COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
No. I 4071/2014
22 JULY 2015
the matter between:
NATIONAL BANK OF NAMIBIA
UPEINGE TAAPOPI N.O.
LATE SAKARIA SHITUMBULENI SALOM)..........................SECOND
citation: First National Bank of Namibia Limited v SSS Motor Spares
CC (I 4071-2014) 
NAHCMD 163 (22 July 2015)
2 July 2015
22 July 2015.
PRACTICE – Summary judgment –unopposed. ESTATES –
whether a plaintiff is entitled to sue a deceased estate without
having lodged a claim against the estate in terms of the
Administration of Estates Act.
The plaintiff sued the defendants for payment of an amount loaned to
the company in which the deceased signed a suretyship agreement. The
executrix of the deceased estate was cited and served. Held that the
defendants had not filed an affidavit opposing summary judgment and
that the papers filed by the plaintiff were technically in order.
further that a plaintiff’s right to sue a deceased estate
without following the procedure set out in the Administration of
Estates Act was not taken away. Summary judgment was granted as
On 30 June 2015, I entered summary judgment in favour of the
above-named plaintiff against the defendants appearing above for
payment of an amount of N$ 219 477,80, interest thereon at the
rate of 13.75% per annum as from 2 October 2004, to date of payment
and costs of suit at the attorney and own client scale. I indicated
then that reasons for the order granted would be handed down in due
course. The said reasons follow below.
The plaintiff is a banking institution registered as a public company
in terms of the company laws of the Republic of Namibia. It sued the
defendants mentioned above for payment of N$ 129 477, 80;
compounded interest at the rate of 13.75% per annum as from 2 October
2015 to date of final payment and costs on the attorney and clients
The claim arises out of an agreement reduced to writing in terms of
which the plaintiff lent and advanced to the 1st defendant
an amount of N$ 450 000. The balance outstanding of the amount
advanced was duly certified in terms of the agreement to be the
amount reflected and above which amount it is alleged the defendant,
despite demand has failed and/or neglected to pay. The second
defendant is sued in her representative capacity as the executrix of
the estate of the late Sakaria Shitumbuleni Salom, who during his
lifetime, specifically on 25 September 2012, bound himself as surety
and co-principal debtor with the 1st defendant for the due
fulfilment of the obligations owed by the 1st defendant to
the plaintiff. I shall deal with the issue relating to the 2nd
defendant in due course as the judgment unfolds.
Upon service of the combined summons in terms of the rules of court,
the defendants entered a notice to defend dated 13 January 2015. This
prompted the plaintiff to move an application for summary judgment.
The said application was accompanied by the affidavit of the
plaintiff’s remedial manager Ms. Charlotte Morland, who
verified the cause of action and further alleged that the defendants
do not have a bona fide defence to the claim and had filed the
notice to defend for no other reason but to delay the plaintiff’s
enjoyment of the fruits of the judgment.
It is important to mention that at the case planning conference, the
parties agreed to file their respective papers in relation to summary
judgment as follows – the plaintiff was to file their
application for summary judgment on or before 4 March 2015, whereas
the defendant was to file its affidavit opposing summary judgment, if
any, on or before 18 March 2015. This case plan was accordingly
adopted and made an order of court.
It is plain that the defendants have not complied with the case plan
and as it is, both did not file the affidavit opposing summary
judgment as ordered. It is clear therefore that the summary judgment
application is unopposed. According to the provisions of rule 60 (5),
a defendant served with an application for summary judgment has
options open to him or her, namely putting up security to the
satisfaction of the registrar for any judgment, including costs or by
filing an affidavit before 12 noon on the court day but one before
the day on which the application is to be heard.
As indicated, the defendants were put to terms to file their opposing
affidavit and they failed to do so. As it is, there is no defence
that has been put up at all. The defendants were not even present
during the hearing of the application and did not make any
application therefore, whether for condonation to be allowed to file
the affidavit or even for leave of court to tender oral evidence
which is geared to establishing the nature and grounds of a defence
together with the material grounds upon which it is predicated. I say
this, not to suggest that it would have been open to the defendants
to resort to the latter in view of the terms of the case planning
conference. All I set out to do is to point out that the defendants
did not file the affidavit as ordered and also did not appear on the
day when summary judgment was to be heard.
