NOT
REPORTABLE

CASE
NO. A 293/11

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

and

OZOHI
FISHING COMPANY (PTY LTD ….............................1^st
RESPONDENT

OMPAGONA
FISHING COMPANY (PTY) LTD …...................2^nd
RESPONDENT

EHANGA
HOLDINGS (PTY) LTD ….......................................3^rd
RESPONDENT

CORAM:
CORBETT, A.J

Heard
on: 18, 24 November 2011

Delivered
on: 8 December 2011

______________________________________________________________

JUDGMENT

CORBETT, A.J: .

[1] The first and second applicants
brought an urgent application on 1 November 2011 seeking a mandamus
in terms whereof the Minister of Fisheries and Marine Resources (“the
Minister”) be directed to determine, in terms of the Marine
Resources Act, No. 27 of 2000, the applications lodged on 7 October
2011 by the applicants with the Minister for the licensing of fishing
vessels. The applications had been lodged in terms of section 40(3)
of the Act for the commercial catching of hake by the fishing vessels
MFV Etale Bounty and the MFV Twafika, to be used by the
quota holders, being the second and third respondents, during the
fishing season which had commenced on 1 May 2011 and which would
continue until 30 April 2012.

[2] In that matter I found that the
applicants had no more than a derivative right to the relief sought
and that the marine resources rights holders (the second and third
respondents in this application) were the entities clothed with locus
standi to bring the application for a mandamus, but chose
not to do so. On this basis, I dismissed the application with costs.

[3] The problem that besets the first
and second applicants is that the second and third respondents still
do not wish to take action against the Minister to bring the
mandamus. This is ostensibly the reason why the applicants
have again approached the Court on an urgent basis, together with
Silvanus Kathindi and Richard Mueller, the latter in their capacities
as trustees for the time being of the Bobboh Family Trust. The Bobboh
Family Trust is a minority shareholder in the second respondent.

[4] In 1999 Northern Fisheries
Industries (Pty) Ltd and the respondents concluded a written
agreement. The purpose of the agreement was that these companies
(referred to in the agreement as “concessionaries”) would
pool their wet hake fish quotas so as to share in the economies scale
and other benefits to be derived from the rationalization of their
catching, processing and marketing efforts. In order to give effect
to this purpose, the first applicant was incorporated in 2004. This
company in turn holds all the shares in the second applicant. The
first applicant authorizes the second applicant to conduct the
fishing, processing and marketing of hake on behalf of itself and the
respondents.

[5] The harvesting of marine resources
in terms of section 39 of the Act is subject to a quota being granted
by the Minister limiting the quantity of fish that may be harvested
during the fishing season by any rights holder. Section 32 (3) of the
Act provides that no person may use any vessel to harvest any marine
resources for commercial purposes except in terms of a licence issued
in terms of section 40 (3) of the Act.

[6] The relief sought in this
application (expressed in somewhat tortuous terms) is premised upon
two distinct causes of action. Firstly, the applicants seek orders
directing the second and third respondents, at the behest of the
first and second applicants, to give effect to the spirit, purpose
and intent of the pooling agreement by taking the necessary steps to
have the fishing licences for the vessels Etale Bounty and
Twafika issued by the Minister. Secondly, the third and fourth
applicants, as members of the second respondent, seek in terms of
section 260 of the Companies Act, No. 28 of 2004 an order that the
second respondent take the necessary steps to have a fishing licence
issued by the Minister in respect of the Etale Bounty.

[7] The second and third respondents
(“the respondents”), in opposing the application, raise
several defences. In limine, it is contended on their behalf
that the relief sought in prayers 2.2, 2.6, 3.2 and 3.6 of the notice
of motion involves matters which are res judicata, the Court
having made a ruling in respect thereof in the earlier urgent
application. Non-joinder is raised as a further objection to the
relief sought in that the Minister is not cited as a party, it being
contended that the relief sought in several of the prayers contained
in the notice of motion “affects” the Minister.
The respondents also challenge the urgency of the application and
suggest (although this is not explicitly spelt out) that reliance is
placed on the exceptio non adimpleti contractus disentitling
the applicants to the relief sought. Further reliance is placed on
the contention that a case is not been made out in terms of section
260 of the Companies Act such as to entitle the third and fourth
applicants, as minority shareholders, to obtain the relief sought. I
will deal with these issues in turn.

