Court name
High Court Main Division
Case number
CRIMINAL 41 of 2013
Title

First National Bank of Namibia Ltd v Allied Investments CC and Another (CRIMINAL 41 of 2013) [2013] NAHCMD 204 (11 July 2013);

Media neutral citation
[2013] NAHCMD 204
Coram
Miller AJ













NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK








JUDGMENT



Case no: I
3979/2012



In the matter between:








FIRST
NATIONAL BANK OF NAMIBIA LTD
.............................................................PLAINTIFF



and



ALLIED
INVESTMENTS CC
.............................................................................1ST
DEFENDANT



HAROLD
ARTHUR VON LUTTICHAU
............................................................2ND
DEFENDANT













Neutral citation:
First National Bank of Namibia Ltd v Allied Investments CC
(I 3979/2012) [2013] NAHCMD 204 (19 July 2013)








Coram: MILLER AJ



Heard: 18 June
2013



Delivered: 19 July
2013








Summary: Summary
judgment – Defendants raising defence of waiver –
Requirements to establish the defence discussed.



Held that the facts
relied upon to sustain the defence of waiver not established –
Summary judgment granted.













ORDER





In case I 3979/2012 I
grant judgment against the defendants jointly and severally in terms
of prayers 1, 2, 3 and 4 of the application for summary judgment. In
case I 3980/2012 I grant judgment against the defendants jointly and
severally in terms of prayers 1, 2, 3 and 4 of the application for
summary judgment.





JUDGMENT










MILLER AJ :








[1] The plaintiff
instituted two actions against the defendants under case numbers I
3979/2012 and I 3980/2012 respectively. Both actions are based upon
suspensive sales agreements concluded between the plaintiff and the
first defendant. As far as the second defendant is concerned, the
actions against him are based on written deeds of suretyship in terms
of which the second defendant bound himself as surety and
co-principal debtor for the first defendant’s debts and
obligations arising from the suspensive sale agreements.








[2] In case I 3979/2012
the plaintiff seeks the following orders:






  1. An
    order confirming the cancellation of the agreement so concluded
    between the parties.




2.



2.1
An order directing the defendant to immediately restore the 2009
MERCEDES BENZ to the plaintiff’s possession, failing which the
deputy sheriff is hereby authorized to take possession of and deliver
the vehicle described herein to the plaintiff wherever it may be
found.



2.2
An order declaring the amounts paid by the defendant in terms of the
agreement to be forfeited in favour of the plaintiff.



2.3
Leave to apply for judgment at a later stage on the same papers duly
amplified for damages if any, in an amount to be calculated by
subtracting the current market value of the vehicle of the sale price
of same as well as a rebate on unearned finance charges from the
balance outstanding.



2.4
Interest on the said damages at the current prime rate plus 10% per
annum as contemplated in clause 6.4 of the agreement.








3.
Alternatively to prayer 2 above, and in the event of the 2009
MERCEDES BENZ not being found;








3.1
Payment in the sum of N$217, 340.29.



3.2
Interest on the aforesaid amount at a current prime interest rate
plus 10% per annum as contemplated in clause 6.4 of the agreement.








4.
Costs of suit as between counsel and own client.








5.
Further and/or alternative relief.’








[3] Likewise in case I
3980/2012 the plaintiff seeks the following orders:











  1. An
    order confirming the cancellation of the agreement so concluded
    between the parties.




2.



2.1
An order directing the defendant to immediately restore the 2008
MERCEDES BENZ to the plaintiff’s possession, failing which the
deputy sheriff is hereby authorized to take possession of an deliver
the vehicle described herein to the plaintiff wherever it may be
found.



2.2
An order declaring the amounts paid by the defendant in terms of the
agreement to be forfeited in favour of the plaintiff.



2.3
Leave to apply for judgment at a later stage on the same papers duly
amplified for damages if any, in an amount to be calculated by
subtracting the current market value of the vehicle of the sale price
of same as well as a rebate on unearned finance charges from the
balance outstanding.



2.4
Interest on the said damages at the current prime rate plus 10% per
annum as contemplated in clause 6.4 of the agreement.



3.
Alternatively to prayer 2 above, and in the event of the 2008
MERCEDES BENZ not being found:








3.1
Payment in the sum of N$52 972.04.



3.2
Interest on the aforesaid amount at the current prime interest rate
plus 10% per annum as contemplated in clause 6.4 of the agreement.








