Court name
High Court
Case number
1102 of 2010
Title

De Klerk v Kaitjirokere (1102 of 2010) [2012] NAHC 231 (15 August 2012);

Media neutral citation
[2012] NAHC 231
Coram
Miller AJ

















REPORTABLE







IN THE HIGH COURT OF
NAMIBIA











CASE NO.: I 1102/2010



















In the matter between:











RIAN DE KLERK
….....................................................................................PLAINTIFF/RESPONDENT







And







GUSTAV KATJIROKERE
…........................................................................DEFENDANT/APPLICANT







CORAM: MILLER, AJ







Heard on: 25 July 2012



Delivered on: 15 August 2012











JUDGMENT











MILLER, AJ.: [1] These
proceedings commenced in this Court on 12 April 2010, when the
present respondent as plaintiff issued summons against the present
applicant as defendant. I shall continue to refer to them as the
plaintiff and the defendant respectively.







[2] The plaintiff’s case as set out
in its Particulars of Claim is that he concluded an Agreement of Sale
with the defendant during May 2009. In terms of that agreement he
bought an Isuzu motor vehicle from the defendant at a price of
N$234,000.00. The plaintiff claims that he paid the full purchase
price to the defendant in the following manner as set out in
paragraph 5 of the Particulars of Claim:







The
plaintiff has complied with all his obligations in terms of such oral
agreement and especially since he has paid the full purchase price of
N$234 000.00 (Two Hundred Thirty Four Thousand Namibian Dollars) to
the defendant in the following manner.



N$50
000.00 on or about 27 May 2009.



N$24
000.00 on or about 01 July 2009.



N$160
000.00 on or about 06 July 2009.”







[3] The plaintiff alleges further that
the defendant failed to deliver the vehicle to him. Instead, so it is
alleged the defendant sold and delivered the vehicle to Spes Bona
Motors who in turn sold it to someone else.







[4] The plaintiff claims payment of the
purchase price, interest on that amount and costs.







[5] In a plea filed on behalf of the
defendant by his legal practitioners at the time the defendant denies
that he had sole the vehicle to the plaintiff. With reference to the
alleged payments made by the plaintiff in Paragraph 5 of the
Particulars of Claim the defendant’s case is pleaded as
follows:







AD
PARAGRAPH 5 THEREOF:



4.1
The contents of this paragraph are denied as if each and every
allegation contained therein has been traversed and then denied and
the plaintiff is put to the proof thereof.



4.2
The defendant specifically denied that the two amounts of N$50 000.00
and N$24 000.00 were paid to him by as alleged.



4.3
The defendant alleges that the plaintiff cashed a cheque of N$160
000.00 with him on/or about 6 July 2009. The case was handed to the
plaintiff.”







[6] The defendant further admits that he
had sold the vehicle to Spes Bona Motors.







[7] Once the pleadings were closed, the
matter was assigned to me as the managing judge in terms of the
Amended Rules of Court. Managing this matter in terms of the Rules
became a difficult task. This was occasioned mainly by the fact that
at different stages both the plaintiff and the defendant were at
times without legal representation which necessitated that case
management conferences and notices of such conferences had to be
served by the deputy-sheriff.







[8] As far as the defendant is concerned
and on 27 October 2011, and in the absence of the defendant I issued
an order postponing the case management conference to 24 November
2011 and I directed that the order be served on the defendant.







[9] That order was served on the
defendant’s sister-in-law in the absence of the defendant on 03
November 2011.







[10] On 24 November 2011 the defendant
failed to appear. I consequently postponed the conference to 26
January 2012 and once more directed that the order be served on the
defendant.







[11] The defendant once more failed to
appear on that date, whereupon the matter was postponed to 15 March
2012. That order was served on the defendant personally on 02
February 2012.







[12] On 15 March 2012 the defendant once
more failed to appear.







[13] I thereupon made an order striking
the defendant’s case in terms of Rule 37 (16)(e) (ii) of the
Rules of Court.







[14] The defendant now applies for the
following relief:










  1. Rescinding
    and setting aside the order made in this matter by the Honourable
    Court on 15 March 2012.



  2. Re-instating
    the defence/notice to defend and granting leave to the
    applicant/defendant to proceed with his defence to
    respondent/plaintiff’s claim.



  3. Setting
    aside all processes issued pursuant to the judgment granted herein
    on 15 March 2012.



  4. Condoning
    the failure of the defendant to file Heads of Argument and Index
    this application before 11 July 2012.



