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CASE NO. A 130/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

BEAUHOMES REAL ESTATE (PTY) LTD

t/a RE/MAX REAL ESTATE CENTRE 1^ST APPLICANT

AUGUSTINUS KATITI 2^ND APPLICANT

JANET GISELA GASES 3^RD APPLICANT

and

NAMIBIA ESTATE AGENTS BOARD RESPONDENT

CORAM: HOFF, J

Heard on: 2008.08.12

Delivered on: 2008.09.19

JUDGMENT:

HOFF, J: [1] The respondent approached this Court on 22 May 2008, on notice of motion, for certain relief namely for the withdrawal of a fidelity fund certificate issued to the second applicant, erroneously, as contended by the respondent and for the return of such certificate to the respondent. The applicants subsequently on 28 May 2008 gave notice of their intention to oppose the application.

On 29 May 2008 the applicants gave notice in terms of Rule 30 of the Rules of this Court that an application would be made on 30 May 2008 for an order in the following terms:

“1. Setting aside Applicant’s notice of motion dated 29 May 2008 with costs on the ground that the application were (sic) not served as provided for in Rule 4 (1)(b) of the Rules of the High Court.

2. Setting aside Applicant’s notice of motion dated 22 May 2008 with costs on the grounds that the application does not comply with Rule 6 (5)(a) and (b) of the Rules of the High Court.

2. The Respondents being prejudiced by the short service of the application and the non-compliance of the Rules of the above Honourable Court.”

[2] The respondent raised two points in limine. The first point was that the applicants did not comply with the provisions of Rule 30(5) and the second point was that a notice opposition to the application is, contrary as contended by the applicants, a further step or proceeding taken with the knowledge of the irregularity.

[3] In respect of the first point in limine this Court was referred to a recent unreported judgment (delivered on 11 July 2008), Standard Bank of Namibia Ltd v Nationwide Detectives and Professional Practitioners CC (Case no. (P) I 811/2007 in which it was held that a party should in terms of Rule 30(5) give notice to his opponent to afford him an opportunity to remove the cause of the complaint within 10 days of becoming aware of the irregularity. The Court relied on Khunou and Others v Fihrer & Sons 1982 (3) SA 353 at 361 A – B as authority for its finding.

It is my respectful view that Khunou (supra) does not support such finding. Furthermore governing judicial authority (Norman & Co. (Pty) Ltd v Hansella Construction Co. (Pty) Ltd 1968 (1) SA 503 TPD; and ABSA Bank Ltd v The Farm Klippan 490 CC Ekenhof Plastics Bottling Co. (Pty) Ltd and Others v BOE Bank Ltd (formerly known as NBS Boland Bank Ltd) 2000 (2) SA 211 WLD) had not been brought to the attention of the Court and was thus not considered by the Court.

[4] In the Hansella Construction case (supra) Trollip J in considering the applicability of the provisions of Rule 30(5) in respect of Rule 21(6) concluded as follows at 504 E – G:

“… the general rule in 30(5) was obviously intended to apply in all those cases where a particular Rule did not itself provide for a special sanction for non-compliance with a notice or request, as, for example, in Rules 14(5), 14(9), 36(2) and 37(1). But where such special sanction was provided as, for example, in Rules 21(6) and 35(7), that was to apply instead of Rule 30(5). To try to read such Rules with and subject to Rule 30(5) would be not to supplement them but to supercede or destroy them. In fact if Rule 30(5) does apply then Rule 31(6) would have been quite unnecessary and can be ignored. That could never have been the intention.”

[5] The reference to Rule 31(6) should read Rule 21(6) since there was never a Rule 31(6).

[6] This Court is thus at liberty not to follow the Standard Bank of Namibia case (supra) because of misplaced reliance on non-applicable case law and an obvious oversight of existing governing case law.

[7] In my view Rue 30(5) is not applicable to the provisions of the other subsections of Rule 30.

[8] The first point in limine is accordingly dismissed.

[9] Regarding the second point in limine it has been held that a notice of intention to defend is not a further step taken but merely an act done with the object of qualifying the defendant to put forward his defence.

(See Singh v Vogel 1947 (3) SA 400 (C) at 407; African Guarantee & Indemnity Co. Ltd v Mills NO 1955 (2) SA 522 (T); Killarney of Durban (Pty) Ltd v Lomax 1961 (4) SA 93; and Western Bank Bpk v De Beer 1975 (3) SA 772 (T) at 775 A).

This second point in limine is accordingly also dismissed.

[10] I shall accordingly now deal with the merits of the Rule 30 application. It was submitted by Ms Angula who appeared on behalf of the applicants that the main application should be set aside as an irregular step or proceeding on two grounds, firstly, that the application was not served on the applicants in the manner prescribed by the Rules, and secondly that the application was brought as if one on urgency contrary to the provisions of Rules 6 (5)(a) and (b).

[11] Mr Nkiwane who appeared on behalf of respondent submitted that in respect of the first ground that prior to the bringing of the main application correspondence had been exchanged between the legal representatives of the parties and since the legal representatives of the applicants had been acting as agents, service could have been effected on the legal representatives of applicants in compliance with Rule 4 (1)(a)(vi) of the Rules of this Court which reads as follows:

“(1)(a) Service of any process of the Court directed to the sheriff and subject to the provisions of paragraph (b) any document initiating application proceedings shall be effected by the sheriff in one of the following manner, namely –

6. by delivering a copy thereof to any agent who is duly authorised in writing to accept service on behalf of the person upon whom service is to be effected;”

(Emphasis provided).

[12] The service of the notice of motion in respect of all three applicants had been effected on a secretary employed by the legal firm then acting on behalf of the first respondent. 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.

In addition the agent’s authorisation should be exhibited to the officer effecting the service and this fact should be stated in the return of service.

(See Loesch v Loesch 1967 (4) SA 740 TPD at 741 E – F).

[13] This fact, in casu has not been reflected in the respective returns of service of the applicants.

[14] It has been held that the issue of a summons is the initiation process of an action and has certain specific consequences, one of which is that it must be served in terms of the methods of service prescribed by the Rules and that mere “knowledge” of the issue of a summons is not service which could relieve a plaintiff of his or her obligation to follow the prescribed Rules.

(See First National Bank of SA Ltd v Ganyesa Bottle Store (Pty) Ltd and Others First National Bank of SA Ltd v Schweizer Drankwinkel (Pty) Ltd and Another 1998 (4) SA 565 NCD at 568 B- C).

[15] Where proper service had not been effected, such service may be regarded as a nullity.

In SA Instrumentation (Pty) Ltd v Smithchem (Pty) Ltd 1977 (3) SA 703 NPD at 706 E – F it was held that where there was no service on the defendant company in terms of the provisions of Rule 4 (1)(a)(v) that such a service was a nullity and that the Court could under the particular circumstances of that case not condone the improper service.

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 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 that 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.

The provisions of Rule 4 (1)(b) apply inter alia, to interlocutory applications or applications in terms of Rue l43 in pending divorce proceedings where there are already attorneys of record. It was for this reason also improper to have served the notice of motion on the firm acting on behalf of the applicants.

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

In casu there is no proof that the applicants have given a mandate to the relevant firm to act on their behalf in court proceedings. It may happen that one legal firm acts for a party prior to the institution of legal proceedings (e.g. with the aim of settling a dispute out of court) whilst a different legal firm may be mandated by such a party to act as legal representatives during court proceedings.

[17] It was submitted on behalf of the respondent that there was no prejudice to the applicants by service of the notice of motion on the legal firm who acted for them at that stage.

The answer to this submission is simply that the prejudice to the applicants is inherent in the fact that the notice of motion was never served on the applicants.

[18] Regarding the second point in limine the respondent conceded that the notice of motion was couched in the wrong form but again submitted that applicants suffered no prejudice and that this Court has the inherent power to condone the improper form of the notice.

[19] I do not intend to consider this second point in limine since my finding regarding the first point in limine is that the service of the notice of motion on the legal firm constituted an irregular step which stands to be set aside.

[20] In the result the following order is made:

The Rule 30 application is upheld with costs.

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HOFF, J

ON BEHALF OF THE 1^ST, 2^ND AND 3^RD APPLICANTS: MS ANGULA

Instructed by: LORENTZANGULA INC.

ON BEHALF OF THE APPLICANT: MS NKIWANE

Instructed by: KWALA & COMPANY INC.

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