Court name
Supreme Court
Case name
Shkale N.O v Universal Distributors of Nevada South Africa (Pty) Ltd and Others
Media neutral citation
[2015] NASC 7
Judge
Mtambanengwe AJA










IN THE SUPREME COURT OF
NAMIBIA





CASE NO: SA 10/2013





DATE: 17 APRIL 2015





REPORTABLE





In the matter between:





ABIA SHIKALE
N.O........................................................................................................APPELLANT





And





UNIVERSAL DISTRIBUTORS OF NEVADA


SOUTH AFRICA (PTY)
LTD...........................................................................FIRST
RESPONDENT





TECHNOLOGY AND PROCUREMENT


HOLDINGS (PTY)
LTD...............................................................................SECOND
RESPONDENT





TOPSEC PHYSICAL SECURITY (PTY)
LTD.............................................THIRD
RESPONDENT



Coram: MAINGA JA, MTAMBANENGWE AJA
and HOFF AJA





Heard: 16 June 2014, 15 July 2014





Delivered: 17 April 2015





APPEAL JUDGMENT





MTAMBANENGWE AJA





(MAINGA JA and HOFF AJA concurring):





[1] It rarely happens on appeal that
the court is confronted with two diametrically opposed conclusions in
the same judgment from the court below. This is the dilemma this
court is faced with in this case.





[2] The judgment a quo in this case is
in respect of four matters heard together, namely case numbers I
2009/2003, I 2010/2003, I 2008/2003 and I 2011/2003. For convenience
the parties would be referred to as they were in the court a quo, the
appellant as defendant and the respondents as plaintiffs.





[3] The plaintiffs in the first two
matters, Universal Distributors of Nevada South Africa (Pty) Ltd
(Universal) and Technology and Procurement Holdings (Pty) Ltd
(Topsec) each claimed rectification of a written agreement of lease
purportedly concluded by them with the defendant. The Universal lease
described the lessee as ‘The Punyu Group, a company duly
incorporated in terms of the laws of the Republic of Namibia/South
Africa, represented by Jairus Shikale in his capacity as the owner,
duly authorised’. ‘The Punyu Group Inc (Registration No.)
herein represented by Mr Jairus Shikale (the duly authorised
representative of the lessee) in his capacity as Executive Chairman.’
The plaintiff in the Universal lease sought to have the description
of the lessee rectified to read ‘Jairus Shikale Trading as
Punyu Group’ and the plaintiff in the Topsec lease sought to
have the description of the lessee rectified to read as ‘Jairus
Shikale Trading as Punyu Group’.





[4] In each of the two cases the claim
for rectification was based on the allegation that the wrong
description of the lessee came about as a result of a common or
mutual mistake by the parties. The pleadings show that both parties
are ad idem that there was a mistake in the description of the
lessees but differ as to who the lessees were originally intended to
be. Whereas the plaintiffs pleaded that the lessee in each case was
intended to be what they claimed should be substituted, the
defendant’s case is that the common intention was that Punyu
Wholesalers (Pty) Ltd was to be the lessee.





[5] The plaintiffs in the third and
fourth cases prayed for a declaration that certain oral agreements
were in fact concluded with Mr Jairus Shikale. The claims in the
first two cases as well as the third and fourth cases are that the
agreements were with Mr Jairus Shikale in his personal capacity. Mr
Jairus Shikale who was cited in the summonses issued on 30 September
2003 as defendant, trading as Punyu Group Incorporated (by Universal
and by Topsec respectively) died in 2009. After his death he was
substituted in all four matters initially by his executors Keller &
Neuhaus, and thereafter, as executrix by Abia Shikale, his wife, the
appellant.





[6] Before dealing with the merits of
the appeal in this matter this court considered an application for
condonation filed on 12 February 2013 by the legal practitioner who
noted the appeal. The condonation sought was for the late noting of
the appeal. The appeal was noted some two days late; the
circumstances that led to this delay were fully explained in the
founding affidavit sworn to by the said legal practitioner. It is
sufficient to say the court was satisfied that good cause was shown
and granted condonation accordingly.





[7] Plaintiffs’ counsel
summarised each of the four matters as follows:





‘3.1 High Court Case No. I
2009/2003: Plaintiff (TOPSEC PHYSICAL SECURITY (PTY) LTD,
hereinafter referred to as “Topsec”) instituted action
against defendant, flowing from a written agreement (hereinafter
referred to as the “Topsec Lease”), entered into on or
about the 11th March 2002 with regard to the lease of security
surveillance equipment. Plaintiff inter alia claimed: rectification
of the written agreement; arrear rentals in the amount of N$369 890,
69 plus 15% VAT and interest thereon; rentals for the balance period
of the equipment, alternatively payment of N$1 014 304, 28 plus
interest therein, being the market value of the equipment and costs,
as between attorney and own client.





3.2 High Court Case No. I 2010/2003:
This matter is based on a written agreement for the lease of 82 slots
wide upright and video machines (hereinafter referred to as the
“Universal Lease”) entered into on or about the 6th March
2002 between UNIVERSAL DISTRIBUTORS OF NEVADA (PTY) LTD (hereinafter
referred to as “Universal”) and defendant. Plaintiff
inter alia claimed: rectification of the written agreement; arrear
rentals in the amount of N$1 591 128, 00 plus VAT thereon as at 25
June 2003; fair and reasonable rentals for what would have been the
balance period under the contract in the amount of N$5 166, 00 per
day from 26 June 2003 to date of delivery of the machines plus
interest thereon; delivery of the machines, alternatively payment of
N$3 981 500, 00 plus interest, and costs.





3.3 High Court Case No. I 2008/2003:
Plaintiff (Universal) claims payment of amount of N$594 154, 57 in
respect of disbursements made or liabilities incurred by plaintiff on
behalf of defendant and for services rendered and goods sold and
delivered by plaintiff to defendant during the period April 2002 to
September 2002, together with interest and costs.





3.4 High Court Case No. I 2011/2003:
Plaintiff claimed payment of an amount of N$246 780, 20 being for
disbursements made on behalf of defendants, services rendered and
goods sold and delivered by plaintiff to defendant in terms of oral
agreements concluded during the period March 2002 to September 2002,
together with interests and costs.’





[8] The parties agreed on the issues to
be decided separately. These issues relate to what was pleaded in
plaintiffs’ particulars of claim read in conjunction with
defendant’s plea.





