REPUBLIC OF NAMIBIA

“Special Interest”

CASE NO. A 310/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

KONGA CLEARING AGENCIES CC
….......................................................APPLICANT

and

MINISTER OF FINANCE
….....................................................................RESPONDENT

CORAM: DAMASEB, JP

Heard: 20^TH JUNE 2011

Delivered: 23^rd JUNE 2011

________________________________________________________________

JUDGMENT

DAMASEB, JP: [1] The
Applicant, a clearing agent, seeks the release of a consignment of
tobacco products detained by customs officials in the employ of the
Respondent, acting on the strength of the powers they enjoy under the
Customs and Excise Act, No. 20 of 1998 (CEA). The Applicant seeks the
following relief:

“1.
Declaring the Detention/Seizure Notices dated 20 and 23 July 2010
respectively as attached to the Founding Affidavit as annexures “A”
and “L” respectively as invalid and null and void.

2.
Declaring the detention and seizure of container bearing letters and
numbers ECMU9498329 sealed under number 214589 as wrongful and
unlawful.

3.
Ordering the officials of the Respondent to immediately restore to
the possession and custody of the Applicant container bearing letters
and numbers ECMU9498329 which was sealed under number 214589.

4.
Ordering the Respondent to pay the costs of this Application.

5.
Granting the Applicant such further and/or alternative relief as this
Honourable Court should deem fit.”

[2] The Applicant
brings these proceedings by way of notice of motion, supported by an
affidavit deposed to by its general manager, Escher Matthews.
Matthews alleges that he is authorized to “institute
this
application for
and on behalf of the Applicant
Close Corporation’’ (My
underlining for emphasis). The
Respondent has not filed answering papers. As to the merits, the
Applicant’s version of events is therefore uncontested. That
does not mean that relief should be granted without more: I must be
satisfied that the Applicant has made out a case for the relief it
seeks¹;
and that includes whether it has the locus
standi to seek the relief
it does.

[3] It is alleged
that the Applicant is a “clearing
agent” for
a principal. The authority for the mandate as a clearing agent is
dealt with in a solitary paragraph in the founding papers in the
following terms:

“The
Applicant is a clearing agent as envisaged in sections 108²
and
110³
of
Act 20 of 1998 and was/is at all times relevant acting for and on
behalf of the importer/consignee and exporter/consignor of the
relevant goods in question from Dubai, United Emirates to Lubumbashi
in the Democratic Republic of Congo via Walvis Bay as port of entry.”

[4] The cause of action relates to
tobacco products originating in Dubai and received at Namibia’s
Walvis Bay port and destined for the Democratic Republic of Congo.
These products are not intended for consumption in Namibia and are in
this country in transit only. The goods were, upon arrival at Walvis
Bay, claimed by the Applicant as clearing agent and processed by it
as such clearing agent – acting as an interlocutor with the
Respondent’s customs officials who, it is clear on the papers,
at all relevant and material times treated the Applicant as a duly
authorised agent of the principal who is the consignor/importer or
exporter/consignor.⁴
Respondent’s customs officials
in fact issued a ‘release
order’ in respect of
the goods to the Applicant who, thereupon, took control of them.
Whilst the goods were thus under the Applicant’s control, the
Respondent’s officials demanded to inspect the goods and then
issued a ‘detention
notice’ in respect of
the consignment ‘pending
proof of customs documents’.

The issue defined

[5] The first hurdle the Applicant has
to cross is whether, in law, it is entitled to bring the present
legal proceedings in its own name considering that it is not the
owner of the goods which are the subject of the Respondent’s
detention order. The Applicant does not allege or
provide proof of any authority to bring the present proceedings on
behalf of the principal, disclosed or undisclosed.

[6] Although the Respondent did not
file answering papers, it has, through counsel, raised two points in
limine. Mr Chibwana of the Government Attorneys Office appeared
at the hearing and argued two points in limine and also raised
other legal points. In the view that I take of the matter, I deem it
unnecessary to deal with all the legal points raised and will confine
myself to the point relating to the agent’s competence to
institute legal proceedings in its own name.

Locus Standi

[7] The first Respondent’s
counsel put the locus point in the written heads of argument in the
following terms:

“The
question that stands to be answered is whether or not an agent may
sue in own name in respect of goods belonging to its principal. One
submits the Court must at all times keep in mind the provisions of
section 110(2) (b) (i) (ii) (iii). These
provisions indemnify the agent in respect of any liabilities to the
Respondent herein if he/she takes the steps as prescribed therein.”
(My underlining for emphasis)

[8] Mr Mouton, in meeting the locus
point, predicated the competence of the Applicant to act in these
legal proceedings on behalf of the undisclosed principal, on sections
108 and 110 supra of the CEA. It boils down to this: These
provisions: (i) recognise the appointment of a clearing agent by a
principal for the purposes of the CEA, (ii) impose obligations on the
agent for the payment of duties, levies and penalties that might be
imposed by the Respondent. (For completeness, I will also refer to
section 109 of the CEA. It states:

“109
Liability
of principal for acts of agent

Every
importer, exporter, master, container operator, pilot, manufacturer,
licensee, remover of goods in bond or other principal shall, for the
purposes of this Act, be bound by any act done by an agent
appointed under section 108(1) and acting on his or her behalf,
whether in or outside Namibia.”)

The submission is fine as far as it
goes. The issue remains: on what basis can those provisions be said
to entitle the Applicant to institute legal proceedings in its own
name in respect of goods belonging to the principal?

