REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
Case no: I
In the matter between:
QUICK SECURITY SERVICES CC
LTA NAMIBIA (PTY) LTD
Goamub Quick Security Services CC v Grinaker LTA Namibia (Pty)
Ltd (I 167/2012)  NAHCMD 190 (10 July 2013)
Coram: MILLER AJ
Heard: 19 - 20
June 2013; 24 June 2013
Delivered: 10 July
from the instance – Test whether there is evidence upon which a
Court may find for the plaintiff – Where plaintiff relies on
actual authority granted by defendant to person representing it, it
is incumbent to establish that actual authority exits – If the
existence of a Close Corporation is placed in issue, the founding
papers must be produced – When specific damages are claimed
absolution from the instance will be granted if plaintiff is in
possession of relevant evidence which he does not produce.
I grant absolution from
the instance with costs which will include the costs of one
instructing and one instructed counsel.
MILLER AJ :
 The plaintiff, which
is cited as a Close Corporation styled Goamub Quick Security Services
CC, instituted action against the defendant by way of summons.
 The plaintiffs cause
of action is based on a oral agreement allegedly concluded between
itself and the defendant during December 2009.
 The plaintiff alleges
that the terms of the agreement either express, tacit or implied were
Plaintiff undertook to:
provide a 24 hours security services to the defendant, which services
included guarding the property belonging to the defendant and
defendant’s employees during the construction of the road from
Omakange to Okahao, guarding of constructions sites and the camps in
which the defendant’s employees resided during the construction
of the said road.
invoice the defendant once every month for the services so rendered
at a rate of N$80.00 per guard for every twelve (12) hours normal
shift and N$160.00 per guard for every twelve hours shift for any
shift falling on a public holiday or Sunday.
Defendant undertook to:
Pay the plaintiff for the services so rendered at the afore-stated
rate upon receipt of an invoice.
Pay directly into plaintiff’s bank account at Standard Bank,
Katutura Branch Account number 04 279 763 2 at the end of every month
through electronic payment the amount reflected on the invoice.
It was a further material express, alternatively tacit, in the
further alternative implied in terms of the agreement that:
The agreement was valid for a period of two years commencing on the
1st January 2010 and ending on the 1st January
Either party may only terminate the agreement after first giving the
party in breach of any material term(s) of the agreement a notice
that such party is in breach of the agreement, and setting out in
such notice fully the nature and basis of the alleged breach.
The party giving notice as contemplated in 6.2 above must give the
other party one month within which to ensure compliance with the
terms of the agreement and to remedy the breach.
If the party in breach should fail to so ensure compliance and to
remedy the breach within the one month of such notice, the other
party may give a one month notice of termination of the agreement.
The plaintiff complied fully with all its obligations in terms of the
providing security services as set out above.
invoicing the defendant timely and at the rate agreed upon.’
 The plaintiff also
alleges that the defendant was represented by a Mr. Strauss when the
agreement was concluded.
 It is then alleged
that the agreement was breached in that the defendant;
On 4 November served the plaintiff with a notice of termination
without providing any reason and;
Failed to give the plaintiff any notice of breach of the agreement
Failed to afford the plaintiff the required time which to remedy the
breach, if there was any and;
Failed to give the plaintiff the required one month’s notice of
termination of the agreement.’
 As a consequence of
that breach the plaintiff suffered damages in the sum of N$490,
000.00 it is alleged, which damages is calculated as follows:
N$30 000.00 being the average monthly profit that plaintiff would
have made had defendant not so terminated the agreement, times 13
months being the period that was still remaining in terms of the
N$100 000.00 being the amount paid to employees lieu of notice, leave
credit days and related matters and other miscellaneous expenses
occasioned by the said termination.’
