REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

CASE NO.: I 460/2014

In the matter between:

RIGHT – PATH INVESTMENT (PTY) LTD PLAINTIFF/APPLICANT

and

HEBEI XINJIAN CONSTRUCTION CC DEFENDANT/RESPONDENT

Neutral citation: Right – Path Investment (Pty) Ltd v Hebei Xinjian Construction CC (I 460-2014) [2014] NAHCMD 314 (22 October 2014)

Coram: UEITELE J

Heard: 21 October 2014

Delivered: 22 October 2014

Flynote: Practice — Judgments and orders — Summary judgment — Bona fide

defence — Defendant must satisfy court that he has bona fide defence — Defendant must

depose to facts which, if true, would establish defence — Defendant must disclose facts

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upon which defence is based — Court must be satisfied that defendant has a good defence

in law — Defendant must make full disclosure so that court apprised of all relevant facts.

Summary

Plaintiff instituted action against the defendant in which action he claims the delivery of

three motor vehicles namely a white Volkswagen T5 Transporter with registration letters

and number (N 5869 W), a Ford Ranger 3 liter Double Cab 4x4 with registration letters and

number (N 880-880 W) and a silver Land Rover Discovery 4 SDVS6 with registration letters

and number (N 898-898 W). In the alternative the plaintiff claims payment of N$200 000,

N$300 000 and N$650 000 respectively being the respective market values of the three

vehicles.

Defendant filed a notice to defend the plaintiff’s claim. After the defendant filed its notice to

defend the action the plaintiff filed an application for summary judgment against the

defendant. The defendant opposes the application for summary judgement and raised only

one defence, namely that the plaintiff is not the owner of the vehicles.

Held that although, the opposing affidavit is a wholly unsatisfactory document, is not a

model of clarity and is inelegantly drafted and pays little attention to the requirements of

rule 60(5)(b), the opposing affidavit just meets the minimum requirements of Rule 60(5)(b).

Held furthermore that the opposing affidavit appears to raise a bona fide defence and that it

has disclosed a defence and the material facts upon which it is founded. The court further

found that it is unable to say that the plaintiff's case is unanswerable and that there is no

reasonable possibility that defence raised by the defendant is good in law.

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ORDER

(a) Summary judgment is refused and the defendant is granted leave to defend the

action.

(b) The costs of the application for summary judgment are left over for determination by

the trial court.

(c) The matter is postponed to 05 November 2014 for Case Planning Conference.

JUDGMENT

UEITELE J

Introduction

[1] The plaintiff instituted action against the defendant in which action he claims delivery

of three motor vehicles namely a white Volkswagen T5 Transporter with registration letters

and number (N 5869 W), a Ford Ranger 3 liter Double Cab 4x4 with registration letters and

number (N 880-880 W) and a silver Land-Rover Discovery 4 SDVS6 with registration letters

and number (N 898-898 W) from the defendant. In the alternative the plaintiff claims

payment of N$200 000, N$300 000 and N$650 000 respectively being the respective

market values of the three vehicles.

[2] The defendant filed a notice to defend the plaintiffs claim. After the defendant filed its

notice to defend the action the plaintiff filed an application for summary judgment against

the defendant. The defendant opposes the application for summary judgment and a certain

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Mr Hongzhong Jiang the sole member of the defendant deposed to the affidavit on behalf

of the defendant and raised only one defence, namely that the plaintiff is not the owner of

the vehicles in question. I will, below, set out the plaintiff’s claim, the basis on which the

defendant opposes the application for summary judgment, the legal principles governing

summary judgment and finally apply those principles to the facts of the present case.

The plaintiff’s cause of action

[3] The plaintiff's cause of action is set out in paras 3, 4, 5 and 6 of the particulars of

claim as follows:

‘3 The plaintiff is the owner of three motor vehicles:

3.1 A white Volkswagen T5 Transporter single cab with licence number N 5869W

and VIN VVV1ZZZJZCX008464;

3.2 A Ford Ranger 3 liter Double Cab 4x4 with licence number N 880-880 W and VIN

AFATXXMJ2TBE11151; and

3.3 A silver Land Rover Discovery 4 SDVS6 with licence number N 898-898 W and

VIN SALLAAAF3CA622749.

