REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK
JUDGMENT
Case No: I 2266/2009
In the matter between:
RICHARD KATJAIMO
...................................................................................PLAINTIFF
and
CLAUDIUS KATJAIMO
..................................................................FIRST
DEFENDANT
MONICA KATJAIMO
.................................................................SECOND
DEFENDANT
ANTONIA KATJAIMO
...................................................................THIRD
DEFENDANT
GERHARD KATJAIMO
.............................................................FOURTH
DEFENDANT
EWALD KATJAIMO
.......................................................................FIFTH
DEFENDANT
Neutral citation: Katjaimo v
Katjaimo (I 2266-2009) [2013] NAHCMD 98 [15 April 2013]
Coram: UNENGU, AJ
Heard: 2-5 April 2012; 3-6
September 2012; 10-12 September 2012 and 3 December 2012
Delivered: 15 April 2013
Flynote: The plaintiff –
Registered owner of portion 7 (a portion 6) of Farm Tugab No 21 –
in possession of the defendants – claiming delivery of same –
the defendants alleging acquisition of usufruct - The Court, refuses
the plaintiff’s action and finds in favour of the defendants.
Summary: Registered owner of
Farm Tugab West No 21 has sued the defendants for delivery of the
farm which is in their possession. The defendants counterclaimed and
alleged that they have been allowed by the plaintiff to stay on the
farm as if they were co-owners of the farm; in the alternative that
they have acquired a lifelong usufruct to stay on the farm: Court
refuses the plaintiff’s claim and finds in favour of the
defendants on the alternative claim.
___________________________________________________________________
ORDER
In the result, I make the
following order:
(i) The plaintiff’s
claim is refused.
(ii) The defendant’s
counterclaim (alternative claim) succeeds.
(iii) Each party to pay
own costs.
___________________________________________________________________
JUDGMENT
UNENGU, AJ: [1] In this matter, the
plaintiff instituted the action against the defendants, initially
claiming for an order confirming the cancellation of an alleged oral
agreement between him and the defendants and to eject the defendants
and their cattle from the farm Tugab No 21 where the plaintiff and
the defendants were living and farming together as a family for a
long time.
[2] The plaintiff claims
that he is the registered owner of Farm Tugab No 21 according to the
Deed of Transfer No T3613/1990. He further alleges that during 1982
the defendants and him entered into an oral agreement in terms of
which he had leased to the defendants as lesses a portion of Farm
Tugab No 21.
[3] The defendants
occupied the farm in 1982 as a sequence of the alleged oral
agreement. It was also a term of the oral agreement that the
defendants will allow their cattle to graze on the farm.
[4] However, the
plaintiff, during 2008 decided to cancel the agreement because the
defendants obtained cattle brand marks from the Meatco Board of
Namibia. Despite the termination of the defendants’ right to
occupy the farm, they failed to vacate the farm.
[5] The defendants
requested further particulars from the plaintiff which further
particulars were duly provided. According to the further particulars
provided, the alleged oral agreement between him and the defendants
was concluded in October 1982 at Farm Tugab West No 21.
[6] Further, the
plaintiff informed the defendants that he represented himself during
the conclusion of the oral agreement while first and third defendants
acted on their own behalf and on behalf of the second, fourth and
fifth defendants and it happened in the presence of the late
Stephanus Katjaimo. This information and other more particulars
requested were provided. The plaintiff stated that he had terminated
the oral agreement because the defendants obtained cattle brand marks
from Meatco Board of Namibia without his consent. The defendant ought
to have obtained written consent from the plaintiff before applying
for the brand marks which they have not done.
[7] Thereafter, the
defendants tendered their plea and alleged amongst others that the
registration of portion 7 of Farm Tugab No 21 in the name of the
plaintiff was intended to be temporary because, the plaintiff was
merely a nominal representative of all the defendants and the late
Stephanus Katjaimo who was the old person of the Katjaimo family,
until the establishment of a Katjaimo family company.
[8] The defendants
further pleaded that they did not enter into any lease agreement, be
it oral or in writing to hire a portion of the farm as the plaintiff
was alleging – but have access to the whole farm in their
capacity as co-owners of portion 7 (a portion of portion 6) of Farm
Tugab No 21.
[9] In the alternative
the defendants pleaded that they are on the farm in their respective
capacities as shareholders and/or directors of the company known as
Katjaimo (Pty) Ltd, the true owner of the farm or in accordance with
the law, custom and usage of the Herero people of Namibia, which they
alleged to be binding on the plaintiff.
