Court name
High Court Main Division
Case number
APPEAL 245 of 2014

Ita v Angula NO (APPEAL 245 of 2014) [2015] NAHCMD 215 (09 April 2015);

Media neutral citation
[2015] NAHCMD 215
Ueitele J




NO.: A 245/2014

the matter between:







Neutral citation: Ita v Angula NO (A 245-2014) [2015]
NAHCMD 215 (4 September 2015)


Heard: 04 August

Delivered: 04
September 2015

Practice - Judgments and orders -
Rescission of judgment - Application in terms of Rules 44, 31(2)(b)
and common law - Requirements -
cause shown'
in Rule 16 - Reasonable
explanation for delay;
bona fide
defence - Defence must be clear on the papers.


1 The application to
condone Rosalia Iita’s failure to timeously file her notice to
oppose the first applicant’s application is hereby dismissed
with costs.



Introduction and

[1] On 05 September 2014
Mr. Ezer Hosea Tala Angula (as applicant) in his capacity as the
Executor in the Estate of the late Theopilus Nehemia commenced
proceedings in this court by way of a Notice of Motion.  The
respondents in that matter were; Rosalia Iita (as first respondent),
The Master of the High Court (as second respondent), the Registrar of
Deeds (as the third respondent) and a certain Mr. Niel Lakay (as the
fourth respondent). In that application, Mr. Angula (I will refer to
Mr. Angula as the first respondent in this judgment) sought the
following relief from this court, an order:

Declaring that the signature on the document, a copy whereof attached
to the Applicant’s affidavit, marked “
dated 2
July 2010 purporting to be the Last Will and Testament of the late
Theopilus Nehemia (“the deceased”) who died on 15 March
at Windhoek, is not the signature of the deceased and accordingly,
the document is not the Last Will and Testament of the deceased.

Declaring that the
deceased died in testate;

Directing the third
respondent to cancel the entry in the Deeds Registry indicating that
the immovable property situated at Erf No. 2338 belongs to the first

Directing that the
deceased’s estate be referred back to the Second Respondent and
directing the Second Respondent to exercise her power with regard to
the administration and distribution of the deceased’s estate

Declaring that any action
taken based on the assumption that the document is the Last Will and
Testament of the deceased is null and void and of no legal effect’.

[2] On 17 September 2014
at 17h38 the Notice of Motion together with the supporting affidavit
of Mr. Angula and all the annexures to that affidavit were served by
Mr. Carlos Freygang the Acting Deputy Sherriff for the District of
Windhoek on Ms. Rosalia Iita (I will refer to Rosalia Iita as the
applicant in this judgment). In the Notice of Motion Ms. Iita was
informed that if she intended to oppose the application she must
inform the first respondent’s (the then applicant) legal
practitioners of her intention to do so by not later than 22
September 2014 and that she must not later than 14 days from the date
on which she so signifies her intention to oppose the relief sought
by the first respondent file her affidavit in support of her
opposition. She was further warned that if she does not signify her
intention to oppose the first respondent’s application the
first respondent will apply to court on 26 September 2014 for an
order as set out in the Notice of Motion.

[3] Ms. Iita did not
indicate her intention to oppose the application by 22 September 2014
as informed the notice of motion, and the first respondent’s
application was not set down for hearing on 26 September 2014 as
indicated in the Notice of Motion but was set down for hearing on the
unopposed motion court roll of 03 October 2014. When the matter was
called on that day (i.e. 03 October 2014) there was still no notice
to oppose the application nor was there any appearance by or on
behalf of any of the four respondents. The court accordingly granted
the relief sought by the first respondent.

On 30 October 2014 the applicant then brought an application in terms
of which she seeks the following relief from this court.

Dispensing with the requirements of security as envisaged by the
rules of this honourable court.

Condoning the applicant’s non-compliance with the rules of
court by not timeously filling a notice of intention to oppose the

Rescinding and setting aside the default judgment granted in favour
of the first respondent.

Granting leave to the applicant to oppose the application and to
allow the applicant to file its answering affidavit within 20 court
days from the date on which the order is granted.’

