Angula v LorentzAngula Inc (I 599/2015) [2016] NAHCMD 78 (31 August 2018);

Group

Full judgment

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 599/2015

DATE: 17 MARCH 2016

In the matter between:

ELIZE ANGULA...........................................................................................................1ST PLAINTIFF

SAIMA NAMBINGA....................................................................................................2ND PLAINTIFF

And

LORENTZANGULA INC.........................................................................................1ST DEFENDANT

HARTMUT RUPEL..................................................................................................2ND DEFENDANT

EZER HOSEA ANGULA.........................................................................................3RD DEFENDANT

WOLF-DIETER WOHLERS...................................................................................4TH DEFENDANT

CHARLES VISSER..................................................................................................5TH DEFENDANT

SAMUEL RUBEN PHILANDER............................................................................6TH DEFENDANT

ANDREAS POTGIETER.........................................................................................7TH DEFENDANT

STEPHANIE HOFFMAN........................................................................................8TH DEFENDANT

RAY RUKORO..........................................................................................................9TH DEFENDANT

BEATRIX GREYVENSTEIN................................................................................10TH DEFENDANT

Neutral citation: Angula v LorentzAngula Inc (I 599/2015) [2016] NAHCMD 78 (17 March 2016)

Coram: MILLER AJ

Heard: 29 October 2015

Delivered: 17 March 2016

Flynote: Condonation – Application for upliftment of Automatic Bar – Rule 54(3) read with rule 55 of the Rules of court – Party to show good cause for the delay and that there is a bona fide defence to the claim – plea to counterclaim and replication filed 9 days late – Explanation given not necessarily satisfactory – Defence of prescription, if proved, would constitute a defence to the claim in reconvention. Application for condonation granted.

ORDER

1. The plaintiffs are granted leave to file their plea to the defendants’ counterclaim and replication.

2. The plaintiffs are ordered, jointly and severally, to pay the defendants’ costs which shall include the costs of one instructing and one instructed counsel.

3. A further Case Management Conference is scheduled for the 31 March 2016 at 15h30.

JUDGMENT

MILLER AJ:

[1] The defendants brought an application in terms of rule 61, read with rule 54(3) and rule 23 of the Rules of Court alleging that the plaintiffs’ plea to the counterclaim and replication were filed out of time and is by that very fact automatically barred from filling same. The Joint case plan dated 24 March 2015 indicates that the plea to the counterclaim and replication would be filed on 24 April 2015 and 8 May 2015 respectively, but same was only filed on 18 May 2015. On the same date, the plaintiffs filed an application for the upliftment of bar and for the extension of the time limits within which the plea and replication can be filed. This application is opposed. I then ordered on 9 June 2015 that pleadings in respect of the rule 54 be completed by 30 June 2015. Before the rule 54 Application could be heard, the defendants brought the application in terms of rule 61 to have the pleadings filed out of time struck-out as constituting an irregular proceeding. It was however agreed between the parties that the condonation application be heard first.

[2] The granting of condonation is a discretion that the court exercises and the court may uplift the bar on good cause shown and as a result may extend the time frames within which a certain pleading must be filed. The test applied by the courts in these cases is trite as set out in the case of Ita v Angula NO[1] that the applicant must show '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'.[2] In addition, the courts have required the applicant to 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.’[3] All in all, the party seeking condonation bears the onus to satisfy the court that there is sufficient cause to warrant the grant of condonation.

[3] The relief sought by the plaintiffs is for the upliftment of bar and for the extension of the dates to file the plea to the counterclaim and replication. It is common cause that the plaintiffs already filed the replication and the plea to the counterclaim. The explanation tendered for the late filling of the pleadings is attributed to administrative work at the plaintiff’s office which involved changing office spaces during first weeks of April in anticipation of the dissolution in the firm AngulaColeman where both plaintiffs are employed. Accordingly, the plaintiffs used the storage space at the Document Warehouse during the move and by agreement, those documents, which included the current case record, could only be accessed by end of June 2015. Plaintiffs however only managed to give instructions to counsel during mid May, hence the filling of the pleadings on 18 May 2015. The plaintiffs states that this is a reasonable explanation for the delay and that they have shown good cause for the court’s indulgence.