4 The defendant came in possession of the vehicles from the latest beginning of 2013

with the full knowledge that the plaintiff is the owner of the vehicles.

5 If the defendant is no longer in possession of the vehicles the defendant intentionally

disposed of the vehicles or has caused its destruction negligently with the full

knowledge of the ownership of the plaintiff.

6 The market value of the vehicles are:

6.1 The Volkswagen T5 Transporter - N$ 200 000;

6.2 The Ford Ranger – N$ 300 000;

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6.3 The Land Rover Discovery 4 SDVS6-N$ 550 000.’

[4] Based on these allegations, the plaintiff claims delivery of the motor vehicles and if

defendant fails to deliver the vehicles the plaintiff claims the market value of the vehicles.

Grounds of defendant’s opposition of the summary judgment application

[5] The defendant resists the application for summary judgment on the grounds that the

plaintiff is not the owner of the three motor vehicles and in support of that denial the

defendant attached copies of the motor vehicle licence and licence discs issued under the

Road Traffic and Transport Act, 1999 ( Act 22 of 1999). The motor vehicle licence and

licence discs indicate the owner of these three as vehicles as Hebei Xinjian Construction

CC.

[6] I must now evaluate the plaintiff’s claim and the defendant’s resistance of the

application for summary judgment in the light of the requirements of rule 32(3)(b) as well as

the principles governing summary judgment.

Principles governing summary judgment

[7] The practise relating to summary judgments is governed by Rule 60 of the High

Court Rules. Rule 60(5) provides as follows.

‘(5) On the hearing of an application for summary judgment, the defendant may -

(a) where applicable give security to the plaintiff to the satisfaction of the registrar for any

judgment including costs which may be given; or

(b) satisfy the court by –

(i) affidavit which must be delivered before 12h00 on the court day but one

preceding the day on which the application is to be heard); or

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(ii) by oral evidence given with the leave of court, of himself 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 on.’

[8] The forerunner of rule 60 is rule 32 and that rule has been has been subjected to

many comments and judicial interpretations. From the comments and judicial

interpretations, the following have emerged. In the case of Commercial Bank of Namibia

Ltd v Transcontinental Trading1, Hannah AJ. (as then was) said:

‘First it is necessary to consider what it is that a respondent to an application for summary

judgment has to do in order successfully to 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

therefor’. 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 or 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, wither 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 particularly and completeness to enable the

Court to decide whether the affidavit disclose a bona fide defence’. 1 1991 NR 135 at page 143 E-I

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[9] In the case of Kelnic Construction (Pty) Ltd v Cadilu Fishing (Pty) Ltd2 Strydom J.P.

(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}

[10] The Supreme Court has laid down the principles governing applications for summary

judgments in the matter of Di Savino v Nedbank Namibia Ltd3. I find it appropriate to quote

(but I have omitted references to cases) in detail what Ngcobo AJA (Shivute CJ and

Mainga JA concurring) said:

‘[24] The enquiry that the court must conduct is foreshadowed in rule 32(3)(b) and it is

this: first, has the defendant 'fully' disclosed the nature and grounds of the defence to be

raised in the action and the material facts upon which it is founded; and, second, on the

facts disclosed in the affidavit, does the defendant appear to have, as to either the whole or

part of the claim, a defence which is bona fide and good in law. If the court is satisfied on

these matters, it must refuse summary judgment, either in relation to the whole or part of the

claim, as the case may be.

[25] While the defendant is not required to deal 'exhaustively with the facts and the

evidence relied upon to substantiate them', the defendant must at least disclose the defence

to be raised 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'. Where the statements of fact are ambiguous or fail to canvass matters essential

to the defence raised, then the affidavit does not comply with the rule.

