- May 15, 2023
- |Civil Law, Practice, And Procedure, Concise Law Reports (CLR)
Reasons for Orders: Practice Directive 61
Whereas the Court dismissed an application for summary judgment with costs, the reasons for the orders as per USIKU J:
The plaintiff instituted action against the defendant for payment of N$ N$3 219 754.41 being the amount allegedly due and owing to the plaintiff by the defendant in terms of an oral sale and delivery agreement. The plaintiff alleged that the defendant ordered promotional branding items from them, and the plaintiff delivered them. Upon delivery of the items, the plaintiff produced invoices to the defendant, amounting to N$3 219 754.41. The plaintiff further alleged that the invoices presented to the defendant, and an admission of liability made by the defendant constituted liquid documents. The defendant entered an appearance to defend and subsequently, the plaintiff applied for summary judgment
In response to the plaintiff’s claim, the defendant filed an answering affidavit denying the lack of genuine defence and alleging a delay tactic and that the plaintiff had not provided sufficient evidence for a summary judgment and requested the court to dismiss the application, giving the defendant a chance to defend themselves properly.
‘[10] The law on summary judgment applications is trite. In terms of rule 60(1) of High Court Rules, a plaintiff is entitled to seek summary judgment if his claim is:
(a) based on a liquid document;
(b) for a liquidated amount in money;
(c) for delivery of a specified movable property; or,
(d) for ejectment.
[11] A liquidated amount in money is the amount that is either agreed upon or is capable of speedy or prompt ascertainment. A claim cannot be regarded as one for ‘a liquidated amount in money’ unless it is based on an obligation to pay an agreed sum of money or is so expressed that the ascertainment of the amount is a matter of mere calculation.
[12] In the present matter, the amount being claimed by the plaintiff was not agreed upon by the parties, nor is it so expressed that the ascertainment thereof is a matter of mere calculation. Evidently, the requirement of the ‘liquidated amount in money’ set out in rule 60 (1), does not apply to the present case.
[13] The definition of a liquid document was laid down in Rich v Lagerwey 1974 (4) SA 748 at 754, as a document which:
‘… evidence by its terms, and without resort to evidence extrinsic thereto, is an unconditional acknowledgment of indebtedness in an ascertained amount, the payment of which is due to the creditor…’
[15] In the present case, the purported admission of liability constituting a liquid document, (namely: annexure ‘C’), does not, by its terms, and without resort to extrinsic evidence, express an unconditional acknowledgment of indebtedness, in an ascertained amount of money and therefore, does not constitute a liquid document, for the purposes of the present proceedings.
[16] Annexure “B” which is a statement of account reflecting the amount due by the defendant to the plaintiff is dated 31 March 2022, whereas annexure “C” is dated 3 December 2020. These documents are over a year apart and as such annexure “C” could not have been a response to the statement of account reflecting the amount of N$3 219 754.41 which is now being claimed by the plaintiff.’
As a result, the court was of the opinion that the plaintiff’s application for summary judgment did not meet the requirements of rule 60 and the application therefore stood to be dismissed. Therefore, the plaintiff’s summary judgment application was dismissed. The defendant was granted permission to defend the action, and the plaintiff was ordered to pay the defendant’s costs related to the application.