NOT REPORTABLE

CASE NO: (P) I 366/2008

IN THE HIGH COURT OF NAMIBIA

MAIN DIVISION

HELD AT WINDHOEK

In the matter between:

THE GOVERNMENT OF THE REPUBLIC OF
NAMIBIA
......................................APPLICANT

and

AINA NELAGO IMBILI
…...................................................................................RESPONDENT

CORAM: HOFF, J

Heard on: 08 August 2008

Delivered on: 22 March 2012

JUDGMENT

HOFF, J: [1] This
is an application for summary judgment which is opposed by the
respondent.

[2] The applicant claims payment in
the amount of N$98 287.13 plus interest at the rate of 16% per
annum from 1 June 2008 to date of payment.

In the alternative applicant claims
payment in the amount of N$124 152.54 plus interest at the rate of
20% per annum from date of judgment to the date of payment.

[3] The particulars of claim stated
that the respondent was employed by the applicant as a teacher from 1
June 1996 until 31 May 2006 on which latter date the respondent had
resigned from her employment.

[4] During the period 1 October 2001
until 30 September 2004 the respondent was granted study leave on a
full time basis to enable respondent to pursue undergraduate studies
in psychology at the University of Luton, England and the respondent
remained absent from her employment for the whole of this period.

[5] The applicant and respondent
entered into a written agreement of which the material terms were the
following:

“1. that
immediately after her studies the defendant would return to the
Public Service in the Ministry of Basis Education for a continuous
period corresponding with the period of special leave granted in any
capacity for which she may be regarded suitable;

2. the respondent was
granted study leave for the period of 218 days of which half (109
days) was special leave for study purposes;

3. respondent complied
with her obligations by resuming her work after studies on 18 January
2005 and remaining in the employ of the applicant until 26 July 2005.

[6] The special leave was granted with
full remuneration for the period 22 September 2003 until 31 December
2004 inter alia on the following conditions:

“(a) respondent
would sign the prescribed contract in terms of the Public Service
Staff Rules D.I Part XI;

(b) defendant would
resume her normal duties as teacher immediately after expiry of the
period of study or the extended period of study and thereafter to
continuously serve the State for at least two years for every year
for which she was released for study;

(c) upon failure to carry
out her obligations set out in paragraph (b) (supra) defendant
would immediately refund to applicant all moneys received by her from
the State during the period of special study leave together with
interest thereon at the rate determined by the Ministry of Finance
per annum calculated from the date of breach of contract. The
amount shall be reduced pro rate for every full month of service
rendered by the respondent

(d) the applicable
interest rate determined by the Ministry of Finance was 16%.”

[7] Applicant in the particulars of
claim stated that the respondent failed to sign aforesaid agreement.
Applicant provided respondent with her full remuneration during the
period she was on study leave.

Applicant pleaded that respondent as a
staff member of the Public Service was aware or ought to have been
aware of the contents of the Public Service Staff Rules and was bound
by such Rules including Public Service Staff Rule D.I/XI which
encapsulates the provisions relating to special study leave on
remuneration.

[8] Applicant further pleaded that
there was thus a tacit contract between the parties.

[9] Applicant pleaded that the
respondent only served 10 months in respect of the period of 4 years
she was required to serve in the employ of the State and thus
breached the contract as she was required to remain in applicant’s
employ for the additional period of 3 years and 2 months.

[10] The respondent was therefore
liable to refund applicant salary payments for the period of 38
months which amounted to N$98 287.13.

[11] In the alternative applicant
pleaded defendant was unduly enriched in the amount of N$124 152.54
being the total amount paid to her as remuneration while absent from
office for study leave purposes.

[12] Mr Vitalis I Ankama, the
Permanent Secretary at the Ministry of Education, in his founding
affidavit in support of the application for summary judgment repeated
the claims, referred to supra, and the basis how the amounts
were calculated.

[13] The respondent in her answering
affidavit denied any liability. She stated that during her study
leave she had applied for special study leave in order to complete
her MSc in Phycology for the period September 2002 until September
2003. This application was unsuccessful. She stated that the special
study leave with full remuneration relied on by the plaintiff only
came to her attention during the course of 2007. According to her
this agreement is invalid and does not bind her on account of the
fact that she had no knowledge about it.

[14] Respondent further stated in
paragraph 11 of her answering affidavit that the plaintiff stopped
her salary effective from 21 June 2002 until 21 September 2003
without valid cause or explanation and that the plaintiff only
reinstated her salary effective from 22 September 2003 until 31
December 2004.

[15] Respondent confirmed that she
resumed duties as a teacher on 1 January 2005 and resigned on 31 may
2006 and that she had worked for a period of seventeen months and not
ten months as averred by the plaintiff. She denied that she had
breached the contract with the plaintiff and denied that she was
obliged to remain in plaintiff’s employ for the additional
period of three years and two months. According to her she has a
bona fide defence to plaintiff’s claim and that appearance
to defend has not been entered solely for the purpose of delay.

