on: 01 February 2011 Delivered: 10 February 2011
The parties in the matter appeared before me in an application by
the two Applicants lodged against Respondent. It is an application
in terms of Rule 30(1) of the Rules of the High Court of Namibia, to
have the Notice in terms of Rule 15(3) dated 4 August 2010 filed by
Mbaeva & Associates declared to constitute an irregular step or
proceeding and have it set aside together with costs.
Ms Van der Merwe appeared for the Applicants/Defendants while Mr
Mbaeva appeared for the Respondent/Plaintiff: The application is
flowing from the main action which Adelheid Kahee brought against
for an order in the following terms:
Setting aside the sale of the dwelling situated at Erf 6611,
Traugoth Handura Street, Katutura, Windhoek by Cecilie Ndjoze to
Menason Marenga and Rebekka Marenga.
Declaring the transfer of ownership of the dwelling to Menason
Marenga and Rebekka Marenga to be of no legal effect.
Directing the parties opposing this Application to pay the cost of
Further/or alternative relief."
While the proceedings in the main action were still ongoing,
Plaintiff (Adelheid Kahee) passed away. The passing away of
Plaintiff in the matter prompted Mr Mbaeva who was acting on her
behalf to give Notice in terms of Rule 15(3) to the Respondents. But
before this application, Mr Mbaeva had previously attempted to have
the following persons added as 2nd,
to the proceedings namely; Martha Mbaeva, Rachel Kahee, Constancia
Kahee and Flora Kahee. This was done in terms of Rule 15(2).
Applicants applied in terms of Rule 30 for an order to declare the
Rule 15(2) to constitute an irregular step or proceeding, to set
aside the Notice and to order Mbaeva & Associates to pay the
costs of the application on an attorney and own client scale,
including the costs of one instructing and one instructed counsel.
Mr Mbaeva, after exchanging correspondence with the legal
practitioner of the Respondents, decided to withdraw the Rule 15(2)
application but lodged Rule 15(3) instead. That application served
before Parker, J on 13 August 2010 who declared the Rule 15(2)
Notice to have constituted an irregular step or proceeding as
envisaged in Rule 30 of the High Court of Namibia. Judge Parker also
set aside the said notice and ordered Mbaeva & Associates to pay
the costs of that application on party and party scale, including
one instructing counsel. This step, however, did not deter Mr Mbaeva
from lodging another application in terms of Rule 15(3). In this
present application, he applied in his capacity as the Legal
Representative for the deceased Applicant to be substituted for the
deceased. Defendants/Respondents once again are bringing an
application in terms of Rule 30 for an order to declare Mr Mbaeva's
Notice in terms of Rule 15(3) to constitute an irregular step or
proceeding, setting aside the said Notice and to order Mbaeva &
Associates to pay the costs of the application on an attorney and
own client scale, including the costs of one instructing counsel.
Mr Mbaeva is opposing the Rule 30 application and it came before me
for hearing. Both counsel submitted Heads of Argument which they
amplified with oral arguments in support of their case.
The borne of contention between the parties in this application is
whether or not Mr Mbaeva who acted as a legal practitioner of the
late Adelheid Kahee, still has the mandate to act as such after the
said Adelheid Kahee had passed away on 15 June 2010. Further, as
whether Mr Mbaeva in his capacity as the late Adelheid Kahee's
lawyer has authority to bring this application in terms of Rule
15(3) before Court to be substituted for the deceased.
Rule 15(3) provides that "Whenever
a party to any proceedings dies or ceases, to be capable of acting
as such, his or her executor, curator, trustee or similar
by notice to all other parties and to the Registrar intimate that he
or she desires in his or her capacity as such thereby to be
substituted for such party, and unless the Court otherwise order, he
or she shall thereafter for all purposes be deemed to have been so
Mr Mbaeva to succeed in his application, he must show proof that he
is either the executor of the estate of the deceased or he falls
under the category of similar
legal representative. It
is clear from the Heads of Argument of Mr Mbaeva that he did not
apply to be substituted for the deceased in his capacity as an
executor but as a similar legal representative. In fact, in his oral
submissions Mr Mbaeva informed the Court that no executor was
appointed to administer the estate of the late Adelheid Kahee,
because, according to him, the deceased Kahee did not leave any
estate. He said, the only asset that could be listed in the estate
is the house which is the subject of the main application.
Therefore, as I understand his arguments, in his capacity as the
legal practitioner of the late Kahee, without any administrative
appointment from a court of law or the Master of the High Court,
could handle the estate of the deceased further and that he
qualifies to bring this application to court, to be substituted for
the deceased. This is totally wrong in my view.
This wrong approach was brought about by the wrong interpretation of
the phrase "or similar
legal representative" in
sub-rule (3) of Rule 15 by Mr Mbaeva. Mr Mbaeva completely
misunderstood this phrase and attached to it a different meaning. On
page 3 of his Heads of Argument he argues that sub-rule (3)
expressly refers to "a Legal Representative for the deceased."
