NOT
REPORTABLE

CASE
NO. A 278/2011

IN
THE HIGH COURT OF NAMIBIA

In
the matter between:

and

NAGRAPEX
HOLDINGS (PTY) LTD
…............................................1^st
RESPONDENT

NIVEX
HOLDINGS (PTY) LTD
….....................................................2^nd
RESPONDENT

EXOTIC
INTERNATIONAL (NAMIBIA) (PTY) LTD …......................3^rd
RESPONDENT

INTERNATIONAL
GRAPE COMPANY (PTY) LTD …......................4^th
RESPONDENT

CORAM:
CORBETT, A.J.

Heard
on: 10, 11 November 2011

Delivered
on: 14 November 2011

______________________________________________________________

JUDGMENT

CORBETT, A.J: .

[1] In this matter it was not the
grapes but rather the relationship between the parties which went
sour. The applicant is a company registered and incorporated in the
Netherlands conducting business in the fruit and vegetable trade. The
respondents, commonly referred to as the Navico Group of Companies,
are all companies registered in Namibia producing table grapes at
Aussenkehr on agricultural land situated near the Orange River in the
south of Namibia. The harvesting season for the year commenced on
approximately 11 November 2011 and is due to endure for a period of
approximately six weeks.

[2] On 18 March 2009 applicant and the
respondents entered into a marketing and sale Agreement (“the
marketing agreement”), together with an addendum to that
agreement. The marketing agreement was further amended by an addendum
dated 3 September 2010. The essence of the marketing agreement as
amended was that applicant was appointed as the sole and exclusive
agent for the marketing and sale of the respondents’ total
production of table grapes at Aussenkehr. The grapes so produced are
sold worldwide by applicant to clients in Europe, Russia, the Middle
and Far East. The sale of grapes attracts an annual turnover for
respondents of approximately N$160 million, and in the previous
season the applicant earned roughly N$17 million in commission in
terms of the marketing agreement.

[3] The applicant alleges that the
respondents have breached the marketing agreement. Applicant
accordingly approached this Court on an urgent basis seeking an
interim interdict in the form of a mandamus ordering
respondents to comply with their obligations in terms of the
marketing agreement, pending the outcome of an action to be
instituted by applicant against respondents. In the action applicant
is to seek declaratory relief that the marketing agreement is of full
force and effect and that the letter of intent entered into between
the parties on 10 March 2011 could not be the cause of obligations of
a reciprocal nature vis- a-vis the marketing agreement.
Applicant further sought an order that for the purposes of monitoring
respondents’ compliance with the interdict, respondents be
ordered to permit applicant to be represented on respondents’
properties at Aussenkehr during the harvesting, packing and shipping
of the grapes of the 2011 harvest.

[4] In opposing the application, it
was contended in limine by Mr Coetsee SC, who appeared
together with Mr Gess, that this Court lacks jurisdiction to
entertain this matter by virtue of the provisions of the marketing
agreement which determines that the Courts of Rotterdam in the
Netherlands shall have exclusive jurisdiction to adjudicate on
disputes between the parties. It was further contended in limine
that this Court should not grant a mandatory interdict against an
incola of Namibia where the performance is to be carried out
in a foreign country and not in Namibia. A further basis of
opposition was that, given that the marketing agreement is one of
agency giving rise to duties of a personal and fiduciary nature to be
performed by the applicant, where the respondents had lost all
confidence or trust in the applicant’s performance in terms of
the marketing agreement, a mandatory interdict would be an
inappropriate remedy. It was further contended that the applicant had
in any event not met the requirements for a final interdict, the
nature of relief which is sought being in the form of a final
interdict. The issue of urgency was also contested. I will deal with
these issues in turn.

The issue of jurisdiction

[5] The marketing agreement, read
together with the addendums thereto, appointed applicant as the sole
and exclusive agent for the marketing and sale of the respondents’
total production of table grapes. The marketing agreement was to
endure from the 2009 harvesting season up to and including the
harvesting season ending in December 2019. Clause 9 the marketing
agreement provides that:

“This
Agreement is the entire agreement between the parties and neither
party relies in entering into this agreement, on any warranties,
representations, disclosures or expressions of opinion which have not
been incorporated into this Agreement as warranties or undertakings.
No variation, extension or consensual cancellation of this agreement
shall be of any force or effect unless reduced to writing and duly
signed by all parties.”

[6] In regard to choice of law and
jurisdiction, clause 7 of the marketing agreement provides that:

“7.1
This agreement shall be governed by and construed in accordance with
the laws of The Netherlands.

7.2
The parties agree that any legal action or proceedings arising out of
or in connection with this agreement shall be brought in any
competent court in Rotterdam, The Netherlands, and irrevocably submit
to the exclusive jurisdiction of such court and each appoints a
person (at the address chosen as its domicilium
citandi et executandi in
terms of clause 8) to receive for and on its behalf service of
process in such jurisdiction in any legal proceeding in respect of
this Agreement.”

[7] It was contended by Mr Heathcote
SC, who appeared with Mr Dicks, that the exclusive jurisdiction
clause contained in clause 7 of the marketing agreement is not
enforceable and contrary to Articles 80, 5 and 12 of the Namibian
Constitution, alternatively that the Court in any event has a
discretion to hear the matter, despite the existence of the
jurisdiction clause. It was further contended that there was
insufficient time – given the imminent commencement of the
grape harvesting season at Aussenkehr – to institute
proceedings in Rotterdam and thereafter to institute proceedings in
this Court for the enforcement of the order. It was contended on
behalf of the respondents that the Court cannot ignore the express
provisions of the marketing agreement, but that should the Court hold
that it has a discretion to entertain this matter, then it should not
exercise such discretion in favour of the applicant.

