Court name
High Court
Case number
2500 of 2008
Title

Standard Bank Namibia Ltd v Namupolo and Another (2500 of 2008) [2012] NAHC 26 (15 February 2012);

Media neutral citation
[2012] NAHC 26
Coram
Parker J





CASE NO












Reportable’








SUMMARY








CASE
NO.: (P) I 2500/2008













IN
THE HIGH COURT OF NAMIBIA













In
the matter between:













STANDARD
BANK NAMIBIA LIMITED v MARTHIN LUCKY NAMUPOLO AND ANOTHER













PARKER
J








2012
February 15


_______________________________________________________________________



Practice
-
Trial – In respect of vindicatory
action – Vindicatory claim for return of a thing (a motor
vehicle) which is the object of the vindicatory action – Court
finding second defendant has been in possession of the thing as from
the time second defendant filed his plea – Court accepting that
during the course of the morning before the trial commenced second
defendant’s legal representatives informed plaintiff’s
legal representatives that second defendant no longer had possession
of the thing – Court finding further that the thing had been
sold by a Close Corporation (which held a lien over it) of which
second defendant is the managing member and controller of all its
activities and second defendant in turn had sold the thing to a third
party not a party to the action with the set purpose of keeping it
out of the reach of the plaintiff – Court finding further that
all this was done when the second defendant was aware of the action
and also that the Court has not determined the action – In the
circumstances plaintiff’s counsel informing the Court that
plaintiff was abandoning the action on the merits (including the
issue of estoppel) – Court accordingly accepting counsel’s
argument that a determination of the matter on the merits (including
the issue of estoppel) in due course would be academic and otiose and
so the only relief sought is costs – Court holding that by his
wrongful and improper conduct second defendant thwarted the
plaintiff’s relief and denied plaintiff his entitlement to have
the dispute determined by the Court in violation of plaintiff’s
Article 12(1) (of the Namibian Constitution) right –
Consequently, Court mulcting second defendant with costs on the scale
as between attorney (legal practitioner) and his or her own client.












Held,
where a party’s improper and wrongful conduct prevents another
party from having its rights and obligations determined by a court
seized with the matter in an ongoing proceeding that constitutes a
violation of that party’s Article 12(1) (of the Namibian
Constitution) right, and it is the pinnacle of prejudice that such
litigant can suffer.








Held,
further, the fair and proper administration of justice cannot thrive
if legal representatives were not scrupulous in their dealings with
the courts, and a legal practitioner who failed to inform the court
of the existence of all material matters within his or her knowledge
about which the court should have been informed is guilty of
professional misconduct, and that applies when the Registrar is
carrying out judicial functions













CASE NO.: (P) I
2500/2008













IN THE HIGH COURT OF
NAMIBIA













In the matter between:








STANDARD BANK NAMIBIA
LIMITED
….......................................................Plaintiff








and








MARTHIN LUCKY NAMUPOLO
….....................................................First
Defendant



R ARANGIES t/a AUTO
TECH …..................................................Second
Defendant













CORAM:
PARKER J








Heard on: 2012 February 1



Delivered on: 2012
February 15



_________________________________________________________________








JUDGMENT



_________________________________________________________________







PARKER
J
: [1] The genesis of this matter lies in
an action in terms of summons sued from the Court on 6 August 2008
under case No. I 2500/2008. It is crucial – as will become
apparent shortly – to note at this juncture the parties as
cited on the summons: Plaintiff: Standard Bank Namibia Limited and
First Defendant: Marthin Lucky Namupolo and Second Defendant: R
Arangies t/a Auto Tech. It is also important to note the following,
and I shall revert to it in due course: The plaintiff is represented
by Mr Tötemeyer, SC, instructed by Behrens & Pfeiffer, and
the second defendant by Mr Barnard, instructed by Messrs Chris Roets.
Both instructing counsel have been the same legal representatives of
the parties since the institution of the action on 6 August 2008. I
shall deal with the significance and cruciality of this observation
in due course.


[2]
The thing which is the object
of the plaintiff’s vindicatory action is a motor vehicle 2005
BMW 120i (engine number A295H334 and chassis number OPM63516) which
the plaintiff contends it is the owner thereof and which the second
defendant is in possession thereof. As to the thing; the relief the
plaintiff seeks thereanent is an order directing the first defendant
and the second defendant to return it to the plaintiff and failing
compliance therewith an order directing the Deputy-Sheriff to take it
into his possession and deliver same to the plaintiff.






