REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEKJUDGMENT

Case No: I 1852/2007

In the matter between:

DIRK JOHANNES VON WEIDTS PLAINTIFF

and

GIDEON THEODORUS GOUSSARD FIRST DEFENDANT

MINISTRY OF LANDS AND RESSETLEMENT SECOND DEFENDANT

Neutral citation: Von Weidts v Goussard (I 1852/2007) [2015] NAHCMD 57 (16

March 2015)

Coram: DAMASEB, JP

Heard: 26-28 June 2012; 11-15 November 2013; 17 January 2014.Delivered: 16 March 2015

Flynote: Contract – Terms of the agreement including a non-variation clause –

Written agreement constituting the whole agreement between the parties – Such terms

not to be substituted by oral evidence – Application of parole evidence rule reinstated –

Words to be given their grammatical meaning unless in exceptional circumstances

where an absurdity may arise – Party failing to perform in terms of the agreement

repudiates the contract – Contract validly terminated by the innocent party.

2

ORDER

1. The plaintiff’s claim against first and second defendants is dismissed, with

costs; and both defendants are awarded costs against the plaintiff to include

the costs of instructing and instructed counsel.

2. The second defendant’s counterclaim succeeds and the plaintiff is directed to

vacate the farm Korabib, No. 327, Registration division ‘V’ in the district of

Karasburg, failing which the deputy sheriff for the district of Windhoek is

authorised, assisted by members of the Namibian police should the need

arise, to take such steps on behalf of the second defendant. The second

defendant shall be entitled, from the moment this judgment is handed down,

to place on the farm Korabib such number of persons as it considers

necessary to ensure that the farm and the infrastructure thereon are safe and

secure.

3. The second defendant is awarded costs for the counterclaim against the

plaintiff, to include the costs of one instructing and one instructed counsel.

______________________________________________________________________

JUDGMENT______________________________________________________________________

DAMASEB JP: [1] This is a claim in which the plaintiff seeks specific performance

under a contract of sale of a commercial farm.

The Agreement

[2] The plaintiff, Mr Dirk Johannes Von Weidts (Von Weidts), and first defendant, Mr

Gideon Theodorus Goussard (Goussard) entered into a written agreement (the

agreement) for the sale of a farm Korabib, No. 327, Reg. Div. “V”, measuring

19789.1821 ha (Korabib) then owned by Goussard to Von Weidts at the price of

N$200 000. The agreement contains a usual ‘non-variation’ clause in the following

terms:

3

‘This agreement constitutes the whole agreement between the Seller and the Purchaser

and no variation, alteration, modification or suspension of any of the terms or conditions of this

agreement shall be of any force or effect unless reduced to writing, signed by the Seller and the

Purchaser and made an annexure hereto.’1(My underlining for emphasis)

[3] About such a clause, the law has been stated as follows in Lowrey v Steelman2

at 543:

‘The rule is that when a contract has once been reduced to writing no evidence may be

given of its terms except the document itself, nor may the contents of such document be

contradicted, altered, added to or varied by oral evidence.’

And in National Board (Pretoria) (Pty) Ltd and Another v Estate Swanepoel3 at 26B-C as

follows:

‘When a jural act is embodied in a single memorial, all other utterances of the parties on

that topic are legally immaterial for the purpose of determining what are the terms of their act.’

(my underlining for emphasis)

[4] Both these judgments were quoted by this Court in Mudge v Ulrich NO &

Others.4

[5] The rule as stated above is known as the ‘integration’ rule or the ‘parole

evidence’ rule. The parole evidence rule does not apply if the contracting party, against

whom it is sought to be applied, relies on misrepresentation, fraud, duress, undue

influence, illegality, failure to comply with the terms of a statute, and mistake.5 The onus

rests on the party who seeks to rely on any of those defences.6

[6] The agreement between Von Weidts and Goussard made important recordal of

fact. The first is as regards occupation and payment of occupational rent. In that regard,

the parties recorded as follows:

1 Clause 18 of the agreement.2 1914 AD 532.3 1975(3) SA 16(A).4 2006 (2) NR 616 at 621 C and 622A-B.5 See authorities collected under each of these defences by Professor Christie in ‘The Law of Contract in South Africa’, 5th ed at p. 194.6 Malherby v Ackermann (2) 1944 OPD 91.

