CASE NO.: SA 11/2001

IN THE
SUPREME COURT OF NAMIBIA

In the
matter between

KOOS
VAN ELLINCKHUIJZEN APPELLANT

And

JAN
BOTHA RESPONDENT

CORAM:,
Strydom, C.J., O'Linn, A.J.A., Chomba, A.J.A.

HEARD
ON: 09/04/2002

DELIVERED
ON: 21/06/2002

_____________________________________________________________________________

APPEAL
JUDGMENT

_____________________________________________________________________________

O’LINN,
A.J.A.:

SECTION
A:

INTRODUCTORY
REMARKS:

The
appellant, Koos van Ellinckhuijzen, was the first respondent in the
Court a quo. The second respondent was the House of Art, but
in view of the settlement between it and the applicant reflected in
the Court order, second respondent did not appeal.

The
respondent before us is Jan Botha, the applicant in the Court a
quo.

Mr. Mouton appeared before us as counsel for the
appellant and Mr. Dicks as counsel for the respondent. The same
counsel appeared for the parties in the Court a quo.

To prevent
some confusion in referring to the parties, I will hereinafter refer
to the parties as in the Court a quo.

The
respondent appeals against the whole of the judgment and order given
in the Court a quo by Gibson, J. on 23/11/2000.

The
proceedings in the Court a quo arose in the following manner:

The applicant, Jan Botha, a businessman of Swakopmund in Namibia, and
the respondent, Koos van Ellinckhuijzen, an artist residing at
Windhoek, had entered into an agreement in terms of which Botha had
commissioned Van Ellinckhuijzen, to paint for him a so-called “relief
map” or “tourist perspective map of Namibia” as well as a
“relief map” of South Africa. The final price to be paid by
applicant to respondent for the paintings was N$36 000 for the
Namibian map and N$45 000 for the South African map. After
completion of the maps they were delivered to applicant.

Prior to the institution of litigation, the applicant had paid to the
respondent the full purchase price of the Namibian map and all but
N$5 000 of the purchase price of the South African map. After
keeping the maps in his possession for a certain period, the
applicant returned the maps to the respondent for certain purposes.

Whilst the maps were in the possession and/or custody of the first
respondent, the applicant discovered that first respondent was busy
selling the maps through the agency of the House of Art, the second
respondent, who had been placed in possession of the maps and who had
framed the maps on the instructions of first respondent.

Applicant immediately confronted the two respondents to state his
claim as owner of the paintings and got the following response from
the respondents. First respondent said in effect: “I have done my
homework and is entitled to sell the paintings”. Second
respondent, in reaction to a letter from applicant’s attorneys,
indicated by means of a letter from her attorneys, that “ she will
not let the paintings out of her possession or control, until such
time as her retention rights, for work done on the pictures in the
amount of N$3 000,00 has been satisfied”. Applicant was not
satisfied with the aforesaid responses and applied to the Court a
quo on an urgent basis for an interdict to prevent the paintings
from being sold by the first respondent.

After a settlement was reached with second respondent and certain
agreements were reached with first respondent relating to the
procedure to be followed for an expeditious finalization of the
dispute, the applicant and respondents set out their respective cases
in their affidavits and argued the matter before the Court a quo.

On 23^rd of November 2000 Gibson, J. made the following
order:

“1. That applicant was entitled to approach this Court on an urgent
basis prior to receiving an acceptable undertaking from second
respondent as is on record.

2. That first and second respondents are ordered forthwith, upon
second respondent’s right of retention in respect of work done in
framing the paintings, to place the applicant in possession of the
aforesaid original paintings, failing which that the Deputy Sheriff
for the district of Windhoek is authorized and directed to attach and
hand over to the applicant, the aforesaid painting.

3. That first respondent is ordered to pay the costs of this
applicant on a scale as between attorney and client.”

On 28^th
March 2001 the first respondent filed a notice of appeal against the
whole of the judgment and the order as to costs and set forth the
following grounds of appeal:

“A. AD URGENCY

1. The Honourable Judge erred in finding that the respondent has
satisfied in general, the requirements necessary to have approached
this Honourable Court on a basis for urgency and more specifically
the requirements that the respondent as applicant is called upon to

(a) set forth reasons why he claims that he could not be afforded
substantial redress at a hearing in due course

and

2. 
   establish that there is no other satisfactory remedy available to
   him.