Res judicata

[8] The requirements for a successful
reliance on the exceptio rei judicatae vel litis finitae are:

“[2] … idem
actor, idem reus, eadem res and
eadem
causa petendi.
This means that the exceptio
can
be raised by a defendant in a later suit against a plaintiff who is
‘demanding the same thing on the same ground’ (per
Steyn
CJ in African
Farms and Townships Ltd v Cape Town Municipality 1963
(2) SA 555 (A) at 562 A); or which comes to the same thing, ‘
on the same cause for the same relief’ (per
Van
Winsen AJA in Custom
Credit Corporation (Pty) Ltd v Shembe 1972
(3) SA 462 (A) at 472A-B; see also the discussion in Kommissaris
van Binnelandse Inkomste v ABSA Bank Bpk 1995
(1) SA 653 (A) at 664 C-E); or which also comes to the same thing,
whether the ‘same issue’ had been adjudicated upon (see
Horowitz
v Brock 1988
(2) SA 160 (A) at 179A-H).

[3]
The fundamental question in the appeal is whether the same issue is
involved in the two actions: in other words, is the same thing
demanded on the same ground, or, which comes to the same, is the same
relief claimed on the same cause, or, to put it more succinctly, has
the same issue now before the court been finally disposed of in the
first action ?” ¹

[9] The findings of this Court in the
earlier urgent application involved the first and second applicants,
and the second and third respondents, in this application. Additional
to such respondents in the earlier application, were the Minister and
the Permanent Secretary of the Ministry of Fisheries and Marine
Resources. The relief sought was purely against the Minister. The
earlier application was dismissed on the narrow basis that the
applicants lacked locus
standi to bring the
application. That was the only issue dealt with.

[10] The relief sought by way of a
mandamus relating to the applications for the fishing licenses was
not considered in the judgment. In fact, what has transpired in this
application is that the applicants have re-launched the application,
on a different basis seeking no relief against the Minister, but
rather seeking to enforce the pooling agreement, alternatively
seeking relief under section 260 of the Companies Act. In my view
this amounts to a different cause of action concerning issues that
were not disposed of in the earlier application. I accordingly find
that there is no merit in the defence of res
judicata sought to be
advanced by the respondents.

Non-joinder of the Minister

[11] A third party who has, or may
have, a direct and substantial interest in any order the Court might
make in proceedings or if such an order cannot be sustained or
carried into effect without prejudicing that party, is a necessary
party and should be joined in the proceedings, unless the Court is
satisfied that such person has waived the right to be joined. ²
For joinder to be essential, the
parties to be joined must have a direct and substantial interest not
only in the subject-matter of the litigation, but also in the outcome
of it. ³

[12] It was contended by Mr Oosthuizen
SC, who appeared together with Mr Phatela, that the relief sought in
prayers 2.3, 2.4, 2.5, 3.3, 3.4 and 3.5 of the notice of motion
affects the Minister, and for this reason the Minister should have
been cited as party to the application. In essence, the relief sought
in these prayers requires of the second and third respondents to take
certain steps, which when taken, would impact upon the Minister. ⁴
In my view, the Minister’s
“interest”
only arises should the order be given
and steps are taken in terms of the order by the second and third
respondents against the Minister. I am of the view that, whilst the
Minister might ultimately have an indirect interest in the
subject-matter of the litigation, prior to the steps taken by the
second and third respondents such interest is not elevated to one
which is direct and substantial enough to warrant the joinder of the
Minister. It is self-evident that no order is sought directly against
the Minister at this stage. In the circumstances, I am of the view
that the issue of non-joinder raised by the respondents has no merit.

Specific performance and the
pooling agreement

[13] Mr Barnard, on behalf of the
applicants, contended that the relief set out in prayer 2 of the
notice of motion is based upon the entitlement of the applicants to
specific performance of the contractual obligations arising from the
pooling agreement. These obligations are to be found in various
provisions of the agreement, including that:

“3.4
The
Concessionaries each hold a right of exploitation to catch wet fish
hake and wish to pool their quotas so as to share in the economies of
scale and other benefits to be derived from the rationalisation of
their catching, processing and marketing effort;

4. 
   The
   Concessionaries will each grant Etale the right to utilise their
   respective concessions;

   
   

2. 
   The
   sole purpose of Etale will be to conduct fish catching, processing
   and marketing operations pursuant to this agreement;

   
   

1. 
   Each
   Concessionary irrevocably and in rem suam hereby authorizes
   Etale for as long as the Concessionary holds a concession or until
   the parties unanimously otherwise agree, to catch such fish as the
   Concessionary is from time to time entitled to catch in terms of
   its quotas;

   
   

18.
The parties undertake at all times to do all such things, perform all
such actions and to take such steps (including in any particular case
the exercise of their voting rights in a company) and to procure the
doing of all such things, the performance of all such actions and the
taking of all such steps as may be open to them and necessary for or
incidental to the putting into effect and maintaining of the
provisions of this agreement. The parties further warrant and
undertake that in the implementation of this agreement and in any
other dealings with each other they shall observe the utmost good
faith and they undertake to give full effect and intent to the
purposes of this agreement and not to do anything or refrain from
doing anything which might prejudice or detract from the rights,
property or interests of the others of them.”