[10] In addition to the
plea, the defendants also filed a counter-claim against the plaintiff
wherein they restated what they said in their plea that portion 7 (a
portion of portion 6) of Farm Tugab No 21, was acquired by the late
Stephanus Katjaimo and that the plaintiff merely conducted the
affairs of the late Stephanus Katjaimo because Stephanus Katjaimo was
uneducated. Further, that the farm was registered in the plaintiff’s
name on a temporary basis until the establishment of the Katjaimo
family company.
[11] Further to the
above, the defendants counterclaimed that during or about 1994 the
plaintiff, the defendants and the late Stephanus Katjaimo agreed that
the plaintiff should transfer the farm to Katjaimo (Proprietary)
Limited which is the family company, that the defendants acquired a
lifelong usufruct in respect of portion 7 of portion 6 of farm Tugab
No 21.
[12] According to the
defendants, the farm was purchased with the view to provide the
defendants and their children with the right to reside thereat, to
farm it and to enjoy the fruits thereof.
[13] The plaintiff
tendered a plea to the counterclaim of the defendants in which plea
he denied some of the allegations in the counterclaim and explained
why he denied these allegations. He emphasised the point that at all
material times, he was and still is the lawful and registered owner
of the farm.
[14] At this stage, the
plaintiff was represented by Elmarie Thompson of Elmarie Thompson
Inc.
[15] However, it would
appear that Mr Stolze of Chris Brandt Attorneys also acted as a legal
representative for the plaintiff at one stage if regard is had to a
letter dated Wednesday, November 5, 2008 addressed to Conradie &
Damaseb Legal Practitioners which dealt with issues of a certificate
of registration of brands for the brandmark TJW in the name of the
plaintiff wherein notice was given to the defendants together with
their families and belongings, including cattle, to vacate the farm.
[16] How this happened,
is not clear from the record because Ms Elmarie Thompson of Elmarie
Thompson Inc was still the legal practitioner of record for the
plaintiff. But soon thereafter, Miss Thompson was replaced by Messrs
Hengari, Kangueehi & Kavendjii Incorporated as legal
practitioners for the plaintiff.
[17] After the pleadings
have closed, and the parties have applied for a trial date to be
allocated, the plaintiff filed a notice to amend his particulars of
claim. In his amended particulars of claim, in paragraphs 7 and 8
thereof, the plaintiff claimed that he was the owner of portion 7 (a
portion of portion 6) of farm Tugab No 21, and that the defendants
were in possession of the farm. He then prayed for the delivery of
the farm to him by the defendants with a costs order in his favour.
[18] With this amendment,
the plaintiff seems to have abandoned all claims previously pleaded,
and has now changed the battleground between him and the defendants.
[19]
It is not wrong for a litigant to apply on notice given to all other
parties to the proceedings, to amend his or her particulars of
claim.
However, I am in full agreement with what was stated by Innes CJ in
Robinson
v Randfontein Estates City Co Ltd
that “the object of
pleading is to define the issues; and parties will be kept strictly
to their pleas where any departure would cause prejudice or would
prevent full enquiry”.
[20] In the present
matter, the plaintiff in his Notice in terms of Rule 28(4) stated
that he intended to amend his particulars of claim by substituting
paragraphs 7 to 17 thereof with the following:
‘7.
The plaintiff is the owner of portion 7 (a portion of portion 6) of
the Farm Tugab No 21 (hereinafter referred to as ‘the farm’),
as appear from Annexure A attached hereto.
8.
The defendants are in possession of the farm, plus prayers for the
delivery of the said portion 7 and the costs of suit’.
This was done after the
exchange of various documents between the plaintiff and the
defendants and the pleas from both the parties. The defendants are
again, due to the amendment required to plead to the plaintiff’s
new cause of action and to put up another defence. Even though there
is no change in their defence of co-ownership alternatively a
lifelong usufruct, prejudice was caused to the defendants.
[21] The plaintiff
changed his cause of action after more than a year from the day the
action was instituted without an explanation as why he has waited so
long to amend the pleadings.
[22] In my view, the
defendants suffered prejudice by incurring additional expenses as a
result of drafting the amended plea and other ancillary costs. The
question now is what happens to the initial cause of the claim? Has
it been abandoned or to be regarded as if it did not exist? I think
the plaintiff amended the particulars of claim because he knew that
it will not be easy for him to prove his alleged oral lease agreement
with the defendants.
