Schmidtco Property Development Company (Pty) Ltd t/a Schmidtco Property Developers v Temptations Fashion CC and Another (HC-NLD-CIV-ACT-CON-2024/00283) [2025] NAHCNLD 66 (30 May 2025)

Schmidtco Property Development Company (Pty) Ltd t/a Schmidtco Property Developers v Temptations Fashion CC and Another (HC-NLD-CIV-ACT-CON-2024/00283) [2025] NAHCNLD 66 (30 May 2025)

4


REPUBLIC OF NAMIBIA


IN THE HIGH COURT OF NAMIBIA

NORTHERN LOCAL DIVISION, OSHAKATI

PRACTICE DIRECTION 61

Case Title:

Schmidtco Property Development

Company (Pty) Ltd T/A Schmidtco

Property Developers Plaintiff


and


Temptations Fashion CC 1st Defendant

Olivia Kanyemba- Usiku 2nd Defendant

Case No:

HC-NLD-CIV-ACT-CON-2024/00283



Division of Court:

High Court, Northern Local Division



Heard on: 06 May 2025



Delivered on: 30 May 2025


Heard before: Honourable Mr. Justice Munsu




Neutral citation: Schmidtco Property Development Company (Pty) Ltd T/A Schmidtco Property Developers v Temptations Fashion CC (HC-NLD-CIV-ACT-CON-2024/00283) [2025] NAHCNLD 66 (30 May 2025)




ORDER





1. The application for summary judgment is dismissed.

2. The costs of the application are to be costs in the cause.

3. The matter is postponed to 19 June 2025 at 08:30 for case planning conference.

4. The parties are directed to file their joint case plan details on or before 16 June 2025.




MUNSU J:


[1] The plaintiff instituted action against the defendants, jointly and severally, for payment of a sum of N$ 109,055.62 in respect of rental arrears, and a further N$ 72,823.83 in respect of holding over damages. The defendants entered appearance to defend. There were also two prayers i.e. for ejectment and interdict, which have become moot after the first defendant vacated the leased premises.


[2] The plaintiff launched this application for summary judgment contending that the defendants have no bona fide defence and that their appearance to defend has been delivered solely to delay the plaintiff’s claim.


[3] The plaintiff and the first defendant entered into a written lease agreement in terms of which the plaintiff leased the premises situated at ERF 3296, Shop Number 2, Ground floor, Maroela Mall, Ongwediva to the first defendant. The lease was for a fixed period of 24 (twenty four) months, commencing on the 01st of March 2022 and expiring on the 28th of February 2024. The first defendant would pay a monthly rental amount of N$7, 700 for the first 12 (twelve) months. The rental would be subject to an escalation of 8% per annum from the first day of March 2023. Additionally, the first defendant would be liable to pay its share of the monthly property assessment rates, municipal charges, cleaning services, security charges and any other charges or levies charged in respect of the common property.


[4] At the time of the agreement, the second defendant represented the first defendant and also signed as suretyship where she bound herself as surety (and co-principal debtor) for and on behalf of and in solidum with first defendant to plaintiff.


[5] It was not disputed that the plaintiff duly complied with all of its obligations in terms of the agreement by providing the first defendant with vacant possession of the business premises and the first defendant took occupation thereof.


[6] The plaintiff alleged that the first defendant, in breach of its obligations in terms of the lease agreement, failed to make its full monthly rental payments as well as interest thereon and is therefore in default.


[7] It is common cause that on 08 September 2023, the first defendant represented by second defendant signed an Acknowledgement of debt in which the first defendant acknowledged its indebtedness to the plaintiff in the amount N$60, 583.48. In terms of the Acknowledgement of debt, the first defendant agreed to pay N$10, 097.24 for arrears in addition to its monthly rental, commencing on 01st October 2023 until arrears would be cleared.


[8] The plaintiff claims that the first defendant breached the Acknowledgement of debt agreement by failing to pay the monthly agreed amount. Furthermore, it is alleged that despite the lease agreement expiring at the end of the lease period, the first defendant continued to unlawfully occupy the leased premises, thus the plaintiff was unable to lease out the premises to other tenants as from 01 March 2024. Accordingly, the plaintiff suffered damages in lieu of rental in the amount of N$7,231.30 together with other levies charged in respect of the property, being the reasonable monthly rental the plaintiff could have received but for the first defendant's unlawful holding over.


[9] Ms Amalia Schmidt, the Director of the plaintiff deposed to the founding affidavit on behalf of the plaintiff. She swore positively to the facts verifying the cause of action and the amount and relief claimed in the combined summons.


[10] The defendants are self-actors. The second defendant, Ms Kanyemba-Usiku deposed to the answering affidavit on behalf of the defendants. She avers that the relief sought is incompetent and she implored the court to dismiss the application for the reason that the plaintiff failed to compute the amount claimed. Ms Kanyemba-Usiku further states that it is not the court's role to compute the claim on behalf of the plaintiff. She adds that the plaintiff must present a well-structured claim before seeking relief from the court, particularly in a summary judgment application. She went on to state that ‘the deposit made is not indicated, nor are the payments properly documented, making it impossible for the court to fairly and accurately assess the claim during summary judgement stage’.


[11] Summary judgment has a limited objective. It enables a plaintiff with a clear case to obtain swift enforcement of a claim against the defendant who has no real defence to that claim.1


[12] The plaintiff’s papers do not place the court in a position to satisfy itself about the amount claimed. A calculation based on the agreed-upon rental amount, as well as the amount claimed, reveals that several payments were made by the defendants. However, there is no mention of any payment made, nor the time frame for which no payment was made in order to enable the court to assess the accuracy of the amount claimed. Neither was any payment schedule provided. The attached Annexure F, titled ‘Customer detailed ledger’ does not assist the court in this regard as it opens with the balance of N$ 109, 055.62 without indicating how it was calculated. Thus, the plaintiff’s papers are silent on how the amount claimed was arrived at, which presents a challenge for the court. If the court is to grant the application, it would do so in vacuum as it is not in a position to assess the amount claimed. It is my considered view that the plaintiff’s claim is unclear and it would be excipiable. As a result, the application stands to be dismissed.


[13] As mentioned earlier, the defendants are self-actors, and they never made any appearance in court other than filing papers. They would therefore not be entitled to costs other than those limited to disbursements necessarily and reasonably incurred.


[14] In the result, I make the following order.


1. The application for summary judgment is dismissed.

2. The costs of the application are to be costs in the cause.

3. The matter is postponed to 19 June 2025 at 08:30 for case planning conference.

4. The parties are directed to file their joint case plan details on or before 16 June 2025.




None


D MUNSU

Judge

None


Counsel:

1st Respondent:

Plaintiff:

A Shapumba

Of Shapumba & Associates Inc.

Ondangwa

Defendants:

No appearance





1 See Herbstein & Van Winsen The Civil Practice of the High Courts of South Africa (5th Ed) at 516-517.

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