Court name
Supreme Court
Case name
Swart v Brand
Media neutral citation
[2003] NASC 16
















CASE
NO. SA 17/2002






IN
THE SUPREME COURT OF NAMIBIA





IN
THE MATTER BETWEEN





WILLEM
PETRUS SWART APPELLANT


And


KOOS
BRAND RESPONDENT








CORAM: MTAMBANENGWE,
A.C.J, O’LINN, A.J.A. et CHOMBA, A.J.A.


HEARD
ON: 08/04/2003


DELIVERED
ON: 28/10/2003










APPEAL
JUDGMENT





CHOMBA,
A.J.A.





INTRODUCTION


This
appeal is the culmination of the circumstances which will be
summarized shortly. For now I shall merely introduce the parties
hereto and give them a tag by which they will be referred to
throughout the judgment. It is also necessary at this juncture to
set out the parameters which the judgment will cover.





The
appellant in this appeal Mr. Willem Petrus Swart, was the plaintiff
in the court of first instance, namely the Magistrates Court at
Gobabis (the Magistrates Court). The respondent, Mr. Koos Brand,
was the defendant in the action. It will be more convenient for them
respectively to be referred to, and I shall consequently refer to
them, as the plaintiff and defendant respectively.





As
to the parameters, I shall first summarise the facts of this case,
review the arguments on both sides, deal with statute law which has
been argued or fall for consideration by necessary implication.





THE
FACTS





The
plaintiff instituted an action in the Magistrates Court claiming
damages for breach of contract. The particulars of claim which he
filed in that court state that the parties agreed that the defendant
would do certain building and/or general work for the plaintiff. It
was alleged that the defendant did not perform his obligations under
the contract satisfactorily and as a result the plaintiff suffered
damage. In the fifth paragraph of the particulars of claim it was
stated –






The
plaintiff is obliged to obtain the services of another building
contractor to complete the outstanding work on behalf of the
Defendant of which the fair and reasonable costs of repair amounts to
N$ 8000.”









Consequently
the plaintiff claimed a sum of N$ 8,000 plus interest a tempore
morae
and costs of the suit.





The
founding summons was served on the defendant’s wife. It is common
cause that the defendant was not available at his residence at the
time of service. In the result the defendant’s daughter, a Mrs.
Bussel, completed on her father’s behalf the Notice to defend.
This was on July 2, 1998. The daughter indicated her own postal
address as the address of service. This prompted the plaintiff’s
lawyers to further serve a Notice to deliver in terms of rule 13 and
in the body of this Notice it was stated that the defendant should
deliver a proper notice of entry of appearance in due form. The rule
13 notice was addressed to the defendant’s daughter’s postal
address, with the result that the defendant did not actually receive
it.





Because
of an apparent failure of the defendant to enter appearance in
consequence of the rule 13 notice, the plaintiff filed a formal
Request for Default Judgment. This was originally dated 6th
July 1998, but was later altered to read 30th October
1998. Judgment was accordingly entered by date-stamping over the
Request for Default Judgment. The date of entering the default
judgment is shown as January 13, 1998. In consequence thereof
execution was enforced upon which certain movable chattels of the
defendant were seized together with goods which belonged to other
persons. The defendant’s goods were sold in due course in
execution of the default judgment.





It
was in the wake of the occurrence of the sale in execution that the
defendant discovered that the entry of the default judgment was
effected by the Clerk of the Court at the Magistrates Court and that
the Request for Default Judgment was not verified by affidavit. In
the circumstances the defendant in due course filed a Notice of
Application for Rescission of the Default Judgment. This is dated
July 11, 2000 and the filing was done on July 12 as evidenced by the
date stamp embossed on it. In a supporting affidavit the defendant
deposed, inter alia, that he had been advised that the default
judgment was irregular and illegal and consequently that the seizure
and subsequent sale of his goods on the strength of the said judgment
was equally irregular and illegal. He also stated that he had a
bona fide defence to the plaintiff’s claim. He specifically
deposed that he denied that the plaintiff had suffered any damages,
that he, the defendant had refused and/or neglected to complete any
outstanding work for the plaintiff. In praying that the default
judgment be rescinded the defendant averred that the default judgment
was void ab initio.





In
an opposing affidavit the plaintiff initially raised two points in
limine. On the date of hearing the application for rescission
the plaintiff’s legal practitioner, Mr. B.N. Venter, withdrew the
second point in limine and was left with the first one. In
this he argued that the defendant’s application for rescission
ought not to have been set down for hearing unless and until he first
complied with rule 49(3) of the Magistrates Court Rules. This
requires the furnishing of security for costs prior to the hearing of
an application to set aside. In response to that contention it was
argued on defendant’s behalf by Mr. Van de Heever, that since the
judgment entered in default was void ab initio rule 49(3) did
not apply.





EVALUATION
OF THE LAW AND FACTS





It
was evident at the time of arguments that it had become common cause
that there was no supporting affidavit in as required by rule 12(4)
of the Magistrates Courts Rules in the Magistrate’s Court file.
When he eventually gave his extempore judgment the trial magistrate
descended into the arena and interpolated that the default judgment
had in fact been entered by himself and that at the time the matter
was placed before him by the Clerk of the Court there had been a
verifying affidavit although as of the time of the hearing the case
file did not have the affidavit. He expressed his unhappiness at the
frequent loss of documents from case records at his court, a
phenomenon he attributed to incompetence on the part of inadequately
experienced Clerks of Court. In conclusion he ruled that the default
judgment was valid and not void ab initio. Therefore since
the defendant had not complied with rule 49(3) aforesaid he struck
off the action from the roll.





The
defendant was aggrieved by the Magistrate’s ruling and consequently
appealed to the High Court. There the appeal was heard by Levy and
Mainga, J.J. At the hearing of the appeal the plaintiff, who was
then the respondent, raised yet another preliminary point in
limine
. This time the point raised was that the Magistrate’s
ruling was interlocutory and therefore unappealable. In a unanimous
judgment delivered by Levy, J, it was held, upholding the appeal,
that although in form the Magistrate’s ruling appeared to be
interlocutory, in reality it was a final judgment because, in the
opinion of the judges, no action could be taken by the defendant to
advance the case any further. The following appears on page six of
the appeal judgment of the court a quo –






In
argument both written and oral, Mr. Schickerling conceded that the
default judgment was invalid and should not have been granted, Mr.
Schickerling pointed out that the so-called grounds of appeal were
repetitive and introduced allegations which were unnecessary. The
final ground, however, summed up the appellant’s case, and more
particularly the ground of appeal was :







The
learned Magistrate erred in law and in fact in finding that the
so-called default judgment was valid despite the various
irregularities committed in this matter and accordingly that justice
was not done.’






The
appeal therefore is not only against the scrapping of the application
for rescission. No purpose will be achieved by setting aside such
ruling and ordering the matter to be returned to the
Magistrate.
The Magistrate has already given a judgment on the very point that
the application for rescission was made in the first
place and
his judgment is the motivation for his ruling. The judgment is wrong
and cannot be allowed to stand. Consequently the ruling flowing
therefrom cannot be allowed to stand.”





In
consequence the court a quo set aside the Magistrate’s ruling,
thereby allowing the appeal.





Let
me state straight away that I concur that the Magistrate’s ruling
was wrong, but in my view it was wrong for a different reason. The
Magistrate descended into the arena, so to speak, and purported to
give evidence of what had transpired when the application for
rescission was lodged at the Magistrates court. The following is a
text from his ruling starting from just below the first half of page
104 of the record of appeal :






In
view of the fact that there are allegations by the Respondent that
certain documentations were in fact on file. And it is clear today
that no such documentation is on the court file. Mr. Venter
proceeded to give an explanation thereto, and I have to confirm with
a bit of shame, I must confess that we do have a problem here in
Gobabis with documentations missing from the court files for various
reasons. We have had it in the past, they were simply not filed,
could not be found and were then indeed found at a later stage. I am
not looking for any excuses, however it is so that we have had
various Clerks of the Civil Court, acting in this office, people with
little experience, people being trained and indeed this is not a
singular incident. We had various of these incidents where various
pieces of the court file were not there and then later ex post facto
it was found, filed somewhere else or locked in a cupboard, whatever.
So therefore Mr. Venter’s allegations should deserve some
consideration. What I can see is, if I have a look at the court
file, is that indeed this court file, before the judgment was noted
by the Clerk of the Court, on the 1999.01.13, this court file was
submitted to the Court. The Court did look at the court file, and
the Court did in fact grant a judgment of N$8 000, plus costs. And
this was also signed by the Court on the 12th day of
January 1999. So what is actually clear here, is that this file was
referred by the Clerk of the Court to the Court, and that the Court
signed a judgment on the cover of the file before the Clerk of the
Court then stamp the judgment, and granted the judgment. The
question I have to answer there is, when this judgment was given by
the Court, was there evidence under oath, either viva voce or by
means of an affidavit, supporting this claim, because ex natura
the claim, it is a claim for damages. And the Court is well versed
with the prerequisite that a judgment will not be granted for
damages, without the existence of evidence, supporting the quantum of
the damages. This is also quite clear from the file that no viva
voce
evidence was heard by the court. So the question remain,
whether there was in fact an affidavit upon which the Court granted
this judgment. Now the Court can say, and it is indeed the
proceedings in this court, of which I was the only civil magistrate
until recently, and definitely the only civil magistrate at the time
that this request for default judgment was brought to the court, and
also that I was the person who granted this default judgment, that
under no circumstances this Court ever granted a default judgment for
damages, without evidence to this regard. It has been the practice
and there are several instances that I can recall where there were in
face requests for default judgment brought before the Court, and the
Court referred them back, and said that no default judgment will be
granted in the absence of evidence regarding the quantum of the
damages. So I have to find in this case, that in fact there was some
kind of an affidavit at least supporting this request for default
judgment. It is very unfortunate today, that those documents are
missing from the court file. It is however, as I have already
indicated, an instance that occurred in this office at more than one
stage, and therefore I have to accept that there was indeed an
affidavit.”





There
was no justification at all for the Magistrate to amplify and advance
the case of one party, the plaintiff in this case. The parties
fought this case on the strength of affidavits and if the magistrate
deemed it fit to become a witness he should have recuse himself in
which case it would have been up to the plaintiff’s counsel to
offer him, the Magistrate, as a deponent.





To
illustrate the unfairness of the Magistrate’s action in this
case, the defendant, as applicant for rescission of the default
judgment, deposed to an affidavit in support of his application.
Similarly the plaintiff, in order to resist the application, swore an
affidavit in opposition. Each of the two could have been called, if
occasion had arisen, to submit themselves in person for
cross-examination on the contents of their affidavits. But the
Magistrate gave a statement without the sanction of an oath. This
notwithstanding, he heavily relied on that statement in purported
proof of a cardinal issue in the hearing, namely what had transpired
on the day of lodgment of the application for default judgment. It
was on the basis of the unsworn statement that he concluded that an
affidavit in support of the request for default judgment was in fact
filed. The Magistrate’s behaviour was totally unacceptable in
law. How could he dispense impartial justice when his statement
favoured one side?





Unfortunately
for the judges of the court a quo, it is my considered
opinion, as I shall presently show, that the waywardness of the
Magistrate’s ruling does not redeem their judgment. The
impression the judgment of the court a quo creates is that the
finding by the Magistrate that the default judgment was valid spelt
the finality of the plaintiff’s action. In my respectful view it
was flawed reasoning to state, as Levy, J, stated, that no purpose
would be achieved by setting aside such ruling and
ordering the matter to be returned to Magistrate.” There
was a purpose to be served or achieved.





Rule
49 of the Magistrates Court Rules states as hereunder, quoting only
those of its sub-rules which are pertinent at this stage :






(1) Any
party to an action or proceedings in which a default judgment is
given may apply to the court to rescind or vary such judgment
provided that the application shall be set down for hearing on a date
within six weeks after such judgment has come to his knowledge.







  1. Every
    such application shall be on affidavit which shall set forth
    shortly the reasons for the applicant’s absence or default of
    delivery of notice of intention to defend or of a plea and, if he be
    the defendant or respondent, the grounds of defence to the action or
    proceedings in which the judgment was given or of objection to the
    judgment.”






Moreover
section 36 of the Magistrates Courts Act is quoted as follows by
Jones and Buckle, the learned authors of “The Civil Practice of the
Magistrates’ Courts in South Africa” at page 134 :






The
Court may, upon application by any person affected thereby, or in
cases falling under paragraph (c), suo muto






  1. rescind
    or vary any judgment granted by it in the absence of the
    person against whom that judgment was granted;









  1. rescind
    or vary any judgment granted by it which was void ab origine
    or was obtained by fraud or by mistake common to the parties

















  1. rescind
    or vary any judgment in respect of which no appeal lies.”
    (underlining supplied)










The
effect of both section 36 and rule 49(1) and (2) is clear. Any
judgment, whether valid or void ab origine, can be made the
subject of an application for rescission. It therefore stands to
reason that if the applicant for rescission can satisfy the court
that he has a good case to justify rescission, the court can rescind
a valid default judgment. Rule 49(2) requires two preconditions to
justify a rescission viz: acceptable reasons for the applicant’s
absence or default of delivery of notice of intention to defend or
plea, and the fact that the applicant has a good defence to the
claim.





Indeed
the Magistrate in the court of first instance did give the defendant
an option to resuscitate the matter by resubmitting the rescission
application. He stated –






Therefore
the ruling that the court makes at this stage is that the judgment
given on that day was not invalid ab initio but indeed a
valid default judgment, and therefore, if the defendant, who is
the Applicant today wishes to request a rescission of judgment, it
should be done so properly and the necessary security should be
given”
(emphasis mine).





In
the present case the defendant did attempt to satisfy both conditions
required by rule 49(2). He stated that despite that he had indicated
his correct address for service on the founding summons by crossing
out his daughter’s postal address in part 3 which is to be
completed in order to give a notice of intention to defend, the
plaintiff sent to his daughter’s address the Rule 13 notice to
deliver a proper entry of appearance/notice of intention to defend.
By necessary implication the defendant’s explanation is that
although he did indicate his address for service when he completed
the notice of intention to defend, subsequent process was misdirected
to his daughter’s postal address. His reference to completing the
notice of intention to defend also implies that the request for
default judgment ignored the fact of his having filed the notice of
intention to defend. He then went further and deposed that he had a
good defence on the merits. To this end he deposed that the
plaintiff did not suffer the claimed damages in the sum of N$8,000;
that he had not refused or neglected to complete any work as claimed
in the founding summons; and that the plaintiff had never at any time
demanded that the defendant should complete any such outstanding
work. Therefore prima facie he did make out a case to entitle
him to a rescission of the default judgment.





Reverting
to section 36 of the Magistrates Courts’ Act, we have seen that at
paragraph (b) it provides that even in respect of a default judgment
which is void ab origine an aggrieved party is required to lodge an
application for rescission. This statutory provision appears to run
counter to Lord Dennings’ dictum in MACFOY v. UNITED
AFRICA CO. LTD
(1961) 3 ALL E.R., to wit :






If
an act is void, then it is in law a nullity. It is not only bad, but
is incurably bad. There is no need for an order of court to set it
aside. It is automatically null and void without ado, though it is
sometimes convenient to have the court declare it to be so. And
every proceeding which is founded on it is also bad and incurably
bad. You cannot put something on nothing and expect it to stay
there. It will collapse.”





