REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 820/2007

In the matter between:

NEDBANK NAMIBIA
LIMITED
......................................................................PLAINTIFF

and

THE NAMIBIAN
TUBERCULOSIS ASSOCIATION .......................FIRST
DEFENDANT

LUCKY BRINKMAN
...................................................................SECOND
DEFENDANT

RENETTE BALERIE LOUW
...........................................................THIRD
DEFENDANT

HEINRICH AMUSHILA
...............................................................FOURTH
DEFENDANT

Neutral citation:
Nedbank Namibia Limited v The Namibian Tuberculosis Association (I
820/2007) [2012] NAHCMD 94 (30 November 2012)

Coram: PARKER AJ

Heard: 5 March
2012 – 16 March 2012; 24 September 2012 – 26 September
2012; 21 November 2012

Delivered: 30
November 2012

Flynote: Declaration
issued subsequent to issuance of simple Summons – Such
Declaration required in terms of the rules of court – Summons
capable of interrupting prescription where Declaration merely
clarifies and particularizes claim made in the Summons.

Flynote: Delict –
Aggrieved party induced to enter into contract on basis of fraudulent
misrepresentation – Aggrieved party has a right of action in
delict if he or she chooses not claim in contract.

Summary: Prescription
– Extinctive prescription – Simple Summons issued for a
debt or liquidated demand before prescription has run out –
Declaration issued subsequent to issuance of simple Summons –
Declaration required by the rules of court – In casu
Declaration merely particularizing and clarifying grounds upon which
action instituted by the Summons is based in the alternative –
Declaration not creating new cause of action – Accordingly such
Summons (with accompanying Declaration) will interrupt prescription.

Summary: Delict –
Fraudulent misrepresentation – Liability for – Liability
indicates actual pecuniary loss caused intentionally and wrongfully –
To succeed plaintiff should establish that the actual consequence of
the wrongful act (the loss) was intended by the defendant – In
instant case aggrieved party induced to enter into contract on the
ground of fraudulent misrepresentation by fraudulent agents –
Aggrieved party’s right of action is based on either the
contract or delict – Aggrieved party may choose not to claim
rescission of the contract but pursue a claim in delict – In
casu plaintiff’s alternative claim is in delict on the
basis of fraudulent misrepresentation by fraudulent agents.

ORDER

1. 
   The special pleas raised
   by the defendants are dismissed.

   
   

2. 
   Judgment for the
   plaintiff in the amount of N$156 678,66, plus simple interest on
   that amount at the rate of 20 per cent per annum calculated from 16
   October 2006 until date of full and final payment to the plaintiff
   by the second defendant and the fourth defendant jointly and
   severally; the one paying , the other to be absolved.

   
   

3. 
   The second defendant and
   fourth defendant must pay the plaintiff’s costs, jointly and
   severally; the one paying, the other to be absolved on the scale as
   between party and party, and the costs include such costs as are
   occasioned by the employment of one instructing counsel and one
   instructed counsel.

   
   

JUDGMENT

PARKER AJ:

[1] The plaintiff has instituted
action against the first defendant, second defendant, third defendant
and fourth defendant. The third defendant is not before this court in
the instant proceeding. Where the context allows, I shall in this
judgment refer to the rest as simply ‘defendants’. The
plaintiff is represented by Mr Mouton; the second defendant by Mr
Kaumbi and the fourth defendant by Mr Kamanja. This matter revolves
around international donor funding of health projects in Namibia;
particularly a project to reduce the incidence of TB in the country.

[2] The action is against the
defendants jointly and severally and to the extent that one of them
pays, the others shall be absolved from further payment. In the
Summons the plaintiff claims payment of the sum of N$156 678,66 being
the balance due and payable in respect of moneys lent and advanced on
the overdraft account number 11000154964 (new account number
013297000726) by the plaintiff to the defendants at the defendants’
special instance and request. Simple Summons issued from the office
of the registrar on 20 March 2007. Thereafter the plaintiff filed a
Declaration, and it was issued from the office of the registrar on 25
March 2009. It is the issuance of the Declaration that is the subject
matter of the special plea on the basis of extinctive prescription;
and it is dealt with below.

[3] The provenance of this case lies
in the time the second defendant approached the plaintiff’s
officials, particularly Ms Kipping (a witness for the plaintiff), to
open an account with the first defendant as the account name. At that
time there had existed in the books of the plaintiff’s more
than one account with the first defendant as the account name. The
explanation – as I understand it – is that every time the
first defendant was engaged in a new project a separate account was
opened for any such new project specifically.

[4] The second defendant
approached the plaintiff’s officials, particularly Ms Kipping,
in the first week of April 2005 to open an account with the
plaintiff’s Main Branch (in Windhoek) with the first defendant
as the account name and for a specific project, namely ‘TB
Project’. The second defendant’s request was accompanied
by certain documents which are gathered in the plaintiff’s
bundle of discovered documents (‘the Bundle’), eg (a)
Resolution by a Company to Obtain Banking Facilities (p 9 of the
Bundle), (b) Passport details of the second defendant (p 6 of the
Bundle), (c) Passport details of the third defendant (p 7 of the
Bundle), (d) Passport details of the fourth defendant (pp 8.1, 8.2
and 8.3 of the Bundle), and (e) a letter (dated 4 April 2005) on the
headed paper of the first defendant and under the hand of the second
defendant, and in his capacity as Director of the first defendant (p
11 of the Bundle). The title of the letter reads: ‘Re: Board
Resolution – Opening of a current account’. This letter
is so important in the present proceeding – as shall become
apparent in due course – that I reproduce the contents here:

‘Re:
Board Resolution – Opening of a current account

The
board of Trustees on its meeting held on the April 1, 2005 hereby
resolved to open a current account for the new Global Fund Supported
TB Project.

The
name of the account is to be: Global Fund TB Project.

The
following members are signatories to the account.

1.
Mr Heinrich Amushila (ie the fourth defendant)

2.
Ms Reinette Louw (ie the third defendant)

3.
Mr Lucky Brinkman (ie the second defendant)

Any
two of the signatories are mandated to sign for transaction purposes.

For
further clarifications please contact us at 0812500070.

Yours
truly

(Lucky
Brinkman)

(Signature)’

[5] The contents and
import of the 4 April 2005 letter is confirmed by the defendants when
they affixed their signatures to ‘Resolution by a Company to
Obtain Banking Facilities’, a proforma produced by the
plaintiff for use by the defendants (and presumably other prospective
clients) (p 9 of the Bundle). Kipping filled it in, in her
handwriting the words ‘The Namibian Tuberculosis Association’,
according to information – as I find – supplied to her by
the second defendant, after the printed words ‘At Meeting of
the Board of Directors of’. The second defendant and the third
defendant confirmed to the plaintiff that there had in fact been such
a meeting of the ‘Board of Trustees’ of the Namibia
Tuberculosis Association (the first defendant) when they completed
the document as follows:

‘(Signature)

Director: Lucky Brinkman
(the second defendant)’

‘(Signature)

Secretary: Renette Louw
(the third defendant)’

And the document is
‘(D)ated at Windhoek on the 1^st day of April 2005’.

[6] When he approached
the plaintiff’s officials, as aforesaid, the second defendant
informed Kipping that a new account with the first defendant as the
account name was to be opened for a specific Project, namely the ‘TB
Project’ under the Global Fund. Armed with the information and
the aforementioned documents given to her by the second defendant,
Kipping proceeded to carry through the process required for the
opening of such account. In that regard, Kipping completed the part
of the ‘Certificate of Signing Authorities – Business
Accounts’ (p 4 of the Bundle), that is, before the details
beginning with ‘WE, THE UNDERSIGNED .…’ Each of
the three defendants individually completed the rest of the proforma
relating to him or her. In this regard the following entries are
significant for our present purposes:

‘Heinrich Amushila:
Trustee: 69012900727 (Identity Number): Specimen Signature (signed by
him)’;

‘Renette Louw:
Trustee: 6512050800317 (Identity Number): Specimen Signature (signed
by her)’; and

‘Lucky Brinkman:
Director: 7009240000590 (Identity Number): Specimen Signature (signed
by him)’.

