REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
JUDGMENT
Case no: HC-NLD-CIV-ACT-CON-2023/00072
In the matter between:
ARMAS KALUHONI PLAINTIFF
and
FLORINA NDEMULUNGILA DEFENDANT
Neutral citation: Kaluhoni v Ndemulungila (HC-NLD-CIV-ACT-CON-2023/00072) [2024] NAHCNLD 146 (02 December 2024)
Coram: MUNSU J
Heard: 09 August 2024
Delivered: 02 December 2024
Flynote: Contract – Claim for damages arising from alleged breach of verbal agreement.
Summary: The plaintiff instituted action against the defendant for alleged breach of two agreements. He alleged that he loaned money to the defendant in terms of the said agreements, which the defendant failed to repay. The defendant on the other hand contended that the amounts paid to her were not loans. In respect of claim 1, she claimed that the parties entered into an agreement that the plaintiff would pay her the said amount in order for her not to open a case against him. As for claim 2, she contended that the money was paid to her in order to run errands for the plaintiff.
Held, that several issues regarding the defendant’s defence in respect of claim 1 only came to the fore during cross-examination.
Held, that the defendant’s version in respect of claim 1 left much to be desired. The court could hardly ascertain when and where the offer and acceptance were made.
Held, that the defendant failed to put up a sustainable defence against claim 1.
Held, that claim 2 was difficult for the plaintiff to prove because even if it was to be accepted that he loaned the defendant the amounts in question, it became clear in cross-examination that the plaintiff mixed or confused the amounts he allegedly loaned the plaintiff and those he voluntarily gave her.
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ORDER
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The Defendant is ordered to pay the Plaintiff the amount of N$120, 000 in respect of claim 1.
Interest on the aforesaid amount of N$120, 000 at the rate of 20 % per annum from the date of judgment to the date of final payment.
Costs of suit.
Claim 2 is dismissed.
The matter is removed from the roll and regarded as finalised.
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JUDGMENT
______________________________________________________________________
MUNSU J
Introduction
[1] The plaintiff instituted action against the defendant for alleged breach of two agreements entered into by the parties. The defendant entered appearance to defend the matter.
[2] The plaintiff is Mr Armas Kaluhoni an adult male employed by Oshakati Premier Electric. He resides in Ongwediva.
[3] The defendant is Ms Florina Ndemulungila an adult female similarly employed by Oshakati Premier Electric. She is also a resident of Ongwediva.
[4] The plaintiff was represented by Ms Kangala while the defendant appeared in person during trial proceedings. She was initially represented by Kadhila Amoomo Legal Practitioners from case planning stage until pre-trial stage when she terminated the mandate as she was unable to continue making the payments.
Particulars of claim
[5] In respect of claim 1, the plaintiff alleged that during March 2022, and at Oshakati Premier Electric, the parties entered into a verbal loan agreement in terms of which the plaintiff would advance a sum of N$ 120 000 to the defendant for the deposit of her motor vehicle. The loan amount was to be repaid between August and September 2022 upon the defendant’s mother pension payout.
[6] The plaintiff further alleged that he fulfilled his obligations in terms of the agreement by advancing the loan amount to the defendant.
[7] Additionally, it was alleged that despite her mother having received her pension payout during August 2022, the defendant failed to honour her obligations in terms of the agreement by failing to repay the loan amount, and as a result, she is indebted to the plaintiff in the sum of N$ 120 000.
[8] In respect of claim 2, the plaintiff alleged that during March 2022, and at Oshakati Premier Electric, the parties entered into a verbal loan agreement in terms of which the plaintiff would advance loans in various amounts to the defendant for a period of five (5) months in order to assist her financially as she was struggling to take care of herself and her children.
[9] It was further alleged that the total amount advanced by the plaintiff would be repaid between August and September 2022 after the defendant’s mother would receive her pension payout.
