Court name
High Court Main Division
Case number
APPEAL 108 of 2014
Title

Katzao v Trustco Group International (Pty) Ltd and Another (APPEAL 108 of 2014) [2014] NAHCMD 175 (04 June 2014);

Media neutral citation
[2014] NAHCMD 175
Coram
Smuts J










REPUBLIC
OF NAMIBIA






 


HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK


 


JUDGMENT






Case
no: A 108/2014






DATE:
04 JUNE 2014


 


In
the matter between:


 


STANLEY
NICK
KATZAO...........................................................................APPLICANT






And






TRUSTCO
GROUP INTERNATIONAL


(PTY)
LTD..........................................................................................1st
RESPONDENT






MANFRED
HENNES......................................................................2nd
RESPONDENT


(in
his capacity as the Deputy Sheriff of Windhoek)


 


Neutral
citation:        Katzao v Trustco
Group International (Pty) Ltd (A 108/2014 [2014] NACHMD 175 (4 June
2014)


 


Coram:                     
SMUTS, J


Heard:                       
16 May 2014


Delivered:                
4 June 2014


 


 


Flynote:
Application for rescission of judgment
given in the absence of a party under the erstwhile Rule 37 (16).
Applicable principles restated. The court also stressed the change in
litigation culture brought about by judicial case management,
stressing that parties cannot sit idly by and do nothing with regard
to their cases. Explanation involving inaction found to be inadequate
and the court also finding that the defence raised lacked reasonable
prospects of success. Application dismissed.


 


ORDER


1.   
The order issued by the registrar is
corrected to reflect the sum of N$115 637, 32 as being the judgment
amount.


 


2.   
The application is dismissed with costs.
These costs include those of one instructed and one instructing
counsel.


 


JUDGMENT


 


SMUTS,
J


[1]               
The applicant, defendant in a trial
action, applies for rescission of judgment granted against him under
Rule 37(16) of the erstwhile Rules of Court on 9 April 2014.


 


[2]               
The judgment was granted in the sum
of N$115 637, 32 together with interest
a
tempore morae
on that amount from 1
March 2007 to date of payment and costs, including the costs of one
instructed and one instructing counsel. The defendant’s defence
was also struck with costs and his counterclaim dismissed with costs.
The amounts reflected in the ensuing court order however differed
from the judgment actually granted. This aspect is further dealt with
below. A warrant of execution was issued pursuant to the court order
and the applicant’s Porsche motor vehicle was attached by the
deputy sheriff pursuant to that writ on 24 April 2014. The deputy
sheriff is cited as the second respondent in this application.


 


[3]               
In this application, the applicant
applies to rescind the judgment and order granted against him on 9
April 2014 and for further orders reinstating his plea and
counterclaim and cancelling all process including the warrant of
execution and sale in execution pursuant to the court order of 9
April 2014. The applicant also seeks an order releasing his motor
vehicle from judicial attachment and restoring it to him.


 


Factual
background and pleadings


 


[4]               
The factual background which led to
this application is sketched in the affidavits filed on behalf of the
parties.


 


[5]               
The applicant is a former senior
employee of the first respondent, which in turn was the plaintiff in
the trial action. The applicant was an employee until his resignation
on 16 February 2007. After his resignation, the first respondent
instituted an action against him claiming two amounts, namely N$90
000 in lieu of the failure on the part of the applicant to give three
months’ notice of his resignation a further claim in the amount
of N$100 000 being the repayment of a bonus paid to him. In respect
of the latter claim (for the repayment of the bonus), a letter of 8
August 2006 is attached to the particulars of claim specifying the
terms of the payment of a performance bonus of N$100 000 which
stated:


 


In
the event you resign within one year from date hereof, you shall be
liable to pay back the said N$100,000.00 to the company
.’


 


[6]               
The particulars of claim however
also state that the first respondent was indebted to the applicant in
the sum of N$74 362, 68 in respect of accrued leave and an
entitlement under an employee’s fund. The balance of N$115 637,
32 was thus claimed from the applicant.


 


[7]               
In his plea, the applicant denied
being liable in respect of either sum to the first respondent. The
defence raised in respect of the first claim was that he had been
constructively dismissed by the first respondent. In respect of the
second claim, it was alleged that the letter amounted to a variation
of his employment agreement and had not been signed by all the
parties and he denied he was liable to repay that bonus. The
applicant also filed a special plea, denying the jurisdiction of the
High Court to hear the matter. He stated that the Labour Court had
exclusive jurisdiction to hear the matter under s 81 and/or s 19(1)
of the Labour Act, 6 of 1992.


 


[8]               
The applicant also instituted a
counterclaim. It was also based upon a constructive dismissal and he
claimed three months’ notice pay in the sum of N$90 000 plus
the further amount of N$74 362, 68 in respect of accrued leave pay
and his entitlement under the employees fund referred to.