4

‘Occupation of [Korabib by] the Purchaser was already given to the Purchaser on 7

November 2001. Occupational interest was already paid by the Purchaser to the seller in the

amount of N$200 000.00 for the period 7 November 2001 until 1 January 2007.’7

[7] The second recordal of fact is premised on the requirement of the law that a

seller of agricultural land can only validly sell to a private buyer after such land was first

offered to the Government of Namibia and the Government had waived its right of first

refusal.8 In that regard the parties recorded as follows in clause 4.2.1:

‘The seller confirm (sic) that [a valid certificate of waiver] was granted to him, a copy of

which is attached hereto and marked “A”.’ (My underlining for emphasis)

[8] The agreement provided that transfer from Goussard to Von Weidts was to take

place ‘as soon as possible after 1 January 2007’. Then it states:

‘As soon as the seller tenders transfer, the Purchaser shall be compelled to take all the

necessary steps and to perform all other actions in order to take transfer without any delay.’9

[9] The purchase consideration was ‘payable in cash on the date of registration’ of

Korabib into Von Wiedts’ name. In that regard clause 4.1 of the agreement states that:

‘[T]he purchaser shall be obliged to furnish the Conveyancers with a bank guarantee for

the full purchase price on or before 1 November 2006’.

[10] Crucially, the agreement states the following as regards the place where Von

Wiedts was to make payment to Goussard:

‘All payments made in terms of this agreement shall be made to the Seller at Windhoek,

or any other place which the Seller may appoint in writing, free of commission and bank charges

in Namibia Dollars’.10 (My emphasis)

[11] The agreement therefore required that for the purchaser (Von Weidts) to make

payment at a place other than Windhoek, the seller (Goussard) had to appoint that

place ‘in writing’.

[12] The above requirement is to be read in conjunction with clause 5 which, in

relevant part, states that:

7 Clause 2.3 of the agreement.8 Agricultural Commercial Land Reform Act, 1995 (Act No. 6 of 1995), s. 17.9 Clause 5 of the agreement.10 Clause 4.3 of the agreement.

5

‘All expenses in connection with this contract, the execution thereof and the transfer,

such as transfer duty, stamps and attorney fees, shall be immediately payable by the Purchaser

upon presentation of amount by attorneys Messrs Van Der Merwe-Greeff Incorporated who

shall be attending to this transfer. The Purchaser and Seller confirm that they took notice that

should the Transfer duty not be paid within 6 (six) months from date of signature thereof,

penalty Transfer duty shall be applicable.’

[13] The parties clearly intended that the purchaser (Von Weidts) was liable for more

than just the purchase price. In that regard, clause 17 states that:

‘All costs of this agreement and the costs incidental to the execution of the agreement to

its full consequence, transfer costs, transfer duty and stamp duties, shall be borne by the

Purchaser’.

[14] One obvious costs not mentioned in this clause is the professional fee

chargeable by the transferring conveyancers.

[15] Under Namibian law, transfer duty is payable by the purchaser of immovable

property (as recognised in the agreement). The applicable legislation is the Transfer

Duty Act, 1993 (Act No. 14 of 1993). Section 2(1)11 of this Act provides as follows:

‘Subject to the provisions of section 9, there shall be levied for the benefit of the State

Revenue Fund a transfer duty on the value of any property acquired by an person … by way of

a transaction or in any other manner … at the rate of ………’ (and the percentages are set out

depending on whether or not the land is ‘unimproved’ or ‘improved’)’.

[16] Section 3(1) of the Transfer Duty Act states:

‘The duty shall become payable on the date of acquisition by the person who has

acquired the property or in whose favour or for whose benefit any interest in or restriction upon

the use or disposal of property has been renounced, and shall be paid within a period of six

months of that date’. (My emphasis)

[17] The definitions section of the Transfer Duty Act defines ‘date of acquisition’ as:

‘(a) in the case of the acquisition of property by way of a transaction, the date on

which the transaction was entered into, irrespective of whether the transaction was conditional

11 This is the provision that applied at the time Von Weidts and Goussard contracted. Section 2(1) was amended in 2003 by Act 20 of 2003.

6

or not or was entered into on behalf of a company already registered or still to be registered;

and

(b) in the case of the acquisition of property otherwise then by way of transaction,

the date upon which the person who acquired the property became entitled thereto…’

[18] Whichever way one looks at it, Von Weidts became liable to pay transfer duty on

the date the agreement between the parties was entered into. Penalties would be

payable if there was delay in paying transfer duty. That much is recognised by the

parties in clause 5 of the agreement.

[19] Section 4(1) of the Transfer Duty Act provides in that regard as follows:

‘If any duty remains unpaid after the date of the expiration of the period referred to in

section 3, there shall … in addition to the unpaid duty, be payable a penalty, at the rate of ten

percent per annum on the amount of the unpaid duty, calculated in respect of each completed

month in the period from that date to the date of payment’.

