Court name
High Court Main Division
Case number
HC-MD-CIV-ACT-OTH-2017/01323
Case name
Gecko Salt (Pty) Ltd v Gossow
Media neutral citation
[2020] NAHCMD 374

Practice Directive 61

“ANNEXURE 11”

 

IN THE HIGH COURT OF NAMIBIA

 

Case Title:

GECKO SALT (PTY) LTD vs WALTRAUD GOSSOW

Case No:

HC-MD-CIV-ACT-OTH-2017/01323

Division of Court:

HIGH COURT(MAIN DIVISION)

Heard before:

HONOURABLE LADY JUSTICE PRINSLOO, JUDGE

Date of hearing:

7 August 2020

Date of order:

24 August 2020

 

 

Neutral citation: Gecko Salt (Pty) Ltd v Gossow (HC-MD-CIV-ACT-OTH-2017/01323) [2020] NAHCMD 374 (24 August 2020)

 

Results on merits:

Merits not considered.

 

The order:                  

Having heard ZUREUKA MAJIEDT, for the first to third respondent, also standing in for Mr Ellis and ZANDRE DUVENHAGE, for the eighth respondent and having read the documents filed of record:

IT IS HEREBY ORDERED THAT:

1.   The point in limine raised by the eight respondent is upheld. The application is struck from the roll with costs. Such costs occasioned by the employment of two instructed and one instructing counsel. Such cost is not limited to Rule 32(11).

Further conduct of the matter:

2.   The matter is postponed to 3 September 2020 at 8h30 for a status hearing.

3.   A joint status report must be filed on or before 31 August 2020.

 

Reasons for orders:

 

[1]        The parties relevant to the application before me is Gecko Salt (Pty) Ltd, the applicant (‘Gecko Salt’) and Waltrud Gossow, Rolf Gossow Holdings (Pty) Ltd, Salz-Gossow (Pty) Ltd, the first to the third respondents (‘Gossows’) and TY Investments (Pty) Ltd, the eight respondent  (‘TY’).

 

Brief background

 

 [2]       Gecko Salt instituted action against the Gossows in which it sought and was granted both declaratory and interdictory relief when the applicant obtained default judgment, which was granted in its favour on 9 June 2017 by Oosthuizen J. The Gossows filed their application to rescind the judgment on 18 July 2017. The rescission application in turn was opposed by Gecko Salt on 25 July 2017.

 

[3]        TY filed an application on 18 May 2018 to intervene as sixth respondent in the rescission of judgment application and eighth defendant in the main action. This application was not opposed.

 

The current application

 

[4]        The application in the instant proceeding is an interlocutory application, and more specifically an application to this court by Gecko Salt for leave to introduce, in opposition to a rescission application, new evidence by way of filing of two further affidavits. The applicant sought in the alternative that in the event that the aforementioned relief is not granted certain passages of the Gossows’ replying affidavit, in the rescission application, be struck out on the basis that these passages constituted new evidence inadmissibly advanced for the first time in reply.

 

Point in limine

 

[5]        TY however raised a point in limine and contended that no case was made out in the founding affidavit as there is no evidence on the founding papers as it stands that Mr Smit (or anyone else) was authorized to launch the application in casu.

 

[6]        The issue of lack of authority was raised by TY only. This point was therefore only addressed in the heads of argument and in oral argument on behalf of Gecko Salt and TY. I will not attempt to replicate the arguments but will instead lift out the major points made by the respective counsel in support of their arguments. If in the course of this ruling I use the words ‘submit’ and ‘argue’ and their derivatives, they must be understood to encompass both the heads of arguments and the oral submissions made in court.

 

Arguments advanced

 

[7]        On behalf of TY it was submitted that it is trite that an applicant must make out its case in the founding affidavit and explicitly state the source of his/her authority to bring an application in that representative capacity and if possible produce his/her source or proof of such authority. Alternatively, the principal must file a confirmatory affidavit confirming such authorization, which was not done in the current application.