 


[9]               
After the closure of the pleadings,
the special plea was set down in the course of judicial case
management.  It was argued on 25 October 2011 and judgment was
delivered in respect of the special plea on 24 November 2011,
dismissing the special plea. An appeal to the Supreme Court was
noted, but the appeal lapsed.


 


[10]           
The reason given for the lapsing of
the appeal is stated in the founding affidavit of this application to
be that the applicant was advised that it was not possible to note an
appeal against that judgment. The applicant further stated in his
founding affidavit:


 


I
then left the matter in the hands of my legal practitioners (Conradie
& Damaseb) waiting to be informed as to what the next cause (
sic)
of action. I was at all times under the impression that what remained
was that the court would allocate a date in due course and that my
legal practitioner would in turn furnish me with such a hearing date
for the respondent’s case and my counterclaim. I did not hear
from my legal practitioner for quite some time.  I however took
it that whenever they needed me, I will be contacted.


 


Towards
the end of March 2014 and the beginning of April 2014 I was unable to
receive my post mails due to the fact that I did not have the key of
the post box I was using. The key was given to my girlfriend’s
brother who, I was informed, misplaced it.’


 


[11]           
The applicant refers to his
“girlfriend” (without even reference to her name although
a confirmatory affidavit is provided by a Ms Tjitendero) obtaining a
new key for the post box on 8 April 2014. He further states:


 


On
8 April 2014 whilst in China on a business trip I was telephonically
contacted by my girlfriend. She informed me that she just collected
mails in the post box. She informed me that she collected a
registered mail which she says needed my urgent attention
.’


 


[12]           
The mail was read to the applicant
informing him that the trial action was scheduled for a status
hearing in the course of judicial case management on 9 April 2014.


 


[13]           
The applicant further states that he
immediately telephonically contacted Mr D Conradie who said he had
withdrawn from the matter. The applicant states that this was a
surprise to him. He states that he asked Mr Conradie when he had
withdrawn and was informed that this had occurred during 2013. He
further stated that he asked Mr Conradie to attend court on 9 April
2014 on his behalf. He states that Mr Conradie initially declined
that request stating that he no longer acted on his behalf but after
pleading with Mr Conradie, the applicant states that he agreed to
attend court on 9 April 2014 on condition that they would have a
serious talk about their relationship upon the applicant’s
return from China. The applicant states that he did not have any
further discussion with Mr Conradie and assumed he had attended court
on that date. He returned to Namibia from China on 20 April 2014,
pointing out that 21 April 2014 was a public holiday and that he
tried to contact Mr Conradie on 22 April 2014 without success.


 


[14]           
When attending what was termed “my
criminal case” at the Regional Court, Katutura on 24 April
2014, the applicant states that the deputy sheriff confronted him
with a warrant of execution and proceeded to attach his Porsche motor
vehicle. He enquired from the first respondent’s legal
practitioners who were present at the time as to the basis of the
writ and was informed that judgment had been granted against him on 9
April 2014.


[15]           
The applicant further states that he
conducted a search for the notice of withdrawal referred to by Mr
Conradie and received a receipt from Nampost for an envelope to
Conradie & Damaseb which had not been claimed by him. The receipt
was dated 11 April 2013. He points out that the receipt suggested
that the notice of withdrawal had been sent back to Conradie &
Damaseb.


 


[16]           
The applicant further states in his
founding affidavit that he was unaware of the withdrawal of his legal
practitioners and of the status hearing set down for 9 April 2014,
prior to being telephonically informed of that on a previous day
whilst in China.


 


[17]           
He referred to the court order which
reflected that judgment in two amounts had been granted against him,
namely N$90 000 and N$74 362 and stated that this was erroneous as
the plaintiff’s claim only amounted to N$115 637, 32.


 


[18]           
In support of his application, the
applicant states that he had a
bona fide
defence and good counterclaim. In support of the contention that
there had been a constructive dismissal, the plaintiff states that
the first respondent secured his resignation “through undue
influence and in an oppressive manner put me under unbearable
circumstances and forced me into a resignation without the requisite
3 months’ notice”. He claims that his resignation was
thus “forced”. As background, he states that he was
suspended in his employ by the first respondent on 24 November 2006
pending a disciplinary hearing. He further states that he had a
meeting with the Managing Director of the first respondent on or
about 13 December 2006 and that the latter had requested him to
resign his employment and invited proposals and conditions for his
resignation. He states that he provided proposals in response to this
invitation on 14 December 2006 and was informed that on 22 December
2006 that these were not accepted. He further states that he was
orally requested to resign and that similar requests had been made to
his legal representative. He states as a result of these “coercive
measures”, he instructed his erstwhile legal practitioners,
Conradie & Damaseb, to resign on his behalf on 17 February 2007.
He submits that these circumstances amount to a constructive
dismissal. In the alternative, he argues that the first respondent
had waived the requirement of three months’ notice.