4.
Costs of suit as between counsel and own client.








5.
Further and/or alternative relief.’








[4] The defendants
entered an appearance to defend the actions whereupon the plaintiff
applied for summary judgment which became opposed.








[5] The separate actions
were consolidated under case I 3979/2012 by me on 21 May 2013 and
pursuant to an agreement reached between the parties the applications
for summary judgment were heard by me on 18 June 2013.








[6] It is apparent from
the affidavit filed in opposition to the application for summary
judgment, which was deposed to by the second defendant that the
defendants seek to rely on the provisions of the Credit Agreements
Act, Act 75 of 1980 (the Act).








[7] The defendants allege
that the agreements relied upon are subject to the provisions of the
Act. With reference to section 11 of the Act, the defendants say that
the plaintiff was obliged to give written notice to the first
defendant to pay the arrears within 30 days from the notice. I should
add at this juncture that in each instance, the plaintiff did on 22
August 2012 address a written notice to the second defendant,
purportedly in terms of section 11 of the Act. The point taken by the
defendants are that the notice should have been addressed to the
first defendants instead. Thus, so the reasoning continued, the
plaintiff’s failure to address the requisite notice to the
first defendant, has as its result that the cancellation of the
agreements was premature and not valid.








[8] During the course of
the hearing before me on 18 June 2013, Mr. Mouton, who appeared for
the defendants correctly conceded that the provisions of the Act do
not find application to the agreements in question. That is so
because by virtue of Proclamation AG 67 of 1981 it was determined
that the Act shall only apply to credit agreements in relation to a
cost price of not more than N$100 000.00.








[9] It is common cause
that the agreements in the instant case stipulate a cash price in
excess of N$100 000.00








[10] It therefore follows
that the defence relied upon in the opposing affidavit is not
sustainable in law.








[11] Instead Mr. Mouton
argued that the letters addressed to the second defendant on 22
August 2012 constitute a waiver on the part of the plaintiff to
summarily cancel the agreements and requires in each case that the
plaintiff became obliged to give notice prior to cancellation.
Although this line of defence was not pertinently raised in the
opposing affidavit, I will nonetheless proceed to consider the point.
Since the letter form the cornerstone of the argument I quote it in
full:








Mr.
Harold von Luttichau



P.O.
Box 31805



Windhoek



Namibia



Dear
Sir/Madam








Account
Number :WFB68705J



Amount
in arrears :N$39 881.79



Next
instalment :N$13 222.33



Next
instalment date :15/09/2012








In
view of your failure, to effect payment of the installments, as set
out in your agreement, we hereby call on you in terms of Section11 of
the Credit Agreements Act 75/1980 to remit the arrears within 30 days
of the posting of this letter to prevent additional interest being
debited to your account. It will be appreciated if you could send us
a cheque for the above-mentioned amount.



If
you should fail to pay according to this demand, we will consider the
agreement cancelled and refer the matter to our Attorneys to
institute legal action against you for:




  1. Return
    of goods;



  2. Damages
    and



  3. Legal
    costs




If
you have, however in the meantime forwarded payment to us, then
please advise us urgently thereof, supplying details.








Yours
faithfully








M
TITUS (061-2997777)



CUSTOMER
ACCOUNTS DEPARTMENT’








[12]
It is apparent from the letter dated 22 August 2012, that the
plaintiff, incorrectly so it turned out, considered that the Act was
applicable. As a consequence and in response to the letter the
defendant alleges that the amounts in arrear at that stage were paid
on the 4
thand 5th
of September 2012 respectively.








[13] On their own
admission and as at 31 October 2012 the first defendant was once more
in breach of the agreement inasmuch as an amount of N$13 300.34 was
not paid on due date.








[14] In respect of that
amount, a payment of N$13 222.33 was paid only on 30 November 2012.








[15] The argument now
advanced is that the plaintiff was obliged to once more give notice
to demand payment of the amount which became due for payment on 31
October 2012, as a pre-requisite to cancellation of the agreement.








[16] In essence what the
argument bails down to is that the letter dated 22 August 2012
constitutes a waiver on the part of the plaintiff of its rights
flowing from clause 9 of the agreements to cancel the agreement,
without notice in the event that any amount due is not paid on the
due date for payment.








