REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO. I 2735/2015

In the matter between:

TUNGENI AFRICA INVESTMENTS (PTY) LTD PLAINTIFF/APPLICANT

and

NAMIBIA WATER SKI CLUB 1ST TO 74TH DEFENDANTS/RESPONDENTS

Neutral citation: Tungeni Africa Investments (Pty) Ltd v Namibia Water Ski

Club & Others (I 2735/2015) [2016] NAHCMD 232 (12

August 2016)

CORAM: MASUKU J;

Heard: 12 July 2016

Delivered: 12 August 2016

FLYNOTE: RULES OF COURT – Rule 60 – application for summary

judgment-eviction from leased property.

NOT REPORTABLE

SUMMARY: The plaintiff sued the defendants for ejectment from property it is

leasing from Namibia Wildlife Resorts. It alleges that the defendants have no

legal basis to occupy the property and as such it seeks an ejectment order as

well as costs of suit. The defendants contend that the plaintiff has no right to

eject them from the property as the plaintiff is a sub- lessee in respect of

property belonging to the Government of the Republic of Namibia (GRN), with

whom the defendants had a valid lease agreement which ended due to

effluxion of time. The defendants contend further that they made

improvements on the property and for which they should be compensated

thus constituting a lien over the property in question. These were the bases

on which the summary judgment was opposed.

Held that - before a Court will exercise its discretion in favour of a defendant

in summary judgment proceedings, there must be some factual basis, or

belief, set out in the affidavit resisting summary judgment, which will enable

the court to say that there was some reasonable possibility, that something

will emerge at the trial, and that the defendant would still be able at the trial to

establish its defences.

Held further that – the allegation that the defendants claim to have a lease

agreement with the GRN, though disputed, may, if carefully considered, raise

what may be regarded a triable issue. It was therefore not necessary for this

court to deal with the defendants’ main defences raised in the affidavit

resisting summary judgment.

Held further that – there is a related claim by the defendants against the GRN,

which would render it to some extent unfair for the court in the current

proceedings, to give in to the plaintiff’s entreaties and to grant summary

judgment. The court held that this was so for the reason that, if the

defendant’s claim against the GRN is proved at trial, it puts them in a stronger

position than the plaintiff regarding their occupation of the property. On the

other hand, if summary judgment is granted as prayed, the defendants would

be denied the opportunity and right to defend the counterclaim for ejectment

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launched against them by the GRN as they would already have been evicted

in terms of an order of court in the current proceedings.

On this basis, the court concluded that it was proper for it to grant the

defendants leave to defend and to have both case at hand and the related

matter proceed in tandem as they involve the same parties and essentially

raise, at least in part, the substantially the same issues.

Testimony to this was that both matters had already been consolidated by an

order of court.

The application for summary judgment was thus refused and costs thereof

were ordered to be dealt with at the main trial.

ORDER

1. The application for summary judgment is refused.

2. The costs occasioned by the refusal of the summary judgment

application shall be determined by the trial court.

3. The defendants are ordered to file their respective pleas (or any

other pleading that they may be allowed by the rules law to file at

this stage) and counterclaims, if any, within 15 days from the date

of this order.

4. The plaintiff is ordered to file its replication or such other pleading

that it may be minded to file within 10 days of the last date of filing

of the plea and counterclaim by the defendant.

5. Should the defendants file a counterclaim, the plaintiff shall be

entitled to file its plea thereto within 10 days from the filing of the

counterclaim and in which event the defendant shall file its

replication within 10 days of the filing of the plea.

6. This matter, together with Case No. I 1391/2009, are hereby

postponed to 19 October 2016 for case management.

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7. The parties are ordered to file a proposed joint case management

report in respect of both matters at least 3 days before the date to

which the matters are postponed in para immediately 5 above.

JUDGMENT

MASUKU J:,

Introduction

[1] This is an opposed application for summary judgment. In the main, the

plaintiff’s claim is for the ejectment of the 1st, 2nd and 4th to 25th defendants

from certain immovable property described below and for ancillary relief.

