CASE
NO: I 2239/09
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
NAMIBIA
FINANCIAL INSTITUTIONS
SUPERVISORY
AUTHORITY ENGINEERS
….......................................APPLICANT
and
RAINER
LUDWIG RITTER
…...............................................................RESPONDENT
CORAM:
NDAUENDAPO,
J
Heard
on: 18
January 2010
Delivered
on: 26 October 2010
JUDGMENT
NDAUENDAPO, J:
[1
] This is an application for Rescission of Judgment.
[2]
The respondent, Mr. Rainer Ritter, was the Chief Executive officer of
the Namibia Financial Institutions Supervisory Services Authority
(hereinafter referred to as NAMFISA).
[3]
On 10 March 2009 the board of Namfisa suspended Mr. Ritter and
notified him that it will institute a disciplinary enquiry against
him. The board alleged that he committed various acts of misconduct.
The enquiry was set down from 11 to 15 May 2009. On 11 May 2009 the
disciplinary enquiry commenced. The next day the lawyers of Mr.
Ritter, represented by Adv. Smuts, SC, on the instructions of Kirsten
& Company, approached the lawyers of Namfisa represented by Adv.
Narib on the instructions of Muluti & Partners with a view to
negotiate a settlement. A settlement proposal was made to the lawyers
of Namfisa. They in turn communicated that to the board. The board
discussed the proposal and rejected it and made a counterproposal.
The next day the hearing contuined and the first witness was called
to testify. He gave detailed evidence and was also cross-examined at
length. That afternoon the lawyers of Mr. Ritter informed the lawyers
of Namfisa that their client has accepted the counter offer. Mr.
Narib then contacted the board and informed them accordingly. The
board convened to discuss same and according to Mr. Ritter and Adv.
Smuts, SC, a settlement was reached. That evening Adv. Smuts, SC,
phoned Adv. Narib to confirm that a settlement was reached and
according to Smuts, SC, Adv. Narib confirmed same.
[4]
Mr. Ritter, based on the alleged settlement agreement, issued summons
against Namfisa claiming an amount of N$830 000-00. In his
particulars of claim he, inter
alia, claims
that:
"The
Defendant breached the terms of the settlement agreement on 31 May
2009 by failing to make such payment and furthermore and in any event
repudiated such contract by exhibiting a deliberate and unequivocal
intention no longer to be bound by it".
[5]
Namfisa, represented by Ueitele & Hans Legal Practitioners, filed
a notice of intention to defend the action. Mr. Ritter then filed an
application for summary judgment. The application was not opposed
timeously and summary judgment was granted in his favour. Mr. Uietele
then filed an application for rescission of judgment and it was
opposed by Mr. Ritter.
[6]
When the matter came before me on 18 January 2010, it was to hear
arguments on the application for rescission of the summary judgment.
Adv. Theo Frank, SC, and Dicks appeared on behalf of Mr. Ritter and
Mr. Ueitele on behalf of Namfisa.
[7]
Points in
limine:
Adv.
Frank, SC, raised three points in
limine:
Firstly,
he objected to the filing of two further affidavits of Lily Brandt
(the then acting CEO of NAMFISA) on behalf of Namfisa dated 14
January and 22 February 2010 respectively. Secondly, he also objected
to the handing up of Annexure ("SF1") Round Robin
Resolution passed by the board of Namfisa). The basis of the
objection was that the affidavits and "SF1" were filed out
of sequence and out of time and no application was filed to ask the
permission of the Court to file them and no condonation application
was filed. He referred this Court to the case of Otjozondjupa
Regional Council v Dr. Nghifindaka and 2 Others (Case No. LC 1/2009)
delivered on 22 July 2009) where Muller J held (at 7-8) that:
"Rule
6(5)(e) provides that only three sets of affidavits; it provides
further that: 'the court may in its discretion permit the filing of
further affidavits'. The authorities in this regard are clear namely
that a further set of affidavits will only be allowed in the
discretion of the court. This affidavit cannot just be filed, but the
party who wants those affidavits to form part of the record of
proceedings must first seek the permission of the court in advance
and only if the court allows further affidavits, same may be filed
and will then form part of the record. In the unreported judgment of
Christine
Paulus & 3 others v The Swapo Party and 7 others the
following was said at page 9, par. 4:
'It
is trite law that an opposed motion as a rule consists of three sets
of affidavits. It follows then that a forth set could only have been
filed after leave of the court have been sought and granted. In
Piechaczek
v Piechaczek 1921 (SWA) on
p. 51 Gutsche J held that the Registrar should not accept further
affidavits subsequent to the three sets of affidavits the
admissibility of such further affidavits should be argued from the
bar'.
