Beauhomes Real Estate (Pty) Ltd t/a Re/Max Real Estate Centre and Others v Namibia Estate Agents Board (APPEAL 130 of 2008) [2008] NAHC 152 (19 September 2008);
CASE NO. A 130/2008
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
BEAUHOMES
REAL ESTATE (PTY) LTD
t/a
RE/MAX REAL ESTATE CENTRE 1ST
APPLICANT
AUGUSTINUS
KATITI 2ND
APPLICANT
JANET
GISELA GASES 3RD
APPLICANT
and
NAMIBIA
ESTATE AGENTS BOARD RESPONDENT
CORAM: HOFF,
J
Heard
on: 2008.08.12
Delivered
on: 2008.09.19
JUDGMENT:
HOFF,
J: [1] The
respondent approached this Court on 22 May 2008, on notice of motion,
for certain relief namely for the withdrawal of a fidelity fund
certificate issued to the second applicant, erroneously, as contended
by the respondent and for the return of such certificate to the
respondent. The applicants subsequently on 28 May 2008 gave notice
of their intention to oppose the application.
On 29 May
2008 the applicants gave notice in terms of Rule 30 of the Rules of
this Court that an application would be made on 30 May 2008 for an
order in the following terms:
“1. Setting aside
Applicant’s notice of motion dated 29 May 2008 with costs on the
ground that the application were (sic) not served as provided for in
Rule 4 (1)(b) of the Rules of the High Court.
Setting
aside Applicant’s notice of motion dated 22 May 2008 with costs on
the grounds that the application does not comply with Rule 6 (5)(a)
and (b) of the Rules of the High Court.
The
Respondents being prejudiced by the short service of the application
and the non-compliance of the Rules of the above Honourable Court.”
[2] The
respondent raised two points in
limine. The first
point was that the applicants did not comply with the provisions of
Rule 30(5) and the second point was that a notice opposition to the
application is, contrary as contended by the applicants, a further
step or proceeding taken with the knowledge of the irregularity.
[3] In
respect of the first point in
limine this Court
was referred to a recent unreported judgment (delivered on 11 July
2008), Standard Bank
of Namibia Ltd v Nationwide Detectives and Professional Practitioners
CC (Case no. (P) I 811/2007
in which it was held that a party should in terms of Rule 30(5) give
notice to his opponent to afford him an opportunity to remove the
cause of the complaint within 10 days of becoming aware of the
irregularity. The Court relied on Khunou
and Others v Fihrer & Sons 1982 (3) SA 353 at 361 A – B
as authority for its finding.
It is my
respectful view that Khunou
(supra) does not
support such finding. Furthermore governing judicial authority
(Norman & Co. (Pty) Ltd v Hansella Construction Co. (Pty) Ltd
1968 (1) SA 503 TPD; and ABSA Bank Ltd v The Farm Klippan 490 CC
Ekenhof Plastics Bottling Co. (Pty) Ltd and Others v BOE Bank Ltd
(formerly known as NBS Boland Bank Ltd) 2000 (2) SA 211 WLD)
had not been brought to the attention of the Court and was thus not
considered by the Court.
[4] In the
Hansella Construction
case (supra) Trollip
J in considering the applicability of the provisions of Rule 30(5) in
respect of Rule 21(6) concluded as follows at 504 E – G:
“…
the general rule in 30(5)
was obviously intended to apply in all those cases where a particular
Rule did not itself provide for a special sanction for non-compliance
with a notice or request, as, for example, in Rules 14(5), 14(9),
36(2) and 37(1). But where such special sanction was provided as,
for example, in Rules 21(6) and 35(7), that was to apply instead of
Rule 30(5). To try to read such Rules with and subject to Rule 30(5)
would be not to supplement them but to supercede or destroy them. In
fact if Rule 30(5) does apply then Rule 31(6) would have been
quite unnecessary and can be ignored. That could never have been the
intention.”
[5] The
reference to Rule 31(6) should read Rule 21(6) since there was never
a Rule 31(6).
[6] This
Court is thus at liberty not to follow the Standard
Bank of Namibia case
(supra)
because of misplaced reliance on non-applicable case law and an
obvious oversight of existing governing case law.
[7] In my
view Rue 30(5) is not applicable to the provisions of the other
subsections of Rule 30.
[8] The
first point in limine
is accordingly dismissed.
[9] Regarding
the second point in
limine it has been
held that a notice of intention to defend is not a further step taken
but merely an act done with the object of qualifying the defendant to
put forward his defence.
(See Singh
v Vogel 1947 (3) SA 400 (C) at 407; African Guarantee &
Indemnity Co. Ltd v Mills NO 1955 (2) SA 522 (T); Killarney of
Durban (Pty) Ltd v Lomax 1961 (4) SA 93; and Western Bank Bpk v De
Beer 1975 (3) SA 772 (T) at 775 A).
This second
point in limine
is accordingly also dismissed.
