REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

	Case no: A 38/2014
Case no: A 91/2015

In the matter between:

ALWYN PETRUS VAN STRATEN NO	APPLICANT

And

DESERT FRUIT (PTY) LTD	1ST RESPONDENT
DESERTKOM (PTY) LTD	2ND RESPONDENT
AGRICULTURAL BANK OF NAMIBIA LIMITED	3RD RESPONDENT
ARUBA FRUIT EXPORTERS (NAMIBIA) (PTY) LTD	4TH RESPONDENT
AL DAHRA AGRICULTURAL COMPANY	5TH RESPONDENT
THE REGISTRAR OF DEEDS	6TH RESPONDENT
INDUSTRIAL DEVELOPMENT CORPORATION
OF SOUTH AFRICA	7TH RESPONDENT
FRANCOIS ERASMUS & PARTNERS	8TH RESPONDENT

Neutral citation:	Van Straten NO v Desert Fruit (Pty) Ltd (A 38-2014 and A 91-2015) [2016] NAHCMD 224 (28 July 2016)

Coram:	PARKER AJ
Heard:	19 May 2016; 1 July 2016
Delivered:	28 July 2016

Flynote:	Practice – Applications and motions – Dispute of fact – When material disputes which have arisen are such as would give rise to a variety wide spectrum of substantial factual enquiries motion proceedings not appropriate – More appropriate to order parties to trial – Where affidavits contain all necessary averments and define the issues sufficiently clearly pointless to order filing of pleadings – Accordingly, to save time and expense advisable to order affidavits to stand as pleadings which have closed. Principles in Hadiaris v Freeman and Freeman 1948 (3) SA 720 (W) applied.

Summary:	Applications and motions – Dispute of fact – Court finding that genuine and material dispute of fact exist on significant aspects of case – The dispute revolves around the existence or otherwise of a so-called ‘oral or tacit lease agreement’ which is relevant to three applications instituted by first and second respondents – Synthetic approach proposed by Christie, The Law of Contract in South Africa, 5th ed, p 82 to establish proof of tacit agreement cannot be applied in motion proceedings – Court found there are good reasons why proceedings for rectification of the ‘oral or tacit lease agreement should be by action and not by application – Court found that the affidavits contain all necessary averments and define the issues sufficiently clearly – Consequently, pointless to order filing of pleadings – To save time and expense advisable to order affidavits to stand as pleadings which have closed.

ORDER

(a)	The relief sought in para 1 of the notice of motion is refused.

(b)	The applications by Desert Fruit (Pty) Ltd (first applicant) and Desertkom (Pty) Ltd (second applicant) under Case No. A 91/2015 and under Case No. 38/2014, together with its application for amendment filed under Case No. 38/2014, are referred to trial; and the notice of motion, answering affidavit and replying affidavits in each application are to stand as combined summons, pleas and replication, respectively, in the particular case.

(c)	Desert Fruit (Pty) Ltd and Desertkom (Pty) Ltd (first and second respondents in the instant proceeding) are ordered, jointly and severally (the one paying, the other to be absolved), to pay costs of applicant Alwyn Petrus Van Straten NO.

(d)	The legal practitioners of the parties are to attend a status hearing before Miller AJ at 15h30 on 11 August 2016 for Miller AJ to determine the further conduct of the matter.

JUDGMENT

PARKER AJ:

[1]	There are three applications relevant to the present application in the instant proceedings, which is under Case No. A 38/2014; Case No. A 91/2015. In the notice of motion the applicant prays for dismissal of one of the applications, ie the rectification application (Case No. 91/2015), and in the alternative, referral of the matter to trial and in the further alternative, referral of certain issues to evidence. The particulars of that application (Case No. A 38/2014; No. A 91/2015) are these:

A.

(a)	Case No.: A 38/2014; A 91/2015 (‘dismissal or referral application’)

(b)	Parties:

Applicant:
1.	Alwyn Petrus Van Straten NO

Respondents:
1.	Desert Fruit (Pty) Ltd
2.	Desertkom (Pty) Ltd
3.	Agricultural Bank of Namibia
4.	Aruba Fruit Exporters
5.	Al Dahra Agricultural Company
6.	The Registrar of Deeds
7.	Industrial Development Corporations SA Ltd
8.	Francois Erasmus & Partners

(c)	Date of filing: 3 November 2015

(d)	Relief sought:

1.	That the first and second respondents’ application for rectification in case number A 91/2015 be dismissed with costs, including the costs of one instructing and two instructed counsel (as the first and second respondent knew that material factual disputes existed, to the extent that the motion proceedings should not have been instituted).

