Court name
High Court
Case name
Guimares v Volkov
Media neutral citation
[2011] NAHC 358
Judge
Shivute J

















REPUBLIC OF NAMIBIA



CASE NO: A 11/2001







IN THE HIGH COURT OF
NAMIBIA


In
the matter between:







ABEL P A GUIMARAES
…..............................................................................APPLICANT






And






VICTOR
VOLKOV
…....................................................................................RESPONDENT







CORAM: SHIVUTE, JP



Heard on: 31 August 2001



Delivered on: 13 December
2011



______________________________________________________________________



JUDGMENT



______________________________________________________________________



SHIVUTE, JP:



[1] The respondent
instituted action against the defendant on the 03 of June 1997 by way
of simple summons for the amount of US$60 000.00, alternatively, the
equivalent thereof in Namibian dollars. The amount owed was as a
result of a business venture between the respondent and the applicant
whereby the latter sold goods belonging to the former in Angola and
made a profit of 12 billion Kwanza, being approximately US$ 60
000.00. The action is based on a liquid document in the form of an
Acknowledgment of Debt over the signature of the applicant, dated 28
April 1997.



[2] The applicant filed
his notice of intention to defend on 5 May 1997, where after the
respondent filed his declaration in terms of rule 20 of the Rules of
Court. The declaration states that the amount of US$60 000.00 was due
and payable and that the applicant undertook to raise the required
amount to settle his indebtedness to the respondent not later than
June 1997, alternatively within a reasonable time. The applicant
deposed to the founding affidavit dated 9
th
March 1999 wherein he
states that he had a
bona
fide
defence
to the respondent’s claim and that the appearance to defend is
not for purposes of delay.
1



[3] Although the
applicant acknowledged his indebtedness to the respondent in his plea
filed of record, it is maintained that such indebtedness was subject
to the fulfillment of the terms as contained in the Acknowledgment of
Debt. The terms read as follows:



However, due to financial
constraints, payments of this debt could not be affected in a timely
manner. Therefore, as the owner of a flat in Lisbon, Portugal, I
herein undertake and bind myself forever that I shall forthwith raise
the required amount to settle this debt either by selling the flat or
to secure a loan through a second mortgage. I declare that this flat
is free of any encumbrance. I plan to travel to Lisbon at the end of
May and hope to finalise this transaction not later than end of June
1997.’








[4] On applicant’s
version, repayment of the debt was to be sourced from the sale of the
flat owned by the applicant or from a loan to be obtained against the
registration of a second mortgage bond over the said flat, with the
effect that applicant’s payment obligation would be suspended
and the amount of US$60 000.00 would become due and payable only
after the occurrence of either of those events. The applicant
submitted that numerous steps had been taken to ensure the speedy
recovery of the money through the sale of the flat but such could not
be effected due to circumstances beyond his control and additionally
that a second mortgage bond could not be secured since banking
institutions in Portugal required one to be a Portuguese citizen,
which the applicant was not. In any event, so the applicant
maintained, the respondent was not entitled to payment at the stage
of the issue of the summons.



[5] Evidence before Court
indicates that an amount of US$25 000.00 had been paid to the
respondent by way of bank transfer from Lisbon to the respondent’s
bank account held with a bank in Independence Avenue, Windhoek on 31
July 1997 and it is the applicant’s position that the debt had
been substantially reduced. The applicant further denied that the
balance or any other amount was due and payable since the alleged
suspensive conditions of the Acknowledgement of Debt had not been
fulfilled and the summons were issued prematurely. It was his further
contention that the Acknowledgement of Debt relied on by the
respondent for his cause of action did not meet the requirements
necessary to sustain an action.



[6] The respondent chose
not to proceed with the notice of application for summary judgment
and afforded the applicant the opportunity to prove and defend his
case on 3 December 2000. Default judgment was granted against the
applicant on 3 February 2000 in the absence of the applicant and a
writ of execution was issued and served on the applicant on 23 May
2000 for the amount of US$60 000.00. The applicant now applies for
the rescission of the default judgment.








Issues to be decided



Application to strike
out



[7] The respondent has
filed Notice to strike out certain matter that is contended to be
either hearsay evidence or new matter contained in the applicant’s
founding affidavit. The allegations that are sought to be struck on
the basis of alleged hearsay are to be found in paragraphs 27, 37 and
38 of the affidavit wherein the following was respectively stated:



27. When I left for Angola, I
anticipated to return to the Republic of Namibia towards the end of
the year 1999. When I left for the Republic of Angola on 11 March
1999 I did not foresee that this matter would be set down on a date
within a year from 11 March 1999 because
I
was advised which advice I verily believed to be true and correct
that the court roll is so overloaded and when application is made for
a court date, a date is not easily obtained within one year from when
application is made therefor.