The contentions of the parties in
detail case by case


[9] In case I 2009/2003 plaintiff
contends that the Topsec lease was concluded between the lessor and
Mr Jairus Shikale in his personal capacity and that due to a common
error and in the bona fide but mistaken belief that the document
recorded the true agreement between the parties, the lease
incorrectly describes the lessee as already described in para [3]
above. It further contends that the written lease should be
rectified to accord with the common intention of the parties also as
already described in para [4] above. A similar contention is
advanced in respect of case I 2010/2003, the Universal lease,
claiming rectification to accord with the common intention of the
parties and, again, as already described in para [3] above.





[10] In the two matters defendant
pleaded that save for admitting that the written agreements
incorrectly describe the lessee, defendant denies plaintiffs’
pleaded versions and pleads that plaintiffs’ witnesses, Mr
Stoop and Mr Stone, had insisted that the lessees be described as
already stated notwithstanding that both had specifically been
informed that Punyu Wholesalers (Pty) Ltd (Punyu) had the rights to
the premises from which the joint venture was to be conducted. It
further contends that Punyu was to be the party contracting with
Universal Project and Topsec.





[11] In case I 2008/2003 the plaintiff
contends that the oral agreements were concluded between Universal
and Mr Shikale (represented by Messrs Ashok Lyer, Ndangi Shipanga or
Paul Liebenberg). In terms of these oral agreements Mr Shikale would
have remunerated plaintiff for disbursements or liabilities on behalf
of defendant and/or rendered services and for goods sold and
delivered to defendant. Mr Shikale would have remunerated plaintiff
upon the rendering of an invoice, alternatively before the end of the
month within which a transaction was dated (as per Annexure “A”
to the particulars of claim) further alternatively within a
reasonable period of time after the date of the transaction.





[12] In case I 2011/2003 plaintiff
avers that the oral agreements were concluded between plaintiff and
Mr Shikale (represented personally or by Mr Liebenberg) during the
period April 2002 to September 2002. In terms of these agreements Mr
Shikale would have remunerated plaintiff for services rendered and
goods sold and delivered to defendant. Remuneration would have
occurred 14 days from plaintiff’s invoice, alternatively within
a reasonable period of time. The defence in cases 2009/2003 and
2010/2003 was the same or similar to the defence stated in para [10]
above.





Background to all the agreements


[13] Some background to the matters is
to be gathered from the evidence of one Mr Daniel Petrus Goosen and a
management agreement made at the same time as the lease agreements.
According to Mr Goosen, the whole matters had to do with the business
of opening a casino in Namibia of which he was informed by a Mr Stone
who worked for Universal Distributors of Nevada South Africa (Pty)
Ltd. Towards November 2001 he and Mr Stone travelled to Ondangwa
where they were met by Mr Shikale who introduced himself as the owner
of the proposed casino. During discussions with Mr Shikale, Mr
Shikale handed to him his business card which bore the words ‘Punyu
Group’ and referred to Mr Shikale as executive chairman. The
reverse side of the card was headed with the words ‘Subsidiary
Companies’ and referred to a host of names all associated with
the word Punyu.





[14] The preamble to the management
agreement which was concluded between Universal Distributors and
defendant reads as follows:





‘MANAGEMENT AGREEMENT


THIS AGREEMENT MADE AND ENTERED INTO BY
AND BETWEEN THE PUNYU GROUP OF Ondangwa, Namibia (hereinafter called
the Company) and UNIVERSAL PROJECTS (PTY) LTD of Johannesburg, South
Africa (hereinafter called the Management).





WITNESSETH (sic) AS FOLLOWS:





WHEREAS the company is the owner of the
immovable property described in the permission to occupy dated 9
August 1999.





AND WHEREAS the company operates a
hotel on the property under the name and style of Punyu International
Hotel;





AND WHEREAS the company has applied to
the Casino Board of Namibia for the issue to it of a Casino Licence
and the Casino Board of Namibia granted the same in respect of
premises.





AND WHEREAS the company requires an
operator to manage the casino and recognises that the Management of
the casino will require special expertise.





AND WHEREAS the company wishes to
delegate the Management to Universal Project (Pty) Ltd to manage the
Casino subject to the terms and conditions set out herein.





NOW THIS INDENTURE WITNESSETH (sic) AND
HEREBY AGREED AS FOLLOWS: . . .’





[15] The interpretation and definition
section of the agreement contains inter alia, the following:





‘1.2.1. “affiliate”
means in relation to anybody corporate any other body corporate which
is subsidiary of the first body or a holding company of the first
body or a subsidiary of such holding company (the expressions
“subsidiary” and “holding company” having the
meanings respectively ascribed to them in the Companies Act;)





. . .





1.2.4. “Company” means the
Punyu Group.’





It is significant that the whole
document talks of the company and no one else, and that it is signed
by Mr J Shikale ‘for and on behalf of the Punyu Group being
authorised thereto’. Clause 1.2.1 above leaves no doubt that
the drafter had in mind a corporate body as the contracting party on
the side of the defence and not Mr Shikale in his personal capacity.
The agreement, in respect of which rectification is claimed, it
should be noted, seems to confirm the defence averment that Stoop and
Stone had specifically been informed that Punyu had the rights to the
premises from which the joint venture was to be conducted and, more
significantly, Mr Shipanga’s evidence that all the entities
listed on Mr Shikale’s business card resorted under Punyu
Wholesalers (Pty) Ltd. That the entity, was the only registered
company in existence at the time of entering into the various
agreements, is not disputed by the plaintiffs and the mention of
‘subsidiary’ and ‘holding company’ in clause
1.2.1 of the definition section of the agreement and Mr Shikale’s
business card seems to me to fortify the inference that the corporate
entity that plaintiffs thought they were contracting with is none
other than Punyu Wholesalers (Pty) Ltd. Had the plaintiffs sought to
rectify the management agreement, no doubt revealing questions could
have had to be answered by the plaintiffs in particular by Mr Krüger
who also drafted the management agreement on the instructions of Mr
Stone.





[16] For completeness sake I should now
mention the other provisions of the management agreement. Clause 2.2
reads:





‘It is agreed that the management
shall manage the casino for and on behalf of the company.’





Clause 3.4 reads:





‘The management shall with the
approval of the Company prior to the opening date exercise the
following powers on behalf of the Company.





3.5.1 the acquisition of consumable
stores for the casino from stores designated by the Company.’





