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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT
CASE NO.: I 460/2014
In the matter between:
RIGHT – PATH INVESTMENT (PTY) LTD PLAINTIFF/APPLICANT
and
HEBEI XINJIAN CONSTRUCTION CC DEFENDANT/RESPONDENT
Neutral citation: Right – Path Investment (Pty) Ltd v Hebei Xinjian Construction CC (I 460-2014) [2014] NAHCMD 314 (22 October 2014)
Coram: UEITELE J
Heard: 21 October 2014
Delivered: 22 October 2014
Flynote: Practice — Judgments and orders — Summary judgment — Bona fide
defence — Defendant must satisfy court that he has bona fide defence — Defendant must
depose to facts which, if true, would establish defence — Defendant must disclose facts
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upon which defence is based — Court must be satisfied that defendant has a good defence
in law — Defendant must make full disclosure so that court apprised of all relevant facts.
Summary
Plaintiff instituted action against the defendant in which action he claims the delivery of
three motor vehicles namely a white Volkswagen T5 Transporter with registration letters
and number (N 5869 W), a Ford Ranger 3 liter Double Cab 4x4 with registration letters and
number (N 880-880 W) and a silver Land Rover Discovery 4 SDVS6 with registration letters
and number (N 898-898 W). In the alternative the plaintiff claims payment of N$200 000,
N$300 000 and N$650 000 respectively being the respective market values of the three
vehicles.
Defendant filed a notice to defend the plaintiff’s claim. After the defendant filed its notice to
defend the action the plaintiff filed an application for summary judgment against the
defendant. The defendant opposes the application for summary judgement and raised only
one defence, namely that the plaintiff is not the owner of the vehicles.
Held that although, the opposing affidavit is a wholly unsatisfactory document, is not a
model of clarity and is inelegantly drafted and pays little attention to the requirements of
rule 60(5)(b), the opposing affidavit just meets the minimum requirements of Rule 60(5)(b).
Held furthermore that the opposing affidavit appears to raise a bona fide defence and that it
has disclosed a defence and the material facts upon which it is founded. The court further
found that it is unable to say that the plaintiff's case is unanswerable and that there is no
reasonable possibility that defence raised by the defendant is good in law.
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ORDER
(a) Summary judgment is refused and the defendant is granted leave to defend the
action.
(b) The costs of the application for summary judgment are left over for determination by
the trial court.
(c) The matter is postponed to 05 November 2014 for Case Planning Conference.
JUDGMENT
UEITELE J
Introduction
[1] The plaintiff instituted action against the defendant in which action he claims delivery
of three motor vehicles namely a white Volkswagen T5 Transporter with registration letters
and number (N 5869 W), a Ford Ranger 3 liter Double Cab 4x4 with registration letters and
number (N 880-880 W) and a silver Land-Rover Discovery 4 SDVS6 with registration letters
and number (N 898-898 W) from the defendant. In the alternative the plaintiff claims
payment of N$200 000, N$300 000 and N$650 000 respectively being the respective
market values of the three vehicles.
[2] The defendant filed a notice to defend the plaintiffs claim. After the defendant filed its
notice to defend the action the plaintiff filed an application for summary judgment against
the defendant. The defendant opposes the application for summary judgment and a certain
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Mr Hongzhong Jiang the sole member of the defendant deposed to the affidavit on behalf
of the defendant and raised only one defence, namely that the plaintiff is not the owner of
the vehicles in question. I will, below, set out the plaintiff’s claim, the basis on which the
defendant opposes the application for summary judgment, the legal principles governing
summary judgment and finally apply those principles to the facts of the present case.
The plaintiff’s cause of action
[3] The plaintiff's cause of action is set out in paras 3, 4, 5 and 6 of the particulars of
claim as follows:
‘3 The plaintiff is the owner of three motor vehicles:
3.1 A white Volkswagen T5 Transporter single cab with licence number N 5869W
and VIN VVV1ZZZJZCX008464;
3.2 A Ford Ranger 3 liter Double Cab 4x4 with licence number N 880-880 W and VIN
AFATXXMJ2TBE11151; and
3.3 A silver Land Rover Discovery 4 SDVS6 with licence number N 898-898 W and
VIN SALLAAAF3CA622749.
4 The defendant came in possession of the vehicles from the latest beginning of 2013
with the full knowledge that the plaintiff is the owner of the vehicles.
