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CASE NO: A 244/2009

SPECIAL INTEREST

IN THE HIGH COURT OF NAMIBIA

In the matter between:

AUGUST MALETZKY FIRST APPLICANT

RAYNOLD JOSEPH GOLIATH SECOND APPLICANT

and

MARK FREER FIRST RESPONDENT

NAMIBIA QUARRIES (PTY) LTD SECOND RESPONDENT

MINISTER OF MINES AND ENERGY THIRD RESPONDENT

CORAM: HOFF, J

Heard on: 2010.07.19

Delivered on: 2010.08.06

JUDGMENT

HOFF, J: [1] The applicants approached this Court by way of an urgent ex parte application in which certain relief was sought against all three respondents. An original notice of motion was filed with the Registrar on 17 July 2009. The ex parte application was heard on 21 July 2009 and the following order was made (unedited):

“IT IS ORDERED

As against the First Respondent

1. That the applicant’s non-compliance with the forms and services as contemplated for the Rules of the High is condoned in respect of the First Respondent and that the Applicant is authorized to bring this application on an urgent basis as contemplated in Rule 6 (12) of the Rules of the above Honourable Court in respect of the said Respondent.

2. That a Rule Nisi do hereby issue calling upon First Respondent to show cause, is any, on Friday the 28^th of August 2009 at 10h00 why an order in the following terms should not be granted:

2.1 That the 1^st Respondent is ordered to vacate the farm KOMPANENO NO. 104, REGISTRATION “C”, ERONGO REGION, DEED OF TRANSFER NO: T 3025/2008;

3. That the 1^st Respondent is ordered and restrained from returning to the said farm.

4. That the Erongo Regional Commander of the Namibian Police or any police officer acting on his instructions is directed to comply with the orders set out above.

5. That 1^st Respondent pays the Applicants costs, limited to disbursements.

6. That paragraphs 2.1, 3 and 4 above shall operate as an interim interdict with immediate effect pending the outcome of this application.

7. As against the Second and Third Respondents the application is dismissed.”

2. On 28 August 2009 the matter was postponed sine die. On 14 September 2009 first respondent’s legal practitioner applied for a trial date and on 22 October 2009 a notice of set down was filed in which the trial date was indicated as 18 January 2010.

[3] In the interim on 25 August 2009 the second respondent and Annu Investments (Pty) Ltd filed a counter-application and in response hereto the applicants filed a notice of motion dated 8 January 2010 in terms of which relief as envisaged by Rule 30 was sought.

[4] On 18 January 2010 by agreement between the parties the counter application was removed from the roll and the Court dismissed the notice of motion filed on 8 January 2010.

The ex parte application was not dealt with and on 22 January 2010 the legal practitioners of the first respondent applied for a trial date. The matter was subsequently set down for hearing on 19 July 2010. The counter-application is not before Court today. This present application relates only to the first respondent qua respondent.

The first and second applicants appeared in person. Mr Denk appeared on behalf of the first respondent.

[5] On 25 August 2009 first respondent delivered an answering affidavit. The applicants did not file replying affidavits.

[6] First respondent in his answering affidavit stated that the applicant’s application was never served upon him and referred to the return of non-service by the deputy-sheriff attached to his answering affidavit. First respondent further stated that the Court order was also not served on him. He averred that he came to know about the court order when a newspaper reported contacted one Mark Hoffman (who deposed to the founding affidavit in the counter application on behalf of the second respondent) shortly after the order was delivered since he (the newspaper reporter) wanted to write an article about the matter. He then informed his legal practitioners of record and on 29 July 2009 they received a fax directed to the Mining Commissioner of the third respondent’s Ministry and copy to Mark Hoffmann, director of Namibia Quarries, presumably from the two applicants, with the court order attached.

[7] Four points in limine were raised on behalf of first respondent namely, firstly, the issue of non-service, secondly, first applicant’s lack of locus standi, thirdly, failure to make full disclosure of all material facts, and fourthly, the issue of non-joinder.

First point in limine (non-service)

[8] The second applicant in his founding statement stated that the application was duly served on the respondents contrary to the averment by the first respondent that the ex parte application was not served on him and the return of service indicating non-service. Applicants did not reply to this issue of non-service and there is no proof to support second applicant’s bold statement that the ex parte application had been served on the first respondent. The statement by first respondent that the Court order has also not been served on him stand uncontested. It is clear from first respondent’s answering affidavit that he became aware of the ex parte application in a fortuitous manner whereupon he delivered an answering affidavit.

[9] In Knouwds N O v Josea and Another 2007 (2) NR 792 Damaseb JP said the following at 798 E in respect of the consequences of non-service:

“If short service is fatal, a fortiori, non-service cannot be otherwise. Where there is complete failure of service it matters not that, regardless, the affected party somehow became aware of the legal process against it, entered appearance and is represented in the proceedings. A proceeding which has taken place without service is a nullity and it is not competent for a court to condone it.”

