- January 20, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Lalapanzi Body Corporate v Nesa Event Management CC NAHCMD (20 January 2023)
The plaintiff is a Body Corporate established in termsof section 38 of the Sectional Titles Act 2 of 2009, with Development Scheme No. 03/1988 and its agent’s physical address at EON Property Services (Pty) Ltd. The defendant Closed Corporation (CC) owns a property within the plaintiff Body Corporate scheme. It was alleged that the defendant was in arreas with the payment of the costs and body corporate levies and are thus in breach of its statutory duty in terms of the Act to pay the costs and monthly Body Corporate levies of N$1,692.27 in respect of the Property, which arrears amounts to N$147,690.34 and the plaintiff wish to recover the said by way of a summary judgment application. The current owner of the Closed Corporation, Ms Desery Noemy Freygang did not oppose the application for summary judgement on behalf of the defendant.
The application for summary judgement was however opposed by Maxwell Maunganidze and Yolanda Ndinohamba who were joined after they brought an application for joinder. Mr. Maunganidze who use to be the sole member of the defendant (although this forms the dispute of another matter before my brother Mwanyangapo) and Ms Ndinohamba who is the current occupier of the said property. She bound herself as surety in solidum together with Mr Maunganidze who is the principal debtor and responsible for the repayment of monies owned to First National Bank, who is the mortgagor for debts held under the defendant. They therefore have a substantial interest in the matter.
The second defendant opposed the application by stating that the amount of this judgement forms part of the current amount outstanding and claimed by the plaintiff. There was one amount of N$ 77 219.07 deducted in January 2022 but there is no indication as to where this amount came from or what it was for. The second and third defendants are therefore disputing the quantum of the claim. The default judgement granted in this court was further granted against the second defendant in his personal capacity and as such cannot form part of the payment of the debt of the first defendant for outstanding levies.
RAKAOW J considered the matter thus:
In FirstRand Bank Limited v Beyer 2011 (1) SA 196 (GNP) (29 September 2010) by Ebersohn AJ said the following:
‘It seems to me, from the many similarly worded affidavits filed in support of applications for summary judgment which come before this motion court, that plaintiffs nowadays apparently are of the opinion that an affidavit deposed to by anybody in the employ of a plaintiff firm, who mechanically goes through the motions and make an affidavit “verifying” the cause of action and amount owing, would suffice to obtain summary judgment ….
[9] An analysis and consideration of Rule 32(2) clearly shows that the court must, from the facts set out in the affidavit itself, before it can grant summary judgment, be able to make a factual finding that the person who deposed to the affidavit, was able to swear positively to the facts alleged in the summons and annexures thereto and be able to verify the cause of action and the amount claimed, if any, and was able to form the opinion that there was no bona fide defence available to the defendant and that the notice of intention to defend was given solely for the purpose of delay.’
In Air Liquide Namibia (Pty) Ltd v Afrinam Investments (Pty) Ltd (HC-MD-CIV-ACT-CON-2017/03356) [2018] NAHCMD 123 (11 May 2018) Ueitele J, said the following:
‘The enquiry, where a plaintiff has applied for summary judgment is thus not, as the Court in the Ongwediva Town Council v Kavili and Others held, whether ‘a dispute of facts has arisen which cannot be resolved on papers’ but whether the defendant has, in his or her affidavit opposing the application for summary judgment, “fully” disclosed the nature and grounds of his or her 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.’
The principle in Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (AD) at 423 H and 424 is applicable where Corbett JA stated as follows :
‘The principle is that in deciding whether or not to grant summary judgement, the Court looks at the matter “at the end of the day” on all the documents that are properly before it.’
Rule 73 of the Rules for Sectional Titles published under GN 224 in GG 5604 of 31 October 2014, deals with payment of legal costs and reads as follows:
‘An owner of a section is liable for and must pay all legal costs, including costs between attorney and client and collection commission, expenses and charges incurred by a body corporate in obtaining compliance with any of the owner[‘}s obligations in terms of the Act, these rules or any house rules.’
In conclusion:
‘[14] For the court to grant a summary judgement, it must be satisfied that the amount claimed in the judgement is indeed the correct and due amount. In this instance the court is not satisfied that the amount is indeed due and payable as the court is not satisfied with the calculation of the outstanding amount and would like the plaintiff to provide evidence as to how it arrived at the outstanding amount. It is further not clear in terms of what provision the defendant is liable for financial charges and the recovery of costs and expenses and what exactly these costs are that form part of the amount outstanding according to the statement although legal costs are payable by the owner of the property in terms of rule 73 of the Rules for Sectional Titles. For that reason, the summary judgement application is dismissed. As it stands, costs are to follow the event and therefore costs are granted to the second and third defendant but capped in terms of rule 32(11).’
As a result, the application for summary judgment was dismissed with costs.