Moodley v Coetzee (HC-MD-CIV-ACT-OTH-2019/03901) [2020] NAHCMD 133 (21 April 2020);

Group

Headnote and flynote
Flynote: 

Practice – Judgments and orders – Summary judgment – Bona fide defence – Defendant must satisfy court that had bona fide defence – Defence of

Headnote and Holding: 

The Plaintiff sought an eviction order against the Defendant from a property wherein she alleges that she is the lawful owner of the above property and has a title deed, T4538/2019 which shows that the property is indeed registered in her name.

The Defendant opposed the application, further indicating that he denies that having entered an appearance to defend solely for the purposes of delaying the action and that he indeed has a bona fide defence.  He indicated that he is not the registered owner of Erf 1599 Klein Windhoek, which is the subject matter of this dispute, but that he is the real owner of the property, while further detailing the transactions that took place on behalf of the property with the attempt to further strengthen his defence.

Held – The requirements of rule 60(5)(b) which must be satisfied for a successful opposition to a claim for summary judgment was stated as follows in the locus classicus Maharaj v Barclays National Bank Ltd.

Held – The Respondent/Defendant had to make out a bona fide defence against the application brought by the Applicant/Plaintiff.  This includes making a full disclosure of the defence, which he did, as well as showing that the defence is good in law.  In this instance the court finds that the defence is not good in law and decline to give the Respondent/Defendant leave to defend the matter.

Full judgment

 

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

RULING

 

CASE NO.:  HC-MD-CIV-ACT-OTH-2019/03901

In the matter between:

 

JAYANTA MOODLEY                                                                                             PLAINTIFF

 

and

 

RENALDO COETZEE                                                                                           DEFENDANT

 

Neutral Citation:     Moodley v Coetzee (HC-MD-CIV-ACT-OTH-2019/03901) [2020] NAHCMD 127 (31 March 2020)

 

Coram:          RAKOW, AJ

 

Heard:            06 March 2020

 

Delivered:     21 April 2020

Flynote:         Practice – Judgments and orders – Summary judgment – Bona fide defence – Defendant must satisfy court that had bona fide defence – Defence of

Summary:     The Plaintiff sought an eviction order against the Defendant from a property wherein she alleges that she is the lawful owner of the above property and has a title deed, T4538/2019 which shows that the property is indeed registered in her name.

The Defendant opposed the application, further indicating that he denies that having entered an appearance to defend solely for the purposes of delaying the action and that he indeed has a bona fide defence.  He indicated that he is not the registered owner of Erf 1599 Klein Windhoek, which is the subject matter of this dispute, but that he is the real owner of the property, while further detailing the transactions that took place on behalf of the property with the attempt to further strengthen his defence.

Held – The requirements of rule 60(5)(b) which must be satisfied for a successful opposition to a claim for summary judgment was stated as follows in the locus classicus Maharaj v Barclays National Bank Ltd.

Held – The Respondent/Defendant had to make out a bona fide defence against the application brought by the Applicant/Plaintiff.  This includes making a full disclosure of the defence, which he did, as well as showing that the defence is good in law.  In this instance the court finds that the defence is not good in law and decline to give the Respondent/Defendant leave to defend the matter.


ORDER


a)         The defendant’s opposition to the summary judgment application is dismissed

b)         The application for summary judgement is therefore granted with costs.

 


JUDGEMENT


 

RAKOW, AJ:

 

Introduction

 

[1]        The Plaintiff in this action is seeking an eviction order against the Defendant, wishing to evict him from the premises at Erf 1599 Berker street, Klein Windhoek, Windhoek.  The Plaintiff alleges that she is the lawful owner of the above property and has a title deed, T4538/2019 which shows that the property is indeed registered in her name.  She purchased the said property from a certain Bernardus Theodorus Pretorius for N$2 000 000.00 and it was so registered on 18/7/2019.

