REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK
NO.: I 2452/2014
24 JULY 2015
the matter between:
FORBES NAMIBIA GROUP (PTY)
Neutral citation: Alexander Forbes Namibia
Group (Pty) Ltd v Andrew Nangombe (I 2452-2014) 
NAHCMD 167 (24 July 2015)
Coram: MASUKU, AJ
Heard: 2 July 2015
Delivered: 24 July
Practice - Rules of court – rule
32 (9) and (10) – effect of non-compliance – implication
of unauthenticated “opposing affidavit” on an application
for summary judgment – Procedural requirements exemption lay
– Reality of consent –
– requirements – acknowledgement of debt - burden of
proof on the party claiming such - fear to be reasonable enough.
for summary judgment in terms of rule 60. Rule 32 (9) and (10) not
applicable when interlocutory application is not opposed. Application
as been opposed, opposing affidavit not commissioned or authenticated
in terms of rule 60 (5) (b) read with rule 1 of the rules of court.
Held: there was no opposition to the summary judgment
application due to non-compliance with rules of court.
Acknowledgment of debt
signed by parties. Defendant claiming duress as a ground of
opposition. The burden of proof lies with the party claiming such
1. Payment in the amount of N$ 52 552,35.
2. Payment of interest on the amount of N$ 52 552,35 at a rate of
20% per annum calculated from 1 March 2014 to date of full payment.
3. Costs of suit on an attorney and client scale.
 This is an application
for summary judgment brought in terms of rule 60.
 It is common cause
that there was a motor vehicle accident involving the defendant and a
certain Ms Julia Sam who was insured by the plaintiff. It is due to
that accident, and the damages suffered by Ms Julia Sam that the
plaintiff brought a claim against the defendant for the following
‘ Payment in the
amount of N$ 52 552.35;
Payment of interest on
the amount of N$ 52 552.35 at rate of 20% per annum calculated from 1
March 2014 to date of full payment;
Costs of suit on an
attorney and client scale;
This relief is based on an
acknowledgement of debt between the Alexander Forbes Namibia Group
(Pty) Ltd (the plaintiff) and Mr Andrew Nangombe (the defendant) in
which the defendant acknowledged in writing his indebtedness in the
amount of N$ 52 552, 35 to the plaintiff on 13 February 2012 by
Brief outline of the
history of the case
 The defendant; a self
actor, defended the action and the matter was then set down for a
case planning conference before the Angula, AJ (as he then was) on 23
September 2014. On that date, the matter was postponed to 29
September 2014 for a status hearing and the court put the parties to
terms regarding compliance with the rules of court failing which
sanctions would be imposed in terms of rule 53 and 54 respectively.
 The case plan report
that was filed indicates that the plaintiff intended on applying for
summary judgment. The court gave directions as to the filling of
papers for the summary judgment and set the matter down for hearing
on 10 – 14 November 2014 at 10h00. The application for summary
judgment was filed as indicated in the report, and the defendant
filed his opposing affidavit dated 10 October 2014, although titled
‘OPPOSING THE AFFIDAVIT’ as directed by the court. It is
this affidavit whose validity came into question at the hearing.
 On 10 November 2014,
when the matter was called, the parties seemed not to have appeared
in court as expected and Angula, AJ (as he then was) struck the
application from the roll for ‘non-appearance by the
 The plaintiff brought
an application dated 24 November 2014 for the re-instatement of the
application for summary judgment and the granting of summary
judgment. This application was however not heard on that date, but
only on 11 March 2015 where the application for summary judgment was
re-instated. It was set down for yet another case planning conference
and the matter was then postponed to 22 April 2015 for the setting of
the hearing date and directions for filing heads of argument by the
parties. At this point I must mention that the matter was
re-allocated to me after Angula, AJ’s acting term ended. On 22
April 2015, the matter was called and a date of 2 July 2015 at 9h00
was set for the hearing of the summary judgment application and the
parties were directed to file heads of argument on or before 19 June
2015 for plaintiff and 26 June 2015 for defendant respectively.
