Court name
High Court
Case number
1415 of 2008

Nabeel Fresh Produce CC v XXX Trucking CC (1415 of 2008) [2012] NAHC 234 (21 August 2012);

Media neutral citation
[2012] NAHC 234
Damaseb JP




Not Reportable”

CASE NO. I 1415/2008

In the matter between:




Neutral citation: Nabeel
Fresh Produce CC v XXX Trucking CC (I 1415/2008) [2012] NAHCMD (21
August 2012)


HEARD: 20 –
21 FEBRUARY 2012; 2 – 3 APRIL 2012

August 2012

Summary: Claim for
payment of purchase price of a truck – defendant denying that a
valid contract was concluded as it chose not to exercise the option
to purchase based on alleged non-fulfillment by plaintiff of a
warranty that truck was under one year manufacturer’s guarantee
– Court finding that probabilities favor plaintiff’s
version that, in breach of agreement, defendant failed to perform and
thus liable to pay the difference between purchase price and the
amount at which truck sold to a third party – Although
proceeding under contract, plaintiff claiming interest on the
purchase price ‘from date of judgment to date of payment’
– Court holding plaintiff must be held to his election as that
was the case defendant had to meet – Costs awarded to include
only one counsel as matter not so complex as to have justified
employment of instructed counsel.




Judgment granted in
favour of the plaintiff in the amount of N$115 000 with interest at
the rate of 20% per annum, calculated from the date of judgment to
the date of payment; with costs of suit to include only one counsel.




[1] The plaintiff Close Corporation instituted action against the
defendant Close Corporation for payment of an amount of N$ 130 000
and interest thereon at the rate 20% per annum, ‘calculated
from date of judgment to date of payment’. The plaintiff seeks
as damages what it claims to be the difference between the agreed
purchase price and the amount at which it eventually sold a Scania
truck to a third party following an alleged breach by the defendant
to purchase the truck.

[2] It is common cause
that the parties entered into an oral agreement in terms of which the
defendant had obtained an option to purchase from the plaintiff a
Scania 480 HP Truck (hereafter ‘the truck’). The only
additional terms that are undisputed are the following:

  1. That the plaintiff was
    to give delivery of the truck to the defendant before the end of
    June 2007;

  2. That the defendant would
    take possession of the truck and test-drive it before exercising the
    option to purchase it.

pleaded case

[3] The rest of the terms
are in dispute. The plaintiff alleges that the following were the
additional terms:

(a) that the defendant
would upon taking possession of the truck test-drive it from Walvis
Bay to the north of Namibia and back, before ‘finally deciding
to exercise the option to purchase the truck’;

(b) that upon the
defendant exercising the option to buy, the truck would be sold
voetstoots and without any warranties either expressed, implied or

(c) that the purchase
price was N$750 000 and would exclude VAT, but that at the
defendant’s request, the purchase price was reduced to N$735

(d) that the purchase
price was payable by a one off payment via bank transfer.

[4] The plaintiff pleads
further that defendant, on or about 4 June 2007 and at Windhoek,
after test driving the truck as agreed and whilst the option was in
‘full force and effect’ duly exercised the option by
orally notifying the plaintiff that he was purchasing the truck and
that thereupon a binding agreement came into existence between the
plaintiff and the defendant. That the plaintiff on 11 June 2007
demanded payment of the full purchase price on or before end of June
2007. The defendant on 19 July 2007, complaining that the truck was
overheating, returned it to Scania premises. On 23 August 2007, the
plaintiff tendered delivery of the truck against payment of the
purchase price of N$ 750 000 but on 17 September 2007 the defendant
repudiated the agreement by refusing to accept delivery thereof. The
plaintiff accepted the repudiation, cancelled the agreement as a
result of the repudiation and seeks damages representing the
difference between the agreed purchase price of N$ 750 000 and the
amount of N$ 620 000 at which he sold the truck to a third party.

