CASE NO.:I 3530/2008

IN THE HIGH COURT OF NAMIBIA

In the matter between:

AGRA CO-OPERATIVE LIMITED PLAINTIFF

and

BORRY KATJIUANJO FIRST DEFENDANT

FRANCISKA KATJIUANJO SECOND DEFENDANT

Z B KATJIUANJO THIRD DEFENDANT

CORAM: Marcus, AJ

HEARD ON: 29/09/2009

ORDER ON: 29/09/2009

REASONS ON: 06/10/2009

JUDGMENT

MARCUS AJ

[1] This matter was heard on 29 September 2009 and after hearing argument I granted summary judgment in favour of plaintiff. These are my reasons for the orders made.

[2] Plaintiff, Agra Co-operative Limited, filed a claim against B Katjiuanjo, F Katjiuanjo and Z B Katjiuanjo to whom I shall refer to as first, second and third defendant respectively. In the particulars of claim the following salient allegations are made:

2. 1. On 22 November 2007 plaintiff, represented by its agent L E Greef and first defendant entered into a written sale agreement in terms of which plaintiff sold and the first defendant bought 117 cattle from plaintiff at a public auction. The total purchase price was N$ 352 975.00.

2. 2. On the same day plaintiff, represented as aforesaid, entered into a further oral agreement in terms of which it was agreed that first defendant would effect payment of the purchase price in two equal instalments. The first payment was to be made by way of a cheque on 22 November 2007 in the amount of N$ 176 487.50. The second payment, to the same amount, would be made by way of post dated cheque, to be dated 3 December 2007 drawn by first defendant in favour of plaintiff.

2. 3. The cattle purchased by first defendant from plaintiff were delivered on 22 November 2007 to first defendant and removed by latter to farm Turksvy in the Gobabis district.

2. 4. The first payment in the amount of N$ 176 487.50 was honoured and plaintiff received payment.

2. 5. When plaintiff presented the second cheque for payment on 22 February 2008 the cheque was dishonoured by non-payment first defendant having countermanded payment thereof.

2. 6. Plaintiff states that it has duly performed its obligations. First defendant, so it is alleged, breached the agreement by failing to pay the full purchase price in the sum of N$ 352 975.00. Plaintiff states that it is entitled to cancel the agreement as a result of the breach, which it did by way of its particulars of claim.

2. 7. Plaintiff states that it is the owner of the cattle and that defendants are in possession of the cattle, alternatively have disposed of the cattle with knowledge of plaintiff’s ownership thereof. Plaintiff thus claims delivery of the cattle, alternatively payment of N$ 176 487.50.

2. 8. The terms of the written agreement were inter alia as follows:

2. 1. 1. Every lot will, immediately after the bid has been knocked down, be considered to be delivered to the buyer and will thereafter be at the risk of the buyer;

2. 1. 2. The right of ownership of anything which is bought, purchased will only be transferred to the buyer after the purchase price has been paid and no article which is sold may be removed or taken away until the purchase price has been paid or arrangements have been made to pay the purchase price. On default, the auctioneer will have the right to resell the article or stock, at the risk of the defaulting buyer, who will meet all costs incurred with regard to the resale and any losses suffered. The defaulting buyer will not have any claim to any benefit which may result from the resale from date of sale to date of payment.

[3] Defendants filed a notice to defend, whereupon plaintiff launched its application for summary judgment. The affidavit in support of the application for summary judgment was deposed to by its senior manager of livestock stating, as is required by rule 32 (2), that he is able to swear positively to the facts verifying that defendants are indebted to plaintiff in the sum of N$ 176 487.50. He also states that he has perused the particulars of claim and is of the opinion that defendants do not have a bona fide defence to the claim and that appearance to defend has been entered solely for the purpose of delay.

[4] In opposition to the application for summary judgment defendants filed answering affidavits. Second and third defendant denied that they owed the amount claimed by plaintiff and further stated that they were not party to the agreement of sale. Their answer really disposed off the application for summary judgment insofar as they were concerned. Plaintiff’s counsel conceded, in my view correctly, in his written submissions that first and second defendant have displayed a bona fide defence to plaintiff’s claim. It remains to consider why I upheld the application for summary judgement against first defendant.

[5] In this respect it is necessary to examine the affidavit by first defendant, to see whether it establishes a bona fide defence to plaintiff’s claim. First defendant provides two grounds why summary judgment should not be granted. The first is that the application for summary judgment is premature. The submission that is essentially being made in this regard is that, since the parties were involved in settlement negotiations, it was premature for plaintiff to apply for summary judgement.

[6] In support of this ground first defendant annexed three letters to his affidavit. The first letter, written on a without prejudice basis, is a letter by plaintiff’s lawyers. Plaintiff’s counsel objected to its use by first defendant given its aforementioned status. I have decided to refer to it as the terms thereof do not prejudice plaintiff. The letter states as follows:

“As discussed telephonically please take instructions from your client regarding return of our client’s cattle to the value of the amount of your client’s cheque which was referred to drawer as we cannot see that he has a valid defence herein.

We confirm that we have received instructions to apply for summary judgment but would be pleased to receive your kind reply as to whether a speedy and cost effective resolution could be arrived at herein without incurring unnecessary further legal expenses.”

