HIGH COURT OF NAMIBIA, MAIN DIVISION, WINDHOEKJUDGMENT

CASE NO. I 1074/2013

In the matter between:

B. V. INVESTMENT SIX HUNDRED AND NINE CC PLAINTIFF

and

LETTY KAMATI 1ST DEFENDANTNEW LEAF INVESTMENT (PTY) LTD 2ND DEFENDANT

Neutral citation: BV Investment Six Hundred and Nine CC v Kamati (I 1074-2013)

[2016] NAHCMD 216 (22 July 2016)

CORAM: MASUKU J:

Heard: 16, 17, 18, and 20 November 2015

Delivered: 22 July 2016

FLYNOTE: LAW OF CONTRACT – written lease agreement – oral parts alleged –

whether oral parts of agreements alleged are efficacious – the parole evidence rule –

whether applicable in the case - exceptions of application of parole evidence rule

NOT REPORTABLE

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considered – propriety of termination of lease agreement – whether the plaintiff suffered

damages as a result. LAW OF EVIDENCE – proper approach where the evidence

adduced is disparate and irreconcilable.

SUMMARY: The Plaintiff sued the defendants for breach of a purported written

agreement, in that the latter prematurely terminated the said agreement and failed to

pay rent for the months after termination running to the end of the contract. The sum

sued for also included a penalty amount as per the agreement as well for water

consumption.

Held – that evidence adduced by the defendant showed that an oral agreement had

also been entered into by the parties.

Held further- that the parole evidence rule would be inapplicable in the instant case, in

light of the finding that an oral agreement had been established by the defendants.

Held further - that to come to a conclusion on the disputed issues, a court must make

findings on the credibility of the various factual witnesses; their reliability; and the

probabilities.

Held further – that where parties intend to enter into a written agreement, such would

only be valid and create obligations on the parties’ once in writing and signed by both

parties.

Held further – that the exterior of the premises as presented by the plaintiff were not fit

for the business purposes intended by the defendant’s and hence the latter was justified

in terminating the purported agreement as they did.

In conclusion, court found that the parole evidence rule is in applicable to the instant

case for the reason that the parties’ also concluded an oral agreement.

ORDER

1. The Plaintiff’s claim is dismissed.

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2. The Plaintiff is ordered to pay the costs of suit.

JUDGMENT

MASUKU J:,

Introduction

[1] The plaintiff is a Close Corporation duly registered in terms of the Close

Corporation Laws of this Republic and conducts its main business from 146 Bach

Street, Windhoek West.

[2] The 1st defendant is an adult female business woman who is involved in a

number of business ventures, with her given address as 124 John Meinert Street,

Windhoek. The 2nd defendant is a company duly incorporated in terms of the Company

Laws of this Republic, sharing the same address as the 2st defendant.

[3] On 27 June 2012, the plaintiff, duly represented by Mr. Maurice Zide (Mr. Zide),

and the 1st defendant, duly representing the 2nd defendant, entered into a written

agreement of lease in terms of which the plaintiff let and the defendants hired premises

known as 146 Bach Street, Windhoek West. Erf No. 6091, consisting of 3 bedrooms, 2

bathrooms and other amenities. The lease was to run for a period of 12 months.

The claim and defence

[4] The plaintiff sued the defendant for the payment of an amount of N$ 40 672.55

being damages allegedly incurred by the plaintiff as a result of the defendants’

termination of the agreement in question before the time that was agreed upon in the

lease agreement and also allegedly because the defendants failed to pay rental due

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from the month of November 2012 and also for the reason that they allegedly failed to

pay a penalty amount stipulated in clause 4 (b) of the agreement and water

consumption to mention but some of the issues in contention.

[5] In defence, the defendants averred that before the conclusion of the agreement,

the parties had agreed that the plaintiff would cause renovations to be made on the

premises which and which renovations would also upgrade the exterior of the house by

no later than the end of July 2012. The defendants further alleged that they were forced

to vacate the premises as a result of the plaintiff failing to address the condition of the

exterior of the house despite numerous undertakings. They accordingly deny that they

are liable to the plaintiff in the amount claimed or at all.

Issues for resolution

[6] In terms of the pre-trial order filed by the parties and endorsed by the court, the

legal issues for determination were the following:

(a) Whether the defendants were entitled to rely on an oral agreement concluded

before or at the time of the conclusion of the written agreement;

(b) Whether the 2nd defendant breached the lease agreement by vacating the

premises before the expiry of the lease period;

(c) Did the plaintiff suffer damages as a result of the alleged breach by the 2nd

defendant?

(d) Whether the plaintiff is entitled to payment of the rent from November 2012 to

February 2013 in the amount of N$35 500; and

(e) Whether the defendant is liable for penalties incurred as a result of the late rental

from 8 November 2012 to 28 February 2013 in the amount of N$ 3 955.

The evidence

[7] Each of the parties called one witness, being the ones who represented the legal

personae in the conclusion of the written agreement, namely Mr. Zide and Ms. Kamati. I

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shall commence with the evidence led on behalf of the plaintiff after which, an analysis

of the evidence led will ensue, culminating in findings on matters of fact as the judgment

draws to a close.

[8] In his witness’ statement, Mr. Zide stated that on 12 February 2012, he left

Namibia for the United States and asked Mr. John Mbambi to find a tenant for the

property in question. On 27 June 2012, the lease agreement with the 1st defendant was

then entered into on the terms stated earlier and that the defendants took occupation of

the main house in the middle of July 2012.

[9] Mr. Zide then gave a detailed account of his interactions with the 1st defendant

related to the renovations of the exterior of the house, including that of the perimeter

wall fence. He had informed the defendants that the works on the perimeter wall would

be finished by the end of July 2012 by which time he would be back in Namibia. The

renovations were not done after Mr. Zide returned on 15 July and he wrote an email to

the 1st defendant informing her that the renovations which were being done by Mr.

Shigwedha would be continuing on the walls. Mr. Shigwedha then resigned on 31

August 2012 with the works still not completed. The resignation and the efforts to find a

replacement for him were conveyed to the 1st defendant by email dated 8 September

2012.

[10] By email dated 29 September 2012, Mr. Zide informed the 1 st defendant that he

had hoped to replace the gate on Bach Street with a new one and would also install a

Hansa Motor into the gate by November 2012. In October, 2012, a Mr. Van Rensberg of

Sebies Welding was to replace the gate. On 16 October 2012, the 1st defendant

informed Mr. Zide that she could not use the gate to the main house for the intended

purpose because there was always rubbish around the yard and leaves all over the

place; there was no maintenance; the property was going through constant unending

renovations; holes were being dug in the property and there were trenches and that the

gate on Bach Street fell on her. These were the reasons she gave for terminating the

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lease agreement and stated that her email dated 16 October 2012 which conveyed

these complaints would serve as notice of her termination.

[11] Mr. Zide stated that he had informed the 1st defendant of the problems with the

gate on Bach Street and that it was not working properly and had provided her with a

remote control for the gate on Alexander Street. It was his evidence that he attempted

to address all the complaints laid by the 1st defendant by email dated 19 October 2012

to which she did not respond. The following day, the 1st defendant notified them that she

was vacating the property. I will not detail all the contents of the statement.

[12] In cross-examination, Mr. Zide agreed that the claim was for a period of 4 months

i.e. for November, December 2012 and for January and February 2013. It was his

evidence that he obtained a tenant after the defendants vacated the property as from 1

March 2013. He denied that there were any oral parts of the agreement as alleged by

the defendants. He also testified that the property was in a suitable state when the

defendants took occupation of it.

[13] Pictures were shown to Mr. Zide of the property when the defendants took

occupation of the property and he accepted that they depicted a correct picture of the

premises then. He also conceded some pictures taken after occupation even close to

the time the defendants moved out. In particular, he conceded that a picture at p. 64 1

(Exh. ‘4’) was taken four days before the defendants vacated the property. It was his

evidence that the property in question was in order as three other tenants on the

property did not complain about its state, thus pouring scorn as it were on the

defendants’ reasons for terminating the agreement.

[14] Mr. Zide admitted that he was aware that the 1st defendant used the property as

an office. He further admitted that he got to know of the 1st defendant’s concerns from

the emails that she sent but denied that they were accurate e.g. that there were

trenches being dug within the yard as part of the renovations. Later in his evidence, Mr.

Zide stated that these were not renovations but maintenance work that was being

1 Plaintiff’s discovered documents

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carried on in the yard. It was put to him that the defendants had complained about the

state of the yard on a number of occasions verbally and even threatened to move out of

the property because of the state of the grounds and surrounds. He disagreed with this.

