CASE NO.

: I 1696/2010

IN THE HIGH COURT OF NAMIBIA

In the matter between:

MWEB (PTY) LTD PLAINTIFF

and

AD FORCE ADVERTISING CC DEFENDANT

CORAM: Botes, AJ.

HEARD ON: 18 November 2010

DELIVERED ON: 3 December 2010

JUDGMENT

BOTES, AJ.:

[1] In this matter plaintiff issued and served defendant with a combined summons in
which plaintiff claims from the defendant payment in the amount of N$62,534.50,
together with the agreed rate of interest, as well as costs of suit on attorney and own

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client scale as also agreed in terms of a written agreement entered into between the
parties.

[2] After the defendant entered an appearance to defend the action, the plaintiff
applied for summary judgment. I shall refer to the parties herein as plaintiff and
defendant.

[3] Plaintiff, to its particulars of claim, annexed the alleged written service
agreement entered into between the plaintiff and the defendant, in terms of which
plaintiff undertook to provide to defendant, an internet product, namely VSAT, on the
terms and conditions contained therein.

[4] The defendant filed an opposing affidavit, which opposing affidavit was deposed
to by the executive director (sic) of the defendant.

[5] In the opposing affidavit, defendant’s executive director admits that the plaintiff
and the defendant entered into the agreement, annexed to the plaintiff’s particulars
of claim, as annexure “A”. This admission, for the reasons set forth hereunder, on
the pleadings filed of record, is incorrect.

[6] Defendant, in its affidavit, which comprises of 6(six) pages, separated into 24
paragraphs, inter alia alleges that the product and service provided by the plaintiff
did not live up to the representations of plaintiff’s salesman, prior to the conclusion of
the agreement, as it was indicated that what defendant would receive was a reliable
and uncapped guaranteed bandwidth, which defendant would not be required to
share with other consumers. Defendant furthermore alleges that from the onset, the
product installed by plaintiff, performed poorly as the internet connection was
continuously interrupted on a daily basis, resulting in the loss of files and data, which
were in the process of being downloaded from the internet. As a result of this poor
performance, plaintiff’s technicians attended upon defendant’s premises and
attempted to resolve the complaints on numerous occasions, to no avail. Defendant,
furthermore alleges that the plaintiff was unable to perform in terms of the
agreement, which lack of performance was subsequently acknowledged by plaintiff,
who offered to purchase back the satellite dish and receiver and to supply the
defendant with an alternative package. As a result of the discontinuation of the

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alternative package, plaintiff subsequently reneged on the undertaking to remove the
satellite dish and receiver installed at defendant’s premises and to credit defendant
with the result in costs. Defendant alleges that plaintiff’s inability to perform in terms
of the agreement between the parties constitutes a repudiation of the contract. This
repudiation defendant alleges it (defendant) accepted.

[7] The plaintiff, during the hearing, was represented by Ms B van der Merwe, whilst
the defendant was represented by Mr Coleman. Both of them filed heads of
argument and presented the court with further oral submissions on the date of the
hearing of the application. The court is indebted to both counsel for their
contributions in this regard.

[8] Ms van der Merwe, on behalf of the plaintiff, in the plaintiff’s main heads of
argument, as well as during the hearing contended that the defences raised by
plaintiff are precluded by the terms of the agreement. As such, Ms van der Merwe
referred to this Court to the non variation clause, breach clause, the general clause
in which it was stipulated that no party shall be bound by any express or implied
term, representation, warranty or the like which is not recorded in the agreement, as
well as the disclaimer for liability clause. To substantiate her submissions, Ms van
der Merwe relied on the well-known judgment of this Court in Mushimba v Auto Gas
Namibia (Pty) Ltd.1

[9] On behalf of the defendant, Mr Coleman submitted, that apart from the possible
defence of misrepresentation, to induce a contract, the agreement entered into
between the parties was a reciprocal one and that plaintiff failed to deliver the
services, which would have entitled plaintiff to payment in terms of the agreement.
Mr Coleman further submitted that defendant, on the facts averred, in the opposing
papers, repudiated the agreement, which repudiation was accepted by plaintiff.

1
2008 (1) NR 253 (HC) – In this matter Damaseb JP held that: “Where the parties had incorporated a non-
variation clause in written agreement, any attempt to agree informally on a topic covered by the non-variation
clause, is not permissible. An oral agreement to alter the terms of payment (e.g. extension of time) where the
parties have bound themselves to a non-variation clause is therefore not permissible, unless it is reduced to
writing and agreed by both parties.”
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[10] It is trite that summary judgment is an extraordinary remedy and should only be
granted in circumstances where the court has no doubt that the plaintiff has an
unanswerable case.2

[11] In this regard the authors, Van Niekerk, Geyer & Mundell state the following in
paragraph 11.9 of their well-known work, and also cite several cases in support
thereof;

“This rule is founded on the consideration that an erroneous finding in summary judgment
proceedings has more drastic consequences for a defendant than for a plaintiff. Any error
that goes against the plaintiff has less drastic consequences – he may still, at the eventual
trial, obtain relief plus interest and costs. An error going against the defendant, however,
means that he will have to apply for leave to appeal or, should that be refused, petition the
chief justice for leave to appeal. Thereafter, if this petition succeeds, he will have to pursue
the appeal to its final conclusion with all the attended legal costs. Accordingly, even though
success for the defendant appears unlikely from the opposing affidavit, leave ought to be
granted unless he presents a hopeless case. If there is doubt whether the plaintiff‟s claim is
unanswerable, the defendant must get the benefit of the doubt and the court must refuse
summary judgment. Similarly, if there is a reasonable possibility that plaintiff’s case or
his papers are defective, summary judgment cannot be entered.”3 (emphasis added).