The evidence is clear and
sufficient that two of these people could sign any instrument
respecting this TB Project account, with the first defendant as the
account name, including withdrawing and transferring moneys from that
account.

[7] As respects ‘Cheque
Account Opening Form Estate/Trust’ (p 3 of the Bundle), too,
Kipping completed the parts of the proforma beginning with ‘Main’
and ending with ‘Windhoek’. The signatures appearing on
the ‘Opening Form’ are those of the defendants, and the
signatures were affixed on the Form individually by the defendants
themselves. The same applies to the Business Account Signature Card
(p 5 of the Bundle). Kipping filled in ‘NAMTA (The Namibian
Tuberculosis Association)’, and the three lines following after
it were filled in by the defendants individually thus:

‘Heinrich
Amushila: Trustee: Specimen Signature (and his signature)’;
‘Renette Louw: Trustee: Specimen Signature (and her
signature)’; and ‘Lucky Brinkman: Director: Specimen
Signature (and his signature)’.

[8] Other relevant
documents in the Bundle are these: A letter dated 18 May 2005, under
the hand of Dr K Shangula, the Permanent Secretary of Ministry of
Health and Social Services (MOHSS) and Chairperson of NACCATUM. The
letter is entitled ‘Global Fund Individual Recipient Contract
Agreement’ and is addressed – significantly – to:

‘Mr
L Brinkman (second defendant)

Namibia
Tuberculosis Association

P
O Box 60653

Katutura’

[9]
Dr Shangula informs the second defendant, ‘Director’ of
the Namibia Tuberculosis Association, that funds
under the Global Fund were expected soon. The letter encloses a
signed copy of the Project Grant Agreement (under the aupices of the
Namibia Global Fund Programme) entered into between MOHSS (as the
Principal Recipient) and the Namibia Tuberculosis Association (the
first defendant) as the Individual Recipient. In the agreement the
following relevant entries are crucial:

‘12.
Individual Recipient Contact Person Name: Lucky Brinkman (the second
defendant)

Title:
Director

.
…’

Furthermore, the
Agreement is entered into on behalf of the Tuberculosis Association
of Namibia (the first defendant) by – significantly –
‘Lucky Brinkman, Director’ (ie the second defendant), and
is witnessed by the third defendant. Additionally, at para 15 of the
Agreement is the following telltale and significant entry:

‘(Name):
Lucky Brinkman

(Title:
Director)’

[10] After having
satisfied herself that the information and documents put at her
disposal by the second defendant were sufficient for the opening of
the account as requested by the second respondent, Kipping approached
the Department whose responsibility it was to physically open the
account. And so enters Ms Rochelle Kruger (another plaintiff witness)
who was entitled to approve or reject the application to open the TB
Project account. On the strength of the aforementioned documents and
information that were placed before her by Kipping, Kruger approved
the opening of the account at the plaintiff’s Main Branch (in
Windhoek) with the first defendant as the account name, i.e. The
Namibia Tuberculosis Association, and in respect of the Association’s
TB Project account.

[11] In his testimony the
second defendant states more than once and with great verve that he
was authorized by the Board of Trustees of the Namibia Tuberculosis
Association Trust of which he was employed as its Director to open an
account at the plaintiff’s with that Trust as the account name,
and that is what, according to him, he did. It is the second
defendant’s further testimony that he was also authorized to
obtain an overdraft facility for the Trust to enable the Trust to
carry out its activities until funds that were to be made available
to the Trust by the Global Fund (under the aupices of MOSS) were
received. Resulting from the second defendant’s request an
overdraft account (Number 1609145224) was opened for the benefit of
the first defendant at the special instance and request of the second
defendant, as described previously.

[12] Thus, on 4 April
2005 to 15 October 2006 – or thereabouts – the plaintiff
lent and advanced to the first defendant moneys in respect of the
overdraft account which the plaintiff had opened for the benefit of
the first defendant at the special instance and request of the second
defendant, and from which withdrawals and transfers were made by the
three defendants on diverse occasions and in respect of which an
amount of N$156 678,66 stands as unrepaid debt.

