- December 6, 2022
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Whereas, the plaintiff instituted action for the eviction of the defendant from Erf 3466, Kehemu extension 7, Rundu, and an order was granted on 20 April 2021 against the applicant/defendant, the defendant applied for rescission of this order on 11 October 2021, some 11 months after the default judgment was granted, in terms of Rule 16 of the Rules of the High Court of Namibia.
In her founding affidavit, the defendant explained the delay in defending the main action and set out bona fide defenses for the matter. The defendant’s evidence was that she is a lay person who is not fluent in the English language and that when the process of service was effected on her it was not explained. The defendant was pregnant at the time and was called by a man who informed her that he has documents for her. She had no idea what the content of the documents were. The applicant therefore only gained knowledge of the default judgment and its consequences during or about August 2021, when a messenger of the court (sic) informed her. She then wrote a letter to the Rundu Town Council on 30 August 2021 enquiring about the sale of the land where she traditionally stayed. She was informed by the town planner, Mr. Kasumbie that he will help her with her legal matter. It was only on 25 September 2021 that she went to see a legal practitioner who informed her that she will need to apply for rescission of the judgment granted against her.
She further alleged that her mother was allocated plot 3466 at Kehemu location by the Shambyu Traditional Authority and attached a letter from the head woman of this traditional authority. She also stated that a customary land right was allocated to her mother and grandmother by the Shambyu Traditional Authority before independence and as such, she was never compensated or consulted by the Rundu Town Council when they decided to sell these plots as town lands. She further stated that the Town Council was aware that she was residing on the said plot as she made several payments towards water as she has an account in her name for that property.
After considering arguments by the parties and applicable legal principles, Rakow J concluded that:
‘[11] After studying the documents and affidavits presented by the parties and the court is inclined to accept the explanation for the delay in bringing the rescission application by the defendant. She explained that she did not understand English and was not aware of what was served on her.
[12] The onus however further rests with the defendant to satisfy the court that there are indeed good prospects of success before condonation can be granted for the late filing of the application as well as the application for recession considered. In this instance, the plaintiff lawfully bought the property from the Town Council of Rundu. There is no indication of what their stance on the matter is. It is further true that the only documentation that the defendant provided to this court, is a letter from the head woman of the traditional authority, which does not provide an affidavit, but only informs the court that she knows the defendant who came with her mother to this certain plot and has been staying there. There is no indication that the defendant has any claim to this property or that it was awarded to her or her family at any stage. For that reason, I do not believe that there is prospects of success and must dismiss the recession application.
As a result, the application was dismissed with costs.
Kwenani v Ndara (HC-MD-CIV-ACT-DEL-2021-00215) [2022] NAHCMD 664 (06 December 2022)