COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: I 3625/2007
the matter between:
ENGINEERING & PETROLEUM
citation: Total Namibia (Pty) Ltd v OBM
Engineering & Petroleum Distributors CC (I 3625/2007) 
NAHCMD 169 (14 June 2016)
17 May 2016
14 June 2016
The matter originated in October 2003 when the parties concluded a
written agreement in terms whereof Total Namibia agreed to supply
fuel to OBM at pre-determined prices. In addition Total Namibia
debited OBM with an additional amount referred to in the papers as
the ‘transport differential’. This agreement endured
until August 2007 when it was terminated.
On 21 November 2007, OBM directed correspondence to Total Namibia
indicating its intention to seek execution upon Total Namibia, where
OBM overpaid Total Namibia for an amount levied by Total Namibia as a
‘transport differential’ of N$4 609 940.72 together with
certain additional relief that Total Namibia allegedly owed.
Shortly thereafter and during December 2007, OBM issued summons
against Total Namibia for the sum of N$4 609 940.72.
On the eve of the commencement of the trial, on 27 October 2010
before Judge Hoff J, the parties reached settlement agreement, which
was made an order of court. The agreement reads as follows:
court will be requested to postpone the hearing sine
die and to incorporate this agreement
in the aforesaid order.
accountants for the parties will be instructed to verify all
transactions underlying the current account of plaintiff with
defendant (with reference to the source documents) in order to
determine, by agreement, any liability of defendant to plaintiff or
in accordance with the following:
All litres transported by plaintiff from
Walvis Bay to Otjiwarongo to be calculated at 14 c / litre.
All litres delivered and transported by
plaintiff from Otjiwarongo to defendant’s customers at the bulk
transport rate of 14 c / litre for the initial period p to 31 June
2006 and thereafter at the bulk transport rate of 15 c / litre as
from 1 July 2006.
In respect of the same litres referred to
in clause 2.2 above, a delivery / handling fee as stipulated in
clause 7.2 of the agreement attached as annexure “A” to
plaintiff’s particulars of claim (annexure “A”).
In respect of the rebate, as per clause 7.1
of annexure “A”.
The COC to be debited and the same COC to
be credited in respect of purchases by plaintiff and deliveries to
deems the opening balance to be zero as at 1 June 2005.
is entitled to prove a different opening balance with reference to
source documents, but subject thereto that such source documents
will only relate to the contract period in annexure “A”.
OF COC PRICE
COC price in clause 2.5 above shall be the price as debited by
defendant in respect of upliftment at Walvis Bay.
shall pay an amount to be determined from annexure “Z”
to plaintiff’s amended particulars of claim but limited to the
time period stipulated in paragraph 14 of plaintiff’s amended
particulars of claim, plus interest at the Namibian mora
rate, calculated as from 1 September
2007 to date of final payment.
result of the lubrication claim shall not affect the liability for
costs referred to below and any amount found to be due shall be paid
within fourteen (14) calendar days of final determination.
requires time until 30 November 2010 to reconsider its verification
as summarized in annexure “A” to the summary filed in
respect of Mr. Dreyer’s expert summary.
legal practitioner will deliver to plaintiff’s legal
practitioner on or before 31 January 2011 defendant’s response
to plaintiffs said verification.
plaintiff’s amendment, if any, and defendant’s response,
shall be valid only insofar as supported by verified source
or before 15 February 2011, or such later date as may be requested
by plaintiff on reasonable notice, a meeting will be held between
the parties’ legal presentatives in Windhoek at a venue and
time to be agreed upon for the following purpose:
To debate any issues raised in defendant’s
response and by plaintiff in reply to defendant’s response (to
be provided to defendant at least seven (7) calendar days prior to
such meeting, if any).
To compile a list of issues, if any, which
the parties are unable to resolve.
The trial will continue for the purpose of
adjudicating any remaining issues, including the costs of such
plaintiff does not deliver its additional verification on or before
30 November 2010, annexure “A” will stand as plaintiff’s
defendant does not deliver its response on or before 31 January
2011, plaintiff’s verification shall be accepted.
on the outstanding balance determined as envisaged in clause 2
above, will be calculated in accordance with the Namibian mora
rate, calculated as simple interest as
from 1 September 2007 to date of final payment.
party ultimately liable for payment to the other shall be liable for
costs on the following bases:
Namibian party and party scale.
Private taxation by a tax consultant in
Windhoek to be agreed upon between the parties.
In the event of defendant being entitled to
costs, one instructing and two instructed counsel, plus the actual
fees billed by the correspondent (Fisher, Quarmby & Pfeifer).
In the event of plaintiff being entitled to
costs, one instructing and two instructed counsel.
For purposes of any taxation or agreement,
the parties agree that the parties’ experts are qualified and
of the amount envisaged in clause 2 above shall be made within
fourteen (14) calendar days of final determination thereof, which
payment shall not be affected by the outcome of any litigation
envisaged in clause 11.3 above.
of the amount envisaged in clause 15 above shall be made within
fourteen (14) calendar days of taxation or agreement.
at WINDHOEK on this 27 day of October 2010. ’
As the result, the matter was postponed sine
die to enable the parties to give
effect to the agreement and to continue, if needs be, on any
remaining issues which might still remain thereafter.
In the interim and consequent of the implementation of the judicial
case management, the matter was assigned to me as the managing judge.