[13] From the evidence I
make the following factual findings. When the second defendant went
to the plaintiff’s Main Branch (in Windhoek) in the first week
of April 2005 to open the aforementioned TB Project Account he very
well knew and was very much aware that he was not the Director of the
first defendant and so he could not be its authorized representative
to transact banking business on behalf of the first defendant with
the plaintiff. Despite having such clear knowledge the second
defendant, nevertheless, presented the plaintiff with the
aforementioned letter addressed to the ‘Manager Nedbank (the
plaintiff), Windhoek’, dated 4 April 2005. There are crucial
particulars contained in that letter; see para 4.

[14] As the second
defendant himself conceded (in his response to a request from the
court to clarify the issue), with the aforementioned documents and
information that the second defendant presented to the plaintiff’s
officials at the plaintiff’s Main Branch (in Windhoek) any
reasonable person would indubitably conclude that the plaintiff was
dealing with the first defendant through its Director and authorized
representative. Indeed, the testimonies of Kipping and Kruger were
that if they had known that the second defendant and the fourth
defendant did not have authority to open the account they would not
have opened the account and granted overdraft facilities on the
account. The documents are at pp 3, 4, 11, 12.1, 13.1 and 13.2 of the
Bundle. I have found previously that the second defendant was not the
Director and authorized representative of the first defendant. He
falsely represented to the plaintiff that he was such official in
such capacity and, therefore, authorized to open an account with the
first defendant as the account name and also to obtain an overdraft
facility in respect of that account under which the aforementioned
moneys were lent and advanced to the first defendant at, as I have
also found previously, the special instance and request of the second
defendant.

[15] In this regard, I
also find that the Namibian Tuberculosis Association and the Namibian
Tuberculosis Association Trust are two absolutely distinct and
separate entities – no matter what acronyms and abbreviations
are used on diverse occasions by different persons to describe any
one of them. That the two entities might have cooperated with each
other in the activities connected with the reduction of the incidence
of TB in Namibia is of no moment and of no consequence at all in the
present proceeding. This finding puts paid to Mr Kaumbi’s
submission that the Trust succeeded the Association. There is no
credible evidence to that effect; and I do not think that is a legal
possibility.

[16] The second defendant
did not place before the court one iota of documentary evidence to
establish that he did indeed open an account at the plaintiff’s
Main Branch (in Windhoek) with the Namibia Tuberculosis Association
Trust as the account name. It is clear to me that when the second
defendant opened the account and obtained an overdraft facility
against that account, as described previously, and together with the
three defendants withdrew and transferred moneys from that overdraft
account, he intended to deceive and defraud the plaintiff: the
overdraft facility was never intended for the Namibia Tuberculosis
Association Trust (of which he says he was the Director) for the
simple reason that the second defendant had not opened an account
with the Trust as the account name, as I have found previously.
Furthermore, I find that the overdraft facility was extended to the
first defendant at his special instance and request: he secured the
overdraft facility and opened the overdraft account on the strength
of the aforementioned information and documents that he had placed
before the plaintiff’s officials at its Main Branch (in
Windhoek).

[17] Having taken into
account all these factual findings, the conclusion is inescapable
that with a carefully thought out wrongful scheme the second
defendant set out with one singular intention, that is, to falsely
represent to the plaintiff that he was the Director and authorized
representative of the first defendant and authorized to open an
account at the plaintiff’s Main Branch (in Windhoek) and to
open an overdraft account under that account and withdraw and
transfer moneys from that account together with either of the two
other defendants – his confederates in this wrongful and
intentional conduct.

[18] In his authoritative
work Law of Delict, PQR Boberg (1989) at 108 states that the
well-established liability for fraudulent misrepresentation shows
that economic loss caused intentionally is clearly wrongful. And to
succeed in the Aquilian action, the plaintiff must prove damnum
– a calculable pecuniary loss or diminution in his or her
patrimony resulting from the defendant’s unlawful and culpable
conduct. The plaintiff must also prove that the consequence of the
actual loss was intended.

