CIVIL PRACTICE – URGENT SPOLIATION APPLICATION – DEFENSE OF NON-JOINDER, SELF-CREATED URGENCY, AND DEFECTIVE NOTICE OF APPEAL  

CIVIL PRACTICE – URGENT SPOLIATION APPLICATION – DEFENSE OF NON-JOINDER, SELF-CREATED URGENCY, AND DEFECTIVE NOTICE OF APPEAL  

Whereas 1^st applicant had a property registered in his name where he and the 2^nd applicant resided since 2016 until the property was sold in execution by Bank Windhoek, the respondent became the new owner of the said property and when the applicants failed to leave the property, she applied for summary judgment with an order of eviction which was granted in the Magistrates Court. A writ of ejectment was issued and delivered to the deputy sheriff for execution. On 20 April 2021, a document titled ‘notice of appeal’ was served on the respondent. However, the applicants did not pay the N$5 000.00 as required by the Magistrates Court Rules. The respondent held the view that there was no appeal pending at the time the writ was executed by the deputy sheriff on 7 May 2021.

The applicants brought an urgent application which was opposed by the respondent. The applicant claimed that they had been despoiled by the respondent of possession of the immovable property, and the respondent claimed that she had obtained a default judgment against the applicants, followed by an eviction order, which the deputy-sheriff enforced. It was the respondent’s further contention that when the appellant was evicted by the deputy sheriff, there was no proper notice of appeal lodged to have the effect of staying the execution of the order.

In further opposition to the application, the respondent raised a point in limine of non-joinder of the deputy sheriff for the district of Windhoek and the Namibia Police; challenged the allegations that the matter was urgent, and even if the matter was considered urgent, such urgency was self-created; and she also challenged the relief sought.

MASUKU J considered the applicable law and held that:

1. There was no proper appeal noted in terms of Rule 51(4) of the Rules of the Magistrates Court hence, the execution of the writ of ejectment was not stayed.
2. The deputy-sheriff was a necessary party to the proceedings and should have been cited as a party but because the object of the rules is to deal with matters on their real merits, it was unnecessary to make an order regarding the non-joinder.
3. The urgency was self-created as the applicants had not challenged the default judgment and the sale in execution and further did not take timeous steps to note the appeal.

In the result, the application was dismissed with costs.

Mavara v Shapwa NAHCMD 10 June 2021