IN THE HIGH COURT OF NAMIBIA
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
Case no: I 3292/2010
In the matter between:
SELMA TUEMUMUNU KARUAIHE
UNIVERSITY OF NAMIBIA
Neutral citation: Karuaihe v
University of Namibia (I 3292/2010)  NAHCMD 197 (17 July 2013)
Coram: SMUTS, J
Heard: 11 July 2013
Delivered: 17 July 2013
application. Stated to be in terms of Rule 31, although applicant’s
written argument relying on Rule 44. But in oral argument relying on
the common law. Explanation given for default not found to be
reasonable and acceptable. Application dismissed.
That the applicant’s application
for rescission of the judgment granted against her on 4 February 2013
is dismissed with costs.
This is an application to rescind a
judgment of this court granted on 4 February 2013 in favour of the
respondent (as plaintiff) against the applicant the defendant in
that action. The court order on 4 February 2013 struck the
defendant’s plea with costs and dismissed her counterclaim
with costs and granted a judgment in the sum of N$551 679,70 in
favour of the plaintiff together with interest at the prescribed
rate from 9 October 2010 to date of payment and costs.
The judgment was granted by this
court in the absence of the applicant after her legal practitioner
had withdrawn on the same date which was the first day of the
scheduled trial between the parties.
The applicant brought her application
for rescission of judgment on 25 February 2013. In the founding
affidavit, she states that the application is brought in term of
rule 31(2) of the rules.
The respondent elected not to file an
answering affidavit, but instead filed a notice in terms of rule
6(5) (d) setting out legal points to be taken at the hearing of the
matter. Certain technical points are taken, contending that the
wrong form had been utilised and relating to the service of the
application. These points have rightly not been persisted with. But
the point is squarely taken that the explanation for the applicant’s
default to appear in court on 4 February 2013 is ‘contradictory
and/or vague’ and thus inadequate.
The claim of the plaintiff against
the applicant is in respect of study leave payments made to the
applicant in respect of further studies pursued by her abroad. In
terms of the agreements attached to the particulars of claim, the
applicant was required to return to work at the respondent for a
total period of five years and six months, being the period equal to
the study leave granted to the applicant. The agreement further
stated that in the event of the applicant breaching the agreements,
the sums paid to her as a study leave would then become repayable.
It was alleged in the particulars of claim that the applicant
breached the terms of the agreements by resigning in advance of
completing the period in question in the plaintiff’s employ.
The respondent then claimed the sum in which judgment had been
The claim was defended by the
applicant She had taken up employ in Pretoria, South Africa and
engaged the legal firm of Weder, Kauta & Hoveka to act on her
behalf in defending the claim. She filed a plea and counter claim.
After the pleadings had closed, the matter was referred to case
management. At the first case management meeting, the parties’
representatives proposed that the matter proceed as a stated case.
At a subsequent case management meeting both representatives
concluded that this was not possible and a report was then provided.
The parties both subsequently discovered. The defendant’s
discovery affidavit was served on 3 August 2012 and the defendant
subsequently filed a bundle of discovered documents on 20 November
At the case management meeting of 17
October 2012, the matter was postponed to 21 November 2012 at 09h00
for a pre-trial conference. The court order of that day (17 October
2012) also stated that the trial was provisionally set down for
hearing for the week 4-8 February 2013 on the floating roll.
On 21 November 2012, the parties
applied for the postponement of the pre-trial conference as they had
not been able to conduct the necessary meeting which was a
pre-requisite. The pre-trial conference was postponed to 3 December
and again to 12 December 2012. In advance of the pre-trial
conference of 12 December 2012, the parties filed a proposed
pre-trial order in accordance with rule 37 as amended. It set out in
some detail which issues a fact were to be resolved during the trial
and which facts were not in dispute. It further referred to the
witnesses which the respective parties would call. It also expressly
confirmed the trial date.
On 12 December 2012 this court then
directed that the matter would be set down for trial on 4-8 February
2013 at 10h00 and that the issues to be determined were those set
out in proposed pre-trial minutes. That is briefly the procedural
background which preceded the trial.
