Nedbank Namibia Limited v Naobeb ([node:field-casenumber]) [2019] NACHMD 130 (26 April 2019);

Group

Full judgment

The Order:

Having heard Ms Kuzeeko, on behalf of the plaintiff and Ms. Da Silva, on behalf of the defendant and having read documents filed of record:

IT IS ORDERED THAT:

1.    The application for summary judgment is refused.

2.    The defendant is granted leave to defend the action.

3.    The parties are directed to file a joint case plan on or before 30 May 2019.

4.    The costs of the summary judgment application shall be costs in the cause.

5.    The matter is postponed to 05 June 2019 at 15:15 for a Case Planning Conference.

Reasons:  Practice Direction 61(9)

[1]           In this matter the plaintiff, Nedbank Namibia Limited, applies for summary judgment against the defendant  for:

‘1.            An order confirming the Plaintiff’s cancellation of the agreement.

 2.            An order directing the Defendant to immediately restore the motor vehicle, a 2017 New Ford                                      Ranger 2.2 TDCI 6MT 4x2 XL Dc motor vehicle, with engine No.QJ2LPGL14589 and chasis  No.                                AFAPXXMJ2PGL14589 to the Plaintiff and failing compliance therewith, within such time  as may be                          directed by the above Honorable Court, authorizing and directing the Deputy  Sheriff to take the said                          vehicle into his possession and to deliver same to the Plaintiff.

3.             An order declaring the amounts paid by the Defendant in terms of the agreement to be  forfeited in favour                  of the Plaintiff.

4.             Costs of suit at attorney/client scale.

5.             Furthermore and/or alternative relief’.

[2]           The defendant opposes the application for summary judgment and has filed an opposing affidavit.

[3]           Having considered the application for summary judgment, I am not satisfied that prayers 1 and 3 are claims in respect of which summary judgment can be properly moved in terms of rule 60 (1).  I say so because, in my opinion prayers 1 and 3, as more fully set out in paragraph [1] hereof, are not claims:

(a)  based on a liquid document;

(b)  for a liquidated amount of money;

(c)  for delivery of a specified movable property; or

(d)  for ejectment.

[4]           I have considered prayer 2 within the context of the whole case and it appears to me that prayer 2, (the restoration of the motor vehicle to the plaintiff) is linked to the agreement between the parties having been cancelled.  The cancellation of the agreement is one of the relief that the plaintiff prays for herein.  It, therefore, appears to me, on the facts of the present case, that prayer 2 cannot be granted in the circumstances.

[5]           In the result, and for the aforegoing reasons, I make the following order:

1.    The application for summary judgment is refused.

2.    The defendant is granted leave to defend the action.

3.    The parties are directed to file a joint case plan on or before 30 May 2019.

4.    The costs of the summary judgment application shall be costs in the cause.

5.    The matter is postponed to 05 June 2019 at 15:15 for Case Planning Conference.

            Judge’s signature

 

Note to the parties:

 

Not applicable

Counsel:

Plaintiff

Defendant

 

Ms Kuzeeko

Of Dr Weder Kauta & Hoveka Inc

 

Ms Da Silva

Of Conradie and Damaseb Legal Practitioners

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