NO.: I 4574/2009
THE HIGH COURT OF NAMIBIA
the matter between:
on: 16-18 May 2011, 07 June 2011
on: 22 June 2011
AJ.:  In this matter, which commenced before me as a
trial, the plaintiff, who was represented by Mr. Conradie, seeks the
return of plaintiff’s cattle or, in lieu thereof, payment of
its (sic) value calculated on the date of judgment;
delivery of all fruits (or payment of their value) that have accrued
to the Defendant;
or alternative relief.”
Plaintiffs claims are resisted by the defendant who was represented
by Mr. van Vuuren.
At the heart of the dispute lies a written agreement concluded
between the parties on 07 November 2008. It reads as follows:
(sic) of Agreement
No. 561004 08 000 41
at Wendelstein 1026
Brand No. SOCOOODO
No. 600523 002 93
at Kaukurust 114
parties to this agreement agree:
borrow (sic) N$2500 x 4 = N$10 000-00 to
put 4 cattle Bonsmara type in as security for the period Nov –
Dec 31, 2008.
Aspara would (sic) pay back an amount of N$14 000-00 to Charles
Diergaardt for the amount advanced to him on 31 November 2008.
done and signed on 7 November 2008 at Gobabis in the presence of the
It is common cause between the parties that the signatures on the
agreement are those of the plaintiff and the defendant respectively.
The following facts are also not placed in issue by either of the
defendant advanced the sum of N$10 000-00 to the plaintiff.
plaintiff delivered 4 head of cattle to the defendant.
loan of N$10 000-00 together with an amount of N$4 000-00 was paid
by the plaintiff to the defendant albeit it not on 31 December 2008
as provided for in the written agreement, but in instalments
subsequent to that date and that the defendant accepted payment.
defendant is still in possession of the cattle delivered to him by
defendant has tendered the return of the N$14 000-00 paid to him by
defendant refuses to return the cattle to the plaintiff.
It is apparent from par. 8.2 of the defendant’s plea that the
defendant’s refusal to return the cattle is based on the
averment that plaintiff breached a material term of the agreement by
not making payment on 31 December 2008 and that in terms of the
express terms of the agreement, the defendant had taken ownership of
the cattle as from that date.
The sole issue in dispute before me was whether upon the plaintiff’s
failure to pay the sum of N$14 000-00 by 31 December 2008, the
parties concluded further verbal agreements in terms whereof the
plaintiff was given further extensions of the date for payment. The
plaintiff testified that such agreements were indeed entered into.
The defendant took issue with that contending that the only agreement
concluded was the written agreement concluded on 7 November 2008.
The plaintiffs’ difficulty is that he did not allege in his
particulars of claim that any further verbal agreements were
concluded subsequent to 31 December 2008.
This necessitated Mr. Conradie to seek an amendment to the plaintiffs
particulars of claim to include the necessary averments that further
agreements were concluded. The proposed amendments were
understandably resisted by Mr. van Vuuren.
It seemed to me however, that there was a possibility that given the
facts which were common cause and the defence advanced by the
defendant, that defendants’ entitlement to ownership or
otherwise of the cattle, based on the written agreement, which
according to the defendant was the only agreement could possibly
dispose of the case. I accordingly directed in terms of Rule 33 that
the following issues be separated from the other issues.
the defendant is entitled to claim that he is not obliged to return
the cattle and instead to retain possession thereof, whether by
virtue of the written agreement concluded between the parties and if
not whether by way of any rule of substantive law”.
I directed the parties to file heads of argument which they
subsequently did and postponed the matter to 7 June 2011, on which
date I heard counsels arguments. I thereafter reserved judgment.
Mr. van Vuuren sought to persuade me that clause 2 of the agreement
properly interpreted means that should the plaintiff fail to repay
the loan and the interest by 31 December 2008, the defendant would
without more become the owner of the cattle. He points firstly to the
evidence of the plaintiff which was to the effect that should the
plaintiff have died for instance, the defendant could keep the
cattle. Furthermore he argues with reference to dictionary meanings
of the word “pledge’ that forfeiture of the things
pledged follows upon non-payment of the principal debt.
