Bank Windhoek Limited v Smits (HC-MD-CIV-ACT-CON-2024/01099) [2024] NAHCMD 763 (11 December 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

EX TEMPORE JUDGMENT

Case no: HC-MD-CIV-ACT-CON-2024/01099

In the matter between:

BANK WINDHOEK LIMITED PLAINTIFF

and

BEVERLY EVANGELINE SMITS DEFENDANT

Neutral citation: Bank Windhoek Limited v Smits (HC-MD-CIV-ACT-CON-2024/01099) [2024] NAHCMD 763 (11 December 2024)

Coram: SIBEYA J

Heard on: 5 December 2024

Delivered: 5 December 2024

Reasons: 11 December 2024

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ORDER

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Summary judgment is granted in favour of the plaintiff against the defendant for:

1. Payment in the amount of N$648 547,37;

2. Interest, calculated on a daily balance and compounded monthly on the arrears of the amount of N$648 544,37 at the plaintiff’s home loan base rate (currently 12.50%) plus1% per annum, as from 25 March 2024 until date of final payment;

3. Costs of suit on a party and party scale;

4. The matter is removed from the roll and regarded as finalised.

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EX TEMPORE JUDGMENT

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SIBEYA J:

Introduction

[1] This is an application by the plaintiff against the defendant for summary judgment. The application is opposed.

[2] The plaintiff is Bank Windhoek Limited, a registered commercial bank in terms of the laws of the Republic of Namibia, with its principal place of business situated at 262, Independence Avenue, Windhoek.

[3] The defendant is Ms Beverly Evangeline Smits, an adult female residing in Windhoek.

[4] Where reference is made to the plaintiff and the defendant jointly, they shall be referred to as ‘the parties’.

[5] The plaintiff is represented by Mr Katjivena while the defendant is represented by Ms Kamati.

Background

[6] The plaintiff instituted action proceedings against the defendant for payment of N$648 547,37; interest; an order declaring immovable property executable and legal costs.

[7] According to the particulars of claim, the plaintiff’s claim is based on a written mortgage loan agreement (‘loan agreement’) entered into between the parties on 20 April 2023. A mortgage bond was registered over the immovable property as security for the loan.

[8] The plaintiff alleges that it complied with its contractual obligations under the loan agreement by advancing a loan amount to the defendant. The plaintiff claims that the defendant breached the loan agreement by failing to repay the moneys, as agreed. The plaintiff claims that the defendant’s failure to repay the amounts due resulted in the outstanding balance of N$648 544,37 to be due owing and payable by 25 March 2024. The plaintiff avers that on 7 February 2024, it notified the defendant and demanded her to remedy the breach within 30 days, failing which, the agreement would be terminated and it would institute legal proceedings. The plaintiff pleaded that the defendant did not remedy the breach.

[9] The defendant defended the action and opposed the plaintiff’s application for summary judgment.

Authority

[10] In an affidavit filed in support of the application for summary judgment, Ms Athalia Eunice Wallace, the Head of Legal Collection for the plaintiff, deposed, inter alia, that all data and records regarding the plaintiff’s main action against the defendant are under her control. She verified the plaintiff’s claim against the defendant. She deposed further that, in her opinion, the defendant has no bona fide defence to the plaintiff’s claim, and that the notice to defend was entered solely for the purpose of delaying the enjoyment of the fruits of the summary judgment.

[11] In the affidavit filed in opposition to the application for summary judgment, the defendant, raised a point of law in limine that the plaintiff is not authorised to make the application for summary judgment. This, the defendant contends, is premised on the plaintiff’s failure to attach documentary evidence of its authority to apply for summary judgment.

[12] The defendant contended that the failure by Ms Wallace to attach documentary proof of authority to her affidavit filed in support of the summary judgment application is fatal to the said application. For her contention, she placed heavy reliance on a passage from Bank Windhoek Limited v Shatty Construction CC,¹ where it was remarked that:

[25] … There is accordingly no connection between the plaintiff, Bank Windhoek and the institution of these proceedings from which it can be inferred that Bank Windhoek is the one instituting the proceedings and that there is a resolution passed to that effect by the appropriate body or authority within the ranks of Bank Windhoek.’

[13] It was argued by Ms Kamati that the defendant is not a member or a director of the plaintiff and she is thus not privy to the inner workings of the plaintiff and can say no more than dispute the authority to institute the summary judgment application. Mr Katjivena submitted the contrary, that Ms Wallace alleged that the plaintiff is duly authorised to lodge this summary judgment application and this, he argued, was sufficient authority to institute this application.

