- November 7, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The plaintiff instituted an action against the defendants jointly and severally for payment of N$4 746 713,96, interest, and costs. The plaintiff further sought orders declaring certain immovable property specially executable in terms of rule 108. The defendants defended the claim, culminating in the plaintiff moving a summary judgment application against them. It would appear that at some stage, the first defendant, Kumwe Professional Services and Products CC, was converted from a close corporation to a limited liability company, cited as the fourth defendant, namely, Kumwe Professional Services and Products (Pty) Ltd. In addition to the relief stated above, the plaintiff sought rectification of the three addenda to the agreement signed with the first defendant. The defendants submitted that the plaintiff was not entitled to summary judgment because the rectification does not fall within the purview of rule 60.
MASUKU J:
The law applicable to summary judgment
[21] I can say without fear of contradiction that the parties were ad idem regarding the law applicable to summary judgment. What differs is the application of the principles to the facts of the instant case. The locus classicus judgment on summary judgment is that in Maharaj v Barclays Bank Ltd 1976 (1) SA 418 at 426 A-D in which Corbett JA stated the applicable law, which has been adopted as correct in Namibia, as follows:
‘Accordingly, one of the ways in which a defendant may successfully oppose a claim for summary judgment is by satisfying the Court by affidavit that he has a bona fide defence to the claim. Where the defence is based upon facts, in the sense that material facts are alleged by the plaintiff in his summons or combined summons, are disputed or new facts are alleged constituting a defence, the Court does not attempt to decide the issues or to determine whether or not the probabilities lie in favour of the one party or the other. All that the Court enquires into is (a) whether the defendant has “fully” disclosed the nature and grounds of his defence and the material facts upon which it is founded, and (b) whether on the facts so disclosed the defendant appears to have, as to either the whole or part of the claim, a defence which is both bona fide and good in law. If satisfied on these matters, the Court must refuse summary judgment, either wholly or in part, as the case may be. The word “fully”, as used in the context of the Rule (and its predecessors), has been the cause of some judicial controversy in the past. It connotes, in my view, that, while the defendant need not deal exhaustively with the facts and evidence relied upon to substantiate them, he must at least disclose his defence with sufficient particularity and completeness to enable the Court to decide whether the affidavit discloses a bona fide defence.’
[22] It is now my solemn duty to carefully consider the affidavits filed by the defendants and to come to a decision on whether they live up to the standards stated above. The question to be determined in this regard is whether the defendants have, in their respective affidavits, deposed to a defence that is bona fide and good in law, either as to the whole or part of the claim.
The first, second, and fourth defendants’ defence
[23] The first issue raised on behalf of the above defendants is that the particulars of claim in this matter are expiable for the reason that the plaintiff seeks among other relief, rectification. It is contended that when regard is had to rule 60, it is only specific claims that can be pursued by summary judgment, namely, a claim on a liquid document; a liquidated amount in money; delivery of specified movable property, and ejectment.
[25] I am, however, persuaded by the reasoning of the Supreme Court of Appeal of South Africa in PCL Consulting (Pty) Ltd t/a Phillips Consulting SA v Tresso Trading 119 (Pty) Ltd 2009 (4) SA 68. In that case, Cloete JA remarked as follows regarding the rectification in the context of a summary judgment application:
‘A prayer for rectification does indeed fall outside the provisions of rule 32. It does so not because it is a claim impliedly excluded by that rule, but because it is not, in the true sense, a claim at all. The plaintiff’s claim properly so called is for payment of arrears due in terms of a lease. In order to succeed on that claim at a trial, the plaintiff would have to allege and prove inter alia, that it leased premises to the defendant in terms of an agreement. The written agreement signed by the parties and annexed to the plaintiff’s particulars of claim refers to what the plaintiff alleges were the wrong premises. The plaintiff was therefore obliged to seek rectification of the written agreement in order to be able to lead evidence that what it alleges were the correct premises were let to the defendant – for, in the absence of a rectification, such evidence would be inadmissible both because of the parole evidence rule and the rule that no evidence may be given to alter the clear and unambiguous meaning of a written contract.’
[27] I accordingly understand the PCL judgment to state that the fact that a party seeks rectification does not always result in a prayer for rectification being held to be unavailable where summary judgment is sought. The court, as I understand, stated that where the parties are of the same view that the written agreement does not correctly reflect the agreement between or among them, then summary judgment may be applied for notwithstanding that a prayer for rectification is included. I agree with the conclusion on this aspect.
[31] As indicated earlier, in its application for summary judgment, the applicant repeats this prayer, i.e. in relation to the rectification of the addenda in question. The relief is recorded word for word in the application for summary judgment as in the amended declaration.
[32] I am of the considered view that when regard is had to the prayer for rectification, it appears to me that the plaintiff, is itself not certain what the effect of the conversion alleged was. Summary judgment is a relief that is granted where a plaintiff has an unanswerable claim. Furthermore, there must be no doubt about the cogency of the plaintiff’s claim. Equally, there must be no doubt regarding who the defendant liable to pay is.
[34] Furthermore, it would be dangerous for the court to issue judgment in a summary nature in a case where two alternative defendants are identified as being possibly liable to pay the plaintiff. The court will be required to identify the correct defendant for the purpose of granting summary judgment against him, her, or it. It might well be that evidence may have to be adduced to decide the question whether the conversion did in fact take place and if it did or did not take place, the court would then be able to identify the Kumwe entity liable to pay the amount, if proved.
[36] That being the case, I am of the considered view that summary judgment is inappropriate and must accordingly be refused as I hereby do. The matter must be referred to trial.
Condonation application
[39] It is common cause that the plaintiff failed to file its application for summary judgment within the period stipulated by the court. As a result, the plaintiff filed an application for condonation, which was opposed on a limited basis by the second defendant. The third defendant does not appear to have opposed the application.
[40] I am of the view that the application was well motivated and the reasons for the delay were very sound and convincing. Furthermore, it became clear that there would be no prejudice to any of the parties as a result of the application for condonation being granted. The court, in the exercise of its discretion, granted the application.
Wherefore the court held the following:
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- Summary judgment is a stringent remedy that is granted where the plaintiff has an unanswerable case.
- For a defendant to successfully avoid summary judgment, the said defendant must fully disclose the nature and grounds of its defence and the material facts on which it is based. Furthermore, the defendant must satisfy the court that on the facts so disclosed, it has a bona fide defence to the claim, or part thereof.
- Although rectification does fall outside the confines of rule 60, it is not, in the true sense, a claim but a procedure by which a plaintiff seeks to convey what it claims is the true agreement between or among the parties.
- That in the instant case, the relief sought in the rectification ie the addenda to the main agreement, did not properly record the conversion of the first defendant into a limited liability company, requires the court to make a finding whether or not the conversion did in fact take place and consequently, decide whether it was the first or the fourth defendant that must be held liable to the plaintiff. That exercise is one, which would require the adduction of oral evidence, which places the case outside the proper confines of a summary judgment application.
In the premises, the application for summary judgment was refused with costs of suit against the plaintiff.