 


[19]           
The applicant does not state which
rule is invoked in this application. Like the first respondent, I
assume it is Rule 56 (read with Rule 138). The applicant does however
also contend that the order was erroneously granted with reference to
the judgment amounts contained in the court order. This was not
persisted with in reply after the transcript of the proceedings was
attached. This aspect is referred to below.


 


[20]           
This application is opposed by the
first respondent. An answering affidavit was filed. In it, the point
is squarely taken that the applicant had failed to explain what steps
he took after the dismissal of the special plea in 2011 until 8 April
2014 when informed of the status hearing. The point is made that for
a period of some 2 ½ years the applicant had no communication
with his legal practitioner and made no attempt to enquire as to the
status of the matter and provide instructions. The point is made that
it is unsurprising that the applicant’s erstwhile legal
practitioners withdrew in April 2013.


 


[21]           
The point is also taken that the
applicant had provided no explanation why the notice of withdrawal
had not come to his attention. A contention is advanced that this was
a further indication of indifference on his part.


 


[22]           
The first respondent denied that the
applicant had provided a sufficient and acceptable explanation for
the failure to take steps which had resulted in the judgment having
been granted against him.  It was further contended that the
applicant was grossly negligent and that the applicant could not
divest himself of the responsibility of taking steps in relation to
the trial action.  It was also pointed out that the notice of
withdrawal was sent by registered mail to the correct address of the
applicant who failed to provide an explanation as to why it had not
been claimed. 


 


[23]           
The first respondent’s head of
legal services who deposed to the affidavit stated that after the
writ had been served upon the applicant on 24 April, a meeting was
held at the deputy sheriff’s office.  In the course of
that meeting, the first respondent’s legal representative had
contacted Mr Conradie by telephone and spoken to him on speaker
phone.  In the course of that discussion, the applicant had
pertinently asked Mr Conradie if he had remembered that he had
contacted him and asked him to go to court.  Mr Conradie had
answered unequivocally that he had told the applicant that he was not
going to court and that he did not even have a power of attorney.


 


[24]           
Mr Conradie was contacted
subsequently by the first respondent’s legal representatives.
He confirmed that he had been contacted by the applicant from China
and that he had informed him that he would not attend at court. 
A confirmatory affidavit was filed on behalf of Mr Conradie when the
matter was called.


 


[25]           
It was also stated in the answering
affidavit that the first respondent’s legal practitioner of
record had sent a notice of a status hearing scheduled for 5 March
2014 at 15h30, in terms of Rule 37(9) issued by this court in
February 2013 by registered mail to the applicant.


 


[26]           
The first respondent also referred
to the fact that on 5 March 2014 this court made an order that the
status hearing was postponed to 2 April 2014 at 15h30. The applicant
did not appear in court on 5 March 2014. The court order postponing
the matter specifically provided that, should the applicant not
appear in court on 2 April 2014, his defence may be struck with costs
and his counterclaim be dismissed with costs.  A copy of this
order was forwarded to the applicant by registered mail. A further
notice by court postponing the matter to 9 April 2014 was also
forwarded to the applicant by registered mail. The point is raised in
the answering affidavit that the applicant only refers to the latter
item sent by registered mail in respect of the court hearing on 9
April 2014 but does not refer to the earlier items sent by registered
mail in February 2014, at a time when, upon his own version, the key
of the post box had not as yet been misplaced.


 


[27]           
The first respondent also attached
the transcription of the proceedings on 9 April 2014 from which it
clearly appears that the court granted judgment in the sum of N$115
637, 32 (and not the two sums stated in the court order) and
furthermore struck the applicant’s defence and dismissed the
counterclaim with costs.


 


[28]           
As to the contention made by the
applicant that he had been constructively dismissed by the first
respondent, this was denied by the first respondent. It was pointed
out that no factual basis was laid for the contention of a
constructive dismissal. It is further stated that the applicant was
suspended and subjected to a disciplinary hearing on charges of
corruption. After some evidence was given, the applicant resigned and
the contention is advanced that this was a tactical manoeuvre to
avoid the disciplinary hearing from continuing.It was confirmed that
the resignation was received in a letter addressed to the first
respondent by the applicant’s erstwhile legal practitioners of
record on his behalf. In it, there is no reference to it being a
forced resignation or constructive dismissal or with any reservation
or rights. It is also denied that the first respondent requested the
applicant’s resignation or that there was any pressure upon him
to resign.