[20] Similarly, and as recognised by the parties, stamp duty was payable by Von

Weidts in terms of the Stamp Duties Act, 1993 (Act 15 of 1993).12Late payment of stamp

duty also attracts penalties.13

[21] To sum up: In terms of the agreement between the parties, Von Weidts’ liability

for Korabib to be transferred into his name included the purchase price, conveyancers

fees, transfer duty together with penalties and stamp duty together with penalties; and

he had to make payment at the offices of the transferring conveyancers who alone, it is

obvious, would calculate the amounts under each head and provide him (Von Weidts)

with an account he had to, as the agreement says, pay ‘free of commission and bank

charges in Namibia Dollars’.

[22] Under the parties’ agreement, a contracting party faced with a breach by the

other had the right to give ten days prior written notice to the defaulting party to rectify

the default. If the party in breach failed to rectify the breach, the ‘innocent party’ had two

choices: to either cancel the sale by registered letter to the party in default14 or to claim

12 Sections 7 and 8. 13 Section 9.14 Clause 12.1 of the agreement.

7

immediate specific performance and fulfilment of all terms and conditions of the

agreement.15

[23] For the purpose of facilitating notices to be served by the parties on each other,

each party chose a domicilium citandi et executandi address.16 The purpose is spelled

out in clause 14.1 of the agreement as being:

‘…all notices, legal processes and other communications must be delivered for the

purpose of this Agreement.’

[24] Towards that end each party nominated a physical address and a post box

address at Okahandja. The parties specifically agreed that any notice or communication

required or permitted in terms of the agreement ‘shall be valid and effective only if in

writing’.17

[25] The agreement further stipulates that a party could change its chosen address to

another physical address by ‘written notice’ to the other party and such change would

only become effective on the 14th day after receipt by the addressee.18

[26] It stated specifically that a notice to a party shall be deemed to have been

received if:

(a) contained in a correctly addressed envelope;

(b) sent by pre-paid registered post to the addressee’s chosen address;

alternatively if

(c) delivered by hand to a ‘responsible person’ during ordinary business hours

at the addressee’s chosen address.

[27] In case of a notice delivered by pre-paid registered mail same was deemed to

have been received on the 20th business day after ‘posting’, unless the contrary is

proved and deemed to have been received on the day of delivery in case of a notice

delivered by hand to a ‘responsible person’.19

15 Clause 12.2.16 Clause 14.1.17 Clause 14.2.18 Clause 14.3.19 Clause 14.4

8

[28] It is common cause that Goussard sold Korabib to the Government of Namibia

(the government) and it was transferred to the government on 12 July 2007.

The Pleadings

[29] In June 2007, Von Wiedts commenced action against Goussard, later joining the

government as second defendant, claiming that he and Goussard had during

November20 2001 concluded a written agreement for the sale of Korabib to him; that he

complied with his obligations in tendering to pay the purchase price in cash prior to

registration and to take all necessary steps to perform all actions necessary for taking

transfer but that Goussard failed and refused to comply with the provisions of the

agreement by refusing to give transfer of registration and ownership to him. Von Wiedts

also alleged that he had given Goussard due notice21 of his alleged breach to give

transfer but that Goussard has not complied. As concerns the government, Von Weidts

alleges that since becoming aware of the intended sale of Korabib by Goussard to the

government, he (Von Weidts) informed the government of his claim in and to the

property prior to the property being transferred in the government’s name.

[30] Based on the above allegations, Von Weidts seeks the following relief:

(a) That Goussard, alternatively the government, takes all necessary steps

within 5 days to give transfer of Korabib to him;

(b) That Goussard repays, with interest of 20% per annum, all payments he

(Von Weidts) made to Goussard as compensation for occupation of

Korabib from the date of Goussard’s alleged mora;

(c) That Goussard be ordered to repay the government the purchase price of

Korabib; and

(d) Costs of suit.

[31] In his plea, Goussard denied that Von Weidts complied with his obligation to pay

the purchase price and to comply with the other obligations necessary to trigger transfer

of Korabib to Von Weidts. He pleaded that there was no obligation on him to give

20 In his particulars the plaintiff alleged that the agreement was entered into prior to 1997.21 By letter dated 6 June 2007 addressed to GT Goussard 8 th Avenue 730, Okahandja Namibia c/o his legal practitioner in terms of clause 12 of the agreement.