2.	Alternatively that (as amended):

2.1	the first and second respondents’ application under case number A 91/2015 for rectification of the alleged lease agreement which forms the subject matter of their main application, and application for amendment under case number A 38/2014 be referred to trial.

2.2	the first and second respondents’ main application together with its application for amendment filed under case number A 38/2014 be referred to trial.

	3.	Alternatively, to 2.1 and 2.2 above that the following issues in the above-mentioned cases, be referred for oral evidence:

3.1	Whether or not the lease agreement, alluded to in paragraph 19 of the First and Second Respondents’ founding affidavit in the main application was entered into, as alleged, or at all.

3.2	Whether or not Mr Van der Walt and/or the First Applicant has any authority to institute either the main application and/or the application for rectification and/or the application for leave to demand.

3.3	Whether or not the meetings allegedly held on 27 May 2014 and 13 April 2015 were in fact held and/or attended by either Mr Van der Walt and/or Jaco Burger and/or Zeyn Bhyat.

3.4	The question as to exactly when the lease agreement, oral or otherwise, was entered into and what the terms of such agreement were.

3.5	How the amount of the tender made for the period 20 July 2012 to 28 February 2014 was calculated and compounded.

3.6	Whether or not any rent was paid and why, if paid or set-off, it was never reflected in the second respondent’s financial statements.

3.7	The basis for the claim for alleged expenses (alluded to in annexure “VDW 5” in the main application) and why bit is not reflected in the second respondent’s financial statements.

3.8	Whether or not the first and second respondents are acting in fraudem creditorem.

3.9	Whether any lease agreement was in existence (ie the property was identified) prior to Komsberg’s liquidation.

3.10	The exact manner in which the alleged lease property was identified and by whom.

4.	Costs of the application.

5.	Such further and/or alternative relief as this Court may deem fit.

B.

(a)	Case No.: A 38/2014 (‘main application’)

(b)	Parties:

Applicants:
1.	Desert Fruit (Pty) Ltd
2.	Desertkom (Pty) Ltd

Respondents:
1.	Alwyn Petrus Van Straten NO
2.	Agricultural Bank of Namibia
3.	Komsberg Agri Operations (Pty) Ltd
4.	Al Dahra Agricultural Company
5.	The Registrar of Deeds
6.	Industrial Development Corporations SA Ltd
7.	Francois Erasmus & Partners

(c)	Date filed: 27 February 2014

(d)	Relief sought:

1.	The settlement area of Komsberg, Registration Division “V”, Karas Region, held by deed of Transfer No. T3166/2002.

2.	That the first respondent be directed to sign all documents and do all things necessary to give effect to:

(a)	the notarial execution of annexure “VDW 4” to the founding affidavit; and

(b)	the registration of the aforesaid notarial agreement (as set out and registered in paragraph 2(a) above) against the title deed of Portion 1 of Portion 5 of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T3166/2002

within 30 days from the date of the order of this Honourable Court, failing which, that the Deputy Sheriff for the district of Windhoek be authorised to take such steps and do such things in the first respondent’s stead.

3.	That the first respondent be ordered to pay the costs of this application, which costs include the costs occasioned by the appointment of one instructing and two instructed counsel.

4.	Granting the applicant such further or alternative relief as this Honourable Court may deem meet.

C.

(a)	Case No.: A 91/2015 (rectification application)

(b)	Parties:

Applicants:
1.	Desert Fruit (Pty) Ltd
2.	Desertkom (Pty) Ltd

Respondents:
1.	Alwyn Petrus Van Straten NO
2.	Agricultural Bank of Namibia
3.	Komsberg Agri Operations (Pty) Ltd
4.	Al Dahra Agricultural Company
5.	The Registrar of Deeds
6.	Industrial Development Corporations SA Ltd
7.	Francois Erasmus & Partners

(c)	Date of filing: 27 April 2015

(d)	Relief sought:

1.	That the written agreement, annexure “A” hereto, be rectified by the substitution of the words

“a 173-hectare portion of remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996.”

for the words

“Portion 1 of the Portion 5 of the remainder of Farm Stolzenfels No. 74. In the Settlement area of Komsberg. Registration Division “V”, Karas Region. Extent approximately 80,0000 (Eight Nil comma Nil Nil Nil Nil) hectares as indicated on Diagram SG No. A    /2012 hereunto annexed. Held by Deed of Transfer No. T3166/2002.”

wherever the latter words appear.

