Mouton v Workers Advice Centre and Others (APPEAL 61 of 2009) [2009] NAHC 98 (15 May 2009);
CASE NO.: A 61/2009
IN THE HIGH COURT OF NAMIBIA
In the matter between:
DANIEL MOUTON
APPLICANT/DEFENDANT
and
WORKERS ADVICE CENTRE
1ST
RESPONDENT/PLAINTIFF
HEWAT BEUKES
2ND
RESPONDENT/PLAINTIFF
HENDRIK CHRISTIAAN
3RD
RESPONDENT/PLAINTIFF
DEPUTY SHERIFF WALVIS BAY
4TH
RESPONDENT/PLAINTIFF
CORAM: MANYARARA,
A J
Heard on: 15 May 2009
Delivered: 15 May 2009
Reasons on: 19 June 2009
REASONS
MANYARARA, AJ.: [1] This
matter was removed from the roll on 15 May 2009 with costs on the
attorney and client scale to be paid before the matter is set down
with reasons to follow. Mr. Grobler represented the applicant, while
Mr. Beukes and Mr. Christiaans represented themselves as the second
and third respondents, respectively, as well as the first respondent.
[2] It subsequently came to
my attention that Mr. Beukes and Mr. Christiaans are not admitted to
practice in this court and therefore are not entitled to the costs
ordered. Accordingly, the order is hereby set aside and substituted
with the following order –
“The respondents are
entitled to be reimbursed costs reasonably incurred by them, such
costs to be paid before the matter is set down.”
It is for the respondents to
approach the Registrar for guidance on claiming the costs awarded to
them.
[3] I now set out the reasons
for removal of the matter from the roll as follows:
1. On 5 December 2006 the
respondents instituted proceedings against the applicant for payment
for services rendered plus interest on the amount claimed. The
respondents filed an application for summary judgment and the
applicant filed a plea denying that he owed the respondents any
money. It would appear that the pleadings were then completed; an
application for a hearing date was made and the trial was set down
for 20 to 23 January 2009. On 17 December 2008 the attorneys
representing the applicant withdrew their representation and so
informed all concerned of their withdrawal.
2. The matter was called on 20
January 2009 and, upon the non appearance of the applicant, the Court
reserved judgment until 30 January 2009 when the following order was
made:
“IT IS ORDERED
That the 2nd
Plaintiff is granted judgment in the amount of N$50,805.00, plus
interest thereon at the rate of 20% per annum, calculated from the
date of this judgment to the date of payment.
That the Defendant pays the
2nd
Plaintiff his costs, which represent reasonable and necessary
disbursements.
That the 3rd
Plaintiff is granted judgment in the amount of N$24,840.00, plus
interest thereon at the rate of 20% per annum, calculated from the
date of this judgment to the date of payment.
That the Defendant pays the
3rd
Plaintiff his costs, which represent reasonable and necessary
disbursements.”
3. On page 2 of the written
judgment, the Learned Judge (PARKER J) opined as follows:
“3.1 The defendant did
not appear at the trial of the matter by himself or by any legal
representative, and no explanation was placed before the Court,
establishing why there was no appearance by the defendant in person
or by a legal representative for the defendant. Taking into account
the fact that summons in the action was filed in this Court on 5
December 2006, that is, more than two years ago, it is my opinion
that it would be unfair to delay the trial of the matter,
particularly in circumstances where there is no explanation at all
before the Court as to why there is no appearance by the defendant in
person or by a legal representative for the
defendant. Consequently, I
exercised my discretion to proceed with the trial. I requested the
plaintiff to prove their claims as the burden of proof lay on them in
terms of Rule 40(1) of the Rules of Court. Even though the claim is
for a debt or liquidated demand within the meaning of Rule 40(1), I
decided to hear evidence because the plaintiffs rely on an oral
contract within the meaning of Rule 18(6) of the Rules of Court.
3.2 At the commencement of
the proceedings in the trial, Ms Erica Beukes the sole proprietor and
manager of the 1st
plaintiff informed the Court that the 1st
plaintiff was not pursuing any claim against the defendant because
all administrative fees due to the 1st
plaintiff had been paid by the defendant; and I take it that may be
the amount of money the defendant claims he had paid. Consequently,
the matter proceeded in respect of the claims of the 2nd
plaintiff and 3rd
plaintiff only.”
