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Fidelis Munyoro Chief Court Reporter
Germany businessman, Mr Steffen Hans Kammler’s bid to sue local businessman John Mapondera over a US$200 000 equity deal involving a South African energy company, hit a snag after the High Court struck the claim off the roll.
Mr Kammler brought an action against Mr Mapondera, the chief executive the Locan Holdings, claiming the sum of US$200 000 in June last year, a claim which allegedly arose from an agreement of sale entered into between the parties.
The terms of the agreement indicated that Mr Kammler allegedly sold and transferred to Mr Mapondera 42,5 percent of his shares in Nexon Energies South Africa (Pvt) Limited for an agreed price of US$350 000.
Mr Kammler further alleged that on January 17, 2020, Mr Mapondera signed a promissory note in favour of the former where he promised to pay him the sum of US$200 000 on January 31, 2020 as part payment of the purchase price.
Mr Mapondera, through his lawyer Advocate Method Ndlovu, instructed by Rubaya and Chatambudza law firm, argued that the agreement referred to by Mr Kammler was only a preliminary agreement.
In terms of the preliminary agreement, Mr Kammler offered to sell his shares to Mr Mapondera, but he never purchased the shares.
He conceded to have signed the promissory note as part and parcel of the requirements to access the loan.
At the hearing, Justice Samuel Deme, heard that Mr Kammler, who is based in Germany, had his affidavit not authenticated.
In light of this, Adv Ndlovu argued that the founding affidavit was a nullity for want of compliance with the Rules of the High Court.
But Mr Kammler’s lawyer argued that the authentication was in order and genuine, insisting that there was no law requiring the notarial seal to be on the same page with the affidavit itself.
After considering submissions by both parties’ counsel, Justice Deme ruled that it was compulsory that Mr Kammler’s affidavit be authenticated in terms of the Rules, finding that there was no explanation why the notarial seal failed to be on one of the pages of the founding affidavit sought to be authenticated.
Rather, Mr Kammler’s lawyer simply submitted that the notarial seal was in compliance with the rules.
Although the rules referred to did not specify that the authentication must be on one of the pages of the document authenticated, Justice Deme said having a seal authenticating the document as an annexure to the document sought to be authenticated was rather unusual and not a good practice.
“Thus, the document in question must not only be authenticated but rather it must be sufficiently authenticated,” he said.
“Accepting the notarial seal which is a supplement to the founding affidavit will set a bad precedent. This will have the effect of compromising the justice delivery system.
“I am of the opinion that the founding affidavit was not sufficiently authenticated. Rather, it was questionably authenticated.”
The office of a notary public is very important and his signature together with his seal of office is so important that it commands international recognition to an extent that the mere exhibition of a notarised document is absolutely acceptable for judicial purposes.
“For this reason, therefore, a notary public’s office should be protected and recognised for what is worth,” said Justice Deme.
“Thus, the effect of this is that there is no application before me. The applicant does have an option of rectifying this irregularity.
“For this reason, the most appropriate decision is to have the matter struck from the roll for want of compliance with the rules.”
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