CASE NO.: A 27/2012

REPORTABLE

IN THE HIGH COURT OF NAMIBIA

In the matter between:

AUGUST MALETZKY 1^STAPPLICANT

WILMA EVELINE HOABES 2^ND APPLICANT

SALMAAN DHAMEER JACOBS 3^RD APPLICANT

ANNARINE JACOBS 4^TH APPLICANT

CALISTA ANNA BALZER 5^TH APPLICANT

RONNEY REINHOLD HANGULA 6^TH APPLICANT

SIEGFRIED BROCKERHOFF 7^TH APPLICANT

EVANGELINE EICHAB 8^TH APPLICANT

DORKA VICTORINE SHIKONGO 9^TH APPLICANT

EDUARD PAUL XOAGUB 10^TH APPLICANT

FRANCIS EVELINE XOAGUS 11^TH APPLICANT

ABRAHAM MAPELA PETRUS 12^TH APPLICANT

ROMEO MOUTON 13^TH APPLICANT

ANTON HERMANN 14^TH APPLICANT

JOHANNES NEUAKA 15^TH APPLICANT

LISA RHODE 16^TH APPLICANT

FILIMON HOXOBEB 17^TH APPLICANT

FRANCOIS DARIES 18^TH APPLICANT

FRANS NAIBAB 19^TH APPLICANT

ISABELLA ISABEAU 20^TH APPLICANT

CORISTOFFEL STEENKAMP 21^ST APPLICANT

KATRINA FRANCINA STEENKAMP 22^ND APPLICANT

LAZARUS GAROEB 23^RD APPLICANT

ANNA MARIE HENDRIKS 24^TH APPLICANT

VICKSON HANGULA 25^TH APPLICANT

GAFENI HAIKOTI 26^TH APPLICANT

PAULINA GARISES 27^TH APPLICANT

PHILLIPUS GARISEB 28^TH APPLICANT

JOHANNES HAGGINS AUPAPA NIIGAMBO 29^TH APPLICANT

and

STANDARD BANK NAMIBIA LIMITED 1^ST RESPONDENT

NEDBANK NAMIBIA LIMITED 2^ND RESPONDENT

HES SHIKONGO 3^RD RESPONDENT

FIRST NATIONAL BANK OF NAMIBIA LIMITED 4^TH RESPONDENT

WINDHOEK MUNICIPALITY COUNCIL 5^TH RESPONDENT

SWABOU INVESTMENTS (PTY) LTD 6^TH RESPONDENT

VSV ENTERPRISES NUMBER SIXTY CC AND/OR

NOMINEE J P VAN STADEN OR L J VAN STADEN 7^TH RESPONDENT

ALEXANDER HOVEKA 8^TH RESPONDENT

HARTMUST GERHARD FOELSCHER 9^TH RESPONDENT

MINISTER OF JUSTICE 10^TH RESPONDENT

REGISTRAR OF HIGH COURT 11^TH RESPONDENT

CLERK OF THE MAGISTRATE’S COURT 12^TH RESPONDENT

REGISTRAR OF DEEDS 13^TH RESPONDENT

ATTORNEY-GENERAL 14^TH RESPONDENT

THE DEPUTY-SHERIFF 15^TH RESPONDENT

VAN DER MERWE-GREEFF INC. 16^TH RESPONDENT

BANK WINDHOEK LIMITED 17^TH RESPONDENT

SOUTH WEST AFRICAN BUILDING SOCIETY 18^TH RESPONDENT

RISTO SHIKULO 19^TH RESPONDENT

JULIA THANDU NEUAKA 20^TH RESPONDENT

GERARDT DE KLERK 21^ST RESPONDENT

SHARON DE KLERK 22^ND RESPONDENT

BANK OF NAMIBIA 23^RD RESPONDENT

BOY TOBIAS VAN WYK 24^TH RESPONDENT

MORVEN M LUSWENYO 25^TH RESPONDENT

BUILDERS WAREHOUSE (PTY) LTD 26^TH RESPONDENT

ANTHONY ABRAHAMS 27^TH RESPONDENT

ABRAHAM GARISEB 28^TH RESPONDENT

MIEMIE GENGOS 29^TH RESPONDENT

PETRUS VILJOEN 30^TH RESPONDENT

DAWID JOHANNES WERNER 31^ST RESPONDENT

WILLEM KARUOOMBE 32^ND RESPONDENT

ELVISIA KARUOOMBE 33^RD RESPONDENT

IVAN JOSEPH CECIL DROTSKY 34^TH RESPONDENT

NATIONAL HOUSING ENTERPRISE 35^TH RESPONDENT

RONALDT KAPUOO 36^TH RESPONDENT

WOERMAN BROCK & CO. WINDHOEK (PTY) LTD 37^TH RESPONDENT

CONSTANCE MBAPAHA 38^TH RESPONDENT

SAM HALUPE 39^TH RESPONDENT

ADRIAAN MICHAU BASSON 40^TH RESPONDENT

CORAM: MILLER, AJ

Heard on: 03 July 2012

Delivered on: 31 July 2012

JUDGMENT

MILLER, AJ.: [1] This is an interlocutory matter in terms of Rule 30 of the Rules of this Court.

[2] The application is directed at what certain of the respondents allege are irregular steps taken by the applicants when they instituted motion proceedings against them and several other respondents.

[3] At the hearing before me Mr. Totemeyer SC together with Mr. Obbes appeared for the 1^st, 6^th and 18^th respondents. Mr. Totemeyer SC together with Ms. van der Westhuizen also appeared for the 5^th respondent. Mr. Mouton appeared for the second respondent. The first and 10^th applicants appeared in person to oppose the matter.

