REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 1771/2013

In the matter between:

CHRISTIAAN ELIA BURGER PLAINTIFF

and

WOLF HUBERTUS GUNTER BÖWIG DEFENDANT

Neutral citation: Burger v Bowig (I 1771/2013) [2014] NAHCMD 268 (16

September 2014)

Coram: PARKER AJ

Heard: 28, 29, 31 July 2014Delivered: 16 September 2014

Flynote: Contract – Rectification – Essential allegations that should be set out

and proved in claim for rectification – Terms of lease agreement lifted from a pre-

prepared lease agreement obtained from a legal practitioner and parties drafted their

agreement by a process of cutting and pasting – Parties agreed that their agreement

was misrecorded in three clauses – But defendant resisted rectification of two other

clauses – Court held that on the facts and in the circumstances it was more probable

than not that those two clauses also did not reflect the common intention of the

parties and so the probabilities favoured the version of the plaintiff that the parties

did not agree upon those clauses – Consequently, court granted plaintiff rectification.

REPORTABLE

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Summary: Contract – Rectification – Essential allegations that should be set out

and proved in claim for rectification – Terms of lease agreement lifted holus bolus

from a pre-prepared lease agreement obtained from a legal practitioner and parties

drafted their agreement by a process of cutting and pasting – Parties agreed that

their agreement was misrecorded in three clauses – But defendant resisted

rectification of two other clauses – Upon issue of credibility the court found that the

evidence of the defendant that the terms of those two clauses were discussed and

agreed upon was false and that of the plaintiff was true – And on the probabilities the

court found that the version of the plaintiff that the two clauses were not discussed

and agreed upon was more probable than not and so the probabilities favoured the

plaintiff’s version – Court was satisfied that the plaintiff had discharged the onus cast

on him and, therefore, succeeds in his claim for rectification – Consequently the

court granted plaintiff rectification with costs.

ORDER

(a) I make an order rectifying the contract in the following terms:

(i) Clause 12

The existing clause 12 is deleted and is replaced with the following:

‘12. Repairs

The lessee shall be entitled to repair the fencing, water installation,

roads and housing to render it functional at his expense’.

(ii) Clause 13

The existing clause 13 is deleted and replaced with the following:

‘13. Lessor’s right of inspection

The lessor shall be entitled:

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At all reasonable times to visit the farm for inspection upon prior

notice’.

(iii) Clause 15

The existing clause 15 is deleted and replaced with the following:

‘15. Remedies upon breach by Lessee

Should the Lessee fail to pay any rent on its due date or commit a

breach of any of the other terms of this lease, the Lessor shall be

entitled, upon the expiry of seven (7) days’ written notice to the

Lessee to pay such rent or remedy such breach, as the case may

be, forthwith to cancel this lease and to recover possession of the

dwelling (without prejudice to the Lessor’s rights to claim unpaid

rent and any damages they may have sustained consequent upon

any such failure or breach), unless within the aforesaid period of

seven (7) days, such rent shall have been paid or such breach

shall have been remedied, as the case may be’.

(iv) Clause 17

The existing clause 17 is deleted and the following is put in its place:

‘17. Farmhouse

The Lessee shall have the right to use and occupy at any time and

for any period at their sole discretion the Farmhouse on the farm’.

(v) Clause 19

The existing clause 19 is deleted and replaced with the following:

‘19. Payment

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The payment for the rent shall be made as follows:

The Lessee shall pay the amount of N$102 300.00 per annum in

respect of rent. The balance shall be regarded as a loan by the

Lessor and be set off annually in the amount of N$102 300.00

against this Lease Agreement. The parties have concluded a loan

agreement in terms of which the lessee loans an amount of

N$1 023 000.00 to the lessor. The first annual instalment of

N$102 300.00 shall be deducted from the amount loaned to the

lessor. No interest on the loan amount will be charged by the

Lessee and the lease shall not escalate at any point in time for the

full duration of this agreement. The full amount of N$1 023 000.00

in respect of rent for the first year and the balance in respect of the

loan amount shall be paid to the Lessor on the 15 th of April 2012

into the banking account of the Lessor’.

(b) The defendant must pay the plaintiff’s costs, including costs of one instructing

counsel and one instructed counsel.

JUDGMENT

PARKER AJ:

[1] This matter revolves around two individuals who, with respect, are ‘Illiterates-

at-Law’ but who decided to draft a legal instrument concerning such a complex

subject matter in law as a contract of lease over land, without the assistance of legal

practitioners who are trained in such matters. Of course, I hasten to add; they were

entitled to do what they did. And what is worse; these two Illiterates-at-Law decided

to draft the instrument not from a clean slate, which would have given them the

opportunity to discuss fully, negotiate deeply and haggle extensively over every

issue dear to them from the scratch and at the end state in their own words the terms

they have really agreed upon. No; they decided rather to work around a pre-

prepared lease agreement the plaintiff says he obtained from a legal practitioner

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practising in Gobabis, which they referred to as ‘proforma contract’. It is important to

note that the court has not had sight of the so-called ‘proforma contract’.

[2] The purpose of making the aforegoing observations will become apparent in

due course. The subject matter of the contract of lease is the farm Eheratengua Ost

No. 48, Erongo Region (‘the farm’).

[3] A tussle about what was the common intention of the parties as respects

some of the clauses of the lease agreement led the plaintiff to institute the present

action. Thus, in the particulars of claim the plaintiff avers that the written document

does not correctly record the agreement between the parties and, therefore, claims

rectification of the contract so as to conform with the common intention of the parties,

and has tendered full compliance with the provisions of the agreement. The

defendant refused to consent to a rectification of the lease agreement and

contended that the agreement is either invalid ab initio as in fraudem legis or has

been cancelled due to breach. In this regard, I should note that the defendant has

not instituted a counterclaim and so the only burden of this court is to consider the

plaintiff’s claim for rectification of the lease agreement. And I should say that the

contract concerns land, and so I shall not bother myself with considering evidence on

certain moveables. Such evidence is extraneous to the issues relevant to the

pleadings. (Ugab Terrace Lodge CC v Damaraland Builders CC (SA 51/2011) [2014]

NASC (25 July 2014))

[4] In Denker v Cosack and Others 2006 (1) NR 370, Hoff J distilled from the

authorities the principle as to what in a claim for rectification the plaintiff must allege

and prove (‘the Denker requirements’). The plaintiff must allege and prove –

(a) an agreement between the parties which had been reduced to writing;

(b) an intention by both parties to reduce the agreement to writing;

(c) that the written document does not reflect the common intention of the

parties correctly;

(d) that there was a mistake in the drafting of the document; and

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(e) the actual wording of the agreement as rectified.

[5] That the plaintiff has alleged and proved paras (a) and (b) of the Denker

requirements is not in doubt. What remains is, therefore, to consider paras (c), (d)

and (e) of the Denker requirements in relation the plaintiff’s claim and against the

pleadings and the evidence.

[6] In his particulars of claim, the plaintiff avers that the written document does

not correctly record the agreement between the parties. The reasons are that, as

respects –

(a) clause 6, the terms set out in the last sentence of that clause were not

agreed upon and so that last sentence must be deleted.

(b) clause 12, the terms set out in that clause were not agreed upon. The

parties did, however, agree that the plaintiff will carry out repairs to the

fencing, water installations, roads and housing, and that the agreement

between the parties was this:

‘12. Repairs

The lessee shall be entitled to repair the fencing, water installation,

roads and housing to render it functional at his expense’.

(c) clause 13, the following words are to be added to the clause in order to

form part of the sentence:

‘… to visit the farm for inspection upon prior notice’.

(d) clause 15, the first five lines of that clause up to the first enclosing

bracket and the word ‘or’ that follows the bracket must be deleted, and

the word ‘should’ following ‘or’ must be spelled with a capital letter,

preceded by a full stop after the word ‘breach’.

