CASE NO.: I 706/2010
IN THE HIGH COURT OF
In the matter between:
NAMIBIA (PTY) LTD …........................................PLAINTIFF
COMPANY LTD …..................................1ST
CORAM: MILLER, AJ
Heard on: 11 July 2011
Delivered on: 23 November
 On the 8th of March 2010 the respondent, as plaintiff
issued summons against both applicants as defendants. I will refer to
the parties as they are cited in the summons.
 In essence the
plaintiff alleged that that it was the lessee of certain street light
poles in Oshakati in terms of a written lease agreement entered into
between it and the lessor, Oshakati Premier Electric (Pty) Ltd.
Although the plaintiff alleged that the agreement was annexed as
Annexure “POC1”, it was in fact not so annexed and
consequently not served on the defendants. The plaintiff furthermore
alleged that in terms of the agreement it was entitled to install
advertising signs on the street light poles it had leased.
 The plaintiff went on
to allege that it had in pursuance of the agreement erected 200
advertising frames on the leased poles.
 The plaintiff then
alleges that during December 2009, the first defendant, alternatively
the first or second defendant acting jointly unlawfully removed 100
of the advertising frames.
 Consequently the
plaintiff alleges that it became entitled to the following relief:
by the first defendant, alternatively the first and second
defendants of the plaintiff’s property in an undamaged
condition, consisting of 100 advertising frames;
payment by the first defendant of N$253 000-00;
the further alternative, payment by the first and second defendants,
jointly and severally the one paying the other being absolved of
on the aforesaid amount a tempore morae to date of payment;
or alternative relief
by the first defendant of the amount of N$1,430,000-00;
payment by the first and second defendants, jointly and severally,
the one paying the other being absolved, of the amount of
on the aforesaid amount a tempore more to date of payment;
or alternative relief.”
 I pause to mention
that the sum of N$235,000-00 was alleged by the plaintiff to be the
monetary value of the 100 advertising frames. Likewise the sum of
N$1,430,000-00 was alleged to be the loss of advertising revenue
suffered by the plaintiff subsequent upon the removal of the 100
 Neither of the
defendants entered an appearance to defend, whereupon the plaintiff
moved an application for judgment by default before Ndauendapo, J on
30 July 2010. That application was granted.
 The first and second
defendants now apply for an order rescinding the judgment. The
application is premised in the first place on Rule 44 of the Rules of
this Court. In essence the applicants allege that the judgment was
granted in error.
 It is convenient at
this juncture to consider the judgment in the form in which it was
granted. The order made reads as follows:
by the first and second respondents/defendants to pay the plaintiff,
jointly and severally, the one paying the other being absolved, of
the amount of N$253 000.00.
on the aforesaid amount a tempore morae at a rate of 20% per
annum, from date of judgment to date of payment.
or alternative relief.
to the plaintiff by the first and second respondents/defendants
jointly and severally, the one paying the other to be absolved, of
the amount of N$220 000.00.
from the date of this judgment, payment to the plaintiff of the
monthly amount of N$27 500.00 by the first and second
respondents/defendants, jointly and severally, the one paying the
other being absolved, for each and every month and until plaintiff
is able to secure an undertaking from both the
respondents/defendants that the plaintiff’s advertising
boards, once erected in Oshakati again, will not be removed again by
either of the defendants.
a tempore morae on the amounts mentioned in paragraphs a) and
b) at a rate of 20% per annum, from date of judgment to date of
the Respondents/defendants being in default, the Court grants default
judgment for the applicant/plaintiff as claimed, with costs of suit.”
 It is immediately
apparent that the judgment handed down differs in material respects
from the relief claimed in the Particulars of Claim. Paragraph 6 of
the judgment was introduced as part and parcel of the relief claimed
for the first time when the application for default judgment was
moved. At no stage did the plaintiff seek an appropriate amendment to
the particulars of claim.
 It is not
permissible for the plaintiff to go about matters that way. That much
was virtually conceded by Mr. Barnard, who appeared for the plaintiff
before Court. The plaintiff faces other difficulties over and above
 In an affidavit
which accompanied its application for default judgment, the deponent
thereto, a Mr. Mouton states that in relation to Claim 2, the
plaintiff relies on a written agreement concluded between itself and
Patch Communications in terms whereof the plaintiff become entitled
to revenue in the sum of an average of N$27, 500.00 and which revenue
no longer accrues to it. Mr. Mouton alleges that the agreement is
attached to his affidavit as Annexure “D”. The difficulty
is that Annexure “D” is an agreement concluded between
the plaintiff and Oshakati Premier Electric. I suspect that to be the
agreement which the plaintiff failed to attach to its particulars of
claim. That strikes me as a fatal defect.
 I am satisfied that
in the circumstances the defendants have established that the order
granted by Ndauendapo, J was erroneously sought and granted.
 In these
circumstances there is no need for the applicants to establish good
cause as a requirement.
 I accordingly set
aside the default judgment granted by Ndauendapo,J on 30 July 2010.
 The respondent is
ordered to pay the costs of the application.
ON BEHALF OF THE
PLAINTIFF: Mr. Barnard
Francois Erasmus & Partners
ON BEHALF OF 1ST
DEFENDANT: Mr. Obbes
Instructed by: MB
de Klerk & Associates
ON BEHALF OF 2ND
DEFENDANT: Mr. Strydom
Conradie & Damaseb