CASE NO.: I
THE HIGH COURT OF NAMIBIA
In the matter between:
ZANJA PROPERTIES NUMBER ONE CC
ANTONIO DI SAVINO
CORAM: SWANEPOEL, J
Heard on: 13 July 2010
Delivered: 20 August 2010
SWANEPOEL, J:  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.
 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
“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.
 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.
 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
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
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
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
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
 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.
 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.
 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.
 In the circumstances and despite
the deficiencies in the opposing affidavit, I have decided to
exercise my discretion
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.
 In the result the following orders
(a) The application for summary
judgment is refused.
(b) The costs of this application is
reserved for decision by the trial court.
ON BEHALF OF THE PLAINTIFF
Adv. C.J. Mouton
ON BEHALF OF THE DEFENDANTS
Mr C. Brandt