CASE NO: I 2239/09

IN THE HIGH COURT OF NAMIBIA

In the matter between:

NAMIBIA FINANCIAL INSTITUTIONS

and

Delivered on:        	26 October 2010

[1 ]     This is an application for Rescission of Judgment.

[2] The respondent, Mr. Rainer Ritter, was the Chief Executive officer of the Namibia Financial Institutions Supervisory Services Authority (hereinafter referred to as NAMFISA).

[3] On 10 March 2009 the board of Namfisa suspended Mr. Ritter and notified him that it will institute a disciplinary enquiry against him. The board alleged that he committed various acts of misconduct. The enquiry was set down from 11 to 15 May 2009. On 11 May 2009 the disciplinary enquiry commenced. The next day the lawyers of Mr. Ritter, represented by Adv. Smuts, SC, on the instructions of Kirsten & Company, approached the lawyers of Namfisa represented by Adv. Narib on the instructions of Muluti & Partners with a view to negotiate a settlement. A settlement proposal was made to the lawyers of Namfisa. They in turn communicated that to the board. The board discussed the proposal and rejected it and made a counterproposal. The next day the hearing contuined and the first witness was called to testify. He gave detailed evidence and was also cross-examined at length. That afternoon the lawyers of Mr. Ritter informed the lawyers of Namfisa that their client has accepted the counter offer. Mr. Narib then contacted the board and informed them accordingly. The board convened to discuss same and according to Mr. Ritter and Adv. Smuts, SC, a settlement was reached. That evening Adv. Smuts, SC, phoned Adv. Narib to confirm that a settlement was reached and according to Smuts, SC, Adv. Narib confirmed same.

"The Defendant breached the terms of the settlement agreement on 31 May 2009 by failing to make such payment and furthermore and in any event repudiated such contract by exhibiting a deliberate and unequivocal intention no longer to be bound by it".

[5] Namfisa, represented by Ueitele & Hans Legal Practitioners, filed a notice of intention to defend the action. Mr. Ritter then filed an application for summary judgment. The application was not opposed timeously and summary judgment was granted in his favour. Mr. Uietele then filed an application for rescission of judgment and it was opposed by Mr. Ritter.

[6] When the matter came before me on 18 January 2010, it was to hear arguments on the application for rescission of the summary judgment. Adv. Theo Frank, SC, and Dicks appeared on behalf of Mr. Ritter and Mr. Ueitele on behalf of Namfisa.

Firstly, he objected to the filing of two further affidavits of Lily Brandt (the then acting CEO of NAMFISA) on behalf of Namfisa dated 14 January and 22 February 2010 respectively. Secondly, he also objected to the handing up of Annexure ("SF1") Round Robin Resolution passed by the board of Namfisa). The basis of the objection was that the affidavits and "SF1" were filed out of sequence and out of time and no application was filed to ask the permission of the Court to file them and no condonation application was filed. He referred this Court to the case of Otjozondjupa Regional Council v Dr. Nghifindaka and 2 Others (Case No. LC 1/2009) delivered on 22 July 2009) where Muller J held (at 7-8) that:

(James Brown & Hamez (Pty) Ltd v Simmons No. 1963 (4) 656 (A) of 660

[8] Mr. Ueitele submitted that the respondent should have brought a Rule 30 application (irregular proceedings) instead of raising objections from the bar. I do not agree with that submission. Rule 30(1) says that a party to a cause in which an irregular step or proceeding has been taken by any other party 'may' apply to Court to set aside the step or proceeding. Rule 30(1) does not impose a peremptory duty on the applicant to bring such an application. It was open to the applicant to raise the objection against the filing of those affidavits without filing a Rule 30 application.

[9] It is common cause that those affidavits were additional (fourth/fifth affidavits) and no permission was sought in advance from the Court to file those affidavits. No explanation was given as to why those affidavits were filed in the first place and no application for condonation for the late filing thereof was made. Rules are there for the smooth functioning of the courts.

[10] As far as the "SF1" is concerned (Round Robin Resolutions authorising Namfisa to rescend the judgment), there was no affidavit in support of annexure "SF1" and it was filed annexed to a filing notice.

[11] Thirdly, Mr. Frank, SC submitted that it is trite that a legal person can only initiate applications through its duly authorized officials. If the official lacks authority, the application should be dismissed with costs.

Mr. Ueitele in his affidavit in support of the rescission application merely states that he is authorized to depose to the affidavit (which is irrelevant) and does not state that he is authorized to institute and prosecute the rescission proceedings. His reference to annexure "SF1" cannot avail him in the light of the statement that he is duly authorized to depose to the affidavits. In any event I have ruled that "SF1" is not before court. Mr. Ueitele further argued that he has authority to institute the rescission application by virtue of the special power of attorney given to him by Ms. Lily Brand, acting on behalf of NAMFISA. The special power of attorney gives Mr.
Ueitele the power 	 'to defend and if necessary counter claim (including any

[12] Mr. Frank further submitted that Mr. Kukuri does not state in his affidavit that he is authorized to institute and prosecute the rescission proceedings. His statement that he is 'duly authorized and able to depose to this affidavit on behalf of the respondent is irrelevant because it does not establish authority. The resolution "DEF1" which Mr. Kukuri referred to is also irrelevant and does not cure the defect. That resolution authorizes the opposition to the summary judgment and not the application for rescission of judgment.

the Court stated that: 	"In the founding affidavit filed on behalf of the respondent

[13] In the result, I come to the conclusion that both Messrs. Ueitele and Kukuri were not duly authorized by NAMFISA to institute and prosecute the rescission application.

[14] It is therefore unnecessary to deal with the merits of the application for rescission of judgment.

In my respectful view, I do not think that the issues in this matter were complex to warrant the instruction of two instructed counsel and one instructing counsel.
In the result I make the following orders:
1.	
2.	The applicant is ordered to pay the costs of the respondent including costs occasioned by the employment of one instructing and one instructed counsel.

NDAUENDAPO, J

ON BEHALF OF APPLICANT:			Mr. Frank SC & Mr. Dicks

Instructed by:					Kirsten & Co

ON BEHALF OF RESPONDENTS:			Mr. Ueitele

Instructed by:					Ueitele & Hans Legal Practitioners