[23] Be it as it may. The
following issues are either common cause or not in dispute between
the parties.
(i) That the plaintiff
and the first, second and third defendants are brothers and sisters
from one father, the late Stephanus Katjaimo and from the same mother
except for the first defendant, Mr Claudius Katjaimo, who is from the
same father but from a different mother;
(ii) That the farm Tugab
No 21 (the subject matter) is registered in the name of the plaintiff
in the Deeds Office per Government Grant No T3613/1990.
(iii) That, before moving
to the disputed farm, the plaintiff and the defendants lived and
farmed as communal farmers together in unison as a family under the
leadership of their father and grandfather, the late Stephanus
Katjaimo.
(iv) It is also not in
dispute that the defendants are living and farming on the farm, some
since 1982 and some from 1985 to date.
[24] When delivering
their plea to the amended particulars of claim, the defendants
pleaded that the plaintiff was the nominal owner of the Farm Tugab
and that they were co-owners of the farm alternatively that they were
holders of a life-long usufruct in respect of the farm. This defence,
was repeated in their counter-claim.
[25] At the trial of the
matter, Mr Denk represented the plaintiff and called the plaintiff as
the only witness to testify. Meanwhile, the defendants were
represented by Mr Narib who called the first, third, fourth and fifth
defendants to testify for the defendants.
[26] It is clear from the
evidence of the defendants and the plaintiff that they are related to
each other as indicated in paragraph 23 above and as such lived and
farmed together as a family. Being offsprings of the late Stephanus
Katjaimo who was regarded and respected by all as the patriarch of
the Katjaimo family; they lived together, did things together and
assisted one another when one of them was in trouble.
[27] It would also appear
from the evidence that as children and grandchildren of the late
Stephanus, the plaintiff and the defendants were not allowed to do
things like buying and selling of own animals without the blessings
from the late Stephanus. The late Stephanus had to be informed first
about what they were planning and intending to do that he could give
them the green light to proceed with their intended plans.
[28] Further, it would
appear again from the evidence that a meeting has always to be called
which was attended mainly by older people – young people
excluded, where the patriarch acted as the chairperson. Whatever was
resolved in the meeting, was conveyed to everybody, including young
people for implementation.
[29] It is the evidence
of the defendants that a meeting was called by the late Stephanus
wherein it was decided to look for a place somewhere – where
the family could be relocated, because, according to the witnesses,
Oruua at Ovitoto became too small for them as a family. Cattle of
different family members were sold and a search for a new place
began. Eventually, Farm Tugab No 21 was acquired and the family
relocated from Oruua to Tugab No 21 (portion 7 of portion 6). The
relocation did not start full blown – but went in turn. One or
two people went earlier to the farm to take care of the farm and the
equipment thereof against theft while others and animals followed at
a later stage.
[30] While on the farm,
some of the defendants occupied the farm house together with the
plaintiff and the late Stephanus – and the others constructed
and built own permanent structures where they are living to date. The
plaintiff was aware of all these, but did nothing, not even to remind
them that they should not forget that the farm was his own property
and that they were there subject to his approval, but one day in the
future, they will be requested to leave the farm.
[31] Similarly, it would
appear from the evidence that the defendants and their children were
free to keep many animals, be it small or big livestock, as they
could afford, on the farm, the plaintiff did not mind. He was happy
with that and allowed the defendants to maintain the farm as if they
were co-owners. They repaired the fences, kept the water points and
boreholes on the farm in good condition. All these were going on
since 1982 until the death of Stephanus Katjaimo in 2008 or
thereafter. The sin the defendants did which caused the eviction
claim from the farm they called and regarded, and still do so as
their permanent abode and shelter, is because they have acquired for
themselves a brandmark which they use to brandmark their cattle.
[32] In my view, the
above facts and the surrounding circumstances in which the plaintiff
and defendants lived, coupled with the fact that the plaintiff has
acted as the representative for the Katjaimo family due to the fact
that he was literate in the family, is more probable and plausible
that the Katjaimo family bought the farm than the evidence of the
plaintiff that he bought the farm alone from his own resources.
[33] If his version is
correct – why did he allow the defendants and the late
Stephanus to go ahead with the idea of transferring his farm into a
family company called Katjaimo (Proprietary) Ltd by signing a
declaration which would facilitate the transfer of the farm?
According to Monica, there was a second try to have the farm
transferred to the family – one would like to know the reason
for that if the defendants and the late Stephanus did not assist in
the acquisition of the said farm.
