SUMMARY

REPORTABLE

CASE NO.: A 361/2009

LA ROCHELLE (PTY) LTD AND
OTHER v RACHEL NATHANIEL-KOCH

AND OTHERS

PARKER J

2009 NOVEMBER 18

Practice-
Application and motion – Application proceedings –Principle
concerning proof of authority to institute proceedings in a long
line of cases confirmed – Principle that deponent of affidavit
need not prove her or his authority to depose to affidavit in a long
line of cases confirmed – Court confirming difference between
deposing to affidavit and instituting of proceedings.

Practice-
Application and motion – Application proceedings instituted by
a Trust – Court finding that all the trustees need not file
affidavits to prove authority to institute proceedings –
Court, however, finding in instant case that trustees can only take
decision, including decision to institute proceedings on behalf of
the Trust, strictly in accordance with relevant provisions of the
Trust’s deed of trust – Court finding that in terms of
the deed of trust applicants have not satisfied the Court they have
authority as trustees to institute the instant proceedings –
Court, therefore, striking off application.

Practice -
Application and motion – Application proceedings by artificial
person – Court finding that sole Director entitled to bring
application on behalf of the artificial person (1^st
applicant) – Court finding, however, that the so-called sole
Director has not offered any proof of his appointment as sole
Director when such appointment was challenged – Consequently,
Court finding that 1^st
applicant has not instituted any application proceedings –
Accordingly, Court striking off application.

Practice-
Application and motion – Interim interdict – Interim
interdict granted by agreement between parties in circumstances where
applicants have no authority to bring application – Court
striking off the application from the Roll – Court concluding
that there is no rule nisi
existing in law to
determine on some return date whether to confirm –
Accordingly, Court discharging rule nisi.

Practice-
Rule 6 of Rules of Court – Authentication of document executed
outside Namibia for use within Namibia under Rule 63 – Court
finding that signature affixed to resolution in Germany not
authenticated – Consequently, Court refusing to admit the
resolution.

Held,
that all trustees need not sign affidavits to show authority to
institute proceedings on behalf of the Trust but resolution granting
authority to trustees to institute proceedings must be passed in
strict conformity with the Trust’s deed of trust.

Held,
further, that caution typifies the object of Rule 63 of the Rules of
Court and so the rule must be interpreted strictly so as to promote
the interests of justice and also to protect the interests of all
parties.

Held,
further, that where a rule nisi
has been granted by
agreement between the parties in circumstances where applicant is not
properly before the Court and there is no authority to bring the
application it serves no purpose to allow such rule nisi,
which is null and
void ab initio,
to stay for the Court to determine on some return date whether to
confirm such legally non-existent rule nisi.

REPORTABLE

CASE NO.: A 361/2009

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

LA
ROCHELLE (PTY) LTD 1^st
APPLICANT

EVERHARDUS
PETRUS FACKULYN GOUS N.O. 2^nd
APPLICANT

CHRISTOFF
TSCHARNKTE N.O. 3^rd
APPLICANT

And

RACHEL
NATHANIEL-KOCH 1^st
RESPONDENT

THE
MINISTER OF SAFETY & SECURITY 2^nd
RESPONDENT

THE
PROSECUTOR-GENERAL, NAMIBIA 3^rd
RESPONDENT

CORAM:
PARKER J

Heard
on: 2009 October 27

Delivered on: 2009
November 18

JUDGMENT:

PARKER
J

[1] The applicants had brought
an application for an interim order against 1^st,
2^nd
and 3^rd
respondents, and they had moved the Court to hear the application on
urgent basis on 21 October 2009. On that date, at the commencement
of proceedings and having heard Mr. Brandt, the then counsel of the
1^st
respondent, and Mr. Barnard, counsel of the applicants (I will deal
with the other counsel in due course), I was satisfied that service
of some papers on the 1^st
respondent had been carried out improperly and at short notice. The
papers had been served on the 1^st
respondent’s colleague in the Directorate: Legal Aid in the
Ministry of Justice, Windhoek, instead of on the 1^st
respondent in the Directorate’s regional office in Oshakati
where the respondent works as a public servant. On such service of
papers in urgent application proceedings, I had this to say in Hewat
Beukes t/a MC Bouers and another v Luderitz Town Council Case
No. A 388/09 (Unreported) at p.5:

Thus,
in deciding whether the requirements in (1) and (2) of rule 6 (12)
have been met, that is, whether it is a deserving case, it is
extremely important for the Judge to bear in mind that the indulgence
– and indulgence, it is – that the applicant is asking
the Court to grant, if the Court grants it, would whittle away the
respondent’s right to fair trial guaranteed to him or her by
the Namibian Constitution.