I have looked closely at the pleadings filed by the plaintiff and I
have found that they are technically in order. There can be no
gainsaying that the claim is for a liquidated amount in money,
interest and for costs as required by rule 60 (1) (b). Furthermore,
as indicated, the affidavit filed by the plaintiff complies fully
with the requirements of the rule regarding the contents thereof,
specified in rule 60 (2) (a) and (b). All the necessary allegations
are made and the affidavit was properly commissioned before a
commissioner of oaths.
There is however one issue that was addressed ex
abudanti cautela by
Ms. Campbell for the plaintiff and it relates to the propriety of
suing the 2nd
defendant without having lodged a claim by the plaintiff against the
deceased estate in terms of the Administration of Estates Act.
The court was referred by counsel to the case of Nedbank
Limited v Steyn and Others.
In that case, the Gauteng High Court in Pretoria had refused to grant
judgment by default in which commercial banks sued the defendants who
were executors or executrix in certain deceased estates for loans
that had been advanced to the deceased persons during their lifetime
but which remained outstanding. The High Court removed these matters
from the roll and ordered the plaintiffs to comply with the
provisions of the Administration of Estates Act, thus effectively
meaning the plaintiffs had to start the proceedings de
On appeal, the question to be answered was whether the High Court was
correct in its decision, and more particularly whether the provisions
of the Administration of Estates Act serve to preclude a creditor
from pursuing its common law right to institute action against a
deceased estate for payment of money outstanding from a loan
Brandt JA, who wrote the unanimous judgment of the court, after
reviewing case law on the subject dating back to the 1913
Administration of Estates Act of South Africa, held the following:
ratio decidendi, as I see it, is in short that the procedure
laid down in the Act does not preclude the plaintiff from instituting
an action in common law against the estate. Thus understood, all
three judgments do indeed lend direct support to the judgment of Van
Oosten J in Samsodien N.O. Moreover, I believe these cases
were correctly decided. Unless it can be said that the Act, must be
construed to deprive the plaintiff of the common-law action against
the estate, that action remains extant. The finding by Watermeyer AJ
that there is no express provision to that effect in the old Act,
also holds true of the Act. In this regard, Mabuse J seems to have
found that clear implication in the considerations that the
institution of common-law actions alongside the application of the
statutory claims procedure, will delay the finalization of the estate
. . . I believe, however, that there is more than one answer to these
considerations. First, the claims procedure can hardly be said to be
speedy if, as happened in Steyn, the executor delays the
finalisation of the estate for years. Secondly, there appears to be
no factual basis for the suggestion that the statutory claims
procedure would be less expensive. It seems to lose sight of the fact
that the creditor would have to launch a review application in the
High Court and, if a factual dispute should arise, it would lead to
the hearing of oral evidence, which is akin to a trial.’
court accordingly set aside the orders of the High Court and granted
the default judgments as prayed.
In the instant case, the defendants were served with the combined
summons and they are aware of all the allegations made against the
1st defendant and the estate of the deceased. They have
not raised any issue as indicated earlier. I wish to commend Ms.
Campbell for raising this issue mero motu and uninvited in
order to assist the court. She has dutifully performed what courts
expect from its officers.
I have not heard the benefit of opposing argument on this issue and I
accordingly find in line with the Nedbank Limited case that
there was no need for the plaintiff to have followed the provisions
of the Administration of Estates Act before launching a claim for
recovery of the outstanding money from the loan before this court.
The provisions of the Administration of Estates Act relating to
lodging of claims thereunder does not take away a claimant’s
common law right to sue for recovery of money in court which is
alleged to be owed by a deceased estate. I fully agree with the
reasoning of the Supreme Court of Appeal in this regard. It is an
incontestable fact that deceased estates do tend to take long to be
wound up in cases and there are in certain instances disputes which
afflict the estate and result in considerable delay, which may not
suit the commercial exigencies of creditors, including commercial
It was for the aforegoing reasons that I granted summary judgment as
prayed on 2 July 2015.
by Fisher, Quarmby & Pfeifer
 JOL 33036 (SCA).
page8 para .