The pleadings

[2] It is important to briefly, but concisely set out the facts that give rise to

the application. They acuminate to the following: By combined summons

dated 4 August 2015, the plaintiff sued defendants in the main for ejectment

from premises described as ‘Von Bach Area’ in the District of Okahandja,

Republic of Namibia. The plaintiff also prayed for costs of suit from the

defendants.

[3] The basis for claiming the ejectment of the defendants is that on 17

July 2008, the plaintiff and the Namibian Wild Resorts (NWR), a company

established in terms of the provisions of the Companies Act,1 entered into a

long-term lease agreement in respect of the property described above, called

‘the Von Bach area’. A copy of the said lease agreement was attached to the

pleadings. It is further alleged that the ‘Von Bach’ Area is a tourism business

of the 74th defendant, the NWR, which was being carried out within the

jurisdiction of the Ministry of Environment and Tourism.

1 Act 3 of 1998.

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[4] It is further alleged that on 19 July 2008, the plaintiff and the 74 th

defendant amended the lease agreement referred to above in order to

describe the leased property as ‘the property surveyed and approved by the

Surveyor-General, as detailed in Sheet No. 1 and 2 (No. A778/2007), totalling

470.0504 hectares’. A copy of the amendment is also annexed.

[5] It is also alleged that from the beginning of January 2013, to date, the

1st to the 69th defendants unlawfully occupied a portion of the Von Bach

property and continue to do so without any lawful basis. It is further averred

that the said occupation is not predicated on any lawful basis, as the plaintiff

never, at any stage granted the said defendants permission to occupy the

said immovable property. In addition to the ejectment, the plaintiff also seeks

an order declaring the occupation of the said property by the defendants

unlawful.

[6] After the defendants filed their notice of intention to defend, the plaintiff,

as entitled to at law, filed an application for summary judgment. The pith of the

defendants’ defence, as foreshadowed in their affidavit resisting summary

judgment, deposed to by Mr. Marius Kamfer and confirmed by other affidavits,

is basically that the defendants entered into a written lease agreement with

the Government of the Republic of Namibia (the ‘GRN’), and which agreement

came to an end by the effluxion of time. During their occupation of the

property, however, the defendants further claim, they effected certain

improvements on the property and for which they are liable to be

compensated by the GRN.

[7] The second basis for opposing the summary judgment application is

that the plaintiff, itself being a sub-lessee of the property in question from the

NWR, which is itself a lessee of the property from the GRN, does not have the

power at law to let property not belonging to it. In this regard, reference is

made to certain provisions of the Namibia Wildlife Resorts Company Act,2 (the

‘Act’). It is contended that the plaintiff acted in contravention of this Act and

2 Act No. 3 of 1990.

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accordingly does not have the power to itself have entered into a lease

agreement with the NWR.

[8] Depending on how the matter pans out, it may be necessary to

examine these two defences raised by the defendants in order to come to a

view whether these do stand up to scrutiny within the auspices of an

application for summary judgment, which is a hybrid proceeding that in a

sense binds action and application proceedings in matrimony, so to speak. I

intend, in this regard, to briefly refer to the law applicable to summary

judgment as found in case law. It is with the application of the principles

enunciated therein that I will be properly placed to decide in a conclusive

fashion whether the defendant’s defences put up as indicated above, meet

muster.

The law applicable to summary judgment

[9] Summary judgment applications are governed by the provisions of rule

60 of this court’s rules. This rule prescribes that such applications are

competent in claims relating to a liquid document, a liquidated amount in

money, delivery of specified property and for ejectment.3 In this regard, it is

clear that the application in question falls within the permissible actions one

can bring under this rule as it relates to ejectment and costs.

[10] Furthermore, a summary judgment application should be granted

where the court is of the opinion, based on an allegations made by the

applicant for summary judgment, that the defendant has no bona fide defence

but has filed the notice of intention to defend solely for the purpose of delaying

the plaintiff from reaping the fruits of the judgment that have fructified as it

were.4 In persuading the court to find that the defendant has a bona fide

defence, the defendant is required by the rules5 to state on oath that he or she

has a bona fide defence. The affidavit filed by the defendant, making this

3 Rule 60 (1) (a) to (d).4 Rule 60 (2) (b).5 Rule 60 (5) (b).

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allegation must, according to the rules, ‘disclose fully the nature and grounds

of the defence and the material facts upon which the defence is predicated’.

