CASE
NO: A 244/2009

SPECIAL
INTEREST

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

AUGUST
MALETZKY FIRST APPLICANT

RAYNOLD
JOSEPH GOLIATH SECOND APPLICANT

and

MARK
FREER FIRST RESPONDENT

NAMIBIA
QUARRIES (PTY) LTD SECOND RESPONDENT

MINISTER
OF MINES AND ENERGY THIRD RESPONDENT

CORAM: HOFF,
J

Heard
on: 2010.07.19

Delivered
on: 2010.08.06

JUDGMENT

HOFF,
J: [1] The
applicants approached this Court by way of an urgent ex
parte
application in which certain relief was sought against all three
respondents. An original notice of motion was filed with the
Registrar on 17 July 2009. The ex
parte
application was heard on 21 July 2009 and the following order was
made (unedited):

“IT
IS ORDERED

As
against the First Respondent

1. That the applicant’s
non-compliance with the forms and services as contemplated for the
Rules of the High is condoned in respect of the First Respondent and
that the Applicant is authorized to bring this application on an
urgent basis as contemplated in Rule 6 (12) of the Rules of the above
Honourable Court in respect of the said Respondent.

2. That a Rule
Nisi do hereby issue
calling upon First Respondent to show cause, is any, on Friday the
28^th
of August 2009 at 10h00 why an order in the following terms should
not be granted:

2.1 That the 1^st
Respondent is ordered to vacate the farm KOMPANENO NO. 104,
REGISTRATION “C”, ERONGO REGION, DEED OF TRANSFER NO:
T 3025/2008;

3. That the 1^st
Respondent is ordered and restrained from returning to the said farm.

4. That the Erongo Regional
Commander of the Namibian Police or any police officer acting on his
instructions is directed to comply with the orders set out above.

5. That 1^st
Respondent pays the Applicants costs, limited to disbursements.

6. That paragraphs 2.1, 3 and 4
above shall operate as an interim interdict with immediate effect
pending the outcome of this application.

7. As against the Second and
Third Respondents the application is dismissed.”

2. On
28 August 2009 the matter was postponed sine
die.
On 14 September 2009 first respondent’s
legal practitioner applied for a trial date and on 22 October 2009 a
notice of set down was filed in which the trial date was indicated as
18 January 2010.

[3] In
the interim on 25 August 2009 the second respondent and Annu
Investments (Pty) Ltd filed a counter-application and in response
hereto the applicants filed a notice of motion dated 8 January 2010
in terms of which relief as envisaged by Rule 30 was sought.

[4] On
18 January 2010 by agreement between the parties the counter
application was removed from the roll and the Court dismissed the
notice of motion filed on 8 January 2010.

The
ex
parte
application was not dealt with and on 22 January 2010 the legal
practitioners of the first respondent applied for a trial date. The
matter was subsequently set down for hearing on 19 July 2010. The
counter-application is not before Court today. This present
application relates only to the first respondent qua
respondent.

The
first and second applicants appeared in person. Mr Denk appeared on
behalf of the first respondent.

[5] On
25 August 2009 first respondent delivered an answering affidavit.
The applicants did not file replying affidavits.

[6] First
respondent in his answering affidavit stated that the applicant’s
application was never served upon him and referred to the return of
non-service by the deputy-sheriff attached to his answering
affidavit. First respondent further stated that the Court order was
also not served on him. He averred that he came to know about the
court order when a newspaper reported contacted one Mark Hoffman (who
deposed to the founding affidavit in the counter application on
behalf of the second respondent) shortly after the order was
delivered since he (the newspaper reporter) wanted to write an
article about the matter. He then informed his legal practitioners
of record and on 29 July 2009 they received a fax directed to the
Mining Commissioner of the third respondent’s Ministry and copy
to Mark Hoffmann, director of Namibia Quarries, presumably from the
two applicants, with the court order attached.

[7] Four
points in
limine
were raised on behalf of first respondent namely, firstly, the issue
of non-service, secondly, first applicant’s lack of locus
standi,
thirdly, failure to make full disclosure of all material facts, and
fourthly, the issue of non-joinder.

First
point in
limine
(non-service)

[8] The
second applicant in his founding statement stated that the
application was duly served on the respondents contrary to the
averment by the first respondent that the ex
parte
application was not served on him and the return of service
indicating non-service. Applicants did not reply to this issue of
non-service and there is no proof to support second applicant’s
bold statement that the ex
parte
application had been served on the first respondent. The statement
by first respondent that the Court order has also not been served on
him stand uncontested. It is clear from first respondent’s
answering affidavit that he became aware of the ex
parte
application in a fortuitous manner whereupon he delivered an
answering affidavit.

[9] In
Knouwds
N O v Josea and Another 2007 (2) NR 792 Damaseb
JP said the following at 798 E in respect of the consequences of
non-service:

“If short service is
fatal, a fortiori, non-service cannot be otherwise. Where there is
complete failure of service it matters not that, regardless, the
affected party somehow became aware of the legal process against it,
entered appearance and is represented in the proceedings. A
proceeding which has taken place without service is a nullity and it
is not competent for a court to condone it.”