I stated further at pp 9 –
10 as follows:

I
for one do not wish to have anything to do with a perversion of rule
6(12) of the Rules of Court, as has occurred in the instant case,
because such misuse of the rule puts the respondents beyond the pale
of constitutional protection of Article 12(1) of the Namibian
Constitution.

[2] Thus, in order to ensure
that the 1^st
respondent was not put beyond the pale of constitutional protection
of Article 12(1) of the Namibian Constitution because of the way
‘service’ had been effected in the proceedings, I decided
not to hear the application; and I made an order (‘the 21
October order’) in which I gave the 1^st
respondent up to 23 October 2009 (inclusive) to file additional
affidavit, if she so wished. On this point, I wish to make it
abundantly clear that it was not up to Mr. Barnard to object or not
to object to the postponing of the hearing of the application in
order to give the 1^st
respondent her constitutionally guaranteed right to be heard in civil
proceedings: I would, therefore, not have taken cognizance of any
such objection, anyway. In sum, in not objecting to the postponement
Mr. Barnard was not giving the 1^st
respondent any concessionary largesse: it is the 1^st
respondent’s constitutional entitlement to be heard. That is
exactly the essence of my judgment in Hewat
Beukes t/a MC Bouers and another supra.

[3] The aforegoing are meant to
drive home the point that it is of no consequence (contrary to what
Mr. Barnard submitted), as far as I am concerned, if the position
taken by the 1^st
respondent in her 23 October answering affidavit is completely
different (‘dramatic charge’, Mr. Barnard characterizes
it) from the position she had held in the answering affidavit she had
filed before I gave her the opportunity to file such additional
affidavit, as aforesaid. It is also worth noting that in the
interest of fairness, the applicants were also permitted to file
additional replying affidavits, if they so wished; and that they did
on 26 October 2009.

[4] In these proceedings, I do
not concern myself with the 1^st
respondent’s counter-application and statements in the
applicants’ replying affidavit that are in response to the
counter-application which the 1^st
respondent launched (using also the answering affidavit as a founding
affidavit, too). What has relevance to the instant proceedings is
the issue of the points in
limine that the 1^st
respondent has raised in her answering affidavit.

[5] Before I leave the 21
October 2009 order, I should make the following point. Apart from
the order permitting the filling of further affidavits, I granted a
rule nisi in
terms prayed for in the notice of motion filed by the applicants,
upon agreement between the applicants and the 1^st
respondent. That the rule nisi
was granted by
agreement between the 1^st
respondent and the applicants is so crucial that it must be
highlighted and flagged for further significant treatment in due
course.

[6] In this connection, it is
important to note that in view of the answering affidavit that had
been filed by the Prosecutor-General (the 3^rd
respondent), Ms. Van der Merwe stated that she would not oppose any
final order being granted against the 3^rd
respondent that concerns the 3^rd
respondent in the applicants’ prayers in the notice of motion.
In the same vein, counsel informed the Court that likewise, she would
not oppose any such final order being granted against the 2^nd
respondent. That being the case the rest of this judgment affects
only the 1^st
respondent.

[7] In view of what the 1^st
respondent states in para. 32.2 of her answering affidavit and what
the 3^rd
applicant says in paras. 63 and 64 of his 26 October 2009 replying
affidavit, I wish to set the record straight for the purposes of
these proceedings by signalizing the point, as I have done
previously, that the rule nisi
was granted on 21
October 2009 by agreement between the parties; and the 1^st
respondent was represented by counsel; and furthermore, that ‘no
point was effectively disposed of and dismissed by the Honourable
Court hearing the application on 21^st
October 2009’, contrary to what the applicants now contend. No
hearing of the application took place on the merits. The rule nisi
was granted for the
interim period that further affidavits were being filed; nothing
more, nothing less. In sum, the rule nisi
was granted not
because I had found that the applicants had made out a case for the
grant of the interim order. I cannot emphasize it enough that, as I
have said more than once, I did not hear any arguments either way
thereanent; and neither would I have done so, considering my view
clearly and inexorably articulated in

Hewat Beukes t/a MC Bouers
and another v Luderitz Town Council supra.

