IN THE HIGH COURT OF NAMIBIA
NOT REPORTABLE
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK
Case no: I
2625/2012
In the matter between:
GERT HENDRIK BEUKES
.................................................................1st
PLAINTIFF
VIRGINA BEUKES
............................................................................2nd
PLAINTIFF
and
SIEGFRIED BROCKERHOFF
.........................................................1st
DEFENDANT
PRISCILLA HENDRINA BROCKERHOFF
....................................2nd
DEFENDANT
Neutral citation: Beukes v
Brockerhoff (I 2625/2012 [2013] NAHMD 54
(19 February 2013)
Coram: Schimming-Chase, AJ
Heard: 19 February 2013
Delivered: 27 February 2013
Flynote: Practice –
Summary judgment – Application for ejectment of defendants from
certain immovable property in terms of Rule 32(1)(d). Default of
appearance – Defendants failing to appear at hearing of
application for summary judgment despite receiving notice of
application for trial date and notice of set down duly delivered at
the address nominated in defendants’ notice of intention to
defend – Application heard in defendants’ absence.
Summary: Plaintiffs applied for
ejection of the defendants from certain immovable property in terms
of Rule 32(1)(d). It was common cause between the parties that the
plaintiffs were the registered owners of the property. Defendants
raised a counterclaim in their opposing papers for monies they
alleged to be due, owing and payable to them by plaintiffs but did
not lay any basis in law why they should continue to reside on the
property pending finalisation of their counterclaim. Summary judgment
accordingly granted.
ORDER
(a) Summary judgment is granted in
favour of the plaintiffs.
(b) The defendants are evicted from
Farm Goabeb No 63 in the Usakos District.
(c) The defendants are order to pay
the costs of the application for summary judgment, such costs to
include the costs of one instructing and one instructed counsel.
REASONS
SCHIMMING-CHASE, AJ
[1] This is an application for summary
judgment in terms of Rule 32(1)(d) of the Rules of court for the
eviction of the defendants from Farm Goabeb No 63, Usakos District
(“the property”).
[2] The defendants failed to appear at
the hearing of this application. They also failed to file any heads
of argument. A formal notice of set down of the application was
delivered to the defendants at the address which they nominated in
their notice of intention to defend for service of process, notices
and documents in connection with the action instituted by the
plaintiffs.
[3] Instead, I was addressed at the
outset by Mr August Maletzky who indicated that he did not appear in
the summary judgment application but wished to make submissions in
relation to an application to intervene which he launched in the
action proceedings between the plaintiffs and defendants on
9
October 2012. Neither the notice of set down nor the application for
a trial date indicate that an application for leave to intervene
would be argued before me.
[4] The notice of application for
summary judgment was served on the defendants on 27 September 2012,
and delivered on 28 September 2012 at the address nominated by the
defendants for service of process, notices and documents. According
to the notice of application for a trial date, the defendants were
called upon by the plaintiffs’ counsel to meet at the office of
the Registrar on 5 December 2012 at 09h00 for the purposes of
obtaining a trial date for the hearing of the summary judgment
application (emphasis supplied). This application for a trial
date was similarly served and signed for on behalf of the defendants
at the address nominated by the defendants. Mr Maletzky confirmed
that the nominated address, namely c/o African Labour and Human
Rights Centre, 2nd Floor, Suite 206 is his own business
address.
[5] Subsequent to the notice of
application for a trial date, the plaintiffs similarly delivered to
the defendants a notice of set down for hearing of the application on
5 December 2012. It is clear ex facie the above notices and in
particular the notice of application for a trial date that only the
application for summary judgment was set down for hearing.
[6] Mr Maletzky was unable to give the
court a proper explanation as to why, after the notices were
delivered to his business address, he did not attend at the
Registrar’s office to ensure that his application for
intervention was set down. All he stated was that he would be
prejudiced if his application to intervene was not heard. He further
stated from the Bar that he had specifically informed the defendants
to attend at court for the hearing of the summary judgment
application.