(e) clause 17, the word ‘Lessor’ must be replaced with the word ‘Lessee’.

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(f) clause 19, the following two sentences must be inserted after the

second sentence:

‘The parties have concluded a loan agreement in terms of which the

lessee loans an amount of N$1 023 000 to the lessor. The first annual

instalment of N$102 300 shall be deducted from the amount loaned to

the lessor’.

[7] Thus, the plaintiff’s claim is for rectification of six clauses in the agreement. In

his plea, the defendant does not challenge the claim for rectification of three clauses,

namely, clauses 13, 15 and 19. And the plaintiff did not proceed with the claim for

rectification of clause 6. It follows that the claim the court should determine is in

respect of clauses 12 and 17 only.

[8] In Denker v Cossack and Others at 376A-F, Hoff J cited with approval the

following principles in respect of the grant of rectification enunciated in Trust Bank of

Africa Ltd v Frysch 1976 (2) SA 337 (c) at 338F – 339A:

‘A contract can only be rectified if it does not recite accurately the contract which the

parties had in fact entered into. The wrong recording may be rectified to make the contract

recite what the parties had in fact agreed upon. This being so the first requisite for

rectification is that the error must be a mutual one. If the Court were to order a contract to be

rectified to include a term or to cover circumstances that had not been mutually agreed

upon, the Court would not be ordering the rectification of the agreement but would be

imposing upon the parties a contract which had not been arrived at by their agreement –

consensus, the foundation upon which all contracts, ie agreements, rest. Rectification cannot

therefore be used to make effective an ineffectual contract which the parties had in fact

agreed upon. The fact that the contract gives a result which was not intended by either of the

parties is not a ground for rectification of the contract. The Court will rectify the document

that records wrongly the agreement arrived at by the parties so as to make it a true record of

what was agreed upon, but if the error – mutual or unilateral – is not in the recording of the

contract but in the contract itself, then the Court cannot under the guise of rectifying the

record of the agreement give to it a content or a validity it did not in fact have at the time it

was agreed upon by the parties. If the contract as greed upon was void because the parties

did not understand the law, the Court cannot amend any portion of it to make it valid. If there

was a misunderstanding as to the true facts upon which the contract was based then the

contract may fail – there may be questions of estoppel – for lack of consensus but the Court

cannot rectify the error. If the parties have used a wrong vehicle to convey their intention and

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arrived at a destination they did not in fact intend, the Court has no power on the request of

either of them to transfer them to the destination they in fact intended to reach.’

[9] In sum, a written contract can only be rectified if the document does not recite

accurately the terms which the parties have in fact agreed upon. The misrecording

may then be rectified so as to make the rectified document recite accurately what

they have in fact agreed upon. Based on these considerations, for rectification to be

granted, first and foremost the error or mistake must be a mutual one.

[10] In considering the issue of rectification in the present proceeding, I should,

therefore, decide the central and intrinsic question, which is this: On the admissions

made by the defendant in his plea and on the evidence, can it be said that the

document (the lease agreement) recites accurately the agreement which the parties

have in fact entered into, that is, does the document reflect the common intention of

the parties? If it cannot so be said, the plaintiff should have rectification.

[11] Mr Barnard, counsel for the plaintiff, adduced evidence of the plaintiff and his

wife Mrs Burger in support of the plaintiff’s claim. The witness statements that the

plaintiff and Mrs Burger had filed with the court in terms of the rules stood as their

examination-in-chief-evidence. For the defence, Ms Schneider, counsel for the

defence, adduced evidence of the defendant alone. The witness statement of the

defendant, too, stood as the defendant’s examination-in-chief-evidence.

[12] From the evidence placed before the court it appears that the versions of the

plaintiff and the plaintiff witness on the one hand and the evidence of the defendant

on the other are mutually destructive. In that event Hannah J said in Ostriches

Namibia (Pty) Ltd v African Black Ostriches (Pty) Ltd 1996 NR 139 at 161F-G that –

‘The Court must be satisfied on adequate or sufficient grounds that the version given

by or on behalf of the plaintiff is true before judgment can properly be granted in his favour.’