37. I was advised that Mr. Victor Bok,
as a result of my absence from Namibia and my presence in Angola
where communication is in fact non-existent let alone bad, could not
reach me by telephone or otherwise and consequently, could not inform
me as to the state of affairs pertaining to this case. Mr. Bok then
considered it wise to withdraw as attorney of record where after the
matter was enrolled for hearing on 3 February 2000…



38. In the premises I respectfully
submit that I was not in willful default for not having attended the
hearing on 8 February 2000 because I was not aware of such date nor,
on the advice of my legal practitioner of record, did I anticipate
that this matter would have been heard at any time within a year
after pleadings had closed and
lites contestatio had
set in.’



[8] It was argued on
behalf of the respondent that the highlighted portions of paragraph
27 and 38 (the impugned statements) as well as the entire paragraph
37 constituted inadmissible hearsay evidence in that there was no
confirmatory affidavit from the applicant’s legal practitioner,
Mr. Bock, who is apparently the source of the advice relied on by the
applicant, and no explanation had been offered why Mr. Bock’s
affidavit could not be filed together with founding papers. Mr. Bock
filed what purports to be a confirmatory affidavit only in reply and
after notice had been given that application would be made to strike
out the impugned sentences.
Consequently, the
respondent could not have an opportunity to respond to that
affidavit.



[9] Rule 6(15) of the
Rules of Court provides that on application the Court can order to be
struck out from any affidavit any matter which is scandalous,
vexatious or irrelevant but that such matter shall not be struck out
unless the Court is satisfied that the applicant will be prejudiced
in his case if such matter were allowed to remain. The Rule concerned
does not refer to hearsay statements in affidavits. Such statements
can be struck out irrespective of whether there is prejudice or not.
2
There was clearly no
affidavit by Mr. Bock filed together with the founding papers to
confirm the content of the founding affidavit by the applicant that
the court roll was overloaded and that trial dates were not easily
obtainable within one year from the application thereof. No
explanation was offered why a confirmatory affidavit was not filed at
the time the application was brought. It does not seem to me
therefore to be permissible on the facts of this case to purport to
confirm the contents of the applicant’s founding affidavit in
replying affidavit. This not being an urgent application for interim
relief, the applicant cannot cure the defect relating to hearsay in
reply. It follows that the ‘confirmatory affidavit’ by
Mr. Bok is inadmissible. It follows too that the impugned statements
(in paragraphs 27 and 38) as well as the entire paragraph 37 of the
applicant’s founding affidavit stand to be struck as being
hearsay.



[10] The next paragraphs
sought to be struck out are 18.1 and 19.4 of the applicant’s
replying affidavit. In paragraph 18.1, the applicant sought to
counter the allegation in the respondent’s answering affidavit
that reference to the advice given by Mr Bok detailed in paragraph 37
of the applicant’s founding affidavit (as quoted above) was
hearsay, by simply stating: ‘I refer to the confirmatory
affidavit of Mr. Bock attached hereto.’ I have already found
that the affidavit deposed to by Mr Bok is inadmissible and as such
cannot assist the applicant to overcome the challenge. This paragraph
also falls to be struck as being hearsay.



[11] Paragraph 19.4 of
the applicant’s replying affidavit is sought to be struck for
allegedly constituting new matter. The paragraph reads as follows:



19.4 I state that the amount of
U$35 000.00 although due, is not yet payable because the suspensive
conditions referred to in the ‘Acknowledgement of Debt’
have not yet been fulfilled and as a consequence the amount of U$35
000.00 is not yet payable. For this reason I have not tendered such
an amount and I am still of the opinion that I am entitled to pay
such an amount in future when the conditions precedent had
materialized.’



The above statement
appears to be a reaction to what was stated in paragraph 19.5 of the
respondent’s opposing affidavit as follows:



19.5 Applicant while admitting
to be indebted to me in the amount of US$35 000.00 fails to tender
payment of this amount without disclosing any defence thereto other
than that the summons was issued prematurely in 1997. Applicant does
not say that the amount is still not due and payable but relies on
allegations that default judgment could not have been entered based
on the Acknowledgement of Debt.’



