Order:
The first, second and third defendants are ordered to pay the plaintiff N$10 083 643,95, jointly and severally, the one paying the other to be absolved.
Interest is payable on the above amount at plaintiff’s applicable rate from time to time, currently 11,75 per cent (prime rate of 10,75 per cent plus 1,00 per cent) per year as from 16 January 2022 until date of payment, calculated on the daily balance and compounded monthly in arrears.
The following immovable properties are declared specially executable, to wit:
CERTAIN: Remaining Extent of the farm BUBUS No. 213 REGISTRATION DIVISION: “B”, Otjozondjupa Region MEASURING: 3061,8848 Hectares HELD BY: Deed of Transfer No. T95/2005 SUBJECT TO THE CONDITIONS CONTAINED THEREIN.
CERTAIN: Farm OMBUJOMBAERE NORD No. 6 REGISTRATION DIVISION: “H”, Erongo Region MEASURING: 5031,1137 Hectares HELD BY: Deed of Transfer No. T4423/1995 SUBJECT TO THE CONDITIONS CONTAINED THEREIN.
The defendants are ordered to pay the plaintiff’s costs of suit on the attorney and client scale, such costs to include one instructing and one instructed counsel.
The matter is removed from the roll and regarded as finalised. |
COLEMAN J:
Introduction
This is an application for summary judgment for payment of N$10 083 643,95, plus interest and declaring two farms executable, together with costs on an attorney and client scale. I will refer to the parties as the plaintiff and the 1st, 2nd or 3rd defendants.
Pertinent facts
The plaintiff’s claim is based on a loan agreement with the 1st defendant. It is the plaintiff’s case that the parties initially entered into a loan agreement on or about 24 September 2015 and allegedly agreed to restructure it because the 1st defendant had fallen into arrears on the loan. A new loan agreement was entered into on or about 29 April 2021. The alleged purpose of the new loan was to pay N$9 500 000 on the outstanding debt in respect of the 2015 loan. The plaintiff alleges the defendants are in breach of the 2021 loan agreement in that they failed to make payments as agreed. A certificate of indebtedness reflecting the amount of N$10 083 643,95 is annexed to the particulars of claim.
The 2nd and 3rd defendants signed as sureties for the 1st defendant’s liability to the plaintiff. Two properties were mortgaged in favour of the plaintiff as security for the 1st defendant’s liability. One property, Farm Ombujombaere Nord no. 6, is owned by the 1st defendant and the other, Remaining Extent of the farm Bubus no. 213, is owned by the 2nd defendant. Neither the suretyships, nor the mortgages are disputed. Notice in terms of rule 108(2)(a) of the Rules of Court is given in the particulars of claim.
The defendants, by virtue of an affidavit deposed to by the 2nd defendant, resist the application for summary judgment. Significantly, the opposing affidavit does not deal with the merits of the application in terms of rule 108. For example, there is no evidence before me whether or not the properties are primary homes and if less drastic measures other than the sale in execution of these properties exist.
In their defence, the defendants firstly contend that the plaintiff should not be permitted to take a second bite at the cherry by, after the defendants disclosed their defences under rule 32(9), when the first summary judgment was contemplated, amending its particulars of claim and then pursuing a second summary judgment application. Secondly, the defendants contest liability for the loan amount and challenge the ‘restructuring’ based, amongst others, on the two loan agreements that have dissimilar terms. Finally, the defendants challenge the constitutionality of rule 108. This challenge turned into a general challenge of all the rules of court during argument.
Conclusion
I considered all the facts and submissions on behalf of the parties and will address only those that I consider relevant for the purposes of my conclusions herein.
As far as the submissions in respect of the second summary judgment is concerned (the ‘second bite at the cherry’), rule 60 of the Rules of Court, which provides for summary judgment, does not prescribe a time period within which summary judgment should be applied for. Rule 60(4) grants the managing judge jurisdiction to give directions regarding the adjudication of an application for summary judgment. I could not find anything in the rules that places a limitation on the process the plaintiff adopted. At best for the defendants, the irregular proceedings provision in terms of rule 61 may have availed them. However, I do not understand the defendants to contend that they have been prejudiced in this process. In my view, this is not a good point.
In the opposing affidavit on behalf of the defendants, the deponent contends that the 2021 loan agreement has different terms than the 2015 loan agreement and the defendants deny having received the ‘new’ loan. It is also denied that a restructuring occurred here. During argument, Mr Amoomo, who appeared for the defendants, also argued that there is a difference between a restructuring agreement and a loan agreement. He was critical of paragraph 18 of the particulars of claim which alleges that the plaintiff and the 1st defendant orally agreed on a restructuring without setting out the terms.
In my view, there is no substance in Mr Amoomo’s submissions. The plaintiff’s case is simple; the 1st defendant got a loan from the plaintiff in 2015. It ran into arrears and it was agreed that the loan should be restructured. In order to effect the restructuring, a new loan agreement was entered into in 2021. The money advanced in terms of this new loan agreement was used to pay the 2015 loan which was in arrears. The terms of the ‘restructuring’ are neither here nor there. It does not constitute the plaintiff’s cause of action. The allegations in paragraph 18 of the particulars of claim relating to restructuring are simply part of the narrative. The 2021 loan agreement is being enforced here. I am satisfied that the plaintiff made out a case for summary judgment in respect of the loan and the defendants did not disclose a bona fide defence.
I am not going to entertain the defendants’ constitutional points since this matter can, in my view, be decided on the merits and the constitutional issue would not afford the defendants a defence. In addition, the Constitution is not a blunt instrument. It should be utilised as a scalpel.
The defendants chose not to put facts before the court to determine the requirements of rule 108. In my view, it amounts to a waiver of the protection afforded by the rule. According to the opposing affidavit, the deponent (the 2nd defendant) resides in Brakwater, not on any of the farms. There is no evidence before me that either of the farms is a primary home. As mentioned above there is also no indication of less drastic measures than sale in execution of the farms. There are therefore no less drastic measures before me for the rule 108 application.
Accordingly, I make the following order:
The first, second and third defendants are ordered to pay the plaintiff N$10 083 643,95, jointly and severally, the one paying the other to be absolved.
Interest is payable on the above amount at plaintiff’s applicable rate from time to time, currently 11,75 per cent (prime rate of 10,75 per cent plus 1,00 per cent) per year as from 16 January 2022 until date of payment, calculated on the daily balance and compounded monthly in arrears.
The following immovable properties are declared specially executable, to wit:
CERTAIN: Remaining Extent of the farm BUBUS No. 213 REGISTRATION DIVISION: “B”, Otjozondjupa Region MEASURING: 3061,8848 Hectares HELD BY: Deed of Transfer No. T95/2005 SUBJECT TO THE CONDITIONS CONTAINED THEREIN.
CERTAIN: Farm OMBUJOMBAERE NORD No. 6 REGISTRATION DIVISION: “H”, Erongo Region MEASURING: 5031,1137 Hectares HELD BY: Deed of Transfer No. T4423/1995 SUBJECT TO THE CONDITIONS CONTAINED THEREIN.
The defendants are ordered to pay the plaintiff’s costs of suit on the attorney and client scale, such costs to include one instructing and one instructed counsel.
The matter is removed from the roll and regarded as finalised.
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