2.	Costs of the application (only in the event of same being opposed).

3.	Further or alternative relief.

D.

(a)	Case No.: A 38/2014 (‘amendment application’)

(b)	Parties:

Applicants:
1.	Desert Fruit (Pty) Ltd
2.	Desertkom (Pty) Ltd

Respondents:
1.	Alwyn Petrus Van Straten NO
2.	Agricultural Bank of Namibia
3.	Komsberg Agri Operations (Pty) Ltd
4.	Al Dahra Agricultural Company
5.	The Registrar of Deeds
6.	Industrial Development Corporations SA Ltd
7.	Francois Erasmus & Partners

(c)	Date filed: 12 June 2015

(d)	Relief sought:

1.	Substituting the reference to:

“Portion 1 and Portion 5 of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T3166/2002.”

where that reference appears in prayers 1 and 2(b) of the Notice of Motion dated 27 February 2014, by a reference to the following:

“the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996.”

2.	By inserting the following as prayer 3 immediately after prayers 1 and 2 as amended:

“In the alternative to prayers 1 and 2 above, declaring that a lease agreement exists between the second applicant and Komsberg Farming (Pty) Ltd (in liquidation) in respect of a 173-hectare portion of the remainder of Farm Stolzenfels No. 74 in the settlement area of Komsberg, Registration Division “V”, Karas Region, held by Deed of Transfer No. T6425/1996 and enduring for a period of 10 years with effect as from 1 June 2011 and otherwise on the terms as set out in annexure “VDW 4” as aforesaid.”

3.	By renumbering the existing paragraphs 3 and 4 to paragraphs 4 and 5 respectively.

[2]	The applicant in the instant proceeding (dismissal or referral application) is Mr Alwyn Petrus Van Straten NO, ie first respondent in the three applications, namely, the main application, rectification application, and amendment application. The first and second applicants in those three applications are the first and second respondents in the dismissal or referral application. For the sake of clarity, I shall refer to the parties by their names, where the context permits.

[3]	In the main application, Van Straten NO has moved to reject the application, and has instituted a counter claim of his own wherein he applies for the eviction of Desert Fruit and all its employees from Komsberg’s properties. They are the properties of Komsberg Agri Operations (Pty) Ltd (‘Komsberg’ for short), ie the third respondent in the main application. It is worth noting here that Komsberg is in liquidation; and initially, a Mr David John Bruni and a Mr Ian McLaren of Investment Trust Co (Pty) were appointed as provisional liquidators. At the first meeting of creditors, applicant was then elected liquidator and appointed as such by the Master of the High Court. Thus, Van Straten brings the application in his official capacity as liquidator. I shall return to this fact in due course.

[4]	Desert Fruit (Pty) Ltd (‘Desert Fruit’ for short) and Desertkom (Pty) Ltd (‘Desertkom’ for short) have moved to reject the present application. As I understand Mr Barnard, counsel for seventh respondent, makes common cause with applicant Van Straten NO in the present application; and so, counsel joins Mr Heathcote SC (with him Mr Schickerling), counsel for the applicant Van Straten NO, in the latter’s submissions. Thus, seventh respondent, for all intends and purposes supports the relief sought in the notice of motion.

[5]	For the sake of clarity, I note as follows. The relief sought by the applicant Van Straten NO (in para 1 of the notice of motion) is dismissal of the rectification application (‘dismissal relief’). There is the alternative relief to the dismissal relief in para 2.1 of the notice of motion (‘first alternative relief’) that the rectification application be referred to trial. There is also the alternative relief in para 2.2 of the notice of motion to the dismissal relief (‘second alternative relief’) that the main application, together with the amendment application in respect thereof, be referred to trial. There is yet a further alternative relief (‘third alternative relief’) to first alternative relief and to second alternative relief that the issues listed in paras 3.1 – 3.10 of the notice of motion be referred for oral evidence.