9

transfer because Von Weidts failed to furnish the conveyancers with a bank guarantee

for the purchase price before 1 November 2006, as a result of which he (Goussard) in

terms of clause 12 of the agreement gave written notice of 10 days to Von Weidts to

rectify the default but that Von Weidts failed to rectify same. Goussard as a result, and

again in terms of clause 12.1 of the agreement, cancelled the agreement with Von

Weidts. As regards Von Weidts’ allegation that he had given Goussard notice of the

alleged breach, Goussard avers that same was of no effect because by then he

(Goussard) had lawfully cancelled the agreement.

[32] Goussard admits that he concluded a sales agreement for Korabib with the

government on 5 June 2007. He denies that Von Weidts had any claim to Korabib at

the time he concluded the sales agreement with the government.

[33] The government’s plea to Von Weidts’ claim is that at the time it concluded the

purchase of Korabib from Goussard, the certificate of waiver on the strength of which

Von Weidts could claim an entitlement to transfer had lapsed.

[34] The Government instituted a counterclaim against Von Weidts. It alleged that on

12 July 2007, it (as the new owner of Korabib) and Von Weidts (who was in occupation

of Korabib) entered into an oral agreement in terms whereof Von Weidts leased Korabib

from the government to terminate on 12 August 2007. That Von Weidts after due date

refused to return occupation to the government and is thus in unlawful occupation. In

respect of its counterclaim against Von Weidts, the government seeks an order:

(a) confirming the termination of the lease it granted to Von Weidts;

(b) an order ejecting Von Weidts from the farm; and

(c) costs of suit.

[35] In his plea to the government’s counterclaim, Von Weidts admits occupation of

Korabib but alleges that the government’s claim to ownership of Korabib is subject to his

claim as set out in his particulars of claim; in the alternative and in the event of the court

finding that the government has better claim to ownership, Von Weidts claimes that he

was at all times a bona fide possessor of Korabib and in that capacity made useful

improvements thereon in the amount of N$800 000, which he then claims against the

government under an enrichment claim. Von Weidts in that event sought compensation

10

from the government in the amount of N$800 000 on the strength of an improvement

lien he allegedly enjoys against the government as bona fide possessor. The

enrichment claim has been abandoned, Mr Heathcote, SC conceding during oral

argument that Von Weidts did not prove his enrichment claim, and I need not say

anything further about it.

Common cause facts

[36] The agreement was entered into in November 2001 and Von Wiedts had to

deliver the bank guarantee on or before 1 November 2006. Von Wieds took occupation

of Korabib on 7 November 2001. Transfer of Korabib in Von Wieds’ name was to take

place as soon as possible after 1 January 2007. It is not in dispute that Von Weidts did

not furnish the conveyancers with a bank guarantee for the full purchase price on or

before 1 November 2006.

[37] Goussard through his lawyer Etzold Duvenhage delivered a notice to Von Weidts

in terms of the agreement and thereafter sent a properly addressed pre-paid registered

mail to Von Weidts’ chosen post box address cancelling the agreement.

[38] Von Weidts, purporting to act under clause 12 of the agreement, delivered a

notice on Goussard’s chosen domicilium address (care of his attorney) fully aware that

Goussard no longer lived there.

[39] It is common cause that Von Weidts and Goussard regularly met at Noordoewer

after Von Weidts moved to the farm and before Goussard purported to cancel the

agreement. When the duo so met, none of them raised with the other the notices each

had served on the other through their respective legal practitioners. Von Weidts’

explanation for that is that since he had handed over the matter to the lawyers he felt it

unnecessary to do so. Goussard’s explanation is to same effect.

[40] By the time Von Wiedts delivered his compliance notice to Goussard and his

warning letter to the government that it would be taking transfer of Korabib at own risk,

Goussard and the government had already concluded a sales agreement over Korabib.

Von Weidts is aware that the government took transfer of the farm on 12 July 2007. He

therefore entered into a lease agreement with the government in respect of Korabib. He

11

also acknowledges that the lease he had enjoyed over the farm from the government

expired in August 2007.

[41] It is common ground that the government paid Goussard an amount far in excess

of what Goussard would have got if he sold the farm to Von Weidts.

[42] It is common cause that the parties never, in writing, varied or suspended any of

the contractual terms. Clause 13 of the agreement states in stentorian terms that:

‘Notwithstanding any expressed or implied provisions of this contract, any latitude or

extension of time which may be allowed by either party to the other in respect of any payment

provided for herein, or any matter or thing that any one of the parties is bound to perform or

observe in terms hereof, shall not under any circumstances be deemed to be a waiver of, or

prejudice, the rights of either party at any time to require strict and punctual compliance with

each and every provision or term of this agreement.’