[15] It was also put to Mr. Zide that the defendants could not utilize the property for

the purpose they had rented it for because of the poor condition the exterior was in and

he denied this. It was put to him that the agreement had not even been signed on behalf

of the lessor and he admitted this. He denied that he did not finish the renovations and

stated that had he been desirous of renovating the wall, he would have included this

aspect in the lease agreement itself. No questions were asked in re-examination and

the plaintiff closed its case.

[16] At this juncture, the defendants opened their case and the 1st defendant testified.

It was her evidence that they had moved into the property in question in August and

vacated same on 3 December 2012. She identified the lease agreement and stated that

she had signed same on the 2nd defendant’s behalf. It was also her evidence that the

property was rented because she needed an office from which she would run her

businesses, namely, a construction business and a deco shop, as well as an estate

agency, to mention but a few.

[17] Ms. Kamati also informed the court that the contract between the parties was

partly oral and partly written. The first part of the oral agreement that she testified about

was with regard to the usage of the property. In the agreement, she testified, the

property was to be used for residential purposes but she informed the plaintiff that she

needed same for office space and that she communicated this to Mr. Mbambi by email

at page 9 of the defendants’ discovery bundle.

[18] It was also her evidence that they also agreed with the plaintiff regarding the

renovations to be done on the property both with Mr. Mbambi and Mr. Zide, the latter of

whom she spoke to telephonically. This, she testified, Mr. Zide confirmed by email dated

27 June 2012 and referred in particular to the second last paragraph thereof.

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[19] Ms. Kamati further testified that upon taking occupation of the property, she

discovered that they could not enter the property through the gate but had to use a

pedestrian gate on Bach Street and this caused her to write an email to Mr. Zide in

protest. Furthermore, she testified, she could not use the vehicle to enter the property

because she had no keys to the gates and that most of the gates were in any event

broken. In view of all this, she decided to terminate the agreement in October 2012 as

the agreement that the property would be attended to and would be put in a good

condition to suit the needs of her business was not honoured by the plaintiff.

[20] It was her further evidence that another difficulty she had was that she could not

park her vehicle inside the yard as there were no keys to the gates. When the plaintiff

did give her the key to the Bach entrance, it fell on her and she had to continue parking

outside the yard. She testified further that the plaintiff then dug a trench between his

house and one of her neighbours and this left a pile of sand which meant she could not

drive into the property. The other entrance also had some trenches dug and she could

not access the property as the Mr. Zide’s vehicle was always parked on the driveway.

[21] Ms. Kamati also testified that in September/October 2012, she came to the

property and when she opened the gate, it came down hard on her and she walked with

a limp for a period of about two weeks. Furthermore, the property was located opposite

to a bar and where violence was constant feature, resulting in one point in 3 people

being killed. This she testified, heightened her fears as she felt very unsafe and had, in

those perilous circumstances, to park her vehicle outside the property which militated

against her safety, particularly as a woman who sometimes worked long hours

demanded by the exigencies of her business. She testified further that she held

numerous meetings with Mr. Zide regarding all these complaints and that his refrain was

that he would attend to these matters. According to her, he was not a man of truth as he

would always make promises that were never fulfilled.

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[22] As a parting shot in her evidence-in-chief, Ms. Kamati told the court that she

could not use the property as she wanted or had intended. Her business, she continued,

hinged on the image that she portrays. She testified that clients would not have come to

transact business with her in those terrible conditions as the environment was not

conducive and the clients would not have confidence in her ability to deliver because of

the tattered image the premises portrayed. The state of the premises, she further

testified, left her bruised and in anguish as she made payment for her rentals on time

but the plaintiff never honoured its word from the moment they moved into the premises.

[23] It was also her evidence that seeing the plaintiff not honouring their undertakings,

she put Mr. Zide on terms and threatened to move out. This situation led to her

interviewing some of the plaintiff’s workers to find out what the problem might be. She

eventually told Mr. Zide that if the renovations are not finalised by the end of August

2012, the defendants would then move out of the premises. He again promised to make

good on the issues but never did, she testified further.

[24] In denouement, Ms. Kamati denied that she owed the plaintiff any money at all. It

was her evidence that it was the plaintiff that had breached the agreement. Her talking

to Mr. Zide on many occasions had not brought any fruit and she felt compelled in the

circumstances to terminate the agreement, having extended her patience beyond its

elastic limits, so to speak.

