CASE NO
SUMMARY
CASE
NO. I 1817/2005
CHRIS
CONGAS t/a BONA-GENERAL Applicant/Defendant
and
FARROK
HOSSAINI-GORGAN Respondent/Plaintiff
t/a
SEVEN VALLEYS
SILUNGWE,
AJ
05/02/2009
PRACTICE -Judgments
and orders – Default judgment – Rescission of – Requirements of
– Requirement of Rule 31(2)(b) of Rules of Court that application
for rescission be brought within 20 days after applicant has
knowledge of judgment – Requirement of Rule 27(3) that Court may,
on good cause shown, grand condonation for non-compliance – Good
cause – Reasonable explanation/reasons for default to be given –
Failure to give reasonable explanation – Gross negligence of
applicant – Where default due to gross negligence, Court should not
come to applicant’s assistance – In case of flagrant breaches of
the Rules, especially where no acceptable explanation thereof is
given, condonation may be refused – Applicant’s explanation
unacceptable – Application for condonation dismissed.
CASE
NO.: I 1817/2005
IN THE HIGH COURT OF NAMIBIA
In
the matter between:
CHRIS CONGAS t/a
BONA-GENERAL Applicant/Defendant
and
FARROK
HOSSAINI-GORGAN Respondent/Plaintiff
t/a
SEVEN VALLEYS
CORAM: SILUNGWE,
AJ
Heard
on: 20/11/2007
Delivered on: 05/02/2009
JUDGMENT:
SILUNGWE,
AJ: [1] In
these proceedings, the applicant is the defendant and the respondent
is the plaintiff in the main action.
[2] On
September 2, 2005, the respondent obtained a default judgment against
the applicant in the sum of N$150 000-00, plus interest thereon at
the rate of 20% per annum and costs of the application.
[3] Thereafter,
the applicant launched an application, on January 19, 2006, for
rescission of the said judgment. The application was opposed.
[4] Prior
to the hearing of the application, the respondent filed a notice to
strike specific portions of the applicant’s replying affidavit on
the ground that such portions were new matters that should have been
part of the applicant’s founding affidavit. Those portions are: (1)
the second line of paragraph (para) 7.31, together with annexure
“CC8”; (2) the second sentences of paras. 12.2 and 13.1; and (3)
the words: “and I have difficulty in travelling to Windhoek”,
which appear in the first sentence of para. 18. At the hearing of the
matter, Advocate Vivier, for the respondent, urged the Court to
strike the allegedly offending portions, but that was countered by
Advocate Barnard, on behalf of the applicant.
[5] An
examination of the disputed portions of the applicant’s replying
affidavit clearly shows that there is merit in Advocate Vivier’s
contention. On that account, the respondent’s application to strike
the said portions is upheld.
[6] It
is common cause that the applicant was late in instituting this
application for rescission of the default judgment. As previously
indicated, the default judgment was given in favour of the respondent
on September 2, 2005, but the application for rescission thereof was
not brought until January 19, 2006. Rule 31(2)(b) of the Rules of the
Court requires an applicant to approach the Court for rescission of a
default judgment “within 20 days after he has knowledge of such
judgment”.
[7] In
his founding affidavit, the applicant seeks condonation of the late
filing of the application. Rule 27(3) stipulates that the “Court
may, on good cause shown, condone any non-compliance with the rules”.
And so, the stumbling block that the applicant faces is the
requirement for him to show good cause why the Court should condone
his failure to launch the application within the stipulated period of
20 days.
[8] In
an application for condonation for non-compliance with prescribed
periods of time, in terms of the Rules of the Court, it is trite law
that, in order to succeed, an applicant must comply with the
following requirements:
1. He must give a reasonable
explanation for his default. If it appears that his default was
wilful 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 merely delaying the plaintiff’s
claim.
3. He
must show that he has a bona
fide
defence to the plaintiff’s claim, which, prima
facie,
carries some prospects of success.
