Court name
High Court
Case number
1594 of 2009
Title

Steenkamp v Hamata and Others (1594 of 2009) [2012] NAHC 220 (03 August 2012);

Media neutral citation
[2012] NAHC 220
Coram
Parker J





CASE NO







‘’Not
Reportable’








CASE NO.: I 1594/2009













IN THE HIGH COURT OF
NAMIBIA








MAIN DIVISION, HELD AT
WINDHOEK













In the matter between:








WILLEM HERMANUS NICO
STEENKAMP
…....................................................Plaintiff








and








MAX HAMATA
…....................................................................................First
Defendant



TRUSTCO GROUP
INTERNATIONAL (PTY) LTD ….......................Second
Defendant



FREE PRESS PRINTERS
(PTY) LTD …...............................................Third
Defendant













CORAM:
PARKER J








Heard on: 2012 July 20



Delivered on: 2012 August
3



___________________________________________________________________








JUDGMENT



___________________________________________________________________


PARKER
J
: [1] The plaintiff instituted action against the
defendants. The defendants entered appearance to defend, and they
also raised an exception against the particulars of claim. The
exception was set down for hearing on 11 October 2010. There was no
appearance by the plaintiff in person or by counsel, and so the Court
dismissed the plaintiff’s claim on the basis of default of
appearance. In reaction thereto, the applicant launched the present
application for rescission of the judgment by default. Ms Van der
Westhuizen’s submission is that the ‘application is
brought in terms of rules of court (and the common law) although it
is not specifically stated in the application’.






[2]
I accept Mr Barnard’s submission that rule 31(2)(b) does not
apply in the present proceeding. If paragraphs (a) and (b) of subrule
(2) of rule 31 are read intertextually, as they should, in the
interpretation and application of subrule (2) of rule 31, the
following emerges irrefragably, that is to say, rule 31(2)(b) applies
where the defendant is ‘in default of delivery of notice of
intention to defend or of a plea’ and the plaintiff obtains
judgment by default against the defendant (rule 31(2)(a)). Thus, the
words ‘[S]uch judgment’ in rule 31(2)(b) refers to the
judgment by default granted against a plaintiff on the grounds set
out in rule 32(b)(a). Consequently, I also accept Mr Barnard’s
submission that the authorities on the requirements for rescission in
terms of the rules cannot apply where the application is brought in
terms of the common law on the basis that the requirements under the
two heads differ.






[3]
At common law, in order to succeed in his or her rescission
application, the applicant must show ‘good cause’ or
‘sufficient cause’. The terms appear to be synonymous in
their legal import and they contain two essential elements, and both
of them must exist together. They are (1) that the applicant must
present a reasonable and acceptable explanation for his or her
default, and (2) that on the merits the applicant must have a bona
fide claim or defence (as the case may be) which, prima facie,
carries some prospect of success. (Grütemeyer NO v General
Diagnostic Imaging
1991 NR 441). The foundational consideration
is that the applicant bears the onus of establishing sufficient cause
for his or her default; and the applicant cannot succeed if only one
element is established (Grütemeyer NO v General Diagnostic
Imaging
supra): and this much; both counsel agree, and that is
the manner in which I approach the determination of the present
application.






[4]
It is significant to note at the outset that although the exception
was raised by the defendants (respondents in the present proceeding)
the plaintiff (applicant in the present proceeding) set the exception
down on 22 June 2010 for hearing thereof on 11 October 2010. I shall
continue to refer to the parties as plaintiff and defendants. Shortly
after the set down on 22 June 2010 the then legal representatives of
the plaintiff, Kishi Legal Practitioners, informed the plaintiff that
the matter had been set down for hearing on 11 October 2010. The
legal representatives added that if the plaintiff wanted these same
legal representatives to continue to act for him, then he must pay
them – from his own pocket – N$30,000-00. The reason –
those legal representatives informed the plaintiff – was that
their mandate to represent him had been terminated by Legal
Shield/Trustco Insurance (‘Legal Shield’) of which,
apparently, the plaintiff was a member. As the plaintiff could not
pay the N$30,000-00 from his pocket, the plaintiff’s recourse
was to address a letter to the regulatory body NAMFISA enlisting
NAMFISA’s authority to force Legal Shield to reinstate the
insurance in order for those legal practitioners, Kishi Legal
Practitioners, to continue to act for him.