[17] Mr Liebenberg, the manager, was
appointed by Universal. His evidence about Mr Shikale amounts to no
more than a presumption that Mr Shikale was the connecting party, a
presumption based merely on the fact that Mr Shikale approved or took
the decisions on everything. But that Mr Shikale would do so is
quite consistent with his position as executive chairman of the Punyu
Group. Mr Liebenberg was also unable to produce or refer to any
invoices directed to Mr Shikale personally. In fact the court a quo
acknowledged this fact at para 130 of its judgment (which I shall
quote in full hereunder) that Mr Shikale’s conduct as described
by Mr Liebenberg was consistent with his position as such.





[18] The judge a quo herself quoted the
various provisions of the management agreement and in para 130 of her
judgment said:





‘The following clauses are
relevant in casu . . .


3.1 From the date hereof until the
opening date the Company shall at its sole cost . . . construct, fit
out, furnish and decorate the casino as and for a licensed casino to
internationally recognised standards.





3.2 The Company shall at its sole cost
provide all of the equipment for the casino (and such other equipment
as the Management reasonable (sic) considers necessary or desirable
for the operation of the Casino (sic) and all of the gaming equipment
and security equipment (and such other equipment as the Management
reasonable (sic) considers necessary or desirable for the operation
of the casino).





. . .





5.2 The Management shall have the power
to enter into contracts in the ordinary course of business on behalf
of the Company in relation to the casino and shall have power to do
all acts and things in the ordinary course of business which it may
consider necessary for the purposes of the casino.





. . .





6.1 During the continuance of this
agreement the company shall:-



6.1.6 procure that all necessary
service (sic) (including but not limited to gas, electricity,
heating, lighting, water supplies and waste services) are supplied
for the purposes of the casino and further procure that all necessary
repairs or replacements in connection with such services are properly
carried out.’





She further observed in paras 132 and
133 thereof that the agreement was signed by Mr Shikale ‘for
and on behalf of the Punyu Group being duly authorised thereto’,
and that Mr Liebenberg was the casino manager appointed in terms of
this agreement and as such he was authorised to enter into agreements
on behalf of the company as defined.





[19] In para 134 the learned judge a
quo went on to say:





‘[134] Mr Shipanga testified with
specific reference to the first, second fourth and fifth paragraph of
the preamble that the words “the Company” are references
to Punyu Wholesalers (Pty) Ltd, in spite of the fact that the word
“Company” is defined in the definition clause as “The
Punyu Group”. He gave no specific motivation for this, but I
think it would be fair to say, given his other evidence about Punyu
Wholesalers (Pty) Ltd being the so called umbrella company, that he
probably based this interpretation on the same point of view. Mr
Shipanga was interpreting the agreement rather than giving evidence
about the intention of the parties when they concluded the agreement,
presumably because there is no claim for rectification in respect of
this agreement. This is obviously because the plaintiffs are not
basing any of their claims directly on the management agreement.
However, had they done so, I think it is common cause, viewed in the
context of all the other evidence, that the management agreement
would have been the subject of a claim for rectification. Having
said this, I must say that Mr Shipanga’s evidence on the
interpretation of the word left me with a rather strong impression
whenever he came across the word “the Company” he
automatically concluded that it must be a reference to Punyu
Wholesalers (Pty) Ltd only for the reason that the latter happens to
be a company (and, it seems, the only company in the Punyu Group).
However, he appeared to state that the reference to “the
Company” in the third paragraph is really a reference to Mr
Shikale as the casino licence holder. Curiously, in this paragraph
the word ‘him’ is used in reference to the Company’.
(My underlining.)





[20] In this regard one must also refer
to the evidence in chief of Mr Stoop. First of all Mr Stoop said in
answer to a specific question – whether he dealt with Mr
Shikale directly: ‘Myself I did not deal with him directly’.





This means that the absence of any
confirming evidence by Mr Stone from whom he got reports about the
negotiations for the agreements and all his evidence about Mr Shikale
being the lessee etc. was and remained hearsay as the court a quo
somewhat obliquely observed.





Secondly Mr Stoop was taken through the
defendant’s allegation that he and Mr Stone were informed that
Punyu Wholesalers (Pty) Ltd had the rights to the premises where the
joint venture (the casino) was to be conducted. His answer initially
was: ‘I have not been informed, and I am not aware of that’.





When the question was repeated as fully
alleged in the plea his answer was merely: ‘Not to my
recollection’.





He confirmed, however, that a letter
dated end February 2007 was under the letterhead Punyu Wholesalers
with the email address Punyuwholesale@ash.namib.com. He also said
the letter had Punyu Wholesalers ‘at the top, at above the
elephant’. In cross-examination Mr Stoop said he did not know
of any document addressed to Mr Shikale personally and repeated that
he did ‘not have a recollection of insisting for us to have the
Punyu Group’. The answer that he did not know of any document
addressed to Mr Shikale personally was after he, in chief, had been
taken through a great number of documents including invoices sent in
connection with the lease agreement of machines and items to be used
in the casino business.





The two diametrically opposed
conclusions in the judgment a quo


[21] As Mr Korf for the plaintiffs
correctly observed, in para 12.12 of his written submissions, the
crux of the two matters relating to rectification is whether the
written lease agreements were concluded with and by Mr Shikale
personally or in his personal capacity or were conducted with Punyu
Wholesalers (Pty) Ltd.





[22] The court a quo came to the
conclusion that the plaintiffs, who alleged the former of the two
claims, did not prove that allegation. The court made that finding
after thorough analysis of the evidence of the plaintiffs, including
that of Mr Herman Krüger who drafted the Universal lease and the
management agreement; the court rightly said of his evidence:





‘[80] In my view, no reasonable
person who looked merely at the business card of Mr Shikale could
have concluded that Mr Shikale was acting in a personal capacity.





[81] With due respect to Mr Krüger,
I regret to say that his evidence in regard to this aspect is
inconsistent and confusing. It leaves me with the overall impression
that his explanations after the fact are just not convincing’.





The court then repeated that exchange
between defendant’s counsel and Mr Krüger as providing
further insight into the nature of his testimony. The court quoted
the exchange which in my view justifies the comment made earlier in
para 79 of the judgment. There the court had described the answer
given by Mr Krüger to a question as regards Mr Shikale’s
alleged personal liability as a “rather startling answer”,
an observation with which I fully agree.





