Court name
Supreme Court
Case number
SA 23 of 2001

Ndjavera v Du Plessis (SA 23 of 2001) [2003] NASC 2 (24 January 2003);

Media neutral citation
[2003] NASC 2

NO.: SA 23/2001


the matter between:






CORAM: O’Linn,
A.J.A., Chomba, A.J.A., et Manyarara, A.J.A.

ON: 25/06/2002

ON: 24/01/2003


This appeal is against the whole of the judgment in the
Court a quo where Maritz, J., made the following order:

1. The
defendant is ordered to pay the plaintiff the sum of N$17 000.

2. The
defendant is ordered to pay the plaintiff interest on the amount of
N$47 000 at the rate of 23% per annum calculated from 1st
September 1996 to date of payment.

  1. The
    defendant is ordered to pay the plaintiff’s costs of suit.”

plaintiff in the Court a quo was one George Diederik du Plessis and
the defendant one Vasana Ndjavera. For purposes of convenience I
will hereinafter refer to the parties as in the Court a quo.

this Court the plaintiff was represented by Adv. Grobler and
defendant by Adv. Strydom. It should be noted that the parties were
represented in the Court a quo by different legal

dispute between the parties arose from a written document headed
“Acknowledgement of Debt” which was apparently intended to
reflect and confirm certain agreements and/or understandings between
the parties. The said English translation of the written document
was annexed to the plaintiff’s declaration as Annexure ”B” and
reads as follows:


the undersigned


Number 670717 06 0022 9


O Box 218



acknowledge to be truly and lawfully liable to:


Number 430907 01 0023 8


O Box 607



the sum of N$47 000.00 (Forty-seven Thousand Namibia Dollar) in
respect of water engines, implements, equipment and effects purchased
by me from said G D du Plessis and as handed over to me on the farm
Maranica No 144, Gobabis district.

before-mentioned capital amount shall be subject to an interest of
23% (Twenty-three Per Cent) per annum which interest as calculated
from the 1st September 1996, together with the capital sum
of N$47 000.00, shall be payable by me to said G D du Plessis on 1
September 1997.

I, the undersigned G D Du Plessis herewith undertake to move and
install all outstanding pipelines on the said farm as agreed as well
as to clean the boreholes and to connect the existing pipelines.

DONE AND SIGNED at GOBABIS on this the 7th day of AUGUST




2.____________________________ V

DONE AND SIGNED at GOBABIS on this the 7th day of AUGUST




2.____________________________ G

was common cause between the parties that plaintiff had previously,
prior to the execution of the said document on 7th August
1996, sold his farm Maranica to the defendant. The precise
particulars of this sale were not placed before the Court a quo
and are also not available to this Court.

is opportune at this juncture to comment on the nature of the
obligations as recorded in the said Annexure “B”, the so-called
“Acknowledgment of Debt”. The term “acknowledgment of debt”
appears to refer mainly, if not exclusively, to the first two
paragraphs wherein defendant acknowledged the debt incurred by him in
regard to the purchase of water engines, implements, equipment and
effects. The acknowledgment of debt as contained in par. 1 and 2 is
unambiguous, unequivocal, unconditional, specific and liquidated as
to each and every element. It records that the amount of N$47 000
owed by defendant to plaintiff is for water engines, implements,
equipment and effects, bought by defendant from plaintiff and that
interest is due at the rate of 23% per annum from the first of
September 1996 and which capital of N$47 000 together with interest
is payable by defendant to plaintiff on 1 September 1997.

obligations of the parties in regard to this part of the agreement
between them are indeed reciprocal in that the payment had to be made
by defendant for the goods already delivered.

second part of the document as recorded in par. 3, records an
obligation by plaintiff towards defendant to “move and install all
outstanding pipelines on the said farm as agreed as well as to
clean the boreholes and connect the existing pipelines”. (Emphasis

regard to this obligation no time for performance, remuneration or
other condition or term is specified. It is thus clearly ambiguous,
equivocal, imprecise and unliquidated.

obligations in this part of the document appears to be that flowing
from a contract of locatio conductio operis, where the
reciprocal obligation of defendant for the work to be done by
plaintiff is payment of a reasonable remuneration.

plaintiff’s summons there was no suggestion of any pre-condition to
plaintiff’s right to payment of N$47 000 and interest, except the
delivery of the goods purchased. By the time the acknowledgment of
debt was signed, the delivery had already taken place. In a request
for further particulars to the summons, defendant inter


1.1 Is
it alleged that the payment of the amount of N$47 000 by the
defendant to the plaintiff was unconditional?

    1. If
      the answer to 2 above is No, then clearly stipulate what was the
      precise condition(s) and how and where was it honoured by the

did not at this stage reply to the request but responded by filing a
declaration which now stated:

“1. The
parties are referred to as set out in the summons.

2. Defendant
is indebted to the Plaintiff in the sum of N$47 000,00 being the
amount due and owning to the Plaintiff by Defendant in terms of a
written acknowledgement of debt executed at Gobabis on 7 August 1996
which amount was payable to the Plaintiff by Defendant on 1st
September 1997. A copy of the acknowledgement of debt and an English
translation hereof were already annexed to Plaintiff’s summons.
The translated acknowledgement of debt is hereby substituted with a
more accurate and correct translation annexed hereto marked annexure

3. In
terms of the aforesaid acknowledgement of debt:

3.1 The
defendant undertook to be liable for interest on the capital amount
of N$47 000.00 at the rate of 23% per annum calculated as from 1st
September, 1996.

    1. Plaintiff
      undertook to:

  1. Move
    and install all outstanding pipelines on the said farm;

  1. Clean
    the boreholes, and

  1. Connect
    the existing pipelines.

  1. The
    plaintiff has complied with all his obligations in terms of the
    aforesaid undertaking.

  1. Defendant
    is in breach of the terms of the acknowledgement of debt in that he
    failed to pay the aforesaid capital amount plus interest on 1st
    September 1997 or at all, despite demand.


1. Payment
of the sum of N$47 000,00.

2. Interest
on the aforesaid amount at the rate of 23% per annum as from 1st
September 1996 to date of payment.

3. Further
and/or alternative relief.

  1. Costs
    of suit.”

declaration was ineptly drawn in several respects. So e.g. par. 3.1
sets out as a term of the contract that interest had to be paid on
the capital sum, but fails to mention that a capital sum of N$47 000
as well as interest had to be paid and that it was due, in terms of
the acknowledgement, for the purchase by defendant from plaintiff of
water engines, implements, equipment and effects.

undertakings as set out in par. 3.2 in regard to the pipelines and
boreholes are then thrown in without making it clear whether this
obligation has now become a new condition or even a pre-condition of
payment by defendant to plaintiff of the existing liquidated debt in
regard to the purchase of the water engines, implements, equipment
and effects.

3 of the declaration was clearly intended to anticipate and
accommodate par. 1.1 and 1.2 of defendant’s request for further
particulars to the summons. This paragraph added to the ambiguity
and uncertainty of a document apparently drawn up by people not
skilled in the art of legal drafting.

said paragraphs however did not go so far as conceding either
expressly or by implication, that the obligations in par. 3 of
Annexure “B” were reciprocal to that in par. 1 and 2. Defendant
now requested further particulars to the declaration and par. 1.1 and
1.2 thereof was a repetition of the particulars previously requested
in regard to the summons. The following par. 1.3 – 1.5 were
however added to this request. The repeated par. 1.1 and 1.2 now

1.1 Is
it alleged that the payment of the amount of N$47 000 by the
defendant to the plaintiff was unconditional?

    1. If
      the answer to 2 above is no, then clearly stipulate what was the
      precise condition(s) and how and where was it honoured by the

is not necessary for the purposes hereof to repeat par. 1.3 – 1.5.

plaintiff’s reply was as follows:


1.2 – 1.5
Save to aver that the undertaking in par. 3 of the
acknowledgment of debt has been complied with as agreed between the
parties, the rest of the particulars sought are not strictly
necessary to enable the defendant to plead and is accordingly

answer of plaintiff to par. 1.1 of the request remained ambiguous and
in my respectful view, still did not amount, to an admission that the
obligations under par. 3 of the “acknowledgment” were reciprocal
to those under par. 1 and 2.

