Court name
High Court
Case name
Gabrielsen v Coertzen
Media neutral citation
[2011] NAHC 182













CASE NO: (P) I
3062/2009



IN
THE HIGH COURT OF NAMIBIA







In
the matter between:







JOHANNES
HERMANUS GABRIELSEN
…...........................................PLAINTIFF







And







LEN COERTZEN
…..........................................................................DEFENDANT








Heard on: 30
NOVEMBER 2010



Delivered: 29 JUNE
2011



JUDGMENT


___________________________________________________________________________________






UEITELE A J [1]
This is an application brought by Len Coertzen (I will in this
judgment refer to Mr. Coertzen as the defendant) in which application
he seeks the following relief:



1 Granting
leave to the applicant to file his supplementary opposing affidavit
to the application for summary judgment filed on 30 September 2009
under the above case number [i.e. case number (P) I 3062/2009];




  1. Ordering the
    applicant to pay the cost of this application (save for any cost of
    opposition).



  2. Further and/or
    alternative relief.”




[2] The
application is opposed by Johannes Hermanus Gabrielsen (I will in
this judgment refer to Mr. Gabrielsen as the plaintiff).








[3] I find it
appropriate to briefly sketch the background to this application. On
28 August 2008 the plaintiff instituted action (by issuing simple
summons) against the defendant. In the summons the plaintiff claimed
the following relief:



1.1 Payment
in the amount of N$ 51 580-00 (Fifty One Thousand Five Hundred
and Eighty Namibia Dollars) in respect of goods sold and delivered
and/or for services rendered on or about March 2009 by the Plaintiff
to the Defendant at the latter’s special instance and request
which amount is now due and payable, but the Defendant despite demand
thereto, refuses and/or neglects to pay.



1.2 Interest on the
aforesaid amount at the rate of 20% (twenty percent) per annum a
tempore morae until date of final payment





    1. Cost of suit.”









[4] On 23
September 2009, the defendant entered an appearance to defend and on
30 September 2009 the plaintiff delivered a notice of application for
Summary Judgment. The application for summary judgment was to be made
on 23 October 2009.







[5] On 20 October
2009 the defendant gave notice that he will oppose the application
for summary judgment and delivered an opposing affidavit in support
of his resistance of the application for summary judgment. On 23
October 2009 this Court ordered the hearing of the application be
made on a date to be arranged with the Registrar.



[6] The plaintiff,
on 12 November 2010, set down hearing of the application for summary
judgment for 19 January 2010. On 17 December 2009 the plaintiff filed
his heads of argument in respect of the hearing scheduled for 19
January 2010.







[7] On 13 January
2010 (that is, three days prior to the day scheduled for hearing
arguments in respect of the application for summary judgment) the
defendant delivered an application to file a supplementary opposing
affidavit. On 15 January 2010, the plaintiff filed his notice to
oppose the application to file a supplementary affidavit. The
plaintiff objected in limine to the short service of the
“Application for leave to file the Supplementary Opposing
Affidavit.” This Court, however, and after argument in respect
thereof, condoned the short service of the ‘Application for
Leave to introduce a Supplementary Opposing Affidavit’
whereafter the matter was postponed sine die. A date was
subsequently allocated and the Application for Leave to introduce a
Supplementary Opposing Affidavit was argued before me on 30 November
2010.







[8] The issue that
this Court is called upon to decide is whether it will or will not
grant the defendant leave to file a supplementary opposing affidavit.







Summary of
reasons advanced in support of the application and reasons advanced
in opposition to the application



[9] The defendant,
in support for the application for leave to file a supplementary
opposing affidavit made the averments which I have summarized below:



9.1 On 20 October
2009 the defendant’s legal practitioner of record (Mr. van
Rensburg) was diagnosed with chicken pocks and was then given leave
from work from 19 October 2009 until 30 October 2009.



9.2 On 30
September 2009 the plaintiff “and during his above mentioned
period of sick leave” (sic) gave notice of set down of
application for summary judgment.



9.3 Due to the
illness of Mr. van Rensburg, he (van Rensburg) could only consult
with and obtain instructions from defendant via telephone.



9.4 At the time of
the telephonic consultations, the defendant only informed Mr. van
Rensburg that his defence to the plaintiff’s claim was the fact
that the defendant had already paid the plaintiff for all the
services rendered by him “because at the time it was my (the
defendant) honest belief that that was my only defence”.



9.5 Mr. van
Rensburg informed the defendant that he (Mr. Van Rensburg) telephoned
his personal assistant and dictated to her the wording of the
opposing affidavit in accordance with the above instructions. The
opposing affidavit was then filed on 20 October 2009.



9.6 Mr. van
Rensburg returned to work on 04 November 2009 and thereafter, he
received a letter dated 10 November 2009 from the plaintiff’s
legal practitioners of record, which stated how the claimed amount of
N$51 581.00 (Fifty One Thousand Five Hundred and Eighty Namibia
dollars) was calculated.