The plea

[5] The defendant denies
the additional terms stated in paras [3] and [4] above. It pleads
that the additional terms were the following:

(a) that it would
test-drive the truck for ‘approximately a month’;

(b) that the plaintiff
warranted to it that there was still a manufacturer’s guarantee
in place on the truck by Scania Trucks Namibia, for a period of one
year which would inure for the defendant’s benefit;

(c) that the defendant
would only purchase the truck after its representative had
test-driven the truck for a period of approximately one month, and
the defendant was satisfied as to the mechanical soundness of the

The defendant denies that
the sale of the truck was ‘voetstoots’ and without
warranties, express or implied. It also denies that a valid and
binding agreement of sale came into existence between the parties as
the defendant elected not to exercise the option to purchase the

[6] The following
additional averments in the defendant’s plea are very

  1. that defendant’s
    Dudley Strauss complained to plaintiff’s William Gilmore that
    the truck was overheating approximately 8 days after the defendant
    had taken ‘delivery of the truck for purposes of test driving

  2. that thereupon plaintiff
    instructed defendant to take the truck to Scania Trucks Namibia
    (Pty) Ltd (‘Scania’) for necessary repairs and that
    plaintiff reconfirmed to defendant that the truck was still under
    manufacturer’s guarantee with Scania; and

  3. that the defendant upon
    taking the truck to Scania as aforesaid, was advised by Scania that
    the truck was no longer under any guarantee by Scania and that, as a
    result, the defendant had to pay N$11,569.38 for such repairs. The
    plaintiff thereupon demanded payment of the full purchase price on
    or before end of June 2007;

  4. that although such
    demand was made, the defendant’s Strauss informed Gilmore that
    on account of the truck overheating, the defendant had not yet
    decided whether or not to exercise the option to purchase and that
    it was agreed instead that the defendant would pay N$22 000 to
    plaintiff for the use of the truck during the month of June 2007,
    being the monthly installment payable by the plaintiff to its bank
    in respect of the installment sale agreement on the truck;

  5. that it was later agreed
    between the parties that the amount of N$22 000 would be increased
    to N$25 000 in light of the defendant’s actual use of the
    truck for a period exceeding one month and that the payment of
    N$11,569.38 paid by defendant for the truck’s repairs was
    partial payment of the amount of N$25 000;

  6. that during July 2007
    the defendant brought it to plaintiff’s attention that the
    truck was still overheating and was as a result returned to Scania
    where it was first collected and that thereupon defendant’s
    Strauss had advised plaintiff’s Gilmore that the defendant
    would, in view of the overheating, not exercise the option to
    purchase the truck;

  7. upon the plaintiff being
    so advised, the parties agreed that the amount of N$25 000 would be
    payable by the defendant to the plaintiff as compensation ‘for
    the time and distance for which the truck was used by the

Common cause facts

[7] It is common cause
that the plaintiff’s Gilmore delivered the truck to defendant’s
Strauss on or about end of May 2007. The truck was from that point on
under Strauss’s possession and control. He used the truck in
the defendant’s trucking business. It is common cause that the
defendant is in the trucking business and transports goods for others
for financial reward. From the moment Strauss took possession of the
truck on behalf of the defendant and until he parted possession with
it on 19 July 2007, the truck had travelled 24 000 km in furtherance
of the defendant’s trucking business from which the defendant
derived an income. It is also common cause that after Strauss took
possession of the truck it overheated and was taken in for repairs to
Scania and that the defendant paid for those repairs to truck
amounting to N$11,569.38.

[8] It is further common
cause that the plaintiff sold the truck to a third party in November
2007 at a price of N$620 000. It is also common cause that the
defendant, after taking delivery of the truck, deployed it in its
commercial operations and registered 8000 km on it in less than 10
days whereafter the truck was taken to Scania for repairs for
overheating. After those repairs, the defendant further deployed the
truck in its commercial operations and registered a further 16 000 km
on it. The defendant derived an income from the use of the truck in
this way. It is undisputed that the plaintiff paid: (a) installments
to the bank in respect of the truck and (b) accident insurance
thereon for all the time it was in the possession of the defendant.

[9] Lastly, it is common
cause that the principals (and sole members) of the two parties are
both businessmen of long standing: Gilmore’s business is the
sale of fresh produce including ownership of trucks for the purpose
of the business; while that of Strauss is long-haul transportation of
goods for others for reward.


Sole member William

[10] Against the backdrop
of the plaintiff’s pleaded case that there was a binding
agreement between the parties for the sale of the truck which was
allegedly repudiated by the defendant, Gilmore, the principal of the
plaintiff, testified that the defendant’s Strauss approached
him to sell the truck to the defendant. Gilmore testified that the
truck had been serviced at a cost of N$12 000 before it was delivered
to Strauss and that the plaintiff had paid a further sum of N$22 000
for the road-worthiness licence issued by the Namibia Transport
Information System (NATIS) for the truck. According to Gilmore, on 4
June 2007, the defendant orally conveyed to him his decision to
purchase the truck, thus consummating the sale. Gilmore thereupon
sent an invoice for the purchase price to Strauss at the latter’s
request from which it was clear that VAT was excluded from the
purchase price. Gilmore testified that he did not receive any
indication from Strauss that the invoice was not accepted. According
to Gilmore, the invoice was asked for by Strauss to be used for the
purpose of raising finance for the truck’s purchase.