4. It is that judgment which
triggered the present application and the affidavit founding the
application averred as follows:
“4.1 Messrs Metcalfe
Legal Practitioners never informed me that they would obtain a trial
date on my behalf on 15 October 2008, nor was I informed that the
matter would be heard during the week of 20 to 23 January 2009.
I had no idea that I had
to be in Court on 20 January 2009 and the hearing proceeded without
me. At all relevant times I wanted to defend the claims of the
Respondents/Plaintiffs and it was not due to any fault on my part
that I did not appear in Court on 20 January 2009.
The first time I realised
that there was judgment given against me was on Monday 2 February
2009 when the Deputy-Sheriff of Walvis Bay served a Notice of
Execution on me. (Annexure “DM2).
I immediately contacted my
present legal representatives to approach this Honourable Court to
set aside the default judgment against me.
I submit that I was not in
wilful default to appear in Court on 20 January 2009 and I humbly
pray that the Honourable Court will set the default judgment aside.
I furthermore submit that
I have a substantial defence to the claim of the Plaintiffs as set
out hereunder.”
[4] The applicant averred that
it was only after the Deputy Sheriff served a notice of attachment on
2 February 2009 that he learnt of the judgment issued against him and
he “immediately contacted (his) present legal representatives
(in the person of Mr. Grobler) to approach this Honourable Court to
set aside the default judgment (sic)”. The affidavit was only
signed on 24 February 2009 but I have been unable to find the notice
of set down as the papers have not been collated, paginated and
indexed as required by Rule 62(4) of the Rules of Court.
[5] Be that as it may, the
matter was called on 20 March 2009 but postponed to a date to be
arranged with the Registrar. The reason for the postponement was not
disclosed.
[6] The matter was again called
on 5 June 2009. On that date the matter was removed from the roll
and the respondents were awarded costs reasonably incurred in the
matter. The reason for removal of the matter from the roll with an
award of costs against the applicant was also not disclosed.
[7] The record of the hearing
before me proceeds as follows:
“COURT: When did it
(should read ‘when will it’) come before Court?
MR. GROBLER: We have not
got a date yet, we must ask for a date on 17 June. It is only on
that day that we can get a date.”
The next portion of the record
did not clarify the position but, later, the following emerged:
“COURT: No, I wish
you had averred, made all these averments in your affidavit (than)
that you should tell me from the Bar.
MR GROBLER: I submit that
this application is only for a rule nisi to stay the execution till
the Recession Application is heard.
COURT: I do not see the
difference between that, the stay of execution and the application to
rescind Judgment, because that is what you want. You want the
Judgment rescinded.
MR GROBLER: Yes, My Lord.
COURT: Yes, that is what
you want really, not a stay of execution, you want the Judgment
itself rescinded.
MR GROBLER: But until the
application for Rescission of Judgment is heard, the sale of the
house must be stayed for the reasons as set out in my Notice of
Motion. It is a balance of convenience favouring my client, that he
has no other remedy and that he (intervention)”
[8] Mr. Grobler was asked if he
was tendering wasted costs and he replied as follows:
“MR GROBLER: For what
must I tender wasted costs?
COURT: Well I mean for this
hearing for instance.
MR GROBLER: Tender wasted
costs, they can apply for wasted costs for this hearing, but the fact
is that I cannot get a date for a Rescission Application before we
get new dates.
COURT: And you have done
nothing about that so far?
MR GROBLER: I cannot do
anything, My Lord, the rules of the (intervention)”
[9] The ensuing debate did not
take the matter further as it ultimately emerged that all that Mr.
Grobler sought was merely an order to stay execution, in respect of
which he had adopted the wrong procedure because there was no
evidence of any steps taken by the respondents to
sell his client’s house
“immediately.”
Rescission or setting aside of the default judgment entered against
the application on 30 January 2009 is a separate issue for which Mr
Grobler has yet to obtain a date for the hearing from the Registrar.
[10] In the result, I was left
with no alternative but to remove the matter from the roll on the
terms already referred to.
__________________
MANYARARA, J.
ON BEHALF OF THE APPLICANT
Mr Grobler
Instructed by:
Grobler & Company
ON BEHALF OF THE RESPONDENTS
In Person