[16] Mr Swanepoel who appeared on
behalf of the applicant submitted in regard to the claim against the
respondent, that such claim is based on a tacit contract between the
parties. Should this Court find there existed no such tacit contract
the alternative claim is based on enrichment, i.e. that the
respondent had received monies paid to her to which she was not
entitled to.

[17] Mr Swanepoel further submitted
that respondent’s opposing affidavit discloses no bona fide
defence to the applicant’s claim. It was submitted that the
requirement is that respondent’s opposing affidavit must set
out facts which if proved at the trial would constitute a defence to
plaintiff’s action and that failure to allege an essential
element of the defence may result in summary judgment being granted.
It was submitted that the opposing affidavit of the respondent did
not disclose such essential element and that the application for
summary judgment should succeed.

[18] It is common cause that no
written contract was signed between the parties in relation to the
special leave granted to the respondent. It is also not in dispute
that the crux of the claim of the applicant relates to the
remuneration the respondent had received during the period 22
September 2003 to 31 December 2004. The respondent does not deny
receipt of such remuneration during aforesaid period.

[19] Mr Ipumbu who appeared on behalf
of the respondent submitted that the defence of the respondent is one
of set off. He referred to paragraph 11 of respondent’s
opposing affidavit in which she stated inter alia that the
applicant had stopped the payment of her salary for the period 21
June 2002 until September 2003 without a valid cause or any
explanation and that as a result of the unlawful conduct of the
applicant she was left without means to finance her studies.

[20] The respondent admitted that
special leave was granted but not with full remuneration as claimed
by the applicant. Respondnet attached to her opposing affidavit a
letter from the acting director in the Ministry of Basic Education,
Sport & Culture dated 16 September 2002 which motivated the
decision why the Ministry could not grant study leave with full
remuneration to the respondent.

[21] Mr Ipumbu submitted the period
during which the Ministry of Basic Education failed to pay the salary
of the respondent (i.e. 21 June 2002 until 21 September 2003)
corresponds with the period which the respondent admitted she
received payment of her salary from the Ministry (i.e. from 22
September 2003 until 23 December 2004). The months contained in each
of aforementioned periods are about 15 months.

It was thus submitted by Mr Ipumbu
that the amount received by the respondent for the period 22
September 2003 until 31 December 2004 was the amount the applicant
should have paid respondent for the period 21 June 2002 until 21
September 2003.

[22] Mr Swanepoel submitted that the
respondent had failed to raise set off as a defence in her opposing
affidavit and thus failed to prove a bona fide defence. It was
submitted that there is not evidence in the opposing affidavit that
the respondent was entitled to remuneration for the period 21 June
2002 until 21 September 2003.

[23] Regarding the existence of a
tacit contract, the following principle is axiomatic: it is possible
to make an offer tacitly which may be tacitly or expressly accepted.
The primary test is whether an agreement can be inferred from the
proved facts and circumstances.

Every offer and every acceptance
thereof must be “unequivocal i.e. positive and unambiguous”.

(See Boerne v Harris 1949 (1)
SA 793 (A) at 799).

The plaintiff must produce evidence
which justifies an inference that the parties intended to, and did,
contract on the terms alleged, in other words, that there was in fact
consensus ad idem.

(See Gordon Lloyd Page &
Associates v Rivera 2001 (1) SA 88 (SCA) at 95 – 96).

[24] The applicant contends that the
respondent received remuneration for in respect of special leave
granted to her during aforementioned period. It appears from a letter
attached to respondents opposing affidavit that the Ministry of Basic
Education in fact disapproved that any remuneration be paid to the
respondent in respect of the special leave granted to her.

[25] It is impossible for this Court
in view of the dispute between the parties to infer that a tacit
contract was proved by the applicant.

[26] In respect of the alternative
claim of enrichment the respondent’s case is that she was
entitled to the monies paid to her and there could have been no
possibility that she had been enriched at the expense of the
applicant.

[27] Although the respondent in her
opposing affidavit did not categorically mention set off she stated
in her opposing affidavit that the applicant acted unlawfully by
withholding her salary for the period 21 June 2002 until 21 September
2003.

A defendant in order to avoid a
summary judgment must depose to allegations which if accepted as the
truth or subsequently proved at the trial will constitute a defence
to the plaintiff’s claim. It is further trite law that a
defendant must disclose the nature and grounds of his defence.

[28] A summary judgment is an
extra-ordinary remedy which closes the door to the defendant and will
only be granted to a plaintiff who has in effect an unanswerable
case.

[29] In Maharaj v Barclays National
Bank Ltd 1976 (1) (SA) 418 (AD) at 432 Corbett JA remarked that a
summary judgment is an extraordinary and drastic remedy and is based
upon the supposition that the plaintiff’s claim is
unimpeachable and that the defendant’s defence is bogus or bad
in law.

