Bank Windhoek v Kessler (1731 of 2000) [2001] NAHC 20 (1 June 2001)

Bank Windhoek v Kessler (1731 of 2000) [2001] NAHC 20 (1 June 2001)

The court held that the applicant's 'discovery/replying affidavit' and attached travel documents were not properly before the court in a summary judgment application, as the rules restrict parties to specified affidavits. The phrase 'debtor is outside the Republic' in section 13(1)(b) of the Prescription Act should not be interpreted literally; short absences do not constitute an impediment delaying prescription. The respondent's defence of prescription was bona fide and good in law, warranting dismissal of the summary judgment applications.

Citation
[2001] NAHC 20
Parties
Applicant: Bank Windhoek Ltd; Respondent: Uwe Kessler
Court
High Court
Jurisdiction
Namibia
Judgment Date
1 June 2001
Case Number
1731 of 2000
Procedural Posture
Civil / Summary Judgment Application
Outcome
summary judgment applications dismissed
Legal Topics
Summary Judgment, Prescription, Extrinsic Evidence, Interpretation of Statutes
Source Language
English
Civil Procedure Contract Law Summary Judgment Prescription Extrinsic Evidence Interpretation of Statutes

Case Brief

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Parties

Bank Windhoek Ltd

Applicant

Uwe Kessler

Respondent

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 Whether extrinsic evidence (travel documents) annexed to a 'discovery/replying affidavit' can be considered in a summary judgment application
  2. 2 How the phrase 'debtor is outside the Republic' in section 13(1)(b) of the Prescription Act 68 of 1969 should be interpreted for purposes of prescription

Ratio Decidendi

The court held that the applicant's 'discovery/replying affidavit' and attached travel documents were not properly before the court in a summary judgment application, as the rules restrict parties to specified affidavits. The phrase 'debtor is outside the Republic' in section 13(1)(b) of the Prescription Act should not be interpreted literally; short absences do not constitute an impediment delaying prescription. The respondent's defence of prescription was bona fide and good in law, warranting dismissal of the summary judgment applications.

Court Disposition

summary judgment applications dismissed

Orders

  • Applications for summary judgment are dismissed.
  • Defendant is granted leave to defend the actions.