9.7 On 12 November
2009, defendant personally consulted with Mr. van Rensburg and it was
then for the first time that defendant was confronted with the
details and figures contained in the letter dated 10 November 2009.



9.8 In response to
the details contained in that letter, the defendant informed Mr. van
Rensburg for the first time about the oral agreement and all the
payments which defendant has allegedly made in respect of such oral
agreement, whereupon Mr. van Rensburg informed defendant that he in
fact had a counterclaim to plaintiff’s claim.







10 The plaintiff
opposed the application for leave to file a supplementary affidavit
and filed an affidavit in support of the opposition. In the answering
affidavit, plaintiff made the averments which I have summarized
below:



10.1 Defendant had
time between 30 September 2009 and 21 October 2009 to consult with
his legal practitioner and to file an affidavit opposing the
application for summary judgment.



10.2 Defendant
does not give any explanation or endeavor to explain what transpired
between 30 September 2009 and 20 October 2009 and why a proper and
substantial affidavit could not have been prepared prior to 20
October 2009.



10.3 The defendant
was not diligent enough in having left the preparation for the
opposing affidavit until the last day without giving any explanation
why consultations and the drafting of the opposing affidavit could
not have been done prior to 20 October 2009, when Mr. van Rensburg
fell ill.



10.4 No new
evidence came to light or was discovered which was not available
since the original opposing affidavit was delivered, which was not
within the defendant’s knowledge or under his control at the
time and which could not have been produced or set out in the
original opposing affidavit.



10.5 Defendant has
not complied with the necessary requirement of showing ‘good
cause’ in that he has failed to have given a reasonable
explanation for his delay to enable the Court to establish his bona
fide
in an application for condonation.







11 It is against
those reasons that I am called upon to either grant leave to the
defendant to file an additional affidavit or refuse the leave sought.
I will look at the legal principles applications relating to summary
judgments and thereafter apply those principles to the facts as
discerned from the affidavits and then exercise my discretion.





The
legal principles



12 The practise
relating to summary judgments is governed by Rule 32 of the High
Court Rules. Rule 32(3) provides as follows.



(3) Upon the
hearing of an application for summary judgment, the defendant may -



(a) give security to
the plaintiff to the satisfaction of the registrar for any judgment
including costs which may be given; or



(b) satisfy the
court by affidavit (which shall be delivered before noon on the court
day but one preceding the day on which the application is to be
heard) or with the leave of the court by oral evidence of himself or
herself or of any other person who can swear positively to the fact
that he or she has a bona fide defence to the action, and such
affidavit or evidence shall disclose fully the nature and grounds of
the defence and the material facts relied upon therefore.”







13 Rule 32(3)(b)
has been subjected to many comments and judicial interpretations.
From the comments and judicial interpretations, the following have
emerged:



13.1 Strydom J.P.
(as he then was) said the following in the case of Kelnic
Construction (Pty) Ltd v Cadilu fishing (Pty) Ltd
1998 NR 198
at page 201 C-F.



There can be
no doubt that summary judgment is an extraordinary remedy, which does
result in a final judgment against a party without affording that
party the opportunity to be heard at a trial. For this reason Courts
have required strict compliance with the rules
and
only granted summary judgments in instances where the applicant’s
claim is unanswerable
.
{My Emphasis}



13.2 In the case
of Commercial Bank of Namibia Ltd v Transcontinental Trading
1991 NR 135 at page 143 E-I, Hannah AJ. (as then was) said:



First it is
necessary to consider what it is that a respondent to an application
for summary judgment has to do in order successfully to resist such
an application. In terms of Rule 32 (3) he may either give security
to the plaintiff for any judgment which may be given
or
satisfy the Court by affidavit…that he… has a bona fide
defence to the action
,
and such affidavit shall disclose fully the nature and grounds of the
defence and the material facts relied upon therefor”.







14. Rule 6(5)(d)&
(e) of the High Court Rules provide as follows:



(5) (d) Any
person opposing the grant of an order sought in the notice of motion
shall:




  1. within the time
    stated in the said notice, give applicant notice, in writing, that
    he or she intends to oppose the application, and in such notice
    appoint an address within 8 kilometers of the office of the
    registrar at which he or she will accept notice and service of all
    documents;



  2. within 14 days of
    notifying the applicant of his or her intention to oppose the
    application, deliver his or her answering affidavit, if any,
    together with any relevant documents; and



  3. if he or she
    intends to raise any question of law only he or she shall deliver
    notice of his or her intention to do so, within the time stated in
    the preceding sub-paragraph setting forth such question.








