Court name
High Court
Case number
APPEAL 245 of 2008
Title

Ongombe Farmers Association v Tjiuro and Others (APPEAL 245 of 2008) [2011] NAHC 194 (06 July 2011);

Media neutral citation
[2011] NAHC 194
Coram
Heathcote AJ




















CASE NO.: A 245/2008


IN
THE HIGH COURT OF NAMIBIA





In
the matter between:





ONGOMBE
FARMERS ASSOCIATION
…..................................................APPLICANT


and








SEBRONI
TJIURO
…........................................................................1ST
RESPONDENT


KAMBAZEMBI
ROYAL HOUSE

…..................................................
2ND
RESPONDENT


INSPECTOR-GENERAL:
NAMIBIAN POLICE
…............................3RD
RESPONDENT





CORAM:
HEATHCOTE, A.J





Heard
on: 27 JUNE 2011





Delivered
on: 06 JULY 2011



______________________________________________________________


JUDGMENT









HEATHCOTE, A.J:






[1] The applicant, a voluntary
association, lodged an urgent ex-parte application for interdictory
relief prohibiting the respondents from breaking the locks of, or
entering, the auction pens leased by the applicant from the
Government of Namibia. Due to the urgency, no affidavits were filed,
but oral evidence was led in support of the relief sought.







[2] As to be expected, no written
resolution was available at the time the application was lodged. As
it was entitled to do, a written resolution was obtained by the
applicant after the court granted the interim interdict. In Christian
v Metropolitan Life Namibia Retirement Annuity Fund 2008 (2) NR 753
SC, Maritz, J.A held that; when a respondent receives an urgent
application on very short notice, and where there is no time for an
artificial person to obtain the necessary formal resolutions, but the
respondent nevertheless wants to oppose the matter, its legal
representatives may do so as “it would be manifestly
unjust if an applicant is allowed to effectively exclude any
opposition at the hearing of an urgent application by giving such
short notice that it is impossible for the respondents to attend
timeously to the formalities regarding the authority of its legal
representatives”
(at page 768 D-G). In such
circumstances the authority can be proven at a later stage.







[3] In my view, and in similar vein,
where an artificial person has to approach the court on such an
urgent basis that the “resolution-formalities”
cannot be taken care of timeously, the court should allow the
applicant to provide proof of authority at a later stage. This is
exactly what happened in this case. Even if it is assumed that the
person who decided to approach the court on behalf of applicant,
lacked the required authority, he did so on the basis that, if
subsequent ratification was refused, he would be liable for the
costs. Moreover, in such circumstances (i.e. where ratification by
the artificial person was refused) the application could not have
been persisted with. As a result, so it appears to me, no vested
rights were effected by such ratification in this case, and because
the respondent would have succeeded if the applicant’s deponent
did not subsequently obtain the necessary ratification, the
respondent was not prejudiced by such a procedure. Hence the rule
that;



where proceeding are
instituted on behalf of a company by an unauthorized person, the
defect may be cured by subsequent ratification”
See
LAWSA Volume 4(1) First Reissue, Companies Part 1, par 38).







[4] By the time affidavits were
exchanged, the interdictory relief obtained by applicant had served
its purpose. As there was no more need to determine all the issues in
dispute, the parties agreed that only costs had to be determined.







[5] At the hearing (i.e. to determine
the costs) Mr. Chanda, who appeared for the second and third
respondents, submitted that the applicant was not entitled to costs
against second and third respondents because the subsequent
resolution taken by he applicant did not authorize costs to be sought
against second and third respondents (but only against first
respondent). What appears to have happened is this; (a) the
court originally granted a rule nisi, calling upon all the
respondents to show cause, on the return date, why they should not be
held jointly and severally liable for applicant’s costs; (b)
in the main written resolution, applicant’s representative
“Tjihero” was authorized to instruct its lawyers to
claim, on the return date, for the rule to be confirmed. In other
words, to seek costs against all three respondents. (c)
Both the resolution and the power of attorney granted by Mr. Tjihero
to applicant’s legal practitioners, referred to an Annexure “A”
(which is the same document). In Annexure “A”, reference
to costs against second and third respondents was omitted. Annexure
“A” only referred to costs against first respondent. In
the written resolution, Annexure “A” was described as the
document setting out the relief which was claimed in urgent
application. But, the relief which was claimed in the urgent
application included costs against all three respondents. It appears
to me that, seen in context, it was also intended to include
reference to second and third respondents in Annexure “A”
(“the omission”).



[6] It is upon this omission which Mr.
Chanda for the second and third respondent seized. Absent specific
reference to second and third respondent in paragraph 2.2 of Annexure
“A”, so he submitted, applicant was never entitled to any
costs against those respondents.







[7] In normal circumstances a person
who is authorized to obtain certain relief in a court of law, may
only obtain the relief covered by the resolution itself. That much
was stated in South West Africa National Union v Tjozongoro and
others 1985(1) SA 376 SWA at 381, where Strydom, J. held that; where
the resolution authorizing the person who brings the application on
behalf of the artificial person is attached to the affidavits, and
the court must deal with the scope of that person’s authority,
the resolution must be interpreted as “it is the very
foundation”
on which the allegation of authority is
based. In turn, so Strydom, J. held, the resolution must be strictly
interpreted.