[11] Gilmore testified
about the several trips undertaken with the truck by the defendant
across the country and beyond the borders. He confirmed that he was
informed by the defendant’s Strauss eight days after the
truck’s delivery that the truck was overheating. On Gilmore’s
advice, Strauss took the truck to Scania, who affected some repairs
to the fan of the truck but could not complete the repairs because
the truck was linked to an interlink loaded with defendant’s
cargo destined to South Africa. According to Gilmore, the purchase
guarantee on the truck had expired by June or July 2007 as the truck
had been bought in 2005. He testified that the truck was involved in
an accident before delivery to the defendant, but that he had it
repaired and had taken out for it an accident insurance which, at the
time of the transaction with the defendant, was valid for one year.

[12] Gilmore testified
that upon demand of payment of the full purchase price, Strauss told
him that he was at that stage unable to pay the full purchase price
by end June 2007 and would only be able to pay (as an initial
installment) the amount of N$25 000 representing the monthly
installment payable by the plaintiff to its bankers on the
installment sale agreement whilst he was securing finance. No such
payment was however made according to Gilmore, except an amount of
N$13 000 which Strauss upon Gilmore’s inquiry stated was the
difference between N$25 000 and the cost for the repairs he had paid
to Scania for the repair of the Scania when it first experienced
overheating whilst under its possession. Gilmore insisted upon
payment of the full amount without set off and returned the N$13 000
to the defendant.

[13] Gilmore confirmed
that he had received from Strauss more complaints about the truck
overheating, whereafter the defendant ‘abandoned’ the
truck at Scania having driven 24 000 km with it and refused to pay
the purchase price. According to Gilmore, the use of the truck in
that way brought down its resale value.

[14] Gilmore testified in
conclusion that he suffered damages, due to defendant’s
repudiation of the agreement, in the amount of N$130 000 being the
difference between the purchase price of N$750 000 and the actual
resale price of N$620 000 at which the plaintiff sold the truck to a
third party. In the alternative, the plaintiff’s pleaded case
is that it was an implied term that the defendant, in case of
repudiation of the agreement would return the truck to the plaintiff
upon payment of a fair and reasonable compensation for the use of the

expert witness

[15] The plaintiff called
Mr. Benjamin Johannes Groenewaldt as an expert witness on trucking
business. Groenewaldt testified that around 2006, the rate in the
trucking business chargeable to clients was N$ 7.65 per kilometer. He
testified that on a load of 34 tons one would make an income of about
N$27 000 with a truck and trailer on a trip to and back from Cape
Town in 2006. Under cross-examination, Groenewalt was not prepared to
concede that the rate chargeable would depend on the load that one
carries as a trucker’s expenses in respect of fuel remained the
same regardless of the size of the load. He conceded however that the
Horse without a trailer was financially meaningless just as a trailer
without a Horse was economically meaningless – this in light of
the common cause fact that the defendant received only the Horse and
not a trailer from the plaintiff.


Sole member Dudley

[16] Mr. Dudley David
Strauss testified that he was the managing and sole member of the
defendant, XXX Trucking CC. He testified that he met Gilmore in 2007
to discuss the sale of a truck that was then standing at the Scania
premises. Strauss testified that in view of the fact that the truck
had previously been involved in an accident, he insisted to test
drive it for about a month for ‘peace of mind’ after
which he would buy it if it was mechanically sound. The tenor of his
evidence was that the plaintiff had accepted that the defendant might
elect not to exercise the option to buy if the truck was not
mechanically sound. Strauss testified that he and Gilmore agreed that
the defendant would pay the amount of N$22 000.00 for the period that
it was to test-drive the truck, representing the amount that the
plaintiff paid in monthly installments to the bank towards the truck.
Strauss further testified that Gilmore had warranted to him that the
truck still enjoyed a one year manufacturer’s guarantee by
Scania and that the defendant, if it became the new owner, would own
that guarantee.

