CASE NO.

: I 3124/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

WINDHOEK TRUCK AND BAKKIE CC APPLICANT

and

GREENSQUARE INVESTMENTS 106 CC RESPONDENT

CORAM: Botes, AJ.

HEARD ON: 16 November 2010

DELIVERED ON: 3 December 2010

JUDGMENT

BOTES, AJ.:

[1] On the 4th of August 2010, the applicant filed a notice of motion in terms of rule
44 in which applicant requested an order in the following terms:

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 “1. That the following default judgment issued and granted by the Registrar of the
above Honourable Court on the 1st day of October 2009 in the following
terms:

1.1 For payment of the sum of N$506 000.00 against delivery of the Scania
Truck 420-124 to defendant;

1.2 Interest a tempore morae on the aforesaid amount at the rate of 20%
per annum;

1.3 Costs of suit;

1.4 Further and/or alternative relief

be rescinded and set aside in terms of Rule 44 of the Rules of the above
Honourable Court.

2. That all processes issued pursuant to the aforesaid judgment be set aside.

3. That applicant be granted leave to enter an appearance to defend the action

within the time to be determined by this above Honourable Court.

4. Costs of this application, including the costs of one instructing counsel and
are (sic) instructed on the scale de bonis propriis.

5. Further and/or alternative relief.”

[2] The respondent opposed the application, but on 13 August 2010 consented that
applicant is entitled to the relief sought in paragraphs 1, 2 and 3 of the notice of
motion. Respondent disputed the applicant’s entitlement to the costs of the
application, including the costs of one instructing and one instructed counsel, on the
scale de bonis propriis. In the light of respondent’s concession on the merits, the
only question which this court has to decide is whether applicant is entitled to its
costs, and if so, on what basis and scale. Having regard to the nature of the dispute,
it is necessary to, in short, refer to the history of the relevant and material facts
germane to this application.

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[3] The applicant during the hearing was represented by Mr Wylie, instructed by
Neves Legal Practitioners while Mr Stolze of Chris Brandt Attorneys appeared on
respondent’s behalf. Mr Wylie, in the beginning of his argument applied for the
striking out of numerous paragraphs of the respondent’s opposing papers. I
however, due to the outcome reached herein, do not deem it necessary to deal with
the merits of the striking out application, separately. The relevant facts, as it appears
from the papers filed of record, can be summarised as follows:

3.1 On the 10th day of September 2009, respondent, through its legal practitioners
of record, Chris Brandt Attorneys, served a combined summons on the
applicant. The combined summons was defended, by way of a notice of
appearance to defend, on the 23rd day of September 2009, filed 9 days after
the service of the combined summons on the applicant.

3.2 On the 22nd day of September 2009, and only 8 days after the service of the
combined summons on the applicant, respondent’s legal practitioners of
record filed an application for default judgment to the registrar. On 1 October
2009 the registrar granted the judgment.

3.3 The respondent and/or its legal practitioners of record do not deny that the
application for default judgment to the registrar was filed prematurely and
neither do they deny that respondent erroneously obtained default judgment
on the 1st day of October 2009 due to the fact that applicant correctly
defended the action.1

3.4 After receipt of the notice of intention to defend, the respondent’s legal
practitioners of record, on the 25th day of September 2009 filed an application
for summary judgment which was set down for hearing on the 16th of October
2009. The applicant duly opposed the summary judgment application and
filed opposing papers.

3.5 When the summary judgment application had to be heard on the 16 th day of
October 2009, same was not on the roll for that day. It was also during that

1
Record, pg 69. See also rule 19 (1) of the Rules of this Court.
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 period that the parties became aware of the existence of the default judgment
granted by the registrar to the applicant.

3.6 Subsequent to the discovery of the existence of the default judgment, the
parties entered into correspondence and round-table discussions in an
attempt to resolve the issue of the default judgment. Although requested to
do so in writing, and orally, the respondent, and his legal practitioners simply
refused to set aside and/or abandon the default judgment. The above
discussions continued up and until July 2010. Despite being aware, that the
default judgment was erroneously granted, which aspect I will return to shortly
hereunder, and never should have come into existence, the respondent
through his legal practitioners applied for and obtained a writ of execution
based on the irregular granted default judgment. The writ of execution was
issued on the 7th day of June 2010. This was done without informing the
applicant’s legal practitioners of record thereof.