 

[8]        It was further submitted on behalf of TY that if no allegation is made in the founding papers this cannot be remedied in reply by placing proof of the authority before court as authority was not alleged by the deponent, Mr Smit, to begin with. With reference to the Standard Bank v Nekwaya matter[1] counsel submitted that authorization is not just an idle incantation required for fastidious reasons but that the court must know, before it lends its processes, that the proceedings before it are properly authorized. This must be done by a statement on oath and where it is not stated in the founding affidavit, the only conclusion that may be reached is that the proceedings are not properly authorized.

 

[9]        It was submitted that Mr Smit did not make the averment that he had the authority to launch the application on behalf of Gecko Salt and as such the applicant did not make out a case regarding authority in its founding papers nor did it succeed in doing so in reply.

 

[10]       Counsel prayed that the application be struck off the roll with costs. 

 

[11]       The counsel acting on behalf of Gecko Salt argued that it is plain from the resolution filed by Gecko Salt that Mr Smit had the authority to launch the application.

 

[12]       It was however accepted and conceded on behalf of Gecko Salt that the resolution and the allegation to the necessary effect was not contained in the founding affidavit but it was argued by counsel that Gecko Salt and the Gossows have been litigating extensively and at arm’s length over a number of years and that Mr Smit deposed to all the principal affidavits on behalf of Gecko Salt. He further submitted that TY is aware of the litigation as it is a party to review proceedings wherein Gecko Salt and the Gossows are parties as well.

 

[13]       Counsel drew the attention of the court to Gecko Salt’s correspondence dated 19 December 2016 addressed to Salz-Gossow, which is filed of record, wherein the names of the three directors appear at the bottom of the said letter and submitted that all three directors filed affidavits in respect of the rescission application and by implication would not have done so if Mr Smit did not have the authority to depose to the answering affidavit. Counsel however conceded that this does not amount to a resolution but argued that the court should take this fact into consideration together with the fact of the extended litigation between the parties and find that there are special circumstances in the current matter to cause the court to ratify the launching of the application. Counsel further submitted that the litigation history in the current matter causes it to be distinguishable from other matters such as the Nekwaya matter[2] and Baobab Capital (Pty) Ltd v Shaziza Auto One (Pty) Ltd[3] wherein the court refused to ratify the launching of the application and struck the applications for lack of authority.  

 

[14]       Counsel therefore submitted that to argue that in the current circumstances Mr Smit omitted in his founding affidavit to aver authority to launch the application, is to place form over substance.

 

The legal principals and application to the facts

 

[15]       In his founding affidavit Mr Smit merely stated that he is the Chairperson of the Board of Directors of Gecko and that the facts contained in the affidavit is true and correct and within his personal knowledge, unless otherwise indicated.

 

[16]       On 3 July 2020 Gecko Salt filed a comprehensive resolution together with its replying affidavit. The resolution is meant to operate retrospectively and the resolution was signed by four directors, who do not appear to be the same directors as per the correspondence dated 19 December 2016, with exception of Mr Smit. There is no indication that the position of the current directors is in line with the position of the previous directors and this court cannot draw any inferences from names appearing at the bottom of a letter drafted on behalf of the applicant.

 

[17]       Gecko Salt launched a similar application to the current one on 31 October 2017 which was withdrawn on 18 December 2017. Mr Smit did not make any averments regarding his authority to launch the application in either one of the two applications, neither did he make the averment of authority in any of the number of affidavits deposed to. However, the subject matter of the point in limine is not Mr Smit’s authority to depose to an affidavit but indeed regarding the authority to launch the application.

 

[18]       In Baobab Capital (Pty) Ltd v Shaziza Auto One (Pty) Ltd[4] this court found as follows:

 

 ‘[51]       A distinction must be drawn between matters where authority to launch the application is averred in the founding affidavit and objected to by the opposing party and those matters where absolutely no averments are made regarding authority. In the former instance the principles as set out in Otjozondjupa Regional Council v Dr Ndahafa Aino-Cecilia Nghifindaka & Two Others[5] applies.  In the Otjozondjupa Regional Council matter Muller J (as he then was) sets out the principles as follows:

 

‘(a) The deponent of an affidavit on behalf of an artificial person has to state that he or she was duly authorised to bring the application and this will constitute that some evidence in respect of the authorization has been placed before Court;

(b) If there is any objection to the authority to bring the application, such authorisation can be provided in the replying affidavit;

(c) Even if there was no proper resolution in respect of authority, it can be taken and provided at a later stage and operates retrospectively;

(d) Each case will in any event be considered in respect of its own circumstances; and

(e) It is in the discretion of the Court to decide whether enough has been placed before it to conclude that it is the applicant who is litigating and not some unauthorised person on its behalf.’