[7] I find it strange that Mr Maletzky
would appear to argue his application to intervene without arranging
for it to be set down for hearing, or even filing heads of argument
for that matter, and further that he would claim that he is
prejudiced when as a regular participant in court proceedings he
failed to make any attempt to follow the Rules of Court. Mr Maletzky
clearly failed to consider the prejudice to his opponents who had
only appeared to argue the summary judgment application, or the
prejudice to the court in having to hear a matter not formally set
down for hearing without the benefits of heads of argument. An added
factor is that the notices were served at his office and he did
nothing to further his claim for relief. In the result this court
declined to hear the application for intervention after which Mr
Maletzky excused himself with the permission of the court.
[8] As regards the summary judgment
application, the failure of the defendants to appear despite notice
having been properly delivered at their nominated business address
was at their own peril, considering that Mr Maletzky indicated that
he had advised the applicants to attend. As a result, I proceeded to
hear the application for summary judgment.
[9] In their opposing affidavit
resisting summary judgment the defendants alleged inter alia
that they had a bona fide defence to the claim for ejectment,
that they have a valid counterclaim against defendants for
occupational rental in respect of the property from December 2011 to
June 2012 and that the plaintiffs failed to pay occupational rental
in respect of the foregoing period and caused the conveyancing
attorneys of record to deduct unrelated fees from the balance which
was due and payable to the defendants, evidence of which would be
adduced at the hearing (emphasis supplied). In this regard the
defendants confirmed that the plaintiffs concluded a sales agreement
to buy the property from them as set out in the particulars of claim
during December 2012, and that the property was eventually
transferred into the plaintiffs’ names.
[10] The defendants’ issue as
set out in the answering papers is that the plaintiffs failed to
secure the N$3 million as per the sales agreement as a result of
which the plaintiffs had to pay occupational rental to the
defendants. It was specifically alleged that the defendants were
willing to vacate the farm upon payment of the aforegoing “debits”
which were made in favour of the defendants together with
occupational rental from December 2011 to June 2012.
[11] The defendants also raised a
point in limine and alleged that the legal practitioners of
record for the plaintiffs acted in blatant conflict of interest as
they did the conveyancing and transfer of the property and “profited
from the defendants’ unlawful deductions made at the instance
of the plaintiffs from the balance which was due to the defendants”
and by so doing “compromised
their positions as unbiased officers of law”. They
further stated that the summary judgment is misplaced because the
total set of facts upon which the application for summary judgment is
predicated is not liquid and thus not capable of speedy
determination. I deal with these points in limine below.
[12] As regards the first point in
limine Mr Maasdorp, counsel for the defendants, relied on Keys
and Another v Boulter and Others 1971(1) All ER 289 and 294 where
Lord Denning dealt with the question whether the existence of a
conflict of interest affected the authority of a solicitor to enter
appearance for a client in the following manner:
“Then
I must with the final point which was put thus by counsel for the
plaintiffs: ‘Well, in any event there was such a conflict of
interest apparent at the time Shaen, Roscoe & Bracewell entered
this appearance that they were in breach of duty and indeed in breach
of duty to the court, for which they should be penalised in this way,
that they ought to pay all the cost of what has happened because they
ought never to have undertaken it because of the conflict of
interest.’ It seems to me there is a short answer to that. The
only question for us is whether the appearance was authorised or not
by the trustees. The question of conflict of interest is a matter
between the solicitor and the client himself. It does not affect the
authority of a solicitor.”
[13] I was also referred to the
concurring judgment in that case in which Phillimore LJ stated that:
“I
agree with Lord Denning MR that, despite all the warnings from the
opposition, Shaen, Roscoe & Bracewell were entitled to form their
own judgment whether at the time they entered that appearance there
was any conflict of interest between their respective clients. It is
now conceded that there is a complete conflict. It is now conceded
not merely that there is a conflict of interest which would prevent
them acting for both these defendants, but also a conflict of
interest which would prevent WH Thompson acting for SOGAT. There are
all these other actions going on. As I see it, this was a perfectly
proper appearance. It was properly authorised by the trustees, but
the time has now come when the trustees must instruct fresh
solicitors who can truly said to be quite independent. …..”