See:
Kauer and
Another v Metzger
(2) 1990 NR 135 at 139G-I; Leweis
v Sampoio
2000 NR 186 at 191F-H; Transnamib
Holdings Ltd v Cartstens
2003 NR 213 at 217E-F.
[9] The
applicant avers in his founding affidavit that, upon receipt of the
respondent’s combined summons on August 16, 2005, he immediately
telephonically approached P.D. Theron & Associates, his legal
representatives of record, and instructed them to defend the action.
Subsequently, a notice of intention to defend was filed on September
6, 2005.
[10] Paragraphs
15.5 and 15.6 of the applicant’s founding affidavit read as
follows:
“15.5
Subsequent to the notice a written letter was received by my legal
practitioner, Mr P D Theron on the same date informing him that
default judgment was granted already on the 2nd
of September 2005, a copy of which is annexed hereto marked “CC
4”.
However the said letter was only received by the following day being
the 7th
of September 2005.
15.6
Despite several attempts to reach me and inform me about the
judgment, my attorney, Mr Theron was unable to reach me and I only
learned about the judgment during early October 2005 when an
acquaintance of mine informed me about it as a result of a newspaper
article that appeared in the Windhoek Observer on 24 September 2005,
a copy of which is annexed hereto “CC
5”.
I respectfully refer to the confirmatory affidavit of Mr P D Theron
annexed hereto marked “CC
6”.”
He
adds that it was then that he decided to consult with counsel in
order to prepare an application for rescission of the default
judgment. Thereafter, the consultation took place on October 19 when
he was advised by counsel to furnish particulars of other claims
against the respondent. This was followed by consultations with his
housekeeper and secretary so as to obtain particulars of certain
payments which are itemized in annexure “CC 7”. The annexure
comprises a list of fifteen cheque entries appearing under three
columns, namely, Cheque number, Date and Amount. According to the
applicant, collation of the particulars that culminated in the
compilation of the annexure aforesaid “took some time”. The
extent of what is meant by the expression “took sometime” has not
been explained!
[11] Subsequently,
the applicant was advised that those claims had since become
proscribed, with the result that he could no longer pursue them. In
conclusion, he states as follows:
“15.10
I would like to point out that the reasons for the delay in
instituting this application is due to logistical problems set out
hereinbefore as well as the fact that I am based in Oshakati whereas
all of the work must take place here. The delay was further
aggravated by the fact that when all the relevant instructions were
ready counsel was engaged in other matters and therefore could only
attend to same during the last weeks of December 2005.”
[12] Advocate
Barnard submits, on behalf of the applicant, that the delay in
instituting this application is due to logistical problems that the
applicant, who lives in Oshakati, had in consulting with Mr Theron,
his legal practitioner. It is further submitted that, although the
actions of the applicant and his legal practitioner cannot be
praised, and may be frowned upon, they are not such that should move
the Court to refuse to entertain the application. To bolster this
argument, Mr Barnard relies on Leweis
v Sampolo
2000 NR 186 (SC) and Chairperson
of the Immigration Board v Frank and Another
2001 NR 107 (SC) at 109A.
[13] In
his answering affidavit, the respondent denies that the applicant
“has any claim whatsoever against” him. He further alleges that
the amounts shown is annexure “CC 7” have nothing to do with him.
He denies that the delay could have been caused by any logistical
problems as there is sufficient communication infrastructure between
Oshakati and Windhoek, in the form of telephone and facsimile; and
that there are two daily flights, by Air Namibia, between Oshakati
and Windhoek.
