---

REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: A 22/2015

REPORTABLE

In the matter between:

FANUEL ZEECA IIPUMBU.............................................................................................APPLICANT

And

PAULUS IIPUMBU.................................................................................................1^ST RESPONDENT

JULIUS IIPUMBU...................................................................................................2^nd RESPONDENT

Neutral citation: Iipumbu v Iipumbu (A 22-2015) [2016] NAHCNLD 60 (22 July 2016)

Coram: CHEDA J

Heard: 13/11/2015; 04/12/2015; 03/12/2015; 07/12/2015; 08/12/2015; 27/01/2016; 06/07/2016;

Delivered: 22 July 2016

Flynote: A party who applies for a rescission of judgement must fulfil all the requirements. Where a Legal Practitioner is at fault and also fails to give a reasonable explanation for non-appearance in court, the application will fail. Applicant must be candid with Court so that a Court can make an informed decision.

Summary:

The Applicant applied for a rescission of judgement and writ of execution. The Legal Practitioner failed to appear in court. The matter was set down and no reasonable explanation was given. Application was dismissed with costs as the Applicant was in wilful default.

ORDER

1. The application for rescission of judgment is dismissed with cost.

2. Applicant must proceed with the execution of the judgement.

JUDGMENT

CHEDA J:

[1] In this matter Applicant is applying for a rescission of judgement on an urgent basis. However in view of the postponements there is no longer any urgency and it is dealt with like an ordinary application. The brief historical and salient facts of this matter are outlined hereinunder.

[2] The now Respondents are pensioners residing at Ohongo wAmupanda Village, Omusati region, Republic of Namibia. The Applicant is the son of the Respondents and stays in Oshakati, Republic of Namibia.

On 14 October 2013. Respondents donated a piece of land being Erf 660 Oshakati, Extension 1, Namibia to him. The property was subsequently transferred accordingly.

[3] According to the respondents the donation was on condition that Applicant accommodates his siblings. However, he refused to do so. In view of his stance the respondents revoked the donation. They issued out summon which was served on applicant on 29 June 2015. The respondents obtained a default judgment and Applicant applied for rescission of judgment the said judgment on 29 July 2015.

[4] The relevant chronological events are outlined herein under;

4.1 On the 18 May 2015 an individual case plan was made part of the Court order and set down for hearing on 29 June 2015. On that date the respondents applied for and obtained a default judgment due to Applicants Legal Practitioner’s failure to attend court.

4.2 The application for rescission was set down for the 9th July 2015 and was removed from the roll due to the respondents Legal Practitioner’s absence and/or “late appearance” as Mr Shakumu for applicant prefers to refer to it. On the 03 August 2015 an application was again set down, but, could not proceed due to non-service on the respondents. On the 7 September 2015 application for rescission was brought, but, removed from the roll and set down for 28 September 2015 and was dismissed due to the applicant’s legal practitioner’s absence.

[5] On 28 October 2015 a warrant of execution was issued and application for the stay of Execution was filed on 13 November 2015.

[6] Applicant’s argument is that;

6.1 the judgment should be rescinded because the respondents’ opposition was frivolous and vexatious; and

6.2 that the warrant of execution in the event the rescission application is unsuccessful pending the finalisation of any review and or appeal process the applicant or defendant may bring. It is further Mr Shakumu’s argument that he was not absent, but, “was outside the court room”. In support of his application Mr Shakumu correctly referred to the Rules of this Court which require that when a rescission for judgement is to be granted, the following must be complied with, namely:

a) the applicant must give a reasonable explanation for his default;

b) the application must be bona fide and not made with the intention of merely delaying plaintiff’s claim;

c) he must show that there was a bona fide defence to plaintiff’s claim.

[7] Indeed this principle was clearly laid out in Hange &Others v Orman 2014 (4) NR 971 (HC); Promedia Drukkers & Uitgewas (EDMS) BPK v Kaimowitz & Others 1996 (4) SA 411 (C); and Chetty v Law Society of Transvaal 1985 (2) SA 756 (A).

