REPORTABLE CASE NO: SA 26/2014 IN THE SUPREME COURT OF NAMIBIA In the matter between: RONALD MOSEMENTLA SOMAEB Appellant and STANDARD BANK NAMIBIA LTD Respondent Coram: SHIVUTE CJ, MAINGA JA and HOFF AJA Heard: 16 March 2016; 30 March 2016 Delivered: 27 February 2017 Summary: The lodging of a defective record amounts to non- compliance with rule 5(5) resulting in the lapsing of an appeal. Rules of court are adopted in order to ensure fair and expeditious resolution of disputes in the interests of all litigants, including lay litigants, and to ensure the fair administration of justice generally.
Transcript
REPORTABLE
CASE NO: SA 26/2014
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
RONALD MOSEMENTLA SOMAEB Appellant
and
STANDARD BANK NAMIBIA LTD Respondent
Coram: SHIVUTE CJ, MAINGA JA and HOFF AJA
Heard: 16 March 2016; 30 March 2016
Delivered: 27 February 2017
Summary: The lodging of a defective record amounts to non-compliance with rule
5(5) resulting in the lapsing of an appeal. Rules of court are adopted in order to
ensure fair and expeditious resolution of disputes in the interests of all litigants,
including lay litigants, and to ensure the fair administration of justice generally.
The consequence of non-compliance with rules 8(2) and 8(3) is that the appeal is
deemed to have been withdrawn and may be struck from the roll. Non-compliance
with rules 5(5), 8(2), 8(3) by a litigant necessitates the lodging of an application for
condonation as well as reinstatement of the appeal.
The appellant never applied for the reinstatement of his appeal, never provided
security for costs and filed no proper record. These failures constitute insurmountable
barriers to this appeal. No prospects of success on the merits found.
Where non-compliance with the rule is glaring, flagrant and inexplicable court may not
consider the prospects of success on the merits.
The registrar may in terms of rule 5(16) refuse to accept copies which do not in his or
[1] This is an appeal against an order of the High Court granting an application for
summary judgment (on 26 March 2014) in favour of the respondent which had sought
the eviction of the appellant from immovable property, Erf 4785 (a portion of Erf 8446)
Katutura, extension 15, Windhoek.
[2] When the appeal, set down on 16 March 2016, was heard, there were two
condonation applications before court. The first, related to an application by the
appellant in which the appellant sought condonation for his non-compliance with rules
5, 8(3), 11(1) and 11(2) of the Rules of this Court. The second, related to an
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application by the respondent for non-compliance with the provisions of rule 5(4)(b)
read with rule 11(2). The second application was filed on 14 March 2016, two days
before the hearing of this appeal. The appellant, an alleged layperson, sought a
postponement in order to prepare an answering affidavit in opposition to respondent’s
condonation application. This request, in spite of opposition thereto by Mr van Vuuren
who appeared on behalf of the respondent, was granted and the hearing of the
appeal was adjourned to 30 March 2016.
The condonation application by the respondent
[3] Rule 5(4)(b) provides that where there is no cross-appeal a power of attorney
to oppose the appeal shall be lodged with the registrar by the respondent’s legal
practitioners when copies of respondent’s main heads of argument are lodged. Rule
11(2) provides inter alia that a respondent shall not later than 10 days before the
hearing lodge with the registrar and serve on the appellant his or her main heads of
argument.
[4] In the founding affidavit a Mr Nolan William Christians, on behalf of the
respondent, stated that the respondent delivered its heads of argument on 1 March
2016, but that its legal practitioners did not have regard to the provisions of rule 5(4)
(b) only to those of rule 11(2). Thus only the heads of argument were filed without the
power of attorney.
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[5] It was explained that this oversight was discovered by its legal practitioners on
7 March 2016 and the required power of attorney was filed the next day, together with
a resolution passed by its board of directors (dated 19 March 2010). Attached to the
founding affidavit was also a certificate in which the Chief Executive of the
respondent, Mr Vetumbuavi Mungunda, stated that the resolution of the board of
directors dated 19 March 2010 conferred upon him certain delegated powers with
the right to further delegate such powers, and that he had delegated the powers to Mr
Nolan William Christians to sign any power of attorney in favour of the Bank’s legal
practitioners, to institute or defend litigation in any court or to prosecute or oppose
any appeal against any judgment affecting the Bank, and sign any affidavits or
documents that may be required in relation to any litigation affecting the Bank.