Thereafter, a number of case management meetings followed, during the
course of which Total Namibia intimated that it intended to move an
application to rectify the settlement agreement and the order issued
by Judge Hoff J pursuant thereto.
I accordingly made the necessary orders and the matter was referred
for hearing on 20 November 2012.
Judgment was given by this Court against Total Namibia on 28th
January 2013 under the above case number. Total Namibia appealed to
the Supreme Court, which the Supreme Court upheld the judgment given
by me in the High Court on the 30th
of April 2015, under Case No SA 9/2013.
I now turn to consider the application brought before me by Total
In the main application before me, Total Namibia seeks the following
‘ Directing the parties to
reconstitute the meeting contemplated in clause 11 of the settlement
Failing agreement on all the outstanding
issues being reached between the parties at the meeting contemplated
in paragraph 11.1 above:
Requiring the parties to complete a list of
issues, if any, that the parties are unable to resolve;
Directing that the matter is referred back
to the trial court for the determination of those issues; and
That, pending the final determination of
the relief sought in paragraph 9.1 and 9.2 above, the respondent is
interdicted from taking any steps to procure or execute upon a
warrant of execution in relation to any judgment issued in these
Firstly, whether it is competent for an Applicant to continue under
the same case number and in the same proceedings in view of the
Secondly, whether the settlement agreement puts an end to the entire
proceedings and its cause of action, and substitutes it with its
terms of the settlement agreement;
Legal Principles Applicable
As it is apparent from the above facts, a written settlement
agreement was reached between the parties on the 27th of
October 2010 and same was made an order of Court.
the case of Government
of the Republic of Namibia and Others v Katjizeu and Other
set out the following legal principles which are relevant to this
For the purpose of this judgement, it is also important to consider
the law pertaining to settlement agreements. In Gollach
& Gomperts (1967) (pty) Ltd v Universal Mills & Produce Co
(pty) Ltd and Others 1978 (1) SA 914
(A) at 921A-922C, Miller AJ made the following observations:
Cachalia v Herbere & Co.,
1905 T.S. 457 at p.462, SOLOMON, J., accepted the definition of
given by Grotius, Introduction, 3.4.2., as
agreement between litigants for the settlement of a matter in
2.15.1., gives a somewhat wider definition which
includes settlement of matters in dispute between parties who are not
litigants and later, 2.15.10., he includes within the scope of
agreements on doubtful matters arising from the uncertainty of
pending conditions “even though no suit is then in being or
trans., vol 1,p. 452.) The purpose of a
is not only to put an end to existing litigation but also to prevent
or avoid litigation. This is very clearly stated by Domat, Civil
Law, vol.1, para 1078, in a passage
quoted in Estate Erasmus v Church,
1927 T.P.D. 20 at p 24, but which bears repetition:
transaction is an agreement between two or more persons, who, for
preventing or ending a law suit, adjust their differences by mutual
consent, in the matter which they agree on; and which every one of
them prefers to the hopes of gaining, joined with the danger of
whether extra-judicial or embodied in an order of Court, has the
effect of res judicata.’
In PL v YL
2013 (6) SA 28 (ECG) at 48D-H the court held that:
suggestion that besides legislative support the encouragement of a
negotiated settlement also requires judicial support is in my view
not something which is inconsistent with the policies underlying our
law. The settlement of matters in dispute in litigation without
recourse to adjudication is generally favoured by our law and our
courts. The substantive law gives encouragement to parties to settle
their disputes by allowing them to enter into a contract of
compromise. A compromise is placed on an equal footing with a
judgement. It puts an end to a lawsuit and renders the dispute
between the parties res judicata. It encourages the parties to
resolve their disputes rather than to litigate.
Huber puts it:
compromise once lawfully struck is very powerfully supported by the
law, since nothing is more salutary than the settlement of lawsuits.”
The legal principles stated above, confirms that a settlement
agreement is placed on an equal footing with a judgement. It puts an
end to a lawsuit and renders the dispute between the parties res
judicata. It encourages the parties to
resolve their disputes rather than to litigate.
the Law to the Facts
It should be emphasised here that a Settlement Agreement, properly so
called, has the effect that litigation is ended, leaving the parties
to give effect to the terms of the Settlement Agreement. For all
practical purpose, there is nothing left for the court to decide.
The true dispute between the parties remains alive. Although the
agreement we are concerned with is called a Settlement Agreement, it
is not one in the true sense of the word. It is therefore important
That the trial was postponed sine die
pending the finalization of the steps and requirements contemplated
in the Settlement Agreement.
Conceivably if the parties have met as
contemplated by Clause 11 of their Settlement Agreement and resolved
at such meeting who owes who and what amount, the matter might have
then be regarded as having been settled.
Conversely, if that did not happen, the
parties could have been at liberty to return to Court to adjudicate
on any issues then outstanding.
For these reasons, I am satisfied that the Applicant is entitled to
bring this application on these papers.
The following orders are made:
The Respondent must file its answering
Affidavit within 14 days after delivery of this judgment.
The Applicant must file its replying
Affidavit if any, within 7 days after receipt of the Respondent’s
Matter will be placed on the Case
Management Roll on the 4th
of August 2016 at 15h30.
T J FRANK SC
BY: Fisher, Quarmby & Pfeifer, Windhoek
R HEATHCOTE SC
BY: Ellis Shilengudwa Inc, Windhoek
(1) NR 45 (SC)