[23] The court very compressively
stated its findings in para 139 of its judgment:





‘[139] I have already pointed out
certain unsatisfactory aspects in the evidence on behalf of the
plaintiffs. They attempted to show that because they dealt with Mr
Shikale in person and because he had to approve and authorize
quotations, transactions, etc., he must have contracted with them in
a personal capacity. I accept that he was personally involved to the
extent that they have indicated, but this alone does not necessarily
mean that he acted in a personal capacity or as a sole proprietor.
Such conduct on his part is just as compatible with him being a
company manager with a hands-on approach. I am also not impressed by
the evidence that the plaintiffs intended to contract specifically
with him personally because he was the licence holder. I agree with
Mr Barnard that if they indeed had this intention from the compliance
point of view because it was as important to them as they attempted
to make out, they would at least have made some attempt to have a
more proximate correlation between the licence holder and the lessee
in each of the agreements than was the case. In respect of Universal
my conclusion on this aspect is fortified by the fact that still as
late as April 2003 its lawyers addressed correspondence to the
defendant in which it was stated that the lease agreement and the
management agreement were concluded with Punyu Group Incorporated. To
my mind the evidence by Messrs Goosen, Stoop and Krüger does not
on a balance of probabilities show that they had the sole and
specific intention to contract with Mr Shikale in his personal
capacity. As Mr Barnard submitted, Messrs Goosen, Stoop and Krüger
tailored their evidence, “hindsight being a wonderful thing’’.’





[24] The Topsec lease was drafted by a
Mr Caffrey, their managing director, on information given by Mr
Goosen. Mr Goosen signed that agreement on behalf of Topsec without
any query as to the description of the lessee; he signed it as
representative of the lessor just as Mr Shikale signed it as
representative of the lessee. The court a quo stated at para 140 of
the judgment on this aspect of the case:





‘To my mind a conspectus of the
evidence clearly shows that they in fact intended to contract with
the Punyu Group, mistakenly thinking that it was a corporate body’.





[25] I have carefully reviewed the
evidence as analysed by both the court a quo and Mr Barnard for the
defendant and I fully endorse their conclusions on this aspect. I
have also reviewed the evidence as analysed by Mr Korf and found that
his analysis does not adversely alter the overall assessment of the
evidence of the plaintiffs’ witnesses on the crucial question.





[26] It is therefore not necessary for
me to repeat the evidence of the witnesses called on behalf of the
plaintiffs on the limited issues before the court below. Suffice it
to say the following in that regard:





1. Mr Krüger was the lawyer
instructed by Mr Stone to draft the Universal lease agreement. Mr
Stone signed the agreement (as drafted with the alleged mistake). Mr
Krüger admitted in his evidence in chief that he made the
mistake as to the description of the lessee;





2. Mr Goosen of Topsec gave the
information to his managing director, Mr Caffrey, to draft the Topsec
lease agreement; Mr Goosen signed that agreement without any query as
to the description of the lessee; he signed the agreement as
representative of the lessor Topsec just as Mr Shikale signed as
representative of the lessee;





3. In para 139 of its judgment the
court below found, (to repeat):





‘To my mind the evidence by
Messrs Goosen, Stoop and Krüger does not on a balance of
probabilities show that they had the sole and specific intention to
contract with Mr Shikale in his personal capacity. As Mr Bernard
submitted, Messrs Goosen, Stoop and Krüger tailored the
evidence, hindsight being a wonderful thing’.








4. Each of these witnesses had had
sight of Mr Shikale’s business card that indicated that a
number of companies listed on it were subsidiary companies and that
Mr Shikale was the executive chairman of the Punyu Group;





5. Thus the court a quo in para 139 of
its judgment significantly concluded as it did and as quoted above.





[27] The court a quo referred to the
principles applicable to rectification; so did counsel on both sides,
including the principle requiring what a litigant seeking a
rectification of a written document must allege and prove as set out
in Denker v Cosak and Others 2006 (1) NR 370 at 374E and as approved
by this court in Namibia Broadcasting Corporation v Kruger and Others
2009 (1) NR 196 (SC) at 224 F, namely:





‘(a) an agreement between the
parties which had been reduced to writing;





(b) that the written document does not
reflect the common intention of the parties correctly. In Benjamin v
Gurewitz 1973 (1) SA 418 (A) at 425H Van Blerk JA says that in
reforming an agreement all the Court does is to allow to be put in
writing what both parties upon proper proof intended to be put in
writing and erroneously thought they had (cf Meyer v Merchants' Trust
Ltd 1942 AD 244 at 253);





(c) an intention by both parties to
reduce the agreement to writing;





(d) that there was a mistake in the
drafting of the document. See Von H Ziegler and Another v Superior
Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 (T) at 411F-H.
Rectification and unilateral mistake are mutually exclusive concepts.
See Sonap Petroleum (SA) (Pty) Ltd (formerly known as Sonarep (SA)
(Pty) Ltd) v Pappadogianis 1992 (3) SA 234 (A);





(e) the actual wording of the agreement
as rectified. See Levin v Zoutendijk 1979 (3) SA 1145 (W) at
1147H-1148A.’


See also Amler’s Precedents of
Pleading, 6 ed. at 298-299.





[28] A number of these principles are
emphasised in the following cases –





1) In Benjamin v Gurewitz, supra, where
Van Blerk JA had this to say at 425H-426A:





‘It remains to consider whether
on proof of the common intention of the parties and of an error
deliberately caused by one of the parties, the respondent would be
entitled to claim a rectification of the contract. As De Villiers JA
says in Weinerlein v Goch Buidings Ltd, supra, in reforming an
agreement, all the Court does is to allow to be put in writing what
both parties upon proper proof intended to put in writing and
erroneously thought they had. This dictum postulates, as the same
learned Judge says at p 288, the existence of an earlier agreement,
an agreement in most cases antecedently arrived at by the parties;
and the disparity between the preceding agreement and the subsequent
written agreement will generally be the result of a bona fide mutual
mistake made merely by accident. The mistake may, however, also be
caused intentionally by one of the parties by dolus of one of the
parties.’ (Weinerlein’s case at p 291.)





2) Netherlands Bank of South Africa v
Stern N.O. and Another 1955 (1) SA 667 (W) where Williamson J said at
672 C-F:





‘But the party so seeking to rely
upon a right to claim a rectification must establish the facts
justifying a rectification “in the clearest and most
satisfactory manner” . . . . The decision in the case of Meyer
v Merchant’s Trust Ltd, 1942 AD 244, made it clear that, in
order to obtain rectification, it was not necessary to show that an
antecedent agreement between the parties had by mistake not been
embodied in the writing of the document sought to be rectified; it is
sufficient if it is proved that the parties did have a common
intention in some respect which they intended to express in the
written contract but which through a mistake they failed to express’.