He further submitted that the sub-rule further makes it very clear
the Court orders otherwise,
the person who desires to be substituted for the deceased person
be deemed to have been so substituted.
He says that because this Honourable court did not order otherwise
he (Respondent) is deemed to have been so substituted. This
submission again is not correct and is rejected. Mr Mbaeva was never
deemed to have been substituted for the deceased.
He argued further that the application of Applicants in terms of
Rule 30 is misplaced and irrelevant. According to him, the Rule 30
application brought against him by Applicants does not request the
court to set aside the substitution for the deceased by him, but
merely requests the court to set aside the Rule 15(3) notice which
he filed. In view of what I have said above, this submission is
irrelevant and does not need further discussion. Mr Mbaeva was never
substituted for the deceased. I have already indicated that he did
not have any administrative appointment authorising him as an
executor of the estate of the deceased or as one having an authority
under similar legal representative.
The other issue which was argued before me is the point raised by
counsel for the Applicant that Mr Mbaeva's mandate to act as the
legal representative for the deceased terminated on 15 June 2010,
the day when she passed away. According to counsel, only the
executor of the estate would have the power to bring this
application to be substituted for the deceased. She said that the
Power of Attorney granted to Mr Mbaeva by the deceased when she was
still alive, did not expand beyond her death. The only person then
who can give instruction to an attorney hereafter, is the executor.
With regard to termination of mandate upon death of instructing
party, Ms Van der Merwe referred the Court to the following
and others v Schoble and Others 1912
TPD 814, the Headnote of which states as follows: "Under
Law 12 of 1870, as under proclamation 28 of 1902 by which it is
repealed, a deceased's estate is vested in an executor testamentary
or dative, and therefore such executor is the only person who has a
locus standi to bring a vindicatory action relative to property
alleged to form part of the estate. Such action cannot be instituted
by heirs ab intestate
no executor has been appointed." Ms
Van der Merwe also referred to Meort
No v Henry Shields-Chat 2001(1)
SA 464 at 469, the relevant part of which reads as follows:
is trite law that the relationship of attorney to a client is based
on a mandatum, with some features which re peculiar to this
particular type of agency. See Goodricke
and Son v Auto Protection Insurance Co Ltd (in Liquidation) 1968
(1) SA 717 (A) at 722H. An attorney's authority come to an end in a
number of ways including death, change of status of the client and
with this authority, counsel submitted that Mr Mbaeva's mandate to
act on behalf of the deceased Applicant came to an end on 15 June
2010, the day when Applicant in the main action, passed away.
Accordingly, according to her, the step or proceeding taken by Mr
Mbeava is irregular and should be set aside in terms of Rule
Ms Van der Merwe further referred the Court to a Namibian High Court
Case No 1668/2004 Namibia
Development Corporation and Aussenkehr Frams (Pty) Ltd (Unreported)
by then Heathcote, AJ delivered on 06 November 2009 at paragraph
where he, while dealing with an application in terms of Rule 30 has
this to say:
defendant must file a notice to defend within 10 days, but if the
person acting for the defendant has no authority to do so, the
"Notice of intention to defend" although filed within 10
days, remains a nullity and no further step taken by any party can
cure the nullity."
this argument Ms Van der Merwe was making a point that the step or
proceeding taken by Mr Mbaeva in terms of Rule 15(3) is a nullity
due to lack of authority.
I have already dealt with Mr Mbaeva's submissions. Therefore, no
longer necessary to deal with them again. Suffice to say that I
agree with the submission by Ms Van der Merwe acting on behalf of
the Respondents. Mr Mbaeva or family members of the deceased were
supposed to approach the Magistrate of the district, wherein the
deceased died to obtain a letter of administration of her estate.
The deceased died intestate and as Mr Mbaeva indicated in his
submissions, that the estate has a zero balance. In my view, a
letter from the Magistrate's court appointing someone to handle the
estate could have been the right step to follow.
As a legal practitioner, Mr Mbaeva must have known that his mandate
to act as a legal practitioner for the deceased terminated on 15
June 2010, the day the deceased passed away. Therefore, for him to
take any further step or proceeding in connection with the matter is
irregular due to lack of authority to take such step or proceeding.
Consequently Applicants/Defendants succeed in their application in
terms of Rule 30.
Applicants/Defendants requested costs to be awarded against Mr
Mbaeva of Mbaeva & Associates on an attorney and own client
scale, including costs of one instructing and one instructed
counsel. The reason being that the estate does not have any assets
according to Mr Mbaeva himself.
In the result I make the following orders:
Applicants' Rule 30 application succeeds; and
that the notice in terms of Rule 15(3) dated 04 August 2010 filed by
Mbaeva & Associates and served on the Applicants on 12 August
2010 is hereby declared to constitute an irregular step or
proceeding as envisaged in Rule 30 of the Rules of this Honourable
that the said notice is set aside.
Mbaeva of Mbaeva & Associates is ordered to pay the costs of the
application on an attorney and own client scale, including costs of
one instructing and one instructed counsel.
BEHALF OF THE APPLICANTS
Van der Merwe