[8] Experts who deposed to affidavits
on behalf of both the applicant and the respondents were ad idem
that it was theoretically possible to approach the Rotterdam Courts
in the Netherlands for urgent interim relief. However, the
applicant’s expert, Jan Verhoeven, considered that it would be
“virtually impossible” for the applicant to bring
a successful urgent application in the circumstances of this case.
His opinion was based on the fact that the respondents were foreign
companies to The Netherlands jurisdiction and it would be doubtful
whether the time limits for service on the respondents could be
reduced to one or two weeks. The respondents’ expert, Prof.
Koppenol-Laforce, opined that the Rotterdam Court would have freedom
to allow the applicant to summon the respondents to Court on a period
shorter than even a week. The opinion, however, fell short of stating
what in her view would have in all likelihood happened should the
applicant in casu have approached the Rotterdam Court on short
notice. In my view, this omission makes it difficult for this Court
to determine whether on the facts of this case, the Rotterdam Court
could afford effective urgent relief to the applicant.

[9] I am inclined to the view that the
decisive determinant of the jurisdictional issue lies in whether or
not the Rotterdam Court could give effective relief to the applicant.
Allied to this question is the crisp issue as to whether the
exclusive jurisdiction clause contained in the marketing agreement
ousts the jurisdiction of this Court. In the matter of Butler
v Banimar Shipping Co SA Howie
AJ (as he then was) said: ¹

“A
foreign jurisdiction clause, although obviously not the equal of an
arbitration clause in form or effect, is nonetheless equivalent to
the latter in the sense that neither is absolutely binding and, in
the case of both, the Court in which the action is brought in breach
thereof has a discretion to hear the matter itself and not to refer
it to the chosen foreign court or arbitrator: see, as regards
England, The
Athenee (1922)
11 Lloyd’s LR 6 at 7; The
Fehmarn (1957)
2 All ER 707 and, on appeal, (1958) 1 All ER 333 at 335 and 336; The
Eleftheria (1969)
2 All ER 641; and, as regards South Africa, Commissioner
for Inland Revenue and Another v Isaacs NO and Others 1960
(1) SA 126 (A) at 134 G; the Yorigami
case
supra
at
692 E-693A and 694A-B.

It
was held in the Yorigami
case supra,
wherein an application was made for the setting aside of an
attachment order, that it was not for the Court hearing such
application to decide whether the trial ought to be stayed and
referred to arbitration under an arbitration clause but merely to
decide whether that Court’s jurisdiction was at all ousted. It
was decided that an arbitration clause did not oust the Court’s
jurisdiction and the application was dismissed. I think, on parity of
reasoning, that jurisdiction is also not ousted where, as here,
attachment is being requested, where the clause relied on by the
party opposing attachment is a foreign jurisdiction clause and where
all the requirements for attachment have been shown.

It
will, in my opinion, be for the trial Court to decide whether the
latter clause ought to result in the action being pursued in Greece
or in South Africa and, even if the indications now are – and I
express no view in this regard – that the trial Court will
probably grant a stay, this is not enough to disentitle the applicant
to the attachment which he seeks. It is to be noted that the
aforesaid decision in the Yorigami
case concerning the effect of
the arbitration clause was not attacked or overruled when the matter
went to appeal: see 1978 (2) SA 391 (C).”

[10] I am in respectful agreement with
the conclusion reached by Howie AJ. It will be for the trial Court to
decide whether the exclusive jurisdiction clause ought to result in
the action in this matter being pursued in the Namibian High Court,
or alternatively the matter should be pursued in the Court of
Rotterdam in The Netherlands. In exercising a discretion whether or
not to hear the matter, I am of the view that a compelling
consideration on the facts in
casu is that the applicant
seeks at this stage of the proceedings an interim order, pending an
action to be instituted at a later stage. This Court has stressed
that it is final foreign judgments that are recognized and given
effect to. In Westdeutsche
Landesbank Girozentrale v Horsch Levy
J, in upholding this proposition, stated: ²

“The
exigencies of international trade and commerce require that final
foreign judgments be recognised as far as is reasonably possible in
our Courts, and that effect be given thereto. To assist a judgment
creditor who has obtained such a foreign judgment, our Courts grant
such judgment creditor the right to invoke the extraordinary remedy
of provisional sentence, that is he has the right to obtain a
provisional judgment speedily, and without resorting to the more
expensive and dilatory machinery of an illiquid action.

However,
because this is an extraordinary remedy, the Court is strict about
the compliance with certain prerequisites. These prerequisites
include annexation to the summons of a certified copy of such
judgment and, where the judgment is in a foreign language, a due and
proper translation thereof. All foreign documentation must be duly
authenticated in terms of the Rules of Court. It is essential to
prove that the foreign judgment is final and enforceable according to
the foreign law concerned and that it has been handed down by a court
of competent jurisdiction.

This principle was further enunciated
upon by Teek J in Bekker N.O
v Kotze and Another, where
the following was stated: ³

“Mr
Le
Roux further
argued that ‘it is trite law that the Namibian Courts can only
recognise final foreign judgments and orders and not provisional
orders’ and he relied on what was stated in Estate
H v Estate H 1952
(4) SA 168 (C) at 171A:

‘It
is common cause that this Court will only enforce
the order of a foreign Court if it is a final judgment.’

I
agree with this submission and what was stated in Estate H for
it is logical that this Court cannot enforce a foreign judgment
unless it is final because a provisional order or judgment can be
confirmed or be discharged on the return date.

