Court name
High Court
Case name
Kamuhanga NO v The Master of the High Court of Namibia and Others
Media neutral citation
[2012] NAHC 248
Judge
Parker J













REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: A 70/2012








In the matter between:








SELMA KAMUHANGA N.O
.........................................................................APPLICANT



and



THE MASTER OF THE HIGH
COURT OF NAMIBIA ..................FIRST
RESPONDENT



BENGO INVESTMENT CC
......................................................SECOND
RESPONDENT



EMMERENTIA COETZEE
...........................................................THIRD
RESPONDENT



ALEXANDER KAMUHANGA
..................................................FOURTH
RESPONDENT



EMMERENTIA KAMUHANGA
.....................................................FIFTH
RESPONDENT



REGISTRAR OF DEEDS
.............................................................SIXTH
RESPONDENT



AGRICULTURAL BANK OF
NAMIBIA
................................
SEVENTH RESPODNENT













Neutral citation:
Kamuhanga v The Master of the High Court of Namibia (A
70/2012) [2012] NAHCMD 6 (27 September 2012)








Coram: PARKER J



Heard: 30 July
2012



Delivered: 27
September 2012








Flynote: Practice
– Applications and motions – Application for confirmation
of interim order – Correct interpretation and application of
the order establishes that the order remains valid and enforceable
pending determination of the main application filed under a different
case number, and should not be discharged or confirmed in present
proceeding.








Practice –
Applications and motions – Affidavit – Commissioner of
Oaths declared he was satisfied deponent understood the contents of
her affidavit – Court not entitled to fault such declaration in
the absence of hearing the Commissioner.








Summary: Practice
– Applications and motions – Although earlier order was
characterised as ‘rule nisi’, a correct reading of the
order establishes that that order must remain in force pending
finalisation of the main application filed under a different case
number – Accordingly, court in instant proceeding not entitled
to discharge or confirm the ‘interim’ order –
‘Interim’ order will be discharged or confirmed upon
final determination of the main application filed under a different
case number.








Practice –
Applications and motions – Affidavit – Commissioner of
Oaths declared in a testimonium to the affidavit he was satisfied
deponent understood contents of her affidavit – Court not
entitled, upon submission by counsel, to fault the testimonium so
declared – A party averring that there was no basis for the
Commissioner’s satisfaction may bring application to review the
Commissioner’s decision – If the court set aside the
affidavit without hearing the Commissioner that would offend the audi
alteram partem
rule of natural justice and therefore unjust.










ORDER











  1. Paragraph 2.1 of the
    order made by the court (per Ueitele, AJ (as he then was)) on 10
    April 2012 is valid and enforceable, and it shall be so valid and
    enforceable until the court determines the application under Case
    No. A 381/2010.










  1. The legal
    representatives of the parties should attend a status hearing on 25
    October 2012 at 09h00 at which the managing judge will give
    directions as to the conduct of the application under Case No. A
    381/2010.















  1. There is no order as to costs.











JUDGMENT










PARKER J:








[1] The court made the following order
on 10 April 2012 (‘the 10 April 2012 order’):








1.
That the Applicant’s non-compliance with the forms and service
as provided for in the Rules of Court and authorizing the Applicant
to bring this Application on an urgent basis as contemplated in Rule
6(12) of the Rules of Court is hereby condoned.








2.
That a Rule nisi is hereby issued, calling upon the
Respondents (and/or any other interested party) to show cause, if
any, on FRIDAY, 11 MAY 2012 at 10h00 why the following order should
not be made:










    1. Directing
      and ordering the Sixth Respondent not to transfer and register Farm
      Usagei No. 367 on 12 APRIL 2012, pending the resolution of the
      application under case number A 381/2010 as well as any relief in
      terms thereof.










2.2
Directing the Second, Third, Fourth and Fifth respondents to pay the
costs of this application, in their own personal capacity, on an
attorney/client scale (any any other Respondent opposing the
application, to pay such costs jointly and severally, the one paying
the other to be absolved).’








[2] The reason for launching the
present application under Case No. 70/2012 (‘the A 70/2012
application’) was, according to the applicant, to ‘restrain
and/or interdict the respondents from transferring and/or in any way
registering the immovable property which is the subject of legal
proceedings in case number A 381/2010 on an urgent basis pending
final determination of Case number A 381/2010 (“the Case A
381/2010 application”)’.


















