- July 28, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
The applicant (Bank Windhoek) initiated legal action against the respondents, jointly and severally, on January 31, 2023, based on a dispute arising from a commercial agreement made on December 20, 2020, where Bank Windhoek agreed to lend N$12,600,254 to JP Investment CC, repayable over five years with monthly instalments. Fanek Mathias became a surety for this loan. The respondents defaulted on payments between August 16, 2022, and December 8, 2022, owing N$443,484.96. Bank Windhoek sought repayment of the amount with interest, as well as orders to declare four immovable properties owned by the respondents (Ervens 5562, 5564, 5565, and 5447 in Extension 12, Ondangwa) as executable collateral.
The respondents defended themselves on February 20, 2023. The applicant submitted its summary judgment application on March 30 which was opposed. The respondents raised three preliminary points of contention, being a) non-compliance with rule 32(9), b) the applicant filed the application late without seeking condonation, and c) the deponent of the founding affidavit lacks personal knowledge of the case details.
PRINSLOO J
The application process for summary judgment is governed by rule 60 of the Court’s Rules, and the established legal principles concerning summary judgment proceedings are outlined in the case of Di Savino v Nedbank Namibia Ltd. The court examines whether the defendant, in seeking to avoid summary judgment, demonstrates a bona fide defence through an affidavit.
This defence should consist of facts that, if true, would substantiate their claim. The defendant’s affidavit must fully disclose the nature, grounds, and material facts supporting the defence as required by rule 32(3)(b). The court’s inquiry is twofold: first, whether the defendant has adequately disclosed the defence and its supporting material facts; and second, whether, based on these facts, the defendant appears to possess a genuine and legally valid defence to either the whole or part of the claim. If both conditions are met, the court must deny summary judgment for the corresponding portion of the claim.
While the defendant isn’t obligated to exhaustively detail all evidence, they must present the defence and its material facts with sufficient clarity and completeness to enable the court to assess its genuineness. Ambiguous or incomplete statements of fact that don’t sufficiently address essential defence matters do not comply with the rule’s requirements.
The purpose of summary judgment is to assist a plaintiff when a defendant lacks a bona fide defence and enters an appearance merely to delay judgment. If the Court has doubts about the answerability of the applicant’s case, it should favour the respondent, leading to a refusal of summary judgment.
To evaluate the merits of the application, addressing the respondents’ preliminary objections becomes necessary. The respondents argued non-compliance with rule 32(9). The applicant’s legal practitioner engaged in attempts to meet and resolve matters amicably, despite certain hindrances. The correspondence was scrutinized to determine compliance. The respondents’ legal representative’s engagement and lack thereof were examined, and the court found the applicant’s efforts to engage satisfactory, considering the principles of rule 19. The issue of late filing was separately addressed and was not further discussed.
The respondents objection to the affidavit by Ms. Athalia Wallace, Acting Head: Legal Collections of the applicant, claiming lack of personal knowledge. Ms. Wallace’s role was outlined, stating her access to necessary data. Similar cases were cited where deponents in such roles were deemed competent.
The court found that the applicant’s legal practitioner made sincere efforts for engagement, addressing the issue of compliance with rule 32(9). The issue of late filing was addressed separately. The court also deemed the affidavit by Ms. Wallace, with her clearly stated capacity and positive verification of facts, satisfactory.
After careful consideration of the points in limine, it became evident that the respondents raised these issues as a diversion, attempting to draw attention away from their failure to present a valid defence against the applicant’s claim. The respondents remained conspicuously silent about their default, its cause, and any potential defence they might have had under the circumstances. Their sole objection pertained to the calculation of the outstanding amount indicated in the balance certificate. However, the respondents did not provide any details about what they believed the correct outstanding amount should be. Mr. Luvindao’s assertion that Mr. Mathias’ statements lacked coherence was indeed accurate, particularly regarding the notion that a full instalment needed to be reflected in the January 2023 balance despite his payment in December 2022, a misconception stemming from overlooking the accruing interest on the loan account.
The respondents contended that they disputed the certificate of balance but did not challenge the fact that the certificate served as prima facie evidence of their indebtedness, as explicitly outlined in Clause 17 of the agreement. A plaintiff is not required to deconstruct the constitution of a claim amount in the pleadings, except when the claim’s validity is significantly contested (Small and Medium Enterprises Bank Limited v Hamukwaya).
It further became clear that the respondents inadequately contested the claim amount’s validity. As none of the raised points in limine or issues regarding the merits held any substantive basis, summary judgment stood to be granted. The final matter for consideration was whether to order the immovable property’s executability.
Uncertainty arose regarding the nature of the properties in question. References to tenants residing in some buildings were noted, but the specifics remained unclear. The scope of the Rule 108 application or the summary judgment application and compliance with Rule 108(2)(b) of the Rules of Court in serving units occupied by tenants were ambiguities, leading the court to withhold the requested relief concerning the immovable property at this stage of the proceedings.
As a result, summary judgment was granted against both the first and second respondents, with costs, jointly and severally, the one party’s payment leading to the other’s exoneration.