Court name
High Court
Case name
Kober v McLaren NO and Others
Media neutral citation
[2011] NAHC 209
Judge
Muller J

















CASE NO.: A 386/2010



IN THE HIGH COURT OF
NAMIBIA



In the matter between:











EVELINE MARIA KOBER
…........................................................................APPLICANT







and











I.R. McLAREN N.O.
…......................................................................1ST
RESPONDENT







MASTER OF THE HIGH COURT N.O
….........................................2ND
RESPONDENT







LEOPOLD KLAUS KOBER JNR.
…................................................3RD
RESPONDENT







MATHILDE KOBER
…......................................................................4TH
RESPONDENT















CORAM: MULLER J











Heard on: 27 June 2011







Delivered on: 15 July 2011











JUDGMENT



________________________________________________________________







MULLER, J.: [1] The
applicant launched an application on urgent basis on 17 December 2010
in which the following relief was sought:



1.
Condoning the applicant’s non-compliance with the Rules of this
Honourable Court and the time periods prescribed therein in so far as
these have not been complied with and directing that this matter be
heard as one of urgency.



2. That rule nisi calling upon the
first respondent to show cause why he should not be ordered to:



2.1 Pay maintenance in the amount
of N$20 000.00 (Twenty Thousand Namibian Dollars) per month, with
effect from 20 December 2010, to the applicant pending the
finalization of the liquidation of the Estate of the late Leopold
Kober who died on 1 November 2000;



2.2 Pay the monthly expenses
relating to the administration and running of the Farm Bag-Bag No.
180, Okahandja District, Otjozondjupa Region, with effect from 20
December 2010, to the applicant pending the finalization of the
liquidation of the Estate of the late Leopold Kober who died on 1
November 2000.



3. That the relief sought in
paragraph 2 operate as an interim interdict with immediate effect.



4. That the cost occasioned by any
opposition to this application be paid by the Respondent who oppose
it.



5. That such other relief as seems
appropriate to this Honourable Court be granted pursuant tot he
determination of this application.”







On 17 December 2010 a Rule Nisi
was issued in respect of paragraphs 1 to 3 of the notice of motion
with a return date on 28 January 2011. The Rule Nisi was twice
extended and finally until 27 June 2011.







[2] When the matter was heard on the
extended return day, Mr Ueitele appeared on behalf of the applicant
and the third and fourth respondents were represented by Adv Barnard.
Both counsel filed heads of argument in advance. During the
proceedings on the extended return day both counsel amplified the
written heads of argument with oral submissions. At the end of the
arguments presented, the court reserved judgment and extended the
Rule Nisi to 29 July 2011.







[3] At the hearing counsel agreed to
argue the preliminary point as well as the merits of the application
together. The applicant commenced with its submissions, whereafter Mr
Barnard argued and the applicant briefly replied. Despite this
procedure, I shall deal with preliminary point first and thereafter
with the merits of the application, if necessary.







Background







[4] The purpose of the application is
to obtain an order by this court for maintenance in the amount of
N$20 000.00 per month from 20 December 2010 until the finalization of
the estate of the late Leopold Kober, as well as payment of the
monthly expenses with regard to the administration and running of the
farm Bag-Bag for the same period. As mentioned, a Rule Nisi
was obtained in that regard.







[5] The application was brought and
the Rule Nisi obtained against the following background set
out in the applicant’s founding affidavit:



“● The
applicant and the late Leopold Kober was married on 27 January 2000
in community of property;



On 1
November 2000 the late Leopold Kober died intestate;



Originally
the applicant was appointed as executor of the said estate by the
Master of the High Court, with a certain Mr Peter AH Schmidt-Dumont
as her agent;



A first
liquidation and distribution account was filed with the Master on 8
October 2001;



According
to that liquidation and distribution account the applicant, as well
as the third and fourth respondents are the heirs in the estate of
the late Leopold Kober;



As a
result of a dispute, apparently in respect of whether the marriage
between the applicant and the late Leopold Kober was in or out of
community of property, a summons was issued, but a settlement was
eventually entered into, which settlement was made an order of this
court on 31 May 2007;



After a
certain event ensued arising from the settlement agreement, the third
respondent was appointed as co-executor together with the applicant
and the third respondent appointed Mr CJ Hinrichsen, formerly of the
legal firm Lorenz Angula Incorporated, as his agent. Upon Mr
Hinrichsen’s retirement Mr A Potgieter from the same firm was
appointed as agent of the third respondent;



When the
applicant’s agent Mr Schmidt-Dumont became incapacitated the
applicant was not able to furnish a full account regarding the
financial part of the administration of the estate for the period
2000 to 2007;



A
further liquidation and distribution account, prepared by a financial
tax consultant, a certain Dirk Van Zyl on behalf of the applicant,
was submitted on 28 February 2010 to the Master of the High Court;



During
May 2010 the Master of the High Court informed the applicant that she
was removed as co-executor in the estate of the late Leopold Kober
and the first respondent was appointed as an independent executor.”