[8] The issue raised by Mr. Chanda
would have been fatal to the applicant’s claim for costs if
Annexure “A” was the only document setting out Tjihero’s
authority. However, in the main resolution, applicant’s
representative was authorized to sign the necessary documents on
behalf of the applicant, and that authorization included the power
to confirm the rule nisi”. As I have
already indicated, the rule nisi which was issued, called upon all
the respondents to show cause why they should not pay the costs
jointly and severally. Mr. Tjihero’s authority included the
right to seek cost against all three respondents. Once the resolution
included the right to seek costs against all three respondents, the
fact that it was not mentioned in the power of attorney, matters not.
An application may validly include a claim for costs even though the
power of attorney does not mention costs. (See Middel- Vrystaatse
Suiwelkorporasie v Bondesio 1971 (3) SA 110 (O). Accordingly I cannot
uphold the point of lack of authority.







[9] But Mr. Chanda raised a further
issue. He submitted that the third respondent should not be ordered
to pay applicant’s costs because the interim interdict
originally obtained by the applicant, was granted contrary to the
provisions of section 39(1) of the Police Act, No. 19 of 1990 “the
Act”. According to Mr. Chanda, the third respondent did not
receive the necessary month notice period as required by the Act.
Section 39 reads as follows:







Any civil proceedings
against the State or any person in respect of anything done
in
pursuance of this Act

shall be instituted within 12 months after the cause of action arose,
and notice in writing of any such proceedings and of the cause
thereof shall be given to the defendant
not
less than 1 month before it is instituted
:
Provided that the Minister may at any time waive compliance with the
provisions of this subsection.”







[10] To strengthen his argument, Mr.
Chanda submitted that the very same section 39 was held to be
constitutional in Minister of Home Affairs v Majiedt 2007(2) NR 477
SC. At paragraph 38 of that judgment, the Supreme Court, per Chomba
A.J.A, remarked that; “time is of no essence in the case
of moving the Minister for waiver
”. With respect, this
obiter statement shows that, prima facie at least, the Supreme
Court did not understand the word ”civil proceedings”
in section 39 of the Act, to include urgent interdictory relief
obtained through a rule nisi process. I return to this aspect later.







[11] I cannot agree with the
submission that an urgent interim interdict can only be obtained
against a member of the Police Force, after the police officer had
received a months notice, particularly if such an officer, (under the
guise of acting as a member of the Police), but still under the
command of the Inspector General (section 3 of the Police Act)
threatens to act unlawfully.







[12] In terms of section 13 of the
Act, the functions of the Police Force shall be; the preservation of
the internal security of Namibia; the maintenance of law and order;
the investigation of any offence or alleged offence, the prevention
of crime; and the protection of life and property. These functions
emphasize the duty to maintain the law; not to breach it.







[13] The police officer involved in
this case knew that the applicant had lawful possession of auction
pens in terms of a valid lease agreement with the Government of
Namibia. It must follow that, prima facie at least, the
applicant was acting within its rights when it refused to give access
to the auction pens to the second respondent. In such circumstances,
a police officer is not allowed to state that he will break the
applicant’s locks in order to give access to the second
respondent.







[14] Although the police officer
denies that he uttered such words (i.e. that he would have broken the
locks), he does say in the answering affidavits that he would have
seen to it that he second respondent be allowed to hold an auction at
the auction pens. It is clear to me, for purposes of determining the
costs issue at least, that the denial is indeed a lame one. As Mr.
Corbett for the applicant pointed out; if the applicant did not
provide the keys to the police officer to unlock the auction pens, he
would have had to break the locks to allow the second respondent
access.







[15] It is exactly this unlawful
threat (i.e. of breaking the locks) which caused applicant to lodge
the urgent application. In my view, the police officer who threatened
such conduct did not do “anything in pursuance”
of the Police Act, and does not deserve the intended protection
afforded by section 39 of the Act. I hold this view for a number of
reasons; firstly, because the law distinguishes between the concepts
in the course and scope” and “acting
in pursuance”
, and therefore, also the manner in which
these concepts must be interpreted. In Masuku and Another v Mdlalose
and Others 1998(1) SA 1 (SCA), the following was stated at page 10;







