Court name
Supreme Court
Case name
Lewies v Sampoio
Media neutral citation
[2000] NASC 1















CASE NO.: SA 4/98



IN THE SUPREME COURT OF NAMIBIA







In the matter between







HENDRIK LEWIES APPELLANT



And



ALFONSO SAMPOIO RESPONDENT







CORAM:. Strydom, C.J.; Dumbutshena, A.J.A.
et O'Linn, A.J.A.



HEARD ON: 2000/04/13



DELIVERED ON: 2000/08/22



_________________________________________________________________________



APPEAL JUDGMENT



________________________________________________________________________







STRYDOM, C.J.: This is a matter which
originated in the Magistrate's Court, Windhoek. The appellant, who
was the plaintiff in that court, issued summons against the
respondent, the defendant, for payment of the amount of N$5 000,00 in
respect of money lent and advanced. To avoid confusion I will
continue to refer to the parties as they appeared in the Magistrate's
Court.







The summons was duly served on the defendant at his
place of business at Michael de Kock street, Katutura, Windhoek on 28
November 1995. The defendant thereupon entered appearance to defend
which was served on the legal practitioners of the plaintiff on 5
December 1995. Together therewith the defendant also served a
request for further particulars. The response of the plaintiff was
to serve and file a notice of application for summary judgment. In
this notice the defendant was informed that the application would be
made on 23 January 1996.







So far the pleadings in this matter. What further
happened is partly set out in the record kept by the magistrate and
an affidavit filed by the defendant when he applied for a rescission
of judgment. The record further shows that on 23 January 1996 the
matter was postponed by agreement to 6 February 1996. On this date
nobody appeared for the defendant as a result of which the plaintiff
asked for and was granted summary judgment and costs. Up to this
stage no affidavit was filed by the defendant in opposition of the
application for summary judgment.







Nothing further happened until 18 March 1996 when notice
was given by the defendant of an application for rescission of the
judgment granted by the court on 6 February. This application was
set down for hearing on 26 March on which day it was postponed by
agreement to 9 April. On 9 April the application was again
postponed, seemingly by agreement, to 23 April. On 23 April there
was again no appearance and the matter was removed from the roll by
the magistrate.







The matter lay fallow until 24 September 1996 when the
defendant again filed an application for rescission set down for 26
September 1996 and to which was attached the same affidavit of the
defendant filed in the application for rescission which was dated 26
March 1996 which was removed from the roll by the magistrate on 23
April because of non appearance by the parties. After various
postponements the matter was at last heard on 30 October 1996. After
argument the application was dismissed with costs. I will later deal
more fully with the judgment of the learned magistrate.







What explanations there are for these lapses and
non-compliance with the Rules of the Magistrates' Court must be
gained from the affidavit of the defendant filed when he applied for
rescission of judgment and what his legal representative verbally
informed the magistrate when the matter was argued. In the
affidavit, dated the 18th March 1996, defendant explained
that immediately after the summons was served on him he went to see
his attorney who then entered appearance to defend and filed a
request for further particulars. Defendant further stated that he
was informed by the attorney that he would revert back to him
regarding the matter. Defendant further stated that after notice was
received of the application for summary judgment, a letter was
addressed to him by his attorney, dated 20 December 1995, informing
him of the application and requesting him to contact the legal
practitioner. Defendant said he never received this letter. The
first time he realised that summary judgment was taken against him
was when the messenger of the court turned up at his workplace with a
Warrant of Execution. Defendant said that he then immediately
contacted his firm of legal practitioners who informed him that the
practitioner, who previously had dealt with the matter, had left the
firm and that the matter had been taken over by another member of the
firm. This practitioner advised him to apply for rescission of the
judgment. Defendant therefore submitted that he was not in willful
default concerning his non-compliance with the Rules of Court. No
attempt was made whatsoever to explain why, on two occasions
defendant, or his legal representatives, did not turn up for court on
dates which were determined, either with the co-operation of
defendant's legal practitioners, or which were specifically requested
by them.