[19] From the totality of
the evidence, I have no difficulty – not even a modicum of
difficulty – in finding that the second defendant’s
conduct constitutes fraudulent misrepresentation. I have also no
difficulty – none at all – in finding that the plaintiff
has succeeded in proving damnum resulting from the second
defendant’s and the fourth defendant’s (I deal with the
fourth defendant in some detail below) unlawful and culpable conduct.
I also find that the plaintiff has proved that the consequence of the
actual loss that it has suffered was intended by the second defendant
and the fourth defendant (bar the third defendant who, as I have said
previously, is not before this court in this proceeding).

[20] I now consider the
position of the fourth defendant in some detail. In the opening of
the aforementioned TB Project account Kipping dealt with the second
defendant only. Kipping did not have any dealings with the fourth
defendant. But this fact alone, which Mr Kamanja is so much enamoured
with, cannot absolve the fourth defendant from liability. The fourth
defendant testified that he was a trustee of the Namibia Tuberculosis
Association Trust and as a trustee of that Trust he was given
responsibility by the Board of Trustees of that Trust to assist in
the opening of an account with that Trust as the account name, and
also to be a signatory of any such bank account. In this regard, I
reiterate the factual finding I made previously that the Namibia
Tuberculosis Association and the Namibia Tuberculosis Association
Trust are not the one and same entity.

[21] The gravamen of the
fourth defendant’s defence is primarily that he was ‘a
member, officer and signatory of the first defendant at the relevant
time’ and, therefore, he cannot be held liable for what he did
for and on behalf of the first defendant. This averment is extremely
baseless. The fourth defendant did not place before the court any
relevant and credible documentary evidence to establish that he was a
‘member and officer’ of the first defendant, the Namibian
Tuberculosis Association. The evidence I accept is that he was a
trustee of an entity called the Namibian Tuberculosis Association
Trust; and as I have said more than once, the Namibian Tuberculosis
Association (the plaintiff) and the Namibian Tuberculosis Association
Trust are not, and cannot be, the one and the same entity. As I say,
the fourth defendant’s defence has always been that he was a
trustee of an organization called the Namibian Tuberculosis
Association Trust, and as a trustee of that Trust, he was authorized
to be a signatory of a bank account to be opened with the Trust as
the account name. But none of the documents on which the fourth
defendant affixed his signature and which were used for the purpose
of opening the bank account and for withdrawing and transferring
moneys from the overdraft account opened in respect of the first
defendant’s TB Project account, including the Signature Card,
bears any such name as the Namibian Tuberculosis Association Trust. I
reject as palpably false the fourth defendant’s rearguard
testimony that he was selected by the Board of Trustees of an entity
called the Namibian Tuberculosis Association Trust of which he was a
trustee to be a signatory to the financial transactions of another
entity, that is, the first defendant, as respects its Bank account.
And so, Mr Kamanja submitted, the fourth defendant did not make false
representation. For the reasons stated, this submission has with
respect, no merit. None at all.

[22] It must be
remembered that the fourth defendant has a Diploma in Community
Development obtained from the University of South Africa (UNISA). He
is, therefore, not some illiterate person who did not know what he
was signing for, that is, when he affixed his signature to the
documents referred to previously and which were presented to the
plaintiff’s officials; and, a fortiori, there is not one
credible grain of evidence placed before the court by the fourth
defendant to establish that the fourth defendant did ask the second
defendant or the Board of Trustees of the Namibian Tuberculosis
Association Trust (of which as I have said ad nauseam he was a
member) why he was being made to sign banking documents respecting
another entity (the first defendant) and signing cheques and other
instruments in respect of the bank account of that entity for the
purpose of withdrawing and transferring moneys from that entity’s
bank account. I am firmly of the opinion that no such credible
evidence was placed before the court because the fourth defendant was
part of the second defendant’s grand intentional and unlawful
conduct to make fraudulent misrepresentation to the plaintiff, which
fraudulent misrepresentation has occasioned actual pecuniary loss to
the plaintiff. It follows that in my judgement the fourth defendant
fully associated himself with, and participated fully in, the
fraudulent misrepresentation. There was, doubtless, intentional
falsehood stamped unmistakably upon the whole conduct of the
defendants.