[3] As to the 10 April 2012 order; the
opening words of the chapeau of para 2 thereof indicates it is a rule
nisi, and so Ms Van der Merwe argues that ‘the court did
not order that the rule nisi shall serve as an interim
interdict with immediate effect pending the return date’. ‘As
a result’, counsel submits, ‘there is currently no order
interdicting 6th Respondent from transferring and
registering the property’. I do not agree. With respect,
counsel’s argument adds no weight. If the sixth respondent did
that which the court has directed the sixth respondent to refrain
from doing ‘pending the resolution of the application under
Case number A 381/2010
’, the sixth respondent will
indubitably be violating a valid court order when the resolution
of the application under Case Number A 381/2010
has not occurred.
(My emphasis)








[4] In its meaning and
import, para 2.1 of the 10 April 2012 order is as clear as day: it
directs the sixth respondent to refrain from transferring and
registering Farm Usagei No. 367 on 12 April 2012, so long as the A
381/2010 application (‘the main application’) has not
been resolved. That, in my opinion, is the true and correct
interpretation and application of para 2.1 of the 10 April 2012
order. As matters stand the A 381/2010 application has not been
determined: it is still pending. In this regard, as I say, it is my
view that the correct reading of para 2.1 of the 10 April 2012 order
establishes that that order must remain in force until determination
of the main application that is filed under a different case number.
In this regard, I do not think this court is entitled in the present
proceeding to either discharge or confirm the rule. The rule will, in
effect, be discharged if the court which hears the A 381/2010
application dismisses that application and will be confirmed if that
court upholds the application and reviews and sets aside the decision
of the first respondent. Thus, a ‘discharge’ or
‘confirmation’ of the 10 April 2010 order would follow as
a matter of course and consequentially upon the decision of the court
which hears the A 381/2010 application for the reason, as I have said
previously, that the order remains in force pending the determination
of the A 381/2010 application. It follows reasonably and inevitably
that the question of the applicant’s standing to bring the A
70/2012 application, the issue of non-service and other suchlike
issues should have been raised with the court that made the 10 April
2012 order. To ask this court in the present proceeding to determine
those issues is, in my view, to arrogate to this court, without legal
justification, the power to review the decision of the court that
made the 10 April 2012 order or, indeed, to sit in an appeal from
that decision.













[5] It follows that the
10 April 2012 order restraining and interdicting the sixth respondent
from transferring and registering Farm Usagei No. 367 exists and is
valid; for, the A 381/2010 application has not yet been determined.
These conclusions dispose also of the respondent’s second point
in limine.








[6] For the sake of
completeness, I think it behoves me to deal with the issue of the
first applicant’s founding affidavit which forms the basis of
the respondent’s first point in limine. Ms Van der Merwe
argues in respect of the first point in limine in the present
proceeding that the applicant cannot speak English and there is no
allegation in the founding affidavit ‘that can satisfy the
court that she knows and understands the contents of the founding
affidavit’. With the greatest deference to Ms Van der Merwe,
this submission has not even a wraith of merit. In the testimonium
which is an adjunct to the affidavit, the Commissioner of Oaths
before whom the affidavit was sworn by the deponent has declared that
he is satisfied that the applicant understands the contents of her
affidavit. If it is the opinion of the respondents that there was no
basis upon which the Commissioner could have been so satisfied, the
correct and reasonable route open to the respondents to take is to
bring the decision of the Commissioner under review. The simple
reason is that what is before the court is not a naked, unsworn
statement by the applicant. What is filed of record is rather an
affidavit having a testimonium declared by the Commissioner. Without
that testimonium there will be no affidavit properly filed with the
court. For counsel to ask this court in the instant proceeding to
rule that there is no basis upon which the Commissioner could have
been so satisfied without affording the Commissioner the opportunity
to be heard on his testimonium offends this court’s sense of
justice and fairness: it will be against the audi alteram partem
rule of natural justice; and, a fortiori, Ms Van der Merwe
does not say that the affidavit, in form and content, offends the
regulations governing the making of affidavits. For all what I have
said, I reject the respondents’ point in limine: it is,
with respect, gravely baseless.








[7] Of the view I have
taken of this matter, it serves no purpose to deal with any other
interesting issues raised. The aforegoing reasoning and conclusions
respecting the issues I have considered and determined are
dispositive of the present application. As to the question of costs;
it is my view that this is a proper case where the parties should pay
their own costs. Even though the applicant appears to have registered
some success, I think I should not award her costs. The papers were
not paginated. Indeed, they were thrown into the court file
haphazardly. Furthermore and more important, points were taken and
argued on both sides of the suit without due regard to the essence
and import of the 10 April 2012 order, which on any account is
critical in the present proceeding.








[8] In the result, I make
the following order:









  1. Paragraph 2.1 of the
    order made by the court (per Ueitele, AJ (as he then was)) on 10
    April 2012 is valid and enforceable, and it shall be so valid and
    enforceable until the court determines the application under Case
    No. A 381/2010.










  1. The legal
    representatives of the parties should attend a status hearing on 25
    October 2012 at 09h00 at which the managing judge will give
    directions as to the conduct of the application under Case No. A
    381/2010.










  1. There is no order as to costs.
























----------------------------



C Parker



Judge




























APPEARANCES








APPLICANT: T C Phatela



Instructed by Dr Weder,
Kauta & Hoveka Inc.













SECOND, THIRD, FOURTH



and FIFTH RESPONDENTS: B
Van der Merwe



Instructed by Du Pisani Legal
Practitioners