Neves and Another v Neethling t/a Andre Neethling Consultancy and Others (1) (25 of 2012) [2012] NAHC 135 (31 May 2012)

# Neves and Another v Neethling t/a Andre Neethling Consultancy and Others (1) (25 of 2012) [2012] NAHC 135 (31 May 2012) [ __](https://api.whatsapp.com/send?text=https://namiblii.org/akn/na/judgment/nahc/2012/135/eng@2012-05-31) [ __](https://twitter.com/intent/tweet?text=https://namiblii.org/akn/na/judgment/nahc/2012/135/eng@2012-05-31) [ __](https://www.facebook.com/sharer/sharer.php?u=https://namiblii.org/akn/na/judgment/nahc/2012/135/eng@2012-05-31) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://namiblii.org/akn/na/judgment/nahc/2012/135/eng@2012-05-31) [ __](mailto:?subject=Take a look at this document from NamibLII: Neves and Another v Neethling t/a Andre …&body=https://namiblii.org/akn/na/judgment/nahc/2012/135/eng@2012-05-31) [ Download RTF (720.7 KB) ](/akn/na/judgment/nahc/2012/135/eng@2012-05-31/source) Toggle dropdown * [Download PDF](/akn/na/judgment/nahc/2012/135/eng@2012-05-31/source.pdf) Report a problem __ * Share * [ Download RTF (720.7 KB) ](/akn/na/judgment/nahc/2012/135/eng@2012-05-31/source) * [Download PDF](/akn/na/judgment/nahc/2012/135/eng@2012-05-31/source.pdf) * * * * * Report a problem __ ##### Neves and Another v Neethling t/a Andre Neethling Consultancy and Others (1) (25 of 2012) [2012] NAHC 135 (31 May 2012) Copy citation * __Document detail * __Related documents * __Citations \- / 1 Citation Neves and Another v Neethling t/a Andre Neethling Consultancy and Others (1) (25 of 2012) [2012] NAHC 135 (31 May 2012) Copy Media Neutral Citation [2012] NAHC 135 Copy Court [High Court](/judgments/NAHC/) Case number 25 of 2012 Judges [Hoff J](/judgments/all/?judges=Hoff%20J) Judgment date 31 May 2012 Language English Other documents [Download PDF](/akn/na/judgment/nahc/2012/135/eng@2012-05-31/attachment/neves-and-another-v-neethling-ta-andre-neethling-consultancy-and-others-1-2012-nahc-135-31-may-2012.pdf) (151.6 KB) * * * Skip to document content __NOT REPORTABLE__ **CASE NO: A 25/2012** **IN THE HIGH COURT OF NAMIBIA** **MAIN DIVISION** **HELD AT WINDHOEK** In the matter between: **JORGE MANUEL BATISTA NEVES 1****ST****APPLICANT** **MARIA ALZIRA ALVES BATISTA NEVES 2****ND****APPLICANT** and **ANDRE FRANCOIS NEETHLING t/a ANDRE** **NEETHLING CONSULTANCY 1****ST****RESPONDENT** **RAINIER ARANGIES 2****ND****RESPONDENT** **WATERLILLY INVESTMENTS TEN CC 3****RD****RESPONDENT** **COUNCIL FOR THE MUNICIPALITY OF TSUMEB 4****TH****RESPONDENT** **CORAM:** HOFF, J **Heard on:** 24 May 2012 **Delivered on:** 31 May 2012 **JUDGMENT** _Rule 30 Application_ _**HOFF, J**_**:**[1] This Rule 30 application was brought on two grounds. The first ground was that respondents’ urgent counter-application in terms of Rule 44(1) and the respondents’ anticipation of the Rule _nisi_ against them is irregular, or improper and/or impermissible in that Rule 6(8) does not apply where the return date of a rule _nisi_ obtained _ex parte_ has been extended with the knowledge and/or consent and/or presence of the respondents affected thereby. [2] On 24 February 2012 this Court granted on an _ex parte_ basis an urgent rule _nisi_ against the respondents with a return date being 30 March 2012. On 30 March 2012 the rule _nisi_ was extended (since the matter became opposed) to 27 April 2012 in order for respondents to file their opposing papers and applicants to file their replying papers. On 11 April 2012 the respondents launched an urgent counter-application titled “Respondents’ urgent counter-application in terms of Rule 44(1) and respondents’ anticipation of the Rule _nisi_ issued against them, in terms of the provisions of paragraph 6 of the Court Order dated 24 February 2012”. [3] The applicants field their Rule 30 application on 19 April 2012. On the extended return date the rule _nisi_ was further extended until 24 May 2012 and both the Rule 44 and Rule 30 applications were postponed to 24 May 2012. [4] Mr Wylie who appeared on behalf of the applicants submitted the respondents could not have