Court name
High Court
Case number
29 of 2012
Title

Hessel-Enke v Sindlgruber and Others (29 of 2012) [2012] NAHC 119 (18 May 2012);

Media neutral citation
[2012] NAHC 119
Coram
Hoff J


















NOT REPORTABLE



CASE NO: A 29/2012







IN THE HIGH COURT OF NAMIBIA







MAIN DIVISION







HELD AT WINDHOEK











In the matter between:











SUNCICA HESSEL-ENKE
…....................................................................................
APPLICANT







and







ANDREAS SINDLGRUBER
…......................................................................1ST
RESPONDENT



REGISTRAR OF DEEDS
…..........................................................................2ND
RESPONDENT



BANK WINDHOEK NAMIBIA LIMITED
…....................................................3RD
RESPONDENT



DR WEDER, KAUTA & HOVEKA INC.
….....................................................4TH
RESPONDENT



ANDRE SWANEPOEL
…..............................................................................5TH
RESPONDENT



MARIAN HERBST REAL ESTATE
…...........................................................6TH
RESPONDENT















CORAM: HOFF, J















Heard on: 07 May 2012











Delivered on: 18 May 2012











JUDGMENT



Urgent Application











HOFF, J: [1] This
is an urgent application in which the applicant seeks an interim
interdict preventing the second respondent from executing any
documents or signing any deed of transfer effecting the sale of
immovable property Erf 3134 Windhoek (the property) to any third
party pending the finalisation of an application (the main
application) instituted by the applicant relating to the same
property under the same case number, and interdicting the sale of
afore-mentioned immovable property by the first respondent.







[2] The main application is an
application in which the applicant seeks an order that the second
respondent be directed to amend and/or vary and/or rectify and/or
correct the deed of transfer held under no. T 2384/2001 and the index
card at the offices of the second respondent in respect of the
property mentioned, to reflect the applicant and first respondent as
equal joint owners of the said property. The main application is
opposed by the first respondent.







[3] The second, third, fourth, fifth
and sixth respondents do not oppose this urgent application.







[4] The first respondent and applicant
were married to each other but divorced on 20 November 1998.







[5] After their divorce on 26 January
2001 the property was purchased by applicant and first respondent. A
bond in the amount of N$300 000.00 was registered over the property
in favour of Commercial Bank of Namibia (now Nedbank Namibia
Limited). Proceeds from a loan taken (and to which the bond was lent)
were paid to applicant by the first respondent as agreed and used by
applicant to invest in a property described as Flat 11, Barcelona
Flats Olympia, Windhoek. First respondent undertook to pay the full
monthly instalments on the bond. Subsequently the relationship
between the applicant and first respondent deteriorated to the extent
that they only communicated through their respective legal
representatives or when the exchange of their minor children took
place.







[6] During the first week of February
2009 it came to the attention of the applicant that the first bond
had been cancelled and that a current bond had been registered over
the property in favour of the third respondent. According to the
applicant this was done without her consent. The applicant
immediately addressed the matter with her erstwhile legal
practitioners who in turn addressed a letter to the first and third
respondents. From a file at the second respondent’s offices, it
appears that an application together with an affidavit deposed to by
first respondent purportedly in terms of section 4(1)(b) of the Deeds
Registries Act of 1937 (Act No. 47 of 1937) (hereinafter referred to
as the Deeds Registries Act) was submitted by the fifth respondent.
In this affidavit the first respondent stated under oath that the
vesting clause and marital status in the deed of transfer no. T
2384/2001 were incorrect due to a conveyancing error and that it was
only the first respondent who had purchased the property. Furthermore
it was stated in the affidavit that an amendment to the vesting
clause and marital status would not affect any transfer of rights
whatsoever.







[7] The first respondent in the
affidavit requested that the vesting clause in the deed of transfer
should be amended to reflect that first respondent is the sole owner
of the property. The applicant in her founding affidavit stated that
she never sold or relinquished her joint ownership in and to the
property and never consented to the amendment of the deed of
transfer. The applicant avers that the first respondent is
fraudulently seeking to remove her name as joint owner of the
property and that the purpose behind this was to register the new
bond in favour of the third respondent without her consent or
knowledge.



The relief applicant seeks in the main
application is to rectify the deed of transfer to reflect applicant
as joint owner of the property.







[8] On 4 August 2011 a letter was
addressed by applicant’s legal practitioners to the legal
practitioner of the first respondent advising the first respondent
that the endorsement of the title deed by the Registrar of Deeds was
in contravention of section 4(1)(b) of the Deeds Registries Act and
was done without the consent of the applicant and its effect on
transfer of rights.







[9] It was further pointed out that
the first respondent misrepresented to Bank Windhoek Limited (third
respondent) that he had the sole authority to take out a mortgage
bond with Bank Windhoek Namibia Limited for the sum of N$445,400.00
and Bank Windhoek Namibia Limited thereafter, acting on the
misrepresentation, took over the bond from Nedbank Namibia Limited
and registered a new bond in the sum of N$445,400.00 in favour of
Bank Windhoek Namibia Limited.







