Court name
High Court
Case number
322 of 2012
Case name
Naibab v Council for the Municipality of Windhoek and Another
Media neutral citation
[2012] NAHC 332
Judge
Parker AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA








HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








EX-TEMPORE JUDGMENT








Case no: A 322/2012








In the matter between:








FRANS GEORGE NAIBAB
..........................................................................APPLICANT



and



COUNCIL FOR THE
MUNICIPALITY OF WINDHOEK ...............FIRST
RESPONDENT



ANTHONY ABRAHAMS
.........................................................SECOND
RESPONDENT








Neutral citation:
Naibab v Council for the Municipality of Windhoek (A 322/2012)
[2012] NAHCMD 105 (7 December 2012)








Coram: PARKER AJ



Heard: 7
December 2012



Delivered: 7
December 2012








Flynote: Applications
and motions – Urgent application – Requirements for –
Salt and Another v Smith 1990 NR 87 relied on.








Summary: Applications
and motions – Urgent application – Requirements for –
Interpretation and application of 6(12)(b) by Salt and Another v
Smith
1990 NR 87 relied on – Court finding that urgency in
the application was self-created by the culpable remissness of the
applicant – Consequently declining to condone applicant’s
non-compliance with the rules of court or to hear application as one
of urgency.










ORDER










The application is struck
from the roll with costs.










JUDGMENT










PARKER AJ:








[1] This application is brought on
notice of motion in which the applicant prays for the relief set out
in the notice of motion, including the relief that the matter be
heard as one of urgency.








[2] Urgent applications are governed
by rule 6(12) of the rules of court; and rule 6(12)(b) provides that
in every affidavit or petition filed in support of any application
under para (a) of subrule (12) the applicant must set forth
explicitly the circumstances which he or she avers render the matter
urgent and the reasons why he or she claims that he or she could not
be afforded substantial redress at a hearing in due course. The rule
entails two requirements: first, the circumstances relating to
urgency which must be explicitly set out, and second, the reasons why
an applicant could not be afforded substantial redress in due course.
See Salt and Another v Smith 1990 NR 87. It has also been said
that there can be no urgency where the urgency is self-created by the
culpable remissness on the part of the applicant. (Bergman v
Commercial Bank of Namibia Ltd and Another
2001 NR 45).








[3] In the instant case,
the applicant was aware as long ago as 10 April 2012 that an eviction
order was made by the court by default; and yet he did not bring an
application to set it aside. He waits for close to eight months, and
then rushes to court to ask the court to hear the application on
urgent basis without serving the application on the respondents; and
yet he prays this court to eject the first respondent from the
property in question, without the court hearing the first respondent.








[4] Non-service of an
urgent application may be condoned if it is shown by the applicant
that it is impracticable or unreasonable to serve the application. In
the instant case the applicant has not shown that it was unreasonable
or impracticable to serve the respondents with papers. As I say, it
would be unfair for this court to grant the relief sought and eject
the first respondent from the property, when he has not been served
with the application and he has not been heard.








[5] The gravamen of the
applicant’s contention is that the default judgment obtained on
10 April 2012 is being challenged. In our law an order of the court
remains valid and enforceable until it is set aside by a competent
court, in the instant case by the Supreme Court.








[6] In any case, from the
aforegoing, I hold the firm view that urgency in this application is
self-created by the culpable remissness on the part of the applicant.
This is compounded by the fact that if I granted the relief sought,
it would undoubtedly amount to the court sitting on appeal or in
review of its own order, ie the 10 April 2012 order; something this
court is not empowered to do.








[7] I have considerable
sympathy for the applicant but the law and the rules do not support
his case, as I have reasoned and concluded previously. I, therefore,
decline to condone the applicant’s non-compliance with the
rules of court and to hear the application as one of urgency; and
additionally, it would be unjudicial for this court to grant the
relief sought.








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








The application is struck
from the roll with costs.




























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



C Parker



Acting Judge








APPEARANCES








APPLICANT: S Rukoro



Instructed by Murorua &
Associates, Windhoek













FIRST RESPONDENT: N
Marcus



Of Nixon Marcus Public
Law Office, Windhoek