 


[29]           
In the replying affidavit, the
applicant states that he had not alleged that there had been
absolutely no contact with his legal practitioner for a period of
almost 2 ½ years. But he stated that there were long periods
during which he did not hear anything in relation to the matter. He
states that there had been “no word” from Mr Conradie
concerning the matter or that he had the intention to withdraw.
However no specificity is given concerning the communications - both
with regard to when they occurred and what was stated in them.


 


Parties’
submissions


 


[30]           
Mr Namandje who appeared on behalf
of the applicant argued that the judgment by default against the
applicant was a far reaching remedy against a litigant and that the
court should be loathe to close its doors to a party once an
explanation is provided for the default of appearance in the course
of judicial case management. He submitted that the applicant had
placed sufficient material before court to satisfy the requirement of
an acceptable explanation for the applicant’s default and
submitted that the relief sought should be granted.


 


[31]           
Mr
Heathcote SC who, together with Mr P Barnard, appeared for the first
respondent argued that the applicant had failed in respect of both
legs of the requirement of good cause by failing to establish a
reasonable and acceptable explanation for default and furthermore by
failing to establish a
bona
fide

defence which
prima
facie

enjoys some prospects of success. He stressed that it was not
sufficient for the applicant to establish one of these requisites and
that both needed to be established.[1]
Mr Heathcote further submitted that the applicant’s explanation
for his default was so cursory that it was not reasonable or
acceptable and that the application should be dismissed for this
reason alone.[2]


 


[32]           
Mr
Heathcote also contended that the Supreme Court had recently
established that disputed facts – in relation to the
applicant’s explanation – are to be determined in
accordance with the
Plascon-Evans
rule and that the version of the first respondent is to be accepted.
He referred to
Rally
for Democracy v Electoral Commission for Namibia
[3]
in support of this contention.


 


[33]           
 In that matter, the court a
quo
had refused to grant the appellants
leave to supplement their papers in an election application. In doing
so, the court
a quo
had approached the disputed facts raised in support of the
application to supplement the papers (in relation to the conduct of
the parties during the discovery process) on the basis of the rule
established in
Plascon-Evans.
The Supreme Court dealt with this issue in the following way:


 


[99]
The appellants' principal attack on the finding of the court a quo is
that it erred in the evidential approach which it adopted to decide
the multitude of factual disputes on the papers about the conduct of
the parties during the discovery process. They contend that, because
the application to condone the filing of the appellants' application
outside the time-limit provided for by s 110(1) of the Act was an
interlocutory matter, the court should have adopted an approach
similar to that applied in the case of interim interdicts. The
approach proposed in Webster v Mitchell (to assess whether an
applicant has made out a prima facie case for an interim interdict)
has been formulated as follows:


 


The
use of the phrase prima facie established though open to some doubt
indicates I think that more is required than merely to look at the
allegations of the applicant, but something short of a weighing up of
the probabilities of conflicting versions is required. The proper
manner of approach I consider is to take the facts as set out by the
applicant, together with any facts set out by the respondent which
the applicant cannot dispute, and to consider whether, having regard
to the inherent probabilities, the applicant could on those facts
obtain final relief at a trial. The facts set up in contradiction by
the respondent should then be considered. If serious doubt is thrown
on the case of the applicant he could not succeed in obtaining
temporary relief, for his right, prima facie established, may only be
open to some doubt.”


 


Instead
of this approach to the factual disputes, the appellants complain,
the court a quo adopted and applied the Plascon-Evans
approach. That approach has conveniently been summarised in
Republican Party of Namibia and Another v Electoral Commission of
Namibia and Others
as follows:


 


It
is trite law that where conflicts of fact exist in motion proceedings
and there has been no resort to oral evidence, such conflicts of fact
should be resolved on the admitted facts and the facts deposed to by
or on behalf of the respondent. The facts set out in the respondents'
papers are to be accepted unless the court considers them to be so
far-fetched or clearly untenable that the court can safely reject
them on the papers.”’[4]


 


           
and


 


[101]
We appreciate that appellants' application for leave to supplement
their papers may be interlocutory to the subject matter of the main
dispute but, as to the substance of the application, the court must
be satisfied that the explanation as to why they did not put the
facts or information before the court at an earlier stage is
adequate; that it was not due to mala fides or culpable remissness on
their part and that, regard being had to all the circumstances, the
affidavit should be allowed. As Franklin J put it in
Cohen
NO v Nel and Another


 


Where
an affidavit is tendered in motion proceedings, both late and out of
its ordinary sequence, the party tendering it is seeking, not a
right, but an indulgence from the Court; he must both advance his
explanation of why the affidavit is out of time and satisfy the Court
that, although his affidavit is late, it should, having regard to all
the circumstances, nevertheless be received. On any approach to the
problem, the adequacy or otherwise of the explanation for the late
tendering of the affidavit is always an important factor.”