[34] Further, the
plaintiff initially pleaded that he entered into an oral lease
agreement with the defendants which he wanted to cancel. However,
realizing that the fabricated oral lease agreement with the
defendants will not assist him in his claim, he suddenly changed the
tune and crafter another cause of action namely being the registered
owner of the farm and pleaded for the delivery thereof because the
defendants were on the farm. The oral lease agreement was a
subterfuge. He just waited for his father to die to kick the
defendants out of the farm, which he could not do while his father
was still alive. The defendants admits that the farm is registered in
his name, therefore the onus is on the defendants to prove their
right of possession of the farm as submitted by Mr Narib, counsel for
the defendants.
[35]
It is further the submission of Mr Narib that now that the plaintiff
is conceding that the defendants have a right to possess the farm,
the onus will be on the plaintiff to prove valid termination thereof.
In support of his submission, counsel referred to Chetty
v Naido;
Matador
Buildings (Pty) Ltd v Harman and Schnehage v Bezuidenhout.
Counsel further contended that the onus to proof the term of the
agreement that gave the right of cancellation, was on the plaintiff.
According to Mr Narib, the defendants have conceded that the
plaintiff is the registered owner of the farm in terms of the title
deed, whereas the defendants are not registered as co-owners of the
farm, but based their claim to remain on the farm as if they were
co-owners on the strength of an understanding which existed between
the plaintiff and defendants.
[36] Furthermore, Mr
Narib submitted that from the facts of the matter, it is clear that
the plaintiff acknowledged that the defendants were not unlawful on
the farm – but were there on account of the fact that the late
Stephanus, their patriarch relocated his homestead from Oruua to the
farm. He said the intention was to relocate and to settle permanently
on the farm as if they were owners.
[37]
As regards the alternative claim to the counterclaim, counsel pointed
out that the fact that the usufruct is unregistered does not avail
the plaintiff, for, an unregistered usufruct is enforceable inter
partes.
Mr Narib referred to the matter of Dhayanundh
v Narain
as authority. Dhayanundh
case above, dealt with an unregistered servitude of habitation.
[38]
I agree with the principles laid down in Dhayanundh v Narain case, in
particular the quotation from Grant
and Another v Stonestreet and
6 others above at 573 G-H where the following was said by Ogilvie
Thompson, JA at 20 A-G.
‘Having
regard to our system of registration, the purchaser of immovable
property who acquires clean title is not lightly to be held bound by
an unregistered praedial servitude claimed in relation to that
property. If, however such purchaser has knowledge at the time he
acquired the property, of the existence of the servitude, he will –
subject to a possible qualification discussed below relating to cases
where there has been an intervention of a prior innocent purchaser –
be bound by it notwithstanding the absence of registration’.
[39]
In the present matter, no third party is involved – the
plaintiff and the defendants are related to each other and stayed on
the farm together for a period of over twenty years as if they were
co-owners of the farm. The plaintiff did not require the defendants
to register their right to remain and stay on the farm. They were
allowed to stay and live with their belongings, be it livestock or
otherwise, without any conditions attached. That being so, I am also
in agreement with what the authors of the book: Introduction to South
African Law and Legal Theory
when they state the
following ‘Although the right of ownership offers in principle
limitless control, in practice this is of course not necessary the
case. An owner may through agreement or
otherwise allow another to exercise one or more powers inherent in
his right even to the extent where
only bare ownership stripped of all powers, nuda
proprietas is
left to him.’ (Emphasis added). The authors continue on the
same page and state as follows:
‘In
modern society, the idea that the right of ownership is absolute in
that the owner’s power to use, to destroy, etc. is unlimited,
has become untenable’.
[40] This is true because
an owner may be prevented from vindicating his thing in circumstances
where the doctrine of estoppel by representation comes into
operation. Further, where the owner through his negligence or
intentional conduct has created the appearance that another person is
the owner or is entitled to alienate the thing and a bona fide
third party. A limited real right over the thing belonging to the
owner like a right of usufruct may limit the owner’s right –
which is the position in the present matter.