5 If the defendant is no longer in possession of the vehicles the defendant intentionally
disposed of the vehicles or has caused its destruction negligently with the full
knowledge of the ownership of the plaintiff.
6 The market value of the vehicles are:
6.1 The Volkswagen T5 Transporter - N$ 200 000;
6.2 The Ford Ranger – N$ 300 000;
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6.3 The Land Rover Discovery 4 SDVS6-N$ 550 000.’
[4] Based on these allegations, the plaintiff claims delivery of the motor vehicles and if
defendant fails to deliver the vehicles the plaintiff claims the market value of the vehicles.
Grounds of defendant’s opposition of the summary judgment application
[5] The defendant resists the application for summary judgment on the grounds that the
plaintiff is not the owner of the three motor vehicles and in support of that denial the
defendant attached copies of the motor vehicle licence and licence discs issued under the
Road Traffic and Transport Act, 1999 ( Act 22 of 1999). The motor vehicle licence and
licence discs indicate the owner of these three as vehicles as Hebei Xinjian Construction
CC.
[6] I must now evaluate the plaintiff’s claim and the defendant’s resistance of the
application for summary judgment in the light of the requirements of rule 32(3)(b) as well as
the principles governing summary judgment.
Principles governing summary judgment
[7] The practise relating to summary judgments is governed by Rule 60 of the High
Court Rules. Rule 60(5) provides as follows.
‘(5) On the hearing of an application for summary judgment, the defendant may -
(a) where applicable give security to the plaintiff to the satisfaction of the registrar for any
judgment including costs which may be given; or
(b) satisfy the court by –
(i) affidavit which must be delivered before 12h00 on the court day but one
preceding the day on which the application is to be heard); or
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(ii) by oral evidence given with the leave of court, of himself or herself or of any
other person who can swear positively to the fact
that he or she has a bona fide defence to the action, and such affidavit or evidence
shall disclose fully the nature and grounds of the defence and the material facts
relied on.’
[8] The forerunner of rule 60 is rule 32 and that rule has been has been subjected to
many comments and judicial interpretations. From the comments and judicial
interpretations, the following have emerged. In the case of Commercial Bank of Namibia
Ltd v Transcontinental Trading1, Hannah AJ. (as then was) said:
‘First it is necessary to consider what it is that a respondent to an application for summary
judgment has to do in order successfully to resist such an application. In terms of Rule 32(3)
he may either give security to the plaintiff for any judgment which may be given or satisfy the
Court by affidavit that he has a bona fide defence to the action, and such affidavit shall
disclose fully the nature and grounds of the defence and the material facts relied upon
therefor’. Where the defence is based on facts averred by the defendant the Court is not
concerned with determining whether or not there is a balance of probabilities in favour of the
one or party or the other. As was said by Corbett JA in Maharaj v Barclays National Bank
Ltd 1976 (1) SA 418 (A) at 426B:
‘’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, wither wholly or in part of the claim. The word “fully, as used in the context of 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 facts and evidence
relied upon to substantiate them, he must at least disclose his defence and the material
facts upon which it is based with sufficient particularly and completeness to enable the
Court to decide whether the affidavit disclose a bona fide defence’. 1 1991 NR 135 at page 143 E-I
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[9] In the case of Kelnic Construction (Pty) Ltd v Cadilu Fishing (Pty) Ltd2 Strydom J.P.
(as he then was) said the following
‘There can be no doubt that summary judgment is an extraordinary remedy, which does
result in a final judgment against a party without affording that party the opportunity to be
heard at a trial. For this reason Courts have required strict compliance with the rules and
only granted summary judgments in instances where the applicant’s claim is unanswerable”.
{My Emphasis}
[10] The Supreme Court has laid down the principles governing applications for summary
judgments in the matter of Di Savino v Nedbank Namibia Ltd3. I find it appropriate to quote
(but I have omitted references to cases) in detail what Ngcobo AJA (Shivute CJ and
Mainga JA concurring) said:
‘[24] The enquiry that the court must conduct is foreshadowed in rule 32(3)(b) and it is
this: first, has the defendant 'fully' disclosed the nature and grounds of the defence to be
raised in the action and the material facts upon which it is founded; and, second, on the
facts disclosed in the affidavit, does the defendant appear to have, as to either the whole or
part of the claim, a defence which is bona fide and good in law. If the court is satisfied on
these matters, it must refuse summary judgment, either in relation to the whole or part of the
claim, as the case may be.