[12] Muller J, in this Court, in my view correctly summarised the legal position in
summary judgment applications when he stated the following:

“[15] At the stage of summary judgment a defendant is not required to convince the court
that all the facts mentioned by him or her are correct or undisputed. The court does not now
weight or decide factual disputed issues or determine which party is favoured by the balance

2
Mowschenson & Mowschenson v Merchantile Exceptance Corporation of SA Ltd, 1959 (3) SA 632 (W) at 366
E-F; Moder v Teets t/a T A Neyers Garage Nagvolger 1997 NR 122 (HC) at 125 C-D.
3
Summary Judgment; A practical guide, para 11.9; In Gulf Steel (Pty) Ltd v Rack-Rite Bop (Pty) Ltd & Another
1998 (1) SA 679 (O) it was held that: “In view of the nature of the remedy of summary judgment, the court
must be satisfied that a plaintiff who seeks summary judgment has established its claim clearly on the papers
and that the defendants have failed to set up a bona fide defence as required in terms of the uniform rules of
court. There are accordingly two basic requirements that the plaintiff must meet, namely a clear claim and
pleadings which are technically correct before the court. If either of these requirements is not met, the court is
obliged to refuse summary judgment. In fact, before even considering whether the defendant has established a
bona fide defence, it is necessary for the court to be satisfied that the plaintiff’s claim has been clearly
established and that its pleadings are technically in order. Even if a defendant fails to put up any defence or
puts up a defence which does not meet the standard required of a defendant to resists summary judgement,
summary judgment should nevertheless be refused if the plaintiff’s claim is not clearly established on its papers
and its pleadings are not technically in order and in compliance with the rules of court.”
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of probabilities. After he extensively dealt with what is required by the rule at this stage, the
approach of the court has been summarised by Corbett J, as he then was, as follows:

„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
prupose of delay, but in achieving this it makes drastic inroads upon the normal right of
a defendant to present his case to the Court.‟ (Arend and Another v Astra Furnishers
(Pty) Ltd 1974 (1) SA 298 (C) at 304 F-G)

[16] It has also been authoritatively stated that the court has a discretion to refuse summary
judgment even if no bona fide defence is disclosed, (Van Niekerk, Geyer & Mundell, supra
para 11.2.8; First National Bank of SA Ltd v Myburgh and Another 2002 (4) SA 176 (C) at
184 F-J; Soil Fumigation Services Lowveld CC v Chemfit Technical Products (Pty) Ltd 2004
(6) SA 29 (SCA) ([2004] 2 All SA 366) at 34I – 35A).”4

[13] Having perused the particulars of claim and the opposing affidavit, and
considering the arguments presented on behalf of the plaintiff and the defendant, I
am not convinced that this is a matter where I should grant summary judgment.
Apart from not being satisfied that the plaintiff has an unanswerable case and that
defendant has not presented an arguable defence to plaintiff’s claim, the plaintiff’s
papers are materially defective as the service provider who entered into the service
agreement, annexed to plaintiff’s particulars of claim as annexure “A”, is described
as MWEB Namibia (Pty) Ltd. No allegation is contained in the papers before me that
this entity and the plaintiff as cited in the particulars of claim, are the same. As such,
the plaintiff’s claim is excipiable as it does not disclose a proper cause of action,
alternatively is vague and embarrassing.5 In the light of the aforesaid, I believe that
applicant in all the circumstances is not entitled to summary judgment and summary
judgment is accordingly refused.

4
Easy Life Management (Cape) (Pty) Ltd and Another v Easy Fit Cupboards Windhoek CC and Others 2008 (2)
NR 686 (HC) on 691 to 692
5
Dowson & Dobson Industrial Ltd v Van der Werf 1981 (4) SA 417 (C) 423 A-B
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[14] In respect of the question of costs, I seriously considered it to award cost to the
defendant because of the defective nature of plaintiff’s pleadings referred to
hereinbefore. As this point however was not raised, by defendant in its opposing
papers or in court, and in the light thereof that defendant admitted the existence of a
written agreement between the present plaintiff and defendant, I have decided to, in
my discretion, order that the cost of the summary judgment application is to stand
over for final determination at the trial.

[15] As a result, and for the reasons referred to hereinbefore, the following order is
made:

1. The application for summary judgment is hereby dismissed.

2. The defendant is hereby granted leave to defend the main action and for the
purpose of the filing of further pleadings in the action, today’s date is the relevant
date.

3. The costs of the application for summary judgment are to stand over to be
determined at the end of the trial.

_______________

BOTES, AJ

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APPEARANCE FOR THE PARTIES:

COUNSEL ON BEHALF OF THE APPLICANT Ms B. van der Merwe

INSTRUCTED BY: Etzold-Duvenhage

COUNSEL ON BEHALF OF RESPONDENT MR. G. Coleman

INSTRUCTED BY: MB de Klerk & Associates

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