Court name
High Court
Case name
Katjiua and Another v Swabou Investments (Pty) Ltd
Media neutral citation
[2011] NAHC 291
Judge
Parker J





CASE NO












Not
Reportable’








CASE NO.: I 767/2010








IN THE HIGH COURT OF
NAMIBIA








In the matter between:








FESTUS KATJIUA
….............................................................................First
Applicant



EBEN KATJIUA
…............................................................................
Second
Applicant








and








SWABOU INVESTMENTS
(PTY) LTD
…...................................................
Respondent








CORAM:
PARKER J








Heard on: 2011 September
27



Delivered on: 2011
September 30



_________________________________________________________________








JUDGMENT



_________________________________________________________________


PARKER
J
: [1] The applicants who appear in person brought
application by Notice of Motion, filed on 22 February 2011, in which
they seek rescission of the default judgment granted on 10 May 2010,
that is, some nine months after pronouncement of the judgment, in the
following terms:







  1. Declaring
    the default judgment on 10 May 2010 in this matter as void,
    alternatively setting aside the said judgment in terms of Rule
    44(1)(b).


  2. Further
    and/or alternative relief.







[2]
Thus, the application is based on two alternative grounds, namely,
(1) a declaration that the default judgment granted on 10 May 2010
‘as void’ or (2) setting aside the said judgment in terms
of Rule 44(1)(b). In support of the application there is filed the
founding affidavit of the second applicant. The respondent,
represented by Mr Schickerling, has moved to reject the application.






[3]
At the commencement of the hearing of this application, the second
applicant informed the Court that the first applicant was indisposed
and, according to the second applicant, the first applicant had gone
to seek medical attention. There was no medical certificate to that
effect placed before the Court. I did not believe the second
respondent. She was playing the Court for a fool with such mendacity.
At the initial case management conference held on 1 June 2011, I
asked the second applicant why her husband, the first applicant, was
not in court. The second applicant’s response was that the
first applicant was at work and ‘he was asking from work for
permission to come to attend but they say he cannot’. At the
hearing of the present application I asked the second applicant what
she did for a living. Her response was that she was just at home –
as a housewife. I also asked the second applicant what employment the
first applicant was engaged in. Her response was that the first
applicant, too, was ‘just at home’ – not employed
anywhere. I did not, therefore, as I have said previously, believe
that the second applicant told the Court the truth as to why the
first applicant failed to attend court
.






[4]
In the face of such unabashed and dishonourable mendacity and deceit
played to the Court by the second applicant, I decided there was no
good reason why the hearing should not proceed. The applicants, as I
saw it, were engaged in a disingenuous game of trying to delay the
hearing of their application, much to the prejudice of the
respondent. Consequently, the hearing proceeded, and both the second
applicant and Mr Schickerling made submissions. After the hearing I
made the following order:







(1)
That the application is hereby dismissed with costs; costs to include
costs occasioned by the employment of one instructing counsel and one
instructed counsel.








  1. That
    reasons therefor to follow in due course.








And
I said then that the reasons therefor would follow in due course; and
the reasons now follow.’






[5]
In determining the application, I must consider both aspects of the
relief sought in prayer 1 of the Notice of Motion, albeit they are
couched as alternatives.






[6]
As to the declaratory relief; I rehearse what I said in Anna
Nekwaya and Another v Simon Nekwaya and Another
Case No.
A262/2008 (judgment delivered on 17 February 2010) (Unreported) at
paras 24 and 25:







[24]
The power of this Court to grant declaratory orders is granted by s.
16 of the High Court Act, 1990 (Act No. 16 of 1990) (
Jacob
Alexander v Minister of Home Affairs and Immigration and Others

Case No. A155/2009 (judgment on 9 June 2009 (Unreported) at p. 4).
Section 16 provides:








(d)
… (the High Court) in its discretion, and at the instance of
any interested person, (has the power) to enquire into and determine
any existing, future or contingent right or obligation,
notwithstanding that such person cannot claim any relief
consequential upon the determination.








[25]
On the interpretation and application of s. 16(d) of the High Court
Act, 1990, I stated as follows in Jacob Alexander v Minister of
Home Affairs and Others
supra at p. 4:








Interpreting
and applying a similar provision, which contains identical words as
the Namibian provision quoted above, in s. 19(1)(a) of South Africa’s
Supreme Court Act, 1959 (Act No. 59 of 1959) in
Government
of the Self-Governing Territory of Kwazulu v Mahlangu
1994
(1) SA 626 (T), Eloff, JP stated at 634B, ‘The important
element in this section is that the power of the Court is limited to
a question concerning a right. The nature and scope of the right
might be inquired into, but in the absence of proof of such a right,
or at least
a
contention that there is such a right
,
the Court has no jurisdiction.’ (Emphasis added)’






[7]
Relying on the authority of Government of the Self-Governing
Territory of Kwazulu v Mahlangu
1994 (1) SA 626 (T) I stated in
Jacob Alexander v Minister of Home Affairs and Immigration and
Others
supra that the important element in s. 16 of Act No 16 of
1990 is that the power of the Court is limited to a question
concerning a right. In the instant case, the applicants have not
offered one iota of proof of any right or at least a contention that
there is such a right. That being the case upon the high authority of
Eloff JP in Mahlangu supra, this Court has no jurisdiction to
grant the relief of declaration sought by the applicants.
Accordingly, the application as respects declaration fails.