According
to her, she received no assistance from the Master and had to
maintain the farm and relevant expenses for the running of the farm.



During
June 2010 she received an amount of N$400 000.00 from her portion of
the inheritance from the estate of the late Leopold Kober ,which she
used to maintain herself and to pay some of the expenses in respect
of the running of the farm Bag-Bag. This advance was depleted during
October 2010.



Thereafter
she called her legal practitioner to write to the Master and enquire
about her entitlement to maintenance. She did not receive any reply,
but Mr Potgieter objected thereto, while the first respondent’s
attitude was that he had already advanced an amount of N$400 000.00
to her.







[6] Against his background applicant
approached the court on urgent basis to be provided with maintenance
and money for the running of the farm.











Preliminary issue – Service
of the application







[7] It is not disputed that the
application was served by hand on Lorentz Angula Incorporated in
respect of the third and fourth respondents on 16 December 2010 just
after 11h00 in respect of the hearing the next day and that there was
no service on anyone of them. The third and fourth respondents’
counsel submitted that such service did not comply with the
provisions of section 24 of High Court Act no. 16 of 1990, which
reads as follows:



24.
The time allowed for entering an appearance to a civil summons served
outside Namibia shall not be less than 21 days.”



It is common cause that the third and
fourth respondents are foreigners and live outside Namibia. It is
further common cause that despite the applicant knowing that third
and fourth respondents are incolae of this court, service was
effected as mentioned without first obtaining an order for edictal
citation. There was also no attachment of any property belonging to
third and fourth respondents ad fundandam or confirmandam
jurisdictionem.
On behalf of the third and fourth respondents,
who are german speaking, a complaint was also raised that the
documents were not translated into the german language to enable them
to understand it. It is further common cause that the Rule Nisi
has also not been served on the third and fourth respondents.







[8] Mr Barnard submitted that the said
manner of service, in contradiction with the provisions of Rule 4 and
the said section 24 of the High Court Act, without first obtaining an
order for edictal citation caused the institution of the litigation
proceedings to be a nullity. In this regard he relied on the
judgments of this court in the cases of Knouwds N.O. v Josea and
Another
2007 (2) NR 792 (HC) at 798 [22]; and China State
Construction Engineering Corp v Pro Joinery CC
2007 (2) NR 675
(HC) at 681 [21]. Mr Barnard further submitted that the service is
also a nullity because it was affected on an unauthorized person or
entity, namely Lorenz Angula Incorporated, and relied in this regard
on the case of Beauhomes Real Estates (Pty) Ltd v Namibia Estate
Agents Board
2008 (2) NR 427 (HC) at 43 [15]. A final submission
by Mr Barnard in this regard is that the granting of the provisional
order (the Rule Nisi) after such non-service also constitutes
a nullity and if a final order should than be granted by this court,
it would also constitute a nullity. In this regard he referred to the
case of HAW Retailers CC t/a ARC Trading and Another v T Nicanor
t/a Natutungeni Pamwe Construction CC
, an unreported judgment by
Damaseb JP, delivered on 4 October 2010, case no. A 151/2008, page 11
[14]. With regard to the alleged contravention of Section 24 of the
High Court Act, Mr Barnard submitted that a civil summons referred to
in that section also includes any Notice of Motion in terms of the
definition section of that Act, namely section 1, and that when a
summons or application is served outside Namibia the defendant or
respondent has to be allowed a period of not less than 21 days to
enter appearance to defend or oppose, which did not happen here.







[9] In respect of the
nullity-submission by Mr Barnard as a result of non-service, Mr
Ueitele submitted that the submissions of third and fourth
respondents are based on technical grounds. In the first instance, he
submitted that the application was brought as an urgent one and the
court hearing that application on that day granted a Rule Nisi
by condoning the applicant’s non-compliance with the rules. Mr
Ueitele submitted that also included non-compliance with the rules
relating to the service of proceedings. The applicant also denied
that the submission by Mr Barnard based on the affidavit of Ms
Hoffman of Lorenz Angula Incorporated that her firm was never
appointed as an agent for third and fourth respondents does not hold
water. According to him it is clear that during 2004 to 2010 the firm
Lorenz Angula Incorporated was the agent of, and acted for, the third
and fourth respondents even after the third respondent had been
removed as an executor. He submitted that the third and fourth
respondents are only nominal respondents and that the action is
brought against the first respondent for maintenance until the estate
has been finalised.







