REPORTABLE 
CASE NO: A 428/2009
IN THE HIGH COURT OF NAMIBIA

In the matter between:

SWAKOPMUND

And

Delivered on:        	15 March 2011

JUDGMENT

UEITELE, AJ:

A. INTRODUCTION:
[1] In this matter application is made, on notice of motion, by the applicant in which application the applicant prayed for an order in the following terms:
"1    Respondent is evicted from the Swakopmund Aerodrome (also known as the Swakopmund Airport) with immediate effect;
2. Leave is granted to the applicant to institute further legal proceedings against respondent to recover damages from the respondent;
3. Respondent is ordered to pay applicant's costs of suit on a scale as between attorney and own client."

[2] The respondent opposed the application. In its opposition the respondent raised three preliminary objections:
a)	
The second preliminary objection is that on 25 November 2009 this Court struck an urgent application brought by the applicant from the roll and ordered the applicant to pay the cost of that application. The cost of the application has not been paid and the respondent accordingly prayed that the current application be stayed pending the payment of the cost.
The third preliminary objection is that there is a dispute of fact between the applicant and the respondent, which dispute is incapable of being resolved on paper. The respondent alleges that the dispute is apparent from the affidavits filed in the urgent application and which the applicant failed to attach to the current application.
[3] I find it appropriate to, before I deal with the preliminary objections and the merits or demerits of the application, give a brief background as I could gather from the affidavits filed of record, which led to the applicant approaching this Court for the relief it is seeking.

B      BACKGROUND
[4] The background to the applicant's application can briefly be summarised as follows:
4.1. On 28 January 2000 the applicant and respondent concluded a written lease agreement for the lease of the Swakopmund Aerodrome. The written lease agreement was annexed as annexure "S1" to the Notice of Motion.

4.3. The lease agreement was amended from time to time (the dates that I could gather from the affidavits are 19 June 2000, 22 February 2005 and 29 July 2008). All these amendments were reduced to writing and signed by the parties.
4.4. On 22 October 2004 by letter, (a copy of which was annexed as Annexure "S4" to the founding affidavit filed on behalf of applicant) the respondent, (at the time represented by Mr van der Merwe and Mr. Agenbach of PF Koep & Company (respondent's legal representatives at the time) requested permission from the applicant to upgrade the airfield "by tarring the main runaway and installing a system of runaway approach and lighting as well as side markers".
4.5. In the same letter, the respondent also applied to applicant for applicant to consider granting the respondent a new lease agreement on the same terms and conditions as contained in the existing agreement but with the period of duration commencing on 1 December 2004 and terminating by effluxion of time nine years and eleven months later, (i.e. on 30 November 2013) and subject to a right of renewal for a further period of nine years and eleven months.
4.6. After the letter of 22 October 2004 was received by the applicant, the applicant and the respondent engaged in further negotiations resulting in the applicant taking the following resolution on 27 January 2005:

LEASE
RESOLVED:
(a) That the relocation of the airfield from its current position be deleted as an item from the Long Term Strategic Plan.
(b) That Messrs Swakopmund Airfield (Pty) Ltd be informed that Council approves the upgrading of the airfield to include tarring of the main runway, installing a system of runway approach and end lighting as well as side markers, at applicant's costs.
(c) That Council enter into a new lease agreement with Messrs Swakopmund Airport (Pty) Ltd on the same terms and conditions as the existing lease agreement, subject to the successful completion of all statutory disciplines and the following further conditions:"...

(d) That should any upgrading of Municipal services be required, it be for the account of the applicant.
(e) That all costs relating to the completion of statutory disciplines, including legal costs which may arise from this application, be for the account of the applicant.
(g) That the applicant indemnifies Council against any claims arising from the upgrading of the airfield."

The above resolution was communicated to the respondent by letter dated 10 February 2005. (A copy of that letter was annexed as Annexure "S5(1)" to the founding affidavit filed on behalf of applicant)

4.7 On 16 March 2005 by letter, (a copy of which was annexed as Annexure "S6" to the founding affidavit filed on behalf of applicant), applicant informed Mr van der Merwe (at the time the sole shareholder of respondent) that "the intention to enter into a new lease agreement" must be advertised in terms of s 63(2) of the Local Authorities Act, 1992 (Act 23 of 1992) as amended. In the letter Mr van der Merwe was further informed that at a cheque in the amount of N$1,500-00 is required for the costs of the advertisement.