[13] In applying this principle to the facts of the present case it is important to note

at the threshold the following concessions made by the parties. The plaintiff sought

initially rectification of clauses 6, 12, 13, 15, 17 and 19 of the lease agreement. But

at the commencement of the trial, the plaintiff’s counsel informed the court that the

plaintiff no longer sought rectification of clause 6, leaving only clauses 12, 13, 15, 17

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and 19. And significantly, in his plea, the defendant had admitted that clauses 13, 15

and 19 should be rectified as the plaintiff pleaded. And the plaintiff’s averment was

that the written document (the lease agreement) does not correctly record the

agreement between the parties as respects those clauses. It follows that for both

parties and in respect of clauses 13, 15 and 19, the document does not recite

accurately the agreement which the parties have in fact entered into. Indeed, the

defendant testified that those clauses contained mistakes. The mistakes should,

accordingly, be taken as mutual mistakes.

[14] As to clause 13; the defendant’s evidence is that due to oversight that clause

was not fully completed. As to clause 15; the defendant’s evidence is that that clause

is not properly worded. And as to clause 19; the defendant’s evidence is that that

clause is not complete and the rectification sought by way of insertion of the two

sentences in the plaintiff’s pleading reflects what they agreed upon.

[15] The admissions by the defendant lead to the only reasonable conclusion that

the parties accept that the document (the lease agreement) contains a misrecording

of what they in fact agreed upon, at least as respects clauses 13, 15 and 19, hence,

the need for rectification of those clauses. Of course, this may not necessarily lead to

a further conclusion that there are mutual errors in clauses 12 and 17, too. That may

be so, but the significance of the two parties being ad idem that there are mutual

errors in clauses 13, 15 and 19 and that the rectification sought by the plaintiff will

rectify the mutual errors cannot be air brushed. This fact is significant, and it should

be taken into account in weighing the rest of the evidence. The reason is that, above

all, it shows clearly that the defendant’s evidence that the parties discussed and

agreed on each and every term and condition contained in the written lease

agreement and that the final version of the document reflected ‘the common

continuing intention’ of the plaintiff and the defendant is palpably false. It should be

remembered that the defendant never qualified his statement to exclude clauses 13,

15 and 19. It is my view, therefore, that this should weigh negatively and heavily

against the credibility of the defendant when he says that clauses 12 and 17 were

discussed and agreed upon and that they recite accurately the common intention of

the parties when they entered into the contract, taking into account the self-serving

interest of the defendant to admit that there are mutual errors in clauses 13, 15 and

19 but insist that there are no such errors in clauses 12 and 17 which would serve

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well his application to evict the plaintiff from the farm. That is how I look at the

defendant’s defence to rectification of clauses 12 and 17.

[16] Keeping this conclusion thereanent the credibility of the defendant and the

observation about the defendant’s defence to rectification of clauses 12 and 17 in my

mental spectacle, I proceed to consider the claim for rectification of clauses 12 and

17 of the lease agreement.

[17] It is the defendant’s position that the terms as recorded in clauses 12 and 17

were expressly agreed upon. Thus, with regard to the rectification sought by the

plaintiff of clauses 12 and 17, as I have found previously, the plaintiff’s and the

defendant’s versions are mutually destructive, and so the court ‘must be satisfied on

adequate or sufficient grounds that the version given by or on behalf of the plaintiff is

true before judgment can properly be granted in his favour’. (Ostriches Namibia (Pty)

Ltd v African Black Ostriches (Pty) Ltd, loc. cit.) And as to proof in a civil case;

Govan v Skidmore 1952 (1) SA 732 (N) at 734 (cited with approval by the court in

Prosecutor-General v Lameck 2009 (2) NR 738 and by the Supreme Court in M

Pupkewitz & Sons (Pty) Ltd t/a Pupkewitz Megabuild v Kurtz 2008 (2) NR 775 (SC))

tells us that –

‘… in general, in finding facts and making inferences in a civil case, the court may go

upon a mere preponderance of probability, even although (though) its so doing does not

exclude every reasonable doubt.’

