Court name
Labour Court Main Division
Case number
136 of 2011
Case name
Tsoeu v Senior Real Estate CC and Others
Media neutral citation
[2014] NALCMD 49
Judge
Van Niekerk J










REPUBLIC OF NAMIBIA





LABOUR COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK





JUDGMENT





Case No LC 136/2011





DATE: 08 DECEMBER 2014





NOT REPORTABLE





In the matter between:





AMANDA
TSOEU..............................................................................................................APPLICANT





And





SENIOR REAL ESTATE
CC...........................................................................FIRST
RESPONDENT





GOLF TRADING
CC..................................................................................SECOND
RESPONDENT





THE MESSENGER FOR THE COURT


OF THE DISTRICT OF
WINDHOEK...........................................................THIRD
RESPONDENT





THE REGISTRAR OF THE HIGH
COURT............................................FOURTH
RESPONDENT





Neutral citation: Tsoeu v Senior
Real Estate CC (LC 136-2011) [2014] NALCMD 49 (8 December 2014)





Coram: VAN NIEKERK J





Heard: 26 June 2012





Delivered: 8 December 2014





Flynote: Practice- Application in terms
of rule 6(22) of 1992 Labour Court rules to set aside writ of
execution – Writ arising from matter in which certain parties
were cited – In current application different parties cited and
no proceedings pending between parties in this Court –
Substantive application in terms of rule 6(1) – ( 5) should
have been brought .




Practice – Various allegations of
fraudulent and improper conduct made against Deputy Sheriff in
affidavits upon which reliance is placed for relief sought –
Deputy Sheriff not party to proceedings – Deputy Sheriff should
have been joined.





ORDER





1. The main application and the
application for leave to file a supplementary affidavit are struck
from the roll.





2. There shall be no order as to costs.


JUDGMENT





VAN NIEKERK J:





[1] The applicant and the first and
second respondents were previously engaged in litigation in this
Court under this case number in an urgent application in which the
first and second respondents were the applicants. The urgent
application arose from a garnishee order incorrectly made by the
District Labour Court of Windhoek. The current applicant was the
first respondent. The other respondents were the third respondent in
the current application as second respondent, Bank Windhoek (third
respondent), the Magistrate for the district of Windhoek (fourth
respondent) and Mr Hewat Beukes (fifth respondent).





[2] On 16 November 2011, Miller AJ
granted judgment in favour of the first and second respondents as the
applicants in that application and ordered, inter alia, as follows:





“2. Ordering the second
respondent to repay the sum of N$79, 600.00, attached by him to the
second applicant alternatively;





3. In the event that the second
respondent no longer retains the amount of N$79, 600.00, the first
respondent is ordered to pay that amount to the second applicant.





4. There shall be no order as to
costs.”





[3] Arising from this order the first
and second respondents caused a writ of execution to be issued on 18
November 2011 to the Deputy-Sheriff of this Court for the district of
Windhoek as a result of which a certain vehicle was attached, but as
I understand it, not sold in execution as interpleader proceedings
ensued at some stage.





[4] On 31 January 2012 the applicant
filed an urgent application in this Court to have the writ dated 18
November 2011 set aside. On 3 February 2012 the application was
struck from the roll for lack of urgency. The application was not
enrolled again.





[5] On 9 February 2012 the applicant
filed an application in terms of rule 6(22) of the 1992 Labour Court
rules for the setting aside of the writ of execution dated 18
November 2011. The applicant gave notice that the matter would be
heard on 17 February 2012. On this date, Ueitele AJ, as he then was,
ordered the matter postponed to a date to be arranged with the
Registrar of this Court. Such dates were never arranged.





[6] On 10 February 2012 the first and
second respondents before me caused a fresh writ of execution to be
issued by the fourth respondent to the Deputy-Sheriff. The writ of
18 November 2011 was cancelled on 13 February 2012.





