- July 24, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Practice Directive 61
The plaintiff, Supreme Electronic Engineering Solutions CC, brought a case against the defendants: A Shikongo & Partners Investments CC and Sacky Amutenya. Summons were issued on October 10, 2022, and only Mr. Amutenya, the second defendant, defended the matter. The plaintiff’s claims included two aspects. The first claim was based on an oral agreement between the plaintiff and the first defendant, where the plaintiff paid N$30,000 to the first defendant for a vehicle, which was never delivered. The second claim invoked s 64 of the Close Corporations Act, alleging gross negligence in the management of the first defendant by Mr. Amutenya, who was its sole member. Consequently, the plaintiff sought several forms of relief, including a declaration that the first defendant operated negligently, cancellation of the agreement, reimbursement of N$30,000, interest, costs, and more.
On May 8, 2023, Mr. Ausiku appeared on behalf of the second defendant, filing an application to rescind the April 6, 2023, order. Mr. Amutenya claimed confusion about court proceedings and the location of the courtroom, leading to his absence. He sought to rescind the order and defend the action. The plaintiff contested the application, claiming that Mr. Amutenya’s explanations lacked merit and that he had no reasonable prospects of success. They argued that Mr. Amutenya had been consistently non-compliant with court orders, and his claims about being a non-member of the first defendant were contradicted by previous proceedings and documentation.
Ultimately, the court had to consider whether Mr. Amutenya’s application for rescission was valid. The plaintiff emphasized that even lay litigants must adhere to court rules and procedures. The plaintiff contended that Mr. Amutenya’s excuses were unfounded and inconsistent with his actions throughout the case. Moreover, they asserted that he was attempting to evade liability by altering records on the e-justice system.
The plaintiff brought a case against the defendants. Mr. Amutenya, the second defendant, initially participated but later failed to attend court, leading to the striking of his defence. He then filed an application for rescission, which was contested by the plaintiff on the grounds of lack of merit and consistent non-compliance with court orders. The court was tasked with evaluating the validity of Mr. Amutenya’s application in light of his actions and explanations.
The defendant failed to identify the specific rule under which his application was brought. Reference was made to WUM Properties (Pty) Ltd and Another v Prometheus Investments CC and Others, indicating that the choice of recourse is critical. It was inferred from the defendant’s affidavit that the application was under rule 103(1)(a) of the Rules of Court, which empowers the court to rescind or vary orders or judgments erroneously
The defendant claimed that he was present at the court building on April 6, 2023, but couldn’t locate the court roll, which lists case names and courtrooms. He went to a different courtroom, thinking his case was there. However, he didn’t specify where he searched for the court roll. The court roll is typically available at the court entrance and online, but it’s unclear if he checked these sources. He said he approached the Judge’s assistant, who explained that the order might have been issued from chambers, yet the assistant’s name wasn’t provided.
Despite being aware of court proceedings and consequences, the defendant didn’t hear his case called and believed the order was from chambers. The court found his explanations lacking. The defendant’s excuses weren’t convincing, as he had been in court previously and knew the relevant details. The defendant’s claim that his absence was due to not hearing his case called was disputed by Mr. Ausiku. In Zhao v Hou, it was established that rule 103(1) doesn’t apply when a party is informed of a hearing but fails to attend or participate. The court concurred with this view.
The defendant’s behaviour was deemed uncooperative, culminating in his failure to comply with the March 2, 2023 court order. Despite the urgency, he delayed filing the present application for a month after realizing the consequences of his default. The defendant attempted to blame others for his defines being struck and his application for legal representation was unsuccessful.
The defendant’s application for rescission was based on rule 103(1)(a), aiming to set aside an order granted in his absence. However, the court found his explanations insufficient and his actions inconsistent with his claims. The court held that the defendant’s behaviour, delay in filing, and lack of truthfulness undermined his application for rescission.
PRINSLOO J:
As a result, of the striking of the defendant’s defence on April 6, 2023, the defendant’s new counsel, Mr. Ausiku, entered the case on May 8, 2023, and the rescission application was filed on the same day, slightly more than a month after the defence was struck.
‘[40] Having considered the facts before me, I am not convinced that the defendant made out a case that the order of 6 April 2023 was granted in error, nor am I convinced that the defendant brought this application within a reasonable time. In light of my findings, I do not deem it necessary to deal with the defendant’s prospects of success in the main action.
The defendant sought representation from Mr. Ausiku after his legal aid application was rejected. While lack of legal representation may have affected the timing of his application, there were significant unexplained gaps in the defendant’s timeline.
Upon careful evaluation of the facts, the court found no convincing evidence that the April 6, 2023 order was erroneously granted, and it was not satisfied that the application was brought within a reasonable timeframe. As a result, the court did not find it necessary to address the defendant’s prospects of success in the main action.
After thorough consideration, it was determined that the application for rescission must fail. Regarding costs, Mr. Tjiteere requested a punitive cost order. However, since this remained an interlocutory application, the court applied rule 32(11).