REPUBLIC OF
NAMIBIA

CASE
NO.: A83/2009

IN THE HIGH
COURT OF NAMIBIA

In the matter
between:

UWE BERTRAM

Applicant

and

AGRA
CO-OPERATIVE LTD
Respondent

CORAM: VAN
NIEKERK, J

Heard: 11 May 2010

Delivered: 17
September 2010

___________________________________________________________________________

JUDGMENT

VAN NIEKERK,
J: [1] The applicant seeks leave to file a replying
affidavit out of time. In order to adjudicate the merits of this
application, it is necessary to refer to the history of the main
application and some of the issues raised therein.

[2] During March
2009 the applicant, who resides in Omaruru, filed an application to
rescind a default judgment granted in favour of the respondent on 26
September 2008. Further ancillary relief is claimed. From the
application it appears that respondent had issued summons on 18 July
2008 on an acknowledgement of debt signed by applicant in favour of
respondent on 11 April 2005. Applicant had undertaken to pay the
amount indebted, which was N$852 035, in 10 instalments of N$80 000,
plus interest, commencing on 10 April 2005 and to continue payments
as agreed upon in a schedule attached to the instrument of debt.
Should applicant fail to make payment as agreed, the outstanding
amount as well as any other amount owing, became payable forthwith.
In the alternative respondent relied on an agreement in terms of
which the respondent would lend and advance certain sums of money to
the applicant subject to certain conditions. These sums of money
were repayable within 21 days from the date of advancement. In
addition thereto the applicant had to pay certain sums of money
termed “commission” at a rate of 4.5% of the sum
advanced, as well as interest on any outstanding balance from time to
time. In respect of either of the above-mentioned alternatives it is
alleged that applicant failed to effect payment of the amounts and on
the dates as agreed, giving rise to an indebtedness of N$372,376-02,
including interest calculated until 31 May 2008.

[3] In the
founding papers applicant gives certain reasons why he is in default
of defending the action instituted against him. There is no need to
deal with these reasons now. As far as the merits of the claim
against him is concerned, he admits that he signed the acknowledgment
of debt, but states that the terms and conditions of repayment of the
debt were orally amended and agreed upon between him and the
respondent, then represented by its northern regional livestock
manager, Mr Chris Botha, on or about 15 June 2006. In terms of this
oral agreement the parties allegedly agreed that applicant would
repay the debt in monthly instalments of N$8000. Applicant alleged
that he signed a stop order with his bank to make the monthly
payments. In addition the parties agreed that the indebtedness would
further be reduced by respondent subtracting half of applicant’s
commission earnings for each auction he held for respondent as a
livestock handler in Omaruru.

[4] Applicant
alleges in the main application that he has honoured the
‘acknowledgment of debt as amended’ by making the monthly
payments and that respondent maliciously instituted action against
him. Citing a desire not to over burden the application with
voluminous attachments, he attaches only one month’s bank
statement as confirmation of a payment of N$8000 on 15 December 2008.
I pause to note that this document is irrelevant, as it does not
deal with the period in issue in the summons. In fact, on 15
December 2008 the default judgment was already about 3 months old.
He denies all the alternative allegations on the basis that such an
agreement does not exist or is not part of the dispute. Applicant
further alleges that he has a counterclaim against respondent for
N$760 000 for certain cheques allegedly incorrectly made out in
favour of respondent, as well as for damages suffered on account of
him being defamed by the fact of, and the publication of the default
judgment taken against him.

[5] The main
application became opposed and on 9 September 2009 respondent
delivered its answering affidavits. The gist of respondent’s
answer on the merits is that Mr Botha had no authority to enter into
a verbal agreement amending the acknowledgment of debt. However,
even on the oral agreement, respondent alleges that respondent did
not make all the monthly payments during the period 15 June 2006 to
31 May 2008, e.g. for September 2007, October 2007, December 2007 and
March 2008.

[6] In terms of
rule 6(5)(e) applicant was required to deliver his replying affidavit
within 7 days of service of the answering papers. In this case the
deadline was 18 September 2009. Applicant filed no reply.

[7] On 25
September 2009 respondent’s legal practitioners requested
applicant’s counsel to attend at the Registrar’s office
on 14 October 2009 to obtain a date of hearing. On 3 November 2009
respondent set the matter down for hearing on 23 March 2010. Ten
minutes before the matter was to be heard on that day, applicant
filed a faxed replying affidavit, a faxed confirmatory affidavit by
deponent Mr Chris Botha and a confirmatory affidavit applicant’s
counsel, Mr Stolze. At the same time applicant also filed an
application in terms of rule 27, praying that the time period within
which he may file his replying affidavit may be extended to 23 March
2010. The matter was then postponed to 11 May 2010 for argument on
the application to extend the time period. Respondent meanwhile
formally noted opposition to this application and filed answering
affidavits.

