Court name
Supreme Court
Case number
SA 2 of 2014

Balzer v Vries and Others (SA 2 of 2014) [2015] NASC 8 (17 March 2015);

Media neutral citation
[2015] NASC 8
Smuts JA


NO: SA 02/2014

17 MARCH 2015


the matter between:







6 March 2015

March 2015


JA (MAINGA JA and O’REGAN AJA concurring):


The appellant, who appeared in person,
filed a notice of appeal dated 24 January 2014 in respect of two
judgments granted against her in the High Court. The notice of appeal
firstly seeks to appeal against a judgment of the High Court
delivered on 26 April 2013. This was in essence a default judgment
granted against her for payment of the sum of N$42 000 and a further
amount of N$3000 per month as from May 2011 until the appellant
vacated certain property in Pappawer Street, Khomasdal, together with
interest, and an eviction order of the appellant from those premises.
Costs of suit were also granted.

The notice of appeal also sought to appeal
against the dismissal of an application on 24 January 2014. The High
Court provided written reasons for the dismissal on 4 February 2014.
Those proceedings are referred to in more detail below.

Shortly after the notice of appeal was
filed, the appellant on 31 January 2014 served an application for
condonation for the late filing of the notice of appeal in respect of
the default judgment granted on 26 April 2013. On 29 April 2014, the
Registrar informed the appellant that she had not complied with rules
8(3) and 5(5) of the rules of this court and that the appeal had
lapsed as a consequence. This necessitated a further application for
condonation on the appellant’s part on 12 May 2014.

In July 2014 the first respondent purported
to make application to the Chief Justice to dismiss the condonation
applications summarily under s 14(7)(
of the Supreme Court Act 15 of 1990 on the grounds that the appeal is
frivolous or vexatious or otherwise has no prospects of success. This
was done by way of an affidavit by her legal practitioner attached to
a covering letter – and not by way of a notice of motion. The
appellant responded to this application by letter, resisting its
application. The appellant complained that the application was not
served on her. Certainly she should be entitled to service of an
application of this nature. The Chief Justice however declined to
exercise the discretion vested in him under s 14(7)(
as is evidenced by the fact that this matter has been set down for
hearing. In view of that fact, it is not necessary to say anything
further on this application.

Before dealing with the applications for
condonation, it would be conducive to clarity first to set out the
background to judgments appealed against. The case relates to the
property in Khomasdal where the appellant lives (the property). The
case has a long history, not all of which can be set out here.

Judgment of 26
April 2013

It would appear that default judgment was
initially obtained against the appellant in 2009 in relation to
monies she owed to First National Bank Ltd. Execution proceeded in
respect of the property. The first respondent purchased the property
at the sale in execution that took place in early 2010. Thereafter
the appellant refused to vacate the property, despite the judgment
against her, the subsequent sale in execution and the transfer of the
property to the first respondent. In 2011, the first respondent
instituted an action for appellant’s eviction and also claimed
rental in respect of appellant’s continued occupation of the
property. Although appellant filed a notice to defend the action, no
plea was filed. A notice of bar was served and default judgment was
subsequently sought and granted by the Registrar against the
appellant on 19 April 2012. In the meantime during February 2011,
first respondent sold the property to Mr and Mrs Karuuombe and
transfer was registered on 29 March 2011.

The appellant subsequently applied for
rescission of that judgment
inter alia
on grounds that it should not have been granted by the Registrar.
Papers were exchanged in that opposed application which became

The first respondent decided to abandon the
default judgment granted by the Registrar and gave notice to the
appellant’s erstwhile legal representatives, ‘appointed
by the Legal Aid Directorate’, that she would do so. She also
gave notice that she would seek judgment by default from a judge
against the appellant in view of the fact that the appellant had not
filed a plea. In that notice, it was stated that default judgment
would be sought on the next available motion court date. That turned
out to be 26 April 2013.