[12] The real question is
whether what was stated in paragraph 19.4 constitutes new evidence.
New evidence can be said to be present if the respondent will be
required to plead and to bring new evidence in response thereto. The
allegation that the US$35 000.00 was not due and payable then as the
conditions were not fulfilled was made in the applicant’s
founding affidavit. In paragraph 9 the applicant stated inter alia
that he was required to pay the amount of US$60 000 ‘once I
have sold my flat in Portugal alternatively once I have secured a
second mortgage bond over and/or in respect of such property in
Portugal.’ In paragraph 11 thereof, the applicant points out
that he had ‘hoped’ to have the flat sold or to have
secured a second mortgage bond over such property not later than June
1997 and only thereafter that he would have been in a position to pay
the claimed amount to the respondent. In paragraph 14, he alleges
among other things, that the respondent had instituted summons
prematurely. It is trite that the purpose of a replying affidavit is
to put up evidence which serves to refute the case advanced by the
respondent in the answering affidavit. As already mentioned, the
impugned statement in paragraph 19.4 of the applicant’s
replying affidavit is a direct refutation of the allegation made in
paragraph 19.5 of the respondent’s answering affidavit. For all
these reasons, I am not persuaded that paragraph 19.4 of the
applicant’s affidavit constitutes new matter and the
application to strike out this paragraph must fail.



[13] When the matter was
heard in court, it was submitted, based on the allegations made in
the applicant’s founding affidavit that the applicant was not
in the country by the time default judgment was granted. In
amplification of the reasons for his absence, the applicant stated
that that he had gone to Angola to attend to his son who had a
medical condition. His son later died as a result of an unsuccessful
heart operation in Italy. The applicant subsequently had to travel to
Italy to attend to the burial of his late son. All these, so the
applicant alleges, kept him away from Namibia for a considerable
period of time, hence the default judgment against him.



[14] As previously
mentioned, the applicant further denied his indebtedness to the
respondent in the amount of US$60 000.00 and stated that the
respondent had been well aware at the time the default judgment was
granted that he was only entitled to US$35 000.00 and furthermore
that the balance would be paid subject to the conditions in the
Acknowledgement of Debt which, at that time, had not been fulfilled.
It was thus submitted that the default judgment was erroneously
granted in the applicant’s absence.








[15] It was argued on
behalf of the respondent that the applicant did not have a bona
fide
defence and that his absence was due to his own negligence.
The respondent further contended that the Acknowledgment of Debt only
referred to ‘steps that were intended’ to liquidate the
debt but no extension of time was granted. The respondent denied that
he had misled the court regarding certain allegations contained in
the declaration or that the summons were prematurely issued. The
respondent maintained that the Acknowledgment of Debt stated that the
debt was ‘now due and payable’ and was therefore not
subject to any condition. In addition, the respondent stated in his
heads of argument that the application was not made bona fide
but made with the intention to further delay respondent’s claim
which was already due and that failure from the applicant to state
the current position with regard to the sale of or mortgage over the
flat was an indication of such purposeful delay.



[16] The respondent
acknowledged the payment of the U$25 000.00 but stated that that
amount was incurred as a result of a transaction in respect of which
the applicant had signed a ‘guarantee of payment’ of
US$28 000.00 for consignment of stock which the applicant had
allegedly delivered to a certain Joseda da Silva of Lubago, Angola,
and had nothing to do with the US$60 000.00 owed. The US$25 000.00
was accepted in full and final settlement of the guarantee. The
respondent further states that no exception was lodged against the
declaration as regards its enforceability and that the liquid
document was sufficient enough to sustain a cause of action, hence
the default judgment based on this Acknowledgement of Debt. The
respondent therefore submitted that the applicant did not have a bona
fide
defence and no prospect of success existed for the
rescission of judgment.








Was rescission
application brought in terms of the rule or common law?



[17] It was submitted on
behalf of the respondent that the judgment granted against applicant
was not a default judgment as contemplated in rule 31(2)(b) and the
remedy provided by that rule is not available, unless under common
law. This contention appears to be premised on the fact that the
applicant nowhere in his affidavit indicated that the application was
brought in terms of the rule or under common law. It was, however,
argued by counsel for the applicant that the application was brought
in terms of rule 44(1)(a) of the Rules of Court on the grounds that
it was erroneously sought and granted in his absence.



