NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK

IN CHAMBERS

REASONS

Case no: I 4048/2009

In the matter between:

JAQEUL KAKULYARUKUA
NDJEMBO
.........................................................................APPLICANT

And

HEROLD SAMUEL GORASEB
....................................................................RESPONDENT

Neutral Citation:
Njembo v Goraseb (A 313/2010) [2012] NAHCMD 59 (12
November 2012)

Coram: NDAUENDAPO
J

Heard:
16 September 2010

Delivered:
12 November 2012

Flynote:
Summary Judgment—Respondent
has no bona fide defence delaying tactics—Refused
to vacate property sold to applicant—Respondent
failed to appear in court—Summary
judgment granted—Reasons provided.

Summary:
Applicant applied for
summary judgment on the basis that respondent has no bona
fide defence and filed
notice of intention to delay the matter. Respondent in his opposing
affidavit stated that he applied for rescission of judgment in the
matter of Standard Bank v Harold Goraseb a case A 196/2009, a
case in which the bank obtained judgment against him and repossessed
the property which he occupies. The said property was then sold to
applicant which property he refuses to vacate. He also raised the
defence of non—joinder of his wife and that the default
judgment adversely affect his constitutional right. At the hearing of
the application, the respondent did not turn up and the court granted
summary judgment after hearing submissions by applicant.

______________________________________________________________________

ORDER

______________________________________________________________________

The application for
summary judgment was granted for all those reasons.

______________________________________________________________________

JUDGMENT

______________________________________________________________________

NDAUENDAPO J:

[1] On 16 September 2010,
I granted an application for summary judgment in the following terms:

‘1 eviction of the
defendant from Erf 1200, Gamma Street, Khomasdal, Windhoek, with
immediate effect.

2. Payment of the amount
of N$ 25 858.29.

3. Payment of the amount
of N$2873.12 per month from 5 November 2009 to date that the
defendant vacates the property

4. Mora interest at the
rate of 20% per annum from 5 November 2009 to date of payment.

5. Costs of suit’

[2] The respondent
requested reasons for my judgment. Herein below are my reasons:

In support of the
application for summary judgment the applicant annexed an affidavit
in which she states ‘that the defendant does not have a bona
fide defence to her claim and that the defendant filed a notice of
intention to defend solely for the purposes of delaying the action
and that he does not have a bona fide defence to her action’.
The (defendant) filed an opposing affidavit to the summary judgment
application. The (defendant) raised three defences to the summary
judgment application, namely:

(a) He applied for
rescission of the default judgment that was granted against him (in
the matter of Standard bank of (Namibia limited V Herold Samuel
Goraseb) case no: A 196/2009

(b) The default judgment
that was obtained against him adversely affects his constitutional
rights as contained in Articles 12 and 16 of the Constitution.

(c) His wife was not
joined as a defendant despite being a joint owner of the property.

When the matter came
before me on 16 September 2010, Mr Grobler appeared for the Applicant
and the respondent was not represented nor did he attend at Court to
argue the matter.

Mr Grobler submitted
written heads of argument. In his written submissions he submitted
that: (I quote verbatim).

RESCISSION OF THE
DEFAULT JUDGMENT

‘4.1
The Applicant applied for a rescission of the default judgment
against him in case no: A 196/09 on 11 June 2009.

4.2
that application was brought four months after the sale in execution
to the Plaintiff of the property by the Deputy Sheriff and three
Months after the property was registered in the name of the
Plaintiff.

5.

He contended that there
is simply no basis to claim that the ownership of the property does
not vest in the Plaintiff since 5 February 2009. There is no basis to
claim that there was not a valid sale of the property to the
Plaintiff and in any event if the Defendant should succeed to have
the default judgment against him set aside, the sale in execution
cannot be reversed. It was a valid sale in execution to an innocent
third party.

6.

On
the non—joinder of the wife of the defendant, he submitted
that:

6.1
The property was sold to the Plaintiff on 5 February 2009 in terms of
an order of Court granted on 29 August 2008 against the Defendant who
is described as unmarried.