(James
Brown & Hamez (Pty) Ltd v Simmons No. 1963 (4) 656 (A) of 660
E-F.
Such
further sets of affidavits should not even be filed with the
Registrar and should not form part of the record before they are
allowed by the court".
[8]
Mr. Ueitele submitted that the respondent should have brought a Rule
30 application (irregular proceedings) instead of raising objections
from the bar. I do not agree with that submission. Rule 30(1) says
that a party to a cause in which an irregular step or proceeding has
been taken by any other party 'may' apply to Court to set aside the
step or proceeding. Rule 30(1) does not impose a peremptory duty on
the applicant to bring such an application. It was open to the
applicant to raise the objection against the filing of those
affidavits without filing a Rule 30 application.
[9]
It is common cause that those affidavits were additional
(fourth/fifth affidavits) and no permission was sought in advance
from the Court to file those affidavits. No explanation was given as
to why those affidavits were filed in the first place and no
application for condonation for the late filing thereof was made.
Rules are there for the smooth functioning of the courts.
In
Swanepoel
v Marais & others 1992 NR. 1 of wI-J Levy
held (at 238D-H) that:
"The
Rules of court are an important element in the machinery of justice.
Failure to observe such rules can lead not only to inconvenience of
immediate litigants and the courts but also the inconvenience of
other litigants whose cases are delayed thereby. It is essential for
application of the law that the Rules of Court, which have been
designed for the purpose, be complied with. Practice and procedure in
the courts can be completely dislocated by non-compliance". The
said dicta was quoted with approval by Damaseb, JP in the matter RDP
& others v ECN & others Case
No. A01/2010 where he further added that "compliance with Rules
of court is no trivial matter and a very good basis must exist for
departure from the Rules.
[10]
As far as the "SF1" is concerned (Round Robin Resolutions
authorising Namfisa to rescend the judgment), there was no affidavit
in support of annexure "SF1" and it was filed annexed to a
filing notice.
In
casu, no
good cause was shown to exist for the departure from the rules. In
the result those affidavits and annexure "SF1" are ruled
inadmissible.
[11]
Thirdly, Mr. Frank, SC submitted that it is trite that a legal person
can only initiate applications through its duly authorized officials.
If the official lacks authority, the application should be dismissed
with costs.
Mr.
Ueitele in his affidavit in support of the rescission application
merely states that he is authorized to depose to the affidavit (which
is irrelevant) and does not state that he is authorized to institute
and prosecute the rescission proceedings. His reference to annexure
"SF1" cannot avail him in the light of the statement that
he is duly authorized to depose to the affidavits. In any event I
have ruled that "SF1" is not before court. Mr. Ueitele
further argued that he has authority to institute the rescission
application by virtue of the special power of attorney given to him
by Ms. Lily Brand, acting on behalf of NAMFISA. The special power of
attorney gives Mr.
Ueitele
the power 'to defend and if necessary counter claim (including any
appeal),
the action instituted by the plaintiff (respondent)'. It must be
remembered that the special power of attorney is an unsworn piece of
paper. In Mall
(Cape) (Pty)
Ltd
v Merino Ko-operasie Bpk 1957(2)
SA 347 (C) at 351D-H, Mr.
Justice Watermeyer stated as follows:
"I
proceed now to consider the case of an artificial person, like a
company or co-operative society. In such a case there is judicial
precedent for holding that objection may be taken if there is nothing
before the Court to show that the applicant has duly authorized the
institution of notice of motion proceedings (see for example Royal
Worcester Corset Co v Kesler's Stores 1927
CPD 143; Langeberg
Ko-operasie Bpk v Folscher and Another 1950(2) SA 618 (C)). Unlike
an individual, an artificial person can only function through its
agents and it can only take decisions by the passing of resolutions
in the manner provided by its constitution. An attorney instructed to
commence notice of motion proceedings by, say, the secretary or
general manager of a company would not necessarily know whether the
company has resolved to do so, nor whether the necessary formalities
had been complied with in regard to the passing of the resolution. It
seems to me, therefore, that in the case of an artificial person
there is more room for mistakes to occur and less reason to presume
that it is properly before the Court or that proceedings which
purport to be brought in its name have in fact been authorized by it.