[43] There is no dispute that the agreement was prepared by Attorneys, Van Der

Merwe Greef on Von Wiedts’ instructions and that he paid for their services. It is also

not in dispute that the same attorneys were the conveyancers who were to attend to the

transfer of the farm into Von Weidts’ name.

Von Weidts’ evidence

[44] Von Weidts testified that in 2007 Goussard was aware that he (Von Weidts) was

no longer residing in Okahandja but at Korabib near Noordoewer. Von Weidts and his

wife regularly visited Goussard’s filling station at Noordoewer and it was during such

visits that Goussard informed him (Von Weidts) that he was experiencing problems with

the waiver certificate and that the transfer was delayed for that reason. In any event,

during such discussions, Von Weidts offered to Goussard a cash cheque of N$200 000

but such offer was rejected by Goussard.

[45] According to Von Weidts, by late 2007 prices per hectare in the vicinity of

Korabib increased materially – being the reason why Goussard reneged on transferring

Korabib to Von weidts.

[46] Von Weidts also testified that Goussard never told him when they met at

Noordoewer that he was going to send a letter of demand for delivery of the bank

guarantee as required under the agreement.

12

[47] According to Von Weidts, Goussard knew that the letter of demand he caused

his lawyer to serve on Von Weidts’ domicilium address would not be received; and that

the letter of demand was not sent to Von Weidts’ registered address.

[48] Von Weidts was not in a position to dispute that his attorneys who prepared the

agreement had in their possession, since the conclusion of the agreement, the

certificate of waiver referenced in the parties’ agreement.

Goussard’s evidence

[49] Goussard denied knowing that Von Wiedts had sold his house in Okahandja. He

also denied that the plaintiff ever tendered a cash cheque in the amount of N$200 000

when they met at Noordoewer. He testified that the plaintiff told him on the contrary that

it was preferable for Goussard to nominate his (Von Wiedts’) son under Goussard’s will

as beneficiary of Korabib because the attorneys' fees were too high.22 Goussard made

it clear that he was prepared to transfer Korabib to Von Weidts, but for the latters’

breach.

[50] Goussard testified that on 7 November 2006 he spoke with Von Weidts’ legal

practitioner, Mr Rall, who confirmed that Von Weidts had not furnished the bank

guarantee. Mr Rall said he was conflicted and referred him (Goussard) to his present

practitioner of record, which he did and instructed them to handle the matter ‘according

to contract’. It was as a consequence that the compliance notice was served on Von

Weidts at his chosen domicilium on 17 November 2006. Goussard thereafter instructed

his legal practitioner to cancel the agreement on 5 December 2006, by registered mail.

[51] Mr Cowley, who was at the material time the acting deputy sheriff for Okahandja,

was also called to testify on Goussard’s behalf. He served the compliance notice at

Von Weidts’ chosen domicilium. He testified that he served the notice on a Ms Lean

Michau who was a person known to him and who accepted service. He testified that he

considered Michau a responsible person. She was the new owner of the property Von

Weidts had nominated as the domicilium address under the contract. Cowley testified

that he had no reason to believe that Michau would not bring the envelope to the

attention of Von Wiedts.

The Submissions 22 Recall the terms of clause 5 (see para 11 of this judgment).

13

The Plaintiff

[52] The gravamen of the plaintiff’s case is that Goussard was not entitled to cancel

the agreement because he could only do so if he was an ‘innocent party’ as

contemplated in clause 12 of the agreement. Counsel’s contention is that properly

construed the cancellation clause was not available to a guilty party. The argument

goes further that, even assuming that Goussard was entitled to cancel, he did not

cancel the agreement in terms of the cancellation clause which must be strictly

interpreted. According to Mr Heathcote, to be valid all written notices in terms of clause

12 must be delivered to the postal address as well as to the physical address. Counsel

further contended that the agreement did not exclude personal service and that where a

party had recourse to a mode of service other than personal service, it had to give

notice on the physical address as well as the postal address. In short, Mr Heathcote’s

argument amounts to saying that the parties had in mind personal service and that the

modes of service integrated into their agreement were only intended as an alternative to

personal service. This, with respect and as I will soon demonstrate, is a courageous

thing to say in circumstances where the parties had included a ‘whole agreement

clause’ in their contract.

[53] Mr Heathcote argued that the evidence demonstrates on balance of probabilities

that:

(a) Goussard, intent on reneging from the agreement with the plaintiff in order

to snatch a bargain by selling at a higher price to the government than he

would have got if he sold to the plaintiff, ‘unconscionably’ and maliciously’

refused to accept a tender of the purchase price by the plaintiff;

(b) Goussard in furtherance of his unconscionable purpose, served a notice at

the plaintiff’s domicilium address knowing well that the plaintiff had moved

from that address and would not receive the notice;

(c) Goussard thereafter sent a cancellation notice to the plaintiff’s chosen

post box address which plaintiff had in any event closed when he moved

to Korabib and therefore did not receive.

