REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
First National Bank of Namibia Ltd Plaintiff
Yvonne Sus Eichas Defendant
Division of Court:
Main Division, Windhoek
18 April 2023
Honourable Lady Justice Rakow
9 May 2023
Neutral citation: First National Bank of Namibia Ltd v Eichas (HC-MD-CIV-ACT-CON-2022/04982)  NAHCMD 243 (9 May 2023)
1. AD CLAIM 1
1.1 Payment in the amount of N$328 933.53.
1.2 Compound interest calculated daily and capitalized monthly on the amount of N$328 933.53 at plaintiff’s mortgage lending rate of interest from time to time, currently 10.25% per year calculated from 30 August 2022 to date of final payment.
1.3 Cost of suit granted on attorney client scale.
2. AD CLAIM 2
2.1 Payment in the amount of N$83 417.13.
2.2 Compound interest calculated daily and capitalized monthly on the amount of N$83 417.13 at plaintiff’s mortgage lending rate of interest from time to time, currently 10.25% per year, calculated from 30 August 2022 to date of final payment.
2.3 Cost of suit granted on attorney client scale.
3. AD CLAIM 3:
3.1 Payment in the amount of N$39 076.16.
3.2 Compound interest calculated daily and capitalized monthly on the amount of N$39 076.16 at plaintiff’s prime rate of interest from time to time, currently 9.25% per year plus 4.50%, calculated from 30 August 2022 to date of final payment.
3.3 Cost of suit granted on attorney own client scale.
4. AD CLAIM 4:
4.1 Payment in the amount of N$114 063.90.
4.2 Compound interest calculated daily and capitalized monthly on the amount of N$114 063.90 at plaintiff’s prime rate of interest from time to time, currently 9.25% per year plus 4.50%, calculated from 30 August 2022 to date of final payment.
4.3 Cost of suit granted on attorney own client scale.
5. AD CLAIM 5:
5.1 Payment in the amount of N$3 507.39.
5.2 Compound interest calculated daily and capitalized monthly on the amount of N$3 507.39 at plaintiff’s prime rate of interest from time to time, currently 9.25% per year plus 5.55%, calculated from 18 September 2022 to date of final payment.
5.3 Cost of suit.
6. AD CLAIM 6:
6.1 Payment in the amount of N$18 004.06.
6.2 Compound interest calculated daily and capitalized monthly on the amount of N$18 004.06 at plaintiff’s prime rate of interest from time to time, currently 9.25% per year plus 5.55%, calculated from 29 August 2022 to date of final payment.
6.3 Cost of suit granted on attorney own client scale..
7. An order in terms whereof the following property is declared executable:
Certain: Erf No Rehoboth E 664
Situate: In the Town of Rehoboth
Registration Division “M”
Measuring: 724 (Seven Two Four) Square Metres.
The matter is removed from the roll and regarded as finalized.
Reasons for order:
'Accordingly, one of the ways in which the respondent may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the applicants in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other.
All that the Court enquires into is:
(a) whether the respondent has fully disclosed the nature and the grounds of his defence and the material facts upon which it is founded, and
(b) whether on the facts so disclosed the respondent appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.
If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be. The word fully, as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that, while the respondent need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.‘
 In general, the approach of the court is as set out by Justice Cheda in Lofty-Eaton v Ramos as follows:2
‘The general approach of these courts in applications of this nature is that cognisance is taken into account that a summary judgment is an independent, distinctive and a speedy debt collecting mechanism utilized by creditors. It is a tool to use by an applicants where a respondent raises some lame excuse or defence in order to defend a clear claim. These courts, have, therefore, been using this method to justly grant an order to a desperate applicant who without doing so, will continue to endure the frustration mounted by an unscrupulous respondent (s) on the basis of some imagined defence. As remedy available to applicants is an extra-ordinary one and is indeed stringent to the respondent, it should only be availed to a party who has a watertight case and that there is absolutely no chance of respondent/respondent answering it, see Standard Bank of Namibia Ltd v Veldsman.3 Rule 32 specifically deals with the said applications. Summary Judgment is therefore a simple, but, effective method of disposing of suitable cases without high costs and long delays of trial actions, see Caston Ltd v Barrigo.4 In that case, Roberts, AJ went further and crystalised the principle as follows:
“it is confined to claims in respect of which it is alleged and appears to the court that the respondent has no bona fide defence, and that appearance has been entered solely for the purpose of delay.”
Declaring the property executable
‘ In Namibia, judicial oversight takes the following form when it comes to declaring a primary home specially executable. If a property is a primary home, the court must be satisfied that there are no less drastic alternatives to a sale in execution. The judgment debtor bears the evidential burden. He or she should preferably lay the relevant information before court on affidavit especially if assisted by a legal practitioner, either in resisting default judgment or summary judgment. The failure to do so does not relieve the court of its obligation to inquire into the availability of less drastic alternatives. If the debtor is legally unrepresented his or her attention must be drawn to the protection granted under rule 108.
 The debtor must be invited to present alternatives that the court should consider to avoid a sale in execution but bearing in mind that the credit giver has a right to satisfaction of the bargain. The alternatives must be viable in that the it must not amount to defeating the commercial interest of the creditor by in effect amounting to non-payment and stringing the creditor along until someday the debtor has the means to pay the debt . . .’
‘Judicial oversight exists to ensure that debtors are not made homeless unnecessarily and that the sale in execution of the primary home is a last resort. The court is required to take into account “all the relevant circumstances”.
When exercising the discretion under rule the court should bear in mind that a sale in execution of a primary home does not necessarily extinguish a debt. The reality is often the contrary. In other
words, the debtor remains indebted to the credit giver for the balance of the debt, considering that under the current rule framework the property is sold to the highest bidder for not less than 75% of the either the local authority or regional council evaluation.’
‘ . . . The court should also take into consideration the payment history of the debtor. Greater latitude should be given to the debtor who has a reasonably good payment history; the extent of the balance outstanding; the age of the debtor – which is an important factor whether or not the debtor will be able to secure another loan to buy a home.’
Note to the parties:
Instructed by Dr Weder, Kauta & Hoveka Inc., Windhoek.
1 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A.
3 Standard Bank of Namibia Ltd v Veldsman 1993 NR 391 (HC).
4 Caston Ltd v Barrigo 1960 (4) SA I at 3H.
5 Kisilipile v First National Bank of Namibia 2021 (4) NR 921 SC para 17.