CASE NO.: I 1312/2010
SPECIAL INTEREST

In the matter between:

and

In re: Application for Intervention:

and

CORAM:   HOFF, J

JUDGMENT

[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;
2)	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;
3)	that the applicant for intervention files his replying affidavit within 5 days from receipt of the opposing affidavit;
4)	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".

[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 

[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.

[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)