[5] On 04 November 2014
the first respondent indicated that he will oppose the applicant’s
application and he filed his affidavit in support of his opposition
of the applicant’s application on 17 November 2014. During May
2015 the matter was docket allocated to me for purposes of case
managing it. On 06 May 2015 I called a case planning conference for
10 June 2015. On that day (i.e. the 10 June 2015) I postponed the
matter to 01 July 2015 for a status hearing on 01 July 2015. On 01
July 2015 I was informed that all the pleadings have been filed and
that the matter was ready to be heard, I accordingly made the
following order:

That the applicant must file her heads of arguments on or before 20
July 2015.

That the defendant (
must file their heads of argument on or before 27 July 2015.

That the court file must be indexed and paginated on or before 30
July 2015.

That the hearing date of 04 August 2015 is hereby confirmed.’

[6] The applicant failed
to file her heads of arguments by 20 July 2015 as ordered by the
court. The first respondent filed his heads by the 27 July 2015 as
ordered by the court. It is the applicant’s application that I
will now turn to consider.

[7] Before I consider the
applicant’s application I return to the order that I made on 01
July 2015. As I indicated in above the applicant was ordered to file
her heads of arguments on 20 July 2015 and she failed to do so. The
applicant's counsel filed heads of argument on Friday 31 July 2015
when the matter was set down for hearing on Monday 04 August 2015.
There was no application for condonation. Counsel simply appeared at
the hearing. When I directed his attention to the order of 01 July
2015 he enquired whether I wished him to bring an application for
condonation. My response to counsel was that he will find the answer
to his enquiry in the Rules of Court and in the case of, Nedbank
Ltd v Louw
Rule 54 of the rules of court provides as follows:

for non-compliance in absence of defaulting party obtaining relief,
relaxation, extension or condonation

(1) Where a party has
failed to comply with a rule, practice direction or court order, any
sanction for a failure to comply imposed by the rule, practice
direction or court order has effect and consequences for such failure
and such effect and consequences follow, unless the party in default
applies for and is granted relaxation, extension of time or relief
from sanction.

Where a rule, practice direction or court order -

requires a party to do something within a specified time; or

specifies the consequences of a failure to comply, the time for doing
the act in question may not be extended by agreement between the

Where a party fails to deliver a pleading within the time stated in
the case plan order or within any extended time allowed by the
managing judge, that party is in default of filing such pleading and
is by that very fact barred.

For the purposes of this rule the days from 16 December to 15
January, both inclusive, are not counted in computing the time
allowed for the delivery of any pleading.’

[8] In the Nedbank Ltd
v Louw
matter Henning AJ said the following:

respondent's counsel filed heads of argument one court day prior to
the hearing, instead of the prescribed five days. There was no
application for condonation. Counsel simply appeared at the hearing.
When his attention was directed to rule 15 which for condonation
requires an application — notice of motion and affidavit —
he conceded the absence of an application. The reason for the
lateness, he said, was pressure of work and he apologised. Now
although the apology seems to express good manners, it is not a basis
for condonation. The pressure of work in the life of a legal
practitioner is nothing new. In A Barrister's History of the Bar RG
Hamilton quotes a letter which Cicero wrote to his brother in late
August of the year 54 BC:

you get a letter from me in the hand of one of my secretaries, you
can reckon that I didn't have a minute to spare; when you get one in
my own, that I did have one minute! For let me tell you I have never
in my life been more inundated with briefs and trials, and in a
heat-wave at that, in the most oppressive time of the year. But I
must put up with it.”

refers to a letter written by a barrister to a friend in 1793. It

Inn November 22, 1793


would perhaps set some value on this letter, if you knew how many
things I have to do at the moment I write it. And what excuses I must
make tomorrow to some stupid attorney for having devoted to you the
time which 1 ought to employ upon an appeal in Chancery.”

art of legal practice is, in the words of Cicero, to put up with
pressure, and to perform within the rules, not to ignore them. It
seems to have become a fashion to disregard procedural stipulations
and to rely on condonation as an entitlement, even worse, to equate
an apology with condonation. If legal practitioners are so driven by
professional egoism and/or financial rapacity that they neglect
briefs, such practitioners and their clients will incur misfortune.
In the circumstances the appearance of counsel for the respondent is
held to be irregular. ‘