In the applicant’s application
for rescission, the applicant states that because she has been
resident in Pretoria, South Africa, she has not had the ‘luxury
of having been able to personally consult with my erstwhile legal
practitioners on a regular basis.’ She further states that she
was forced to rely upon telecommunications and emails to provide her
instructions. As a result, she states that her instructions were not
accurately recorded in her plea which would require considerable
amendment in order to set out the defence which she sets out in this
application. But because of the conclusion I reach in this matter,
it is not necessary to further deal with the defences raised in this
In setting out reasons for her
default of appearance on 4 February 2013, the applicant states that
she had left the action in the hands of her erstwhile legal
practitioners because she is resident in Pretoria and trusted that
they would do everything to defend the matter, having provided them
with a power of attorney. The applicant then proceeds to the events
of February 2013 without referring to any preceding step taken in
the conduct of the litigation on her behalf and especially the
pre-trial procedures from 17 October 2012 onwards. Given the
relevance of the portion of the affidavit dealing with her failure
to appear on 4 February 2013, it is quoted in full:
2 February 2013 in the late afternoon I was contacted by my erstwhile
attorneys who, for the first time informed me that I needed to be in
Windhoek for the trial set to commence on Monday 4 February 2013.
This telephone conversation of 2 February was the first time I had
ever been given an actual instruction to be at the trial form y
erstwhile attorneys, despite earlier communication that the trial was
set for that day. I immediately told them that they had left it very
late to inform me, and that I would not just be able to pack up and
leave for a week by Monday, as it was already late and I would need
to obtain the necessary leave from my employer, and make travel
was told that the matter was on the floating roll, together with two
other matters, a copy of the relevant page of the roll is attached as
annexure “STK3”. In light of this and the fact that I was
the defendant in the main action thereby obliging the plaintiff to
begin, it was decided that my attorney’s would be able to
ascertain with more accuracy on the Monday, when I would be needed to
present my evidence. With this done I could be contacted by 11h00 on
that Monday, so that I could arrange to leave for Namibia as needed.
Monday, 4 February 2013, instead of receiving a telephone call from
my attorney informing me when I needed to be in court, I received an
email attached to which was a notice of withdrawal as attorneys of
record undersigned by Mr Kauta from Dr Weder, Kauta & Hoveka Inc.
I attach a copy of this notice of withdrawal as Annexure “STK4”.
I am a lay person I do not know very much about the law and legal
procedure, I do however know enough to realise that I was
unrepresented in court and thereof in all probability I would be
faced with some or other adverse order.
the strength of this I was able to get hold of Mr. Kaumbi from
Kaumbi-Shikale Incorporated, to whom I conveyed my side of the story
and asked him to assist me. He was able to ascertain that the order
attached as “STK1” had indeed been made and that the
plaintiff could now start execution proceedings against my property.’
The applicant further referred to
practice directive 38 of the consolidated practice directives of
this court dealing with the withdrawal of legal practitioners and
is apparent that Mr Kauta nevertheless withdrew on the day of the
trial, and what is worse is that he gave me absolutely no warning
that he was intending to do this. I can only think that my matter was
not given the attention it deserved after all.’
That is the extent of the applicant’s
explanation for her being fault of appearance on 4 February 2013.
When the matter was argued, Mr J.P.R.
Jones who appeared for the applicant correctly contended that rule
31 would not apply, given the history of the matter. He referred to
De Villiers v Axiz Namibia
where the Supreme Court, with respect, rightly held that the fact
that an application for rescission is brought in terms of one rule
‘does not mean that it cannot be entertained pursuant to
another rule or under the common law, provided, of course, that the
requirements of each of the procedures are met’.
In Mr Jones’ heads of argument,
he sought to rely upon rule 44 (1) in contending that the order or
judgment was erroneously sought or granted in the absence of the
applicant and should thus be rescinded. The basis for his written
submissions was that the withdrawal of the applicant’s
erstwhile legal practitioners was contrary to the practice
directives and that the judgment was accordingly erroneously sought
or granted. He correctly pointed out with reference to De
Villiers v Axiz Namibia (Pty) Ltd
that under rule 44(1) (a) an applicant is not required to establish
good cause or sufficient cause for the rescission of a judgment
granted in her absence in the sense of meeting the two pronged
requirement of an adequate explanation for her default and a bona
fide defence to the action. He referred to both rule 16(4) (a) of
the rules dealing with the withdrawal of counsel from an action as
well as the practice directive 38 and submitted on the strength of
the applicant’s founding affidavit that a withdrawal contrary
to the rules and practice directives would result in the judgment
being granted erroneously in the absence of the applicant.