Clause 2 of the agreement on my reading of it is clear and
unambiguous. The clause provides in clear terms that the four cattle
were delivered to the defendant as security. It was in effect a
pledge in securitatem debiti.
the words in the clause are not ambiguous, it is not permissible in
interpreting that clause to have regard to extraneous evidence in
order to ascertain the meaning thereof. In Union Government v
Vianini Ferro – Concrete Pipes (Pty) Ltd 1941 AD 43 at
p. 47 Watermeyer JA said:
this court has accepted the rule that when a contract has been
reduced to writing, the writing is, in general, regarded as the
exclusive memorial of the transaction and in a suit between the
parties no evidence to prove its terms may be given save the document
or secondary evidence of its contents nor may the contents be
altered, added to or varied by said evidence.”
In National Board (Pretoria) (Pty) Ltd vs Estate Swanepoel 1975
(3) SA 16 court stated that:
is embodied in a single memorial all other utterances of the parties
on that topic are legally immaterial for the purpose of determining
what are the terms of their act.”
Likewise in Warman vs Hughes 1948 (3) SA 495 (A) the
court stated at p. 505 that:
must be borne in mind that in an action on a contract, the rule of
interpretation is to ascertain not what the parties intention was,
but what the language used in the contract means, i.e. what their
intention was as expressed in the contract.”
As far as Mr. van Vuuren seeks to rely on dictionary meanings, that
does not assist him. In law a pledge in securitatem debiti
must be returned to the pledgor once the principal debt and other
charges agreed upon are paid. Admittedly in certain circumstances the
court is permitted to have regard to extraneous evidence but none of
those arise in the matter before me.
Mr. van Vuuren’s agreement that clause 2 of the agreement is to
be understood that the Defendant acquired ownership without more,
once the debt was not repaid upon the date due for payment, creates a
further problem for the defendant. The clause, thus interpreted, is
plainly a pactum commissorium.
In Meyer vs Hesseling 1992 (3) SA 851 (NMS) the court
stated the following on p. 863:
classical example of a pactum commissorium which the common law
refuses to countenance arises from an agreement in terms of which the
lender secures the debt of the borrower through a mortgage or pledge
over the property of the borrower and there is a stipulation that if
the money so loaned is not paid on due date, the lender would be
entitled to become the owner of the security pledged or mortgaged,
regardless of its value. The public policy objection to this kind of
arrangement seems to be based on two grounds. The first ground is
that such an arrangement is oppressive to the borrower because his
position is weaker than that of the lender when the agreement is
entered into and such an agreement gives to the lender the unfair
advantage of being able to take for himself property for in excess of
the quantum of the loan when the date for payment of the loan arrives
and the borrower is unable to repay. The second objection is that
such an agreement would often result in parate executie or some form
of self-help without recourse to the courts. “
was conceded by Mr. van Vuuren in the heads of argument he had
prepared that clause 2 of the agreement is a pactum commissorium and
therefore illegal and not capable of being enforced.”
In an effort to overcome this difficulty he contended if I understood
him correctly, that the entire agreement was illegal. Consequently
plaintiff could not sue on that illegal agreement. The fact of the
matter is though that only clause 2 would be incapable of being
enforced and not the entire agreement. That portion of the agreement
which provides for the granting of a loan and the terms for repayment
are separable from the illegal clause 2 and enforceable in law. Mr.
van Vuuren’s argument also begs the question on what basis the
Defendant could acquire rights of ownership from an illegal contract.
It follows that on either basis the defendant is not entitled to
retain the cattle on the basis that he is the owner thereof. The
cattle must be returned to the plaintiff together with their progeny.
I must add that the plaintiff made no attempt to establish the value
of the cattle through expert testimony to that effect and effectively
abandoned that portion of the relief claimed.
] There will accordingly be judgment for the plaintiff in the
defendant is ordered to return the cattle pledged by the plaintiff
together with their progeny, if any.
BEHALF OF THE PLAINTIFF: Mr. Conradie
BY: Conradie & Damaseb
BEHALF OF THE DEFENDANT: Mr. van Vuuren
BY: R. Olivier & Co.