[14] The applicants’ contention
can be summarized as follows: the purpose of the pooling agreement is
to catch hake. In order to catch hake fishing vessels have to be
licensed in terms of section 32 (3), read together with section 40
(3) of the Marine Resources Act. Without a licence hake cannot be
caught in Namibian waters, and in the absence of hake being caught,
the purpose and intent of the pooling agreement cannot be fulfilled.
Should the second and third respondents fail to take the necessary
administrative steps to ensure that the quotas allocated to them can
be fished, such failure on their part would amount to a negation of
their obligations in terms of the pooling agreement. By failing to
take steps to require that the Minister determine the applications in
respect of the vessels Etale Bounty and Twafika the
respondents are in breach of the pooling agreement. The applicants
then seek in terms of prayer 2 of the notice of motion an order of
specific performance of the second and third respondent’s
aforementioned obligations in terms of the pooling agreement.

[15] The sanctity of contract was
stressed in argument. In Knox
D’Arcy Ltd and Another v Shaw and Another Van
Schalkwyk J said ⁵:

“The
principle pacta
sunt servanda has,
as was argued by counsel for the applicant a well established
pedigree. C Visser in (1984) 101 SALJ
641,
at 660 says:

‘It is clear that
it was generally accepted by the Roman-Dutch authorities, both
writers and the courts, that the principle of sanctity of contract
was of universal application in Roman-Dutch law and practice.
…

On a theoretical level it
would seem to follow that where a system of contract is based on
consensus, a necessary corollary would be the principle of sanctity
of contract as a result of the underlying notion of good faith…The
only basis on which a person can be bound in a consensual system of
contract is simply that he has given his word. In such a system
sanctity of contract would logically seem to take pride of place.’

This
is the principle which was adopted by the Appellate Division in the
Magna Alloys
case.

It
must be understood that there is a moral dimension to a promise which
is seriously given and accepted. It is generally regarded as immoral
and dishonourable for a promissor to breach his trust and, even if he
does so to escape the consequences of a poorly considered bargain,
there is no principle that inheres in an open and democratic society,
based upon freedom and equality, which would justify his repudiation
of his obligations. On the other hand, the enforcement of a bargain
(even one which was ill-considered) gives recognition to the
important constitutional principle of the autonomy of the
individual.”

[16] Reliance was placed by the
applicants on the principle that a Court should come to the
assistance of a party seeking enforcement of a contract. Davidson J
in Industrial and Mercantile v Anastassiou Bros stated:

“It
seems to me that a Court should avoid becoming supine and spineless
in dealing with the offending contract breaker, by giving him the
benefit of paying damages rather than being compelled to perform that
which he had undertaken to perform and which, when he was called upon
to perform by summons, and he chose to defy the claim of the
plaintiff.” ⁶

[17] The applicants contend, on the
principles of pacta sunt servanda, that the second and third
respondents should be required to comply with their obligations in
terms of the pooling agreement. Damages for non-compliance would not
suffice. The applicants accordingly should be ordered to ratify the
steps already taken to apply for fishing licences for the vessels
Etale Bounty and Twafika, and furthermore, should be
directed to put pressure on the Minister to issue the licences,
failing which the respondents must institute urgent legal proceedings
for a mandamus to require that the Minister determine the
applications.

The exceptio non
adimpleti contractus and reciprocity

[18] The respondents refer in their
opposing papers to the first and second applicants being in material
breach of the provisions of the pooling agreement. This is based upon
the failure by the first and second applicants to pay the quota fees
levied in terms of the Marine Resources Act, and furthermore, their
failure to pay the usage fees to the respondents as required by the
pooling agreement. In the opposing papers Mr De Gouveia claims that
the catching rights which the first and second applicants are seeking
to enforce “come with corresponding obligations to pay usage
fees and levies”. It is contended on behalf of the
respondents that the failure to pay these fees and levies disentitles
the applicants to the relief sought. The ground of opposition to be
derived from these allegations (although not expressly stated but
more fully advanced by Mr Oosthuizen in argument) is the reliance by
the respondents upon the defence of the exceptio non adimpleti
contractus. The further defence raised is that the relief sought
is not competent due to the first and second applicants’
failure to pay quota fees as required by the Marine Resources Act.
These defences will be dealt with in turn.