3) Levin v Zoutendijk, supra, where
Coetzee J pointed out at p 1147H:





‘The purpose of an action for
rectification is to reform a written document in a specific fashion
and a wholesome practice has developed over the years to draft the
actual wording of the term omitted and to pray that that be inserted
at a suitable place in the writing . . . . It is essential for any
party to a written contract to know what the other party contends
regarding the actual wording of the contract. Important rights and
obligations may arise or be affected by the form of a written
contract’.





The last sentence in this quotation is
quite apposite as regards the situation that obtained in the present
case. At p 1148A the Learned Judge also stated:





‘The very cause of action for
rectification postulates that the parties’ agreement or common
intention was clear and unmistakable on those aspects in respect
whereof the writing is to be reformed. Cf Anglo-African Shipping Co
(Rhod) (Pty) Ltd v Buddeley and Another 1977 (3) SA 236(R) at 241’.





4) Von Ziegler and Another v Superior
Furniture Manufacturers (Pty) Ltd 1962 (3) SA 399 where Trollip J
said at 409H:





‘. . . in practice our Courts
rigorously insist upon the party who relies on rectification,
pleading all the essentials thereof and proving them on a substantial
balance of probabilities (see, for example Lax v Hotz, 1913 CPD 261
at p 266; Venter v Liebenberg, 1954 (3) SA 333 (T) at p 337; Senekal
v Home Sites (Pty) Ltd, 1947 (4) SA 726 (W) at p 730; Bardopoulos &
Macrides v Multiadous, 1947 (4) SA 860 (W) at pp 863-864; Netherlands
Bank of South Africa v Stern, N.O., 1955 (1) SA 667 (W) at p
672B-F).’





5) South Cape Corporation (Pty) Ltd v
Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (AD) where
Corbett JA pointed out at 548A-C that the word onus has been used to
denote two distinct concepts:





‘(i) the duty which is cast on
the particular litigant, in order to be successful, of finally
satisfying the court that he is entitled to succeed on his claim or
defence, as the case may be; and





(ii) the duty cast upon a litigant to
adduce evidence in order to combat a prima facie case made by his
opponent. Only the first of these concepts represents onus in its
true and original sense. In Brand v Minister of Justice and Another,
1959 (4) SA 712 (AD) at p 715, Ogilvie Thompson, JA, called it “the
overall onus”. In this sense the onus can never shift from the
party upon whom it originally rested. The second concept may be
termed, in order to avoid confusion, the burden of adducing evidence
in rebuttal (“weerleggingslas”). This may shift or be
transferred in the course of the case, depending upon the measure of
proof furnished by the one party or the other. (See also Tregea and
Another v Godart and Another, 1939 AD 16 at p 28; Marine and Trade
Insurance Co Ltd v Van der Schyff, 1972 (1) SA 26 (AD) pp 37-39)’.





[29] I pause here briefly to point out
that I refer to cases mentioned in para [28] (5), supra, in answer to
an apparent suggestion made by Mr Korf for the plaintiffs in paras
12.6 to 12.8 of his heads of argument, where he talks of a prima
facie case which, if made out by plaintiffs, would call for rebuttal
by the defendant. An examination of the judgment a quo shows that
any suggestion that in this case plaintiffs made out such a prima
facie case as to the identity of the parties in the two lease
agreements (as was apparently made in para 11.1 of Mr Korf’s
heads of argument a quo) is untenable. This is so although the court
a quo dealt with this issue in paras 131 to 137 of its judgment and
appeared to agree with Mr Korf’s submission as against Mr
Barnard’s submission to the contrary; as I have already pointed
out in para 23, supra, the court went on to categorically reject
plaintiffs’ evidence in para 139 of the judgment a quo.





[30] The findings in para 139 of the
judgment a quo show that, at best, plaintiffs proved a unilateral
mistake which defeats the whole exercise of trying to obtain
rectification, as rectification and unilateral mistakes are mutually
exclusive concepts. See Denker v Cosak, at 374H. Although in his
written heads of argument in this court Mr Korf appears to repeat the
suggestion that plaintiffs made a prima facie case, and in that
respect relies on South Cape Corporation v Engineering Management
Services, supra, he however appears to have studiously avoided any
criticism of the court a quo’s findings or to claim anywhere in
his submissions that the court a quo misdirected itself in making
those crucial findings. It seems to me that his reliance in South
Cape Corporation v Engineering Management Services was misplaced
because of the following:





(i) In recognizing that the parties’
respective versions on essential and peripheral matters are
diametrically opposed, Mr Korf referred to what was stated in
Stellenbosch Farmers’ Winery Group v Martell et Cie SA and
Others, 2003 (1) SA 11 (SCA) at 14I-15D, namely:





‘The technique generally employed
by courts in resolving factual disputes of this nature may
conveniently be summarized as follows. To come to a conclusion on the
disputed issues a court must make findings on (a) the credibility of
the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court's finding on the credibility of a
particular witness will depend on its impression about the veracity
of the witness. That in turn will depend on a variety of subsidiary
factors, not necessarily in order of importance, such as (i) the
witness' candour and demeanour in the witness-box, (ii) his bias,
latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his
behalf, or with established fact or with his own extracurial
statements or actions, (v) the probability or improbability of
particular aspects of his version, (vi) the calibre and cogency of
his performance compared to that of other witnesses testifying about
same incident or events. As to (b), a witness' reliability will
depend, apart from the factors mentioned under (a)(ii), (iv) and (v)
above, on (i) the opportunities he had to experience or observe the
event in question and (ii) the quality, integrity and independence of
his recall thereof. As to (c), this necessitates an analysis and
evaluation of the probability or improbability of each party's
version on each of the disputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has
succeeded in discharging it’.





This was done by the court a quo before
it made the findings in para [139] of the judgment a quo.





(ii) The court a quo arrived at those
findings in para 139 by stages as follows:





‘135 In this case the plaintiffs’
burden of providing clear and convincing proof is eased somewhat by
the fact that the parties are ad idem that there was a mistake in the
two lease agreements.





