CASE NO.:A 164/2010

IN THE HIGH COURT OF NAMIBIA

CECILIE NDJOZE 							FIRST APPLICANT

MENASON MARENGA						SECOND APPLICANT

and

ADELHEID KAHEE (born HUAMBI)					RESPONDENT

CORAM:     UNENGU, AJ
Heard on: 01 February 2011 Delivered:    10 February 2011

RULING

"1. Setting aside the sale of the dwelling situated at Erf 6611, Traugoth Handura Street, Katutura, Windhoek by Cecilie Ndjoze to Menason Marenga and Rebekka Marenga.
2. Declaring the transfer of ownership of the dwelling to Menason Marenga and Rebekka Marenga to be of no legal effect.
3. Directing the parties opposing this Application to pay the cost of this Application.
4. Further/or alternative relief."

[4] Mr Mbaeva, after exchanging correspondence with the legal practitioner of the Respondents, decided to withdraw the Rule 15(2) application but lodged Rule 15(3) instead. That application served before Parker, J on 13 August 2010 who declared the Rule 15(2) Notice to have constituted an irregular step or proceeding as envisaged in Rule 30 of the High Court of Namibia. Judge Parker also set aside the said notice and ordered Mbaeva & Associates to pay the costs of that application on party and party scale, including one instructing counsel. This step, however, did not deter Mr Mbaeva from lodging another application in terms of Rule 15(3). In this present application, he applied in his capacity as the Legal Representative for the deceased Applicant to be substituted for the deceased. Defendants/Respondents once again are bringing an application in terms of Rule 30 for an order to declare Mr Mbaeva's Notice in terms of Rule 15(3) to constitute an irregular step or proceeding, setting aside the said Notice and to order Mbaeva & Associates to pay the costs of the application on an attorney and own client scale, including the costs of one instructing counsel.

[5] Mr Mbaeva is opposing the Rule 30 application and it came before me for hearing. Both counsel submitted Heads of Argument which they amplified with oral arguments in support of their case.

[6] The borne of contention between the parties in this application is whether or not Mr Mbaeva who acted as a legal practitioner of the late Adelheid Kahee, still has the mandate to act as such after the said Adelheid Kahee had passed away on 15 June 2010. Further, as whether Mr Mbaeva in his capacity as the late Adelheid Kahee's lawyer has authority to bring this application in terms of Rule 15(3) before Court to be substituted for the deceased.

[9] He argued further that the application of Applicants in terms of Rule 30 is misplaced and irrelevant. According to him, the Rule 30 application brought against him by Applicants does not request the court to set aside the substitution for the deceased by him, but merely requests the court to set aside the Rule 15(3) notice which he filed. In view of what I have said above, this submission is irrelevant and does not need further discussion. Mr Mbaeva was never substituted for the deceased. I have already indicated that he did not have any administrative appointment authorising him as an executor of the estate of the deceased or as one having an authority under similar legal representative.

[10] The other issue which was argued before me is the point raised by counsel for the Applicant that Mr Mbaeva's mandate to act as the legal representative for the deceased terminated on 15 June 2010, the day when she passed away. According to counsel, only the executor of the estate would have the power to bring this application to be substituted for the deceased. She said that the Power of Attorney granted to Mr Mbaeva by the deceased when she was still alive, did not expand beyond her death. The only person then who can give instruction to an attorney hereafter, is the executor.

[11] With regard to termination of mandate upon death of instructing party, Ms Van der Merwe referred the Court to the following authorities:

33 where he, while dealing with an application in terms of Rule 30 has this to say:
"A defendant must file a notice to defend within 10 days, but if the person acting for the defendant has no authority to do so, the "Notice of intention to defend" although filed within 10 days, remains a nullity and no further step taken by any party can cure the nullity."

With this argument Ms Van der Merwe was making a point that the step or proceeding taken by Mr Mbaeva in terms of Rule 15(3) is a nullity due to lack of authority.

[13] I have already dealt with Mr Mbaeva's submissions. Therefore, no longer necessary to deal with them again. Suffice to say that I agree with the submission by Ms Van der Merwe acting on behalf of the Respondents. Mr Mbaeva or family members of the deceased were supposed to approach the Magistrate of the district, wherein the deceased died to obtain a letter of administration of her estate. The deceased died intestate and as Mr Mbaeva indicated in his submissions, that the estate has a zero balance. In my view, a letter from the Magistrate's court appointing someone to handle the estate could have been the right step to follow.
[14] As a legal practitioner, Mr Mbaeva must have known that his mandate to act as a legal practitioner for the deceased terminated on 15 June 2010, the day the deceased passed away. Therefore, for him to take any further step or proceeding in connection with the matter is irregular due to lack of authority to take such step or proceeding.

[15] Consequently Applicants/Defendants succeed in their application in terms of Rule 30.

[16] Applicants/Defendants requested costs to be awarded against Mr Mbaeva of Mbaeva & Associates on an attorney and own client scale, including costs of one instructing and one instructed counsel. The reason being that the estate does not have any assets according to Mr Mbaeva himself.

[17]   In the result I make the following orders:

a)	that the notice in terms of Rule 15(3) dated 04 August 2010 filed by Mbaeva & Associates and served on the Applicants on 12 August 2010 is hereby declared to constitute an irregular step or proceeding as envisaged in Rule 30 of the Rules of this Honourable Court.
b)	that the said notice is set aside.

UNENGU, AJ