[11] In the matter of Jones
v Krok ⁴
the Court confirmed the principle that
the enforceability of foreign judgment is dependent upon the judgment
being final and conclusive. In that matter Corbett CJ referred to the
case of Greathead v
Greathead, 1946 TPD 404, at 407 – 408 where
Ramsbottom J in considering the meaning of the words “final
and conclusive” in
this context, referred to the following remarks of Lord Herschell and
Lord Watson in the English case of Nouvion
v Freeman and Another (1890)
15 App Cas 1 (HL):

“My
Lords, I think that in order to establish that such a judgment has
been pronounced it must be shown that in the Court by which it was
pronounced it conclusively, finally and forever established the
existence of the debt of which it is sought to be made conclusive
evidence in this country, so as to make it res
judicata between
the parties. If it is not conclusive in the same Court which
pronounced it, so that notwithstanding such a judgment the existence
of the debt may between the same parties be afterwards contested in
that Court, and upon proper proceedings being taken and such contest
being adjudicated upon, it may be declared that there existed no
obligation to pay the debt at all, then I do not think that a
judgment which is of that character can be regarded as finally and
conclusively evidencing the debt, and so entitling the person who has
obtained the judgment to claim a decree from our Courts for the
payment of that debt.

(Per
Lord
Herschell at 9.)

‘…(N)o
decision has been cited to the effect that an English Court is bound
to give effect to a foreign decree which is liable to be abrogated or
varied by the same Court which issued it…” ⁵

[12] I accordingly find that the
Court’s jurisdiction was not ousted by the exclusive
jurisdiction clause contained in the agreement between the parties.
In determining the further question of whether in the exercise of the
Court’s discretion this Court should hear the matter itself or
the matter should rather be referred to the chosen foreign Court of
the parties, I am mindful of the duty imposed upon the Court as part
of its inherent jurisdiction to grant pendente
relief to avoid injustice and
hardship. This power has been described by Kotzé JA in Airo
Express v LRTB, Durban as
follows: ⁶

“An
inherent power of this kind is a salutary power which should be
jealously preserved and even extended where exceptional circumstances
are present and where, but for the exercise of such power, a litigant
would be remediless, as is the case here.”

[13] In Melamed
NO v Munnikhuis Van
Schalkwyk J in the context of jurisdiction dealt with the doctrine of
effectiveness in the following way: ⁷

“The
concept that different Courts might have jurisdiction in respect of
the discrete parts of intra-national contractual relationships is not
foreign to the law. Executors
of Muter v Jones (1860)
3 Searle 356 at 358-9; Chatenay
v The Brazilian Submarine Telegraph Co Ltd [1891] 1 QB 79 (CA)
([1886-90] All ER Rep 1135) at 83-4.

The
same conclusion may be derived in a different way. The doctrine of
effectiveness, which is an important component of the rules on
jurisdiction and which Mr Van
der Linde invoked in
support of his contention that the Court should not make the order
sought upon the basis that it might be ignored with impunity can, I
think, be applied with the opposite effect. If the facts before the
Court demonstrate that the order which it proposes to make will be
effective notwithstanding that the order is to be performed beyond
its jurisdiction, then there is no reason why the Court should not
make the order if it is based upon a contract upon which the Court
manifestly does have jurisdiction.”

The uncertain factor of the applicant
being able to obtain effective relief in the Rotterdam Court weighs
heavily. There is firstly the reservation as to whether an
expeditious remedy avails the applicant should it approach the
Rotterdam Courts; and secondly, more compellingly even if such relief
were to be granted in the Netherlands, relief pendent lite
being interim relief would not be effective relief since any such
foreign order could not be enforced by this Court. For these reasons,
I conclude that this Court does have jurisdiction to entertain this
application, and I exercise my discretion to hear this matter.

Jurisdiction to grant mandatory
relief

[14] The relief sought by the
applicant is a mandatory interdict to compel the respondents to
perform their obligations to the applicant in terms of the marketing
agreement. It is contended on behalf of the respondents that at no
stage have the respondents delivered any table grapes to the
applicant in Namibia, but that the agreed point of delivery had
always been the Cape Town harbor in South Africa. The obligations to
deliver, and the point of delivery – so it was contended by
counsel representing respondents – had never been within the
territory of Namibia. It was accordingly submitted that this Court
should not grant a mandatory (as opposed to a prohibitory) interdict
against an incola of Namibia, where the performance (which, in
this instance, commences with the delivery of the table grapes) is to
be carried out in a foreign country and not in Namibia.

[15] It is correct that in terms of
the agreement the table grapes are to be delivered in a foreign
country. However, that obligation is only one of the obligations
imposed upon the respondents in terms of the agreement. Clause 3 of
the second addendum to the marketing agreement obliges the
respondents during the duration of the agreement to “fully
support the marketing activities of OF (the applicant) in the
Republics of Namibia and South Africa and all over the rest of the
world”. Thijs van den Heuvel, the Chief Executive Officer
of the applicant, points out that the destination of the table grapes
depends upon the instructions obtained from the respondents. The
employees of the logistics company GoReefers (Pty) Ltd are situated
on the respondents’ farms at Aussenkehr during the harvesting
season. Should the order sought in this matter be granted, GoReefers
would simply continue to carry out the instructions based upon the
documentation and orders conveyed to its officers at the Aussenkehr
farm. In the circumstances, I find that performance of some of the
material obligations, referred to earlier, arising from the marketing
agreement are to be carried out in Namibia. In this sense, the
granting of a mandamus by this Court would have effect in
Namibia, irrespective of whether further obligations are required to
be performed in South Africa or some other foreign country.