[6] Christians stated that the respondent was also served with appellant’s
application for condonation on 8 March 2016, prepared answering papers to
appellant’s application for condonation and proceeded to prepare its own application
for condonation for the late filing of the power of attorney.
[7] Mr van Vuuren submitted with reference to a judgment of this court1 that a
power of attorney serves a specific purpose and that is ‘to prevent any person whose
name is cited in the process, from thereafter repudiating the process and denying his
authority for the issue of the process’.2
1 Rally for Democracy and Progress & others v Electoral Commission for Namibia & others 2013 (3) NR 664 (SC) at 705 (para 83).2 See United Dominions Corporation (SA) Ltd v Greylings’ Transport 1957 (1) SA 609 (T) at 614D quoted with approval in Rally for Democracy and Progress.
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[8] In Rally for Democracy and Progress this court,3 stated that ‘a power of
attorney must be lodged with the registrar but the rule does not even require that a
copy of it should be delivered to the respondent’.
[9] The appellant filed an answering affidavit on 24 March 2016. In addition four
other documents were filed by the appellant. The only document relevant to this
appeal is a document which related to the special power of attorney of the
respondent.
[10] The argument advanced by the appellant in this document is that rule 5(4)(b) is
peremptory in view of the usage of the word ‘shall’ in the rule. The respondent in this
matter did in fact lodge with the registrar the required power of attorney. The case of
the appellant is not that he was in any manner prejudiced by the late filing of the
power of attorney by the respondent.
[11] If one has further regard to the fact that the lodging of a power of attorney
serves a specific purpose as explained, then there is no justification why this court
should not exercise its discretion in favour of the respondent by granting the
condonation application.
Application for condonation by the appellant
[12] The relief sought by the appellant is the following:
3 In considering the provisions of rule 5(4)(a).
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‘1. Condoning the applicant’s/appellant’s non-compliance with the provisions of
Rule 5; 8(3) and 11(1) and (2) of the Rules of this Court;
2. Ordering that the application for default judgment, notice of sale in execution,
letter to Behrens & Pfeiffer and application for intervention are relevant and
applicable to the subject matter.’
Non-compliance with Rule 5
[13] It appears from the condonation application that the appellant sought
condonation for the non-compliance with rule 5(8) which requires that one of the four
copies of the record ‘lodged with the registrar shall be certified as correct by the
registrar of the court appealed from’.
[14] The appellant further states that he had complied with the provisions of rule
5(5) which requires the lodging of four copies of the record with the registrar within
three months of the date of the judgment appealed against and that the registrar had
not refused to accept such copies of the record.
[15] Mr van Vuuren submitted that as no proper record had been lodged with the
registrar, that the record is fatally defective, and there is no valid appeal before this
court.
[16] Mr van Vuuren pointed out that a transcript of the proceedings of 12 March
2014 when the summary judgment application was argued, is not included in the
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record. It was submitted, that a transcript of the proceedings is of the utmost
importance in order to properly adjudicate this appeal. What appears from the record
is that the application for summary judgment was set down on 4 March 2014. On this
day Mr van Vuuren fully argued in favour of the granting of such order. The appellant
(who was the respondent in that application) sought a postponement alleging that he
was not afforded adequate time for the presentation of his defence. The matter was
then postponed to 12 March 2014 to consider the appellant’s defence to the summary
judgment application. A transcription of the proceedings of 12 March 2014 does not
form part of the record in this appeal but the appeal record is defective because it
contains appellant’s head of argument as well as a transcript of the oral argument on
behalf of the respondent.
[17] In addition documentation which did not serve before the court a quo form part
of the present appeal record. These documentation include an application for default
judgment, a notice of sale in execution, a letter to Behrens and Pfeiffer Attorneys, and
an application for ‘intervention’. These documents are irrelevant in respect of the
present appeal.
