SUMMARY REPORTABLE

CASE
NO.: A 241/2007

SANTA CRUZ
PROPERTY (PTY) LTD AND ANOTHER

v

CONNIE
HOLDERGARD BRUNIDO AND OTHERS

Heard on: 2009
June 22

Delivered on: 2009
July 2

PARKER, J

Practice
- Applications and
motions – Motion proceedings – Final interdict – Final
interdict sought where bona fide and real disputes of facts exist on
the papers – Approach laid down by this Court to deal with such
application affirmed – Court dismissing application with costs on
the basis that applicants knew or ought reasonably to have known that
such disputes of facts exist and yet approached the Court by way of
motion proceedings.

Practice - Rule
18 of Rules of Court – Rule relating to pleadings generally –
Rule 18 (6) applicable to motion proceedings because affidavits in
motion proceedings are pleadings – Court deciding that applicants
cannot rely on any agreement where rule 18 (6) requirements have not
been complied with.

REPORTABLE CASE
NO.: A 1241/07

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

SANTA CRUZ
PROPERTY (PTY) LTD 1^ST
APPLICANT

AMAZONAS DUTY
FREE TRADING (PTY) LTD 2^ND
APPLICANT

and

CONNIE
HOLDEGARD BRUNIDO 1^ST
RESPONDENT

(PREVIOUSLY
SNYDERS)

IDENTITY
NO. 741112000018

THE REGISTRAR
OF DEEDS NAMIBIA 2^ND
RESPONDENT

THE HELAO
NAFIDI TOWN COUNCIL 3^RD
RESPONDENT

CORAM: PARKER,
J

Heard on: 2009
June 22

Delivered
on: 2009 July 2

JUDGMENT:

PARKER, J.:

[1] This matter
started its life on 10 September 2007 with the filing of an urgent
application (the 10 September 2007 application) which was scheduled
to be heard on 28 September 2007. On 12 September 2007 the 1^st
respondent (hereinafter referred to simply as ‘the respondent’,
seeing that the 2^nd
and 3^rd
respondents have not opposed the application) filed a notice of
intention to oppose the application. The relief that was sought in
the 10 September 2007 application was an interim order. The matter
did not proceed on urgent basis or at all; the reason why the matter
did not so proceed on 28 September 2007 is of no consequence for my
present purposes.

[2] Thereafter, on
12 December 2007 the applicants filed an Amended Notice of Motion
(the 12 December 2007 application); and in that application they have
moved the Court for a final order in the following terms verbatim
et literatim:

1.1. The
First Respondent is hereby interdicted from selling, leasing,
transferring or in any way disposing with or encumbering the
following properties:

1.1.1
the property known as Stand No. 23, Oshikango, measuring 3000 square
meters;

1.1.2.
the property known as Stand No 24, Oshikango, measuring 6000 square
meters;

1.2
The First Respondent is hereby interdicted from in any way disposing
with or encumbering:

1.2.1
the property known as Stand No. 10B, Oshikango, measuring 8630.19
square meters; or

1.2.2.
any rights, title or interest she or the Applicants may have in
respect of such property by virtue of an agreement of sale entered
into between herself and the Town Council of Helao Nafidi bearing the
date 26 May 2006, and annexed to the replying affidavit of the
Applicants as Annexure “XYZB”.

1.3
The Registrar of Deeds, the Second Respondent, is ordered and
authorized to note and register this Court Order as a caveat against
the title deeds of Stand 23, 24 and lOB, Oshikango, mentioned above,
which will remain so registered until the above Honourable Court
otherwise directs or until attorneys acting for the Applicants agree
to the caveat being lifted.

1.4
The First Respondent is ordered to forthwith deliver to the Sheriff
of the above Honourable Court all VAT invoices rendered by or
received whatsoever

nature
generated by, received by, or pertaining to the business of the
Second Applicant and any documents of the First Respondent or
pertaining to the business of the First Respondent.

1.5
The First Respondent is ordered to repay an amount of N$ 140,000.00
to the Second Applicant.

2.
That an order be granted in terms whereof:

2.1
The First Respondent is ordered to do all things necessary, and sign
documents necessary to effect transfer and registration of the
properties known as Stands No. 23 & 24, Oshikango, referred to
above, into the name of the First Applicant, at her own cost.

2.2
The First Respondent is ordered to do all things necessary, and sign
all necessary documents to effect transfer and register of the
property known as Stand 1OB, Oshikango, into the name of the First
Applicant at her own costs.

2.3 The
Sheriff of the above Honourable Court is authorized to take necessary
steps and sign necessary documents to effect transfer and
registration of the aforesaid properties into the name of the First
Applicant, should the First Respondent refuse to take such steps and
sign such documents.

