REPUBLIC OF NAMIBIA
IN THE HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
RULING IN TERMS OF PRACTICE DIRECTION 61
Case Title: ZANNIER HOTELS NAMIBIA (PTY) LTD T/A SONOP LODGE APPLICANT and DAY DREAMERS INVESTMENTS CC RESPONDENT | Case No: HC-MD-CIV-ACT-CON-2023/02113 INT-HC-SUMJUD-2023/00214 | |
Division of Court: Main Division | ||
Heard on: 5 September 2023 | ||
Heard before: Honourable Lady Justice Rakow | Reasons delivered on: 29 September 2023 | |
Neutral citation: Zannier Hotels Namibia (Pty) Ltd T/A Sonop Lodge v Day Dreamers Investments CC (HC-MD-CIV-ACT-CON-2023/02113) [2023] NAHCMD 606 (29 September 2023) | ||
Order: | ||
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Reasons for order: | ||
RAKOW J : Introduction
Parties
Background
Claim
‘Claim 1 1.1. An order directing the Defendant to immediately restore the vehicle, to wit a, Toyota Hilux GD6, with registration number N 88579 W, bearing engine number 2GDC477766, chassis number AHTKB8CD602970426 to the applicant 1.2. In the event that the Defendant fails to return the vehicle within thirty (30) days from date of this judgment then the Deputy Sheriff for the district of Rehoboth and/or Windhoek is hereby authorized to enforce this court's order. 1.3. Costs of suit; 1.4. Further and alternative relief Claim 2 2.1 Payment in the amount of N$ 205,650.04 (Two Hundred and Five Thousand Six Hundred and Fifty Namibian Dollars and Four Cents Only); 2.2. Interest on the above claimed amount at a rate of 20% per annum calculated from the date of summons to date of final payment; 2.3. Costs of suit; 2.4. Further and alternative relief.’ Arguments Applicant
Respondent
Legal considerations
‘Where the defendant has delivered notice of intention to defend, the plaintiff may apply to court for summary judgment on each claim in the summons, together with a claim for interest and costs, so long as the claim is – (a) on a liquid document; (b) for a liquidated amount in money; (c) delivery of a specified movable property; or (d) for ejectment.’
‘… one of the ways in which a defendant 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 plaintiff 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 defendant has “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both 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 learned judge continued and said: ‘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 defendant 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. (See generally, Herb Dyers (Pty) Ltd v Mohamed and Another, 1965 (1) SA 31 (T); Caltex Oil (SA) Ltd v Webb and Another, 1965 (2) SA 914 (N); Arend and Another v Astra Furnishers (Pty) Ltd., supra at pp. 303-4; Shepstone v Shepstone, 1974 (2) SA 462 (N)…’
‘Where the statements of fact are ambiguous or fail to canvass matters essential to the defence raised, then the affidavit does not comply with the rule.’
‘(a) The resolution of summary judgment does not entail the resolution of the entire action i.e., the defendant is required to set out facts which if proved at trial would constitute a defence. The upshot of this is that the court is required to refuse summary judgment even though it might consider that the defence will probably fail at the trial. (b) The adjudication of summary judgment does not include a decision on factual disputes. This means that the court should decide the matter from the assumption or premise that the defendant’s allegations are correct. For that reason, summary judgment must be refused if the defendant discloses facts which, excepting the truth thereof, or if proved at trial, will constitute a defence. (c) Because summary judgment is an extraordinary remedy, it should be granted only where there is no doubt that the plaintiff has an unanswerable case. (d) In determining summary judgment, the court is restricted to the manner in which the plaintiff has presented its case. In this regard, the court must insist on a strict compliance by the plaintiff and technically incorrect papers should see the application being refused. (e) The court is not bound by the manner in which the defendant presents its case. This is to mean that if the defendant files an opposing affidavit that discloses a triable issue, the defendant should, on that account, be granted leave to defend the action. (f) It is permissible for the defendant to attack the validity of the application for summary judgment on any proper ground. This may include raising an argument about the excepiability or irregularity of the particulars of claim or even the admissibility of the evidence tendered in the affidavit in support of summary judgment, without having to record same in the affidavit. (g) Summary judgment must be refused in the face of any doubt arising as to whether or not to grant it. The basis for this rule is that an erroneous finding to enter summary judgment is heralds more debilitating consequences for a defendant than a plaintiff. This is because any error committed in refusing summary judgment may be dealt with during the substantive trial. In this regard therefore, leave ought ordinarily to be granted unless the court is of the opinion that the defendant has a hopeless case.’
‘Firsthand knowledge of every fact which goes to make up the plaintiff’s cause of action is not required, and that where the plaintiff is a corporate entity, the deponent may well legitimately rely on records in the company’s possession for his or her personal knowledge of at least certain of the relevant facts and his or her ability to swear positively to such facts, on record in the company’s possession.’ Discussion
Order
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Judge’s signature | Note to the parties: | |
RAKOW J Judge | Not applicable | |
Counsel: | ||
APPLICANT: | RESPONDENT: | |
M Angula Of Monika Angula & Associates Incorporated, Windhoek | L Lardelli Of Louis Karsten Legal Practitioner, Windhoek |
1 Maharaj v Barclays National Bank Ltd 1976 (1) SA 418(A).
2 Right – Path Investment (Pty) Ltd v Hebei Xinjian Construction CC (I 460-2014) [2014] NAHCMD 314 (22 October 2014).
3 First National Bank of Namibia Limited v Louw (I 1467-2014) [2015] NAHCMD 139 (12 June 2015).
4 Standard Bank of SA Ltd v Secatsa Investments (Pty) Ltd & Others 1999 (4) SA 229 (C) at 235A–C.
Cited documents 2
Act 1
1. | Companies Act, 2004 | 460 citations |
Judgment 1
1. | First National Bank of Namibia Limited v Louwde (1467 of 2014) [2015] NAHCMD 139 (6 December 2015) | 12 citations |