In the matter of Indigo Sky Gems (Pty) Ltd, v Johnston[2]
Gibson J struck from the roll a matter because the counsel failed
to timeously file heads of argument when striking the matter she said
the following:

crux of the matter is that there appears to have been a flagrant
breach of the Rules of Court. Given that course of conduct, my
attitude is that the Court can only ignore such attitude at its peril
and to its own prejudice in the running and administration of the
Court's business. Thus my view is that such failure cannot be
overlooked in the circumstances of this case because to do so would
be to encourage laxity in the preparation of Court pleadings. The
orderly arrangement of Court proceedings as presently known, will be
a thing of the past. If rules are only to be followed when a legal
practitioner sees fit to do so, then the Rules may as well be torn

The misfortune alluded to by Henning AJ in the matter of Nedbank v
is the misfortune which visited the applicant in this
matter. I regarded the participation of applicant’s counsel at
the hearing to be irregular and I accordingly did not hear him. I now
return to consider the applicant’s application. I will briefly
set out the legal principles that govern condonation applications or
a rescission application.

The applicable Legal

The procedure for an application to rescind a default judgment/order
is governed by Rule 16 of this court’s Rules. Rule 16 reads as

of default judgment

(1)        A defendant may, within
20 days after he or she has knowledge of the judgment referred to in
rule 15(3) and on notice to the plaintiff, apply to the court to set
aside that judgment.

The court may,
good cause shown

and on the defendant
furnishing to the plaintiff security for the payment of the costs of
the default judgment and of the application in the amount of N$5 000,
set aside the default judgment on such terms as to it seems
reasonable and fair, except that -

the party in whose favour
default judgment has been granted may, by consent in writing lodged
with the registrar, waive compliance with the requirement for
security; or

in the absence of the
written consent referred to in paragraph (a), the court may on good
cause shown dispense with the requirement for security.

A person who applies for rescission of a default judgment as
contemplated in subrule (1) must –

make application for such
rescission by notice of motion, supported by affidavit as to the
facts on which the applicant relies for relief, including the
grounds, if any, for dispensing with the requirement for security;

give notice to all
parties whose interests may be affected by the rescission sought; and

make the application
within 20 days after becoming aware of the default judgment.

Rule 65 applies with necessary modification required by the context
to an application brought under this rule.’

[12]      The procedure to be followed
when applying for condonation for the failure to comply with a rule
of court or a court order is set out in Rule 55. Rule
55 of this court’s rules provides as follows:

of bar, extension of time, relaxation or condonation

The court or the managing judge may, on application on notice to
every party and
good cause shown
make an order extending or shortening a time prescribed by these
rules or by an order of court for doing an act or taking a step in
connection with proceedings of any nature whatsoever, on such terms
as the court or managing judge considers suitable or appropriate.

An extension of time may be ordered although the application is made
before the expiry of the time prescribed or fixed and the managing
judge ordering the extension may make any order he or she considers
suitable or appropriate as to the recalling, varying or cancelling of
the consequences of default, whether such consequences flow from the
terms of any order or from these rules.’

[13]      It will be
realised that in both Rules 16 and 55 the phrase
good cause shown
occurs. In the matter
Cairns' Executors v Gaarn[4],
the court was considering a condonation application in respect of an
appeal which was not enrolled within the time frame contemplated in
the rules of that court (i.e. the Appeal Court). The applicant for
condonation relied on a court rule which read that:
Court may for sufficient cause shown, excuse the parties from
compliance with any of the foregoing Rules'
Innes JA (as he then was) stated as follows:

would be quite impossible to frame an exhaustive definition of what
would constitute sufficient cause to justify the grant of indulgence.
Any attempt to do so would merely hamper the exercise of a discretion
which the Rules have purposely made very extensive, and which it is
highly desirable not to abridge. All that can be said is that the
applicant must show, in the words of COTTON, L.J. (
re Manchester Economic Building Society
24 Ch.D. 488 at p. 498), 'something which entitles him to ask for the
indulgence of the Court'. What that something is must be decided upon
the circumstances of each particular application'