[2]        The claim for eviction became defended by the Defendant, Mr Renaldo Coetzee on 23/9/2019 and the Plaintiff subsequently, after complying with rule 32(9) and filing a report in terms of rule 32(10), filed an application for summary judgement together with a supporting affidavit indicating that it is her believe that the Defendant has no bona fide devence.  The Defendant subsequently filed a notice to oppose the application for summary judgement together with his affidavit explaining his defence.

The Defence

[3]        For purposes of determining whether the Defendant has a bona fide defence, the content of Mr. Coetzee’s affidavit is set out in some detail. Mr Coetzee stated under oath that he denies that he entered an appearance to defend solely for the purposes of delaying the action and that he indeed has a bona fide defence.  He indicated that he is not the registered owner of Erf 1599 Klein Windhoek, which is the subject matter of this dispute, but that he is the real owner of the property.  He then explains that he and his ex-wife got divorced during the earlier part of 2012, part of the settlement agreement reached by them was to sell their property they had at Finkenstein Estate and for him to buy another property from the proceeds.  His wife further agreed that, although she would not be living there, the property in Klein Windhoek would be registered in her name and the Defendant and their children would be living in the said property.

[4]        The property was eventually registered in the name of his wife as his nominee, and was paid by way of a swop of the Finkenstein Estate property for a part of the purchase price of that property.  The Berker street property was transferred into the name of the Defendant’s ex-wife on 12/12/2016.  He indicates that at all material times, the property was his and his wife was only holding it on his behalf as his nominee.  He provides the reason for this as that he was not credit worthy and could not obtain finance by way of a loan against the security of the property, should the need arise at a later stage.

[5]        During this time, he conducted business with a certain Bernardus Theodorus Pretorius, who is a building contractor and they conducted business as partners which involved purchasing properties that required renovations, renovating them and then selling same for a profit.  The Defendant indicated that he was not cash flush (flush with cash?) although he owned the Berker street house through his wife.  During this time, he renovated the property and improved its value substantially.  In 2016 when the property was registered in his wife’s name, two years after the purchase, it was valued in excess of N$6 000 000.00.

[6]        During early 2016, the Defendant and Pretorius agreed to transfer the house into the name of Pretorius for a nominal sale value.  The agreement was that Pretorius would not actually pay for the property and that it will remain the property of the Defendant.  Pretorius would raise funds, which in turn will be the financial contribution of the Defendant to their partnership.  This will be done by Pretorius by way of applying and securing a mortgage bond over the Berker street property.  In addition to that, N$500 000 would be used to renovate and improve the property.  The money was so raised from Bank Windhoek Limited and the agreement was that the property would be transferred into the name of the Defendant when the opportunity presents itself and when the mortgage bond was settled.

[7]        In terms of their agreement, which is represented by a sale agreement between Anelle Coetzee and Pretorius and annexed to the affidavit, the property was sold to Pretorius for N$2,000,000.00.  The Defendant alleged that Pretorius never obtained ownership of the property and the Defendant refers to clause 7 of the written agreement.

The property was transferred into the name of Pretorius and his name also appears on the deed of transfer no. T6187/2016.  The loan Pretorius applied for from Bank Windhoek in the amount of N$ 2 101 600.00 was secured with the registration of a mortgage bond over the property.

[8]        To enable Pretorius to qualify and obtain the loan, they entered into a written lease agreement in terms of which the Defendant would rent the property for an amount of N$22 000.00 per month.  He has no copy of the lease agreement but it could be obtained from Bank Windhoek.  The Defendant remained living in the property together with his minor children and on his own, renovated and improved the property.  He also attached a quotation to his statement, addressed to Pretorius confirming the renovations.  This is however only a quotation and not an invoice.

[9]        Bank Windhoek transferred an amount of N$ 2,000,000.00 to the account of the Renaldo Coetzee Family Trust after the registration of the property in the name of Pretorius and in turn, the Defendant transferred N$1,380,000.00 back to Pretorius on 21/10/2016.  The amount of N$500,000.00 was retained by the Defendant to cover expenses he had incurred in renovating the property which was valued at that time by Bank Windhoek in the amount of N$7,600,000.00.  Contrary to what they agreed, Pretorius did not use the money raised towards the project with which they were busy with but used the money personally.  The Defendant only became aware of this during September 2017 as Pretorius was in charge of the day to day control of the finances of the partnership.