[14]
The applicant avers in very clear terms that Mr Theron, his legal
practitioner, became aware on September 7, 2005 (as evidenced by
Annexure “CC 4” to his founding affidavit), that the respondent
had obtained the default judgment on September 2; he further alleges
that, despite “several attempts” by Mr Theron “to reach” and
“inform” him about the said judgment, Mr Theron was
“unable to reach” him, adding that he (the applicant) “only
learned” of the judgment during “early October”, through an
acquaintance of his. Strangely enough, not only does the applicant
fail to explain the nature and particulars of what attempts, if any,
were allegedly made by Mr Theron, but Mr Theron also fails to
disclose, in his confirmatory affidavit, what steps, if any, he took
to apprise the applicant of the default judgment. Whether Mr Theron
ever tried to convey the requisite information to the applicant by
landline telephone or facsimile, or by cellphone or even by E-mail,
is any body’s guess. It is, indeed, self-evident that the
circumstances of the occasion required Mr Theron to take urgent steps
to communicate to his client the all-important information. But that
is not all: the applicant further fails to disclose the date upon
which the judgment first came to his notice; he is content merely to
state that he learnt of it “during early October”. It would thus
appear that Mr Theron was unable to communicate with the applicant
from September 7 until sometime during early October, a period of
about a month! But, even then, consultation with Mr Theron could not
take place until 19 October 2005; no explanation is furnished as to
why consultation could not take place earlier than October 19.
[15] Mr
Theron knew, and certainly ought to have known, that the applicant
was required to launch his application for rescission of the judgment
within 20 days after becoming aware thereof. It follows that the
period of 20 days expired during early November 2005. The applicant
does not state when he consulted with his bookkeeper and his
secretary; when he received particulars of payments reflected in
annexure “CC 7”; when he sent “an exposition” of his claims
to Mr Theron; or when Mr Theron transmitted such “exposition” to
counsel, besides stating that this was done “sometime during the
end of 2005”. Yet, the application for rescission could only be
filed on January 19, 2006!
[16] The
applicant maintains that the delay in instituting this application
was due to logistical problems. It is apparent that sight is lost of
the fact that when the applicant was served with the combined
summons, he, in his own words “immediately approached Messrs PD
Theron & Associates by telephone in order to seek their
assistance in having the claim defended”. It is obvious that the
applicant took prompt action because of the urgency of the matter. If
he could take such immediate steps, why then did he seemingly fail to
show interest in the progress of the matter by maintaining contract
with Mr Theron after the appointment that took place between both of
them during “early September 2005” up to early October – a
period of approximately one month! Similarly, why did Mr Theron, who
was fully cognizant of the time limits imposed by the Rules of the
Court, fail to communicate with his client, as a matter of extreme
urgency, when he learnt of the default judgment on September 7, 2007,
but waited until the applicant communicated with him during early
October 2005? When the applicant and his legal representative became
aware of the judgment, it took them approximately 3½ and 4½ months,
respectively, before the application for rescission could be
launched. Notwithstanding all this, it is submitted, rather oddly,
that the legal representative’s failure in the matter was of a
slight degree; and that, although the actions by the applicant and
his legal practitioner cannot be praised, and may be frowned upon,
they are not such that they should move the Court to refuse to
entertain the application! With due respect, I regard these
submissions not only as a composite understatement, but also as an
attempt to grasp at the straws. Over and above that, I am certainly
not persuaded that the delay on the part of the applicant’s legal
practitioner was of “a slight degree: on the contrary, it was of a
substantial degree. As regards the applicant, it is evident that he
adopted more than a cavalier attitude towards the action after his
appointment with Mr Theron which took place during early September
2005. To compound the situation, he is, by design, noticeably vague
in his founding affidavit: for instance, he states that “An
appointment was scheduled with Mr Theron which for
various reasons
only took place during early
September 2005
(para 15.5). He choses not to specify the so called “various
reasons”. Besides, he does not indicate when in “early September”
the appointment with Mr Theron took place! Furthermore, he states,
rather imprecisely, that he “only learned about the judgment during
early October 2005”
(para 15.6). In para 15.8, he fails to state when he consulted with
his bookkeeper and secretary concerning payments allegedly made to
the respondent; how long it took the bookkeeper to put together the
particulars he needed; when Annexure “CC 7” was handed to Mr
Theron; and when that annexure was furnished to counsel: he is
content to merely state that this was done “sometime during the end
of 2005”.
