Court name
High Court
Case number
27 of 2012
Title

Maletzky and Others v Standard Bank Namibia Ltd and Others (2) (27 of 2012) [2012] NAHC 217 (31 July 2012);

Media neutral citation
[2012] NAHC 217
Coram
Miller AJ



CASE NO.: A 27/2012

REPORTABLE

 

IN THE HIGH COURT OF NAMIBIA

 

 

In the matter between:

 

 

AUGUST MALETZKY …..............................................................................................1STAPPLICANT

WILMA EVELINE HOABES ….................................................................................2ND APPLICANT

SALMAAN DHAMEER JACOBS 3RD APPLICANT

ANNARINE JACOBS 4TH APPLICANT

CALISTA ANNA BALZER 5TH APPLICANT

RONNEY REINHOLD HANGULA 6TH APPLICANT

SIEGFRIED BROCKERHOFF 7TH APPLICANT

EVANGELINE EICHAB 8TH APPLICANT

DORKA VICTORINE SHIKONGO 9TH APPLICANT

EDUARD PAUL XOAGUB 10TH APPLICANT

FRANCIS EVELINE XOAGUS 11TH APPLICANT

ABRAHAM MAPELA PETRUS 12TH APPLICANT

ROMEO MOUTON 13TH APPLICANT

ANTON HERMANN 14TH APPLICANT

JOHANNES NEUAKA 15TH APPLICANT

LISA RHODE 16TH APPLICANT

FILIMON HOXOBEB 17TH APPLICANT

FRANCOIS DARIES 18TH APPLICANT

FRANS NAIBAB 19TH APPLICANT

ISABELLA ISABEAU 20TH APPLICANT

CORISTOFFEL STEENKAMP 21ST APPLICANT

KATRINA FRANCINA STEENKAMP 22ND APPLICANT

LAZARUS GAROEB 23RD APPLICANT

ANNA MARIE HENDRIKS 24TH APPLICANT

VICKSON HANGULA 25TH APPLICANT

GAFENI HAIKOTI 26TH APPLICANT

PAULINA GARISES 27TH APPLICANT

PHILLIPUS GARISEB 28TH APPLICANT

JOHANNES HAGGINS AUPAPA NIIGAMBO 29TH APPLICANT

 

and

 

STANDARD BANK NAMIBIA LIMITED ….......................................................1ST RESPONDENT

NEDBANK NAMIBIA LIMITED …......................................................................2ND RESPONDENT

HES SHIKONGO 3RD RESPONDENT

FIRST NATIONAL BANK OF NAMIBIA LIMITED 4TH RESPONDENT

WINDHOEK MUNICIPALITY COUNCIL 5TH RESPONDENT

SWABOU INVESTMENTS (PTY) LTD 6TH RESPONDENT

VSV ENTERPRISES NUMBER SIXTY CC AND/OR

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

ALEXANDER HOVEKA 8TH RESPONDENT

HARTMUST GERHARD FOELSCHER 9TH RESPONDENT

MINISTER OF JUSTICE 10TH RESPONDENT

REGISTRAR OF HIGH COURT 11TH RESPONDENT

CLERK OF THE MAGISTRATE’S COURT 12TH RESPONDENT

REGISTRAR OF DEEDS 13TH RESPONDENT

ATTORNEY-GENERAL 14TH RESPONDENT

THE DEPUTY-SHERIFF 15TH RESPONDENT

VAN DER MERWE-GREEFF INC. 16TH RESPONDENT

BANK WINDHOEK LIMITED 17TH RESPONDENT

SOUTH WEST AFRICAN BUILDING SOCIETY 18TH RESPONDENT

RISTO SHIKULO 19TH RESPONDENT

JULIA THANDU NEUAKA 20TH RESPONDENT

GERARDT DE KLERK 21ST RESPONDENT

SHARON DE KLERK 22ND RESPONDENT

BANK OF NAMIBIA 23RD RESPONDENT

BOY TOBIAS VAN WYK 24TH RESPONDENT

MORVEN M LUSWENYO 25TH RESPONDENT

BUILDERS WAREHOUSE (PTY) LTD 26TH RESPONDENT

ANTHONY ABRAHAMS 27TH RESPONDENT

ABRAHAM GARISEB 28TH RESPONDENT

MIEMIE GENGOS 29TH RESPONDENT

PETRUS VILJOEN 30TH RESPONDENT

DAWID JOHANNES WERNER 31ST RESPONDENT

WILLEM KARUOOMBE 32ND RESPONDENT

ELVISIA KARUOOMBE 33RD RESPONDENT

IVAN JOSEPH CECIL DROTSKY 34TH RESPONDENT

NATIONAL HOUSING ENTERPRISE 35TH RESPONDENT

RONALDT KAPUOO 36TH RESPONDENT

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

CONSTANCE MBAPAHA 38TH RESPONDENT

SAM HALUPE 39TH RESPONDENT

ADRIAAN MICHAU BASSON 40TH 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 1st, 6th and 18th respondents. Mr. Totemeyer SC together with Ms. van der Westhuizen also appeared for the 5th respondent. Mr. Mouton appeared for the second respondent. The first and 10th 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 1ST& 10THAPPLICANTS: Appearing in person

 

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

Mr. Obbes

INSTRUCTED BY: Fisher, Quarmby & Pfeifer

 

ON BEHALF OF THE 5THRESPONDENT: Mr. Totemeyer assisted by

Ms. van der Westhuizen

INSTRUCTED BY: Etzold-Duvenhage

 

ON BEHALF OF THE 2NDRESPONDENT: Mr. Mouton

INSTRUCTED BY: Koep & Partners