[18] The Skidmore approach was developed by Holmes JA in Ocean Accident and

Guarantee Corporation Ltd v Koch 1963 SA 147 (A) into the following proposition at

159:

‘… in finding facts or making inferences in a civil case, it seems to me that one may,

as Wigmore conveys in his work (on) Evidence, 3rd ed., para 32, by balancing probabilities

select a conclusion which seems to be the more natural, or plausible, conclusion from

amongst several conceivable ones, even though that conclusion be not the only reasonable

one.’

This is the manner in which I approach the consideration of the evidence in these

proceedings.

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[19] As I have intimated previously, in weighing the totality of the evidence in these

proceedings, I must take into consideration these important indubitable facts. There

is the fact that by his own admission in his plea, contrary to what he later on stated in

his witness statement, the lease agreement contained mutual errors: it does not

recite accurately the contract which the parties had in fact entered into in all its

provisions. The defendant singles out clauses 13, 15 and 19. There is also the fact

that the parties did not draft their agreement from a clean slate. They got hold of a

‘proforma contract’ and did a cut-and-paste job to produce the DIY lease agreement.

Coupled with this fact is the fact that the parties are not legal practitioners.

Additionally, there is the fact that the farm was rundown in some places and in

certain aspects, eg not one water point was working properly and the fences were

dilapidated and some parts were agape because the stretch of fence there was

missing. In sum, the farm was not an all-is-well and functionally ready farm.

[20] Keeping these facts in my mind’s eye, I proceed to consider the rest of the

evidence on the contested clauses, namely, clauses 12 and 17. I shall consider

clause 12 first.

[21] The existing clause 12 reads:

‘12. Improvements

The Lessee shall not make any external or internal alterations or additions to the

farm, whether structural or otherwise (or without the prior written consent of the Lessor). Any

such alteration by the Lessee at his expense, shall be properly made and out of sound

materials shall not be removed at the termination of this lease (save with the Lessor’s written

consent) and shall become the property of the Lessor who shall pay to the Lessee

compensation therefore, limited to the cost to the Lessee of the making thereof).’

The wording of clause 12 as rectified provides:

‘The lessee shall be entitled to repair the fencing, water installation, roads and

housing to render it functional at his expense’.

[22] The plaintiff testified that clause 12 is as was lifted from the proforma contract.

This piece of evidence was not challenged by the defendant. He testified further that

it was put in the agreement but it was not discussed and was not agreed upon. His

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reasons for so saying are that (a) clause 12 is in conflict with clause 6 and (b) it was

against what they had discussed and agreed upon, namely, that the defendant was

insistent that he did not want to pay for anything that the plaintiff did as

improvements to the farm, but clause 12 provides that the plaintiff shall pay

compensation for any alterations or additions, ie improvements, to the farm. I find

that plaintiff’s reasons for saying that that clause 12 was not discussed and agreed

upon is plausible.

[23] The defendant on the other hand does not give any reason for disputing the

plaintiff’s version. Indeed, in his witness statement, the defendant made certain

statements in para 11(b) thereof as his challenge to specifically the plaintiff’s

statement regarding clause 12, but the statements in the defendant’s para 11(b) or,

indeed, in other parts of his witness statement, do not say that clause 12, as it

stands now in the contract, was agreed upon. The defendant rather interprets the

clause, as he understands it, but it is not the interpretation of clause 12 that is in

issue in the pleadings.

[24] The defendant testified that it was all along his intention, and he made that

clear to the plaintiff from the outset, that no changes should be made to buildings

and other structures on the farm, without his prior consent. I find that that is not what

is recorded in clause 12. The defendant’s testimony on the point under consideration

is a sanitized version of clause 12. To start with; clause 12 provides for alterations or

additions not to the house only but also to the entire farm. Furthermore, read

syntactically with the rest of that sentence, the words in the first parenthesis ‘(or

without the prior written consent of the Lessor)’ in the first sentence of clause 12

carry no meaning. It does not even recite what the defendant has put forth so

eloquently in his evidence.