 The issues I will deal
with are the following:
7.1. Does rule 32 (9) and
(10) find application in this matter?
7.2. Point in limine:
is there opposition to the application for summary judgment?
7.3. If there was proper
opposition, has either of the parties made out a case to (a) grant
summary judgment for the plaintiff, and (b) dismiss the application
and grant the defendant leave to defend the matter?
Application of rule
32 (9) and (10)
 The first issue to be
determined is whether rule 32 (9) and (10)
was complied with as required. There has been recent case law on the
matter that clearly states that these provisions are mandatory and
the effect of non-compliance leads to matters being struck from the
roll (see Mukata v Appolus ( I 3396/2014)  NAHCMD 54 (12
March 2015), Bank Windhoek (Pty) Ltd v Nosib Farming CC (I
1404/2014)  NAHCMD 89 (15 April 2015), Visagie v Visagie
(I 1956/2014)  NAHCMD 117 (26 May 2015) and First National
Bank of Namibia Limited v Louw (I 1467/2014)  NAHCMD 139
(12 June 2015)).
 In this matter, the
provisions of rule 32 do not however find application due to the
application being unopposed. Reasons for this will become apparent
below. I am in agreement with plaintiff’s submission on this
Point in limine
 At the outset,
counsel for the plaintiff Mr Luvindao started his argument with a
point in limine in which he attacked the document the
defendant filed on 10 October 2014 as his opposing affidavit.
According to counsel for the plaintiff, what was before court was not
a valid opposing affidavit in terms of rule 60, rule 1 of the High
Court Rules and the Justices of the Peace and Commissioners of Oath
Act 16 of 1963, which led to his submission that the application is
not opposed and should thus proceed unopposed and the court must use
its discretion to grant the relief sought.
 Examining the said
document titled ‘Opposing the affidavit’ only bears
defendant’s names and signature. It has not been commissioned
by a commissioner of oaths as required by rule 1 of the rules of
court which as Mr Luvindao correctly pointed out described an
affidavit to be:
written statement signed by the deponent thereof under oath or
affirmation administered by a Commissioner of Oaths in terms of the
Justices of the Peace and Commissioner of Oaths Act,1963 (Act 16 of
 It was plaintiff’s
ultimate submission that in terms of rule 60 (5)(b), there is no
opposition to the application because there is no duly executed
opposing affidavit before court against the summary judgment
 He further argued
that, the defendant had ample time to rectify and/or address the
non-compliance with the rules of court when he received the
plaintiff’s heads of argument where the issue of his defective
affidavit was raised. However, he failed to do so. The plaintiff
cited the case of Namquest Fishing (Pty) Ltd // Vilho Melkisendeki
(LC 2/2010)  NALCMD 16 (20 May 2013) where the applicant
brought an application to review and set aside an arbitration award
in terms of section 89 (4) of the Labour Act 11 of 2007. A notice of
motion accompanied by a supporting affidavit containing the facts
upon which the applicant relied for the relief sought. The affidavit
was not properly authenticated in terms of the justices of Place and
Commissioners of Outns Act. In that case Ueitele, J stated that:
An 'affidavit' is defined as 'a written statement, sworn by the
deponent . . .’ It is trite that an affidavit must be sworn to
before a person competent to administer an oath. Commissioners of
oaths and Justices of the Peace are either appointed by the Minister
of Justice for a specific area or magisterial district within the
Republic of Namibia or are holders of specified offices designated as
Commissioners of oaths and Justices of the Peace.
In the present matter the document purporting to be the supporting
affidavit creates the impression that the statement contained in that
document was sworn to before a certain Gloria Blanco Iglesias, with
an address somewhere in “Espana” (Spain). If indeed that
is correct there is no evidence before me that Gloria Blanco was
appointed or designated as a Commissioner of Oaths in terms of
section 8(1)(a) of the Justices of the Peace and Commissioners of
Oaths Act, 1963. It thus follows that the affidavit was not sworn to
before a person who is competent to administer an oath and the
document attached to the notice of motion is thus not an affidavit as
is required by the rules of this court.
