CASE
NO.: I 1312/2010
SPECIAL
INTEREST
IN
THE
HIGH COURT OF NAMIBIA
In
the matter between:
DEVELOPMENT
BANK OF NAMIBIA LTD
…...........................PLAINTIFF/APPLICANT
and
MC
BOUERS CC
…..................................................1ST
DEFENDANT/RESPONDENT
MARK
COLLIN MARTIN
….......................................2ND
DEFENDANT/RESPONDENT
ELIZE
DELPHINE MARTIN
…..................................3RD
DEFENDANT/RESPONDENT
In
re: Application for Intervention:
HEWAT
BEUKES
…...............................................................................APPLICANT
and
DEVELOPMENT
BANK OF NAMIBIA LTD
….........................................RESPONDENT
CORAM:
HOFF, J
Heard
on: 23
November 2010
Delivered
on: 23
November 2010
Reasons
on: 28
January 2011
JUDGMENT
HOFF,
J:
[1]
This is an application launched in terms of Rule 12 of the Rules of
this Court in which the applicant, Mr Hewat Beukes, sought to
intervene as a defendant in a summary judgment application.
[2]
On 25 May 2010 plaintiff issued summons against the defendants for
the payment in the amount of N$433 459.62 in respect of a loan
agreement.
[3]
On 14 June 2010 all three defendants gave notice of their intention
to defend the action. On 25 June 2010 plaintiff launched an
application for summary judgment against all defendants. This summary
judgment application was set down for 16 July 2010. On 14 July 2010
the defendants gave plaintiff notice of their intention to oppose the
summary judgment application and an opposing affidavit deposed to by
second defendant was filed in support thereof. On 16 July 2010 the
application for summary judgment was postponed to 20 July 2010 to be
argued with heads of argument.
On
19 July 2010 the applicant, Mr Hewat Beukes, filed a notice of an
application to intervene in terms of the provisions of Rule 12 of the
Rules of this Court. In this notice it was stated that leave to
intervene would be applied for at the hearing which was set down for
20 July 2010.
[4]
On 20 July 2010 the court made the following orders:
(1)
that the matter is postponed to a date to be arranged with the
Registrar;
that
plaintiff files within 7 days a notice of opposition as well as an
affidavit in support of its opposition in respect of the application
to intervene;
that
the applicant for intervention files his replying affidavit within 5
days from receipt of the opposing affidavit;
that
the applicant for intervention pays half of the days fees of
plaintiff.
[5]
Plaintiff subsequently filed its notice of opposition and answering
affidavit. Plaintiff also applied for a date for hearing the
application to intervene whereafter 23 November 2010 was allocated
and the matter was set down accordingly.
[6]
On 23 November 2010 the applicant was absent. Ms B van der Merwe,
counsel appearing on behalf of the respondent in the intervention
application, provided this Court with a notice of withdrawal dated 11
November 2010 in which applicant gave notice of the withdrawal of his
application to intervene.
[7]
This Court was also provided with a letter dated 15 November 2010 and
addressed to the applicant in which it was stated that his notice of
withdrawal was irregular in that he has not tendered wasted costs
occasioned by his withdrawal. Applicant was asked to amend his notice
of withdrawal accordingly failing which plaintiff would apply to
Court for the necessary relief. Applicant ignored this letter.
[8]
Rule 42 (1)(a) governs the withdrawal of proceedings and reads as
follows:
"A person
instituting any proceedings may at any time before the matter has
been set down and thereafter by consent of the parties or leave of
the court withdraw such proceedings, in any of which events he or she
shall deliver a notice of withdrawal and may embody in such notice a
consent to pay costs, and the taxing master shall tax such costs on
the request of the other party".
[9]
An affidavit filed in support of his application to intervene was
signed on 19 July 2010 in which it was alleged by Mr Beukes that he
is a member of the first applicant without attaching any documentary
proof in support of that contention. In response to the denial of
such membership by the plaintiff a document in terms of the Close
Corporation Act 26 of 1988 with the heading "Amended
Founding Affidavit" was
filed. This documents reflects Mr Beukes as member of a close
corporation "MC
Bouers CO" and
the date of commencement of change of membership as 20 July 2010 i.e.
a day after his founding affidavit was filed. Summons was issued on 5
May 2010 and an application for summary judgment was launched on 25
June 2010. On both these dates Mr Beukes was not a member of first
defendant. It is further significant that the change of membership
has resulted in the third defendant being excluded as a member of the
close corporation. I am of the view that this is a manipulative
manoeuvre and an abuse of process.
[10]
An applicant in an application to intervene must satisfy the Court
that:
"(a) he has a
direct and substantial interest in the subject matter of the
litigation which could be prejudiced by the judgment of the Court;
and
(b)
the application is made seriously and is not frivolous and that the
allegation made by the applicant constitute a prima
facie case
or defence".
[11]
See Minister
of Local Government and Land Tenure and Another v Sizwe Development
and Others; In
re Sizwe
Development v Flagstaf Municipality 1991 (1) SA 677 (TK).
[12]
Furthermore Levy AJ in Yam
Diamond Recovery (Pty) Ltd In re Hofmeister v Basson & Others
1999 NR 206 stated
that an applicant can only intervene as a defendant in an action
where such applicant for some reason is in law liable as a defendant.
[13]
It is further trite law that an applicant must make out his case in
his founding affidavit.
[14]
The applicant's case is that should plaintiff be successful in the
summary judgment application applicant will be vicariously liable and
will have to pay part of the costs and financial relief granted.
Vicarious liability is a delictual principle and has no application
in the present matter. Applicant further stated that he has
significant financial interests in first defendant in that he
invested unsatisfied finances and services therein. No proof is
provided.
Applicant
further makes a sweeping statement that he has claims against
plaintiff since he suffered patrimonial losses and damages such as
the loss of income and profits on a brick making project, which was
brought to a standstill by plaintiff due to the unlawful seizure of a
payment due to the partnership and plaintiff's refusal to release
such monies. Again no further details or proof is provided.
[15]
The applicant can never be liable to the plaintiff for anything.
First defendant is a legal person distinct from its members. There is
presently no claim against the applicant. Applicant has for the
reasons mentioned supra
not
been a member of first defendant. Applicant has no locus
standi in judicio in
these proceedings.
[16]
In the result the applicant's application for leave to intervene was
dismissed with costs, which costs included the costs of one
instructing and one instructed counsel.
HOFF, J
ON
BEHALF OF THE APPLICANT: MR HEWAT BEUKES
(APPLICATION TO
INTERVENE)
Instructed
by: IN
PERSON
ON
BEHALF OF THE RESPONDENT:
ADV.
VAN DER MERWE
Instructed
by: ENGLING,
STRITTER & PARTNERS
Development Bank Namibia Ltd v MC Bouer CC and Others (I 1312/2010) [2011] NAHC 12 (28 January 2011);