[25] While the defendant is not required to deal 'exhaustively with the facts and the
evidence relied upon to substantiate them', the defendant must at least disclose the defence
to be raised and the material facts upon which it is based 'with sufficient particularity and
completeness to enable the Court to decide whether the affidavit discloses a bona fide
defence'. Where the statements of fact are ambiguous or fail to canvass matters essential
to the defence raised, then the affidavit does not comply with the rule.
[26] Where the defence is based on the interpretation of an agreement, the court does
not attempt to determine whether or not the interpretation contended for by the defendant is
2 1998 NR 198 at page 201 C-F3 2012 (2) NR 507 (SC)
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correct. What the court enquires into is whether the defendant has put forward a triable and
arguable issue in the sense that there is a reasonable possibility that the interpretation
contended for by the defendant may succeed at trial, and, if successful, will establish a
defence that is good in law. Similarly, where the defendant relies upon a point of law, the
point raised must be arguable and establish a defence that is good in law.
[27] But the failure of the affidavit to measure up to these requirements does not in itself
result in the granting of summary judgment. The defect may, nevertheless be cured by
reference to other documents relating to the proceedings that are properly before the court.
In Sand and Co Ltd v Kollias the court held that the principle that is involved in deciding
whether or not to grant summary judgment, is to look at the matter 'at the end of the day' on
all the documents that are properly before the court.
[28] This approach to the opposing affidavit in summary judgment is a recognition of the
drastic nature of the remedy of summary judgment. It offends against the fundamental right
of a litigant to have access to court and be heard. Its aim is to protect the plaintiff against a
defendant who has no bona fide defence and who has entered appearance to defend to
delay the recovery of the debt and whose conduct thus amounts to an abuse of the process
of court. But it 'was never intended to replace the exception as a test of one or other of the
parties' legal contentions; nor to provide the plaintiff with a unilateral advantage of the
preview of defendant's evidence . . .'
[29] But where the opposing affidavit does not satisfy the requirements of rule 32(3)(b),
the court has a discretion under rule 32(5) whether or not to refuse summary judgment. This
discretion must be exercised with due regard to the drastic nature of the procedure of
summary judgment. In Arend and Another v Astra Furnishers (Pty) Ltd Corbett J (as he then
was) put the matter thus:
“In my view, an important factor to be taken into account by the Court in determining
how to exercise its discretion is the consideration that the procedure of summary
judgment constitutes an extraordinary and very stringent remedy: it permits a final
judgment to be given against a defendant without a trial. It is designed to prevent a
plaintiff having to suffer the delay and additional expense of the trial procedure where
the defendant's case is a bogus one or is bad in law and is raised merely for the
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purpose of delay, but in achieving this it makes drastic inroads upon the normal right
of a defendant to present his case to the Court.”
[30] This, of course, must not be understood as minimising the importance of complying
with rule 32(3)(b). For the court to consider whether the facts alleged by the defendant
constitute a good defence in law and whether the defence appears to be bona fide, the court
must be appraised of the facts upon which the defendant relies. It is for this reason that the
rule prescribes that the nature and grounds of the defence and the material facts relied upon
therefor must be fully disclosed in the affidavit. In addition, the contents of the affidavit will
enable the court to decide whether or not to exercise its discretion to refuse summary
judgment.
[11] The flexibility with which the defendant’s affidavit must be assessed is articulated as
follows by Van Niekerk, Geyer and Mundel4:
‘3.7.1 The defendant’s opposing affidavit is not to be assessed with the precision of a
plea.
The principle itself is trite, but what does it mean? Its obvious implication is that a
less technical interpretation is to be applied to the opposing affidavit than to a
pleading. A court is, therefore, entitled to apply a more accommodating approach
thereto. Furthermore, the defendant is not obliged to disclose all of his defences in
the opposing affidavit. A court is also not necessarily bound to the manner in which
the defendant has presented his case and his entitled to ascertain from the content
of the affidavit itself what the defendant actually intended to say.
3.7.2 Mere Dispute Formulation Inadequate.
A defence must go beyond the mere formulation of disputes and must disclose the
grounds upon which he disputes the plaintiff’s claim with reference to the material
facts underlying the disputes raised.