[8] He further argued that Applicant has a good cause and his explanation was reasonable and acceptable. To support his argument he referred me to Katzao v Trustco Group International (Pty) Ltd & Another 2015 (2) NR 402 (HC). It was also his argument that the default was neither wilful nor grossly negligent on the part of Counsel. He also argued that he had a bona fide defence. There has been a further argument regarding the stay of execution. This argument in my view is a hybrid of the outcome of the Application in rescission of judgement. In light of this, I will only confine myself to the application for rescission of judgement.

[9] Ms Tjihero for respondents raised a point in limine being that there was no urgency, the application did not comply with Rule 73(4) of the Rules. Needles, to say that the circumstances surrounding the urgency attached to the application, in this matter was subsequently postponed in order to allow applicant’s legal practitioner to regularise his position due to his absence or non-attendance in Court.

[10] I allowed the matter to be heard as a result of the judicial discretion I exercised. It is Ms. Tjihero’s argument that this application as Mr Shakumu for respondents failed to comply with the requirements attendant to a rescission of judgement.

[11] It is settled law that in order for an application for rescission of judgement to succeed, Applicant must:

11.1 Give a reasonable explanation for his default.

11.2 Mr Shakumu failed to appear in Court on three occasions, although he chose to highlight the only occasion when he was outside the Court room. Unfortunately for him, his default cannot not be determined by a single incident, but, must be determined by all his shortcomings taken in totality with other incidents of his absence from Court without reasonable excuse. The default of his attendance was on the 29 June 2016, 9 July 2015 and 28 September 2015. Apart from his failure to attend Court, the matter was again set down on the 03 August 2015, but, again did not take off due to the fact that he had not served respondents with relevant and necessary documents. These incidents without more, bearing in mind that Mr Shakumu was already seized with the matter, but, still failed to address the importance of his client but, continued to give this matter little attention. This can only point to his cavalier attitude towards this matter and this therefore qualifies as wilful default. I do not know of any other conduct which applicant has not proffered a reasonable explanation which cannot lead me to conclude that Mr Shakumu was grossly negligent in the circumstances.

[12] This application is based on a written document that has now been revoked by the Donors. Respondent being the Donee, this obviously places him in a difficult pedestal and any defence on this juncture lacks bona fides. Even if the matter was to go for trial, he would not succeed. Rescission of judgement must be brought within the stipulated time after one has had knowledge of the judgement.  Applicant was supposed to have applied for rescission of judgement by 27 July 2015, but, only did so on 03 August 2015. There is no reasonable explanation for this delay and he did not even apply for condonation which is a legal requirement. Applicant was given a chance and the matter was set down for hearing on 17 August 2015. On the day of the hearing, it turned out that the respondents were not served with the necessary documents and the matter was postponed to 28 September 2015 and was subsequently dismissed due to non-appearance of applicant.

[13] Applicant did nothing to re-set the application for rescission until the 10th November 2015 again there is no explanation for his failure. In light of this, I find that Applicant has failed to fulfil the legal principles regarding a successful application for rescission of judgement. I observe a flagrant disregard of the rules as well as set principles for a rescission of judgement. I find that Applicant has done very little to take the Court in its confidence which is a necessity in order to enable the Court to come to an informed decision. This has not been the case.

[14] This Court’s objective is to ensure speedy resolution of disputes at the least expense. It is for that reason that matters should be brought to finality and the Courts frown upon litigants who are not candid with the Court and mount applications that lack bona fides.

Order:

1) Application is dismissed with costs;

2) Applicant must proceed with the execution of the judgement.

M Cheda

Judge

APPEARANCES

APPLICANT: C. Tjihero

Of Dr. Wender, Kauta and Hoveka Inc.

Ongwediva

RESPONDENT : S. Kishi-Shakumu

Of Shakumu & Associates

---