[17] Strauss also
testified that it was agreed that the defendant would test drive the
truck in furtherance of its commercial operations. He testified that
he, after taking delivery of the truck, personally drove with it on a
business trip from Walvis Bay to the north of Namibia and thence to
Cape Town and back to Windhoek. Thereafter his driver, one Roentgen,
also known to Gilmore, then drove the truck for up to two trips to
South Africa when the truck overheated. He then reported this much to
Gilmore who then advised him to take the truck to Scania for repairs.
When the repairs were done he was advised by Scania that the amount
of N$11 569.38 was due for such repairs
which he had to pay as, according to him, Scania told him that no
guarantee existed in respect of the truck. According to Strauss,
Gilmore then advised him that he would take care of the issue of the

[18] After the repairs,
Strauss testified, he caused the truck to undertake several trips to
South Africa in furtherance of the defendant’s trucking
business, and on 19 July 2007, after it experienced further heating
problems, left it at Scania and informed Gilmore that he did so and
that the defendant would not exercise the option to buy the truck.
When Gilmore expressed dissatisfaction with the fact the defendant
would not proceed with the sale, Strauss said he went to see Gilmore
and it was then agreed that he would pay N$25 000.00 for the period
that the defendant used the truck. According to Strauss , the parties
then agreed that the defendant pay to the plaintiff the amount of
N$22 000.00 for the actual use of the truck whereto the defendant
added an amount of N$3000.00 to compensate for the additional use
beyond the one-month test-drive. He said he was entitled to deduct
from that amount the costs of repair which defendant paid. He
proceeded to deduct the amount of N$11 569, 38 which the defendant
paid to Scania and paid over the difference of N$13 000 which
plaintiff’s Gilmore refused to accept.

[19] In
cross-examination, Strauss conceded that the defendant had travelled
with the truck on its business for an additional 16 000 km after the
first repairs effected to the truck and that the defendant generated
income using the truck. He also conceded that he had known at that
stage that there was no manufacturer’s guarantee on the truck
with Scania as he had been told as much by a representative of
Scania. He could not dispute under cross-examination that just before
the defendant took possession of the truck on behalf of the
defendant, the plaintiff had it serviced at a cost of N$12 000 and
had paid to NATIS N$20 000 for its road-worthiness licence. Gilmore
conceded that when he took delivery of the truck he was told by
Gilmore that the truck had been involved in an accident; that it was
a second-hand truck and had been bought in 2005. He also conceded
that the industry practice was that a new truck enjoyed a
manufacturer’s guarantee of two years or 300 000 km, but added
that it was also possible for the owner to extend such guarantee upon
payment. He accepted, however, that if the latter were to be the case
there would be written proof of such extension which he never asked
for or had seen.

[20] The court enquired
of Strauss why he did not call off the deal after he discovered that
the truck was over heating and that no manufacturer’s guarantee
was in existence. He answered that he could not call off the deal at
that time because he had a good purchase price deal and that the
plaintiff assured him that he would ‘fix’ everything to
his satisfaction

Issues of fact and
law in dispute

[21] The parties’
counsel prepared a joint pre-trial order that sets out the facts in
dispute and the question of law that is to be resolved. The only
issue that falls to be decided is whether there was a valid and
binding contract between the plaintiff and the defendant. A party
alleging a contract must prove its terms either explicit or implied.
Proving the terms of a
contract entails proof of the anterior question of whether both
parties had the requisite

The probabilities

[22] This being a civil
case, the test I must apply is, for example, stated in
v Minister of Home Affairs
- where
the Court held that where two versions are mutually destructive, the
plaintiff can only succeed if he establishes on a balance of
probabilities that his version is accurate and acceptable and the
defendant’s false and liable to be rejected. In deciding
whether that evidence is true or not the Court will weigh up and test
the parties’ allegations against the general probabilities. If
the probabilities favour the plaintiff’s version, he must
succeed. In
Accident and Guarantee Corporation Ltd v Koch
Holmes JA stated the

‘…in finding facts or
making inferences in a civil case , it seems to me that one may…
by balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from amongst several
conceivable ones, even though that conclusion be not the only
reasonable one. I need hardly hard that “plausible’’
is not here used in its bad sense of “specious”, but in
the connotation which is conveyed by words such as acceptable,
credible, suitable

[23] The defendant used
the truck quite extensively in furtherance of its business operation
without commensurate recompense to the plaintiff and while knowing,
on its version, that the truck was overheating and did not have a
guarantee. At the first time that the truck overheated and had to be
taken to Scania for repair, the defendant became aware, if it was not
already so aware as alleged, that the truck was not under a
manufacturer’s guarantee. Instead of returning the truck
because of the absence of a term it insists was an express term of
the agreement, it not only retained the truck but used it in
furtherance of its business.