[19] A claim for specific performance
is only competent if the plaintiff or the applicant has performed or
is ready or willing to perform any obligations resting upon him or
her which are due and reciprocal. In considering the issue of
reciprocity, this Court per Maritz J (as he then was) in Du
Plessis v Ndjavera stated:
⁷

“The
exceptio
non adimpleti contractus
as
a defence in an action for specific performance is inextricably
linked to the principle of reciprocity under a bilateral contract –
as Jansen JA remarked after an extensive analysis of the Roman law
and the Roman Dutch common law in BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk,
1979 (1) SA 391 (A), at 417 H, the exceptio
is
a ‘meeganger’ (‘companion’) (literally
translated) of the principle of reciprocity. It is only if and when
there are reciprocal obligations contemplated in a contract
(irrespective of whether they are to be discharged concurrently or
consecutively) that the exceptio
may
have afforded a defence to a claim for specific performance.”

[20] This point is explained by
Corbett J (as he then was) in Ese
Financial Services (Pty) Ltd v Cramer as
follows:⁸

“In
a bilateral contract certain obligations may be reciprocal in the
sense that the performance of the one may be conditional upon the
performance, or tender of performance, of the other. This reciprocity
may itself be bilateral in the sense that the performance, or tender
of performance, of them represent concurrent conditions; that is,
each is conditional upon the other. A ready example of this would be
delivery of the res
vendita and
payment of the purchase price under a cash sale. (See Crispette
and Candy Co Ltd v Oscar Michaelis NO and Another 1947
(4) SA 521 (A) at 537.) Alternatively, the reciprocity may be
one-sided in that the complete performance of his contractual
obligation by one party may be a condition precedent to the
performance of his reciprocal obligation by the other party. In other
words the obligations, though inter-dependent, fall to be performed
consecutively. An example of this would be a locatio
conductio operis whereunder
the conductor
operis is
normally obliged to carry out the work which he is engaged to do
before the contract money can be claimed. In such a case the
obligation to pay the money is conditional on the preperformance of
the obligation to carry out
the
work, but, of course, the converse does not apply (see, eg. Kamaludin
v Gihwala 1956
(2) SA 323 (C) at 326, De Wet and Yeats Kontraktereg
3^rd
ed
at 139).”

[21] In Minister
of Public Works and Land Affairs and Another v Group Five Building
Ltd Marais JA said: ⁹

“Reciprocity
of debt in law does not exist merely because the obligations which
are claimed to be reciprocal arise from the same contract and each
party is indebted in some way to the other. A far closer, and more
immediate correlation than that is required. See BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979
(1) SA 391 (A) at 415H-418C. The contractor’s right [under
a building construction contract]
to claim damages for a breach of contract is not matched by any
particular
obligation
towards appellants on its part. It is not required to have performed
or to tender performance of any reciprocal obligation in asserting
such a claim.”

[22] The general principles governing
the determination whether obligations of parties to a contract are
reciprocal, such that the exceptio
may be raised, have been set out in
Grand Mines (Pty) Ltd v
Giddey NO where Smalberger
JA, delivering the judgment of the majority of the court (Schutz JA
dissenting on the facts), stated¹⁰:

“Where
the common intention of parties to a contract is that there should be
a reciprocal performance of all or certain of their respective
obligations the exceptio
operates
as a defence for a defendant sued on a contract by a plaintiff who
has not performed, or tendered to perform, such of his obligations as
are reciprocal to the performance sought from the defendant.
Interdependence of obligations does not necessarily make them
reciprocal. The mere non-performance of an obligation would not per
se permit
of the exceptio;
it is only justified where the obligation is reciprocal to the
performance required from the other party. The exceptio
therefore
presupposes the existence of mutual obligations which are intended to
be performed reciprocally, the one being the intended exchange for
the other…”

[23] As a starting point, an
interpretation of the pooling agreement is necessary to decide
whether reciprocity applies. In MAN
Truck & Bus (SA) (Pty) Ltd v Dorbyl Ltd t/a Dorbyl Transport
Products and Busaf Cloete
JA held¹¹:

“In
contracts which create rights and obligations on each side, it is
basically a question of interpretation whether the obligations are so
close connected that the principle of reciprocity applies: BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979
(1) SA 391 (A) at 418B and the authorities there quoted. Where a
contract is bilateral the obligations on the two sides are prima
facie reciprocal
unless the contrary indication clearly appears from a consideration
of the terms of the contract: Rich
and Others v Lagerwey
1974
(4) SA 748 (A) at 761 in
fine-762
A; Grand
Mines (Pty) Ltd v Giddey NO 1999
(1) SA 960 (SCA) at 971 C-D.

‘For reciprocity to exist’
Corbett J (as he then was) explained in Ese
Financial Services (Pty) Ltd v Cramer – ¹²

“there
must be such a relationship between the obligation to be performed by
the one party and that due by the other party as to indicate that one
was undertaken in exchange for the performance of the other and, in
cases where the ‘obligations are not consecutive, vice
versa.”