(e) Within 7 days of
the service upon him or her of the affidavit and documents referred
to in subrule (5)(d)(ii) the applicant may deliver a replying
affidavit,
and
the court may in its discretion permit the filing of further
affidavits
.”
{My emphasis}







15 From the
reading of Rule 6(5)(e) it is clear that the ordinary rule is that
three sets of affidavits are allowed, i.e. the supporting affidavits,
the answering affidavits and the replying affidavit and the court may
in its discretion permit the filling of further affidavit. Also see
the South African case of Juntgen T/A Paul Juntgen Real Estate
v Nottbusch
1989 (4) SA 490 (W) where Fleming J said:



Generally a
Court has a discretion, which is inherent to the just performance of
its decision-reaching process, to grant that relief which is
necessary to enable a party to make a full representation of his true
case. Amplification and rectification should be equally accessible in
summary judgment proceedings.”







16 In the case of
Empire Fresh Meat Supply (Pty) Ltd v Ilic 1980 (4) SA
23 (W) Preiss J said:



Rule 32 (3)
(b) requires a defendant who wishes to satisfy the Court by affidavit
to deliver such affidavit before noon on the Court day but one
preceding the day on which the application is to be heard. Although
it was a matter of some doubt initially in this Division as to
whether a Court had power to receive a supplementary affidavit the
position has been put beyond doubt in a series of cases commencing
with such decisions as
Berks
v Birjou Investment Co (Pty) Ltd

1961 (1) SA
225 (W) and
Gani
v Crescent Finance Corporation (Pty) Ltd

1961 (1) Sa
222 (W)”.







Applying the
legal principles to the facts of this case



17 In the present
case the plaintiff issued summons out of this Court claiming an
amount of N$ 51 580-00, the defendant then entered a notice to
defend the action. After the defendant entered a notice to defend the
action, the plaintiff gave notice of his intention to apply for
summary judgment. The defendant opposed the application for summary
judgment and filed an affidavit in support of its opposition to the
application for summary judgment.







18 On the date
(i.e. 23 October 2009) scheduled for the hearing of the application
for summary judgment, this Court order that the matter be postponed
to a date to be arranged with the Registrar. A date was arranged and
the hearing was scheduled to take place on 19 January 2010.







19 As I indicated
in the introduction of this judgment three days prior to the day
scheduled for hearing arguments in respect of the application for
summary judgment the defendant delivered an application to file a
supplementary opposing affidavit. The plaintiff opposes that
application.







20 Mr. Mouton, who
appeared on behalf of the plaintiff, opposed the granting of the
leave on the ground that the defendant did not, in his affidavit,
comply with the requirements of reopening a case. He said:



14 It Is
respectfully submitted that a Defendant who, having had his chance,
wants to add to his case (Opposing Affidavit in Summary Judgment
applications) must more than justify a mere postponement. He must
also, amongst other considerations,
touch
upon the question as to why the evidence was not timeously produced
when he had the opportunity of doing so and also the other
requirements for the re-opening a party’s case.
See:
Juntgen
t/a Paul Juntgen Real Estates v Nottbusch 1989 (4) SA 490



15 The
Applicant/Defendant herein did not touch upon the requirements for
the reopening of a party’s
case and certainly did
not deal with the requirements that the Applicant, for the privilege
of re-opening, must show that he has used proper diligence in
endeavoring to procure the evidence now set out in the proposed
Opposing Affidavit. See : Herbstein & Van Winsen, fourth
Edition, The Civil Practice of the Supreme Court of South Africa page
675”.







21 I have no
difficulty in accepting the legal principles propounded by Mr.
Mouton, but I have a difficulty to apply those principles to the
facts of the present case. My reading of the Juntgen
case is that the dicta quoted by Mr. Mouton only finds
application where a defendant applies for a postponement of the
hearing of a summary judgment application, to enable him or her to
amplify or rectify a defective affidavit. See the following passage
from judgment of Flemming J at page 494 paragraphs F-H:



I have so far
referred to such an application as being one for 'postponement'. That
it is inseparably linked to the obtaining of permission to produce
further evidence becomes apparent therefrom that the granting of the
postponement makes no sense if that permission is refused.
The
process of postponing for the purpose of filing additional affidavits
in any application, accordingly also in a summary judgment
application, really amounts to what in a trial is called a reopening
of the case of the party concerned
.
An analysis of affidavits makes it possible to infer what is in
dispute and in that sense the dispute is defined, but the affidavits
at the same time constitute the presenting of the evidence of a
party. A defendant who, having had his chance, wants to add to his
case must do more than justify a mere postponement. He must also,
amongst other considerations, touch upon the question as to why the
evidence was not timeously produced when he had the opportunity to do
so and the other requirements for reopening a party's case”.
{
My Emphasis}







22 In the present
case the defendant is not asking for a postponement to enable him to
file a supplementary affidavit, he is seeking the indulgence of the
court to file a supplementary affidavit. I endorse the sentiments
(quoted in paragraph 15 of this judgment) of Flemming J, when he said
that Courts have general discretion to allow amplification and
rectification of affidavits in summary judgment proceedings.