4.9. On 18 August 2005 PF Koep & Company, acting on behalf of the respondent, advised the applicant that the respondent has completed the upgrading of the airfield including the tarring of the main runaway and installation of a system of runaway approach and end lighting as well as side markers. In the letter the respondent also requested the applicant to furnish it with a new lease agreement for a further period of nine years and eleven months. (A copy of that letter was annexed as Annexure "S7" to the founding affidavit filed on behalf of applicant).
4.10. On 25 August 2005 and in response to the request of 18 August 2005 the applicant advised the respondent that it will place the advertisement with respect to the extension of the lease in the local newspapers and if no valid objections were received by applicant, the applicant will forward a new lease agreement to the respondent to facilitate signature by the respondent.
4.11. During December 2005 the notice was subsequently published. The notice informed the public that the Municipality of Swakopmund "intends to lease the Swakopmund airfield to Messrs Swakopmund Airfield (Pty) Ltd for a period of nine years an eleven months" and called for objections to the proposed transaction.
4.12. On 19 December 2005 a certain H.C Coetzee objected to the lease of the Swakopmund Airfield to respondent.
4.13. On 26 January 2006 the applicant considered the objection lodged by Mr Coetzee and resolved that the objection be rejected and that the objection together with applicant's comments be referred to the Minister of Regional, Local Government and Housing and Rural Development for the approval as contemplated, under the provisions of section 63 of the Local Authorities Act, 1992.
4.14. On 06 February 2006 the applicant addressed a letter to the Minister through the Permanent Secretary: Ministry of Regional and Local Government, Housing and Rural Development, informing the Minister of the objection it has received and requesting the Minister to disregard the objection and to approve the extension of the lease of the respondent for a further a period of nine years an eleven months.
4.15. On 29 March 2006 the Minister replied to applicant's letter of 06

February 2006 as follows:
"In terms of section 63(2)(c) of the Local Authorities Act, 1992 (Act 23 of 1992) the Minister wishes to advise your Council to consider calling for a public tender to enable all prospective lessees to participate and subsequently ensure transparency in this transaction."

4.17. On 23 August 2006 the respondent (through Van der Merwe Greeff Legal Practitioners) informed the applicant that the contents of the applicant's letter dated 13 July 2006 was conveyed to Mr Erasmus of Erasmus & Associates who will as from then act on behalf of the respondent.
4.18. On 28 August 2006 the applicant requested the respondent to respond to the contents of the letter of 13 July 2006 and the e-mail address to Mr Erasmus. The respondent was again requested to respond to the recommendation of the Minister of Regional and Local Government, Housing and Rural Development, who did not favour the extension of the lease. Mr Erasmus was informed that applicant is bound by the Minister's decision, which has consequences for the respondent and, should respondent fail to respond, the matter will be regarded as closed.

4.20 It appears that the respondent did not respond to the communications (i.e. the letters written between June 2006 and October 2006) referred to in paragraphs 4.16 to 4.19 of this judgment. It, however, appears that between November 2006 and 24 June 2008 some meetings or discussions took place between the applicant and the respondent with regard to the lease of the aerodrome. As I could gather from the affidavits the meetings took place as follows:
4.20.1. On 07 November 2006 a meeting/discussions took place between the applicant's officials and the respondent. At that/those meeting/discussions Mr. Erasmus advised the officials of applicant that he regarded the Minister's letter as insignificant and that in his opinion a valid and binding lease agreement was concluded between the applicant and the respondent.
4.20.2. On 21 February 2008 a meeting with one of the applicant's officials took place. From the affidavits, it is not clear what was decided at that meeting.
4.20.3. On 06 May 2008 a meeting or discussions took place between Messrs Swarts and Plaatjie for the applicant and Messrs Erasmus and Roos for the respondent, with respect to certain problems pertaining to the aerodrome.   At that meeting or those discussions Mr Swarts decided to call a 'public meeting' with all those who had interest in the aerodrome. 4.20.4 The 'public meeting' was called on 24 June 2008. At that meeting Mr. Roos (for the respondent) informed those present that a dispute existed with regard to the tenure of the lease agreement of the aerodrome.