[16] Prof. Christopher Forsyth, in his
authoritative work “Private
International Law” ⁸
distinguishes between different
jurisdictional rules applicable to mandatory interdicts on the one
hand and prohibitory interdicts on the other. The distinction has its
foundation in the notion that to order an act to be done in a foreign
state, would infringe its sovereignty, whereas to command something
not to be done would not violate the rights of another state. Prof.
Forsyth, however, confirms that this distinction has not commended
itself to courts. He states that whilst the law of jurisdiction in
regard to interdicts is unclear, he supports the view that –

“…if
a respondent is an incola,
the court may assume jurisdiction to grant an interdict (whether
mandatory or prohibitory) no matter if the act in question is to be
performed or restrained outside the Court’s area.
⁹

I am in respectful agreement with the
learned author. In casu, mention has already been made of the
fact that some of the obligations which are affected by the mandamus
sought are to be performed within Namibia, whilst others are to be
performed beyond its borders. In either event, I find that this Court
may assume jurisdiction to grant the relief sought. This further
point taken in limine by the respondents accordingly has no
merit.

The factual basis for mandatory
relief

[17] The agreement relied upon by the
applicant is a contract providing for the appointment of the
applicant as an agent to market, distribute and sell the respondents’
crop throughout the world. It is contended on behalf of the
respondents that the contract relied upon is one of an agency which
creates duties of a personal and fiduciary nature to be performed for
and on behalf of the respondents. These duties would include to at
all times act in the utmost good faith; at no time to permit the
applicant’s interests to conflict with those of the
respondents; to not make a secret profit at the expense of the
respondents; and to account to the respondents, supported by
appropriate vouchers, in regard to aspects of the performance of its
mandate.

[18] The respondents allege that the
applicant acted in a dishonest manner in respect to its dealings with
them. They state that the applicant’s accounts in respect of
sales do not correctly reflect the true returns; that certain
commission was paid by the applicant to its sub-agents without
disclosing this to the respondents; that the applicant specifically
did not comply with its obligations in terms of clause 3.6 of the
marketing agreement in that it failed to furnish, at the written
request of the respondents, reports, returns and other information
relating to the marketing, sale and distribution of the grapes; and
that the applicant has committed fraud on the respondents by
withholding substantial sums of money from the respondents, thereby
destroyed any relationship of trust between the parties. This
situation, so it is contended on behalf of the respondents, justified
the respondents, on the advice of their attorneys in The Netherlands,
to suspend the operation of the agreement in accordance with the
provisions of the law of The Netherlands. It is stated that the
respondents cannot henceforth be expected to trust the applicant with
the marketing and sale of the respondents’ table grape crop
worth some N$160 million annually.

[19] The applicant counters these
allegations by claiming that Deon Brand, the Chief Executive Officer
of respondents, makes these claims based on a misunderstanding of how
market forces operate, and furthermore, based upon hearsay. Thijs van
der Heuvel explains that the applicant uses many sub-agents.
Sometimes the sub-agents would determine a fixed price with the end
customer. In those instances the applicant would agree to give part
of its commission earned to pay the sub-agents. This the applicant
did in the case of Southern Fruit Growers. In this instance the
commission was shared. On the other hand, so he explained, a company
like Freshgold delivers grapes to many countries in the world. The
average price, together with various other deliveries all over the
world, would then determine the market price. Once these averages are
known to Freshgold after the delivery of the grapes, Freshgold would
then indicate what it is prepared to pay to the applicant.
Negotiations would then take place and a price would be agreed upon.
It was only at this later stage that the applicant would invoice
Freshgold. The applicant would not know what the profit of Freshgold
in fact is. Freshgold itself is not required to disclose its profit
to the applicant. On this basis the applicant denies Mr Brand’s
allegations of fraud and submits that this allegation and the further
allegations of wrongdoing have no factual substratum.

[20] The applicant points to the
evidence of Pieter Von Maltitz where he confirms that the prices
referred to are indeed gross prices which Freshgold obtained on the
world market. It is accordingly contended by the applicant that this
by no means indicates that the applicant has made a secret profit. In
these circumstances, the difference to which Mr Brand refers to in
his affidavit, being the difference between the price referred to in
the Freshgold report and the prices paid by the applicant to the
respondents is Freshgold’s gross profit. It accordingly is not
a secret profit and does not amount to fraud upon the respondents.

[21] Whilst I am dealing with the
evidence of Pieter Von Maltitz, I mention that the applicant sought
leave to file a supplementary affidavit of Deon Brand to deal with
some of the issues raised in Von Maltitz’s affidavit as well as
to place before the Court further facts of an alleged continuing
breach of the agreement due to the applicant’s failure to
comply with its obligations in terms thereof. After considering the
application, which was opposed by the applicant, I refused leave to
introduce the further affidavit and indicated that the reasons for
this ruling would be incorporated into this judgment .

[22] The Court has a discretion to
permit the filing of a further affidavit. It has been held that leave
will be granted only in “exceptional
circumstances” ¹⁰
or “special
circumstances” ¹¹
or if the Court considers such a
course advisable. ¹²
The Courts on occasion have permitted
supplementary affidavits where there is something unexpected in the
applicant’s replying affidavits or when new matter is raised in
them. However, the general test to be applied has been stated as
follows:

“It
is in the interests of the administration of justice that the
well-known and well-established general rules regarding the number of
sets and the proper sequence of affidavits in motion proceedings
should ordinarily be observed. That is not to say that those general
rules must always be rigidly applied: some flexibility, controlled by
the presiding Judge exercising his discretion in relation to the
facts of the case before him, must necessarily also be permitted.”
¹³

[23] It was expressly stated in the
application for leave that the respondents wish to raise new facts
concerning a continuing breach of the agreement. Where the affidavit
sought to be introduced did not constitute a reply, but raised wholly
fresh issues, entailing the filing of further affidavits by the
applicant, leave would ordinarily be refused. ¹⁴
In the circumstances, I did not
consider that the application for leave raised exceptional or special
circumstances, or put forward sufficient facts to persuade me that it
would be in the interests of justice that leave be granted. In
fairness to the applicant, should the supplementary affidavit have
been allowed, the applicant should then have been entitled to file
further affidavits to deal with the new facts raised in such
affidavits. For these reasons I refused the application to file the
further affidavit.