In the matter of Leweis v Sampoio[5]
the Supreme Court per Strydom CJ stated that:

the Courts have studiously refrained from attempting an exhaustive
definition of the words 'good cause' they have laid down what an
applicant should do to comply with such requirement. In this regard
it was stated that an applicant:

must give a reasonable
explanation for his default;

the application must be
made bona fide; and

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

The learned Chief Justice
furthermore stated that:

application for rescission is never simply an enquiry whether or not
to penalize a party for his failure to follow the rules and
procedures laid down for civil proceedings in our courts. The
question is, rather, whether or not the explanation for the default
and any accompanying conduct by the defaulter, be it willful or
negligent or otherwise, gives rise to the probable inference that
there is no bona fide defence and hence that the application for
rescission is not

In the recent matter of Standic v Kessels[6]
I referred to the matter of Telecom
Namibia Limited v Mitchell Nangolo & 34 Others
where Damaseb
JP identified the following as principles guiding applications for

It is not a mere formality and will not be had for the asking.
The party seeking condonation bears the onus to satisfy the court
that there is sufficient cause to warrant the grant of

There must be an acceptable explanation for the delay or
non-compliance. The explanation must be full, detailed and

It must be sought as soon
as the non-compliance has come to the fore. An application for
condonation must be made without delay.

The degree of delay is a
relevant consideration;

The entire period during
which the delay had occurred and continued must be fully

There is a point beyond
which the negligence of the legal practitioner will not avail the
client that is legally represented.
(Legal practitioners are
expected to familiarize themselves with the rules of court).

The applicant for
condonation must demonstrate good prospects of success on the merits.
But where the non-compliance with the rules of Court is flagrant and
gross, prospects of success are not decisive.

applicant’s prospect of success is in general an important
though not a decisive consideration. In the case of
Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and
Hoexter JA pointed out at 789I-J that the factor of prospects of
success on appeal in an application for condonation for the late
notice of appeal can never, standing alone, be conclusive, but the
cumulative effect of all the factors, including the explanation
tendered for non-compliance with the rules, should be considered.

[16]      The
requirement that an applicant's case must not patently be unfounded
suggests that something must be put on record from which the Court
can estimate the soundness of the applicant's case. In the matter of
Uitenhage Transitional Local Council v
South African Revenue Service
Heher JA stated that:

is not to be had merely for the asking; a full, detailed and accurate
account of the causes of the delay and their effects must be
furnished so as to enable the Court to understand clearly the reasons
and to assess the responsibility. It must be obvious that, if the
non-compliance is time-related then the date, duration and extent of
any obstacle on which reliance is placed must be spelled out.'

[17]      In the
matter of
Silverthorne v Simon[18],
Salomon JA said the following

therefore, there is any satisfactory explanation of the delay on the
part of defendant, if the Court comes to the conclusion that
defendant's application is bona fide, that he is really
anxious to contest the case and believes he has a good defence to the
action, and if in these circumstances, the order can be made without
any damage or injury to the plaintiff other than can be remedied by
an order as to payment of costs, I think when these conditions are
present in any application, the Court should as far as possible
assist the defendant and allow him to file a plea in the action'.


In the matter of
Namibia Security Supplies CC v
I said the following:

of our current Constitutional dispensation which guarantees every
person the right to have his or her dispute determined by an
independent and competent Court or Tribunal I endorse the views
expressed in the cases I have quoted above. I am therefore of the
opinion that the present Rule, i.e. Rule 55 (1) and (2), should, be
interpreted to say, that it requires a defendant who is in default
say on oath that he has a good defence
and requires him further to set out sufficient information to enable
the Court to come to the conclusion that the defence is

and not put up merely for the purpose of delaying satisfaction of the
plaintiff's claim. The defendant does not, as a rule of law,
necessarily have to make out a

defence in his affidavit.

Having set out the legal principles w
hat is
left for me to enquire is, whether the applicant has satisfactorily
explained the delay on her side, whether her application is made
and not put up merely for the
purpose of delaying satisfaction of the respondent's claim and
whether she has, in the affidavit, set out a
defence to the respondent’s
claim. I will start that enquiry by setting out the applicant’s

Applicant’s case

The applicant admits that she was served with the Notice of Motion
during the period between 12 September 2014 and 20 September 2014 but
alleges that when the deputy sheriff served her with the application,
he did not explain to her what the matter was about. She further
explains that when she attempted to read the application, although
she could make out that the application had to do with her late
boyfriend’s estate; she could not see the date on which the
hearing of the matter was set down.  She proceeds and state that
she asked her son (who is self-employed) to assist her with the
papers, after he went through, he advised her that she needed to
enlist the services of a legal practitioner which is when her son
started to search for a legal practitioner for her. She states that
during the week leading to the end of September 2014 she made three
calls to her son to establish what the status of the search for a
legal practitioner was. It was only during the week of 29 September
2014 that he confirmed to her that he has acquired a legal
representative for her and that he has paid a deposit for their
services as required by the legal practitioners and that the
consultation was arranged for 03 October 2014.


