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PREPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

CASE NO.: I 3757 /2012

DATE: 18 MAY 2016

In the matter between:

PAUL VIVIERS....................................................................................................................PLAINTIFF

And

JOHN BARRINGTON IRELAND.....................................................................FIRST DEFENDANT

ANTHEA VANESSA IRELAND....................................................................SECOND DEFENDANT

Neutral citation: Viviers v Ireland & Another (I 3757/2012) [2014] NAHCMD 148 (18 May 2016)

Coram: UEITELE, J

Heard: 10, 11, and 12 MARCH 2014 and 1 APRIL 2014;

Delivered: 18 MAY 2016

Flynote: Ejectment - Action for - Necessary averments - Plaintiff need only allege ownership of property and occupation thereof by defendant - Onus on defendant to prove lawful occupation, onus discharged by defendant's evidence to effect that agreement between parties permitting occupation - Ejectment refused.

Contract - Suspensive condition - Condition in contract requiring some act to be performed in order that an obligation under the contract can come into existence - Parties not fixing time for performance of obligations of one of the parties - Court will imply a term that performance to take place either within a reasonable time or within time agreed to by the parties.

Summary:     The plaintiff and defendants entered into written agreement, by which the former undertook to sell to the latter an immovable property, situated at 16 Moses Tjitendero Street, Olympia, Windhoek. The written agreement concluded by the parties contained suspensive conditions. The plaintiff claimed that the suspension conditions contained in the agreement were not fulfilled within a reasonable time and in consequence, the agreement lapsed. Plaintiff consequently sought an order to eject the defendants from the property. In their defense, the defendants claimed that they have fulfilled the suspensive conditions within the time allowed by the plaintiff and a valid agreement is therefore in place. The defendants on the other sought the transfer of the immovable property into their names.

 

Held, that in order to eject a defendant from immovable property plaintiff needed to allege only that he was the owner thereof and that the defendant was in occupation of the property: where defendant admitted occupation but contended that it was lawful the onus would rest on defendant to prove that fact.

 

Held further that the defendants took occupation of the property in terms of an agreement for the sale and purchase of the property and that the the suspensive conditions contained in the agreement for sale and purchase of the property were fulfilled within the time agreed to by the parties.

 

Held furthermore that the plaintiff is under an obligation to pass transfer of the property into the names of the defendants against payment of the balance of the purchase price.

ORDER

 

1       The plaintiff, Mr. Paul Viviers, must against security for the payment of the balance of the purchase price in the amount of N$ 1 700 000, sign all the documents necessary to pass transfer of ownership of the immovable property situated at No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek, Namibia into the defendants’ names (Mr. John Barrington Ireland and Anthea Vanessa Ireland).

2       If the plaintiff fails to sign the documents by no later than 14 days from the date this judgment is delivered, then and in that event, the Deputy Sherriff for the District of Windhoek is authorized to, against security for the payment of the balance of the purchase price in the amount of N$ 1 700 000, sign all the documents necessary to pass transfer of ownership of the immovable property situated at No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek, Namibia from the plaintiff, Mr. Paul Viviers, into the defendants’ names (Mr. John Barrington Ireland and Anthea Vanessa Ireland).

 

3       The plaintiff must pay the defendants’ costs of suit, such cost to include the cost of one instructing and one instructed counsel.

JUDGMENT

UEITELE, J:

 

Introduction

 

[1]        The dispute between the parties in this matter came to court on 13 October 2010 when Mr. and Ms. Ireland (who are the first and second defendants respectively in these proceedings) instituted an action in the Magistrates’ Court for the district of Windhoek, in which action Mr. and Ms. Ireland sought an order directing Mr. Paul Viviers (who is the plaintiff in this matter) to transfer an immovable property known as No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek, Namibia into their names.

 

[2]        Whilst the proceedings, which were instituted by Mr. and Ms. Ireland were still pending in the Magistrates Court, Mr. Viviers, on 25 October 2011, commenced these proceedings by issuing summons out of this court, in terms of which he seeks an order evicting Mr. and Ms. Ireland from No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek Namibia and payment in the amount of N$ 347 037 from Mr. and Ms. Ireland. After Mr. Viviers caused summons to be issued, Mr. and Ms. Ireland applied, in terms of s 50 of the Magistrates Court Act, 1944[1] for the proceedings which were pending in the Magistrates Court to be transferred to this court. That application was granted.

 

[3]        The dispute between the parties has been in the courts for a period of approximately six years.  The matter was set down for trial during March 2014 and I heard evidence in that regard over a period of four days (that is on the 10^th, 11^th, 12^th of March 2014 and the 1^st of April 2014). On 1 April 2014 I reserved judgment and I had to, in terms of the practice directives, deliver judgment on or before the 31^st of August 2014. I have failed to deliver the judgment according to the promise I made to the parties and in accordance with the practice directives. I accordingly, before I proceed to deliver judgment in this matter, record my regret for the delay and extend my sincere apologies to the parties for the delay in delivering judgment.

 

Background to the dispute:

 

[4]        Mr. Paul Viviers (I will from here on, except where the context so requires, refer to him as the ‘plaintiff’) is the registered owner of an immovable property known as No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek Namibia (I will from here on, refer to this Erf as the ‘property’). The improvements on this property consists of buildings from which the plaintiff’s wife, through a Close Corporation (owned by the plaintiff and his wife) known as Atina Property CC, operated a bed and breakfast business. The bed and breakfast business was known as Pabeanta Guesthouse.

 

[5]        Mr. and Ms. Ireland (I will from here on, except where the context so requires, refer to Mr. Ireland as the ‘defendant’ or the ‘defendants’ when I refer to both Mr. and Ms. Ireland) are South African citizens. During the year 2005 the defendant came to Namibia (he stayed in Windhoek) to temporarily manage the business of a company known as Powertech Batteries.  During his stay in Windhoek the defendant resided at Pabeanta Guesthouse, he resided at that Guesthouse for a period of seven months and thereafter returned to South Africa. During his residency at Pabeanta Guesthouse the defendant made acquaintances with the plaintiff and his wife. The defendant returned to Namibia during August 2007, he again resided at Pabeanta Guesthouse.

 

[6]        During the defendant’s stay at Pabeanta Guesthouse (during 2005 and 2007) the plaintiff intimated to the defendant that he (the plaintiff) was contemplating selling Atina Property CC as a going concern (that is the Guesthouse business and the property). The two then discussed the possibility of the defendant purchasing the property from the plaintiff, the discussion did not reach any final conclusion. The defendant returned to South Africa at the end of August 2007. When he returned to South Africa the defendant discussed with his wife the possibility of relocating to Namibia.

 

[7]        During October 2007 the defendant and his wife again came to Namibia (they once again stayed at Pabeanta Guesthouse this time for a period of five days) and approached the Ministry of Trade and Industry (they went to the Investment Centre) and enquired at the Investment Centre what the requirements to obtain residency and work permits in Namibia were. After they received the information relating to the requirements they formed the view that they will meet the requirements. The defendant and his wife thus approached the plaintiff and negotiated and finalized the terms of an agreement to purchase the property.  The parties signed an agreement (which was titled ‘OFFER TO PURCHASE’) on 27 October 2007.

 

[8]        There is a dispute between the parties as to which version of the agreement was signed on 27 October 2007. The plaintiff, in his evidence at the trial, submitted a document marked as Exhibit “A” as the version of the agreement signed on 27 October 2007 whilst the defendant, in his evidence at the trial, submitted a document marked as Exhibit “V” as the version of the agreement signed on 27 October 2007.

 

[9]        The agreements contained in both exhibits “A” and “V” are identical in all respects the only difference being with regard to the amounts relating to the deposit which had to be paid and the amount in respect of which a bond had to be raised.  Clause 2 of the agreement contained in the document marked as exhibit “A” provides as follows:

 

‘This offer is subject to the approval of the necessary bond of not less than N$1 700 000 at the current rate of interest and the Purchaser hereby undertakes to make every effort to raise a bond and to apply for such bond within a reasonable time after the suspensive conditions have been met.

 

This offer is further subject to the Purchaser being granted residence rights/permit by the relevant authorities to reside and operate a business within the boundaries of Namibia. The Purchaser undertakes to make every effort to obtain such right/permit to ensure that the intended transaction is not unduly delayed.’

