Rema Tip Top Namibia (Pty) Ltd and Others v Thalmaier and Others (APPEAL 209 of 2009) [2011] NAHC 80 (17 March 2011)

Rema Tip Top Namibia (Pty) Ltd and Others v Thalmaier and Others (APPEAL 209 of 2009) [2011] NAHC 80 (17 March 2011)

The applicants failed to prove authority to institute the application as required by law and the shareholders agreement. The doctrine of derivative action does not apply as the first applicant was not joined as a respondent. The application is not properly before the Court and must be dismissed.

Citation
[2011] NAHC 80
Parties
Applicant: Rema Tip Top Namibia (Pty) Ltd; Applicant: Sepp Mathias Rom; Applicant: Romteetz Investments CC; Respondent: Sepp Thalmaier; Respondent: Thorsten Wach; Respondent: Stahlgruber Otto Gruber AG; Respondent: Nenana Management Service (Pty) Ltd
Court
High Court
Jurisdiction
Namibia
Judgment Date
17 March 2011
Case Number
APPEAL 209 of 2009
Procedural Posture
Notice of Motion (application) / Ruling on Preliminary Objections
Outcome
Application dismissed with costs
Legal Topics
Jurisdiction, Locus Standi, Authority to Institute Proceedings, Derivative Action
Source Language
English
Company Law Civil Procedure Jurisdiction Locus Standi Authority to Institute Proceedings Derivative Action

Case Brief

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Parties

Rema Tip Top Namibia (Pty) Ltd

Applicant

Sepp Mathias Rom

Applicant

Romteetz Investments CC

Applicant

Sepp Thalmaier

Respondent

Thorsten Wach

Respondent

Stahlgruber Otto Gruber AG

Respondent

Nenana Management Service (Pty) Ltd

Respondent

Procedural Posture

Notice of Motion (application) / Ruling on Preliminary Objections

Legal Issues

  1. 1 Whether the High Court of Namibia has jurisdiction over the second respondent who is resident and domiciled in South Africa
  2. 2 Whether the applicants have locus standi and authority to institute the application
  3. 3 Whether the doctrine of derivative action applies in the circumstances

Ratio Decidendi

The applicants failed to prove authority to institute the application as required by law and the shareholders agreement. The doctrine of derivative action does not apply as the first applicant was not joined as a respondent. The application is not properly before the Court and must be dismissed.

Court Disposition

Application dismissed with costs

Orders

  • The application is dismissed with costs, including costs for one instructing and one instructed counsel, in favour of the first respondent and the second and fourth respondents.