[24] Strauss’s
evidence was that the defendant had a pre-approval of N$1000 000 from
its bankers at the time that he negotiated the purchase of the truck
from the plaintiff. According to Strauss, he had, during the
negotiation, been warranted by Gilmore that there was a one year
guarantee by Scania in respect of the truck. Being the shrewd
businessman his evidence suggests he was, he however negotiated and
obtained Gilmore’s agreement to test-drive the truck for a
period of one month on payment of an amount of N$22 000 as
compensation to the plaintiff for the period of test-driving the
truck. That is where the problem begins: there is no explanation by
Strauss what was to happen to this N$22 000 if he proceeded to
exercise the option to buy the truck. Was it to be deducted from the
purchase price? He does not say so. The second problem is the failure
on his part, as a diligent paterfamilias, to obtain more information
about the alleged guarantee or to demand to see the document
evidencing the existence of the guarantee as allegedly warranted to
him by Gilmore.

[25] Based on the
concession he made as to the industry practice, it must have been
obvious to Strauss, given his awareness of the date (2005) of the
truck’s purchase that no manufacturer’s guarantee existed
on the truck or was, at best for him, close to expiry. Yet he did not
inquire into it or, if that is what he assumed the case was, to
demand to see the written document extending the guarantee. The other
implausibility in Strauss’ version is the inherent
contradiction in his composite version of the existence of a
guarantee and the need to test drive the truck for a period which, he
conceded, was relatively too long: He was unable to offer a plausible
explanation or a business rational for an arrangement whereby he
would be allowed to test-drive the truck for a month accepting that,
in any event, there existed a manufacturer’s warranty of its
mechanical soundness for a period of one year which he was prepared
to accept as sufficient for the purpose of concluding the

[26] Perhaps the most
telling consideration against the defendant is the fact that Strauss
caused the truck to de deployed in the defendant’s commercial
operations while, according to him, it had mechanical problems (i.e.
the overheating) and he was aware that the warranty allegedly made to
him by Gilmore of a year’s guarantee by Scania was a lie. To
this must be added the concession by Strauss that the scenario as
described by him did not make much business sense. It suffices to
quote the following questions and answers under cross-examination:

Q. Mr Boesak: I just put it to
you he paid N$12 000 for the service and he paid about N$20 000 for
the licence, when he gave you the truck, now does it seem reasonable
that he only wanted a monthly installment of N$25 000 after you used
the truck for a month?

  1. Strauss: No sir, but I was not the
    owner of the truck.’

[27] It bears mention
that it was put to Gilmore under cross-examination that the version
of Strauss will be that after the truck was repaired by Scania at the
instance of the defendant it had only undertaken two trips to South
Africa whereafter it was left at Scania. Mr Boesak for the plaintiff
pointed out that that version was a lie as Strauss had conceded under
cross-examination that the truck had in fact undertaken six separate
trips to South Africa in furtherance of the defendant’s
commercial interests, registering a total of 16 000 km on the truck.
The demonstrably false version of Strauss undermines his version that
it was agreed between the parties that the defendant’s use of
the truck for over a month was limited to a corresponding obligation
to pay only the plaintiff’s monthly installment obligation to
the bank and that it was unrelated to its exercise of the option to
purchase the truck. Against this false version must be considered the
fact that it has not been shown that the plaintiff’s Gilmore
presented any false evidence to the court. Although Mr Barnard for
the defendant sought to catalogue what he referred to as many
contradictions in Gilmore’s testimony, he could not point me to
any falsehoods in the critical allegations of Gilmore as regards the
terms of the agreement.

[28] For the defendant’s
version to prevail I have to find that the plaintiff had agreed that
the defendant would have the use of the truck and make an income from
it while:

  1. the plaintiff paid the
    installment thereon to the bank;

  2. the plaintiff paid
    accident insurance for the truck and carried the risk of loss in
    respect of the truck;

  3. the plaintiff had
    accepted to allow his truck to run up thousands of kilometers in
    furtherance of another man’s business, with the resultant
    reduction in its market (or resale) value.

[29] What are the
probabilities that a businessman would enter into such a transaction
involving a truck he had just previously serviced at a cost of N$12
000 and made road-worthy at a cost of N$ 20 000? It has been
confirmed by Geier J in
v Ndafediva
that there is a strong
probability against gratuitous giving away of one’s property
out of sheet philanthropy or gold old-fashioned benevolence: no one
is presumed to throw away or squander his property; and I my add –
especially to people with whom he has no special relationship. A
conclusion that a person intended to add to the patrimony of another,
at the expense of that person whose property advances to cause of the
other, is not one a court will arrive at lightly, except on very
strong and cogent evidence.