[18] In respect of the defective record it was in addition submitted that there was
non-compliance with the provisions of rule 5(10) which requires every 10 th line of each
page to be numbered.
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[19] It was contended by Mr van Vuuren that the respondent is prejudiced by the
defective record in that no proper adjudication can occur on the record as it stands at
present, and that this court is inconvenienced by appellant’s failure to lodge a proper
record.
[20] A failure of a litigant to comply with the provisions of rule 5(5) results in the
appeal lapsing. In the present matter lodging a defective record amounts to non-
compliance with rule 5(5).
[21] It is incumbent on every litigant to comply with rules of court in view of the fact
that rules of court serve a specific purpose. In Molebatsi v Federated Timbers (Pty)
Ltd 1996 (3) SA 92 (B) quoted with approval in S v Kakololo 2004 NR 7 (HC) at 10C-
E the following was stated (at p 96G-H).
‘The Rules of Court contain qualities of concrete particularity. They are not of an
aleatoric quality. Rules of Court must be observed to facilitate strict compliance with
them to ensure the efficient administration of justice for all concerned. Non-
compliance with the said Rules would encourage casual, easygoing and slipshod
practice, which would reduce the high standard of practice which the courts are
entitled to in administering justice. The provisions of the Rules are specific and must
be complied with; justice and the practice and administration thereof cannot be
allowed to degenerate into disorder.’
[22] Rules of court cannot be applied selectively in the sense that they are bound to
be complied with only by a certain group of persons engaged in litigation in our
courts.
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[23] In Worku v Equity Aviation Services (Namibia) (Pty) Ltd (In Liquidation) &
others 2014 (1) NR 234 (SC) at 240 this court stated the following at para 17:
‘It follows from what has just been said that the appellant has not complied with the
rules of the court that regulate the prosecution of appeals in material respects. In
reaching this conclusion, it has been borne in mind that appellant is a layperson who
represents himself before the court. The appellant implored the court to overlook his
procedural non-compliance and determine the substantive issues that he asserts
underlie the appeals, namely, the satisfaction of the judgments of the district labour
court mentioned above. However, we cannot overlook the rules which are designed to
control the procedures of the court. Although a court should be understanding of the
difficulties that lay litigants experience and seek to assist them where possible, a court
may not forget that court rules are adopted in order to ensure fair and expeditious
resolution of disputes in the interests of all litigants and the administration of justice
generally. Accordingly, a court may not condone non-compliance with the rules even
by lay litigants where non-compliance with the rules would render the proceedings
unfair or unduly prolonged.’
[24] In considering non-compliance with rules of court a discretion is exercised. In
Namib Plains Farming and Tourism CC v Valencia Uranium (Pty) Ltd & others 2011
(2) NR 469 (SC) the following was stated by this court at para 19:
‘The principles relating to the consideration of an application for condonation are well-
known. In considering whether to grant such, a court essentially exercises a
discretion, which discretion has to be exercised judicially upon consideration of all the
facts in order to achieve a result that is fair to both sides. Furthermore, relevant
factors to consider in the condonation application include the extent of non-
compliance and the explanation for it; the prospects of success on the merits; the
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importance of the case; the respondent’s interest in the finality of the judgment; the
convenience of the court, and the avoidance of unnecessary delay in the
administration of justice.’
Non-compliance with rule 8(3)
[25] Rule 8(3) provides as follows:
‘If the execution of a judgment is suspended pending appeal, the appellant shall,
when copies of the record are lodged with the registrar, inform the registrar in writing
whether he or she –
(a) has tendered security in terms of this rule; or
(b) has been released from that obligation, either by virtue of waiver by the
respondent or release by the court appealed from, as contemplated in subrule
(2),
and failure to inform the registrar accordingly within the period referred to in rule 5(5)
shall be deemed to be failure to comply with the provisions of that rule.’
