CASE NO.: I 4085/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

and

RULING ON APPLICATION FOR SUMMARY JUDGMENT

"CLAIM 1

1. Payment in the amount N$117, 879, 000.00.
2. Interest on the amount of N$117, 879, 000.00 at the rate of 20% per annum from February 1998 to date of payment.
3. Costs of suit.

1. Payment in the amount of N$70 million.
2. Interest on the amount of N$70 million at the rate of 20% per annum from February 1998 to date of payment.
3. Costs of suit.
4. Further and and/or alternative relief'

[3] The parties to the action are identified in the particulars of claim as follows:
1. "The First Plaintiff is Didhard Muduni Mparo a former member of Gold Field Namibia Provident Fund, residing at Erf 3239, Goreangab, Katutura, Windhoek.
2. The Second Plaintiff is Frans Kafula a former member of Gold Field Namibia Provident Fund, residing at Erf 3239, Goreangab, Katutura, Windhoek.
3. The Third Plaintiff is Silvester Haingura a former member of Gold Field Namibia Provident Fund, residing at Erf 3230, Goreangab, Katutura, Windhoek.
4. The Fourth Plaintiff is Paulus Mangundu a former of Gold Field Namibia Provident Fund, Erf 3230, Goreangab, Katutura, Windhoek.
5. The Fifth Plaintiff is Erasmus Nghihalwa a former member of Gold Field Namibia Provident Fund, Erf 3239, Goreangab, Katutura, Windhoek.
6. The Sixth Plaintiff is Kauteua Mumuanhumbi a former member of Gold Field Namibia Provident Fund, residing at Erf 3239, Goreangab, Katutura, Windhoek.
7. The Seventh Plaintiff is Isador Mukuve a former member of Gold Field Nambia Provident Fund, residing at Erf 3239, Goreangab, Katutura, Windhoek.
8. The eight Plaintiff is Hendrik Christian, an independent pension consultant residing at Abt Street No.4, Windhoek-North, appointed by the former members of Gold Fields Namibia Provident Fund to recover pension monies in exchange for a payment of 2.5% commission of the total recovered value.
9. The ninth Plainitff is Hewat Beukes, an independent labour consultant who in this capacity provides service to the public and appointed by the former members of Gold Fields Namibia Provident Fund, in his personal capacity to recover their pension monies in exchange for 2.5% commission of the total recovered value residing at Erf 4479, Cnr. Of Kroonweg and Dodge Avenue, Khomasdal, Windhoek.

12. The Third Defendant is Ndjaura Tjozongoro who was employed as deputy registrar of pension funds by the first defendant and presently employed as executive officer at NASRIA.
13. The Fourth Defendant is Alexander Forbes, a liquidator of Gold Fields Namibia Provident Fund, with its principal place of business at Alexander Forbes House, Dr Kurz Street, Windhoek.

15. The Sixth Defendant is the Registrar of Pension Funds who is statutorily charged with supervision of Gold Fields Namibia Provident Fund.
16. The First and second Defendants are sued as vicariously liable for the wrongs committed by third defendant acting in his capacity and within the scope of his authority as employee of first defendant.
17. The Third Defendant is sued in his capacity as the employee of first defendant for the wrongful acts he has committed in the course and scope of his employment as the Deputy Registrar of Pension funds.
18. The Fourth Defendant is sued in its capacity as the liquidator and as a person managing the business of Gold Fields Namibia Provident Fund.

20. The Sixth Defendant is sued in his/her capacity as a statutory employee tasked with the supervision of the pension industry.
21. The Seventh Defendant is sued in his capacity as a liquidator of the remaining capital of Gold Fields Namibia Provident Fund.

Supervisory Authority Act, 2001 (Act No. 3 of 2001).

7. Mr Bossau lacks a proper mandate to act on behalf of the fifth Respondent in that-

a)	The resolution dated 20 November 2009 is invalid and of no force or effect; and
b)	The power of attorney purportedly given on the strength of this resolution is therefore, invalid and of no force or effect.

5. In any proceedings against the State, the Minister responsible for the Ministry concerned must be cited as the nominal Defendant or Respondent

7. In terms of Rule 32(2) of the Rules of the High Court, the application for Summary Judgment must be brought within 15 days after the date of delivery of the notice to defend.

(a) A claim for a liquidated amount in money;
(b) A claim based on a liquid document;
(c) A claim for the delivery of specified movable property, and
(d) A claim for ejectment

"an independent pension consultant residing at Abt Street No. 4 Windhoek-North, appointed by the former members of Gold Fields Namibia Provident Fund in his personal capacity to recover pension monies in exchange for a payment of 2,5% commission of the total recovered value".

"an independent labour consultant who in this capacity provides service to the public and appointed by the former members of Gold Fields Namibia Provident Fund, in his personal capacity to recover their pension monies in exchange for 2,5% commission of the total recovered value residing at Erf 4479, Cnr. of Kroonweg and Dodge Avenue, Khomasdal, Windhoek".

"(6) A party who in his or her pleadings relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleadings".

[22]   What constitutes a direct and substantial interest was considered by this

'an interest in the right which is subject matter of the litigation and...not merely a financial interest which is only an indirect interest in such a litigation'.
This view of what constitutes a direct and substantial interest has been referred to and adopted in a number of subsequent decisions, including two in this Division....and it is generally accepted that what is required is a legal interest in the subject matter of the action which could be prejudicially affected by the judgment of the Court..."

"(1) Save to the extent permitted by this Act, the Income Tax Act, 1962 (Act 58 of 1962), and the Maintenance Act, 1963 (Act 23 of 1963), no benefit provided for in the rules of a registered fund (including an annuity purchased or to be purchased by the said fund from an insurer for a member), or right to such benefit, or right in respect of contributions made by or on behalf of a member, shall notwithstanding anything to the contrary contained in the rules of such a fund, be capable of being reduced, transferred or otherwise ceded, or of being pledged or hypothecated, or be liable to be attached or subjected to any form of execution under a judgment or order of a court of law, or to the extent of not more than three thousand [Namibia Dollar] per annum, be capable of being taken into account in a determination of a judgment debtor's financial position in terms of section 65 of the Magistrates' Courts Act, 1944 (Act 32 of 1944), and in the event of the member or beneficiary concerned attempting to transfer or otherwise cede, or to pledge or hypothecate such benefit or right, the fund concerned may withhold or suspend payment thereof: Provided that the fund may pay any such benefit or any benefit in pursuance of such contributions, or part thereof, to any one or more of the dependants of the member or beneficiary or to a guardian or trustee for the benefit of such dependant or dependants during such period as it may determine.

"Orders which stay proceedings until the costs on interlocutory or other proceedings between the same parties have been paid are particularly harsh on indigent litigants and in reality, are likely to inhibit to obtain redress of their grievances in a Court of law. Orders of this nature are usually made within a narrow scope of cases."

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

1.      The Application is struck from the roll -

SHIVUTE, J

Appearance for the parties: 
For applicants:						In Person
For respondents:			Ms Potgieter
					Government Attorney 

		Mr Visser 
		Koep & Partners 

		Instructed by: HD Bossau & Co

					Koep & Partners