The first respondent’s legal
representative accordingly applied for default judgment on that date
and it was granted by the High Court. The appellant’s erstwhile
legal representative was present in court when judgment was granted.
It would appear that immediately after it was granted, the
appellant’s legal representative pointed out to the court that
a notice to oppose default judgment application had been filed on
that morning. This was not however on the court file. The High Court
pointed out that the order had already been granted and that the
appellant would need to pursue an appropriate remedy. This would
usually be in the form of a rescission application.

following the order of 26 April 2013

No application for rescission was
forthcoming from the appellant, despite the fact that she was
represented at the time. The first respondent then proceeded with a
warrant of execution for the appellant’s eviction in May and
June 2013. The point was apparently taken on behalf of the appellant
by her legal representatives that the property was wrongly described
in the default judgment and in the writ. The first respondent
thereafter applied to court to vary the court order to correctly
reflect the description of the property. This order was then granted
on 27 September 2013.

The appellant subsequently launched an
interlocutory application on 15 October 2013, set down for 25 October
2013, seeking to stay the writ of execution issued pursuant to the
default judgment pending the outcome of a separate application
directed at setting aside the High Court rule authorising the
Registrar to grant court orders as unconstitutional. The appellant
deposed to the founding affidavit in support of this interlocutory
application which is styled ‘Interlocutory
application’. In her
affidavit she specifically states that the application is directed
against respondents at whose instance a disputed sale in execution
was effected and as a consequence her eviction threatened. The
appellant specifically states that the purpose of that application,
as confirmed in the notice of motion, is directed at temporarily
staying the ejectment order or writ of execution issued by the High
Court in respect of the default judgment, pending the outcome of the
other application referred to. This despite the fact that the first
respondent was not party to that other application.

The October 2013 interlocutory application
is attached to the proceedings and forms part of the record. In it,
the appellant specifically states under oath that the first
respondent had caused service of a writ of ejection and execution on
8 August 2013 upon her. The writ, dated June 2013, is specifically
referred to and is attached to her affidavit.

The first respondent in the meantime
renewed her attempts to have that Deputy-Sheriff act upon the writ.
This resulted in the Deputy-Sheriff giving the applicant notice on 21
January 2014 that he would execute the eviction order.

which was dismissed on 24 January 2014

The appellant responded by bringing an
urgent application dated 23 January 2014 and set down on 24 January
2014. She did so in person. She does not in her affidavit explain the
reason for her erstwhile legal practitioners no longer acting for
her. This application was dismissed by the High Court on the same
day. As is pointed out, this is the second order appealed against by

In this (January 2014) application, the
appellant sought an order against the first respondent together with
the Registrar and Deputy-Sheriff (cited as second and third
respondents) to desist from disturbing her in ‘her undisturbed
possession and occupation’ of the property and to cease with
the ‘unlawful ejectment’ of her. Punitive costs were also
sought by her against them.

In this application, the appellant also
accused the Deputy-Sheriff and Registrar of acting ‘criminally
against my family and me’ and of abusing their respective
positions. Allegations of this nature are made elsewhere in the
papers by the appellant. These very serious allegations are however
unsupported. They are referred to below when dealing with the
question of costs. The appellant made it clear that the relief sought
in that application was of an interlocutory nature, pending the
finalisation of other proceedings and related to the eviction order
obtained against her.

I turn now to the applications for


In the first application for condonation
dated 27 January 2014, the appellant applies for condonation for the
late filing of her notice of appeal against the order of 26 April
2013. The appellant states under oath in a supporting affidavit that
she and her husband only became aware of the court order of 26 April
2013 on 24 January 2014. This she repeated in oral argument. The
appellant further stated that her attorney of record at the time
‘never informed me about the court order of Justice Unengu
dated 26 April 2013’. The appellant further states that this
only came to her attention in the opposing affidavit of the first
respondent to her application set down on 24 January 2014. In her
affidavit, the appellant also quotes from a leading South African
textbook on civil procedure and cases in support of her contentions
that she was not aware of the need to bring a rescission application
and that she should not be penalised for her attorney not complying
with the rules of court. The appellant further submits that the
respondents would not and cannot be prejudiced by the late filing of
the notice of appeal as this notice of appeal will also be in the
best interest of the first respondent.