[23] I, of course, accept
the evidence that the plaintiff’s officials, particularly
Kipping, dealt with only the second defendant at all material times
but it is my firm view that this aspect does not, and cannot, in
virtue of my conclusion and reasoning above, assist the fourth
defendant at all. As a matter of law, there is not only one way,
(that is, personal contact) by which a person may make representation
to another person. Representation is by action or conduct and they
may take the form of personal oral contact or distant spoken words or
distant written words. That much Mr Kamanja appreciate and agrees. In
the instant proceeding, I find that the written words that were
endorsed and signed for by the fourth defendant appearing in the
aforementioned pages 3, 4 and 5 (and others) of the Bundle constitute
the fourth defendant’s representation to the plaintiff; and
they were made falsely and intentionally, as I have found previously.
Thus, the fourth defendant’s conduct, like the second
defendant’s conduct, is unlawful and culpable conduct which has
resulted in the plaintiff’s calculable pecuniary loss or
diminution in its patrimony which, like in the case of the second
defendant, was intended. It follows inevitably, therefore, that the
defendants are jointly liable for the aforementioned fraudulent
misrepresentation and the resultant pecuniary loss or diminution in
the plaintiff’s patrimony. As R H Christie writes, ‘It is
equally … clear that a fraudulent agent is personally liable
for his fraudulent misrepresentation ….’ (The Law of
Contract in South Africa 5 ed (2006) p 273).

[24] Accordingly, in sum,
I find that the second defendant and fourth defendant are jointly
liable for the fraudulent misrepresentation perpetrated against the
plaintiff and for the consequence of the actual loss suffered by the
plaintiff, as set out in the pleadings, which they intended. This
conclusion disposes of the fourth defendant’s special plea
outlined in paras (i), (ii), (iii), (iv), (vi) and (vii) thereof and
with which the second defendant makes common cause. I conclude that
the second and fourth defendants are fraudulent agents and are,
therefore, personally liable for their fraudulent misrepresentation.

[25] The reasoning and
conclusions in the preceeding para 24 relate to, and dispose of, the
submission by Mr Kamanja (and Mr Kaumbi took up the refrain) that
since Summons was not served on the first defendant the present
proceedings are a nullity; and refers the court to Knouwds NO v
Josea and Another 2007 (2) NR 792 for support. This argument is,
with respect, oversimplistic and fallacious on various grounds. For
example, neither Mr Kamanja nor Mr Kaumbi represents the first
defendant. Both counsel cannot, therefore, hold brief for the first
defendant. None of their clients is ‘the affected party’
(to borrow the language of Damaseb JP in Knouwds NO para 23).
But, more important, Knouwds NO concerns an application
brought ex parte. The ratio of that case is encapsulated in
the words which were stated to repel counsel’s argument that
‘all (that) the applicant(s) was required to do was to serve
the rule nisi only without the founding papers whose fruit the order
is ….’ Damaseb JP stated thus in para 18:

‘To
require only service of a court order on a respondent against whom
relief was obtained ex parte is, in my view, inherently unfair and
unjust.’

[26] Accordingly, in my
view, Knouwds NO is distinguishable from the present case in
those significant respects. In the instant case which concerns action
proceedings, four defendants are cited. The third is not before this
court in these proceedings as I have said more than once previously,
because, as Mr Mouton informed the court, judgment had already been
obtained against her. The second defendant and the fourth defendant
are being sued because they fraudulently misrepresented to the
plaintiff that they had the first defendant’s authority to act
in the way they did on behalf of the first defendant, and the
plaintiff has suffered pecuniary loss as a direct result. A
fortiori, the plaintiff made real efforts to serve papers on the
first defendant to no avail. It means an opportunity was given to the
first defendant to be heard, but it failed to take up that
opportunity. In those circumstances, the train of justice could leave
the station without the first defendant being on board. I am
supported in my decision by rule 40(3) of the rules of court. Thus,
there is no rule of law which says that a plaintiff cannot have his
or her claim in an action determined until and unless all the
defendants appear in court, including situations where genuine and
sufficient attempts to serve process on a particular defendant (in
the instant case the first defendant) have failed through no fault of
the plaintiff. In any case - and this is important – the point
now being argued from the Bar by Mr Kamanja and Mr Kaumbi has never
being the case of the second defendant or the fourth defendant in
their individual pleas, and I have concluded previously that the
defendants are fraudulent agents and they have appeared for the trial
which concerns their fraudulent misrepresentation.