[25] In cross-examination, it was pointed out to Ms. Kamati that there was nothing in

the lease agreement that placed a burden on any party to carry out renovations by any

date and she agreed but also denied this, saying that the lease agreement placed a

duty on the plaintiff to maintain the property. She admitted that there was no clause

dealing with date for finishing renovations. Taxed on the oral part of the agreement

related to renovations, it was her evidence that she and Mr. Zide agreed before the

signature of the lease agreement that the plaintiff would renovate the premises and he

undertook to finish same by end of July 2012.

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[26] She testified on being taxed by Mr. Marcus for the plaintiff that further terms of

the oral agreement related to the plaintiff installing a remote controlled gate with an

answering machine; the cleaning of the yard, keys to the gates and a code for the

alarm. It was suggested to the 2nd defendant that Mr. Zide would return to Namibia and

then attend to the finishing of the wall and this Ms. Kamati denied stating that Mr. Zide

had engaged a Mr. Solomon to do the wall and that its finishing had nothing to do with

Mr. Zide’s presence.

[27] Pressed further on the oral part of the agreement and if it was not important for

her to have recorded the oral parts of the agreement in writing, it was Ms. Kamati’s

evidence that she did not find it necessary to do so for the reason that she had agreed

on the relevant issues with Mr. Zide and there was no need to put this into writing to

make it an agreement. It was her evidence that she did not only deal with Mr. Zide but

also with Mbambi, who were representing the plaintiff and who she also spoke to

regarding her complaints. In particular, it was her evidence that to show that there was

an agreement, Mr. Zide apologized for not having done things which are not in the lease

agreement but which they had agreed upon e.g. the email on p.38 and p.53.

[28] Ms. Kamati also testified that she did not find it necessary to reduce to writing

what the oral parts of the agreement were because she saw Mr. Zide on a daily basis as

he resided on the property and he kept on making verbal promises regarding attending

to the contentious issues. It was her evidence that Mr. Zide promised her verbally when

she complained about the premises that he would finish the wall by the end of July. It

was her evidence that as a contractor, the work outstanding was minor and it would not

have taken long to finish. It was put to her that she did not do enough to show that she

was unhappy with the state of the property particularly because in her reply to an email

on p.29 she merely said ‘Ok!’ It was her evidence that the emails did not accurately and

fully reflect the contents of their conversations because they met very regularly and

spoke about these issues which were of concern to her and at times, she dealt with the

plaintiff’s agent regarding those issues.

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[29] It was Ms. Kamati’s further evidence that she agreed to a few extensions of time

with the plaintiff and that the last deadline reached was at the beginning of October. In

this meeting, she testified, she told Mr. Zide that she was giving him the last chance to

redeem himself by 16 October, 2012, and when he did not, she moved out as promised,

thus converting her threat this time to a promise that was fulfilled. When asked why she

gave the plaintiff only two weeks to remedy the defects when the continued inaction

affected her business, Ms. Kamati testified that she had endured a lot and had been

limping for two weeks as a result of the gate falling upon her but she tried, all being said

to be reasonable with Mr. Zide because he was always explaining his problems to her

which caused her to be accommodative. She went on to quote an Oshiwambo saying

that a good word eradicates sins, meaning that as much as he was affected and

concerned with the effect the problems had on her business, she was also

accommodating to the plaintiff, which she said was probably her weakness. That was

the extent of the case as the defence also closed its case after Ms. Kamati’s evidence.

Analysis of the evidence

[31] It will have become obvious that the versions of both protagonists are, in large

measure, irreconcilable on the issues in need of determination. The question for

determination, in this instance is how is the court expected to approach this disputed

and irreconcilable evidence in order to make the necessary findings of fact?

[32] In SFW Group Ltd and Another v Martell Et Cie and Others,2 the court adopted

an approach that has been adopted by our courts in Life Office Namibia Ltd v

Amakali.3The court approached the matter from the following basis:

‘The technique generally employed by our courts in resolving factual disputes of this

nature may conveniently be summarized as follows. To come to a conclusion on the disputed

issues, a court must make findings on (a) the credibility of the various factual witnesses; (b) their

reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular

2 2003 (1) SA 11 (SCA) at p. 14H-15E.3 2014 NR 1119 (LC) 1129-1130.