 

[52]         Masuku J stated as follows in the Standard Bank[6] matter:

‘[11]      It is a matter of note that the applicant did not address this issue at all in its founding affidavit and thus could not, in reply, place proof of the authority as no authority whatsoever, was alleged.  It is a trite principle of law that a party stands or falls on its founding affidavit. In the instant case, the applicant did not make out a case for the authority in the founding papers, nor did or could it do so in reply as that opportunity never came.’  (My underlining)

 

[53]         And further

[18]         Authorisation of proceedings is a serious matter, and is not just an idle incantation required for fastidious reasons. The court must know, before it lends its processes, that the proceedings before it are properly authorised. This is done by a statement on oath, where applicable, with evidence thereof that the person who institutes or defends the proceedings is properly authorised and is not on a reckless, self-serving frolic of his or her own.

[19]         Once this is not stated in the founding affidavit, the only conclusion that may be reached is that the proceedings are not properly authorised and that inevitably, is the applicant’s fate in these proceedings. It is accordingly unnecessary to consider the other issues raised by the 1st respondent in his notice.

[20]         The learned authors Herbstein & Van Winsen[7] say, ‘The necessary allegations must appear in the supporting affidavits, for the court will not, save in exceptional circumstances, allow the applicant to make or supplement a case in a replying affidavit and will order any matter appearing in it that should have been in the supporting affidavits to be struck out.’ This is the law even in this Republic as propounded in what has become known as the Stipp principle.[8]

 

[54]         I fully associate myself with this court’s judgment in the Standard Bank matter and must reach the same conclusions as my Brother and whereas there are no allegation that the current proceedings are authorised, the proceedings cannot be allowed to continue.’

 

[19]       It is trite that each case should be dealt with on its own merits and having considered the argument on behalf of the applicant I must find that the extensive litigation argument is not sufficient to sway this court to not follow the findings in the Baobab and Nekwaya matters as the issue of ongoing litigation between the parties has nothing to do with the fact that Mr Smit had to have authority to launch the application before me. The fact that Mr Smit deposed to the principle affidavits on behalf of the applicant is also of no assistance to the applicant either as the other principle affidavits are relevant to the review matters, which matters are not before this court.

 

[20]            As a result of the omission by Mr Smit to positively allege in his founding affidavit that he has the requisite authority to launch the application, this must result in the striking of the application as prayed for on behalf of TY.

 

[21]       Given the ruling on the point in limine I do not deem it necessary to consider the merits of the application.

 

Costs

 

[22]        The parties are ad idem that the cost should not be limited in terms of rule 32(11) and I agree with the respective counsel in this regard.

 

[23]       My order is therefor as set out above.

 

 

Note to the parties:

 

 

 

 

Not applicable.

Counsel:

Applicant

 Respondent

S C Rorke SC

Instructed by

Ellis & Partners Legal Practitioners

Windhoek

 

 

First to Third Respondents

           R Töttemeyer SC assisted by D Obbes

Instructed by

Kinghorn and Associates

Swakopmund

Eighth Respondent

        E Shimming-Chase SC assisted by JP Jones

                           Instructed by

             Fisher, Quarmby and Pfeifer

                            Windhoek

 

 

 

 


[1] Standard Bank Namibia Limited v Nekwaya (HC-MD-MOT-GEN-2020/00089) [2020] NAHCMD 122 (26 March 2020).

[2] Ibid.

[3] (HC-MD-CIV-ACT- CON-2019/02613) [2020] NAHCMD 290 (10 July 2020).

[4] Ibid.

[5] (LC 7/2010) [2010] NAHC 29 (26 March 2010).

[6] Supra footnote 1.

[7] Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa 5th ed vol 1 Juta & Co 2009 at 439-440.

[8] Stipp and Another v Shade and Others Case 2007 (2) NR 627 (SC) at 634 para 29 - 31.