   
   

2. The Honourable Judge should have found that the respondent did not
set forth sufficient reasons why he would not have been afforded
substantial redress at a hearing in due course

and

should have found that there are alternative remedies available to
the respondent i.e. alia inter the rei vindicatio and
action ad exhibendum.

It is consequently submitted that this Honourable Court erred in
having found that the Respondent was entitled to have approached this
Honourable Court on a basis of urgency in the manner it did.

2. 
   AD FINAL INTERDICT

   
   

3. The respondent sought a final interdict by way of an urgent
application and this Honourable Court erred in finding that the
respondent has established on a balance of probabilities that he had
met the requirements necessary for the granting of a final interdict
which are

1. 
   Clear Right

   
   

4. The respondent has failed to establish a clear right of ownership
especially if one considers that:

4.1 the appellant denies ownership to vest in the respondent
(therefore a dispute of fact);

4.2 the appellant was in possession of the drawings which create a
rebuttable presumption of ownership in his favour;

4.3 the respondent on his own version admits that he has not paid the
appellant in full with regard to the SA map (therefore ownership
could not pass until the respondent has performed);

4.4 the respondent handed both the drawings back to the appellant’s
possession after he had made prints of the drawings;

4.5 there is no concrete and/or substantial evidence before court
that the respondent was granted credit to pay for the drawings
except the word of the respondent which allegation is denied by the
appellant (another dispute of fact relating to the question of
ownership).

2. 
   No other remedy

   
   

5. It is submitted that the respondent failed to satisfy the court
that he had no other remedy available with which he could have
achieved the same result.

6. This Honourable Court should have found that the respondent had
available to him as the alleged owner

6.1 the rei vindicatio which is enforceable against the whole
world being an action in rem

and

2. 
   an award for damages

   
   

and

6.3 the actio ad exhibendum which can be instituted as an
alternative to the rei vindicatio.

7. 
   The Honourable Judge further erred in finding that:

   
   

‘This document (agreement, quotation or order) drawn up by the
first respondent is remarkable for what it omits to say’
(emphasis provided)

in that, it is not for the appellant to prove his defence, but for
the respondent to prove his claim on a balance of probabilities and
it is respectfully submitted that the respondent did not provide any
concrete and/or substantial proof of his claim to ownership but mere
unsubstantiated allegations.

7. 
   It is submitted therefore that this Honourable Court erred in making
   a ruling as it did which ruling was based only on speculation and on
   what the appellant “omitted” to say and not whether the
   respondent has proved his case on a preponderance of probabilities.

   
   

2. 
   AD DISPUTE OF FACT

   
   

9. The issue central to this application was the issue of ownership
to such drawings which claim of ownership by the respondent was
denied by the appellant.

10. This Honourable Court found that the balance of probabilities
with regard to the question of ownership favoured the respondent
merely because

(a) The appellant during the telephone conversation with the
respondent on 10 March 2000 omitted to say that he was the
owner of such drawings but instead used so-called obscure language
such as

“I have done my homework and I can sell the drawings”

such omission to state that he (appellant) was the owner and
that the usage of so-called obscure language are sufficient to
conclude that ownership of the drawings vested in the respondent

whereas the appellant was

1. 
   in possession of such drawings which created a rebuttable
   presumption of ownership in his favour

   
   

and

2. 
   not paid in full by the respondent and ownership could not have
   passed to him

   
   

and

3. 
   the respondent, bearing the onus of proof in both rebutting such
   presumption and proving his claim to ownership, did not provide
   this Honourable Court with one single concrete piece of evidence in
   either rebutting such presumption of ownership or proving his claim
   to ownership.

   
   

2. 
   COSTS

   
   

11. 
    The Honourable Judge erred in giving a special order as to costs in
    that the respondent did not lay any foundation in his papers nor did
    he present any evidence of male fides by the appellant to
    have warranted this Honourable Court to have made such a special
    order as to costs.”

    
    

The notice
of appeal followed in essence the line of argument followed by first
respondent’s counsel in the Court a quo.

Gibson,
J., dealt with the points raised before her in a judgment which was
generally well reasoned and persuasive.

