The plaintiffs are Mr. Abraham Mbuende (first
Mrs. Adolfine Mbuende (second
defendants are Mr. Theo Hoffmann (first
Mrs. Johanna Hoffmann (second
The plaintiffs instituted action against the defendants, which
action I, for ease of reference, categorise in three parts. The
first part is for an order of specific performance to transfer
property. The second part is for payment of N$ 175 000.00 for
alleged improvements in terms of a current lease. The third part is
for the payment of N$ 33 835.00, paid by the plaintiffs to the
defendants' conveyancer for the transfer of the property in the bona
reasonable belief that the defendants will transfer the property
into the names of the plaintiffs.
In this judgment, I will set out the basis of each claim as per
plaintiffs' particulars of claim, refer to the defence/s raised by
the defendants, in the plea, evaluate the soundness of the claim/s
and defence/s and then make my findings.
will set out the salient facts that have been presented in evidence
by and on behalf of the plaintiffs, without attributing same to a
specific witness, as well as legal submissions on behalf of the
parties, respectively, under the claim headings. The defendants
neither testified nor called witnesses.
THE FIRST CLAIM
The first claim is for an order for specific performance, that the
defendants are ordered to take steps to pass transfer of, Farm
Safneck No 167, situated in the Registration Division "M"
Hardap Region ("the
the plaintiff failing which the Sheriff or his/her Deputy be
authorised to take such steps on behalf of the defendants. This
claim is founded on a written agreement of sale (the
the property, entered into by and between the parties on 12 April
2007 at Windhoek, a copy of which was received into evidence as
In terms of the agreement, the plaintiffs bought the property from
the defendants at a consideration of N$350 000.00.
However, the agreement was subject to suspensive conditions in
clause 13 thereof.
The agreement is subject to the granting of a Certificate of
Exemption in terms of the Land Reform Act within 90 (NINE ZERO) days
from date thereof.
This Agreement is also subject to the suspensive condition that a
loan of N$ 350 000.00 secured by a Mortgage Bond to be registered
over the PROPERTY, is obtained by the PURCHASER on the normal terms
and conditions of Agricultural Bank within
a period of 60
(SIX ZERO) DAYS from the date of a
Certificate of Exemption
been issued by the Ministry of Lands and Resettlement or such
extended period as the parties may agree to in writing.
the event of the
aforesaid bond not being granted within the period stipulated in
Clause 13.1 above alternatively within such extended time period as
the parties may have agreed to in writing then and in such event
this Agreement shall lapse and shall have no force and effect.
Plaintiffs obtained the Certificate of Exemption on 18 June 2007,
within 90 days of 12 April 2007 and no issue arises on this aspect.
The plaintiffs were required in terms of clause 13.2, supra,
within 60 days of the date of the certificate of exemption; obtain a
loan for the full amount of the purchase price, secured by a
mortgage bond to be registered over the property, on the normal
terms and conditions of Agricultural Bank of Namibia. In order to
comply with the suspensive condition in clause 13.2, the loan had to
be approved on or before 18 August 2010, which did not happen.
It is an express term of the agreement that if the bond is not
granted within the period as set out in Clause 13.2 (instead of 13.1
as incorrectly stated in the particulars of claim) or such extended
time as the parties may agree to in writing, then the agreement
would lapse and have no force and effect.
The loan was ultimately granted by the Agricultural Bank of Namibia
2007, well outside the 60 days after the grant of the exemption
Given the above factual scenario, the plaintiffs claim, despite the
objectively ascertainable non-compliance with clause 13.2 as well as
the non - variation, waiver and final agreement clauses in the
agreement that they are entitled to the transfer because the
defendants, acting with full knowledge of their rights, instructed
their conveyancer Mr. Ligthelm to proceed with the transfer of the
The plaintiffs contented that, for the defendants to have instructed
their conveyancer to register and transfer the property constituted
a waiver of the fulfilment of the condition stipulated in clause
13.2 and that the defendants are estopped to resile from same.
answer to the above contentions, the defendants argued that the
agreement came to an end on 16 August 2010 for want of compliance
with clause 13.2 by the plaintiffs and could not have been revived
because the formalities in respect of Contracts of Sale of Land Act
71 of 1961 which is sine
quo non to
revive the agreement has not been complied with. However, the sixty
days would end on 18 August 2010.
defendants' further defence to the plaintiffs' claim of specific
performance are clauses 16 (waiver) and 18 (final agreement) of the
16 (waiver) reads:
any express or implied provisions of the Deed Sale to the contrary;
any latitude or extension of time which may be allowed by the seller
in respect of any matter of thing that the PURCHASER is bound to
perform or observe in terms hereof, shall not under any
circumstances be deemed to be a waiver of the SELLER'S rights at any
time, and without notice, to require strict and punctual compliance
with each and every provision or term hereof."
18 (final agreement) reads:
SELLER and the PURCHASER hereby record and
that this contract constitutes the entire agreement between them and
that no waiver, addition, alteration, variation amendment hereto
shall be of any force or effect unless in writing and signed by both
the SELLER and PURCHASER."
on the principle that non-variation and non-waiver clauses
binding, the defendants submitted that the conditions for
renewal of the initial contract were entrenched and unless they were
complied with the contract could not have been extended.
