Simon v Elago and Another (HC-MD-CIV-MOT-GEN-2024/00258) [2025] NAHCMD 202 (25 April 2025)

Case Title:

Agnes Simon Applicant

and

Johannes Elago 1^st Respondent

Municipal Council of Windhoek 2^nd Respondent

Case No:

HC-MD-CIV-MOT-GEN-2024/00258

Division of Court:

Main Division

Heard on:

17 September 2024

Heard before:

Honourable Lady Justice Rakow

Delivered on:

25 April 2025

Neutral citation: Simon v Elago (HC-MD-CIV-MOT-GEN-2024/00258) [2024] NAHCMD 202 (25 April 2025)

Order:

1. The first respondent is ordered to make a declaration from the Namibian Police stipulating the change of ownership of the immovable property Erf 421 Groot Aub.

2. The first respondent is ordered to rectify the memorandum of agreement between himself and the applicant and amend the citing of the immovable property concerned to be Erf 421 Groot Aub.

Reasons for order:

RAKOW, J:

Introduction

[1] The applicant is a major female person who instituted this action against Johannes Elago, a major male person who is the respondent in these proceedings.

[2] On 16 May 2021, at Windhoek, the respondent and the applicant entered into a written memorandum of agreement for the purchase of a certain property registered under Erf 426 in Groot Aub for the purchase price of N$270 000. The applicant paid a deposit of N$200 000 and the parties agreed that the remainder of the N$70 000 will be paid in instalments over a period of 24 months starting from February the following year which would give her some time to renovate and have the property suitable for the intended plan. She started with the monthly instalments in February and completed the payment in 19 months at the end of September 2023.

[3] In turn, the respondent was to obtain as per City of Windhoek requirement, a police declaration to be attached onto the Memorandum of Agreement. The respondent was to obtain the declaration over the said weekend when he returned from the North but indicated that he will only give the applicant the declaration after she paid the N$70 000.

[4] In August 2023 the City of Windhoek made an announcement that everyone who owns property in Groot Aub should approach their office or sent someone either in Groot Aub or Windhoek for ownership verification to be made. The applicant asked Mr Bernard Gaoseb who also signed the memorandum of agreement as a witness to do the verification on her behalf. He went to the City of Windhoek for such verification with a copy of the identity document of the applicant and the memorandum of agreement but was told that the applicant had to call the office. She did that and was informed that the property in question is not situated at Erf 426 but at Erf 421 and according to their record, Erf 426 is an open plot which is registered to a certain Paulina Uiras.

[5] She saw a certain Mr Kamune who informed her that he could not find a name on the property but verified that the erf is indeed 421. He suggested that the parties redraft the memorandum of agreement accompanied by the police declaration to allow the City of Windhoek to register the property under the applicant’s name.

[6] On 13 March 2024 the applicant’s legal practitioner sent a letter of demand to the respondent to rectify the mistake with the erf number of the property as well as to obtain the declaration from the police and to date, the defendant has failed to do so.

[7] The property was purchased with the purpose of renovating it into a guesthouse. It was in a poor condition and not suitable for operating as a guesthouse at the time of purchase, requiring extensive renovations. The necessary renovations were done to bring the property within the requirements of the Tourism Board of Namibia.

Condonation application

[8] The first respondent applied for condonation of the late filing of his answering affidavit. The applicant indicated that she is opposing the condonation application. She explains that the settlement proposal she received from the first respondent’s legal practitioner was a last minute attempt by the first respondent to resolve the matter outside the court after failing to comply with the procedural requirements of this case. She responded and indicated to them that they did not resolve the core issues of her concerns with their proposal.

[9] The first respondent responded to the letter written by the applicant and explained their proposal but on 10 July 2024 the respondent formally rejected their settlement proposal indicating that the proposal is unacceptable and did not serve the interest of justice.

[10] The first respondent was to file his answering affidavit on or before 18 July 2024 as it was given 14 days to do so in the notice of motion. It was only filed 22 August 2024.

[11] In the matter of Burmeister Partners (Pty) Ltd v Namibia Industrial Development Agency and Another¹ , it is also trite law that a party seeking condonation must provide a reasonable, acceptable and bona fide explanation for the non-compliance with the rules of court. The party is also expected to satisfy the court through its founding papers, that there are reasonable prospects of success (both in defending the main action and the proposed counter claim) should the condonation application be granted. The application must be launched without delay. Where condonation is sought for delay, the explanation must cover the entire period of the delay. The sum of these requirements equates to the demonstration of ‘good cause’.

[12] It was submitted that the first respondent failed to provide a satisfactory explanation for the delay. He merely raised his personal unavailability as well as non-contact with his legal practitioners but did not provide specific reasons for the entire duration of the delay.

[13] The first respondent’s claim of being under the impression that the matter would be removed from the First Motion Court Roll and allocated to a managing judge lacks merit because misunderstandings or assumptions about procedural aspects do not absolve a party from the obligation to adhere to prescribed deadlines.