[30] Based on the
probabilities, the defendant’s version is not ‘the more
natural, or plausible conclusion’ in view of the overwhelming
probabilities pointing in the opposite direction. In my view, such an
arrangement would amount to the plaintiff making a gift to the
defendant. In our law, there is a presumption against donation. What
are the probabilities that a businessman who has existing financial
obligations in respect of a truck would allow it to be used by
another for the latter’s financial benefit without any
commensurate benefit to him? I am satisfied, none!

[31] In my view, the
conduct of the defendant corroborates the version of the plaintiff
that (a) the defendant was to test drive the truck to the north and
back and not for a month without any limit to the distance; (b) that
the sale was voetstoots; (c) the defendant exercised the option to
buy the truck on or about 4 June 2007 and; (d) the agreement between
the parties was consummated at that point and the defendant was from
that point under an obligation to perform and to pay the purchase
price. The defendant’s commercial use of the truck to South
Africa knowing that, according to Strauss it still had defects that
required repair is only reasonably explicable on the basis that the
defendant had accepted that the truck was then its property.
Strauss’s false version about just how many trips the truck
undertook to South Africa and the probabilities of the case favour
the version of the plaintiff’s Gilmore that the payment of the
installment by the defendant in respect of the truck was a temporary
arrangement in light of Strauss’s promise that he was still
arranging finance to pay the purchase price in full. The plaintiff’s
version that the only guarantee he told Strauss existed on the truck
was one year’s accident insurance, is more probable than the
defendant’s version that the guarantee warranted was a
manufacturer’s guarantee.

What was the purchase

[32] I come to the
conclusion that the probabilities favour the version of the facts as
pleaded and testified to by the plaintiff: that the defendant in
breach of the agreement between the parties as alleged by the
plaintiff, failed to pay the purchase price of the truck. The
plaintiff is therefore entitled to payment of the difference between
the agreed purchase price and the amount (N$620 000) at which the
truck was sold to a third party. It has always been the plaintiff’s
case that although it had initially set the purchase price at N$750
000, at Strauss’s request, it reduced the purchase price to
N$735 000. I cannot see why the defendant’s breach makes the
situation any different. The plaintiff is thus only entitled to the
reduced purchase price which it says was agreed between the parties.
The difference between the agreed purchase price of N$735 000 and N$
620 000 is N$115 000.

VAT not proved

[33] The plaintiff failed
to prove his claim that the purchase price was to attract VAT. He did
not even lead evidence that the plaintiff+ is registered for VAT -
and if it was, that the defendant knew of that fact. A claim for VAT
is not sustainable without proof of registration for VAT. None of the
plaintiff’s documents tendered in evidence as exhibits, and
purporting to be on plaintiff’s letterhead, bear a VAT number
from which the conclusion can be drawn that the plaintiff is
registered for VAT.


[34] Having found that
the defendant was in breach of the agreement to pay the purchase
price, the question that arises is from which date he was in mora.
The plaintiff claims interest on the alleged purchase price ‘at
the rate of 20 % per annum calculated from the date of judgment to
the date of payment’. The plaintiff has made a rather
unconventional, if curious election when it comes to the prayer on
interest. The plaintiff claims in contract yet claims interest ‘from
the date of judgment to date of payment’ as if this was a
delictual claim. Interest in case of contract breach is claimable
from date of mora. The plaintiff is bound by its election as that is
the case the defendant had to meet.


[35] I am not satisfied
that the case was of such complexity that it merited the employment
of instructed counsel. The plaintiff called two witnesses while the
defendant called only one witness. No complex legal issues arise. I
will therefore not make an order to include the costs of instructed

The order

[36] I make the following

  1. Judgment is granted for
    the plaintiff in the amount of N$115 000; with

  2. Interest at the rate of
    20% per annum calculated from the date of judgment to the date of
    payment ; and

  3. Costs of suit, to
    include only one counsel.






Instructed by Tjitemisa &

P Barnard

Instructed by Kirsten &
Co Inc.

Williams v First Consolidated Holdings (Pty) Ltd
1982 (2) SA 1
(AD) at 4A-B.

Solar (Pty) Ltd v DivWatt (Pty) Ltd
2002 (4) SA 681 (SCA) at

(2) NR 524 (HC) at 540I – 541B.

(4) SA 147 (AD) at 159C-D.

No. I 866/2007 (unreported), delivered on 22 June 2012, paras 42 and