3.7 After the writ of execution had been served on the applicant, the applicant’s
legal practitioners, on the 5th of July 2010 addressed a letter to respondent’s
legal practitioners, with inter alia, the following content:

“Closer investigation revealed that the writ was issued in terms of a default judgment
granted in your client’s favour; default judgment that was erroneously granted and of
which you were informed of by our Mr Karsten’s on 07 December 2009, all ready.

Despite being aware of the fact that the judgment was erroneously granted, you still
deemed it fit to have a writ of execution issued. Your actions are not just vexatious
and frivolous, but also malicious.

We demand that you uplift the writ of execution and abandon the erroneously granted
default judgment and send us proof of same by close of business today: failing
which, we will immediate apply for rescission of judgment and request a special cost
order against you.

Should you continue with this action, same will be vehemently defended and, again,
you can be assured that we will request that a costs order be granted against you.”

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 3.8 Since no reply was forthcoming, to the aforesaid letter, applicant’s attorney
prepared and forwarded a brief to counsel on the 7 th of July 2010. A
consultation was arranged with counsel on the 15th of July 2010. On that
same day, the legal practitioners of the respondent replied to the aforesaid
letter of applicant’s legal practitioners, dated the 5th of July 2010. The letter is
not annexed to the founding, nor opposing papers, as same was written
without prejudice, but it is stated in the founding papers of applicant that the
effect of the letter was that the respondent finally indicated that the
respondent/plaintiff was not willing to abandon the erroneously sought and
obtained default judgment. This is not disputed by respondent in its
answering papers. This prompted the applicant to file the present application.

[4] As already indicated hereinbefore, the combined summons was served on the
applicant on the 10th day of September 2009. The dies inducea allowed for the
applicant to defend the action only would have lapsed on the 24th of September
2009. A notice of intention to defend was filed on respondent’s legal practitioners of
record on the 23rd of September 2009.

[5] Respondent’s legal practitioners, however on the 22 nd day of September 2009,

filed an application for default judgment with the registrar of this Court. The relevant
portion of the application for default judgment reads as follows:

“BE PLEASED TO TAKE NOTICE that the application is hereby made for default judgment
against the Defendant for:

1. Repayment of the sum of N$506 000.00 against delivery of the Scania Truck 420-
124 to defendant;

2. Interest a tempore morae on the aforesaid amount at the rate of 20% per annum;

3. Costs of suit:

4. Further and/or alternative relief;

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TAKE NOTICE FURTHER THAT:

1. The Defendant has duly been served with the summons;

2. The time for entering an appearance to defendant has expired; and

3. The Defendant has not entered an appearance to defend;

4. It is submitted that the papers are in order;

DATED at WINDHOEK on this 22nd day of SEPTEMBER 2009.

Signed_______

CHRIS BRANDT ATTORNEYS

PER: F.C. BRANDT

29 HEINITZBURG STREET

WINDHOEK

FCB/243.09

TO: THE REGISTRAR OF THE HIGH COURT

WINDHOEK

Having read the application and supporting papers, default judgment is hereby granted on
the 1.10 2009 as requested.

signed________

REGISTRAR”2

[6] It is obvious from the contents of the application for default judgment to the
registrar that it was incorrectly stated that the time for entering an appearance to
defend has expired and that the defendant has not entered an appearance to
2
The registrar derives his powers from Rule 31 (5) of the Rules of Court, as amended by Government Notice
No. 81, published in Government Gazette 1293 of 16 April 1996, the relevant provisions of which read as
follows: “31(5)(A) Whenever a defendant is in default of delivery of notice of intention to defend an action
where each of the claims is for debt or liquidated demand, the plaintiff, if he or she wishes to obtain by default,
may file with the registrar a written application for judgment against such defendant, instead of following
procedure prescribed by sub-rule (2).” (emphasis added)
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defend. It is therefore also incorrectly submitted that the papers are in order. Apart
from being incorrect, it is misleading. Although the copy of the application for default
judgment, filed by the respondent, as annexed to applicant’s papers, does not
contain a date stamp, respondent, in its answering affidavit admits that the
application for default judgment was filed “on such an early date”.