[10] Affidavits were filed by the
first and third respondents as well as affidavits on behalf of
Lorentz Angula Incorporated. The applicant filed a replying
affidavit. I shall only deal with those affidavits at this point in
respect of the ‘service- issue.”







[11] According to a letter by the
Master (second respondent) both co-executors were removed as
executors on 11 May 2010, seven months before this application was
brought by the applicant. A director of Lorentz Angula Incorporated,
Ms Hoffman’s affidavit was confirmed by Mr Potgieter, the agent
of the third respondent, as well as a director of that firm. She
stated that as a result of the removal of these co-executors, the
agents’ mandates were also terminated and that since that date
any legal representation of the third respondent by Lorentz Angula
Incorporated ceased with the effect that the firm was no longer
mandated to receive service of any legal process whatsoever on behalf
of the third respondent. Despite being aware hereof, the applicant
still caused service of this application to be effected directly on
Lorentz Angula Incorporated. She informed the third respondent’s
current legal practitioners about this situation.







[12] In his affidavit (in german, but
with a translation in English) the third respondent also confirmed
being discharged as executor together with the applicant. He further
stated that the appointment of Mr Potgieter as his agent also lapsed
and that he did not have any further dealings with Lorentz Angula
Incorporated.







[13] All that the applicant replied to
in this regard, is that the third respondent did not file a notice
with her or her legal practitioners that because he was removed as
executor, he was no longer represented by Lorentz Angula Incorporated
and that she cannot be blamed for Mr Potgieter acting without a
mandate. She however admits that the notice of motion was not
personally served on the third and fourth respondents, but remained
adamant that they were still represented by Lorentz Angula
Incorporated at that time. She stated that in any event such service
did find its way to the third respondent.







[14] It is not in dispute that there
was no application for edictal citation in respect of the third and
fourth respondents. There was also no attachment to found or confirm
jurisdiction. It is further common cause that there was no compliance
with the provisions of S 24 of the High Court Act and that both third
and fourth respondents are foreigners to this court; the third
respondent residing in Austria and the fourth respondent in Canada.
The only “service” that was effected, was by hand to
Lorentz Angula Incorporated. I have earlier herein referred to the
submissions made by counsel in this regard.







[15] I shall first deal with the
situation of the fourth respondent. Although there is no affidavit by
the fourth respondent before me, it cannot be disputed that she has a
substantial interest in the estate of her late father and
consequently in the assets of that estate. She can never be regarded
as a “nominal respondent” as contended by Mr Ueitele. Had
she not been joined in the application, it would certainly have been
considered to be a mus-joinder, which would cause the application to
fail. However, the fact is that she had been joined and the
application had to be served on her in compliance with of the rules
of court and the High Court Act. In respect of the fourth respondent
there was no service and no such compliance with the rules and the
Act.







[16] In respect of the third
respondent it is also evident that he should have been joined for the
same reason as referred to above in respect of the fourth respondent.
Consequently, service of the application and compliance with the
Rules and the Act was also peremptory. The only difference between
the situation of the third and fourth respondents is that the third
respondent was once the co-executor of the estate and that he had an
agent, who was also a director of Lorentz Angula Incorporated. It is
clear from the allegations by Ms Hoffman, confirmed by Mr Potgieter
and the third respondent, that since 11 May 2010, long before the
application was launched, the third respondent was removed by the
Master as co-executor and consequently the appointment of his agent
was also terminated. Both Ms Hoffman and the third respondent stated
that since that event Lorentz Angula Incorporated did not legally
represent the third respondent anymore.







[17] Mr Ueitele relied on a letter
dated 13 October 2010 written by Mr Potgieter on a letterhead of
Lorentz Angula Incorporated and addressed to the Master to show that
Lorentz Angula Incorporated still represented the third respondent at
that time and that Mr Potgieter still acted as the agent of the third
respondent. The background of the previous negotiations and meetings
are set out in that letter and in the last sentence Mr Potgieter
stated that “we most strenuously object” to any
advance to the applicant. He also reserved “our client’s
rights
”. From this it seems that Mr Potgieter was acting in
his capacity as agent of the third respondent and as a director of
Lorentz Angula Incorporated. Except for these statements it seems
that the remainder of the letter was to explain and clarify the
situation to the Master. However, it is undisputed that already on 11
May 2010 the executors had been removed from their positions by the
Master and consequently their previous agents’ positions were
also automatically terminated. Mr Potgieter had therefore no mandate
to address the letter of 13 October 2010 to the Master. Even if he
acted without any mandate, Ms Hoffman’s affidavit, as well as
that of the third respondent, made it clear that Lorentz Angula
Incorporated had no mandate to represent the third respondent
anymore. Even if service of legal documents have been effected on
that firm, it was not service in compliance with the rules at the
time when this application was brought.