[26] Where the defence is based on the interpretation of an agreement, the court does

not attempt to determine whether or not the interpretation contended for by the defendant is

2 1998 NR 198 at page 201 C-F3 2012 (2) NR 507 (SC)

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correct. What the court enquires into is whether the defendant has put forward a triable and

arguable issue in the sense that there is a reasonable possibility that the interpretation

contended for by the defendant may succeed at trial, and, if successful, will establish a

defence that is good in law. Similarly, where the defendant relies upon a point of law, the

point raised must be arguable and establish a defence that is good in law.

[27] But the failure of the affidavit to measure up to these requirements does not in itself

result in the granting of summary judgment. The defect may, nevertheless be cured by

reference to other documents relating to the proceedings that are properly before the court.

In Sand and Co Ltd v Kollias the court held that the principle that is involved in deciding

whether or not to grant summary judgment, is to look at the matter 'at the end of the day' on

all the documents that are properly before the court.

[28] This approach to the opposing affidavit in summary judgment is a recognition of the

drastic nature of the remedy of summary judgment. It offends against the fundamental right

of a litigant to have access to court and be heard. Its aim is to protect the plaintiff against a

defendant who has no bona fide defence and who has entered appearance to defend to

delay the recovery of the debt and whose conduct thus amounts to an abuse of the process

of court. But it 'was never intended to replace the exception as a test of one or other of the

parties' legal contentions; nor to provide the plaintiff with a unilateral advantage of the

preview of defendant's evidence . . .'

[29] But where the opposing affidavit does not satisfy the requirements of rule 32(3)(b),

the court has a discretion under rule 32(5) whether or not to refuse summary judgment. This

discretion must be exercised with due regard to the drastic nature of the procedure of

summary judgment. In Arend and Another v Astra Furnishers (Pty) Ltd Corbett J (as he then

was) put the matter thus:

“In my view, an important factor to be taken into account by the Court in determining

how to exercise its discretion is the consideration that the procedure of summary

judgment constitutes an extraordinary and very stringent remedy: it permits a final

judgment to be given against a defendant without a trial. It is designed to prevent a

plaintiff having to suffer the delay and additional expense of the trial procedure where

the defendant's case is a bogus one or is bad in law and is raised merely for the

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purpose of delay, but in achieving this it makes drastic inroads upon the normal right

of a defendant to present his case to the Court.”

[30] This, of course, must not be understood as minimising the importance of complying

with rule 32(3)(b). For the court to consider whether the facts alleged by the defendant

constitute a good defence in law and whether the defence appears to be bona fide, the court

must be appraised of the facts upon which the defendant relies. It is for this reason that the

rule prescribes that the nature and grounds of the defence and the material facts relied upon

therefor must be fully disclosed in the affidavit. In addition, the contents of the affidavit will

enable the court to decide whether or not to exercise its discretion to refuse summary

judgment.

[11] The flexibility with which the defendant’s affidavit must be assessed is articulated as

follows by Van Niekerk, Geyer and Mundel4:

‘3.7.1 The defendant’s opposing affidavit is not to be assessed with the precision of a

plea.

The principle itself is trite, but what does it mean? Its obvious implication is that a

less technical interpretation is to be applied to the opposing affidavit than to a

pleading. A court is, therefore, entitled to apply a more accommodating approach

thereto. Furthermore, the defendant is not obliged to disclose all of his defences in

the opposing affidavit. A court is also not necessarily bound to the manner in which

the defendant has presented his case and his entitled to ascertain from the content

of the affidavit itself what the defendant actually intended to say.

3.7.2 Mere Dispute Formulation Inadequate.

A defence must go beyond the mere formulation of disputes and must disclose the

grounds upon which he disputes the plaintiff’s claim with reference to the material

facts underlying the disputes raised.

3.7.3 Necessary allegations are to be made.

4 In their book, Summary Judgment Practical Guide, (Lexis Nexis) service issue no 6

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Although the opposing affidavit need not focus upon each and every particular and

the defence need not be presented with the precision of plea, the affidavit must at

least disclose the material facts of the defence. Vague allegations do not suffice –

the court is not obliged on the defendant’s behalf to search for a defence between

loosely made allegations. The defendant must state his defence unequivocally or, at

the very least, a defence must appear from the content of the opposing affidavit. The

defendant cannot rely on the court to make deductions.’