[6]	It follows, as a matter of course that the burden of this court in the present proceedings is first and foremost to consider the dismissal relief. I shall only proceed to consider the first alternative relief and the second alternative relief, if I refused the dismissal relief. And by a parity of reasoning and in that fashion, I shall only consider the third alternative relief if I refused the first alternative relief and the second alternative relief. I now proceed to consider the dismissal relief.

Dismissal relief

[7]	In considering the dismissal relief I should keep in my mind’s eye the following principles. In Mineworkers Union of Namibia v Rössing Uranium Limited 1991 NR 299, at 302D; the court, per Levy J, stated:

‘A principle which is fundamental to all notice of motion proceedings is that if a litigant knows in advance that there will be a material dispute of fact, the litigant cannot go by way of motion and affidavit. If he nevertheless proceeds by way of motion he runs the risk of having his case dismissed with costs.’

[8]	It has also been said, ‘The application may be dismissed with costs when the applicant should have realised when launching the application that a serious dispute of fact was bound to develop’. (Herbstein and Van Winsen; The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th ed, p 460; and the cases there cited)

[9]	The question that arises for determination in respect of the dismissal relief is whether on the papers Desert Fruit and Desertkom knew ‘in advance that there will be a material dispute of fact’ (in the language of Levy J in Mineworkers Union of Namibia), or that Desert Fruit and Desertkom ‘should have realised when launching the application that a serious dispute of fact was bound to develop’ (in the language of Herbstein and Van Winsen).

[10]	The bone and narrow of Mr Heathcote’s argument on the dismissal relief is that a claim for rectification must be made by action. Mr Heathcote refers the court to a number of authorities in support of his argument, including Hadiaris v Freeman and Freeman 1948 (3) SA 720 (W); and Fourie’s Poultry Farm v Kwanatal Food Distributors 1991 (4) SA 514. In Fourie’s Poultry Farm, a counsel there submitted to the court that, in his view, the principle is perhaps most crisply stated in Hadiaris. That is also my view, as I demonstrate.

[11]	Having consulted the authorities, I accept Hadiaris as good law; not least because there, Price J reviews the authorities; he also discusses the raison d’être of the proposition of law enunciated. I accept the ratiocination of the law and conclusions thereanent; and so I apply Hadiaris.

[12]	Indeed, the nature of some of the material facts in Hadiaris bear significant similarities in essence with some key facts in the instant matter. For instance, as Mr Heathcote submitted, it should be remembered that Van Straten NO is a liquidator who only came upon the scene after the so-called ‘oral or tacit lease agreement’ (the target of the rectification application) had allegedly been concluded.

[13]	Like the respondents in Hadiaris, the applicant Van Straten NO has no knowledge of what transpired between the parties to the so-called ‘oral or tacit lease agreement’; and so, all that he can say is that he does not know what led to, and how the parties entered into, the so-called ‘oral or tacit lease agreement with effect from 1 June 2011’, and that he does not admit the allegations concerning the ‘oral or tacit lease agreement’ in the founding affidavit. Thus, the only available evidence would be that presented by Mr Johannes Hendrik van der Walt (who describes himself as ‘Director’ of Desert Fruit).

[14]	If Van Straten NO was ‘obliged to submit to proceedings of this kind’, Van Straten NO ‘will be in the hands’ of Desert Fruit and Desertkom. They ‘would be the only persons who had any evidence and Van Straten NO could not subject Desert Fruit and Desertkom to cross-examination and test the truth of their allegations in motion proceedings with regard to the transactions of the parties as respects the ‘oral or tacit lease agreement’.

[15]	And, indeed, seventh respondent stands in the same boat as the applicant Van Straten NO. And I accept Mr Barnard’s submission that there is no written agreement placed before the court for the court to consider rectifying. And what is more, like the respondents in Hadiaris v Freeman and Freeman the applicant Van Straten NO in the instant proceedings, as Mr Barnard submitted, the seventh respondent IDC does not have facts of its own. IDC relies on facts produced by the parties to the dispute, that is, Desert Fruit and Desertkom. But these parties do not establish the consensus that existed between the parties to the so-called oral or tacit lease agreement. For instance, Van der Walt (deponent of the founding affidavit) refers to a diagram which he prepared and a diagram which a Surveyor (Mr De Wet) prepared, but it is not sufficiently clear on the papers in both the main application and the rectification application the exact size of the portion of land leased at the time the so-called ‘oral or tacit lease agreement’ was concluded. Then, in the amendment application, reliance is also placed on an oral agreement wherein there is a period of 10 years as duration of the agreement.