[9] Mr Chibwana retorted that the fact
that the law imposes liabilities and obligations on the agent –
while not absolving the owner at the same time - does not equate to
clothing the agent with the competence to substitute the principal in
legal proceedings aimed at enforcing the principal’s legal
rights in respect of the goods in question.

[10] Having considered the provisions
relied on by Mr Mouton to meet the locus point, I must agree that the
legislative intent behind those provisions is to give the Respondent
the means by which to exact payment of duties and levies against a
clearing agent (who is not the owner of the goods and therefore at
common law not liable) together with the principal - who continues to
have the primary liability for such duties and levies. I do not see
anything in these provisions which supports the view that the
Legislature intended to cloth the clearing agent with the competence
to act in the place and stead of the principal in legal proceedings
to be instituted to vindicate the rights of the principal against a
third party. In my view, therefore, the Applicant’s position is
governed squarely by the common law.

[11] Mr Mouton has not referred me to
any authority (in this Court or elsewhere) to support his stance that
the Applicant is competent to be a litigant in these proceedings in
respect of goods that belong to the principal, disclosed or
undisclosed. On the contrary, Mr Chibwana for the Respondent has
referred me to the case of Vaatz v Registrar of Deeds: In re
Grootfontein Municipality, Vaatz v Registrar of Deeds: In re Nockel’s
Estate 1993 NR 170 (HC). In that matter Frank, J non-suited a
conveyancer (acting in his own name but as an agent for a principal)
who sought review relief against the Registrar of Deeds. Frank J held
(at 170I-J – 171A-B):

“It
is thus clear to me that in both these matters the applicant acted in
terms of powers of attorneys which appointed him and gave him a
certain mandate. He thus acted as an agent for the principals already
mentioned namely the deceased estate and the Municipal Council of
Grootfontein. It was therefore, in my view, not open to him to
approach the Court in his own name as he was acting as an agent for
these mentioned principals and nowhere do they support these
applications and nor does he say in his affidavits that he has been
authorised by his principals to bring these applications. It is
indeed his principals who are affected by these decisions as it is
they who might suffer loss of interest or other prejudice if the
deeds are not registered promptly. Where a person acts as an agent,
he cannot act in his own stead, but must get the power from his
principal to take any decision that is made adversely to his
principal on review.

It
follows, from this that, in my view the applicant therefore has no
locus standi in the present two applications to approach the
Court and I come to this decision despite the fact that prima facie I
feel there is merit in at least two maters raised by the applicant.”

[12] On the facts before me, the
Applicant alleges that, in acting as an interlocutor for the
principal in respect of the goods in question, it did so on the
mandate of the principal. As stated previously, the Applicant failed
to allege in the founding affidavit that it has the necessary
authority and mandate of the principal to bring the present
proceedings. That being the case, the ratio in the Vaatz
case is indistinguishable.

[13] The question of an agent acting
in legal proceedings on behalf of a principal, disclosed or
undisclosed, had also arisen squarely in the matter of Sentrakoop
Handelaars Bpk v Lourens and Another, 1991
(3) SA 540⁵.
What the Respondent’s objection to the Applicant’s locus
standi raises in the case
before me, is what Marais J referred to in the Sentrakoop
matter as the agent’s
“procedural right to
sue in your own name in a case where all substantive rights to sue
rests in somebody else.”
At 544 F of the report, Marais J states (and I agree):

“...the
principles applicable to the right of an agent who contracted on
behalf of an undisclosed principal to sue, cannot and should not be
applied to the procedural
question of whether a person can generally sue in his own name on
behalf of another.”
[My underlining for emphasis]

[14] After examining the authorities,
Marais J concludes in the Sentrakoop matter as follows (at
544H-J):

“In
none of the cases that I have cited ... can I therefore find any
support for the suggestion that a normal agent may sue in his own
name on behalf of a principal, whether the agent declares that he is
so acting, or does not disclose such fact. The high-water mark of
pronouncements in favour of such a right existing, are statements
that such procedure may be defective, but the defect in procedure is
not so great as to make it impossible to remedy the defect by
substituting the correct person as plaintiff. This hardly provides
authority for the proposition that an agent can in his own name
properly sue on behalf of a principal.”

[15] Marais J then asks the following
rhetorical questions (at 545C):

“Who
is to be liable for the costs if the action is unsuccessful? The
principal is not the nominal plaintiff. Is the judgment for costs to
be given against the principal as the true plaintiff? On general
principles of agency this may be the correct thing to do, but what if
the agent has no authority but (unbeknown to the plaintiff or the
principal) testifies that he has such authority and judgment is given
against the unwitting ‘principal’? Or should judgment be
given against the agent personally? In such case, must there be a
further action to enforce the claim for costs against the principal?”

I am confronted by the same questions
in the present matter!

[16] It must be borne in mind that the
security contemplated in s110(3)(a) and (b) is in respect of duties
and levies chargeable under the CEA and do not cover costs that might
be incurred by an agent claiming to litigate on behalf of a
principal.

[17] I am satisfied that the point in
limine taken by the Respondent, that it is incompetent for the
Applicant to have instituted these proceedings in its own name
without authorisation, while the principal is the owner of the goods,
is a good one. Accordingly, I am satisfied that the Applicant has no
locus standi to bring the present proceedings.

[18] In the result, the Application is
dismissed with costs.

_______________________

DAMASEB, JP

ON BEHALF OF THE APPLICANT: Mr Mouton

Instructed By: Koep & Partners

ON BEHALF OF THE RESPONDENT: Mr
Chibwana

Instructed By: Government Attorney