14

[54] The argument further was that given that for the above reasons Goussard was

not an innocent party and that he was in breach, Von Weidts’ obligations to comply with

his obligations under the agreement were ‘suspended’ for as long as Goussard

repudiated the agreement.

[55] Mr Heathcote further argued that the notice to demand compliance by the plaintiff

was not in compliance with the agreement because Goussard failed to prove that it was

delivered to a ‘responsible person’, and that the notice to cancel the agreement was

equally of no force and effect because Goussard did not (a) deliver it at the physical

address and (b) simultaneously sent it by pre-paid registered mail to the plaintiff’s postal

address.

[56] Mr Heathcote relies on Meiner v Biewenga and another 23for the proposition that

only an innocent party was entitled to demand compliance by the other contracting

party. He relied on Toana Investments (Pty) Ltd v Fire ‘n Light Videographers Pvt and

another24 for the proposition that a responsible person is one who has ‘a degree of

answerability towards the party to be served’. He also submitted that clause 12 created

a rebuttal presumption that a notice given to cancel was received and that, absent proof

by Goussard that the plaintiff received the notice, it had no effect and that the

cancellation is meaningless and that Goussard must be held to his contractual

obligation to transfer Korabib to Von Wiedts.

[57] Mr Heathcote conceded that the plaintiff had not proved his claim against the

government of an alleged enrichment based on an improvement lien.

First Defendant

[58] Mr Obbes, for the first defendant, argued that the plaintiff demonstrably breached

the peremptory terms of the agreement which required him to deliver to the transferring

conveyancers a bank guarantee for the purchase price on or before 1 November 2007.

He maintained that faced with the plaintiff’s breach, first defendant had an election as to

the form in which to serve the notice requiring compliance by the plaintiff. According to

Mr Obbes, there was nothing untoward in the way first defendant delivered the

compliance notice and the cancellation notice on the plaintiff. Mr Obbes argued that the

23 1996 NR 130 HC at 138A-B at 20.24 1998 JOL 2771 (ZH) A-B at 10.

15

plaintiff could not be heard to cry foul about the manner that the first defendant served

the compliance notice on him (the plaintiff ) because the plaintiff himself, fully aware of

the fact that Goussard no longer lived at the Okahandja address, purported to have

served his notice demanding Goussard’s compliance at the latter’s Okahandja address.

[59] Mr Obbes argued that the evidence shows that Goussard was not aware that

plaintiff no longer lived at the Okahandja address and could thus not be faulted for

delivering it there. He maintained that the evidence shows that the deputy sheriff who

served it had no reason to believe that the new owner (whom he knew and trusted)

would not deliver the notice to the plaintiff. According to Mr Obbes, plaintiff vacated the

domicilium address without appointing a ‘responsible person’ as contemplated by the

agreement and, above all, failed to assign a new domicilium address. Accordingly,

plaintiff assumed the risk of the notice not coming to his attention. In any event, Mr

Obbes submitted, the evidence shows that the plaintiff’s post box address was already

closed in 2003 and that he took no steps whatsoever to change the chosen post box as

required by the agreement.

[60] As regards the waiver certificate, Mr Obbes argued that the agreement itself

confirms that the waiver was in existence and that Goussard could therefore not have

made misrepresentations that it was not in existence. Besides, counsel argued, the

waiver certificate was on the file at the offices of the plaintiff’s attorneys and that he had

failed to discover it.

[61] Mr Obbes argued that there was no basis established in the evidence for the

alleged suspension of plaintiff’s obligations under the agreement.

Second Defendant: the government

[62] Mr Hinda SC argued that in view of Mr Heathcote’s concession that the plaintiff

failed to prove the alleged improvement lien, the only issue between the plaintiff and the

government was whose claim to ownership takes priority. Mr Hinda stated that the latter

issue will hinge on the court’s finding whether or not the first defendant validly cancelled

his agreement with the plaintiff.

16

Finding in respect of the waiver certificate

[63] A witness who came to court under subpoena duces tecum from the firm van der

Merwe Greeff (Mrs Salome Moller) produced a document that purports to be a

certificate of waiver issued to Goussard in respect of Korabib dated 20 October 1997. It

was established therefore that Goussard had issued to him a valid certificate of waiver

and that there was no impediment on his part for the consummation of the transaction

with the plaintiff, a fact more than amply corroborated by the joint recordal of that fact by

the two contracting parties. The evidence of Von Weidts and his wife that Goussard on

two occasions told them that the sale could not be proceeded with because Goussard

had not yet received the waiver certificate does not square with the objective facts.