[24] Even if the facts put up by the
respondents had some evidentiary value, in order to establish fraud,
the evidence must be clear. The bar is set high when a party seeks to
establish fraud in motion proceedings. In Loomcraft
Fabrics CC v Nedbank Ltd and Another Scott
AJA (as he then was) stated: ¹⁵

“In
order to succeed on the grounds of fraud, the appellant had to prove
that Perfel, acting through its agents, and with the purpose of
drawing on the credit, presented the bills of lading to the bank
knowing that they contained material representations of fact upon
which the bank would rely and which they (the agents of Perfel) knew
were untrue (see the United
City Merchants case
supra
at
725g).
Mere error, misunderstanding or oversight, however unreasonable,
cannot amount to fraud (see R
v Myers 1948
(1) SA 375 (A) at 383). Moreover, as previously indicated, fraud will
not lightly be inferred, particularly when, I should add, it is
sought to be established in motion proceedings”.

Based on the evidence put up by the
respondents in the papers, and bearing in mind the hearsay nature
thereof, I am not convinced that fraud has been established.

[25] I also do not consider that a
case has been made out by the respondents that there has been a
breach of the fiduciary duty owed by the applicant to the
respondents. The respondents’ stance has to be viewed in the
light of the respondents’ contrived interpretation of the
letter of intent entered into between the parties on 10 March 2011.
The letter served as a basis for the applicant to record its
intention to purchase the shares or assets of the entities mentioned
in the letter. Reference is made in paragraph 2 of the letter to
“this contract” confirming the intention of the
parties to negotiate and enter into a legally binding agreement in
respect of the transfer, the legally binding agreement being referred
to as the “Definitive Agreement”. Express
reference is made in paragraph 3 of the letter of intent that the
parties acknowledge that “this contract is a non-binding
expression of their intent” and furthermore in paragraph 10
that the letter of intent was “not intended to create or
constitute legally binding obligations between the parties”.
The definitive agreement was never entered into. In order to avoid
the consequences of the marketing agreement, Mr Dusan on behalf of
the respondents claimed in an e:mail that:

“We
again record that we do not accept the validity of the marketing and
sale agreement due to same having become obsolete as a result of the
conclusion of the letter of intent pertaining to the sale of the
farms to you.”

[26] Generally the Court should come
to the assistance of a party seeking enforcement of a contract.
Davidson J in Industrial and Mercantile v Anastassiou Bros
stated:

“It
seems to me that a Court should avoid becoming supine and spineless
in dealing with the offending contract breaker, by giving him the
benefit of paying damages rather than being compelled to perform that
which he had undertaken to perform and which, when he was called upon
to perform by summons, and he chose to defy the claim of the
plaintiff.” ¹⁶

In my view, the allegations of fraud
and breach of the fiduciary duty owed by the applicant to the
respondents must be viewed in the light of the respondents’
opportunistic attempts to avoid the consequences of the binding
marketing agreement on them. In any event, since I have found that on
the facts there is no substance to these allegations, these factors
cannot form a valid basis to resist the relief sought in these
proceedings.

Exceptio non adimpleti
contractus

[27] According to Article 262 of Book
6 of the Dutch Civil Code where one party to the contract does not
perform its obligations, the other party has a right to suspend
performance of its corresponding obligations. This is the principle
contained in the defence also available in Namibian law of exceptio
non adimpleti contractus. On this basis Professor Koppenol-
Laforce states that:

“Under
Dutch law it is beyond doubt that:

• 
  if
  it is established that a contractor has intentionally provide his
  principal with incorrect account sales and has wrongfully withheld
  money that was due to the principal, the principal is entitled to
  terminate his agreement with the contractor;

  
  

• 
  if
  there are objective indications that the contractor has failed in
  the performance of its obligations in the said manner, the principal
  is entitled to suspend his obligations under his agreement with the
  contractor pending further investigation.”

  
  

[28] In regard to the exceptio
Dutch law appears to be the
same as Namibian law. The respondents’ Dutch law expert says
that it can be invoked where, firstly, it is an exigible claim;
secondly, where there is a “sufficient
relationship between the claim and the obligation to justify this
suspension” or “the
claims are related”;
and thirdly, “in
circumstances where one party has reasonably good grounds for fear
that the other party will not fulfill its obligations”.
As regards reciprocity the
applicant and the respondents entered into an agreement that the
applicant would market and sell the respondents’ table grapes
during the harvesting season of November to December of each year.
The practice was that after the season’s work was completed,
books were written up and commission was paid to the applicant by the
respondents on the basis of the sales recorded.

[29] A distinction needs to be drawn
between the interdependence of obligations and their reciprocity. In
this regard, Smalberger JA in the matter of Rand
Mines (Pty) Ltd v Giddie N.O states:
¹⁷

“’Interdependence
of obligations does not necessarily make them reciprocal. The mere
non-performance of an obligation would not per
se permit
of the exceptio;
it is only justified where the obligation is reciprocal to the
performance required from the other party. The exceptio
therefore
presupposes the existence of mutual obligations which are intended to
be performed reciprocally, the one being the intended exchange for
the other (Wynn’s
Car Care Products (Pty) Ltd v First National Industrial Bank Ltd 1991
(2) SA 754 (A) AT 757 E-F; ESE
Financial Services (Pty) Ltd v Cramer
1973
(2) SA 809 (C) at 809 D-E). Furthermore, for the exceptio
to
succeed the plaintiff’s performance must have fallen due prior
to or simultaneously with that demanded from the defendant (Mörsner
v Len 1992
(3) SA 626 (A) at 633J). Whether or not obligations in terms of a
contract satisfy these requirements and are reciprocal in the above
sense (being the strict sense in which the word is used in this
judgment) is ultimately a matter of interpretation.”

[30] In referring to the reciprocal or
collateral obligations contemplated in an agreement, Maritz J (as he
then was) in Du Plessis v
Ndjavera stated: ¹⁸

“The
exceptio
non adimpleti contractus
as
a defence in an action for specific performance is inextricably
linked to the principle of reciprocity under a bilateral contract –
as Jansen JA remarked after an extensive analysis of the Roman law
and the Roman Dutch common law in BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979
(1) SA 391 (A) at 417H, the exceptio
is
a ‘meeganger’ (‘companion’) (literally
translated) of the principle of reciprocity. It is only if and when
there are reciprocal obligations contemplated in a contract
(irrespective of whether they are to be discharged concurrently or
consecutively) that the exceptio
may
afford a defence to a claim for specific performance. The position
is, in my view, correctly stated in the dictum
of
Corbett J (as he then was) in Ese
Financial Services (Pty) Ltd v Cramer 1973
(2) SA 805 (C) at 8808H-809D:

‘In
a bilateral contract certain obligations may be reciprocal in the
sense that the performance of the one may be conditional upon the
performance, or tender of performance, of the other. This reciprocity
may itself be bilateral in the sense that the performance, or tender
of performance, of them represent concurrent conditions; that is,
each is conditional upon the other. A ready example of this would be
delivery of the res
vendita and
payment of the purchase price under a cash sale. (See Crispette
and Candy Co Ltd v Oscar Michaelis N.O and Another 1947
(4) SA 521 (A) AT 537) Alternatively, the reciprocity may be
one-sided in that the complete performance of his contractual
obligation by one party may be a condition precedent to the
performance of his reciprocal obligation by the other party. In other
words the obligations, though inter-dependent, fall to be performed
consecutively. An example of this would be a locatio
conductio operis whereunder
the conductor
operis is
normally obliged to carry out the work which he is engaged to do
before the contract money can be claimed. In such a case the
obligation to pay the money is conditional on the preperformance of
the obligation to carry out the work, but, of course, the converse
does not apply (see, eg, Kamaludin
v Gihwala 1956
(2) SA 323 (C) at 326; De Wet and Yeats Kontraktereg
3^rd
ed
at 139).’

The
question whether the obligations created in a contract are reciprocal
or not, is to be ascertained from the intention of the contracting
parties as expressed therein (see BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk (supra
at 418B-C)). In some types of
contracts, such as those referred to by Corbett J (ie contracts of
sale or for the rendering of services), ‘the principle is so
appropriate to the nature of the contract that it applies by
operation of law unless a contrary intention appears’. (See
Christie The Law of
Contract 3^rd
ed at 471; see further BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk (supra,
at 418D).

The
fact that a contract is bilateral in nature affords no assistance in
answering that question. Neither does the fact that the obligations
are due on the same date (see Strydom
v Van Rensburg 1949
(3) SA 465 (T) at 467).

‘For
reciprocity to exist there must be such a relationship between the
obligation to be performed by the one party and that due by the other
party as to indicate that one was undertaken in exchange for the
performance of the other and, in cases where the obligations are not
consecutive, vice
versa.’”

[31] In Minister
of Public Works and Land Affairs and Another v Group Five Building
Ltd Marais JA said: ¹⁹

“Reciprocity
of debt in law does not exist merely because the obligations which
are claimed to be reciprocal arise from the same contract and each
party is indebted in some way to the other. A far closer, and more
immediate correlation than that is required. See BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979
(1) SA 391 (A) at 415H-418C. The contractor’s right [under
a building construction contract]
to claim damages for a breach of contract is not matched by any
particular
obligation
towards appellants on its part. It is not required to have performed
or to tender performance of any reciprocal obligation in asserting
such a claim.”

[32] In the light of the fact that I
have already found that no fraud by the applicant was established on
the papers, there can be no suggestion that the applicant
intentionally provided the respondents with incorrect account sales
and accordingly wrongfully withheld money that was due to them. Even
if the respondents are correct in their allegations of fraud and this
could be proved against the applicant during the bookkeeping process
of the previous year, I accept Mr Heathcote’s contention that
those obligations in fact related to past performances. There was no
reciprocity whatsoever between past obligations relating to the 2010
harvest and obligations currently owed by the parties to each other
for the 2011 harvesting season. There accordingly is neither a basis
to terminate the marketing agreement nor is there a basis for the
respondents to suspend the obligations under the agreement. The
marketing agreement is accordingly of full force and effect.