[41] Briefly, the
evidence of the plaintiff went as follows. He said that he is a son
of the late Stephanus Katjaimo, therefore the first, second and third
defendants are his brother and sisters. The fourth and fifth
defendants are children of the third defendant. He started his truck
business in 1977 while still working in Windhoek. His brother,
Claudius (first defendant) and sister Monica (second defendant) also
worked in Windhoek while Antonia (third defendant) stayed with and
cared for their late father at Ovitoto permanently. He said that as
children, they all stayed with their father at Ovitoto. According to
him he bought the farm alone from the then Administration of the
Hereros and in 1981 he went to the farm for the first time. He admits
signing a declaration together with the first defendant on behalf of
the family to transfer the farm into Katjaimo (Pty) Limited – a
company still to be registered, on 3 August 1994. This was done, he
said, because the communication between them as a family was good,
secondly the defendants agreed to pay him N$120 000.00 for the
farm and thirdly because he realized that the defendants will not
have a place to stay. But cancelled the transfer because the
defendants did not pay the money. However, he concedes that according
to Herero customs and traditions, he as the elder brother of the
Katjaimo family, represents the family as the head of the family –
therefore gave them permission to have their own houses on the farm
because he could not cater for all of them in his own house.
[42] This testimony
corroborates the testimony of the second defendant when she testified
that the whole family moved from Ovitoto to farm Tugab during 1990
permanently. That the plaintiff was aware of the presence of the
defendants’ animals on the farm and as children from one father
and one mother they always stayed together all along and were never
divided. She further stated that the plaintiff allowed them (the
defendants) to build houses on the farm.
[43] Mr Denk, counsel for
the plaintiff argued amongst others that the plaintiff is the owner
of the farm by virtue of Government Grant No T3613/1990 which refers
to the Title Deed in terms of which ownership was transferred from
the Government of the Republic of Namibia to the plaintiff.
[44] This issue is not
disputed. Defendants have admitted that the plaintiff is the
registered owner of the Farm Tugab West. However, in their amended
counterclaim the defendants are pleading that the plaintiff allowed
them to stay on the farm as if they were co-owners of the farm,
alternatively that they had acquired a lifelong right of usufruct to
stay, enjoy the fruits of the farm and farm thereon. Therefore,
ownership of the farm is no longer an issue between the parties.
[45] If one looks at the
evidence as a whole, it is clear that plaintiff and the defendants
relocated from Oruua village at Ovitoto to the farm Tugab West as a
family to live and farm together on the newly found piece of land,
albeit registered in the name of the plaintiff. They support
one another on this aspect that as children of one father and one
mother, except for the first defendant who is from a different
mother, they always lived together in the past as a family under the
leadership of their late father Stephanus Katjaimo. This practice is
supported by the fact that since 1982, when the farm was acquired,
the plaintiff and the defendants stayed and farmed together as a
family on the farm until 2008 when their father passed away. The
misunderstanding or miscommunication occurred as a result of a
quarrel over an iron brand mark. This happened after a period of more
than twenty six years of staying together in harmony on the farm
following the old tradition as pointed out by the second defendant in
her evidence that as children from one father and mother, they always
stayed together and were never divided. The plaintiff also never
informed the defendants, severally or individually that their stay on
the farm was temporary and that one day they will be required to
vacate the farm.
[46] The plaintiff
intentionally allowed the defendants to erect permanent structures or
to make extensions to the existing structures on the farm. The
defendants also testified that they maintain the farm from the time
they relocated from Ovitoto. They take care of the fences and other
farm equipment and implements as they regard the farm to be their
permanent home. All the defendants, except for the fourth and fifth
are now old. They will have no place to stay if evicted from the farm
they have helped to develop during the time when they were still
young, strong and capable to do so. Ovitoto where they stayed before
going to the farm has become overcrowded and their village has
disappeared.
[47] Taking into account
all the facts of the matter and the evidence as a whole, I am
satisfied that the defendants have managed, on a balance of
probabilities, to prove that they have acquired a usufruct from the
plaintiff, albeit unregistered to settle and remain with their
belongings on the farm permanently. It will be inequitable and unfair
to them if ordered to vacate the farm as requested by the plaintiff.
[48] In the result, I
make the following order:
(i) The plaintiff’s
claim is refused.
(ii) The defendant’s
counterclaim (alternative claim) succeeds.
(iii) Each party to pay
own costs.
_______________________
E P Unengu
Acting Judge
APPEARANCES
PLAINTIFF: A Denk
Instructed by Hengari,
Kangueehi & Kavendjii Inc, Windhoek.
DEFENDANTS: G Narib
Instructed by Conradie &
Damaseb, Windhoek.
Katjaimo v Katjaimo and Others (I 2266/2009) [2013] NAHCMD 98 (15 April 2013);