CASE NO.: (P) I 6/2005
THE HIGH COURT OF NAMIBIA
the matter between:
is an application for summary judgment in which an order is being
sought ordering defendant to deliver a motor vehicle to plaintiff
since defendant has no bona
to the claim of plaintiff and that the appearance to defend has been
entered solely for the purpose of delay.
In his particulars of claim plaintiff
alleges that he is the owner of an Audi A4 motor vehicle with
registration number N 30273 W and that the defendant is in possession
of the said motor vehicle.
her opposing affidavit defendant states that Plaintiff has given her
full right to possess and use”
the said motor vehicle on a permanent basis and by virtue of the fact
that she rendered services to him personally and to his close
corporation for which services she was never remunerated she
vested and valid enrichment claims” against
is common cause that there was a love affair between plaintiff and
defendant from which a child was born on [day/month] 2002. Plaintiff
states in her affidavit that she is using the said motor vehicle to
transport their child to pre-school and day care centres. She
further states that she has an enrichment claim against plaintiff and
that she may decide to hold the Audi as security
only. In her opposing affidavit defendant states that she realises
that she “may
not strictly use”
the said motor vehicle.
Rule 32 (5)
of the Rules of this Court provides a plaintiff with an
extra-ordinary remedy and a Court will grant an application for
summary judgment only where
is no reasonable doubt about plaintiff’s claim and Rule
32” is designed to prevent a plaintiff
having to suffer the delay and additional expense of trial procedure
where the defendant’s case is a bogus one or is bad in law and is
raised merely for the purpose of delay, but in achieving this it
makes drastic inroads upon the normal right of a defendant to present
his case to the Court”.
See Arend and Another v Astra
Furnitures (Pty) Ltd 1974 (1) SA CPD 298 at 304 F – G.
reclaiming possession of his property based on the rei vindicatio
and must allege and prove that he is the owner of the thing and that
the defendant was in possession of his property at the time of the
institution of the action.
Goudini Chrome (Pty) Ltd v MCC Contracts (Pty) Ltd 1993 (1) SA 77 (A)
Naidoo 1974 (3) SA 13 (AA) at 20
Minister van Wet
en Orde v Matshoba 1990 (1) SA (A) 280 at 286 A – B
It is common cause that plaintiff is
the owner of the said vehicle and that defendant is in possession
In Chetty v Naidoo the Court held
at 20 C – F:
in instituting a rei vindicatio, need, therefore, do no more
than allege and prove that he is owner and that the defendant is
holding the res –
being on the defendant to allege and establish any right to continue
to hold against the owner. It appears immaterial whether, in stating
his claim, the owner dubs, the defendant’s holding ‘unlawful’
or ‘against his will’ or leaves it unqualified. But if he
goes beyond alleging merely his ownership and defendant being in
possession (whether unqualified or described as ‘unlawful’
or ‘against his will’, other considerations come into
considerations referred to relate to a situation where e.g. a
plaintiff concedes in his or her particulars of claim that the
defendant has an existing right to hold the property, plaintiff must
then ex facie his statement of claim prove the termination of
such right to hold.
(See Chetty v Naidoo 21 G – H)
In Shimaudi v
Shirungu 1990 (3) SA 344 SWA Levy J said the following at 347 E – F
respect of occupation, the defendant may will admit such occupation
but contend that his occupation is lawful. The onus
would then be on him to
prove such lawfulness
but he is relieved of this onus if there is some form of admission on
the pleadings in terms whereof plaintiff concedes that he lawfully
parted with such occupation”.
Mr. Brandt who appeared on behalf of
defendant submitted that defendant relies on a right to permanent
possession and the use of the said motor vehicle by virtue of an
agreement between plaintiff and defendant, that defendant has
alleged and proven such a sight, and furthermore that plaintiff has
failed to prove a valid termination of that right of use or
possession of the said motor vehicle.
There is no concession by plaintiff
in his particulars of claim that the defendant has the right to use
or possess the said motor vehicle, and in terms of the authorities
cited supra, there is no onus on plaintiff to prove the
termination of such an agreement but the onus is on defendant
to allege and prove the validity of the agreement she relies upon.
Mr. Brandt submitted in the
alternative that plaintiff may not recover the Audi motor vehicle
from defendant by virtue of the fact that defendant has a valid
enrichment claim and that until the defendant has been compensated,
defendant is entitled to hold the vehicle as security.
I shall first deal with the
submission that the motor vehicle is being held as security and shall
thereafter consider whether the defendant has proved that she has the
right to possess and to use the motor vehicle.
A lien (right of retention) has been
defined as “the right to retain physical control of another’s
property, whether movable or immovable, as a means of securing
payment of a claim relating of securing expenditure of money or
something of monetary value by the possessor, on that property, until
the claim has been satisfied”.
See LAWSA Vol. 15 par. 40.
Liens have thus been described as
affording merely a defence against an owner’s vindicatory action,
and is not a cause of action.
See Brooklyn House Furnishers Ltd
v Knoetze & Sons 1970 (3) SA 264 (A) at 270 F – G.