[11] Once this procedure has been followed, and the plaintiff is of the view,

after the defendant has filed the affidavit opposing summary judgment, that

there may be deficiencies or grey areas meriting further clarification by way of

evidence in addition to the affidavit filed in support of the application, the rules

proscribe such evidence from being led by or on behalf of the plaintiff.6 This

effectively means that the plaintiff, for all intents and purposes, stands or falls

by the affidavit filed in support of the application for summary judgment, thus

eschewing the need for the plaintiff to file any affidavit in reply, which is

otherwise a normal and necessary course in relation to normal application

proceedings.

[12] Depending on the nature of the claim and the indication of the defence,

the plaintiff may place more facts in support of its application for summary

judgment than the bare allegations required by the rules. If the plaintiff

confines its affidavit in support of the application solely to the bare minimum

requirements, such affidavit should contain, as set out in the rules as

discussed above, it may well have shot itself in the foot as it will not have an

opportunity to respond to whatever allegations the defendant makes in the

opposing affidavit.

[13] It does make sense to me as to why the rule, as referred to

immediately above, was couched in the manner it was. I say so because if it

were otherwise and a plaintiff was entitled to reply to the defendant’s

opposing affidavit, then it would mean that there is indeed a triable issue that

the defendant would have raised and which fact would consequently serve

destroy and render inappropriate the summary nature of the proceedings.

[14] It has often been stated that summary judgment is an extra-ordinary

remedy in that it tends to close the portals of the court in the face of the

defendant in final fashion without going through the motions of a full and 6 Rule 60 (6).

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proper trial. This position, I must state, is often overstated. This skewed view

inevitably results in the summary judgment procedure being treated as though

the defendant was not heard altogether and contemporaneously presents

summary judgment as a wicked weapon of injustice and oppression, which

allows a defendant to be judged without a proper and full hearing in

contravention of the right to a fair trial.

[15] In First National Bank of Namibia v Ben-Tovim,7 this court cited with

approval the sentiments expressed by the learned author Van Niekerk,8 about

the often exaggerated injudicious nature and deleterious impact of summary

judgment on the defendant’s right to a fair hearing. The learned author said

the following in this regard:

‘. . . this hackneyed refrain is judicial anachronism. The remedy does not bar

a defendant from the courts; furthermore, it is not unusual that judgment “without a

trial” is granted exclusively on affidavits. The audi alteram partem principle is not

violated as a defendant is given an opportunity to present his case.’

[16] In Agra Co-Op Ltd v Aussenkehr Farms (Pty) Ltd,9 Strydom JP stated

the following regarding what the court must take into account in deciding

whether or not to grant summary judgment:

‘However, before a Court will exercise its discretion in favour of a defendant

there must be some factual basis, or belief, set out which will enable the court to say

that there was some reasonable possibility, that something will emerge at the trial,

and the defendant would still be able at the trial to establish its defences.’

[17] In Namibia Breweries Limited v Serrao,10 the court stated the position

applicable to the exercise of the discretion to grant or refuse summary

judgment in the following terms:

7 (I 1183/2015) NAHCMD 196 (7 July 2016).8 Summary Judgment – A Practical Guide Issue 5 p5-4.9 1996 NR 2 208 (HC) at p 212.10 2007(1) NR 49 at 50 J-51A.

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‘Rules of Court require a respondent to “disclose fully the nature and grounds

of the defence and the material facts relied upon therefor.” This means a sufficiently

full disclosure of the material facts to persuade the Court hearing the application for

summary judgment that, if the respondent’s allegations are proved at a trial, it will

constitute a defence to the applicant’s claim.’

[18] As I navigate the tempestuous seas of compelling legal argument

presented by both protagonists, the foregoing are some of the legal beacons I

will follow in examining the contents of the affidavit filed by the defendants in

determining whether this is a proper case in which to grant summary

judgment as prayed. I intend to start with the defence raised with regard to

the Act.