Counsel
for the first respondent, Mr. Mouton, in his heads of argument and
viva voce argument in this Court, followed mainly the sequence
as well as the content of the grounds of appeal set out in the notice
of appeal. Unfortunately there is a lot of repetition and ambiguity
in the grounds as set out because a point made under one head is
often repeated under another head. Nevertheless, I will, wherever
possible, attempt to deal with the points raised or in issue in a
logical order.

SECTION
B:

WAS THE
APPLICANT ENTITLED TO APPROACH THE COURT A QUO ON AN URGENT
BASIS

Mr. Mouton’s attack on the finding of the Court
a quo that the applicant was entitled to approach the Court on the
basis of urgency is based on the following two propositions:

(1) The applicant should have set forth sufficient reasons why he
would not have been afforded substantial address at a hearing in due
course and had failed to do so.

(2) Should have established that there was no other satisfactory
remedy available and failed to do so.

The
alternative remedies relied on by Mr. Mouton is the rei vindicatio
and the action ad exhibendum.

Mr. Dicks,
on behalf of the applicant, supported the findings of the Court a
quo. He submitted that sufficient reasons were set out and
enumerated these as follows with due reference to the record of the
evidence:

(i) Applicant saw a report in the “Namibian” newspaper on the
10^th March 2000 that stated that appellant had put the
aforesaid painting up for sale at the premises of the House of Art.

2. The
   applicant immediately contacted the first respondent and confronted
   him with the fact that he, first respondent, was selling applicants
   paintings.

   
   

The first respondent responded by saying that he “had done his
homework and that he could sell such paintings”.

2. On
   Saturday the 11^th March 2000 the applicant contacted his
   legal representative, Mr. Christo van Rensburg of the firm Van
   Rensburg and Associates, who contacted the House of Art, who in turn
   confirmed that the paintings were indeed up for sale at a minimum
   price of N$50 000,00 each and that there were considerable interest
   in them.

   
   

2. A
   letter was faxed to the House of Art, informing it, inter alia,
   of the applicant’s ownership of such paintings and requesting the
   return of the paintings. This letter was faxed to the House of Art
   at 07:16 on 15^th March 2000 and the latter was requested
   to respond by no later than 10 am the same day, which it failed to
   do.

   
   

2. The
   House of Art did respond to applicant’s letter later that morning
   in which it was made clear that it would let the paintings out of
   its possession and control, once an amount of N$3 000 was paid to
   it.

   
   

2. The
   paintings are unique and extremely valuable. They were painted by
   the first respondent who is a wellknown and highly valued Namibian
   artist and whose art works are sought after. Furthermore there was
   keen interest in these paintings. The paintings could be sold at
   any moment.

   
   

Mr. Dicks
also submitted why the applicant claimed that he could not be
afforded substantial redress at a hearing in due course:

1. The
   paintings were unique and extremely valuable.

   
   

2. The
   proceeds derived from the sale of the prints of the paintings were
   the applicant’s sole source of income at the time.

   
   

3. The
   paintings added considerable value to the business.

   
   

4. The
   paintings, which are irreplaceable, could be sold at any moment.

   
   

Mr. Dicks
also pointed out that although the Court was initially approached on
the basis of urgency, it did not proceed on that basis due to the
undertaking eventually given by the House of Art that it would not
dispose of the paintings pending the finalization of the proceedings.

I agree
with the Court a quo and Mr. Dicks that the reasons were
sufficiently set out in the application.

Mr.
Mouton’s first point is without any merit. The so-called
alternative remedies referred to by Mr. Mouton in his second point
could not at all be regarded as remedies comparable with the
immediate protection of the applicant’s claim to ownership and
possession.

The
applicant needed the protection of his right to ownership, possession
as well as copyright in order to continue with his business of making
and selling prints to those engaged in the tourist business. When he
is deprived of any of the above rights to the paintings, he would
suffer irreparable harm.

In view of
first respondent’s determination to sell, a sale could have been
concluded at any moment, including a sale to a person outside Namibia
who consequently would fall outside the jurisdiction of the Namibian
Court.

I conclude
consequently that Mr. Mouton’s second point is also without merit.

