Court name
High Court Main Division
Case number
APPEAL 211 of 2013
Case name
Frederick v Government of the Republic of Namibia
Media neutral citation
[2014] NAHCMD 240
Judge
Unengu AJ










REPUBLIC
OF NAMIBIA






HIGH COURT OF
NAMIBIA MAIN DIVISION, WINDHOEK






JUDGMENT






Case
no: A 211/2013





DATE:
12 AUGUST 2014





NOT
REPORTABLE






In the matter
between:





JACOBUS
JANSEN
FREDERICK......................................................................APPLICANT/PLAINTIFF






And






GOVERNMENT
OF THE REPUBLIC OF
NAMIBIA...................................RESPONDENT/DEFENDANT






Neutral
citation:
Jacobus Jansen Frederick vs
Government of the Republic of Namibia
(A
211/2013) NAHCMD 240 (12 August 2014)





Coram:
UNENGU, AJ





Heard:
28 May 2014





Delivered:
12 August 2014





Flynote:
Civil Practice -Application –
Rescission of judgment in terms of Rule 44(1) alternatively common
law – application dismissed – Court upholding the point
in limine
by the respondent that the Court is
functus
officio
– in the alternative, the
applicant has failed to establish good cause for default and
a
bona fide
defence.





Summary:
Civil Practice – Application for Rescission of judgment in
terms of Rule 44(1) alternatively the common law. The Court has
upheld the point
in limine
raised by the respondent and found further that the applicant has
failed to establish a good cause or a
bona
fide
defence. The application for the
rescission of judgment dismissed with costs.





ORDER


The
application is dismissed with costs.


JUDGMENT





UNENGU,
AJ





[1]
This is an application for the rescission of judgment in terms of
Rule 44(1) of the old Rules of the Court, alternatively in terms of
the common law.






[2]
The judgment sought to be rescinded was granted by Parker, AJ on the
20 June 2013 in favour of the respondent. The application for the
rescission is being opposed by the respondent.




[3]
In opposing the application, the respondent has raised appoint in
limine
on the basis that the rescission application both in terms
of Rule 44 (1)(a) and the common law is incompetent as the merits of
the dispute were already considered by this Court thus rendering this
Court functus officio:






[4]
The respondent is also opposing the application on the merits
contending that Rule 44(1)(a) is not applicable because the order of
the Court was not granted erroneously. With regard the common law
ground, the respondent contents that the applicant cannot also
succeed because he has not established good cause for the default and
that he has no bona fide defence. It is further contended by
the respondent that even if the applicant could establish good cause
for the default this Court has already found that the applicant does
not have a bona fide defence to the respondent’s claim
therefore, functus and cannot retry the issue.






[5]
In support of the submissions, Mr Marcus, counsel for the respondent,
referred the Court to various case law as authorities. In respect of
the issue of the court being f
unctus
officio
,
he referred to the matter of
Jack’s
Trading CC v Minister of Finance and Another

(Ohorongo Cement Intervening)[1]
wherein Smuts, J when referring to Rule 44(I)(a) stated: “not
every mistake or irregularity may be corrected in terms of the Rule.
It is, for the most part at any rate a restatement of the common law.
It does not amend or extend the common law. For this reason the
common law is the proper context for the interpretation of the Rule”






[6]
It is further stated that the fundamental purpose of Rule 44 is to
expeditiously correct an obviously wrong judgment or order.[2]






[7]
However, it would appear though that counsel for the applicant is in
agreement with the submission of his counter-part that the guiding
principle of common law is certainty of judgment. Once judgment is
given in the matter, it is final. It may be not thereafter be altered
by judge who delivered it. He becomes
functus
officio

and may not ordinarily vary or rescind his own judgment.That is the
function of the Court of appeal. However, there are exceptions to
this guiding principle or the common law. After evidence is led and
the merits of the dispute have been determined, rescission is
permissible only in the limited case of judgment obtained by fraud
or, exceptionally,
justus
error
,
and where party in default can show sufficient cause. (
Colyn
v Tiger Food Industries Ltd t/a Meadow Feed Mills
[3]).