[24] It can be that an agreement,
although bilateral, reflects that the applicant’s obligation is
collateral and the respondent’s performance is not conditional
upon performance by the applicants. In the matter of Wynns
Car Care Products (Pty) Ltd v First National Industrial Bank Ltd
Hefer JA stated the
following: ¹³

“It
is not inappropriate to be reminded that the exceptio
non adimpleti contractus – which
is essentially the appellant’s defence – presupposes the
existence of mutual obligations which the parties intended to perform
reciprocally, the one being the intended exchange for the other.
…Since their intention is to be sought primarily in the terms
of the agreement (Rich
and Others v Lagerwey 1974
(4) SA 748 (A) at 761 in
fin)
the enquiry turns in any particular case on the interpretation of the
agreement (BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979
(1) SA 391 (A) at 418B).”

[25] What is required, is to ascertain
the common intention of the parties from the provisions of the
pooling agreement as a whole. ¹⁴
No express provisions relating to
reciprocity are provided for in the pooling agreement. The
respondents do not expressly allege any reciprocal obligations. In
any event, in this regard the parol evidence rule would preclude the
Court from relying upon such secondary evidence in the absence of the
recognized exceptions to the rule. ¹⁵
In its broadest terms the pooling
agreement obliges the respondents to pool their wet fish hake quotas
with the second applicant to share in economies of scale and other
benefits to be derived from the rationalisation of their catching,
processing and marketing efforts. It also requires in clause 18 under
the heading “co-operation”
that the parties to the agreement “do
all such things, perform all such actions and take all such steps …
and to procure the doing of all such things, the performance of all
such actions and the taking of all such steps as may be open to them
and necessary and incidental to the putting into effect and
maintaining of the provisions of …” the
pooling agreement. The applicants contend that it is these
obligations which form the causa
in respect of the relief sought in
regard to specific performance. Such actions would, so it is
contended by the applicants, include the taking of all necessary
steps by the respondents to ensure that the Minister issue fishing
licences in respect of the vessels Etale
Bounty and the Twafika.

[26] The crux of the defence then
revolves around the question as to whether the obligations imposed
upon the second applicant to pay quota levies and usage fees amount
to reciprocal obligations to those owed by the second and third
respondents to cause the vessels to be licenced, which if not
complied with, entitle the respondents to raise the exceptio.
Clause 18 amounts to bilateral obligations imposed on the parties,
but that factor is not determinant of reciprocity. ¹⁶

[27] As far as quota levies are
concerned, the pooling agreement provides that:

“8.3
Etale shall be responsible for the payment of all costs attendant
upon the catching of the fish permitted in terms of the concessions
but excluding any quota levies payable to the State in respect of
specific quotas which shall remain the responsibility of the
Concessionaries themselves. To the extent that such levies are
payable prior to the Concessionaries receiving payment in terms of
this agreement Etale will pay the levies as and when due and set-off
such payments against the amounts payable to the Concessionaries in
terms of 11.2 (in
fact clause 12.2).
Etale shall be responsible for all by-catch, research and other
levies that the Minister of Fisheries and Marine Resources may impose
from time to time (other than the quota levies referred to above).”

Due to financial constraints usage
fees were not paid to the respondents and accordingly in terms of the
clause 8.3 of the agreement the obligation to pay them rests on the
second applicant. It is self-evident that the quota levies are to be
paid to the Ministry of Fisheries and Marine Resources by the second
applicant on behalf of the respondents as and when they are due. The
applicants admit that they are in arrears with the payment of quota
levies, but allege that they have come to an agreement with the
Minister with regard to paying off the arrears. This is denied by the
respondents who contend that there is no provision in the Marine
Resources Act authorising the Minister to agree to this. It is not
necessary to decide this disputed issue, for the reasons set out
below.

[28] The second applicant’s and
the respondents’ obligations in terms of clause 18 of the
pooling agreement are bilateral, which would suggest that they are
prima facie
reciprocal. The bilateral nature
thereof, and the interdependence of clause 18 with clause 8.3 does,
however, not necessarily make them reciprocal, nor does the fact that
the obligations are contained in the same agreement. Critical to
whether reciprocal obligations are owed, is a consideration of
whether the performance of one may be conditional upon performance,
or the tender of performance, of the other. There is nothing in
clause 18 or elsewhere in the pooling agreement which drives me to
conclude that there is indeed this close connection. The respective
obligations are to be found in separate clauses of the agreement each
under its own heading. The two obligations are severable. ¹⁷
They are independent in regard to
contents, each serving its own purpose. The clauses are accordingly
not so closely connected as to evidence reciprocity.

[29] The enquiry does not end there.
The respondents rely further on the second applicant’s
obligation in terms of the pooling agreement to pay usage fees to
them. Clause 12.3 of the pooling agreement provides as follows:

“Etale
shall annually distribute half of its after-tax profits as a dividend
in accordance with shareholdings, the balance of the net profits to
be retained in the company to fund future capital purchases, reduce
borrowings or such other purposes as the directors may decide, unless
the board at any time otherwise decides.”

