- September 7, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order:
- The summary judgment application is dismissed with costs.
- The defendants are to file their plea on or before 19 September 2023.
- The plaintiff is to replicate the plea on or before 26 September 2023.
- The parties are to file their discovery on or before 3 October 2023.
- The matter is postponed for a case management conference on 10 October 2023 at 15:30 and the parties are to file their joint case management report on or before 5 October 2023.
Reasons for order:
The plaintiff instituted action against the first and second defendants, claiming damages suffered in the sum of N$ 26 119.50 as a result of misrepresentation by the first and second defendants. The first and second defendants have defended the action, and as a result, the plaintiff has applied for summary judgment and the first and second defendants opposed the summary judgment application.
On 30 June 2022 and at Windhoek, the plaintiff and the first defendant, duly represented by Ms Charissa Hagen, entered into a partly oral and partly written agreement (hereinafter referred to as “the agreement”), the terms of which the first defendant was to repair the vehicle with registration number N 88579 W, a Toyota Hilux GD6, motor vehicle, bearing engine number 2GDC477766, chassis number AHTKB8CD602970426 of the plaintiff. At all material times hereto, the plaintiff was the owner, alternatively bona fide possessor of one Toyota Hilux GD6, vehicle registration number N 88579 W (the “Vehicle”) of which said ownership persists.
The plaintiff alleged that it complied with all its obligations to the first defendant in terms of the agreement and delivery of the motor vehicle was made to the first defendant on 30 June 2022. In breach of the aforementioned agreement, the first defendant issued quotations and invoices to the plaintiff, fraudulently claiming Value Added Tax (VAT), for services rendered by the first defendant to the plaintiff despite the first defendant not being registered for VAT in terms of s 15 of Value Added Tax Act 10 of 2000 (as amended). It was on the basis of these fraudulent misrepresentations that the plaintiff was induced to pay the amounts depicted on the invoices and quotations, inclusive of the VAT amount depicted therein, despite the first and second defendants knowing that they were not entitled to charge VAT. As a result of the first and second defendant, misrepresentation, the plaintiff suffered damages in the sum of N$ 26 119.50.
Rakow J:
Legal considerations
‘[11] In Standard Bank of Namibia Limited v Veldsman (1993 NR 391 at 392 D-E) court opined as follows:
‘Summary judgment should only be granted if it is clear that the plaintiff has an unanswerable case’.
[12] In the instant matter, the defendants deposed to facts which, if true, would establish a defence. The defendants gave a disclosure of the nature and grounds of the defence and the facts they rely upon. As if that is not enough, the defendants dispute the facts alleged by the plaintiff.
[13] In Government of the Republic of Namibia v Gertze (HC-MD-CIV-ACT-OTH-2019/00978) [2019] NAHCMD 497 (30 October 2019)) the court had the following to say:
‘The quest for summary judgment is based on a trite argument that there are no triable issues of fact and the motion is initiated by a plaintiff that contends that all the necessary factual issues are settled and, therefore, need not be tried. If there are triable issues of fact in any cause of action or if it is unclear whether there are such triable issues, summary judgment must be refused as to that cause of action…’
[15] In Standard Bank of SA Limited v Park Boulevard Trading CC and Another the applicable law was stated as follows:
‘In a summary judgment application, where the question of whether the respondent has a bona fide defence arises, the court does not attempt to decide the issues or to determine whether or not there is a balance of probabilities in favour of the one party or the other. The respondent is also not required to persuade the court of the correctness of the facts stated by him or her or where the facts are disputed, that there is a preponderance of probabilities in his or her favour. All that a court requires, in deciding whether the respondent has set out a bona fide defence, is:
(a) whether the respondent has disclosed the nature and grounds of his or her defence; and
(b) whether on the facts so disclosed the respondent appears to have, a defence which is bona fide and good in law. It is sufficient if the respondent swears to a defence, valid in law, which if advanced, may succeed on trial.’
[16] It has been said without number and put beyond dispute that summary judgment is a drastic civil procedure engaged by the creditor for the speedy recovery of what is due to it for a liquidated amount of money. The claim may be based on a liquidated document. The aforementioned drastic nature of this application cannot be overemphasized as it entails that once the application is granted the defendant is shut out of court so to speak. It is therefore critical that a court should carefully evaluate the application, the merit of the opposition, and the defences raised in the quest to attain justice.
[17] In the current matter the defence put forward by the respondent is that they indeed paid over the money recovered as VAT to the Receiver of Revenue as income tax and that they were advised to do so by the representatives of the Receiver of Revenue when they approached them for advice. The money did not go into their own pockets but went to the Receiver of Revenue.
[18] The defendants’ explanation therefore amounts to a possible defence and they should therefore be granted the opportunity to defend the matter.
As a result, the summary judgment application was dismissed with costs.