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witness will depend on its impression about the veracity of the witness. That in turn will depend

on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’

candour and demeanour; (ii) his bias, latent and blatant, (iii) internal contradictions in his

evidence, (iv) external contradictions with what was pleaded or put on his behalf, or with

established fact or with his own extra-curial statements or actions, (v) the probability or

improbability of particular aspects of his version, (vi) the calibre and cogency of his performance

compared to that of other witnesses testifying about the same incident or events. . .’

[33] I will apply some of the applicable principles and tests in coming to a conclusion

on the disputed matters in this case. I will consider the witnesses’ credibility,

demeanour, and particularly how they fared under cross-examination

[34] Having had the privilege to see, hear and assess the witnesses as they adduced

their respective pieces of evidence, I can say without fear of contradiction that the

plaintiff’s witness struck me as an extremely poor witness. He was given to too many

words (not in and of itself bad or wrong) which eventually led to him spinning an

intractable web around himself, resulting in him contradicting himself on a number of

issues. In respect to others, he was deliberately vague, at times playing a game of

semantics which did himself no world of good whatsoever, as a witness of truth. In other

instances, he found himself in a tight corner where he had no other defence than to

deny what was evident. The most obvious in this regard related to pictures which

depicted the state of the yard of the premises and which Mr. Zide insisted was good to

him when to the eye of the independent and detached was an atrocious sight for

premises where a business was to be conducted and money therefor was being paid on

time and regularly.

[35] In this regard, I will quote a few examples of his vagueness, contradictory

evidence and display of extreme poverty as a witness of truth, particularly under

scorching cross-examination from Mr. Small for the defendants. So irremediable was his

position that it must have proved an uphill battle for Mr. Marcus to patch up the damage

done to the plaintiff’s case by Mr. Zide’s woeful performance in the witness box. In this

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regard, no question was asked in re-examination that would have sought to ameliorate

the damage done to the plaintiff’s case by its star and only witness.

[36] Regarding the question of renovations on the premises, the following ensued in

the battle of wits between Mr. Zide and Mr. Small:

Q: You are not aware of constant renovations on the premises?

A: No.

Q: Are you aware that the defendant had problems with trenches being dug?

A: No.

Q: Are you aware that the gate fell on the defendant?

A: I read that from her email.

Q: Are you aware that the defendant had concerns regarding the trenches?

A: Yes as per her statement but I am not aware of the trenches.

Q: Are you aware that the defendant was concerned about the constant

renovations?

A: In her email she stated that. I don’t know of the constant renovations. There

was some renovation on the boundary wall and she didn’t rent that.

Q: Was there constant renovations or not?

A: Yes.

Q: You said there were no constant renovations and now you say there were?

A: I said no to constant renovations – 24 hours a day and 7 days a week.

Q: If you read at p39 don’t you see the defendant complained that the place was

undergoing constant renovations?

A: As stated, no constant renovations means continuously. It was two days a

week and 8 times a month.

Q: July, August, September and in October, still renovations?

A: These were not constant renovations.

Q: In November, you were still busy with renovations, maintenance or whatever

you call it?

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A: Yes. We were renovating the boundary wall. (Evasive and pretended not to

have heard the question posed to him, alleging the question was ambiguous.)

[37] There were occasions when the plaintiff was cross-examined on the photographs

captured at the scene. I quote a few samplings from the battle of wits below:

Q: The defendant’s photographs in October 2012 Exh. 12 – the front gate of the

property. Do you see it?

A: Yes.

Q: If you compare it with p. 71 it is the same driveway captured from a different

angle?

A: Yes.

Q: Exh. 11 was captured in 2014 and Exh. 12 in October 2012. Is there any

difference in the condition of the property?

A: The driveway is in the same condition.

Q: Really?

A: Please repeat the question. I don’t understand.

Q: Do you see the rocks on the driveway?

A: No. (The rocks are on the picture and very visible)

Q: What do you see?

A: A pile of dirt removed from the foundation of the old boundary wall.

Q: You see how the fence is hanging to the left?

A: Yes.

Q: If you were to visit your estate agent and find the property in this state, what

would you think?

A: That the place is being renovated.

Q: Would you expect a professional person like the defendant to operate from a

place like this?

A: Yes…..

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Q: I put it to you, the defendant complained about the state of the property

several times and put a condition that if you do not remedy the problems, she

would move out?

A: Please repeat the question. It is confusing….”

[38] The excerpts quoted above provide a very small insight into Mr. Zide as a

witness. I am of the view that there were many other aspects of his evidence that were

less than satisfactory. The foregoing, however, do suffice for the purpose of showing the

basis for my conclusions that he was a very poor witness, and showed deep cracks

when put under scorching cross-examination, which puts paid my conclusions recorded

elsewhere above.

[39] On the other hand, perhaps for a few and minor incidences, the 1st defendant

acquitted herself extremely well in the witness box. This was despite searching and

relentless and at times brutal cross-examination by Mr. Marcus. Ms. Kamati was as

constant as the Northern Star and stuck to her evidence like a postage stamp to an

envelope. She showed a remarkable degree of cool headedness and consistency in her

evidence.

[40] One key issue on which she impressed me was with regard to the allegations

made in her plea that there was an oral agreement made with Mr. Zide regarding some

aspects of the lease agreement, including the disputed undertaking to finish the wall by

the end of July 2012. She pointed to other issues which do not form part of the lease

agreement and which were proved by incontestable evidence to have formed part of the

agreement and some of which the plaintiff’s witness himself testified. These included

the remote controlled gate, the keys thereto and the alarm code. One of the main issues

was that the lease agreement stated in black and white that the premises were to be

used for residential purposes but an oral agreement was made to allow the defendants

to approach the City Council to grant the defendants permission to use the property as

an office. This could not be gainsaid and proves the truth of her assertion on a balance

of probabilities.

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[41] Ms. Kamati made a favourable impression on me. She struck me as witness who

showed remarkable understanding and patience and seems at times to have been

unhinged and disarmed by Mr. Zide’s demeanour and charm as a person who was not

confrontational but always apologetic for any shortfalls in the promises he had made. I

found it unfair, in the circumstances, for Mr. Marcus, to use that benevolence as a

sword against her when she appeared to have been overly indulgent to the plaintiff in

the light of the failure to comply with the undertakings made regarding the fitness of the

premises for running her business. In this regard, I found her to be humane, with

Ubuntu, a virtue to be praised and not condemned.

[42] Having regard to the foregoing analysis, I am of the considered view that the

evidence of the defendants is worthy of being believed as it was adduced matter-of-

factly and was in some instances corroborated by objective facts. Mr. Marcus criticized

Ms. Kamati for not answering questions honestly and also alleged that she fabricated

facts. I did not, at any stage, gain that impression. My impression of her as a witness is

as far as Mars is from Jupiter from that Mr. Marcus painted in his heads of argument.

That of the plaintiff was a horse of a different colour. It, in large measure, constituted a

damage limitation exercise as the faults and crevices were evident for all to see, no less

from what I have quoted in the preceding paragraphs above.

[43] In the premises, subject to what I say below regarding the validity of the written

agreement, I do find for a fact although the agreement was for the large part written,

there were certain parts of it that were oral and which became efficacious and a proper

basis for the defendants to terminate the contract. One such issue, I hold for a fact, is

that relating to the completion of the wall. The issue of the finishing of the wall was

recorded by Mr. Zide himself in an email to Ms. Kamati, dated 27 June 2012 before he

even returned to the country.4 I find the plaintiff’s explanation to have been unbelievable

even to Mr. Zide as he stood giving evidence. I shall, in view of this finding of fact, deal

4 Exhibit ‘F’ P 10 of Plaintiff’s Bundle.

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with the argument regarding the application of the parole evidence rule as argued by the

plaintiff in oral submissions that it dealt a shattering blow to the defendants’ case.

[44] I also find for a fact that the premises were unfit for the purpose for which they

were rented in so far as the exterior of the building was concerned. Ms. Kamati’s

evidence that the premises were under constant renovation do not appear to have been

false nor an exaggeration in the circumstances. Her evidence was corroborated by

pictures that were captured at different times and Mr. Zide himself failed to convincingly

deny that the place was being renovated, choosing for convenience, to call the exercise

one of maintenance and not renovation.

[45] Some of the pictures captured and admitted in evidence make a sorry sight to

behold with gravel, holes and trees and leaves all over the place, the fence to the

premises precariously hanging for dear life as it were. No less important is the

undeniable fact that the 1st defendant’s inability to park her vehicle within the premises

and that the gate fell upon her, injuring her in the process. Although these latter events

may not have been the direct cause of her decision to terminate the agreement, it is

clear that on the whole they played and were entitled to create a compelling mass that

led to her decision to terminate the contract.