[10] The plaintiff claims that he fulfilled his obligations in terms of the agreement by advancing loans to the defendant on various occasions totalling N$ 21 400.00.
[11] The plaintiff asserts that even though the defendant’s mother received her pension payout during August 2022, and despite the defendant making promises to repay the loans, she has failed to do so, and is thus indebted to the plaintiff in the amount of N$ 21 400.
The plea
[12] The defendant denied the allegations made by the plaintiff. She pleaded in respect of claim 1 that the plaintiff approached her in February 2022 with a proposal that they become business partners. She further pleaded that the plaintiff took her to Grootfontein where he took advantage of her by having sexual intercourse with her without her consent. Furthermore, the defendant pleaded that the plaintiff offered her money in exchange for her not laying criminal charges of rape against him. It was further pleaded that the plaintiff paid the defendant N$ 120 000 for her to remain silent and not lay any charges against him. The defendant then took the money and deposited a motor vehicle.
[13] Regarding claim 2, the defendant pleaded that the parties were involved in a romantic relationship, and often gifted each other in the form of money and other items as a token of appreciation. She went on to plead that the plaintiff would ask the defendant to run errands for him and his wife, and in addition, to use some of the money for herself.
[14] The defendant pleaded that the amount of N$ 21 400 was given to the defendant as a token of appreciation and not as a loan.
The issues
[15] In terms of the pre-trial order, the court is asked to decide whether the parties entered into two verbal agreements and whether the plaintiff advanced the alleged amounts to the defendant and the terms thereof. The court is further asked to determine whether the amounts paid to the defendant were a token of appreciation or loans.
The evidence
Plaintiff’s case
[16] The plaintiff was the only witness to testify in his case. He testified that during March 2022, he was approached by the defendant who informed him that she wanted to buy a motor vehicle but did not have sufficient funds for the deposit. The defendant asked him to advance her an amount of N$ 120 000 which she would repay back between August and September 2022 after her mother would have received her pension payout.
[17] The plaintiff further testified that the parties entered into a verbal agreement for the advancement of the loan, and on 15 March 2022, the plaintiff complied with his obligations in terms of the agreement by paying the defendant the agreed amount of N$ 120 000.
[18] It was the plaintiff’s further testimony that the same month of March 2022, the defendant approached him again, confiding in him about personal problems. According to him, she informed him that her salary was not enough to sustain her and her children and that she was financially struggling.
[19] The plaintiff went on to testify that the defendant asked him to advance her loans in various amounts from March until June, and the total advanced would be refunded upon her mother getting her pension payout.
[20] He further testified that the agreement was not reduced to writing as he trusted her because she was a colleague under his supervision. He went on to set out the various amounts and dates on which he made the payments to her, with the total being N$ 21 400.
[21] The plaintiff further recounted that during August 2022, the defendant’s mother received her pension payout. He added that the plaintiff has been making promises to repay the loans but has failed to do so despite numerous demands.
[22] In cross-examination, the defendant put to him why the agreements were not reduced to writing given that the amounts involved, especially in claim 1 was substantial. To this he replied that he trusted her because they had close family ties, and that she had in the past bought a Golf motor vehicle from him.
[23] In cross-examination, the witness denied having travelled to Grootfontein with the defendant. He also denied the allegations of rape, or the alleged agreement to silence the defendant. The plaintiff further stated that the defendant lacks financial resources, and as such, he could not have approached her about becoming a business partner. According to the plaintiff, the defendant’s allegations are an afterthought designed to avoid repaying the loans.
Defendant’s case
[24] Similarly, the defendant was the sole witness in her case. She testified that she met the plaintiff at work and they became friends. She recounted that in the four to five years they have known each other, the plaintiff would suggest that they meet at places like guest houses. Additionally, she narrated that the defendant would send her money as a token of appreciation for some of the favours she would do for him, e.g. buying things for him and his wife.
