Court name
High Court
Case name
Gaoseb and Another v Standard Bank Namibia Ltd and Others
Media neutral citation
[2011] NAHC 242
Judge
Parker J





CASE NO












Reportable’








SUMMARY








CASE
NO.: A 150/2010













IN
THE HIGH COURT OF NAMIBIA













In
the matter between:








Naftalie
Nathanael Gaoseb and Another v Standard Bank of Namibia Limited and 5
Others








PARKER
J








2011
August 12


_______________________________________________________________________



Practice
-
Judgment by default – Application for rescission of in
terms of rule 44 (1) (a) of the Rules of Court – When granted –
Relying on earlier authorities, Court concluding that judgment was
not erroneously granted as no irregularities have been shown to have
been committed in these proceedings and it was legally competent for
the Court to have made the order – Court confirming earlier
authorities that such judgment was granted not on the basis that the
applicants (defendants) do not have a defence: it was granted on the
basis that the applicants (defendants) have been notified of the
plaintiff’s claim as required by the Rules, that the applicants
(defendants), not having given notice of an intention to defend, are
not defending the matter and that the plaintiff is in terms of the
Rules of Court entitled to the order sought and granted.







Practice
-
Service of process – Service effected by Assistant Deputy
Sheriff by affixing copy of process on the main front gate of the
domicilium citandi et executandi chosen by applicants –
Court finding that that constitutes proper service in terms of rule 4
(1) (a) of the Rules of Court.







Held,
that while ‘deliver’ (and its grammatical derivatives)
may connote handing over the process to a person at the place of
service, ‘leave’ (and its grammatical derivatives)
connotes the opposite; otherwise the provision would be otiose if
‘delivering’ and ‘leaving’ were to carry the
same meaning, particularly where the disjunctive ‘or’,
whose grammatical object is to link alternatives, is used to link
‘delivering’ and ‘leaving’ in the said rule.
Proper service is therefore effected – in the manner of
‘leaving’ – within the meaning of rule 44 (1) (a)
(iv) when the assistant deputy sheriff, for good and bona fide
reason, affixed a copy of the process to be served on the applicants
on the main front gate of the domicilium citandi et executandi.

























































































































































CASE NO.: A 150/2010













IN THE HIGH COURT OF
NAMIBIA













In the matter between:







NAFTALIE
NATHANAEL GAOBEB

…..................................................First
Applicant


JANE
GAOSES

…............................................................................Second
Applicant








and






STANDARD
BANK NAMIBIA LIMITED

…........................................
First
Respondent


DEPUTY
SHERIFF FOR THE
…..................................................Second
Respondent


HIGH
COURT OF NAMIBIA


REGISTRAR
OF DEEDS
….............................................................Third
Respondent


MINISTER
OF JUSTICE
…............................................................Fourth
Respondent


RALPH
RICHERT MOUTON
….........................................................Fifth
Respondent


HANNALIE
DUVENHAGE
…............................................................
Sixth
Respondent













CORAM:
PARKER J








Heard on: 2011 July 18



Delivered on: 2011 August
12



_________________________________________________________________








JUDGMENT



_________________________________________________________________







PARKER
J
: [1] The first applicant, who represents himself, and the
second applicant, who represents herself, in May 2010, launched an
application in which they seek the rescission of the default judgment
granted by the Court against the applicant on 22 January 2010. They
also seek the setting aside of the sale in execution held on 22 April
2010. The first respondent, represented by Mr Obbes, has moved to
reject the application. The other respondents have been cited
because, in my view, they have interests in the outcome of the
application. The applicants are married in community of property.






[2]
The application is brought in terms of rule 44 (1) (a) of the Rules
of Court and the applicants rely on the following three grounds, that
is to say, (a) that the default judgment was (1) ‘erroneously
and improperly obtained on the basis of non-service of court
processes on the applicants herein’ (Ground 1), and (2)
‘erroneously granted on the basis of exaggerated and untrue
allegations of outstanding arrears on my (the first applicant’s)
home loan account at the time when the default judgment was sought
against me (the first applicant)’ (Ground 2), and (b) the
‘resultant auctioning’ of the immovable property in
question is challenged on the basis of Article 16 of the Namibian
Constitution as ‘constituting improper infringement of my (the
first applicant’s) constitutional right to own immovable
property’ (Ground 3). It is to the interpretation and
application of rule 44 (1) (a) of the Rules of Court that I now,
therefore, direct the enquiry; and I shall apply my conclusions
thereanent to the facts as I find them to exist.






[3]
It goes without saying that rule 44 (1) (a), being a rule of the
Court, is procedural in its scope and application; and in that case,
it gives the Court a discretion in its application. And to the
interpretation of rule 44 (1) (a); an order or judgment is
‘erroneously granted’ if there was an irregularity in the
proceedings or if it was not competent for the Court to make the
order or judgment, or if it was not legally competent for the Court
to have made such order or to have given such judgment. (Erasmus,
Superior Court Practice (2000): p B1-308A; and the cases there
cited.)