[8] Doubtless, I must
unavoidably take into account the compelling and cogent conclusion I
have made concerning the constitutional confirmation of the common
law principle of audi
alteram partem rule
of natural justice under Article 12 (1) of the Namibian Constitution
in Hewat Beukes t/a
MC Bouers and another v Luderitz Town Council supra
when considering the interim order that was granted, by agreement
between applicants and the 1^st
respondent on 21 October 2009.

[9] In the instant proceedings,
I deal with only the point in
limine raised by the
1^st
respondent, as aforesaid; and I deal with the second point in
limine first. The
bone and marrow of this point is that the applicants are not properly
before this Court; and this, therefore, raises the question of locus
standi. Why does
the 1^st
respondent say the applicants are not properly before the Court? Mr.
Namandje, counsel for the 1^st
respondent, submitted that one trustee cannot act independently in
instituting proceedings in the name of the La Rochelle Ranch Trust
(‘the Trust’). In support of his contention, Mr.
Namandje referred to Goolam
Ally Family Trust t/a Textile, Curtaining and Trimming v Textile,
Curtaining and Trimming (Pty) Ltd 1989
(4) SA 985 (C); Thorpe
and others v Trittenwein and another 2007
(2) (SA 172 (SCA); Resner
v Lydia Swanepoel Trust 1998
(2) SA 123 (W); Mariola
and others v Kaye – Eddie and others 1995
(2) 728 (W). I have perused the cases and those referred to me by
Mr. Barnard, and I have distilled those principles that are of
assistance to the point under consideration and have taken them into
account in my consideration of the point in
limine.

[10] Mr. Barnard submitted the
other way. Mr. Barnard responded that the 1^st
respondent’s contention that for the trustees to prove their
authority all the trustees should have made affidavits has no legal
basis. Mr. Barnard’s submission falls to be rejected for two
reasons. First, Mr. Barnard’s submission that this Court on 21
October 2009 did ‘effectively’ dispose of and dismiss
such point has no basis. I did not do any such thing. As I have
said ad nauseam,
I did not hear any arguments on any such point or any point
resembling that point. Second, that is not what the 1^st
respondent contends. The contention of the 1^st
respondent, as articulated by her counsel in his submission, is what
I have dealt with infra
as regards the only
two ways by which a decision of the Trust can have force and effect:
it arises from the interpretation and application of the Trust’s
own deed of trust – by a resolution passed at a meeting or a
resolution that is not passed at a meeting but signed by all the
trustees. That is to say, as Mr. Namandje correctly submitted, one
trustee has no hue of authority to act independently of the other
trustees and institute proceedings for and in the name of the Trust.
Indeed, there is no need to seek authority to support this
conclusion. As I have shown below, the conclusion is supported by
the interpretation and application of the relevant provisions of the
Trust’s deed of trust, which I have dealt with below.
Additionally it has been held by Innes, CJ in Schierhout
v Union Government 1919
AD 30 at 44 that:

When
several persons are appointed to exercise judicial powers, then in
the absence of provision to the contrary, they must all act together;
there can only be one adjudication, and that must be the
adjudication of the entire body (Billings
v Prinn, 2
W. B1., p. 1017). And the same rule would apply whenever a number of
individuals were empowered by Statute to deal with any matter as one
body; the action taken would have to be the joint action of all of
them (see Cook
v Ward, 2
C.P.D. 255; Darcy
v Tamar Railway Co., L.R.
3 Exch, p. 158, etc.), for otherwise they would not be acting in
accordance with the provisions of the Statute.

[11] I do not see any good
reason why the principle enunciated in Schierhout
supra should not
apply to the Trust, when the Trust’s own deed of Trust requires
that a decision of the Trust may be taken either at a meeting (or by
a resolution), so that the decision taken is ‘the joint action’
of ‘all’ the trustees. This point is treated further.

