THE KONGOM GROUP (PTY) LTD PLAINTIFF/ APPLICANT

and

SASH TRADING AND FIRST DEFENDANT/ RESPONDENT
EARTHWORKS CC

PAULUS ANDREKI SECOND DEFENDANT/ RESPONDENT

Neutral citation: The Kongom Group (PTY) LTD v Sash Trading and
Earthworks CC (HC-MD-ClV-ACT-CON-2024/02417)
[2025] NAHCMD 258 (12 May 2025)

Coram: SCHIMMING-CHASE J

Heard: 12 May 2025

Delivered: 12 May 2025

Reasons: 16 May 2025

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ORDER

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1. The application for summary judgment is refused.

2. The first defendant is granted leave to defend.

3. The costs of the summary judgment shall be costs in the cause.

4. In the event of success by the plaintiff at trial, the plaintiff shall be entitled to apply for the costs of the summary judgment application to be uncapped by rule 32(11), and for costs of suit to be awarded on a punitive scale.

5. Furthermore, this matter shall be case managed on truncated timelines.

6. The matter is postponed to 2 June 2025 at 15h30 for a case planning conference.

7. The parties must file a joint case plan on or before 21 May 2025

8. The summary judgment application is finalised and removed from the roll.

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EX TEMPORE RULING

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SCHIMMING-CHASE J:

(i)This is an application for summary judgment launched by the plaintiff against the first defendant. The defendants¹ are sued for payment of N$143 831,50 plus costs based on an oral agreement concluded between the plaintiff and the first defendant for a lease from the plaintiff to the first defendant for construction equipment, which was concluded during October 2021.

(ii)The construction equipment was described in the amended particulars of claim as equipment encompassing a grader, water truck, roller or compactor, excavator, and TLB (Tractor Loader Backhoe) 4x4, ‘on a request basis’. It was further, according to the plaintiff, verbally agreed that any invoices would be settled within 30 days from the date that they are presented.

(iii)It is alleged that the first defendant breached the agreement between the parties in that it failed to pay the plaintiff, within the agreed time frame or within a reasonable time thereafter the amount due and payable in the amount of N$143 831,50, and a statement of account was attached.

(iv)It is not disputed that on 14 August 2023, the first defendant’s representative, Mr Shaanika, acknowledged debt to the plaintiff and the delay in payment, and he proposed a settlement agreement in which the outstanding amount would be paid in four equal instalments, commencing on 7 September 2023 and continuing until 7 December 2023.

(v)The oral agreement between the parties to lease the machinery is not disputed. The first respondents' defences raised in the answering affidavit are the following:

(a) the construction equipment was hired at a specific rate which was agreed between the parties and which is not pleaded;

2. the rates that the plaintiff charged are not the rates that were agreed between the parties. This is a dispute of fact;

(c) the rates would determine the exact price payable to the plaintiff;

(d) in both the particulars of claim and the founding affidavit, the plaintiff does not mention the rates it would charge the first defendant, or the rates agreed to by the parties for different equipment; and

(e) there is also disagreement regarding the actual and applicable hourly rate, as well as the invoices sent, where allegedly different machinery is charged at different hourly rates.

(vi)As regards the acknowledgement of debt, it is averred that the first respondent’s representative signed the acknowledgement of debt without being clear as to what was owed. Mr Shaanika says in the answering affidavit that he had not done a reconciliation of transactions, his work schedule was very busy, and the plaintiff was demanding payment.

(vii)It is not in dispute that there are two acknowledgements apologising for late payment and offering to pay the amount in instalments. However, the first defendant insists now that the amount is not correct for the reasons advanced. The first respondent states the following

‘At the time I agreed to pay the demanded amount, I had not done a reconciliation of the transactions, which I have since done. I had not even scrutinised the invoices provided by the Applicant. My work schedule was very busy at the time the Applicant was demanding payment. I run construction projects, and I am normally in the field. I barely had time to attend to administrative matters. Most of the time, when I read emails, I read them on my cell phone while I am on the move and between tasks.’

(viii)The legal principles applicable to summary judgment applications are trite. In the case of First National Bank of Namibia Limited v Louw², the following principles were set out:

1. 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 judgement even though it might consider that the defence will probably fail at the trial;

2. 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, accepting the truth thereof, or if proved at trial, will constitute a defence;

3. because summary judgment is an extraordinary remedy, it should be granted only in cases where there is no doubt that the plaintiff has an unanswerable case. (emphasis added)

(ix)To my mind, this is one of those borderline cases where a triable issue is raised, but barely raised. In this instance, given the stringent remedy of summary judgment, leave to defend should be granted, although some of the defences raised leave much to be desired, and it is not at all clear whether those defences will succeed at trial. I cannot say that I have no doubt that there is a sufficient triable issue raised.

(x)Given the foregoing, I grant leave to defend, but I will include in my order that the plaintiff has leave to apply for a punitive costs order in the event of success against the first defendant at trial, which will be set out in the court order. This matter shall also be case managed on an expedited basis.

(xi)For the foregoing reasons, the following order is made:

1. The application for summary judgment is refused.

2. The first defendant is granted leave to defend.

3. The costs of the summary judgment shall be costs in the cause.

4. In the event of success by the plaintiff at trial, the plaintiff shall be entitled to apply for the costs of the summary judgment application to be uncapped by rule 32(11), and for costs of suit to be awarded on a punitive scale.

5. Furthermore, this matter shall be case managed on truncated timelines.

6. The matter is postponed to 2 June 2025 at 15h30 for a case planning conference.

7. The parties must file a joint case plan on or before 21 May 2025

8. The summary judgment application is finalised and removed from the roll.

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E M SCHIMMING-CHASE

Judge

APPEARANCES

PLAINTIFF/ APPLICANT: N Mhata

Of Nambili Mhata Legal Practitioners,

Windhoek

DEFENDANT(S)/ RESPONDENT(S): T Nanhapo

Of T Nanhapo Incorporated

Windhoek