In addition the appellant states that her
default was not wilful and further submits that she has a ‘solid
defence on the merits and that there is a strong likelihood of

It is well settled that an application for
condonation is required to meet the two requisites of good cause
before he or she can succeed in such an application. These entail
firstly establishing a reasonable and acceptable explanation for the
delay and secondly satisfying the court that there are reasonable
prospects of success on appeal.

court recently usefully summarised the jurisprudence of this court on
the subject of condonation applications in the following way[1]:

The application for condonation must thus be lodged without delay,
and must provide a “full, detailed and accurate”
explanation for it.[2] This
court has also recently considered the range of factors relevant to
determining whether an application for condonation for the late
filing of an appeal should be granted. They include -

extent of the non-compliance with the rule in question, the
reasonableness of the explanation offered for the non-compliance, the

of the application, the prospects of success on the merits of the
case, the importance of the case, the respondent's (and where
applicable, the public's) interest in the finality of the judgment,
prejudice suffered by the other litigants as a result of the
non-compliance, the convenience of the court and the avoidance of
unnecessary delay in the administration of justice.”[3]

factors are not individually determinative, but must be weighed, one
against the other.[4] Nor will
all the factors necessarily be considered in each case. There are
times, for example, where this court has held that it will not
consider the prospects of success in determining the application
because the non-compliance with the rules has been “glaring”,
“flagrant” and “inexplicable”.’[5]

The default judgment was granted on 26
April 2013. The notice of appeal was lodged on 24 January 2014, some
8 months out of time.

The crucial components of the appellant’s
explanation for this lengthy delay are her professed ignorance of the
default judgment having been granted against her on 26 April 2013
until she heard of it in the answering affidavit to the application
on 24 January 2014 and the blame placed by her at the door of her
erstwhile legal practitioner for failing to inform her of that
judgment and for failing to take further steps on her behalf as a
result of it.

In her condonation application, the
appellant does not deal with or even refer to the interlocutory
application made on her behalf in October 2013 when she herself under
oath refers to a warrant of execution for her eviction served on her
on 8 August 2013. It is expressly stated in the warrant attached to
her affidavit that it is a warrant for her eviction in respect of the
court order granted on 26 April 2013. Accordingly, despite her
express statement to the contrary, the applicant appears to have been
aware of the warrant for her eviction and the judgment of 26 April
2013 upon which it was based. Also of significance is correspondence
written on her behalf by her erstwhile legal practitioners after the
court order of 26 April 2013. The first of these letters is dated 12
August 2013. It is also attached to her ‘
application’. In this letter,
her legal practitioners expressly referred to the warrant for
eviction received from the Deputy-Sheriff’s office (presumably
the one served on the appellant on 8 August 2013). In that letter it
is further stated by her erstwhile legal practitioners:

is our instructions that the court order dated 26 April 2013 is in
respect of the 2911, Pappawer Street, Khomasdal, Extension 3,
Windhoek and not erf 2977, Pappawer Street, Khomasdal, Extension 3,

is further stated in the letter on her behalf:

light of the above, we propose that you give us an undertaking in
writing not to proceed with the eviction and to allow us to seek a
rescission of judgment unopposed.’

The record also includes a letter of 12
December 2013 addressed by the appellant’s erstwhile legal
practitioners to the Deputy-Sheriff, informing the latter that the
status quo)
application was removed from the roll and not struck and that the
Deputy-Sheriff should not proceed with the eviction order. The
eviction order is that granted on 26 April 2013.

Ultimately, most telling is the warrant for
the appellant’s eviction attached to her founding affidavit in
support of the interlocutory application dated 15 October 2013 (the
status quo
application’), already referred to. This warrant expressly
refers to the very terms of the court order granted on 26 April 2013.
The warrant itself is dated 11 June 2013 and has a further date stamp
of the Deputy-Sheriff of 19 June 2013. It would have been this
warrant which was the subject of correspondence because of the
description of the property raised by her lawyers on 12 August 2013
(which resulted in the court order being varied on 27 September 2013)
as this warrant had been served upon the appellant on 8 August 2013.

