1
REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: A 01/2016
In the matter between:
HERMAN KATIPI AMUKUGOAPPLICANT
and
TOWN COUNCIL OF ONDANGWA 1st RESPONDENT
COMBO PROPERTIES DEVELOPMENT CC 2nd RESPONDENT
Neutral citation: Amukugo v Town Council of Ondangwa (A 01-2016) [2016] NAHCNLD 56 (07 July 2016)
Coram:CHEDA J
Heard:06 & 25 April 2016
Delivered:07 July 2016
Flynote: A party who mounts an application for an interdict when it is aware of the existence of a dispute of facts, but,choses to bring it under motion proceedings will not succeed – Party must show that it has a clear right – there exists an injury committed or reasonably apprehended – absence of a similar remedy – a joinder is required where the party concerned has a direct and substantial interest. It is not necessary to join the Registrar of Deeds as he is required to transfer properties without court orders – non-joinder is not fatal in the circumstances – courts will not insist on joinder of a party who may be affected by an order if such a party has no right (s) conflicting with those of applicant. Points in limine raised were upheld. Application dismissed with costs and matter referred to trial.
Summary:Applicant applied for an interdict. Applicant had previously made an urgent application seeking similar relief. Matter was dismissed as there were disputed facts. Respondents raised points in limine being (1) dispute of facts. (2) failure to fulfil requirements for an interdict and (3) non-joinder.
Applicant indeed was aware of the disputed facts as per the previous judgment. Applicant failed to fulfil the requirements for an interdict. The issue of non-joinder was held to be a non-issue. Respondent could not succeed as the Registrar of Deeds can transfer properties without a court order. Application was dismissed and referred to trial with affidavits filed to stand over as pleadings.
ORDER
- The points in limine are upheld;
- The matter is referred to trial and the affidavits in this matter shall stand over as pleadings in accordance with the rules for trials.
- Applicant to pay costs of these proceedings.
JUDGMENT
CHEDA J:
[1]Applicant applied for an interdict seeking the following relief:
“1.An order interdicting and restraining the first and second respondents from carrying on any construction, or any industrial activity, or bringing any trucks or machinery for purposes of developing on the applicant’s property currently described as Erf 2996, and previously described as Erf 93, Extension 13 situated within the Ondangwa Townlands as described by the first respondent in its allocation letter dated 05 November 2008;
2.Ordering the second respondent to vacate the aforesaid applicant’s property within 7 days from the date of this order, failing which the Deputy-Sheriff, Ondangwa be and is hereby authorised to take such steps as are necessary to give effect to this order;
3.Ordering the first respondent to register the aforesaid applicant’s property at the Registrar of Deeds in applicant’s name within 30 days from the date of this order;
- That the second respondents be ordered to bear the costs associated with his removal from the applicant’s aforesaid property;
- That respondents be ordered to bear the costs of this application at the rate between attorney and own client;
- That the applicant be granted such further relief and/or alternative relief as to this Honourable Court may seem meet.”
The said application is opposed. A brief factual background of this matter will suffice. Applicant is a male adult who carries on business in Ondangwa and is represented by Paulus Ndjodhi. First respondent is the Town Council established as such and operating in Ondangwa and represented by Advocate Rukoro, while 2nd respondent is a company under the laws of Namibia and is represented by Mr. Aingura.
[2]Applicant entered into a sale agreement with first respondent which agreement is alleging that it was cancelled. The agreed price was N$68894-50 which is not clear whether it was fully paid for or was paid in terms of the said agreement.
[3]Most of these arguments by applicant are vehemently disputed by first respondent. Second respondent through its representative, Mr. Aingura has joined hands with first respondent in its argument that the agreement was not complied with.
[4]At the start of the hearing, first respondent raised the following points in limine being that:
a)there were factual disputes in this matter;
b)the requirements for an interdict have not been met; and
c)there has been a non-joinder.
[5]This case was initially brought before this court on an urgent basis under case no. A16/2015 and I delivered a judgment under (A 16/2015) [2015] NAHCNLD 45 (24/04/2015).