[10] The
proceedings vis-a-vis
the first respondent was thus a nullity. If this is accepted then
the resultant rule
nisi
is nullity as well.

The
fact that the Deputy Sheriff on his return of non-service mentioned
that he was informed by the first respondent that first respondent
was in Omaruru and would return to Windhoek on the Monday morning did
not transform non-service into a valid service in term of the Rules
of this Court.

[11] The
first point in
limine
is therefore upheld and the rule
nisi
stands to be discharged.

Second
point in
limine:
First applicant’s locus
standi:

[12] An
agreement with the title “Cession
of Claim or Right of Action”
signed between Esme Avril Goliath (cedent) and August Maletzky
(cessionary) on 20
April 2006
reads inter
alia
as follows:

“Whereas the cedent is
the title deed holder
of Farm Kompaneno No: 14, Registration Division “C”
Erongo Region, Deed of Transfer T 3025/2008 (hereinafter referred to
as “the said
property”).
And whereas the cedent has donated to the cessionary 20% of the
cedent’s right, title and interest in and to said property.

NOW THEREFORE
IS AGREED AS FOLLOWS:

1. Cession

In executions of
the abovementioned contract of donation the cedent hereby cedes,
transfers and makes over to the cessionary 20% of cedent’s
right, title and interest in and to the said property.

2. Authority

…

3. Warranty
and liability for damage

…

4. Acceptance

The cessionary
hereby accepts the said cession upon and subject to the terms and
conditions of this agreement.”

[13] It
is common cause that in terms of the Deed of Transfer T3025/2008
signed by the parties on 12
June 2008
that Esme Avril Goliath married out of community of property was the
registered and sole owner of Farm Kompaneno.

[14] From
the aforementioned it is clear that at the time of the conclusion of
the cession agreement the cedent was not the owner of Farm Kompaneno.

[15] In
First
National Bank of SA Ltd v Lynn N O and Others 1996 (2) SA 339 (A)
Joubert JA
said the following regarding the object of cession at 345
F – H;

“Cession is a particular
method of transferring rights in a movable incorporeal thing in the
same manner in which delivery (traditio)
transfers rights in a movable corporeal thing. It is in substance an
act of transfer (‘oordragshandeling’) by means of which
the transfer of a right (translatio
juris) from the
cedent to the cessionary is achieved. The transfer is accompanied by
means of an agreement of transfer (‘oordragsooreenkoms’)
between the cedent and the cessionary arising out of a justa
causa from which the
former’s intention to transfer the right (animus
transferendi) and
the latter’s intention to become the holder of the right
(animus acquirendi)
appears or can be inferred. It is an agreement to divest the cedent
of the right and to vest it in the cessionary. Moreover, the
agreement of transfer can coincide with, or be preceded by, a justa
causa which can be
an obligatory agreement, also called an obligationary agreement
(‘verintenisskeppende ooreenkoms’) such as a contract of
sale, exchange or donation.”

[16] The
nemo
plus juris ad alium transferre potest, quam ipse haberet
rule applies to a cession. This means that no one can transfer to
another a greater right than he has himself. Applying this rule to
the present issue, means that the cedent (Ms Goliath) cannot transfer
more rights to the cessionary (Mr Maletzky) than she had herself, or
put differently the cedent must have been the holder of the right in
order to transfer it to the cessionary.

(See
Glatthaar
v Hussein 1912 TPD 322; Creeser v Smit 1948 (4) SA 307 (T);
Cullinan v Noordkaaplandse Aartappelmoerkwekers Koöperasie Bpk
1972 (1) SA 761 (A) ).

[17] Ms
Goliath was not the registered owner of Farm Kompaneno on
20 April 2006 and could thus not have ceded any right, title and
interest in the said property.

[18] This
purported cession agreement is not only ab
initio
nullity and unenforceable but fraudulent as well. The first
applicant therefore had no locus
standi
to bring this application. The second point in
limine
must accordingly succeed.

Third
point in limine: Failure to make full disclosure of all material
facts

[19] The
applicants brought an ex
parte
application seeking interdictory relief against first and second
respondents. It is trite law that an applicant in an ex
parte
application is obliged to make full disclosure of all material facts
that might affect the granting or refusal of an order ex
parte
and must act bona
fide.

[20] The
non-disclosure or misstatements or suppression of facts need to be
willful or mala
fide
to incur the penalty of rescission.

[21] In
Trakman
N O v Livshitz and Others 1995 (1) SA 282 AD at 288 E Smalberger JA
stated the position as follows:

“It is trite law that in
ex parte application the utmost good faith must be observed by an
applicant. A failure to disclose fully and fairly all material facts
known to him (or her) may lead, in the exercise of the Court’s
discretion, to the dismissal of the application on that ground
alone.”

See
also Schlesinger
v Schlesinger 1979 (4) SA 342 (WLD) AT 348 e – 350 b; Hall and
Another v Heyns and Others 1991 (1) SA 381 (CPD) at 397 B – C.

[22] A
Court will obviously in the exercising of its discretion take into
account any explanation for non-disclosure.

