Basha Investment CC v Rossing Uranium Ltd (HC-MD-CIV-ACT-OTH-2023/05016) [2024] NAHCMD 758 (9 December 2024)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

 

JUDGMENT

 

Case No: HC-MD-CIV-ACT-OTH-2023/05016

 

In the matter between:

 

BASHA INVESTMENT CC 1^st PLAINTIFF

BASHIN JOSEPH 2^nd PLAINTIFF

 

and

 

ROSSING URANIUM 1^st DEFENDANT

EDWIN TJIRIANGE 2^nd DEFENDANT

 

Neutral citation: Basha Investment CC v Rossing Uranium Ltd (HC-MD-CIV-ACT-OTH-2023/05016) [2024] NAHCMD 758 (9 December 2024)

 

Coram: COLEMAN AJ

Heard: 25-27 September 2024

Delivered: 9 December 2024

 

Flynote: Purchase order for rental of earth moving equipment – Cancellation.

 

Summary: First plaintiff responded to an invitation by first defendant to rent earth moving equipment. First defendant issued a purchase order. Delivery date is in dispute. Essential question is whether first defendant could summarily cancel purchase order under the circumstances.

Held that: Purchase order is of contractual nature. The parties are bound to its content.

 

 

ORDER

 

 

1. The first defendant is ordered to pay the first plaintiff N$683 600 plus 15 per cent VAT and interest on the said amount at the rate of 20 per cent per year calculated from the date of this order.

 

2. The first defendant is ordered to pay the first plaintiff’s costs herein.

 

3. The matter is removed from the roll and regarded as finalised.

 

 

JUDGMENT

 

 

COLEMAN AJ:

 

Introduction

 

[1] This is essentially a claim for specific performance. The parties agree that the dispute is between first plaintiff and first defendant only and first defendant is Rössing Uranium Limited.

 

Relevant allegations and facts

 

[2] On 10 August 2023 first defendant issued a purchase order to first plaintiff for the rental of an excavator and a dozer (the equipment). The unit prize for the rental of the equipment is stipulated as N$683 600 excluding VAT in the purchase order. The execution period is indicated as 10 August 2023 to 31 October 2023 and the delivery date as 8 September 2023. This document was entered as exhibit ‘JB5’ on behalf of first plaintiff with no objection.

[3] The purchase order is the culmination of a request for a quote, followed by a quote, which was amended. The request for a quote (exhibit ‘JB1’) was for rental of the equipment for one month and stated the ‘mobilisation’ date as Wednesday, 2 August 2023, or as soon as possible. First plaintiff’s amended quote, dated 31 July 2023, (exhibit ‘JB4’) did not contain a delivery date. The purchase order was issued on the strength of this amended quote and oral discussions between the parties.

 

[4] On 18 August 2023, at 10:42, Mr Absalom Mbuende, an official of first defendant, emailed first plaintiff, stating: ‘Kindly provide the following asap: 1. Permit for the moving of the machines; 2 Proof of machines enroute. If we do not receive these proofs by 13:00 today 18/08/2023, the PO will be cancelled with immediate effect’. This email was entered as exhibit ‘AM3’ on behalf of first defendant. To this email first plaintiff responded at 11:40 the same day (exhibit ‘JB7’). This responding email says: ‘The PO was issued on 10.08.2023 and with Delivery Date 08.09.2023, this is to allow the vendor to prepare the machines. The machines were busy finishing off some work, so they need to undergo some inspections and service them in order to deliver them in good working order. So please allow us to deliver this machines over the weekend and you will have machines ready to work at your gate on Monday 21.08.2023. I hope you will find this in order.’ Mr Mbuende did not respond to this email but emailed first plaintiff at 15:14 on 18 August 2023 stating that the purchase order had been cancelled with immediate effect.

 

[5] Mr Joseph Bashin testified on behalf of first plaintiff. In essence, he testified that after he received the purchase order he was told delivery of the equipment was required earlier than 8 September 2023, as stated in the purchase order, and he should undertake in writing when he could deliver. He testified that he gave this undertaking in exhibit ‘JB7’ and also provided proof that the machines were enroute. He testified that he delivered the equipment on 21 August 2023 as he undertook.

 

[6] Two witnesses testified on behalf of first defendant, Mr Mbuende and Mr Shiweda. They were both adamant that first plaintiff agreed to deliver the equipment, first on 11 August 2023, and later on 14 August 2023. This is vehemently denied by Mr Bashin. Although their witness statements are quiet on whether or not the equipment was in fact delivered as alleged by Mr Bashin, when asked about it during testimony they were sketchy about it. Mr Mbuende also attempted to explain the delivery date of 8 September 2023 in the purchase order away.

 

Conclusion

 

[7] I am presented with a purchase order for which there is no apparent reason not to be a binding document. This document was created by first defendant’s officials. There is no reason why the delivery date determined in it should not be binding. The fact that an earlier delivery date was negotiated subsequently is an evidentiary aspect which should be approached with caution, in light of the parol evidence rule.¹ First defendant’s case is that the initial agreed date was 11 August 2023 – a day after the purchase order was issued. This date was then, according to first defendant’s witnesses, extended to 14 August 2023. Significantly, on 18 August 2023, Mr Mbuende was still prepared to receive the equipment, if first plaintiff provided him with a permit and proof that the equipment was enroute. In light of this, I am of the view that first defendant is bound by the delivery date in the purchase order and that first plaintiff’s preparedness to deliver the equipment earlier – on 21 August 2023 – should be considered an indulgence.

 

[8] The question of delivery of the equipment hangs in the air. First plaintiff’s witness testified that it was delivered but no documentary substantiation is provided. On the other hand the witnesses for the first defendant are vague about whether or not delivery occurred. In the exercise of my discretion, I will accept that delivery occurred.

 

[9] First plaintiff claims payment for three months, but could not substantiate it. The request for a quote (‘JB1’) stipulates the rental period as 1 month. The purchase order is also for 1 month. In my view that is what first plaintiff is entitled to. As a consequence, I make the following order:

 

1. The first defendant is ordered to pay first plaintiff N$683 600 plus 15 per cent VAT and interest on the said amount at the rate of 20 per cent per year calculated from the date of this order.

 

2. The first defendant is ordered to pay the first plaintiff’s costs herein.

 

3. The matter is removed from the roll and regarded as finalised.

 

 

________________________

G COLEMAN

Acting Judge

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

PLAINTIFFS: M Siyomunji

Of Siyomunji Law Chambers, Windhoek

 

DEFENDANTS: S Nambinga

Of Palyeenime Incorporated, Windhoek