The applicant then submitted that her failure to file the notice to
oppose the respondent’s claim was not due to willful disregard
of the rules of court but it is ‘owing’ to the fact that
she did not have nor does she has the money to engage the services of
a legal representative for purposes of advising her on the matter
before court. She proceeded and said:

delay in filing a notice of intention to oppose the application was
owing to my inability to raise funds on time but that I have made
concerted effort and the default judgment would not be granted in
favour of the applicant [the current respondent] should I or my legal
representative have known that the matter was subsequently set down
for hearing on the date on which the notice was filed.’

The applicant raise issues with the fact that the main application
especially the point taken by a handwriting expert that the signature
of the deceased in the document purported to be the Last Will and
Testament of the deceased could not possibly be that of the deceased.
 Applicant further argued that the second respondent (in the
main application) accepted the Will which meant that the document was
valid and given the chance she would seek the services of an
independent expert to study the materials and compile an independent

[23]      As
regards the question of security as required by Rule 16 (2) the
applicant states the following:

submit that I have not paid the security envisaged by on the basis
that I am not in the position to pay same as I am unemployed. My
legal representatives have advised me that in terms of the rules of
this honourable, the court may order that the requirement of security
be dispensed with. In view of the explanation that I have tendered
and the further compliance with the rules of court, I seek the
court’s indulgence to condone my belated filling of the notice
setting out my intent to oppose the application.’

The first respondent’s case

The respondent attacked the applicant’s material non-disclosure
of a monthly pension being “75% of the spouse’s pension”
from the deceased’s pension fund. He submits that had the court
known about the monthly pension, it would have been in a position to
determine whether the “furnishing of security for costs should
be dispensed with or not” – which applicant only later
dealt with in her replying affidavit. As regards the delay to file
the notice to oppose the application by the respondent opposition –
he states that the applicant had ample time to file her notice to
oppose the main application.


Based on the authorities that I have cited in this judgment, I must,
in order to consider whether to dispense with the provision of
security contemplated in Rule 16, grant the condonation sought and
rescind the order granted in the absence of the applicant, be
satisfied that the applicant (Ms. Rosalia Iita) has in her affidavit
set out the grounds, if any, for dispensing with the
requirement for security. The applicant
in her affidavit simply states that she has not paid the security
contemplated in the rules because she is not in the position to pay
same as she is unemployed. She further states that her legal
representatives have advised her that in terms of the rules of this
court, the court may order that the requirement of security be
dispensed with.

The statement that condonation of a default is not a mere formality
and will not be had for the asking applies with equal force to the
question whether or not a court will dispense with the requirement
for security, it will not be had for the mere asking. The statement
that the applicant is unemployed and that she is not in the position
to pay the security required by the rules is not sufficient to enable
me to exercise my discretion. One would, as the first respondent
pointed out in his opposing affidavit, have expected the applicant to
make a detailed disclosure of her financial position. The applicant
has in my view failed to set out the grounds on which I must exercise
my discretion to dispense with the security required in Rule 16(1).

What I gathered from the applicant’s affidavit is that the
applicant’s son secured a legal practitioner for her on 29
September 2014 and that he paid a deposit for the legal practitioner
on that day. I presume that the legal practitioners referred to by
the applicant are the legal practitioners of record of the applicant.
My presumption is based on the confirmatory affidavit deposed to by
Mr. Elago deposed who confirms the correctness of the allegations in
so far a as they relate to him.  What the legal practitioners do
not tell the court is significant: The court is not told who the
applicant’s son saw on 29 September 2014 and what documents
were handed over to the person seen by the applicant’s son on
that date at the legal practitioners firm. The legal practitioners
fail to tell the court whether they were presented with the Notice of
Motion on 29 September 2014.  The legal practitioners do not
tell the court what they did, from the date (i.e. 29 September 2014)
that they were approached by the applicant’s son to the date
(i.e. 03 October 2014) that they consulted with the applicant, to
establish what the status of the application is. It appears therefore
that no-one in the firm brought their professional mind to bear on
the matter. Had they done so, they would have noticed that the matter
was the subject of deadlines and that it would have been set down for
hearing on 26 September 2014.

In the light of what I have said in the preceding paragraph I am of 
the view that the applicant did not set out any acceptable (in the
sense of being satisfactory) or reasonable explanation for the
failure to timeously file a notice of intention to oppose the first
respondent’s application. There is equally no explanation at
all, either by the applicant or her legal practitioner, why the
application for condonation was only brought as late as 24 October
2014 when the order granted in the absence of the applicant came to
her legal practitioner’s attention on 07 October 2014. The law
as I have shown is settled that the application for condonation must
be brought as soon as the delay has become apparent and to the extent
it was not so brought, there must be an acceptable, full and accurate
explanation for the delay in the bringing of the application for
condonation. The application is singularly and demonstrably lacking
in that regard too.

I now turn to the question of prospects of success. While it is true
that the applicant in an application such as the present one need not
deal fully with the merits of the case and produce evidence that the
probabilities are in her favour it would, nonetheless, be reasonable
to expect of her to set out sufficient information
to enable the court to come to the conclusion that her defence is
bona fide.  The
applicant has not done so. I say so for the following reasons the
applicant is not in position to dispute the expert evidence produce
by the first respondent that the signature on the disputed Last Will
and Testament is not that of the deceased. She wants to be given time
to seek the services of an expert to contradict that finding. She
says the following in her affidavit:

am not able to determine the accuracy of the report attached to the
founding affidavit but I do deem it appropriate that I too be
afforded an opportunity to engage an independent expert to study the
materials and have an independent report.’

I now turn to the question of costs. The issues of costs is within
the discretion of the court and the general rule is that costs follow
the course nothing has been placed before me to persuade me to depart
from that general rule. I therefore make the following order:

The application to condone Rosalia Iita’s failure to timeously
file her notice to oppose the first applicant’s application is
hereby dismissed with costs.

S Ueitele







    2011 (1) NR 217 (LC).

    1997 NR 239 (HC).

    Also see the matter of Van Zyl and Another //
Smit and Another
 2007 (1) NR 314 (HC) at page317.

      1912 AD 181 at p

    2000 NR 186 (SC)

    Standic BV // Kessels (A 289/2012)N[2015]
NAHCMD 197 (24 August 2015).

    Beukes and Another v Swabou and Others
[2010] NASC 14 (5 November 2010), para 12.

    Father  Gert Dominic Petrus v Roman
Catholic Archdiocese
, SA 32/2009, delivered on 09 June 2011,
para 9.

    Beukes and Another v Swabou and Others
[2010] NASC 14(5 November 2010), para 13.

   Ondjava Construction CC v HAW Retailers 2010 (1)
NR 286(SC) at 288B, para 5.

   Pitersen-Diergaardt v Fischer 2008(1) NR

   Unitrans Fuel and Chemical (Pty) Ltd v Gove –Co
carriers CC
2010 (5) SA 340,  para 28.

   Salojee and Another NNO v Minister of Community
1965 (2) SA 135(A) at 141B; Moraliswani v Mamili
1989(4) SA 1 (AD) at p.10; Maia v Total Namibia (Pty) Ltd 
1998 NR 303 (HC) at 304; Ark Trading v Meredien Financial
Services Namibia (Pty) Ltd
1999 NR 230 at 238D-I.

   Swanepoel, supra at 3C; Channel Life Namibia
(Pty) Ltd v Otto
2008 (2) NR 432(SC) at 445, para 47.

   Swanepoel, supra at 5A-C; Vaatz: In re
Schweiger v Gamikub (Pty) Ltd
2006 (Pty) Ltd 2006 (1) NR 161
(HC), para; Father Gert Dominic Petrus v Roman Catholic Diocese,
case No. SA 32/2009, delivered on 9 June 2011, page 5 at paragraph

   1985 (4) SA 773 (A).

     2004 (1) SA 292 (SCA) at

     1907 T.S. 123.

     An unreported judgment of this court Case
No (I 4113/2011) [2013] NAHCMD 282 (delivered on 01 October 2014).