[16]	All these amount to material genuine dispute of fact. And in all this, it should be remembered, the ‘absence of any positive evidence possessed by a respondent directly contradicting the applicant’s main allegation does not render the matter free of a real dispute of fact’. (H J Erasmus, et al, Superior Court Practice, p B1-47)

[17]	And what is more; like the applicant Van Straten NO, if the seventh respondent IDC was ‘obliged to submit to proceedings of this kind (ie motion proceedings)’, IDC ‘will be in the hands of’ Desert Fruit and Desertkom. They ‘would be the only persons who had any evidence’ and IDC could not subject Desert Fruit and Desertkom to cross-examination in motion proceedings in order to test the truth of their allegations with regard to matters concerning the conclusion of the so-called ‘oral or tacit lease agreement’ which is absolutely critical in this proceeding.

[18]	In this regard, it has been said: ‘Where the respondent in his or her answering affidavit states that he or she can lead no evidence to dispute the truth of the applicant’s statements and puts the applicant to the proof thereof, the cross-examination of witnesses may properly be ordered in terms of the subrule’. H J Erasmus, et al, Superior Court Practice, ibid, p B1-47)

[19]	‘All these safeguards (ie cross-examination of such applicants to test the truth of their allegations’, so said Price J, ‘can be employed in an action, but none of them can be employed in an application’. (Hadiaris at 726)

[20]	For such reasons, Price J tells us in peroration categorically thus in Hadiaris, at 724:

‘There is no doubt that a claim for rectification must be made by action. This has always been the position in England, and 23 Hailsham, 233, and In re Malet (54 English Reports, 947) make it clear that such a claim can only be made by action, and not by petition. Story, Equity Jurisprudence, 7th ed, Vol I, sec 154(b), is to the same effect. Mr Pollak says that this has always been our law, and he asks accordingly that the petition should be dismissed with costs, because the procedure adopted is wrong.’

[21]	 The aforegoing propositions of the law and the reasoning in Fourie’s Poultry Farm v Kwanatal are equally forceful, as Mr Heathcote submitted, and I accept them. There, Page J stated at 527:

‘The rule that rectification should be sought by way of action is a rule of practice grounded upon common sense. Christie The Law of Contract in South Africa at 330 quotes the following passage from Bardopoulos and Macrides v Miltiadous 1947 (4) SA 860 (W) at 863-4:

‘A party seeking to obtain rectification must show the facts entitling him to obtain that relief “in the clearest and most satisfactory manner” – see Bushby v Guardian Assurance Co 1915 WLD 65 at 71, and as is pointed out in Taylor v Cape Importers 1938 CPD 362 at 368, where the common intention is to be shown not by any writing but by verbal evidence, the Courts may have great difficulty in determining whether there was a mistake in the written contract. These cases do not, I consider, require more than a balance of probability in favour of the party seeking rectification, but indicate that such a claim is in fact difficult to prove.’

The learned author then continues:

‘For these reasons, rectification must be claimed by action and not by petition, although no doubt in a case turning entirely on the interpretation of documentary evidence, notice of motion or (in an urgent case) petition might be appropriate’.’

[22]	What is Desert Fruit’s and Desertkom’s response to this. That the prayer for dismissal of the ratification is premature. And, I did not hear Mr Tötemeyer’s disparage or denounce the force of the aforementioned authorities. What I heard him say, which largely is a rehearsal of the ‘premature’ contention of Desert Fruit and Desertkom, is that the court cannot dismiss the application when the merits have not been argued. Mr Tötemeyer may have a point in that regard. I shall return to this in due course. Be that as it may, Desert Fruit and Desertkom cannot claim rectification of the so-called ‘oral or tacit lease agreement’ by motion proceedings: they can claim rectification by action. That is what the authorities say.