(See also Standard Krediet
Korporasie v Botes 1986 (4) SA 946 (SWA).

[30] There is ample authority that
summary judgment should be refused in the face of any doubt whether
to grant it or not.

This principle is founded on the
consideration that an erroneous finding in summary judgment
proceedings has more drastic consequences for a defendant than for a
plaintiff.

A court has a discretion (which must
be judicially exercised) to refuse summary judgment even if the
defendant has not in an opposing affidavit disclosed a bona fide
defence.

[31] In Gilinski v Superb
Launderers and Dry Cleaners (Pty) Ltd 1978 (3) SA 807 (CPD) at
811 E – F the following was stated regarding a court’s
approach in cases of doubt:

“It is important to
note that a decision as to whether a plaintiff’s claim is
unanswerable or not must be founded on information before the Court
dealing with the application. This information is derived from the
plaintiff’s statement of case, the defendant’s affidavit
or oral evidence and any documents that might properly be before the
Court. It would be inappropriate to allow speculation and conjecture
as to the nature and ground of the defence to constitute a substitute
for real information as to these matters. On the other hand, even if
a Court concludes that such information as is disclosed by defendant
in his affidavit is not a sufficient compliance with the provisions
of Rule of Court 32(3), it may nevertheless consider that it is
sufficient to raise a doubt as to whether plaintiff’s case can
be characterised as “unanswerable”. In that case the
Court would in the exercise of its discretion refuse summary
judgment.”

[32] In the matter of Fashion
Centre and Another v Jasat 1960 (3) SA 221 NPD at 222 B the
following was said regarding summary judgment:

“To keep it in
perspective, however, one must remember that summary judgment is a
drastic and extraordinary remedy involving the negation of the
fundamental principle audi
alteram partem,
and resulting in final judgment which is normally only granted in
clear cases, and where there is any doubt, in which latter event
leave to defend ought to be given.”

[33] In First National Bank of SA
Ltd v Myburgh and Another 2002 (4) SA 176 CPD the court expressed
itself as follows on 180 A – F:

“The defendant, in
order to resist summary judgment, must satisfy the Court that he has
a defence which is good in law and bona
fide.
Rule 32(3)(b) of the Uniform Rules of Court requires the defendant to
disclose fully the nature and grounds of the defence and the material
facts relied upon by the defendant for the defence. Such information
must be disclosed with sufficient particularity and completeness to
enable the Court to properly evaluate the defence and decide whether
or not the affidavit discloses a bona
fide
defence which is good in law.

(Maharaj v Barclays
National Bank Ltd (supra at 426 A – D); Arend and
Another v Astra Furnisher (Pty) Ltd 1974 (1) SA 298 (C) at 303 H
– 304 A; District Bank Ltd v Hoosain and Others 1984 (4)
SA 544 (C)at 547 I – 548 A – B).

Summary judgment is
designed to give plaintiff a speedy and cost-effective remedy in the
case where the defendant does not disclose a valid and bona fide
defence. It is an extraordinary and stringent remedy. It has the
hallmark of a final judgment and closes the door to the defendant to
ventilate his defence at the trial. (Maharaj v Barclays National
Bank Ltd (supra at 423 F – G) and Arend and Another v
Astra Furnishers (Pty) Ltd (supra at 304 F – G) ).

Because of the drastic
nature of the relief sought, the Court has, in terms of Rule 32(5), a
discretion to grant the defendant leave to defend the action even
where he has failed to comply with Rule 32(3)(b). The Court will
grant summary judgment where plaintiff has an unanswerable case. If
the Court has the slightest doubt, the Court will not grant summary
judgment. (Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A)
at 347 H; Gilinski v Superb Launderers And Dry Cleaners (Pty) Ltd
1978 (3) SA 807 (C) at 811 E – H).”

[34] It appears to me that the
applicant has approved the special leave granted to the respondent
but disapproved full remuneration during such period, and therefore
the respondent has a bona fide defence on the basis the monies paid
to her during the special leave period were monies she had been
entitled to during the earlier period when the payment of her salary
had been stopped by the applicant.

In any event even if it is accepted
that the opposing affidavit of the respondent disclosed no bona fide
defence her opposing affidavit contains sufficient information to
raise a doubt as to whether applicant’s case can be
characterised as “unanswerable”.

[35] In view of the aforementioned I
am of the view that this court’s discretion should be exercised
against granting the application for summary judgment.

[36] In the result the following
orders are made:

1. 
   The application for summary judgment
   is dismissed with costs.

   
   

2. 
   Respondent is granted leave to defend
   the action.

   
   

________

HOFF, J

ON BEHALF OF THE APPLICANT: MR
SWANEPOEL

Instructed by: GOVERNMENT ATTORNEY

ON BEHALF OF THE RESPONDENT: MR T
IPUMBU

Instructed by: TITUS IPUMBU LEGAL
PRACTITIONERS