CASE NO. (P) A 172/2005

SUMMARY:

CHARLES GASTON ALBERT
ANGELE VAN HERZEELE

SHARLAE HOLLEY

versus

EPACHA GAME LODGE (PTY) LTD

HOFF, J

2005/10/10

CIVIL PROCESS:

Rescission of default
judgment – requirement of willful default considered.

Summonses served on
applicants.

Applicants ignored
summonses for 10 weeks.

Default judgment
obtained against applicants in interim period.

Applicants required to
give sufficiently full explanation of their default to enable Court
to understand how it really came about and to assess their conduct
and motives.

Applicants failed to
provide any explanation why summonses had been ignored by them.

Such conduct found to be
deliberate or at least grossly negligent.

Court will in absence of
reasonable explanation not come to assistance of applicant who
deliberately chose to disregard process of Court.

In absence of reasonable
explanation it must be found that applicants are in willful default.

Having shown no good
cause application for rescission refused.

CASE NO: (P) A 172/2005

IN
THE HIGH COURT OF NAMIBIA

In the matter
between:

CHARLES
GASTON ALBERT ANGELE

VAN
HERZEELE 1^ST APPLICANT

SHARLAE
HOLLEY 2^ND APPLICANT

and

EPACHA
GAME LODGE (PTY) LTD RESPONDENT

CORAM: HOFF,
J

Heard
on: 2005.09.26

Delivered
on: 2005.10.10

JUDGMENT:

HOFF,
J: This is an application for the rescission of two default
judgments.

Respondent opposed the application. The
applicants are peregrini of this Court and respondent is an
incola.

On 14 February 2005 this Court ordered an
attachment ad fundandum jurisdictionem, in respect of
certain assets of both applicants, pending an action to be instituted
by respondent against applicants for payment of the amount of N$355
501.93 and the delivery of bank statements in possession of
applicants as well as an order to debate an account and documents.

First Applicant in casu in an affidavit
states that upon receipt of the order obtained on 14 February 2005
and after discussions with his legal practitioner Chetwynd-Palmer, it
was decided to wait for service of those summonses and to defend the
action alluded to therein.

First applicant relates that on 7 March 2005 he
arrived home in Durban and found that a large pile of documents had
been left with his housekeeper. He says that upon “receipt of
the documents I looked at it but it did not dawn upon me that the
summonses included in the documents were in respect of the action
alluded to in the order of Court obtained by respondent on 14
February 2005.”

First applicant proceeds as follows:

“I communicated
with Chetwynd-Palmer who informed me that he had received Court
documents from our Windhoek correspondent and that he had arranged a
consultation with counsel for the following day. I was not able to
attend on that consultation.

I was under the
mistaken impression that the documents received by Chetwynd-Palmer
included the summonses and that he, as applicant’s attorney would
deal with it”.

On 7 April 2005 a default judgment was obtained
against the applicants in respect of an amount of N$355 501.93 and on
11 April 2005 default judgment was given against the applicants
ordering them to deliver all bank statements in their possession in
respect of a specified number of entities and to debate the account
and documents.

First applicant states that it was only on 23 May
2005 after receipt of a letter from respondent’s attorneys that he
and his legal practitioner became aware that default judgment had
been granted against applicants and on 24 May 2005 counsel was
instructed to prepare this application for the rescission of the
default judgments.

The Supreme Court of Namibia in the unreported
judgment of Transnamib Holdings Ltd v. Bernhardt Garoëb Case
SA 26/2003 at p.9 in dealing with applications for rescissions of
judgments expressed itself as follows:

“In a long line of
judgments the Courts have by precedent distilled the essential
criteria by which to determine whether “good cause” has been

shown for default
judgments to be rescinded or varied. In Leweis v. Sampoio 2000 NR
186 (SC) at 191 G – H this Court approved the following content
given to the requirements implied by that phrase in Grant v.
Plumbers (Pty) Ltd, 1949 (2) SA 470 (O) at 476 – 477:

“(a) He
must give a reasonable explanation of his default. If it appears
that his default was willful or that it was due to gross negligence,
the Court should not come to his assistance.

2. His application must be bona fide and not
   made with the intention of delaying plaintiff’s claim.

   
   

2. He must show that he has a bona fide
   defence to plaintiff’s claim. It is sufficient if he makes out a
   prima facie defence in the sense of setting out averments which if
   established at the trial, would entitle him to the relief asked for.
   He need not deal fully with the merits of the case and produce
   evidence that the probabilities are actually in his favour.

   
   

(See also SOS
Kinderdorf International v. Effie Lentin Achitects 1990 NR 300 (HC)
at 302 D – F; Kraner & Another v. Metzger (2) 1990 NR 135 at

139 G – J and
Mutjabikua v. Mutual Federal Insurance Company Limited 1998 NR 57
(HC) at 59 D – F”.

It was submitted by Mr. Troskie who appeared on
behalf of applicants that applicants were not in willful default,
that they are bona fide in bringing this application and that
applicants have bona fide defences in respect of both claims.