Section
36 provides to the contrary: you need an application to set aside a
default judgment which is void ab origine. That application,
based as it is on the alleged void default judgment, is in principle
a good application; that application is by law allowed to be safely
perched on the void judgment and to stay there and not collapse.
Therefore in the eyes of section 36 the alleged void default judgment
is not per se incurably bad but in order to extinguish it you have to
apply for its rescission. Furthermore Rule 49(3) of the Rules of the
Magistrate’s Court also applies in such a case as provided for in
Rule 49(10). Rule 49(10) of the Rules of the Magistrate’s Courts
makes Rule 49(3) also applicable in such a case.





In
the final analysis the Court a quo was wrong to hold that the
ruling of the magistrate given on the application was final and
appealable. In my view and on the legal position considered in the
preceding paragraphs of this judgment, the magistrate’s decision
that the application be struck off the roll and the option left to
the defendant to submit a fresh application for rescission in a
proper manner, was the only valid and appropriate order that the
Court could make in the light of the provisions of sub-rule (3) of
Rule 49.





At
first blush it appears that the finding on the application to declare
the default judgment “void ab origine” in terms of section
36 of the Magistrate’s Court Act, constitutes a final judgment or
order and as such appealable without more. In view however, of Rule
49(3) which is made applicable by sub-rule (10) also on an
application under section 36, the finding was premature and as a
consequence it must be regarded as an obiter dictum which is
not final and not appealable. This view is strengthened by the fact
that in the final result the learned magistrate struck the
application from the roll.





But
even if the said finding under section 36 was intended by the learned
magistrate as a final judgment on the issue, such judgment would in
itself constitute a proceeding which is “void ab origine”
because the application for rescission did not comply with the
preconditions set by Rule 49(3) read with sub-rule (10).





Another
magistrate presiding at the hearing of a fresh or supplemented
application brought in accordance with Rule 49(3) read with Rule
49(10) will be free to decide de novo whether or not the
default judgment was or was not “void ab origine”.





It
follows that the point in limine taken on behalf of plaintiff
in the appeal before the Court a quo, should have been upheld.
To avoid any further confusion I will continue to refer in the
Court’s order to the parties as in the Court of first instance.





In
the result the order of this Court is as follows.





1. The
appeal is upheld. The judgment of the Court a quo is set
aside.





2. The
following order is substituted for that of the Court a quo.







    1. The
      appeal from the judgment of the magistrate is struck from the roll.










    1. Should
      the defendant wish to reapply for a rescission of the default
      judgment against him, he may do so on the papers filed in the
      original application for rescission, alternatively submit a fresh
      application, provided that:








(a) The
defendant complies with the preconditions set by Rule 49(3) of the
Rules of the Magistrate’s Court relating to security unless he has
successfully applied to be dealt with as a pro deo litigant as
provided by Rule 49(3) itself; and







(b) The
defendant relaunches his application for rescission within 30 days of
the date of this judgment.







3. Should
defendant proceed with such application, it shall be heard by a
different magistrate than the one who presided in the Court of first
instance when defendant’s application for rescission was first
heard.







4. During
such hearing before another magistrate it shall be open to the
defendant to once again contend that the default judgment was “void
ab origine
”.







  1. Should
    defendant proceed with such application to its conclusion, costs of
    the appeal in the Court a quo as well as in this Court will be costs
    in the cause. If however, he does not proceed, he will be
    responsible for the costs of the appeal in the Court a quo as well
    as in this Court in addition to any legal costs which may be
    incurred subsequently in any reapplication proceedings.




















________________________



CHOMBA,
A.J.A.



































I
agree























____________________________



MTAMBANENGWE,
A.C.J.



















I
agree























________________________



O’LINN,
A.J.A.
























ATTORNEY
FOR THE APPELLANT : MR. J. SCHICKERLING



(
INSTRUCTED BY WEDER, KRUGER AND



HARTMAN)








ATTORNEY
FOR THE RESPONDENT: MR. G.S.G. VAN DEN HEEVER AND



ADVOCATE



(P.
McNALLY)



(INSTRUCTED
BY J.C. VAN WYK



ATTORNEYS)