to the successful
tenderer within ten days those refurbishments may not be capable of
being completed on time and the applicant would be severely
prejudiced in that it would be held liable for damages sustained by
the successful tenderer.
The applicant stated that the successful tenderer, Paragon, is to pay
a monthly rental of N$200 000.00 or 18% of turnover whichever is
greater. The respondent’s rental under its expired lease which
came to an end on 30 November 2007 was N$111 236.30 or 8% of
turnover, whichever was higher. This amount paid by the respondent to
occupy the premises for December 2007 was returned to the respondent.
If the commencement of the lease to Paragon is to be delayed, the
applicant stands to sustain a considerable loss of revenue quite
apart from its potential liability to Paragon. The applicant further
stated it would not be afforded substantial redress at a hearing in
due course since it had been informed that court dates in the first
term have already been allocated and the earliest an opposed
application in the normal course can be heard would be in the second
term which commences in mid May 2008.
It was on the basis of these two grounds that I was of the view that
the applicant could not have proceeded with this application in the
normal course to obtain relief and condonation of the applicant’s
non-compliance with the Rules relating to service and filing was
granted and allowed the application to be heard as one of urgency.
There are virtually no factual disputes. It was common cause that the
respondent occupied the premises. I also found that the applicant is
the owner of the premises leased by the respondent as alleged by the
applicant in its founding affidavit. The applicant further alleged in
its founding affidavit that the respondent was the lessee of the
premises and that the lease came to an end on 30 November 2007. The
fact that the lease agreement has been terminated by effluction of
time is not disputed by the respondent. It follows that the
respondent’s right to occupy the premises came to an end on 30
In Chetty v Naidoo 1974 (3) SA 13 AD in considering a claim
for ejectment the Court at 15 A held that one of the incidents of the
legal concept of ownership is “the right of exclusive
possession of the res with the necessary corollary that the owner may
claim its property wherever found, from whomsoever holding it”.
It was further held that the owner, in instituting a rei
vindicatio, need do no more than allege and prove that he is the
owner and the defendant is holding the res – the onus
being on the defendant to allege and establish any right to continue
to hold against the owner e.g. a right to possession by virtue of a
The respondent did not allege that it had an existing right of lease
to possess the property but alleged that the applicant would suffer
no financial prejudice should it continue to occupy the premises
against a monthly rental (in excess of what Paragon was obliged to
pay in terms of the tender) pending the outcome of the review
This however is no defence against the applicant’s prayer for
ejectment based on its ownership of the premises. In the
circumstances I am of the view that the applicant is entitled to the
relief sought in its notice of motion.
In a counter application the respondent prayed it be permitted to
continue to occupy the premises at Hosea Kutako International Airport
until this court has given a ruling on the Review Application (Case
if the court grants a provisional or final eviction order that such
order be suspended pending a ruling by the court in respect of the
pending Review Application (Case no. 327/2007).
Mr S Kaulinge, on behalf of the respondent/applicant, in his founding
affidavit stated that respondent (in the main application) has
undertaken to pay the rental it has tendered for the period after the
30th of November 2007, so that there would be no loss of
income arising to the applicant pending the outcome of the review
proceeding and thus applicant cannot say to suffer any prejudice
whatsoever if the respondent is allowed to stay on in the premises
until the review proceedings have been finally ruled upon by this
He further stated that, viewed on an objective basis, respondent’s
tender was not only the highest amount tendered in respect of the
rental but that respondent had 10 successful years of experience in
managing the duty free shop.
It was submitted that the review application has a good prospect of
succeeding and the Court will probably set aside the applicant’s
tender decision. The respondent denied that it has no legal basis in
law to continue to stay on the premises.
Mr Smuts submitted that the counter application should be dismissed
with costs on two grounds. Firstly the respondent/applicant
approached this court with “dirty hands”. Secondly, on
the basis of non-joinder.
respect of the first ground the legal principle pacta sunt
servanda is applicable. The respondent/applicant approached this
Court for certain relief whilst not honouring its agreement it had
with the applicant (in the main application). The lease agreement
having had expired on 30 November 2007 the respondent (in main
application) did not vacate the premises but conveyed its intention
to remain on the premises pending the outcome of the review
In Fraind v Nothmann 1991 (3) SA 837 (WLD) the court at 840
referred with approval to Mulligan v Mulligan 1925 WLD 164
where the following was stated at 167:
“Before a person
seeks to establish his rights in a Court of law he must approach the
Court with clean hands. Where he himself, through his own conduct
makes it impossible for the processes of the Court (whether criminal
or civil) to be given effect to, he cannot ask the Court to set its
machinery in motion to protect his civil rights and interests.”
In Associated Newspapers of Zimbabwe (Pvt) Ltd v Minister for
Information and Publicity in the President’s Office and Others
2004 (2) SA 602 (ZSC) the Court at 609 A –B remarked as
“Defiance of a
court order does not involve dishonesty or moral obliquity yet
litigants in defiance of court orders more often than not are denied
relief by the court until they have purged their contempt. In my
view, there is no difference in principle between a litigant who is
in defiance of a court order and a litigant who is in defiance of the
law. The Court will not grant relief to a litigant with dirty hands
in the absence of good cause being shown or until such defiance has
also Tsabalala and Others v Minister of Health and Others 1987
(1) SA 513 WLD 523 B – C; Barkhuizen v Napier 2007 (5)
SA 323 (CC) at 348 F – 349 B).
The respondent (in main application) is in defiance of an agreement
with the applicant (in main application) and cannot expect the relief
prayed for as long as it remains in defiance. On this ground the
counter application should be dismissed.
In respect of the second ground it is common cause that Paragon and
another unsuccessful tenderer where not cited in this counter
application although they had been cited in the review application.
Paragon and the other tenderer have direct and substantial interests
in the relief sought in this counter application and should have been
joined as necessary parties. Failure to join them renders the counter
application defective and stands to be dismissed for this reason as
The applicant being the successful party is entitled to costs.
Applicant prayed for costs on attorney-client scale. Costs on this
scale is not granted lightly but a court may having regard to special
considerations arising from the circumstances which gave rise to an
application or an action award costs on an attorney-client scale in
order for a successful party not to be out of pocket in respect of
the expense caused to him or her by the litigation.
circumstances which gave rise to the applicant bringing this
application was the improper conduct of the respondent to the extent
that the respondent resorted to self-help. I am of the view that a
special order is warranted against the respondent as a mark of
disapproval of such conduct by this Court.
BEHALF OF THE APPLICANT: ADV. SMUTS
by: ENGLING, STRITTER & PARTNERS
BEHALF OF THE RESPONDENT: ADV. SCHIMMING-CHASE
by: A VAATZ & PARTNERS