Nedbank Namibia Ltd v Zanja Properties Number One CC and Another (I 4588/2009) [2010] NAHC 81 (30 August 2010);

Group

Full judgment



CASE NO.: I 4588/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:



NEDBANK NAMIBIA LIMITED PLAINTIFF





and



ZANJA PROPERTIES NUMBER ONE CC FIRST DEFENDANT

ANTONIO DI SAVINO SECOND DEFENDANT



CORAM: SWANEPOEL, J

Heard on: 13 July 2010

Delivered: 20 August 2010

____________________________________________________________________



JUDGMENT

____________________________________________________________________



SWANEPOEL, J: [1] The plaintiff sought summary judgment for an amount of N$2 329,649.78 against both the first defendant and its surety (second defendant who is the sole member of the first defendant) jointly and severally. The claim is in respect of a home loan granted to the first defendant which amount had become due and payable as a result of first defendant’s failure to pay the monthly instalments on due date. The loan was secured by the registration of two continuing coverage mortgage bonds over the property described as Erf 2989, Klein Windhoek (Extension 5),



Windhoek and in respect of which plaintiff also prays that the said property be declared executable together with interest and costs.



[2] In resisting the application second defendant deposed of an affidavit which I may add is not the model of clarity expected in affidavits filed in this Court. In this regard I refer to paragraphs 3,8 and 9 of the affidavit wherein it is stated:

3. From the outset I want to state that I have a bona fide defence and that Notice of Intention to Defend has NOT been entered into for the purposes of delay.

8. In light of what has been stated hereinbefore, I have in fact a bona fide defence against the Plaintiff’s claim/s.

9. I therefore hereby request and apply to this Honourable Court that Plaintiff’s application for summary judgment be dismissed with costs and that Defendant be given leave to defend this claim and that the action shall proceed or on such conditions as this court deems fit.”

It is to be noted that nowhere is it stated that first defendant has a bona fide defence. (emphasis supplied)

[3] The opposing affidavit furthermore and in general lacks the particularity pertaining to the material facts upon which the respective defences are raised as is required by the last leg of Rule 32(3)(b) of the High Court Rules.



[4] Ignoring the poor draftmanship and reading the affidavit as a whole, the following defences are raised:



4.1 The deed of suretyship:

4.1.1 was filed on 11 April 2006 and the Revenue Stamp of N$50.00 was apparently only cancelled on 25 April 2006.

4.1.2 does not specify a total maximum amount “to be owed by me”.

4.1.3 clause 18 is also left blank.

4.1.4 was incomplete ….having blank or erroneous or incomprehensible terms relating to a suretyship.

4.2 The plaintiff has not complied with the formalities and no sum has been mentioned except to state “ALL THE DEBTORS AND LIABILITIES TO YOU

4.3 The domicilium citandi et executandi namely Erf no. 3, Krupp Street (Andima Toivo ya Toivo) is also erroneous.

4.4 The second defendant is unaware of what the actual outstanding balance is which first defendant owes to the Plaintiff and he and first defendant have never received any such statement …..

4.5 No certificate of balance and/or affidavit (for which provision is made in the two respective mortgage bonds) was/were attached to the particulars of claim. (the insertion is mine)

4.6 First defendant has not received any proper letter of demand from plaintiff.

4.7 First defendant has paid its regular monthly instalments under the said bond (s) to the plaintiff. In this regard it is emphatically stated and denied that ‘we have ever failed or refused to pay to the plaintiff any outstanding monies owed and first defendant has always paid its monthly instalments’.







[5] With regard to the defence set out in paragraph 4.1 supra pertaining to the revenue stamp and on the deed of suretyship I am of the view that it constitutes no defence at all. Not only were there no grounds set out in the opposing affidavit upon which the defence is based nor were there facts stated which bear out a defence. Section 8(b) of the Stamp Duties Act, Act no. 15 of 1993 (as amended by the Stamp Duties Amendment Act, Act no. 12 of 1994) provides that in the event of an instrument chargeable with duty not executed before or at the time of the execution thereof same “maybe stamped within 21 days thereafter by or in the presence of the person liable under this Act to stamp the instrument, or any party thereto or any banker to whom such instrument has been presented in the ordinary course of such banker’s business or in the presence of an authorised revenue officer”. In view of the fact that the deed of suretyship was in any event stamped within 14 days after its execution I am of the view that the deponent was ill advised to have raised this as a defence at all.



[6] With regard to the defence set out in paragraph 4.1.2 supra pertaining to the defence that the deed of suretyship does not specify a total maximum amount “to be owed by me”, it is to be noted that the second defendant has bound himself a surety and co-principal debtor in solidum “for the repayment on demand of all or any sum(s) of money which the debtor may now or from time to time hereafter owe or be indebted to the bank, its successors or assigns, from whatsoever cause and how so ever arising, …., provided nevertheless that the total amount to be recovered from me/us hereunder shall not exceed, in the whole, the sum of

ALL THE SAID DEBTORS AND LIABILITIES TO YOU”.





This latter part which is cited in capital letters, is in my respectful view non-sensical if regard is had to the context in which the said part was formulated where a definite sum and/or amount of money was required to have been inserted in the deed of suretyship. Alternatively, same is void for vagueness. It would have taken no effort to have described the deed as an unlimited suretyship had that been the common intention of the parties. I am of the view that the second defendant cannot be held liable on the said deed of suretyship unless there is also a claim for rectification of the said deed. In view of this finding it is not necessary to refer to any of the other defences on the deed of suretyship, save to mention that the defences set out in paragraphs 4.3 – 4.6 are likewise devoid of any merit.



[7] I have already alluded to the lack of detail in the opposing affidavit which supports the inference that for most of the defences raised that it cannot be said that there is a bona defence to plaintiff’s claims. Had it not been for the defence set out in paragraph 4.7 supra to wit that the first defendant has paid its regular instalments and the express denial that “we have ever failed or refused to pay to the plaintiff any outstanding monies owed and first defendant has always paid its monthly instalments” I would have had no hesitation in entering summary judgment against the first defendant.



[8] In the circumstances and despite the deficiencies in the opposing affidavit, I have decided to exercise my discretion1 to grant leave to the defendants to defend the action. If I err in this regard, I err on the side of caution as it is trite that summary





judgment is a stringent remedy which closes the court to a litigant. I have no doubt that should the defence of payment not be proved during the trial that the court would seriously consider to make a special order as to costs as is provided for in Rule 32(10)(b) of the High Court.



[9] In the result the following orders are made:

(a) The application for summary judgment is refused.

(b) The costs of this application is reserved for decision by the trial court.







__________________



SWANEPOEL, J



























ON BEHALF OF THE PLAINTIFF Adv. C.J. Mouton

Instructed by: Koep & Partners



ON BEHALF OF THE DEFENDANTS Mr C. Brandt

Chris Brandt Attorneys

1 AGRA CO-OP LTD v ASSENKEHR FARMS (PTY) LTD 1996 NR 208 HC at 212

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