[10]      During a confrontation around September 2017, the Defendant and Pretorius agreed that Pretorius would service the mortgage payments by paying the installments to Bank Windhoek and that as soon as the amount was settled that was borrowed from Bank Windhoek, the bond would be cancelled and the property transferred in his name.  This agreement was breached and Bank Windhoek sent a letter of demand dated 30 May 2018 to Pretorius as Pretorius was not paying the monthly installments as agreed.  Bank Windhoek instituted legal action during August 2018 and the Defendant enquired from Bank Windhoek as to the reason thereof.  He also informed them that the property was his and that Pretorius was only holding it on his behalf.  The bank informed him that as far as they are concerned, he is not part of the proceedings.  When Pretorius was confronted by the Defendant, he indicated that he would sort matters out.

[11]      Matters were indeed not resolved by Pretorius and during February 2019, Pretorius and Bank Windhoek entered into a settlement agreement, which was made an order of court in case HC-MD-CIV-ACT-CON-2018/02959 in which Pretorius undertook to sell the property.  This was done without the knowledge of the Defendant.  In the meantime, Pretorius entered into a sale agreement with the Plaintiff wherein the Plaintiff purchased the property.  The Defendant insists that Pretorius could not have done so as he was not the owner.  The Plaintiff bought the property for N$ 2,000,000.00 which was lower than the previous valuation and it seems that the Plaintiff never saw the property.

[12]      The Defendant states his defence in that by his actions, Pretorius committed fraud as he acted without the authority of the Plaintiff.  He further intends to join Pretorius as a 3rd party and to request the court to make an order setting aside the transaction whereby the property was registered in the name of the Plaintiff.  His ex-wife filed a confirmatory affidavit in which she confirms the version of the Defendant which relates to her involvement.  

[13]      Attached to the affidavit of the Plaintiff are various documents including the Deed of Sale between Brigitte Elfriede Marder-Scheid and Anelle Coetzee and again between Anelle Coetzee and Bernardus Theodorus Pretorius for the Berker Street property as well as the Deeds of Transfer and the Mortgage Bond of Bank Windhoek registered over the property during the second transfer transaction.  It further includes a quotation to Pretorius for improvements to the house to the amount of N$3,516,820.75 and various print outs from financial transactions between the Renaldo Coetzee Family Trust and Pretorius.  It also includes the letter of demand from Bank Windhoek to Pretorius, an appraisal report from Namib Bou appraising the Berker Street property in 2019 at N$6,950,000.00 and a copy of the settlement agreement between Bank Windhoek Limited and Bernardus Theodorus Pretorius.

[14]      There is a further application before court for the condoning of the late filing of the Defendant’s heads of argument after the date determined in the court order of 31 October 2019.  The legal representative for the Defendant explained that there was a misunderstanding between him and the instructed counsel regarding the date for filing heads as he understood it to be in terms of Rule 131(9)(a) and the instructed counsel understood it to be in terms of the amended PD 57 of Practice Directions 6.

The Arguments before court

[15]     The Plaintiff indicated that they are not going to oppose the condonation application. Their argument set forth is that the “defence” offered by the Defendant is simply no defence.  There are no documents supporting the so called agreement between the Defendant and his ex-wife or between the Defendant and Pretorius.  In the affidavit by the Defendant, he alleged that he entered into a lease agreement with Pretorius.  The Defendant did not do anything to ascertain his rights when he became aware of the action against Pretorius. 

[16]     They submitted that the arguments presented by the Defendant do not constitute defenses to ejectment.  On his own papers, the Defendant indicated that he entered into a lease agreement with Pretorius for the amount of N$22 000.00.  When he was informed about the arrear rental from Pretorius’s legal practitioners, he did nothing to assert his rights and in the specific letter he already warned the Defendant that he will be evicted. 

