THE HIGH COURT OF NAMIBIA
the matter between:
BANK NAMIBIA LIMITED
GEIER, A J
The parties are agreed that the only issue that I have to determine
at this stage of the proceedings is whether or not the 1st
this matter, being an Application for the rescission of a Judgment
granted against the 2nd
This Application was brought in terms of Rule 44(1)(a) of the Rules
of High Court, which provides that such Application may be brought by
" ... any party affected thereby... ".
It appears from the commentary made in Erasmus Superior Court
Practice at page B1- 308 revision service 35/2010 that the phrase
'any party affected thereby' is to be interpreted to mean that :
An Applicant under this sub-rule must show, in order to establish
he or she has an interest in the subject matter of the judgment or
order sufficiently direct and substantial to entitle him or her to
have intervened in the original application upon which the judgment
was given or order granted. He or she must have a legal interest in
the subject matter of the action which could be prejudicially
affected by the judgment of the court.
Amongst those authorities is the case of Standard
General Insurance Co Ltd v Gutman NO 1981 (2) SA 426 (C) 433H-434C
were the following was stated:
question of what class of persons has the necessary locus standi to
bring an application for the rescission of a judgment was considered
in the United Watch & Diamond Co Ltd and Others v Disa Hotels Ltd
and Another 1972 (4) SA 409 (C)...
J, ( as he then was), in dealing with the question of their locus
standi to bring the application said at page 415A-B:
my opinion, an applicant for an order setting aside or varying a
judgment of order or a court must show in order to establish locus
standi that he has an interest in the subject matter of the judgment
or order sufficiently direct and substantial to have entitled him to
intervene in the original application upon which the judgment was
given or order granted. Before this approach can be usefully applied,
however, it is necessary to determine more closely the right of a
party to intervene in legal proceedings.
concluded such an examination which involved a consideration of the
principles applicable, where a defendant demanded the joinder of
another party or the Court so ordered. Corbett J came to the
conclusion (at 416 B-C) that
leave to intervene was sought -
, the test of a direct and a substantial interest in the subject
matter of the action is again regarded as being the decisive
Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O) Horwitz
J with whom Van Blerk J concurred held that the 'direct
interest' required by the Appellate decision, in Amalgamated
Engineering Union v Minister of Labour 1949 (3) SA 637 (A) in which
it was held that a person having a 'direct and substantial interest'
in the litigation should be joined as a party connoted
interest in the right which is the subject matter of the litigation
and is not merely a financial interest which is only an indirect
interest in such litigation".
169H) Applying this test, Corbett J held that the
Applicants in the United Watch and Diamond case, supra had no locus
standi to apply for rescission of judgment, despite the fact that
they could be prejudicially affected by it".
I also refer to the case, the Namibian case of Clear
Channel Independent Advertising Namibia (Pty) Ltd and Another v
Transnamib Holdings Ltd and Others 2006 (1) NR 121 HC at138 paragraph
In the further Namibian decision of Stelmacher
v Christiaans 2008 (2) NR 587 HC his
Lordship Mr Justice Silungwe held at page 591 C in paragraph 16
expression interested person judicially means someone who has a
direct and substantial interest in the subject matter and the outcome
of the litigation. The interest must be a real interest not merely an
abstract or academic interest. A mere financial or commercial
interest will not suffice".
Benefit Friendly Society case,
supra at page 124
It appears from paragraph 3 of the founding papers that the 1st
is alleged to be a creditor of the 2nd Applicant in the amount of one
hundred thousand Namibian Dollars (N$100 000.00) in respect of a
consent to Judgment which is annexed to such papers marked A.
Mr Maletzky, who appeared in person also deposed to a confirmatory
Affidavit in which he confirms the allegations of the 2nd
as made in the founding papers and more particularly the 1st
confirm that I am the 1st
in this matter and that my interest in the matter stem from the
acknowledgment and consent to Judgment by the 2nd
I confirm that I have a compelling interest in the hearing of this
matter as I stand to loss one hundred thousand Namibian Dollars
(N$100 000.00) due to me in terms of the aforestated claim. I say,
should the property in question have been sold for its true market
value, as indicated in the evaluation of the property annexure C of
the Founding Affidavit herein, I would have stand a real chance of
being paid by the 2nd
herein. Furthermore, I say that it is apparent that the property was
sold for almost half of its market value and the result in decrease
in the 2nd
estate negatively impacts on my rights as 2nd
Annexure A to the founding papers is a consent of judgment which is
dated the 2nd
of March 2009 and it reads:
Harold Samuel Goraseb, bearing of a Namibian identity number
64121300157, adult Namibian male 44 years of age and resident at Erf
1200 No. 16 Ngama Street, Khomasdal Windhoek, Namibia, do hereby
admit liability in the amount of one hundred thousand Namibian
Dollars (N$100 000.00) to August Maletzky. Accordingly I consent to
Judgment in the aforesaid amount.
at Windhoek on the 2nd
of March 2009.
It appears that Default Judgment herein was granted some months prior
to this consent to Judgment.
It follows also from the aforesaid authorities that the 1st
had to show that he was a party affected by that Judgment, within the
parameters of the judicial authority that I have just quoted.
As such he had to show that he had an interest in the subject matter,
sufficiently direct and substantial to have entitled him to have
intervened in the original action.
This is neither alleged nor shown. This is also not the cause of the
alleged interest which is stated to be in essence 'the risk of
loosing one hundred thousand Namibian Dollars (N$100 000.00)' as the
property in question was sold below its true market value, as a
result of which 1st
risk of not being paid increased.
These allegations show that the 1st
concerns do not, and at no stage, really related to the merits or
demerits of the 1st Respondent's claim against the 2nd
There is nothing on the papers before me which shows that the consent
to judgment which was given on the 2nd
May 2009 would have entitled the 1st
to intervene in the original case before default judgment was granted
against the 2nd
interest herein is also clearly of a financial nature only.
Despite Mr Maletzky referring me to South African authority, in the
National Bank and Agribank case 2006 (BCLR) 536 (O) at
which seems to be authority to the effect that also a purely
financial interest would afford an applicant the necessary locus
intervene or to bring an application of rescission in terms of Rule
44, I am bound to follow the Namibian line of authority which is
clearly to the effect that a purely financial interest does not vest
a party to intervene in proceedings or to bring an application for
rescission as a party affected in terms of Rule 44.
In the result the following Order is made:
is declared not to have the necessary locus
have brought this application for a rescission of judgment under case
point in limine,
this regard, is accordingly upheld with costs, such costs to include
the costs of one instructed and one instructing counsel.
BEHALF OF THE APPLICANT IN PERSON
BEHALF OF THE 1st
BEHALF OF THE 2nd