[8]
In this matter, the defendant (applicant) pleaded a special plea that
the land the plaintiff wants him to be evicted from fall under a
foreign jurisdiction, which is South Africa and that this Court does
not have jurisdiction to grant such an eviction order sought by the
plaintiff.






[9]
On 12 February 2013 the special plea that the area depicted as
Portion C,D and E on the diagram annexed to Plaintiff’s Amended
Particulars of Claim as annexure “C”, fall within the 100
(HUNDRED) year High Water Mark, of the northern bank of the Orange
River. The area which is depicted as Portions C,D and E of Annexure
“C” of Plaintiff’s Amended Particulars of Claim,
falls under the jurisdiction of a foreign sovereign country, to wit
the Republic of South Africa, was dismissed on the basis of the
Namibia Constitution which binds the Court. On the same day the Court
also ordered the parties or their legal representatives (if
represented) to attend a case management conference in open court at
09h00 on 28 March 2013 and all parties present were cautioned of the
provisions of Rule 37(4) and (5) of the rules of the Court. This
order was served by registered post on the defendant.






[10]
On the last JCM conference, the trial was set down for hearing at
10h00 for 29 and 30 May 2013. The defendant was absent at the trial
and so did his counsel. No explanation was placed before Court,
establishing why there was no such appearance at the trial. Counsel
for the plaintiff made serious and bona fide attempts
telephonically to get hold of the defendant to remind him of the
trial date – but to no avail. As a result, the Court exercised
its discretion and proceeded to trial and afforded the plaintiff the
opportunity to prove its claim.






[11]
The plaintiff then called three witnesses to testify. They are Mr
Karl Mutani Aribeb, employed by the Ministry of Environment and
Tourism: Directorate Parks and Wildlife as a park warden at the
Ais-Ais Hotspring Game Park. He stated that no written permission was
granted to the defendant by the Nature Conversation in terms of s
18(a) Ordinance 4 of 1975 (the Ordinance) to occupy the land and the
area opposite these agricultural fields where the defendant has
erected the dwelling structures. Aribeb’s testimony was
corroborated by the evidence of Mendes Paolo Vinte, who works at the
same place with him.






[12]
The third witness called to testified by the plaintiff is Mr Richard
Tondeni Nyatoti, a professional surveyor who was employed by the
Ministry of Lands and Resettlement, Directorate Survey and Mapping in
the Surveyor-General’s office. He testified that the land in
dispute fall outside the property covered by the lease and that the
defendant’s dwelling house and padlock situated opposite
Portion C are also outside the lease property.






[13]
On the evidence placed before him, Parker, AJ was satisfied that the
plaintiff has proved its case that it was entitled to judgment and
granted judgment for the plaintiff, ordering the defendant and any
livestock belonging to him be evicted from the land. This happened on
20 June 2013.






[14]
According to minutes in terms of Rule 6(5A) dated 25 October 2013,
the parties agreed that the point in limine raised by the
respondent be heard simultaneously with the merits of the application
and the applicant undertook not to oppose the respondent’s
application for the late filing of its opposing papers. Indeed, the
respondent duly filed the said opposing papers together with an
application for condonation of the late filing of the opposing
affidavit. Condonation was granted by the Court. Not the respondent
alone was in default, the applicant also failed to file his Heads of
argument in time as ordered by the Court on 31 March 2014.
Condonation in that respect was also granted and the matter was then
argued.






[15]
Mr Wylie argued the matter on behalf of the applicant and as already
indicated, Mr Marcus acted for the respondent.






[16]
In view of the decision of Colyn v Tiger Food Industries
above, both Mr Wylie and Mr Marcus are together on the issues that
after evidence is led and the merits of the dispute have been
determined, the Court becomes functus official and may
not ordinarily vary or rescind its own judgment. Variation or
rescission of such a judgment becomes a function of Court of appeal.
However, this Court is permitted by law to rescind such judgment
where it has been obtained by fraud or justus error, and where
the party in default can show sufficient cause. In the instant
matter, there is no indication that the default judgment was obtained
by fraud or as a result of justus error.