Goussard denied that to be the case and the probabilities on that score are

overwhelmingly in his favour. I therefore find as a fact that for the entire period since

the agreement was concluded until cancellation by Goussard, the plaintiff was aware of

the existence of the waiver certificate and that he had to reciprocate by the delivery of a

bank guarantee to the conveyancers on or before 1 November 2006 but failed to do so.

Interpretation of disputed clauses

[64] Subject to limited exception, the policy of the court is to give effect to an

agreement entered into by persons acting voluntarily (pacta sund servanda). Words

used in a contract must be given their ordinary grammatical meaning, unless doing so

will produce an absurd result.25 Clause 14 of the agreement is in two parts: the first part

refers to service at a domicilium address and after it the instrument uses the word ‘or’

(and not ‘and’) and then makes provision for service at a postal address. Mr Heathcote

is therefore asking the court to read the word ‘and’ as a substitute for ‘or’. That is too

contrived and is not available in the absence of relief seeking rectification. In fact, given

the differentiated application of the deeming provision contained in clause 14,

depending on whether service is by post or on a physical address, the contention

advanced by Mr Heathcote will produce an absurd result.26

[65] In my view, the parties intended alternative modes for service of a compliance

notice and for cancellation of the agreement: it was to be either at the domicilium

25 Coopers & Lybrand 1995 (3) SA 761 (a) 767E-768E.26 To read ‘or’ as ‘and’ is a violent expedient which ought not to be adopted except in the last resort, see in this regard Relborg Holdings(Pvt) Ltd v Gallowat 1973 (1) SA 530.

17

(physical) address or by registered mail to the chosen postal address. If it were

otherwise, an absurd result was likely. Would the notice take effect on the date of

delivery at the domicilium address or when received by post? The question only needs

to be posed to be answered! I therefore reject Mr Heathcote’s submission that clause 14

did not intend alternatives.

Law to facts

[66] A great deal of evidence was canvassed at the plaintiff’s instance about who said

what, when Goussard and Von Weidts met at Noordoewer after both relocated to the

south. To the extent that I make no reference to the details in this judgment, it is on

account of the fact that I am satisfied that it is irrelevant as it is extrinsic to the terms that

the parties integrated into their written instrument.

[67] Not only did Von Weidts not expressly inform Goussard that his chosen

domicilium address changed and therefore became ineffective for purposes of the

agreement, but he, with full knowledge that the first defendant’s domicilium address had

also changed, chose to give a compliance notice intended for Goussard at that very

address. In my view, that is a clear pointer to the intention of the parties: they intended

the domicilium address to be the effective means for giving each other notice.

[68] The inference that payment of the purchase price had to be made at the offices

of the transferring attorneys is inescapable. The agreement envisaged that before

payment was made by the purchaser, an account had to be prepared in terms of clause

5, to include (a) all expenses in connection with the contract, (b) transfer duties, (c)

stamps, (d) attorney’s fees and (e) penalties on transfer and stamp duties. The mere

tender of an amount of N$200 000 as alleged by the plaintiff was therefore not

compliant with his obligations under the agreement. Even if I were to accept Von

Weidts’ version that he on two occasions at Noordoewer tendered a cheque of

N$200 000 to Goussard, there is clearly a good reason why Goussard should have

refused to accept it: Such tender did not comply with clause 5. How could the

presentation of a cheque of N$200 000 be considered by the plaintiff as compliance of

his obligations under the agreement which, in peremptory terms, required him to pay all

‘expenses in connection with this contract, the execution thereof and the transfer duty

upon presentation of account’ of the transferring attorneys.

18

[69] It is implied in what the plaintiff says that he had by conduct changed his

domicilium address. The first defendant could only serve on him at the address to which

he had moved if that was the new domicilium address. Changing a domicilium address

by ‘conduct’ was not permissible under the agreement. The plaintiff could justifiably

have ignored any service on him at the address to which he had moved. It would be

imposing an overly onerous duty on the first defendant, clearly one not intended by the

parties, to find that Goussard ought to have first established whether the person to be

found at the domicilium address would make sure that the plaintiff in fact received the

notice. Goussard’s evidence remains uncontradicted: he had no knowledge that the

plaintiff’s Okahandja address ceased to be the domicilium address, or that the plaintiff’s

Okahandja post box number had changed. Plaintiff’s failure to give first defendant a

notice of his changed physical address, taken together with the fact that he himself

served a notice on Goussard in the same way, puts to paid any suggestion that the first

defendant ‘maliciously’ and ‘unconscionably’ gave notice at an abandoned domicilium

address.