The applicant had attached the notice
of withdrawal of her erstwhile legal practitioner to the
application. Significantly, the email attached to the notice of
withdrawal provided on the court file was not attached to the
applicant’s founding affidavit. Nor did she state in her terse
explanation for her default at what time she received the notice of
withdrawal. The email attached to the notice of withdrawal indicates
it had been forwarded to the applicant at 08h03 on Monday 4 February
But even more significantly, the
applicant’s current legal practitioner had not taken the time
to enquire as to what transpired when the matter was called at 10h00
on 4 February 2013, and caused the proceedings on 4 February 2013 to
be transcribed or at least listened to the recording. Given the
importance of what transpired in court a significant portion is
quoted below. As is apparent from the transcribed record, Mr Kauta,
applicant’s erstwhile legal practitioner appeared in court to
apply to withdraw.
May it please the Court My Lord I appeared on behalf of the Plaintiff
in this matter.
KAUTA: May it please you My Lord I appear for the Defendant in
KAUTA: Yes My Lord.
Is that past tense?
KAUTA: Yes in past tense.
Are you withdrawing or you are applying to withdraw?
KAUTA: I am applying to withdraw My Lord. This morning I served a
Notice of Withdrawal.
I do not have a Notice of Withdrawal in the Court’s file.
KAUTA: My Lord I actually have a copy here.
Mr Kauta what is the reason for that, you know what the Practice
KAUTA: Yes My Lord I will address Your Lordship on that
You had better.
KAUTA: I do better My Lord, yes. My Lord the withdrawal has
nothing to do with lack of funds or conflict of interest, but on
Saturday I had a consultation with my client and it appeared very
pertinently to me that there is a lack of trust and respect of the
discussion we had and I categorically then informed her that I did
not see myself proceeding on that basis and that she should appear in
Court today with a new lawyer whom she has trust in. I also informed
her that yes it is short notice, but I will not file just a Notice of
Withdrawal and not pitch up in court and I will be in court today.
Earlier on before Your Lordship was called I tried to see whether she
was around and I did not see whether she is here, I still cannot see
my client here.
And she is aware that the trial is set down today?
KAUTA: Yes she is very much aware that the trial is set down for
this week and that is really the long and short of why I have to
So you are applying to withdraw because in your consultation which
was no doubt scheduled for the purpose of preparation for trial you
felt that you no longer enjoyed the confidence of your client?
KAUTA: Yes My Lord.
And for that reason you cannot continue to represent her?
KAUTA: Yes My Lord.
Thank you Mr Kauta. Let me just her from Mr De Beer. Mr De Beer what
is your attitude about (incomplete). . .
De Beer. . .
No, Mr Kauta has indicated that his client is aware of the
proceedings continuing today, but you do not oppose his application,
is that right?
DE BEER: No, no.
Thank you Mr De Beer. Mr Kauta I just like to have your confirmation
that your client, you said you consulted your client on Saturday?
KAUTA: On Saturday yes My Lord.
And you confirm that your client is aware that the matter would
proceed today at 10:00 in this court?
KAUTA: Yes My Lord also told her and (incomplete)
And she would be aware that if she did not appear today that I can
give judgement against her so then she would need to apply for either
a postponement to represent herself?
KAUTA: Yes My Lord, I told her specifically that, I do not know
why she is not here, maybe she is looking for a lawyer, but I cannot
really speak for her. I did inform her of the consequences of that
And just for the record I see in the notice of withdrawal it is
indicated that her address is in Johannesburg, is there not a
physical address there?
KAUTA: I will forward
the physical address of where she stays in Pretoria.
Is it in Pretoria?
KAUTA: That is where
She works in Johannesburg?