 

Whereas clause 2 of the agreement contained in the document marked as exhibit “V” provides as follows:

 

‘This offer is subject to the approval of the necessary bond of not less than N$1 200 000 at the current rate of interest and the Purchaser hereby undertakes to make every effort to raise a bond and to apply for such bond within a reasonable time after the suspensive conditions have been met.

 

This offer is further subject to the Purchaser being granted residence rights/permit by the relevant authorities to reside and operate a business within the boundaries of Namibia. The Purchaser undertakes to make every effort to obtain such right/permit to ensure that the intended transaction is not unduly delayed.’

 

[10]      The defendants’ application for a residence and work permits were approved during December 2007 but the loan for a bond was not approved until June 2010.  During April 2010 the plaintiff approached a firm of attorneys (Stephen F Kenny Legal Practitioners) who on 14 April 2010 (this letter was admitted in to evidence as exhibit ‘H’ and I will in this judgment refer to it as exhibit ‘H’) addressed a letter to the defendants. That letter amongst other things reads as follows:

 

‘We act on behalf of Mr. Paul Viviers and refer to the Offer to Purchase signed by yourselves and our client on or about 27 October 2007.

 

In terms of clause 11 of the offer to purchase we hereby place on record that you are in breach of clauses 2 and 3 in that you have to date failed to raise a bond in respect of the balance of N$ 1 700 000 and you furthermore failed to pay occupational interest in the amount of N$ 10 000 per month.

 

In terms of clause 11 you are afforded the opportunity to rectify these breaches within 14 days of receipt of this notice, failing which our client will enforce rights as stipulated in clause 11(a) and (b).’

 

[11]      The above quoted letter triggered an exchange of letters between the legal practitioners acting for the plaintiff and the legal practitioners acting for the defendants culminating in a letter dated 3 August 2010. In the correspondence exchanged between the legal practitioners the plaintiff’s legal practitioners contended that the suspensive conditions contained in the agreement between the parties have not been complied with and the agreement thus lapsed. The legal practitioners acting on behalf of the defendant on the other hand contended that the suspensive conditions have been complied with and that the agreement between the parties was still valid. In the letter of 3 August 2010 the legal practitioners acting for the plaintiff amongst other things wrote that:

 

‘We confirm your having advised that your client had his finances available and ready to proceed with the transaction. We regret to advise that our client is no longer interested in entering into an agreement with your client and your client is to vacate the property in terms of our client’s demand.’

 

[12]      It is after receiving this letter that the defendants, on 13 October 2010 instituted proceedings in the Magistrates Court to compel the plaintiff to take all the necessary steps to transfer the property into the defendants’ names. As I have indicated in the introductory part of this judgment the plaintiff in turn also instituted action in this court seeking the eviction of the defendants from the property and also claiming payment from the defendants. In this court the defendants counterclaimed against the plaintiff and they are essential claiming the same relief that they sought in the Magistrates Court namely an order compelling the plaintiff to take all the necessary steps to transfer the property into their names. The defendants also have an alternative claim against the plaintiff. In the alternative they claim return of the amount of N$ 1 100 000 which they paid in anticipation of the property being registered in their names.

 

The grounds on which the plaintiff’s claim is based and the grounds on which the defendants’ counterclaim is based.

 

[13]      The basis on which the plaintiff claims for the eviction of the defendants is that the defendants are in occupation of the property without a just cause or good reason.  The claim for the payment of the amount of N$ 347 037 is based on the allegation that because of the occupation of the property without a good cause the plaintiff’s estate has been impoverished and the defendants’ estate enrich by the amount of N$ 347 037.

 

[14]      The defendants’ counterclaim against the plaintiff is based on the allegation that on 27 October 2007 the plaintiff and the defendant concluded an agreement of sale in terms of which the plaintiff sold and the defendants purchased the property. The defendants admit that the agreement of sale was subject to two suspensive conditions namely that the defendants must obtain residence and work permits in Namibia and a loan in the amount of N$ 1 700 000 secured by a mortgage bond, to enable the defendants to pay the balance of the purchase price.  The defendants furthermore admit that these conditions had to be fulfilled within a reasonable time from the date that the agreement of sale was signed. The defendants allege that they fulfilled the suspensive conditions within the time allowed by the plaintiff and a valid agreement is therefore in place.