During argument Ms. Petherbridge who appeared for the applicant
submitted that the affidavit must be containing typographic errors
because Mr De Castro was not in Walvis Bay when he signed the
affidavit, she said he was in Spain. But that still does not save the
document, as rule 63 of the High Court Rules requires that a document
executed outside Namibia be authenticated as contemplated in rule
63(2). If the document is not so authenticated it cannot be used in
any proceedings before this court. The document annexed to the
applicants’ notice of motion launched on 15 February 2010 can
therefore not be used in support of the relief sought. Since there is
no affidavit attached to the application, there was no application
filed within the 30 days contemplated in section 89(4) of the Labour
 The labour
application was thus struck from the roll because there was no paper
application before court. Mr Luvindao was adamant that the reasoning
employed in Namquest Fishing was correct and should be
applied in this case. In view of the non compliance with Rule 1 and
60 (5)(b) of the rules of court, there is no proper opposing
affidavit before court which makes this application an unopposed one.
Further reasons why I came to this conclusion will become clear when
I deal with defendant’s case in paragraphs 20 and 21 below.
Merits of the case
 Although I have
already come to the conclusion in paragraph  that there is no
proper opposition, I in any event asked counsel to address me on the
merits. As indicated earlier the matter is before court due to an
acknowledgement of debt signed by the parties on 13 February 2012.
For what the opposing affidavit is worth the defendant claimed duress
as a ground of defence in his signature to the acknowledgement of
debt was obtained through intimidation, threats and force inflicted
by the plaintiff.
 The plaintiff
submitted and denied that there was any foul play in the form of
duress from its staff toward Mr Nangombe. The elements necessary to
set aside a contract or render it voidable simply do not exist in
 Defendant claims that
he was called three times to come to plaintiff’s place of
business to sign the acknowledgement of debt and at one of those
meetings, a Mrs Roeline Koekemor, an employee of the plaintiff had
indicated and explained to the defendant that he is in a “precarious
and that “they might place him on ITC”. These statements
according to counsel cannot be taken to induce any form of unlawful
and reasonable fear of some considerable evil to the defendant.
 Thus the defence
relied on by defendant is not sufficient to hold up at trial should
the matter proceed in the normal course. I am inclined to agree with
plaintiff on this score.
 According to
defendant, he is an unemployed 34 year old whom the applicant forced
to sign the acknowledgement of debt which plaintiff is relying on.
 At the hearing I
asked the defendant to address the court on the plaintiff’s
point in limine and why he thinks that his opposition is
proper and should hold. I appreciated the fact that he is not learned
in the law and needed a bit of direction and guidance I accordingly
put a series of questions to him as follows:
Thank you. Mr Nangombe? I am sure you have heard what Mr Luvindao has
submitted to court.
Yes, let us start with the first issue; the first issue that he has
taken is that you have not complied with the rules because at the
beginning you were served with the summons. You understand? And then
you filed a notice of intention to defend and then after that they
filed an application for summary judgment and then in terms of the
rules where you deny liability, you have to state what your defense
is in an Affidavit. So the point they make is that you did not comply
with the rules because you merely wrote a letter which does not
comply with the strict requirement of the rules. So they are saying
that before Court there is no defense that is actually disclosed. So
that is the first point they take, what do you say?
It is only that I do not understand what they described on the paper
itself because there is nobody to help me so that I can understand
more about those papers.
Yes but an Affidavit is a statement that you make under oath, which
means you have to go to a commissioner of oath and raise your right
hand and say so help me God if you believe in God, if you do not you
make an affirmation. That is what an Affidavit is and in this case
you did not file an Affidavit, you just made a statement.