[18] In China State Construction
Engineering Corp v Pro Joinery CC, supra
Silungwe AJ considered
several South African cases in respect of the validity of the
distinction between an irregular proceeding (which is capable of
being condoned) and one that is a nullity or void (which cannot be
condoned). (Mynhardt v Mynhardt 1986(1) SA 456 (T) at 457A,
462, 463E-G; Chasen v Ritter 1992 (4) SA 323 (SE) at 329D-I;
General Accident Insurance CC of South Africa v Zampelli 1988
(4) SA 407 (C) at 410B and Minister of Prisons and Another v
Jongilanga
1983(3) SA 47 (E)). Silungwe AJ came to the conclusion
that where an irregular proceeding is a clear nullity, it is
unnecessary for a defendant to enter a notice to defend, because
there is nothing to defend. In a subsequent decision of this court
the Judge-President, Damaseb JP, stated in Knowds NO v Josea,
supra
, at 798A [22]:



“’Service’
of process is the all important first step which sets a legal
proceeding in train. Without service, can there really be any
argument that proceedings are extant against a party?”



The Judge-President then referred to
what the authors Herbstein and Van Winsen have to say in their
work The Civil Practice of the Supreme Court of South Africa, 4
edition
at 283 in respect of “short service” and
continued as follows in [23]:



If short
service is fatal a fotiori, non-service cannot be otherwise. Where
there is complete failure of service it matters not that, regardless
the affected party somehow became aware of the legal process against
it, entered appearance of defence and is represented in the
proceedings. A proceeding which has taken place without service is a
nullity and it is not competent for a court to condone it.”







[19] In the case of Beauhomes Real
Estate (Pty) Ltd v Namibia Estate Agent’s Board, supra
,
Hoff J dealt with service of a notice of motion on a secretary of a
legal firm and said the following in respect of such service by hand
in [12] at 430 G-H:



The
service of the notice of motion in respect of all three applicants
had been affected on a secretary employed by the legal firm then
acting on behalf of the first applicant. The submission that the
legal firm had been an agent of the applicants does not hold water
since there is no proof that such a firm was duly authorised in
writing to accept service on behalf of all the applicants.”



Later in [15] at 431 C-D and [16] D-F
and G he stated:



In the
present instance there was no service at all on the applicants in
terms of the provisions of rule 4(1)(a)(v) in respect of the first
respondent or in terms of rule 4(1)(a)(i), 4(1)(a)(ii) or
4(1)(a)(iii) in respect of the second and third applicants and
similarly in my view such services amount to nullities.







[16] The fact that the legal
representatives of the respective parties had been involved in the
exchange of correspondence at some stage prior to the initiation of
the application proceedings by respondent did not imply tht the legal
representative acting for the applicants was an attorney of record in
terms of the provisions of rule 4(1)(b) which makes provision for
service on an attorney of record.



It cannot be assumed that, in
circumstances where a legal firm has acted for a party prior to the
institution of court proceedings, such legal firm would also act for
such party during the court proceedings.”







[20] Finally, it has also been stated
by this court in the case of HAW Retailers, supra, at p11 [14]
that where a provisional order is a nullity, a final order confirming
such an order, would also be a nullity. The learned Judge-President
approved what was said in Moch v Nedtravel (Pty) Ltd t/a American
Express Travel Service
1996 (3) SA 1 (A) where Hefer JA dealt
with this issue in the following words at 9I – 10A:



Since a
final order can accordingly not be granted unless a provisional order
and a rule have first be obtained (Provincial Building Society of
South Africa v Du Bois 1966 (3) SA 76 (W) at 81 E-G), the logical
implication of the nullity of the proceedings and the orders granted
at the first stage is that the final order must suffer the same
fate.”







[21] From the facts and the law is it
abundantly clear that the so-called service of the application on the
third and fourth respondents was a nullity and that the Rule Nisi
could not have been granted. Furthermore would confirmation of the
Rule Nisi also constitute a nullity. In the light hereof is
this court unable to confirm the Rule Nisi and it must be
discharged.







[21] In the light of my aforesaid
decision on the preliminary point, it is unnecessary to deal with the
merits of the matter.







[22] Although the Rule Nisi had
been further extended to 29 July 2011, the judgment has been
finalised earlier and judgment is consequently given today.







[22] In the result, the following
orders are made:



1. The Rule Nisi granted on 17
December 2010 and extended thereafter is discharged;



2. The applicant has to pay the wasted
costs occasioned by her application, which costs include the costs of
one instructing and one instructed counsel.















___________



MULLER, J











FOR THE APPLICANT: Mr UEITELE



Instructed by: UEITELE & HANS
LEGAL PRACTITIONERS











FOR THE RESPONDENTS: MR BARNARD







Instructed by: KOEP & PARTNERS