[7] To this letter first defendant’s lawyers responded saying that they have referred the letter to their clients and that they will revert as soon as they receive instructions. The letter concludes by stating the following:

“In light of the aforesaid, and regarding the request for further particulars and/or plea, please confirm in writing that you will hold the matter in abeyance pending the outcome of the discussion(s) between the writer hereof and the three defendants. We may add that the writer hereof will try his best to expedite the matter and hopefully to arrived (sic) at a speedy resolution.”

[8] Plaintiff’s lawyers in turn responded stating:

“As advised, I hold instructions to proceed with the application for summary judgment unless a satisfactory settlement is arrived at.

We would be pleased if this would be possible and await to hear from you as envisaged in your aforesaid correspondence and thank you.”

[9] The second ground for resisting summary judgment is phrased in the affidavit as follows:

“I do admit that I owe the applicant/plaintiff the money, but if given an opportunity to defend I will be able to show why the cheque was referred to drawer and why as per agreement, the cheque was not supposed to be taken to the bank.”

[10] Before considering these grounds it is apposite to shortly set out the law governing applications for summary judgement.

The Law

[11] The remedy of summary judgment has been described as extraordinary and drastic. This is so as it deprives the defendant of the opportunity of defending a claim. It is granted on the supposition that “the plaintiff’s claim is unimpeachable and that the defendant’s defence is bogus or bad in law”. See: Maharaj v Barclays National Bank Ltd 1976(1) SA 418 at 423 F-G.

[12] When considering the averments by plaintiff and the opposing averments by defendant, in order to decide whether there is a bona fide defence, the Court does not weigh the averments against each other to decide where the probabilities lie. If there is nothing that is inherently incredible in the averments by defendant which, if proved, would support a defence that is good in law, the Court is obliged to dismiss the application for summary judgment and grant the defendant leave to defend the action. See: Mowschenson and Mowschenson v Mercantile Acceptance Corporation of SA Ltd 1959 (3) SA 362 (W); Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 at 426 A-D.

[13] The Court in Oos-Randse Bantoesake Administrasieraad v Santam Versekeringmaatskappy Bpk 1978(1) SA 164 (W) at 171, commenting on the obligation of a defendant when filing the opposing affidavit, said the following:

“What is required of him is not a great deal. But he must lay enough before the Court to persuade it that he has a genuine desire and intention of adducing, at the trial, evidence of facts which, if proved, would constitute a valid defence. In order to achieve that degree of persuasiveness the defendant must do more than assert his intention to establish his defence by evidence at the trial. He must place on affidavit enough of his evidence to convince the Court that the necessary testimony is available to him, and that, if it is accepted, it will constitute a defence”. (emphasis supplied)

[14] I shall now apply these principles to the grounds set out by first defendant. With regard to the first ground, first defendant does not state in the papers that it was agreed to hold the proceedings in abeyance while settlement negotiations were ongoing. Nor could he, as the request by his lawyer to hold the matter in abeyance was met with a response by plaintiff’s lawyers that, he held instructions to proceed with the application for summary judgement unless a settlement was reached. As it turned out no settlement was reached and plaintiff was within its rights to proceed with the application for summary judgment. There is thus no merit in this ground and it is accordingly dismissed. See: Bergmann v Commercial Bank of Namibia Ltd and Another 2001 NR 48 (HC) at p 50 C.

[15] The second ground is an even feebler attempt at resisting summary judgment. Firstly, there is an unequivocal admission that first defendant owes plaintiff the money. Secondly, no evidence is placed on affidavit why payment of the money, which is due and payable, was withheld. First defendant does what the Court in Oos-Randse Bantoesake Administrasieraad v Santam Versekeringmaatskappy Bpk said a defendant could not do. That is, to only assert his intention to establish his defence at the trial and omit to place sufficient evidence on affidavit that could establish a defence. The second ground is thus also dismissed.

[16] Mr Kasuto in argument submitted that the parties entered into a further agreement which varied the terms of the first agreement. He stated that the words “why as per agreement the cheque was not supposed to be taken to the bank” which are contained in the paragraph forming the second defence ground support his submission. I beg to differ. The statement on its own terms does not support this submission. This statement is in my view insufficient to cast doubt on plaintiff’s claim, given the paucity of the information that is provided. First the information that the earlier agreement was varied by a later agreement was made from the bar and not contained in first defendant’s affidavit. There is also no information regarding the terms of such alleged agreement, the parties to such later agreement, the place and time when such agreement was reached. First defendant had to provide this information in his affidavit and not at some future point in time when the matter goes to trial. For these reasons I am satisfied that first defendant has not established a bona fide defence against plaintiff’s claim and summary judgment is entered against him in the following terms:

1. First defendant is ordered to deliver to plaintiff cattle, to the value of the sum of N$ 176 487.50, that are in first defendant’s possession;

2. First Defendant alternatively, is ordered to pay to Plaintiff the amount of N$ 176 487.50 plus interest a tempore morae on the aforesaid amount at the rate of 20% from 4 November 2008 to date of payment. First Defendant is also ordered to pay the costs of suit;

3. Leave is granted to Second and Third Defendants to defend the action;

4. Costs to be costs in the cause of the main action.

_________________

MARCUS, AJ

COUNSEL ON BEHALF OF THE PLAINTIFF/

APPLICANT: MR. J.A.N. STRYDOM

INSTRUCTED BY: R Olivier & Co.

COUNSEL ON BEHALF OF THE DEFENDANTS: MR E. K. KASUTO

INSTRUCTED BY: E K Kasuto Legal practitioners