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Vos v National Development Bank (Civil Appeal No. 46 of 1995) [1996] BWCA 56; [1996] B.L.R. 854 (CA) (19 July 1996)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Civil Appeal No. 46 of 199ff
In the matter between:
DANIEL VOS       Appellant
vs.
NATIONAL DEVELOPMENT BANK        Respondent
Mr. P. A. Kgalemang for the Appellant Mr. S. Thapelo for the Respondent
JUDGMENT
Coram: W. H. R. Schreiner, J.A.
Lord W. L. K. Cowie, J. A. P. H. Tebbutt, J.A.
TEBBUTT. JA:
This matter started as an appeal against the refusal by Cotran J in the High Court to condone the late noting of an appeal against a judgment of his in which he granted summary judgment against the appellant in a claim by respondent. It has ended as an application by the appellant (as I shall for convenience refer to him) to this Court for such condonation.
The chronology of events which are the background to this appeal is the following. On 24 August 1994 respondent issued summons against appellant claiming payment of two amounts viz P5976.03 (claim 1) and P21558,57 (claim 2) with interest thereon or 14% per annum from 1 June 1994 to date of payment, and costs. Only the claim for P21 558,.57 is germane to this appeal. On 8 November 1994 appellant filed an entry of appearance to defend and a plea dated

2 4 and 7 November 1994 respectively. On 21 November 1994 the respondent applied for summary
judgment on its claim for P21 558, 57 only. Appellant filed a notice to oppose on 22 November
and an opposing affidavit on 1 December 1994.
The application for summary judgment was argued on 2 December 1994 and Cotran J reserved judgment. He handed down his judgment on 10 January 1995. On 6 April 1995 appellant, wishing to appeal against that judgment, filed an application on Notice of Motion for condonation of his failure to bring his appeal timeously. It is common cause that appellant failed to note an appeal within the period laid down by the Rules of Court. On 20 April 1995 respondent filed an application to set aside appellant's notice of motion as being an irregular procedure. On 28 April 1995 Cotran J refused appellant's application, with costs. It is against that refusal that this appeal was initially directed.
Cotran J gave no reasons for his refusal but it would seem that he probably did so on the
following grounds. Section 10 (a) of the Court of Appeal Act [Cap 04:01] provides thus:
"In addition to appeals specifically provided for in the Constitution, an appeal shall lie to the Court of Appeal as of right from any final decision in any proceedings before the High Court sitting in first instance."
The granting of summary judgment is a final and definitive judgment (see Mosweu and Rowlands
(Pty Ltd and Moswe Lazarus Tshinagwe v Evate Makgabenyane Civil Case No. 1081/93
(unreported).
As appellant had an appeal as of right to this Court, the governing rules of any leave to
appeal out of time were those of the Court of Appeal. The High Court therefore had no
jurisdiction to entertain appellant's application for condonation. Cotran J obviously refused the
application on the jurisdictional point. In my view he was correct in doing so having regard to
the provisions of the relevant Rules of the Court of Appeal.

3
The question that then arose when the matter came before us for hearing was whether this Court should simply dismiss the appeal which would require the appellant, if he wished to pursue the matter, to bring an application in this Court for condonation of the late noting of his appeal or whether this Court should treat the matter as if such an application were before it now. Counsel for appellant asked the Court to follow the latter course. Counsel for respondent had no objection thereto.
Rule 8(1) of the Rules of the Court of Appeal provides that the Court may extend the time for doing anything prescribed by the rules. It also allows this Court to direct a departure from the Rules in the interest of justice. In the light of Counsel's agreement to that course, we decided that it was in the interest of justice to treat the matter as if an application for condonation were before us, regard being had to the costs involved, the convenience of the Court, the avoidance of unnecessary delay and the interest of the respondent in the finality of his judgment.
To obtain such condonation the appellant has to show good cause. The Courts both in Botswana and South Africa, have declined to set out any comprehensive definition of what good cause entails so as not to hamper the exercise by the Court of its discretion on whether to grant condonation or not. Granting of condonation is a matter of discretion, Rule 8(1) providing that the Court ,"may" do so. In a long line of cases in South Africa it has been said that relevant considerations include inter alia the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of the case, the respondent's interest in the finahty of his judgment, the convenience of the Court and the avoidance of unnecessary delay in the administration of justice. (See Erasmus : Superior Court Practice, B-360 note 4 and cases there cited).
In the instant case the appellant says that why he failed to note his appeal timeously was that neither he nor his attorney were told that Cotran J was to deliver his judgment on 10 January

