CASE NO.: I 3299/07
IN THE HIGH COURT OF NAMIBIA
In the matter between:
MBAMBUS ELIZABETH
….......................................................................APPLICANT
and
THE MOTOR VEHICLE ACIDENT FUND
…...........................................RESPONDENT
Coram: Ndauendapo, J
Heard on: 19 February 2008
Delivered on: 4 October 2010
________________________________________________________________
JUDGMENT:
NDAUENDAPO, J:
[1] This is an application for summary
judgment. On 24 February 2005, the applicant’s husband was
killed in a motor vehicle collision which occurred on the western
bypass, Windhoek. The applicant in her capacity as the wife of the
deceased as well as in her capacity as the mother (guardian) of the
three (3) minor children, instituted a claim against the Respondent
(The Motor Vehicle Accident Fund) for loss of support and funeral
expenses.
[2] During January 2006 a settlement
agreement was signed between the Applicant and the Respondent. In
terms of the settlement agreement the Respondent undertook to pay a
total amount of N$72 555.91 for past loss of support to the Applicant
and the three (3) minor children and for funeral expenses. The said
amount was duly paid to the Applicant.
[3] Clause 3 of the settlement
agreement provided (inter alia) as follows:
“Undertaking”
The parties have agreed that upon
conclusion of this written agreement, the fund will be liable in
respect of the following undertaking, which is furnished in terms of
Section 10(5)(a) of the Motor Vehicle Accident Fund Act.
Future loss of support
The fund will pay the loss of support,
for the year December 2006 – referred to as “year 1”
to the following person: Name: Elizabeth Mbambus on behalf of
herself, and
Elizabeth Mbambus amount N$31 154,84
Ndeya A. Mbambus amount N$15 577,49
Ezek N. Mbambus amount N$15 577,49
Lean N. Mbambus amount N$15 577,49
The fund further undertakes to
thereafter pay Los of Support to these victims annually until:
“Ndeya
Mbambus, Ezer N. Mbambus, Lea N.N. Mbambus, be comes
self-supporting, attains the age of majority (21 years), dies, or
the total amount paid is N$100, 000.00 whichever event occurs first.
Elizabeth Mbambus reaches the age of
60 or dies or the total amount paid is N$100,000.00 whichever occurs
first”
[4] Clause 4 of the agreement
provided as follows:
“The
parties have now agreed that the settlement, and the fund’s
performance in terms of that settlement, constitutes the full
and final settlement
of all and any claims of whatever nature, present or future, whether
for capital or costs, whether for future or unascertained damages,
that the claimant may now or hereafter have against the fund in law,
which arise out of the accident stipulated in the MVAF1 claim form
submitted by the claimant to the fund.”
[5] Subsequent to the settlement
agreement, the (Respondent) informed the Applicant that it will not
pay her the future loss of support because it made a mistake by
accepting liability and paying out her claim because the fund
obtained legal opinion to the effect that “in terms of the
Motor Vehicle Accident fund Act 2001, the fund cannot pay a claim
submitted by a dependent of a deceased person if the deceased was
killed in a motor vehicle accident, caused by himself or herself.”
[6] Dissatisfied with the new position
taken by the Respondent, the applicant issued summons against the
Respondent. The particulars of claim, inter alia, allege the
following:
“3. On or
about 24 January 2006, and at Windhoek the parties entered in a
written agreement in terms whereof the Defendant was under obligation
to:
Pay the plaintiff an amount of N$72
539-91 upon conclusion of the agreement;
Pay to the plaintiff for herself and
on behalf of the minor children referred to hereinabove as a
guardian during December 2006 amount of N$31 154-84 for the
plaintiff, an amount of N$15 577-49 for the minor child Ndeya A.
Mbambus, an amount of N$15 577-49 for the minor child Ezer N.
Mbambus and an (sic) amount of N$15 577-49 for the minor
child Lea N.N. Mbambus.
Pursuant to the conclusion of the
aforesaid agreement defendant paid the first combined amount of N$72
55191as provided for in the agreement under clause 2 upon conclusion
of the agreement.
The defendant has breached the
agreement between the parties when it failed and/or refused to pay
the amounts referred to herein supra under paragraph 3.2
during December 2006. Subsequent to the aforementioned breach during
December 2006 the defendant further repudiated its obligations by
unlawfully and unilaterally purporting to cancel the agreement.
In the premises the defendant is in
breach of the terms of the agreement and has repudiated its
obligation as provided for in the agreement.
The defendant is in the premises
liable to pay the plaintiff a combined amount of N$77 887-31 to the
plaintiff which amounts the defendant has failed to pay despite
demand.”
