REPUBLIC
OF NAMIBIA
HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case
no: I 2971/2012
DATE:
14 APRIL 2014
REPORTABLE
In
the matter between:
CONGO
TRADING
CC......................................................PLAINTIFF
And
E
& JAY TRADING ENTERPRISES CC......................DEFENDANT
Neutral
citation: Congo
Trading CC v E & Jay Trading Enterprises CC (I
2971/2012) [2014] NAHCMD 136 (14 April 2014)
Coram:
PARKER AJ
Heard:
31 March
2014; 1 – 4 April 2014; 7 April 2014
Delivered:
14 April
2014
Flynote:
Principal
and agent – Authority of agent – Authority of agent must
be established unless a party is able to rely on ostensible authority
– Court held that such authority may be evidenced by direct
proof of an express authorization or by way of inference –
Court found that in instant case at the close of the plaintiff’s
case the plaintiff has failed to establish the authority of alleged
agent of the defendant.
Summary:
Principal and agent –
Authority of agent – Authority of agent must be established
unless a party is able to rely on ostensible authority – Court
found that in instant case at the close of the plaintiff’s case
the plaintiff has failed to establish the authority of alleged agent
of the defendant Martha Manasse – The plaintiff allegedly
entered into oral agreement with Martha Manasse for the sale of
cement to Martha to be exported to a customer in Angola – Court
found that at the close of the plaintiff’s case, plaintiff had
failed to establish an express authorization or by way of inference
that Martha was the defendant’s agent in the alleged
transaction – Consequently, court granted absolution from the
instance in the interest of justice.
ORDER
An
order granting absolution from the instance with costs on the scale
as between party and party is made.
JUDGMENT
PARKER
AJ:
[1]
The plaintiff instituted a claim against E & Jay Trading
Enterprises CC as set out in the amended declaration filed on 25
March 2014, that is a few days before the commencement of the trial.
The plaintiff’s case is briefly this. On or about November
2011, the plaintiff, represented by Volker Lohmeir, and the
defendant, represented by Martha Manasse (Setunyenga), entered into
an oral agreement in terms of which the plaintiff agreed to supply
and sell cement to the defendant and deliver same to the defendant’s
client CRBC at Ondjiva in Angola. The plaintiff is represented by Mr
Swanepoel in these proceedings. The defendant, represented in these
proceedings by Mr Tjombe, denies that the defendant entered into any
agreement with the plaintiff and denies that Martha Manasse
(Setunyenga) at any time relevant to the matter represented the
defendant.
[2]
Accordingly, it is recorded in the pre-trial conference order that
the issue in dispute that the court must resolve is ‘whether or
not the plaintiff and the defendant did enter into an agreement as
alleged by the plaintiff’. It is worth noting that the position
of the defendant that Martha did not act as a representative or agent
of the defendant was at issue in the defendant’s affidavit
opposing the plaintiff’s application for summary judgment which
was unsuccessful.
[3]
On the evidence, I find that the defendant is a close corporation
(‘the CC’) and that a Mr Moses Tuhafeni Leonard has 100
per cent membership of E & Jay Trading Enterprises, the
defendant.
[4]
The essence of the case is the issue as to whether at all material
times relevant to this matter Martha acted as an agent of the
defendant. Thus, the determination of the action turns on a very
short and very narrow compass, that is, is the defendant qua
principal responsible for the actions and conduct of Martha qua
agent of the defendant. The onus, therefore, rests on the plaintiff
to prove all the allegations set out in the plaintiff’s
declaration, including the existence of the alleged oral agreement,
and more important, the allegation that in the conclusion of the
agreement Martha acted as agent of the defendant. In this regard, I
accept Mr Tjombe’s submission that the defendant bears no such
burden.
[5]
At the close of the plaintiff’s case, Mr Tjombe applied for an
order granting absolution from the instance. The plaintiff moved to
reject the application. It was agreed that the application should be
decided on the strength of the written submissions filed with the
court, and there was no need for oral submissions. I am grateful to
both counsel for their industry.