[17]
What remains is for the applicant to show sufficient cause
alternatively to satisfy the requirements of Rule 44(i). In this
regard Mr Wylie places reliance on the decision of
De
Villiers v Alexis Namibia (Pty) Ltd
[4],
where the Supreme Court in appeal, reversed this Court’s
decision in a similar application on the ground that the judgment or
order was erroneously sought or granted.






[18]
Another authority relied on by Mr Wylie, is the matter of
Stander
and Another v Absa Bank
[5]
where Nepgen, J stated the following:


It
seems to me that the very reference to ‘the absence of any
party affected’ is an indication that what was intended was
that such party, who was not present when the order of judgment was
granted, and who was therefore not in a position to place facts
before the Court which would have or could have persuaded it not to
grant such order or judgment, it is afforded the opportunity to
approach the court in order to have such order or judgment rescinded
or varied on the basis of facts, of which the Court would initially
have been unaware, which would justify this being done. Furthermore
the Rule is not restricted to cases of an order of judgment
erroneously granted, but also to an order or judgment erroneously
sought. It is difficult to conceive of circumstances where a Court
would be able to conclude that an order or judgment was erroneously
sought if no additional facts, indicating that this is so, were
placed before the Court.”






[19]
Counsel argued that the set down of the matter for trial was done in
the absence of the applicant, that no proof that the order was sent
by registered mail was submitted at the trial and complained about
the fact that the applicant’s former legal practitioner of
record continued to act on his behalf despite filing a notice of
withdrawal. Be that as it may. I agree with Mr Marcus that this Court
has become functus officio in view of the fact that the merits
of the dispute were considered when it has found that the applicant
occupied the respondent’s land that adjourns the leased
property which falls outside the leased property, and that the
applicant’s occupation of the property he being evicted from is
without respondent’s written permission, therefore illegal as
the occupation contravenes section 18(1)(a) of the Nature
Conservation Ordinance 4 of 1975.






[20]
The applicant does not dispute these issues. He is aware that the
property in question is part of the Ais Ais Hotsprings Game Park
which covers approximately 4,420 kilometres². Therefore, the
applicant must have a written permission from the respondent to stay,
and to conduct farming activities there. Such written permission the
applicant does not have. His defence is that the respondent allowed
him to stay there. That might be the case, but the law requires him
to have written permission in order for him to stay lawfully in the
Park.






[21]
Accordingly, for the aforegoing reasons, it is my view that this
Court is precluded from retrying the same issues already decided upon
by it. In the result, I uphold the point in limine raised by
the respondent on the basis that this Court has become functus
officio
to hear the matter, and dismiss the application with
costs.






[22]
Even if I am wrong in upholding the point in limine by the
respondent, the applicant did not establish that the default judgment
was granted erroneously and had failed also to establish good cause
for his default. The applicant, knowing that the property does not
have cell phone signal nor landline connection, opted to check his
post every 3 to 4 months. Further he makes contact with others
outside the Game Park through his wife who drives to Rosh Pinah every
second week. These arrangements might be in order under normal
circumstances. However, the circumstances have changed and different
from the normal one as the applicant was expected to constantly be in
contact with his legal practitioner of record to give him or her
further instructions on the way forward with regard his case. This,
the applicant did not do. Have he had done so, he would have been
informed about the progress of his case. The applicant’s
conduct, in my view, is grossly unreasonable, and amounts to a high
degree of negligence on his part, irresponsible and cannot be
condoned. The Court in the application for default judgment could not
halt the wheel of justice in order to accommodate a litigant who
showed no interests in the progress of his pending case. Therefore,
he failed to establish good cause for his default and does not have a
bona fide defence, and on that basis also, the applicant
cannot succeed both in terms Rule 44(1) or common law.






[23]
For the above reasons and conclusions, I make the following order:






The
application is dismissed with costs.






E
P Unengu


Acting
Judge





Appearances:





For
plaintiff: THEUNISSEN, LOUW & PARTNERS





For
defendant: GOVERNMENT ATTORNEYS









[1]
2013
(2) NR 491 para 6




[2]
Jack’s
Trading CC matter at 501 E




[3]
2003
(6) SA (1) (SCA) [2003]2 All SA 113




[4]
2012
(I) NR 48.




[5]
1997(4)
SA 873 at 882 E-G