The plaintiff’s power to lease the property in question

[19] The defendants, under this head, argue that the plaintiff, being a sub-

lessee of the property from the NWR, does not have the power to have leased

the property in question to defendants. They argue that if the plaintiff did do

so, it acted ultra vires the powers and objects of NWR’s formation under the

Act. Is this contention sustainable? In order to come to a firm conclusion on

this issue, it may, in my considered view, be necessary to consider the

relevant provisions of the Act.

[20] At para 26 of their heads of argument, the defendants stated the

following regarding this point:

‘It follows from the above that the NWR had no right or entitlement to let the

land mentioned in the agreement it relies on (save maybe for portion 337 by way of

retrospective ratification through transfer thereof to NWR (and that neither the Ski

Clubs obtained occupation of the land it occupies from the plaintiff. As indicated the

said Clubs obtained occupation of the land it occupies from the plaintiff. As the two

portions of land had still not been transferred to NWR the plaintiff also currently has

no right or basis to evict the defendants. In short, the lease agreement including

portion 65 and portion B the NWR had no right to such land and could thus not grant

the plaintiff rights in respect of these properties. Furthermore, neither the NWR, and

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through it, the plaintiff currently has any rights in respect of the said portions of land

which belong to the State.’

[21] The defendants further contend in their heads of argument that having

regard to the provisions of s. 7 of the Act, the powers of the NWR set out

therein, do not include the right to let property that does not belong to it. In this

regard, it is argued that the piece of land in question was not transferred to

the plaintiff in terms of s. 8 of the Act. It is further contended that the pieces of

land in question vest in the GRN which in separate proceedings seeks to

enforce its rights in relation to the same property, that being an indicium that it

did not pass rights thereto anent to the NWR, and by necessary implication, to

the plaintiff.

[22] I am of the view, having had the benefit of a bird’s eye view of the

matter, that it may not be necessary to deal with the main issues that appear

to be the mainstay of the defendants’ defence as raised by them in the

affidavit resisting summary judgment and captured immediately above. I say

so in particular, having due regard to the contents of para 11 of the affidavit

resisting summary judgment, where the defendants record following:

‘In short, however, the nub of the issues between the Government and the ski

clubs are as follows: Both the ski clubs’ leases have come to an end by effluxion of

time and the ski clubs maintain that during the operation of the lease agreements and

in terms of those agreements, they made certain lawful improvements to the land, for

which the Government of Namibia (the landlord) is obliged to compensate them for

(sic). The Government of Namibia denies this and in a counterclaim is seeking the

eviction of both ski clubs and their members.’

[23] On the other hand, at para 36 of the defendants’ heads of argument,

the following is recorded:

‘From the outset, (sic) sight must not be lost of the fact that –

36.1 The defendants currently occupy and possess the land.

36.2 The defendants currently exercise an improvement lien over the land.

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36.3 The defendants have never leased the land from the plaintiff’s (sic) or for that

matter from the NWR, and as such were never privy to any “agreement” or

understanding with either the plaintiff of (sic) the NWR’.

[23] At para 41 of their heads of argument, the defendants argue that, “The

defendants have never contracted with the plaintiff, and the plaintiff has never

had possession of the property, despite their purported agreement with the

NWR.’

[24] I am of the considered view that the issue raised in para 22 above,

carefully considered, raises what may be regarded as a triable issue. I say so

for the reason that the defendants have stated on oath that they have what

they consider to be a binding lease agreement with the GRN (although that is

denied), which entitles them to remain on the property, as they have, what

they consider to be an enforceable lien against the GRN, which entitles them

to remain on the property until the issue is resolved. The issue of the lien on

its own, also raises a bona fide defence to the plaintiff’s claim.

[25] Furthermore, the defendants state on oath that they have no

contractual or other relationship with the plaintiff that may entitle the latter to

properly seek to eject them from the premises in light of the direct contractual

relationship they claim they enjoy in alternative terms with the landlord, i.e. the

GRN.