in his plea admitted the contents of the document, Annexure “A”,
to the summons and “B” to the declaration, but denied that he was
indebted to plaintiff in the amounts claimed on the ground that
plaintiff had failed to comply with his obligations under par. 3 of
the said agreement and that defendant’s costs to have the work done
by another contractor amounted to N$46 040 leaving a balance of only
N$860 due and payable to plaintiff on the capital sum of N$47 000.

consequently claimed that: “Plaintiff’s claim be set off
against defendant’s claim. Defendant herewith tenders payment to
plaintiff in the amount of N$860 being the balance between the amount
spent by defendant and the amount claimed by plaintiff.” (Emphasis

claim of set-off was defective in that:

(i) On
defendant’s own version the amount due properly calculated, should
have been N$960 not N$860.

(ii) Defendant’s
plea does not join issue with plaintiff’s claim for interest at 23%
per annum on N$47 000 from 1st September 1996 to date of
payment. Interest alone would have amounted to approximately N$54
050 for the 5 years to date of judgment in the Court a quo.

(iii) Nowhere
in defendant’s plea is it alleged when the plaintiff had to comply
with his obligation.

follows therefore that at best for defendant, plaintiff would have
been required by implication of law to comply within a reasonable

(iv) The
claim which defendant required to set-off was at best a claim for
unliquidated damages.

should be noted that the plaintiff inter alia requested the
following particulars to defendant’s plea:

which facts does plaintiff (defendant was apparently meant) rely for
the allegation that the amount of N$46 040 was fair and reasonable…”
Defendant replied: “The evidence would be presented by an

the defendant never called any expert during the trial. The
contractor who allegedly cleaned the borehole for defendant, namely
“Reiman Contractors” was also not called. Defendant thus clearly
accepted throughout that he would have the onus to prove his damages
pertaining to his claim against plaintiff.

the trial after the close of plaintiff’s case plaintiff was allowed
to amend par. 4 of his declaration by adding the following:
“Alternatively, plaintiff has complied with par. 3.2(ii) and (iii),
supra, by virtue of an oral agreement between the defendant
and one W. Riedel, that the latter would move and install the
outstanding pipelines on a future date …”

in turn was allowed a consequential amendment and in addition the
following further amendment to par. 2 of his plea –

par. 2.1 of plaintiff’s declaration
: The defendant further
pleads that the plaintiff is precluded from claiming payment in terms
of the agreement Annexure “A” to the amended declaration, in the
absence of fulfilling the condition, alternatively, complying with
his obligations under that agreement.”

conclusion of defendant’s plea remained unaltered and
therefore continued to be a defence of set-off.

the defendant’s amendment aforesaid was intended to introduce a new
defence, namely that of the exeptio non adimpleti contractus,
it was inconsistent and irreconcilable with the defence of set-off
and should for that reason not have been allowed unless one of the
said two defences were pleaded in the alternative to the other.

is necessary to briefly pause here to explain the nature of a plea of
set-off. For this purpose I can do no better than to quote from
Amler’s Precedents of Pleadings where the learned author
Harms in the 5th edition states:

comes into operation when two parties are mutually indebted to each
other and both debts are liquidated and fully due. The one
debt extinguishes the other pro-tanto as effectually as if
payment is made. Should the ‘creditor’ seek to claim payment the
defendant would have to plead and prove set-off in the same way as a
defence of payment has to be pleaded and proved. But once set-off is
established, the claim is regarded as extinguished from the moment
the mutuality of the debts existed … Set-off is a form of payment
brevi manu.1

operates ipso facto and not only after or as a result of a plea of

is clear beyond doubt that “only a debt that is liquidated can be
set-off. If a defendant wishes to rely on an unliquidated debt, the
defendant will have to file a claim in reconvention and pray for the
postponement of judgment on the plaintiff’s claim pending the
judgment on the claim in reconvention:.3

learned author sets out the essentials which must be alleged and
proved by a party who whishes to rely on set-off:

(a) the
existence of the indebtedness of the plaintiff;