KAUTA: She works in
Thank you Mr Kauta. I have heard what you have to say, Mr De Beer
does not oppose your application and I
that in view of what you have said to this Court,. the primary
problem the Court has at the late stage of withdrawal is if it is for
funds, and that is why a lawyer is required to appear, but if it is
not for funds or conflict but because you no longer enjoy the
confidence of your client and you apply to withdraw and you have
provided a Notice of withdrawal, in those circumstances, I will
accept the explanation you provided and your application to withdraw.
You may then be excused from further attendance and thank you for
attending and providing your explanation.
KAUTA: As it pleases
Madam orderly will you please call the defendant’s
name, her name is Selma Karuaihe?
There is no response My Lord.’ (sic)
As is apparent, after Mr Kauta was
excused, the name of the applicant was called and she did not
appear. The respondent applied to strike the applicant’s
defence and dismiss her counterclaim and also applied for judgment
in the amount which was then granted together with interest and
costs. I then proceeded to grant the order which was attached to the
application for rescission but gave brief reasons at the time in
doing so. Those reasons are also not referred at all in the
application for rescission of judgment.
The defendant is not present. Her instructing legal practitioner Mr
Kauta has withdrawn. He informed the court that he had conveyed to
his client that he was withdrawing today. He had consulted her on
Saturday, the 2nd
of February 2013 and informed her that he could no longer proceed to
act on her behalf due of the fact that he no longer enjoyed her trust
and confidence to represent her in these proceedings. He then filed
the notice of withdrawal which was served this morning and he handed
it up and applied for leave to withdraw. This was not opposed by Mr
De Beer who appears for the plaintiff and I accordingly granted him
leave to withdraw, given the explanation that he had provided to me.
He also confirmed that the defendant was aware that the matter was to
proceed in court today and that his advice to her was to secure the
services of another attorney to come to court today and apply for the
postponement of the matter or to appear herself. She was not
represented by any legal practitioners in court and I had her name
called in the foyer of the court. She did not answer when her name
was called and has not appeared in court. I accordingly directed that
the matter can proceed, given her failure to attend or being
represented by a counsel. Mr De Beer then moved to strike the
defendant’s plea and that her counter claim also be dismissed
with costs. I accordingly granted an order striking the plea with
costs and dismissing the counter claim with costs. He then moved for
judgement by default, that interest should run from the date of the
service of the summons, the summons were served on the 8th
of October 2010 and I accordingly am prepared to grant interest from
of October 2010. I accordingly grant judgement in favour of the
plaintiff in a sum of five hundred and fifty one thousand six hundred
and sixty nine dollars and seventy cents (N$551 669,70), interest on
this amount at the prescribed rate of 20% per annum from the 9th
of October 2010 to date of payment and further costs of suit. I
further confirm my earlier order in striking the plea and the
defendant’s defence with costs and dismissing the defendant’
counter claim with costs.’
Mr Jones in the circumstances
informed me that the applicant would no longer proceed with the
application on the basis of rule 44, thus accepting that the order
had not been erroneously sought or granted.
Mr Jones however proceeded to apply
for rescission on the basis of common law, correctly accepting, that
rule 31 also did not apply.
Under the common law, the applicant
is required to establish sufficient cause for rescission which is
synonymous with the good cause requirement of rule 31.
The applicant would need to establish a reasonable and acceptable
explanation for her default and that on the merits she has a bona
fide defence which, prima facie, carries some prospects of success.
Mr De Beer who appeared for the
respondent argued that the point was taken in the notice in terms of
rule 6(5) (d) that the applicant had not provided an adequate and
acceptable explanation for her default in the founding affidavit,
particularly when viewed in light of the statements made by Mr Kauta
in court in applying to withdraw as her erstwhile legal practitioner
of record. Mr De Beer correctly points out that paragraph 15 of the
applicant’s founding affidavit contains what appears to be an
internal contradiction. On the one hand, the applicant states that
she was informed on 2 February 2013 for the first time that she
needed to be in Windhoek for the trial set to commence of 4 February
2013. This is however contradicted to an extent in the following
sentence by stating ‘despite earlier communication that the
trial was set for that date’. The applicant does not explain
why she would not need to be in court on the trial date except with
reference in the subsequent paragraph to conjecture as to when the
matter would proceed and when her evidence would be required.