136 Mr Korf in para 11.6 of his heads
of argument submitted in respect of the identity of the lessees that,
if the plaintiffs place prima facie evidence before the Court, which
the court can accept while applying its reasonable mind, then the
defendant is called upon to explain why it says the lease agreements
were concluded with Punyu Wholesalers (Pty) Ltd. If that explanation
is not forthcoming, he submitted, the plaintiffs’ version ought
to be accepted. I agree with this submission, bearing in mind that I
have already rejected any suggestion that Punyu Wholesalers (Pty) Ltd
was the party who was in truth the lessee under any of the two lease
agreements or that the oral agreements in casu were in truth
concluded with Punyu Wholesalers (Pty) Ltd.



137 Mr Korf sought to make out an
argument that Topsec and Universal made out their cases as pleaded on
a balance of probabilities and submitted that the evidence on behalf
of the defendant that the agreements were actually concluded with
Punyu Wholesalers (Pty) Ltd must be rejected.





138 Mr Barnard submitted that it is
not a matter of having to choose between Mr Shikale and Punyu
Wholesalers (Pty) Ltd as the lessee. He adopted the approach that
these plaintiffs did not prove their cases because they are unable to
prove (i) that they had intention to contract with Mr Shikale
personally; and (ii) that Mr Shikale intended to bind himself
personally’.





[31] Earlier at para 45 the court had
observed:





‘[45] I wish to make it clear
that this discussion of the evidence and the findings thereon are not
aimed at showing that Mr Goosen was in fact dealing with a corporate
entity, but to show that his evidence on the point that he only
intended to contract with Mr Shikale in his personal capacity, lacks
credibility. It seems to me just from a reading of the agreement that
Mr Caffrey was under the impression that the Punyu Group was a
corporate entity. On the facts before me the probabilities are that
he gained that impression from Mr Shikale’s business card,
which, objectively speaking, does convey that impression by the use
of the words ‘Executive Chairman’ and “SUBSIDIARY
COMPANIES”’. (my underlining for emphasis.)





[32] It will be noted that the learned
judge a quo in para 136 of her judgment purports to agree with Mr
Korf’s submission but does not comment on Mr Barnard’s
submissions as stated by her in para 138 of the same. Were it not for
the court’s subsequent finding in para 139 of the judgment,
which vindicates Mr Barnard’s submission, one would have been
left wondering what exactly the court meant by its apparent agreement
with Mr Korf – did the court agree that a prima facie case had
been made out by the plaintiffs and that the defendant then had a
duty to rebut. Since, however, Mr Korf repeated the submissions in
his written submissions before us, I should point out that in the
South Cape Corporation case, supra, at 548 Corbett JA made it clear:





(a) that the true onus never shifts and
that whether the onus to adduce evidence to rebut shifts depends on
the measure of proof furnished by the other party; and





(b) that ‘this not being an onus
proper but merely a burden of adducing evidence to rebut a prima
facie case, the other party (defendant in this case) would not be
obliged to establish a case on a preponderance of probability’.
(My emphasis.)





Para 139 of the judgment in the court a
quo makes it clear that plaintiffs did not make out a prima facie
case at all.





[33] In para 140 of the judgment a quo
the court purported to deal with the probabilities in the case; it
stated:





‘However, having stated all this,
I hasten to observe that all is not lost for the plaintiffs. To my
mind a conspectus of the evidence clearly shows that they in fact
intended to contract with the Punyu Group, mistakenly thinking it was
a corporate body. In this, it is reasonable to conclude that Mr
Goosen and Mr Krüger gained this impression mostly from Mr
Shikale’s business card. In my view it is [more] probable than
not that Mr Stone was also given a business card. Apart from this,
when the draft agreements were discussed with Mr Shikale and his
lawyers prior to the conclusion of the agreements, they did not point
out that the description of the lessees were wrong, as any reasonable
person would have expected them to do. I also have no hesitation in
finding that the probabilities are overwhelming that Mr Shikale,
knowing that the Punyu Group is not a corporate body, intended to
contract as its owner. In this regard Mr Shikale provides some
insight into his thinking in a letter dated 14 October 2002 and
addressed to Mr Stone of Universal on the letterhead of “THE
PUNYU GROUP” (Consolidated Trial Bundle “B”, p
666-667). The heading reads “RE: Financial Situation –
Punyu Casino”. He states inter alia:





(I repeat the contents of the letter,
underlining certain parts of it in order to show the vein in which it
was written as I consider that the court’s reasoning, based on
it, is fallacious).





‘As a starting point, I’d
like to solemnly reiterate my organisations (sic) commitment towards
your organisation and Punyu Casino. If you will recollect, we had
agreed on making this a highly profitable venture for both
organisations. We will stand by our commitment, in that regard. It’s
true that we disagree on various points, but is our firm belief that
these points can be settled through negotiations in a friendly
environment. I’m grateful to your organisation for the patience
and understanding shown in dealing with difficult situations and
sincerely hope that this demeanour will be maintained in our
endeavour to make this relationship highly successful for both
organizations.





I acknowledge and appreciate your
benevolence in understanding our tight cash flow situation and
putting forward the necessary funds required for the setting up of
the relevant infrastructure for the casino and I assure you that we
are fully committed to settling our liability in this regard. . . .’





[34] The court’s reasoning
follows in paras 141 – 142 of the judgment a quo:





‘The letter is signed by Mr
Shikale and bears his stamp to (wit) “J Shikale”. This
letter clearly conveys that the casino project is a venture in
question between the two organisations, namely the Punyu Group and
Universal, that it is distinct from Punyu Casino and that the Punyu
Group acknowledges liability for providing funds to set up the
infrastructure for the casino. Nowhere on the letterhead is there any
indication that Mr Shikale is writing on behalf of a corporate entity
as is required by law. The body of the letter also does not convey
any such meaning. Whilst there is not an explicit reference to the
fact that he accepts personal liability, the letter, read in context
with all the other facts and circumstances, must be taken to be
written by Mr Shikale trading as the Punyu Group.





The probabilities are that the mistake
made by the plaintiffs is not material in the sense that they would
still have contracted with the Punyu Group even if they knew that it
was not a corporate body. The evidence indicates that they were
intent on embarking on the casino project provided that there was a
valid casino license in place. This was also the position of the
defendant. I accept the clear evidence by Mr Shipanga to the effect
that Mr Shikale was a law abiding businessman who would not
intentionally have embarked on an illegal venture. As such it appears
to me on the probabilities of the case that there was a meeting of
minds on the identity of the parties’.