Clause 12 of the pooling agreement was
amended in August 2001, to provide in clause 12.7 that:

“The
usage fees payable by Etale to each concessionaire as stipulated in
12.2 and 12.3 are agreed to in good faith and upon the expectation
that the various factors which may influence the future profitability
of Etale, as presently perceived by the parties, will enable Etale to
turn a profit from its business after payment of such usage fees.

In
the event that any extraneous factors which may influence the
business of Etale change adversely and Etale consequently faces the
possibility of making a loss during any quota year, the parties to
this agreement undertake to renegotiate the usage fees payable to
each concessionaire in respect of that and subsequent quota years in
order to establish the fair and reasonable rate at which usage fees
should so be paid.

Failing
agreement upon such renegotiation, such reasonable rate of usage fees
to be paid by Etale should be determined in terms of clause 16 (the
dispute resolution clause).”

[30] The obligation to pay usage fees
is thus itself conditional upon the second applicant deriving a
profit from fishing and, furthermore, subject to Board approval in
terms clause 12.3 of the pooling agreement. In this regard the Board
of the second applicant resolved at its meeting on 8 August 2005 to
place a moratorium on the payment of usage fees to the respondents
due to financial constraints and as recommended by its audit
committee. Accordingly, even if reciprocity was to apply, in the
light of the moratorium, the respondents could not on the facts
presented rely on the exceptio. In any event, I am of the view
that clause 12, as amended, suffers the same fate as clause 8.3.
Based on the considerations set out earlier, clause 12, when
considered in conjunction with clause 18, does not give rise to
reciprocity.

[31] In the circumstances, I find that
even though the pooling agreement imposes bilateral obligations upon
the parties which have a degree of interdependence, the mere
non-performance of clauses 8.3 and 12.3 read together with the
amended clause 12.7 in fact militate against the notion of
reciprocity. It follows then that the defences raised by the
respondents based upon the exceptio are without merit.

[32] Counsel for the respondents
further contended that the vessel Twafika is not a fishing
vessel contemplated by the pooling agreement. It is true that the
pooling agreement itself does not expressly refer to the Twafika.
The vessels referred to in the agreement are those which the second
applicant purchased from Northern Fishing Industries (Pty) Ltd.
Clause 8 of the pooling agreement which deals with the utilisation of
the hake concessions granted by the Minister does not require that
the hake quota be fished by particular vessels. There is thus no
contractual constraint on the use of the Twafika to catch
fish. The further contention that the utilisation by the second
applicant of the Twafika would be financially disadvantageous
to the respondents is disputed by the applicants. The respondents
also state that the remaining quota can be fished by the Etale
Bounty and two other vessels owned by the second applicant. This
statement is not placed in issue by the applicants. For this reason,
and applying the Stellenvale rule, I am constrained to accept
that requiring the respondents to pursue the application for a
fishing licence for the Twafika would not, on the facts before
me, constitute an enforceable obligation in terms section 18 of the
pooling agreement. Should I be persuaded to grant an order for
specific performance, any such order would accordingly not be in
respect of the Twafika.

The competency of the relief sought
by virtue of the provisions of the Marine Resources Act

[33] The remaining question to be
answered is whether the provisions of the Marine Resources Act are a
bar to the relief sought. It was vigorously contended on behalf of
the respondents that due to the non-payment of quota fees, the
Minister could not grant the applications for the licencing of the
Etale Bounty and the Twafika.

[34] In terms of section 44 of the Act
the Minister, with the approval of the Minister of Finance
determined, by way of Government Notice No. 134 published in
Government Gazette No. 3227 of 30 June 2004, fees which shall be
payable to the Ministry in respect of the harvesting of marine
resources. These fees in respect of hake, otherwise known as quota
levies, are payable in terms of the quotas granted to the second and
third respondents. As has already been indicated, in terms of the
pooling agreement these quotas were to be paid over to the Ministry
by the second applicant. It is common cause that the outstanding
quota levies payable by the second and third respondents is currently
in excess of N$6 million and N$7 million respectively. This issue was
addressed in letters sent to the respondents from the Acting
Permanent Secretary in the Ministry of Fisheries and Marine Resources
dated 19 October 2011, where it was stated that –

“Right
holders are urged to provide payment on their outstanding quota fees
in order for vessel/s to return to the fishing grounds comes 1^st
November
2011; failure will result in vessel/s not being allowed to return to
sea.” (sic)

It is contended by the respondents
that the failure by the second applicant to pay the quota levies to
the Ministry also exposes the respondents to the risk of the
suspension of their quotas by the Minister. The further contention is
that such failure would have a significant negative impact on the
defaulting right holder’s ability to successfully participate
in a future allocation of quotas to be granted by the Minister.