In respect of the element of willful default Mr.
Troskie referred to the decision of Neuman (Pty) Ltd v. Marks 1960
(2) 170 S.R where the following appears at 173 A - B:

“The true test, to
my mind, is whether the default is a deliberate one – i.e. when a
defendant with full knowledge of the set down and the risks attendant
on his default, freely takes a decision to refrain from appearing”.

It was further submitted on behalf of applicants
that correspondence and other Court documents prove that applicants
were prior to 23 May 2005 under the impression that respondent has
not yet issued summons in respect of the action alluded to in the
order of 14 February 2005.

That may be correct but is there a reason or an
explanation why applicants claim that they had been unaware prior to
23 May 2005, that summons had already been issued ?

The explanation offered by applicants is that a
pile documents had been received on 7 March 2005 amongst which were
summonses. First applicant states that it did not dawn on him that
the summons seen by him was in respect of the action alluded to in
the Court order obtained by respondent on 14 February 2005.

It is clear from the affidavit deposed to by first
applicant that he looked at the summons. He does not explain why it
did not dawn on him that this summons was in respect of an action
respondent promised to institute against him.

First applicant must have looked at the first page
of the summons since he states that he saw a summons. If he had seen
that it was a summons what was his attitude towards such summons ?
It must be remembered that he had received notice that an action
would be instituted and that he was in fact expecting a summons.
First applicant does not explain what he did with that summons. If
he had read it (he does not say so) he would have realized that it
was the summons he was expecting. If he did not read the summons
then surely this is an indication of his attitude in respect of Court
documents. First applicant in my view chose to ignore the summons
received on 7 March 2005 because he looked at it again only on 23 May
2005 after he had been informed that default judgment had been
obtained against him. First respondent cannot be heard to say that
he was unaware that a summons had been issued in circumstances where
he himself deliberately chose to ignore the summons he received.
This Court,

likewise, cannot condone such conduct. First
applicant in my view acted recklessly or at least his failure to deal
with the summons at all amounts to gross negligence.

In Mvaami (Pvt) Ltd v. Standard Finance Ltd
1977 (1) SA 861 (R) at 862 F Davies J considering the requirement
of willful default by reference to the Neuman’s case
expressed himself as follows:

“Willful default
amounting to acquiescence would, however, bar success, and in this
connection it is to be noted that “willful” merely means
“deliberate”.

See also Schmidlin v. Multisound (Pty) Ltd
1991 (2) SA 151 (C)

In Van den Heever J (as her Ladyship then was) in
an application for rescission in terms of Rule 42 said the following
at 15 B:

“Acquiescence in
the execution of a judgment must surely in logic normally bar success
in an application in an application to rescind on the same basis as
acquiescence in the very granting of the judgment would”

and in

Manjean t/a Audio Video Agencies v. Standard
Bank of SA Ltd 1994 (3) SA 801 at 805 E – F King J held as
follows:

“It is, however,
clear that the absence of willful default is a fundamental
requirement in applications of this nature. ….Mr. Lory referred to
a number of authorities which emphasise that rescission applications
require the exercise of judicial discretion. This is surely so.
However, where, the

applicant for
rescission is in willful default, there is no room for the exercise
of such discretion in his favour”.

I have indicated that I regard the conduct of
first applicant deliberate or least grossly negligent. Acquiescence,
in terms of the authorities referred to, can also be a bar to a
successful rescission application.

In my view on the facts presented by first
applicant himself there can be only one inference and that is that he
chose to ignore a summons issued by this Court and first applicant
only looked at it again 10 weeks later. He does not say that he was
under the impression that the summons served was in respect of a
different action neither does he say why he never looked again at the
summons during the intervening 10 weeks. First applicant knew that a
summons had been served. He did nothing for 10 weeks. At the very
best he surely must have acquiesced in whatever consequences would
follow as a result of inaction of which one is that default judgment
would follow.

First applicant, in addition, after having been
served with the summons, never informed his attorney of the service
of such summons. He chose to keep quiet about it. He does not
explain why he did not inform his attorney as one would have expected
him to do.

Gardiner JP in Chedburn v. Barkett 1931 CPD 421
in considering an appeal from the magistrate’s Court for refusing
to rescind a default judgment held as follows on 423:

“I adhere to what
was said in Hendricks v. Allen (1928 CPD at 521), that “if it is
once proved that the summons has been brought to the notice of the
defendant and he has not appeared, then, in the absence of an
explanation on his part which would be accepted, it seems to me that
a presumption arises of willful default, and unless the presumption
is rebutted by the defendant, the Court must take it that willful
default is proved”.

See also Newman v. Ayten 1931 CPD 454 at 455

In Vincolette v. Calvert 1974 (4) SA 275 ECD
applicant had ignored a summons served on him, despite advise to
consult an attorney, since he was of the opinion

that the Court would not grant judgment against
him without proof that the amount claimed was indeed owing by him.