[3]
In the second defendant’s
plea filed on 1 October 2008, the second defendant states that ‘the
second defendant is Mr R Arangies’. In amplication of the plea,
the second defendant states:







3.3
The Second Defendant, in amplification of his plea
supra,
pleads that the Second Defendant is in fact Auto Tech Panelbeater CC,
a close corporation with limited liability, duly registered and
incorporated in terms of the Close Corporations Act and having its
principal place of business situated at Erf 1123, Industrial Area,
Tsumeb, Namibia.’






Further,
the second defendant admits that the thing is in the second
defendant’s possession and pleads that ‘it is entitled to
possession of such motor vehicle by virtue of a lien over such motor
vehicle.’ The second defendant amplifies as follows:







5.3
The Second Defendant, in amplification of its plea
supra,
pleads that on or about 17 January 2007 at Tsumeb, Namibia, the First
Defendant delivered the damaged motor vehicle to the Second Defendant
with instructions to provide a quotation to repair the motor vehicle
to its pre-collision condition and, if the First Defendant accept
such quotation, to repair the motor vehicle to its pre-collision
condition.’






And
he concludes:







5.16
In the circumstances, and although no contractual relationship exists
between the Second Defendant and the Plaintiff, the Second Defendant
is entitled to payment of its account for storage costs prior to
delivering possession of the motor vehicle to the Plaintiff, or for
that matter, any other party.’






[4]
From all the aforegoing, I make the following
pivotal factual findings; and
a
fortiori, they
are facts that are undisputed. First, as Mr Tötemeyer submitted,
that the plaintiff held the highest interest in the thing is not
disputed: not disputed by either the first defendant or the second
defendant. Second, as far back as 1 October 2008 (the date on which
the second defendant filed his plea, as aforesaid) this fact was in
the knowledge of the second defendant and of his instructing counsel.
That is to say; both the second defendant and his legal
representatives were aware and knew that the thing was the object of
the present ongoing civil action (under Case No. I 2500/2008) to
which the plaintiff, who has the highest interest in the said thing,
and the first defendant and the second defendant are parties, and
further that the Court had not yet determined the parties’
rights and obligations in the action, to which determination the
parties are entitled in terms of Article 12(1) of the Namibian
Constitution. Despite this legal and constitutional fact which, as I
say, was well known to Chris Roets, the instructing counsel and the
legal representatives of the second defendant, the following was
done: Auto Tech Panelbeater CC (represented by the selfsame Christ
Roets) of which the second defendant was at all material times (in
the second defendant’s own words) ‘the managing member’
and which the second defendant (again in the second defendant’s
own words) ‘has at all material times been in control of all
its activities in such capacity’, brought an application for
judgement by default before the Registrar under Case No. I 4609/2009
and obtained judgment on 29 April 2010. And with great verve, Mr
Barnard harped on the fact that the selfsame thing was sold in
execution of the Writ of Execution that was obtained pursuant to the
aforementioned judgment by default obtained on 29 April 2010. And for
Mr Barnard – seemingly taking his cue from his instructing
counsel – ‘there is no basis upon which the Court can
come to any finding relating to the impropriety of the sale in
execution (of the thing)’.






[5]
With the greatest deference to Mr Barnard; Mr
Barnard misses the point. It is trite that it is the duty of a
litigating party’s legal representative to inform the court of
any matter which he or she is aware. A legal representative who
appears in court is not a mere agent for his client, but has a duty
towards the Court to ensure the efficient and fair administration of
justice. The fair and proper administration of justice cannot thrive
if legal representatives were not scrupulous in their dealings with
the Court. This duty of legal representatives is stated succinctly
thus in
State v Baleka and Others
1988 (4) SA 688 T at 705E:







The
administration of justice is founded upon the preservation of the
dignity of the Courts. It is the duty of counsel and attorneys to
assist in upholding it. They are not mere agents of the clients;
their duty to the Court overrides their obligations to their clients
(subject to their duty not to disclose the confidences of their
clients).’






Indeed,
in England a solicitor who failed to inform the Court of all material
matters within his or her knowledge about which the court should have
been informed is guilty of professional misconduct. I see no reason
why a legal practitioner in Namibia should not stand in the same
position (
Halsbury’s Law of
England
, Fourth edn: paras 299, 304).
Moreover, I see no good reason why all this should not apply to legal
representatives when they apply to the Registrar for judgment by
default in terms of rule 31 of the Rules, that is, when the Registrar
is carrying out judicial functions. I have no doubt in my mind that
Chris Roets knew very well that if they had informed the Registrar of
the pending matter under Case No. I 2500/2008 the Registrar would not
have granted the judgment by default; and so they decided not to cite
the plaintiff in the application or inform the Registrar of the
existence of Case No. I 2500/2008.






[6]
Thus, in the instant case it cannot seriously be
argued that despite their duty to the Court and the Registrar, Chris
Roets acted professionally and honourably when they brought the
default judgment application and obtained judgment without as much as
joining the plaintiff who the second defendant and his legal
representatives, Chris Roets, knew very well has the highest interest
in the thing which is the object of the present action. It is as
clear as day that in the bringing of the application, in the
obtaining of judgment, in the filing of the Notice of Sale in
Execution and in the sale of the thing in execution the second
defendant, represented at all material times by Chris Roets, decided,
without a wraith of justification, to disregard – as it were –
the plaintiff; the plaintiff who is the owner of the thing and when
the thing is the object of the ongoing action in the selfsame Court,
as I have said more than once. It matters two pence whether the
default judgment application was made to the Registrar of the Court.
And yet Mr Barnard submits that ‘there is no basis upon which
the Court can come to any finding relating to the impropriety of the
sale in execution’. I do not, with respect, accept Mr Barnard’s
submission: it has no merit and it adds no weight.






[7]
Keeping all the aforegoing in my mental spectacle,
I feel confident in holding that the sale in execution of the thing
was not only improper, it was also wrong; and the impropriety and
wrongfulness was informed by the seemingly unprofessional and
dishonourable conduct of Chris Roets who, as I have said
ad
nauseam
, are the instructing counsel at
all material times in the present matter and further that the sale in
execution of the thing is the apogee of impropriety and wrongfulness
on the part of the second defendant in this matter. Indeed, the
impropriety of the sale in execution assumes even greater heights
when, as Mr Tötemeyer submitted – and it was not
challenged or controverted – the second defendant who ‘at
all material times was the managing member’ of the Auto Tech
Panelbeaters CC and was in control of all its activities in that
capacity – as he himself says – bought the thing from the
CC (who, according to the second defendant, held a lien over the
thing) and thereafter sold it to a third party with the set purpose,
as I find it to be, of keeping the thing out of the reach of the
plaintiff. As a result of the improper and wrongful conduct of the
second defendant, assisted in no small measure by the seemingly
unprofessional and dishonourable conduct of Chris Roets, when the
trial (at which the issue of estoppel was going to be argued first as
a separate issue before the rest of the merits) commenced Mr
Tötemeyer informed the Court as follows. Counsel stated that the
said conduct of the second defendant had changed plaintiff’s
position. The thing is no longer in the second defendant’s
possession contrary to what the second defendant had stated in his
plea as far back as 30 September 2008: the thing is now in the
possession of a third party. For that reason Mr Tötemeyer
submitted that there was no purpose for the plaintiff to pursue the
action on the merits any longer (including the issue of estoppel). I
accept the submission as reasonable: any determination made by the
Court in due course in the action on the merits, including the
estoppel issue, will be merely academic and, indeed, otiose, as a
matter of law. Consequently, I have no difficulty – none at all
– in accepting Mr Tötemeyer’s submission that the
second defendant’s improper conduct has thwarted the relief
sought by the plaintiff in the present matter.






[8]
Thus, the powerful submission
by Mr Barnard that the plaintiff had been warned well in advance that
he had misjoined the second defendant and that the plaintiff did
nothing to remedy the misjoinder cannot advance the case of the
second defendant: the submission rather destroys and buries the
second defendant’s case. It goes to buttress the finding I have
made previously that the conduct of the second defendant respecting
the default judgment application and matters connected therewith is
improper, wrong and, indeed, ‘reprehensible’, as Mr
Tötemeyer put it. The reason is that aware of the plaintiff’s
ownership of the thing and the fact that the individual rights and
obligations of the parties thereanent were yet to be determined by
the Court, the second defendant acted in the manner set out
previously and thereby thwarting the relief sought by the plaintiff
in the vindicatory action as it has prevented the plaintiff from
having its rights and obligations determined by this Court; and that,
in my opinion, is a violation of the plaintiff’s Article 12(1)
basic right guaranteed to it by the Constitution.