anticipated an extended return date since the rule _nisi_ has been extended in their presence and that the purpose of Rule 6(8) is to come to the aid of a litigant who has been taken by surprise by an order granted _ex parte_ and referred this Court to the case of _Peacock Television Co (Pty) Ltd v Transkei Development Corporation_ 1998 (2) SA 259 (TK). [5] In _Peacock (supra)_ Madlanga J at 262 F said “…it cannot be that persons adversely affected by a rule _nisi_ obtained _ex parte_ are free, as of right, to anticipate the extended return day thereof despite an extension or extensions of the rule _nisi_ in their presence. It seems to me that Rule 6(8) was meant to come to the aid of a litigant who finds himself/herself _taken by surprise_ by an order granted _ex parte_ ”. and continues at 262 G – H: “If respondents, in circumstances like the present, were to be allowed to anticipate a return day as they please, the orderly practice of this Court and the purpose thereof would be defeated. Such anticipation would amount to allowing respondents to avoid having to properly set their matters down for hearing on the opposed roll. This would not only result in chaos but would also prejudice those litigants who have set down their opposed matters properly and have waited their turn on the opposed roll.” [6] I agree with this reasoning. The prejudice lies in the fact that the applicants had to deal with a Rule 44 application that had been set down irregularly as well as the fact that the applicants are unable to answer the application where no grounds for urgency were set out in the urgent Rule 44 application. [7] Mr Barnard who appeared on behalf of the respondents submitted that respondents no longer consider the application to be urgent and therefore the issue of urgency need not be considered. This however does not assist the respondents since on the papers filed this Court is required to consider the Rule 44 application as one of urgency. [8] I am of the view that the applicants should succeed on this ground alone. [9] The second ground is a variation on the first ground to the effect the respondents have not complied with (in their supporting affidavit to the Rule 44 application) the requisites in terms of Rule 6(12((b) and in particular the failure to set out the grounds of urgency. In view of my conclusion regarding the first ground I do not deem it necessary to consider the second ground because of the repetitive nature of the ground raised by the applicants. [10] I am therefore of the view that the applicants’ Rule 30 application should succeed with costs. [11] In the result the following orders are made: 1. The respondents’ urgent counter-application in terms of Rule 44(1) and respondents’ anticipation of the Rule _nisi_ in terms of the provisions of paragraph 6 of the Court Order dated 24 February 2012 are hereby struck and set aside. 2. The respondents’ supporting affidavit to their urgent counter-application in terms of Rule 44(1) and respondents’ anticipation of the Rule _nis_ i in terms of the provisions of paragraph 6 of the Court Order dated 24 February 2012 is struck and set aside in so far as it constitutes a supporting affidavit, but stands in so far as it constitutes respondents’ answering affidavit to applicants’ urgent application. 3. The respondents to pay the costs of this Rule 30 application. 4. The applicants file their replying affidavit (if any) in the main urgent application not later than 16h00 on 7 June 2012. 5. The applicants file their heads of argument in respect of the main urgent application not later than 16h00 on 7 June 2012. 6. The main urgent application be argued on and the rule _nisi_ be extended until 14 June 2012 at 09h00. ________ **HOFF J** **ON BEHALF OF THE 1****ST**** & 2****ND****APPLICANTS PLAINTIFF: ADV. WYLIE** **Instructed by: NEVES LEGAL PRACTITIONERS** **ON BEHALF OF THE 1****ST****, 2****ND & ****3****RD****RESPONDENTS ADV. BARNARD** **Instructed by: MUELLER LEGAL PRACTITIONERS** **ON BEHALF OF THE 4****TH****RESPONDENT: NO APPEARANCE** #### __Related documents ▲ To the top >