 


[102]
Save to the extent that the merits of the main proceedings may be a
relevant consideration in an application of this nature and require
of the court to consider whether those proceedings enjoy reasonable
prospects of success, the determination of the substance of the
application requires final adjudication of the adequacy of the
explanation and the other facts and circumstances relevant to the
introduction of further affidavits. Hence, in instances where factual
disputes arise on affidavit that are not resolved by reference to
oral evidence, those disputes fall to be determined on the approach
adopted in the
Plascon-Evans
case in applications of this nature. On this approach, the two
authorities relied on by the appellants are clearly distinguishable:
In
SOS
Kinderhof International v Effie Lentin Architects

the High Court dealt with an application for rescission of judgment
and in
Hepute
and Others v Minister of Mines and Energy

it dealt with a rule 47 application for security. Hence, we agree
with the court a quo that the approach to factual disputes applied
therein does not find application in these proceedings.’[5]


 


[34]           
Mr Heathcote argued that in
interlocutory applications the
Plascon-Evans
approach is to be applied where there are disputed facts and that
this had been established in this Supreme Court judgment. He
correctly pointed out that the
Plascon-Evans
rule was applied to disputed facts in relation to the explanation
provided by the applicant in those proceedings for the need to
supplement its papers and contended that this approach would also
apply to an explanation given in a rescission application.


 


[35]           
The
difficulty with his argument is that the Supreme Court specifically
found that applications for rescission of judgment, represented by
the authority of a full court in
SOS
Kinderdorf International v Effie Lentin Architects
[6]
and applications for security in
Hepute
and others v Minister of Mines and Energy
[7]
are distinguishable. It is not clear to me why, upon the analysis of
the Supreme Court, a rescission application should be distinguishable
in respect of the adjudication of the adequacy of an explanation
provided. Obviously the consideration as to whether a defence enjoys
prospects of success is a different matter, as is also stated by the
Supreme Court. But the Supreme Court found that a rescission
application is distinguishable and the matter referred to,
SOS
Kinderdorf

is a decision of the full bench and thus binding upon me.


 


[36]           
The analysis as to the approach to
be adopted in respect of disputed facts, so carefully set out by the
Supreme Court, would, with respect, appear to be sound. But that
court expressly stated that the application of the
Plascon-Evans
approach to disputed facts in interlocutory proceedings was
distinguishable from rescission applications with reference to
SOS
Kinderdorf
. The court in the latter
matter approached the issue in a far less considered and almost
perfunctory manner. The only basis given for rejecting the
Stellenvale
rule in the
SOS Kinderdorf
matter was that it would not apply to applications where final relief
was not sought and that in a rescission application, a matter is not
finally decided. But that fundamental basis would appear to have been
rejected in the more closely reasoned approach of the Supreme Court
quoted above. Indeed, the sufficiency of an explanation or its
adequacy is finally determined one way or another in a rescission
application although of course the matter itself is not finally
determined if the rescission application were to be granted. It is
thus not clear to me why the determination of the adequacy of an
explanation in a rescission application should be distinguishable in
respect of the approach to disputed facts in interlocutory
proceedings articulated by the Supreme Court (where the adequacy of
an explanation was adjudicated for the purpose of applying to
supplement papers).


 


[37]           
Upon the application of either
approach, it would seem to me that the applicant has not established
a reasonable and acceptable explanation for his default as I set out
below. It is accordingly not necessary for me to express any further
view in this interesting debate.


 


Applicable
principles


 


[38]           
The
requirement of good cause in Rule 56(3) itself entails two
requisites.  Firstly, the applicant must provide a reasonable
explanation for his default which would exclude a court from coming
to his assistance where his default was either wilful or due to gross
negligence.  Secondly, the applicant must establish a
bona
fide

defence to the first respondent’s claim which is to be
established on a
prima
facie

basis in the sense of setting out averments which, if established at
the trial, would entitle him to the relief sought.[8]


 


[39]           
In
examining an applicant’s explanation for his default, it has
been held that it is clearly incumbent upon an applicant to disclose
with a degree of particularity what it was which prevented him from
attending court or being represented in court.[9]


 


[40]           
It
is also well-established that a party must meet both requisites, thus
establishing a reasonable and adequate explanation for his default as
well as reasonable prospects of success on the merits.[10]


 


[41]           
In determining this application,
this court is enjoined by Rule 56(1) to have regard to all the
circumstances including those set out in Rule 56(1)(a) to (h).