[27] All these reasoning
and conclusions repel submissions by Mr Kamanja and Mr Kaumbi that
the plaintiff should have pursued the first defendant for
satisfaction of its claim. The submissions, with respect, have no
merit. It is as clear as day that the plaintiff has pursued the first
defendant by citing it in this action. In sum, as Mr Mouton submitted
– and correctly in my opinion – the first defendant has
been sued in its own name. The first defendant’s failure to act
upon the Summons cannot be placed at the door of the plaintiff, as
aforesaid; and that cannot deny the plaintiff its right of action and
its right to determination of its claim by this court in these
proceedings.

[28] I pass to consider
the fourth defendant’s last special plea on extinctive
prescription and which, in terms of the Pre-trial order (para (b)
(ii)), is also an issue of law to be determined by this court. The
plaintiff’s Summons, instituting the present action, was issued
by the registrar on 20 March 2007, and the Declaration thereto on 25
March 2009, as aforesaid. This means that the Summons interrupted the
running of extinctive prescription. But the matter does not end
there. Mr Kamanja’s submission – if I understood him well
– is that since the Declaration was issued on 25 March 2009 the
alternative claim (which appears in the Declaration) has prescribed
in terms of the Prescription Act 68 of 1969 and so, according to
counsel, ‘the time allowed to claim has passed.’ Counsel
finds support for his argument in Basfour 2482 (Pty) Ltd v
Atlantic Meat Market 2011 (1) NR 164 (HC).

[29] Mr Mouton’s
argument in the opposite direction is along these lines. There is
sufficient information in the simple Summons to the effect that the
plaintiff’s claim is for a debt or liquidated demand. I accept
Mr Mouton’s argument that the Declaration, which is required by
rule 20 of the rules of court in cases where only a simple Summons
has been issued, has not altered the claim of the plaintiff as set
out in the Summons. The claim remains a claim for a debt or
liquidated demand, that is, the plaintiff claims the repayment of
N$156 678,66, being the balance due and payable in respect of moneys
lent and advanced on overdraft account number 11000154964 (new number
013297000726) by the plaintiff to the defendants at the defendants’
special instance and request. Thus, I find that the simple Summons
requires a Declaration in the adjudication of the claim by the Court;
and in casu the Declaration merely clarifies and
particularizes the claim, including the alternative claim based on
fraudulent misrepresentation.

[30] It is not open to
dispute that the remedies available to an aggrieved party in the case
where he or she has been induced to enter into a contract on the
ground of fraudulent misrepresentation differs from a case where his
or her complaint is that the other party has failed to make good
warranty incorporated as a term of the contract. In the first case
the aggrieved party’s action is based on delict and he or she
chooses not to claim rescission of the contract; he or she may
content himself or herself with a claim for damages, the measure of
which is determined by the extent of the loss suffered by the
aggrieved party by reason of the falsity of the representation (Prima
Toy Holdings (Pty) Ltd v Rosenberg 1974 (2) SA 477 (C); Christie
op cit pp 271 – 272).

[31] Thus, it is well
recognized in our law that where by reason of the default of a party
to a contract a remedy sounding either in delict or ex contractu
accrues to the aggrieved party, the latter may choose whether to seek
redress on the basis of the contract or on the ground of delict. In
the present action the plaintiff’s alternative claim which is
clarified and particularized in the Declaration is on the ground of
delict based on fraudulent misrepresentation. I, therefore, accept Mr
Mouton’s submission that the particulars of the alternative
claim in the Declaration form the basis – in the alternative –
on which the demand was made as set out in the Summons. The
Declaration, without which the Summons would not see the light of day
in the court, does not, therefore, in my view, in this proceeding
alter the plaintiff’s claim clearly set out in the Summons, and
therefore his right of action. I find, therefore, that the claim for
debt or liquidated demand in the Summons is clarified and
particularized in the Declaration. Thus, as to the alternative claim
in the Declaration; what the Declaration does thereanent is to
clarify and particularize the basis upon which the claim formulated
in general terms in the Summons is based, that is, in delict, as the
alternative claim. I am of the view, therefore, that the Declaration
does not introduce a new or different cause of action, considering
the conclusion I have drawn above upon reliance on Prima Holdings
(Pty) Lt v Rosenberg.

