HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK
No I 4327/2009
30 APRIL 2014
In the matter
Kittiwake Fishing CC v Lüderitz Diesel Services CC (I
4327-2009)  NAHCMD 152 (30 April 2014)
Heard: 2 December
Application – By close corporation – Member authorized by
resolution of close corporation to institute application on its
behalf for certain relief – Member launching application for
different relief – Lack of authority fatal for success of
application – Application dismissed.
1. The application
is dismissed with costs.
2. In respect of the
first respondent the costs shall include the costs of one instructing
and one instructed counsel.
VAN NIEKERK J:
 In this matter
the applicant applies for the following relief:
non compliance with rules of this Honourable Court insofar as it may
2. Declaring the
service of Summons instituted by 1st Respondent against Kittiwake
Fishing Company (Pty) Ltd effected by 3rd Respondent on the applicant
as unlawful, alternatively not proper.
3. Declaring the
Notice of Intention to Defend dated 12 March 2010 on behalf of
Applicant as unlawful, alternatively unauthorized.
4. Declaring the
purported notice of amendment on behalf of Applicant dated 12 March
2010 as unlawful, alternatively unauthorized.
5. Declaring the
amendment orally requested by First Respondent on 16 April 2010 as
unlawful, alternatively improper.
6. Declaring the
Summary Judgment against the Applicant as void.
7. Declaring the
attachment of Applicant’s movable property by 3rd Respondent as
8. Declaring the
Sale in Execution of Applicant’s movable property by 3rd
9. Cost of suit.
and/or alternative relief.’
 The first and
second respondents filed notices of opposition, but only the first
respondent filed answering papers. The second respondent elected to
only argue the matter on the applicant’s papers on the date of
 It is common
cause that the first respondent obtained summary judgment against the
applicant on 16 April 2010 for payment in the sum of N$100 296.91,
plus interest on this amount at the rate of 20% per annum as from 31
August 2009, plus costs of suit. Subsequent thereto, the third
respondent attached certain of the applicant’s movables.
Although the applicant never expressly states as much in its founding
affidavit, it may be inferred from the notice of motion, that these
which were sold in execution, as the first respondent points out in
its answering affidavit.
 When the matter
was heard, the parties presented argument on several points. On the
view I take of the matter it is not necessary to deal with all these
points. The fact of the matter is that, as Mr Kutzner on behalf of
the first respondent points out in its answering affidavit, the
relief sought in the notice of motion is not authorized by the
applicant. The applicant’s founding affidavit is deposed to by
one of its members, Mr August Maletzky. In paragraph 1.3 of the
founding affidavit he makes the allegation that he is duly authorised
by the applicant to depose to the affidavit and to launch ‘this
declaratory order (declaration of rights) on behalf of Applicant.’
In this regard he refers to an attached copy of a resolution by the
applicant’s members. The resolution reads as follows:
August Maletzky to represent in court and make application for
Rescission of Judgment of the High Court’s judgment of 30
November 2010 in Case No.: I 4327/2009, and to take such steps
necessary to stay the judicial sale of the Close Corporation’s
Assets in general and the movables attached in foregoing High Court
Case, including appeal to the Supreme Court if necessary.
The members resolve
to grant unto August Maletzky the status and authority which in law
makes his acts, intentions and knowledge those of Kittiwake Fishing
Close Corporation so as to treat them as the Close Corporation
itself. August Maletzky is equally authorized to set aside judgments
(sic) relevant to the foregoing case.’
 The relief
sought in the applicant’s notice of motion does not relate to a
judgment of this Court given on 30 November 2010 and it does not
consist of an application to rescind any judgment granted by this
Court, or for any sale in execution to be stayed. If the last
sentence of the resolution is interpreted to mean what was probably
intended, namely that Mr Maletzky is authorised to institute
proceedings to have a judgment relevant to the case set aside, the
problem remains that the relief sought in the notice of motion does
not pray for any judgment to be set aside. Instead, the relief
prayed for in the notice of motion is declaratory in nature.
 In my view the
fact that the application is not authorised in the sense set out
above is fatal for its success. In addition, the applicant has not
made out any case whatsoever against the second respondent. Apart
from the citation of the second respondent there is no further
reference to it or to the basis on which it is cited as a party in
 In the result
there can be no other order than that the application is dismissed
with costs, such costs to include in the case of the first
respondent, the costs of one instructing and one instructed counsel.
K van Niekerk
applicant: Mr A Maletzky
For the first
respondent: Adv B van der Merwe
Engling, Stritter & Partners
For the second
respondent: Mr S Vlieghe
Of Koep &