[12] As I say, Mr. Namandje
buttressed his submission with reference to the deed of trust of the
Trust on whose behalf the 2^nd
and 3^rd
applicant allege they have authority to bring the present
application. Clause 20 of the deed of trust provides for ‘Meetings
of Trustees and Resolutions’. From the deed of trust it is
clear to me that a decision of the Trust may only have effect if such
decision was taken via either of two alternative ways. The first is
by a resolution passed at a meeting at which there is a
quorum (and two
trustees, of whom one must be the first trustee, constitute a
quorum), and for
which meeting a proper notice had been given in terms of Clause
20.1.3. The second is contained in Clause 20.2; that is to say, by
‘a written resolution signed by all
the trustees;’
that is to say, as I understand the provision, a resolution passed
not necessarily at a meeting.

[13] It is not in dispute that
there were three trustees, namely, the 2^nd
applicant, the 3^rd
applicant (these are the two other applicants appearing on the Notice
of Motion). The other trustee was Martin Kali Shipanga – the
‘2^nd
applicant’ appearing on Counsel’s Certificate of
Urgency’, but whose name is blackened out on the Certificate:
this is significant as will become apparent shortly.

[14] Accordingly, I accept Mr.
Namandje’s submission that when the present application was
filed with the Registrar, there were three trustees, namely the 2^nd
applicant, the 3^rd
applicant and Mr. Shipanga who had been the 2^nd
applicant, as I have mentioned previously. The relevancy of this
uncontradicted fact will be indicated in due course.

[15] In Wlotzkasbaken
Home Owners Association and another v Erongo Regional Council and
others 2007 (2) (NR)
799 AT 805F-806C I dealt with the settled rule of practice respecting
the question of authority to depose to affidavits to be used in
application proceedings and authority to institute and prosecute
proceedings in the following passages:

The
golden thread that runs through these cases, starting from Mall
(Cape) (Pty) Ltd v Merino Ko-operasie Bpk 1957
(2) SA 347 (CPD) supra,
is set
out succinctly in the following passage, per
Strydom,
J (as he then was) from South
West Africa National Union v Tjozongoro and others (1985
(1) SA 376 (SWA)) supra,
at
381E:

In
all these cases (i.e. cases the learned Judge referred to) the Courts
concluded that in motion proceedings by an artificial person,
although prudent, it is not always necessary to attach to the
application the resolution authorizing the institution of proceedings
and that a deponent’s allegation that he was duly authorized
would suffice in the absence of a challenge to his authority. Thus,
from Tjozongoro
and others, it
seems to me clear that where such authority is challenged, there is
no rule of practice preventing the deponent from proving such of his
or her authority by annexing the resolution authorizing the
institution of proceedings to his or her replying affidavit.

…

To
the principle in Tjozongoro
and others, supra, should
be added the principle in Ganes
and another v Telecom Namibia Ltd 2004
(3) SA 615 (SCA)) supra, in the following passages at 615G-H:

In
the founding affidavit filed on behalf of the respondent Hanke said
that he was duly authorized to depose to the affidavit. In his
answering affidavit the first appellant stated that he had no
knowledge as to whether Hanke was duly authorized to depose to the
founding affidavit on behalf of the respondent, and he did not admit
that Hanke was so authorized and that he put the respondent to the
proof thereof. In my view, it is irrelevant whether Hanke had been
authorized to depose to the founding affidavit. The deponent to an
affidavit in motion proceedings need not be authorized by the party
concerned to deposed to the affidavit. It is the institution of the
proceedings and the prosecution thereof which must be authorized.

[16] After citing with
approval the above-quoted passages from Wlotzkasbaken
Home Owners Association and another v Erongo Regional Council and
others supra in The
Council of the Municipality of the City of Windhoek v D B Thermal
(Pty) and Ziton (Pty) Ltd Case
No. I 1997/2004 (judgment of 28 October 2009) I added the following
at pp. 4 and 5:

To
the aforementioned authorities should be added Duntrust
(Pty) Ltd v H Sedlacek t/a G M Refrigeration 2005
NR 147; JA
Jacobs t/a Southern Engineering v The Chairman of the Nampower Tender
Board and another A
140/2007 (unreported); Otjozondjupa
Regional Council v Dr. Ndahafa Aino-Cecilia Nghifindaka and two
others Case
No. LC 1/2009 (Unreported); and Eveleth
v Minister of Home Affairs and another 2004
(11) BCLR 1223(T).

[17] From the submissions made
by both counsel and the authorities they referred to me on the point
under consideration it is clear to me that the rule of practice
thereanent emanating from the authorities is firmly settled. That
much both counsel agree.

[18] What is the authority of
the trustees to bring the present application? I find that on the
papers there is no proof that a meeting, properly constituted in
terms of the deed of trust, took place at which a resolution was
passed to give authority to Mr. Gous, Mr. Shipanga or Mr. Tscharnkte
to institute and prosecute these proceedings on behalf of the Trust.
Is there then credible and acceptable proof that a decision by the
trustees to bring the present application and to give authority to do
so on behalf of the Trust to Mr. Gous, Mr. Shipanga and Mr.
Tscharnkte had been taken via the aforementioned alternative route,
namely, by a resolution that was not passed at a meeting? Mr.
Namandje says there is no such proof, because there is no proper
resolution before this Court. Mr. Barnard says there is. I now
proceed to test these two mutually exclusive contentions.

[19] The
resolution that Mr. Barnard relies on in his submission is
‘Resolution
of the Trustees of the La Rochelle Ranch Trust’.
Immediately below this underlined heading is the following:

‘In
attendance:

Everhardus
Petrus Fackulyn Gous

Martin
Kalie Shipanga’

The following items on the
second and last sheet of the so-called resolution are crucial for my
present purposes:

‘Signed
at Windhoek on 12 October 2009

(A
signature)

E
P F Gous

In
his capacity as Trustee of the La Rochelle Ranch Trust

(No
signature)

M
K Shipamga (sic)

Accepted
by signing a faxed copy of this Resolution at Reutlingen, Germany

(A
signature)

C
Tscharnkte

In
his capacity as Trustee of the La Rochelle Ranch Trust’

[20] I cannot, on any plane,
accept the so-called resolution for two reasons. The first reason is
that in breach of Clause 20.2 of the Trust’s own deed of trust
the resolution has not been ‘signed by all the trustees’.
Realizing this cause of fatality of the so-called resolution, Mr.
Barnard sought to rely on Clause 20.4 of the deed of trust which
provides:

The
trustees, in their administration of the trust and to enable them to
give effect to any formal legal requirement, may authorize one or
more of their number to sign all documents required to be signed for
the execution of any transaction concerning the business of the
trust. Any resolution certified by a trustee to be a true extract
from the minutes of a resolution passed by the trustees shall against
third parties in all respects have the same legal force as a
resolution passed by the trustees.

[21] None of the two sentences
in the above-quoted Clause can assist Mr. Barnard. In terms of the
deed of trust, the trustees can only ‘authorize’ in one
or both of two exhaustive ways, as I have demonstrated previously;
that is, through a resolution passed at a meeting or by resolution
not passed at a meeting. In
casu, there was no
meeting to pass a resolution; and there is no resolution not passed
at a meeting, as I have found above. And to the second sentence; a
trustee can only certify ‘a resolution’; not anything
that masquerades, legally speaking, as a resolution. If there is no
resolution as I have found; then logically, there is no resolution to
certify. The result is that Clause 20.4 is of no assistance on the
point under consideration.

[22] The second reason is
this: the applicant have sought to place ‘resolution’
(even if, for argument’s sake, it were to be accepted as a
resolution) before this Court in clear violation of rule 63 of the
Rules of Court which deals with the authentication of documents
executed outside Namibia for use within Namibia. As I said in The
Council of the Municipality of the City of Windhoek v D B Thermal
(Pty) Ltd and Ziton (Pty) Ltd supra
at p. 9, if I did not apply rule 63 strictly, ‘I would be
throwing caution to the winds; caution, that typifies the object of
rule 63 of the Rules of Court’, and, more important, that would
not be in the interest of justice or of the parties, particularly of
the 1^st
respondent.