[7] The respondent, in its answering affidavit, provides the following reasons why
the respondent prematurely filed the application for default judgment. The version of
the respondent, in the opposing papers, is quoted verbatim without any changes of
whatsoever nature having been effected.

“AD PARAGRAPH 9 THEREOF:

10. The contents thereof is admitted with the proviso that the Respondent’s legal
practitioner filed such application for default judgment in terms of Rule 31 on such an
early date, in that the practical procedure of obtaining such default judgment was and
still is as follows:

10.1 The application for default judgment in terms of Rule 31, is filed with the
Registrar of the High Court of Namibia and the Registrar of the High Court or
its personnel then attends to such an application as and when he/she can,
within a reasonable time.

10.2 It is my legal practitioners’ experience that such procedure usually takes 3

working days and as the Respondent did not want to provide the Applicant
with any extra time, instructed its legal practitioner accordingly.

10.3 Wherefore the Respondents’ legal practitioner filed the Respondent’s

application for default judgment in terms of Rule 31 prior to the time within
which the Defendant/Applicant had to file it/her/his notice to defend, so as to
not provide the Defendant/Applicant with any extra time during which the
Defendant/Applicant could delay/protract the matter. The default judgment
was granted after the 10 day period in terms of Rule 19(1).

10.4 This aspect does not warrant a cost order as prayed for, for reasons set out
herein and as will be argued during the hearing of this application.”

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[8] It is evident from the explanation provided that respondent was, not only aware

thereof that the application for default judgment had been filed prematurely, but, in

fact decided to do so intentionally in complete disregard for the rules of court in an

attempt to gain a procedural advantage in the registrar’s office. If respondent’s legal

practitioners waited until the dies have lapsed, as they should have done, no

application for default judgment would have been filed as they at that point in time

already would have received a notice of intention to defend.

[9] In Vermaaks Executor v Vermaaks’ Heirs, Innes CJ, in respect of costs de bonis

properiis stated: “The whole question was carefully considered by this Court in Potgieter’s

case, 1908 TS 982, and a general rule was formulated to the effect that in order to justify a

personal order for costs against a litigant occupying a fiduciary capacity, his conduct in

connection with the litigation in question must have been mala fide, negligent or
3
unreasonable.”

[10] In Rautenbach v Simington, the court made it clear that a court’s discretion with

regard to the awarding of costs de bonis propriis was not limited to dishonest,

improper or fraudulent conduct, that there was no exhaustive list that existed for

such an order; but that a court’s discretion included all cases where special

circumstances or considerations justify such an order.4

[11] In this Court’s experience it seems that there is a growing number of legal

practitioners that do not comply with the rules of court. Such failure undermines the
3
1909 TS 697 at 691.
4
1995 (4) SA 583 (O)
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practice and administration of justice and as such it is incumbent on the courts to

sound a stern warning that any practitioner who’s conduct falls short of the normal

required practice may incur the displeasure of the courts and may attract an

exemplary costs order.

[12] It has been stated that is of the utmost importance that the rules and practice of

the courts must be observed to facilitate due and proper compliance, since non-

compliance merely encourages casual, easy going and slip shot practice which often

leads to compromising the highest standards of practice which the courts require of

practitioners. Where a legal practitioner is grossly negligent and/or even intentional

in the non-observance of the rules and practice of court, it in such circumstances will

be unfair for the client to be burdened with the costs occasioned by their

representative’s action.5

[13] The learned author A.C. Cilliers in Law of Costs states that: “In a number of

recent judgments various courts, and the Appellate Division in particular, have given

effect to previous warnings. For instance, a plaintiff’s attorney was ordered to pay

wasted costs de bonis propriis where his conduct was unreasonable in that he was

slack and apparently unconcerned in the handing of his client’s case. Where, in

breach of Appellate Division Rules, rule 3 (5), costs had been unnecessarily

incurred, the attorney responsible was ordered to pay such costs de bonis propriis.