There is a considerable amount of authority for the proposition that,
where a company commences proceedings by way of petition, it must
appear that the person who makes the petition on behalf of the
company is duly authorized by the company to do so (see for example
Lurie
Brothers Ltd v Arcache 1927
NPD 139, and the other cases mentioned in Herbstein and Van Winsen
Civil Practice of the Superior Courts in South Africa at 37 and 38).
This seems to me to be a salutary rule and one which should apply
also to notice of motion proceedings where the application is an
artificial person."
[12]
Mr. Frank further submitted that Mr. Kukuri does not state in his
affidavit that he is authorized to institute and prosecute the
rescission proceedings. His statement that he is 'duly authorized and
able to depose to this affidavit on behalf of the respondent is
irrelevant because it does not establish authority. The resolution
"DEF1" which Mr. Kukuri referred to is also irrelevant and
does not cure the defect. That resolution authorizes the opposition
to the summary judgment and not the application for rescission of
judgment.
In
the case of Ganes
and Another v Telecom Namibia Ltd 2004(3)
SA 615 of g-h,
the
Court stated that: "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, that 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. It
is the institution of the proceedings and the prosecution thereof
which must be authorized. (my
underlining)
In
the matter of the Council
of the Municipality of Windhoek v DB Thermal Pty Ltd and Ziton Pty
Ltd (case
no I 1997/2004) delivered
by Parker J on 28 October 2009 said the following (at p3): "I am
duly authorized by both the first and second defendant to depose to
this affidavit for the purpose of opposing the plaintiff's
application for amendment". Mr. Totemeyer submitted therefore
that Mr. Weiler has only been authorized to depose to the affidavit
for the purpose of opposing the plaintiff's applications for
amendment, but he had not been authorized to oppose the applications.
I accept Mr. Totemeyer's interpretation and the effect of the
deponent's statement. All that Mr. Weiler is stating is that he is
authorized to depose to the affidavit, which is to be used in
opposing the application; he does not state unambiguously that he has
been authorized to oppose the application itself".
In
the National
Union of Namibia Workers v Naholo 2006(2)
NR 659 HC of 669c-
e,
the
court held that: "an artificial person can of course, take
decisions only by passing of resolutions in accordance with its
regulatory framework such as articles of association, a constitution,
rules or regulations. Proof of authority would then be provided in
the form of an affidavit deposed to by an official of the artificial
person, annexing thereto a copy of a resolution, or an extract of
minutes of a meeting of which the resolution was taken which confers
such authority or delegations. Hence, the mere say so of a deponent
(or deponents) does not constitute proof of either authority in the
absence of admissible evidence to authenticate the averment(s).
[13]
In the result, I come to the conclusion that both Messrs. Ueitele and
Kukuri were not duly authorized by NAMFISA to institute and prosecute
the rescission application.
[14]
It is therefore unnecessary to deal with the merits of the
application for rescission of judgment.
In
my respectful view, I do not think that the issues in this matter
were complex to warrant the instruction of two instructed counsel and
one instructing counsel.
In
the result I make the following orders:
The
points in
limine are
upheld and the application for rescission of judgment is dismissed;
The
applicant is ordered to pay the costs of the respondent including
costs occasioned by the employment of one instructing and one
instructed counsel.
NDAUENDAPO,
J
ON
BEHALF OF APPLICANT: Mr. Frank SC & Mr. Dicks
Instructed
by: Kirsten & Co
ON
BEHALF OF RESPONDENTS: Mr. Ueitele
Instructed
by: Ueitele & Hans Legal Practitioners
Namibian Financial Institutions Supervisory Authority Engineers v Ritter (I 2239/09) [2010] NAHC 167 (26 October 2010);