Kotze J referred to the Rules which require a
defendant who receives a summons to deliver a notice of intention to
defend within the dies induciae set out in the summons.

The learned Judge continues at 276 H – 277 A –
B as follows:

“It has been laid
down over many years that one of the requirements to be satisfied in
an application of this nature is a reasonable explanation of
applicants default. ….

I do not think that
the applicant overcomes this first hurdle. His attitude, in effect,
is that he was free to treat the summons which was served upon him
lightheartedly. ….

This attitude is one
of disregard of the process of the Court upon which the Court cannot
place its stamp of approval”.

Although the facts in the Vincolette case
supra are distinguishable from the one under consideration the
same principle applies namely that where an applicant in a rescission
application chose to disregard the process of Court, a Court would in
the absence of a reasonable explanation not come to the assistance of
such applicant.

In the Manjean case at 804 B it was held
that a defendant who knows that default judgment is to be taken
against him does not demur but allows the plaintiff to take his
course, is presumed to be in willful default and is not entitled to a
rescission of judgment.

Second applicant in her affidavit confirmed the
correctness of the affidavit of first applicant in so far as it
refers to her, confirms that until the evening of 23 May 2005 she was
unaware that the action had been instituted and that at all times it
was her intention to defend the action respondent intended to
institute. She is the wife of the first applicant and I accept that
the explanation by first applicant in respect of his failure to
oppose the action instituted by the respondent should also be
accepted as second applicant’s explanation since in her affidavit
she does not provide a separate explanation. In fact she provides no
explanation at all.

It is clear that second applicant must have had
knowledge of the summons served on 7 March 2005 since first applicant
in his affidavit states that it was during the evening of 23 May 2005
when his attorney Chetwynd-Palmer went through the documents which he
had received on 7 March 2005 “that the summonses that were
served on second applicant and myself” were “identified”.

First applicant in his affidavit stated, without
mentioning any dates, that his attorney informed him that he (i.e.
the attorney) had received Court documents from their Windhoek
correspondent and that he was under the “mistaken impression”
that the documents received by his attorney included the summonses
(presumably those summonses served on applicants on 7 March 2005) and
that the attorney would further deal with the matter.

First applicant in his affidavit states that the
next that happened Van der Vijver (the person who acquired first
applicant’s interest in respondent) brought an application which
first applicant opposed and filed an affidavit dated 23 March 2005.
In this latter affidavit first applicant refers to the Court order
dated 14 February 2005 and states that no summons has yet been served
on him in respect of the action alluded to by respondent in that
Court order.

In my view, if it is correct that first applicant
had been under the “mistaken impression” that his attorney
received the summons he had been expecting and that his attorney
would deal with it why would first applicant then in a latter
affidavit state that the summons had not yet been served on him ?

Moreover first respondent does not explain why he
could have been under such “mistaken impression”.

In Metje & Ziegler Bpk. V. Gresse 1959 (3)
SA 698 (SWA) at 700 A Hofmeyer J, as he then was, held that in a
rescission application an applicant must provide the Court with a
reasonable explanation (gegronde rede) and the respondent bears the
onus of proving willful default.

A Court must thus first consider the reason for
applicant’s previous non-appearance. If it is proved that the
non-appearance was due to willful default the application must be
dismissed.

In Federated Timbers Ltd. v. Bosman and Others
1990 (3) SA 149 WLD at 157

E – F.

Zulman AJ with reference to what was said in
Silber v. Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) held
“that in order to show ‘good cause’ a defendant must at
least furnish an explanation of his default sufficiently full
to enable the Court to understand how it really come about and to
assess his conduct and motives”.

(Emphasis mine).

Applicants have failed to provide a reasonable
explanation why summonses had been ignored by them. There is simply
no explanation at all for such grossly negligent conduct.

In the absence of any reasonable explanation it
must be found that applicants were in willful default.

It was submitted by Mr. Heathcote who appeared on
behalf of the respondent that an additional reason why this
rescission application should fail is the lack of bona fide
defences. In the light of my finding that applicants are in willful
default it is not necessary for me to consider the requirement of a
bona fide defence.

No good cause has been shown by applicants why
this Court should exercise its discretion in favour of rescinding the
default judgments against them.

This application for rescission of default
judgments thus stands to be dismissed.

Regarding the question of costs the respondent is
the successful party and therefore entitled to costs.

In the result the following order is made:

The application for rescission of two default
judgments obtained against the applicants on 7 April 2005 and 11
April 2005 respectively is hereby dismissed with costs.

_________

HOFF, J

COUNSEL ON BEHALF OF THE APPLICANTS: MR.
TROSKIE

Instructed by: FISHER, QUARMBY &

PFEIFER

COUNSEL ON BEHALF OF THE RESPONDENT: ADV.
HEATHCOTE

Instructed by: VAN DER MERWE-

GREEFF INC.