[8] In his
affidavit in support of the rule 27 application applicant states that
his legal practitioner, Mr Stolze, forwarded the respondent’s
answering affidavit in the main application to him on 24 September
2009. It should be noted that this date was already 4 court days
after the due date for the reply. His lawyer requested him to peruse
the answering affidavit, provide a written reply and to then arrange
a consultation. Some time thereafter his lawyer sent him by courier
a written reminder dated 26 October 2009. I note that by then the
date of hearing had already been allocated by the Registrar. Shortly
thereafter applicant telephoned Mr Stolze and informed him that he
believed that his founding affidavit contained sufficient information
to support the rescission application. He states that Mr Stolze was
“also of the same legal opinion.” He states that he is
inexperienced in legal matters and that he relies on the advice
received from his legal representatives.

[9] He continues
to state that on 19 March 2010 Mr Stolze tried to contact him, but
due to the nature of his business he is often in areas where he does
not have cell phone reception. Mr Stolze therefore did not manage to
make contact with applicant until 22 March 2010. This was also
allegedly part of the reason why it took from 24 September to 26
October 2009 to contact Mr Stolze. However, the main reason for this
delay, he says, is that the answering affidavit is 27 pages long and
he had difficulty in understanding the “baseless conclusions”
allegedly made by the deponent, Mr Hugo.

[10] On 22 March
2010 Mr Stolze advised applicant that he is now of the opinion that
applicant must file a replying affidavit “so as to estop the
respondent from saying that Mr Chris Botha had no authority (This
Honourable Court cannot mero motu take notice of estoppel) and so as
to proof (sic) that my application is bona fide (by only
filing a replying affidavit) and also the aspect of quasi-mutual
assent.” (see para. 6.2).

[11] The applicant
further makes averments that the application is bona fide and
not intended to delay the proceedings. He states that he has a bona
fide defence as set out in his founding and replying affidavits.
The applicant states that he will suffer irrevocable damage should
this court not grant him the indulgence sought, as the replying
affidavit is vital to the success of his rescission application. If
the replying affidavit is not allowed he states that he will in all
likelihood never have the opportunity to put his side of the story in
the event that the rescission application is unsuccessful. On the
other hand, he alleges, respondent will suffer no real prejudice as
it is being paid its monthly instalments of N$8 000.

[12] In his
extensive and detailed opposing affidavit Mr Hugo sets out the
reasons for respondent’s opposition, which were repeated and
expanded upon during argument by counsel for the respondent, Mr van
Vuuren.

[13] It is trite
that this Court has wide discretion in considering applications for
extension of time (rule 27(1)) or for condonation for non-compliance
with the rules (rule 27(3)). Rule 27 sets one requirement in all
cases: that the applicant shows “good cause”. In Chetty
v Law Society, Transvaal 1985 (2) SA 756 (A)
at 765A-E the Appellate Division said:

“The term "sufficient
cause" (or "good cause") defies precise or
comprehensive definition, for many and various factors require to be
considered. (See Cairn's Executors v Gaarn 1912 AD 181 at 186
per INNES JA.) But it is clear that in principle and in the
long-standing practice of our Courts two essential elements of
"sufficient cause" for rescission of a judgment by default
are:

(i) that the party seeking
relief must present a reasonable and acceptable explanation for his
default; and

(ii) that on the merits such
party has a bona fide defence which, prima facie,
carries some prospect of success. (De Wet's case supra
at 1042; PE Bosman Transport Works Committee and Others v Piet
Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A); Smith NO v
Brummer NO and Another; Smith NO v Brummer 1954 (3) SA 352 (O) at
357 - 8.)

It is not sufficient if only
one of these two requirements is met; for obvious reasons a party
showing no prospect of success on the merits will fail in an
application for rescission of a default judgment against him, no
matter how reasonable and convincing the explanation of his default.
And ordered judicial process would be negated if, on the other hand,
a party who could offer no explanation of his default other than his
disdain of the Rules was nevertheless permitted to have a judgment
against him rescinded on the ground that he had reasonable prospects
of success on the merits.”