[32] Accordingly, I
conclude that the Declaration does not raise a new cause of action
from that which is set out in the Summons. A priori, the
Declaration does not whittle away the plaintiff’s right of
action initiated in the simple Summons in general terms. In the
Declaration where it particularizes the basis of the action the
plaintiff chooses to claim in the alternative, too, on the basis of
delict because it was induced to enter into the contract on the
ground of fraudulent misrepresentation. These reasons impel me to the
conclusion that the Summons, which was issued before extinctive
prescription had run out, must perforce go together with the
Declaration, and if that is so, then it cannot seriously be argued
that the alternative claim in the Declaration has prescribed: the
Summons and the Declaration are not severable in the circumstances of
this case and in terms of the rules of court, as I have shown
previously.

[33] For these reasons I
hold firmly that the defendants’ special plea based on
extinctive prescription also fails.

[34] From the totality of
the evidence and based on the aforegoing reasoning and conclusions I
come to the reasonable conclusion that the plaintiff has proved the
alternative claim and the defendants have not established any
credible and acceptable facts that beget their defence. Accordingly,
judgment is for the plaintiff with costs on the alternative claim.
That being the case, I see no good reason to consider the main claim,
too.

[35] As to the amount of
the claim; I accept Mr Mouton’s submission that the amount lent
and advanced, as aforesaid, was N$115 000,42; however, with compound
interest added to it since it was an unsecured debt, the amount came
to stand at N$156 678,66 as indicated in the Summons and, it is based
on, and arises from, para 2 of the NEDBANK Cheque Account Opening
Form (Annexure ‘A’ to the plaintiff’s Declaration).

[36] I now proceed to
consider the issue of costs. Not content with causing pecuniary loss
to the plaintiff on the basis of fraudulent misrepresentation the
second defendant and the fourth defendant have put the plaintiff to
expense in legal costs in order to defeat the defence of the
defendants which can only be characterized as frivolous and
vexatious. Upon the authorities (eg Willem Adrian van Rhyn N.O v
Namibia Motor Sports Federation and Others Case No. A 36/2006
(unreported) where the authorities are gathered; Namibia Grape
Growers and Exporters v Ministry of Mines and Energy 2004 NR 194
(SC)), I am of the opinion that this is truly a proper case where the
defendants ought to be mulcted in special costs. But I have
restrained myself from making such costs order on account of the fact
such that scale of costs is not claimed by the plaintiff.

[37] For all the
aforegoing reasons, I make the following order:

1. 
   The special pleas raised
   by the defendants are dismissed.

   
   

2. 
   Judgment for the
   plaintiff in the amount of N$156 678,66, plus simple interest on
   that amount at the rate of 20 per cent per annum calculated from 16
   October 2006 until date of full and final payment to the plaintiff
   by the second defendant and the fourth defendant jointly and
   severally; the one paying , the other to be absolved.

   
   

3. 
   The second defendant and fourth
   defendant must pay the plaintiff’s costs, jointly and
   severally; the one paying, the other to be absolved on the scale as
   between party and party, and the costs include such costs as are
   occasioned by the employment of one instructing counsel and one
   instructed counsel.

   
   

----------------------------

C Parker

Acting Judge

APPEARANCES

PLAINTIFF: C Mouton

Instructed by P F Koep &
Partners, Windhoek

SECOND DEFENDANT: J R
Kaumbi

Of Kaumbi-Shikale Inc., Windhoek

FOURTH DEFENDANT: A E J Kamanja

Of Sisa Namandje & Co. Inc.,
Windhoek