In
Cometal-Mometal
SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 WLD at 414 G –
H
the following was said in this regard:

“It seems to me that,
among the factors which the Court will take into account in the
exercise of its discretion to grant or deny relief to a litigant who
has breached the uberrima
fides rule, are the
extent to which the rule has been breached, the reasons for
non-disclosure, the extent to which the Court might have been
influenced by proper disclosure in the ex
parte application,
the consequences, from the point of doing justice between the
parties, of denying relief to the applicant on the ex parte order,
and the interests of innocent third parties, such as minor children
for whom protection was sought in the ex parte application.”

(See
also Ex
Parte Madikiza et uxor 1995 (4) SA 433 TSC at 437 A).

[23] The
first respondent is his answering affidavit referred to the following
non-disclosures:

(a) first
applicant failed to disclose that he did not have locus
standi
to launch this application but relief on a purported invalid cession
agreement in an attempt to mislead this Court;

(b) second
applicant failed to disclose the long history he had of
misrepresenting himself as the registered owner of Farm Kompaneno;

(c) second
applicant failed to disclose that there was a valid land owner’s
agreement between Namibia Quarries and the bona
fide
owner of Farm Kompaneno;

(d) second
applicant failed to disclose that he unlawfully and intentionally
interfered with the operations of Namibia Quarries and it’s
contractors on Farm Kompaneno and impounded the equipment, machinery
and quarried granite blocks belonging to Namibia Quarries (Pty) Ltd
and Annu Investments;

(e) second
applicant failed to disclose that he unlawfully and intentionally
refused Namibia Quarries and the various contractors it used lawful
access to Farm Kompaneno;

(f) second
applicant failed to disclose that he refused to obey the order made
by the Mining Ancillary Rights Commission on 12 May 2009;

(g) second
applicant failed to disclose that he received money from one of the
business partners of Namibia Quarries to allow the removal of
dimension stone from Farm Kompaneno, even though he was never the
lawful owner of the farm;

(h) the applicants
failed to disclose that their application was not served on Namibia
Quarries and himself and has in fact mislead this Court into
believing that such service was carried out.

[24] I
have already dealt with paragraph (a) (supra).

[25] In
respect of paragraph (b) it is clear from the annexures attached to
the answering affidavit that this was indeed the case.

[26] Regarding
paragraph (c) the second applicant stated in his founding affidavit
that the landowners agreement between the previous owners of the farm
and Namibia Quarries had been terminated and the need arose for
subsequent agreements. It is clear from a perusal of the papers that
this unsubstantiated statement by the second applicant formed the
basis of the dispute between the second respondent and the
respondents. It is however not true that the landowners (Mr and Ms
Griebel) had been terminated as alleged by the second respondent.
This landowner’s agreement bound the successors-in-title.
Mrs Goliath being the successor in-title has not terminated
this agreement.

[27] Regarding
paragraph (d) the first respondent stated in his answering affidavit
that during June 2009 second applicant, despite an order from Mining
Ancillary Rights Commission, refused him access to the quarry by
unlawfully locking the access gates to Farm Kompaneno and erected an
iron pole. The assistance of the Police had to be called in and the
barrier (iron pole) was removed. This is not denied by the second
applicant who in his founding affidavit stated that on 8
June 2009 he, on demand by the respondents, departed from Windhoek to
the farm with the view to give respondents access in terms of the
order they obtained from the “Ministry
of Mines”.
It is significant that this order was signed on 12^th
May 2009.

[28] In
terms of the other paragraphs referred to supra
there is no evidence gainsaying these statements of fact.

The
information set out supra
had it been disclosed to this Court in the ex
parte application
would have had a material effect on the decision made by this Court
in considering whether or not to grant the interdictory relief.

Fourth
point in
limine:
Non-joinder

[29] It
is common cause that none of the applicants is the owner of the Farm
Kompaneno and that applicants’ claim is of a vindicatory
nature.

[30] The
owner of the farm is Ms Esme Avril Goliath and it is not disputed
that she is married out of community of property.

Ms
Golitah therefore has a direct and substantial interest in the
subject-matter of the ex
parte
application and thus a necessary party to these proceedings.

[31] Applicants
should have joined Ms Goliath as an interested party in these
proceedings. They failed to do so. This non-joinder is in my view a
fatal irregularity.

[32] In
the event the points in
limine
should succeed with costs and in view of this it is not necessary for
this Court to consider the merits of the application.

[33] This
Court is of the view having regard to the findings afore-mentioned,
that the prosecution of this application was, presented, and in
particular the way in which first applicant misled this Court
regarding his locus
standi,
is an abuse of process and warrants a special cost order.

[34] In
the result the following order is made:

1. This
application is dismissed with costs on an attorney-own client scale.

_________

HOFF,
J

ON
BEHALF OF THE 1^ST
AND 2^ND
APPLICANTS: IN PERSON

Instructed
by:

ON
BEHALF OF THE 1^ST
AND 2^ND
RESPONDENTS: ADV. DENK

Instructed
by: STEPHEN F KENNY LEGAL PRACTITIONERS