Pienaar v Anyala (HC-MD-CIV-ACT-CON-2024/03546) [2025] NAHCMD 176 (15 April 2025)

Case Title:

Schalk Willem Pienaar Applicant

and

Simeon Anyala Respondent

Case No:

HC-MD-CIV-ACT-CON-2024/03546

INT-HC-SUMJUD-2025/00215

Division of Court:

High Court, Main Division

Coram:

Honourable Justice Hans-Kaumbi

Heard on: 7 April 2025

Delivered on: 7 April 2025

Reasons: 15 April 2025

Neutral citation: Pienaar v Anyala (HC-MD-CIV-ACT-CON-2024/03546) [2025] NAHCMD 176 (15 April 2025)

Order:

1. The summary judgment application is dismissed.

2. Costs to be costs in the cause.

Reasons: There is a triable defence.

HANS-KAUMBI AJ:

Introduction

1. This is a summary judgment application in respect of an eviction matter. The applicant herein seeks the eviction of the respondent from No. 3 Willoried Court, Otjomuise, Windhoek Republic of Namibia.

2. The respondent opposes the application on the grounds that he has raised bona fide defences that warrant a full ventilation of the issues at trial, namely:

1. Locus standi of the applicant

2. That the amount claimed is wrong as he vacated the premises during May 2024.

Applicant’s case

3. The applicant filed her founding papers setting out the grounds upon which summary judgment is sought and when the opposing affidavit was filed by the respondent, he filed a replying affidavit which is not provided for in terms of Rule 60 of the court rules.

4. This court alerted the applicant to this procedural flaw and granted the applicant an opportunity to address it thereon, however, the applicant‘s Counsel stated that she would like to persist with the application and that despite knowing that the procedure is flawed she deemed it apposite to file a replying affidavit to answer the allegations in the respondent’s opposing papers.

5. Upon enquiry as to why this court should hear this application, in light of the fact that in filing the replying affidavit, there clearly is a triable case, counsel for the applicant pointed out the contradictions in respect of when the respondent said he left the premises and when the key was handed back to the applicant. Counsel further indicated that, this court should not consider his opposition, as the respondent remained in possession of the property and deprived the applicant from accessing his property.

6. The applicant seeks summary judgment for ejectment. The applicant alleges that the respondent took occupation of the leased premises in terms of a lease agreement for a period of 12 months from 1 March 2024. The respondent, it is alleged, returned the keys of the leased premises on 11 March 2025. applicant alleges that the respondent breached the lease agreement as he failed to pay the rental amount in the amount of N$ 39 564, 97 as per the agreement and he further seeks payment in the amount of rental of N$ 5500 from 1 October 2024 to 11 March 2025.

Respondent’s case

7. The respondent raised a point in limine on the basis that the applicant acted irregularly when he filed a replying affidavit in response to his opposing affidavit. He submits that same is irregular and should not be considered by this court.

8. I shall now deal with the defences raised by the respondent as follows:

1. Locus standi

The respondent raised the issue of locus standi on the basis that the applicant brought a suit against him where there is no valid contract between them and further that no authorization from Walloried Court Body Corporate was given which authorized him to act on their behalf in respect of the body corporate charges.

2. Monies not properly calculated

The respondent further disputes the monies claimed as it is not properly calculated and stated that he resided at the premises from 1 October 2023 and left in May 2024. However monies are claimed from October 2023 to 1 September 2024. Thus, he submits that he is only liable to pay until 31 May 2024 and not beyond that date.

Determination

9. Rule 60 (2) and (6) of this Court’s Rules that deals with Summary Judgment reads as follows:

(2) The plaintiff must deliver notice of the application which must be accompanied by an affidavit made by him or her or by any other person who can swear positively to the facts - (a) verifying the cause of action and the amount, if any, claimed; (b) stating that in his or her opinion there is no bona fide defence to the action and that notice of intention to defend has been delivered solely for the purpose of delay.

(6) No evidence may be adduced by the plaintiff otherwise than by the affidavit referred to in subrule (2) and none of the parties may cross-examine a person who gives oral evidence or by affidavit, but the court may put to any person who gives oral evidence any question that in the opinion of the court is necessary to clarify the matter.”

[10] Thus, it was irregular to file any further papers after the opposing papers were filed. I shall accordingly ignore the replying affidavit filed herein.

[11] It is further the duty of this court to determine whether there is a triable defence before it, that requires proper ventilation at trial. Judge Ueitele in the matter of Air Liquide Namibia (Pty) Ltd v Afrinam Investments¹ was correct when he stated that, there is no onus on the respondent apart from setting out the facts which in the absence of a trial would satisfy the court that he has a bona fide defence in order to entitle the court to decline applicant’s application for summary judgment. There is a dispute in respect of the amount claimed and the period in terms of which the respondent occupied the premises. It is clearly on that basis, that there is a need of the applicant to file an irregular replying affidavit, to answer to the defence raised by the respondent, a triable defence that needs ventilation at trial and it will only be fair and just to grant the respondent an opportunity to have his defence heard.

[12] I thus, make the following order:

1. The summary judgment application is dismissed.

2. Costs to be costs in the cause.

Judge’s signature

Note to the parties:

AN HANS-KAUMBI AJ

Counsel:

Applicant

Respondent

S Strauss

Of Philip Swanepoel Legal Practitioners

Windhoek

In Person