[26] In considering the issue of non-compliance with the provisions of rule 8(3) the
provisions of rule 8(2) are relevant. Rule 8(2) provides that where the execution of a
judgment is suspended pending appeal, the appellant shall before lodging with the
registrar copies of the record enter into good and sufficient security for respondent’s
costs of appeal unless the respondent waives the right to security or the court
appealed from upon application releases the appellant wholly or partially from that
obligation.
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[27] If one has regard to the provisions of rule 8(3) read together with the provisions
of rule 5(5) it is clear that non-compliance with rule 8(3) also constitutes non-
compliance with rule 5(5).
[28] In his founding affidavit the appellant in explaining his non-compliance with the
provisions of rule 8(3), which should be read with rule 8(2), stated the following:
‘The provisions of Rule 8(6) of the Rules of this Court is relevant and applicable to this
appeal in that my legal aid was approved, which provides as follows:
“Notwithstanding complained (sic) is these rules, a person to whom legal aid is
rendered by or under any law is not compelled to give security for the costs of
the opposing party, unless the Court directs otherwise.” ’
[29] Two letters from the Director: Legal Aid were attached to the founding affidavit.
In the first letter dated 25 June 2014, the appellant was inter alia informed as follows:
‘We refer to your application dated 05/02/2009 and have pleasure to inform you that it
has been approved. We have instructed Mr L.S. Murorua.’
The second letter in part reads as follows:
‘We refer to your application received on 20/06/2011 and have pleasure to inform you
that it had been approved. We have instructed Mr J. Diedericks.’
[30] The appellant in an answering affidavit stated the following at para 13.5:
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‘The fact that the legal practitioners appointed by the Legal Aid Directorate to render
services in this appeal declined and/or refused to represent me and to do necessary
paper work for the hearing of the appeal, did not disqualify me to rely on Rule 8(6).’
[31] The dates referred to by the Director: Legal Aid in these two letters are
significant. The appellant attached these letters to his founding affidavit in support of
the contention that legal aid had been rendered to him and therefore he was under no
legal obligation to provide security as required by rule 8.
[32] The appellant gave notice of his intention to appeal (High Court case no.
I 1912/2013) on 26 March 2014 the same date on which the judgment in the High
Court was delivered.
[33] It is therefore impossible that an application for legal aid could have been
made by the appellant, which relates to the judgment delivered on 26 March 2014,
prior to the delivery of such judgment. As already observed, the first letter relates to
an application dated 05/02/2009 and the second letter refers to an application already
received on 20/06/2011.
[34] No reference is made in these letters to the particular case in which the alleged
legal aid is rendered and the letters do not disclose the parties or the case numbers.
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[35] What is of further significance is that the appellant in a letter to the registrar
dated 23 April 2014 offered N$5000 as security for the respondent’s costs of appeal.
[36] The Registrar determined the amount of N$45 000 as security in terms of
rule 8(4).
[37] The appellant appeared in person to argue his appeal and chose not to make
use of the services of any one of the two instructed counsel. He cannot be heard to
argue that legal aid had been rendered to him because it was not. The Directorate:
Legal Aid instructed counsel, no legal aid was rendered to the appellant. The reliance
on the provisions of rule 8(6) by the appellant is in my view without any foundation
and disingenuous.
[38] The appellant knew that he had to comply with the peremptory provisions of
rule 8 hence his offer on 23 April 2014 to pay security. The appellant had not been
released from the obligation to pay security in terms of rule 8(2)(b), neither did the
respondent waive the right to security in terms of rule 8(2)(a). The consequence of
the non-compliance with rule 8(3) is that the appeal is deemed to have been
withdrawn and may for this reason alone be struck from the roll, and without the
‘reinstatement of the appeal, no further consideration may be given to it’.4
4 Rally for Democracy and Progress & others v Electoral Commission of Namibia & others 2013 (3) NR 664 (SC) para 39.
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[39] This court stated the following in Worku in respect of non-compliance with rule
5 at para 11:
‘If an appeal is deemed to have been withdrawn within the meaning of rule 5(6)(b) the
appellant must lodge an application for condonation for the late filing of the record as
well as reinstatement of the appeal. The appellant failed to apply for reinstatement . . .
