Court name
High Court
Case number
4196 of 2011
Title

Oosthuizen v Oosthuizen-Graf (4196 of 2011) [2012] NAHC 172 (28 June 2012);

Media neutral citation
[2012] NAHC 172
Coram
Ueitele AJ












CASE
NO A 4196/2011







IN
THE HIGH COURT OF NAMIBIA







In the matter
between







KARLL- HEINZ
OOSTHUIZEN
….........................................................PLAINTIFF








AND







NANCY
OOSTHUIZEN-GRAF
…........................................................DEFENDANT






Heard
on: 26 MARCH 2012



Delivered: 28 JUNE
2012












UEITELE A J [1]
On 18 November 2011 the plaintiff was granted leave to institute
action by way of edictal citation, but the Court Order that was on
the Court file amongst others read as follows:



Having heard
Ms
VON
KNOUW
,
Counsel for the Applicant and heaving read the Notice of Motion and
other documents filed of record:



1 1.1 An order to
restore conjugal rights to the Plaintiff and failing compliance
therewith;



1.2 a final order of
divorce.



2 Division of joint
estate;



3 Costs of suite
only in the vent of the action being defended;



4 Further and
alternative relief.”







[2] On 12 March
2012 the plaintiff’s legal practitioners set the matter down
for hearing on the unopposed motion roll of 26 March 2012.







[3] On the 26
March 2012 the matter was called before me for purposes of leading
evidence in respect of an application for restitution of conjugal
rights. I asked Ms Von Kunow who appeared for the plaintiff as to
whether the plaintiff had leave to institute action outside Namibia.
My question was motivated by the fact that the Court Order (of 18
November 2011) that was before me on the Court file did not indicate
that the plaintiff was granted leave to institute action against the
defendant by way of edictal citation it only read as I have quoted it
above here in paragraph 1 of this order.








[4] Ms Von Kunow
then indicated to me that she was in Court personally on 18 November
2011 and she can recall that the Court Order of that day (i.e. 18
November 2011) granted the plaintiff leave to sue the defendant by
means of edictal citation and that the service of the edictal
citation and any other process of the court must be served upon the
respondent (defendant) personally at No. 23 Travenstrasse, 53332
Bornheim, Federal Republic of Germany. (She unfortunately did not
have a copy of the correct Court Order at hand so the only Order that
was at hand was the Order that I referred to in paragraph 1 above.



[5] I therefore
postponed the matter to the 16th of April 2012 to enable
the plaintiff to have the Court Order of 18 November 2011 corrected
so that it reflects what this Court ordered on 18 November 2011. When
the matter was called on 16 April 2012 it was again postponed to 23
April 2012 and on that day the matter was removed from the roll
pending the delivery of my order.








[6] The Court
Order of 18 November 2011 has now been corrected and has been placed
on the Court file.







[7] In the result
I make the following order.



7.1 The plaintiff
be and is hereby granted leave to set the matter down for an
application for restitution of conjugal rights







_____________



UEITELE, AJ







.



ON BEHALF OF
THE PLAINTIFF
: MS VON KUNOW



INSTRUCTED BY:
THEUNISSEN, LOUW & PARTNERS







ON BEHALF OF
THE DEFENDANT
NO APPEARANCE