(b) that
both debts are fully due and legally payable;

(c) that
both debts are liquidated debts. A debt is liquidated if:

(i) the
debt is liquid in the sense that it is based on a liquid document;

(ii) it
is admitted;

(iii) its
money value has been ascertained;

(iv) it
is capable of prompt ascertainment;

(d) the
reciprocal debt is owed by the plaintiff to the defendant…”4

must be clear from the foregoing that in so far as the defendant’s
defence was set-off, it had to fail, because none of the essentials
which a litigant had to allege and prove, as enumerated above, had
been alleged or proved by the defendant. This should have been the
end of the case in the Court a quo if it was not for the defence of
the exeptio non adimpleti contractus.

must have been some misunderstanding of the pleadings on behalf of
counsel as well as the Court a quo. Once the aforesaid
amendments were granted after the close of plaintiff’s case in the
Court a quo, the plea of set-off was forgotten or ignored.

us on appeal, the focus was similarly only on the defence based on
the exceptio. I will assume for the purposes hereof, without
deciding, that the exceptio was properly placed in issue in
the Court a quo.

must be noted at the outset that the main requirement for the
successful application of the exceptio, is that the obligation
in question must be reciprocal.

is necessary to first revert briefly to the pleadings quoted
extensively herein-before. As I have already indicated, the
pleadings in my view contain no clear statement, and certainly no
unequivocal, express or implied admission from the plaintiff, that
the obligations in par. 3 of the document Annexure “B” to the
declaration, was reciprocal to those in par. 1 and 2.

consequently agree with the following dictum of the learned judge a
in this regard:

so far as any of the parties relies on evidence, other than secondary
evidence (such as which ‘outstanding’ or ‘existing pipelines’
or ‘boreholes’ the acknowledgement refers to), of what their
intentions have been or how they have understood to be their
obligations, the parol evidence rule must be applied (See: Union
Government v Fianini Ferro-Concrete Pipes (Pty)Ltd
, 1941 AD 43 at
47). In this context, I have also carefully scrutinised the issues
defined in the pleadings and have not found any express admission by
the plaintiff that payment of the claimed amount is conditional upon
performance of his obligations concerning the pipelines and
boreholes. The furthest he has gone, is to state in the further
particulars to his declaration, that payment of the sum of N$47
000,00 was not unconditional. Whether the ‘conditions’ he had in
mind related to those under the contract of sale or any other
undertakings (such as those mentioned in the acknowledgment) are not
apparent. The statement, in any event, falls short of an admission.
Even if it is an admission, it relates to a question of
interpretation that the Court is ultimately required to decide on.”

far as the conditionality and reciprocity of the aforesaid
obligations are concerned, the Court a quo stated:

is nothing in the words of the acknowledgement, given their ordinary
grammatical meaning (compare: Sassoon Confirming and Acceptance
Co (Pty) Ltd v Barclays National Bank Ltd
, 1974
(1) SA 641 (A) at 646B) from which it is apparent that the
defendant's obligation to pay the purchase price of the movables is
reciprocal to the plaintiffs undertaking to render services in
connection with certain boreholes and pipelines. Moreover, the amount
of N$47 000.00 is, according to the express provisions of the
acknowledgement, the quid pro quo for the movables earlier
sold by the plaintiff to the defendant. That amount does not include
any 'consideration for the services still to be rendered by plaintiff
in terms of the last paragraph of the acknowledgement. Neither is it
linked thereto in any way except that it appears in the same

the clauses creating those obligations are read in the context of the
other provisions, due consideration being afforded to the prevailing
circumstances and being read against the background of the other
transactions (i.e. the sale of the movables and the sale of the
farm), the apparent absence of reciprocity is strengthened. There is
no indication that the preceding agreement of sale was linked to any
obligation on the part of the plaintiff to render services. Moreover,
interest on the purchase price was stipulated to run from 1 September
1996 - a date wholly unconnected to the date on which the plaintiff
had to honour his undertaking to render the services referred to. No
date by which the services should be rendered was specified in the
acknowledgement. In such instances, a reasonable period would
normally be implied by law and, before it could have been said the
plaintiff was in breach, he first had to be placed in mora -
and that could have been months after 1 September 1996. But even if
the evidence by the plaintiff, that he thought that he should render
those services before the date of transfer, can be regarded
supplementary, the date of transfer was at that point in time