[10] Applicant’s legal
representative demanded the cancellation of the endorsement on the
title deed of the property. No response was received from the legal
practitioner of first respondent, Mr Brandt, and applicant
subsequently launched the main application.







[11] What gave rise to this
application was that on 29 March 2012 applicant’s husband,
Roland Enke, discovered by chance that the first respondent was
attempting to sell the property when he noticed the property was
being advertised for sale on the internet website of Marian Herbst
Real Estates (sixth respondent). The applicant was informed of this
development. Marian Herbst confirmed that she had the mandate to sell
the property on behalf of the first respondent and confirmed that a
contract of sale had already been drafted and signed by an
undisclosed purchaser.







[12] It was further established that
the purchaser has already obtained bond approval from his or her bank
for the purchase of the property in the amount of N$2,995,000.00. It
was also established that the first respondent would be paid
N$2,800,000.00 from the sale save for any outstanding payments on the
current bond and that the first respondent was set to sign the
contract of sale on 10 April 2012.



[13] On the same day, 29 March 2012,
applicant’s legal practitioners addressed a letter to first
respondent’s legal practitioner which was copied to first,
second and sixth respondents in which it was specifically recorded
that the main application had already been instituted; that the
application had been served on second to fifth respondents, but that
the deputy sheriff could not locate the first respondent for purposes
of service and that an amended notice of motion setting new dies
was to be served shortly; that an urgent application interdicting the
sale of the property pending the determination of the main
application would be instituted should the sale not be stopped; that
the applicant would be willing for the property to be sold but was
not prepared for any amount to be deducted from her half share of the
proceeds in order to satisfy any amount still due on the Bank
Windhoek bond, and that applicant was still prepared to settle the
matter on certain terms once she has again been registered as
co-owner of the property.







[14] A response was received from
sixth respondent indicating that first respondent has not yet signed
the deed of sale and that the first respondent had discussed
applicant’s “involvement with the deal with his lawyer”
and that the lawyer would take up the matter with applicant’s
legal representative.







[15] The applicant stated in her
founding affidavit that as at the date of deposing to her affidavit
in this urgent application (on 12 April 2012) no response to the
correspondence of her legal practitioner was forthcoming (from the
first respondent).







[16] The first respondent in his
answering affidavit mainly denies that this application is urgent and
avers that the applicant has created the urgency either mala fide
or through her culpable remissness or inaction by failing to take
steps to rectify the registration of Erf 3134 Windhoek at an earlier
point in time, that applicant does not offer any explanation why she
delayed from the beginning of 2009 to bring the application to
interdict the sale of the property, that she was fully aware about
the sale of the property “for a long time’, and applicant
was aware that Erf 3134 was registered solely in his name.







[17] These averments were denied by
the applicant in her replying affidavit.







[18] Mr Brandt who appeared on behalf
of the first respondent, limited himself to the issue of urgency and
argued in essence what appears in the answering affidavit of the
first applicant.







[19] I do not agree that the applicant
has created the urgency herself. When the applicant discovered during
February 2009 that the first respondent had unilaterally cancelled
the first bond and registered the current bond over the property she
took immediate remedial steps by addressing the matter with her
erstwhile legal practitioners. Subsequently various letters were
exchanged between the various legal representatives without any
solution. This impasse appears from the founding affidavit of the
applicant to be the result of the attitude of the first, fourth and
fifth respondents that the only option for the applicant to have the
deed of transfer rectified was for applicant to confirm the
application and affidavit in terms of section 4(1)(b) of the Deeds
Registries Act to the effect that deed of transfer no. T 2384/2001
had been erroneously endorsed and to sign the current bond in favour
of the third respondent, something she was at all material times not
prepared to do.







[20] However the urgency came about
when it was discovered, after the main application was launched, that
the first respondent was in the process of selling the property
without the consent of the applicant and that a prospective buyer had
already signed the deed of sale. I am satisfied that the applicant
has as soon as reasonably possible after becoming aware of the
impending sale of the property, and when it became clear that the
first respondent intended to proceed with the sale of the property
regardless of the fact that the main application has been launched,
instituted the present urgent application proceedings. I am further
satisfied that the applicant in these circumstances would not be
afforded substantial redress at a hearing in due course.







[21] Ms Schimming-Chase who appeared
on behalf of the applicant referred this Court to the requirements
that must be met by an applicant in order to succeed in an
application for a temporary or interim interdict as set out in the
case of Eriksen Motors Ltd v Protea Motors, Warrenton and Another
1973 (3) SA 685 (A) at 691 C - F where the following appears:







The granting of an
interim interdict pending an action is an extra-ordinary remedy
within the discretion of the Court. Where the right which it is
sought to protect is not clear, the Court’s approach in the
matter of an interim interdict was lucidly laid down by INNES J.A.,
in
Setlogelo
v Setlogelo

1914 AD 221 at p. 227. In general the requisites are:








  1. a right which, “though
    prima facie established, is open to some doubt”;



  2. a well grounded
    apprehension or irreparable injury;



  3. the absence of ordinary
    remedy.