[25] In my opinion, the testimony of the defendant that it was his intention all

along, and he made that clear from the outset, that no changes should be made to

the buildings and other structures on the farm without his prior consent is an attempt

by the defendant to editorialize the provisions of clause 12 so as to support his

position that clause 12, as it stands, was discussed and agreed upon.

[26] Based on these reasoning and conclusions and not forgetting the credibility

finding about the defendant and the aforegoing observation about the defendant’s

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self-serving insistence that clauses 12 and 17 were discussed and agreed upon, I

find that the defendant’s account on the point under consideration is false and I

reject it. Thus, on the facts and in the circumstances and after balancing the

probabilities I come to the plausible conclusion that, as the plaintiff says, clause 12

was not discussed and agreed upon. The probabilities favour the plaintiff’s version. It

is more probable than not that the terms of clause 12 as rectified by the plaintiff are

what were discussed and agreed upon by the parties. Accordingly, I am satisfied that

the plaintiff has discharged the onus cast on him in his claim for rectification of

clause 12. He has satisfied the requirements set out in Trust Bank of Africa Ltd v

Frysch at 338F-339A. I now proceed to consider clause 17.

[27] The existing clause 17 reads:

‘The Lessor shall have the right to use and occupy at any time and for any period at

their sole discretion the Farmhouse on the farm’.

The wording of clause 17 as rectified provides:

‘The Lessee shall have the right to use and occupy at any time and for any period at

their sole discretion the Farmhouse on the farm’.

[28] To start with; it is common cause between the parties that clause 17 was a

clause in the proforma contract. And it is the plaintiff’s testimony that it was

discussed once, as far as he could remember. The defendant, on the other hand,

stated in his examination-in-chief-evidence that clause 17 was discussed over and

over again, but where the plaintiff and Mrs Burger would live was not discussed and

he did not know where they would live. However, in his cross-examination-evidence

and upon questions from the Bench the defendant conceded that this clause was not

really discussed; as I understood the defendant, it was not discussed over and over

again. Additionally, there is Ms Burger’s testimony that Ms Böwig showed her around

the farmhouse and showed her how to use certain household items. This was

confirmed by the defendant. There is also the unchallenged evidence of the plaintiff

that on one occasion after the lease agreement had been signed but before he took

occupation of the farm he arrived at the farm and found the defendant on the roof of

the farm. When the plaintiff asked the defendant what he was doing up there, the

defendant’s response was that he was busy making the roof waterproof in order that

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it would be ready for the plaintiff and plaintiff’s wife to occupy it. The defendant’s

effort consisted of stacking rocks on the roof-covering.

[29] Furthermore, there is the clincher, which is this. The parties agreed upon

clause 15; they could not have discussed and agreed on clause 17, too. As Mr

Barnard asked rhetorically in his submission, if in terms of the lease agreement the

plaintiff was not in possession of the farmhouse, as the defendant insists, how could

the defendant recover possession of the farmhouse upon breach in terms of clause

15 which provides that upon breach the lessor is entitled to cancel the lease forthwith

and recover possession of the dwelling, ie the farmhouse.

[30] Standing on its own each one of these facts may not say much, but taken

cumulatively they point to this inexorable conclusion: The plaintiff’s version that

clause 17 as it stands was not agreed upon and that what was the common intention

of the parties and agreed upon was that the plaintiff and Mrs Burger shall live in the

farmhouse and use the household items that Mr Böwig had pointed out to Mrs

Burger is true. And what I said when I was considering clause 12 about the

defendant’s self-serving admission that clauses 13, 15 and 19 contain mutual errors

and his insistence that clause 12 and 17 record what the parties in fact agreed upon

apply with equal force to clause 17. Even in the face of all these pieces of evidence,

of course, the defendant would not admit that clause 17 was not agreed upon. To

admit that would jeopardize his quest to evict the plaintiff from the farm, as Mr

Barnard submitted. And so he must willy-nilly resist the rectification.