[23] Indeed, the imperative
need to be cautious in this case is even put in sharper focus if
regard is had to some of the evidence placed in the affidavits
concerning the reason – reason not too pious – why all
the shares in La Rochelle (Pty) Ltd were transferred to the Trust;
and what is more, it is alleged in the papers that the 2^nd
applicant ‘was the one that recommended’ the scheme to
Mr. Hans Koch, the late husband of the 1^st
respondent. This was at a time when Mr. Hans Koch was a claimed
person in an on-going extradition proceedings and was, therefore, in
custody awaiting the outcome of the extradition request by Germany,
the requesting State; and the 2^nd
applicant together with one ‘Van Vuuren were the first trustees
of the newly created’ Trust. It is also alleged in the papers
filed of record that before his death, Mr. Hans Koch had given
instructions ‘to the law firm Dr. Weder, Kauta & Hoveka to
institute action against’ the 2^nd
applicant in which Mr. Hans Koch (and others) sought the removal of
the 2^nd
applicant ‘from being a purported trustee’ of the Trust.

[24] It follows from the above
analysis and conclusions that I find that the 1^st
respondent’s second point in
limine succeeds.
The 2^nd
and 3^rd
applicants have no authority to institute these proceedings and
prosecution thereof on behalf of the Trust. The inescapable
consequence is that all the affidavits made by the 2^nd
applicant (Gous N.O.) and the 3^rd
applicant (Tscharnkte N.O.), together with the so-called resolution,
are struck off. It follows indubitably that any affidavit whose
object is to confirm Gous N.O.’s and Tscharnkte N.O.’s
affidavits is otiose; it is as if such affidavit does not exist
because a confirmatory affidavit is irrelevant on its own if there is
no affidavit to confirm. This conclusion affects the confirmatory
affidavits of Mr. Klaus Tietz, Josias Andries Agenbach and Martin
Kali Shipanga inasmuch as those affidavits seek to confirm the
affidavits of Gous N.O.

[25] But that is not the end of
the matter. Mr. Barnard produces yet another card. It is this:
‘The first applicant is duly before the Court. It is a private
company with limited liability. Its Director is before the Court:
it is Mr Knouwds.’ Mr. Barnard continued, ‘That averment
was never attached by any of the Respondents. It is a fact that
should be accepted for purposes of this application.’ I accept
the submission in principle; but so long as Mr. Knouwds was in truth
the sole Director of the 1^st
applicant. If, indeed, he was such a Director at the time of the
launching of the application, then I accept Mr. Barnard’s
submission that since Mr. Knouwds’s authority to institute the
proceedings have not been challenged by the respondents, it is too
late in the day for the 1^st
respondent to challenge it now. All this is good proposition, if
there is uncontradicted or unchallenged evidence on the papers that
Mr. Knouwds was, indeed, the sole Director of the 1^st
applicant as at 14 October 2009 when the present application was
launched. What, in my view, cannot now be challenged by the 1^st
respondent now is the averment that Mr. Knouwds, in his capacity as
the sole Director of the 1^st
applicant, has authority to institute these proceedings on behalf of
the 1^st
applicant. As I see it, in law, that averment is polar apart from
whether in truth Mr. Knouwds was the sole Director; apart from Mr.
Knouwds ipse dixit
of such matter.

[26] In this respect, I take
note of the fact that in her answering affidavit of 19 October 2009,
the 1^st
respondent put into dispute the appointment of Mr. Knouwds as the
sole Director of the 1^st
applicant. In my opinion that is undoubtedly a challenge that Mr.
Knouwds was what he contended he was; and that challenge has remained
unanswered in any replying affidavit or supplementary replying
affidavit that is properly before the Court. I did not see or hear
Mr. Barnard to make as much as a whimper about this challenge in his
submissions. Consequently, I hold that Mr. Knouwds is not entitled
to institute and prosecute these proceedings in the name, and on
behalf, of the 1^st
applicant. Mr. Tietz’s statement in his affidavit adds no
weight at all. As I say, the appointment of Mr. Knouwds as the sole
Director of the 1^st
applicant has been challenged and that challenge has not been
answered; and so Mr. Tietz’s statements as to what Mr. Knouwds
qua sole
Director of the 1^st
Director did (or did not do) in relation to the 1^st
respondent is of no consequence; it is, indeed, with respect,
irrelevant.