I think when I was at the North when they used to bring the papers to
my place where I was staying, I think those people that stay there
they did not (indistinct). I told them there are papers coming from
the court they must at least SMS me so that they must send it or I
must come this side so that I can (intervention). . .
No, no it is not about you being served, here it is when they filed
the application for summary judgment, in your papers opposing the
summary judgment you had to make a statement under oath and you did
It is only that (indistinct). . .
And then also what Mr Luvindao has submitted is that they gave you
the Heads of Argument and from what I read you received the Heads on
of June. You could have, because they raised a point to say that
before court there is no affidavit, you could have maybe gone, took
your statement and you took it to a commissioner of oaths so that it
becomes and then you sign it before a commissioner of oath having
taken an oath then you would come to court and ask for maybe for
condonation, for late filing of the affidavit, that is the matter the
court would consider. But even after they had alerted you to the fact
that your documents do not comply with the provisions of the rules,
you still did not take the step to rectify that problem. What do you
say Mr Nangombe?
I do understand what you say.
I do not know what to do because I did not receive some of the files
that I did reply as he said (intervention). . .
I did not receive some of the files, some of the (intervention). . .
No, no but all the documents are here, he is complaining about that
document that you filed. Do you have your documents?
I only have for last week.
I only have for last week.
You did not bring the rest of them?
The rest of them they are at home but I received them.
No but you should have brought them Mr Nangombe because you must make
reference to that. These are very, very important documents, that is
the documents which you filed which he is complaining that it has not
complied with the requirements of the rules so that when you received
his Heads you should have then maybe gone and you should have gone
and taken an oath, signed this before a commissioner of oaths.
I received some of the files from Ms Ipinge, then I always ask her
where to go, she said no you do not need to ask me, that is why I end
up now where. I have nowhere to direct you where to direct you,
consult anybody to give me information how to do this like an
opposing affidavit. She said no you do not need to ask me.
Ms Ipinge works for the plaintiff, I mean rather work with Mr
Luvindao? Well I think she probably does not want to be seen to be
influencing because she is acting for the plaintiff. So it might in
some instance not be good for her to be, for her to be now telling
you because if things go astray you are going to say no you led me
into a (indistinct) deliberately so that I am not able to get myself
out of the mess. Anyway let us move on, that was the first point, do
you wish to say anything on the non-compliance with the rules in
relation to the filing of an affidavit?
I do not have anything.’
 The court tried to
get an answer from the defendant with regards to the non-compliance
with the rules regarding his opposing affidavit which was not
commissioned as required. He merely stated that he had no one who
could assist him with the case; the drafting of the affidavit and to
advise him that he needed to get the document commissioned in terms
of the rules of court in order for it to be accepted as an opposing
affidavit. His answers could not unfortunately move me to accept the
document as a valid opposing affidavit in terms of the applicable
rules of court as indicated earlier.
 I proceeded to ask
him to address the court on his defence of duress. A lot of
allegations were made in the document he relies on as an opposing
affidavit in that he has been forced to sign the document
(acknowledgement of debt) which he had refused to sign on three
different occasions and he was led into a “cul de sac” as
it were. At the end, he stated, he and had no choice but to sign.
 I asked him to
address me on how his allegation meet the elements of duress as the
applicant indicated that he failed to show how there was force or
coercion on their part. He was only able to say that whenever he was
called to attend to Alexander Forbes office, and presented with the
acknowledgement of debt to sign it, he asked the employee he dealt
with to give him an audience with management so that he can explain
to them that he was unemployed and unable to pay for the damages, but
his request was declined each time.
 He claims that ‘the
lady call Louleen refuse me to see the management of Alexander Forbes
and I don’t sign then lock me up. She blackmail and convincing
me that if I pay the damage now it will be better for me to buy
anything I want in any store I like of if a want to buy a car’(sic).