During argument of the matter on the 30th
October 1996 defendant's legal practitioner informed the magistrate
that he could give no explanation as to why no one appeared to
represent the defendant on 6 February 1996 when summary judgment was
granted. Likewise he informed the court that he did not know why he
himself was not in court on 23 April 1996. He further stated that on
8 May 1996 he was by letter informed by plaintiff's attorneys that
the matter was removed from the roll on 23 April and that they had
instructions to proceed with execution. To this letter the legal
practitioner responded that he still held instructions to apply for
rescission of the summary judgment. However, action was only taken
on 24 September 1996 when the application for rescission was again
set down for hearing. One cannot help but think that this belated
action was not spontaneously inspired by an intention to bring the
matter to finality but that it was triggered off by the fact that a
vehicle of the defendant was attached by the messenger of the court
in view of the judgment debt and that it was due to be sold in
execution.







These then were the facts on which the magistrate
decided to dismiss the application for rescission of judgment with
costs.







This decision was taken by the defendant on appeal to
the High Court. In doing so the defendant changed his legal
practitioners and at the appeal he was now for the first time
represented by the firm of Basil Bloch. The appeal was heard by two
Judges of that Court who gave judgment for the defendant on 19 June
1998. The Court set aside the summary judgment and granted the
defendant the opportunity to defend the action and to file further
pleadings in terms of the Rules of the Magistrates' Court.







The Court further awarded costs de bonis propriis
on a party and party scale against the law firm and or the two
individual legal practitioners who dealt with the matter. This order
was in favour of the plaintiff. Defendant's legal practitioner,
who represented him in the appeal, was ordered to pay the costs, if
any, occasioned by the second and third paragraphs, as well as
paragraph (g), of the notice of appeal which the Court found to have
been unnecessary and unreasonable.







The plaintiff thereafter applied for and obtained leave
to appeal to the Supreme Court. The defendant also filed a notice in
which he asked the Court a quo to interpret its judgment in
respect of costs. According to defendant the Court a quo
overlooked the fact that the defendant was successful in the appeal
and neglected to award defendant his costs in regard to the appeal.
The Court a quo declined to deal with the matter. It seems
that the Court a quo deliberately made no order as to costs.
Defendant was persuaded to let his application stand as a
counter-appeal. The defendant subsequently withdrew from the
proceedings with the result that we did not have the advantage of
argument on his behalf.







The grounds of appeal on which the plaintiff was granted
leave to appeal by the Court a quo are as follows:







"1. The learned Judges erred on the law and/or on
the facts in upholding the appeal and/or setting aside the Summary
Judgment granted against Respondent in favour of the Appellant on 6
February 1996, (by the learned Magistrate, Schickerling), and more
particularly on the following grounds:









    1. The learned Judges erred in finding that the Summary
      Judgment granted in the absence of the Respondent and his legal
      representative, in the circumstances of this case, amounted to a
      default judgment that can be rescinded under section 36(a) of Act
      32 of 1944, and particularly because of the fact that no and/or
      insufficient reasons were advanced by the Respondent as to why the
      legal representative was not present.











    1. The learned Judges erred in holding that the initial
      rescission application filed by the Respondent was filed within the
      permissible 6 week period, and more particularly because:












      1. The learned Judges erred in applying the presumption
        as envisaged in Rule 49(6) of the Rules of the magistrates' Court,
        incorrectly in the circumstances of the case, as the onus of
        rebutting the presumption is on the respondent and not the
        Appellant.











  1. The learned Judges erred in not finding that the
    Magistrate was correct in her decision that the application for
    rescission on behalf of the Respondent could not be heard as he was
    in willful default and/or because the Respondent did not comply with
    the Rules of the Magistrates' Court in setting down the rescission
    application.









  1. The learned Judges erred in not finding that the
    Respondent was in willful default and/or that the Respondent's
    application was not bona fide, and particularly if regard is
    had to the principle that the onus is on the Respondent to prove
    that he was not in willful default and/or that the application is
    bona fide.









  1. The learned Judges erred in finding that the
    application dated 23 September 1996 which was set down for 1 October
    1996, was not a new application.









  1. The learned Judges erred, even if they were correct
    that the application dated 23 September 1996 was not a new
    application, in not taking into consideration that there was still
    no explanation by the Respondent for the delay of approximately 6
    months prior to the matter being set down again.









  1. The learned Judges erred in finding that the Magistrate
    should have condoned the Respondent's non-compliance with the Rules
    of the Magistrate's Court and particularly if regard is had to the
    fact that the learned Magistrate exercised a discretion in not
    condoning the Respondent's non-compliance."








