Breach of Contract

Namibia Water Corporation Limited v Aussenkehr Farms (Pty) Ltd (Case No.: I 1286/2005 ) [2009] NAHC 1 (09 January 2009);

Headnote and Holding: 

The matter dealt with an alleged breach of contract that required the plaintiff to supply large amounts of water to the defendantís wine farm. The contract contained two main clauses namely, that the defendant would reimburse the plaintiff a maximum of N$300000 for obtaining tenders and  would design and construct the bulk water supply scheme in the absence of an alternative agreement.

The plaintiff contended that the agreement was never entered into despite the work being carried out and as a result, they were entitled to reimbursement because the defendant breached the two main clauses of the contract. In response, the defendant alleged that the plaintiff was vicariously guilty of breach of contract as a result of which the defendant says it terminated contract.

The main question before the court was whether the plaintiff was vicariously guilty of breach of contract which resulted in the defendantís termination of the contract and in the alternative. The court also considered whether the respondent would be required to pay for the work done as per the agreement. 

The court found that no such breach existed and that had there been a breach, the defendant, would have been required to communicate termination of the contract which it failed to do. The court concluded that the reliance on an alleged oral agreement had not been proved by facts ëíin the clearest and most satisfactory manneríí. The court found in favour of the applicant.