 


 


Application
of principles


 


[42]           
The applicant’s special plea
was dismissed on 24 November 2011. The applicant’s statement of
leaving
the matter in the hands of
my legal practitioners (Conradie & Damaseb) waiting to be
informed as to what the next cause of action”
(sic)
for the next 2 ½ years and making no
enquiry or attempts to establish the position in the matter during
that period does not in my view constitute a reasonable and adequate
explanation for the applicant’s ultimate default. It was only
during a relatively short period from the end of March 2014 to the
beginning of April 2014 when, upon his own version, the applicant was
not able to receive mail at his post office box. Prior to that, he
would have been clearly able to do so. He provided no explanation why
he did not claim the registered item sent by his legal practitioner
of record in April 2013, withdrawing as his legal practitioner of
record. Nor is there any reference in his founding affidavit to the
items sent by the first respondent’s legal practitioners in
February and early March 2014 referring to the earlier status hearing
which was then postponed to April 2014.


 


[43]           
The applicant’s difficulties
do not end there. When informed of the court hearing on 9 April 2014
and that the applicant was at risk of his defence being struck and
counterclaim being dismissed with costs in the event of his
non-appearance, he is eventually spurred into action and telephoned
Mr Conradie, his erstwhile legal practitioner.


 


[44]           
It is common cause that such a call
was made. Its contents, however, are the subject of a dispute. The
applicant states that he requested Mr Conradie to appear in court on
his behalf on 9 April 2014. Mr Conradie, however, emphatically denies
this. In support of his denial he refers to the fact that he did not
have a power of attorney on behalf of the applicant following his
withdrawal and unequivocally states that he did not agree to appear
on his behalf. When the matter was called on 9 April 2014, Mr
Conradie did not appear and there was no appearance on behalf of the
applicant. The applicant made no further enquiry until after his
return on 20 April 2014. He did not request Ms Tjitendero, who had
alerted him to the hearing, to make any follow up (to obtain
confirmation of the alleged appearance and what had transpired). Nor
had he done so himself by telephone, text message or email. After his
return, he refers only to a single attempt to phone Mr Conradie on 22
April 2014. The fact remains that he had not made contact with Mr
Conradie (and made little effort to do so) subsequent to his request
to the latter to appear in court on his behalf until the warrant of
execution was served upon him on 24 April 2014 – and even then
the call was made to Mr Conradie, not by him, but by the first
respondent’s legal practitioner.


 


[45]           
Upon
the approach set out in
SOS
Kinderdorf[11]

to disputed facts, the probabilities do not in my view favour the
applicant’s version with regard to an undertaking by Mr
Conradie to appear in court on the facts of this matter.  Upon
the application of the test in
SOS
Kinderdorf
,
the probabilities are against such an undertaking having been made.
This finding would also arise upon the application of the
Plascon-Evans
approach
by accepting the version of Mr Conradie tendered by the first
respondent.


 


[46]           
There is also the applicant’s
failure to make
any
enquiry of his erstwhile legal practitioners with regard to the
conduct of the trial action after the dismissal of the special plea
in November 2011 until receipt of the notice on 8 April 2014. For
some 2 ½ years, he took no interest in his case. He did not
take the trouble to enquire as to its conduct with his instructing
legal practitioner. Unsurprisingly they withdrew in April 2013. After
being challenged in this regard in the answering affidavit, he
vaguely states in reply that there had been some contact between
himself and the legal practitioner because the latter handled another
unspecified matter for him. But no specificity whatever is provided
as to the contact and no allegation whatever is made of any enquiry
of whatever nature about the conduct of
this
matter. Their notice of withdrawal in April 2013, sent by registered
mail, was, he acknowledges, not claimed by him. No reason is given
for this.


 


[47]           
On
his own version, it is clear to me that the applicant was grossly
negligent, in his approach to his case and that he has thus not
established a reasonable and acceptable explanation for his default.
This form of gross neglect, unacceptable even before the advent of
judicial case management[12]
(JCM), is even more so following its introduction, given the
fundamental change to litigation culture brought about by JCM, as was
stressed by the Supreme Court.[13]
After referring to the objectives of JCM, that court spelt out the
changes in the approach to litigation and in respect of the
obligations of parties in the following way:


[87]     
‘This radical departure is apparent from the objectives
JCM which include:


(a)     
to ensure the speedy disposal of any action or application;


 


(b)       
to promote the prompt and economic disposal of any action or
application;


 


(c)       
to use efficiently the available judicial, legal and administrative
resources;


 


(d)       
to provide for a court-controlled process in litigation;


 


(e)       
to identify issues in dispute at an early stage;


 


(f)       
to determine the course of the proceedings so that the parties are
aware of succeeding events and stages and the likely time and costs
involved;


 


(g)       
to curtail proceedings;


 


(h)       
to reduce the delay and expense of interlocutory processes…”


 


[88]     
And the JCM Rules spell out the obligations
of the parties and their legal representatives, which is to :


 


(a)     
assist the managing judge in curtailing the proceedings;


 


(b)       
comply with rule 37 and other rules regarding judicial case
management;


 