[17] From
the foregoing extracts, it is quite clear that the applicant’s
founding affidavit lacks forthrightness as well as particularity. In
my view, the applicant’s allegation that “the delay in launching
this application was due to logistical problems” is not only a lame
excuse but also spurious. Neither the applicant nor his legal
practitioner can escape the blame for the delay in bringing the
application for rescission of the judgment. In this regard, I find
instructive the following remarks by the South African Supreme Court
of Appeal in the case of Uitenhage
Transnational Local Council v South African Revenue Service
2004 (1) SA 292 at 297H-298A (Paras 6-7) (which, unlike the present
matter, was an appeal) which remarks are of application to the case
under consideration:
“[6] One
would have hoped that the many admonitions concerning what is
required of an applicant in a condonation application would be trite
knowledge among practitioners who are entrusted with the preparation
of appeals to this Court: condonation is not to be had merely for the
asking; a full, detailed and accurate account of the causes of the
delay and their effects must be furnished so as to enable the Court
to understand clearly the reasons and assess the responsibility. It
must be obvious that, if the non-compliance is time-related then the
date, duration and extent of any obstacle on which reliance is placed
must be spelled out.
[7] The
appellant’s affidavit consists of a number of generalized causes
without any attempt to relate them to the time-frame of its default
or to enlighten the Court as to the materiality and effectiveness of
any steps taken by the appellant’s legal representatives to achieve
compliance with the Rules at the earliest reasonable opportunity.”
Plainly,
January 19, 2006, could surely not have been the earliest reasonable
opportunity for the applicant to achieve compliance with the Rules.
[18] It
is not in dispute that, on October 7, 2005, the respondent took steps
to enforce his judgment by filing a writ of execution. Indeed, pages
73 and 74 of the record reflect a notice of execution and the writ of
execution, respectively. As Frank, J aptly commented in Adriaans
v McNamara
1993 NR 188 at 190B-C:
“It
is totally unacceptable that a person knows about a judgment from
this Court, knows of a warrant of execution and then labours under
the impression according to him that he can wait until the ‘Kingdom
comes’ if his business so demands before coming to this Court to
apply for a rescission of judgment. Every reasonable person is aware
of the fact that matters and orders emanating from the High Court are
not to be trifled with and that one should expediously see one’s
attorneys or take steps if one feels that such an order has been
given on a basis which can be attacked.”
In
the NcNamara’s
case, the default judgment was granted on November 6, 1992, and,
although the judgment came to the applicant’s notice on December
27, 1992, he did not launch an application for rescission of the
judgment until March 3, 1993 (a delay of just over 2 months), after a
warrant of execution had been issued against him. Frank, J found that
good cause had not been shown for non-compliance with the Rules of
the Court and consequently refused to grant condonation.
[19] The
circumstances of this mater are such that I am constrained to find
that the default on the part of the applicant was due to such a
degree of remissness that it amounted to gross negligence. Where the
default is due to gross negligence, as in
casu,
the Court should not come to the applicant’s assistance (Krauer
and Another v Metzger,
supra,
at 139G-H). It has often been said judicially that, in cases of
flagrant breaches of the Rules, especially where there is no
acceptable explanation thereof, as in the present case, the
indulgence of condonation may be refused, irrespective of the
prospects of success. See: Blumenthal
and Another v Thomson NO and Another
1994 (2)SA 118 (AD) at 121I-122B; Darries
v Sheriff Magistrate’s Court, Wynberg, and Another
1998 (3) SA 34 (SCA) at 41B-D; Southern
Cape Car Rentals CC t/a Budget Rent a Car v Braun
1998 (4) SA 1192 (SCA) at 1195H-I; Immigration
Selection Board v Frank
2001 NR 107 (SC) at 165C-166A-C.
[20] In
the premises, the following order is made:
1. The applicant’s
application for condonation is dismissed with costs.
2. The default judgment must be
complied with within 30 days of the delivery of this judgment.
_____________________
SILUNGWE,
AJ
COUNSEL
ON BEHALF OF THE APPLICANT/DEFENDANT:
Adv.
Barnard
Instructed
by: PD
Theron & Associates
COUNSEL
ON BEHALF OF THE RESPONDENT/PLAINTIFF:
Adv.
Vivier
Instructed
by: LorentzAngula
Inc.