[25] It was her testimony that during February 2022, she was approached by the plaintiff with a proposal that they become business partners, but little did she know that his real intention was to take advantage of her. She related that the plaintiff asked her to accompany him to Grootfontein for a business deal. There, they could not find the intended truck and they ended up spending a night at a guesthouse in Grootfontein.
[26] The defendant claims that the plaintiff booked a room with one bed, in spite of having asked him to book two separate rooms. She further related that while they were in the room, the plaintiff undressed in front of her and went to shower, and when he was done, he was walking around naked.
[27] It was her further testimony that she also went to shower and when she was done, she came out with a towel and went to bed. According to her, the plaintiff later in the night started inappropriately touching her at her private parts as well as kissing her, and after an hour, he forced himself on top of her and he had sexual intercourse with her against her will. She maintained that the defendant offered her a payment of N$ 120 000 in order for her to remain silent.
[28] The defendant further narrated that, on their return to Oshakati, the plaintiff on several occasions voluntarily sent her money via blue wallet vouchers. She recounted that the plaintiff would ask her to run errands for him and to use some of the money as a token of appreciation for offering a helping hand. In addition, the defendant stated that the plaintiff bought her a cellphone because hers was malfunctioning and the plaintiff wanted to stay in touch.
[29] In cross-examination, she testified that after the payment of N$ 120 000, the plaintiff continued making sexual advances and when she refused, he demanded repayment.
[30] It turned out in cross-examination that the defendant opened a criminal case of rape against the plaintiff during the month of August 2023, more than 18 months after the alleged rape, and more than 5 months after she was served with summons demanding repayment of the alleged loans.
Submissions by the parties
[31] Ms Kangala for the plaintiff submitted that it was undisputed that the defendant received the aforesaid amounts of money. She contended that the defendant’s testimony about the money allegedly being paid to the defendant as a bribe lacked credibility as it was not clear where it happened, and that there were no good reasons why the rape was not reported.
[32] It was further submitted that the reason for opening the criminal case only after the summons was issued was not plausible. Counsel argued that the defendant continued to receive the money even after the alleged rape.
[33] Additionally, it was counsel’s submission that the defendant fabricated the events she testified about simply because she has no defence. She implored the court to grant the relief sought.
[34] The defendant on the other hand contended that she does not owe the plaintiff the alleged amounts. She stressed that the evidence showed that the plaintiff could not differentiate between money he voluntarily gave to the defendant and the alleged loans. She argued for the dismissal of both claims.
Discussion
[35] At issue in this matter are the two alleged verbal agreements supposedly entered into by the parties. In our law a verbal agreement is as good as a written one as long as it is shown that the parties were willing to contract.
[36] In respect of claim 1, it is common cause that the plaintiff paid the defendant the amount of N$ 120 000. According to the plaintiff, the said amount was a loan, while the defendant maintained that it was hush money. I propose to deal with the defendant’s defence on its merits without being concerned about its legality in law.
[37] As it will be shown below, there were several issues that came to the fore only in cross-examination, which the defendant never testified about in her evidence in-chief. The said issues have an impact on her defence, which is premised on an alleged agreement that the plaintiff was to pay her in exchange for her not opening a case against him.
[38] According to her testimony, she was about 35 years old at the time of the alleged rape. She voluntarily shared a room with the defendant, who at one stage was naked in front of her before he went to take a shower. She further gave testimony that when he was done taking a shower, he was walking around naked before he went to bed. She did not inform the court of what she did about the plaintiff’s behavior, if it bothered her. She then went to take a shower and when she was done, she came to share the same bed with the plaintiff.
[39] Her testimony was further that the plaintiff started inappropriately fondling her during the night, groping her breasts and private areas, as well as kissing her. She continued by saying that an hour later, he leaped on top of her and had sexual intercourse with her against her will. There was nothing in her evidence-in-chief to show that she resisted. On her version, the plaintiff who inappropriately touched her, only went on to rape her an hour later, yet she was still in the same bed with him. It is worth noting that that the incident is said to have occurred at a guest house, which is a public space where the likelihood of being rescued is higher than in a private home. Nevertheless, there was no convincing reason that the defendant could not be saved.