[7] The defendant filed a notice of
intention to defend and the Applicant (Plaintiff) filed an
application for summary judgment on the grounds that the Respondent
does not have a bona fide defence and had given the aforesaid
notice solely for the purpose of delay. To resist the summary
judgment/application the Respondent filed an opposing affidavit
setting out the basis of its defence. The “supporting
affidavit” (which should be opposing affidavit) was deposed to
by Inonqe Mainga who claims to be an “adult person”
employed by the Motor Vehicle Accident fund of Namibia. In paragraph
2.1 of the affidavit she says:
“duly
authorised and able to depose to this affidavit on behalf of the
Defendant/Respondent and that the facts stated in this affidavit are
within my personal knowledge, unless stated otherwise and that the
facts stated herein are both true and accurate.” As to the
grounds of defence, she states:
Grounds of defence:
“3.1 I deny
that the Defendant does not have a bona
fide
defence to the plaintiff’s claim and that the Defendant has
entered notice of intention to defend solely for the purpose of
delaying the plaintiff’s claim.
I submit that the Defendant has a
bona fide defence to the plaintiff’s claim. The
Defendant’s defence is based on the following:
The Defendant is a creature of
statute and only has the powers and authority conferred on it by
the creative deed.
The creative deed (i.e. the Motor
Vehicle Accidents Fund Act 2001, provides in section 10 the basis
of liability by the fund.
Section 10(1) as read with section
10(4) of the Motor Vehicle Accident’s Act, 2001 precludes
the fund (the Defendant) from paying any compensation to a person
who suffered damages if the damages were caused by his or her own
negligence.
I have indicated in paragraph 2.2 of
this affidavit that the accident was due to the negligent/unlawful
driving of the deceased, Fillemon Mbambus. The deceased Fillemon
Mbambus was driving in the lane of the oncoming traffic and
collided head on with a truck driven by a certain Mr. Jacobus.
Since the Act precludes the fund
(Defendant) from paying any compensation to a person who suffered
damages if the damages were caused by his or her own negligence it
thus follows that the agreement concluded by the Defendant and the
plaintiff is void ab initio and no legal consequence can
flow from a contract which is void ab initio.
I have in paragraphs 2 & 3 set
out the grounds of Defendant’s defence to the plaintiff’s
claim and I submit that the grounds of defence clearly disclose
that there is a prima facie case or the existence of an issue which
is fit for trial.”
[8] Mr. Namandje appeared on behalf of
the applicant and Mr. Ueitele on behalf of the respondent. Both
counsel submitted written heads of argument.
[9] Mr. Namandje referred to the
covering letter to the settlement offer by the respondent to the
applicant dated 19 December 2005 which stated that:
“When the
fund receives a signed agreement from you, one of the fund’s
managers will review all aspects of the claim, including the evidence
and documentation submitted by you. If everything is found to be in
order, the fund will also sign this agreement whereupon your claim
will be settled..”
[10] He further submitted that the
settlement agreement signed on 26 January 2006 between the parties
was in full and final settlement of all and any claim of any
nature present or future.
[11] He further submitted that the
applicant’s case is brought on an account of breach of contract
between the parties and has nothing to do with the provisions of the
Motor Vehicle Accident Act.
[12] He further submitted that
respondent’s attempt to rely on a mistake (when it entered into
the settlement agreement) should be rejected on the basis that any
party in our law that attempts to escape liability from the
contractual obligations should not only prove that the mistake is
(justus) reasonable but also that it was not due to misrepresentation
by the other party to the agreement. He referred this Court to the
matter of National and overseas Distributors Corporation (Pty)
Ltd v potato Board 1958 (2) SA 473 (A) (at 479G) where
the court held that:
“Our
law allows a party to set up his own mistake in certain circumstances
in order to escape liability under a contract into which he has
entered. But where the other party has not made any misrepresentation
and has not appreciated at the time of acceptance under
misapprehension, the scope of the defence of unilateral mistake is
very narrow, if it exists at all. At least the mistake (error) would
have to be reasonable (justus and it would have to be pleaded. In the
present case the plea makes no mention of mistakes and there is no
basis in the evidence of the contention that the mistake was
reasonable.”
He further submitted that the
respondent’s “allegation fall short of making out a case
both in law and facts, as to why it should escape liability on the
basis of mistake. If there was indeed a mistake, the full nature and
circumstances thereof are not sufficiently detailed as required in
law of contract.”
