IN THE HIGH COURT OF NAMIBIA
CASE NO: I 183/2011
HIGH COURT OF NAMIBIA
24 May 2011
on: 24 May 2011
is an opposed application for summary judgment. The plaintiff’s
claim against the defendant is that the plaintiff in terms of an
agreement loaned the defendant an amount of N$83,000.00 during May
and June 2008. It is also alleged that this loan agreement was
concluded between the parties personally.
defendant raises three points in limine, the first point is
that the plaintiff failed to comply with Rule 18(6) of the Rules of
Court in that the particulars of claim do not state whether the loan
agreement was oral or written and if written, that no such copy of
the agreement was annexed to the particulars of claim. It is also
not stated where the agreement was concluded. It is submitted on
behalf of the defendant that due to this non-compliance summary
judgment should be refused.
second point in limine is that the plaintiff should have
joined one Daniel Kamunoko, as he has a direct and substantial
interest in the matter. This argument is raised in the opposing
affidavit, in which it was stated by the defendant on the merits
that the agreement was concluded by her in her capacity as agent of
and on Mr Kamunoko’s behalf. I deal with this aspect in more
the defendant argues in limine that the plaintiff’s
claim is not liquidated and that accordingly summary judgment should
not have been applied for.
regards the first point in limine it is clear that there is
non-compliance with Rule 18(6) of the Rules of Court. The plaintiff
failed to allege in his particulars of claim whether the agreement
concluded was written or oral. The plaintiff further failed to
indicate the place where the agreement was concluded. However the
opposing affidavit makes it clear that the agreement was orally
concluded between the plaintiff and the defendant in Windhoek. What
is placed in issue by the defendant relates to the capacity in
which, and on whose behalf the agreement was concluded. On this
basis, I see no real prejudice in the failure to properly plead the
particulars of the agreement in terms of
Rule 18(6). This point
therefore does not succeed.
regards the point of non- joinder, I shall deal with this issue as
part of the merits, especially in view of the argument made by
counsel for the defendant that should leave to defend be granted,
the point of non-joinder will be raised.
point in limine relating to the plaintiff’s claim not
being liquidated is also dismissed, because there is no doubt that
the amount claimed in the particulars of claim is capable of easy
calculation. After all this claim is based on a specified amount of
money that was allegedly loaned to the defendant.
I now proceed to deal with the merits. The defendant, in her
opposing affidavit, denies that she entered into a loan agreement
with the plaintiff as alleged, either in her personal capacity or
for her own personal consumption. The defendant states that she
concluded this agreement in her capacity as an agent of
Kamunoko and that her mandate with him was terminated since his
return from Hong Kong in October 2009. The defendant further states
that this aspect is well within the knowledge of the plaintiff.
in respectful agreement with the authorities cited by both counsel
relating to the principles to be applied in determining summary
judgment applications, in particular that summary judgment is a
robust and drastic remedy which should only be granted when the
defendant’s claim is unanswerable.
See: Kelnic Construction (Pty) Ltd v Cadilu Fishing (Pty) Ltd
1998 NR 198 (HC) at 201C-D
Mauno Haindongo t/a Onawa Wholesales v African Experience (Pty)
Ltd 2006 (1) NR 56 (HC) at 59C-D
considered the opposing affidavit, I am not convinced that the
defendant’s case is unanswerable. Firstly she states in her
affidavit that the plaintiff was aware that she concluded the loan
agreement as an agent on behalf of another person. This aspect must
be clarified at the trial, and the question of joinder must also be
considered at that stage.
although the power of attorney annexed to the affidavit does not
make a clear reference to the defendant’s powers to conclude a
loan agreement on behalf of Mr Kamunoko, the power of attorney does
allow her “in general to do and suffer all acts and execute
all deeds whatsoever in or about my property and my affairs and
affairs and concur with persons jointly interested with myself
therein doing and suffering all acts and executing all deeds herein
particularly or generally described as amply and effectually to all
intent and purposes, as I could do in my own person if this deed had
not been made”.
light of the foregoing, I decline to award summary judgment in
favour of the plaintiff.
result, I make the following order:
application for summary judgment is dismissed.
costs of this application are to stand over to be determined at the
close of the trial between the parties.
ON BEHALF OF THE PLAINTIFF Mr Kamanya
Instructed by: Sisa Namandje & Co
ON BEHALF OF THE DEFENDANT Mr Akweenda
by: Hengari, Kangueehi &