[40] Over and above, the defendant was equally employed at the time. She did not inform the court why she could not reserve her own room if the plaintiff was unwilling to do so. According to her version, her mother was aware of the trip to Grootfontein, and that the plaintiff had assured her - mother, that he was going to take care of her. Nonetheless, she could not inform the court why she did not contact her mother about her situation of having to share a bed with the plaintiff. Quite unusual is that the defendant could not remember the specific date when the alleged rape took place. This is strange considering the magnitude of the incident.
[41] Despite having being traumatised by the alleged rape incident, at least on her version, the defendant continued to run errands for the plaintiff for several months after. When asked why she did so, she stated that it is because she is not a bad person and he had apologised. She added that she only assisted him at a distance and would avoid meeting him.
[42] Again, it was only in cross-examination that she informed the court that the alleged verbal agreement to silence her was concluded on the way from Grootfontein. She claimed that she was not talking to the plaintiff on their way back home because of the incident. And, in an apparent attempt to make amends, the plaintiff offered to pay her money in exchange for her not filing a lawsuit against him. According to her, although the plaintiff offered to give her some money, they did not agree on the amount and the timing of the payment. This is crucial in determining whether there was an agreement between the parties.
[43] Again, only after further questioning did it become clear that the alleged agreement stipulated that the amount to be paid to the defendant would be determined by the amount of the deposit that the defendant would be required to pay for the motor vehicle she was going to buy. As to when and where this was agreed, it was not clear.
[44] The defendant was questioned further regarding the WhatsApp messages she sent to the plaintiff requesting that he pay her a deposit of N$120,000 and promising to reimburse him N$50,000 upon the sale of her VW Golf motor vehicle. She was questioned as to why she would refund the plaintiff if the N$120,000 was paid to silence her. Then, a new version emerged, that the plaintiff had stated that he could only afford to pay N$ N$ 70 000. Accordingly, she suggested that he pay N$ 120 000 and that she would reimburse him N$ 50,000 once she sold her VW Golf.
[45] When counsel for the plaintiff enquired from her why then she claimed that the defendant paid N$ 120 000 to silence her, she went on to say that it happened following a heated argument they had when, according to her, the plaintiff observed that she was still hurt about the incident of Grootfontein.
[46] Sometime in 2022, the defendant and her mother undertook to repay the N$ 120 000 to the plaintiff, however, they did not do. When questioned why she would offer to refund the money if she did not owe the plaintiff, she stated that they were going to do so because they wanted peace. According to her, she was being threatened by the plaintiff’s wife and siblings that she would get involved in a motor vehicle collision, or that she would return to find her motor vehicle clamped after visiting a shopping mall. Remarkably, this was one of the reasons she gave for opening the criminal case against the plaintiff in August 2023. She further informed the court that the reason she did not repay the money was because the plaintiff gave her his wife’s account number rather than his. She stated that she wanted to deposit the money into his bank account and not that of his wife.
[47] In addition to the aforementioned, it will be recalled that the defendant pleaded that the parties were involved in a romantic relationship, however, her testimony was that, after the plaintiff had paid her the N$ 120 000 following the Grootfontein incident, he still desired to be sexually involved with her but she maintained a distance. According to her, this was the point he began to insist on the refund. However, it did not appear in her evidence that she had a romantic relationship with the plaintiff. This goes to affect her credibility on this issue.
[48] According to the plaintiff, the defendant’s version is a mere fabrication to avoid paying. The court finds that the defendant’s version in respect of claim 1 left much to be desired. As the case developed, so did her case. The court could hardly ascertain when and where the offer and acceptance were made. It was also unclear how the N$ 120 000 was agreed upon. Additionally, the defendant’s version, which lacked credibility was not corroborated. It follows that the defendant failed to put up a sustainable defence against claim 1.