[10] The proceedings vis-a-vis the first respondent was thus a nullity. If this is accepted then the resultant rule nisi is nullity as well.

The fact that the Deputy Sheriff on his return of non-service mentioned that he was informed by the first respondent that first respondent was in Omaruru and would return to Windhoek on the Monday morning did not transform non-service into a valid service in term of the Rules of this Court.

[11] The first point in limine is therefore upheld and the rule nisi stands to be discharged.

Second point in limine: First applicant’s locus standi:

[12] An agreement with the title “Cession of Claim or Right of Action” signed between Esme Avril Goliath (cedent) and August Maletzky (cessionary) on 20 April 2006 reads inter alia as follows:

“Whereas the cedent is the title deed holder of Farm Kompaneno No: 14, Registration Division “C” Erongo Region, Deed of Transfer T 3025/2008 (hereinafter referred to as “the said property”). And whereas the cedent has donated to the cessionary 20% of the cedent’s right, title and interest in and to said property.

NOW THEREFORE IS AGREED AS FOLLOWS:

1. Cession

In executions of the abovementioned contract of donation the cedent hereby cedes, transfers and makes over to the cessionary 20% of cedent’s right, title and interest in and to the said property.

2. Authority

…

3. Warranty and liability for damage

…

4. Acceptance

The cessionary hereby accepts the said cession upon and subject to the terms and conditions of this agreement.”

[13] It is common cause that in terms of the Deed of Transfer T3025/2008 signed by the parties on 12 June 2008 that Esme Avril Goliath married out of community of property was the registered and sole owner of Farm Kompaneno.

[14] From the aforementioned it is clear that at the time of the conclusion of the cession agreement the cedent was not the owner of Farm Kompaneno.

[15] In First National Bank of SA Ltd v Lynn N O and Others [1995] ZASCA 158; 1996 (2) SA 339 (A) Joubert JA said the following regarding the object of cession at 345 F – H;

“Cession is a particular method of transferring rights in a movable incorporeal thing in the same manner in which delivery (traditio) transfers rights in a movable corporeal thing. It is in substance an act of transfer (‘oordragshandeling’) by means of which the transfer of a right (translatio juris) from the cedent to the cessionary is achieved. The transfer is accompanied by means of an agreement of transfer (‘oordragsooreenkoms’) between the cedent and the cessionary arising out of a justa causa from which the former’s intention to transfer the right (animus transferendi) and the latter’s intention to become the holder of the right (animus acquirendi) appears or can be inferred. It is an agreement to divest the cedent of the right and to vest it in the cessionary. Moreover, the agreement of transfer can coincide with, or be preceded by, a justa causa which can be an obligatory agreement, also called an obligationary agreement (‘verintenisskeppende ooreenkoms’) such as a contract of sale, exchange or donation.”

[16] The nemo plus juris ad alium transferre potest, quam ipse haberet rule applies to a cession. This means that no one can transfer to another a greater right than he has himself. Applying this rule to the present issue, means that the cedent (Ms Goliath) cannot transfer more rights to the cessionary (Mr Maletzky) than she had herself, or put differently the cedent must have been the holder of the right in order to transfer it to the cessionary.

(See Glatthaar v Hussein 1912 TPD 322; Creeser v Smit 1948 (4) SA 307 (T); Cullinan v Noordkaaplandse Aartappelmoerkwekers Koöperasie Bpk 1972 (1) SA 761 (A) ).

[17] Ms Goliath was not the registered owner of Farm Kompaneno on 20 April 2006 and could thus not have ceded any right, title and interest in the said property.

[18] This purported cession agreement is not only ab initio nullity and unenforceable but fraudulent as well. The first applicant therefore had no locus standi to bring this application. The second point in limine must accordingly succeed.

Third point in limine: Failure to make full disclosure of all material facts

[19] The applicants brought an ex parte application seeking interdictory relief against first and second respondents. It is trite law that an applicant in an ex parte application is obliged to make full disclosure of all material facts that might affect the granting or refusal of an order ex parte and must act bona fide.

[20] The non-disclosure or misstatements or suppression of facts need to be willful or mala fide to incur the penalty of rescission.

[21] In Trakman N O v Livshitz and Others 1995 (1) SA 282 AD at 288 E Smalberger JA stated the position as follows:

“It is trite law that in ex parte application the utmost good faith must be observed by an applicant. A failure to disclose fully and fairly all material facts known to him (or her) may lead, in the exercise of the Court’s discretion, to the dismissal of the application on that ground alone.”

See also Schlesinger v Schlesinger 1979 (4) SA 342 (WLD) AT 348 e – 350 b; Hall and Another v Heyns and Others 1991 (1) SA 381 (CPD) at 397 B – C.

[22] A Court will obviously in the exercising of its discretion take into account any explanation for non-disclosure.