[14] I am in respectful agreement with
the findings of the civil division of the English Court of Appeal in
the above case. It is clear that a special power of attorney was
filed by the legal practitioners of the plaintiffs. Whether or not a
conflict of interest existed which I do not propose to deal with at
this stage relying on the Keys decision, the only question for
me to determine, is whether the appearance in the action was
authorised or not by the plaintiffs. It was so authorised ex facie
the special power of attorney, and accordingly the first point in
limine fails.
[15] As regards the second point in
limine, to the effect that the total facts on which the summary
judgment application is predicated is not liquid and not capable of a
speedy determination, it was submitted by Mr Maasdorp that it is in
fact the defendants’ suggestion, and not the application for
summary judgment that is misplaced, as it is irrelevant in law
whether the facts are liquid or capable of speedy determination,
because what matters for the purposes of
Rule 32(1)(d), is the
nature of the claim. In this matter it is a claim for eviction which
is synonymous with ejectment and which is a specifically permissible
claim in terms of Rule 32(1)(d). Mr Maasdorp further submitted that
the claim arises in circumstances where the defendants do not dispute
the plaintiffs’ title to the property and do not present any
facts to support a defence on the basis of any recognised ground
entitling the defendants to remain on the plaintiffs’ property.
I am in agreement with the submissions made by counsel on behalf of
the plaintiff and this point in limine also fails and falls to
be dismissed.
[16] The question to be determined
therefore is whether or not the defendants have a bona fide
defence to the applicant’s application for summary judgment in
light of the averments contained in the opposing affidavit. It was
submitted by Mr Maasdorp that the summary judgment application for
eviction is the consequence of the defendants’ refusal to
vacate the property.
[17] As regards the counterclaims it
is clear that the defendants do not dispute the plaintiffs’
title. The defendants further do not raise any other lawful
entitlement to occupy the property. Instead the defendants raised
monetary counterclaims for alleged unpaid occupational rental for
December 2011 to
June 2012 and for unlawful debits made by the
plaintiffs from the purchase price due to the defendants. The
defendants in this regard did not state the extent of the
counterclaims and only alleged that “the
actual quantum of the defendant claim shall with leave of this
Honourable Court be availed at the trial.” It is
important to note that the defendants themselves confirmed their
willingness to vacate the farm upon payment of the foregoing debits
which were made in favour of the defendants together with
occupational rental.
[18] There are two aspects which are
important to note with regard to the above averment contained in the
opposing affidavit. The defendants failed to specify the extent of
the alleged counterclaim which the learned author Erasmus
indicated is fatal to the defendants’ opposition, especially as
they did not explain their failure to specify the extent of the
counterclaims at all. Secondly, even if the counterclaims were
properly raised for purposes of
Rule 32(3), it does not affect
the plaintiffs’ entitlement to an eviction order taking into
consideration that the defendants do not dispute the plaintiffs’
title and further do not raise any lawful entitlement to occupy the
property.
[19] In this regard, it is trite that
the defendants may rely on an intended counterclaim in an
unliquidated amount which exceeds the plaintiffs’ claim as a
defence in summary judgment proceedings. Thus, set off would operate.
But, this is not the case in this matter.
[20] Mr Maasdorp also relied on
Spilhaus & Co Ltd v Coreejees.
In this case the plaintiff alleged that it sold and delivered to the
defendant irrigation equipment for the sum of R2,696.00 and as the
defendant failed to meet the repayment terms, the plaintiff had
cancelled the agreement. The plaintiff claimed return of the
equipment and damages of R1,196.00 constituting the difference
between the contract price and the present market value of the
equipment. The plaintiff sought summary judgment for, amongst others,
the return of the equipment. The defendant opposed the summary
judgment application on the basis that the plaintiff’s failure
to deliver the equipment on time resulted in the defendant suffering
consequential damages of R9,000.00. Watermeyer, J
held as follows concerning this defence:
“In
the present case the defendant has no legal defence to the
plaintiff’s claim for return of the equipment. The ownership of
the equipment is still vested in the plaintiff and the defendant has
no right to retain possession of it. Even if defendant were to
succeed in his counterclaim judgment thereon would in no way
extinguish plaintiff’s claim for the return of the equipment.