4 1995 or that he had done so on that date. He first became aware of it when execution against his property was to be effected on 16 March 1995. There is nothing on the papers to gainsay these averments. He said that he immediately obtained a copy of the judgment, consulted his attorney, decided to appeal and then filed the application for condonation on 6 April 1995. That explanation, in my view, is reasonable.
Appellant must also show that he has reasonable prospects of success on appeal. In the Court a quo he raised a special plea of prescription. During the hearing before Cotran J however his attorney specifically and unequivocally abandoned the special plea, the Record reading
"Mr. Kgalemang: I am abandoning the special plea" In his heads of argument, Counsel for the appellant sought to resuscitate the point. That a defence which has been abandoned in the Court below should not be allowed to be raised on appeal has been decided in a number of cases (see Du Setto (Sunnyside II) Pty Ltd and Others v Financial Services Company of Botswana Ltd Civil Appeal 19/94 (unreported) p 13 and cases there cited). In any event, as set out in Du Setto's case, in order to rely on prescription a defendant must set out the material facts which establish that prescription has run against the plaintiff. In the present case appellant has in its plea merely made the bald assertion that respondent's claims have become prescribed by efiuxion of time. He makes no further averments in regard thereto in his opposing affidavit to the application for summary judgment despite the fact that in the verifying affidavit to the application on behalf of respondent there is an averment that prescription was interrupted. Appellant can therefore not now rely on prescription as a defence and his Counsel before us conceded as much.
Before this Court, appellant's Counsel, Mr. Kgalemang, advanced really only one argument. He submitted that in order to obtain summary judgment a plaintiff has to have what

5
has been described as "an unanswerable case." That, he argued, was not the position here for the
following reason. In an affidavit verifying respondent's claim and the amount thereof, in support
of the application for summary judgment, respondent's principal corporate counsel, one Tebogo-
Maruping, stated that respondent's cause of action was in respect of a loan to appellant of
P12,540 "to purchase a tractor." He attached a copy of a Memorandum of Agreement in regard
to the transaction in which the amount of the loan, the interest payable and the terms of repayment
are set out.The Memorandum also reflects that the purpose of the loan was to enable appellant
to purchase not only a tractor but also a "disc plough and 2 XA ton trailer." Paragraphs 5 and 6
of the affidavit go on to read as follows:
"5.1 In breach of the above terms Defendant failed to repay the loan as agreed consequent to which Plaintiff repossesed the tractor and sold it for P8,000.00 in July 1992.
5.2    
Defendant was aware that Plaintiff was entitled to repossess the tractor in terms of clause 12 of the loan agreement referred to above and that the money raised in the resale of the tractor would be applied towards the debt and indeed following the sale of the tractor and trailer, the proceeds of the sale were applied towards the loan.
5.3    
I am advised by my Attorneys and believe the same to be true that in view of Paragraph 5.1 and 5.2 this claim has not prescribed.
6. As at the 1st of June 1994 the Defendant was indebted to Plaintiff the sum of P21,558.57 on this account inclusive of arrears and interest."
Mr. Kgalemang argued that while the affidavit may state that the P8000 for the sale of the tractor had been credited to the loan, the respondent had not stated what had happened to the disc plough and more particularly what had happened to the proceeds of the sale of the trailer. To ascertain that would require evidence which would entail the matter having to go to trial and therefore the claim was not an unanswerable one, permitting summary judgment to be granted.

