- October 9, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant, Agricultural Bank of Namibia, applied under section 14(7) of the Supreme Court Act 15 of 1990, read with rule 6 of the rules of this Court for the summary dismissal of the respondent’s appeal because it was frivolous and vexatious or had no prospects of success. The respondent raised a preliminary point challenging the constitutionality of section 14(7).
On 28 July 2023, the Supreme Court handed down judgment between the same parties in which it made an order dismissing the preliminary point directed at challenging the constitutionality of section 14(7)(a) of the Supreme Court Act 15 of 1990 and rule 6 of the rules of this Court and a further order that the application under section 14(7)(a) is referred to the judge of this Court designated for that purpose (the application was eventually referred to Mainga JA in chambers).
The 28th of July 2023 judgment was summarised and published in volume 43 of Lex Scripta of 4 August 2023. This judgement indicates that the application was referred to a judge of the Supreme Court (Mainga JA) for determination, in chambers, to determine whether to grant condonation to the respondent (Gaya) for the late filing of the appeal record and whether to reinstate the appeal.
Discussion
Mainga JA
[10] The respondent filed a document titled ‘condonation application’. This document is however not deposed to by the respondent. The first sentence of the supporting affidavit reads-
‘I, the undersigned, Hewat Jacobus Samuel Beukes do at this moment solemnly affirm, and the state as follows:’
[11] It is not known to me what authority Mr Beukes is deposing to the affidavit in support of the respondent’s condonation application as he is not even a party to the proceedings. He does not have an interest in this matter and no such interest is even remotely suggested in the said supporting affidavit. For that reason, there is no condonation and reinstatement application deposed by the respondent for the late filing of the appeal record. As such, the appeal remains withdrawn and there is therefore no appeal before this Court needless to say, the court cannot consider whether an appeal that is not before it is frivolous or vexatious. A condonation and reinstatement application is a condition precedent to a withdrawn appeal and the appellant has not crossed that hurdle.
[12] Even if I were to consider the condonation application, the appeal is meritless as there are no prospects of success and the explanation for the late filing of the record (if Mr Beukes who attested to the condonation affidavit had power of attorney to do so) is unreasonable. The explanation hinges on financial constraints and a lack of knowledge of the finer nuances of civil litigation. They both fall short of a reasonable explanation. It is settled law that those who practice or litigate in this Court should acquaint themselves with the rules of this Court. The rule on furnishing security was also violated. The appeal would still have been struck.
[13] The judgment and order of the court a quo, dismissing the respondent’s application for rescission of the default judgments granted against her on 25 September 2019 and 20 January 2020 are unassailable. Respondent failed to give a reasonable explanation for her default, the application for rescission was not bona fide and she had no bona fide defence to the applicant’s claim. Therefore, the rescission application was correctly rejected.’
As a result, the respondent’s appeal was deemed withdrawn and the suspension of the judgments or orders sought to be appealed against was therefore lifted. There was no order as to costs.