3.
That the First Respondent is ordered to pay the costs of this
application on a scale as between attorney and client.

4.
That further and/or alternative relief be granted.

[3] The applicants
made an about-face as to the relief sought in the 12 December 2007
application. While the relief that was sought in the 10 September
2007 application was an interim order, as aforesaid, the relief that
is sought in the 12 December 2007 application (that is, the present
application) is a final order, consisting of a final prohibitory
interdict (paras 1.1 and 1.2 of the Amended Notice of Motion) and
mandatory interdict (paras 1.3, 1.4, 1.5, 2.1, 2.2 and 2.3 of the
Amended Notice of Motion). It follows that the Court has been moved
by Notice of Motion in the instant application to grant final
interdict; and so I proceed to deal with this matter on that basis,
as I should. Mr. Du Plessis represents the applicants and Mr.
Heathcote the respondent.

[4] Regarding the
trite approach that this Court when considering an application for a
final interdict or a final relief ought to follow, it has been stated
– authoritatively, in my opinion – by this Court, per
Muller AJ (as he then was), after reviewing the authorities in Clear
Channel Independent Advertising v Transnamib Holdings
2006 (1) NR 121 at 129H-130G, thus:

… when
considering a final interdict or a final Order, the approach of our
courts is based on what is normally called ‘the Stellenvale
rule’. The Stellenvale
rule is of course based on the general rule stated by Van Wyk, J in
the case of Stellenbosch
Farmers’ Winery Ltd v Stellenvale Winery (Pty) Ltd 1957
(4) SA 234 (C). This approach was followed by several decisions and
qualified in the case of Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd
1984 (3) SA 623 (A) at 634E-635A.

Indeed, the
Stellenvale
rule approach had been succinctly set out by this Court some 12 years
earlier in Kauesa v
Minister of Home Affairs and others
1994 NR 102 at 108G-H.

[5] In the light
of the authorities, I accept Mr. Du Plessis’s submission that the
applicants are entitled to seek relief by way of notice of motion.
But, as Mr. Heathcote correctly submitted, it must also be remembered
that if the litigant who seeks relief by way of notice of motion has
reason to believe
that facts essential
to the success of his or her claim will probably be disputed, he or
she chooses that procedural form at his or her peril, for the Court
in the exercise of its discretion might decide neither to refer the
matter for trial nor to direct that oral evidence on the disputed
facts be placed before it, but to dismiss the application. (Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
1949 (3) SA 1155 (T), followed in Stellenvale
Winery supra and
Transnamib Holdings
supra)

[6] In the instant
case, I find that the success of the applicants’ claim lies in the
existence of an agency agreement between the applicants and the
respondent. In this regard, taking a cue from Rule 18 (6) of the
Rules of Court which deal with ‘pleadings generally’,
I would expect the applicants to do the following; that is, to
state in the
founding affidavit, which, together with other affidavits,
constitutes pleadings in motion proceeds (Stipp
and another v Shade Centre and others
2007 (2) NR 627 (SC); Hewat
Beukes t/a MC Bouers and others
Case No.: A 388/09 (Unreported)) whether the contract is written or
oral and when, where and by whom it was concluded; and if the
contract is written to annex to the affidavit a true copy thereof or
of the part relied on in the affidavit. And in my opinion, ‘to
state’ in Rule 18 (6) means to set it out in a clear way and
precisely; that is, in the instant case, to set out in a clear way
and precisely the matters referred to in that sub-rule. In
casu, what is stated
in the applicants’ founding affidavit does satisfy the rule 18 (6)
requirements. Moreover, the applicants have not discharged the onus
cast on them to sufficiently prove the existence of any such
agreement and the terms thereof. I find Mr. Du Plessis’s ‘evidence
from the Bar’, concerning the existence of such agreement which,
according to him is partly written and partly oral, to be outwith the
application of the said Rule 18 (6); and so, with the greatest
deference, I take no cognizance of counsel’s ‘evidence’.
Accordingly, I hold that the applicant cannot rely on an agency
agreement in these proceedings.

[7] But that is
not the end of the matter: Mr. Du Plessis submitted that the
applicants rely also on the respondent’s breach of her fiduciary
duty as a director of the 1^st
applicant; and this appears to be stated in para 5.2 of the founding
affidavit.

[8] In that
statement, the applicants aver that by purchasing Stands 10B, 23 and
24, Oshikango, the respondent violated ‘her mandate and duties as
director’. Based on that statement, Mr. Du Plessis submitted that
the respondent thereby breached her fiduciary duty as a director of
the 1^st
applicant because as Mr. Du Plessis put it, the object of the 1^st
applicant was to acquire and hold property; and that meant to acquire
and hold the three Stands. To this end, so the applicants aver, the
full amount of the purchase price of the Stands ‘was provided to
the First Respondent to enable her to purchase the properties’
(i.e. the three Stands); and, furthermore, that the total amount of
money received by the respondent in this regard was N$513,659.00 ‘to
enable her to purchase the aforesaid three properties for the First
Applicant.’ Specifically, according to the founding affidavit, the
total amount was provided by Nelio Correia Dinis not in one lump sum
but in various amounts. All these are contained in various
statements in the applicants’ founding affidavit, particularly
paras 6.10, 6.11, and 6.12.