[6]
The primary ground for an order for absolution from the instance put
forth by Mr Tjombe is, in words of one syllable, that at the close of
the plaintiff’s case the evidence placed before the court
indicated that there was an oral agreement between the plaintiff and
Martha but not with the defendant, and the evidence does not
establish that Martha was an agent of the defendant in the conclusion
of the oral agreement.
[7]
As to the test for absolution from the instance, I stated in Etienne
Erasmus v Gary Erhard Wiechmann and Fuel Injection Repairs &
Spares CC (I 1084/2011) [2013] NAHCMD 214 (24 July 2013), para
[18] thus:
‘The
test for absolution from the instance has been settled by the
authorities in a line of cases. I refer particularly to the approach
laid down by Harms JA in Gordon
Lloyd Page & Associates v Rivera and Another
2001 (1) SA 88 (A) at 92E-F; and it is this:
‘[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff’s case was formulated in Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403 (A) at 409G-H in these terms:
“… (W)hen
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence led by
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (Gascoyne
v Paul and Hunter
1917 TPD 170 at 173; Ruto
Flour Mills (Pty) Ltd v Adelson
(2) 1958 (4) SA 307 (T))” ’
[8]
Additionally, in Etienne Erasmus, para [19], relying on
authority, I stated that ‘… it must be remembered that
at this stage it is referred that the court has heard all the
evidence available against the defendant’.
[9]
Keeping these principles in my mind’s eye, I proceed to
determine the single most question mentioned previously, that is, on
the evidence, can it be said that the plaintiff has established that
Martha was the agent of the defendant whom she could, as a matter of
law, bind in any contractual relationship with the plaintiff in any
transaction relevant to the present proceedings? Mr Tjombe’s
submission is that the plaintiff has failed to establish any such
principal-agent relationship. Mr Swanepoel argues the opposite
position. In this regard this crucial point should be made. The
plaintiff bears the onus of establishing as a matter of actual fact
the authority of Martha as an agent of the defendant when, according
to Mr Volker Lohmeir, he (on behalf of the plaintiff) entered into
the oral agreement with Martha. In this regard, on the totality of
the evidence placed before the court at this stage, I make the
following factual findings.
[10]
On day one of the plaintiff instituting action in this matter, the
summons issued from the registrar’s office in October 2012
indicates that the defendant is E & Jay Trading Company CC t/a
Jay-Jay’s Body Repairs in October 2012. Indeed, it was against
E & Jay Trading Company CC t/a Jay Jay’s Body Repairs that
the plaintiff brought on 8 October 2012 an application for summary
judgment. It is clear that it is not the defendant in the present
proceeding who was cited as such. And if Martha presented herself as
representing the defendant, as the plaintiff avers, why was the
defendant qua principal not cited as the defendant in the
summary judgment application?
[11]
Furthermore, I find that the first time Lohmeir met Moses was when in
a fleeting manner on Independence Avenue, Windhoek, Moses delivered a
sealed envelope on behalf of Martha, his mother, to Lohmeir while
Moses was seated in his motor vehicle and Lohmeir was standing
outside the motor vehicle. The subsequent time was when Lohmeir went
to Moses in his ‘body repairs’ shop in Windhoek. I find
that the sole purpose for Lohmeir going to Moses’ office was to
solicit Moses’ good offices to request Martha (and her two
daughters, Cecilia and Milka) to pay Lohmeir for an amount of money
Martha owed the plaintiff. At no point did Lohmeir, while in the
presence of Moses, demand payment of any amount from Moses, if all
along from the time of the issuance of summons in October 2012 and
thereafter before these proceedings, it was the position of the
plaintiff that the defendant owed moneys to the plaintiff. I find
that it is clear from Lohmeir’s testimony that at all material
times he dealt with Martha (and at times with Cecilia and Milka) and
not with the defendant.
