Court name
High Court
Case name
Eckleben v Mobile Telecommunications Ltd
Media neutral citation
[2012] NAHC 263
Smuts J




Case no: I 920/2012

In the matter between




Neutral citation: Eckleben v Mobile
Telecommunications Limited (I 920/2012) [2012] NAHCMD 27 (15 October

Coram: Smuts, J

Heard on: 25 September 2012

Delivered on: 15 October 2012

Flynote: Application for
summary judgment – defendant meeting requirement of setting out
bona fide defence – application refused.


The application for summary judgment
is refused and that the costs of the application stand over for
subsequent determination at the trial.



[1] This is an opposed application for
summary judgment.

[2] The plaintiff claims payment for
the sum of N$326 644,73 together with interest from date of judgment
to date of payment and costs. The claim arises from a lease
agreement. The leased premises are referred to as a small room in a
tower for the purpose of installation of equipment and an antenna.
The premises are alocated near Swakopmund.

[3] The plaintiff acquired the
premises subject to the lease. The particulars of claim contend that
the defendant unilaterally terminated the lease agreement by giving
two months notice where as the expiry date of the lease was 31 July
2016. The claim is thus for the balance of the rental for the entire
period of the lease.

[4] After the defendant entered an
appearance to defend, the plaintiff launched an application for
summary judgment. In the defendant’s opposing affidavit, it is
firstly contended that the application for summary judgment
constitutes an abuse of process and justified a special order as to
costs as the plaintiff had been fully aware of the defendant’s
defences to the action. Certain correspondence is attached in support
of that assertion. The defences raised both in the correspondence and
in the answering affidavit include a contention that the lease
agreement was invalid and unenforceable. It was contended that an
essential term of the lease was that the premises should be
identified or identifiable from the provisions of the documents
itself. It was contended that the description of the premises as
being a “small room in a tower” in a definitions portion
where the premises are described was insufficient, particularly when
read with clause 11 of the schedule which under special conditions,
provided that:

installation done in temporary allocated room and tower. MTC to
relocate equipment and antenna to permanent tower and equipment room
as it becomes available at no cost to the lesser’. (Sic)

It was thus contended that the
description of the premises and the lesser with thus incapable of
being identified or identifiable without recourse to evidence
extraneous to the written lease agreement. The defendant’s
answering affidavit also referred to the fact that the lease
agreement expressly provided that it is the full agreement between
the parties.

[5] A second defence of rectification
was raised. It was contended that clauses 1 and 11 of the schedule
were incorrect and did not reflect the common intention of the
parties. The opposing affidavit set out what was alleged to have been
a common intention of the parties which was thus not reflected in the
lease agreement. It entailed the construction of a new concrete tower
where equipment and antennas would be installed. The third defence
raised was that of a breach on the part of the plaintiff. It was
contended that when the equipment was installed in the existing tower
it was a stand alone structure above the roof of the adjacent
building and that there would be no danger of radiation. It was
further contended that, unknown to the defendant, the plaintiff’s
predecessor went ahead to construct a sundowner platform in close
proximity to the antennas which would create a danger radiation at an
unacceptably high level for those making use of the sundowner
platform and thus resulting in the leased premises being no longer
suitable for the intended purpose.

[6] Mr P Barnard appeared for the
defendant amplified these defences in his written and oral
submissions. He referred to the several authorities of this court to
the effect that summary judgment is an extra-ordinary remedy and
should only be granted in circumstances where the court has no doubt
that a plaintiff has an unanswerable case. Where there was doubt that
the plaintiff’s claim is unanswerable, the defendant should get
a benefit of that doubt and court would then refuse summary
Mr Barnard also referred to authorities concerning the
of a lease agreement being that the
leased premises must be ascertained or ascertainable
If this requirement had not been complied with, then no valid lease
agreement would be in existence. He submitted that the leased
premises are not identified in the agreement at all and that the
lease agreement is accordingly invalid and unenforceable. He further
submitted that the plaintiff did not contend that he relied upon a
partly written and partly oral agreement. On a contrary, the written
agreement in turn provided that it constitutes the whole agreement
between the parties and that no other agreements would be binding
upon the parties. Mr Barnard thus submitted that the defendant had
established that it had a bona fide defence to the claim with
reference to the assertion that the agreement was not enforceable by
reason of failing to properly identify the leased premises.

[7] Mr Vaatz who represented the
plaintiff disputed these assertions. He accepted that the lease
agreement on one hand referred to the initial installation as being
temporary and that there would be a relocation to a permanent tower
as it becomes available. He contended that the claim of huge costs of
relocating would not constitute a defence. In this respect, he is
correct, as long as the place of relocation is properly identified or
identifiable from the agreement. This would not however appear to be
the case with reference to the written agreement itself.

[8] It would thus follow that the
defendant has in my view met the requisite of establishing a bona
fide defence to the claim in its opposing affidavit. Much of the
argument focused upon this initial defence although the other
defences were also referred to by Mr Barnard. Once a bona fide
defence is raised, as it would appear to me to be the case in respect
of this first defence, then it would follow that the plaintiff would
not be entitled to summary judgment. It would however also seem to me
that the two further defences raised would also amount bona fide
defences to a claim for summary judgment.

[9] It thus follows that the
application for summary judgment should be refused. Despite the
request in the opposing affidavit that a refusal of the application
should be visited with an adverse costs order, I decline to do so.
After I canvassed this aspect with both Mr Barnard and Mr Vaatz, both
parties were correctly of the view that if I were to decline summary
judgment, then the question of costs should rather stand over for
determination at the trial. I am likewise inclined to that view.

[10] It follows that the application
for summary judgment is refused and that the costs of the application
stand over for subsequent determination at the trial.





A Vaatz

Andreas Vaatz & Partners

Mr P Barnard

by Lorentz Angula Inc.

Life Management (Cape) v Easy Fit Covers Windhoek cc 2008 (2) NR686
(HC) at 692, par 15 and the authorities usefully collected there.

v Christians & Others 2008 (1) NR 285 (HC) at 287, 288