1
REPUBLIC OF NAMIBIA NOT-REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case no: I 2551/2014
In the matter between:
COLIA LOUIS FAMILY TRUST APPLICANT
and
KOMSBERG FARMING (PROPRIETARY) LIMITED
(IN LIQUIDATION)RESPONDENT
Neutral citation:Colia Louis Family Trust v Komsberg Faming (Pty) Ltd (In liquidation) (I 2551-2014)NAHCMD 175 (31 July 2015)
Coram:MILLER AJ
Heard:9 June 2015
Delivered:31 July 2015
Flynote:Practice – Automatic bar in terms of rule 54(3) – Applicant failing to file its plea to the respondent’s counterclaim – Test – Must satisfactorily explain the delay or non-compliance with the court order and that there is a bona fide defence to the claim – No evidence for the defence as the plea was not filed – Delay based on unavailability of counsel and ignorance of the rules of the High Court – Court exercising it discretion and dismissing the application for condonation with costs.
ORDER
- The application for condonation and for upliftment of bar is dismissed, with costs.
- Such costs to include the costs of one instructing and two instructed counsel.
- The matter is postponed to the 6th August 2015 at 15h30 for status hearing.
JUDGMENT
MILLER AJ: [1]What is before court is an application to uplift the automatic bar against the applicant for failing to file its plea to the respondent’s counterclaim. The said counterclaim was filed on 27 August 2014 and the Court on 25 September 2014 directed that the applicant’s plea be filed no later than 30 October 2014. In terms of rule 54(3), a party who fails to deliver a pleading within the time stated in the case plan order or within any extended time allowed by the managing judge, that party is in default of filing such pleading and is by that very fact barred.
[2]The applicant seeks the upliftment of the automatic bar and seeks the court’s indulgence to exercise its discretion in terms of rule 55(1) to extend the time within which the plea to the counterclaim may be filed. The court would exercise its discretion, on good cause shown, and may extend or shorten the time period set by the rules or by an order of court. The question before court is therefore whether the applicant has shown good cause for extending the period as set in the order of 25 September 2014 and whether it would be appropriate and suitable to so extend or shorten the period already set.
[3]The matter, being opposed by the respondent, was set down for hearing and counsel for the applicant submitted that the applicant’s legal practitioners, who are based in Cape Town, needed further particulars, in the form of financial statements, long term loan accounts and various further loan accounts which were referred in the first respondent’s counterclaim and plea and which the applicant needed to prepare the plea to the counterclaim. The request for further discovery was made on 24 September 2014 and it was ordered by the court on 25 September that such documentation be provided by the respondent. The applicant alleges that the respondent only gave a preliminary reply in a letter dated 7 October 2014 to be supplemented with all the required documents after an inspection of the records which was to be done in Cape Town was completed. This left the applicant with the impression that no plea was to be filed until such discovery has been done. No such trip or inspection is admitted by the respondent. To date only financial statements were received by the applicants which as a result, counsel was only briefed on 20 October 2014 but could not amend the plea by the 30 October 2014 since these documents were voluminous.
[4]It must be pointed out that the applicant withdrew its action against the respondent on 6 November 2014 and the respondent persisted with its counterclaim. The applicant’s legal practitioners in Cape Town labored under the impression that the rules provided for the applicant to be given a notice of bar before being automatically barred and that no such notice would be delivered until the outstanding documents have been delivered and the applicant given a chance to consider them. Counsel for the applicant further submits that given other commitments in the office, the final plea could only be prepared by the 19th of November 2014. The applicant therefore submits that it is the respondent who did not obey the court order to supply the required documents and contributed greatly to the delay in filing the plea and not for the applicant’s legal practitioner’s ignorance of the new law that the applicant should be barred from filling its plea. It therefore follows that the application is bona fide and not made with the any intention to delay the first respondent’s counterclaim.
[5]Applicant further submits that lack of diligence or negligence on the part of the legal practitioners is not necessarily a bar to relief and courts are loathe to punish a litigant for the conduct of his or her legal practitioners. The applicant has a bona fide defence against the respondents claim as there is a conflation of which entity ought to have been sued by the respondent, counsel argued. As regards the prejudice suffered by the respondent, it is the applicant’s stance that had it not been for the delay and reluctance from the respondents to provide the documents, there would have been no delay in the filling of the plea. The prejudice, if any, should therefore be attributed to the respondent’s own prejudicial conduct. It is on this basis that the applicant prays for the upliftment of the automatic bar.