SECTION
B:

WAS THE
APPLICANT ENTITLED TO SEEK A FINAL INTERDICT BY MEANS OF NOTICE OF
MOTION PROCEDURE

Mr. Mouton
argued that before the applicant could succeed, he had to “establish
a clear right of ownership” and that he had no other remedy.

I have
already indicated under A, supra, for the purpose of deciding
whether urgency was alleged and proved, that there was no substance
in the point that the applicant had to prove that he had no other
remedy.

Mr. Dicks pointed out on the authority of LAWSA, that the alternative
remedy must:

“(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection”¹

It is
crystal clear that the alternative remedies relied on by Mr. Mouton,
do not meet these criteria.

I
consequently reiterate that this point raised by Mr. Mouton, is
without any substance.

According
to Mr. Mouton, the applicant had failed to establish a clear right of
ownership if one considers that:

1. The
   first respondent denies ownership to vest in the applicant
   (therefore a dispute of fact);

   
   

2. The
   first respondent was in possession of the drawings which create a
   rebuttable presumption of ownership in his favour;

   
   

3. The
   applicant on his own version admits that he has not paid the first
   respondent in full with regard to the S.A. Map (therefore ownership
   could not pass until the applicant has performed);

   
   

4. The
   applicant handed both the drawings back to first respondent’s
   possession after he had made prints of the drawings;

   
   

5. There
   is no concrete and/or substantial evidence before Court that the
   applicant was granted credit to pay for the drawings except the word
   of the applicant which allegation is denied by the first respondent.

   
   

As to
disputes of fact, it is trite law that: “In every case the Court
must examine the alleged dispute of fact and see whether in truth
there is a real dispute which cannot be satisfactorily determined
without the aid of oral evidence; …”²

The Court a quo did examine the alleged disputes and came to
the conclusion that the issues raised as issues in dispute could be
decided on affidavit and were so decided in her judgment.

SECTION
C:

THE
MERITS

1. The first respondent alleged that the ownership of the paintings
remained with him because he had never sold the paintings but only
the copyright to it.

If this is so, he at least sold the ownership of the copyright and
this ownership had passed, also in the case of the South African
painting. The allegation that N$5000 of the purchase price remained
outstanding and that no credit was given in regard to the South
African painting for the outstanding amount, consequently appears to
be superfluous and irrelevant.

At any event the defence that the full amount had not been paid only
applies to the South African painting and is no defence to the claim
of ownership of the Namibian painting.

It is common cause that the applicant and the first respondent had
entered into two separate contracts of sale arising in each case from
the commissioning of first respondent by the applicant to paint a map
for applicant, in the first instance a map of Namibia and in the
second instance a map of South Africa.

The issue raised by first respondent, artificial or otherwise, is
what did he sell to applicant – the paintings themselves or the
mere copyright to the paintings.

Fortunately the Court was not restricted to the mere say-so of the
contesting parties on affidavit to decide this issue. There was
available before Court some real evidence such as the writing by the
first respondent himself on the receipt given by first respondent to
applicant on receipt of payment in regard to the Namibia painting and
the written contract written by the first respondent himself in
regard to the South African painting.

The aforesaid receipt dated 15/3/1998 was signed by first respondent
and states expressly for what the payment was acknowledged namely:

“In payment of Tourist/Perspective Map of Namibia.”

This document is unequivocal. If first respondent ever had in mind
that he had sold only the copyright to the painting, this would have
been what he would reflect in the receipt by stating: “In payment
of the copyright of the tourist/perspective map of Namibia”.
Alternatively he would have used the words: “In payment of the
ownership of the copyright to the Tourist/Perspective map of
Namibia”.

This payment was made after the delivery by first respondent to
applicant of the completed painting already in December 1997.