[70] The proposition that first defendant misrepresented the existence of the waiver

certificate conflicts with the parole evidence rule. The parties had in their agreement

acknowledged that it existed and the plaintiff must be taken to have been aware of its

existence from the moment the agreement was signed. The existence of the waiver

certificate was sufficient tender on Goussard’s part to trigger the plaintiff’s performance.

It is trite that when a contract was integrated into a single and complete written

instrument, a party to the contract is not allowed to contradict, add to or modify the

written instrument by reference to extrinsic evidence and in that way to redefine the

terms of the contract.27

[71] The plaintiff wants me to find that a mode of payment other than that integrated

into their written instrument must take precedence. He also wants me to find that a fact

agreed by them to exist at the time they acknowledged its existence was indeed not the

case. On either score, the plaintiff’s suggestion falls foul of the parole evidence rule and

stands to be rejected.

[72] The only proposition that still merits consideration is the one that the parties had

intended personal service and that the plaintiff’s notice demanding compliance and that

27 Johnston v Leal 1980 (3) SA 927 (A) at 943B.

19

cancelling the contract are of no force and effect because the first defendant failed to

prove that same came to the notice of the plaintiff. My finding that the parties had

intended the modes of service provided in the agreement as the more effective means,

buttressed by the plaintiff’s own conduct in having recourse thereto as opposed to

personal service, puts to bed Mr Heathcote’s argument that the agreement intended

personal service.

[73] The plaintiff seeks specific performance. A party seeking specific performance

must be ready, able and willing to perform his own obligations.28 Von Wiedts, therefore,

had to show that he performed his part of the agreement or was unlawfully prevented

from doing so by Goussard. Even if I were to be wrong in finding that Goussard’s notice

of demand was valid in law or that he properly cancelled the agreement, paving the way

for the consummation of his agreement with the government, Von Weidts must still fail

because he failed to prove that he complied with his obligations under the agreement.

He bore the onus. He failed to discharge it.

[74] An allegation of malice and unconscionable conduct suggest fraudulent

behaviour. Those are serious allegations requiring strong evidence,29 especially given

that Goussard against whom it is made, as is common cause, acted according to the

strict letter of the agreement and, as it happens, on the advice of lawyers. Under our

common law, no one is considered to act wrongfully who exercises his legal right.30 Von

Wiedts failed to produce the evidence necessary to support any of the defences31 that

could operate to displace the parole evidence rule. His claim for specific performance is

doomed to fail whereas the second defendant’s counterclaim succeeds.

Costs

[75] There is no reason why costs should not follow the event. All parties chose to be

represented by instructing and instructed counsel. The case also merited the

employment of senior counsel by the plaintiff and the government.

28 Geldenhuys v Neethling v Benthin 1918 AD 426 at 441, 444, 446.29 Courtney Clarke Bassingwaite 1991 (1) SA 684 at 689; Gates v Gates 1939 AD 150 at 155; NDPP v Zuma 2009 (20 SA 277 (SCA) at 291, para 2.30 This is expressed in the maxim: Nullus videtur dolo facere qui suo jure utitur, Claassen C J. 1976. Dictionary of Legal words and Phrases(Vol 2) p 298.31 See para 5 of this judgment.

20

The order

[76] I make the following order:

1. The plaintiff’s claim against first and second defendants is dismissed, with costs;

and both defendants are awarded costs against the plaintiff to include the costs

of instructing and instructed counsel.

2. The second defendant’s counterclaim succeeds and the plaintiff is directed to

vacate the farm Korabib, No. 327, Registration division ‘V’ in the district of

Karasburg, failing which the deputy sheriff for the district of Windhoek is

authorised, assisted by members of the Namibian police should the need arise,

to take such steps on behalf of the second defendant. The second defendant

shall be entitled, from the moment this judgment is handed down, to place on the

farm Korabib such number of persons as it considers necessary to ensure that

the farm and the infrastructure thereon are safe and secure.

3. The second defendant is awarded costs for the counterclaim against the plaintiff,

to include the costs of one instructing and one instructed counsel.

___________________

PT Damaseb

Judge-President

21

Appearance

For the plaintiff: R Heathcote SC

Instructed by MB De Klerk & Associates, Windhoek

For the first defendant: D Obbes

Instructed by Etzold-Duvenhage, Windhoek

For the second defendant: G Hinda, SC

Instructed by Government Attorney