 The defendant filed a
plea placing pertinent aspects upon which the claim against it was
based in dispute. In essence these were the following:
locus standi of the plaintiff on the basis that it was denied
by the defendant that the plaintiff is a Close Corporation so
registered and incorporated in terms of the applicable legislation.
authority of Mr. Strauss to represent the defendant and to conclude
the agreement on its behalf.
terms of the agreement particularly in relation to its duration and
the requirement to give notice of termination.
the plaintiff performed its obligations in accordance with the terms
of the agreement.
damages allegedly suffered by the plaintiff.’
 It is not disputed
that the onus in respect of all of these issues lies with the
 Insofar as the
defendant placed the authority of Mr. Strauss in dispute in its plea,
there was no attempt by the plaintiff to base its case on that score,
by relying on the principles of estopped or an implied or ostensible
authority. The prudent course to take would have been, to my mind, to
file a replication to the effect that the defendant is estopped from
denying the authority of Mr. Strauss or to allege that his authority
was implied or ostensibly based upon the facts relevant thereto.
 That was not done
with its consequence the fact that the onus to be discharged was that
Mr. Strauss was actually and in fact authorized.
 In addition the
damages claimed by the plaintiff are specific as opposed to general
The following passage from S M Goldstein &
Co. (Pty) Ltd v Gerber 1979 (4) SA 930
(A) finds application:
‘The last of the
defendant’s ground of appeal concerns the value of the roller
when sold to Chicks Scrap Metals by defendant. It was contended on
appeal that plaintiff failed to establish what that value was. In
this regard counsel for the defendant referred to several passages in
decided cases dealing with the onus which rests on a plaintiff to
adduce evidence in proof of the damage which he claims to have
suffered including the following passage in the judgment of GALGUT J
v Meyer 1960
(4) SA 520 (T) at 523 and 524:
where there is evidence that damage is caused a court will make some
assessment on the material before it even if the damage cannot be
computed exactly (see Turkstra
Ltd v Richards 1926 TPD 276). A
plaintiff is, however, expected to lead evidence which will enable an
accurate assessment to be made if such evidence is available (See
1930 TPD 860 at 865).
Lazarus v Rand Steam Laundries (1946) (Pty) Ltd 1952 (3) SA 49 (T) at
51 DE VILLIERS J quoted with approval the following passage from
Hermans v Shapiro & Co 1926 TPD 367 at 379:
damage having been suffered, it is necessary for the Court to assess
the amount and make the best use it can of the evidence before it.
There are cases where the assessment by the Court is very little more
than an estimate, but, even so, if it is certain that pecuniary
damage has been suffered, the Court is bound to award damages. It
is not so bound in the case where evidence is available to the
plaintiff which he has not produced; in those circumstances the Court
is justified in giving, and does give, absolution from the instance.
But where the best evidence available has been produced, though it is
not entirely of a conclusive character and does not permit of a
mathematical calculation of the damage suffered, still, if it is the
best evidence available, the Court must use it and arrive at a
conclusion based on it.”’
This dictum was cited with approval in this Court by van Niekerk J in
Abner v K L Construction and Another (I
1976-2011)  NAHCMD 139 (27 May 2013).
 It follows that in
cases where there is evidence available to a plaintiff to prove its
damages which it did not produce, absolution from the instance may be
also Mkwanazi v van der Merwe
1970 (1) SA 609 (A).
Turning to the issue of the locus standi
of the plaintiff, the plaintiff was obliged to prove
that the entity cited as the plaintiff in fact existed.
In Absolut Corporate Services (Pty) Ltd v
Tsumeb Municipal Council 2008 (1) NR 372
HC a similar situation arose when the existence of the plaintiff as a
company was placed in dispute.
 In an application
for absolution on the basis that the plaintiff had not proved its
existence, Angula AJ stated the following at page 378 D – G:
In the matter of s v Omega Bearing Works (Edms) Bpk en Andere 1977
(3) S 978 (O), the existence of the company was placed in issue and
had not been admitted. The court expressed itself as follows:
the present case, the existence of first appellant as a company, and
thus as a legal persona, had been placed in issue by the appellants’
plea and it had to be proved by the State beyond reasonable doubt.