The contract pertaining to the South African painting was written by
first respondent and signed by both first respondent and applicant on
the 8^th December 1998 and reads as follows:

“J.J. VAN ELLINCKHUIJZEN

DATE: 08/12/98

13A HERZINGER STREET KLEIN-WINDHOEK

PHONE & FAX: (061) 271449 P.O. BOX 90518

AGREEMENT

QUOTATION

ORDER

FOR:

TITLE: “SOUTH AFRICA” (A PERSPECTIVE MAP)

NAME: JAN BOTHA I.D. #

ADDRESS: BOX 397, SWAKOPMUND, 25 1^ST AVE VINETA

PICTURE SUBJECT: A PERSPECTIVE MAP OF THE REP. OF SOUTH AFRICA
(LOOKING NORTH) W/TOURIST ATTRACTION DETAILS

SIZE: 1030mm x 760mm

FRAME: NOT APPLICABLE

START OF WORK: MIDDLE OF JANUARY 1999

HAND OVER DATE: BETWEEN END APRIL & END MAY 1999

PRICE N$: 45 000,00 (FORTY FIVE THOUSAND NAM DOLLARS)

DEPOSIT
N$: NOT APPLICABLE

FIRST PAYMENT: COMMENCEMENT OF JOB @ N$ 8 000,00

SECOND PAYMENT: PER MONTH IN ADVANCE ON DELIVERY OF

FINAL PAYMENT: ON DELIVERY OF COMPLETED JOB

(NEGOTIABLE)

AGREED & SIGNED ON THE: 8^TH DAY OF DECEMBER ‘98

SIGNATURE, CLIENT: (signed J H Botha)

THANK YOU. WITH REGARDS: (signed J.J. van Ellinckhuijzen”

It must be noted that the agreement states that the “agreement is
for a “perspective map” of South Africa and the “picture
subject” was “a perspective map of the Republic of South
Africa…”. Nothing at all is mentioned about the “copyright”
to a picture as the subject matter of the agreement. It is
unimaginable that the agreement would have omitted any reference to
“copyright” if that was the subject matter of the agreement. The
size of the paintings commissioned, its handover date is even
mentioned. The whole agreement as set out leaves no room at all for
the contention that only the “copyright was sold”.

The next document which is significant is dated 11 February 1998 also
written and signed by first respondent and according to applicant,
faxed to him by first respondent for the stated purpose of applicant
insuring the Namibian painting against “All Risks”. The relevant
part of this faxed document reads:

“Evaluation perspective map of Namibia - ‘An infinite land’.

Dear Mr. Botha,

The painting of Namibia which you had commissioned me to do is worth
N$60 300.

Sincerely

Sgn JJ van Ellinckhuijzen.”

The applicant provided proof in support of his allegation in the form
of a letter from “Alexander Forbes Risk Services” dated 4^th
April 2000, that he had insured the “Namibia” painting as from
1/4/1998 at a premium of N$252 per month and the “South Africa”
painting at N$349 per month as from 26/7/1999. This fact further
underlines the fact that the applicant at all relevant times regarded
the paintings as his property.

At no stage of the proceedings did first respondent or his legal
representatives suggest that the written document embodying the terms
of the written agreement aforesaid did not correctly reflect the true
agreement between the parties and had to be rectified and that he
intend to bring an application in that regard.

No oral evidence is therefore admissible extrinsic to the written
agreement to arrive at the true meaning of the agreement in the case
of the South African painting.³
The same principle applies mutatis mutandis to the receipt
and valuation pertaining to the Namibian painting.

As it stands the plain meaning of the written agreement is that the
first respondent sold to the applicant the South African painting
commissioned by him at a price of N$45 000,00. In regard to the
Namibian painting the plain meaning of the receipt read with the
written evaluation by first respondent is that the first respondent
sold to the applicant the Namibian painting and that the latter paid
N$36 000 for this painting.

In the event that there was an ambiguity in these documents, such
ambiguity would have had to be construed against the version
contended for by the author of these documents in accordance with the
“contra proferentem rule” also known as the rule: “verba
contra stipulatorem interpretanda sunt”.⁴

The first respondent and his counsel however, relies on the
inscription on the paintings themselves where the following
inscriptions appear:

On the South
African painting:

1. Copyright©
   JAN BOTHA;

   
   

Phone/fax +264 644 61492

Distribution +264 81128 5060

2. In
   block: “ARTWORK” – followed by “J J van Ellinckhuijzen,
   

   
   

P O Box 90518, Klein Windhoek, Namibia,

Phone and fax: +264 61 271449” and signed

“J J van Ellinckhuijzen, 1999.”