Court is therefore of the view that the defendant's obligation to pay
the amount of N$47 000.00 plus interest thereon in respect of
movables sold and delivered by the plaintiff to him is not reciprocal
to the plaintiffs obligation to render services in connection with
certain boreholes and pipelines. Those obligations, although
incorporated in the same bilateral agreement, are collateral and
distinct from one another. In the result, the exceptio non
adampleti contractus
(which is inextricably linked to the
existence of such reciprocity) is not a competent defence in this
matter. On this basis alone, the plaintiff’s claim must succeed. I
should perhaps add that the defendant was at liberty to institute a
counterclaim against the plaintiff had the latter been in breach of
his contractual undertaking in relation to the pipelines and
boreholes. That was not done.”

arguing the Appeal before us, Mr. Strydom vehemently criticised the
learned Judge’s ratio quoted above. His contention at the outset
was that the present appeal hinged on the question whether the
Acknowledgement of Debt has to be construed as a bilateral contract
or two collateral contracts. His preference was that it was
bilateral, one and indivisible. In the event, he submitted that the
N$47 000.00 was intended as payment not only for the movables listed
in the first paragraph but also for the services or undertakings
mentioned in the third paragraph. Arguing that the contract should
be treated as one whole and indivisible, he submitted that the
opening words of the third paragraph, namely, “And I…..”
provide the nexus between the third paragraph and what is stated in
the earlier part of the document.

the other hand, Mr. Grobler staunchly contested that the Judge a
was correct in interpreting the Acknowledgement as containing
two contracts, one being that of sale of goods while the other, as
encapsulated in the third paragraph, related to the sale of services.
He did not agree that the words “And I….” were conjunctive
vis-à-vis the earlier part of the Acknowledgement. In his
view, although the locatio – conductio operis in the third
paragraph did not prescribe the purchase price to be paid by the
defendant for the services undertaken to be performed by the
plaintiff, the price therefore should be understood to be a
reasonable amount. As to the earlier bilateral contract touching the
movables, Mr. Grobler contended that the plaintiff had already
performed his obligation as acknowledged by the defendant i.e. that
the N$47 000.00 was in respect of the movable goods “as handed over
to me on the Farm Maranica.”

do not agree with the argument by Mr. Strydom on behalf of defendant.
In my respectful view the Court a quo was correct and so was
Mr. Grobler in supporting the Court’s dictum in this regard.

abovequoted express, unambiguous, and unconditional language of par 1
and 2 of the said Annexure “B” in my respectful view, excludes
any reasonable possibility that the signatories to the document
intended payment for the movables sold and the interest thereon to be
subject to other conditions than those so expressly and unambiguously

if it was intended to say that the payment of the capital and
interest was conditional on other conditions than those stated, the
signatories would have been capable of spelling out such a simple
further condition and would have done so. But instead of doing that,
they state that payment of capital and interest is due for water
engines, implements, equipment and effects purchased by defendant
from plaintiff and nothing else.

addition to the many decisions referred to by the Court a quo
and by counsel in argument before us, it is helpful to refer to the
following fairly recent decision of the South African Supreme Court
of Appeal in Grand Mines (Pty) Ltd v Giddey NO

summary of the decision in the headnote is a correct reflection of
the decision, which was a majority decision of four judges of the
Court with one judge dissenting. The headnote reads as follows:

respondent, as the liquidator of B, had sued the appellant in terms
of a contract between B and the appellant. In terms of the contract B
mined coal from a site owned by the appellant and delivered it to the
appellant. The amount to be paid to B was calculated on the 25th of
each month and paid one month later. It was a term of the contract
that B was obliged to rehabilitate the site, which was an opencast
mine, during the course of the mining. There had been no programme of
rehabilitation agreed between the parties nor had one been laid down
by the Inspector of Mines. Prior to its liquidation B had fallen
behind with the rehabilitation, such that it had not complied with
its obligations in this regard. In defence to the respondent's action
for payment for coal already mined and delivered the appellant had
raised the exceptio non adimpleti contractus, averring that
B's obligation to rehabilitate the site was reciprocal to its
obligation to pay.

