Court name
High Court
Case number
2302 of 2007
Title

Nakuumba v Taeuber & Corssen Swa (Pty) Ltd (2302 of 2007) [2012] NAHC 122 (21 May 2012);

Media neutral citation
[2012] NAHC 122
Coram
Ndauendapo J














7








IN THE HIGH COURT OF
NAMIBIA



CASE NO.: (P) I
2302/2007



In the matter between:







MALAKIA LUKAS NAKUUMBA
….....................................................................PLAINTIFF



and



TAEUBER & CORSSEN
SWA (PTY) LTD

…..................................................DEFENDANT







CORUM: NDAUENDAPO, J



Heard on: 24 February
2009



Delivered on: 21 May 2012



___________________________________________________________________



JUDGMENT:


NDAUENDAPO,
J
:





[1]
The Plaintiff instituted an action for payment in the amount of
N$108000.00 for arrear rental against the defendant.


The
Plaintiff, Malakia Lukas Nakuumba and the defendant Taeuber &
Corssen SWA (Pty) Ltd entered into a lease agreement whereby the
plaintiff let to the defendant a property known as part a of a
building on Erf 258 Oshakati west, the lease period was for 3 years
from 1 July 2003 to 30 June 2006 at an amount of N$9000.00 per
month..


[2]
At the expiry of the lease agreement, it was extended on a month to
month basis at a monthly rental of N$9000.00. From the 30 June 2006
the defendant remained in occupation of the premises and it failed to
pay the monthly rental for the months of July 2006 to July 2007.


[3]
The defendant pleaded that it paid the rental for the months of July
2006 to July 2007 which payments had been made to the deputy sheriff
of Windhoek as defendant was legally obliged to do so pursuant to a
warrant of execution granted against the plaintiff in favour of
Matador Enterprises (PTY) Ltd in case No I 1684/9, in terms of which
the rental payment cheques were attached.


[4]
Mr Nakuumba testified that he is a businessman and the owner of the
rented property. He testified that the lessee should have paid him
N$9000.0 per month from July 2006. He demanded payment, but he did
not receive it.


He
also testified that he did not receive the warrant of execution in
case no (T) 1684/9 which was issued against him in favour of Matador
Enterprises (Pty) Ltd. He also testified that nobody came to him to
demand payment in respect of case ns (T) 1684/9. He also testified
that he did not receive any summons in that case. That was the case
for the plaintiff.


Defendant’s
case


[5]
Mr Van Staden testified that he was employed by the defendant as its
financial director. He testified that payment to the plaintiff (rent)
was effected by electronic transfer to Onesi Drankwinkel bank
account. The rent for July 2006- to July 2007 was paid to the deputy
Sheriff as a result of a warrant of execution and a garnishee order
in case no: (T) 1684/9 served on them.


It
was put to the witness in cross examination that the summons and the
warrant of execution in case no (T) 1684/9 was not served on the
plaintiff and he did not trade as Oshakati supermarket. The witness
testified that he had no knowledge about that.


[6]
The next witness was Mrs Esterhyzen the deputy sheriff (for the
district of Windhoek). She testified that she received a letter from
P.F Koep and Co dated 4 November 2005.


The
letter is addressed to the Deputy Sheriff Windhoek and it states:


Dear
Sir


RE:
National Cold Storage//Malakia T/A Oshakati Supermarket case no
1947/2000.


Attached
please find a warrant of execution in duplicate for service at the
offices of Taeunber & Corssen SWA (Pty) Ltd 11 Ruhr Street,
Northern Industrial Area, Windhoek.


We
had a telephonic conversation with Mr Gerhad Van Staden, the
financial director to Taeuber & Corssen, who confirmed that they
were paying from time to time monies by electronic transfers over to
Mr Malakia with regards to a certain building that Taeuber &
Corssen SWA Pty Ltd is renting from Malakia.


Please
proceed to attach such monies soonest and furnish us with your return
of service.”