 According to him; the
day he signed the acknowledgement of debt, he was called to Alexander
Forbes and presented with the acknowledgement of debt to sign which
he again refused. The staff member he dealt with locked him in the
office and refused to let him out if does not sign. He pleaded to be
let out of the room but the employee told him he must first sign
before she unlocks the door. He then signed. The court enquired why
he did not go to the police to report what happened. He submitted
that he went to the police station to open a case and he was told
that he can only open a case when ‘these
people for Alexander Forbes open a case against you because that time
there was no case against me. Then I was just waiting for them to
open a case then I will open also’ (sic).
He made all these claims in court but, were not contained in his
“opposing affidavit”. Applicant replied that the room
where defendant was placed in was a consultation room with two doors
that cannot be locked by the staff he dealt with because she was not
issued with keys to these doors. Those keys are kept by the service
staff and the doors can easily be opened because they are not locked.
One cannot attach much credence to these allegations as they should
have been on oath but are instead disguised as submissions
 In my view, the
events that led to defendant signing acknowledgment of debt do not
amount to force. The defendant unfortunately failed to prove duress
and convince the court to set aside the acknowledgment of debt. In my
view, the defense relied on is weak because he could not show the
court that he was placed under immense pressure, and that the threat
was considerably evil to his person which yielded reasonable fear in
him to sign. Being placed on ITC also would not create the kind of
fear that is necessary for the claim/ground of duress to stand. Being
locked in a room unwillingly is also not a good enough reason for the
defense claimed. He as a grown who man could have stood his ground
and refused to sign the acknowledgment of debt if he had reservations
regarding the amount he was agreeing to and the issues of quotes.
 In the case of MB
De Klerk & Associates // Eggerschweiler and Another
Damaseb JP outlined the test for duress:
test for duress as a ground for avoiding a contract
If a proper case for duress is made out the agreement which resulted
therefrom is voidable on the basis that there is no true consent. The
improper influence must have been the direct cause of entering into
the transaction. The person alleging such duress bears the onus of
proof. The pressure must be directed to the party, or to his/her
family, must relate to an imminent injury to be suffered by the party
himself in person or in property. Additionally, it must be proved
that the pressure was exercised unlawfully or contra
bonos mores. For
example, to intern someone because he is unwilling to join the army
has been held to be contra
bonos mores and
Various decisions have debated the issue of the kind of pressure
necessary to justify cancellation of an agreement executed under
duress. Smith v Smith
referred to Voet's statement which held that:
fear ought to be justified in the sense of being grievous enough. It
should be such fear as properly descends even upon a steadfast
person. For idle alarm there is no excuse; and it is not enough for
one to have been alarmed through the influence of any sort of fright.
Nevertheless in assessing what fear must be said to be serious enough
regard must be taken of the age, sex and standing of the persons.
Hence the question, namely what fear is sufficient, is one for the
investigation and discretion of the Judge.'
A leading case on the nature of the threat is Union
Government (Minister of Finance) v Gowar
where Wessels AJA stated at 452 that —
act could be set aside where it was done under circumstances which
showed that the act was not voluntary, because it was done under
pressure. What the exact amount of pressure is which will enable a
Judge to set aside an act, depends very much upon the surrounding
circumstances. It is true that the Judge may use his discretion, but
it must be a judicial discretion, and an act must not lightly be
rescinded as having been induced by metus.
The pressure necessary to set aside a payment must be of such a
nature that it is clear to the Court that, but for this pressure, the
payment would not have been made.'
Duress is not
satisfied if one exerts pressure in circumstances in which it is open
to the affected party to adopt an alternative course of action for
dealing with his predicament’
(I underlined this paragraph for emphasis).
 I agree with the
sentiments of Damaseb JP in this regard and I will take this point no
The law and
 Having stated already
that defendant’s defense of duress should fail, I wish to add
to the issue of defendant’s “opposing affidavit”. I
was fully appreciative of the fact that defendant is a lay litigant.