[12]
Furthermore, I find that the provenance of the transaction concerning
the present proceeding was testified to by Henry Katokele, the
plaintiff’s witness, who at all material times was an employee
of TransNamib. Katokele testified that ‘the three ladies’
approached him at TransNamib in Windhoek in November 2011. The three
ladies were Martha Manasse, Cecilia Manasse and Milka Manasse. He
came to know that the three ladies had a contract to supply cement to
a client in Ondjiva, Angola, and they needed to establish transport
arrangements that TransNamib could offer. He advised the three ladies
to apply for credit facilities to open a transportation account with
TransNamib, and directed them to the Finance Department of
TransNamib, or to pay cash for the services of TransNamib. Katokele
was clear in his testimony that TransNamib wanted to empower women,
and it is in pursuit of that policy that he decided to assist them.
Katokele did not know whether or not they succeeded to obtain credit
facilities with TransNamib, as he did not work with that department
responsible for such contracts, which is the Finance Department of
TransNamib. He then introduced the three ladies to Lohmeir at a
second meeting, which was held at Thüringer Hof Hotel in
Windhoek after Katokele’s working hours. This was also in
November 2011. The reason for introducing the three ladies and
Lohmeir was that he knew Lohmeir had access to credit facilities at
Ohorongo Cement, and the ladies had a customer in Angola to whom they
intended to sell cement.
[13]
From Katokele’s evidence, I find that what emerges clearly is
that Katokele did know about any entity called E & J Trading
Enterprises CC (the defendant); and, more important, the name of the
defendant was never mentioned to him at the meeting. Thus, Katokele
introduced Lohmeir to the three ladies and not E & Jay Trading
Enterprises CC (the defendant); and, indeed, his testimony is
consistent squarely with the implementation of the aforementioned
TransNamib policy of empowering women. Moses, the owner of the
defendant is a man.
[14]
Accordingly, the defendant can only be liable if the plaintiff
succeeded in establishing the authority of Martha as an agent, as a
matter of factual fact. Authority may be evidenced by direct proof of
an express authorisation or by way of inference. See
Inter-Continental Finance & Leasing Corp (Pty) Ltd v Stands 56
and 57 Industria Ltd 1979 (3) SA 740 (W). I hold that at the
close of the plaintiff’s case, the plaintiff had failed to
establish Martha’s authority as an agent of the defendant by
direct proof of an express authorization or by way of inference. And
it must be remembered that at this stage it is inferred that the
court has heard all the evidence available against the defendant.
Thus, the conclusion is unavoidable that the plaintiff has not made
any case, prima facie or otherwise, against the defendant.
[15]
I keep it firmly in my mental spectacle the judicial advice that a
court ought to be slow in granting an order of absolution from the
instance at the close of the plaintiff’s case unless the
occasion arises. In that event the court order would be in the
interest of justice. In the present proceeding, considering the
aforegoing factual findings and reasoning and conclusions, I think
the occasion has arisen to grant the order in the interest of
justice. I, accordingly, exercise my discretion in favour of making
an order granting absolution from the instance.
[16]
As respects costs; Mr Tjombe argues that looking at the
unreasonableness of the plaintiff in persisting with the claim
against the defendant even though Lohmeir, the sole member of the
plaintiff, and the plaintiff witnesses confirmed that the agreement
was entered into with Martha and not the defendant, the court should
order costs on the scale as between legal practitioner and his or her
own client. I respectfully decline Mr Tjombe’s invitation. The
plaintiff might have been misadvised in instituting and proceeding
with the action, but I do not think the plaintiff’s conduct in
the proceedings has reached the mark set by the high authority of
Strydom CJ in Namibia Grape Growers and Exporters v Ministry of
Mines and Energy 2004 NR 194 (SC) to persuade the court to grant
such costs order.
[17]
In the result –
I make an order
granting absolution from the instance with costs on the scale as
between party and party.
C
Parker
Acting
Judge
APPEARANCES
PLAINTIFF
:
P J Swanepoel
Of
Philip Swanepoel Legal Practitioners, Windhoek
DEFENDANT:
N Tjombe
Of
Tjombe-Elago Law Firm Inc., Windhoek
Congo Trading CC v E & Jay Trading Enterprises CC (I 2971/2012 ) [2014] NAHCMD 136 (14 April 2014);