NOT REPORTABLE
								CASE NO: I 1509/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between:
SAAMSPAN FARMING CC						PLAINTIFF
and
MARLIZE WEAKLY							DEFENDANT
CORAM:								HOFF, J

JUDGMENT
Exception

[2] This Court dismissed the exception on 14 October 2010 indicating that reasons would be provided in due course. These are the reasons.
[3] The parties concluded a written agreement of sale of land for the purchase price of N$120.000.00.
The parties agreed that the purchase price of the property amounted to 30 cows with calves which had to be delivered within 90 days.
The parties subsequently amended the agreement of sale pertaining to the purchase price and agreed orally that the defendant shall pay to the plaintiff the sum of N$120.000.00 together with the delivery of six young breeding cows/heifers in good condition.

"... that the terms of the agreement constitutes the whole agreement between the seller and the purchaser and that no variation, alteration, modification or suspension of any of the terms of this agreement of sale shall be of any force or effect unless committed to writing and signed by the seller and the purchaser."

[5]     It is common cause that the amended agreement was an oral agreement.

[7] It was submitted on behalf of the defendant by Ms Angula that it is now settled law that if a written contract provides that any variation of its terms should be in writing, the parties will be bound to such a provision and any purported variation which is not in writing will be void.

[10] It was further contended on behalf of the defendant that in terms of section 1 of the Formalities in Respect of Contracts of Sale of Land no contract of sale of land shall be of any force or effect if concluded after the commencement of that Act (Act 71 of 1969) unless it is reduced to writing and signed by the parties thereto or by their agents acting on their authority.

[11] The plaintiff pleaded in its particulars of claim that plaintiff duly complied with its obligations by effecting delivery and transfer of the immovable property to the defendant. This must be taken to be true. The dispute was the exact amount to be paid. It furthermore must be accepted that the amount of N$120.000.00 was paid since plaintiff sues for specific performance in terms of the agreement namely the delivery of 6 young breeding cows/heifers in good condition, alternatively for payment of the sum of N$36.000.00 being the value of 6 young breeding cows/heifers in good condition.

[12]   Paragraph 5 of plaintiff's amended particulars of claim reads as follows:

"A dispute arose between the plaintiff and the defendant as to the purchase price to be paid in terms of the written agreement of sale aforesaid, whereafter on 28 June 2007 the plaintiff - represented by Mr Mathiam Hoffmann - and the defendant - represented by Mr Poenie Weakly - entered into an oral agreement in terms of which the dispute between the plaintiff and the defendant concerning the purchase price was settled on the basis that the defendant shall pay to the plaintiff the sum of N$120.000.00 together with the delivery of 6 young breeding cows/heifers in good condition."

[13] In a letter dated 28 June 2007 (and marked "C") the legal representatives of the plaintiff stated inter alia the following:

"We confirm that the matter has been settled as follows:

and

registration.

Over and above the 6 (six) cows and the N$120.000.00, the parties shall have no further claims against each other."

"We confirm that you informed writer hereof that the final purchase price is N$120.000.00 plus 6 head of cattle.

We will contact you immediately after date of transfer to make the necessary arrangements for the delivery of 6 head of cattle.

We further confirm that as date hereof no party shall present or in future have any further claim(s) the other in respect of the property subject to their respective rights as per the deed of transfer and that Fisher, Quarmby & Pfeifer will ensure to effect transfer of the property to our client immediately."

[20] A compromise, being a contract must thus reflect that there was consensus between the parties.

"It is well settled that the agreement of compromise, also known as transaction, is an agreement between the parties to an obligation, the terms of which are in dispute, or between parties to a lawsuit, the issue of which is uncertain, settling the matter in dispute, each party receding from his previous position and conceding something, either by dismissing his claim or by increasing his liability-"

A:

[24] It was submitted by Mr Corbett that in the present case no such right was reserved by anyone of the litigants.

"As it brings legal proceedings already instituted to an end, a party sued on a compromise is not entitled to raise defences to the original cause of action."

and at 139 c

"Unlike novation, a compromise is binding on the parties even though the original contract was invalid or even illegal."

[26] In Hamilton v Van Zyl 1983 (4) SA 379 ECD at 383 G - H it was held that not only can the original cause of action no longer be relied upon, but a defendant is not entitled to go behind the compromise and raise defences to the original cause of action when sued on the compromise.

[27] It appears from the aforesaid that a valid compromise had been concluded between the plaintiff and the defendant and as a result the non-variation clause (in the absence of any suggestion that the right to rely thereon was reserved) is of no force or effect.

[28] Plaintiff's particulars of claim do disclose a cause of action and in the circumstances the exception cannot be upheld.

HOFF, J

Instructed by:						LORENTZ ANGULA INC.