Kozonguizi and Others v Bank Windhoek Limited (HC-MD-CIV-ACT-CON-2023/00987) [2025] NAHCMD 265 (20 May 2025)

Case Title:

Jupiter Belly Kozonguizi 1^st Applicant

Nazla Kozonguizi 2^nd Applicant

Nizzy's Bed And Breakfast Cc 3^rd Applicant

and

Bank Windhoek Limited Respondent

Case No:

HC-MD-CIV-ACT-CON-2023/00987

INT-HC-OTH-2023/00335

Division of Court:

Main Division

Heard on:

16 May 2025

Heard before:

Honourable Justice Usiku

Reasons released on:

20 May 2025

Neutral citation: Kozonguizi v Bank Windhoek Limited (HC-MD-CIV-ACT-CON-2023/00987) [2025] NAHCMD 265 (20 May 2025)

Order:

1. The application filed by the applicants on 23 August 2023, in terms of which the applicants sought an order declaring the court order granted by this court on 21 April 2023 void ab initio, is hereby dismissed.

2. The matter is removed from the roll and is regarded finalised.

Reasons for order:

USIKU J:

[1] By court order dated 28 March 2025, the applicants were invited to address the court on whether their interlocutory application filed on 23 August 2023 is a live application requiring the court`s determination or not. This invitation was prompted by the fact that the applicants did not refer to it at all in their current heads of argument.

[2] On 13 May 2025, the applicants filed a document, in which they appear to indicate that the 23 August 2023 application is still before court for determination. In the applicants’ application filed on 23 August 2023, the applicants seek, among other things, an order declaring the court order granted by this court on 21 April 2023, as null and void. The basis for seeking this declaration is the allegation by the applicants that the legal practitioners who represented the respondent when that order was granted, were not authorised by the respondent to institute the action and to obtain default judgment against the applicants. There were no papers filed by the respondent opposing the 23 August 2023 application.

[3] The question for determination is whether the applicants are entitled to the declaratory relief that they seek? The basis for the applicants’ contention that the respondent‘s legal practitioners lack of authority is that, the legal practitioners have not filed a resolution showing that they were duly authorised to act.

[4] It is trite law that, it is not necessary for a legal practitioner to file a power of attorney to act, but such authority may be challenged in appropriate cases at any time before judgment.

[5] It is worth noting that, judgment in the instant case was delivered on 23 August 2023, in favour of the respondent.

[6] The challenge of authority to act, is not for purposes of winning or losing a case through technicalities, but to prevent any person whose name is cited in the process, from thereafter repudiating the process and denying his authority for the issue of the process.¹

[7] In the present matter, the challenge of authority is, in my opinion, meritless. Firstly, the challenge is brought after judgment was granted in favour of the respondent on 21 April 2023. Secondly, the applicants have not provided any basis for the challenge, upon which the court may conclude that there is some reason to doubt that the action was authorised.

[8] Having had regard to the papers filed of record and the rule 108(2)(a) application filed by the respondent, I find that there is no substance in the challenge to authority, and the applicants’ application filed on 23 August 2023 stands to be dismissed.

[9] In the result, I make the following order:

1. The application filed by the applicants on 23 August 2023, in terms of which the applicants sought an order declaring the court order granted by this court on 21 April 2023 void ab initio, is hereby dismissed.

2. The matter is removed from the roll and is regarded finalised.

Judge’s signature

Note to the parties:

B Usiku

Judge

Not applicable

Counsel:

First and Second Applicants:

Respondent:

J Kozonguizi

In person,

Windhoek

T Martin

Dr Weder, Kauta & Hoveka,

Windhoek