CIVIL PRACTICE – REQUIREMENTS TO BE MET IN AN APPLICATION FOR SUMMARY JUDGMENT

CIVIL PRACTICE – REQUIREMENTS TO BE MET IN AN APPLICATION FOR SUMMARY JUDGMENT

In this matter, the High court sitting at Oshakati had to consider an application for summary judgment emanating from an alleged breach of a sale agreement.  The parties entered into an agreement for the sale of a motor vehicle. The plaintiff claimed that she paid the amount as agreed by the parties, but the defendants failed to deliver the motor vehicle and, that they failed to refund her the amount paid. The defendants on the other hand claimed that they delivered the motor vehicle to the plaintiff, but she failed to pay the remaining balance, and further refused to accept the motor vehicle that was delivered. MUNSU AJ held that:

1. The parties did not meaningfully engage each other in terms of rule 32 (9) as envisaged by the rules. Rule 32 (9) requires the parties to try to resolve an interlocutory matter amicably.
2. On the authority of Standard bank Namibia Limited v Veldsman 1993 NR 391 at 392 D-E: summary judgment should only be granted if it is clear that the plaintiff has an answerable case.
3. The facts deposed to by the defendant, if true, establish a defence, in that, the defendants gave a disclosure of the nature and ground of the defence and the facts relied upon, and they further disputed the facts alleged by the plaintiff.
4. On the authority of Government of the Republic of Namibia v Gertze (HC-MD-CIV-ACT-OTH-2019/00978) [2019] NAHCMD 497 (30 October 2019) summary judgment must be refused if there are triable issues of fact.
5. The defendants alleged new facts which according to them constituted the terms of the agreement between the parties. There were factual disputes regarding the terms of the agreement. On the authority of Di Savino v Nedbank Namibia 20212 (2) NR 07 (SC), it is not the duty of the court to resolve the issues or new facts alleged by the defendants or to determine where the probabilities lie.
6. The rules of court do not make provision for a replying affidavit in applications of this nature. An applicant must set out his cause of action and supporting evidence in his founding affidavit.
7. In order for the court to stay proceedings pending the payment of costs, the party bringing such an application should meet the requirements laid out in rule 60 (11), of which the defendants failed to do.

As a result, the application for summary judgment was refused.

Fregrega v Spy Motor Spare and Garage CC NAHCNLD 15 August 2022