CASE NO.: (P) I 3529/2007

SUMMARY

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TREVOR JOHN SOLOMON	Applicant

and

JOHANNES JAKOBUS DE KLERK	Respondent

SILUNGWE, AJ 

04/07/2008

PRACTICE	-	Condonation – Two requirements for favourable exercise of Court’s discretion – Applicant should firstly file affidavit to satisfactorily explain non-compliance with Rules of Court and secondly to satisfy Court on oath that he has bona fide defence.

	-	Defamation – Failure by a defendant to dispute having made a defamatory statement or publication would not necessarily mean that such defendant has no bona fide defence where there is, for instance, an averment by him showing that he in reality relies on justification or fair comment.

CASE NO.: (P) I 3529/2007

IN THE HIGH COURT OF NAMIBIA

In the matter between:

TREVOR JOHN SOLOMON	 Applicant

and

JOHANNES JAKOBUS DE KLERK	Respondent

CORAM:		SILUNGWE, AJ

Heard on:		2008.03.08

Delivered on:		2008.07.04

JUDGMENT:

SILUNGWE, AJ:	
[1]	In this application, the applicant seeks relief in the following terms:

1.	condoning the non-compliance with Rule 27(1) of the Rules of this Court;

2.	that the bar to plea against the applicant be removed;

3.	that the applicant be afforded five days from the date of this order to deliver his plea;

4.	costs (only in the event of this application being opposed); and

5.	Further and/or alternative relief.

[2]	The applicant (the defendant in the main action) and the respondent (the plaintiff in the main action) are represented by Ms Visser and Mr Schickerling, respectively.

[3]	A sketch of the matter is that the respondent is Managing Director of Labour Consultant Group (Pty) Ltd and that the applicant is a former director and employee of the said company. On September 11, 2007, the applicant was removed as Director of the Labour Consultancy Group (Pty) Ltd and his employment with that company was terminated on September 26, 2007. On November 16, 2007, the respondent issued a combined summons against the applicant in which he claimed N$200 000-00 damages for defamation. The applicant filed a notice of intention to defend on November 23, 2007, followed by his legal practitioners’ (i.e. Neves Legal Practitioners’) request for further particulars which the respondent furnished on December 5, 2007. On January 23, 2008, a notice of bar was served upon the applicant’s legal practitioners who, six days later, withdrew as legal practitioners of record since the applicant had not put them in further funds. The applicant avers in his affidavit of February 14, 2008, that he never received the notice of withdrawal. When the respondent filed a notice of set down on February 7, 2008, for default judgment, the applicant, who was then apparently in a position to make “a deposit payment” to his (i.e. the same) legal practitioners (out of the proceeds of sale of his shares in the Labour Consulting Group (Pty) Ltd – his erstwhile employer, instructed his (reinstated) legal practitioners to oppose the application for default judgment. In his confirmatory affidavit, Mr Werner Van Rensburg of Neves Legal Practitioners, who was seized with this matter, supports the applicant’s averments in so far as they related to him. Consequently, his legal practitioners entered a notice of intention to defend the application for default judgment, followed by the filing of an application for condonation for non-compliance with Rule 27(1) of the Rules of the Court and for the removal of the bar against filing a plea.

[4]	The respondent opposed the applicant’s application for condonation and also for the removal of the bar to file a plea.

[5]	Although the respondent had raised certain points in limine, these have not been pursued and it is thus unnecessary to consider them.

[6]	The main issue for decision is whether the application for condonation for the applicant’s non-compliance with the Rules of the Court including the removal of the bar to enable him to enter a plea should be allowed.

[7]	It is settled law that there are two requirements for the favourable 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 fidedefence. See: Erasmus: Court Practice(2000 ed.) B1-171 – B1-172.

[8]	In support of his application for condonation, the applicant avers that his failure to file a plea to the respondent’s claim was occasioned by severe financial constraints on his part, with the result that he was unable to pay an additional deposit of         N$2000-00 that his legal representatives had demanded. He maintains that after the termination of his employment at the end of October 2007, up to the end of January 2008, he had meagre cash reserves out of which he had to pay monthly living expenses, including monthly mortgage bond instalments in excess of N$10 000-00. It is not in dispute that the applicant informed his lawyers on January 21, 2008, that he was unable to make the required deposit due to financial constraints and requested to be given “a little time” as he was in the process of selling his shares in the Labour Consulting Group (Pty) Ltd. Further, it is common cause that the applicant received a cheque  dated January 31, 2008, in the sum of  N$150 000-00 as proceeds of sale of his shares. The applicant claims that once the cheque was cleared at his bank, he made the necessary “deposit payment” to his lawyers.

[9]	The respondent, however, denies that the applicant experienced financial constraints as alleged. He avers, inter alia, that the total net amount received by the applicant from the Labour Consulting Group company during the period of July 2007 and January 31, 2008, was N$437 134-00. But the contention is refuted by the applicant in his replying affidavit.