[17]      They further argued that the initial alleged “ownership” agreement with the ex-wife of the Defendant and the subsequent agreement with Pretorius were both oral agreements.  They referred the court to a recent case of Tjihero and another v Kauari and another [1] wherein the Supreme Court remarked as follows:

‘Fourthly, the agreement between the parties that a portion of the farm would be alienated to the respondents was not in writing as required by law. This means the agreement relating to how they would divide the farm is legally invalid. In terms of s 2(1) of this Act such oral agreement is not of ‘any force or effect’. Once again no court of law can condone the non-adherence to this section and compel a person to give effect to such an oral agreement. It is only when such agreement is reduced to writing and signed by the parties or their agents acting on written authority that it has legal effect. The oral agreement in this regard was thus a mere gentleman's agreement unenforceable in law.’

It is their argument that in a similar manner, the agreement between the Defendant and his ex-wife as well as with Pretorius was not reduced to writing and not registered against the title deed of the property and therefore, failed to comply with the provisions of the Deeds Registries Act 47 of 1937.

[18]      This argument is further supported by the wording of a copy of the agreement between the Defendant’s ex-wife and Pretorius (Annexure C) attached to the Defendant’s affidavit in that the terms of the contract is clear, regarding ownership of the property in that possession of the property shall be given to Pretorius on date of transfer and various warranties given by the seller under clause 8, including that the seller is 100% owner of the said property and has the right to sell the property.  The seller is further not bound by any party under the current agreement or any other agreement.

[19]      The Defendant argued that to properly assess the merit of their opposition to the application for summary judgement, regard has to be had to the grounds of his defence and the circumstances surrounding these grounds as set out in his opposing affidavit.  His primary defence is based on his contention that he is the lawful owner of the property, although it was never registered on his name.  As explained above, the Defendant’s contention is that he had set out a proper defence against the action in question as he has a legitimate claim to the property.

[20]      The Defendant further argued that the basic requirements for the presentation of a defence in summary judgement applications requires, in essence, an affidavit which fully discloses the nature and grounds of the defense and the material facts on which it is based in order for the court to conclude that the defendant has a bone fide defence.  The party does not have to show that it is a good defence in law, only that there is a defence that can be raised.  They further argued that summary judgement is a stringent and extraordinary remedy and that courts have discretion whether to grant the judgement or not.

[21]      The defence is basically that there was never any intention on his part and the part of Pretorius to give or to accept delivery of the immovable property, despite the fact that the property was registered in the name of the previous spouse of the Defendant.  They further content that Pretorius made no payment whatsoever of any purchase price at the time of the transfer of the property into his name.  Pretorius further held the property as a proxy/nominee for and on behalf of the Defendant, although he was able to raise N$2,000,000.00 on the property.  The act of registration may be regarded as the dominant and active element in the transfer of ownership, but should be accompanied by the intent to transfer ownership. 

The applicable law and legal arguments

[22]      The requirements of rule 60(5)(b) which must be satisfied for a successful opposition to a claim for summary judgment was stated as follows in the locus classicus Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A) at 426A by Corbett JA with regard to the previous rule 32, dealing with summary judgement applications:

'Accordingly, one of the ways in which the defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts alleged by the plaintiff in his summons, or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide these issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other.

All that the Court enquires into is:

(a) whether the defendant has fully disclosed the nature and the grounds of his defence and the material facts upon which it is founded, and

(b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is bona fide and good in law.

If satisfied on these matters the Court must refuse summary judgment, either wholly or in part, as the case may be. The word fully, as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and the evidence relied upon to substantiate them, he must at least disclose his defence and the material facts upon which it is based with sufficient particularity and completeness to enable the Court to decide whether the affidavit  discloses a bona fide defence ‘

[23]      In general, the approach of the court is as set out by Justice Cheda in Lofty-Eaton v Ramos as follows:[2]

 