[15]      The defendants’ alternative claim is based on the ground that they made payments in the amount of N$ 1 100 000 to the plaintiff in anticipation of them fulfilling the suspensive conditions, they made the payments in the mistaken but bona fide belief  that they were obliged to do so. They thus claim that the plaintiff’s estate has been enriched in the amount of N$ 1 100 000 which they paid to the plaintiff and their estate impoverished by that amount.

 

The issues which I must decide

 

[16]      I am of the view that the issues which I am called upon to decide are whether:

 

(a)          The defendants are in occupation of the property without good cause or reason;

 

(b)          If the answer to the question posed in paragraph (a) is in the affirmative, has the estate of the plaintiff been impoverished and that of the defendants enriched?

 

(c)          The defendants have fulfilled the suspensive conditions within a reasonable time as contemplated in the agreement between the parties.

 

(d)          If the answer to the question posed in paragraph (c) is in the negative, has the estate of the defendants been impoverished and that of the plaintiff enriched?

 

The Legal principles

 

[17]      I will, before I consider the competing claims of the plaintiff and the defendant briefly set out the legal principles which are applicable to the dispute between the parties. It is trite that in order to eject a defendant from immovable property, a plaintiff need only allege that he is the owner of the immovable property and that the defendant is in occupation of the immovable property[2].

 

[18]      Badenhorst[3], argue that one of the characteristics of ownership which is emphasized in our law is that: "ownership is a 'mother right' in the sense that it confers the most comprehensive control over a thing that it is still generally accepted that owners exercise and retain control over property, thereby justifying extensive protective measures when ownership or entitlements are infringed".

[19]      In the matter of Chetty v Naidoo[4] the courts confirmed the principle that an owner cannot be deprived of their property against their will, this means that "an owner is entitled to recover property from any person who retains possession of it without the owner's consent” and in the matter of Akbar v Patel[5] Trengrove J said:

 

‘According to our law, where a plaintiff's claim for the recovery of possession or for ejectment is based on his ownership of the property involved, his cause of action is simply the fact of his ownership coupled with the fact that possession is held by the defendant … This principle, as far as I am aware, applies to any claim for ejectment founded on ownership, irrespective of the circumstances which have given rise to such claim. As long as the claim is based on the plaintiff's ownership of the property, the fact that it arises out of an inchoate transaction seems to me to be an irrelevant consideration as far as his cause of action is concerned.’

 

[20]      In this court those legal principles were accepted in the matter of Shimuadi v Shirungu 1990 (3) SA 347 (SWA) where Levy, J held that:

 

‘It is trite that in order to eject a defendant from immovable property, a plaintiff need only allege that he is the owner and that the defendant is in occupation thereof. Should the defendant deny any one of these elements, namely that the plaintiff is the owner or that the defendant is in occupation, the onus is on the plaintiff to prove the truth of the element which is denied. The plaintiff would succeed in discharging the onus of proof in respect of ownership by providing registered tittle deeds in his favour. An inference that plaintiff is the owner would then justifiably be drawn. Should the defendant dispute the validity of the title deeds or that ownership, despite the deeds, is of a ‘nominal character’ (‘nominale aard’), as in the present case, the onus is on the defendant to prove this.’

 

[21]      For a defendant to successfully resist a rei vindicatio action, he must allege and prove some right to hold possession.  In Chetty v Naidoo[6] Jansen JA said :

 

‘It is inherent in the nature of ownership that possession of the res should normally be with the owner, and it follows that no other person may withhold it from the owner, unless he is vested with some right enforceable against the owner (e.g., a right of retention or a contractual right). The owner, in instituting a rei vindicatio, need, therefore, do no more than allege and prove that he is the owner and that the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner ...’