(c)       
comply with any direction given by the managing judge at any case
management conference or status hearing; and


 


(d)       
attend all case management conferences, pre-trial conferences and
status hearings caused to be arranged by the managing judge.” ’


 


The
Supreme Court concluded:


 


[89]     
‘The main purpose of the JCM is to bring about a change
in litigation culture. The principal objectives of the JCM are to:
ensure that parties to litigation are brought as expeditiously as
possible to a resolution of their disputes, whether by way of
adjudication or by settlement; increase the cost effectiveness of the
civil justice system and to eliminate delays in litigation; promote
active case management by the courts and in doing so, not only
facilitate the expeditious resolution of disputes, but also bearing
in mind the position of other litigants and the courts’ own
resources; and inculcate a culture among litigants and their legal
representatives that there exists a duty to assist the court in
furthering the objectives of JCM.


 


[90]     
With the advent of the JCM Rules where all parties to the
proceedings have the obligation to prosecute the proceedings and
assist the Court in furthering the underlying objectives, it would be
highly relevant to consider any inaction on the part of the parties.
And there is no place for defendants to adopt the attitude of
“letting sleeping dogs lie” and for a defendant to sit
idly by and do nothing, in the hope that sufficient delay would be
accumulated so that some sort of prejudice can then be asserted.’


 


[48]           
Taking this into account in the
context of all the circumstances set out in this application,
including those listed in Rule 56(1)(a) to (h) which were
specifically referred to by the applicant although some, but not all,
were indirectly canvassed. The result is that the applicant’s
explanation is both unreasonable and inadequate and thus
unacceptable. It follows that the application would fall to be
dismissed on this ground alone.


 


Prospects
of success


 


[49]           
Mr Heathcote also argued that the
applicant had also failed to establish a defence which, if
established at the trial, would
prima
facie
enjoy prospects of success. He
correctly points out that the claim of a constructive dismissal,
central to both the plea and counterclaim, is unsupported by any
factual averment as to what constitutes what is merely labelled
oppressive conduct” “undue
influence”
and what was unbearable”
and how these led to a forced resignation. 
The only factual averments contained in the founding affidavit and in
the amended plea concerned allegations of requests on the part of the
first respondent’s Managing Director directed to the applicant
to resign after he had been suspended on charges of corruption. One
such request, the applicant alleges, was made at a meeting in mid
December 2006 when, according to the applicant, the first
respondent’s Managing Director said that the applicant should
make proposals for a resignation. He states that he did so and that
these were rejected on 22 December 2006. That instance, as pleaded,
would certainly not on its own be sufficient to support a defence and
claim based upon constructive dismissal. He further states that he
subsequently resigned on 16 February 2007 after the first
respondent’s lawyers had approached his lawyers for his
resignation and that there had been approaches to him personally to
do so. It is not explained as to quite how these requests for his
resignation, which are in any event denied by the first respondent’s
Managing Director, amounted to his employment becoming intolerable or
unbearable.


 


[50]           
The
onus would after all be upon the applicant to establish at the trial
a constructive dismissal in the sense of proving that his resignation
was not voluntary and that it was not intended to terminate the
employment relationship.  Once having done so, the enquiry would
then shift as to whether the employer had without reasonable or
proper cause conducted itself in a manner calculated or likely to
destroy or seriously damage the relationship of confidence and trust
with the employee. A court would then, having regard to the
employer’s conduct as a whole and in its cumulative impact,
determine whether the effect of that conduct judged reasonably and
sensibly was of such a nature that the employee could not be expected
to put up with it.[14]


 


[51]           
Apart from the requests for
resignation and the subsequent resignation through his legal
practitioner, there are no other factual averments raised to support
the epithets or descriptive terms used such as
oppressive
conduct”
and the like. It is clearly
incumbent upon an applicant in proceedings of this nature (as well as
in his pleadings) to refer to and plead the factual circumstances
which constitute unbearable or oppressive conduct. The mere
characterisation of conduct by use of those terms without providing
sufficient factual averments to support them, is clearly
insufficient.


 


[52]           
Not only is there this inadequacy,
but the letter of resignation itself on 16 February 2007 was directed
by the applicant’s erstwhile legal practitioners to the first
respondent. The firm merely confirmed that it acted on his
instructions and gave notice of his resignation with the first
respondent with immediate effect on that date. There was no statement
as to any coercion or unbearable or oppressive circumstances which
gave rise to it.  There was also no statement of any reservation
of rights or the faintest suggestion of being done under protest. The
letter of resignation by his legal practitioners was thus
unqualified.


 


[53]           
I also take into account what was
stated in the answering affidavit that the resignation followed
evidence given at a disciplinary enquiry concerning allegations of
corruption on the part of the applicant. At that enquiry, he was
represented. After the initial evidence and before the enquiry could
progress, his immediate resignation was given through his legal
representatives.


