Standard Bank Namibia Limited vs A - Z Investments Holdings (Proprietary) Limited and Another (HC-MD-CIV-ACT-CON- 296 of 2021) [2021] NAHCMD 3 (2 December 2021)

Standard Bank Namibia Limited vs A - Z Investments Holdings (Proprietary) Limited and Another (HC-MD-CIV-ACT-CON- 296 of 2021) [2021] NAHCMD 3 (2 December 2021)

The defence of supervening impossibility due to the COVID-19 pandemic does not constitute a bona fide or triable defence in law, as the impossibility was subjective and not absolute. The mortgage loan agreement was not conditional on the defendants' business generating income, and personal incapability does not amount to impossibility of performance.

Citation
[2021] NAHCMD 3
Parties
Plaintiff: Standard Bank Namibia Limited; 1st Defendant: A-Z Investments Holdings (Proprietary) Limited; 2nd Defendant: Toivo Erastus Shiimi
Court
High Court Main Division
Jurisdiction
Namibia
Judgment Date
2 December 2021 2 December 2021 4 February 2021 20 January 2021
Case Number
HC-MD-CIV-ACT-CON- 296 of 2021
Procedural Posture
Civil (contract, Summary Judgment) / Summary Judgment Application
Outcome
summary judgment granted for plaintiff
Legal Topics
Summary Judgment, Supervening Impossibility, COVID 19 Pandemic, Mortgage Enforcement
Source Language
English
Contract Law Civil Procedure Summary Judgment Supervening Impossibility COVID 19 Pandemic Mortgage Enforcement

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Parties

Standard Bank Namibia Limited

Plaintiff

A-Z Investments Holdings (Proprietary) Limited

1st Defendant

Toivo Erastus Shiimi

2nd Defendant

Procedural Posture

Civil (contract, Summary Judgment) / Summary Judgment Application

Legal Issues

  1. 1 Whether the COVID-19 pandemic constitutes a supervening impossibility excusing performance under a mortgage loan agreement
  2. 2 Whether the defendants raised a bona fide defence to summary judgment

Ratio Decidendi

The defence of supervening impossibility due to the COVID-19 pandemic does not constitute a bona fide or triable defence in law, as the impossibility was subjective and not absolute. The mortgage loan agreement was not conditional on the defendants' business generating income, and personal incapability does not amount to impossibility of performance.

Court Disposition

summary judgment granted for plaintiff

Orders

  • Payment of N$436,540.26 by defendants, jointly and severally, the one paying the other to be absolved
  • Compound interest calculated daily and capitalised monthly on N$436,540.26 at the plaintiff’s mortgage lending rate from March 2020 to date of final payment