 

[22]      A suspensive condition is one which suspends the operation or effect of one, or some or all of the obligations under a contract until the condition is fulfilled[7]. Tebbutt J put it as follows in the matter of Absa Bank Ltd v Sweet and Others[8]:

 

-‘It is trite law that, in a contract which is made subject to a suspensive condition, the rights of the parties created by the contract remain in abeyance pending the fulfilment of the condition … There is, however, a binding agreement between the parties, which neither can renounce pending fulfilment of the condition ..:’

 

[23]      During the period before a suspensive condition is fulfilled neither party can demand performance of the suspensive condition[9]. If the condition is not fulfilled the contract is discharged with retrospective effect and the parties have to restore which they have performed.[10] If the condition is fulfilled the contract, or that part of it which was suspended is deemed as regards the mutual rights of the parties to have been in force from the date the agreement was signed and not from the date that that the conditions was fulfilled.

 

[24]      If there is no express or implied agreement on the time within which a suspensive condition is to be fulfilled, then the condition has to be fulfilled within a reasonable time. See the case of Lanificio Varam S.A. v Masurel Fils (Pty.) Ltd[11], where it was held that:

 

‘It is a rule of law that, where the parties have not expressly fixed the time for the performance of a contract, it must, unless the other terms of the contract indicate a contrary intention, be implied that performance should take place within a reasonable time... In my opinion the same rule applies to a condition in a contract requiring that some act should be performed in order that an obligation under the contract can come into existence. In the present case it is quite clear that the parties could not have intended that the attachment of an obligation in terms of this contract should be kept open indefinitely - say, for example for 10 years... It seems to me that performance of the condition within a reasonable time would be necessary in order to give the contract set out in the declaration efficacy as a business transaction.’

 

[25]      The question of what a reasonable period is, is a factual enquiry. In our law the fulfilment of a true suspensive condition must be pleaded and proved by the person who is relying on the contract.[12]

 

Are the defendants in occupation of the property without out good cause?

 

[26]      The facts which are not in dispute in this matter are the following. On 27 October 2007 the parties concluded an agreement in terms of which the plaintiff accepted an offer from the defendants for the latter to purchase the property. With the acceptance of the offer an agreement for the sale and purchase of the property came into being. The terms of the agreement were amongst other terms that:

 

(a)             The purchase price was agreed to be the amount of N$ 2 800 000, which had to be paid as follows N$ 1 1000 000 in cash and the balance of the purchase price had to be secured by a loan from an approved financial institution.

 

(b)             The plaintiff had to give occupation and possession of the property to the defendants on 01 January 2008 and from that date all benefits of risk and ownership would pass to the defendants.

 

(c)             The party who occupies the property prior to the property being registered in the names of the purchaser would pay occupational rent in the amount of N$ 10 000 per month.

 

[27]      It is also not disputed that the agreement contained two conditions generally termed in law as suspensive conditions namely that; the agreement was subject to the defendants obtaining work and residence permits and a loan for the balance of the purchase price. It is also not in dispute that the first condition, which is that the defendants had to obtain a work and residents permits was fulfilled.

 

[28]      It is also not in dispute that pursuant to the signing of the agreement the plaintiff gave occupation of the property during January 2008 to the defendants and the defendants paid a deposit of N$ 1 100 000 (also during January 2008) in respect of the purchase price and that the defendants had paid an amount of either N$ 448 413 or N$ 473 600 in respect of the occupational rent for the period 1 February 2008 to January 2010.

 

[29]      The plaintiff testified that at the beginning of February 2008 the defendant approached him and informed him that the plans he (defendant) had made to raise the loan of N$ 1, 7 million did not materialize and that he (defendant) could not obtain a loan of N$ 1, 7 million. He proceeded and testified that they then agreed to cancel the agreement, which they did, by drawing two parallel lines across the front page of the original agreement and placing their respective initials thereon. He proceeded to testify that he could not find the original agreement with these two parallel lines drawn across it, although he recall having given a copy of the cancelled agreement to his legal practitioners at some point.

 

[30]      After they cancelled the original agreement, they entered into an oral agreement in terms of which the plaintiff did not have to pay back to the defendant the N$ 1.1 million which was paid as a deposit; the first defendant had to continue to try and obtain a loan secured by a mortgage bond in the amount of N$ 1.7 million and that the loan had to be raised by mid-2008. The plaintiff proceeded to testify that, after a request by the defendant he extended the period within which the loan had to be raised by another six months and they agreed that the occupational rent would increase to N$ 20 850 per month.

 

[31]      By December 2009 the defendant had not yet obtained the loan. Because the defendant had not yet obtained a loan, he (the defendant) kept communicating by addressing electronic mails (on 16 December 2009, 14 February 2010, 16 March 2010 and on 18 March 2010) to him (the plaintiff) in which mails the defendant kept informing him that he had still not raised the loan.  He proceed and testified that the final straw was an email which defendant sent him on 8 April 2010, a translated copy of which was submitted into evidence as exhibit ‘G’ it amongst other things reads as follows:

 

‘The situation is as follows-I owe you lots and lots of money and FNB turned the application down and I now do not know which way. They said we must leave it for another year and then see but it is not something that I would like to do.

 

I know the last payment which I did was end January but at this stage our debtors are over N$ 56 000.00 and if I had it I would have been up to date …’

 

[32]      The plaintiff testified that by the time he received the electronic mail dated 8 April 2010 he was not prepared to give the defendant any further extensions or to allow any further delays.  As a result he consulted with a legal practitioner Mr Bennie Viljoen of Stephan F Kenny Legal Practitioners who addressed the letter of 14 April 2010 (exhibit ‘H’) I quoted the content of that letter above in paragraph 10] to the defendants. The plaintiff testified that in so far as exhibit ‘H’ referred to occupational interest in the amount of N$ 10 000 per month and to a breach of contract it was incorrect. He testified that according to advice that he received from his new legal practitioners of record the defendants had not–fulfilled the suspensive conditions.

 

[33]      It is not in dispute that after the defendant received exhibit ‘H’ he, on the same date, replied to that letter and denied that he was in breach of the agreement and also denied that he was remiss in applying for a loan. In his reply the defendant set out the factors which inhibited him from obtaining the loan contemplated in clause 2 of the agreement. The defendants furthermore instructed his erstwhile legal practitioners to address a letter to Stephan F Kenny Legal Practitioners in response to exhibit ‘H’. The defendant’s legal practitioners did so on 26 April 2010, in which letter they denied that the defendant was in breach of any term of the agreement, they also informed the plaintiff’s legal practitioners that the defendants are in the process of securing loan in the amount of N$1 700 000 and requested that the plaintiff wait for one month before he takes any legal action.

 

[34]      On 6 May 2010 the defendants’ erstwhile legal practitioners addressed another letter to the plaintiff’s erstwhile legal practitioners and informed them that that the defendants had a meeting with First National Bank of Namibia (the financial institution to which the defendants had applied for a loan) and are awaiting a response from the Bank.  The defendants, on 31 May 2010, (through their erstwhile legal practitioners) again informed the plaintiff (through his erstwhile legal practitioners) that they are still waiting for an answer on their application for a loan from First National Bank. On 15 June 2010 the plaintiff addressed an electronic mail to First National Bank in which mail he informed the Bank that the property was no longer on the market and no loans should be granted in respect of the acquisition of that property.

[35]      On 16 June 2010 the defendants’ erstwhile legal practitioners addressed a letter to the plaintiff’s erstwhile legal practitioners and informed them that the defendants have raised the loan and have the capital to pay the balance of the purchase price, they also raised concerns that the plaintiff, on 15 June 2010, addressed a later to the Bank informing the Bank not to approve a loan in respect of the property and demanded that the plaintiff withdraw that letter. It appears that the plaintiff at this stage changed legal practitioners and the ‘new’ legal practitioners who he had approached, on 18 June 2010, addressed a letter to the defendants’ erstwhile legal practitioners which letter amongst other things reads as follows:

‘We advise that we have now received instructions to act on behalf of Mr. Paul Viviers.

 

Our client has handed to us copies of the correspondence between our client, Mr. Bennie Viljoen and yourselves. We also had sight of the sale agreement signed between our respective clients.

 

Insofar as the agreement contains two suspensive conditions, our client urgently requires written proof that these conditions have been met as at date hereof. Our clients information is that your clients have not obtained the finance, nor approval of the necessary bond of not less than N$1 700 000,00 as required in clause 2 of the agreement nor have your clients obtained the required residence permits, despite more than a reasonable period having passed since the signing of the agreement.