[10] I shall
accordingly now deal with the merits of the Rule 30 application. It
was submitted by Ms Angula who appeared on behalf of the applicants
that the main application should be set aside as an irregular step or
proceeding on two grounds, firstly, that the application was not
served on the applicants in the manner prescribed by the Rules, and
secondly that the application was brought as if one on urgency
contrary to the provisions of Rules 6 (5)(a) and (b).
[11] Mr
Nkiwane who appeared on behalf of respondent submitted that in
respect of the first ground that prior to the bringing of the main
application correspondence had been exchanged between the legal
representatives of the parties and since the legal representatives of
the applicants had been acting as agents, service could have been
effected on the legal representatives of applicants in compliance
with Rule 4 (1)(a)(vi) of the Rules of this Court which reads as
follows:
“(1)(a) Service
of any process of the Court directed to the sheriff and subject to
the provisions of paragraph (b) any document initiating application
proceedings shall be effected by the sheriff in one of the following
manner, namely –
by
delivering a copy thereof to any agent who is duly authorised in
writing to accept
service on behalf of the person upon whom service is to be
effected;”
(Emphasis
provided).
[12] The
service of the notice of motion in respect of all three applicants
had been effected on a secretary employed by the legal firm then
acting on behalf of the first respondent. The submission that the
legal firm had been an agent of the applicants does not hold water
since there is no proof that such a firm was duly authorised in
writing to accept
service on behalf of all the applicants.
In addition
the agent’s authorisation should be exhibited to the officer
effecting the service and this fact should be stated in the return of
service.
(See Loesch
v Loesch 1967 (4) SA 740 TPD at 741 E – F).
[13] This
fact, in casu
has not been reflected in the respective returns of service of the
applicants.
[14] It has
been held that the issue of a summons is the initiation process of an
action and has certain specific consequences, one of which is that it
must be served
in terms of the methods of service prescribed by the Rules and that
mere “knowledge”
of the issue of a summons is not service which could relieve a
plaintiff of his or her obligation to follow the prescribed Rules.
(See First
National Bank of SA Ltd v Ganyesa Bottle Store (Pty) Ltd and Others
First National Bank of SA Ltd v Schweizer Drankwinkel (Pty) Ltd and
Another 1998 (4) SA 565 NCD at 568 B- C).
[15] Where
proper service had not been effected, such service may be regarded as
a nullity.
In SA
Instrumentation (Pty) Ltd v Smithchem (Pty) Ltd 1977 (3) SA 703 NPD
at 706 E – F it
was held that where there was no service on the defendant company in
terms of the provisions of Rule 4 (1)(a)(v) that such a service was a
nullity and that the Court could under the particular circumstances
of that case not condone the improper service.
In the
present instance there was no service at all on the applicants in
terms of the provisions of Rule 4 (1)(a)(v) in respect of the first
respondent or in terms of Rule 4 (1)(a)(i), 4 (1)(a)(ii) or 4
(1)(a)(iii) in respect of second and third applicants and similarly
in my view such services amount to nullities.
[16] The
fact that the legal representatives of the respective parties had
been involved in the exchange of correspondence at some stage prior
to the initiation of the application proceedings by respondent did
not imply that the legal representative acting for the applicants was
an attorney of record in terms of the provisions of Rule 4 (1)(b)
which makes provision for service on an attorney of record.
The
provisions of Rule 4 (1)(b) apply inter
alia, to
interlocutory applications or applications in terms of Rue l43 in
pending divorce proceedings where there are already attorneys of
record. It was for this reason also improper to have served the
notice of motion on the firm acting on behalf of the applicants.
It cannot be
assumed that in circumstances where a legal firm has acted for a
party prior to the institution of court proceedings, that such legal
firm would also act for such party during the court proceedings.
In casu
there is no proof that the applicants have given a mandate to the
relevant firm to act on their behalf in court proceedings. It may
happen that one legal firm acts for a party prior to the institution
of legal proceedings (e.g. with the aim of settling a dispute out of
court) whilst a different legal firm may be mandated by such a party
to act as legal representatives during court proceedings.
[17] It was
submitted on behalf of the respondent that there was no prejudice to
the applicants by service of the notice of motion on the legal firm
who acted for them at that stage.
The answer
to this submission is simply that the prejudice to the applicants is
inherent in the fact that the notice of motion was never served
on the applicants.
[18] Regarding
the second point in
limine the
respondent conceded that the notice of motion was couched in the
wrong form but again submitted that applicants suffered no prejudice
and that this Court has the inherent power to condone the improper
form of the notice.
[19] I do
not intend to consider this second point in
limine since my
finding regarding the first point in
limine is that the
service of the notice of motion on the legal firm constituted an
irregular step which stands to be set aside.
[20] In the
result the following order is made:
The Rule 30
application is upheld with costs.
___________
HOFF, J
ON BEHALF
OF THE 1ST,
2ND
AND 3RD
APPLICANTS: MS ANGULA
Instructed
by: LORENTZANGULA INC.
ON BEHALF
OF THE APPLICANT: MS NKIWANE
Instructed
by: KWALA & COMPANY INC.