6
I do not think Mr. Kgalemang is correct. In Maharaj v Barclays National Bank Ltd 1976
(1) SA 418 (A), a decision of the South African Court of Appeal, followed in numerous cases in
this Court, Corbett J. A. (as he then was) at 423 H said that in deciding whether or not to grant
summary judgment, the Court looks at the matter "at the end of the day" on all the documents
before it. The affidavit complained about sets out clearly that there was a loan of PI 2 540 in
1981, that the loan had attracted interest, that the tractor was sold for P8000 and that the
proceeds of that sale and of the trailer were applied in reduction of the account owed in terms of
the loan. As at 1 June 1994, taking into account all the aforegoing, the amount owing by
respondent was P21,556.57. In my view there is nothing contradictory between those averments
and what is set out in the particulars of claim. The affidavit may not be a model of elegance but
a careful analysis of it makes it clear that what Tebogo-Maruping was saying was that the tractor
was sold for P8000 and that plus the proceeds of the sale also of the trailer were applied in
reduction of the loan leaving a balance, including arrears and interest, of P21,556.57. In my
view, therefore, the respondent's claim on which the application for summary judgment was based
is unimpeachable. Mr. Kgalemang conceded that he had to stand or fall by the one point argued
by him. He could not rely on the appellant's opposing affidavit. In my view, he was correct in
doing so. Appellant's opposing affidavit in the Court a quo is a singularly laconic document. He
merely says:
"I am advised that the allegation (sic) contained in my plea does set out a bona fide defence to Plaintiffs claim and that the Plaintiffs (sic) were in possession of my plea when they apphed for summary j udgment."
The plea simply sets out a denial of the loan agreement, the terms of repayment, the interest payable and that appellant owes the amount claimed. The affidavit concludes with the

7 bald averment that "the Plaintiff accepts that I do have a valid defence on claim 1 based on the same defence as is filed against claim 2." It has been laid down in a number of cases in this Court that in opposing an application for summary judgment the defendant must, in order to comply with Order 34 (3), satisfy the Court that he has a defence, which if proved, would constitute an answer to the claim and that he is advancing it honestly. He must disclose what his defence is and set out the material facts on which it is based. The allegations in the affidavit must not be bald, vague or sketchy and not lack forthrightness as well as the particularity that a candid disclosure of a defence should embody. (See Du Setto's case supra at pp 19-20; Sidney Pilane v First National Bank of Botswana Ltd Civil Appeal 16/94; Fashion Enterprises(Pty) Ltd v Image Botswana (Pty) Ltd Civil Appeal 24/93; First National Bank of Botswana Ltd v. Valley Sci Construction (Botswana) Pty Ltd and others Civil Appeal 52/95. All these cases are as yet unreported). A bare denial of the claim will not comply with the requirements of the Rule. Having regard to these authorities it cannot, by any stretch of imagination, be said that appellant met the requirements of the Rule in his opposing affidavit to respondent's application in the Court a quo. His denial of the loan in the light of the Memorandum of Agreement, raises grave doubts in any mind as to appellant's bona fides. I also doubt his bona fides on another score. In his opposing affidavit he averred that there was not annexed to the affidavit filed with the attorney the Memorandum of Agreement and that he could therefore not comment on it. This to my mind is an indication of a lack of bona fides. He could at any time prior to the hearing have got a copy of it from respondent's attorney (compare Nedperm Bank Ltd v Verbri Products CC 1993 (2) 6A 214 (W) at 222J -223B). I agree with Cotran J that "no real defence was advanced here."
The appellant accordingly has no prospect of success on appeal. It follows that his appliction for condonation of his failure to file his appeal timeously must be refused. It is so refused, with costs.

8 Delivered in open Court at Lobatse this 19th Day of July 1996.

P. H. TEBBUTT
Judge of Appeal
I agree  W. H. R. SCHREINER
Judge of Appeal
I agree  LORD W. L. K. COWIE
Judge of Appeal

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