4.23. On 03 June 2009 the respondent replied (again through its legal representative) to the applicant's letter of 18 May 2009 indicating that it wishes to enter into negotiations and that it was unable to present its proposal to the applicant by 01 June 2009.
4.24. On 12 June 2009 the applicant replied (again through its legal representative) to the respondent's letter of 03 June 2009 in which letter it advised the respondent that it had not yet received the respondent's proposal and impressed upon the respondent the urgency of the matter as the lease agreement was due to expire on 31 August 2009 (I take it that the date of 31 August is wrong as the expiry date is 31 October 2009).
4.25. On 23 June 2009 Erasmus & Associates advised the applicant that its client (i.e. the respondent) was in Kenya and that it would forward the proposal for the extension as soon as the client was back in the country. By 14 July 2009 the applicant had not yet received the proposal for the extension and it accordingly reminded the respondent and proposed a meeting for 29 July 2009 on the condition that the respondent had submitted a proposal by 12 noon on 24 July 2009.

4.27. On 31 August 2009 the applicant took a resolution to terminate the lease agreement dated 28 January 2000 concluded between it and the respondent. The resolution to terminate the lease agreement was communicated to the respondent by letter dated 08 September 2009.
4.28. On 02 October 2009 the respondent (through its legal practitioners) addressed a letter to the applicant, in which letter it amongst others denied that the lease agreement would terminate on 31 October 2009. On 10 October 2009 the applicant (through its legal practitioners) responded to the letter of 02 October 2009 and indicated that they will take occupation of the aerodrome on 01 November 2009.

4.31. In that same month (i.e. November 2009) the applicant launched an urgent application with this Court in which it sought an urgent eviction order against the respondent. The Court however, struck the application from the roll with costs on 25 November 2009 on the basis that applicant failed to disclose sufficient grounds for the matter to be heard on an urgent basis. After the urgent application was struck from the roll, the current application was instituted.
4.32. I will, in the next paragraphs, examine the preliminary objections raised by the respondent.

"...Naturally where the merits have not been dealt with at all no inference of vexatiousness can be drawn from the mere bringing of further proceedings."
5.5. In the matter before me the applicant's application (which was struck from the Roll during November 2009) failed not on the merits but simply on the ground that the application was not urgent. In the circumstances the respondents have not proven that the applicant acted vexatiously when it instituted the current proceedings.

[6] Second Point in Limine

6.6. Mr. Wepener who appeared on behalf of the respondent submitted that: "The purported withdrawal of the urgent application is of no force or effect. The Applicant did not obtain the consent of the Respondent nor the leave of the Court". He cites as authority for that submission Rule 42(1).
6.7. Rule 42(1) of the High Court Rules reads as follows:

6.9. In the present matter it is common cause that the urgent application initiated by the applicant was struck from the roll. I have not been advised or informed that it was again set down in accordance with Rule 39 of this Court. I thus find that the objection by the respondent that 'its consent or the consent of the Court has not been obtained' to be without merit.

D        AD THE MERITS OF THE DIPUTE.
[8] The issue for determination by this court is, whether the parties validly amended the agreement which they concluded on 28 January 2000 to extend the lease to August 2015. To do so, of necessity, will require a brief survey of the legal principles governing the validity of contracts with a view to determining whether, based on the facts which are not in dispute a valid extension was agreed to by the parties.

[11]   In the present case the common cause facts are that:
•	On 28 January 2000 the parties concluded a lease agreement which would terminate on 31 October 2009.
•	On 22 October 2004 the respondent, applied to applicant for applicant to consider granting the respondent a new lease agreement on the same terms and conditions as contained in the existing agreement.
•	

[14]    The lease agreement between the parties amongst others contains

the following clauses:
14.1   Clause 8.1 which reads as follows:
"This agreement constitutes the whole agreement between the parties relating to the subject matter hereof.  No amendment or consensual cancellation of this agreement or any provision or term thereof or of any agreement, any other document issued or executed pursuant to or in terms of this and no settlement of dispute s arising under this agreement and no extension of time , waiver or relaxation or suspension of any of the provision or terms and conditions of this agreement or of any agreement, document issued pursuant to or in terms of this agreement shall be binding unless recorded in a written document signed by the parties."

14.2    Clause 9 which reads as follows: 

9.1. Should, at the termination of the lease through effluxion of time, the lessee wish to extend the lease it shall notify the lessor in writing accordingly, such notice to reach the lessor not later than 28 February 2009.
9.2. After receipt of such notice by the lessor the parties shall enter into negotiations with the aim of reaching agreement regarding the terms which shall govern the extension of the lease.

9.4. The lessee's entitlement to extend the lease (in accordance with and subject to the preceding sub-clauses) shall be entirely conditional upon it having meticulously observed and complied with each and every term of this lease to the entire satisfaction of the lessor."

held that:
"Subject to certain exceptions, mostly statutory, any contract may be verbally entered into; writing is not essential to contractual validity. And if during negotiations mention is made of a written document, the court will assume that the object was merely to afford facility of proof of the verbal agreement, unless it is clear that the parties intended that the writing should embody the contract. (Grotius 3.14.26 etc). At the same time it is always open to parties to agree that their contract shall be a written one (se Voet 5.1.73; Van Leeuwen 4.2, Decker's note);and in that case there will be no binding obligation until the terms have been reduced to writing and signed. The question is in each case, one of construction."

above passage and added:

[18]     The applicant submitted a document (Annexure "S1") headed 'LEASE
AGREEMENT' and that the agreement was concluded at Swakopmund and there is obviously provision next to the words 'lessor and lessee' for signature by the lessor and next to the word 'lessee' for a signature by the lessee. Opposite each of these there is provision for two witnesses.

[22] In view of my finding that any amendment to the agreement of 28 January 2000 had to be in writing and had to be signed by both parties and of the fact that no amendment was reduced to writing or signed by the parties, I am satisfied that the lease agreement between the applicant and the respondent terminated by effluxion of time on 31 October 2009. I will therefore, not deal with all the other arguments raised by the applicant and the respondent.

[23] The respondent resisted the eviction on another ground. It argued that it has expanded large sums of money with the consent of the applicant and is therefore, entitled to an improvement lien over the aerodrome until it has been compensated for the "improvements" effected to the leased premises.

[25] The respondent's claim has, however, been rather sketchily set out in the papers. It is not clear from the papers before me what the amount of the respondent's claim enforceable against the applicant is.

said the following in regard to the continuation of a lien:
'The apparent hardship of giving a lien for continuous keep in such cases as these is much mitigated, if not obviated, by the rule that the owner can obtain his property upon giving security according to the discretion of the court, which is to see that the owner is not kept unreasonably out of his property, nor the claimant for expenses harassed by prolonged and unnecessary litigation. (Voet 16.2.21; Van Leeuwen Cens For 4.37.13.)'

[27]     In the same case Gregorowski J stated the principle as follows:
 '. . . (T)he thing held as a lien can be released by giving security for the claim for which it is detained, and this course will especially be directed by the Judge when it is a matter of complicated accounts which it would take time to unravel, so as not to keep the owner out of his property'.

[28] The applicant tendered a guarantee against the eviction of the respondent from the aerodrome. The respondent has not objected to the form of the guarantee tendered. I am of the view that there is no lease between the applicant and the respondent as the lease agreement between the parties terminated by effluxion of time. The only basis on which the respondent would be entitled to remain in possession of the aerodrome is the right of retention which I have assumed to exist in its favour.

[29] I am of the further view that, it is just fair and equitable, that I should exercise my discretion in the applicants' favour to eject the respondent from the aerodrome against delivery of the guarantee which applicant has tendered.

[30] Prayer 1 of the notice of motion simply asks for an ejectment of the respondent with immediate effect, it does not specify a time or date for the eviction to take effect. I will grant the respondent seven days from the date of my order to vacate the aerodrome.

[31] In prayer 2 of the notice of motion the applicant asks for leave to institute proceedings to recover damages from the respondent. I am of the view that I do not need to give such leave it is for the applicant to decide whether it will or will not claim any damages that it believes it has suffered.

[32] No reference is made to the guarantee in applicants' prayers. I will adapt the prayers to make provision therefor.

[33]   I accordingly grant the following order:
(a) Ejecting the respondent from the Swakopmund Aerodrome (also known as the Swakopmund Airport).
(b) The order set out in paragraph 33(a) hereof will take effect seven days after this order is given.
(c) The said ejectment must take place against delivery by the applicant to the respondent of the guarantee as tendered by the applicant
(d)The respondents are ordered to pay the applicant's costs which cost includes the cost of one instructing and one instructed counsel.

UEITELE, AJ