[35] I point out the selectiveness of
the court a quo’s points of criticism of the letter in
question. More importantly, I point out the reliance on
probabilities leading to the non sequitur conclusion ‘that
there was a meeting of minds on the identity of parties’. The
learned judge seems to have forgotten her clear findings in para 139
of her judgment and, more importantly, that the onus was on the
plaintiffs to allege and prove what the parties agreed, but by mutual
mistake failed to record in the written lease agreements and that the
plaintiffs failed to prove the facts entitling them to a
rectification.





[36] In Lazarus v Gorfinkel 1988(4) SA
123 (CPD) the question of the identity of a contracting party was in
issue. In the course of considering the evidence Seligson AJ remarked
at 135F:





‘It is true that it was common
cause that, as between plaintiff and Kahn, plaintiff was intended to
be the creditor. It is also so that normally one would expect an
experienced businessman to ascertain the true position concerning the
principal indebtedness for which he is standing surety’.





In casu, notwithstanding the court’s
criticism of the late Mr Shikale for the so-called non-disclosure of
the identity of the lessees in the lease agreements, the censure
equally applied to the plaintiffs, (more so to them) who, in spite of
their possession of Mr Shikale’s business card with all it
indicated vis-à-vis the Punyu Group, failed to ascertain the
true identity of the lessee for the two lease agreements, and appear
to have taken matters for granted; the evidence shows that all of the
witnesses for the plaintiffs (Messrs Goosen, Stoop and Krüger)
are experienced businessmen whose naivety and remissness in this
matter are quite telling and unforgivable.





[37] I do not understand what the
learned judge a quo meant by saying in para 142 of her judgment.





‘The probabilities are that the
mistake made by the plaintiffs is not material in the sense that they
would still have contracted with Punyu group even if they knew that
it was not a corporate body. The evidence indicated that they were
intent on embarking on the casino project provided that there was a
valid casino license in place. This was also the position of the
defendant’.





At best this statement seems to be a
mystification of the situation that the evidence had clearly
established that plaintiffs had failed to prove their entitlement to
a rectification. At worst it seems to me to be mere speculation or an
attempt to draw an adverse inference against the defendant. Mr
Barnard, correctly, in my view, submitted that Mr Stone who was not
called to testify was an essential witness to establish the claims of
rectification for all the plaintiffs because he negotiated with Mr
Shikale. Mr Goosen relied on the information obtained from him (Mr
Stone), he gave instructions to Mr Krüger to draft the Universal
lease agreement as well as the management agreement, he signed the
Universal lease agreement and he was central to the concluding of the
Topsec agreement as well; the plaintiffs offered no explanation why
they did not call him to testify. Mr Barnard concluded, and I agree,
that in not calling Mr Stone to clear up the uncertainties
surrounding the provisions of the agreements the inference to be
drawn is that plaintiffs feared that Mr Stone’s evidence would
expose facts unfavourable to them.





[38] In the case of Lazarus v
Gorfinkel, supra, the learned Acting Judge discussed the question of
inference to be drawn in such circumstances. He remarked at
134F-135B:





‘It is well established that in
appropriate circumstances an inference can be drawn adverse to a
defendant who remains silent. See Galante v Dickinson 1950 (2) SA 460
(A) at 40D-E. However, the application of this principle is
inappropriate where the plaintiff’s case is so vague and
inadequate with respect to the basic facts that the only findings and
inferences which can be made amount to pure speculation. Van der
Schyff’s case supra at 49H. The position was succinctly
summarised by Miller JA in Titus v Shield Insurance Co Ltd 1980 (3)
SA 119 (A) at 133F-G as follows:





“It is clearly not an invariable
rule that an adverse inference be drawn; in the final result the
decision must depend in large measure upon ‘the particular
circumstances of the litigation’ in which the question arises.
And one of the circumstances that must be taken into account and
given due weight, is the strength or weakness of the case which faces
the party who refrains from calling the witness. It would ordinarily
be unsafe to draw an adverse inference against a defendant when the
evidence of the plaintiff, at the close of the latter’s case,
was so vague and ineffectual that the court could, only by a process
of speculation or very dubious inferential reasoning, attempt to find
the facts”.





Furthermore, when proof of the
plaintiff’s case depends upon reasoning by inference, a
salutary safeguard is the rule that an inference can be based only on
proved facts and not on assumptions. In this regard, the following
observation by Miller J (as he then was) in S v Naik 1969 (2) SA 231
(N) at 234C-E received the stamp of approval from our highest court
in A A Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603
(A) at 620E-G:





“If the court, on the evidence
before it, were to come to that conclusion, it would be making an
assumption rather than drawing an inference, for the facts necessary
for the drawing of an inference are lacking. As Lord Wright observed
in Caswell v Powell Duffryn Associated Collieries Ltd [1939] 3 ALL ER
722 at 733:





‘Inference must be carefully
distinguished from conjecture or speculation. There can be no
inference unless there are objective facts from which to infer the
other facts which it is sought to establish . . . But if there are no
positive proved facts from which the inference can be made, the
method of inference fails and what is left is mere speculation or
conjecture’”.





See also Macu v Du Toit en ‘n
Ander 1983 (4) SA 629 (A) at 650C-F; Motor Vehicle Assurance Fund v
Dubuzane 1984 (1) SA 700 (A) at 706A-C; S v Mtsweni 1985 (1) SA 590
(A) at 593E-G.’ (Emphasis mine.)





[39] In the present case the positive
proved facts are decidedly such that they leave no room for the court
to indulge in the speculation that the plaintiffs would still have
contracted with the Punyu Group even if they knew it was not a
corporate body; the evidence in this case does not, in my view,
support this conclusion. In my view Mr Barnard was quite correct to
submit that the court a quo was in this regard speculating, and to
rely on Lazarus v Garfinke.





[40] At this juncture let me revert to
Mr Korf’s written submissions regarding a prima facie case. In
para 12.6 of his heads of argument Mr Korf says:





‘It is expected of the plaintiff
to prove its case at least prima facie. This means that if plaintiff
places sufficient evidence before this Honourable Court on any
particular (disputed) issue, then defendant will attract the
evidential burden (the duty to rebut) or the so called
“weerleggingslas”’.