S A Sentrale Ko-op Graanmaatskapy Bpk v Shifren en Andere 1964 (4)
SA 760 A
is clear from clauses 16 and 18, supra,
for plaintiffs to invoke waiver and for it to be of any force or
effect, that the part relied on for validity had to be reduced to
writing and signed by the parties. The plaintiffs failed to tender
evidence regarding a written waiver.
It is trite that where the parties have incorporated a non-variation
clause in their written agreement, any attempt to agree informally
on a topic covered by the non-variation clause is not permissible.
Mushimba v Autogas Namibia (Pty) Limited 2008(1) NR 253 (HC)
is also settled law that an oral agreement to alter the terms of
payment (eg extension of time) where the parties are bound
themselves to a non-variation clause is therefore not permissible,
unless it is reduced to writing and agreed by both parties.
Van Tonder en n Ander v Van der Merwe en Andere 1993 (2)
the inescapable conclusion from the admitted facts, related
hereinbefore, is that the suspensive condition in clause 13.2 was
not complied with. For that reason I hold that the plaintiffs are
not entitled to specific performance.
THE SECOND CLAIM
second claim, in the alternative, is for the payment of the amount
of N$ 175 000, 00 plus interest at the rate of 20% from date of
judgment. This claim is founded on enrichment as a result of
improvements done to the property during the currency of a lease
into on 6 June 2006 at Windhoek. Clause 3 of the lease stipulates
that the lease shall come into operation on 1st
2007 and subsist for a period of three years. Thus at the time that
the parties concluded the agreement of sale, the plaintiffs were in
occupation of the property in terms of the lease. A copy of the
lease, marked "G" was handed into court and accepted as
evidence. It is common cause that the lease will terminate around
July 2010 unless terminated earlier in terms of its provisions and
was valid at the time of the hearing of this matter.
The plaintiffs claimed that they in the bona fide and reasonable
belief that the defendants will transfer the property into their
names made the improvements. The plaintiffs bolstered their claim by
tendering testimony that there were various oral agreements with the
defendants before the construction and renovations of two buildings
and erecting a cattle proof fence.
The defendants opposed this claim and invoked Clause 10 of the lease
additions and improvements
The Lessee shall not make any alterations or additions to the
the Lessor's prior written consent, but
the Lessor shall not withhold its consent unreasonably to an
alteration or addition to the Premises which is not structural.
If the Lessee does alter, add to, or improve the Property in any
way, whether in breach of clause10.1 or not, the Lessee shall, if so
required in writing by the Lessor, restore the Property on the
termination of this lease to their condition as it was prior to such
alteration, addition or improvement having been made. The Lessor's
requirement in this regard may be communicated to the Lessee at any
time, but not later than the fifteen day after the Lessee has
delivered up the Premises pursuant to the termination of this lease;
and this clause shall not be construed as excluding any other or
further remedy which the Lessor may have in consequence of a breach
by the Lessee of clause 10.1.
Save for any improvement which is removed from the Property as
required by the Lessor in terms of clause 10.2, all improvements
made to the Premises shall belong to the Lessor and may not be
removed from the Premises at any time. The Lessee shall not,
whatever the circumstances, have any claim against the Lessor for
compensation for any improvement or repair to the Premises (sic)
shall the Lessee have a right of retention in respect of any
The defendants' counsel submitted that the express provisions of
clause 10 of the lease agreement preclude any claim for enrichment
founded on improvements since no prior written approval was obtained
Clause 10 excludes the right to compensation for improvements.
Volker v Maree 1981(4) SA 651 NPD at 656 C to E
The defendants also raised a common law defence founded on the
of the finding that I will make on this aspect it is not necessary
to deal with the imports and effect of this defence.
Since the lease is still valid, at the time of the hearing of this
matter and given that the issue of compensation would arise only at
the termination of the lease I hold that this claim for improvements
is premature. Additionally, the lease agreement also has a
non-variation clause (clause 16.3).
I am of the view further that the right to compensation, if any,
would arise on vacation of the property let after the lease has
THE THIRD CLAIM
third claim, which is also in the alternative, is for the payment
N$ 33 000.00 plus interest at the rate of 20% per annum from
date of judgment. This claim which is intrinsically linked to the
first claim is that the plaintiffs paid the said amount, at the
request of the defendants, to the defendants' conveyances for the
latter to transfer the property.
The conveyancer, Mr. Ligthelm testified that after he was instructed
by the defendants to transfer the property to the plaintiffs that he
received a letter from Metcalfe Legal Practitioners on 21st
2008, informing him that the second suspensive condition had not
been complied with and that the Agreement of Sale lapsed and was of
no force and effect.
Given my finding that the plaintiffs are not entitled to specific
performance and since this claim is intrinsically linked to the
first claim, I am of the view that the amount claimed under this
heading must be reimbursed by the defendants to the plaintiffs with
In the result, I make the following order.
The claim that the defendants take all necessary steps to pass
transfer of the property to the plaintiffs is dismissed with costs.
The claim that the defendants pay the amount of N$ 175 000, 00 plus
interest at the rate of 20% from the date of judgment is dismissed
The defendants are ordered to repay, or cause to be repaid, the
amount of N$ 33 000. 00 to the plaintiffs inclusive of interest.
ON BEHALF OF THE
(DR.) S. Akweenda
& Hans Legal Practitioners
ON BEHALF OF THE