- April 6, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Order
The plaintiff`s application for summary judgment is granted against the Defendant in the following terms:
- Payment in the amount of N$2,939,071.14;
- Interest on the amount of N$2,939,071.14, calculated daily and capitalised monthly at the rate of 12.00% calculated from 17 January 2022 until the date of final payment;
- An order declaring the following property executable:
CERTAIN : ERF 4222 (A PORTION OF ERF 3148) WINDHOEK
SITUATE : IN THE MUNICIPALITY OF WINDHOEK
REGISTRATION DIVISION “K” KHOMAS REGION
MEASURING: 1202 (ONE TWO ZERO TWO) SQUARE METRES
HELD BY DEED OF TRANSFER NO. T 643/2013
SUBJECT : TO THE CONDITIONS CONTAINED THEREIN
- Costs of suit are granted on an attorney and client scale.
- The matter is removed from the roll and regarded as finalised.
Reasons for order
Masuku J:
Serving before the court for determination, was an opposed application for summary judgment together with an application to declare certain movable property specially executable, in terms of rule 108. The application was moved by the plaintiff, Nedbank Namibia Limited against the defendant, Mr Angelo Rowen Helmuth. The plaintiff, as stated earlier, is seeking summary judgment as well as an order declaring the immovable property executable.
The summary judgment application
Rule 60(5) of the High Court rules requires a respondent that opposes an application for summary judgment to satisfy a court by affidavit that it has a bona fide defence to the action and has not filed the opposition to merely delay the granting of the judgment. In order to meet this requirement, the affidavit must disclose fully the nature and the grounds of the defence and the material facts it is predicated on.
On the requirements of an application for summary judgment, the case of Maharaj v Barclays National Bank Ltd outlines inter alia that:
‘The remedy of summary judgment is not intended to shut out defendants who are able to demonstrate a bona fide intention to defend the action. It does require them, however, to show what their intended defences are. It must appear from what they say in this respect that the defences are legally sustainable and that they are maintained in good faith. They are expected to do this by setting out in their opposing affidavits the nature and grounds of the defence and the material facts upon which it is founded. If the averments made by a defendant in the opposing affidavit are vague, or markedly lacking in the particularity that might be expected in the circumstances of the case, then the court is likely to hold a bona fide defence has not been disclosed, and summary judgment will follow.’
‘[14] The averments made by the defendant were vague and lacking in particularity. The court thus concluded that the defendant has failed the first hurdle of the test in that he has not sufficiently disclosed in the opposing affidavit, the nature and the grounds of his defence and the facts upon which it was founded. On the premises, there was no basis for this court to refuse the application for summary judgment. It was accordingly granted as prayed.
Application for an order declaring the immovable property executable.
The object of rule 108, is based on equitable considerations, namely, to ameliorate the sharp point of executing claims against specially hypothecated immovable property, in order to satisfy a claim. The Supreme Court, in Kisilipile v First National Bank of Namibia Limited ((SA 65/2019) [2021] NASC 52 (25 August 2021)), with Damaseb DCJ (writing the unanimous judgment of the court) stated:
‘[19] The debtor must be invited to present alternatives that the court should consider to avoid a sale in execution but bearing in mind that the credit giver has a right to satisfaction of the bargain. The alternatives must be viable in that it must not amount to defeating the commercial interest of the creditor by in effect amounting to non-payment and stringing the creditor along until someday the debtor has the means to pay the debt. Should the circumstances justify, the court must stand the matter down or postpone to a date suitable to itself and the parties to conduct the inquiry. A failure to conduct the inquiry is reversible misdirection. If the debtor is legally unrepresented at the summary judgment proceedings, it behoves counsel for the creditor to draw the court’s attention to the need for the inquiry in terms of rule 108.’
Determination
It must be noted by litigants that the age-long and time-tested principle of pacta sunt servanda (that parties must be held to their undertakings), remains part of our law. The defendant signed a loan agreement with the plaintiff and the promises made therein should be honoured. Rule 108 of the rules of the court does not serve to set the pacta sunt servanda principle at nought. In the instant matter, after due enquiry, it seemed clear to me that the execution debtor did not seek to rely on the property in question being his primary home. Such an allegation is not made in the defendant’s opposing affidavit. The closest that defendant came to making such an allegation was his letter dated 31 January 2022 where he claimed that the property is his ‘primary property’, which is not the same as a primary home.
[22] The defendant’s debt to the plaintiff is substantial and I am satisfied that the defendant, despite being afforded an opportunity, failed to place facts before the court to indicate that the debt can be satisfied in a reasonable manner, without invoking the drastic consequences of declaring the mortgaged property executable. Although granting this relief is not always easy, considering the effects thereof on the judgment debtor, the court must grant such applications in cases where there are no less drastic measures available to exploit. This case is one such case.’
With regard to costs,
‘[22] …The general rules are that costs follow the event and that the granting of costs lies at the discretion of the court. No reasons had been advanced nor are apparent, as to why the general rule that costs follow the event, must not apply in this case. The plaintiff has been successful and was thus entitled to its costs as recorded in the agreements signed by the parties.’