[14] An applicant, in motion proceedings, bears the onus to prove that he or she is duly authorised to institute proceedings. The applicant needs to allege in the founding affidavit that he or she is duly authorised to bring the application on behalf of the applicant.

[15] It is well established in law that when a person acts on behalf of another and his or her authority to so act is challenged, then the giver of such authority must confirm the authority.² When the authority is challenged, the applicant can annex the resolution to the replying affidavit and this would not constitute new evidence as it would merely serve as confirmation of the averment of authority already raised in the founding affidavit.³

[16] The difficulty with applications for summary judgment is that our rules of court do not make provision for filing of replying affidavits. It, therefore, becomes critical to examine the context of the alleged authority. Ms Wallace, who, as stated supra, deposed to the affidavit supporting the summary judgment application, is the same person who deposed to the affidavit supporting the summary judgment application in the Shatty’s case. It will be recalled that in Shatty, Masuku J found that there was no allegation or evidence that the plaintiff authorised the institution of the application for summary judgment.

[17] In Shatty, Ms Wallace deposed as follows regarding authority in the affidavit supporting the application for summary judgment:

‘I am duly authorised to depose to this affidavit and to bring this application for summary judgment.’

[18] In the present matter, Ms Wallace deposed that:

‘I state that the Applicant is duly authorised to lodge this summary judgment application and that I am duly able and authorised to depose to this affidavit in support of this summary judgment application on behalf of the Applicant.’

[19] In my considered view, the facts in Shatty and the present matter are poles apart. In Shatty, Ms Wallace stated that she is duly authorised to bring the application for summary judgment while in this matter, she deposed that, the Applicant is duly authorised to lodge this summary judgment application and to depose to this affidavit on behalf of the applicant.

[20] I hold the view that while in Shatty, Ms Wallace failed to allege that the applicant (the plaintiff) was authorised to bring the application for summary judgment, this averment is expressly made in the present matter. This in my view, places this matter beyond the circumference of Shatty. I therefore, find that Ms Kamati’s reliance on Shatty for her submission that the plaintiff lacked authority is misplaced.

[21] It is worth mentioning that in instances where the authority to institute proceedings is challenged, such authority may be produced in the replying affidavit. I am mindful, as stated above, that the rules do not provide for filing replying affidavits in summary judgment applications. This, however, in my view, does not mean that in exceptional circumstances, leave cannot be sought by a party from the court in order to file an additional affidavit to produce the authority already averred in the founding affidavit.

[22] In casu, as mentioned, I hold the view that the point of law in limine lacks merit and is dismissed accordingly.

The merits

[23] On the merits, the defendant alleges from May 2023, when she was granted the loan, she paid the instalments due until December 2023, when she lost her employment. She however managed to make part-payment of the monthly instalment in January 2024 of N$4 300. On 5 June and 8 July 2024, she paid the monthly instalments of N$9032. On 15 August, 4 September and 3 October 2024, she made payments of N$5500 each. These payments were below the monthly instalment of N$9032.

[24] There is thus no dispute regarding the conclusion of the loan agreement. There is further no dispute regarding the fact that the defendant failed to pay the monthly instalments when same became due for payment.

[25] I am mindful of the fact that in the present proceedings, rule 60(4) requires the defendant to ‘fully’ disclose to this court the nature and grounds of her defence which must be based on the facts that are material and which are bona fide and good in law.⁴ The defendant has failed to provide the court with a bona fide defence that may raise a triable issue against the plaintiff’s claim.

Conclusion

[26] In view of the above findings and conclusions, I hold the view that the defendant has raised no bona fide defence to the plaintiff’s claim. I find that the defendant merely entered appearance to defend the plaintiff’s action for purposes of delay. In my considered view, the plaintiff met the requirements laid down in rule 60 and managed to establish that it is entitled to the summary judgment sought with an appropriate order as costs.

[27] In the result, I order that summary judgment is granted in favour of the plaintiff against the defendant for:

1. Payment in the amount of N$648 547,37;

2. Interest, calculated on a daily balance and compounded monthly on the arrears of the amount of N$648 544,37 at the plaintiff’s home loan base rate (currently 12.50%) plus1% per annum, as from 25 March 2024 until date of final payment;

3. Costs of suit on a party and party scale;

4. The matter is removed from the roll and regarded as finalised.

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O S SIBEYA

Judge

APPEARANCES

PLANTIFF: N Katjivena

Of Katjaerua Incorporated,

Windhoek

DEFENDANT: J Kamati

Of Justine Kamati & Associates Inc,

Windhoek