In Cometal-Mometal SARL v Corlana Enterprises (Pty) Ltd 1981 (2) SA 412 WLD at 414 G – H the following was said in this regard:

“It seems to me that, among the factors which the Court will take into account in the exercise of its discretion to grant or deny relief to a litigant who has breached the uberrima fides rule, are the extent to which the rule has been breached, the reasons for non-disclosure, the extent to which the Court might have been influenced by proper disclosure in the ex parte application, the consequences, from the point of doing justice between the parties, of denying relief to the applicant on the ex parte order, and the interests of innocent third parties, such as minor children for whom protection was sought in the ex parte application.”

(See also Ex Parte Madikiza et uxor 1995 (4) SA 433 TSC at 437 A).

[23] The first respondent is his answering affidavit referred to the following non-disclosures:

(a) first applicant failed to disclose that he did not have locus standi to launch this application but relief on a purported invalid cession agreement in an attempt to mislead this Court;

(b) second applicant failed to disclose the long history he had of misrepresenting himself as the registered owner of Farm Kompaneno;

(c) second applicant failed to disclose that there was a valid land owner’s agreement between Namibia Quarries and the bona fide owner of Farm Kompaneno;

(d) second applicant failed to disclose that he unlawfully and intentionally interfered with the operations of Namibia Quarries and it’s contractors on Farm Kompaneno and impounded the equipment, machinery and quarried granite blocks belonging to Namibia Quarries (Pty) Ltd and Annu Investments;

(e) second applicant failed to disclose that he unlawfully and intentionally refused Namibia Quarries and the various contractors it used lawful access to Farm Kompaneno;

(f) second applicant failed to disclose that he refused to obey the order made by the Mining Ancillary Rights Commission on 12 May 2009;

(g) second applicant failed to disclose that he received money from one of the business partners of Namibia Quarries to allow the removal of dimension stone from Farm Kompaneno, even though he was never the lawful owner of the farm;

(h) the applicants failed to disclose that their application was not served on Namibia Quarries and himself and has in fact mislead this Court into believing that such service was carried out.

[24] I have already dealt with paragraph (a) (supra).

[25] In respect of paragraph (b) it is clear from the annexures attached to the answering affidavit that this was indeed the case.

[26] Regarding paragraph (c) the second applicant stated in his founding affidavit that the landowners agreement between the previous owners of the farm and Namibia Quarries had been terminated and the need arose for subsequent agreements. It is clear from a perusal of the papers that this unsubstantiated statement by the second applicant formed the basis of the dispute between the second respondent and the respondents. It is however not true that the landowners (Mr and Ms Griebel) had been terminated as alleged by the second respondent. This landowner’s agreement bound the successors-in-title. Mrs Goliath being the successor in-title has not terminated this agreement.

[27] Regarding paragraph (d) the first respondent stated in his answering affidavit that during June 2009 second applicant, despite an order from Mining Ancillary Rights Commission, refused him access to the quarry by unlawfully locking the access gates to Farm Kompaneno and erected an iron pole. The assistance of the Police had to be called in and the barrier (iron pole) was removed. This is not denied by the second applicant who in his founding affidavit stated that on 8 June 2009 he, on demand by the respondents, departed from Windhoek to the farm with the view to give respondents access in terms of the order they obtained from the “Ministry of Mines”. It is significant that this order was signed on 12^th May 2009.

[28] In terms of the other paragraphs referred to supra there is no evidence gainsaying these statements of fact.

The information set out supra had it been disclosed to this Court in the ex parte application would have had a material effect on the decision made by this Court in considering whether or not to grant the interdictory relief.

Fourth point in limine: Non-joinder

[29] It is common cause that none of the applicants is the owner of the Farm Kompaneno and that applicants’ claim is of a vindicatory nature.

[30] The owner of the farm is Ms Esme Avril Goliath and it is not disputed that she is married out of community of property.

Ms Golitah therefore has a direct and substantial interest in the subject-matter of the ex parte application and thus a necessary party to these proceedings.

[31] Applicants should have joined Ms Goliath as an interested party in these proceedings. They failed to do so. This non-joinder is in my view a fatal irregularity.

[32] In the event the points in limine should succeed with costs and in view of this it is not necessary for this Court to consider the merits of the application.

[33] This Court is of the view having regard to the findings afore-mentioned, that the prosecution of this application was, presented, and in particular the way in which first applicant misled this Court regarding his locus standi, is an abuse of process and warrants a special cost order.

[34] In the result the following order is made:

1. This application is dismissed with costs on an attorney-own client scale.

_________

HOFF, J

ON BEHALF OF THE 1^ST AND 2^ND APPLICANTS: IN PERSON

Instructed by:

ON BEHALF OF THE 1^ST AND 2^ND RESPONDENTS: ADV. DENK

Instructed by: STEPHEN F KENNY LEGAL PRACTITIONERS

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