3.7.3 Necessary allegations are to be made.
4 In their book, Summary Judgment Practical Guide, (Lexis Nexis) service issue no 6
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Although the opposing affidavit need not focus upon each and every particular and
the defence need not be presented with the precision of plea, the affidavit must at
least disclose the material facts of the defence. Vague allegations do not suffice –
the court is not obliged on the defendant’s behalf to search for a defence between
loosely made allegations. The defendant must state his defence unequivocally or, at
the very least, a defence must appear from the content of the opposing affidavit. The
defendant cannot rely on the court to make deductions.’
[12] Having restated the principles governing summary judgment I will now apply these
principles to the facts of this case.
Does the opposing affidavit meet the requirements set in Rule 60(5)? [13] I have no doubt in my mind that the opposing affidavit is a wholly unsatisfactory
document. It is not a model of clarity. It is inelegantly drafted and pays little attention to the
requirements of rule 60(5)(b). The defendant simply makes the following allegations in its
opposing affidavit:
‘5 The Plaintiff is not the owner of the said motor vehicles and Defendant hereby
annexed proof of ownership of (1) the Volkswagen Transporter (N 5869 W) being
Certificate of Registration in respect thereof marked as Annexure “HXC 1”. (2) the
Ford Ranger 3 Double-Cab 4x4 (N 880880 W) being Certificate of Registration in
respect thereof marked as Annexure “HXC 2”. (3) the Land Rover Discovery 4
SDVS6 (N 898898 W) being Certificate of Registration in respect thereof marked as
Annexure “HXC 3”.
6. The Plaintiff authorised the transfer of ownership of the said three motor vehicles into
the name of the Defendant as clearly indicated in Annexure “HXC1”, “HXC 2” and
“HXC 3”.
7. The transfer of ownership of the;
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(1) Volkswagen Transporter took place on 9 December 2013 as per Annexure
“HXC 4” annexed hereto;
(2) Ford Ranger on 29 November 2013 as per Annexure “HXC 5” annexed
hereto; and
(3) the Land Rover Discovery took place on 4 October 2013 as per Annexure
“HXC 6” annexed hereto.’
[14] The opposing affidavit does not set out the material facts relied upon for the
allegation that the plaintiff transferred ownership in the vehicles, to whom the transfer was
made and the reason for the transfer of ownership. But when I consider the opposing
affidavit as a whole and in the light of the particulars of claim and the annexures, this is
what they appear to convey: The plaintiff did part with its ownership of the vehicles
sometime between October 2013 and December 2013. As a result of this parting with
ownership, the plaintiff is at the time of instituting the action not the owner of the movable
property.
[15] Mr Barnard who appeared for the plaintiff argued that:
‘The defendant thus admits that the plaintiff was the owner of the motor vehicles at some
stage but alleges that this ownership was transferred from the plaintiff to the defendant. As
the plaintiff relies on ownership, and ownership of the plaintiff at some stage is conceded,
the defendant bears the onus and must allege facts to establish that ownership was
transferred and that the defendant is now the owner and has the right to possession of the
motor vehicles.
He cites as authority for that proposition the case of Shukifeni v Tow-in-Specialist CC5. He
proceeded and argued that
‘The defence that ownership was transferred from plaintiff to defendant is a special defence.
The defendant alleges that the plaintiff authorized the transfer of ownership. The defendant
5 2012 (1) NR 219 (HC)
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alleges that the status quo had been changed and for this reason as well bears the burden
of proof.
He cites as authority for that proposition the case of Gamikaub (Pty) Ltd v Schweiger6 .
[16] I do not agree with Mr Barnard, the matter of Shukifeni7 is no authority for the
argument he advances. I incidentally delivered the judgment in that matter and in that
matter I said the following:
‘[18] Badenhorst et al in Silberberg and Schoeman's Law of Property 5ed at 93, argue
that one of the characteristics of ownership which is emphasized is that: 'ownership
is a ''mother right'' in the sense that it confers the most comprehensive control over a
thing. . .' and at 241 argues that '. . . it is still generally accepted that owners exercise
and retain control over property, thereby justifying extensive protective measures
when ownership or entitlements are infringed'.