 

If the above is the factual situation the agreement has lapsed and is no longer of any force and effect and our client will not proceed with the transfer of the property.’

 

[36]      The defendants, through their erstwhile legal practitioners, on the same date (i.e. 18 June 2010) addressed a letter to the plaintiff’s legal practitioners denying the contents of the plaintiff’s letter of 18 June 2010.  The plaintiff (through his legal practitioners) replied on 22 June 2010 enquiring which part of the letter of 18 June 2010 is denied and also stated that:

 

‘Your clients failure to provide the written proof as requested in our letter of the 18^th clearly indicates that the suspensive conditions contained in the original agreement have not been met and the agreement has lapsed and is void ab intitio.

 

Our instructions are that our client hereby gives your clients notice to vacate the property. Our client is not unreasonable and your clients are granted until 31 July 2010 to vacate the .property…’

 

[37]      The defendants, through their erstwhile legal practitioners, on the same date (i.e. 22 June 2010) replied to the plaintiff’s legal practitioners stating that the allegations which are denied are the allegations that the defendants were in breach of the agreement and that the agreement was void ab initio.  They further informed the plaintiff that a loan in the amount of N$1, 300 000 was approved by the First National Bank of Namibia (they attached a copy of an electronic mail dated 14 June 2010 from the Bank in which the defendants were informed that their loan had been approved and they also attached a copy of their passport pages which indicated that they have been granted work and residence permits).

[38]      In the light of the undisputed facts and the evidence which I have also set out in the preceding paragraphs it is clear that in some respects, the contract became operative at once, such as the defendants’ obligation to pay a deposit of N$ 1 100 000 (clause 1 (a)), and the defendants’ right to obtain occupation of the property (clause 3). It is furthermore clear that the more important consequences of the agreement (i.e. the transfer of the ownership of the property) were intended to become enforceable only after the contemplated loan was obtained. Looking at the contract as a whole, there can be little doubt that the major obligations of the parties, i.e. the obligation of the plaintiff to pass transfer, and the obligation of the defendants to pay the balance of the purchase price, were intended to remain unenforceable until such time as a loan was obtained. The event, upon the happening of which the coming into operation of the crucial/important obligations of the parties depended, was, in the first instance, the granting of a loan by an approved financial institution to the defendants. I am therefore satisfied that the defendants took occupation of the property in terms of an agreement.

[39]      The question which now flows from this conclusion is the question whether or not the event provided for in the suspensive condition occurred and if it occurred, did it occur within a reasonable time. Mr. Barnard, counsel for the plaintiff contended that the event provided for in the suspensive condition did not occur within a reasonable time. He argued that by February/March 2010 the defendants had not yet obtained a loan and the agreement had accordingly lapsed. Mr. Denk, counsel for the defendants, on the other hand, argued that, it was common cause that, by 18 June 2010, the defendants were in possession of a letter from a financial institution confirming the approval of a loan in the amount of N$1.3 million and that the defendants tendered to pay the difference of N$ 400 00 in cash. As such, so counsel for the defendants argued, the suspensive condition had been met as on 22 June 2010 and that the plaintiff should be held to such fulfilment due to his conduct in keeping the defendants under the impression that fulfilment of the suspensive condition would still be accepted as at 18 June 2010.

[40]        The plaintiff gave evidence that the written agreement dated 27 October 2007 was cancelled and replaced by an oral agreement. The defendants denied that the agreement of 27 October 2007 was cancelled as alleged by the plaintiff. I find the plaintiff’s allegation that the agreement of 27 October 2007 was cancelled as improbable. I say so for the following reasons, apart from the fact that the plaintiff’s allegation is not supported by the objective facts, when he, the plaintiff, approached the different legal practitioners (first, Stephan F Kenny Legal Practitioners, second W J Roux legal practitioners and thirdly Du Pisani Legal Practitioners) he instructed them all on the basis that there is written agreement between him and the defendants. His claim against the defendants is on the basis that the written agreement of 27 October 2007 (and not the alleged oral agreement of February 2008) between him and the defendants has lapsed because of the nonfulfillment of the suspensive conditions.