The correct test to be applied

[33] In any event, it is common cause
that the marketing agreement has not been cancelled. The applicant is
accordingly prima facie
entitled to enforcement of the
agreement. As to the existence of an alternative remedy, such as the
payment of damages, Van Niekerk J comprehensively dealt with this
issue in an authoritative judgment in the unreported case of Channel
Life Namibia Ltd v Finance and Education (Pty) Ltd and 2 Others,
in which reasons were given on 11 April 2005 (under case no. (P) A
215.04. She said: ²⁰

“Regarding
the requirement that the applicant must show that it has no
alternative remedy, the respondent contends that the applicant can
claim specific performance and/or damages from the first respondent
in the main action. The applicant submits that it has a right to
specific performance and that it need not settle for a claim for
damages. This is a performance and that it need not settle for a
claim for damages. This is a right which the first respondent does
not enjoy. It cannot claim to be allowed to pay damages instead of
having an order for specific performance entered against it. (Candid
Electronics (Pty) Ltd v Merchandise Buying Syndicate (Pty) Ltd 1992
(2) SA 459 at 463 J). Although this is a matter in which the
applicant was in a situation similar to that of an owner seeking an
order of specific performance and this may have influenced that Court
to grant an interdict enforcing the applicant’s rights in
pledged goods, the Court made it clear (at 463J – 464) that –

‘In
our law

‘…a
plaintiff has the right of election whether to hold a defendant to
his contract and claim performance by him of precisely what he had
bound himself to do, or to claim damages for the breach …This
right of choice a defendant does not enjoy; he cannot claim to be
allowed to pay damages instead of having an order for specific
performance entered against him.

It
is, however, equally settled law with us that although the Court will
as far as possible give effect to a plaintiff’s choice to claim
specific performance it has a discretion in a fitting case to refuse
to decree specific performance and leave the plaintiff to claim and
prove his id quod
interest.’

(Haynes
v Kingwilliamstown Municipality 1951
(2) SA 371 (A) at 378E-F; Benson
v SA Mutual Life Assurance Society 1986
(1) SA 776 (A) at 781 H-L)

In
my respectful view these principles apply mutatis
mutandis in an
application for an interdict.

In
a recent Appellate Division case it was stated:

‘(t)hat
a right to specific performance exists was decided as long ago as
1882 …and subsequently reaffirmed in a host of cases…,
subject only to the qualification that the Court has a discretion to
grant or to refuse an order for performance. This right is the
cornerstone of our law relating to specific performance. Once that is
realised, it seems clear, both logically and as a matter of
principle, that any curtailment of the Court’s discretion
inevitably entails an erosion of the plaintiff’s right to
performance and that there can be no rule, whether it be flexible or
inflexible, as to the way in which the discretion is to be exercised,
which does not affect the plaintiff’s right in some way or
another. The degree to which it is affected depends, of course, on
the nature and extent of the rule; theoretically, I suppose, there
may be a rule which regulates the exercise of the discretion without
actually curtailing it but, apart form the rule that the discretion
is to be exercised judicially upon a consideration of all relevant
facts, it is difficult to conceive of one. Practically speaking it
follows that, apart from the rule just referred to, no rules can be
prescribed to regulate the exercise of the Court’s discretion.’

(Benson
v SA Mutual Life Assurance Society (supra
at 782H-783B)

In
my respectful view this principle applied and this Court was bound to
apply it in an application for an interdict. Simply stated: the grant
or refusal of an interdict is a matter within the discretion of the
Court hearing the application and depends on the facts peculiar to
each individual case and the right the applicant is seeking to
enforce or protect.

The
rule that a decree of specific performance would not be granted where
the applicant could be compensated adequately by an award of damages
is an impermissible curtailment of the Court’s discretion. This
rule was based on English authority and derived purely from Chancery
practice. The English rules regulating their Courts’ discretion
to decree specific performance being predicated upon the remedy being
available by way of equitable relief only are in conflict with the
principle of our law and the indiscriminate application of English
case law was deprecated by the Appellate Division in Benson’s
case in which it was
held that there is no longer any need nor reason for this practice to
continue (see Benson’s
case at 785 A-E)”

[34] The applicant has in my view laid
a proper basis for requiring that the respondents be held to their
bargain. I can see no reason why on the facts of this matter the
applicant should content itself with an award of damages. This is
particularly so where the applicant is dependent upon undertakings it
gives in the international grape export market, and should it be
forced to renege thereon due to the suspension of the marketing
agreement, the reputational damages would be significant but
difficult to establish with any accuracy.

[35] It is contended on behalf of the
respondents that the relief sought in this matter is final in effect
and therefore should be determined by virtue of the requirements of a
final interdict. In the matter of Knox
D’Arcy Ltd and Others v Jamieson and Others Stegmann
J stated: ²¹

“I
take the very common example of an interlocutory order for the
temporary attachment of a car pending the resolution of a dispute
over its ownership. The main substantive right for determination is
that of ownership. If the person from whose possession the car is
taken in terms of the interlocutory order is ultimately (after six
months or a year) found to have been the owner all along, the
interlocutory order will be seen to have interfered with two of the
most important rights incidental to his ownership, viz the right to
possess and the right to enjoy the use of the car. Although the
possession and use will at that stage be restored to him, his
dispossession for six or twelve months and the deprivation of the use
for the same period can never be restored. Such period of
dispossession and deprivation amounts to an irreversible, and to that
extent final, infraction of his rights. Nevertheless, it is settled
law that such a final consequence or the prospect of it does not
convert such an interlocutory interdict into an interdict which,
although interlocutory in form, is final in effect.”

[36] In the light hereof, the
requirements which need to be established by the applicant are as set
out in the oft-quoted case of Webster
v Mitchell ²²
namely that where disputes on
affidavit allow for a conclusion that the applicant has made out a
prima facie
right, though open to some doubt, and
has similarly has satisfied the further requirements for an
interlocutory interdict.