‘The general approach of these courts in applications of this nature is that cognisance is taken into account that a summary judgment is an independent, distinctive and a speedy debt collecting mechanism utilized by creditors. It is a tool to use by a plaintiff where a defendant raises some lame excuse or defence in order to defend a clear claim. These courts, have, therefore, been using this method to justly grant an order to a desperate plaintiff who without doing so, will continue to endure the frustration mounted by an unscrupulous defendant (s) on the basis of some imagined defence. As remedy available to plaintiff is an extra-ordinary one and is indeed stringent to the defendant, it should only be availed to a party who has a watertight case and that there is absolutely no chance of respondent/defendant answering it, see Standard Bank of Namibia Ltd v Veldsman.[3] Rule 32 specifically deals with the said applications. Summary Judgment is therefore a simple, but, effective method of disposing of suitable cases without high costs and long delays of trial actions, see Caston Ltd v Barrigo.[4] In that case, Roberts, AJ went further and crystalised the principle as follows:

“it is confined to claims in respect of which it is alleged and appears to the court that the defendant has no bona fide defence, and that appearance has been entered solely for the purpose of delay.”

[7] Where a summary judgment has been applied for, the respondent is entitled to oppose, if he has a bona fide defence and in that opposition he/she must dipose to an affidavit where he/she should positively state and show that he/she has a bona fide defence to applicant’s claim. Respondent must not only show, but, must satisfy the court that he/she has a bona fide defence. In furtherance of the satisfaction to the court, respondent must at least disclose his defence and material facts upon which it is based with sufficient particularity and completeness to enable the court to decide whether the affidavit discloses a bona fide defence, see Breitenbach v Fiat SA (Edms) BPK[5] and Namibia Breweries Ltd v Marina Nenzo Serrao.[6] This, however, is not to say that he/she should do so by disclosing all the details and particulars as would be the case of proceedings, see Maharaj v Barclays National Bank Ltd[7] and Breitenbach v Fiat SA.[8]

[8] The requirement seems to be relaxed to a certain extent as it is not rigorous per se, but, is designed to enable a genuine respondent to defend a claim which otherwise would result in applicants’ obtaining judgment under circumstances where respondent had a genuine defence. The need for clarity on defendant’s part is designed to avoid the entry of intention to defend an action solely to delay an otherwise just claim by plaintiff.

[9] For that reason, these courts will always seriously consider the granting of a summary judgment and will only do so where a proper case has been made out by applicants. The above principle has been applied in many cases, see also Crede v Standard Bank of South Africa Ltd [9]where Kannemeyer, J remarked:

One must bear in mind that the granting of summary judgment is an extraordinary and drastic remedy based upon the supposition that the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus or bad in law.

[24]      When deciding on whether the defence is a prima facie defence and good in law, one should take cognisance of the provisions of s 16 of the Deeds Registries Act 47 of 1937, which deals with the topic on how real rights shall be transferred as follows:

‘Save as otherwise provided in this Act or in any other law the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by the registrar ….’

Application

[25]      The Defendant had to make out a bona fide defence against the application brought by the Plaintiff.  This includes making a full disclosure of the defence, which he did, as well as showing that the defence is good in law.  In this instance, the court finds that the defence is not good in law and decline to give the Defendant leave to defend the matter.

In the effect the following order is made:

Accordingly:

a)         The defendant’s opposition to the summary judgment application is dismissed

b)         The application for summary judgement is therefore granted with costs.

 

______________________

E RAKOW

Acting Judge

 

APPEARANCES:

 

PLAINTIFF:                 M NTINDA

                                    Sisa Namandje & Co. Inc

 

DEFENDANT:             J DIEDERICKS                                                                                         

                                   Instructed by Erasmus & Associates

                                                                                                                         


[1] (SA 59/2017) [2019] NASC 580 (25 June 2019).

[2] (I 1386/2013) [2013] NAHCMD 322 (08 November 2013).

[3] 1993 NR 391 (HC).

[4] 1960 (4) SA I at 3H.

[5] 1976 (2) SA 226 (T) at 228 B-C.

[6] (2006) NAHC 37.

[7] 1976 (1) SA 418.

[8] 1976 (2) 226.

[9] 1988 (4) SA 786 at 789 E.

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