On this basis alone, neither of these appeals is properly before the Court and should
accordingly be struck from the roll . . . . The absence of proper applications for
condonation and for reinstatement of the appeals is an insuperable obstacle to this
court entertaining the first and second appeals.’
[40] The appellant in this matter similarly never applied for the reinstatement of his
appeal, never provided security for costs and filed no proper record. These failures
too constitute insurmountable barriers to this appeal. The appellant in his founding
affidavit in support of his condonation application admitted that the only copy of the
record was not certified by the registrar, but added that the registrar did not refuse to
accept the copy of the record lodged.
[41] In his regard it is apposite to remind the appellant, as well as litigants in
general, what this court said in this regard in the Worku matter at paras 20 and 21:
‘20. It should have been clear to the registrar of this Court that the record in these
appeals was not in compliance with the rules, and also that the appellant had failed to
furnish security for the respondent’s costs on appeal. It is undesirable for appeals to
be enrolled for argument in circumstances where there is material non-compliance
with the rules, as the hearing of such appeals may involve respondents in
unnecessary legal expense that they may not be able to recover, and will put strain on
scarce judicial resources. Rule 5(6)(b) makes it plain that non-compliance with rule
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5(5), and by extension rule 8(3) will have the consequence that an appeal is ‘deemed
to be withdrawn’. In this regard attention is drawn to rule 5(16) which provides that:
“The Registrar may refuse to accept copies which do not in his or her opinion
comply with the provisions of this rule.”
21. Accordingly, where an appeal is deemed to have been withdrawn, or where
the appeal record is not in proper order, an appeal should not be enrolled for hearing
until proper applications for condonation and reinstatement of the appeal have been
filed and served and the record has been put in proper order. Adopting this approach
will ensure that respondents are not put to unnecessary legal expense and that scarce
judicial resources are not dissipated.’
[42] The registrar should in this matter have refused to accept the copy of the
record filed by the appellant. That which this court warned against in Worku, namely
the incurring of unnecessary legal expense, came to fruition in this appeal.
[43] This court in Arangies t/a Auto Tech v Quick Build 2014 (1) NR 187 (SC) and
with reference to Beukes & another v SWABOU & others [2010] NASC 14 para 20 in
respect of a condonation application said:
‘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”.’
[44] Non-compliance with the rules in this appeal by the appellant is glaring,
flagrant and inexplicable. I shall nevertheless consider the prospects of success on
the merits of the appeal.
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The prospects of success
[45] The respondent’s action in the court a quo was based on the rei vindicatio. The
respondent had to prove that it was the owner of the relevant property and that the
appellant was in possession thereof. The respondent has proved that it is the owner
of the relevant property as evidenced by the deed of transfer (no. T 1401/2013). It is
common cause that the respondent is in possession of the property and despite
demand is refusing to vacate it.
[46] In Chetty v Naidoo 1974 (3) SA 13 (AD) at 20C the following was said;
‘The owner in instituting a rei vindicatio, need, therefor, do no more than allege and
prove that he is the owner, and that the defendant is holding the res – the onus being
on the defendant to allege and establish any right to continue to hold against the
owner.’
[47] In terms of rule 32(3)(b) of the previous High Court rules the appellant in this
appeal could have established such a right by satisfying:
‘the court by affidavit . . . or with the leave of the court by oral evidence of himself or of
any other person who can swear positively to the fact that he has a bona fide defence
to the action; such affidavit or evidence shall disclose fully the nature and grounds of
the defence and the material facts relied upon therefor.’
[48] In his affidavit (dated 12 September 2013) resisting summary judgment the
appellant made certain statements and allegations.
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[49] Firstly, the appellant stated that no public auction took place on 13 November
2012 since there were no potential buyers and that he had witnesses who could
confirm this. In another sworn statement dated 3 March 2014 the allegation was
made that the deputy sheriff exercised ‘his powers beyond his limits and under
dubious circumstances’ by transferring the property to the respondent and had stated
at the Deeds Office that the property was sold on public auction.