[6]It is first respondent’s submission that there were factual, disputes in this matter which can only be resolved at a trial and in paragraph 3 and 4 stated:
“First respondent, on the other hand has argued that applicant did not pay the purchase price timeously and was thus in breach of the purchase agreement and the said breach entitled it to re-allocate the property to any other person as it so wished. It is clear, therefore, that there are serious disputes of facts in this matter which can only be resolved at the trial. However, the issue, before the court is that of urgency of this matter.” (my emphasis)
[7]The dispute, I referred to, was as to whether full purchase price was in terms of the agreement. Agreement is subject to viva voce evidence. In essence, whether there was a breach of the sale agreement in that payment was not madein terms of the agreement. This is subject to a viva voce evidence which cannot be resolved on the papers, see Plascon Evans Paints Ltd v Rie Beelk Paints (Pty) Ltd 1984 (3) SA and Stellenbosch Forms Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234 (c) at 235 E where Van Wyk J remarked:
“It seems to me that where there is a dispute as to the facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant’s affidavits justify such an order.”
[8]The dispute should be real, genuine and bona fide. In casu, the dispute I referred to, can only be tested by viva voce evidence which makes it necessary for the parties to go to trial. Applicant was aware of these disputed facts, but, chose to ignore this fact and proceeded to proceed on the motion basis.
[9]With regards to an application for an interdict,there are three requirmentswhich are continuously applied by these courts as laid down in “The Civil Practise of the High Courts of South Africa, Juta 5th Edition, Page 1456, they are that applicant must show that:
a)he/she has a clear right;
b)there must be an injury actually committed or reasonably apprehended; and
c)the absence of a similar or adequate protection by any other ordinary remedy.
[10]Applicant has no clear right in this matter as ownership is in dispute with regards to the timeous payment of the purchase price. Those averments by first respondentif proved will amount to a breach of the contract. However, at this stage, this is still a moot question.
[11]An injury may have been committed, but, all this depends onviva voce evidence on the disputed facts which is yet to be determined.
[12]The third requirement is the absence of an alternative remedy. Second respondent has already commenced construction on the plot/property. In the event that the applicant succeeds in his claim, can it be said that he has no alternative remedy other than the removal of second respondent.
[13]In my view, this cannot be correct as applicant is at liberty to either sue for damages or compensation by virtue of another plot of a similar commercial value as already been intimated by first respondent in their civil discussions before the matter was brought to court. Infact, there is correspondence to that effect. Applicant has not fulfilled the three well established requirements for an interdict and for that reason cannot succeed.
[14]The issue of non-joinder has been raised. Both respondents subscribe to the notion that applicant should have cited the Registrar of Deeds in order to ensure transfer of the property since it is the deeds office which is authorised to do so.
[15]In as much as the said office is responsible for the transfer and registration of titles to properties, its non-joinder is not per se fatal as immovable properties can be transferred without a court order. This is the duty of the Registrar of Deeds any way.
[16]Our law requires that any party who has a direct and substantial interest in a matter in an order the court may make in proceedings or if such an order cannot be carried out or not sustained without prejudicing that party it is deemed to be a necessary party and should be joined in the proceedings. This is the general rule. There, is however, an exception being that the court may dispense with this rule of practice if it is satisfied that the party in question has waived its right to joinder, see Henri Viljioen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (0) at 165 – 710. This however, is not the case in casu.
[17]It is also our settled law that in the exercise of its discretion, the court will not insist upon joinder of or even notification of a party who may be affected by the judgement, if such party has no right (s) conflicting with those of the applicant, see St Helena Gold Mining Ltd v Minister of Mines 1947 (1) PHK 91.
[18]It is also not necessary to join interested persons who are not parties to an agreement sued upon, see Rice v Krk 1951 (3) SA 294 (W).
[19]However, such a relief should not be given if it involves a decision on the validity of a contract. The other contracting party should be joined. In casu, the Registrar of Deeds does not fall within that category. Respondents, therefore, cannot succeed on this point.
[20]For the above reasons the following is the order:
- The points in limine are upheld;
- The matter is referred to trial and the affidavits in this matter shall stand over as pleadings in accordance with the rules for trials.
- Applicant to pay costs of these proceedings.
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M Cheda
Judge
APPEARANCES
APPLICANT:M.M. Nyambe
Of Shikongo Law Chambers, Ongwediva
1STRESPONDENT:T. SHAILEMO
Of Inonge Mainga Attorney c/o Lorentz Angula Inc.,
Windhoek
2ND RESPONDENT:S. Aingura
Of Aingura Attorneys, Oshakati