Before us Mr. Heathcote, who appeared for the plaintiff,
supported the judgment of the magistrate and submitted that the Court
a quo was incorrect when it disturbed the decision of the
magistrate. In addition to the reasons supplied by the magistrate
Mr. Heathcote submitted that Rule 49(1) of the magistrate's court
requires an application for rescission to be set down and heard
within six weeks after a default judgment had come to the knowledge
of an applicant. If such application is out of time an application
for condonation should be launched in terms of Rule 60(5) asking for
the extension of the period of six weeks. Counsel further submitted
that until such condonation has been lodged and granted the
magistrate cannot entertain a late application for rescission of
judgment. Relying on the case of Goldman v Stern 1931 TPD 261
counsel submitted that the removal from the roll of the first set
down of defendant's application for rescission had the effect that
the second set down of the application was out of time and as there
was no application for condonation for the non-compliance with Rule
49(1) the magistrate was correct in dismissing defendant's
application.







At this juncture it is necessary to look at the judgment
of the learned magistrate and the judgment on appeal by the learned
Judges. The magistrate dismissed the defendant's application mainly
on two grounds. Firstly she found that the set down of 26 September
1996 was a new or fresh set down and as it was outside the time limit
of six weeks laid down by Rule 49(1) and as there was no application
for the extension of that period the matter could not be entertained.
Secondly the magistrate found that the combined conduct of the
defendant and his legal practitioners was of such a nature that in
the absence of an acceptable explanation the bona fides of the
defendant was in question and that the court could not come to his
assistance. However, the magistrate conceded that a triable defence
was raised by the defendant in his affidavit which would have
sufficed but for the shortcomings set out above.







If I understood the judgment of the High Court correctly
that Court came to the conclusion that the defendant's application
for rescission, set down for 26 March 1996, was within the time laid
down by Rule 49(1). The Court a quo further found that the
set down of the application on 26 September 1996 was not a fresh set
down but merely a set down of the first application. Also relying on
the Goldman-case, supra, the Court a quo found
that the removal of the application from the roll on 23 April 1996
only suspended the set down with the effect, so it seems, that when
the matter was again set down, some five months later, the first set
down was revived and continued to ensure procedural compliance with
Rule 49(1).







In discussing the grounds of appeal raised by defendant
and dealing with the acceptance or non-acceptance by the magistrate
of his explanation for the delay in making his application, the Court
came to the conclusion that these grounds were totally irrelevant and
not at all applicable. The court, correctly in my opinion, found
that no explanation for any delay was given by the defendant, but
seems to have then been of the opinion that no explanation was
necessary due to the fact that the application for rescission was
timeously made. In this regard the Court a quo was probably
misled by the way in which the grounds of appeal were drafted. The
point of the delay in moving the application was a separate issue
which only arose after the matter was set down on the 26th
March 1996. What should also have been addressed by the grounds of
appeal was the non-acceptance by the magistrate of the defendant's
explanation for his default to take the necessary and timeous steps
to oppose the plaintiff's application for summary judgment.







The Court a quo, so it seems to me, lost sight of
the fact that Rule 49(7) empowers the Court, hearing an application
for rescission of judgment, to rescind or vary such judgment if it
was proved that the default was not willful and if good cause
was shown. Although the Courts have studiously refrained from
attempting an exhaustive definition of the words good cause,
they have laid down what an applicant should do to comply with such
requirement. In this regard it was stated that an applicant:




  1. must give a reasonable explanation for his default;



  2. the application must be made bona fide; and



  3. the applicant must show that he has a bona fide defence
    to the plaintiff's claim.




(See Grant v Plumbers (Pty) Ltd 1949(2) SA 470(O)
and Mnandi Property Development CC v Beimore Development CC
1999(4) SA 462 (WLD).)







As to a Court's approach in regard to such an
application it was stated in De Witts Auto Body Repairs (Pty) Ltd
v Fedgen Insurance Co Ltd
1994(4) SA 705(E) at 711E that -







"An application for rescission is never simply an
enquiry whether or not to penalise a party for his failure to follow
the rules and procedures laid down for civil proceedings in our
courts. The question is, rather, whether or not the explanation for
the default and any accompanying conduct by the defaulter, be it
willful or negligent or otherwise, gives rise to the probable
inference that there is no bona fide defence and hence that the
application for rescission is not bona fide." (See also
H.D.S. Construction (Pty) Ltd v Wait 1979(2) SA 298(E).)











A reading of the above cases shows that although the
fact that the default may be due to gross negligence it cannot be
accepted that the presence of such negligence would per se
lead to the dismissal of an application for rescission. It remains
however a factor to be considered in the overall determination
whether good cause has been shown, and would weigh heavily against an
applicant for relief. (H.D.S. Construction (Pty) Ltd-case,
supra, at p. 546.) Our Rule 49(7) of the Magistrates' Court,
in contrast to that in South Africa, still specifically prohibits
relief when it is shown that the default was willful.







In the present matter I am of the opinion that the
defendant and his legal representatives were grossly negligent. What
is more at no stage was it even attempted to explain this default.
The only explanation that was put before the Court was defendant's
allegation that a letter written to him on 20 December 1995 by his
legal representative went astray. Although it was indicated that a
copy of this letter would be attached to defendant's affidavit this
did not materialize. From the 7th December 1995
defendant's legal practitioner was aware that an application for
summary judgment would be made on the 23rd January 1996.
On that date the legal practitioner succeeded to obtain a
postponement of this application till 6 February 1996.
Notwithstanding the fact that this postponement was arranged in
co-operation with the defendant's legal practitioner seemingly in an
attempt to contact him before that date to be able to defend the
summary judgment proceedings, the implication to be gained from
defendant's affidavit is that no such attempt was made. This is
difficult to believe. There is no explanation that during any time
it was impossible to reach the defendant. It seems that the
messenger of the court had no problem in finding the defendant on the
two occasions that he was called upon to execute the warrant. Again
one would have expected an explanation of why the defendant was not
contacted or why he could not be reached. The person who could
explain this was the previous member of the firm of legal
practitioners who represented the defendant but it seems that no
attempt was even made to obtain an affidavit from him. If it was not
possible to obtain an affidavit one would expect the defendant to
have said so. The same reasoning applies in respect of the
non-appearance of defendant's legal practitioner on 6 February which
has lead to summary judgment being granted against the defendant.







Then, on the 23rd April, when defendant was
dominus litis, there was again no appearance on his behalf
which lead to the matter being removed or struck from the roll. Once
again no explanation for this default was given except that the legal
practitioner lamely stated that he could not explain his
non-appearance. It, however, goes further than that. Even if for
some unexplained reason the legal practitioner did not turn up for
court on 23 April, a date which he himself has set, one would have
expected that as soon as he became aware of his neglect he would have
done something to rectify the position by setting the application
again down as soon as possible. This did not happen.
Notwithstanding the fact that a letter was written by the legal
practitioners of the plaintiff to defendant's legal practitioners
informing them that they were going to issue a warrant of execution
to implement their judgment, it still took months before the matter
was again revived by a notice of set down for 26 September 1996, and
this only after the messenger of the court brought the defendant a
second visit. It seems that defendant's legal practitioner only
became aware that the matter was no longer on the roll after he was
so advised by plaintiff's legal practitioners.







There can be no doubt that the legal practitioners of
the defendant must take much of the blame for what had happened.
However, although one could perhaps understand the defendant's lack
of interest in his own affairs so far as the summary judgment
proceedings were concerned and that he may have thought that
everything was in the safe hands of his legal practitioner, his lack
of interest in his rescission application is difficult to understand.
He knew now that to leave everything to his legal practitioner could
have dire consequences. He also knew that the ball was now in his
court and that he could only stave off the judgment against him if he
was successful with his application for rescission. Nevertheless he
was content to sit back for months without making any enquiries of
what had become of his application, only to take action again once
steps were taken by the plaintiff to enforce his judgment.







It seems that the defendant and his legal
representatives were content to do nothing and were only forced into
action every time plaintiff attempted to execute on his judgment.







Regarding negligence on the part of a litigant's legal
representatives there are many instances where the Courts
nevertheless condoned such neglect and it was pointed out by the
South African Appeal Court that a client should not unqualifiedly be
held responsible for the neglect of his legal representative. (See
inter alia Webster and Another v Santam Insurance Co Ltd
1977(2) SA 874(A) at 883 and Vleissentraal v Dittmar
1980(1) SA 918 (O) at 922 B - D.)







However, the very least that can be expected of a
litigant under such circumstances is that he would place a proper
explanation before the court to explain such neglect. The absence of
a proper explanation reflects on the bona fides of the application.
(See Du Plessis v Tager 1953(2) SA 275 (O) at 279 A - 280 F;
Silber v Ozen Wholesalers (Pty) Ltd 1954(2) SA 345 (A) at 353
D - H; Saloojee and Another, NN.O v Minister of Community
Development
1965(2) SA 135(A) at p. 140.) The present case is
also not one where it can be said that the bona fides of the defence
was so manifest and that from all the facts the inference was
overwhelming that the defendant intended to raise such defence all
along, that an incomplete or unacceptable explanation could be
excused. (See De Witts Auto Body Repairs-case, supra.)







The onus was on the defendant to show that his
application for a rescission of the summary judgment which was taken
against him was bona fide and that he had a bona fide defence. His
incomplete explanation of why he did not timeously defend such action
and the total lack of any explanation regarding the default of his
legal representative to appear on 6 February and 23 April together
with the unexplained further delays which occurred until the matter
was at last set down on 26 September 1996, raise an inference that
there was no acceptable explanation for such neglect and that such
delays were caused with the intention of extending as far as possible
payment of plaintiff's claim. This is further strengthened by
defendant's own inaction and his seemingly total lack of interest in
the proceedings which he himself had instituted. It was on these
issues that the magistrate exercised her discretion and refused the
application of the defendant to rescind the summary judgment given
against him.







As pointed out earlier the Court a quo on appeal
did not give any consideration to this issue because it was
incorrectly of the opinion that as long as the application for
rescission was timeously made no explanation was required for the
non-compliance with the Rule of the Magistrates' Court and other
defaults. The Court a quo also placed great reliance on the
fact that the magistrate conceded that the defendant's defence could
have been bona fide but for the combined neglect of the defendant and
his legal representatives. I think what the magistrate had in mind
was to say that the defence put up by the defendant in his affidavit
was a triable defence and would have sufficed but for the conduct of
the defendant and his legal practitioners which was of such a nature
that it gave rise to the reasonable inference of lack of bona fides.
A reading of the authorities show it is not enough to raise a triable
defence it must also be shown that that defence is bona fide.







The Court a quo also blamed the plaintiff for not
setting the matter down himself and, in so doing, apply for
appropriate relief. It seems to me that the Court a quo here
had in mind the provisions of Rule 22 of the Magistrates' Court Rules
where in terms of sub-rule (1) a defendant in a trial action is given
the right to set the matter down if a plaintiff does not do so within
24 days after the close of pleadings. In regard to applications in
the High Court similar provision is made in Rule 6(5)(f) for the
setting down of an application by a respondent where an applicant
fails to do so within the allotted period. No similar provision is
made in Rule 55 of the Magistrates' Court Rules. In the case of In
re Pennington Health Committee
1980(4) SA 243 (N) Howard, J. (as
he then was), came to the conclusion that the word "action"
as used in the various provisions of Act 32 of 1944 and the Rules
bears the narrow meaning of a proceeding that is commenced by the
issue of a summons. In my opinion the language used in Rule 22 also
does not leave any doubt that the Rule applies to actions commenced
by summons and does not include applications. Consequently I am
satisfied that appellant is not also to be blamed for the inaction
and delay in this matter.







For the reasons set out herein before I have come to the
conclusion that the mainly unexplained disregard for the Rules of the
Magistrates' Court, the other unexplained defaults and delays caused
by the legal practitioners of the defendant or by himself combined
with the general conduct of the defendant were of such a nature that
it gave rise tot he reasonable inference that the defence of the
defendant, and hence the application for rescission, was not bona
fide. I am therefore of the opinion that the magistrate's dismissal
of the application based on the lack of bona fides on the part of the
defendant was correct.







Because of the conclusion to which I have come it is not
necessary to deal with Mr. Heathcote's submission that the matter was
set down outside the period of 6 weeks laid down by Rule 49(1) and
that in the absence of an application for the extension of that
period the magistrate could not came to the assistance of the
respondent.







In the result the following order is made:








  1. The appeal succeeds with costs.



  2. Paragraphs 1 and 2 of the Order of the Court a quo
    are set aside and the following order is substituted:




"The Application for rescission of judgment is
refused with costs."



















signed G.J.C. STRYDOM, C.J.















I agree.



















Signed E. DUMBUTSHENA, A.J.A.















I agree.























Signed B. O’LINN, A.J.A.















COUNSEL ON BEHALF OF THE APPELLANT: Adv. R.
Heathcote







INSTRUCTED BY: V/D MERWE-GREEFF







NO APPEARANCE ON BEHALF OF THE RESPONDENT