[50] Secondly, it was contended that the deputy sheriff as an administrative official
is required in terms of Art 18 of the Namibian Constitution to act fairly and reasonably
and that the deputy sheriff is ‘in contempt of this Honourable Court in accordance,
with Art 18 of the Namibian Constitution’.
[51] Thirdly, that ‘this case is pending in the Supreme Court in case no. A 27/2012’.
[52] The appellant prayed that for these three reasons the application for summary
judgment be dismissed.
I shall first deal with the third point.
[53] In a plea (filed 14 August 2013) to the respondent’s particulars of claim the
appellant denies that the respondent is the owner of the said property and stated that
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there is a ‘pending matter in Supreme Court under case number SA 15/2013 to
determine the ownership of the said property’.
[54] Mr van Vuuren correctly submitted that the appellant had failed to plead any of
the requirements for a defence of lis alibi pendens. These requirements are: (a)
pending litigation; (b) between the same parties; (c) based on the same cause of
action; and (d) in respect of the same subject matter.5
[55] In Nestlé (South Africa) (Pty) Ltd v Mars Inc 2001 (4) SA 542 (SCA) para 16
the following is said in respect of this defence:
‘The defence of lis alibi pendens shares features in common with the defence of res
judicata because they have a common underlying principle, which is that there should
be finality in litigation. Once a suit has been commenced before a tribunal that is
competent to adjudicate upon it, the suit must generally be brought to its conclusion
before that tribunal and should not be replicated (lis alibi pendens). By the same token
the suit will not be permitted to be revived once it has been brought to its proper
conclusion (res judicata). The same suit, between the same parties should be brought
only once and finally.’
[56] It appears from the record that reference to Supreme Court case no. A
27/2012 is a misnomer. Case no. A 27/2012 concerned an application in terms of rule
30 of the High Court in respect of an allegation of irregular steps taken by the
5 George & others v Minister of Environment Affairs and Tourism 2005 (6) SA 297(EqC) para [28]; Harms Amler’s Precedents of Pleadings 7th ed at 263-264.
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applicants in the matter.6 Supreme Court case no. SA 15/2013 was an appeal matter
against the judgment of the High Court in case no. A 27/2012.
[57] In Standard Bank Namibia Ltd & others v August Maletzky & others 2015 (3)
NR 753 (SC) this court considered its power to interfere with the discretion exercised
by the court a quo in dismissing the rule 30 application.7 The determination of the
ownership of the relevant property was never an issue before this court. The plea of
the appellant in para 54 is thus factually incorrect.
[58] The requirements of rule 32(3)(b) which must be satisfied for a successful
opposition to a claim for summary judgment was stated as follows in Maharaj v
Barclays National Bank Ltd 1976 (1) SA 418 (A.D.) at 426A-D by Corbett JA:
‘Accordingly, one of the ways in which the defendant may successfully oppose a claim
for summary judgment is by satisfying the Court by affidavit that he has a bona fide
defence to the claim. Where the defence is based upon facts, in the sense that
material fact alleged by the plaintiff in his summons, or combined summons, are
disputed or new facts are alleged constituting a defence, the Court does not attempt
to decide these issues or to determine whether or not there is a balance of
probabilities in favour of the one party or the other. All that the Court enquires into is:
(a) whether the defendant has ‘fully’ disclosed the nature and the grounds of his
defence and the material facts upon which it is founded, and (b) whether on the facts
so disclosed the defendant appears to have, as to either the whole or part of the
claim, a defence which is bona fide and good in law. If satisfied on these matters the
Court must refuse summary judgment, either wholly or in part, as the case may be.
6 August Maletzky & others v Standard Bank & others case no. A 27/2012 in which judgment was delivered on 31 July 2012 by Miller AJ.7 At p 756 (para 1); p 773 (para 51); p 774 (para 52).
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The word ‘fully’, as used in the context of the Rule (and its predecessors), has been
the cause of some judicial controversy in the past. It connotes, in my view, that, while
the defendant need not deal exhaustively with the facts and evidence relied upon to
substantiate them, he must at least disclose his defence and the material facts upon
which it is based with sufficient particularity and completeness to enable the Court to
decide whether the affidavit discloses a bona fide defence.’