[4] As matters turned out I heard submissions from Mr. Totemeyer only on behalf of the respondents, Mr. Mouton associated himself with the submissions made by Mr. Totemeyer. Mr. Maletzky, the first applicant was the only applicant to address me at the hearing.

[5] The first applicant submitted as a first point in limine that there was no clarity as to which legal practitioners had been instituted by the respondents. He went on to challenge the authority of the legal practitioners to act on behalf of the respondents and submitted that it was incumbent upon the legal practitioners to file a power of attorney authorizing them to appear and act on behalf of the respondents. I need not dwell on this point save to say it has no merit

[6] There is no such requirement in motion proceedings. The point taken is dismissed.

[7] In turn to consider the grounds advanced by Mr. Totemeyer I bear in mind that in so doing, I have discretion to grant or refuse the relief sought. My discretion must be exercised judicially, and based upon a consideration of all the circumstances and what is fair to both sides. Northern Assurance Co. Ltd v Somdaka 1960 (1) SA 588 A.

[8] A Court will be entitled to condone in appropriate circumstances irregularities which do not have as their result that the other party is prejudiced by such irregularities.

[9] In SA Lewensversekering v Leuw NO 1981 (4) SA 329 (O) Flemming J, held that:

“...the exercise of the Court’s discretion has been consistently led by the presence or absence of prejudice in relation to the exercise of a party’s procedural right or duty to respond to a communication received, or to the taking of a next step in the sequence of permissible procedures to ripen the matter for properly orderly hearing. Where such prejudice is absent, a decision to set the irregular proceeding aside should not be granted.”

[10] Likewise in Trans-African Insurance Co. Ltd v Mololeka 1956 (2) SA 273 (A) the Court stated at page 278 F the following:

“No doubt parties and their legal practitioners should not be encouraged to become slack in the observance of the Rules, which are an important element in the machinery for the administration of justice. But on the other hand technical objections to less than perfect procedural steps should not be permitted in the absence of prejudice to interfere with the expeditious and, if possible, inexpensive decision of cases on their real merits.”

[11] I do not deem it necessary to deal exhaustively with each of the steps taken by the applicants which the respondents contend are irregular. I am prepared to accept that individually and collectively, the steps taken and complained of are to a greater or lesser degree irregular thus rendering the papers filed by the applicants less than perfect.

[12] However when looking at the papers as a whole imperfect as they may be, none of the respondents who complain about them, can show that they are prejudiced by these irregularities.

[13] In the result the applications are dismissed with costs, such costs to be limited to necessary expenses and disbursements.

__________

MILLER AJ

ON BEHALF OF THE 1^ST & 10^TH APPLICANTS: Appearing in person

ON BEHALF OF THE 1^ST, 6^TH & 18^TH RESPONDENTS: Mr. Totemeyer assisted by

Mr. Obbes

INSTRUCTED BY: Fisher, Quarmby & Pfeifer

ON BEHALF OF THE 5^TH RESPONDENT: Mr. Totemeyer assisted by

Ms. van der Westhuizen

INSTRUCTED BY: Etzold-Duvenhage

ON BEHALF OF THE 2^ND RESPONDENT: Mr. Mouton

INSTRUCTED BY: Koep & Partners