[46] On all accounts, I can say that Ms. Kamati was incontrovertibly not treated fairly

by the plaintiff. The email communication between the parties also bears testimony to

the truth and plausibility of the defendants’ case and correspondingly, does the plaintiff’s

case a great deal of harm as one sugar-coated apology followed another for failure to

perform. I am of the view that given her business of running a contractor business and

an estate agent, the exterior of the premises could do very little to attract potential

clients but would be likely to have constituted a repellant. I say this because it was very

clear very early in the inception of the agreement what the premises were aimed for,

thus necessitating the change in the permission sought from the City Council of

Windhoek. I shall revert to deal in greater detail with Mr. Marcus’ argument on this

aspect later

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The legal contentions

The parole evidence rule

[47] It was contended on behalf of the plaintiff that whatever may have been said or

attempted to be established by the alleged oral agreement should not be allowed to

stand for it transgresses the parole evidence rule. I intend to determine the sustainability

of this contention presently.

[48] The first issue to determine, is whether the agreement cited by the plaintiff and

on which the claim is premised is valid in terms of the law. One curious feature is that

only the 1st defendant signed this document and the no signature was appended for and

on behalf of the lessor. What is the legal significance of this?

[49] In Goldblatt v Freemantle,5 the Appellate Division of South Africa dealt with the

question of self-imposed formalities in cases where the law does not prescribe any. In

the instant case, it would seem that the parties intended to enter into a written contract,

the memorial of which is annexed to the particulars of claim. Furthermore, the intention

was for the said agreement to be binding on both parties as signified by the signature of

both appended thereto. The fact that the plaintiff did not sign the written agreement, in

my view raises doubt as to the validity of the said agreement as a binding document

between the parties. Furthermore this raises the propriety of the plaintiff relying on the

said agreement it evidently did not sign.

[50] At p.129, Innes CJ stated the following regarding the need to reduce the

agreement to writing and signing same:

5 1920 AD 123.

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‘At the same time it is always open to the parties to agree that their contract shall be a

written one and in that case there will be no binding obligation until the terms have been

reduced to writing and signed. The question in each case is one of construction’

Further down the page, the learned Chief Justice cited the words of Maasdorp J, who

held that a written contract involved the signature of both, he further held that such a

contract cannot be said to have been fully executed until the consent of the parties has

been expressed by their signature upon the document of documents consisting the

written agreement.

[51] In the premises, I am of the considered view that the plaintiff’s strong reliance on

the application of the parole evidence rule is misplaced in the circumstances. It did not

act in accordance with the document of which it was the author and which it now seeks

to invoke to its benefit.

[52] In the event that I am incorrect in the conclusion that the written agreement was

invalid because the plaintiff did not sign same, it is my considered view that on a proper

consideration of the evidence, it is clear that an oral agreement between the parties was

reached. In this regard, the issue of the purpose for which the premises were rented

features prominently.

[53] Furthermore, there is an email (exhibit F) dated 27 June 2012 written by Mr. Zide

to the 1st defendant in which he says ‘We will be finishing the boundary wall when we

return back at the end of July. I need to supervisor (sic) Salmon closely when he does

that’. It will be noted that the email bears a date even with that on which the 1 st

defendant signed the lease agreement. In the premises, it is clear, contrary to what was

put the 1st defendant that an agreement was reached by the parties regarding the

renovation of the boundary wall. This I find, was orally agreed by the parties and cannot

be excluded by the invocation of the parole evidence rule as argued by the plaintiff.

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[54] It would shock my sense of justice where a party in addition to entering into a

written agreement also agrees to oral terms which he belatedly seeks to deny by

invoking the parole evidence rule when evidence abounds to the effect that both parties

acted in line with the oral agreement, and before the written agreement was concluded.

[55] In this regard in Harlin Properties (Pty) Ltd and another v Los Angeles Hotel (Pty)

Ltd6 , the Appellate Division expressed itself in the following terms:

‘If there is a proposal in writing and it is accepted simpliciter, the entire agreement is

considered to be in writing, and no evidence is admissible to add to, diminish or vary the written

proposal: but if the written proposal is not accepted as it stand, but is verbally modified before its

acceptance, then the Court has a right to look at all the circumstances before and after the

bargain for the purpose of ascertaining what was the real contract between the parties’.