[9] No attempt has
been made to satisfy the rule 18 (6) requirements or to provide a
modicum of evidence of the agreement referred to in the above-quoted
para 6.11.1. All that we have is the ipse
dixit of the
applicants. In this regard, I conclude that Annexures NCD 17, NCD 18
and NCD 19, attached to the applicants’ founding affidavit, add no
weight at all. If anything at all, they create more heat than light
as respects the point under consideration.

[10] The
respondent disputes all the above averments by the applicants. She
disputes that the 1^st
applicant was incorporated for the sole purpose of purchasing and
holding the Stands (i.e. 10B, 23 and 24, Oshikango). Her contention,
which is not far-fetched or untenable, is that the 1^st
applicant was established with the object of acquiring ‘new
properties’ and not to acquire and hold Stands 10B, 23 and 24,
Oshikango, specifically. In the absence of the Memorandum and
Articles of Association of the 1^st
applicant the issue as to when the 1^st
applicant was formed cannot be decided on the papers. This is
significant because the respondent states in her opposing affidavit
that she had already bought ‘the properties’ (i.e. Stands 10B, 23
and 24) ten months prior to ‘the alleged meetings’ of the
directors of the 1^st
applicant. And, according to the Helao Nafidi Town Council, the
vendor of those Stands, the sale of the Stands to the respondent was
concluded in the first quarter of 2005. I, therefore, find that there
is a bona fide and real dispute of fact as to whether the 1^st
applicant was formed to purchase and hold Stands 10B, 23 and 24
specifically.

[11] The
respondent denies also that she received N$513,659.00 for the sole
purpose of using it to purchase the Stands for and on behalf of the
1^st
applicant. I do not find this denial also to be far-fetched and
untenable, considering the rather unclear and not so straightforward
arrangement under the alleged agreement (referred to in para 6.11 of
the applicants’ founding affidavit). In this regard, I find that
the so-called ‘Memorandum of Agreement’ between the 1^st
respondent and Nelio Correia Dinis (Annexure NCD 21 to the
applicants’ founding affidavit) to be of no moment for my present
enterprise; not to mention that a document purporting to be an
agreement cannot be relied on in a court of law where the parties
have not signified their agreement of the terms contained therein by
affixing their respective signatures thereto. Accordingly, I take no
cognizance of Annexure NCD 21: it adds no weight.

[12] From the
aforegoing, I find that the respondent does not admit any of the
essential facts averred by the applicants. And I have already found
that the respondent’s denials are not so far-fetched or clearly
untenable that I am justified to reject them merely on the papers.
That being the case, I conclude that the respondent’s denials raise
real and bona fide disputes of facts that cannot be resolved on the
papers. In sum, in my opinion, the colour of disputes of facts is so
genuine and so real and so material that no amount of ‘Plascon-Evans
Paint’ can change that colour. The conclusions I have reached
dispose of prayer 1 (including prayers 1.1, 1.1.1, 1.1.2, 1.2, 1.2.1,
1.2.2 and 1.3; but excluding 1.4 and 1.5) and prayer 2 (including
prayers 2.1, 2.2 and 2.4) of the Amended Notice of Motion.

[13] I now proceed
to deal with the matter of the N$140,000.00 which is the subject of
prayer 1.5 of the Notice of Motion. Nelio Correia Dinis states in
the applicants’ founding affidavit that ‘$140,000.00 (I take it
to be N$) was stolen by the First Respondent from the Second
Applicant’s funds without any explanation’, and this application
is also made ‘for the purposes of reclaiming such amount.’ The
respondent admits using the N$140,000.00; but she denies stealing it;
and this is significant. Moreover, she is prepared to pay whatever
amount is outstanding once the books (I take it to be books of
account) have been prepared. Thus, the respondent admits using the
N$140,000.00; she does not, however, admit stealing the money; and
she says she is prepared to pay it back once the books of account are
prepared and the correct amount is identified. To bring an
application, as the applicants have done, for an order to reclaim the
amount is simply not proper. To start with, there is no evidence
that the ‘writing up’ of the books of account adverted to by the
respondent has been done. In their replying affidavit the applicants
aver that there ‘is no necessity for the books to be “written up”
first before the amount is owing, since the respondent admits her
indebtedness, and they rely on Annexure NCD 20 to the applicants’
founding affidavit.