[27] Even if, for argument’s
sake, Mr. Knouwds’s appointment as the sole Director of the 1^st
applicant was
proven, what do we have? Nothing to write home about. Mr.
Knouwds’s affidavit cannot even begin to get off the
starting-blocks to constitute a founding affidavit, capable of
supporting any notice of motion in any application proceedings in
terms of the Rules of Court.

[28] From the aforegoing, I
hold that the 1^st
applicant has not instituted any application against the 1^st
respondent. It is compellingly unavoidable that I take this crucial
conclusion into account when making any order as respects the rule
nisi that
was granted, by agreement between the applicants and the 1^st
respondent, on 21 October 2009, as aforesaid.

[29] (1) I have held previously
that the rule nisi
was granted by
agreement between Mr. Brandt, the previous counsel of the 1^st
respondent, and Mr. Barnard, the applicants’ counsel on behalf
of their respective clients. No arguments were heard on the merits;
neither could I have heard the application on the merits, given the
fact that, as I have said more than once previously, the 1^st
respondent had been improperly served with papers and at short
notice, and so I gave her the opportunity to file any additional
answering affidavit, and the applicants were also given the
opportunity to file replying affidavits thereto. (2) I have held
that the 2^nd,
3^rd
and 4^th
applicants have no authority to bring this application on behalf of
the Trust against the 1^st
respondent. (3) I have also held that the 1^st
applicant has not instituted any application against the 1^st
respondent (and the rest of the respondents, by extension).

[30] From my holdings in (2)
and (3) above, the legal fact that remains, as a matter of course, is
that no application has been brought against the 1^st
respondent; a priori,
the order of 21
October 2009 cannot stand; it has no legal legs to stand on.
Consequently, as a matter of law, the rule nisi
cannot exist. This
conclusion is in sync well with Mr. Namandje’s submission that
if the affidavits of Gous N.O. are struck off that should dispose of
the matter (see (2) above. Then came Mr. Barnard’s submission
that even if those affidavits are struck off that would not dispose
of the matter because the 1^st
applicant could bring the application as an artificial person. But I
have held that as matters stand the 1^st
applicant has not brought any application before this Court (see (3)
above).

[31] From all the aforegoing
reasoning and conclusions, I hold that the cumulative effect of (2)
and (3), above, is that there is no rule nisi,
as a matter of law:
the rule nisi granted
on 21 October 2009 is null and void ab
initio; and it is of
no effect. To hold otherwise would be unjust, unfair and wrong. It
is, thus, otiose that the rule nisi
is allowed to stay
so that it is argued in due course whether to confirm it. It would
fly in the teeth of rudimentary logic for one to suggest that
arguments should be heard on the merits on some return date to enable
the Court to determine whether to confirm the rule nisi.
That would be
illogical and an exercise in superlative futility; for, there is
simply no rule nisi
in law for the Court
to consider whether to confirm. The rule nisi
is null and void ab
initio, as
aforesaid. All these conclusions arise indubitably from (2) and (3)
above; the effect of which is, as I have said previously, no
application has been brought by the applicants and so they cannot be
thankful of any order – a temporary interdict or a final
interdict. This conclusion, therefore, disposes of the matter –
the whole matter.

[32] Should I order costs
against any party in this matter? I do not think I should. In the
nature of this case and the nature of the proceedings starting from
21 October 2009, I am of the view that it is a proper case where I
should exercise my discretion and order that each party pays its own
costs.

[33] In the result, I make the
following order:

1. 
   The rule nisi
   granted, by
   agreement between the applicants and
   

   
   

the 1^st
respondent, on 21 October 2009 is discharged.

2. 
   The application instituted by
   Notice of Motion on 14 October
   

   
   

2009 is struck from the Roll.

3. 
   There shall be no order as to
   costs.

   
   

________________

PARKER J

ON BEHALF OF THE PLAINTIFF:
ADV.
P. BARNARD

Instructed
by: Koep &
Partners

ON
BEHALF OF THE DEFENDANTS: MR.
SISA NAMANDJE

Instructed
by: Sisa Namandje
& Co.