The concepts 'in the course
and scope of his employment' (or any of its equivalents) and 'in
pursuance of' the Act are notionally distinct from each other. They
derive from different sources and deal with different incidents of
liability. The former is primarily concerned with the common-law
principles of vicarious liability; the latter is of statutory origin
and its meaning and ambit stem from the provisions of the Act.
Different policy considerations are at stake when dealing with the
two concepts. The former favours a plaintiff by making a master
liable for the wrongs of his servant, thereby extending and
establishing liability where otherwise it would not exist. It is thus
expansive in both its purpose and effect. The latter enures for the
benefit of a defendant. A finding that a policeman acted in pursuance
of the Act could result in the barring of a plaintiff's action for
want of notice or the effluxion of the relatively short period of
time within which action is to be instituted. It is therefore
restrictive in its effect and can assist a defendant to escape
liability. As such it needs to be strictly construed (Benning v Union
Government (Minister of Finance) 1914 AD 180 at 185). These inherent
differences justify the conclusion that the two concepts legally do
not entirely correspond. If the Legislature had in mind to apply the
notice requirement and the limitation provision of s 32(1) to all
actions against the State arising out of unlawful acts by a policeman
acting qua policeman, it failed to state so in clear and unequivocal
terms in s 32(1) as one might have expected bearing in mind that
earlier cases like Thorne and E Rosenberg (Pty) Ltd (supra), which
preceded the current Act, had alerted it to a distinction between the
two concepts. Instead it deliberately chose to retain the wording 'in
pursuance of'. To the extent that the wording of s 32(1) lends itself
to a restrictive interpretation, and impliedly recognises that there
may be instances where the conduct of a policeman can give rise to
State liability beyond the provisions of the Act, it should be
interpreted accordingly. (See in general the comments by the late P Q
R Boberg in 1964 Annual Survey of South African Law at 154--6, and
1965 Annual Survey of South African Law at 175--8.)”







[16] Secondly, the meaning Mr. Chanda
gives to section 39 of the Act, would lead to glaring absurdities. It
would indeed be a sad day if police officers can threaten unlawful
action, and then, when the court is approached on an urgent basis,
the police officers can be heard to say that the applicant is only
permitted to approach the court in a month’s time. Many other
examples may highlight this absurdity, eg. habeas corpus
applications. It follows that, while a police officer who acted like
the one under consideration, may have acted within the course and
scope of his employment with the third respondent, he nevertheless
did not do so in pursuance of the provisions of the Act. In
such circumstances, section 39 is no assistance to the third
respondent.







[17] Lastly, it appears to me that the
purpose of section 39 of the Act is to prevent litigants from
dragging their feet before instituting litigation against the State.
Section 39 was found by the Supreme Court to pass constitutional
muster. But, as I have already indicated, the obiter remark made by
Chomba A.J.A, to the effect that “time is of no essence in
moving the Minister to waiver”
indicates that the learned
justices did not include under the concept “civil
proceedings”
, relief claimed on urgent basis, (where rule
nisi proceedings, incorporating interim interdictory relief is
employed). If they did, the obiter statement would not have been
made. The purpose of a clause such as section 39 is, as I have said,
to prevent litigants from dragging their feet in ordinary
litigation
. The interpretation Mr. Chanda gives to section 39, is
to force a litigant to drag his/her feet for at least one month
before the court may be approached. If that is the meaning of the
notice period referred to in section 39 (in other words, if urgent
interdictory relief is included in the concept of civil proceedings),
I have great difficulties in appreciating its constitutionality, even
in circumstances where the litigant’s adversary (the Minister)
can be approached for condonation. I accordingly conclude that the
concept “civil proceedings” as envisaged in
section 39, should be read to exclude from its meaning urgent
interdictory relief obtained through a process where a rule nisi
is issued, pending a return date. If the concept “civil
proceedings”
is not read in this way, the one month notice
period (in the circumstances such as in this case) would be patently
unconstitutional as it would simply deny immediate access to a court
as of right.







[18] Where all the factual and legal
issues have not been determined, but the parties nevertheless want
the court to determine the issue of costs, the court does so by
exercising discretion. It will suffice to refer to Channel Lite
Namibia Limited v Finance in Education (Pty) Ltd 2004 NR 125 HC
where, Damaseb J, (as he then was) discussed the relevant case law
where a court must determine costs without the merits having been
decided. In essence, he made two pertinent points; firstly, there can
be no hard and fast rule that a court must never determine the merits
to decide the costs. Sometimes it may be necessary to do so, and on
other occasions, not; secondly, a factor which should be taken into
consideration is that all parties should, as soon as possible, take
steps to curtail costs.







[19] In all the circumstance I am
satisfied that the correct exercise of my discretion would be to
order the respondents to pay the costs. Amongst others, for the
following reasons;







[19.1] the police officers involved
acted within the cause and scope of their employment, but not in
pursuance of the Act;







[19.2] the resolution taken by
applicant does authorize costs to be claimed against all the
respondents;







[19.3] the two legal issues just
mentioned, were raised at a very late stage of the proceedings and,
indeed, increased the costs;







[19.4] the applicant was entitled to
protect its interest; and







[19.5] the third respondent was
informed of the factual issues before the proceedings were lodged,
but did not intervene.







[20] I accordingly make the following
order.







[20.1] The respondents are ordered to
pay the applicant’s costs jointly and severally, the one paying
the other to be absolved, including the costs of one instructing and
one instructed counsel.







[20.2] The costs as aforesaid shall
include all costs incurred from inception of the proceeding, until
the 27th of June 2011.







Dated at WINDHOEK on this 05th
day of JULY 2011.










_______________


HEATHCOTE,
A.J



















































ON BEHALF OF THE APPLICANT:



WEDER, KAUTA & HOVEKA







ON BEHALF OF THE RESPONDENTS:



GOVERNMENT ATTORNEY