 


[54]           
On the materials placed before me,
the defence and claim based upon a constructive dismissal has not
been sufficiently raised in such a manner to establish reasonable
prospects of success.


 


[55]           
No
factual averments are raised to support duress or coercion. It is
incumbent upon the applicant to have done so and meet the
requirements of the test for duress as articulated by the Supreme
Court in
Namibia
Broadcasting Corporation v Kruger and others
.[15]


 


[56]           
Nor
did the applicant raise factual matter in support of a defence of
waiver. It is likewise incumbent upon a party pleading waiver to
discharge the onus of establishing its requisites such as a decision
to waive or abandon on the part of the first respondent, either
expressly or an implied abandonment.[16]
The applicant has not pleaded waiver in the sense of alleging a
decision on the part of the first respondent to abandon the right
having been conveyed to him or even an implied abandonment by conduct
plainly inconsistent with an intention to enforce the right relied
upon by the applicant.[17]


 


[57]           
It follows that the applicant has
also failed to establish a
bona fide
defence which, if established at the trial, would enjoy reasonable
prospects of success. The applicant would also by reason of the
failure to have established this requisite, result in the application
being dismissed.


 


 


 


Conclusion


 


[58]           
In all the circumstances, I conclude
that the application is to be dismissed with costs.


 


Costs


 


[59]           
The first respondent has engaged two
instructed counsel and requested a cost order which would include
their engagement. Mr Heathcote argued that complex questions of law
were raised by the application and that the first respondent should
be reimbursed for those costs.


 


[60]           
This application is essentially one
for the rescission of a judgment granted by default of a party. The
issues raised in applications of this nature would not ordinarily
warrant the engagement of two instructed counsel. This application
falls within that characterisation.


 


[61]           
In the exercise of my discretion, I
do not consider that the issues raised in this application are of
such a nature to justify the employment of two instructed counsel. A
cost order to include the costs of one instructed counsel and one
instructing counsel would in my view be appropriate in the exercise
of my discretion.


 


Court
order


 


[62]           
It remains for me to point out that
the order of 9 April 2014 issued on behalf of the Registrar needs to
be corrected. It did not reflect the order which I gave in court that
day. The order actually given was judgment in the amount of N$115
637, 32. The order issued by the Registrar is to be corrected to
reflect the amount of the order actually given by this court.


 


Order


 


1.   
The order issued by the registrar is
corrected to reflect the sum of N$115 637, 32 as being the judgment
amount.


 


2.        
The application is dismissed with costs. These costs include those of
one instructed and one instructing counsel.


 


 






D
SMUTS


Judge


 


APPEARANCES


 


APPLICANT:                                          
Mr S Namandje


Sisa
Namandje & Co


 


FIRST
RESPONDENT:                       
R Heatcote SC assisted by P Barnard


                                                                 
Instructed
by:


                                                                 
Engling,
Stritter & Partners







[1]
Grüttemeyer
NO v General Diagnostic Imaging

1991 NR 441 at 448 J;
Chetty
v Law Society, Transvaal
1985(2)
SA 756 (A) at 764-765.




[2]
China
State Construction Engineering Corporation (Southern Africa) (Pty)
Ltd v Pro Joinery CC

2007(2) NR 675 (HC) at 687 E-G.




[3]
2013 (3) NR 664 (SC).




[4]
Supra
par
[99] at 711.




[5]
Supra
par [101] to [102] at p 712.




[6]
1992 (NR) 390 (HC) at 399 B-C.




[7]
2007(1) NR 124 (HC) at 130.




[8]
Grüttemeyer
NO v General Diagnostic Imaging supra

at 448 C-E.




[9]
Chetty
v Law Society, Transvaal supra

at 766 A-B.




[10]
Chetty
v Law Society, Transvaal supra

at 765 D-F.




[11]
Supra.




[12]
Nyingwa
v Moolman NO

1993(2) SA 508 (TkGD) at 512 G-H.




[13]
Aussenkehr
Farms (Pty) Ltd v Namibia Development Corporation Ltd

2012 (2) NR 671 (SC) approving
De
Waal v De Waal

2011 ((2) NR 645 (HC).




[14]
Kavekotora
v TransNamib Holdings and another

2012(2) NR 443 (LC) at par [27] on p 449, following
Murray
v Minister of Defence

2009(3) SA 130 (SCA) at par [8].




[15]
2009(1) NR 196 (SC).




[16]
Borstlap
v Spannenberg

1974(3) SA 695 (A);
Feinstein
v Niggli

1981(2) SA 684 (A).




[17]
Borstlap
v Spannenberg supra

and
Traub
v Barclays National Bank Ltd

1983(3) SA 619 (A) at 634.