  5. Costs
    (only if opposed).



  6. Further
    and/or alternative relief.”








[15] The application for rescission is
brought in terms of the common law. In order to succeed in such an
application, the applicant carries the onus to establish;








  1. That
    there is a reasonable explanation for his default;



  2. The
    application must be made bona fide and not intended to delay
    the matter, and;



  3. That
    the applicant has a bona fide defence.




Namcor
CC v Tula’s Plumbing CC 2005 NR 39 (HC).







[16] As far as the first requirement is
concerned the defendant admits that the order of 26 January 2012 was
served on him. He then continues to state the following:









6.



I
have been advised, which advice I readily belief to be true that this
application can only succeed if I can show good cause why I did not
attend court on 15 March 2012.











7.



I
did receive a court order from the deputy sheriff for the district of
Keetmanshoop. It was handed to me during February 2012 in
Keetmanshoop. I did not read the order and handed it to my secretary
to attend to. As a result I did not realize at the time that I was
handed an order of court in terms whereof I had to attend court on 15
March 2012. I then left on a business trip.



8.



At
this juncture I have to point to this Honourable Court that I am a
contractor at Namibia Diamond Corporation (Pty) Ltd in Oranjemund as
well as the Ministry of Works and Transport and the Ministry of
Health and Social Services as a senior electrical engineer. As such I
often have to travel between Oranjemund and Windhoek. I am also
involved with the life insurance of the members of the police force
as well as the members of the defence force. I am also involved in
two fishing companies to wit Supa Fishing (Pty) Ltd and Demosselle
Fishing (Pty) Ltd.



9.



As a
result of my continuous travels between my job and attending to my
interest in the fishing industry as well as the insurance business, I
lost track of time and did not attend court as per the order. I am
however extremely sorry about this and apologize to this Honourable
Court for this oversight.”







]17] The defendant only has himself to
blame for this state of affairs. One would expect a prominent
businessman as the defendant says he is, to at least read documents
served by the deputy sheriff. If he chose not to read them, he must
accept the consequences of that failure. I am not persuaded that the
defendant is bona fide when he states in paragraph 6 that he
did not realize that he was handed a court order requiring him to
attend court. It is clear from the return of service filed by the
deputy sheriff that he explained the nature of the order to the
defendant. In addition in paragraph 9 the respondent seems to suggest
that he knew he had to appear but “...lost track of time and
did not attend court as per the order”. See De Wet and
Others v Western Bank Ltd 1979 (2) SA 1031 AD.







[18] I am also not persuaded that the
defendant has established a bona fide defence.







[19] I am mindful of the fact that it is
not required of the defendant to deal fully with the merits of the
case.



Namcor CC v Tula’s Plumbing C
(supra).







[20] However, sufficient facts must be
placed before me to at least establish the defence.



Nyingwa v Moolman 1993 (2) SA 508
TKCGD at p. 513.







[21] The defence set out by the defendant
in his affidavit is as follows:









2.



During
the first term of the year 2009, the plaintiff together with another
person Mr. Burger approached me to enter into a very lucrative
transaction with them. Each of us had to contribute N$150 000.00
towards the successful execution of this transaction. At this
juncture I have to point out to this Honourable Court that the
plaintiff is known to me for many years.



3.



Plaintiff
was appointed as the person who had to take control of the funds as
soon as all three of us had made our contribution, to enter into the
transaction. I paid plaintiff my contribution of N$150 000.00 in
cash. Plaintiff and Burger had difficulty in raising their respective
contributions. One day Burger and I accompanied plaintiff to his bank
manager where he raised sufficient funds for his contribution.



4.



Plaintiff
and Burger engaged in this transaction. I subsequently proofed to be
not lucrative at all and we lost all of our money. Plaintiff had
however under took to repay the funds to his bank within a few days.
He was not in a position to do so as a result of the transaction that
went wrong. He then came up with this claim against me to raise funds
to repay his bank. I am considered a wealthy man in the community
where I live. This explains his actions against me.



5.



I
did sell an Isuzu bakkie to Spes Bona Motors, but this was not a
vehicle which belongs to me or was registered in my name. It belonged
to a third party.”







[22] These are indeed vague and sweeping
allegations lacking the details one would expect to support a prima
facie
defence.







[22] The purported defence now raised
also seems to me to be at odds with what was alleged be in
defendant’s plea.







[23] In the result I will dismiss the
application with costs.



























__________



MILLER
AJ











































































ON BEHALF OF THE PLAINTIFF/RESPONDENT:
Ms. Delport



INSTRUCTED BY: Delport Attorneys







ON BEHALF OF THE DEFENDNAT/APPLICANT:
Ms. Petherbridge



INSTRUCTED BY: Petherbridge Law
Chambers