[19] There is a principle in our law that an owner cannot be deprived of their property
against their will, this means that 'an owner is entitled to recover property from any
person who retains possession of it without the owner's consent. . .'. This principle
was considered in the case of Chetty v Naidoo 1974 (3) SA 13 (A).
[20] Badenhorst et al supra at 241 argue that:
'An owner who institutes a rei vindicatio to recover his or her property is required
to allege and prove:
(a) that he or she is the owner of the thing;
(b) that the thing was in the possession of the defendant at the commencement
of the action; and
(c) that the thing which is vindicated is still in existence and clearly identifiable.'
6 2008 (2) NR 464 (SC)7 Supra at footnote 5
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[21] In the South African case of Akbar v Patel 1974 (4) SA 104 (T), Trengove J said the
following:
'According to our law, where a plaintiff's claim for the recovery of possession or
for ejectment is based on his ownership of the property involved, his cause of
action is simply the fact of his ownership coupled with the fact that possession is
held by the defendant. (Graham v Ridley 1931 TPD 476; Krugersdorp Town
Council v Fortuin 1965 (2) SA 335 (T) at 336 and the authorities there cited.)'
[109G.]
[22] In Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T)
Van der Westhuizen AJ said at 996:
'The plaintiff's claim is — in the first place — based upon the rei vindicatio, which
is the applicable action available to an owner, who has been deprived of his or her
property against his or her will and who wishes to recover the property from any
person who retain possession of it without the owner's consent. . . The plaintiff in
order to succeed is required to allege and prove:
(a) that he is the owner of the thing or items in issue; and
(b) that the items were in the possession of the defendant at the
commencement of the action. . . .'
[23] For the defendant to successfully resist a rei vindicatio action, he must allege and
prove some right to hold possession. In Chetty v Naidoo supra Jansen JA said at
20B – D:
'It is inherent in the nature of ownership that possession of the res should normally
be with the owner, and it follows that no other person may withhold it from the
owner, unless he is vested with some right enforceable against the owner (e g, a
right of retention or a contractual right). The owner, in instituting a rei vindicatio,
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need, therefore, do no more than allege and prove that he is the owner and that
the defendant is holding the res — the onus being on the defendant to allege and
establish any right to continue to hold against the owner (cf Jeena v Minister of
Lands 1955 (2) SA 380 (A) at 382E, 383).’ (Italicized and underlined for
emphasis).
[17] From the above it is quite clear that a person who institutes a rei vindicatio need to
allege and prove that he is (not was) the owner of the thing vindicated and that the
defendant is holding the res. Only if the plaintiff has succeeded in discharging the onus
resting on him does the onus rest on the defendant to allege and establish any right to
continue to hold property against its owner.
[18] When I view this matter ' as a whole at the end of the day' and in the light of all the
documents that are properly before the court in particular the plaintiff’s particulars of claim
wherein the plaintiff simply makes the bald and unsubstantiated allegation that it is the
owner of the vehicles and admits that it lost possession of the vehicles but does not
disclose how, or why it lost possession of the vehicles and the defendant’s allegation that it
is the owner of the vehicles and the certificates of registration reflecting it as the owner of
the vehicles, I consider that the opposing affidavit just meets the minimum requirements of
Rule 60(5)(b).
[19] In addition I am satisfied that the opposing affidavit appears to raise a bona fide
defence and that it has disclosed a defence which if at the trial is proven is good in law and
the material facts upon which it is founded . I am furthermore unable to say that the
plaintiff's case is unanswerable and that there is no reasonable possibility that defence
raised by the defendant is good in law. In these circumstances, this is an appropriate case
for the exercise of the discretion in favour of refusing summary judgment. It follows, in my
view, that the defendant is entitled to be granted leave to defend the action against it.
[20] The only aspect that now remains to be considered is the question of costs. The
costs of the application for summary are, in my opinion, best determined by the trial court.
In the result, I make following:
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(a) Summary judgment is refused and the defendant is granted leave to defend the
action.
(b) The costs of the application for summary judgment are left over for determination by
the trial court.
(c) The matter is postponed to 05 November 2014 for Case Planning Conference.
----------------------------SFI Ueitele
Judge
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APPEARANCES:
PLAINTIFF: P Barnard
Instructed by P D Theron & Associates
DEFENDANT: C Brandt
Of Chris Brandt Attorneys