6.2 It is therefore of
crucial importance to know when the defendant was married. If after
the sale in execution the property could never have formed part of
the common estate. It is also important to know whether the parties
were married in/or out of community of property to establish whether
the property formed part of the common estate.

6.3 To establish a prima
facie defence the defendant should at least have mentioned when he
got married and whether the marriage was in/or out of community of
property. To prove his allegations in this regard the defendant
should have attached his marriage certificate to his opposing
affidavit. That was not done.

6.4 Not only is the
defendant completely silent in this regard, but also the application
for rescission of judgment was only brought in his own name only, and
no mention is made in the said application that he was married.

6.5
The only reasonable inference that can be drawn is that if the
Defendant is indeed married he must have married, after
the property was already sold to pay his debt with Standard Bank.

7.

On the defence that
the default judgment adversely affected the constitutional rights of
the defendant Mr Grobler submitted that:

The same arguments raised
in paragraphs 4 and 5 above mutatis mutandis apply to this defence.

8.

The defendant does not
allege:-

8.1 That he still has to
pay some or other bond over the property.

8.2 That he pay any rent
to the Plaintiff as the current bondholder.

8.3 That he has a right
to stay in the property for free until his case for rescission of
judgment has been finalized.

8.4 Why the Plaintiff
must carry the burden to pay the monthly installment whilst he remain
in occupation thereof for fee.

9.

Mr
Grobler further submitted, correctly in views that the defendant
failed to disclose a bona fide
defence:

COMPARE:

‘[3]
Another
provision concerns the requirement that in his or her affidavit the
defendant must disclose ‘fully’ the nature and grounds of
his or her defence and the material facts relied upon for such
defence. In my view, the word ‘fully’ should not be given
a literal meaning: the defendant meets the requirements if the
statement of material facts in his or her affidavit is reasonably
full to persuade the court that what he or she has alleged, if it is
proved at the trial, will constitute a defence to the plaintiff’s
claim. According to Corbett JA (as he then was):

The
word ‘fully’ connotes, in my view, that, while the
defendant need not deal exhaustively with the 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 discloses a bona fide defence.’

NAMIBIA BREWERIES LTD v
SERRAO 2007 (1) NR 49 HC ON P 51 C TO E.

ALSO SEE:

EASY LIFE MANAGEMENT
(CAPE) v EASYFIT CUPBOARDS WINDHOEK CC 2008 (2) NR 686 HC ON P 691 E
TO L.

10.

I submit that the
Plaintiff’s claims is for liquidated amount of money and
ejectment as contemplated by Rule 32.

COMPARE:

“KAMWI v
MINISTRY OF FINANCE
2007 (1) NR
167 HC ON P 172 F TO P 173 F.

11.

By alleging that the
application for summary judgment is misplaced because he applied for
rescission of judgment of the judgment against him in another matter
can perhaps be regarded as a sort of counterclaim. In this regard
HANNAH J said the following:-

‘A defendant, in
raising a counterclaim, should provide full particularity of the
material facts upon which it is based. This means that he must be as
comprehensive as when advancing only a defence. The Court must be
placed in a position to be able to consider not only the nature and
grounds of the counterclaim, but also the magnitude thereof and
whether it is advanced bona
fide.
The necessary elements of a completed cause of action must be
included. The counterclaim must, moreover, be based on facts and not
on mere conjecture or speculation or on the deponent’s belief.

RITZ REISE (PTY) LTD v
AIR NAMIBIA (PTY) LTD 2007 (1) NR 222 HC ON 225.’

12.

In the present case it is
clear that the application for rescission of the default judgment
obtained by Standard Bank cannot be a defence or counterclaim to the
Plaintiff’s claim for ejectment and payment of a reasonable
rental against the Defendant who is in unlawful occupation of the
property of which he is the lawful owner.’’

13.

I fully agreed with the
submissions made by Mr Grobler and in the absence of any
representation and counter arguments by the respondent, I was
satisfied that a case for summary judgment was made out and for all
those reasons I granted the application for summary judgment.

The application for
summary judgment was granted for all those reasons.

_____________________

GN Ndauendapo

Judge

APPEARANCES

APPLICANT : Zacharias
Johannes Grobler

OF GROBLER & CO

RESPONDENTS: INPERSON