In Daries v Sheriff, Magistrate’s Court, Wynberg, the court ordered that an attorney

5
Makuwa v Posison [2007] 4 All SA 1260 (T), Darries v Sheriff, Magistrates Court, Wynberg, 1998 (3) SA 34
(SCA)
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should pay the costs of applications for condonation de bonis propriis, holding that

there had been a flagrant and gross non-observance of the rules of court.” 6

[14] This Court, in an almost similar matter, ordered a legal practitioner to pay the

costs de bonis propriis on an attorney and client scale of an application in terms of

rule 31. In his judgment, Silungwe J, stated that legal practitioners ought to exercise

diligence by ensuring their client’s refrain from embarking upon unnecessary (costly)

litigation. If they do so, they do so at their own risk as cost orders de bonis propriis

can be awarded against them.7

[15] In the present matter, the respondent’s legal practitioners of record, in an

intentional abuse of the relevant rule, prematurely applied for default judgment. This

judgment, to their knowledge, was erroneously granted by the registrar of this Court

as applicant filed, within the time limits prescribed, a notice of intention to defend.

The default judgment obtained was a nullity. Despite this knowledge, respondent’s

legal practitioners applied for and obtained a writ of execution, which they chose to

pursue.

6
A.C. Cilliers, Law of Costs, Service Issue 21, pg 10/26
7
China State Construction Engineering Corporation (Southern Africa) (Pty) Ltd v Pro Joinery CC 2007 (2) NR 675
(HC) – The facts of the case can be shortly summarised as follows: On service of the summons on the applicant,
the latter’s managing director informed the deputy sheriff that the applicant was not party to the dispute. The
deputy sheriff included this on the return of service that was forwarded to the legal practitioner. The legal
practitioner however went ahead and irregularly obtained default judgment against the applicant. Thereafter,
she obtained a writ of execution against the applicant. When the deputy sheriff refused to execute the writ of
execution, she wrote a letter to the office of the deputy sheriff, requesting that another deputy sheriff be
assigned to execute the writ. The court in its judgment held that the legal practitioner chose to overlook what
could only be described as “writing on the wall”. This was demonstrative of gross laxity and negligence on her
part. The practitioner went further and irregularly obtained default judgment – which was a nullity – and
thereafter obtained another irregularity, the writ of execution. She chose to resolutely pursue the writ.

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[16] This, the respondent’s legal practitioners did, whilst they were requested by

applicant to abandon the default judgment and not to pursue the writ, so issued. As

a result of their resolute, intentional and unreasonable conduct, the respondent’s

legal practitioners forced the applicant to bring an application for rescission of the

default judgment. This was completely unnecessary, as the respondent’s legal

practitioners of record, at that point in time, must have been aware thereof that “the

writing was on the wall”. If it was not for the conduct of the respondent’s legal

practitioners, the striking out application also would not have materialised.

[17] In all these circumstance, I, in my discretion, consider this to be a proper case

for an award of costs on the attorney and client scale de bonis propriis. I therefore

make the following order.

1. Respondent’s legal practitioners, Chris Brandt Attorneys, are directed to pay

the costs of one instructing and one instructed counsel of the applicant

incurred in the application for the rescission of the default judgment granted

by the registrar of this Honourable Court on the 1st day of October 2009, de

bonis propriis, on the attorney and client scale.

2. The costs referred to in paragraph 1 supra, are to include applicant’s costs of

the striking out application.

_______________

BOTES, AJ
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APPEARANCE FOR THE PARTIES:

COUNSEL ON BEHALF OF THE APPLICANT MR. T. Wylie

INSTRUCTED BY: Neves Legal Practitioners

COUNSEL ON BEHALF OF RESPONDENT MR. H. Stolze

INSTRUCTED BY: Chris Brandt Attorney

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