[12] Having restated the principles governing summary judgment I will now apply these

principles to the facts of this case.

Does the opposing affidavit meet the requirements set in Rule 60(5)? [13] I have no doubt in my mind that the opposing affidavit is a wholly unsatisfactory

document. It is not a model of clarity. It is inelegantly drafted and pays little attention to the

requirements of rule 60(5)(b). The defendant simply makes the following allegations in its

opposing affidavit:

‘5 The Plaintiff is not the owner of the said motor vehicles and Defendant hereby

annexed proof of ownership of (1) the Volkswagen Transporter (N 5869 W) being

Certificate of Registration in respect thereof marked as Annexure “HXC 1”. (2) the

Ford Ranger 3 Double-Cab 4x4 (N 880880 W) being Certificate of Registration in

respect thereof marked as Annexure “HXC 2”. (3) the Land Rover Discovery 4

SDVS6 (N 898898 W) being Certificate of Registration in respect thereof marked as

Annexure “HXC 3”.

6. The Plaintiff authorised the transfer of ownership of the said three motor vehicles into

the name of the Defendant as clearly indicated in Annexure “HXC1”, “HXC 2” and

“HXC 3”.

7. The transfer of ownership of the;

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(1) Volkswagen Transporter took place on 9 December 2013 as per Annexure

“HXC 4” annexed hereto;

(2) Ford Ranger on 29 November 2013 as per Annexure “HXC 5” annexed

hereto; and

(3) the Land Rover Discovery took place on 4 October 2013 as per Annexure

“HXC 6” annexed hereto.’

[14] The opposing affidavit does not set out the material facts relied upon for the

allegation that the plaintiff transferred ownership in the vehicles, to whom the transfer was

made and the reason for the transfer of ownership. But when I consider the opposing

affidavit as a whole and in the light of the particulars of claim and the annexures, this is

what they appear to convey: The plaintiff did part with its ownership of the vehicles

sometime between October 2013 and December 2013. As a result of this parting with

ownership, the plaintiff is at the time of instituting the action not the owner of the movable

property.

[15] Mr Barnard who appeared for the plaintiff argued that:

‘The defendant thus admits that the plaintiff was the owner of the motor vehicles at some

stage but alleges that this ownership was transferred from the plaintiff to the defendant. As

the plaintiff relies on ownership, and ownership of the plaintiff at some stage is conceded,

the defendant bears the onus and must allege facts to establish that ownership was

transferred and that the defendant is now the owner and has the right to possession of the

motor vehicles.

He cites as authority for that proposition the case of Shukifeni v Tow-in-Specialist CC5. He

proceeded and argued that

‘The defence that ownership was transferred from plaintiff to defendant is a special defence.

The defendant alleges that the plaintiff authorized the transfer of ownership. The defendant

5 2012 (1) NR 219 (HC)

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alleges that the status quo had been changed and for this reason as well bears the burden

of proof.

He cites as authority for that proposition the case of Gamikaub (Pty) Ltd v Schweiger6 .

[16] I do not agree with Mr Barnard, the matter of Shukifeni7 is no authority for the

argument he advances. I incidentally delivered the judgment in that matter and in that

matter I said the following:

‘[18] Badenhorst et al in Silberberg and Schoeman's Law of Property 5ed at 93, argue

that one of the characteristics of ownership which is emphasized is that: 'ownership

is a ''mother right'' in the sense that it confers the most comprehensive control over a

thing. . .' and at 241 argues that '. . . it is still generally accepted that owners exercise

and retain control over property, thereby justifying extensive protective measures

when ownership or entitlements are infringed'.

[19] There is a principle in our law that an owner cannot be deprived of their property

against their will, this means that 'an owner is entitled to recover property from any

person who retains possession of it without the owner's consent. . .'. This principle

was considered in the case of Chetty v Naidoo 1974 (3) SA 13 (A).