In the case of Nghiimbwasha and Another // Minister of Justice and
where the applicants in that urgent application drew my attention to
the Xinwa matter and these were my thoughts:
applicants claim and correctly so that they are not trained in law
and should not be dealt with by this court at the same level as
lawyers and that any deficiencies evident in the papers should be
viewed from that perspective. So forceful was this argument that in
reply, the applicants cited an excerpt from the case of Xinwa
And Others v Volkswagen SA (Pty) Ltd,
where the Constitutional Court of South Africa said:
prepared by lay persons must be construed generously and in the light
most favourable to the litigant. Lay litigants should not be held to
the same standard of accuracy; skill and precision in the
presentation of their case required of lawyers. In such pleadings
regard must be had to the purpose of the pleading as gathered not
only from the context of the pleadings but also from context in which
the pleadings is prepared. Form must give was to substance.’
The above judgment has been accurately quoted by the applicants and
it states that the court must not hold lay litigants to the same
standards required of legal practitioners in the drafting of
pleadings. This arose in a situation where the court found that
although the applicants had failed to accurately capture the relief
they sought in the pleadings, it was otherwise clear from the papers
what it is they sought, namely an appeal against an unfavourable
decision. The court considered that in those circumstances, it was
clear that the applicants were seeking leave to appeal directly to
the Constitutional Court.
It is worth considering that having said so; the court noted however
that the applicants had failed to comply with what it referred to as
a “procedural requirement” i.e. to obtain a certificate
in terms of rule 18. The court noted that no explanation had been
tendered for that failure. By asking this question and commenting on
it, it is clear that the court was not of the view that lay litigants
were excused from complying with procedural requirements. The court
however found it unnecessary to deal with the failure to comply with
the said procedural requirement considering the view it took of the
matter. It dismissed the application as it found there were no
prospects of success.’
requirements are mandatory and should be complied with by both legal
practitioners and lay litigants alike. And just because a party is a
lay litigant does not exempt him or herfrom complying with the rules
of court. If courts allow such reasoning to be excuses by parties who
fail to comply with the procedures of court we will make a mockery of
 I thus find that
defendant has not opposed the application as required in terms of
rule 60 (5)(b) read with rule 1 of the Rules of the High Court. This
application was unopposed and should therefore succeed. Considering
the defence mounted in the improperly filed affidavit, I find same
does not pass muster.
 In the premises, I
make the following order in favour of the plaintiff:
Payment in the amount of N$ 52 552, 35.
32.2 payment of interest on the
amount of N$ 52 552, 35 at a rate of 20% per annum calculated from 1
March 2014 to date of full payment.
Costs of suit on an attorney and client scale.
by Dr Weder, Kauta & Hoveka
Court order dated 10 November 2014.
‘(9) In relation to any proceeding referred to in
this rule, a party wishing to bring such proceeding must, before
launching it, seek an amicable resolution thereof with the other
party or parties and only after the parties have failed to resolve
their dispute may such proceeding be delivered for adjudication.
party bringing any proceedings contemplated in this rule must,
before instituting the proceeding, file with the registrar details
of the steps taken to have the matter resolved amicably as
contemplated in subrule (9), without disclosing privileged
See from page 11-13 of the judgment.
The grounds for duress were discussed the cases of Arend and
Another vs Astra Furnitures (Pty) Ltd 1974 (1) SA 298 (C) and
Visser and Another vs Kotze (519/2011)  73 (25 May
2012) and correctly listed by applicant’s counsel as:
i. ‘The fear must be a reasonable one;
ii. It must be caused by the threat of some considerable evil to
the person concerned or his family;
iii. It must be the threat of an imminent or inevitable evil;
iv. The threat or intimidation must be unlawful or contra
v. The moral pressure used must have cause damage.’
Pages 6-8 of the applicant’s heads of argument.
2014 (3) NR 609 at 623.
(A 38/2015)  NAHCMD 67 (20 March 2015) at pages