Bestbier v Kuugongelwa () [2020] NAHCMD 319 (24 June 2020);
Law of contract – Loan agreement – Performance – Novation – Compromise – Amount of N$250 000 loaned to the defendant – Defendant agreed it was a loan agreement – Defendant contended that it was an investment agreement during trial – Defendant contented that there was novation and compromise – Court found that it was a loan agreement – Court found that there was no novation or compromise – Court found that an amount of N$40 000 was already paid to the plaintiff – Court found that an amount of N$210 000 is still due and payable to the plaintiff – Defendant ordered to pay the outstanding amount of N$210 000.
The plaintiff and the defendant entered into a written agreement on 29 August 2017, in terms of which the plaintiff advanced a loan in the amount of N$250 000 to the defendant so that he can pay for 32 cattle from Agra auction – The agreement states that the amount is repayable from the sale of meat, and failure to do so, the defendant undertook to sell 35 cattle from his farm to repay the loan – The plaintiff fulfilled his obligations by advancing the agreed amount of N$250 000 to the defendant, which was paid on 29 August 2017 directly to Agra Otjiwarongo – On 14 October 2017, the defendant paid N$40 000 to the plaintiff, resulting in the amount of N$210 000 still outstanding – The plaintiff also claimed interests and compensation for expenses incurred through assistance that he has provided to the defendant – Throughout the pleadings, the parties were in agreement that it was a loan agreement – The plaintiff submitted that despite demand, the defendant failed or neglected to pay the aforesaid amount despite it being due and payable – The defendant contented that several agreements were entered into after the loan agreement, and that those agreements amount to compromise and novation – Court found that 12 per cent interest per annum claimed by the plaintiff was not part of the loan agreement – Court found that the plaintiff did not provide proof of the expenses incurred which gives rise to his claim for compensation – Court found that it is unable to find that any of the agreements relied upon by the defendant in fact constituted a novation of the original agreement – Court found that the probabilities are as indicated by the plaintiff that whatever arrangements were entered into between the parties when the balance of N$250 000 could not be paid would attempt to effect in some way or another partly payment of the admitted debt rather than the novation of the debt itself – Court found that the amount of N$210 000 is due and payable to the plaintiff.
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Not Reportable |
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
EX-TEMPORE JUDGMENT
Case no: HC-MD-CIV-ACT-OTH-2019/02616
In the matter between:
FRANCISCUS BESTBIER PLAINTIFF
and
TYLVAS KUUGONGELWA DEFENDANT
Neutral citation: Bestbier v Kuugongelwa (HC-MD-CIV-ACT-OTH-2019/02616) [2020] NAHCMD 319 (24 June 2020)
Coram: MILLER AJ
Heard: 22 – 24 June 2020
Delivered: 24 June 2020
ORDER
The court grants judgment in favour of the plaintiff and against the defendant for:
(a) Payment in the amount of N$210 000 to the plaintiff.
(b) Interest on the above amount at the rate of 20 per cent per annum a temporae from the date of judgment to the date of final payment.
(c) Costs of suit.
(d) The matter is removed from the roll and is considered finalized.
JUDGMENT
MILLER AJ:
[1] The plaintiff instituted action against the defendant based on the written agreement allegedly concluded between the parties, which was attached as Annexure ‘A’ to the plaintiff’s particulars of claim. The agreement reads as follows and I quote:
‘I, Tylvas Kuugongelwa, ID 620810071195 and the undersigned, declare here that I receive 250 000, two hundred and fifty thousand Namibian dollars from Frans Bestbier, ID 5603105105080 on this 29th day of August 2017 to pay for the 32 cattle from Agra Auction. This amount is repayable from the sale of meat; failure I shall sell 35 cattle from my own farm Avondurede Game Farm No. 40 in Outjo. This is done by and between Tylvas Kuugongelwa and Frans Bestbier.’
[2] The particulars of claim allege further that the amount which is described as a loan amount would bear interest at the rate of 12 per cent per annum. That particular clause does not appear from the written agreement which I referred to, and in my view was not being proved. In addition, the plaintiff alleges that he had incurred certain expenses on behalf of the defendant in the sum of seventeen thousand one hundred and twenty-four Namibian dollars and thirty-seven cents (N$17 124.37) which amount remains unpaid.
[3] The defendant denies that these expenses were incurred on his behalf. In my view, the evidence of the plaintiff who was the only witness who testified on the plaintiff’s behalf does not sufficiently bear out its claim. His claim for this amount in the absence of any documentary evidence as to the nature and extend of the expenses which were incurred or in fact that they were actual or reasonable expenses. It follows in my view, that in so far as the plaintiff seeks to recover this amount from the defendant, it has not been proved that such an amount is in fact due and payable.
