Court name
High Court
Case name
Kadhila v Makili
Media neutral citation
[2011] NAHC 235
Judge
Damaseb JP

















IN
THE HIGH COURT OF NAMIBIA



CASE NO: CA 14/2011








In the matter between:








GIDEON LISIAS KADHILA
….....................................................................APPELLANT



and



NDINELAGO MAKILI
…...........................................................................RESPONDENT













CORAM: DAMASEB,
JP








HEARD ON: 18 JULY 2011



DELIVERED ON: 4 AUGUST
2011








APPEAL JUDGEMENT:








DAMASEB, JP:
[1] This is a civil appeal against the judgment of the Ondangwa
Magistrates court, granted on 03 September 2010 refusing an
application for the condonation for the late filing of a rescission
application.
The
underlying dispute involved the plaintiff in the main action’s
(respondent in this appeal)
Mahangu
being allegedly eaten by
the donkeys of the defendant in the main action (appellant in this
appeal). The plaintiff in the main action claimed,
as
against the present appellant,
the
amount of N$ 25 000.00 for the damages allegedly suffered. The issue
raised crisply in this appeal is whether it was competent for the
clerk of court to grant default judgment in the circumstances. He
could only grant judgment in respect of a liquidated claim and not if
the cause of action related to an unliquidated claim. The appellant
maintains that it was indeed an unliquidated claim.








What is a liquidated
claim?



[2] A debt or liquidated
demand is a claim ‘capable of speedy and prompt ascertainment.’
1
In Morley
v Pederson
1933
TPD 304, the word ‘debt’ was held not to include an
unliquidated and disputed claim for damages. As will soon become
apparent from a consideration of the
bona
fides
of
the appellant’s defence, the appellant disputes that he owns
any donkeys at all. In any event, the plaintiff in the main action
was required to prove his damages as they are not in the nature of a
‘debt’ or liquidated demand.
The
appellant,
in
his application for rescission,
states
that the amount of N$25 000 is exorbitant in any event. For that
reason, I am satisfied that the claim as framed, was in the nature of
an unliquidated demand requiring proof by the plaintiff in the main
action.








[3] It follows that
default judgement in an unliquidated claim was granted against the
appellant on the 17 March 2008 by the clerk of the Ondangwa
Magistrate Court due to non-appearance of the appellant. This was
followed by an application for rescission of judgement filed on 29
August 2008 and set down for 6 February 2009. The matter was struck
from the roll due to non-appearance of the appellant or his legal
practitioner. The appellant thereafter filed a further application to
rescind the 17 March 2008 default judgment, alongside an application
for condonation. That application was set down for 27 November 2009
but was again struck from the roll; again due to the non-appearance
of the defendant’s legal practitioner.








[4] The appellant then
sought the services of another legal practitioner who then filed an
application for condonation for the late filing and rescission of
judgement which was heard and dismissed on 3 September 2010. The
application for condonation was refused. It is against that refusal
that the appellant now appeals to the High Court. The appeal is
unopposed.








[5] In the application
for rescission, the appellant alleges that the default judgment was
granted without an affidavit from the respondent setting out the
extent and nature of the claim as required by the rules of the
magistrate’s court, considering that this is an unliquidated
claim.








[6] The appellant also
alleged non-compliance with rule 12(4) of the Magistrate’
Courts rules, in that the clerk of the court did not refer the
request for judgment for an unliquidated amount to the court for the
claim to be liquidated and for appropriate judgment, but had rather
entered the default judgement himself.



Rule 12(4) of the Rules
of the Magistrate’s Court state:








The clerk of
the court shall refer to the court any request for judgment for an
unliquidated amount and the Plaintiff shall furnish to the court
evidence either oral or by affidavit of the nature and extent of the
claim. The court shall thereupon assess the amount recoverable by the
Plaintiff and shall give an appropriate judgment.”








The appellant therefore
brought the rescission application under rule 49(11) of the
Magistrates Courts Rules which allows an application for a rescission
of judgement on the ground that it is void ab origine.








[7] In the heads of
arguments filed on behalf of the appellant, it has been argued that
although the respondent is not required to prove its cause of action,
when proceeding on default basis, he/she is required to identify the
claim and show whether it is for specific performance or for damages.
The court may therefore require oral evidence failing which an
affidavit should be used to set out the extent and nature of the
claim. It has been held that it is a desirable practice to produce
affidavit evidence in order for the deponent to reveal the source of
such information and swear that he believes such information to be
true, furnishing grounds for his belief: Galp and Tensley NO
1966(4)SA 555).








[8] For all of the above
reasons, I am satisfied that the default judgment granted on 17 March
2008 was void ab origine.



[9] Section 36 of the
Magistrates Courts Act 32 of 1944 empowers the court to rescind or
vary any judgment granted by it which was void ab origine.
Such application may be made not later than one year after the
appellant first had knowledge of such voidness. However, the court
may condone the non-compliance of the rules and time periods if a
reasonable explanation for the non-compliance is offered; and if it
is shown that there is a bona fide defence which carries some
prospects of success. The onus is thus on the appellant to
furnish an explanation for his default, sufficiently full to enable
the court to understand how it really came about. Silber v Ozen
Wholesalers
1954(2) SA 345.








[10] The appellant in his
application for condonation attributes, with justification, his
non-compliance with the rules of court to the conduct of his former
legal practitioner of record who failed to show up at court resulting
in the case being struck two times. In his affidavit in support of
the application for rescission, he was also able to demonstrate that
he misunderstood the duties of Legal Shield and was, at all times,
under the impression that his matter was being handled by Legal
Shield when they were under no obligation as insurer to appear at
court on his behalf. I am satisfied that there was a reasonable and
satisfactory explanation for his failure to prosecute the
applications for rescission timeously.








[11] The appellant’s
endeavour to obtain the services of another legal practitioner when
he was failed by the former ones is an indication that he was
determined at all times to defend the claim against him.



[12] The judgment sought
to be set aside was clearly void ab origine and he had a more
than reasonable prospect of it being set aside.








[13] I am therefore
satisfied that (i) that the appellant established good cause for the
default; (ii) that the appellant established a reasonable and bona
fide
defence. In not so finding and not granting condonation, the
magistrate erred. The appeal must therefore succeed.








[14] Accordingly, the
magistrate’s refusal of the condonation application for the
late filling of the rescission of judgment is hereby set aside and is
substituted as follows:








i)
The condonation application is allowed.



ii) The default judgement
granted on 17 March 2008 is hereby rescinded and the appellant
granted leave to defend the action in accordance with the rules of
the Magistrate’s Court.”


















_____________________


DAMASEB,
JP








ON BEHALF OF THE
APPELLANT:
Mr N Tjombe








INSTRUCTED BY: NORMAN
TJOMBE LAW FIRM













ON BEHALF OF THE
RESPONDENT:
No Appearance














1Fattis
Engineering Co (Pty) Ltd v Vendick Spares
(Pty)
Ltd 1962(1) SA 736 (T)





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