On the Namibian painting:

1. In
   block: :Copyright © JAN BOTHA

   
   

Fax/phone +264 64 461492”

(ii) “Fax/phone + 264 61 271449

VAN ELLINCKHUIJZEN ART STUDIO

P O BOX 9943, EROS, WINDHOEK, NAMIBIA.”

The argument on behalf of first respondent is that these inscriptions
show that applicant had only bought the “copyright” or the
“ownership of the copyright” and that first respondent remained
the owner.

Two points must be made immediately:

(a) The inscription on the paintings cannot be used as evidence to
contradict the clear terms of the written agreement in the case of
the South African painting without any successful application for the
rectification of the said agreement.

3. None
   of the inscriptions state that Van Ellinckhuijzen is the owner and
   the mere fact that it states “Copyright Jan Botha” does not
   state expressly or by implication that Van Ellinckhuijzen is the
   owner and that Jan Botha is not also the owner.

   
   

In this regard the
first respondent averred that his contact address was inserted to
enable people who are “interested in the original painting” to
contact him. First respondent did not go so far as alleging that his
contact address was inserted to enable interested buyers to contact
him and to enable him to sell the paintings.

At any event, applicant
denies the allegation of first respondent as it stands and explains
in reply:

“I however agreed for
him to have his name and contact address on the painting (unlike with
other commissioned work) to promote his business and give him
additional spin-offs.”

As to the reason why it
was specially inscribed on the paintings that “Copyright© Jan
Botha”, applicant stated in his replying affidavit:

“The first respondent
made the inscription in reaction to my specific request thereto to
serve as a clear indication and proof of my copyright when requesting
any other body to make prints of the original paintings. This would
dispose of the necessity to have to convince anybody that I am
entitled to have prints made for commercial purposes.”

The explanation by
applicant appears by far the most plausible. When taken together
with the facts which are common cause or not expressly disputed, and
the probabilities, the version of the applicant certainly is the most
probable.

The facts which are
common cause and in addition to those already dealt with supra,
and which support the above conclusion, are the following:

(a) During December 1997 and upon completion of thereof the first
respondent handed the painting of the map of Namibia over to the
applicant.

(b) The painting of the map of South Africa was handed over to the
respondent by the appellant during August 1999.

(c) The respondent paid the appellant the sum of N$40 000-00 for such
painting.

(d) Upon completion the first respondent also delivered this painting
to the respondent.

(e) Prior to and during the period that the paintings were in the
possession of the applicant the first respondent never asserted his
right of ownership in or to such paintings, nor did he at any stage
lay claim to his paintings or asked for their return. He likewise
during this period never claimed that the applicant had only
purchased the copyright in the painting, this notwithstanding the
fact that the applicant had the Namibian painting in his possession
for a long period.

(f) The applicant handed both paintings back to the first respondent
for certain purposes. They disagree to the reason why this was done.

(g) On or about the 10^th of March 2000 the first
respondent advertised the paintings for sale at the House of Art for
the amount of N$50 000-00 each.

(h) Upon becoming aware of the aforegoing, the applicant immediately
contacted the first respondent and confronted him with the fact that
he was selling the applicant’s paintings, to which the first
respondent’s only response was that “I have done my homework and
I can do so” or words to that effect. The applicant thereafter
informed the first respondent that he regarded the latter’s actions
as theft, whereupon the first respondent put down the telephone.

(i) The first respondent has never demanded payment of the
outstanding N$5 000-00.

2. First
respondent contended that first respondent was in possession of the
paintings when the application was launched and that a presumption of
ownership arises from that which was not rebutted by the applicant.

Although Mr. Dicks on
behalf of the applicant, conceded that first respondent was in
possession at the time, this concession seems to have been wrongly
made.

The fact is that 2^nd
respondent was in possession and even had a right of retention for
framing of the pictures.

It was even agreed
between the parties that the second respondent, being Andriette
Lucks, trading as House of Art, will retain possession until the
proceedings between applicant and first respondent is satisfactorily
concluded. It therefore appears that the whole basis of first
respondent’s claim based on “possession”, falls away.

Be that as it may, a
satisfactory explanation of why the paintings were handed back to the
first respondent for a particular purpose has been given and in my
view, any presumption in favour of the first respondent had been
satisfactorily rebutted by applicant by producing “real evidence”,
as contained in the documents prepared and signed by first respondent
himself.

