Court name
High Court
Case number
579 of 2011
Title

Nitrate Investments (Pty) Ltd v Shindume and Another (579 of 2011) [2012] NAHC 165 (27 June 2012);

Media neutral citation
[2012] NAHC 165
Coram
Miller AJ













CASE NO.: I 579/2011



REPORTABLE








IN
THE HIGH COURT OF NAMIBIA



In
the matter between:








NITRATE
INVESTMENTS (PTY) LTD
…...........................................APPLICANT/PLAINTIFF








vs








IMMANUEL
SHINDUME ….................................................1ST
RESPONDENT/DEFENDANT



WINDHOEK
TRUCK AND BAKKIE CC
….........................
2ND
RESPONDENT/DEFENDANT













CORAM: MILLER, AJ



Heard on: 15 June 2012



Delivered on: 27 June
2012








JUDGMENT








MILLER, AJ:
[1] This is the return date of a Rule Nisi issued on 17
February 2012. To place the matter in context it is necessary to have
regard to the circumstances in which it arose.








[2] On 04 March 2011 the
applicant commenced proceedings against the first respondent to whom
I will refer only as the respondent in this Court by way of a
combined summons. The applicant’s cause of action was one of
rei vindicatio. The plaintiff pleaded its cause of action
prior to the subsequent amendment in paragraphs 5-9 of the
Particulars of Claim; as follows



5.
At all relevant times hereto, the plaintiff was the owner of a
Mercedes Benz Truck with registration number N 133 795 W (hereinafter
referred to as the plaintiff’s truck). Proof of plaintiff’s
ownership thereof is annexed hereto as Annexure “NI1”.



6.
As at 22 October 2010 the defendant acquired possession and/or
ownership of the plaintiff’s truck. Proof thereof is annexed
thereto as Annexure “NI2”.



7.
The defendant allegedly acquired such possession and/or ownership of
the plaintiff’s truck from Mr. Leon Ferreira.



8.
The plaintiff however at all relevant times hereto had no intention
of entering into a transaction for the sale of the plaintiff’s
truck to the defendant.



9.
The defendant is in possession of the plaintiff’s property and
such possession is prima facie wrongful.”








[3] I confess to not
quite understanding what the applicant sought to convey with the
allegation in paragraph 9 that the defendant’s possession was
prima facie” unlawful. I would have thought that
either it was wrongful or it was not. Nothing turns on that, however,
and I will leave it at that, I note that the subsequent amendment of
this pleading addressed the problem.








[4] Based upon the
abovementioned allegations the applicant claims the following relief:








1.
Delivery of the plaintiff’s truck.



2.
Alternatively the value of the plaintiff’s truck to be
calculated on the day of trial.



3.
Costs of suit.



4.
Further and/or alternative relief.”








[5] On 14 March 2011, the
deputy-sheriff in Windhoek served the summons upon the respondent.








[6] On 23 March 2011, the
respondent caused a notice of intention to defend to be filed and
served and subsequently on 20 April 2011 the respondent’s plea
was filed. In his plea the respondent denied that the applicant is
the owner of the truck and pleaded instead that he was the owner. The
plea was subsequently amendment by a doing an alternative defence
that the applicant is estopped from asserting its right of ownership.








[7] There the pleadings
remained for the time being until the 9th of February
2012, when I advised the parties that the matter had been assigned to
me as the managing judge in terms of Rule 37 (1) of the Rules of the
High Court.








[8] I scheduled a case
management for 22 March 2012, on which date the matter was enrolled
for hearing on 11 June 2012. I also made some orders related to the
preparation of the case.








[9] I need only add for
the purposes of this judgment that following amendments to the
particulars of claim and the plea the matter could not proceed and is
new enrolled for hearing on 6 November 2012.








[10] I was advised during
the case management conference on 22 March 2012, that the applicant
obtained an ex-parte order against the respondents before
another member of this Court on 17 February 2012 in the following
terms:








IT
IS ORDERED:




  1. That
    a rule nisi is hereby issued, calling upon the Respondents to
    show cause, if any, to this Honourable Court, on Friday, 2 March
    2012 or so soon thereafter as counsel for respondents may be heard,
    why an order in the following terms should not be made:




    1. Directing
      and ordering the Deputy-Sheriff of the above Honourable Court for
      the district of Windhoek, alternatively, any other Deputy-Sheriff
      of the above Honourable Court in whose jurisdiction the truck
      referred to below may be found, to attach a certain Mercedes Benz
      1517 4x4 truck, bearing registration number N 133 796 W, vehicle
      identification number 36011320102071 and engine number 35290008307
      (“the truck”), currently in first respondent’s
      possession, pending resolution of a civil action currently
      instituted by applicant against first respondent under case number
      I 579/2011 (“the action”).



    2. Directing
      and ordering the afore named Deputy-Sheriff to, upon attaching the
      truck as aforesaid, store the truck at the premises of Aucor
      Namibia (Pty) Ltd, situated at the corner of Michelle &
      Platinum Street, Prosperity, Windhoek, Republic of Namibia, pending
      resolution of the action.



    3. Interdicting
      and restraining respondents from selling and/or hypothecating
      and/or encumbering the truck and/or removing the truck from the
      jurisdiction of the above Honourable Court and/or in any way
      disposing of the truck, pending resolution of the action.



    4. Directing
      and ordering applicant to provisionally pay all costs involved in
      storing the truck at the premises of Aucor Namibia (Pty) Ltd as
      aforesaid, pending resolution of the action.



