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