[18] In so far as it is
relevant to the facts in issue, Rule 44(1)(a) provides as follows:



(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 –




  1. an order or judgment erroneously
    sought or erroneously granted in the absence of any party affected
    thereby;






  2. …’









The difference between
the application brought under the common law and the one brought
pursuant to rule 44(1)(a) (the Rule) is that under common law, an
applicant is required to establish ‘good cause’ or
‘sufficient cause’ for the rescission of the judgment
granted in his or her absence in the sense of an explanation for his
default and
bona
fide
defence
while in the latter case ‘good cause’ need not be shown.
3



[19] On examination of
the papers filed on behalf of the applicant to determine whether the
application is brought in terms of the rule or under common law,
paragraph 27 of the applicant’s heads of argument reads:



It has been submitted that,
having regard to what has been set out hereinbefore, the judgment by
default granted against the applicant was consequently erroneously
sought and erroneously granted.’








The submission is made
under the heading ‘ad defence of a judgment erroneously
sought and erroneously granted
’, which appears to be an
indication that the applicant relied on rule 41(1)(a) for the
rescission of judgment. Thus, in this case, the applicant is not
required to show ‘good cause’ for the rescission.



[20] It seems to me that
the applicant had relied both on rule 44(1)(a) and on common law.
Although clear language has not been used, the allegations and
content of the heads of argument make this clear. Not only did
counsel for the applicant argue on the basis of rule 44(1)(a) but
also went on the merits in an effort to explain the default of the
applicant and his defence or prospect of success. He cited the rule
both in the written heads as well as in oral argument. As was pointed
out by Jafta J in
Mutebwa
v Mutebwa
4
at paragraph [12], the
fact that an application for rescission is brought in terms of one
rule does not mean that it cannot be entertained pursuant to another
rule or under common law provided, of course, that the requirements
of each of the procedures are met. The court is therefore persuaded
that the applicant had relied on both the rule and common law for the
rescission of judgment and what remains to be determined is whether
the requirements have been met or not.



Has the applicant
shown that the judgment was erroneously sought or granted in his
absence?



[21] The next issue to be
determined is whether the default judgment was erroneously sought or
granted. Submissions on behalf of the respondent indicate that an
order is erroneously granted only if there is an irregularity in the
proceedings or if it not legally competent for a court to have made
such an order. It is further the respondent’s contention that
the summons were valid enough to sustain a cause of action, hence the
default judgment. The principle of fair trial as guaranteed by the
Namibian constitution entails that an applicant whose rights will be
affected by a judgment or order must be given an opportunity to
defend his or her rights provided of course that in the case of a
default judgment, he or she has satisfied the requirements for
rescission of judgment. An order or judgment that was erroneously
sought or granted in the absence of any party affected by it should
be rescinded or varied without further enquiries. See the South
African cases of
De
Sousa v Kerr
5;
Topol
and Others v L S Group Management Services (Pty) Ltd
6.
It was
stated in
Nyingwa
v Moolman N.O
7
that a judgment can be
said to have been erroneously granted if there existed, at the time
of its issue, a fact of which the Judge was unaware, which would have
precluded the granting of the judgment and which would have induced
the Judge, if he or she had been aware of it, not to grant the
judgment. In
Bakeoven
Ltd v G J Howes (Pty) Ltd
8,
Erasmus J held at 471F, that in deciding whether a judgment was
‘erroneously granted’, a Court is, like a Court of
appeal, confined to the record of proceedings. The learned Judge went
on to observe at 472H that unless an applicant for rescission could
prove an error or irregularity appearing on the record of
proceedings, the requirements of the Rule cannot be said to have been
satisfied and rescission cannot therefore be granted. On the
contrary, in the case of
Stander
and Another v ABSA Bank
9,
it was held at 882E-G as follows in reference to the phrase ‘in
the absence of any party affected thereby’ in the rule:



It seems to me that the very
reference to ‘the absence of any party affected’ is an
indication that what was intended was that such party,
who
was not present when the order or judgment was granted, and who was
therefore not in a position to place facts before the Court which
would have or could have persuaded it not to grant such order or
judgment,
is afforded the
opportunity to approach the Court in order to have such order or
judgment rescinded or varied on the basis of facts, of which the
Court would initially have been unaware, which would justify this
being done. Furthermore the Rule is not restricted to cases of an
order or judgment erroneously granted, but also to an order or
judgment erroneously sought. It is difficult to conceive of
circumstances where a Court would be able to conclude that an order
or judgment was erroneously sought if no additional facts, indicating
that this is so, were placed before the Court.’ (Emphasis
added)








[22] The approach in the
stander case has been applied in recent cases, for example,
Jafta, J in Mutebwa v Mutebwa (supra), while agreeing
with Erasmus J’s dictum in Bakeoven (supra)
that the error should appear on the record, observed that such a
requirement applied only in cases where the Court acts mero motu
or on the basis of an oral application made from the Bar for
rescission or variation of the order. For in those circumstances, so
the learned Judge reasoned, the Court would have had before it the
record of the proceedings only. The learned Judge continued to remark
as follows in paragraph [20]:



The same interpretation cannot,
in my respectful view, apply to cases where the Court is called upon
to act on the basis of a written application by a party whose rights
are affected by an order granted in its absence. In the latter
instance the Court would have before it not only the record of the
proceedings but also facts set out in the affidavits filed of record.
Such facts cannot simply be ignored and it is not irregular to adopt
such a procedure in seeking rescission. In fact, it might be
necessary to do so in cases such as the present, where no error could
be picked up ex facie the record itself… It is not a
requirement of the Rule that the error appear on the record before
rescission can be granted.’








[23] I find the
approaches in Stander and Another v ABSA Bank and Mutebwa v
Mutebwa
to be sound and persuasive. I will accordingly follow
them. In the consideration of the application for rescission, a court
would therefore be entitled to have regard not only to the record of
the proceedings of the court that had granted the impugned judgment
or order, but also to those facts set out in the affidavit relating
to the application for rescission.



[24] Applying these
principles to the facts of present case, it is not disputed that the
default judgment was granted in the absence of the applicant. It was
submitted on behalf of the respondent that the applicant had been
negligent at his own peril in not keeping in touch with his legal
practitioners with full knowledge of the pending action. It is trite
law that a litigant is under an obligation to keep in touch with his
or her legal practitioner and cannot simply leave matters in the
hands of the lawyer without enquiring on progress. It is also a
well-known principle of our law that there is a limit beyond which a
litigant cannot escape the consequences of his or her legal
practitioner’s remissness. However, this principle appears to
be directed to clients who purposely kept quiet and did not give
directions to the legal practitioners entrusted with their cases. In
the present matter, there is no proof that the trial date was brought
to the attention of the applicant. In the circumstances, the
applicant has established that the judgment was erroneously granted
in his absence in that had the Court that granted the default
judgment been aware that the applicant had not been informed of the
trial date by his legal practitioners, it may not have granted the
default judgment. The application for rescission must therefore
succeed.







Costs







[25] As regards the issue
of costs, each of the parties has submitted that costs of the
applications should in effect follow the event. This is the route I
would take. The following order is accordingly made:









  1. The impugned statements
    (in Paragraphs 27 and 38), paragraph 38 of the applicant’s
    founding affidavit as well as paragraph 18.1 of the applicant’s
    replying affidavit are struck out;



  2. The applicant is ordered
    to pay the costs occasioned by the application to strike out;



  3. The application for
    rescission of judgment is granted;



  4. The respondent is
    ordered to pay the costs of the application for rescission of
    judgment;



  5. The default judgment
    granted under Case Number (P) I 990/97 on 3 February 2000 is
    rescinded and set aside;



  6. Any process of court
    issued by the respondent on the strength of the said default
    judgment is set aside;



  7. The applicant is
    authorized and allowed to uplift the monies paid as security into
    court pursuant to the provisions of rule 31(2)(b) of the Rules of
    Court,








____________



SHIVUTE, JP






































COUNSEL
ON BEHALF OF THE APPLICANT
:





Instructed
by:



Mr
C Mouton





E
V Bok and Associates









COUNSEL
ON BEHALF OF THE RESPONDENT
:






Ms
S Vivier






Instructed
by: Lorentz & Bone



1Rule
32(2)(b) of the rules of the High Court.




2Cultura
2000 v Government of the Republic of Namibia 1993 (2) SA 12 (Nm HC)
at 27H; Vulcan Rubber Works (Pty) Ltd v South African Railways and
Harbours 1958 (3) SA 285 (A) at 296E; Southern Pride Foods (Pty) Ltd
v Mohidien 1982 (3) SA 1068 (C) at 1071D; Wiese v Joubert en Andere
1983 (4) SA 182 (O).





3See,
for example, Promedia Drukkers & Uitgewers (Edms) Bpk v
Kaimowitz and Others
1996 (4) SA 411(CPD) at 417I; Herbstein and
Van Winsen’s The Civil Practice of the High Courts
of South Africa
4th Edition by Cilliers, Loots and
Nel on page 691.




42001
(2) SA 193 (Tk HC).




51978
(3) SA 635 (W) at 638A-B




61988
(1) SA 639 (W) at 650D-J.




71993
(2) SA 508 at 510.




81992
(2) SA 466 (E)




91997
(4) SA 873 (E)





15