[10]	Relying on the case of South African Iron and Steel Corporation Ltd v Abdulnabi 1989 (2)SA, 224, in which it was held that an adverse inference had to be drawn against the plaintiff for his failure to disclose his assets, Mr Schickerling argues, by analogy, that the applicant’s failure to produce bank statements for the period in question should lead to an adverse inference being drawn against him. ’scase, , is however, distinguishable from the present one. In that case, an defendant sought to compel a plaintiff to furnish security (which he declined to do) not only for its costs but also for its counterclaim. The plaintiff averred that he was “not a very wealthy man” and that he was a refugee, he nevertheless did not consider himself a poor person; that he enjoyed a relatively good standard of life and that he owned assets which could provide him with sufficient income to maintain a comfortable standard of living for himself and his family; but that the assets, which were not readily available were not sufficient to meet the security demanded. It is significant to note that the defendant’s averment at 239B, that the plaintiff “received large amounts and controlled a large banking account” was seemingly unchallenged. This then gives rise to an inference that the plaintiff in that case enjoyed ample financial resources, which is a far cry from the applicant in the case now under consideration.

[11]	In casu, the applicant maintains that the financial difficulties he experienced during the material period were real. He particularly stresses his plight with reference to the months of December 2007 and January 2008. On January 21, 2008, he was constrained, so it seems, to address a letter to Mr W van Rensburg, who was representing him, in which he acknowledged receipt of his (Mr van Rensburg’s) call for a further deposit to be made. Although the applicant agreed to comply with the demand, he stated that he had financial constraints at that stage and requested to be accorded “a little time” as he was in the process of selling his shares; it is common cause that the process was factual. After receiving the respondent’s personal cheque in the sum of N$150 000-00, as proceeds of the sale of his shares, the applicant at once deposited it into his account and, shortly thereafter, he paid the requisite deposit to his legal practitioners. Unlike ,the applicant’s averments demonstrate that he was not awash with financial resources, especially during the period December 2007 and January 2008, on the contrary, he had seemingly fallen on hard times. In the circumstances, I would be inclined to accept his explanation.

[12]	A further averment by the applicant, which remains unchallenged, is that he was unable to file his application for condonation on February 25 as he was, on that same day, involved in a bicycle accident.

[13]	There is another issue for decision. It is submitted, on the respondent’s behalf, that the applicant has no bona fidedefence against the respondent’s claim.               Mr Schickerling argues that nowhere in the applicant’s claim does he dispute having made the publications complained of by the respondent. In his submission, the applicant has failed to meet the requirements for a fidedefence. I pose here to make an observation, namely, that in a defamation case, failure by a defendant to dispute having made an alleged defamatory statement or publication would not necessarily mean that such defendant has no fidedefence where there is, for instance, an averment by him showing that he, in reality, relies on justification or fair comment.

[14]	With reference to the requirements of a bona fidedefence, 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. See: v Mukubela & Another NNO1975(1) SA 618 (O) at 624E-G; v Groeneward1977 (4) SA 224 at 226G-H; v Swart1979(4) SA 493 at 497F; Plooy v Anwes Motors (Edms) Bpk1983 (4) SA 213(O) at 214G-H and 216D-E.

[15]	In countering the respondent’s allegation that he has failed to show that he has a bona fidedefence, the applicant asserts that the statement complained of by the respondent was neither made wrongfully nor with the intention of injuring the respondent’s reputation. The basis of his defence is that the statement was, essence, in that the Commercial Crime Investigating Unit is investigating a case of fraud against the respondent under case number CR No. 1040/10/2007. (Emphasis provided) He further avers that the publication of the statement to clients of the Labour Consulting Group (Pty) Ltd was the public interest. (Emphasis provided)

[16]	In the light of the applicant’s averment, I find the argument that the applicant has failed to show that he has a bona fidedefence surprising. An allegation that the publication was “true” and for the “public benefit” (or in the “interests of the public”) is a clear defence of “justification” and may also amount to the defence of “fair comment”. This is not all, for the applicant further avers that, as the respondent’s claim is not for a debt or a liquidated amount, the respondent would, in any event, have to lead evidence on the quantum of damages and to prove the alleged damages suffered by him. For the reasons given above, the argument that the applicant has failed to show that he has a fidedefence is devoid of merit.

[17]	This brings me to the issue of whether or not the respondent’s bar should be removed. Removal of the bar is plainly an indulgence that rests in the discretion of the Court. The application by the applicant for the bar to be uplifted is canvassed not only in his notice of motion but also in his founding affidavit. He avers that when the notice of bar was served on his legal practitioners of record, they were not prepared to proceed with the matter and subsequently withdrew as his legal practitioners on the ground that they had not been paid the requisite deposit which has previously been discussed. It is not in dispute that the notice of the withdrawal was never received by the applicant. He further avers that he has shown good cause for his failure to file a plea within the time periods, in terms of the Rules of the Court, and urges the Court to uplift the bar to enable him to file his plea.

[18]	Having considered the applicant’s application for removal of the bar as well as for condonation of his failure to file a plea timeously, and the argument for and against him, I hereby exercise my discretion in his favour by allowing the relief sought (in terms of the notice of motion).

[19]	Accordingly, the following order is made:

1.	The applicant’s non-compliance with the Rules of the Court is condoned.

2.	The bar against the applicant to enter a plea is removed.

3.	The applicant is afforded five days from the date of this order to file his plea.

	4.	The respondent is to pay to the applicant the costs of this application.

_____________________
SILUNGWE, AJ

COUNSEL ON BEHALF OF THE RESPONDENT/PLAINTIFF:
	Adv Schickerling

Instructed by:	   Van Der Merwe-Greeff Inc.

COUNSEL ON BEHALF OF THE APPLICANT/DEFENDANT:
Ms Visser

Instructed by:	Neves Legal Practitioners