[7] On 22 February 2012 the applicant
withdrew the applications filed on 31 January 2012 and 9 February
2012. On the same date the applicant filed a fresh application in
terms of rule 6(22), supported by affidavits, for the setting aside
of the writ of 10 February 2012. In this application the applicant
cited the same respondents as in the current application. However, it
seems that application was not called because the fourth respondent’s
staff by mistake had not enrolled it.





[8] On 2 March 2012 the applicant
caused a fresh notice of application in terms of rule 6(22) to be
served on the respondents in which the same relief is claimed. This
is the current application before me. In the notice the applicant
gave notice that the matter would be heard on 16 March 2012 and
explained the error that occurred regarding the failed enrolment on 2
March 2012. The applicant did not attach any affidavits to this
notice, but gave notice to the respondents as follows:





“TAKE FURTHER NOTICE that the
Respondent’s (sic) already has (sic) the founding affidavit of
the applicant with all the annexure (sic) in their possession
together with the confirmatory affidavit’s (sic) that was duly
served on them on the 22nd February 2012.”





[9] Only the first and second
respondents oppose this application, as indeed they have done in
respect of all the earlier applications. On 16 March 2012 the matter
(“hereinafter the main application”) was postponed to 10
April 2012 on which date it was postponed to a date to be arranged
with the Registrar, where after it was eventually set down for
hearing together with an application by the applicant for leave to
file a supplementary affidavit, which the first and second
respondents also oppose.





[10] Mrs Petherbridge raised several
points on behalf of the first and second respondents. On the view I
take of the matter, it is not necessary to deal with all of them or
with the merits of the two applications before me.





[11] Counsel pointed out that rule
6(22) requires such affidavits as the case requires to be attached to
the notice of application in terms of form 5 and submitted that there
was not compliance with respect to the main application. I accept
that this is, strictly speaking, the case. However, it is clear that
what the applicant actually did was to request enrolment of the same
application which was mistakenly not enrolled on 2 March 2012, but
that she went about it in a way which is not strictly in accordance
with the rules. In view thereof that she is a layperson and that
there was no prejudice, I do not think this mistake is necessarily
fatal.





[12] In my view a more fundamental
problem is, firstly, that the main application to set aside the writ
is being brought in terms of rule 6(22) of the 1992 Labour Court
rules as an interlocutory application or as an application incidental
to pending proceedings. There are no pending proceedings in this
Court between the parties cited. The parties in the first
application brought before Miller AJ are also not the parties cited
in the current application. In the circumstances the application is
not interlocutory. In my view a substantive and separate application
in terms of rule 6(1) – (5) of the 1992 Labour Court rules was
required.





[13] Secondly, the applicant’s
papers are replete with references to the Deputy-Sheriff of this
Court and various allegations of fraud and improper conduct are made
against this officer. The relief is claimed partly on the basis of
these allegations. The Deputy Sheriff clearly has a real and
substantial interest in the matter, but he is not a party to the
proceedings. He should have been joined.





[14] Counsel for the first and second
respondents further submitted that the application should in any
event be stayed on the basis of lis pendens pending the adjudication
of the application which was set down for 17 February 2012 and
postponed to a date to be arranged with the Registrar. This
submission is based thereon that the application postponed on 17
February 2012 was withdrawn contrary to the provisions of rule
42(1)(a) of the High Court rules which, it was submitted, are to be
applied in this matter. Even assuming that this rule is to be
applied, it seems to me that the current application and the
“withdrawn” application are not on all fours. The relief
claimed is different. In the earlier application the applicant seeks
the setting aside of the writ of 18 November 2011, whereas the
current application is aimed at the writ of 10 February 2012. As
such the further submission by the first and second respondents
cannot be upheld.





[15] However, in light of the earlier
conclusions reached, there is no other option but to strike the main
application and the application for leave to file the supplementary
affidavit from the roll. As this is a labour matter and the first
and second respondents have not moved for costs, I shall not order
same.





K van Niekerk





Judge





APPEARANCE





For the applicant: In person





For the first and second
respondents: Mrs M C Petherbridge





of Petherbridge Law Chambers