In exercising its
discretion the Court weighs, inter alia, the prejudice to the
applicant, if the interdict is withheld, against the prejudice to the
respondent if it is granted. This is sometimes called the balance of
convenience. The aforegoing considerations are not individually
decisive, but are interrelated; for example, the stronger the
applicant’s prospects of success the less his need to rely on
prejudice to himself. Conversely, the more the element of “some
doubt”, the greater the need for the other factors to favour
him. The Court considers the affidavits as a whole, and the
interrelation of the foregoing considerations, according to the facts
and probabilities.”



(See also Alpine Caterers Namibia
(Pty) Ltd v Owen and Others
1991 NR 310 (HC); Clear Channel
Independent Advertising Namibia and Another v TransNamib Holdings Ltd
and Others
2006 (1) NR 121 at para. 15 and 16;



Uffindel t/a Aloe Hunting Safaris v
Government of Namibia and Others
2009 (2) NR 670 (HC) ).



[22] The first respondent in his
answering affidavit to this urgent application incorporates his
answering affidavit to the main application.







[23] In his answering affidavit to the
main application the first respondent admits that it is incorrect
that he is the sole owner of the property and that applicant never
sold or relinquished her joint ownership in the property. He also
admits that the applicant never consented to the amendment of the
deed of transfer. This is a material contradiction to what is stated
in his answering affidavit to the urgent application namely that the
applicant was aware of the fact that Erf 3134 was registered solely
in first respondent’s name.







[24] The first respondent in his
answering affidavit to the main application admits that he was never
entitled to have the previous bond cancelled and have a new one
registered without the applicant’s written consent, which she
did not provide; first respondent admits that he could effectively
sell the property without the knowledge of the applicant and that he
could retain the profit; first respondent admits that the property
could be sold in execution if he fails to service the bond which was
unlawfully registered; and the first respondent further admits to the
relief sought by the applicant in the main application.







[25] Having regard to the admissions
made by the first respondent it remains an enigma why the first
respondent persists with his opposition to this urgent application as
well as the main application. I am of the view that a plausible
explanation is that the first respondent (mindful of the animosity
between first respondent and the applicant) deliberately endeavours
to deny, for reasons known only to the first respondent, the
applicant the relief being sought by the applicant in the main
application. This in my view amounts to an abuse of process.







[26] I am of the view that the
applicant has met the requirements set out afore-mentioned and that
the balance of convenience favours the granting of an interim
interdict.







[27] Paragraphs 10.2 and 10.3 of the
first respondent’s answering affidavit in the main application
amount to prayers which are in essence a counter application and
since this answering affidavit has been incorporated in his answering
affidavit to this urgent application the following needs to be
mentioned. Firstly, the relief sought by the first respondent is
premature vis-à-vis this urgent application and
secondly, this counter application stands to be struck from the roll
as the first respondent has not made out a case for the relief sought
to be heard as a matter of urgency.







[28] The applicant in her founding
affidavit seeks a cost order on an attorney-client scale. It is trite
law that punitive costs would only be awarded in exceptional
circumstances and where the conduct of a litigant warrants such an
award as a mark of disapproval by a Court. I have indicated
previously that the conduct of the first respondent in opposing this
urgent application amounts to an abuse of process, is reprehensible,
and is oppressive towards the applicant and this Court exercises its
discretion in favour of granting a cost order on an attorney-client
scale.







[29] In the result, the following
orders are made:








  1. The Court condones the applicant’s
    non-compliance with the Rules of this Court with regards to forms
    and service and hears this matter on an urgent basis as envisaged by
    the provisions of Rule 6(12) of the Rules of this Court.









  1. The second respondent is interdicted
    from signing any deed of transfer or any related documentation for
    the sale of the property, Erf 3134 Windhoek (Deed of transfer no. T
    2384/2001), pending finalisation of the application instituted by
    the applicant under Case No. A 29/2012.










  1. The first respondent is interdicted
    to sell the property to any third party.










  1. Orders 2 and 3 shall operate as an
    interim interdict with immediate effect.










  1. The counter-application as reflected
    in paragraphs 10.2 and 10.3 of first respondent’s answering
    affidavit to the main application, in so far as it is relevant to
    this urgent application, is struck down.










  1. The first respondent is ordered to
    pay the costs of this application on an attorney-client scale.




























________



HOFF, J



































ON BEHALF OF THE APPLICANT: ADV.
SCHIMMING-CHASE







Instructed by: KOEP & PARTNERS















ON BEHALF OF THE 1ST
RESPONDENT: MR BRANDT











Instructed by: CHRIS BRANDT
ATTORNEYS











ON BEHALF OF THE 2ND
6THRESPONDENTS: NO APPERANCE