that the contract between the parties was one of letting and
hiring (locatio conductio operis). The principle of
reciprocity would normally apply to such a contract unless there were
indications to the contrary). The overriding consideration was the
intention of the parties, as evidenced by the terms of their
agreement and seen in conjunction with the relevant background
circumstances. (At 966B/C-D/E.)

further (per Smalberger JA, Nienaber JA, Howie JA and
Ngoepe AJA concurring, Schutz JA dissenting), that the obligation to
pay was fixed both in relation to a date and a formula which took
into account the coal mined, measured and delivered by the 25th of
the previous month. The extent to which rehabilitation had taken
place had not entered into the equation in determining payment. The
rehabilitation had been an ongoing process permitting a degree of
flexibility and latitude, with no specific criteria laid down for or
regulating its performance. While there was a formula correlating
mining and delivery of coal with payment, there was no corresponding
formula governing the relationship between rehabilitation and payment
suggesting that the performance of the one was intended to be in
return for the other. (At 9661-967 NB and 967B-C/D.) Held,
accordingly, that, notwithstanding the bilateral nature of their
contract and the degree of interdependence between payment and
rehabilitation, the parties could not have intended that they would
be reciprocal obligations in the strict sense. Although the appellant
could have compelled B to carry out its obligations in respect of
rehabilitation during the currency of the agreement or
counter-claimed for damages, it could not raise the exceptio as
the payment and rehabilitation were not reciprocal obligations. (At
967D and 967E/F-G.)

decision in Witwatersrand Local Division in Giddey NO v
Grand Mines (Pry)


following passage from the judgment of Smalberger, J.A., is also to
the point:

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
SA 754 (A) at 757 E – F; ESE Financial Services (Pty) Ltd v
, 1973(2) SA 805 (C) at 809 D – E). Furthermore, for the
exeptio 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

must point out that in the Grand Mines case, there was one
contract of letting and hiring (locatio conductio operis).
This composite contract was of a bilateral nature and there was a
degree of interdependence but nevertheless the obligations of the
parties were held not to be reciprocal in the strict sense.

the present case, it seems that we have one document, wherein two
separate contracts are recorded – one of sale and one of letting
and hiring of services. That in itself strengthens the inference
that the obligations of the parties in regard to these two contracts
were not intended to be reciprocal. This distinguishes the present
case from that in Grand Mines and strengthens the inference
that there was no reciprocity in the present case. But even if I am
wrong in this conclusion and par. 1 and 2 of the document and par. 3
were intended to constitute one bilateral contract, then the
obligations of the parties cannot be regarded as reciprocal because
of its diverse nature and content – the acknowledgment in regard to
the sale being as stated before, “unambiguous, unequivocal,
unconditional, specific and liquidated” and the obligations
contained in par. 3 being imprecise, uncertain and not liquidated.

follows from the above that the obligations contained in the said
annexure “B” – the socalled “Acknowledgment of Debt” –
are not reciprocal at least not in the “strict sense”.
The defence of exceptio non adimpleti contractus must
consequently fail on the merits, even if properly raised in the

defendant’s remedy was to proceed by way of counterclaim (claim in
reconvention). This he failed to do.

only legal remedy he now has is to proceed de novo with a
claim for damages if any.

find it unnecessary for the purpose of this judgment to deal with any
of the other points raised in the course of the appeal.

the result: the appeal is dismissed with costs.











by: Kauta, Basson & Kamuhanga Inc.


by: A. LOUW & CO.

Schierhout v Union Government (Min of Justice) 1926 AD 286 at 290;
Mahomed v Nagdee, 1982(1) SA 410 (A); Joint Municipal Pension Fund
(Tvl) v Pretoria Municipal Pension Fund, 1969(2) SA 78(T)

IBID, p 366 see also p. 125.

IBID, p 366 see also p. 125.

IBID 366

1999(1) SA 960 SCA