As against the extremely vague and
terse explanation for her default, there is a statement, albeit not
under oath, provided by her erstwhile legal practitioner, an officer
of this court to this court. In his statement, he made it plain that
he had informed the applicant of his withdrawal already on Saturday
when the disagreement had arisen and had also explained to her that
she would need to secure the services of other legal practitioners
or appear in person in court on Monday, 4 February 2013 at 10h00.
Quite how the applicant could state that she would have received the
call from Mr Kauta on Monday morning as to when she would be needed
in court following the discussion on Saturday when he had informed
her that he would withdraw and of the consequences of doing so, is
not explained. The applicant’s statement that she is ‘a
lay person’ and does not ‘know very much about the law
and the legal procedure’ cannot avail her in the circumstances
of this matter. The recent procedural history of the matter in going
through case management and discovery and particularly with
reference to the preparation of the proposed pre-trial order would
have necessitated instructions from the applicant. Significantly,
the applicant does not even refer to the preceding steps. I also
take into account that the applicant study leave granted to her and
referred to in the agreements annexed to the particulars claim was
for the purpose of completing a PHD in Natural Resource Economics
and that she is currently a Senior Research Manager (economist)
Economic Performance and Development at the Human Science Research
Council in South Africa.
In considering the very brief
explanation for her default set out in vague and sketchy terms, I
have considered that I am entitled to take into account what was
stated in open court by her erstwhile legal practitioner in applying
for his withdrawal, even though that application was not made under
oath. This court is entitled is place reliance upon statements made
to it by officers of this court. As against the terse and vague
explanation provided by the applicant is Mr Kauta’s statement
that he had informed her on Saturday 2 February 2013 in the course
of consultation that he would not see his way clear to represent her
and that she would need to appear in court on 4 February 2013 with a
lawyer whom she had trust in. As I have indicated, her current legal
practitioners should have enquired as to what transpired in court
when the matter was called on Monday 4 February 2013. This could
have been easily done. An enquiry could also have been directed to
Mr Kauta or the respondent’s legal practitioners. But more
importantly, the recordings of what transpired in court are readily
available to practitioners. It would have been reasonable for her
practitioners to assume that Mr Kauta would have needed to appear in
court on 4 February 2013 in order to apply for his withdrawal given
the very late stage at which it had occurred. That is after all what
is required by the practice directives, relied upon by the
applicant. Yet this aspect was not investigated. Nor was there a
proper explanation provided for the failure to do so. The fact that
the applicant has thus not in her affidavit dealt with the
explanation provided by Mr Kauta is in my view a problem of her own
making or of her lawyers and is to be attributed to the applicant.
In considering the applicant’s
explanation and taking into account that provided by Mr Kauta in
court when the matter was initially called, it would seem to me that
the applicant has fallen very short of providing an acceptable or
reasonable explanation for her default. The applicant furthermore
does not state if she took any steps at all between 08h00 and 10h00
in seeking to secure the services of any other legal
representatives. This aspect was not dealt with in her affidavit
because the applicant did not attach the email notification to her
of the withdrawal which had occurred very early in that morning or
disclose when she had received the notice of withdrawal.
It is well settled that an
application for rescission of judgment under the common law must
establish both requisites of sufficient cause set out above namely
an acceptable and reasonable explanation as well as a bona fide,
defence which, prima facie, enjoys reasonable prospects of success.
Where an explanation is so lacking in reasonableness and its
adequacy as the applicant’s in this case certainly is, it
would not be necessary to consider the question as to whether
reasonable prospects of success of her defence being raised in the
application, even though the applicant would now rely upon a defence
somewhat different to that pleaded and maintained for some time. It
is thus not necessary for me to deal with that aspect and I decline
to do so. Suffice to say that in the exercise of my discretion, I
find that the explanation for her default provided by the applicant
is not reasonable and acceptable.
It follows that the applicant’s
application for rescission under the common law must fail for the
reasons set out above. I accordingly make the following order:
The applicant’s application for
rescission of the judgment granted against her on 4 February 2013 is
dismissed with costs.
APPLICANT: J.P.R Jones
Instructed by JR Kaumbi Inc.
RESPONDENT: De Beers
Instructed by De Beers and Kleuder