[4] As regards the bona fide defence against the defendants counterclaim, the plaintiffs referred the court to the plea that is already filed. The relief sought in the claim in reconvention principally entails a transparent rendering of an account by the plaintiffs inter alia on the basis of a fiduciary relationship and the duty to act in good faith. The defendants allege that the plaintiffs did not render any accounts for the unaccounted fees earned or generated and that any amount that may be owed to the plaintiff must be set off against the amounts owing to the defendants. To this, the first plaintiff pleads firstly that she did not earn director’s fees during January –February 2012 and only since March 2012. In addition, the plaintiff pleads that the claim by the defendants has prescribed by February 2012 and the summons were only served on 27 February 2015, being more than three years after the amounts became due. In summation, plaintiffs deny any form of liability towards the defendants.

[5] The defendants allege that the explanation tendered by the plaintiffs is unreasonable and tainted with insufficient particularities to sustain a reasonable and bona fide explanation. Accordingly, the plaintiff’s, as dominis litis, ought to have exercised a degree of responsibility in ensuring that the instructions is given to counsel on time, that the documents stored did not include those of the present matter; and ultimately that the dates, as ordered by the court are adhered to. The defendants thus deny that good cause has been shown and that a case has been made out for the court’s indulgence and condonation as sought.

[6] Counsel on behalf of the plaintiff argued before the court that it is humanely impossible for legal practitioners to always comply with the time lines set by the court, hence the discretion given to a court to lift any bar and that in the absence of any prejudice suffered by the defendants, their opposition is unnecessary and uncompromising. Counsel for the defendants maintained that the period between February 2015, when the plea and counter claim was filed, and May 2015, when the replication and plea to counterclaim was eventually filed, has not been sufficiently explained. Counsel maintained that too long periods have passed and has not been explained; the founding papers shows no effort or initiative from the plaintiffs to at least alert the defendants of their inability to adhere to the deadlines agreed on in the joint case plan or seek audience with the judge to extend the time lines. This type of behaviour, counsel submits, is unreasonable.

Should the court grand the indulgence and uplift the bar against the plaintiffs?

[7] In this regard, I take into account that the period of delay was relatively short and did not cause the defendants any prejudice. Although the overall objective of the case management system is to expedite the machinery of pleadings and ultimately the proceedings as a whole, there will always be some cases where delays are experienced for a variety of reasons. To adopt an implausible rigid attitude may lead to situations where a litigating party is prevented from fairly ventilating his or her case. I accept that there will be cases where the negligence or carelessness on the part of a litigant is of such a nature that the court will not assist. This case does not strike me as one of these. The explanation given for the delay, although not perfect, is nonetheless reasonable and acceptable.

Costs

[8] The plaintiff seeks an indulgence and the opposition thereto was not unreasonable. The plaintiffs should in my view pay the defendants’ costs which shall be limited to that of one instructing and one instructed counsel. In my view, the matter did not warrant the engagement of two counsels.

Order

[9] In that respect, I make the following order:

1. The plaintiffs are granted leave to file their plea to the defendant’s counterclaim and replication.

2. The plaintiffs are ordered, jointly and severally, to pay the defendants’ costs which shall include the costs of one instructing and one instructed counsel.

3. A further Case Management Conference is scheduled for the 31 March 2016 at 15h30.

PJ Miller,

Acting

APPEARANCE:

Plaintiff S Namandje.

Of Sisa Namandje & Co Inc, Windhoek

Defendants R Totemeyer, SC & D Obbes

Instructed by Engling, Stritter & Partners, Windhoek

[1] (A 245-2014) [2015] NAHCMD 215 (4 September 2015), para 12-19 of the judgment.

[2] Cairns' Executors v Gaarn1912 AD 181 at p 186.

[3] Leweis v Sampoio 2000 NR 186 (SC).


Download