Author: Jacky

CASE NO.: 239/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

LLOYED CHARLES UNDERHILL				APPLICANT

and
NEDBANK NAMIBIA LIMITED					RESPONDENT
CORAM:							NAMANDJE AJ
Heard on: 							6 October 2010
Delivered on:							19 October 2010

JUDGMENT

[2] The Registrar granted all of the orders sought against the applicant by the respondent in terms of Rule 31(5)(a) of the Rules of the High Court. The respondent's cause of action against the applicant is said to be based on wrongful representations allegedly made by the applicant who at the relevant time was an employee of the respondent. The respondent brought two claims under one summons.

[5] Subsequent to the granting of a default judgment by the Registrar of the High Court against the applicant, the applicant brought this application in terms of Rule 31 and Rule 44(1)(a) of the Rules of the High Court. The respondent on the other hand brought a counter application in terms of Rule 44(1)(a) in which it concedes that the default judgment against the applicant was sought and granted erroneously. The respondent however is opposed to the rescission of judgment and contends that the court should only vary, and not rescind, the judgment granted by the Registrar.

[7] The extent, nature and details of the errors are manifest from the comparison between the respondent's particulars of claim relating to the two claims and the orders sought and granted in the application for a default judgment to the Registrar as illustrated below.

Claim No. 1
1.1. Payment of the sum of N$72,179.52.

1.3 Payment of the amount of N$20.00 per day calculated from 30 August 2006 until the date on which defendant takes delivery of the motor vehicle.

1.4 Interest a tempora morae to be calculated on the amounts referred to in prayer 1.3 supra, from the date that same is incurred by plaintiff until date of final payment thereof. 

Claim No. 2
2.1. Payment of the sum of N$123,439.68.

2.3 Payment of the amount of N$20.00 per day calculated from 16 October 2006 until the date on which defendant takes delivery of the motor vehicle.

2.4 Interest a tempora morae to be calculated on the amounts referred to in prayer 2.3 supra, from the date that same is incurred by plaintiff until date of final payment thereof.

3. Cost of suit.

1.1        Payment of the sum of N$72,179.52.

1.2(b) Interest on the balance of N$22,733.73 (after receipt of payment of N$49,445.79 on 15 May 2008) at the rate of 20% per annum from 16 May 2008 until date of payment.

1.3(a) Payment of the amount of N$16,100.00 (805 days from 30 August 2008 until 12 November 2008 at N$20.00per day).
1.3(b) Payment in the amount of N$20.00 per day calculated from 13 November 2008 until the date on which defendant takes delivery of the motor vehicle.
1.4 Interest a tempora morae to be calculated on the amounts referred to in prayer 1.3 supra, from the date that same is incurred by plaintiff until date of final payment thereof.

Claim No. 2
2.1        Payment of the sum of N$123,439.68. 

2.2(b) Interest on the balance on N$73,993.89 (after receipt of payment of N$49,445.79 on 15 May 2008) at the rate of 20% per annum from 16 May 2008 until date of final payment.

2.3(a) Payment of the amount of N$15,160.00 (758 days from 16 October 2008 until 12 November 2008 at N$20.00 per day).
2.3(b) Payment of the amount of N$20.00 per day calculated from 13 November 2008 until the date on which defendant takes delivery of the motor vehicle.

2.4 Interest a tempora morae to be calculated on the amounts referred to in prayer 2.3 supra, from the date that same is incurred by plaintiff until date of final payment thereof.

3. Costs of suit in the amount of N$1,630.13 calculated as follows:

3.3 Deputy Sheriff's Fees (19.09.08)        158.13

3.5. Photocopies      Summons 273

                                                                   1630.13

4. Further and/or alternative relief."

[11] Regard being had to the averments in the respondent's particulars of claim, and strictly for purposes of this application, I am of the view that the judgment was erroneously sought and granted in that respect too.

[12] If a defendant is served with summons and fail to file his/her notice of intention to defend, that by no means places him/her at the mercy of the plaintiff to seek any order not legally sought in the particulars of claim served upon the defendant. Considerations of justice and fairness demand that a plaintiff only seek orders sought in the summons when applying for a default judgment, in particular, where the interest of the defendant would be prejudicially affected by any change in the relief sought.

[13] This court is, on the facts, entitled to exercise its discretion in favour of rescinding the judgment. I do not consider it appropriate, given the substantial nature and extent of the errors, to only vary the judgment. If I were to vary the judgment, that would virtually amount to a complete mutilation of the judgment. In the result, accordingly I grant the following orders:
(1)	The default judgment granted by the Registrar on 12 October 2008 is rescinded and set aside.
(2)	All court processes issued in pursuance of that default judgment are set aside.
(3)	The applicant is granted leave to defend the Respondent's action and the notice of intention to defend should be filed within 10 days.
(4) The respondent shall pay the applicant's costs.

NAMANDJE, AJ.