Defendant’s request that judgment should be delayed could only
be justified on some broad equitable principle that it might be
unfair to order the defendant to return the equipment to plaintiff
until such time as judgment has been given on the counterclaim. The
defendant will in any event have to return the equipment, and short
of its being attached in execution of any judgment which the
defendant might obtain the equipment could in no way furnish security
for payment of the defendant’s counterclaim. In the
circumstances, and in the absence of any authority on the point, it
seems to me that the fact that the defendant had a counterclaim for
damages is not a ‘defence’ to plaintiff’s action on
claim (b) [for return of equipment] within the meaning of sub-rule
(3)(b) of Rule 32.”
[21] It was submitted by counsel for
the plaintiff that the learned judge’s reasoning in Spilhaus
is equally applicable to this matter dealing with eviction, and that
absent a legal basis for remaining on what is undisputedly the
plaintiffs’ property, the eventual success of the defendant’s
counterclaim would not in any way legitimise the their stay on the
plaintiffs’ property or extinguish the plaintiffs’ claim
for their eviction. This counterclaim is therefore not a defence to
the plaintiffs’ claim for eviction within the meaning of Rule
32(3)(b).
[22] I am in agreement with the
submission made by counsel for the plaintiffs. The claim for summary
judgment relates to an eviction of the defendants from property which
the defendants admit is lawfully owned by the plaintiffs and was
properly transferred to the plaintiffs. There appears to be no bona
fide defence in terms of which ownership of the property is
challenged, nor is any legal basis for their continued residence on
the property raised on the papers. The defendants are of course
totally within their rights to continue with their counterclaim
against the other claims of the plaintiffs or to institute a claim
for payment of the monies that they allege is due, owing and payable
to them by the plaintiffs.
[23] The court’s attention was
also drawn to the consideration that in terms of Rule 32(5), it does
not follow automatically that this court must grant summary judgment
if the defendants did not satisfy it that they have a bona fide
defence to the claim or furnish satisfactory security. This court
accordingly still has a discretion.
[24] An instance where the court may
consider exercising this discretion, is where there is some factual
basis or belief on the papers which will enable the court to say that
there is some reasonable possibility that something will emerge at
the trial that will allow the defendants to establish a defence.
[25] I have considered whether there
is any reasonable possibility that something will emerge at the trial
that will allow the defendants to establish a defence to the
plaintiffs’ claim for eviction in terms of Rule 32(1)(d) read
with Rule 32(3)(b). There is unfortunately nothing on the papers
before Court to support such a belief simply because title to the
property is not disputed and because the defendants have not raised
any legal contention or basis for remaining on what is undisputedly
the plaintiffs’ property. In this regard I again find that the
court in all the circumstances has not been satisfied that there is a
bona fide defence to the eviction claim.
[26] Counsel for the plaintiffs
further pointed out further instance where the court could exercise a
discretion against the plaintiffs on the papers before it, namely if
a reasonable possibility exists that an injustice may be done if
summary judgment is granted.
[27] Counsel for the plaintiffs
submitted that this court may have been justified in exercising its
discretion on this basis if, for example, on the papers before it the
court is satisfied that it was dealing with impecunious litigants who
stood to lose their primary residence and were forthright and candid
in attempting to disclose their defence. There is nothing in the
opposing affidavit in terms of which the defendants alleged that they
were impecunious litigants who stood to lose their primary residence
and although I cannot say that they were not forthright, they did not
disclose a proper defence to the eviction application based on their
own averments. In light of the above I again find myself exercising
my discretion against the defendants.
[28] In light of the foregoing the
application for summary judgment was granted in accordance with the
order dated 19 February 2012.
______________________
EM SCHIMMING-CHASE
Acting Judge
APPEARANCES
PLAINTIFFS Adv RL Maasdorp
Instructed by Du Pisani Legal
Practitioners
DEFENDANTS: No appearance
Beukes and Another v Brockerhoff and Another (I 2625/2012) [2013] NAHCMD 54 (27 February 2013);