Reasons for order:
DE JAGER J:
The applicant/plaintiff, Nedbank Namibia Limited (the plaintiff), instituted action against the respondent/defendant, Vetaruhe Kandorozu (the defendant), in July 2024 for payment in the amount of N$80 684,43 together with interest and costs on a punitive cost scale. The plaintiff relies on a written instalment sale agreement concluded between the parties in May 2016. It is alleged that the defendant is in breach of his repayment obligations as he failed to repay the monthly instalments when they became due and owing since August 2023. The plaintiff further relies on a written acknowledgement of debt executed by the defendant in February 2023 (whereby he acknowledged to be indebted to the plaintiff as of 3 February 2023 for N$109 792,85 arising out of the residual value under the instalment sale agreement), and a letter of demand dated 27 September 2023 demanding the outstanding amount. The plaintiff alleges the defendant remains in default of ‘such payment’. Lastly, the plaintiff relies on a certificate of indebtedness dated 20 September 2023 in the capital amount of N$80 684,43. The plaintiff applied for summary judgment after the defendant entered an appearance to defend the matter.
Considering the structure of the particulars of claim, the breach relied on relates to the instalment sale agreement. It is alleged the defendant is in breach of his obligations towards the plaintiff as he failed to repay the monthly instalments when same became due and owing since August 2023. However, ex facie the instalment sale agreement, the final instalment was due on 31 May 2021. Ex facie the acknowledgement of debt, the outstanding principle debt (N$109 792,85) together with ‘finance charges thereof and free of exchange’ will be paid in four monthly instalments of N$3 000 or until settled in full and the first instalment was due on 31 January 2023. Ex facie the acknowledgement of debt, the additional payment arrangement under the acknowledgement of debt was N$20 000 either end January 2023 or February 2023, N$30 000 end February 2023, N$20 000 end March 2023 and N$ 40 000 end March or April 2023.
Considering the principal debt, the payments that had to be made, when they had to be made, under which deed they had to be made and the outstanding amount claimed, the particulars of claim are excipiable when it refers to monthly instalments becoming due and owing since August 2023 under the instalment sale agreement. It is furthermore not alleged that the acknowledgement of debt was breached, nor are any terms of the acknowledgement of debt pleaded.
One of the seven golden rules of summary judgment is that, in determining a summary judgment application, the court is restricted to the way the plaintiff presented its case. The court must insist on a strict compliance by the plaintiff and technically incorrect papers should see the application being refused. If that is the position on technically incorrect papers that cannot be condoned, the position is even worse for a plaintiff whose papers are more than technically incorrect.
The court took the excipiable nature of the particulars of claim up with the plaintiff’s counsel during arguments. She referred the court to a judgment of the court where it was said, according to her, that even if a plaintiff’s papers are technically incorrect the court should not shut the door to a plaintiff for summary judgment, the court must determine whether a triable defence was raised and it would be against the rules’ overriding objective to refuse summary judgment because of technically incorrect papers while a defendant failed to raise a bona fide defence. The plaintiff’s counsel could not provide the court with the case name for the court to consider that judgment. The court indicated to the plaintiff’s counsel that the issue with the particulars of claim is not that it is only technically incorrect, it is more than technical incorrectness. The plaintiff’s counsel further submitted that the defendant did breach the acknowledgement of debt and no bona fide defence was disclosed. The court reminded the plaintiff that what may in fact have happened versus what the plaintiff relies on in the particulars of claim are two different matters. The plaintiff’s counsel could, understandably, not take the matter further.
Even if a defendant failed to show a bona fide defence, summary judgment cannot be granted if the court is unsatisfied that the plaintiff made a case for summary judgment. In other words, a plaintiff’s papers must, nevertheless (even if a defendant failed to show a bone fide defence) be in order for the court to grant summary judgment.
Van Niekerk, Geyer and Mundell stated the following in Summary Judgment A Practical Guide:
‘The whole procedure of summary judgment was created to benefit plaintiffs. At the very least, therefore, it is expected of a plaintiff, in presenting his case, to place himself squarely within the four corners of the remedy. Any defects in the presentation of his case which are not merely technical and, for that reason, cannot be condoned, will have as their consequence a refusal of summary judgment, even if no bona fide defence has been disclosed by the defendant. A court will not assist a plaintiff by breathing life into a poorly presented case – on the contrary, the court will consider itself bound to the terms in which the plaintiff has elected to formulate his claim. Should it appear that the plaintiff does have a claim, but not that presented as the cause of action in the summons, the court will refuse summary judgment as it cannot be granted on a cause of action other than that pleaded.
That said, the summary judgment application cannot succeed.
In the rule 32(10) report, the plaintiff reported that the defendant failed to respond to the plaintiff’s correspondence to amicably resolve the matter. Upon enquiry from the court, the defendant’s legal practitioner confirmed the position as recorded by the plaintiff. In those circumstances, even though the plaintiff is unsuccessful in its summary judgment application, the court exercises its discretion not to award the defendant any costs for opposing it.
In conclusion, the order is as set out above. |
