[160106]

Managing Judge: To be assigned

Roll: Application
Hearing Date: See Notice of Motion

FORM 17
Rule 65(4), read with Rule 76
NOTICE OF MOTION
(To Registrar and Respondents)

IN THE HIGH COURT OF NAMIBIA

MAIN DIVISION – WINDHOEK

Case Number: _______

In the matter between:

XXX APPLICANT

and

THE MUNICIPAL COUNCIL FOR THE FIRST RESPONDENT

MUNICIPALITY OF WALVIS BAY

THE CHAIRPERSON OF THE MUNICIPAL SECOND RESPONDENT

COUNCIL FOR THE MUNICIPALITY OF
WALVIS BAY

XXX THIRD RESPONDENT

XXX FOURTH RESPONDENT

[DB]
 2

THE MINISTER OF URBAN AND RURAL FIFTH RESPONDENT

DEVELOPMENT

THE ENVIRONMENTAL COMMISSIONER SIXTH RESPONDENT

THE REGISTRAR OF DEEDS SEVENTH RESPONDENT

XXX EIGHTH RESPONDENT

XXX NINTH RESPONDENT

XXX TENTH RESPONDENT

TAKE NOTICE that XXX (hereinafter called the applicant) intends to make
application to this court for an order –

1. Calling upon the respondents to show cause why –

1.1 the decision taken by the fifth respondent on or about 11

November 2015 to grant “approval” in terms of Section 30(1)(t) of the
Local Authorities Act, 1992 (Act 23 of 1992) (“the Act”) to the first
respondent to sell XXX should not be reviewed and set aside,
alternatively be declared contrary to the provisions of Articles 12 and
18 of the Namibian Constitution, alternatively be declared ultra vires the
provisions of the Act and illegal, and be set aside on the above basis;

1.2 the decisions of the first respondent to enter into the purported
contract of sale between the first respondent and the third respondent
relating to the immovable property, its conclusion, the contract itself,
and its implementation, and any further decisions taken by the first
respondent underpinning the aforementioned (including, but not limited
to, the first respondent’s resolutions of XXX), should not be reviewed
and set aside, alternatively be declared contrary to the provisions of
 3

Articles 12 and 18 of the Namibian Constitution, alternatively be

declared ultra vires the provisions of the Act and illegal, and be set
aside on the above basis;

1.3 the transfer of the immovable property to the third respondent

and any decisions taken by the first respondent underpinning same,
including any decision to grant a power of attorney to the eighth and/or
ninth respondent(s), should not be reviewed and set aside, alternatively
be declared contrary to the provisions of Articles 12 and 18 of the
Namibian Constitution, alternatively be declared ultra vires the
provisions of the Act and illegal, and be set aside on the above basis;

1.4 the relevant deed of transfer (T XXX) should not, on the above
grounds, be so declared and cancelled, and the deed under which the
immovable property was held immediately prior to the registration of
the impugned deed of transfer should not be revived to the extent of
such cancellation, and the seventh respondent directed to cancel the
relevant endorsement thereon evidencing the registration of the
cancelled deed;

1.5 the covering mortgage bond should not, on the above grounds,
be set aside and/or cancelled.

2. That the contract concluded as and between the first respondent and
the third respondent pertaining to the immovable property, along with deed of
transfer and covering mortgage bond, be and is hereby set aside.

3. That the first respondent be and is hereby interdicted and restrained

from –

3.1 taking any steps or measures (if any) to perform in terms of the
purported “contract of sale” concluded between the first respondent
and the third respondent pertaining to the immovable property;
 4

3.2 considering and/or granting any applications for building permits

and/or any other form of authorization and/or permission required by
the third respondent from the first respondent for the purposes of
commencing with construction on the immovable property,

until such time as all statutory and/or regulatory provisions and/or legal
requirements have been duly complied with.

4. That the third respondent be and is hereby interdicted and restrained

from –

4.1 taking any steps or measures (if any) to perform in terms of the
purported “contract of sale” concluded between the first respondent
and the third respondent pertaining to the immovable property;

4.2 encumbering and/or alienating (directly or indirectly) the

immovable property, any portion thereof or interest therein to a third
party;

4.3 commencing or continuing with any construction on the

immovable property;

4.4 proceeding with any applications for building permits and/or any
other applications for any other form of authorization and/or permission
required by the third respondent from the first respondent for the
purposes of commencing with construction on the immovable property.

until such time as all statutory and/or regulatory provisions and/or legal
requirements have been duly complied with.

5. That those respondents electing to oppose this application pay the

costs of the application, including the costs of one instructing and two
instructed counsel. In the event of more than one respondent electing to
oppose the application, costs (on the aforementioned scale and basis) are
 5

sought against all such respondents jointly and severally, the one paying the
others to be absolved.

6. Further or alternative relief.

and that the accompanying affidavit of XXX, together with such annexures
thereto and confirmatory and supporting affidavits delivered therewith, will be
used in support thereof.

TAKE NOTICE FURTHER that the applicant has appointed XXX, at which the
applicant will accept notice and service of all process in these proceedings.

TAKE FURTHER NOTICE that –

(a) The first respondent, second respondent and fifth respondents are
called upon to, within 15 days after receipt of the application, serve on the
applicant a copy of the complete record and file with the registrar the original
record of such decisions / proceedings sought to be corrected or set aside
(and referred to in the relief sought in the prayer 1 supra, setting out the
decisions / proceedings sought to be reviewed) together with reasons for the
decision and to notify the applicant that they have done so;

(b) The applicant may, within 10 days after the record has been served on
it or within 10 days after the processes contemplated in rules 76 (6), (7) and
(8) have been completed, by delivery of a notice and accompanying affidavit,
amend, add to or vary the terms of its application and supplement the
supporting affidavit.

TAKE NOTICE FURTHER that if you intend to oppose this application you are
required to –

Within five days after receipt by of the application or any amendment thereof
deliver notice to the applicant that you intend so to oppose and must in such
 6

notice appoint an address within a flexible radius at which you will accept
notice and service of all process in these proceedings;

Within 20 days after the expiry of the time referred to in rule 76(9), deliver any
affidavits you may desire in answer to the allegations made by the applicant.

The applicant has the rights and obligations in regard to replying affidavits set
out in rule 65.

If no notice of intention to oppose is given, the application will be moved on

the [insert date] at [insert time] am.

KINDLY set the matter down for hearing accordingly.

DATED at WINDHOEK on this [insert day] day of January, 2016.

___________________________
THE REGISTRAR
HIGH COURT – MAIN DIVISION
WINDHOEK

___________________________________
XXX
LEGAL PRACTITIONERS FOR APPLICANT
XXX
WINDHOEK
(Ref.: XXX)

To: ...........................................................

(Address)
 7

SERVICE BY DEPUTY SHERIFF

And to:

Registrar of the High Court

Main Division
High Court Building
WINDHOEK