(See also Xoagub
v Shipena 1993 NR 215 (HC) 217D-G; and Dimensions Properties v
Municipal Council of Windhoek 2007(1) NR 288 HC).

[14] In the
circumstances of this case I find it apposite to refer to what was
stated in Du Plooy v Anwes Motors (Pty) Ltd 1983 (4) SA 212
(OPA) at 216H-217D. As the judgment is in Afrikaans, I quote from
the English head note (at 213B-D), which reflects the judgment:

“Applications for
rescission of default judgment, removal of a bar, leave to defend an
application and extension of time for the filing of pleadings must be
seen as species of the same genus. In all these cases there is a
failure by a litigant to act timeously in terms of the Rules and who
seeks the indulgence of the Court so as to allow him to proceed with
his action or defence. According to Rule 27 (1) of the Uniform Rules
of Court "good cause" must be shown and this gives the
Court a wide discretion which must, in principle, also be exercised
with regard to the merits of the matter seen as a whole. This
approach applies to all the applications concerned, but what does
differ is the quantum of the assurance required to the effect that
there is indeed a defence, which may vary from case to case. The
graver the consequences which have already resulted from the
omission, the more difficult it will be to obtain the indulgence.
There may also be an interdependence of the reasons for and extent of
the omission, on the one hand, and the "merits", on the
other.”

[15] The following
dictum in Maloney’s Eye Properties BK v Bloemfontein
Board Nominees Bpk 1995 (3) SA 249 (O) at 253E-G (as reflected in
the English headnote at 250F) should also be borne in mind:

“It is clear from the
authorities that the circumstances of every case determine which
factors are to be taken into account, and which factors are to be
ignored, in considering an application for condonation. Logic
dictates, however, that the ultimate purpose which is sought to be
achieved by the application for condonation is also a factor which
should be considered. The ultimate purpose of the application for
condonation should play a role in determining the nature and extent
of the information and facts required to decide the question of the
prospects of success in the principal case. It would, after all, be
illogical to expect an applicant in an application for condonation of
the late filing of the defendant's opposing affidavits in an
application for summary judgment to go further in setting out the
facts upon which his defence is based than is expected of him in his
affidavits in opposition of the application for summary judgment
itself.”

[16] In Transnamib
v Essjay Ventures Limited 1996 NR 188 HC this Court dealt with an
application for condonation for the late filing of an answering
affidavit and said:

“In Smith NO v Brummer
NO and Another 1954 (3) SA 352 (O) at 358 it was said that the
Courts normally are inclined to grant applications for removal of bar
where:

(a) a reasonable explanation
for applicant's delay is forthcoming;

(b) the application for
condonation (or removal of bar) is bona fide;

(c) it appears that there has
not been a reckless or intentional disregard of the Rules of Court;

(d) the applicant's cause is
not obviously without foundation; and

(e) the other party is not
prejudiced to an extent which cannot be rectified by an appropriate
order as to costs.

See also Silverthorne v
Simon 1907 TS 123. It has also been said that lack of diligence
on the part of the applicant or his attorney, even if gross is not
necessarily a bar to relief in condonation applications. See Gordon
and Another v Robinson 1957 (2) SA 549 (SR). The case Stolly's
Motors Ltd v Orient Candle Company Ltd 1949 (4) SA 805 (C) was a
case where in application for the removal of a bar the defendant had
been late in filing his plea and the bar had been in operation for
one day; he had been so due to the defendant attorney not having been
diligent, it was held that since it appeared that there was a bona
fide and substantial dispute between the parties, the application
should be granted. On the other hand where the delay is longer and
the lack of diligence is gross whether by the applicant or by his
attorney the Courts are entitled to take a more serious view of the
matter. See Saloojee and Another NNO v Minister of Community
Development 1965 (2) SA 135 (A) at 141D.”

[17] I shall first
consider the applicant’s explanation for the delay. I note at
the outset that there is no explanation why the respondent’s
answering affidavit was forwarded to the applicant after the deadline
for reply had already passed. It took more than a month and a
reminder from his lawyer before applicant responded to his lawyer’s
request to provide instructions and to arrange a consultation.
Applicant blames irregular cell phone contact and difficulty to
understand the answering affidavit. This is no excuse, to my mind.
He should then have seen to it that he phones his lawyer from a place
where he had contact to arrange an urgent consultation so that the
lawyer could explain the affidavit to him.