[31] Having taken into account the evidence and aforegoing reasoning and

conclusions and not forgetting the credibility finding about the defendant and the

observation about the defendant’s self-serving insistence that clause 17, like clause

12, was discussed and agreed upon, and also the fact that clause 17 in the lease

agreement was also lifted from the proforma contract, I hold that it is more probable

than not that the rectified clause 17 records accurately what the parties discussed

and agreed upon and so, here, too, the probabilities favour the plaintiff’s version. I

am, accordingly, satisfied that in the case of clause 17, too, the plaintiff has

discharged the onus cast on him for him to succeed in the claim for rectification. He

has here also satisfied the requirements set out in Trust Bank of Africa Ltd v Frysch.

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[32] In virtue of all the aforegoing reasoning and conclusions taken together, in my

judgement, the plaintiff has established that there are mutual mistakes in clauses 12,

13, 15, 17 and 19 of the lease agreement and that the rectified clauses of the

contract record accurately what the parties in fact agreed upon: they ‘conform to the

pricise intention of the parties’, to borrow the words of De Villiers JA in Weinerlein v

Goch Buildings Ltd 1925 AD 282 at 288. The plaintiff’s claim, therefore, succeeds;

whereupon –

(a) I make an order rectifying the contract in the following terms:

(i) Clause 12

The existing clause 12 is deleted and is replaced with the

following:

‘12. Repairs

The lessee shall be entitled to repair the fencing, water

installation, roads and housing to render it functional at his

expense’.

(ii) Clause 13

The existing clause 13 is deleted and replaced with the following:

‘13. Lessor’s right of inspection

The lessor shall be entitled:

At all reasonable times to visit the farm for inspection upon

prior notice’.

(iii) Clause 15

The existing clause 15 is deleted and replaced with the following:

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‘15. Remedies upon breach by Lessee

Should the Lessee fail to pay any rent on its due date or

commit a breach of any of the other terms of this lease, the

Lessor shall be entitled, upon the expiry of seven (7) days’

written notice to the Lessee to pay such rent or remedy such

breach, as the case may be, forthwith to cancel this lease

and to recover possession of the dwelling (without prejudice

to the Lessor’s rights to claim unpaid rent and any damages

they may have sustained consequent upon any such failure

or breach), unless within the aforesaid period of seven (7)

days, such rent shall have been paid or such breach shall

have been remedied, as the case may be’.

(iv) Clause 17

The existing clause 17 is deleted and the following is put in its

place:

‘17. Farmhouse

The Lessee shall have the right to use and occupy at any

time and for any period at their sole discretion the

Farmhouse on the farm’.

(v) Clause 19

The existing clause 19 is deleted and replaced with the following:

‘19. Payment

The payment for the rent shall be made as follows:

The Lessee shall pay the amount of N$102 300.00 per

annum in respect of rent. The balance shall be regarded as a

loan by the Lessor and be set off annually in the amount of

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N$102 300.00 against this Lease Agreement. The parties

have concluded a loan agreement in terms of which the

lessee loans an amount of N$1 023 000.00 to the lessor. The

first annual instalment of N$102 300.00 shall be deducted

from the amount loaned to the lessor. No interest on the loan

amount will be charged by the Lessee and the lease shall not

escalate at any point in time for the full duration of this

agreement. The full amount of N$1 023 000.00 in respect of

rent for the first year and the balance in respect of the loan

amount shall be paid to the Lessor on the 15th of April 2012

into the banking account of the Lessor’.

(b) The defendant must pay the plaintiff’s costs, including costs of one

instructing counsel and one instructed counsel.

----------------------------

C Parker

Acting Judge

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APPEARANCES

PLAINTIFF : P Barnard

Of P D Theron Associates, Windhoek

DEFENDANT: H Schneider

Instructed by Behrens & Pfeiffer, Windhoek