It would follow from the record considered
as a whole that the appellant’s professed ignorance of the
court order evicting her from the property is lacking in credibility.
It is contradicted by her own prior statement under oath in one of
her interlocutory applications. The attempt at blaming her erstwhile
lawyer for not informing her also lacks credibility. He not only sent
letters on her behalf concerning that court order, but in one
instance raised the description of the immovable property in the
order in his letter of 12 August 2013. This was shortly after the
writ had, according to the appellant, been served on her on 8 August
2013. That letter is also expressly addressed as being upon her
instructions. It is not surprising that there is no statement made by
her erstwhile lawyer in support of her improbable allegation that he
had not informed the appellant of the order of 26 April 2013. The
totality of the evidence including her own statement under oath
provided elsewhere in this record is emphatically to the contrary.

The delay in filing the notice of appeal
was more than 8 months. A weighty and cogent explanation is called
for in the circumstances. But that is singularly lacking.

The appellant’s explanation for the
lengthy delay is instead entirely unsatisfactory and not credible.
The appellant bears the
to establish a reasonable and acceptable explanation for her delay.
This she has comprehensively failed to do. On this basis alone this
application for condonation is to be dismissed with costs. But it is
also clear from the record that the appellant also does not establish
the second requisite for good cause for condonation. The grounds
advanced in the condonation application in support of the prospects
of success on appeal are similarly unconvincing. The first respondent
was not even in fairness to the first respondent cited as a party in
the other proceedings challenging default judgments granted by the
Registrar and those proceedings cannot provide a basis for staying
these proceedings. Furthermore, the issue in those proceedings
relates to the constitutionality of the Registrar granting default
judgments. However, in this case that order was abandoned by first
respondent and a judgment was sought and granted by the High Court.

It follows that the application to condone
the late filing of the notice of appeal in respect of the default
judgment of 26 April 2013 is to be dismissed. It further follows that
the appeal against the judgment of 26 April 2013 is to be struck from
the roll.

second application for condonation

The further application for condonation for
failing to comply with rules 8(3) and 5(5) would remain in respect of
the notice of appeal only insofar as it relates to the order of 24
January 2014. That application sought to indict the respondents cited
in it, from taking action including acting upon the writ, pending
other litigation. It was by its very nature an interlocutory

applications require leave of the High Court before they may be
appealed[6]. No application for
leave to appeal was brought. Nor was leave granted. An appeal in
respect of that judgment and order is thus not properly before this
court and is to be struck for this reason alone. It serves no purpose
to further canvas the second application for condonation.


A default judgment was granted against the
appellant as long ago as 2009. The property was sold in execution
pursuant to that judgment in early 2010. Despite the sale and
transfer to the first respondent (and the subsequent purchasers), the
appellant has remained in occupation of the property without any
lawful basis to do so and in the face of a court order evicting her
from the property. Conduct of this nature cannot be condoned by this
court. Effect must be given to orders of court until or unless they
are set aside. The appellant has acted with defiance with regard to
an order of the High Court and has frustrated the due process of law
and thus undermined the rule of law upon which the Constitution is

The following order is made:

The appellant’s application for
condonation for the late filing of the notice of appeal in respect of
the judgment of 26 April 2013 is dismissed with costs.

The appeal against that judgment and
against the order of 24 January 2013 is struck from the roll with





In person


by Grobler & Co

t/a Auto Tech v Quick Build

2014 (1) NR 187 (SC) at p 189-190, para (5).

and Another v South West Africa Building Society (SWABOU) and Others
10/2006) [2010] NASC 14 (5 November 2010) para 13.

for Democracy and Progress and Others v Electoral Commission of
Namibia and Others

2013 (3) NR 664 (SC) para 68.


cited above n 2, para 20; see also
v Roman Catholic Archdiocese
(2) NR 637 (SC) para 9.

In terms of s 18(3) of the High Court Act 16 of 1990.