Based
on that letter, she issued a garnishee order and a warrant of
execution. She testified that if it was rent, then only one garnishee
order was needed. She proceeded to the address provided in the letter
and attached the cheques due to plaintiff and the monies were paid
over to PF Koep & Co. That was the case for the defendant.


[7]
Mr Namandje submitted that the garnishee order was not submitted in
court (on which the attachment was based). Mr Namandje further
submitted, correctly in my view, that in terms of Rule 45 (12) that
there should be notice and demand for payment from the judgment
debtor before attachment. The real issue before this Court is whether
there was a valid attachment in terms of Rule 45 (3) procedures.


[8]
Rule 45 (3) provides that wherever by any process of the court the
deputy sheriff is commanded to levy and raise any sum of money upon
the goods of any person, he or she
shall forthwith himself
or herself or by his or her assistant proceed to the dwelling-house
or place of employment or business of such person (unless the
judgment creditor shall give different instructions regarding the
situation of the assets to be attached, and there


(a)
Demand satisfaction of the writ and failing satisfaction


(b)
Demand that so much movable and disposable property be pointed out as
he or she may deem sufficient to satisfy the said warrant and failing
such pointing out.


(c)
Search for such property. .


In
Reichenber V Deputy Sheriff Johannesburg. In Re Reicheuberg V Joel
Melamed & Hurwitz and others (1992 (2) 381 WLC
the court
held that from the above the deputy sheriff must in the first
instance demand satisfaction of the writ the writ is issued in
respect of a claim for a sum of money due to the execution creditor.
If demand is not satisfied, then the deputy sheriff is empowered to
attaché movable and disposable property to satisfy the
warrant.


Rule
45 (3) requires a demand to be made. It may be the judgment debtor to
whom the demand is made, but in terms of the second proviso it could
be someone else, I am satisfied there must be a demand.’


[9]
Ms Da Silva submitted that in terms of Rule 45 (12) no demand is
needed for satisfaction of payment. It prevents the judgment debtor
to dispose of his assets.


Rule
45 (12) provides that.


12
(a) whenever it is brought to the knowledge of the sheriff that there
are debts which are subject to attachment, and are owing or accruing
from a third person to the judgment debtor, the sheriff may, if
requested thereto by the judgment creditor, attach same, and
thereupon shall serve a notice on such third person, hereinafter
called the garnishee, requiring payment by him or her to the sheriff
of so much of the debt as may be sufficient to satisfy the writ, and
the sheriff may upon any such payment, give a receipt to the
garnishee which shall be discharged
pro
tanto
,
of the debt attached.


I
disagree with the submission by Ms Da Silva that no demand is needed
for satisfaction of payment. In my view Rule 45 (3) is peremptory.
The use of the word ‘shall’ in rule 45 (3) shows that the
procedures set out in Rule 45 (3) must first be exhausted and only
after the debt remains unpaid, can Rule 45 (12) (a) be invoked.


In
casu, there is no evidence that demand was made for the satisfaction
of the debt from the judgment debtor (the plaintiff in this case)


In
the result, I make the following order.


1.
The attachment of plaintiff ‘s rental payment cheques by the
deputy sheriff pursuant to a warrant of execution granted against the
plaintiff in favour of Matodor Enterprises (Pty) Ltd in case no. (T)
1684/9 is invalid and is set aside.


2.
Defendant is ordered to pay the Pl


aintiff
an amount of N$108 000.00 in arrear rental.


3.
Interest on the aforesaid amount at the rate of 20% per annum a
tempore morae, until date of final payment.


4.
Costs of suit.


______________________________





NDAUENDAPO,
J











ON
BEHALF OF PLAINTIFF: SISA NAMANDJE


INSTRUCTED
BY: NAMANDJE & CO





ON
BEHALF OF DEFENDANT:
DA SILVA


INSTRUCTED
BY:
KOEP & PARTNERS