[14] There is further no good prospects of success in the main application. The affidavit of the first respondent lacks substantive averments or allegations on the merits of the case and focuses predominantly on the procedural delays. The applicant had, on multiple occasions, sought to engage with the first respondent to settle the matter amicably, including through a letter of demand issued on 13 March 2024. Despite these efforts, the first respondent failed to respond promptly or meaningfully, showing a lack of genuine intent to resolve the matter without further delays.

[15] The first respondent submitted that it made out a case for the granting of condonation.

[16] In Barnes Fencing Industries (Pty) Ltd v BH Spares and Accessories Equipment and Technologies CC² this court held that courts should not unnecessarily be bogged down by meritless objections to applications for condonation, which divert the court’s attention to the real and important issues in dispute. The applicant indicates that she is interested in the administration of justice and that good and proper administration of justice requires that all parties have their versions before court and that such versions be determined on facts. We further emphasize that the non-compliance in filing the answering was thoroughly explained by the first respondent as being in hope of settling the dispute and even further that the time lapse included the first respondent attempting to gather his resources in an attempt to comply with settlement demands by the applicant. It was never a disregard for court process but one aimed at resolving the dispute amicably and in a cost-effective manner. By the time that the First Respondent was ordered to file condonation, the delay was by two days.

Legal considerations

[17] Rule 56(1) prescribes that on application for relief from a sanction imposed or an adverse consequence arising from a failure to comply with a court order, the court will consider the listed grounds, the most pertinent of which are:

1. Whether the application for relief is made promptly;

2. Whether there is sufficient explanation for the failure; and

3. The extent to which the party in default has complied with other court orders.

[18] In Sash Trading & Earthworks CC v Tsams Construction,³ Justice Smuts discussed the requirements for condonation as follows:

‘The two-pronged requirement of good cause for a rescission application requires an explanation for the default in not entering an appearance to defend in accordance with the rules plus establishing a defence to the claim. The absence of a proper explanation for the neglect would reflect upon the bona fides of the application.⁴ The appellant thus bears the onus in the rescission application to show that it is bona fide and that it has a bona fide defence.’

[19] In Lepidico Chemicals Namibia (Pty) Ltd v Ombujomenge Close Corporation⁵, Masuku J stated at paragraph 14 that:

‘The issue raised by the applicant has become trite in this jurisdiction. The main judgment which deals with it is Prosecutor-General v Paulo⁶, where Angula DJP stated the following:

“I feel obliged to make an observation here that this practice by legal practitioners of filing affidavits on behalf of a client should be discouraged and desisted from. It should only be resorted to in exceptional circumstances where the party to the proceedings is for compelling reasons unable to depose to an affidavit. Such reason must be disclosed in the affidavit deposed to by the legal practitioner.”’

[20] In paragraph 18, Masuku J further stated that:

‘Another issue that needs to be pointed out in this regard and where it may be appropriate for legal practitioners to depose to affidavits, is where the matter at hand is one the legal practitioners are handling and there are certain non-compliances or certain occurrences that take place under their watch. The legal practitioners, in that situation, would be best placed to explain the non-compliance and the client would in that event, not be the appropriate person to deal with the reasons for the non-compliance. In that event, the legal practitioner would then explain that situation and comply with the Paulo imperatives in that regard.’

[21] In QKR Namibia Navachab Gold Mine (Pty) Ltd v Kwala,⁷ Masuku J, held that: ‘rule 32(9) and (10) does not apply to matters of condonation because the parties do not resolve any aspect of the interlocutory application. Even after having complied with rule 32(9) and (10), the applicant is still required to file an application for condonation.’

Conclusion

[22] The first respondent put reasons forward for the delay in filing the answering affidavit but he did not deal with the prospects of success of the said application. He only explained that he made a settlement proposal to the applicant, which the applicant indicated that she did not accept and further he explained that he did not want the matter to be published in the press. He also explained that she took longer than agreed between them to pay the full purchase price but did not deny that he received the full purchase price. He also explained that the power utility account was on the initial erf number but could not explain why he could not amend the memorandum of agreement neither why he could not proceed and produce the statement from the Namibian Police.

[23] The condonation application must therefore fail and condonation is denied as no reasonable prospects of success is dealt with. Neither is the whole period of time that it took him to file the condonation application dealt with.

[24] In the absence of the condonation application being successful, it follows that the application of the applicant must be successful as there is no active opposition to the said application. For this reason, the court is going to grant the notice of motion as prayed for by the applicant against the first respondent.

[25] In the result, I make the following order:

1. The first respondent is ordered to make a declaration from the Namibian Police stipulating the change of ownership of the immovable property Erf 421 Groot Aub.

2. The the first respondent is ordered to rectify the memorandum of agreement between himself and applicant and amend the citing of the immovable property concerned to be Erf 421 Groot Aub.

Judge’s signature

Note to the parties:

E RAKOW

Judge

Not applicable

Counsel:

Applicant:

1^st Respondent:

N Kasuto

Kasuto Law Chambers, Windhoek

T Iileka-Amupanda

Sisa Namandje & Co. Inc., Windhoek