At the risk of repeating myself, I
point out that Mr Korf in sub-paras 12.7 and 12.8 describes when it
is considered a prima facie case is made and the consequences thereof
but does not go on to specifically allege that in this case a prima
facie case was made out by the plaintiffs in any of the four matters,
nor does he criticize the court’s findings in, inter alia, para
139 of the judgment a quo.





[41] In Marine & Trade Insurance
Company case, supra Jansen AR at 39C, apparently quotes Wigmore as
saying:





‘The opponent whose case is a
denial of the other party’s affirmation has no burden of
persuading the jury. A party may legally sit inactive, and expect the
proponent to prove his own case. Therefore, until the burden of
producing evidence has shifted, the opponent has no call to bring
forward any evidence at all, and may go to the jury trusting solely
on the weakness of the first party’s evidence. Hence, though he
takes a risk in so doing, yet his failure to produce evidence cannot
at this stage afford any inference as to his lack of it; otherwise
the first party would virtually be evading his legitimate burden. . .
.’





[42] From what I have said above about
the court a quo’s findings as to the weakness of the evidence,
nay the failure of the plaintiffs to prove their affirmations on the
essential allegations in their pleadings, it will be apparent that
defendant was not at all called upon to produce any evidence despite
the court a quo’s critical comments on, for example, Mr
Shipanga’s evidence.





[43] Mr Barnard submitted that the only
relevant issue before the court a quo was the intention of the
plaintiffs at the time of contracting. Upon the court a quo’s
finding that the plaintiff did not have the intention to contract
with the late Mr Shikale personally, it was the end of the matter.
It follows that the court was wrong or misdirected itself. He
submitted further, and I agree, that the mistake by the plaintiffs as
to the existence of a body corporate trading as Punyu Group
effectively prevented any consensus. The court should have dismissed
the claims with costs at that stage.





[44] It is apparent that the court a
quo faced with the overwhelming evidence militating against the case
of the plaintiffs indulged in what Mr Barnard described as circular
reasoning. The New Collins Concise Dictionary defines circular as
circuitous, ‘3 (of arguments, etc.) assuming as one of the
premises the conclusions that is to be proved: the fallacy of begging
the question’ and begging the question as ‘a. to evade
the issue b. to assume the thing under examination as proved’.
It goes without saying that once the evidence proves or disproves
something one does not seek to establish that fact on probabilities
as the necessity of resorting to probabilities is to establish the
truth when there is no direct evidence to achieve the same result.
In any event, it seems to me that what the court a quo did in this
instance amounted to deciding issues which were not put or fully
argued before it. In this regard what the Supreme Court said in
Namibia Plains Farming and Tourism v Valentia Uranium 2011 (2) NR 469
(SC) at para 39 and 40 applies, namely:





‘It would be wrong for judicial
officers to rely for their decisions on matters not put before them
by litigants either in evidence or in oral or written submissions.
If a point which a judge considers material to the outcome of the
case was not argued before the judge, it is the judge’s duty to
inform counsel on both sides and to invite them to submit arguments.
(Kauesa v Minister of Home Affairs and Others 1995 NR 175 at
182H-183I.)





The above cases amply illustrate that
in a civil case a judge cannot go on a frolic of his or her own and
decide issues which were not put or fully argued before him or her.
The cases also establish that when at some stage of the proceedings,
parties are limited to particular issues either by agreement or a
ruling of the court, the same principles would generally apply. The
cases furthermore demonstrate that relaxation of these principles is
normally only possible with the consent or agreement of the parties.
(See further the passage quoted from the case of Rowe v Assistant
Magistrate, Pretoria and Another 1925 TPD 361 and the case of Simon
Alias Kwayipa v Van Den Berg 1954 (2) at 613H in line 614A-E)’.
(Emphasis supplied.)





See also Ferrari v Ruch 1994 NR 287
(SC) at 299J-300A.





In any event the stark fact in this
case is that the court a quo did not decide the matter on
probabilities. However, in the end the court concluded:





‘[147] I have considered the fact
that my findings about the intention of the plaintiffs are not in
strict keeping with what the plaintiffs have pleaded about the
intention with which they contracted. It encompasses more than what
they have pleaded, but includes, in a sense, what they have pleaded.
I have considered to hold, as Mr Barnard argued, that the plaintiffs
did not prove their cases. However, I do not think that this would
lead to a just result on the facts of this case. The defendant
cannot claim any prejudice because it had knowledge of the actual
situation at the time the contracts were concluded. Furthermore, the
rectification that is being claimed is in line with my finding and in
line with what the defendant very well knew to have been, “in
truth”, the actual situation. In my view the finding of the
court and the ensuing result will effect justice between the
parties’.





[45] The above conclusion has no
evidential basis (after the court a quo rejected plaintiffs’
claims) that they contracted with the late Mr Shikale in his personal
capacity. See in this regard paras 79, 80, 81 and 139 of the
judgment a quo. In addition the conclusion is not based on anything
pleaded by the plaintiffs that would justify a departure from the
courts findings as reflected in the paragraphs hereat referred. To
the extent that it went further than its findings that plaintiffs did
not prove their cases and the court a quo misdirected itself as Mr
Barnard submitted and, in my opinion, the above conclusion compounds
that misdirection.





[46] What the learned judge a quo
appears to attempt to do in the above concluding part of her judgment
is to apply equitable considerations as against the clear evidence to
the contrary. She seems not to have been aware that this was
impermissible for a court to do. In Moser v Milton 1945 AD 517
Trindall JA said at 527-528:





‘In our system of law, as Kotze
JA pointed out in Weinerlein’s case (at p. 295), equity does
not prevail as distinct from and opposed to the law; and equitable
considerations do not entitle the Court to enforce a contract which a
statutory enactment declares to be of no force or effect, . . . .’





(See Wilken v Kohler and Weinerlein v
Goch Buildings Ltd 1925 AD 282 at 295.)





[47] For this reason and my discussion
of the evidence as a whole the appeal must be upheld and the
following order is made.





1. The appeal is upheld and all the
claims by the plaintiffs are dismissed.





2. The plaintiffs are ordered jointly
and severally, the one paying the others to be absolved, to pay the
defendant’s costs of this appeal and costs in the court below,
such costs to include the costs of one instructing and two instructed
counsel.








MTAMBANENGWE AJA





MAINGA JA





HOFF AJA





APPEARANCES:





APPELLANT:



S Nambinga





Instructed by AngulaColeman





RESPONDENT:





K Korf





Instructed by Koep & Partners