[14] If the
applicants knew on 27 July 2007 that the respondent had stolen
N$140,000.00 from the 2^nd
applicant, it is inexplicable why the applicants should wait for
about six months without demanding the N$140,000.00 from the
respondent, and then launch notice of motion proceedings for the
purpose of claiming the repayment of the amount by the respondent.
This approach, in my opinion, smacks of abuse of process of the
Court, especially if regard is had to the fact that the applicants
knew or ought to have reasonably known that there was a bona fide
dispute of fact as to whether the applicant had stolen the money or
she had authority to use it, as she says she had by relying on
Annexure NCD 15 (para 7), annexed to the applicants’ own founding
affidavit. In any case, in my opinion, there is a genuine and real
dispute of fact as to whether the respondent stole the money, as the
applicants contend, or that the respondent had authority to use the
money, as the respondent contends; and further, as to whether the
N$140,000.00 is the final figure, as the applicants contend, or the
books of account ought to be prepared first to enable the final
figure to be ascertained, as the respondent contends. From all this,
I conclude that the denials by the respondent raise material and
bona fide dispute of fact (bar her admission of having used the
money) and also that the statements in her opposing affidavit
thereanent the money is not so far-fetched or clearly untenable that
this Court is justified in rejecting them merely on the papers. This
conclusion disposes of prayer 1.5.

[15] I pass to
deal with prayer 1.4 of the Amended Notice of Motion. According to
the applicants, the bulk of the 2^nd
applicant’s ‘documents’ generated after February 2007 is ‘still
in the possession of the respondent.’ This statement is contained
in para 6.16 of the applicants’ founding affidavit where they state
also that ‘to date (i.e. 6 September 2007) nothing has been
received from her (the respondent).’ In para 6.16 of the
respondent’s opposing affidavit filed and served on the applicants
on 16 October 2007, the respondent states, ‘As already explained I
will release the documents.’ At the hearing of the application on
26 June 2009, that is some 20 months thereafter, the Court is not
told whether the documents have been released; and if not released,
the reason for the failure to do so.

[16] In this
regard, I must, in the strongest terms, decry the conduct and
attitude of the respondent as respects the documents. Why burden the
Court, which is already overloaded with work, to decide on an issue
that one of the parties is prepared to resolve outside the surrounds
of the Court? This is so, particularly where the respondent in
casu had indicated
some 20 months ago that she would release the documents. And as I
have said, we are not told in June 2009 whether she has released the
papers, and if she has not, the reason for her failure to do what she
herself had stated on affidavit that she would do. We are also not
told what efforts the applicants have made since October 2007 to get
the respondent to do what she herself had said she would do.

[17] Be that as it
may, it is not in dispute that the respondent has the ‘documents’:
but, that is not good enough as far as this Court is concerned. The
fly in the ointment is that the said documents are not clearly and
sufficiently identified on the papers. That being the case, it will
not be a proper exercise of judicial discretion to make an order for
the release of ‘documents’ that are not clearly and sufficiently
identified on the papers. The word ‘documents’ in prayer 1.4 and
in the applicants’ founding affidavit is as amorphous as it is
vacuous: it matters the least that the ‘documents’ are stated to
be financial bookkeeping documents of the 2^nd
applicant and ‘documents’ pertaining to the business of the 2^nd
applicant.

[18] From all the
above conclusions and reasoning, I hold that there are bona fide and
material disputes of facts and further that the applicants knew or
ought reasonably to have known that. Relying on the authorities, I
held in Hendrik
Christian v Metropolitan Life Retirement Annuity Fund and others
Case No. A376/2008 (Unreported) that it is fundamental to all notice
of motion proceedings that if a litigant knows in advance that there
will be a material dispute of fact, the litigant cannot go by way of
motion and affidavit. If he or she nevertheless proceeds by way of
notice of motion he or she runs the risk of having his or her case
being dismissed with costs. Mr. Du Plessis invited me to refer the
matter to trial if I find that there are disputes of facts which
cannot be resolved on the papers. In view of the authorities, I must
respectfully but firmly decline the invitation: the present is a
proper case where I should dismiss the application with costs, as I
do. Thus, on this point, I accept Mr. Heathcote’s submission.

[19] In view of
all the aforegoing conclusions and reasoning and the determination I
have already made, it is otiose to consider the requirements for the
grant of final interdict referred to me by Mr. Du Plessis in his
submission, or to deal with any other arguments and submissions.

[20] In the result
the application is dismissed with costs on party and party scale,
such costs to include costs attendant upon the employment of
instructing counsel and instructed counsel.

________________________

Parker, J

ON
BEHALF OF THE APPLICANTS:
Adv W J Van Der Merwe

Instructed
by:
LorentzAngula Inc

ON
BEHALF OF THE 1^ST
RESPONDENT: Adv R
Heathcote

Instructed
by: Shikongo
Law Chambers

THE
2^ND
AND 3^RD
RESPONDENTS: No
appearance