[4]
In the instant matter, it has not been shown that an irregularity was
committed in the proceedings during which the default judgment was
granted. Was it competent for the Court to have granted judgment by
default? Relying on the authorities, the full-bench of the Court held
in Namib Building Society v Du Plessis 1990 NR 161 at 163C-F;
G that a mortgagee (the plaintiff) can as of right look to the
mortgaged property to satisfy his or her claim, and if the plaintiff
wants property mortgaged to him or her to be declared executable at
once, he or she should claim it in the summons. In the instant case,
the plaintiff did. The Court further held at 164G that the right to
apply for writ of execution is a consequence of the judgment against
the debtor (i.e. the applicants in these proceedings) and the
‘presence or absence of a foreclosure clause … makes no
difference (at 164H).’ In any event, in the instant case, it is
a term of the mortgage bond (i.e. Clause 22.2 thereof) that upon a
breach of the Bond, the Bank (the first respondent) may, inter alia,
institute proceedings for the recovery of all amounts owing to the
Bank and for an order declaring the mortgaged property executable.
Furthermore, a judgment to which a party is procedurally entitled
cannot be considered to have been erroneously granted by reason of
facts of which the judge who granted the judgment, as he was entitled
to do, was unaware (Lodhi 2 Properties Investments CC v Bondev
Developments 2007 (6) SA 87 (SCA at 94. In the present
application proceedings, the applicants allege facts of which the
judge who granted the judgment by default was unaware. Furthermore,
as was held in Lodhi 2 Properties Investments CC supra at 95D,
where a plaintiff –







is
procedurally entitled to judgment in the absence of the defendant the
judgment if granted cannot be said to have been granted erroneously
in the light of a subsequently disclosed defence.
A Court which grants a judgment by default like the judgments we are
presently concerned with, does not grant the judgment on the basis
that the defendant does not have a defence: it grants the judgment on
the basis that the defendant has been notified of the plaintiff’s
claim as required by the Rules, that the defendant, not having given
notice of an intention to defend, is not defending the matter and
that the plaintiff is in terms of the Rules entitled to the order
sought. The existence or non-existence of a defence on the merits
is an irrelevant consideration and, if subsequently disclosed, cannot
transform a validly obtained judgment into an erroneous judgment.








(Italicized for emphasis)






[5]
From the aforegoing, I conclude that it was competent for the Court
to grant the judgment by default; and the judgment was granted not on
the basis that the applicants (defendants) do not have a defence: it
was granted on the basis that the applicants (defendants) have been
notified of the plaintiff’s claim as required by the Rules,
that the applicants (defendants), not having given notice of an
intention to defend, are not defending the matter and that the
plaintiff is in terms of the Rules of Court entitled to the order
sought and granted.






[6]
The aforegoing disposes of the applicants’ Ground 2 and Ground
3, which I reject as baseless.






[7]
From all this, it behoves me to proceed to the next level of the
enquiry; and in that event, the only question that arises for
determination is this: was there proper service of the combined
summons in terms of the Rules? The applicants say there was
‘non-service’ (Ground 1); the first respondent maintains
that there was proper service.






[8]
The rule that has relevance in these proceedings is rule 44 (1) (a)
(iv) which provides that service may be effected, ‘if the
person so to be served has chosen a domicilium citandi, by
delivering or leaving a copy thereof at
the domicilium so chosen.’ (Underlined and italicized
for emphasis) On the papers filed of record, the evidence is clear,
uncontroverted and incontrovertible that the applicants have chosen
domicilium citandi et executandi. The mode of service
allowable in terms of the aforementioned rule is by ‘delivering
or ‘leaving’ a copy of the process to be served at
the domicilium citandi et executandi chosen; in the instant
proceedings by the applicants.






[9]
In my opinion, while ‘deliver’ (and its grammatical
derivatives) may connote handing over the process to a person at the
place of service, ‘leave’ (and its grammatical
derivatives) connotes the opposite; otherwise the provision would be
otiose if ‘delivering’ and ‘leaving’ carry
the same meaning, particularly where the disjunctive ‘or’
whose grammatical object is to link alternatives, is used to link
‘delivering’ and ‘leaving’ in the said rule.
It follows that, in my opinion, proper service was effected –
in the manner of ‘leaving’ – within the meaning of
rule 44 (1) (a) (iv) when assistant deputy sheriff Fourie affixed a
copy of the process to be served on the applicants on the main front
gate of the domicilium citandi et executandi. And, a
fortiori
, Fourie explains – and I am satisfied with the
explanation – why, he effected service of the process by
‘leaving’ a copy thereof at the main gate, as aforesaid.
Fourie states that ‘the main gate to the premises was locked
and access to the premises could not be gained. Nobody was seen on
the premises who could accept service of the documents.’ (See
Return of Service dated 10 November 20.) I am fortified in my
conclusion by the high authority of Herbstein & Van Winsen, The
Civil Practice of the High Courts of South Africa
5th
edn, Vol. 1, pp 351-352, and the cases there cited, that:







This
subrule adopts the well-established practice according to which, if
the defendant has chosen a place as a
domicilium
citandi
, service
there will be good even though the place is a vacant piece of land.
Service at a chosen
domicilium
citandi
will be good
despite the fact that the defendant is known to be resident abroad or
has abandoned the property. The same will apply even if it is
impossible to find the defendant, a member of the household or any
other person who can be regarded as representing the defendant.’






It
follows that Ground 1, too, is rejected; it, too, is also baseless.






[10]
In view of the determination I have made, I do not find it necessary
to deal with the first respondent’s application to strike out
certain matters in the founding affidavit: the determination is
unaffected by the matters sought to be struck out.






[11]
The result is that in my judgment, the applicants have failed to make
out a case for the relief sought in their notice of motion. I
therefore refuse to exercise my discretion in favour of granting the
relief. Whereupon; the application is dismissed with costs; such
costs include costs attendant upon the employment of one instructing
counsel and one instructed counsel.












__________________



PARKER J








COUNSEL ON BEHALF OF
THE FIRST RESPONDENT:



Adv. D Obbes








Instructed by:
Etzold-Duvenhage







ON
BEHALF OF FIRST APPLICANT:
In person






ON
BEHALF OF SECOND APPLICANT:
In person