[26] In my view, it is clear, as I shall attempt to demonstrate below, that this

issue raises what appears to be a bona fide defence that renders it improper,

and to some extent unfair for the court, in the current proceedings, to give in

to the plaintiff’s entreaties. This is so without even considering the other bases

raised by the defendants as the mainstay of their defence to the current

plaintiff’s claim.

[27] It is, in amplification of the issue raised immediately above, in my view

important to consider and take into account that parallel to the current

proceedings is a claim by the defendants where they sue the GRN, the

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Ministers of Works and Transport, the Minister for Environment and Tourism

and the Namibia Water Corporation Limited.11 In essence, the defendants,

who as stated, collectively feature as the plaintiff in that case, allege that they

entered into a written lease agreement with the GRN for occupation and use

of the property in question, and which lease agreement is at the heart of the

proceedings, and from which the plaintiff in the current proceedings seeks to

have them ejected.

[28] The plaintiffs (defendants in the present matter) further aver in the

other matter that the said lease agreement was to endure for a period of 9

years and 11 months, with an option to renew the contract for a further period

of 5 years. They claim that they duly exercised the right to renew same by

giving the notice required in terms of the said lease agreement. They claim

further that in certain respects, which are not material to the present

proceedings, the agreement did not correctly and accurately reflect the true

intention of the parties in relation to the computation of the duration of the

lease agreement.

[29] In this regard, they seek essentially an order rectifying the said lease

agreement and a further order declaring that the said lease agreement was

duly and lawfully renewed at the expiry of the initial lease period. In the

alternative to the prayer immediately preceding, they seek an order declaring

that the lease agreement was tacitly relocated, therefore resulting in a new

contract of lease between the said contractants.

[30] This position, if proved at the trial, suggests that the defendants are in

a stronger position in relation to their occupation of the property than the

plaintiff. This appears to be so because they allege the existence of a lease

agreement directly with the property owner. The plaintiff, on the other hand,

appears to ground its cause of action on a lease agreement with NWR, which

is itself, a lessee of the GRN, thereby relegating the plaintiff in these

proceedings to a sub lessee.

11 Case No. I 1391/2009.

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[31] In defence, the GRN filed a plea whose contents I find it unnecessary

to regurgitate and traverse for present purposes. What is important for current

purposes, however, is that the GRN, in addition, filed a claim in reconvention

in which she essentially claims that the defendants herein, (who are the

plaintiff therein), did not act in terms of the lease agreement, as they did not

renew the contract on expiry. It is further alleged that the plaintiff therein

erected several structures on the leased premises without the prior written

consent of the GRN as recorded in the lease agreement.

[32] Furthermore, it is alleged that the plaintiff, in that case, put the leased

premises to use for purposes, which ran counter to the purposes for which the

land was leased as spelt out in the lease agreement. A further averral is that

the plaintiff therein violated or permitted to be violated certain provisions of the

Nature Conservation Ordinance, which I need not cite for present purposes.

Crucially, the GRN, in that action, applies for an order ejecting the plaintiff

from the said premises and for costs of suit.

[33] I have gone to some length in setting out the cause of action in the

other matter and I did so deliberately to drive home the fact that the relief

sought by the GRN in that claim is for the ejectment of the plaintiff i.e. the

defendant in reconvention in that claim. This, incidentally, is the same relief

sought by the plaintiff in the current proceedings against the same party as it

were.

[34] What then becomes plain is that the defendants in this case, are also

sought to be evicted by the GRN in the other related case. There is, in my

view, a looming danger that lurks in the dark. If, for argument’s sake, the court

inclines to granting the application for summary judgment in the instant

matter, that will have an unintended consequence, namely, automatically

rendering the GRN’s counterclaim granted without the GRN lifting a finger in

to prove her entitlement to the relief sought in the related proceedings.

[35] In that event, the sum total of the effects will be that the plaintiffs in that

case will be non-suited and effectively ejected from the premises in relation to

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the counterclaim without showing their faces in court and without having said

a mumbling word at all. Furthermore, it is alleged, and there appears to be no

contest, that there is no lease agreement between the plaintiff in the instant

case and the defendants. The latter rely for their occupation of the property,

on an agreement they had with the GRN and which they claim still obtains

and seek orders to that effect.