[59] I wish now to refer to some relevant paras (15, 18, 19 and 20) of the judgment
of the court a quo in which it dealt with the application for summary judgment:
‘15. Respondent is not permitted by law to introduce new matter at this juncture. If
he is not happy with the sale of the property for whatever, reason, his best cause of
action is an application to set the sale aside, see Todd v First Rand Bank Ltd and
others 2013 (3) ALL SA 500 (SCA) and Mbanderu Traditional Authority and Another v
Kahuure and Others 2008 (1) NR 55 (SC).’
and further at paras 18, 19 and 20:
‘18. In order for defendant/respondent to succeed in resisting summary judgment
he/she should show that he/she has a bona fide defence. In establishing a bona fide
defence, he must at least disclose sufficient particularity to enable the court to judge
that the opposing affidavit discloses a bona fide defence, see Maharaj v Barclays
National Bank Ltd 1976 (1) SA 418 (AD) at 426C-D and District Bank Ltd v Hoosain
1984 (4) SA 544 (C) at 547G.
19. Respondent does not have to prove his defence to the same extent as that of
applicant on opposed application. He must depose to facts which, if accepted as the
truth or which can be proved at the trial with admissible evidence, discloses a
defence, see Estate Potgieter v Elliot 1948 (1) SA 1084 (C) at 1087 and Shepstone v
Shepstone 1974 (2) SA 462 (N) at 466.
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20. Respondent has failed to prove a bona fide defence in this matter. All he did
was to introduce new matters without leave of the court. On the basis of this,
respondent has not raised any defence in order to successfully resist this application
for summary judgment.’
[60] I have referred in para 52 to the third allegation in the opposing affidavit by the
appellant regarding the case pending in the ‘Supreme Court’. That allegation is a bald
statement and contains no ‘sufficient particularity and completeness’ which could
have enabled the court a quo to decide whether the appellant had disclosed a bona
fide defence and that allegation does not meet the requirement set out in rule 32(3)
(b).
[61] The first and second statements or allegations in the affidavit opposing the
application for summary judgment (referred to in para 51), also do not disclose any
defence at all and fall far short of being ‘bona fide and good in law’ as prescribed in
Maharaj. If the respondent had sincerely believed that the deputy sheriff had acted
unfairly and unprofessionally he should have, as soon as he had been served with the
summons, in which an order for his ejectment was sought, launched an application to
have the sale of execution set aside as well as the transfer of the property into the
name of the respondent. He failed to do so and there is no explanation for this failure.
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[62] The trial court was alive to the fact that summary judgment is an extraordinary
and very stringent remedy, ‘thereby closing the doors of the court against the
defendant’.
[63] The respondent established its claim clearly in the court a quo and the
appellant failed to satisfy the court that he had a bona fide defence.
[64] In my view the court a quo did not misdirect itself in exercising its discretion by
granting the application for summary judgment in favour of the respondent. See
Gruhn v M Pupkewitz & Sons (Pty) Ltd 1973 (3) SA 49 (AD) at 58D.
[65] Mr van Vuuren submitted that the respondent, in the event of the dismissal of
the appeal, is entitled to costs against the appellant and prayed for costs on the basis
of one instructing and one instructed counsel.
[66] The following orders are made:
1. The application for condonation by the respondent is granted.
2. The condonation application by the appellant is refused and the appeal is
struck from the roll.
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3. The appellant is ordered to pay the costs of the respondent on appeal
including the wasted costs of appearance on 16 March 2016 on the basis of
![ejustice.moj.naejustice.moj.na/Supreme Court/Judgments/Judgments/Westcoast Fishin… · Web view[8]During July 2011 the appellant appointed Alberts Becker Vorster Pillay and Associates](https://static.documents.pub/doc/80x56/5c3741f609d3f2f9578b8399/courtjudgmentsjudgmentswestcoast-fishin-web-view8during-july-2011-the-appellant.jpg)