[13] Mr. Namandje omitted to quote the
further passage, which does not support his submission and I quote:
“So
that if the respondent had been a natural person who had made some
such mistake as that attributed to Mr. Rust there would have been no
defence to the action. But it was argued that the respondent was in a
more favourable position because it was a corporation whose Board’s
resolution had not been properly carried out by the manager. But in
the first place it is to be observed that no
question of ultra vires arises.
The
Board has power under the scheme which is its constitution to acquire
property and it was within its power to enter into the contract which
the appellant claims that it did enter into.” (My
emphasis) (See National and Overseas Distributors supra at 479 –
480H)
[14] The above matter is clearly
distinguishable from this one. The Respondent in this matter is a
creature of statute and the question of ultra vires clearly
arises. The Respondent which is a creature of statute can only act
within the power conferred on it by the creative deed. And in terms
of section 10(1) read with 10(4) of Act 2001 it is not liable to pay
dependants where the deceased caused his own death. Mr. Ueitele
submitted that the argument that the respondent cannot rely on its
mistake is tantamount to evoking the principle of estoppel. He
referred to Baxter Administrative Law (Juta) 1984 at
401 where the learned author said the following: “Public
authority could never acquire lawful powers through the operation of
estoppels because to allow this would undermine the principle of
legality. To allow a public authority to hold out incorrectly that it
is empowered to act in a certain manner would permit it to arrogate
powers to itself which it does not possess.”
The Law
Rule 32 (3)(a) and (b)of the High
Court Rules provides that: “(3) Upon the hearing of an
application for the summary judgment, the Defendant - may
Give
security to the Plaintiff to the satisfaction of the registrar for
any judgment including costs which may be given; or
satisfy
the Court by affidavit (which shall be delivered before noon on the
Court day but not preceding the day on which the application is to
be heard) or with the leave of the Court by oral evidence of himself
and 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 upon therefore.”
[15] Mr Namandje submitted that the
Respondent’s affidavit has,
“both in law
and facts failed to meet the requirements set out in Rule 32. He
referred this Court to the matter of Mahara
vs Barclays National Bank Ltd 1976 (1) SA 418 (A)
where the Court (at 426) stated that:
“that
while the defendant needs not deal exhaustively with the facts and
the evidence relied upon to substantiate them, he must at least
disclose his defence and the material fact upon which it is based
with sufficient particularity and completeness to enable the Court to
decide whether the affidavit discloses a bona fide defense.”
He also referred this Court to the
matter of Gilinsky and another vs Superb Launderers and Dry
Cleaners (Pty) Ltd 1978 (3) SA 807 where the Court (at 810 A)
stated that:
“it
follows therefore that if the allegations in the Defendant’s
affidavit are equivocal or incomplete or open to conjecture then the
requirements of the Rule in question have not been complied with”
He further argued that the
Respondent’s affidavit
“does
not only have to disclose a bona fide defense and fact relied on but
it is important that the defense should be a defense capable of being
raised to the action brought by Applicant as set out in the
particulars of claim.”
[16]
Rule 32(3) has been considered by a list of cases in both our Courts
and elsewhere.
[17]
In the matter of Kelnic Construction (Pty) Ltd v Cadilu Fishing
(Pty) Ltd 1998 NR 198 at p 201 C-F Strydom JP (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)
[18] In the case of Commercial
Bank of Namibia Ltd v Transcontinental Trading 1991 NR 135
(at 143 E-I,) Hannah AJ. (as he then was) stated that:
“First
it is necessary to consider what it is that a respondent to an
application for summary judgment has to do in order to successfully
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 therefore”.
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 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,
whether 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 particularity and completeness
to enable the Court to decide whether the affidavit disclose a bona
fide defence”.
[19] Teek J, in the case of Namibia
Petroleum (Pty) Ltd v Vermaak 1998 NR 155 at page in F-J took
the matter further and said the following:
“At
the same time the defendant is not expected to formulate his
opposition to the claim with the precision that would be required as
of a plea; nor does the Court examine it by the standard of
pleadings”.
“The
word “fully” requires that sufficient detail of the
nature and grounds of the defence must be disclosed in order to
enable the Court to consider whether or not a bona fide defence- or
“...whether the defence is a good one and is honestly made”.
Herb
Dyers (Pty) Ltd v Mohamed and Another
1965
(1) SA 31 (T). In order to determine whether the defence raised by
the respondent constitutes a good defence in law and whether it
appears to be bona fide the Court must be fully appraised of the
material facts upon which defendant relies with sufficient
particularity and completeness as to enable the Court to hold that if
the statements in fact are found to be correct, judgment should be
given for respondent. Maharaj
v Barclays National Bank Ltd
1976
(1) SA 418 (a) AT 426, Breytenbach
v Fiat A (Edms) Bpk
1976
(2) SA 226 (T) at 3421A. The defence must therefore not be averred in
a manner which appears in all the circumstances to be needlessly
bald, vague or sketchy”.