[41]        There is consensus between the parties that the agreement between them does not provide for a time frame within which the suspensive condition had to be fulfilled, they also agree that it had to be fulfilled within a reasonable time.  The law is clear that when a suspensive condition, remains unfulfilled after the lapse of a reasonable time for fulfilment, the contract is discharged automatically, by virtue of an implied term to that effect, unless there is ‘something in the contract negativing the implication of such a term’. In this matter the parties do concede that they agreed to extend the period with in which the suspensive condition had to be fulfilled on more than two occasions. In my view the plaintiff’s and the defendants’ agreement to extend the time within which the suspensive condition had to be fulfilled, is evidence of the existence of ‘something in the contract negativing the implication of the implied term that the suspensive condition must be fulfilled within a reasonable time. I am of the view that the suspensive condition had to be fulfilled within the extended period.

[42]      The evidence which is not disputed is that on 14 April 2010 the plaintiff erroneously put the defendants on terms. I say erroneously because the time period within which the suspensive condition had to be fulfilled could not be determined unilaterally by the plaintiff. The defendants replied seeking extension of time within which the suspensive condition had to be met, the plaintiff did not reply to the defendant’s request. In the matter  Collen v Rietfontein[13] it was held that where there is an unambiguous offer, failure to communicate may where the conduct of the one party amounts to an unequivocal indication to the other party of such acceptance constitute acceptance of the offer. In my view the plaintiff was under a clear duty to inform the defendants whether or not he agreed to the extension requested. A failure to do so can only be interpreted as an acceptance by acquiescence.

[43]        On 18 June 2010 the plaintiff sought proof (without stating the date by which the proof had to be submitted) that, as on 18 June 2010, the suspensive conditions have been met. This again creates the impression that the plaintiff had extended the period within which the suspensive condition had to be fulfilled to 18 June 2010. On 22 June 2010 the defendant addressed a letter to the plaintiff providing proof of the email dated 14 June 2010 he received from the Bank (FNB) informing him that a loan of N$ 1 300 000 was approved and that the N$ 400 000 has been secured in cash. The defendant also included, in the letter of 22 June 2010 prove of the approval of the work and residence permits. I am thus satisfied that the suspensive conditions were fulfilled within the time agreed to by the parties and the contract, or that part of it which was suspended is deemed as regards the mutual rights of the parties to have been in force from the date the agreement was signed.

[44]        Having found that the suspensive conditions were fulfilled within the time agreed to by the parties, and that the agreement is in force, it follows that the plaintiff’s claims must fail and I find it unnecessary to deal with the other questions raised. The plaintiff is thus under an obligation to pass transfer of the property into the names of the defendants against payment of the balance of the purchase price.

Costs

[45]      There is no reason why costs should not follow the result.  The plaintiff must therefore be ordered to pay the costs of the defendants in this court on the basis of one instructing and one instructed counsel.

Order

[46]      I accordingly make the following order:

1       The plaintiff, Mr. Paul Viviers, must against security for the payment of the balance of the purchase price in the amount of N$ 1 700 000, sign all the documents necessary to pass transfer of ownership of the immovable property situated at No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek, Namibia into the defendants’ names (Mr. John Barrington Ireland and Anthea Vanessa Ireland).

2       If the plaintiff fails to sign the documents by no later than 14 days from the date this judgment is delivered, then and in that event, the Deputy Sherriff for the District of Windhoek is authorized to, against security for the payment of the balance of the purchase price in the amount of N$ 1 700 000, sign all the documents necessary to pass transfer of ownership of the immovable property situated at No. 16 Mosѐ Tjitendero Street, Olympia, Windhoek, Namibia from the plaintiff, Mr. Paul Viviers, into the defendants’ names (Mr. John Barrington Ireland and Anthea Vanessa Ireland).

3       The plaintiff must pay the defendants’ costs of suit, such cost to include the cost of one instructing and one instructed counsel.

SFI Ueitele

Judge

APPEARANCES:

PLAINTIFF: P. Barnard

Instructed by Du Pisani Legal Practitioners, Windhoek

DEFENDANT: A Denk.

Instructed by Chris Brandt Attorneys, Windhoek

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