Three types of liens are recognised
namely salvage liens, improvement liens, and debtor and creditor
It is clear from the authorities that
persons entitled to liens are those persons who are in possession of
property and who have spent some money or money’s worth on the said
Defendant never mentioned in her
opposing affidavit the type of expenditure incurred by her in respect
of the motor vehicle neither what her state of mind was if and when
she incurred such expenditure.
I am of the view that there is no
legal basis to found a right of retention by the defendant.
The fact that defendant might have an
enrichment claim is also a defence not good in law.
In Spilhaus & Go. Ltd
vCoreejees 1966 (1) SA 525 CPD one of the claims relied upon by
plaintiff was the return of certain equipment delivered to defendant
by plaintiff. The defence raised by defendant in a application for
summary judgment was that because the equipment had not been
delivered timeously defendant has suffered damages in excess of the
value of the equipment.
The Court as par Watermeyer J
held as follows at 529 E – H.
the present case the defendant has no legal defence to plaintiff’s
claim for return of the equipment. The ownership of the equipment is
still vested in the plaintiff and the defendant has no right to
retain possession of it. Even if defendant were to succeed on his
counterclaim judgment thereon would in no
extinguish plaintiff’s claim for return of the equipment.
Defendant’s request that judgment should be delayed could only be
justified on some broad equitable principle that it might be unfair
to order defendant to return the equipment to plaintiff until such
time as judgment has been given on the counterclaim. But the
defendant will in any event have to return the equipment and short of
its being attached in execution of any judgment which the defendant
might obtain the equipment could in no way furnish security for
payment of defendant’s counterclaim. In these circumstances, and
in the absence of any authority on the point, it seems to me that the
fact that the defendant has a counterclaim for damages is not a
“defence” to plaintiff’s action on claim (b) within the meaning
of sub-rule 3 (b) of Rule 32”.
Claim (b) refers to the claim in
respect of the return of the equipment.
I must add however that it is clear
from the dictum supra at 529 A – D, if plaintiff’s claim
had been a “money claim” e.g. payment of the purchase
price, summary judgment could in the view of the counterclaim not
have been given.
I shall now deal with the requirement
that the affidavit of the defendant “shall disclose fully the
nature and grounds of the defence and the material facts relied upon
It is trite law that defendant must
set out his defence fully in his opposing affidavit. Although
defendant need not deal exhaustively with the facts and evidence
relied upon he or she must at least disclose his or her 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. The defence must
not only be bona fide but must be good in law.
See Maharaj v Barclays National
Bank Ltd 1976 (1) 418 A at 426 B – D.
First National Bank of South West
Africa v Graap 1990 NR 9 at 13 C.
It is sufficient if at the hearing of
the application it “appears” that the defendant is entitled to
defend the action.
(See Maharaj’s case at 425 H.)
Regarding what interpretation
should be attached to the word “fully” in Rule 32 (3) (b) it was
held that the word “fully” should not be afforded its literal
meaning “and no more is called for than this: that the statement of
material facts be sufficiently full to persuade the Court that what
the defendant has alleged, if it is proved at the trial, will
constitute a defence to plaintiff’s claim … however … if the
defence is averred in a manner which appears in all the circumstances
to be needlessly bald, vague or sketchy, that will constitute
material for the Court to consider in relation to the requirement of
See Breitenbach v Fiat SA (Edms)
Bpk 1976 (2) SA 226 TPD at 228 D – E.
In my considered view the contents of
the affidavit by defendant falls far short of the requirements of
Rule 32 (3) (b). No material facts are disclosed by defendant
regarding the prevailing circumstances which prompted plaintiff to
give her the right to possess and use the said motor vehicle. Her
affidavit contains a bald statement to the effect that plaintiff gave
her the full right to possess and use the motor vehicle on a
permanent basis. She also avers that she rendered personal services
to plaintiff and to his close corporation. Again neither is the
nature of the services disclosed nor any detail regarding the terms
and conditions in terms of which services had been rendered to
plaintiff and his close corporation. Defendant baldly refers to
enrichment claims she has against plaintiff. Here again no
particulars are provided. Her affidavit on this point is incomplete,
vague and bald.
In addition as pointed out supra
in the Spilhaus v Coreejees case her enrichment claim is bad
in law as a counterclaim to a vindicatory action.
Furthermore no material facts had
been disclosed by defendant as required by Rule 32 (3) (b). This
together with the fact that defendant concedes in her affidavit that
she realizes that she “may not strictly use” the motor
vehicle compelled me to conclude that not only does her affidavit not
disclose any bona fide defence but she herself is not bona
fide in opposing the application for summary judgment.
I am accordingly of the view that
plaintiff has an unanswerable case and that the application for
summary judgment should be granted.
In the result the following orders
The application for summary
judgment is granted and defendant is ordered to deliver the Audi A4
motor vehicle with registration number N 30273 W immediately to
Defendant to pay the costs of
BEHALF OF THE PLAINTIFF: MR. VAATZ
by: A. VAATZ & PARTNERS
BEHALF OF THE DEFENDANT: MR.BRANDT
by: CHRIS BRANDT ATTORNEYS