[4] Throughout the pleadings, the agreement (Annexure ‘A’) was referred to by the parties as a loan agreement, which I understand is an agreement to the effect that the plaintiff had lend and advanced the amount of two hundred and fifty thousand Namibian dollars (N$250 000) to the defendant. That much is apparent from the pleadings and was carried over into the pre-trial order, the draft pre-trial report prepared by the plaintiff and the defendant, and which under subparagraph C, states that amongst the facts not in dispute was the fact that the loan agreement of an amount of N$250 000 entered into on the 29th August 2017 between the parties was not in dispute. Much the same sentiment was carried over into the witness statement of the defendant, and in this regard I need to quote only from paras 4 and 6 of the witness statement.
[5] Paragraph 4 of the defendant’s witness statement reads as follows, and I quote: ‘While I accept that there was an agreement between us during 2017 for the loan of N$250 000, I deny that it was a term of the agreement that the said loan would attract an interest of 12% per annum’. Paragraph 6 of the same statement reads as follows, and I quote: ‘The terms of the loan agreement are set out in Annexure A that has been attached to the particulars of claim and no additional terms were agreed upon by the parties’.
[6] In further amplification of his witness statement, the defendant says the following in para 8(a) of his witness statement, and I quote: ‘that the initial loan agreement and its terms as captured in Annexure ‘A’ was to be cancelled or amended by the addition of the below listed items’. However, when the defendant gave evidence during the course of the trial and for the first time, the defendant stated that the agreement which is Annexure ‘A’ and to which I have referred was in fact not a loan but rather an investment which the plaintiff had made, that investment so alleged was to invest N$250 000 of his own money to purchase cattle at an auction, whereupon the cattle would be slaughtered and the meat be sold, and the proceeds would somehow constitute a return on his investment.
[7] The plaintiff on the other hand was adamant throughout that the amount of N$250 000 was to be advanced and was in fact advanced at the defendant’s specific instance and request, and as a loan according to the plaintiff, the defendant had purchased cattle at an auction and needed N$250 000 to pay the purchase price of the cattle.
[8] According to the plaintiff, he only had an amount of N$250 000 available in the investment account which he lend to the defendant and as a consequence thereof he made a direct transfer to the auctioneers in order to pay for the cattle. In addition, the defendant alleged that whatever agreement, whether it was a loan or an investment was subsequently novated on three different occasions by further agreements entered into between the parties when the amount of N$250 000 could not be repaid.
[9] I pause to indicate at this stage that it is common cause between the parties that an amount of N$40 000 had been paid towards the redemption of the amount, which leaves the balance of N$210 000 which was in dispute between the parties during the course of the trial.
[10] During the course of the trial I heard the evidence of the plaintiff who was a single witness and also the evidence of the defendant who was also a single witness. The two versions are mutually destructive to a large extent, at least in so far as the nature of the agreement between the two parties is concerned. Our courts have consistently adopted the approach that being faced with two mutually destructive versions; the court will consider the merits and demerits of the evidence of the witnesses as well as the probabilities and the circumstances surrounding the case.
[11] As far as the evidence of the plaintiff was concerned, he was in my view in all respects a satisfactory witness. The same cannot however be said of the evidence of the defendant. I already mentioned the fact that his evidence during the course of the trial is that complete odds with his pleadings, the pre-trial report and in fact his own witness statement.
[12] The agreement (Annexure ‘A’) is plain in its terms and acknowledges receipt in an amount of N$250 000, from the plaintiff which amount was repayable from the sale of the meat. I can come to no other conclusion that the agreement (Annexure ‘A’) is in fact a loan agreement which was repayable at some stage.
[13] In deciding between the version of the plaintiff and the defendant on this issue, I have no hesitation in rejecting the evidence of the defendant that, as he belatedly tried to indicate, the plaintiff had in fact invested an amount of N$250 000 into a joint venture between himself and the plaintiff. I am of the view that the plaintiff has established on a balance of probabilities that he had in fact lent and advanced an amount of N$250 000 to the defendant, at the defendant’s instance and request.
[14] There remains the further issue raised by the defendant that the agreement contained in Annexure ‘A’ was in fact novated on various occasions. The plaintiff consistently denied that any novation took place, and given the weakness in the evidence of the defendant, I am unable to find that any of the agreements relied upon by the defendant in fact constituted a novation of the original agreement. The probabilities are as indicated by the plaintiff that whatever arrangements were entered into between the parties when the balance of N$250 000 could not be paid would attempt to effect in some way or another partly payment of the admitted debt rather than the novation of the debt itself. In all the circumstances, I accordingly reject the evidence of the defendant in so far as the nature of the agreement and the alleged novation of that agreement is concerned.
[15] The order I make is the following:
(a) Payment in the amount of N$210 000 to the plaintiff.
(b) Interest on the above amount at the rate of 20 per cent per annum a temporae from the date of judgment to the date of final payment.
(c) Costs of suit.
(d) The matter is removed from the roll and is considered finalized.
________________
K Miller
Acting Judge
APPEARANCES:
PLAINTIFF: M SIYOMUNJI
Of Siyomunji Law Chambers,
Windhoek
DEFENDANT: S ENKALI
Of Kadhila Amoomo Legal Practitioners,
Windhoek