[35] Mr Barnard contends that the Act
does not make provision for a suspension or prohibition of this kind
sought to be imposed by the Minister on defaulting quota holders.
Section 41 (1) of the Act limits the Minister’s discretion to
suspend, cancel or reduce quotas and licences, to the following
situations:

“41.
(1) Where the holder of a right, an exploratory right, a quota or a
licence –

1. 
   has
   furnished information which is untrue or incomplete in connection
   with his or her application for the right, the exploratory right,
   the quota or the licence;

   
   

2. 
   contravenes
   or fails to comply with a condition imposed under this Act in
   respect of the right, the exploratory right, the quota or the
   licence;

   
   

3. 
   contravenes
   or fails to comply with the provision of this Act, or

   
   

4. 
   is
   convicted of an offence under this Act,
   

   
   

the
Permanent Secretary shall, by written notice to the holder of such
right, exploratory right, quota or licence or sent by registered post
to the holder’s last known address, request the holder to show
cause, in writing, within a period of 21 days from the date of the
notice, why such right, exploratory right, quota or licence should
not be suspended, cancelled or reduced.

Whilst the Minister may have sought to
rely upon sections 41 (b) or (c) in the context of the non-payment of
quota levies, there is no indication in the letter of 19 October 2011
that the Minister indeed places reliance thereon. The letter is
simply silent as to the purported statutory basis for the decision.
In any event, there has been no compliance with the provisions of
section 41 (1) requiring that the rights holder or licencee first be
put on notice to comply with any such condition or provision of the
Act prior to the purported cancellation or suspension. I am thus
persuaded that section 41 of the Act does not constitute a bar to the
relief sought.

[36] Since the Minister has yet to
make a decision on the applications for fishing licences lodged with
his Ministry in respect of the vessels Etale Bounty and
Twafika, there can be no suggestion that the basis upon which
the vessels would not be allowed to return to sea, is that such
applications have been turned down. In any event, the Minister’s
discretion to refuse a licence in terms of section 40 (4) of the Act
is limited to the following circumstances:

“(a)
the information furnished in the application is incorrect or
incomplete;

2. 
   the
   vessel in question is not intended for use as a fishing vessel;

   
   

2. 
   the
   approval of the application will not be in the interest of the
   sector of the fishing industry harvesting a particular resource;

   
   

2. 
   the
   issue of the licence would be inconsistent with an international
   agreement to which Namibia is a party or;

   
   

2. 
   the
   approval might threaten the sustainability of a particular marine
   resource.”

   
   

I am inclined to the view that none of
the grounds set out in section 40 (4) would find application in this
matter. It follows then that the failure by the second and third
respondents, or the second applicant on their behalf, to pay the
quota levies could not form the basis for the Minister refusing to
grant the second and third respondents licences for the vessels Etale
Bounty and Twafika to catch hake during the current
fishing season. Whilst the proper application of the provisions of
the Marine Resources Act might still impact upon the applicants’
rights to fish the quota, for the purposes of the relief sought
herein it provides no bar to the relief sought.

Urgency

[37] It is contended on behalf of the
respondents that this application should not be entertained on an
urgent basis. In the earlier judgment I referred to the trite
proposition that if an applicant has no locus
standi to bring the
application, urgency is not shown. ¹⁸
The merits of the prayer in terms of
Rule 6 (12) were not considered. It is accordingly open to this Court
to consider the issue of urgency afresh. These issues were also
referred to in the earlier application which is annexed to this
application. The applicants contend that the matter is urgent since
the quota of the first respondent was probably to run out by 19
November 2011. On 10 November 2011, the legal practitioner of the
applicants addressed a letter to the legal practitioners of the
second and third respondents in which they called for the support of
the second and third respondents to take all such steps, on an urgent
basis, to ensure that the licence applications currently before the
Minister would be decided upon as a matter of urgency. The response
received from the respondents’ legal practitioners indicated
simply that they would revert to the applicants’ legal
practitioners as soon as instructions had been received from their
clients. No indication was given that the respondents would deal with
the matter expeditiously.

[38] In exercising a discretion in
terms of Rule 6 (12) of the High Court Rules, the Court recognizes
that there are varying degrees of urgency. ¹⁹
The urgency of commercial matters was
recognized in the matter of Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd. ²⁰
It would be required of the applicants
with reference to the facts of this matter to demonstrate that they
are unable to receive redress in the normal course and that the facts
justified the degree of urgency with which the application has been
brought.

[39] In the light of the principles I
have referred to, and on the facts of this matter – principally
the fact that the quota for the first respondent has seemingly run
out and the further circumstances that the fishing season is due to
terminate in April 2012 – I am of the view that the applicants
have made out a case for urgency as envisaged by Rule 6 (12). I
accordingly grant condonation in respect of the applicants’
non-compliance with Rule 6 and grant leave for the application to be
heard on an urgent basis.