For that purpose the production of the above documents themselves or
evidence thereof produced in terms of ss 239 (3) or 64 (2) of the Act
though that was said in the context of a criminal case, the manner of
proof for the existence of a company is still the same in a civil
matter. No such certificate has been produced in evidence. No reason
was advanced why it could not be produced. The only evidence led
about the existence of the plaintiff company was the registration
number of the plaintiff company. In my view that is not good enough.
Not only is Mr. Kwala a legal practitioner, he is also a director of
the plaintiff. His legal practice is the legal representative of
record for the plaintiff. He is in full control of the plaintiff. He
must be in possession of the statutory documents of the plaintiff
such as a copy of the certificate of incorporation, the certificate
to commence business, etc. No explanation was given why these
certificates could not be produced in evidence.’
 During the course of
the trial, the plaintiff called as its only witness Mr. Goamub, who
states that he is the sole member of the plaintiff.
 Thereafter the case
for the plaintiff was closed.
 Counsel for the
defendant thereupon brought an application for absolution from the
 The application was
premised upon the issues raised in the pleadings to which I have
referred to already.
 The test to be
applied was formulated in this Court in a number of cases.
in this regard Lofty-Eaton v Gray Security
Services Namibia (Pty) Ltd and Others 2005
NR 297 HC;
v Ellistron t/a Ellistron Truck and Plant 2002
NR 451 HC and Alluminium City CC v Scandia
Kitchens & Joinery (Pty) Ltd 2007 (2)
NR 494 HC.
In essence in these cases the enduring formulation of the test in
Gascoyne v Paul and Hunter 1917
TPD was approved. In that case the following appears at page 173:
question therefore is, at the close of the case for plaintiff, was
there a prima
case against the defendant Hunter; in other words was there such
evidence before the Court upon which a reasonable man might, not
should, give judgment against Hunter?’
 It therefore remains
for me to consider whether the evidence adduced by the plaintiff on
the issues raised is such that it can be said that a Court may find
in its favour on those issues. I shall deal with the issues and the
evidence pertaining to those seriatim.
Does the plaintiff
exist as a Close Corporation:
Mr. Goamub states that
the plaintiff was incorporated as a Close Corporation during 2007. He
does not know its registration number. He states that he is in
possession of the founding statements and other relevant
documentation. None of these was discovered or produced in evidence.
I will follow the approached adopted by Angula AJ in the Absolute
Corporate Services case and hold that absolution from the
instance will follow.
Authority of Mr.
I indicated earlier that
the plaintiff opted to confine its case on this issue to an
allegation that Mr. Strauss had actual authority to bind the
defendant. The evidence of Mr. Goamub in this regard fails pitifully
short and he was constrained to concede that he simply did not know
what the true situation was.
Mr. Goamub in his
testimony states that the caused proper books of account to be kept
in respect of the business of the plaintiff. These he maintains are
in his possession at his office. None of these were discovered or
produced in evidence. Instead all that was placed before me, were
some bank statements which relate to the bank account operated by Mr.
Goamub in his personal capacity. From these, even if I were entitled
to take them into account, in order to try and determine the issue of
quantum, it is simply impossible to do so.
 In my judgment it
follows that there is no evidence upon which a Court may find for the
plaintiff. I venture to add that the case for the plaintiff was
poorly prepared and presented. Litigation in the High Court is
important and expensive business. It requires that proper care be
given to the preparation and presentation of the case.
 I grant absolution
from the instance with costs which will include the costs of one
instructing and one instructed counsel.
P J MILLER
PLAINTIFF: S RUKORO
Instructed by Sisa
Namandje & Company Incorporated, Windhoek
DEFENDANT: J-P R JONES
Instructed by Ellis
Shilengudwa Incorporated, Windhoek