[49] As for claim 2, the defendant admitted that she received the alleged amounts, however, she stated that they were not loans. The defendant testified that claim 2 was made of amounts that the plaintiff sent her in order to run errands for him, or money he asked her to transfer to someone, or money he voluntarily sent her without her asking. She stated that he would sometimes inform her that his invoices were paid and would send her money.
[50] Claim 2 was difficult for the plaintiff to prove because even if it was to be accepted that he loaned the defendant the amounts in question, it became clear in cross-examination that the plaintiff mixed or confused the amounts he allegedly loaned the plaintiff and those he voluntarily gave her. For instance, he initially claimed an amount of N$ 200 he paid to the defendant in order to collect a parcel for him from a bus driver. When she reminded him about it in cross-examination, he conceded, stating that the amount should be subtracted from the total. She also asserted that the plaintiff claimed amounts in the letter of demand that he later abandoned when he filed the action, a sign of confusion on his part.
[51] The plaintiff could not dispute that he occasionally asked the defendant to do things for him. According to the defendant, she would buy things for the plaintiff and his wife or arrange his wife’s birthday. He would also ask her to buy stuff for an expecting mother at the village. In return for the favours, the plaintiff would inform her that she could use some of the money for herself.
[52] The defendant presented messages in which the plaintiff voluntarily offered money to her without her asking. When she indicated that it was not necessary, he would insist that she needed some money to sort out basic needs. According to the defendant, the plaintiff would then send the money. The plaintiff initially denied these claims, but after she presented the messages, he then said that there was nothing wrong as he took her like his sister.
[53] The plaintiff contradicted himself in respect of the payments. Where he was unable to establish a loan from the messages, he would claim that their communication shifted to a verbal phone call in which the defendant requested the loan amount. The defendant questioned him why the mode of communication would change if when he made the voluntary offers as shown in the messages, the communication were by text, to which the plaintiff would reply that he generally does not like to text. She maintained that she could not be expected to repay the money she did not ask for.
[54] The defendant was able to demonstrate through messages that the plaintiff also willingly purchased her a cellphone. Similarly, she presented a message in which the plaintiff requested her to transfer money to someone. On one occasion, the defendant needed to buy a battery for her motor vehicle and she informed the plaintiff, in their conversation, that she was going to do it herself, however, the plaintiff insisted that he got paid and would buy it for her so long it would cost within N$ 1 500. The plaintiff either feigned not to remember or forgot about the aforementioned incidents.
[55] Another uncertainty was that, while the plaintiff stated that the parties had agreed that the defendant would repay the total loaned amount between August and September 2022, he began to demand the refund in July 2022, thereby adding confusion and doubt about the agreement. His response for doing so was that he wanted to be sure that all was still as per the agreement.
[56] The amounts claimed by the plaintiff were allegedly paid during the same period the above events happened. The plaintiff had to be reminded by the defendant of some of the payments made between them. Clearly, the plaintiff’s evidence alone cannot be relied to prove that the amounts he claims were loans.
Costs
[57] The plaintiff was successful in respect of claim 1, and there was no counterclaim. The general rule is that costs follow the event. I find no reason why this rule should not be applied in this matter.
The order:
[58] For these reasons, I make the following order:
The Defendant is ordered to pay the Plaintiff the amount of N$120, 000 in respect of claim 1.
Interest on the aforesaid amount of N$120, 000 at the rate of 20 % per annum from the date of judgment to the date of final payment.
Costs of suit.
Claim 2 is dismissed.
The matter is removed from the roll and regarded as finalised.
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D C MUNSU
JUDGE
APPEARANCES
PLAINTIFF: E Kangala
Of Shikongo Law Chambers
Ongwediva
DEFENDANT: In person