[9]
Nevertheless, in the face of all this, Mr Barnard
speculates that the plaintiff would have failed on the estoppel issue
and that the plaintiff would have had to lead evidence to prove its
contention thereanent. I agree. But I fail to see what makes Mr
Barnard think that Mr Tötemeyer would not have adduced evidence
in that direction, seeing that the present is a trial proceeding. I
am constrained to say, and with great respect, that it appears to be
cynical of Mr Barnard, who represents the very person who has
thwarted the plaintiff’s relief by his improper and wrongful
and reprehensible conduct which has stood in the plaintiff’s
way, preventing the plaintiff from pursuing all the relief it has
prayed for in the summons, to now say that the plaintiff would have
been expected to adduce evidence to prove its case. As Mr Tötemeyer
stated in reply thereto, that is what he would have done had the
second defendant, by his improper and wrongful conduct, not thwarted
the plaintiff in his pursuit of all the relief sought in the summons.
And so, apart from costs the plaintiff seeks no further relief on the
merits. As I have said previously, it is a reasonable approach, if
regard is had also to the fact that it was just moments before the
trial began that the second defendant’s legal representatives
informed Mr Tötemeyer that the second defendant was no longer in
possession of the motor vehicle (the thing) as he had sold it to a
third party, as aforesaid.






[10]
Thus, in the circumstances and on the facts of the
case, Mr Tötemeyer, therefore, prays the Court to mulct the
second defendant with costs on the scale as between attorney (legal
practitioner) and his or her own client up to the date of the trial,
even though the plaintiff has decided to abandon the action on the
merits, including the estoppel issue, due to those circumstances.






[11]
As respects costs; I accept – in principle,
of course – Mr Barnard’s submission that since the
plaintiff has abandoned the action, it is rather the plaintiff who
should pay the second defendant’s costs, and on a scale as
between party and party. (See
Central
Maintenance Close Corporation v Council for the Municipality of
Windhoek
Case No. I 3671/2007
(Unreported).) It is my view, however, that the principle there
cannot apply in the instant case. In the instant case, as I have said
many times, the plaintiff has been forced by the improper, wrongful
and reprehensible conduct of the second defendant (who –
significantly – was legally represented at all material times
by Chris Roets, Mr Barnard’s instructing counsel) to abandon
the action on the merits, including the issue of estoppel on the
basis that any determination by the Court of the matter on the merits
in due course, including the estoppel issue, would be otiose and
academic, as aforesaid. For that reason, to award costs to the second
defendant would indubitably be tantamount to rewarding the second
defendant for his improper and wrongful conduct.








[12] In a civilized,
democratic and constitutional State like ours decent persons approach
the courts for the courts to determine any disputes they may have
with other persons or any right they may wish to assert because they
do not want to take the law into their own hands. Need I say more:
that, in essence, the second defendant’s improper and wrongful
conduct amounts to the second defendant taking the law into his own
hands; and, what is more, it amounts to preventing the Court from
determining the action that it was seized with – much, in my
opinion, to the severe and irredeemable prejudice of the plaintiff.
But, Mr Barnard asks rhetorically, ‘What is the prejudice?’
In my view the prejudice is the plaintiff being prevented from having
his rights and obligations determined by this Court on the merits,
including the issue of estoppel, respecting the thing in which it has
the highest interest. That, I must signalize, is the pinnacle of
prejudice that such litigant can suffer in judicial proceedings. And
so, therefore, for all that, in my opinion, the second defendant must
be made to pay, and pay in the form of special costs so as to signify
the Court’s utter disapproval and censure of the second
defendant’s improper and wrongful conduct that has resulted in
the violation of the plaintiff’s Article 12(1) (of the Namibian
Constitution) basic right, as I have said more than once.








[13] While I have not
found that in bringing the aforementioned default judgment
application Chris Roets acted outwit their mandate, I find that the
defendant gained directly in the chicanery of buying the thing from
the very CC he (in his own words) is ‘the managing member’
of and all of whose activities he alone controls, and of selling the
thing to a third party with the set purpose of keeping the thing out
of the reach of the plaintiff, as I have found previously. But for
these considerations, I would have ordered costs de bonis propriis
against Chris Roets, the legal representatives of the second
defendant.








[14] The aforegoing
reasoning and conclusions are unaffected by the ‘Supplementary
Note on behalf of Second Defendant’ that was served on the
plaintiff’s legal representatives on 2 February 2012 (that is,
after the sitting of the Court) and whose placement on the Court’s
file the plaintiff’s legal representatives have objected to.







[15]
In the result, I make the following order:







1. The abandonment of the
action by the plaintiff on the merits (including the issue of
estoppel) is hereby confirmed.







2. The second defendant
must pay the plaintiff’s costs on the scale as between attorney
(legal practitioner) and his or her own client up to 1 February 2012.

















________________



PARKER J






































COUNSEL ON BEHALF OF
THE PLAINTIFF:



Adv. R Tötemeyer SC








Instructed by: Behrens
& Pfeiffer


















COUNSEL ON BEHALF OF
THE SECOND DEFENDANT:



Adv. T Barnard








Instructed by: Chris
Roets