[18] Perhaps the
failure to give a full and acceptable explanation on these aspects is
not so important in the context of this case, because ultimately
applicant, in agreement with his lawyer, decided that it was not
necessary to file a reply and that there was sufficient information
in his founding affidavit. As I understand the thrust of applicant’s
affidavit, he would have come to this conclusion even if the
answering affidavit reached him before due date for reply. The
decision not to reply was intentionally made. Applicant says he
relied on his lawyer’s advice as he is a layman. It would
appear that the lawyer changed his mind some time before the hearing
and formed the opinion that it was necessary after all to file a
reply. Mr Stolze confirmed this in his confirmatory affidavit
and submitted during argument that, should a lawyer come to a
different legal opinion than he held before, it is open to his client
to apply for extension to file a reply and that the client should not
be penalised by the court refusing to allow the late reply. Mr van
Vuuren pointed out that there is no proper explanation when and
why Mr Stolze came to change his mind. He suggested that this
may have occurred when Mr Stolze perused the respondent’s
heads of argument filed on 8 March 2010 and in which issue is taken
with the failure to file a reply. I agree that this aspect has not
been fully explained.

[19] Even if it
could be said that the failure to explain on this last aspect is due
to the fault of applicant’s lawyer, I do not think this should
work to the benefit of the applicant, because there are other
deficiencies in his explanation. Applicant may not have known the
law, but he certainly knew the facts. In the answering affidavit it
is expressly stated on several occasions that he did not comply even
with the amended acknowledgment of guilt and that he had failed to
make several monthly payments which are set out in detail. There is
also a list of payments complete with dates and receipt numbers.
These allegations clearly and specifically contradict his allegation
that he had been making all payments in terms of the amended
acknowledgment of guilt. One does not need to be a lawyer to
realize that these allegations by respondent go to the crux of
proving a breach on applicant’s own version of the oral
agreement. He deliberately did not explain the failure to make these
payments. In the late reply he explains that it was due to the
respondent changing banks on one occasion without notice, but in my
view this does not explain why some payments during this period were
honoured and others not. He also vaguely states that the “last”
problem in this regard was only resolved after March 2008. However,
the list of payments provided by respondent, the correctness of which
is not disputed by the applicant, does not support this explanation.

[20] The above
analysis leads me to the conclusion that, not only has the applicant
failed to give a reasonable explanation for the delay, his failure to
file a replying affidavit was deliberate. I also conclude that his
defence of full payment in terms of the amended acknowledgement of
guilt does not appear to be bona fide. In this regard I bear
in mind the above-quoted dictum in the Maloney’s Eye
Properties case and, further, that it is not necessary for the
applicant in an application for rescission of default judgment to
deal fully with the merits of the case and to produce evidence that
the probabilities are actually in his favour. “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.” (SOS-Kinderdorf
International v Effie Lentin Architects 1990 NR 300 HC 302F)
However, in assessing, as I should do, the bona fides of his
defence I should not ignore the indications that, prima facie,
the factual allegations underpinning his defence appear to have no
basis. (Cf. Mutjavikua v Mutual & Federal Insurance Company
Ltd 1998 NR 57 HC 61A-B).

[21] Mr van
Vuuren pointed out that the applicant did not file a reply to the
respondent’s allegations in its affidavit opposing the
condonation application in which it denies applicant’s
allegation that respondent is being paid its monthly instalments of
N$8000. This much is confirmed in an affidavit by respondent’s
assistant accountant – credit control, who states that
applicant has not made any payments during the period November 2009
to March 2010. In the absence of any attempt by applicant to deal
with these factual allegations in reply, I must accept the
allegations made by respondent. This leads to the conclusion that
the application for condonation itself is not bona fide and it
therefore should fail also on this score.

[22] For all the
above mentioned reasons I am of the view that the application for
condonation should not succeed.

[23] Mr Stolze
submitted that in the event that this Court should dismiss the
application, the costs order should be limited to the costs of
instructing counsel, as the matter did not require counsel to be
instructed. In my view the respondent was entitled to instruct its
counsel who drafted the heads of argument in the main application and
who appeared at the hearing on 23 March 2010 to also attend to the
application for condonation.

[24] The following
order is therefore made:

The application in
terms of rule 27 is dismissed with costs, such costs to include the
costs of one instructing counsel and one instructed counsel.

____________________

VAN NIEKERK, J

Appearance for
the parties:

For applicant:

Mr H Stolze

(Chris
Brandt Attorneys)

For respondent:
Mr A
van Vuuren

(Instructed
by Engling, Stritter & Partners)