[5]
In all this what is relevant in the present proceeding is this. The
plaintiff was aware of the set down date of 11 October 2010. Thus,
the plaintiff was, shortly after 22 June 2010 and at least three
months before 11 October 2010, also aware that Kishi Legal
Practitioners would not act for him upon mandate granted to them by
Legal Shield. There is nothing on the papers to suggest that the
plaintiff was either going to pay the N$30,000-00 deposit to Kishi
Legal Practitioners or that Legal Shield would relent and renew its
mandate to Kishi Legal Practitioners to continue to represent him;
and what is more, there is also nothing on the papers to suggest that
the plaintiff was in the process of instructing other legal
representatives to represent him. In that event, the applicant should
have appeared in court to inform the Court, for instance, that he was
in the process of hiring the services of legal practitioners to
represent him and if the court could postpone the matter in order for
him to obtain legal representation. In my experience, such request is
not uncommon in the proceedings of the Court. In this regard, what
explanation does the applicant give for allowing judgment to go by
default? It is this. He thought that although the mandate to Kishi
Legal Practitioners had been withdrawn, as aforesaid, the same legal
practitioners would continue to represent him, save that he would
have to pay the practitioners’ fees from his pocket. Thus, the
plaintiff says, it was not his understanding that Kishi Legal
Practitioners had withdrawn from record. He also says that, in any
case, he was given to understand by Kishi Legal Practitioners that
the exception would not be moved, and even if moved would not be
successful. Now which is which? The two versions are mutually
destructive to each other. If the plaintiff’s understanding was
truly that Kish Legal Practitioners would represent him at the
hearing on 11 October 2010, what did it matter to him whether the
exception would be moved or not moved, and if moved would be
dismissed. It is significant to note this. The plaintiff does not say
that Kishi Legal Practitioners had hold him that they would not
appear in court because the exception would not be moved on the
basis, for instance, that the defendants’ legal representatives
had realized that the exception would be dismissed if it was moved.
The plaintiff himself acknowledges that Kishi Legal Practitioners had
told him that they would not continue to act for him unless and until
he made to them a deposit of N$30,000-00. Besides, the plaintiff had
made unsuccessful attempt to persuade NAMFISA to force Legal Shield
to reinstate his insurance so that Kishi Legal Practitioners would
continue to act for him. What this amounts to it that, as I have said
previously, before 11 October 2010, the plaintiff knew and was very
much aware that he had not secured the services of a legal
practitioner whose fees he would pay from his pocket or whose fees
Legal Shield would pay. And so as I have intimated previously, the
least and reasonable thing the plaintiff, who has seen it fit to drag
the defendants to court to redeem his reputation which, according to
him, is worth N$3,000,000-00, should have done was to appear in court
in person in order to explain his circumstances to the Court. He did
not do that. He was just not in court.






[6]
In this regard, Ms Van der Westhuizen, counsel for the plaintiff,
submits that the plaintiff’s understanding that Kishi Legal
Practitioners would continue to act for him but that he would have to
pay their fees from this pocket should be put down to the plaintiff
being a lay person. With respect, I cannot accept that argument. The
plaintiff is not some illiterate villager. He was at the material
time an Inspector in the Namibia Police (NAMPOL), and a training
officer at that; but, more important, what Kishi Legal Practitioners
told him was not about any principle of law. The words ‘You
must pay N$30,000-00 if you want us to continue to act for you
because Legal Shield has withdrawn its mandate to us’, or words
to that effect, do not constitute a legal principle, requiring a
degree in Law to comprehend. I rather accept submission by Mr
Barnard, counsel for the defendants, that the plaintiff failed to
appear in court for the hearing because he was under the impression
that the exception would not be moved and if moved, would be
dismissed.






[7]
For all the aforegoing reasoning and conclusions. I find that the
plaintiff has not given any reasonable and acceptable explanation for
the plaintiff’s default of appearance, and so he has failed to
discharge the onus cast on him in order to succeed. It follows
inevitably that I do not see the need to consider the other essential
element, namely, that the plaintiff’s claim, prima facie,
carries some prospect of success. In my judgement, the plaintiff has
failed to discharge the onus of establishing the existence of
sufficient cause for his default; and so, he cannot succeed.
Whereupon, the application is dismissed with costs, and such costs
shall include costs occasioned by the employment of one instructing
counsel and one instructed counsel.

















________________



PARKER J













COUNSEL ON BEHALF OF
THE PLAINTIFF:



Adv. C Van der Westhuizen








Instructed by: Dr
Weder, Kauta & Hoveka Inc.












COUNSEL ON BEHALF OF
THE DEFENDANTS:



Adv. P Barnard








Instructed by: Van
der Merwe-Greeff Inc.