Futeni Collections Limited V OB Davids Properties I 709-2013 2015) NAHCMD 104 (30 March 2015)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT Case no: I 709/2013

In the matter between:

FUTENI COLLECTIONS LIMITED PLAINTIFF and

OB DAVIDS PROPERTY AND 31 OTHERS DEFENDANT

Neutral citation: Futeni Collections Limited v OB Davids Properties [I 709/2013] [2015) NAHCMD 104 (30 March 2015)

Coram: MILLER AJ

Heard: 30 March 2015 Delivered: 30 March 2015 (ex tempore) Judg: made available: 29 April 2015 2

1. The application is granted for the upliftment of the bar and the plea will form part of the pleadings. 2. The Defendants are ordered jointly and severally to pay the cost of the application which will include the cost of one instructing and one instructed counsels. 3. The matter is placed on the Case Management Roll on Thursday, the 9 th of April 2015 at 15h30 for a Case Management Conference.

JUDGMENT

MILLER, AJ:

[1] In this matter the plea filed on behalf of the Defendants became barred and was filed out of time.

[2] Pending before me at present is an application for the upliftment of the bar and the admission of the plea as part of the pleadings.

[3] In order to succeed in my view, it is necessary for the applicant to establish two essentials. First there must be reasonable explanation for the delay and secondly, the plea must raise a triable issue.

[4] It was argued on behalf of the Plaintiff that there is no evidence on record and by that I understand admissible evidence since the affidavit was deposed to, not by the Defendants themselves but by the legal practitioner. However, in the replying affidavit there is a confirmatory affidavit confirming the facts deposed to in the founding affidavit by the legal practitioner. 3 [5] It appears that the blame for the pleading being filed out of time lies largely at the door of the defendants’ legal practitioners at the time. In so far as the plea itself is concerned two issues are raised in the plea. The first is that the certificate of indebtedness attached to the pleadings does not comply with the requirements of the agreement in as much as it was not signed by a person authorized by the agreement to do so. Secondly the Defendants raised as a further plea the allegation that the original agreement had been compromised by an agreement of compromise. If that is the case it follows that no action can be instituted on the strength of the original agreement. The allegations on the part of the defendants that the original agreement had been compromised by a different agreement is hardly contested by the Plaintiff.

[6] It is not for me at this stage to decide on the merits or otherwise of that particular dispute. That is something which must be resolved at the trial and I purposely express no view on that issue. I remain satisfied on the evidence before me and the facts before me that the Defendants raised, especially the one of compromise a triable issue and the plea is not without merit.

[7] In the circumstances the following orders are made:

1. The application is granted for the upliftment of the bar and the plea will form part of the pleadings. 2. The Defendants are ordered jointly and severally to pay the cost of the application which will include the cost of one instructing and one instructed counsels. 3. The matter is placed on the Case Management Roll on Thursday, the 9 th of April 2015 at 15h30 for a Case Management Conference.

------PJ MILLER Acting Judge 4

APPEARANCES

PLAINTIFF: CJ Mouton Instructed by Theunissen, Louw & Partners, Windhoek

DEFENDANT: B De Jager Instructed by Mueller Legal Practitioners, Windhoek