[17]
In
Standard Bank of Namibia Ltd v Veldsman
1993 NR 391 HC, Muller AJ (as he than was) stated the
following at page 392 A to E:



Rule
32(3)(b) of the Rules of this Court requires a respondent to
“disclose fully the nature and grounds of the defence and
material facts relied upon therefor.” This means a sufficiently
full disclosure of the material facts to persuade the Court hearing
the application for summary judgment that, if the respondent’s
allegations are proved at a trial, it will constitute a defence to
the plaintiff’s/applicant’s claim. See
Breitenbach
v Fiat SA (Edms) Bpk

1976 (2) SA 226 (T) at 228D-E. A reasonable possibility that the
defence advanced may succeed on trial will suffice. See
Shepstone
v Shepstone
1974
(2) SA 462 (N) at 467 A-B. Summary judgment is a very stringent and
final remedy which closes the doors of the Court for a defendant and
should only be granted if it is clear that the plaintiff has an
unanswerable case. It has often been stated by our and the South
African Courts that, even if the defence of the defendant does not
sufficiently comply with the requirements of Rule 32 (3), the Court
still has a discretion to refuse summary judgment. See
Mowschenson
and Mowschenson v Mercantile Acceptance Corporation of SA Ltd
1959
(3) SA 362 (W) at 366;
Mahomed
Essop (Pty) Ltd v

Sekhukhulu
& Son

1967 (3) SA 728 (D) at 732;
Globe
Engineering Works Ltd v Ornelas Fishing Co (Pty) Ltd

1983 (2) SA 95 (C) at 103G-H;
Gilinsky
and Another v Superb Launders and Dry Cleaners (Pty) Ltd

1978 (3) SA 807 (C) at 811 C-G.’








[18] I will follow that
approach even though there is some authority to the effect that the
requirement of an unanswerable case is not always required.



See
for instance
Diesel Power Plant Hire CC v
Master Diggers (Pty) Ltd
1992 (2) SA 295
(W).



[19] In order for the
defence of waiver to succeed the defendants bear the onus to
establish that there was decision taken by the plaintiff to abandon
the right it now seeks to assert against the defendants with full
knowledge of the right it abandoned.



Road
Accident Fund v Muthupi
2000 (4) SA 38
SCA;



Nellon
Ltd v Pacnet
1977 (3) SA 840 (A).








[20] It does not appear
to me that the letter dated 22 August 2012 upon which the defendants
now rely measures up to any of these requirements. The letter does
not in express terms convey a decision to waive the right to cancel
the agreement without notice. Nor was the letter prompted by a
decision on the part of the plaintiff to abandon that right. Clearly
the letter was prompted by a mistaken belief on the part of the
author thereof that the plaintiff was obliged to do so by virtue of
the provisions of the Act. I have no doubt that but for this mistaken
belief the letter would not have been written.








[21] At best for the
defendants the letter afforded the defendants an indulgence to pay
the arrear amounts then due. It goes no further than that and cannot
be construed as a waiver of the right at any stage thereafter to
cancel the agreement without notice should further beaches occur.








[22] The defendant no
doubt will be aware also of the provisions of Clause 10 of the
agreements which reads as follows:








10
Indulgence



Should
FNB not have insisted that you follow any of the terms and conditions
strictly at any previous stage you may not assume that the terms and
conditions have been altered. These terms and conditions will still
apply.’








[23] It would have been
plain for the defendants that an indulgence at some stage will not
amount to a waiver.








[24] As a consequence and
the exercise of my discretion I will grant summary judgment.








[25] I make the following
orders:









  1. In case I 3979/2012 I
    grant judgment against the defendants jointly and severally in terms
    of prayers 1, 2, 3 and 4 of the application for summary judgment.



  2. In case I 3980/2012 I
    grant judgment against the defendants jointly and severally in terms
    of prayers 1, 2, 3 and 4 of the application for summary judgment.






















































----------------------------------



P J MILLER



Judge








APPEARANCES








PLAINTIFF: A STRYDOM



Instructed by Susanne P.
Prins Attorney & Legal Practitioners













DEFENDANTS: C MOUTON



Instructed by Andreas
Vaatz & Partners