Were the premises fit for the purpose?

[56] A lot of play was made by Mr. Marcus on the condition of the property, he

arguing that the defects, if any, on the property were not of such materiality as to affect

the use and enjoyment of the property by the defendants. He monotonously harped on

the argument that the defendants had not said that they would use the property as an

estate agency but for other purposes, namely as an office to serve as a head office for

projects that were running in the regions. Ms. Kamati was quoted as having said in part

in her email at p 9 of the plaintiff’s bundle, ‘Our work is mainly in the Regions, but in

Windhoek we have our head office which we run as an administration centre for all the projects,

our purpose for acquiring the office is mainly for that.’

[57] I am of the view that this does not take the plaintiff’s argument any further

because the very email quoted by Mr. Marcus above, at the beginning, mentions the

estate agency as one of the businesses to be conducted at the premises. This shows

that Mr. Marcus quoted the email selectively, choosing to include only the parts that are 6 1962 (3) SA 143 (A) at 149.

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favourable to his client’s case and excising the unfavourable ones. It is a fact and a

matter of record that the premises were also used as an estate agency and this was not

controverted and appears very clearly as indicated above, in the defendant’s email to

Mr. John Mbambi dated 20 June 2012.7

[58] In any event, I am of the view that besides the estate agency business

mentioned in the email in question, the other businesses themselves required premises

that were attractive outside e.g. property management, property designs and

decorations, certainly would need to engender confidence in potential clients that they

had able advisors from the image of the premises the said advisors or service provider

occupied. Furthermore, and in any event, whatever the nature of the business to be

conducted thereat, the purported lease agreement made it very clear in clause 7 that it

was the responsibility of the lessor to maintain and keep the premises in the exterior of

the property in a good condition.

[59] I am of the considered view that the state of the property as depicted in the

pictures and which are undoubtedly pictures of the property in question, were in such a

disheveled state that even if the estate agents business was not being run there it would

have been a source of embarrassment to any right-thinking business person to run a

business from such dirty and at times dangerous premises. In particular, I have in mind

the pictures marked Exhibits 12, 13, 14, 15, 16, 17 and 18. They depict a sorry sight,

with leaves; rubble; gravel; a falling wall fence with a trench dug alongside it; uncleared

bush; exposed water and other pipes and trenches on the ground.

[60] It is clear in evidence that the defendant complained and in a sustained manner

about the perilous state of the premises as described above and which protestations

were met with a lot of promises by the Mr. Zide but which were not translated into

corresponding action. I am of the considered view that these factors justified the

defendant terminating the purported lease agreement. The defendants had bent over 7 Page 9 of the plaintiff’s bundle of documents and reads as follows: ‘New Leaf Investments (Pty) Ltd, Our main business activities are as follows: Construction and Renovation, Property Management, Real Estate Investments Consultants, Project Management, Real Estate Agency Property Designs & Decoration, Curtaining . . .’

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backwards to accommodate the plaintiff, to the point that their backs almost broke. The

termination of the agreement was therefore, in my view justified as even in October

2012, the premises were still in a terrible state despite the plaintiff’s promises.

Answer to questions in the pre-trial order

[61] At para 6 of this judgment, questions posed and in need of an answer by this

court were recorded as they appear in the pre-trial order. I return and answer the

questions as follows:

(a) The defendants established that they were entitled in the circumstances,

to rely on an oral agreement concluded before or at the time of the

conclusion of the written agreement;

(b) The 2nd defendant did not breach the lease agreement by vacating the

premises before the expiry of the lease period because the lease

agreement was validly terminated as a result of the plaintiff failing to

comply with its obligations thereunder;

(c) As a result, the plaintiff did not suffer damages as a result of the

termination of the agreement in the circumstances;

(d) And (e) in view of the conclusions above, the plaintiff is not entitled to the

amounts set out in those paragraphs.

Conclusion

[62] For the foregoing reasons, I am of the considered view that the plaintiff’s claim

should fail and it is accordingly dismissed with costs, such costs to include the costs of

one instructing and instructed counsel.

____________

TS Masuku

Judge

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APPEARANCES:

PLAINTIFF: N Marcus

Instructed by Nixon Marcus Public Law Office

DEFENDANTS: A Small

Instructed by Fisher, Quarmby & Pfeifer