23 It is common
cause that the exercise of the discretion must be made judiciously.
In the exercise of the discretion I thus take into consideration:



(a) The
Constitutional injunction contained in Article 12(1)(a) namely that:
In the determination of their civil rights
and obligations or any criminal charges against them, all persons
shall be entitled to a fair
and public hearing by an independent, impartial
and competent Court or Tribunal established by law; and



(b)
T
he purpose and aim of Rule 32 of the High Court rules.







24 In the Juntgen
case (supra) Flemming J articulated (at page 492 G-H) the aim
of the Rule as follows:



The object of
the procedure is to distinguish the man who has no more interest in
the defence of the suit than the delay which it can win for him, from
the party who believes that he is able to ward off the plaintiff's
claim by virtue of facts (which constitute a legal defence) which he
honestly desires to pursue to the point of a decision thereon.”







25 In the case of
Gani v Crescent
Finance Corporation (Pty) Ltd
1961
(1) SA 222 (W), Kuper, J at page 223 G opined that the equivalent of
our Rule 32 ‘
was
introduced in order to enable a plaintiff to obtain judgment in
cases
where a defendant had merely entered appearance for the purpose of
delay”
{My
Emphasis} also
se Gruhn
v M Pupkewitz and Sons (Pty) Ltd
1973
(3) SA 49 (A) at 56G
.







26 I thus proceed
and ask myself the question, whether the defendant will receive a
fair trial if I were to refuse him an opportunity to supplement his
original affidavit? I am of the view that the answer will depend on
the purpose of him seeking the supplementation. If the purpose is to
delay the plaintiff in his claim, then it will be fair to refuse the
indulgence and to refuse the supplementation of the original opposing
affidavit, but if the aim is to demonstrate that he has a
bona
fide
defence to the
plaintiff’s claim then defendant would not have received a fair
trial if I were to deny him the indulgence. See the comments of
Flemming J in the
Juntgen
case (supra)
where he said:



It follows
that, because of the scrutiny of the
bona
fides
of
the defendant in respect of the defence to which he lays claim, a
defendant may find that his affidavit is inadequate. He may have
forgotten to tell his attorney of an important fact or may have
missed the significance thereof. Attorneys, like other humans, make
errors which are called omissions. The attorney's view on what is
adequate may differ from what counsel or the Court thinks. A defence
may develop subsequent to the signing of the affidavit.
It
has all the potential to cause injustice if the Court's discretion to
allow improvement of defective attempts is to be hampered by an
application of the dictum in the
Joubert
case
in any literal meaning thereof.”

{My
Emphasis}











27 In the case of
Berks v Birjou Investment Co (Pty) Ltd 1961 (1) SA 225 (W)
Kuper J said the following:



Sub-rule (3)
[of Rule 32 ] it is provided:
'Upon
the hearing of an application for summary judgment the defendant
may…(c) satisfy the Court by oral evidence of himself or of
any other person who can swear positively to the facts that he has a
bona fide defence to the action . . .
';







and in sub-rule (4)
it is provided:







'No evidence may
be adduced by the plaintiff otherwise than by the affidavit referred
to in sub-rule (2) hereof nor may either party cross-examine any
person who gives evidence viva voce or by affidavit:…provided
that the Court may put to any person who gives oral evidence such
questions as it considers may elucidate what the defence is.'







It is clear
therefore, that the filing of the affidavit by the defendant is not
to be regarded in all cases as being the final step which cannot be
amplified in any way by the defendant
.
It is clear that what was envisaged was that the Court should
ascertain what in effect the defence was”
.
{My Emphasis}







28 In the present
case, I have had the opportunity to look at the supplementary
affidavit sought to be introduced. I am of the view that the
affidavit discloses a defence, the defendant did not ask for
and would not gain any delaying of the plaintiff.







29 It is clear
that an injustice would be caused if defendant is not given leave to
defend as a result of a refusal of the additional affidavit and an
application for summary judgment being an extraordinary remedy, I do
not think that it would be right to close the mouth of the defendant
or to shut the court’s doors and not give him an opportunity to
supplement his affidavit.







30 In the result I
make the following order.



30.1 The defendant
is granted leave to file the supplementary affidavit.



30.2. Costs are to
be cost in the cause.







_____________



UEITELE, AJ







.



ON BEHALF OF
THE PLAINTIFF
: MR C J MOUTON



INSTRUCTED BY:
FRANCOIS ERASMUS & PARTNERS







ON BEHALF OF
THE DEFENDANT
MR. P CI BARNARD



INSTRUCTED BY: VAN
DER MERWE –GREEFF INC