[36] It must also not sink into oblivion that of the two claims I have referred

to above, it would seem prima facie that the GRN has a better right to the

ejectment of the defendants provided that the she is able to prove her claim

and correspondingly, the plaintiff in that case fails to prove its claim against

the GRN. I say so for the reason that the GRN is the owner of the property in

question, yet the plaintiff in the present proceedings is, on the averrals, only a

sub-lessee of the GRN’s lessee, namely, the NWR.

[37] It would therefore be preposterous, in my view, to deal with the

plaintiff’s case first, considering that it has a lesser right to the land, namely a

sub-lessee of another entity than the owner. In that event, the plaintiff could

possibly obtain an order evicting the defendants from the property when the

defendants claim, and this is to be proved and decided, that they have an

enduring lease agreement directly with the owner of the property, the GRN,

who would have leased the property to the plaintiff’s lessee.

[38] It would, in the circumstances, be a precipitous course for the court to

proceed to grant for summary judgment in the current matter, particularly to

grant same without simultaneously hearing the other matter for reasons that I

have advanced. For the current occupation of the property in question, the

defendants in this matter rely on an agreement to which the current plaintiff is

not privy. It would, in the circumstances, be tantamount to courting disaster to

grant summary judgment in oblivion to the other matter as it is plain that the

defendants in the instant matter rely for their occupation of the property on the

agreement they seek to enforce in the other matter.

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[39] If anything, it would have been preferable to deal with the matter

involving the current defendants and the GRN first, as that matter involves the

owner of the property and the plaintiffs herein, who claim to be the GRN’s

tenants. If the claim by the GRN succeeds, then that would render the

plaintiff’s present claim superfluous or a work of supererogation, as the order

they seek will have been granted at the behest of the owner of the property.

[40] For the purposes of practicality, convenience and fairness, I am of the

considered view that it would be proper and in accord with the justice of the

case not to deal with the summary judgment in this matter on the other bases

raised by the defendants herein and rather have regard to the unpalatable

consequences that its grant might herald as hazarded above. I accordingly

find it unnecessary to consider and analyse the other defences raised by the

defendants in opposition to the application for summary judgment.

[41] A consideration of the other claim referred to above, to my mind,

indicates that this is a proper case in which to grant the defendants leave to

defend and to then have the cases proceed in tandem as they clearly involve

the same parties and they essentially raise the substantially similar issues, the

same subject matter and by and large among the same parties as it were. In

this regard, it is important to observe that the two matters have already been

consolidated in terms of rule 41 of this court’s rules.

[42] In the premises, I am of the view that the defendants should be granted

leave to defend the claim, and to this end, I issue the following order:

1. The application for summary judgment is refused.

2. The costs occasioned by the refusal of the summary judgment

application shall be determined by the trial court.

3. The defendants are ordered to file their respective pleas (or other

pleadings they may be allowed by the rules to file at this stage) and

counterclaims, if any, within 15 days from the date of this order.

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4. The plaintiff is ordered to file its replication or such other pleading

that it may be minded to file within 10 days of the last date of filing

of the plea and counterclaim by the defendant.

5. Should the defendants file a counterclaim, the plaintiff shall be

entitled to file its plea thereto within 10 days from the filing of the

counterclaim and in which event the defendant shall file its

replication within 10 days of the filing of the plea.

6. This matter, together with Case No. I 1391/2009, are hereby

postponed to 19 October 2016 for case management.

7. The parties are ordered to file a proposed joint case management

report in respect of both matters at least 3 days before the date to

which the matters are postponed in para immediately 5 above.

____________

TS Masuku

Judge

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APPEARANCES:

PLAINTIFF: T. C. Phatela

Instructed by: Dr Weder, Kauta & Hoveka Inc.

DEFENDANTS: T. Frank (with him JPR Jones)

Instructed by: Engling, Stritter & Partners

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