[8]
I now proceed to consider the relief based on rule 44(1)(b) of the
Rules which is that –







44.
(1) 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 –








(b)
an order or judgment in which there is an ambiguity, or a patent
error or omission, but only to the extent of such ambiguity, error or
omission; …’






[9]
In these proceedings the Notice of Motion is absolutely clear that
the relief sought is based on rule 44(1)(b); and so it is only in
respect of that rule that I must direct the determination of the
present proceedings application, as far as the rule-based grounds are
concerned. In application proceedings where there are a number of
grounds in terms of the Rules on which the applicant may base his or
her application, and the applicant settles on one rule-based ground,
as a matter of law, it is not up to the Court to undertake a fishing
expedition to search for other rule-based grounds and decide ex
mero motu
that a particular rule-based ground or grounds –
not taken up by the applicant in his or her papers – is or are
available to the applicant and then determine the application on the
basis of that rule-based ground or those rule-based grounds. Such
approach would be unfair, unjust and, indeed, wrong. Keeping these
reasoning and conclusions in view, I proceed to determine the present
application as to the aforementioned alternative relief in prayer 1
of the Notice of Motion based on rule 44(1)(b) of the Rules only, as
far as rule-based grounds are concerned.






[10]
An ambiguity or a patent error or omission have been described as an
ambiguity or an error or omission as a result of which the judgment
granted does not reflect the intention of the judicial officer
pronouncing the judgment; and the ambiguous language or the patent
error or the omission is attributable to the court itself (Erasmus et
al
, Superior Court Practice, p. B1-310, and the cases
there cited). The applicants have not pointed out to the Court what
ambiguity, patent error or omission that is attributable to the Court
exists in the judgment granted. It follows that in my judgement, the
alternative relief sought in prayer 1, too fails.






[11]
But that is not the end of the matter. Rule 44(1) gives the Court the
discretion to consider other grounds, but, as I read the rule, those
grounds should not be rule-based under paras (a), (b) and (c) of
subrule (1) of Rule 44. In this regard, in his submission, Mr
Schickerling drew the Court’s attention to the common law
grounds; and I accept Mr Schickerling’s submission that as
respects the common law grounds the Court’s discretionary power
is rooted in considerations of justice and fairness, having regard to
all the facts and circumstances of the particular case. In this
regard, the requirements that an application for rescission of
default judgment must satisfy are, according to the Supreme Court
(per Strydom CJ) in Leweis v Sampoio 2000 NR 186 at
191G-H, that: the applicant must give a reasonable explanation for
his or her default; the application must be made bona fides; and the
applicant must show that he or she has a bona fide defence to the
plaintiff’s claim. And furthermore, the application ought to be
made within a reasonable time after such judgment is pronounced
(Firestone South Africa (Pty) Ltd v Genticuro AG 1977
(4) SA 298 (A)). Thus, the onus is on the applicant to satisfy the
Court, among other considerations of justice and fairness, as Mr
Schickerling submitted, that there was some reasonably satisfactory
explanation why the judgment was allowed to go by default
(Grüttemeyer N.O v General Diagnostic Imaging 1991 NR 441
at 448I-J, approving De Wet and Others v Western Bank Ltd 1979
(2) SA 1031 (A) at 1042H), and Frans Murangi v Government of the
Republic of Namibia
Case No. I 2140/2005 (Unreported) at para 4,
relying on Leweis v Sampoio supra).






[12]
I shall now test these common law requirements against the facts of
the present case. The default judgment was granted on 10 May 2010, as
I have said more than once; but the present application was filed
almost nine months thereafter. Such delay is not reasonable on any
pan of scale; and what is more, no explanation was placed before the
Court for such unreasonable delay. And more important; the applicant
has also not given any reasonable explanation as to why judgment was
allowed to go by default. For these reasons, I find that it would not
be just or fair to exercise my discretion in favour of granting the
relief sought. Consequently, on common law grounds, too, the
application fails.






[13]
The respondent raises a point in limine in terms of rule 62(4)
which is primarily procedural. In the nature of the application and
seeing that the application is singularly lacking in merit, as I have
demonstrated, I decided that it is in the interest of justice that I
overlook the procedural preliminary objection and deal with the
merit; as I have done. And having dealt with the merit, the order set
out above was made.
















__________________



PARKER J























ON BEHALF OF THE
APPLICANTS:
In Person


















COUNSEL ON BEHALF OF
THE RESPONDENT:
Adv. J Schickerling








Instructed by: Van
der Merwe-Greeff Inc.