REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK RULING ON APPLICATION FOR JOINDER I 2527/2014 In the matter between: UNITED AFRICA (PTY) LTD PLAINTIFF and URAMIN INCORPORATED FIRST DEFENDANT ERONGO DESALINATION COMPANY (PTY) LTD SECOND DEFENDANT URAMIN NAMIBIA (PTY) LTD THIRD DEFENDANT Neutral Citation: United Africa Group (Pty) Ltd v Uramin Incorporated (I 2527/2014) [2017] NAHCMD 315 (3 November 2017) CORAM: MASUKU J Heard: 25 September 2017 Delivered: 3 November 2017 Flynote: Procedure – Application for joinder of parties – Rules of Court – Rule 40 – Jurisdiction of the court over persons who are not domiciled nor have property in Namibia – the doctrine of effectiveness – edictal citation – amendment of pleadings and procedure required in Rule 52. Summary: The plaintiff lodged an application for the joinder of three prospective defendants in the main suit. These additional defendants are
“The jurisdiction of the courts of every country is territorial in its extent and character, for it is derived from the sovereign power, which is necessarily limited by the boundaries of the state over which it holds sway. Within those boundaries the sovereign power is supreme, and all persons, whether citizens, inhabitants or casual visitors, who are personally present within those boundaries and so long as they are so present, and all property (whether movable or immovable) for the time being within those boundaries are subject to it and to the laws which it has enacted or recognised. All such persons and property are therefore subject to the jurisdiction of the courts of the country which the laws have established, so far as the law gives them jurisdiction. Over persons not present within the country jurisdiction can only be exercised to the extent of any property they may possess in the country: and over persons who are not in the country, and have no property in the country, no jurisdiction at all can be exercised.’ (Emphasis added). [45] Further below, on the same page, the learned author makes the following points about the doctrine of effectiveness: ‘Effectiveness was recognised in the definitions of jurisdiction given by Voet and Vromans and Huber points out that the object of the rule is that judgments should be given where they can be enforced because a judgment which cannot be enforced is illusory. This doctrine that jurisdiction depends upon the power of the court to give an effective judgment has long been approved by South African judges and regarded as an essential ingredient in determining the existence or otherwise of jurisdiction. As early as 1904, Steytler NO v Fitzgerald De Villiers JP held that: “A court can only be said to have jurisdiction in a matter if it has the power not only of taking cognizance of the suit, but also of giving effect to its judgment,” and in Morten v Van Zuilecom Dove-Wilson J stated: “The greatest test of the jurisdiction of a court is its power to make its decree effective.”’ [46] Later authorities appear to have eased somewhat on the emphasis on the doctrine of effectiveness as being the sole criterion for the court exercising jurisdiction. The learned authors Herbstein and Van Winsen posit the following on the issue: