Superkos Properties (Pty) Ltd v Transnamib Holding Limited and Another (HC-MD-CIV-ACT-CON-2024/01466) [2025] NAHCMD 275 (23 May 2025)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no.: HC-MD-CIV-ACT-CON-2024/01466

In the matter between:

SUPERKOS PROPERTIES (PTY) LTD PLAINTIFF

and

TRANSNAMIB HOLDING LIMITED 1^ST DEFENDANT

REGISTRAR OF DEEDS 2^ND DEFENDANT

Neutral citation: Superkos Properties (Pty) Ltd v Transnamib Holding Limited (HC-MD-CIV-ACT-CON-2024/01466) [2024] NAHCMD 275 (23 May 2025)

Coram: RAKOW J

Heard: 20 - 21 January 2025

Delivered: 23 May 2025

Flynote: Civil Procedure – Law of Contract – Essentialia of a contract – Contract is binding once an offer is accepted – Special defence of identity raised – When the defendant raises a special defence, it bears the onus to prove that defence.

Summary: The owner of the plaintiff, Mr Hamuntenya, was the only person who testified in this case, the defendant did not call any witness. This witness testified that there is no dispute that the plaintiff is the lawful owner of Erf 3494 (the Property), and that the Property is adjacent to the portion of Erf 3495 (the Land). Mr Hamutenya testified that the plaintiff was previously owned by another entity known to him as Castle Brewing Namibia (Pty) Ltd, from which he purchased the plaintiff. At the time, the Land was already within the Property’s boundary wall. Mr Hamutenya testified that he can only assume that the Land came to be within the Property’s boundary as a result of a lease agreement between Transnamib and Castle Brewing, which came into force on 1 November 2003. Mr Hamutenya insists that there was never a separate lease agreement between himself and the plaintiff with Transnamib.

On 5 October 2021 Mr Hamutenya, on behalf of the plaintiff, and on the plaintiff’s letterhead, addressed a letter to Transnamib, wherein it made clear to Transnamib that him and the plaintiff are the current occupants and owners of the Property and thus, the occupants of the Land and that they wish to engage regarding entering a lease agreement for the Land.

The parties were unable to agree to the terms in respect of a lease agreement, however, on 28 February 2022, Transnamib tendered an offer to the plaintiff: (i) the right of first refusal to purchase the Land; (ii) the Land to the plaintiff for a purchase price of N$320,000.00; (iii) the Land to the plaintiff “as is”; (iv) the purchase price is exclusive of any other costs to be incurred pursuant to the purchasing transaction of the Land; (v) Transnamib’s offer was valid for 14 days from the date of the offer; and (vi) upon acceptance of the offer, in writing, Transnamib would proceed with the next stage of alienating the Land to the plaintiff. On 2 March 2022, Mr Hamutenya, on behalf of the plaintiff, accepted the offer, with no reservations and therefore, a binding agreement of sale came into existence.

Transnamib, in its plea, pleaded that the offer was made to Millennium Investment Group and not the plaintiff. Mr Hamutenya made it clear that he is the owner of Millennium Investment Group, of which the plaintiff is a subsidiary and asserted that the offer was made to the plaintiff for the following reasons: (i) Transnamib is aware that Erf 3494, Northern Industry Area, Windhoek is owned and occupied by the plaintiff; (ii) The offer was made to the current occupant of the premises (the Land) as stated under paragraph 3 of the offer, which occupant is the plaintiff, not Millennium Investment Group; (iii) Transnamib’s knowledge as to who the occupants are was also made clear to Transnamib in plaintiff’s letter of 5 October 2021 and Transnamib’s letter dated 27 March 2024.

Mr Hamutenya followed up with letters dated 26 May 2023 and 5 March 2024 to Transnamib wherein he requested for “the Sale of Property Agreement to finalize the transaction and transfer of the Property” as was contemplated in the offer. Transnamib responded to both letters and addressed a letter to the plaintiff, reaffirming that the Land was offered to the plaintiff, occupying the Land. Mr Hamutenya testified that Transnamib sought to cancel the Sale Agreement on the basis that the plaintiff was allegedly in arrears with outstanding rentals due on the Land in the amount of N$767,571.47 and asserted that the only lease agreement that he is aware of, is one made between Transnamib and Castle Breweries, which lease agreement has nothing to do with either himself or the plaintiff.

Mr Hamutenya testified that he addressed a letter, demanding compliance with the sale agreement from the first defendant, of which he received no response, resulting in the plaintiff instituting these proceedings.

The defendant brought an application for absolution from the instance which application was refused. The defendant then chose to close its case without calling any witnesses.

Held that, it is trite that once a defendant raises a special defence, it bears the onus to prove that defense.

Held further that, the offer made by the first defendant indicated that it intended to sell the Land to the current occupant of the Land, which is the plaintiff.

Held further that, taking all the evidence into consideration, it is clear that a contract came into place for the plaintiff purchasing the land from the first defendant.

The plaintiff’s claim is upheld.

______________________________________________________________________

ORDER

1. The Plaintiff is to pay the full purchase price to the First Defendant within 7 days from date of judgment; and all other costs related to the transfer of a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff, as and when such costs become payable.

2. The First Defendant is ordered to comply with its obligations in terms of the Agreement, which include but are not limited to:

   1. Providing the Plaintiff with the written Deed of Sale in respect of the transfer of a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff within 14 days from the date of judgment; and

   2. Taking the necessary steps to transfer a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff.

3. Cost of suit, on a party and party scale.

JUDGMENT

RAKOW J:

Introduction

1. The plaintiff is Superkos Properties (Pty) Ltd a company duly registered in terms of the applicable laws of the Republic of Namibia under registration number CY/1968/0180 with its place of business located at 5 Millennium House, C/O Robert Mugabe Ave & Dr AB May Street, Windhoek in the Republic of Namibia. The plaintiff is the lawful and bona fide owner of Erf 3495, Northern Industry Area Windhoek which Erf is adjacent to a portion of Erf 3495, measuring approximately 387 square metres in Northern Industrial Area, which land falls within the plaintiff’s erf’s boundary walls. The sole owner of the plaintiff is Mr Mathews Hamutenya.

2. The first defendant is Transnamib Holding Limited a company duly registered in terms of the applicable laws of the Republic of Namibia under registration number cY/1999/0114 with its place of business located at 16 Prof Mburumba Kerina Street, Windhoek, in the Republic of Namibia. The second Defendant is the Registrar of Deeds duly established in terms of s 2 of the Deeds Registry Act, 47 of 1937, with his principal place of business being at the office of the Registrar of Deeds, 178, Robert Mubage Avenue, Windhoek, Namibia

Evidence

Mathews Hamutenya

3. Mr Mathews Hamutenya, a major male businessman and sole owner of the plaintiff testified that there is no dispute that the plaintiff is the lawful owner of Erf 3494, located in the Northern Industry Area, Windhoek, Namibia (the Property). The Property is adjacent to a portion of Erf 3495 (the Land), located in the Northern Industry Area, in Windhoek, Namibia, measuring approximately 387 square meters. The Land currently falls within the Property’s boundary walls.

4. With regards to how the Land ended up being within the Property’s boundary walls, Mr Hamutenya testified that the plaintiff was previously owned by another entity, known to him as Castle Brewing Namibia (Pty) Ltd (‘Castle Brewing’). Mr Hamutenya purchased the plaintiff from Castle Brewing and at the time, the Land was already within the Property’s boundary wall. He testified that he can only assume that the Land came to be within the Property’s boundary as a result of a lease agreement between Transnamib and Castle Brewing. The lease agreement between Transnamib and Castle Brewing came into force on 1 November 2003. It is important to highlight that the lease agreement in respect of the Land was not between the plaintiff and Transnamib but rather between Transnamib and Castle Brewing. Mr Hamutenya insists that there was never a separate lease agreement between himself and the plaintiff with Transnamib.

5. As regards the sale agreement between the plaintiff and Transnamib, Mr. Hamutenya testified that prior to any discussions or agreements in respect of the sale of the Land from Transnamib, he personally, on behalf of the plaintiff, engaged Transnamib for the purpose of entering into a lease agreement for the Land as the previous lease agreement was between Transnamib and Castle Breweries. On 5 October 2021 Mr Hamutenya, on behalf of the plaintiff - and on the plaintiff’s letterhead - addressed a letter to Transnamib, specifically to Mr David Daniel, Transnamib’s Manager: Properties Administration. It is Mr Hamutenya’s testimony that he made it clear in the letter to Transnamib that him and the plaintiff are the current occupants and owners of the Property and thus, the occupants of the Land. In response to Transnamib’s letter dated 31 August 2021, the plaintiff tendered the following offers: (a) enter into a lease agreement with rental fees of N$500 or (b) to purchase the Land from Transnamib.

6. Mr Hamutenya testified further that the parties were unable to agree to the terms in respect of a lease agreement, however, on 28 February 2022, Transnamib tendered the following offer to the plaintiff: (i) the right of first refusal to purchase the Land; (ii) the Land to the plaintiff for a purchase price of N$320,000.00; (iii) the Land to the plaintiff “as is”; (iv) the purchase price is exclusive of any other costs to be incurred pursuant to the purchasing transaction of the Land; (v) Transnamib’s offer was valid for 14 days from the date of the offer; and (vi) upon acceptance of the offer, in writing, Transnamib would proceed with the next stage of alienating the Land to the plaintiff.

7. It is Mr Hamutenya’s testimony further that, following Transnamib’s offer, on 2 March 2022, he accepted Transnamib’s offer, on behalf of the plaintiff, with no reservations, thus, constituting a binding sale agreement, which sale agreement bound Transnamib to proceed with the next stage of the alienation process of the Land from Transnamib to the plaintiff. Transnamib, in its plea, pleads that the offer was made to Millennium Investment Group and not the plaintiff. Mr Hamutenya made it clear that he is the owner of Millennium Investment Group and the plaintiff is a subsidiary of Millennium Investment Group. As a well-known businessman in Namibia, Mr. Hamutenya continued, he is predominately known through his ownership of Millennium Investment Group which is the name branded on the building located at Millennium House, corner of Robert Mugabe Avenue and Dr AB May Street, Windhoek, Namibia.

8. Mr Hamutenya testified that the offer was made to the plaintiff for the following reason: (i) Transnamib is aware that Erf 3494, Northern Industry Area, Windhoek is owned and occupied by the plaintiff; (ii) The offer was made to the current occupant of the premises (the Land) as stated under paragraph 3 of the offer, which occupant is the plaintiff, not Millennium Investment Group; (iii) Transnamib’s knowledge as to who the occupants are was also made clear to Transnamib in plaintiff’s letter of 5 October 2021 and Transnamib’s letter dated 27 March 2024.

9. As regards the plaintiff’s compliance with the sale agreement, Mr. Hamutenya testified that on 26 May 2023, he, on behalf of the plaintiff, addressed a follow up letter to Transnamib wherein he requested for “the Sale of Property Agreement to finalize the transaction and transfer of the Property” as was contemplated in the offer. On 5 March 2024, Mr Hamutenya again addressed a letter to Transnamib, on behalf of the plaintiff. He reiterated that the plaintiff was ready and available to conclude the transaction.

10. According to Mr Hamutenya, Transnamib responded to both the letter of 26 May 2023 and 5 March 2024 on 27 March 2024. Transnamib corrected its mistake and addressed the letter to the plaintiff as was intended in the offer letter. Furthermore, Transnamib reaffirmed that the Land was offered to the plaintiff as the plaintiff was occupying the Land. Transnamib sought to cancel the Sale Agreement on the basis that the plaintiff was in arrears with outstanding rentals due on the Land in the amount of N$767,571.47. It is not clear, according to Mr Hamutenya, how Transnamib calculated the outstanding arrears, because neither the plaintiff nor Mr Hamutenya entered into a lease agreement with Transnamib in respect of the Land. The only lease agreement that he is aware of, is the one made between Transnamib and Castle Breweries, which has nothing to do with either himself or the plaintiff. Mr Hamutenya testified further that, Transnamib asserted that the Land forms part of one big erf which Transnamib is not prepared to subdivide.

11. It became apparent to Mr Hamutenya that the reasons set out in the letter of 27 March 2024 were nothing but a poor excuse to try and cancel the Sale Agreement when Mr David Daniel, Transnamib’s Manager: Properties Administration came to his office and asked him to increase the purchase price on the Land, which request Mr Hamutenya refused on the basis that the Sale Agreement was already concluded and only required Transnamib’s compliance to proceed with the alienation process.

12. It is Mr Hamutenya’s testimony further that, on 9 April 2024, the plaintiff’s legal practitioner of record addressed a letter to Transnamib wherein it was stated, amongst other facts, as follows:

‘22. Secondly, our client has instructed us to inform Transnamib, as we hereby do, that our client does not accept the purported cancellation of the Agreement. 23. In addition, we hold instructions to demand, as we hereby do, that Transnamib comply with the Agreement by taking the necessary steps to proceed with the next stage of alienating the Land from Transnamib to our client (which includes but not limited to the furnishing of the Deed of Sale) on or before Friday, 19 April 2024. 24. Should Transnamib fail and/or refuse to heed to the above demand, our client shall proceed to institute legal proceedings (based on specific performance) in the High Court of Namibia and seek for the following orders: 24.1. An order compelling Transnamib to take all steps necessary to pass transfer of ownership of the Land from Transnamib to our client. 24.2. Cost of suit on a party and party scale. 24.3. Further and/or alternative relief.

D. CONCLUSION

25. Take note that our client is amenable to a roundtable meeting at Transnamib’s office to have this matter resolved amicably. However, the proposal for the meeting must be conveyed to our office on or before Friday, 19 April 2024.’

[13] Mr Hamutenya testified further that, no response was received, resulting in the plaintiff instituting these proceedings, as Transnamib failed to comply with the Sale Agreement, in that it failed to proceed with the next stage of the alienation process of the Land after receiving the plaintiff’s unqualified acceptance to the offer to purchase the Land. Finally, Mr Hamutenya submits that the plaintiff has made out a case for the relief sought.

[14] During cross examination, Mr Tjombe put it to the witness that the offer by Transnamib on 28 February 2022 to sell the property was made to Millenium Investment Group and not to the plaintiff. Mr Hamutenya responded that he is the owner of Millenium Investment Group as well as the plaintiff, therefore, Transnamib must have made a mistake when it referred to Millenium Investment Group instead of the plaintiff, because they corrected it in their second letter. Counsel persisted and asked Mr Hamutenya why he did not ask for rectification of the mistake made by Transnamib in his particulars of claim, to which Mr Hamutenya responded that Transnamib corrected it in the second letter. Mr Tjombe emphasized further that for a contract to be valid, there must be an offer and an acceptance. In this instance, an offer was made to Millenium Investment Group, but the plaintiff is the one that accepted same, therefore, there was a material mistake regarding the identity of one of the parties. Mr Hamutenya was asked why he did not ask the court to rectify the error in as far as the identity of one of the parties was concerned, to which he responded that Transnamib corrected the mistake in their second letter.

[15] Upon being probed, Mr Hamutenya confirmed that the second letter from Transnamib is dated 27 March 2024, two years after the initial offer. He was further asked what the purpose of that second letter was, to which Mr Hamutenya responded that it was sent after he refused to comply with the request by a certain David to increase the offer. Mr Tjombe put it to the witness that the purpose of the second letter was not to rectify a mistake, but to cancel the purchase transaction. Mr Hamutenya responded that he does not believe it.

[16] In summing up, Mr Tjombe put it to the witness that the point that the defendants are trying to make first of all, is that the letter wherein Mr Hamutenya accepted the offer on behalf of the plaintiff does not mention Millenium Investment Group and does not mention that Transnamib was incorrect in offering it to Millenium Investment Group. Secondly, in all of Mr Hamutenya’s correspondences, he did not point out to Transnamib that they made an offer to the wrong entity. Thirdly, the witness, in his Particulars of Claim, did not ask for rectification and fourthly, Mr Hamutenya is separate from the plaintiff, which is a separate entity. Mr Hamutenya has not given any evidence to this court regarding why Millenium Investment Group should be disregarded and the plaintiff accepted to be the contracting party instead. Mr Hamutenya responded that Transnamib knew that he owns both entities and he does not agree with Transnamib’s propositions.

[17] During re-examination, Mr Ndaitwah made reference to the offer letter from Transnamib wherein they stated that the offer is made to the current occupant of the premises. Mr Hamutenya was asked who the current occupant of the premises was, to which he responded that the plaintiff was. He was further asked to whom the letter cancelling the agreement was addressed to and he responded that it was addressed to the plaintiff.

[18] The defendant brought an application for absolution from the instance which application was refused. The defendant then chose to close its case without calling any witnesses.

Arguments by the parties

[19] It was submitted by the plaintiff that in considering the exhibits, it is unequivocally clear that the first defendant and the plaintiff concluded an agreement wherein the first defendant agreed to sell or alienate the Land to the plaintiff. Notwithstanding the agreement, first defendant has failed and/ or refused to comply with its obligations, thus entitling the plaintiff to an order of specific performance, as shall be demonstrated below.

[20] It is evident from the testimony of the plaintiff’s witness, photographs handed up as exhibit C and the map attached to exhibit B, the Land undisputedly falls within the boundary walls of the plaintiff’s property. Thus, it is established that at the time the offer was made, the plaintiff was the current occupant of the Land, and remains the current occupant of the Land.

[21] Notwithstanding the filing of a witness statement, the first defendant did not call any witness to testify in respect of the filed witness statement, therefore, such witness statement cannot be considered in the determination of this matter.

[22] It is submitted that the first defendant’s defence is that, whilst admitting that the offer was made, it is not liable to specially perform on account of the fact that the offer was made to Millenium Investment Group (who never accepted the offer) and not to the plaintiff (who accepted the offer). In other words, the first defendant admits the existence and terms of the offer, that is a confession but avoids liability in accordance with the offer on the basis that the offer was made to Millenium Investment Group (who never accepted the offer) and not to the plaintiff (who accepted the offer). In raising this special defence, the first defendant was bestowed with the onus of proving its special defence by way of evidence, i.e. calling of a witness to give context on the first defendant’s intention when the first defendant tendered the offer set out in Exhibit E.

Legal considerations

[23] In Odendaal and Others v O’Kennedy and Another¹, Justice Sibeya held as follows:

‘that the first respondent cannot be allowed to conclude an agreement with a Trust or the applicants where the trust or the applicants perform in terms of the agreement just for the first respondent to turn around and refuse to comply with her obligations in terms of the agreement.’

[24] In Shaanika v JJJ Transport CC² wherein Justice Sibeya expressed the following sentiments:

‘[1] Contractual interpretation is a key battleground in much commercial litigation. This court has consistently held, for decades, that the interpretative process is one of ascertaining the intention of the parties, being what they meant to achieve. In such exercise, the court must consider the circumstances surrounding the contract in order to determine the intention of the parties at the conclusion of such contract.’

[25] At paragraph 55 of the same judgment, Justice Sibeya further stated that:

‘[55] Wallis JA in the Supreme Court of Appeal in Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk³ continued to remark that:

“Whilst the starting point remains the words of the document, which are the only relevant medium through which the parties have expressed their contractual intentions, the process of interpretation does not stop at a perceived literal meaning of those words, but considers them in the light of all relevant and admissible context, including the circumstances in which the document came into being. The former distinction between permissible background and surrounding circumstances, never very clear, has fallen away. Interpretation is no longer a process that occurs in stages but is ‘essentially one unitary exercise’. Accordingly, it is no longer helpful to refer to the earlier approach.’”

[26] Regarding the first defendant’s special defence, it is now well established in our law, since the decision in Nami Prefabricated Housing CC v Pupkewitz Motors (Pty) Ltd T/A Pupkewitz Hino Trucks⁴, that once a defendant raises a special defence, it bears the onus to prove that defense. Authority for that point is found at the following paragraph of the said judgment:

‘[31] Once the respondent pleaded a confession and avoidance the onus was on it to prove the facts relevant to its defence. It, in essence, amounts to a special defence and respondent must thus be regarded as the claimant in respect of the facts it so put up and must satisfy the court that it was entitled to succeed. As it was the respondent who asserted the special facts excluding the liability, it was for the respondent to prove these facts in line with the general rule that he who asserts must prove what is asserted.’

[27] It is trite in our jurisdiction that any sale of land must contain the following essential terms: the identity of the seller and the purchaser; the identity of the immovable property; and purchase price. The Vihajo v Kamukuenjandje⁵ judgment is authority for this point. In the said judgment, at paragraph 31 Justice Usiku expressed the following general rule:

‘[31] As a general rule, a contract in respect of a sale of land must conform to the applicable statutory formalities. The essentialia of a contract for the sale of land are:

(a) identity of the purchaser and the seller;

(b) identity of the immovable property and;

(c) the purchase price.’

[28] In the judgment between Board of Incorporators of the African Episcopal Church v Kooper⁶, Justice Masuku expressed that:’

‘[47] It is critically important for parties to testify and if necessary, to call witnesses to testify on their behalf. If they do not do so, they shoot themselves in the foot as the plea filed, including a witness’ statement filed in terms of rule 93, do not through some magic wand, become evidence that the court may take into account in weighing the probabilities. Furthermore, it is my considered view that any questions put in cross-examination to the plaintiff’s witnesses for and on behalf of a defendant who is subsequently not called to put a version, do not through some metamorphosis, turn into evidence that may work in the defendant’s favour…

[50] In the instant case, it would appear to me that the plaintiff prima facie succeeded in proving possession of the property. In the premises, it would seem to me, there is nothing to be said for the second defendant who decided not to adduce any evidence. The defence that he sought to advance therefor remains in the plea and whatever may have been asked in the cross-examination of the plaintiff’s witnesses remains interned in the cross-examination and can go no further. I accordingly draw an adverse inference against the second defendant in the circumstances and find that there is no basis upon which the plaintiff cannot be granted the order it seeks on the basis of possession of the property.’

Conclusion

[29] Per exhibit E, the offer made by the first defendant indicated that it intended to sell the Land to the current occupant of the Land, which is the plaintiff. In the event that the plaintiff had not accepted the offer to purchase the Land, the Land would have been put on the list for auction, after the lapse of the 14-day validity period of the offer.

[30] Exhibit E is addressed to Mr Mathews Hamutenya, Millenium Investment Group, however, and more importantly, the offer is made to the current occupant of the Land, which is the plaintiff. Mr Mathews Hamutenya testified that he is the sole owner of Millenium Investment Group and the plaintiff. Furthermore, Mr Mathews Hamutenya, testified that he is predominately known through his ownership of Millennium Investment Group.

[31] Exhibit I is a letter by the first defendant, expressly addressed to the plaintiff, wherein the first defendant, at paragraph 2, states the following: “The above-mentioned property was offered to you for purchase in consideration that you are occupying the property…” the circumstances in which exhibit E (the offer) came into existence.

[32] Exhibit E came into existence as a result of the plaintiff’s letter dated 5 October 2021 (exhibit D), whereby the plaintiff informed the first defendant that the plaintiff is the current occupants of the Land and were desirous of either purchasing the Land or renting it. Taking all this into consideration, it is clear that a contract came into place in terms whereof the plaintiff purchases the land.

Order

1. The Plaintiff is to pay the full purchase price to the First Defendant within 7 days from date of judgment; and all other costs related to the transfer of a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff, as and when such costs become payable.

2. The First Defendant is ordered to comply with its obligations in terms of the Agreement, which include but not limited to:

1. Providing the Plaintiff with the written Deed of Sale in respect of the transfer of a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff within 14 days from the date of judgment; and

2. Taking the necessary steps to transfer a portion of Erf 3495 measuring approximately 387 square meters from the First Defendant to the Plaintiff.

3. Cost of suit, on a party and party scale.

__________________

E RAKOW

Judge

APPEARANCES

APPLICANT: N Ndaitwah

Of Ndaitwah Legal Practitioners,

Windhoek

DEFENDANTS: N Tjombe

Of Tjombe–Elago Inc.,

Windhoek