Court name
High Court
Case name
Geomar Consult (Pty) Ltd v Only Protecting Properties CC
Media neutral citation
[2011] NAHC 173














5












CASE NO.: I 2920/2005







IN THE HIGH COURT OF NAMIBIA







In the matter between:











GEOMAR CONSULT (PTY) LTD
…..................................................................APPLICANT







and











ONLY PROTECTING PROPERTIES CC
…..................................................RESPONDENT











CORAM: NDAUENDAPO, J











Heard on: 28 July 2008



Delivered on: 17 June 2011



______________________________________________________________________



JUDGMENT



NDAUENDAPO, J



[1] This is an application for
rescission of judgment in terms of rule 44(1) of the Rules of the
High Court.







[2] The applicant, Geomar Consult
(Pty) Ltd, was sued by the respondent, Only Protecting Properties,
for an amount of N$36 634.97 together with interest on that amount at
a rate of 20% per annum a tempore morae in respect of services
rendered and material supplied by the respondent to the applicant
during 2003.



[3] The summons was served on the
applicant (defendant) on 28 November 2005. On the 1st of
December 2005 the respondent filed a notice of intention to defend
together with a request for further particulars.







[4] On the 9th of December
2005 the respondent filed an application for summary judgment to be
heard on 23 January 2006. On the 23rd of January 2006 the
application for summary judgment was removed from the roll. On 14
March 2006 the respondent filed a declaration. On 8 May 2006 the
applicant filed an application in terms of Rule 30 to be heard on 5
June 2006. The Rule 30 application sought the following relief:




  1. Declaring the filing of a
    declaration by plaintiff as an irregular step and setting aside the
    said declaration.








The respondent opposed the rule 30
application and filed an opposing affidavit. On 5 June 2006 the Rule
30 application was postponed by Mr Kamanja (who represented the
respondent) to a date to be arranged with the registrar. Such a date
was never arranged with the registrar. The respondent’s legal
representative addressed three letters dated 13 July 2006, 1 August
2006 and 13 September respectively inquiring from the lawyer of the
applicant as to what he intended doing with the Rule 30 application
which was postponed to a date to be arranged with the registrar. The
lawyer of the applicant, Mr Mbaeva, never replied to those letters.
Frustrated by the silence from Mr Mbaeva regarding the Rule 30
application, Mr Namandje filed a notice of bar on the lawyer of the
respondent. Although the notice of bar is dated 11th day
of January 2006, it was filed and served on Mr Mbaeva and the
registrar of the High Court on 16 January 2007 ( that is evident from
the stamp on the notice of bar) notwithstanding the notice of bar, Mr
Mbaeva did not file a plea.







[5] On 3 September 2007 Mr Namandje
launched an application for default judgment. On 14 September 2007
the application for default judgment was granted. It is that judgment
that is sought to be rescinded in terms of Rule 44(1). The
application is being opposed by the respondent. Mr George Martin, the
managing director of the applicant, deposed to an affidavit in
support of the rescission application. In summary he says that “the
reasons why he applies for rescission of judgment is that the summary
judgment was postponed to a date to be arranged with the registrar
and the meris and demerits of the summary judgment were not dealt
with by a justice of this court in terms of Rule 32(3). The summary
judgment was not withdrawn and he did not take any steps after the
declaration was filed and he did not take any steps in relation to
the said declaration as such would institute an indulgence on his
part.”







[6] Mr Mahevo Amkongo who deposed to
the opposing affidavit on behalf of respondent contends that the
application for summary judgment was removed from the roll to enable
the applicant for purposes (sic) of granting leave to applicant to
defend the matter. It was the application in terms of Rule 30 which
was postponed to a date to be arranged with the registrar, contends
the respondent. He further stated that;



If
applicant indeed decided not to take any steps in relation to the
declaration even after the bar was served then that was done at its
own peril.”







[7] Rule 30 provides as follows:



30(10)
A party to a case in which an irregular step or proceeding has been
taken by any other party may, within 15 days after becoming aware of
the irregularity, apply to court to set aside the step or proceeding
provided that no party who has taken any further step in the case
with knowledge of the irregularity shall be entitled to make such an
application.”







The
learned authors: Herbstein & Van Winsen (the Civil Practice of
the High Courts of South Africa 5
th
edition at 742 say the following:



Taking of a
further step precludes application:



An aggrieved party forfeits the right
to have the offending step set aside if he has taken any further step
in the cause with knowledge of the offending step. The question of
what constitute a ‘step’ in the proceedings has often
been considered.” In Killarney of Durban (Pty) v Lomax 1961 (4)
SA 93 (D) at 96 FanninJ stated that a ‘step’ in the
proceedings is some act which advances the proceedings one stage
nearer completion and held that the taking of an exception is such an
act. In Jowell v Bramwell—Jones 1998(1) SA 836 (W) Heher J
stated that:



Further step
in the proceedings is one which advances the proceeding one stage
nearer completion and which objectively viewed, manifests an
intention to pursue the cause despite the irregularity....”







[8] In casu, the Rule 30 application
was only postponed to a date to be arranged with the registrar, nor
was it abandoned by silence as submitted by Mr Namandje. The fact
that the Rule 30 application was not withdrawn and still pending
prevented the applicant from taking any further step to bring the
proceeding nearer completion. Had the applicant filed a plea as per
the notice of bar that would have amounted to it taking a further
step and it could not have pursued the Rule 30 application. I must
confess that I do not know why the filing of the declaration by the
respondent was challenged or is challenged as an irregular step. That
is for the presiding officer who will hear the Rule 30 application to
decide.







[9] The fact that the applicant was
requested by the respondent to indicate what it intended to do with
the Rule 30 application which was postponed to a date to be arranged
with the registrar and the applicant ignored that does not in my
respect full view amount to the abandonment of the Rule 30
application by silence. Once an application has been postponed to a
date to be arranged with the registrar that implies that the
application is pending before court. It was open to the legal
practitioner of the respondent to invite the legal practitioner of
the applicant to obtain a date from the registrar and not to file a
notice of bar.



Rule 44 (1) provides that:



The
court may, in addition to any other powers it may have,
mero
motu

or upon the application of any party affected, rescind or vary –




  1. An order or judgment erroneously
    sought or erroneously granted in the absence of any party affected
    thereby.”




It is common cause that the default
judgment was obtained without notice to the applicant.



In the result, the filing of the
notice of bar was an irregular step while the Rule 30 application was
postponed to a date to be arranged with the registrar. Consequently,
the default judgment was granted erroneously.







In the result, I make the following
order:



The application for rescission of
judgment in terms of Rule 44(1) is granted with costs.















_______________



NDAUENDAPO, J



























On behalf of the APPLICANT: mR
NAMANDJE



Instructed by: SISA NAMANDJE & CO.
INC.







ON BEHALF OF THE RESPONDENT: MR MBAEVA



Instructed by: MBAEVA & ASSOCIATES