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Executive Properties and Another v Oshakati Tower and 2 O.appealjdmt.SA35-2009.13Aug2012.pdf

Executive Properties and Another v Oshakati Tower and 2 O.appealjdmt.SA35-2009.13Aug2012.pdf

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Published by André Le Roux
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Published by: André Le Roux on Nov 03, 2012
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12/04/2012

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REPORTABLE
CASE NO.: SA 35/2009
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
EXECUTIVE PROPERTIES CC FIRST APPELLANTFIRST NATIONAL BANK OF NAMIBIA SECOND APPELLANT
and
OSHAKATI TOWER (PTY) LTD FIRST RESPONDENTGEORGE NAMUNDJEBO SECOND RESPONDENTREGISTRAR OF DEEDS THIRD RESPONDENT
Coram: Maritz, JA, Mainga, JA
et 
Strydom, AJAHeard on: 19/03/2012Delivered on: 13/08/2012 ____________________________________________________________________ 
APPEAL JUDGMENT
 ____________________________________________________________________ 
STRYDOM AJA:
[1] By notice of motion the respondent, Oshakati Tower (Pty) Ltd (
Oshakati Tower 
) claimed as against the first and second appellants, respectively cited in the
 
2
Court
a quo 
as first and third respondents, as well as one George Namundjebo, citedas second respondent, the relief set out hereunder. The Registrar of Deeds, as fourthrespondent, was only cited for the interest he may have in the relief sought, namely-
1. Declaring the agreement between applicant and first respondent in terms whereof thelatter purchased the following property from applicant invalid and of no force andeffect, i.e.Erf No 1314 Oshakati (Extension 4)In the town of OshakatiRegistration division
 A
, Oshana Region.2. Directing and ordering the fourth respondent to cancel the entry in the Deeds Register indicating that the aforesaid property belongs to first respondent.3. Directing and ordering the fourth respondent to register the aforesaid property in thename of applicant in the Deeds Register.4. Directing fourth respondent to cancel the first mortgage bond registered in favour of third respondent against the aforesaid property.5. Ordering second respondent to pay the costs of the application save insofar as any of the other respondents may oppose it, in which event ordering the respondents soopposing it to pay the costs of the application together with second respondent jointlyand severally.6.
Further and/or alternative relief.”
 
[2] Executive Properties (
Executive 
), First National Bank of Namibia (
FNB 
) andGeorge Namundjebo (
Namundjebo 
), filed notices to oppose the application. In regardto Executive and FNB answering affidavits were filed. However, althoughNamundjebo gave instructions to a legal practitioner, and a statement was drafted on
 
3
his behalf, he never signed the statement. The statement nevertheless found its wayinto the record and formed the basis for an application to refer the matter for 
viva voce 
evidence, which was brought by Executive, supported by FNB. This applicationwas dismissed by the Court
a quo 
and the matter was decided on the affidavits filedby the parties.[3] Oshakati Tower was successful and an order was issued by the learned Judge
a quo 
substantially in the form set out in the notice of motion.[4] Both Executive and FNB gave notices of appeal in which they attacked the
Court‟s refusal to refer the matter for evidence and the Court‟s finding
, on the merits,in favour of Oshakati Tower. However both appellants did not timeously comply withSupreme Court Rule 8(3) and did not inform the Registrar of the Court that they hadentered into security for the costs of appeal of Oshakati Tower as a result whereof their appeals lapsed. (See Rule 8(3) read with Rule 5(5) and
Ondjava Construction CC v HAW Retailers t/a Ark Trading 
2010 (1) NR 286 (SC) at par [5]). Thisnecessitated both parties to apply for condonation and to ask this Court to re-instatetheir appeals. I shall deal with this issue at a later stage.[5] Mr. Udo Manfred Stritter deposed to the founding affidavit on behalf of Oshakati Tower in the proceedings
a quo 
. He, together with Namundjebo, one H EList, C L List and S Thieme constituted the Board of Directors of Oshakati Tower. The

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