CASE NO. I 1690/2010
IN THE HIGH COURT OF NAMIBIA
In the matter between:

JEREMIA LUKAS MUADINOHAMBA				PLAINTIFF/RESPONDENT
and

THE CHIEF EXECUTIVE OFFICER OF				

THE MINISTER OF REGIONAL AND LOCAL
GOVERNMENT, HOUSING AND RURAL 

HEARD ON: 			2011.02.14 
DELIVERED ON:  		2011.02.15

failing which

the deputy sheriff for the district of Katima Mulilo is authorised to sign such deed of sale on the defendant's behalf.

failing which

the deputy sheriff for the district Katima Mulilo be authorised to take such steps and to sign the necessary documents on the defendant S behalf;

together with ancillary relief.

[2]     In support of such relief the Plaintiff alleges that :

(N$50) per square metre.

A copy of the resolution is annexed hereto and marked A.

(d)	The Plaintiff has duly tendered payment of the immovable property to the Defendants and have in turn demanded that the relevant Deeds of Sale be signed as is required for the sale of a movable property and that ownership of the immovable property be transferred to the Plaintiff and herewith once again tender such payment.
(e)	Despite demand as aforesaid Defendants fail and to refuse and to neglect to

Wherefore.... "

[3] The Defendants have now excepted to the Plaintiff's Particulars of Claim alleging that such particulars lack averments necessary to sustain a cause of action.

[4]     More particularly they allege that :

a) "In terms of Section 1(1) of the Formalities in Respect of Contracts of Sale of Land Act 71 of 1969 no contract of sale of land or any interest in land, (other than a lease, mynpacht or mining claim or stand) shall be of any force or effect if concluded after the commencement of this Act unless it is reduced to writing and signed by the parties thereto or by their agents acting on their written authority.

Wherefore the Defendants/Excipients pray for the following orders

Wherefore the Plaintiff prays for the exception to be dismissed with costs."

"(The excipient) must satisfy the Court that, on all reasonable constructions of the Plaintiff's Particulars of Claim, as amplified and amended, and on all possible evidence that may be led on the pleadings, ... (that) no cause of action is or can be disclosed."

[8] I shall now turn to consider the merits of this exception in line with this approach.

[10] It is also common cause that no such deeds of sale in respect of Erven 440 to 444 and Erf 335 Katima Mulilo have been reduced to writing, thus the Plaintiff's claim for an order directing the Defendants to sign the respective deeds of sale.

[11]   This claim is based on the allegations already quoted above.

[12] Counsel were also in agreement that the relief sought in paragraph 2 of the Particulars of Claim would also not be competent unless the Court would first grant an order in terms of prayer 1.

[14] From such claim particulars it appears that the Plaintiff applied to purchase the erven in question during January 2009.

[16] It would appear therefore that, essentially, the Plaintiff made an offer by way of application and the Defendant, by way of resolution, indicated some form of acceptance. Such resolution, was purportedly annexed.

[17] I pause to state that the relied upon Annexure A, (the said resolution), was incomplete, in that it only contains two pages and that such annexure does not bear out the allegations set out more specifically in paragraph 6 of the Particulars of Claim.

[19] Residually implied in such agreement would obviously also be that such deeds of sale would ultimately have to comply with the requirements set by the statute.
[20] It appears therefore on an analysis of the Plaintiff's pleading that Plaintiff here basis his cause of action upon a separate agreement.

"the offer is the first step in the contract making process. The next step being the acceptance of the offer. Both the offer and acceptance thereof must comply with the formalities pertaining to that transaction, for instance it must be in writing in the case of sale of land. These considerations surely do not apply to the so called legal relationship preparatory to sale which is concluded prior to the making of any formal offer and the formal acceptance thereof which must comply with the requirements of the statute in order to obtain validity."
[25] The reason for this is simply that this so called 'preparatory contract' is not a contract for the sale of land, nor does it amount to an offer to buy land and the acceptance of such offer, both of which would have to be in writing, in order to constitute a valid Deed of Sale, in respect of immovable property.

[29] It follows therefore that the Plaintiff's Particulars of Claim, as they stand at present, disclose a valid cause of action,

[31] As this issue would have constituted another and altogether separate enquiry, and as compliance or non- compliance with the said Section 31(1)(t) of the Local Authorities Act, may have an impact on the further conduct of these proceedings, I hereby direct the parties attention to that aspect.

[33] In the result, and only in deciding those issues which were squarely raised before this Court, I conclude that the exception is bad and falls to be dismissed with costs.

GEIER, AJ:

Instructed by: