Agricultural Bank of Namibia v Cecilia Vasti Chantel Gaya (SA 42-2023) [2023] NASC (9 October 2023)

Background and Facts 

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 on grounds that 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 judgement 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 28 July 2023 judgement was summarised and published in volume 43 of Lex Scripta of 4 August 2023, and the facts appear from that judgement as follows:

‘Agribank advanced the sums of N$238 000 and N$7 256 500 to the defendant/respondent/ (Gaya) in 2014 and 2016, respectively. Agribank as plaintiff obtained judgement against the defendant on 25 September 2019 for N$359 950,72 and N$9 345 455,42, together with interest at specified rates and costs. Writs were issued, and followed by nulla bona returns. Agribank applied under rule 108 of the Rules of the High Court to have the defendant’s immovable property and a farm be declared executable. That application was personally served on the defendant. On 12 June 2020, the High Court declared both properties executable.

The applicant proceeded to take steps to execute the order in its favour by issuing a notice of sale in execution of the farm. It took place on 7 April 2022. The farm has not yet been transferred to the purchaser. Within a few weeks of the sale, the respondent on 28 April 2022 applied to the High Court for the rescission of the default judgement of 25 September 2019, and the one incorrectly referred to as on 20 January 2020, with apparent reference to the unopposed judgement granted under rule 108 of the High Court rules on 12 June 2020. 

The High court per Christiaan AJ dismissed the rescission application with costs on 5 April 2023. The respondent filed a notice of appeal against the dismissal of the rescission application on 27 April 2023. This notice resulted in Agribank’s application under section 14(7) read with rule 6, seeking the summary dismissal of the respondent’s appeal. Agribank asserted that the appeal was without any prospects of success, frivolous and vexatious, and fell to be dismissed. 

In opposition to the application, the respondent filed an answering affidavit in which she raised a preliminary point that section 14(7)(a) conflicts with Art 79(3) of the Constitution, and is invalid in that by seeking to authorise a single judge of this court to determine this application, s 14(7)(a) conflicts with the provisions of Art 79(3), which sets the quorum of the Supreme Court at three judges when hearing appeals. 

Given the constitutional question raised by the respondent, the Chief Justice directed this matter to be set down for hearing on 18 July 2023 for purposes of hearing argument on the respondent’s preliminary point concerning the constitutionality of section 14(7). Three justices of the Supreme Court considered the matter, and held that:

Section 14(7) provides for the summary dismissal of an appeal by the Chief Justice, or any judge designated for that purpose. This power is exercised upon application to this court by a party on appeal upon notice to the other parties to that appeal, in accordance with the procedure set out in rule 6 of the rules of this court. Where an appeal is not summarily dismissed, it then proceeds to be heard in accordance with the procedures of this court, and a quorum of three judges would hear that appeal as provided for by Art 79.

Section 14(7)(a) in essence envisages an application directed to the court for the summary dismissal of an appeal on the grounds of being frivolous, vexatious and without merit. It entails an application directed for the confined purpose of preventing an abuse of its process, which this court has the inherent power to do, and does not amount to the hearing of an appeal itself. The issue to be determined in the application is whether or not the noting of an appeal amounts to an abuse of process, and not determining the appeal itself. If the appeal does not amount to an abuse, then it proceeds to be heard in accordance with the rules.

It was thus held that the provisions of Art 79(3) do not apply to applications under s 14(7)(a). As there is no conflict between s 14(7) and Art 79(3), it follows that the preliminary point is to be dismissed.’

Issues for determination

As indicated above, 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 

‘[5] The appeal referred to above was filed on 27 April 2023.

[6] On 16 August 2023, the respondent filed the appeal record together with a condonation application, seeking condonation for the late filing of the appeal record and reinstatement of the appeal. This is more than three months from the date of the order/judgement appealed against, i.e., the rescission judgement of 5 April 2023.

[7] Rule 8(1) and 8(2)(b) of the Supreme Court Rules provide as follows:

‘(1) After an appeal has been noted in a civil case, the appellant must, subject to any direction issued by the Chief Justice, file four copies of the record of the proceedings with the registrar, and deliver such number of copies of the record to the respondent as may be considered necessary.

(2) The record referred to in sub-rule (1) must be filed –

(a) . . .

(b) in all other cases, within three months of the date of the judgement or order appealed against or, in cases where leave to appeal is required, within three months after an order granting the leave to appeal; or

(c) . . . .’

[8] Rule 9(1)(b) provides that-

‘Withdrawal of appeal

(1) If an appellant-

(a) . . .;

(b) fails to file the record of the proceedings of the court appealed from; or

(c) in terms of sub-rule (4), is deemed to have withdrawn the appeal.’

[9] Rule 9(4) further reads-

‘If an appellant or a respondent who has noted a cross-appeal and, is therefore, considered to be an appellant in terms of sub-rule (2) –

(a) fails to lodge the record within the period prescribed in rule 8(2);

(b) has not within the time prescribed in rule 8 applied to the respondent or his or her legal practitioner for consent to an extension of time; and

(c) has not given notice to the registrar that he or she has so applied for such extension, he or she is deemed to have withdrawn his or her appeal, and in that event, the suspension of any judgement or order of the court appealed from is considered lifted.’

[10] The respondent filed a document titled ‘condonation application’. This document is, however, not deposed to by the respondent. In fact, the first sentence of the supporting affidavit reads-

‘I, the undersigned, Hewat Jacobus Samuel Beukes do hereby solemnly affirm and state as follows:’ 

[11] It is not known to me on 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 to 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 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 judgement and order of the court a quo, dismissing respondent’s application for rescission of the default judgements 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 fid,e and she had no bona fide defence to applicant’s claim. Therefore, the rescission application was correctly rejected.’

Held that:

‘[14] In the result, the respondent’s appeal is deemed withdrawn, and the suspension of the judgements or orders sought to be appealed against are therefore lifted. No order as to costs.’

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