[20] Badenhorst et al supra at 241 argue that:

'An owner who institutes a rei vindicatio to recover his or her property is required

to allege and prove:

(a) that he or she is the owner of the thing;

(b) that the thing was in the possession of the defendant at the commencement

of the action; and

(c) that the thing which is vindicated is still in existence and clearly identifiable.'

6 2008 (2) NR 464 (SC)7 Supra at footnote 5

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[21] In the South African case of Akbar v Patel 1974 (4) SA 104 (T), Trengove J said the

following:

'According to our law, where a plaintiff's claim for the recovery of possession or

for ejectment is based on his ownership of the property involved, his cause of

action is simply the fact of his ownership coupled with the fact that possession is

held by the defendant. (Graham v Ridley 1931 TPD 476; Krugersdorp Town

Council v Fortuin 1965 (2) SA 335 (T) at 336 and the authorities there cited.)'

[109G.]

[22] In Unimark Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T)

Van der Westhuizen AJ said at 996:

'The plaintiff's claim is — in the first place — based upon the rei vindicatio, which

is the applicable action available to an owner, who has been deprived of his or her

property against his or her will and who wishes to recover the property from any

person who retain possession of it without the owner's consent. . . The plaintiff in

order to succeed is required to allege and prove:

(a) that he is the owner of the thing or items in issue; and

(b) that the items were in the possession of the defendant at the

commencement of the action. . . .'

[23] For the defendant to successfully resist a rei vindicatio action, he must allege and

prove some right to hold possession. In Chetty v Naidoo supra Jansen JA said at

20B – D:

'It is inherent in the nature of ownership that possession of the res should normally

be with the owner, and it follows that no other person may withhold it from the

owner, unless he is vested with some right enforceable against the owner (e g, a

right of retention or a contractual right). The owner, in instituting a rei vindicatio,

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need, therefore, do no more than allege and prove that he is the owner and that

the defendant is holding the res — the onus being on the defendant to allege and

establish any right to continue to hold against the owner (cf Jeena v Minister of

Lands 1955 (2) SA 380 (A) at 382E, 383).’ (Italicized and underlined for

emphasis).

[17] From the above it is quite clear that a person who institutes a rei vindicatio need to

allege and prove that he is (not was) the owner of the thing vindicated and that the

defendant is holding the res. Only if the plaintiff has succeeded in discharging the onus

resting on him does the onus rest on the defendant to allege and establish any right to

continue to hold property against its owner.

[18] When I view this matter ' as a whole at the end of the day' and in the light of all the

documents that are properly before the court in particular the plaintiff’s particulars of claim

wherein the plaintiff simply makes the bald and unsubstantiated allegation that it is the

owner of the vehicles and admits that it lost possession of the vehicles but does not

disclose how, or why it lost possession of the vehicles and the defendant’s allegation that it

is the owner of the vehicles and the certificates of registration reflecting it as the owner of

the vehicles, I consider that the opposing affidavit just meets the minimum requirements of

Rule 60(5)(b).

[19] In addition I am satisfied that the opposing affidavit appears to raise a bona fide

defence and that it has disclosed a defence which if at the trial is proven is good in law and

the material facts upon which it is founded . I am furthermore unable to say that the

plaintiff's case is unanswerable and that there is no reasonable possibility that defence

raised by the defendant is good in law. In these circumstances, this is an appropriate case

for the exercise of the discretion in favour of refusing summary judgment. It follows, in my

view, that the defendant is entitled to be granted leave to defend the action against it.

[20] The only aspect that now remains to be considered is the question of costs. The

costs of the application for summary are, in my opinion, best determined by the trial court.

In the result, I make following:

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(a) Summary judgment is refused and the defendant is granted leave to defend the

action.

(b) The costs of the application for summary judgment are left over for determination by

the trial court.

(c) The matter is postponed to 05 November 2014 for Case Planning Conference.

----------------------------SFI Ueitele

Judge

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APPEARANCES:

PLAINTIFF: P Barnard

Instructed by P D Theron & Associates

DEFENDANT: C Brandt

Of Chris Brandt Attorneys