    5. Directing
      and ordering that the costs of this application against first
      respondent be costs in the cause of the action, such costs pursuant
      on the employment of one instructing and one instructed counsel.
      (In the event of any other respondent opposing, directing and
      ordering such respondent to pay the costs of this application, such
      costs pursuant on the employment of one instructing and one
      instructed counsel).




  2. That
    the relief set out in paragraphs 1.1 to 1.3 above shall serve as an
    interim order with immediate effect, pending resolution of the
    action.



  3. That
    any respondent intending to anticipate the rule nisi shall do
    so only upon 72 hours’ notice to applicant.”









[11] The respondent
opposes the confirmation of the Rule Nisi. The second
respondent took no part in these proceedings.








[12] At the hearing
before me the applicant was represented by Ms. van der Merwe and the
respondent was represented by Mr. Namandje.








[13] Mr. Namandje
submitted that the applicant’s decision to approach this court
on an ex-parte basis on 17 February 2012 constituted an abuse
of the courts process. He referred to the fact that the first
respondent had been in possession of the truck for several months
prior to that, with full knowledge of the applicant’s claim to
it, but nonetheless made no attempt to dispose of the truck. In such
circumstances, he submitted, the applicant ought to have served the
application on the first respondent beforehand. There is merit in
those submissions.








[14] In the founding
affidavit the applicant seeks to justify its entitlement to bring the
application on an ex-parte basis on a single sentence
appearing on page 40 of the affidavit which reads as follows:








The
application is brought on an
ex-parte
basis because I fear that if first respondent is given notice of this
application, he will dispose of the truck or cause the truck to be
removed from the jurisdiction of this Honourable Court to be
applicants detriment.”








[15] Given the history of
the action which I have sketched that statement rings distinctly
hollow, and is not based on any fact.








[16] Ms. van der Merwe in
the Heads of Argument filed by her submitted that the issue of the
ex-parte application was res judicata and thus no
longer open for determination by this court. In argument before me
she correctly and properly conceded that the earlier submission
cannot be sustained. She submitted that the respondent had the option
to anticipate the return date if he considered himself aggrieved in
the process. In the circumstances he was not prejudiced, it was
submitted.








[17] In Knouwds NO
v Joseph & Another 2007 (2) N.R. 792
at page 796
paragraphs 18 & 19 Damaseb JP states the following:








[18]
This application was brought
ex
parte
,
i e without notice to the respondent(s). It is trite that a party who
comes to court without notice to a person affected by the relief it
seeks must act
bona
fide
and must disclose all relevant facts to the court. As to the
requirement of good faith in
ex
parte

applications, see Erasmus
Superior
Court Practice

at B142 and the authorities there collected. Acting
bona
fide
,
in my view, includes the duty to act fairly towards the affected
person. Thus considered, Mr. Corbett’s argument that all the
applicant(s) was required to do was to serve the
rule
nisi

only without the founding papers whose fruit the order is, presents
fundamental problems. To require only service of a court order on a
respondent against whom relief was obtained
ex
parte

is, in my view, inherently unfair and unjust. It is the founding
papers, not the court order, which contain the case the respondent(s)
were required to meet. Article 12(1)(a) of the Namibian Constitution
states:



In
the determination of their civil rights and obligations...all persons
shall be entitled to a fair hearing...



A
fair hearing it can hardly be disputed, includes the right to know
what case you are required to meet.



[19]
It was incumbent upon the applicant, and the court, to ensure that
the respondent(s) had proper notice of the case he (they) had to meet
and the only reasonable interpretation that can be placed on the
court order of 27 July is that not only the order, but the entire
application, had to be served on the respondent(s). Rule 6(5)(a)
of the rules of this court requires that true copies of the notice of
motion and all annexures to it must be served on the affected party.
“Service” normally includes an explanation of the nature
and meaning of the process (Botha NO v Botha 1965 (3) SA 128
(E) at 130 F-G
; Herbstein and Van Winsen The Civil
Practice of the Supreme Court of South Africa 4 ed at 279).








[18] Ms. van der Merwe
submitted that this case is distinguishable if regard be had to
Witvlei Meat (Pty) Ltd & Five Others vs Disciplinary
Committee for Legal Practitioners and Five Others
(an
unreported judgment of this court delivered on 20 February 2012).








[19] I do not agree. This
case is an all fours with the Knouwds case. I add that in this case
only the order was served on the first respondent’s legal
practitioners on 28 February 2012.








[20] In addition, seen
against the backdrop of the litigation in this matter and how it
developed up to the point where the application was launched, it
cannot be said that the applicant acted bona fide and in good
faith. The applicant’s decision to bring the application on an
ex parte basis seems to me to be opportunistic.








[21] I will on that basis
alone be inclined to discharge the rule nisi issued.








[22] In addition and on
the merits of the matter I find that the applicant has not made out
any case for the attachment of the truck. The issue of the ownership
of the truck remains in dispute in the upcoming trial. In its amended
plea the first respondent in addition pleads that the applicant is
stopped from asserting its right of ownership. I will not say more
about that other than the state that the issues raised by the first
respondent are not frivolous and constitute triable issues. The
applicant claims as alternative relief monetary compensation to the
value of the truck. There is no allegation that the respondent will
not be capable of satisfactory the amount claimed.








[23] I will accordingly
make the following order:








[24] The rule nisi
issued on 17 February 2012 is discharged with costs.








_________



MILLER AJ








ON BEHALF OF THE
APPLICANT:
Ms. van der Merwe



Instructed by:
Engling, Stritter & Partners


















ON BEHALF OF 1ST
RESPONDENT: Mr. Namandje



Instructed by:
Sisa Namandje & Company