3. The
argument that the applicant did not pay the purchase price in regard
to the Republic painting in full, that N$10 000-00 was unpaid, and
that, in view thereof that no credit was given and that ownership
could consequently not have passed.

The Judge a quo
has found that only N$5 000-00 was outstanding and I have no reason
to find that she was wrong. The Court a quo also found that
credit was given by implication for the payment of the balance.
Again I have no reason to find fault with her finding.

The written agreement
between the parties inter alia specified that payment will be
made in installments payable after commencement of the job and that
the final payment will be made – “@ delivery of the completed
job: (negotiable).” This clearly shows that the final payment was
in some sense, probably as to date of payment, “negotiable”.

First respondent also
did not allege or prove that he had ever demanded payment of the
balance of N$5 000 remaining in regard to the South African map.
Notwithstanding the outstanding balance, the first respondent
delivered the painting to the applicant.

It is difficult to come
to a decision whether the sale was for cash or credit by virtue of
the wording of the agreement referred to supra.

But even if it is
assumed that the original agreement was a sale for cash on delivery,
the inference is justified on a balance of probabilities that credit
was given at least by implication, for the payment of the final
instalment some time after delivery.

First respondent did
not unequivocally or at all lay claim to the property, until he filed
his answering affidavit in the application launched by applicant.⁵

Here first respondent
did not demand payment on delivery. The presumption that the sale is
for cash thus fell away….”⁶

It is accepted in our
law that “although the transfer of possession before the price is
paid is not in itself enough to draw an inference that credit has
been given, that, plus the passage of what has been described as ‘a
substantial, i.e. non-negligible period’ of time before the seller
asserts his rights, is usually sufficient for it to be held that the
sale has become one on credit with the consequence that ownership
passes to the purchaser.”⁷

For the reasons abovestated, I conclude that the
applicant had proved on a balance of probability all the elements for
the relief required.

The appeal on the merits should consequently be
dismissed.

SECTION D:

COSTS:

The respondent also appealed against the order of
costs made by the Court a quo. The learned Judge found that
the defence put forward by the first respondent was “highly
implausible and untruthful” and ordered him to pay the applicant’s
costs on an attorney and client scale.

The leading case on the award of
attorney-and-client costs is Nel v Waterberg Landbouers
Ko-opratiewe Vereeniging,⁸
where it was stated that because of special considerations arising
either from the circumstances which give rise to the action or from
the conduct of the losing party, the Court may find it just to make
such an order. (See Herbstein and Van Winsen: The Civil Practice
of the Supreme Court of South Africa, 4^th Edition, p.
717.) It was further stated in many cases that such an order would
not be granted lightly. See e.g. Swisstool Manufacturing Co.
(Pty) Ltd v Omega Africa Plastics (Pty) Ltd., ⁹
and Pienaar v Boland Bank & Another,¹⁰.

In a recent decision of this Court, Government
of the Republic of Namibia v Sikunda,¹¹
costs were awarded against the appellant in both the High Court and
on appeal, on an attorney and own client scale, because the conduct
of the appellant was tainted by irregularity and illegality to a
considerable degree and the applicant should not be out of pocket in
such circumstances.

The Court a quo had to exercise a judicial
discretion in regard to costs. It made the special costs order
because it found that the defence put forward by the respondent was
highly implausible and untruthful. If this conclusion was correct,
then that would have been a circumstance justifying the special
order.

I cannot say that the learned judge a quo
misdirected herself on the correct legal approach or the facts or
that she exercised her discretion wrongly, even though I may not have
given such an order as a Court of first instance. I am, however not
convinced that a punitive order should be made in regard to the costs
of appeal.

In the result the following order is made:

1. The appeal is dismissed.

2. The appellant to pay the costs of appeal.

________________________

O’LINN, A.J.A.

I agree.

________________________

STRYDOM, C.J.

I agree.

________________________

CHOMBA, A.J.A.

/mv

COUNSEL ON BEHALF OF THE
APPELLANT: MR. C.J. MOUTON

INSTRUCTED BY: P.F.
KOEP & CO.

COUNSEL ON BEHALF OF THE
RESPONDENT: MR. G. DICKS

INSTRUCTED BY: DR.
WEDER, KRUGER & HARTMANN