[6]The applicant tenders the wasted costs for the respondent, to be taxed on a party and party scale, resulting from the late filing of its plea to the first defendant’s counterclaim.
[7]The respondent’s opposition to the application for the upliftment of the bar is primarily based on the argument that the applicant had ample time within which to file their plea to the counterclaim. Accordingly the counterclaim was filed on 27 August 2014 and after the order of 25 September 2014, the applicants could still not file their plea to the counterclaim. The respondents states that to this date, the financial statements of the respondent kept by Loius Group Limited, could not be received from the South African representatives, Mr Michael Louis of Louis Group Limited, and that was clearly communicated to the applicant by 8 October 2014. Failure by the applicants to approach the court before the 30 October 2014 to seek an extension is fatal to their application and the fact that parties may be involved in settlement negotiations does not stop the applicant from filing pleadings in terms of a court order.
[8]The respondents states that the applicant’s legal practitioners in Namibia, François Erasmus & Partners could not have labored under a misconception of the rules andought to have informed his colleague in South Africa.
The Law
[9]It is settled law that there are two requirements for the favorable exercise of the court's discretion. The first one is that the applicant should file an affidavit satisfactorily explaining the non-compliance with the rules of the court. The second one is that the applicant should satisfy the court on oath that he has a bona fide defence.[1]With reference to the requirements of a bona fide defence, it has been held that the minimum that the applicant must show is that his defence is not patently unfounded; that it is based on facts (which must be set out in outline) which, if proved, would constitute a defence; and that the application has not been made with the intention of delaying the action.[2]What is reasonable will depend on the circumstances of each case after the court had regard to various factors such as those contained in rule 55 of the Rules of court.
Is there reasonable explanation by the applicant why the court order of the 25 September 2014 was not complied with?
[10]The applicant’s explanation on the delay is basically twofold. Firstly, that the documents, ie the financial statements were produced but due to the late briefing of counsel and the voluminous nature of the documents which ran to 145 pages, the plea could not be done by 30 October 2015. No reason was advanced as to why the court was not approached for another extension of time to enable the applicant to repair the plea. The further delay caused by the failed settlement negotiations and the delay from the 30 October to 19 November 2014 when the plea was filed with the application has also not been reasonable. The second leg of the explanation is basically that counsel in South Africa labored under the view that the applicant would first be served with a notice of bar and afforded an opportunity to file the plea before ultimately being barred. This was the misconception of the rules of the Namibia High Court as opposed to the South African Rules of court. The applicant overlooks the fact that it had to comply with a court order and not only the rules. The prudent thing to do would have been to familiarize with the Namibian rules before any step is done is a case. It must not be forgotten that it is the applicants who first brought action against the respondent, in the Namibian courts following the local rules and how it came about that this specific rule was not part of the research is not explained. What is also not explained is that the applicant’s legal practitioner in Namibia, who knows the Namibian Courts did nothing to assist the South African Attorneys.
Does the applicant have a bona fide defence?
[11]The applicant relies on the plea attached to this application for the factual allegations setting out the defence to the respondent’s counterclaim. The facts on which the defence is based is not set out in the affidavit. In the result, there is no evidence for the court to establish whether there is a bona fide defence or not.
Costs
[12]There is no reason to depart from the general rule that costs should follow the event.
Order
[13]In the result, it is ordered that:
- The application for condonation and for upliftment of bar is dismissed, with costs.
- Such costs to include the costs of one instructing and two instructed counsel.
- The matter is postponed to the 6th August 2015 at 15h30 for status hearing.
______
PJ Miller
Acting
Appearance
ApplicantWA Corbett, SC
Instructed byFrancois Erasmus & Partners, Windhoek
RespondentR Heathcote, SC (Assisted by J Schickerling)
Instructed byVan Der Merwe-Greef Andima, Windhoek
[1] Solomon v De Klerk 2009 (1) NR 77 (HC) at 79F-G.
[2] P 81, E-F. See further Motaung v Mukubela and Another, NNO; Motaung v Mothiba, NO 1975 (1) SA 618 (O) at 624E-G; Ford v Groenewald 1977 (4) SA 224 (T) at 226G - H; Flugel v Swart 1979 (4) SA 493 (E) at 497F; Du Plooy v Anwes Motors (Edms) Bpk 1983 (4) SA 212 (O) at 214G - H and 216D – E.