Conclusion

[40] As a result, I am satisfied that
the applicants have made out a case for the relief sought in prayer 2
of the notice of motion pertaining to specific performance of the
pooling agreement by the respondents, subject to the modifications I
make in the light of the reasons underpinning this judgment. It is
thus not necessary for me to consider the alternative relief sought
in terms of the Companies Act, as well as the further arguments
advanced by counsel. As I have indicated, I am not persuaded that
case is made out for including the vessel Twafika
in the order I propose to make. No
order is made against the third respondent, although the third
respondent associated itself fully with the defences raised by the
second respondent, including the points in
limine which I dismissed.
The costs order will take this into account. There is no reason why
the costs should not follow the result. I accordingly make the
following order:

1. 
   The forms and service provided for in
   the Rules of Court are dispensed with and this application is heard
   as one of urgency.

   
   

1. 
   Second respondent is ordered, at the
   behest of first and/or second applicant, to give effect to the
   spirit, purpose and intent of the agreement annexed as annexure
   “SK2” to the papers in the application of 8 November
   2011 (hereafter “the pooling agreement”), as
   supplemented and/or varied by annexures “SK3”, “SK4”
   and “SK5” to such papers, by doing what is set out
   below.

   
   

2. 
   Second respondent is ordered to
   confirm in writing that the application to the Minister of
   Fisheries and Marine Resources and/or the Permanent Secretary of
   such Ministry dated 7 October 2011 for a fishing license for the
   MFV Etale Bounty to be used by second respondent:

   
   

1. 
   was an application on second
   respondent’s behalf; alternatively that

   
   

2. 
   despite any shortcomings or defects
   in regard to the authority to have made such application on behalf
   of the second respondent, second respondent has now accepted and
   ratified, with retroactive effect, such application as valid and
   duly made on its behalf.

   
   

3. 
   Second respondent is ordered to
   effect such written confirmation by no later than one business day
   after the handing down of this order, by a letter telefaxed or hand
   delivered to the Minister of Fisheries and Marine Resources and/or
   the Permanent Secretary of such Ministry, in which the Minister
   and/or the Permanent Secretary of the Ministry is/are requested to
   determine such application within three business days after receipt
   of such letter, and in which letter the Ministry is informed that,
   unless the application for the license is determined upon as
   requested, an urgent application by or on behalf of second
   respondent would follow to compel the determination of such
   application.

   
   

4. 
   Second respondent is ordered, in the
   event that the Minister of Fisheries and Marine Resources and/or
   the Permanent Secretary of such Ministry may fail and/or refuse to
   determine the application in the manner as demanded above:

   
   

1. 
   to institute urgent legal
   proceedings against the Minister and/or the Permanent Secretary
   for such relief, within three business days of the failure and/or
   refusal of such persons to do what was demanded from them;

   
   

2. 
   to pursue such legal proceedings
   diligently, reasonably and responsibly with all the means at its
   disposal.

   
   

5. 
   Second respondent is ordered, in the
   event that the Minister of Fisheries and Marine Resources and/or
   the Permanent Secretary of such Ministry refusing the application
   for the fishing licenses, to cede, within two business days of the
   refusal of the application for the fishing license, its rights to
   the applicants to institute urgent review proceedings against the
   Minister and/or Permanent Secretary.

   
   

6. 
   The first and second applicants are
   ordered to indemnify the second respondent against any costs order
   that may be made against it in the proceedings contemplated by
   prayers 2.4 and 2.5 above. In relation to the proceedings
   contemplated by prayer 2.4 such indemnity shall only be enforceable
   if the second respondent fully complies with the provisions of
   prayer 2.4.2.

   
   

7. 
   In the event that the second
   respondent fails or refuses to take the above action, or to comply
   with any component of this order, the first and/or second applicant
   is/are authorized to, in their own names and in rem suam, to
   take any action that was to be taken by the second respondent, as
   contemplated by the aforegoing orders, read in conjunction with
   clause 8.1 of the pooling agreement, for purposes of giving effect
   to this order.

   
   

3. 
   Second respondent and third
   respondent are ordered to pay the costs of this application jointly
   and severally (such costs in respect of the third respondent to be
   restricted to 50% of such costs), to include the costs of one
   instructing and one instructed counsel, the one paying the other to
   be absolved.

   
   

__________

CORBETT, A.J

ON
BEHALF OF THE APPLICANTS:

Adv
T Barnard

Instructed
by Koep & Partners

ON
BEHALF OF THE RESPONDENTS:

Adv.
H. Oosthuizen SC

and
with him Adv. T Phatela

Instructed
by Engling Stritter & Partners