[37] In this regard, on the facts
before me, I find that the applicant has made out a prima
facie case. As to the
second requirement of irreparable harm, the applicant has put up
facts that its commission on the sale of grapes worth approximately
N$170 million would translate into commission of approximately N$16
million, which the applicant stands to lose should the respondents
seek to avoid their obligations in terms of the marketing agreement
and use other agents to market and sell the grapes for the 2011
harvesting season. In the circumstances, I find that there is an
objective probability of harm to the applicant should the relief not
be granted. This aspect is closely related to the issue of balance of
convenience, and for the reasons already stated, I find that the
balance of convenience and the prejudice that the applicant would
indeed suffer should the agreement be suspended and it lose its
commission and its international business reputation, outweighs any
inconvenience the respondents may suffer should they be required to
use the applicant as their marketer for the current grape harvesting
season. For these reasons, I find that the applicant has satisfied
the requirements for interim mandatory relief.

Urgency

[38] It is contended on behalf of the
respondents that the applicant was well aware from 19 September 2011,
alternatively from 10 October 2011, that the respondents had no
intention to deliver table grapes to the applicant in terms of the
marketing agreement. It was argued on behalf of the respondents that
the applicant had created its own urgency. The papers in this matter
were served on the respondents on 4 November 2011, less than a week
before the hearing, it being further contended by the respondents
that in the circumstances the manner in which the applicant came to
Court was an abuse of the process of Court.

[39] It was pointed out in argument by
counsel for the applicant that the harvesting season starts on or
about 11 November 2011. Grapes had to be harvested, put in boxes,
pre-cooled and thereafter transported from Aussenkehr to the Cape
Town harbour. Thijs van den Heuvel stated that the applicant had
already entered into agreements with clients for the purchase of the
harvest. He confirmed that the applicant stands to lose income of
N$50 million should it be excluded from being the sole exporting
agent of the respondents’ grapes. Based on the expected yield
of grapes for the 2011 season and factoring into this figure the
average prices for the 2010 season the commission to be earned by the
applicant for the current season would be approximately N$17,5
million. This was not the applicant’s only concern. The
applicant claims that it is a well-known name in the international
food business. He states that it would be difficult to calculate the
reputational damage which would be suffered by the applicant should
it be prevented from marketing and selling the respondents’
grapes. He referred to the penalties that would be payable if the
applicant was to be in breach of its various agreements with its
clients. Whilst the applicant was aware of the threat to its
continued marketing and sale of the respondents’ grapes, the
applicant attempted to resolve the differences by scheduling a
meeting for 1 November 2011 in Cape Town to seek a resolution. Thijs
van den Heuvel traveled from Amsterdam to Cape Town to attend this
meeting, but the respondents’ Dusan did not make an appearance
at the scheduled meeting.

[40] In exercising a discretion in
terms of Rule 6 (12) of the High Court Rules, the Court recognises
that there are varying degrees of urgency. ²³
The urgency of commercial matters has
also been recognized in the matter of Twentieth
Century Fox Film Corporation and Another v Anthony Black Films (Pty)
Ltd ²⁴.
It would be required of the applicant with reference to the facts of
the matter to demonstrate that it is unable to receive redress in the
normal course and that the facts justify the degree of urgency with
which the application has been brought. At the hearing of this
matter, although the respondents were brought before Court on
relatively short notice, they did not seek a postponement of the
matter, on that ground, save to request a postponement of one day in
order to properly consider the applicant’s replying papers
which were only served during the course of that morning. The
respondents have in fact filed very full answering papers in response
to the application.

[41] In the light of the principles I
have referred to, and on the facts of this matter – principally
the imminent commencement of the grape harvesting season and the fact
that it would only endure for a short period of some six weeks –
I am of the view that the applicant has made out a case for urgency
as envisaged by Rule 6 (12) and accordingly I grant condonation in
respect of the urgent basis upon which this application was brought.

Conclusion

[42] As a result, I am satisfied that
the applicant has made out a case for the mandatory relief sought
pendente lite. Mr Coetsee rightly did not take issue with Mr
Heathcote’s submission that should an order be granted, any
future order for costs should include the costs of one instructing
and two instructed counsel. The complexity of the legal issues and
the importance of the matter to the parties would warrant such an
order. I accordingly make the following order:

1. The applicant’s
non-compliance with the Rules of Court is condoned and the matter is
heard as one of urgency as envisaged by Rule 6 (12) of the Rules of
the High Court;

2. An interim interdict is hereby
issued, ordering the respondents to comply with their obligations in
terms of the marketing and sale agreement entered into between the
parties on 18 March 2009, as amended by an addendum on the same day,
and as further amended on 3 September 2010, pending the outcome of an
action to be instituted by the applicant against the respondents for
the following declaratory relief:

2.1 that the marketing and sale
agreement is of full force and effect;

2. 
   that the letter of intent entered
   into between the parties on 10 March 2011 cannot be the cause of
   obligations of a reciprocal nature vis- a- vis the marketing
   and sale agreement;

   
   

2. 
   Cost of suit.

   
   

3. 
   For the purposes of monitoring
   respondents’ compliance with the interdict, the respondents
   are ordered to permit the applicant’s Mr Bernhardt du Toit to
   be represented on the respondents’ properties at Aussenkehr
   during harvesting, packing and shipping;

   
   

3. 
   The applicant is ordered to institute
   its action within 21 days of this order;

   
   

3. 
   The costs of this application be
   costs in the action.

   
   

__________

CORBETT, A.J

ON
BEHALF OF THE APPLICANT:

Adv
R Heathcote SC

and
with him

Adv.
G Dicks

Instructed
by : Ellis Shilengudwa Inc.

ON
BEHALF OF RESPONDENTS:

Adv.
P Coetsee SC

and
with him

Adv.
DW Gess

Instructed
by Diekmann Associates