[20] In the case of Kramp v
Rostami 1998 NR 79, at page 82 C-I Teek J. said:
“The
test in an application of this nature is for the respondent to set
out a bona fide defence in his answering affidavit. There is no onus
on him apart from setting out the facts which in the absence of a
trial would satisfy the Court that he has a bona fide defence in
order to entitle the Court to decline Applicant’s application
for summary judgment. I shall now proceed to deal with respondent’s
defence on the merits to determine whether or not it is a bona fide
one. The approach of the Court in this regard is clear. The Courts
have over a number of years formulated what is required of defendant
in order that his affidavit may comply with the terms of this rule.
The defendant must satisfy the Court that he has a defence which, if
proved, would constitute an answer to the claim and that he is
advancing it honestly. The latter portion of the Rule sets out what
must be stated in an affidavit to put the Court into a position to
satisfy itself whether or not a bona fide defence has been disclosed.
It requires the affidavit to state (a) the nature, and (b) the
grounds of the defence and (c) the material facts relied upon to
establish such a defence and these requirements must be stated
“fully”. It follows, therefore, that if the allegations
in the defendant’s affidavit relative to these factors are
equivocal or incomplete or open to conjecture then the requirements
of the rule in question have not been complied with”. Gilinsky
and Another v Superb Launderers and Dry Cleaners (Pty) Ltd
1978
(3) SA 801 (C) at 809H-810A.
The
word “fully” mentioned in the Rules is not meant to be
given its literal meaning and it is sufficient for the respondent to
set out facts so as to persuade the Court that it has a bona fide
defence to the claim. But if the defence – is averred in a
manner which appear in all the circumstances to be needlessly bald,
vague or sketchy, that will constitute material for the Court to
consider in relation to the requirement of bona fides – and
grand the application sought.”
Is
the Applicant’s claim unanswerable?
[21]
As indicated earlier, the Respondent stated its defence in the
opposing affidavit as follows:
It
is a creature of statute and only has the powers and authority
conferred on it by the creative deed.
The
creative deed (The Motor Vehicle Accident Fund Act 2001, Section10
(1) as read with Section 10(4) of the Act, 2001 precludes the fund
from paying any compensation to a person who suffered damages if the
damages were caused by his or her own negligence.
[22]
The Respondent further alleges that “the death of the
deceased was caused by his own negligence as (Fillemon Mbambus), as
he was driving in the lane of the oncoming traffic and collided head
on with a truck driven by a certain Mr L. Jacobus. It thus follows
that the settlement agreement concluded between the Applicant and
Respondent was void ab initio and no legal consequences can
flow from a contract which is void ab initio.”
In
skeleton coast Safari
Pty Ltd v Namibia Tender Board and Others 1993 NR 288
Hannah J (at 299-300 J). Stated that: “In this circumstances
the only conclusion that can be arrived at is that the first
Respondent purported to exercise a power which it did not have. It
acted ultra vires.”
Similarly in
casu,
the Respondent can only exercise a power conferred on it by the
creative deed i.e The Motor Vehicle Accident Fund Act 2001 and as
indicated above Sections 10(1) as read with Section 10(4) of Act 2001
preclude the respondent from paying compensation to a person who
suffered damages if the damages were caused by his or her own
negligence. As Hoexter (administrative law in South Africa 2007 at
227) observed:
“every
incident of public power must be inferred from a lawful empowering
source, usually legislation. The logical concomitant of this is that
an action performed without lawful authority is illegal or ultra
vires
– that is to say beyond the powers of the administrator.
[23]
Mr Ueitele submitted that the Defendant is a public authority and it
exercises its power for the public benefit. It thus follows that when
the Defendant exercises its powers under the Motor Vehicle Accident
Fund Act, 2001 including the signing of an agreement to compensate
the Plaintiff, it is performing an administrative act and that
administrative act must comply with all the requirements of legality.
I agree with that submission.
THE
ORDER
In
conclusion, I am satisfied that the Respondent has set out a bona
fide defence which is good in law to the Applicant’s claim.
In
the result, the application for summary judgment is dismissed with
costs.
_____________________________
NDAUENDAPO,
J
ON
BEHALF OF PLAINTIFF:
On
instructions of: Sisa Namandje & Co. Inc.
ON
BEHALF OF DEFENDANT:
On
instructions of:
Mbambus v Motor Vehicle Accident Fund (I 3299/07) [2010] NAHC 129 (04 October 2010);