[23]	I respectfully reject Mr Tötemeyer’s submission that the dispute of fact are irrelevant or immaterial to the relief sought by Desert Fruit and Desertkom. There is a dispute about the existence of the ‘oral or tacit lease agreement’, and about the date when such agreement was entered into. As a matter of law and common human experience, the date on which an agreement takes effect and the date on which the agreement was entered into are not one and the same thing. But in the instant case, we have the date on which the agreement takes effect only. Besides, the parties who concluded the agreement are not sure what kind of agreement they entered into. They say, on the one hand, it is an ‘oral’ agreement. If that is the case, it would not be easy for the court in motion proceedings to determine with some certainty and clarity what Desert Fruit and Desertkom now desire to rectify. If, on the other hand, it is a tacit lease agreement, then the method of proof will be by inference from the conduct of the parties. (R H Christie, The Law of Contract in South Africa, 5th ed, p 82) Christie, at pp 83 – 84, writes that courts are in some difficulty as to what test to apply in determining the existence and terms of a tacit agreement; is it the ‘no other reasonable interpretation test’ or the ‘preponderance of probabilities test’. The learned author opines, at p 83, ‘But it is suggested that it is not necessary to abandon either test entirely, it is possible, and desirable, to achieve a synthesis which incorporates the best of both tests.’

[24]	Doubtless, in the circumstances, it will be extremely difficult to apply a synthesis of both tests in motion proceedings. It is, therefore, with firm confidence that I hold that all these are good reasons why proceedings for rectification of the ‘oral or tacit lease agreement’ should be by action and not by application. (See Hadrias, at 726.) And it should be remembered, as I have found previously, that there is no written agreement placed before the court. Indeed, when material disputes which have arisen are such as would give rise to a variety of and a wide spectrum of substantial factual enquiries motion proceedings are not appropriate.

[25]	I have accepted as good law the principles enunciated by the aforementioned authorities, I hold that the rectification cannot be claimed by application; it should be claimed by action. I am aware that it does not necessarily follow that such application will always be dismissed with costs; and that there may be circumstances present which will persuade a court to order the parties to go to trial …’ (See Erasmus, ibid, p B1-49.)

[26]	In the instant proceedings, as I have indicated in para 1, there are three applications relevant to the instant application, and they are pending. A dismissal of the rectification application may have an immediate effect on the main application and the amendment application in the instant proceedings, at least; while if the first alternative relief (in para 2.1 of the notice of motion) and the second alternative relief (in para 2.2 of the notice of motion) were granted, it will bring the disposal of all three applications in sight. These are significant circumstances which have persuaded this court not to grant the dismissal relief but to order the parties to trial. (See Erasmus, ibid, p B1-49, referred to in para [25].)

[27]	Consequently, I decline to grant the relief sought in para 1 of the notice of motion. I am rather inclined to grant the relief sought in para 2.1 and 2.2 of the notice of motion. That being the case, I should not, as intimated earlier, consider the third alternative relief in the notice of motion.

[28]	Based on these reasons, the application fails in part and succeeds in part to the extent set out in this order; whereupon, I make the following order:

(a)	The relief sought in para 1 of the notice of motion is refused.

(b)	The applications by Desert Fruit (Pty) Ltd (first applicant) and Desertkom (Pty) Ltd (second applicant) under Case No. A 91/2015 and under Case No. 38/2014, together with its application for amendment filed under Case No. 38/2014, are referred to trial; and the notice of motion, answering affidavit and replying affidavits in each application are to stand as combined summons, pleas and replication, respectively, in the particular case.

(c)	Desert Fruit (Pty) Ltd and Desertkom (Pty) Ltd (first and second respondents in the instant proceeding) are ordered, jointly and severally (the one paying, the other to be absolved), to pay costs of applicant Alwyn Petrus Van Straten NO.

(d)	The legal practitioners of the parties are to attend a status hearing before Miller AJ at 15h30 on 11 August 2016, for Miller AJ to determine the further conduct of the matter. 

----------------------------
C Parker
Acting Judge

APPEARANCES

APPLICANT:		R Heathcote SC (assisted by J Schickerling)
Instructed by Ellis Shilengudwa Inc., Windhoek

FIRST AND SECOND
RESPONDENTS:		R Tötemeyer SC (assisted by C E Van der Westhuizen)
Instructed by Van der Merwe-Greeff-Andima Inc., Windhoek

SEVENTH
RESPONDENT:		P Barnard
Instructed by ENSafrica (Namibia), Windhoek